JOHN A. GORMAN, Magistrate Judge.
Now before the Court is the motion in limine (#69) filed by Defendant BNSF, as well as a subsequent document from BNSF titled "memorandum of clarification." (#75). Also pertinent to this motion is Plaintiff's memorandum responding to BNSF's clarification memo. As stated herein, the motion, as modified by the memoranda, is granted in part and denied in part.
Before addressing the specific issues raised in the motion, the Court will address Plaintiff's contention that the part of this motion challenging the testimony of Plaintiff's expert Gary Mallen is essentially a Daubert motion that has been untimely filed. In the original scheduling order (see minutes of 9/27/11), no deadline was set for filing Daubert motions. There were several subsequent extensions of the original schedule; at no time did the Court set such a deadline. It was not until Defendant's timely-filed motion in limine that BNSF challenges to Mallen's testimony. There are two aspects to the challenges to Mallen: his opinions are barred by the order on summary judgment (Doc.#55, March 13, 2013), or they are barred because they were not disclosed in his Report.
The better practice would certainly have been to file a Daubert motion earlier than BNSF did here. Mallen's deposition was taken a year ago, and the summary judgment order was entered over 6 months ago. Nonetheless, the Court has never set a deadline for filing Daubert motions, and there is nothing in the Rules or in Daubert itself or its progeny that would mandate a finding of untimeliness. Finding the motion untimely would be a gross injustice. The Court will therefore consider the motion. In light of the extensive briefing on this issue, there is no need for oral argument.
The organization of this Order mirrors the organization of BNSF's motion. Headings and paragraph numbers are those contained in the motion.
1. BNSF asks the Court to bar any suggestion or testimony that Plaintiff's children have been injured or sustained damages. Plaintiff does not oppose this. The motion is granted as to this issue.
2. BNSF asks that Plaintiff be barred from referring to this case as a "workers' compensation" case, or from stating that Plaintiff is not eligible for workers' compensation or did not receive compensation for the incident. In Schmitz v. Canadian Pacific Railway Co., 454 F.3d 678 (7th Cir 2006), the plaintiff contended that the district court should have given a cautionary instruction. The context was slightly different in Schmitz, however, than it is here. In Schmitz the jury had asked whether the plaintiff received medical or workers' compensation benefits for his injury. The district court had declined to answer specifically, responding that such matters were "simply not before the court or the jury." The Seventh Circuit affirmed the district court, stating that such an instruction - that the plaintiff had "no means of recovery other than FELA" - could have prejudiced the railroad and that the court's admonition that the matters were not before them "was appropriate." Id at 685.
In this case, there is no question from the jury; BNSF simply asks the Court to prevent Willis from bringing up the subject during trial. Although Plaintiff suggests that the jury should be advised of the law, that would be inconsistent with Schmitz. If and only if the matter is raised by the jury will they be properly admonished. If it is not questioned, jury instructions will be clear enough that no "clarifying" instruction will be necessary. The motion is therefore granted as to this issue.
3. BNSF asks that Willis be barred from making any reference to whether BNSF is insured or indemnified. Plaintiff does not oppose this. The motion is granted as to this issue.
4. BNSF asks that Plaintiff be barred from referring to BNSF's size, financial condition, corporate structure, ownership, solvency, or ability to pay. Plaintiff does not oppose this, noting only a possibility that BNSF might open the door to such references. The motion is granted. If the door is opened, Plaintiff of course has leave to bring the matter to the Court's attention and seek modification of this order.
5. BNSF asks that Plaintiff be barred from referring to or arguing that he incurred or paid medical or hospital bills or expenses. Plaintiff does not oppose this. The motion is granted as to this issue.
6. BNSF asks the Court to bar reference or argument regarding Congressional intent or purpose of FELA. Plaintiff responds that the Court should inform that jury about FELA's history and Congressional intent, explaining the statute's "basic principles and purpose." The Court declines to give such an instruction (and notes that Plaintiff has failed to even tender such an instruction). See, Stillman v. Norfolk & Western Railway Co., 811 F.2d 834, 838(4th Cir 1987)(affirming district court's refusal to allow plaintiff to argue about Congressional intent). The motion is granted as to this issue.
7. Defendant asks the Court to bar reference, statements and argument about Plaintiff's financial expenditures, such as poverty or reduced standard of living. Plaintiff does not oppose this, so long as Defendant makes no suggestion that he is well off or that his financial situation was the incentive for filing this lawsuit. The motion is granted. If Defendant opens the door, Plaintiff may bring the matter to the Court's attention.
8. BNSF wants the Court to bar Plaintiff from commenting on the size of the law firm or number of attorneys in the law firm representing it. Plaintiff does not oppose this part of the motion. It is therefore granted.
9. BNSF wants Plaintiff barred from presenting evidence pertaining to other lawsuits or claims against BNSF. Plaintiff does not oppose the motion, stating it will approach the Court if BNSF opens the door to this type of evidence. The motion is granted.
10. BNSF asks that Plaintiff be barred from referring, arguing, or stating that the law firm represented BNSF in this suit regularly represents BNSF. Plaintiff does not oppose this motion. The motion is granted as to this issue.
11. BNSF asks that Plaintiff be barred from referring to punitive or exemplary damages. Plaintiff does not oppose this matter. The motion is granted.
12. BNSF asks the Court to bar reference to settlement discussions or communications between the parties to this suit. Plaintiff does not oppose the motion. It is granted.
13. BNSF asks that Plaintiff be barred from referring to motions in limine or other pretrial motions. Plaintiff does not oppose the motion as to motions in limine and makes no response with respect to other types of motions. The motion is granted.
14. BNSF asks that Willis be barred from suggesting, stating or attempting to argue that BNSF has failed to produce documents, that documents are missing, lost or destroyed, or that there was motion practice on discovery issues. Willis does not oppose this motion as long as the bar applies to both parties. The motion is granted as to both parties.
