The opinion of the court was delivered by: Jeanne E. Scott United States District Judge
JEANNE E. SCOTT, U.S. District Judge
This cause is before the Court on Defendant's Motions In Limine (d/e 445, 447, 449, 451, 453, 455, 457, 459), Defendant's Appeal of That Part of Magistrate Judge Cudmore's January 12, 2009, Opinion (Doc. 443) Allowing in Part Plaintiff's Renewed Motion for Sanctions (Doc. 427) (d/e 463), and Defendant's Motion to Strike (d/e 489). For the reasons stated below, Motions 445, 449, 451, 453, 455, and 459 are allowed in part and denied in part. Motions 447, 457, and 463 are denied. Motion 489 is allowed.
In Motion 445, Defendant asks the Court to exclude any argument or suggestion that jurors consider "the value of life" in calculating Plaintiffs' damages. Motion 445, at 1. This Motion is allowed in part and denied in part. It is allowed to the extent that Plaintiffs may not suggest that the jury calculate an award accounting for the inherent value in decedents' lives. It is denied to the extent that Plaintiffs may argue that jurors should place a monetary value on societal factors such as a Plaintiff's loss of a decedent's "love, affection, care, attention, companionship, comfort, guidance, and protection." See Singh v. Air Ill., Inc., 520 N.E.2d 852, 858 (Ill.App. 1st Dist. 1988).
In Motion 447, Defendant asks the Court to bar any evidence or opinion that on occasions before the accident at issue here, the warning system at this crossing failed to activate at least 20 seconds before the train entered the crossing. This Motion is denied. The Court ruled on this issue at summary judgment, and Defendant has presented no new legal authority to justify a reconsideration.
Plaintiffs have identified five incidents before this accident that they contend constituted activation failures. At summary judgment, the Court agreed. First, the Court noted that federal regulations require highway-rail grade crossing warning systems to provide "in no event . . . less than 20 seconds warning time for the normal operation of through trains before the grade crossing is occupied by rail traffic;" failure to satisfy this requirement constitutes an activation failure. 49 C.F.R. § 234.225. The Federal Register Notice provides that "switching movements or train operations that require stopping short of the grade crossing" do not constitute "normal through train operations." 61 Fed. Reg. 31802, 31804 (Aug. 19, 1996). What constitutes "normal through operations" is a legal matter, and the Court concluded that any train not switching movements or stopping short of a grade crossing is engaged in "normal through operations." Opinion issued June 2, 2008 (d/e 352), at 20-21. Defendant argued that the five activation failures Plaintiffs identify did not constitute activation failures because they involved Amtrak trains accelerating through the crossing, and thus trains not engaged in "normal through operations," but the Court rejected this position based on its interpretation of "normal through operations."
In Motion 447, Defendant again argues that because these five incidents involved accelerating Amtrak trains, they did not constitute activation failures and thus are irrelevant. At summary judgment, the Court invited Defendant to raise the issue of "normal through operations" again in a motion in limine if it could find additional authority regarding the meaning of the phrase, but Defendant has not included any additional authority in its briefing here. As noted at summary judgment, the opinions of expert witnesses are not appropriate support for a legal argument. Because Defendant has offered nothing more, the Court's summary judgment ruling stands. These five incidents constitute activation failures, and Plaintiffs may introduce evidence of them.
In Motion 449, Defendant asks the Court to bar all evidence and opinion regarding the Cellular Remote Terminal Unit (CRTU). Motion 449 is allowed in part and denied in part. Before detailing its decision, the Court notes that it has issued numerous other Opinions which have discussed the CRTU and its discovery history extensively. The Court will not rehash that history here and will assume that the parties are familiar with it.
