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John Bratek v. Bnsf Railway Company

May 13, 2011


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED Friday, 13 May, 2011 12:32:48 PM

Clerk, U.S. District Court, ILCD


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court are the Plaintiffs' motion in limine (#71) and Defendant's motions in limine (#80 and 81). The motions are fully briefed, and I have carefully considered the parties' arguments.


Plaintiff asks the Court to exclude or limit five categories of evidence, as follows: Defendant's Medical Expert's Testimony

Plaintiff states that Defendant retained Dr. Douglas Martin as an "adverse medical expert." Dr. Martin is an occupational medicine specialist who treats patients suffering from work injuries, with the goal of returning them to work. Several of Dr. Martin's opinions are challenged in this part of the motion.

The first challenged opinion occurs in Dr. Martin's written report, in which he states that "the claimed incident of hitting a train low not a proximate cause of the C5-6 disk abnormality which subsequently led to this gentleman's cervical operation." [emphasis added] Dr. Martin's Report is attached as Exhibit 2 to Attachment 2 to Motion in Limine #71.

Plaintiff argues that this conclusion regarding proximate cause must be barred for 3 reasons. First, this is a legal conclusion, which cannot be offered by experts in this Circuit, citing Haager v. Chicago Rail Link, 232 F.R.D. 289, 294 (N.D.Ill.2005). Second, proximate cause is not the standard in FELA cases. See Seventh Cir. Pat. Jury Instr. 9.02 (2009). Third, the term is a legal term of art would be confusing to a jury.

Defendant characterizes Dr. Martin's use of this terminology as "fortuitous," pointing out that the conclusion was drawn only after a description of Dr. Martin's review of medical records, medical depositions and an IME.

Despite its statement as a legal conclusion, the context clearly shows that Dr. Martin intended this conclusion to be a conclusion of medical causation, not legal causation. He did not himself raise any legal issues and disclaimed knowledge of what legal causation applied in FELA cases. His medical conclusion is based on sufficient medical data to be admissible. This is nothing like the expert's opinion in Haagar, or the opinion rendered in the case on which Haagar relied, Good Shepherd Manor Foundation Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003)(expert testimony as to legal conclusions that will determine the outcome of the case is inadmissible).

Plaintiff is correct that "proximate" cause is not the applicable standard in a FELA case and that allowing this conclusion as stated would be confusing to the jury. Exclusion of the entire testimony, however, is a far more extreme measure than is necessary to resolve this issue. Dr. Martin simply cannot use - orally or in writing - the word "proximate" in conjunction with the word "cause" or "causation." If Dr. Martin's report is admitted - an issue not presented here - the word "proximate" must be redacted. If Dr. Martin used this term in his deposition, it must be edited out.

The second opinion of Dr. Martin that Plaintiff wants barred is his opinion regarding Bratek's ability to return to work, either generally or for BNSF specifically. In his report, Dr. Martin included no opinion on this issue. At his deposition, Plaintiff asked him if he had an opinion regarding Bratek's ability to return to work. He said he did not and that he had not been asked to form such an opinion. Following up, Defendant elicited that Dr. Martin thought Bratek "probably" could return to "some gainful employment."

Plaintiff asserts that Dr. Martin lacks foundation to so opine and further that Defendant failed to disclose his opinions on this topic. Defendant addresses the foundation argument based on Dr. Martin's credentials, and on the basis of those credentials, I find no basis for excluding his testimony.

Defendant does not address, however, the failure to disclose this opinion except to say that the opinion was elicited by Plaintiff's own questioning, so surprise and prejudice cannot be claimed. Fed.R.Civ.P. 26 (a)(2)(B)(i) requires that the written report contain "a complete statement of all opinions the witness will express and the basis and reasons for them." Failure to disclose or supplement bars a party from using that information, Fed.R.Civ.P. 37(c)1), regardless of what happened at the deposition or whether there is surprise or prejudice. Dr. Martin may not opine on Bratek's ability to return to work.

Defendant's assertion that Bratek failed to mitigate damages

BNSF has asserted that Bratek failed to take reasonable steps to return to work or to utilize his employer's return-to-work program. In support of this affirmative defense, Defendant has taken the deposition of one of its Regional Field Managers for the Medical and Environmental Health Department, Chris McGinnis. He testified about the lack of communication between Bratek and his vocational rehabilitation expert and this department, as well as about Bratek's lack of interest in taking a test for a supervisor's position. Plaintiff responds that BNSF bears the burden of showing that Bratek failed to take reasonable action to lessen his damages. Plaintiff claims defendant cannot do so, but whether BNSF's evidence is sufficient to show reasonableness is a question for the jury.

Plaintiff next asserts that the defendant must show that there was a particular job available, that he was physically capable of holding that job, and that the job was not transitory. Plaintiff asserts that there is no such evidence. This is not a question that need be addressed before the trial. BNSF may put on the testimony of McGinnis. Whether this is sufficient to send the question of mitigation to the jury is a matter that will be taken up at the conclusion of the trial, during the jury instruction conference. At this time, the motion is denied.

Workers' Compensation

Plaintiff next asserts that the jury should be told that plaintiff's injuries are not covered by the state worker's compensation statute. Defendant disagrees.