15. Defendant asks that Plaintiff be barred from referring to the railroad or to railroading as dangerous. Plaintiff responds that he must be able to present evidence and argument about "specific relevant dangers, " because under FELA BNSF had a duty to provide Willis with a safe place to work. That requires, says Plaintiff, a level of care "commensurate to the dangers of the business, " quoting Atlantic Coast Line Railroad Co v. Dixon, 189 F.2d 525, 527 (5th Cir) [emphasis added by Plaintiff], cert denied, 342 U.S. 830 (1951). Plaintiff may of course refer to the dangers inherent in setting a hand brake, as that is the issue in this case. There is however, no relevance to this case of any other danger, so general references to dangers in the industry as a whole would be improper. The motion is granted in part and denied in part, as stated.
16. BNSF asks the Court to prevent Willis from questioning a potential juror about his or her personal experiences with a particular injury, treatment or duration of the injury, the effect of the injury on earnings or family, or similar efforts to elicit in front of the panel a personal accounting of that panel member. Willis responds that jurors' experiences with their own injuries or injuries of family members could have resulted in bias and strong feelings, so he should be allowed to voir dire on this issue.
The Court will ask the jury panel members if they or any member of their immediate family has suffered a serious injury. If the answer is affirmative, the Court will inquire about the nature of the injury and whether their experience with that injury - including treatment and recovery - will affect their ability to view the evidence in this case fairly and impartially. No further individual questioning by counsel beyond the Court's questions will be allowed without a bench conference before the questioning commences. To that extent the motion is granted.
17. BNSF asks for a bar of statements or evidence that it could have provided safer procedures or methods of work. Willis opposes this, asserting that if BNSF foresaw (or should have foreseen) that a method posed a danger to its workers, then it had a duty to reduce that danger. In Stillman, the Fourth Circuit held that the question for the jury was whether the railroad had exercised reasonable care for the safety of its employees, not whether it could have employed a safer method of performing a specific procedure or method. 811 F.2d at 838. In other words, the question is whether the hand brake was safe as it existed when Willis used it, not whether it could have been safer at that time. The quotations offered by Plaintiff do not contradict that holding.
That said, however, this issue is directly related to the issue raised below that BNSF has characterized as "Subsequent Remedial Measures." To the extent that BNSF intended this section (i.e.#17) to bar evidence of subsequent remedial measures, this section is denied; the admissibility of evidence of subsequent remedial measures is an issue governed by the section below with that title.
Plaintiff argues that this issue may be raised by BNSF in its proof of the affirmative defense of contributory negligence, namely that Willis's failure to use a safer method was evidence of that defense. BNSF cannot have it both ways; if this issue is raised, then of course Willis will be allowed to introduce evidence to dispute it. That issue, however, is not presently before the Court.
To the extent there may be some other type of evidence regarding "safer procedures, " the Court lacks specific information and will not rule in a vacuum. This part of the motion is therefore denied, with leave to move for reconsideration if appropriate during trial.
II. STANDARD OF PROOF UNDER FELA
18 and 19. In these paragraphs, BNSF points out that the only remaining claim is Count I, which alleges BNSF's negligence. As a result, BNSF asks the Court to bar any argument or statement that a violation of FELA is "negligence per se" or that BNSF is "strictly liable" for violations of FELA. Willis acknowledges the prior ruling on this question but asks the Court to revisit its entry of summary judgment as to Count II; the Court declines to do so. In the absence of such action, Plaintiff does not oppose BNSF's motion. The motion is therefore granted.
III. SUBSEQUENT REMEDIAL MEASURES
20-27. BNSF anticipates testimony that following Willis's injury BNSF made "brake sticks" available to its employees. Brake sticks allow an alternative method of setting and releasing hand brakes. Use of brake sticks is not a new technology or method; according to Plaintiff's expert, they have "been around" since the late 1980's.
BNSF asserts that this is a subsequent remedial measure barred by FRE 407. Moreover, BNSF asserts that expert testimony would be required on the question whether use of brake sticks would have made Willis's job safer, testimony that Plaintiff's expert Gary Mallen did not offer. In fact, at his deposition, Mallen said that the use of a brake stick would not have prevented Willis's injury and that there have been "a lot" of injuries involved with the use of brake sticks.
Plaintiff responds that subsequent remedial measures are admissible to prove "feasibility of precautionary measures, if controverted." In addition, Plaintiff asserts that the question does not require expert testimony; the jury should be allowed to exercise "common sense" in assessing the reasonable care and safe workplace issues. These arguments raise 2 questions: the applicability of Rule 407 and the need for expert testimony on the question.
Rule 407 provides:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence... This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving... feasibility of precautionary measures, if controverted..."
FRE 407. This Rule is intended to remove the "disincentive to take post-accident safety measures that would exist if the accident victim could introduce evidence of measures on the issue of the defendant's liability." Probus v. K-Mart Inc., 794 F.2d 1207, 1210 (7th Cir 1986).
The Rule has exceptions, one of which applies here, namely that subsequent remedial measures are admissible to show the feasibility of other methods. Here, Willis wants to admit evidence about the use of brake sticks to show that this method was feasible at the time of Plaintiff's injury. With that limitation, evidence about the subsequent availability of brake sticks is not barred by Rule 407.
Nor is expert testimony needed for this limited question. It is not disputed that the method was feasible. Willis himself can testify about when the brake sticks became available to him, how it affects the way he ties a hand brake, if he uses this method consistently, and the like. The fact that Plaintiff's own expert testified in a manner that challenges the contention that this method is safer and/or would have prevented Willis's injury simply goes to the weight the jury might give to Willis's testimony. It does not affect its ...