Preliminarily, the Court holds that some evidence regarding the CRTU may be relevant at trial. At summary judgment, the Court held that by authorizing the construction of the warning system at the crossing and providing federal funds for it, the Federal Highway Administration (FHWA) conclusively determined that the warning system was adequate under federal law. See Opinion issued June 2, 2008, at 23-24. In deciding this issue, the Court noted that because the CRTU was not part of the warning system approved by the FHWA, Plaintiffs cannot rely on the use or misuse of the CRTU to argue that the warning system here was inadequate. The Court noted, "The CRTU, thus, is irrelevant to this case." Id. at 24, n.3. While Defendant has read this note to hold broadly that the CRTU is entirely irrelevant to any issue in this case, the Court's ruling was limited to the issue discussed. In context, the Court ruled only that the CRTU is irrelevant to the issue of whether the warning system was adequate. Evidence regarding the CRTU may be relevant on other issues.
First, data that the CRTU transmitted or actually recorded and that still exists may be relevant. For example, if the CRTU recorded data from which activation failures at the crossing could be detected and this data still exists, it may be admissible. At summary judgment, the Court understood that the CRTU was not used to record data from which activation failures could be detected. Defendant has indicated since then that the CRTU did record data from which activation failures could be detected. See Defendant's Response to Plaintiffs' Renewed Motion for Sanctions (d/e 432), at 7 (conceding that had the CRTU been downloaded after the accident, it would have contained the same information as the Safetran primary event recorder). If any of the data the CRTU recorded regarding activation failures still exists, it may be relevant, and Plaintiffs may attempt to introduce such evidence. Thus, Motion 449 is denied to the extent that Plaintiffs may introduce relevant evidence of existing data actually taken from or transmitted by the CRTU.
Second, evidence that the CRTU actually recorded data that would have been admissible, but that no longer exists, may be relevant. If Plaintiffs can show to the Court, outside the presence of the jury, that relevant CRTU data still existed on March 25, 2005, when they first requested evidence or information regarding the CRTU in the Walters' Production Request Nos. 13 and 20, they may introduce evidence that such data no longer exists. Until Plaintiffs make this showing to the Court, they may not mention this issue to the jury. Thus, Motion 449 is denied to the extent that Plaintiffs may introduce evidence that the CRTU actually recorded relevant data that no longer exists, provided that they first meet this threshold requirement in a proffer to the Court outside of the presence of the jury.
In a related matter, Plaintiffs have asked the Court to revisit its ruling regarding expert Larry Farnham. The Court previously barred all expert testimony from Plaintiffs' expert Larry Farnham except his opinion that the crossing's warning system had not functioned properly on five occasions before this accident. See Text Order issued July 3, 2008. The Court now holds that if Plaintiffs previously disclosed an opinion by Farnham regarding the threshold issue of whether relevant CRTU data still existed on March 25, 2005, they may offer this opinion as part of their proffer on this issue outside of the jury's presence. Again, Plaintiffs may not mention this matter to the jury until they make this showing. If the Court decides after this proffer that Plaintiffs can present evidence that the CRTU actually recorded data that would have been admissible but that no longer exists, Plaintiffs then may renew their request to reconsider the Court's decision on the admissibility of Farnham's opinions.
Third, evidence that Defendant could have had the CRTU record additional data, but chose not to do so, is irrelevant. Such evidence would relate only to the CRTU issue the Court decided at summary judgment. Plaintiffs may not introduce such evidence. Thus, Motion 449 is allowed in part and denied in part.
In Motion 451, Defendant asks the Court to exclude any evidence or opinion that it altered, destroyed, or otherwise spoliated evidence in this case. Motion 451 is allowed in part and denied in part. Before detailing its decision, the Court notes that prior Opinions in this case have discussed Plaintiffs' allegations of spoliation -- including CRTU-related spoliation --extensively. Again, the Court will not rehash prior discussions here and will assume that the parties are familiar with the history of this issue.
Plaintiffs' allegations of spoliation relate to three different electronic recording devices: the CRTU, the primary Safetran recorder board, and the standby Safetran recorder board. Motion 451 is denied in part, in that the Court will allow evidence of spoliation on the CRTU if Plaintiffs first can establish outside the jury's presence that now-missing relevant CRTU data existed on March 25, 2005. ...