The jurors will be properly instructed on the FELA statute and its protection of railroad workers such as the Plaintiff. There is absolutely no need to introduce an entirely irrelevant statute into this trial. There may be no mention of state workers' compensation statutes.

Residence of Plaintiff and counsel

Plaintiff asks that Defendant be barred from referring to the fact that neither Bratek nor his counsel are from Illinois. It will be unavoidable that the jury will learn that Bratek lived in Iowa, reported to supervisors in Iowa, or was treated by providers in Iowa. Certainly I will not allow any negative connotation to be attached to such information, but it need not be barred. With respect to the state where Plaintiff's attorney practices, I see no reason why that should come up at all, beyond the introduction that I will make to the jurors at the outset of the case. No further reference to that fact need be made during the course of the trial.

Discipline of Bratek

Plaintiff asks that BNSF be barred from offering evidence to any past, unrelated instances in which BNSF disciplined Bratek. BNSF did not respond to this part of the Motion. I therefore assume there is no objection. See CDIL Local Rule 7.1.

Discipline of Bratek that is unrelated to the issues in this case is marginally probative and probably completely irrelevant. Moreover, such evidence would inject a significant likelihood of prejudice which clearly outweighs any value at all. Such evidence may not be introduced. See, Fed.R.Evid. 402 and 403.

As stated herein, Plaintiff's motion is granted in part and denied in part.


In this motion, BNSF asks the Court to bar the Plaintiff from using or mentioning certain email communications. These emails were the subject of questioning of Chris McGinnis, who is BNSF's Field Director for Medical and Environmental Health. McGinnis' job duties involve efforts to return injured employees to work. Part of those efforts involve giving them the opportunity to take a "first line supervisor test." ("FLS test") to assess whether an employee can move from one position into a supervisory position, presumably because it would entail fewer physical demands.

These emails are dated in 2001 and 2002; copies are attached as exhibits to Defendant's Motion in Limine.

The earliest email, dated June 29, 2001, is addressed to Amanda Bambrell, apparently someone in the HR department. The email expresses BNSF's Claims Department's "frustration" with the "current process of getting job offers" to injured employees who have brought FELA suits seeking all future lost wages and benefits. The email references an earlier meeting at which this issue was discussed, leading to a consensus among the participants that a separate procedure was needed for testing these employees that "focused solely on the specials [sic] needs & requirement of injured-on-the-job employees, and the financial benefits that could be gained by making bona fide written job offers" to them.

In an undated response, Amanda offers 3 comments. The first one considers whether the internal application form could be "flagged" so that "H.R. can easily identify voc rehab client applicants." Second, she suggest that it would be [legally?] justifiable to offer the FLS to injured employees immediately upon determination that a permanent restriction "precludes them from performing their regular job." Finally, she conveyed a discussion from an earlier meeting in which H.R. discussed "in detail" how H.R. employees could be used as fact witnesses when an employee fails the FLS test. According to the discussion, these H.R. employees take "copious notes" during the test and conveyed the information that employees taking the FLS test often "present themselves very badly." This section of the email goes on to state that if the employee fails in the leadership portion of the test, H.R. mails them a letter that tells them how to improve their skills in this area and that offers training to coincide with this suggestion. If the employee fails the "in-box" portion of the test, community college courses in time management and priority setting are offered. She concludes that most injured employees "reject" both of these offers.

In another email, this one dated Feb. 6, 2002, Amanda points out "the problem," namely that FELA claims are "up 20M this year" and it was believed that this was due to "not being able to directly offer positions to employees in litigated cases." Following a very brief summary of the cost analysis supporting that conclusion (that estimated savings for offering a job was $250,000 per case), she then assessed her view of the reality of making such offers. She concluded that field H.R. employees "resoundingly" denied having interviewed injured employees that "they felt would be an asset to this company as a first line supervisor." She concludes by suggesting that BNSF "really look into the reality of numbers and people assessment" and by asking whether it was true that "there are no injured employees that are promote able?"

The next two emails, both dated February 13, 2002, concern a flow chart called the "Voc Rehab Process Flow Draft." The first email seeks feedback to the chart, and the response provides one instance of some feedback. The feedback expresses concern that the flow chart makes it appear that the process is a "claim controlled process, cutting out medical altogether." In addition, it was pointed out that the flow chart was missing several flow lines.

BNSF first asserts that the these emails do not reflect the status or structure of the return to work program as it currently exists, nor do they deal with job opportunities that might be available to Bratek. McGinnis, in his deposition, testified that he was unfamiliar with the practice of using H.R. employees as fact witnesses in litigation. This process has not been used in any way with respect to Bratek's claims or efforts to return him to work or take the FLS test or any other matter in connection with this case.

Plaintiff, on the other hand, vigorously argues that these emails and McGinnis' testimony about them are crucial to the issue of mitigation of damages. Moreover, Plaintiff points out that Bratek was sent offers to take the FLS test and was sent postings for FLS jobs. Chris McGinnis, who coordinated between the claims and H.R. departments, is being used as a fact witness in this case.

These emails are relevant to the defense of mitigation, raising questions about the legitimacy of the job offers and promotional testing that BNSF offered to Bratek. There are certainly avenues that should be vigorously explored on cross examination, but those questions go to the weight to be accorded to these emails, and not to their admissibility.

This motion is ...

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