UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON
Norfolk Southern Railway Civil No. 5:18-207-KKC-MAS Company, Plaintiff, v. OPINION AND ORDER Kevin Tobergte and Andy Hall, Defendants. ** ** ** ** ** This matter is before the Court on the parties’ pretrial motions in limine [DEs 138–42, 152, 171]. Being fully briefed on the matters and having heard the arguments of counsel, for the reasons stated in the pretrial conference and in this order, the Court hereby ORDERS as follows: (1) The Court shall reserve ruling on the parties’ objections to exhibits and witnesses. The parties may make contemporaneous objections and the Court will resolve those objections with the benefit of the context of trial. (2) The parties’ motions [DE 138–42, 152, 171}] are GRANTED IN PART and DENIED IN PART in accordance with the tables below. During the course of trial, any party may approach the bench and ask the Court to reconsider any of the following motions if they believe circumstances have changed. NORFOLK SOUTHERN’S MOTIONS IN LIMINE [DE 171] Motion Ruling GRANTED The Court previously granted summary judgment on the Defendants’ positive train control related counterclaims. [DE 114.] Contrary to Defendants’ argument, there is nothing to suggest that the train operators should have been on some kind of heightened alert due to the absence of positive train control on either train. The train operators were required to operate the trains in the condition they were in on the day of the subject collision and Norfolk Southern’s motion to thus evidence of positive train control is 1 exclude evidence related to the not relevant to issues surrounding the (DE 171 Defendants’ dismissed positive standard of care. at 1–2) train control related counterclaims. Any evidence regarding whether either train involved in the subject collision was equipped with positive train control would likely confuse the jury as to Norfolk Southern’s duty. Given the anticipated arguments stated by Defendant Tobergte, allowing evidence of positive train control is likely to confuse or mislead the jury into thinking that Norfolk Southern should have equipped all its locomotives with positive train control. The evidence shall therefore be excluded from trial. GRANTED Evidence related to these dismissed counterclaims is irrelevant and is likely Norfolk Southern’s motion to to confuse or mislead the jury as to 2 exclude evidence related to Norfolk’s duties and the issues to be (DE 171 Defendants’ dismissed decided at trial. If Norfolk Southern at 2–3) training- and supervision- opens the door, Defendants may approach related counterclaims. the bench and ask the Court to allow introduction of evidence related to Defendant Tobergte’s training as a locomotive engineer. GRANTED The Court has already dismissed Defendants’ counterclaims to the extent that they assert Norfolk Southern’s dispatch and signal systems malfunctioned or otherwise did not Norfolk Southern’s motion to operate as expected. The Court therefore 3 exclude evidence related to the grants Norfolk Southern’s motion. (DE 31 )7 1 at D die sf pe an td ca hn - t as n’ dd i ss im gnis as le -sd y stem However, evidence relevant to what personnel on the subject trains saw or did related counterclaims. not see is not excluded by this ruling. The Court notes that the parties agree that this ruling does not preclude introduction of evidence that the northbound signal changed to a stop signal after Train 175 violated its signal. Norfolk Southern’s motion to DENIED AS MOOT 4 exclude evidence related to Defendants do not intend to offer (DE 171 Defendants’ dismissed evidence or argument related to these at 4) Locomotive Inspection Act dismissed counterclaims at trial. counterclaims. Norfolk Southern’s motion to 5 DENIED AS MOOT exclude use of any FRA (DE 171 Defendants state that they do not intend Accident/Investigation Reports at 4–7) to offer such evidence. concerning the subject collision. GRANTED as to Defendant Tobergte’s Norfolk Southern’s motion to earlier employment dispute regarding a exclude evidence relating to 6 missed “STOP” signal. If Defendant Hall Defendant Tobergte’s prior (DE 171 elects to explore Tobergte’s familiarity dismissal from employment at 7) with the signal in this case, he may based on a “STOP” signal explore the topic, but not in the context of violation. any employment disciplinary actions. 7 Norfolk Southern’s motion to (DE 171 exclude evidence regarding GRANTED at 8) allegations of OSHA violations. Norfolk Southern’s motion to The Court will reserve ruling on this 8 exclude evidence relating to motion pending resolution of the issues (DE 171 Defendant Hall’s abuse of presented in its show cause order [DE at 8–9) process counterclaim. 190]. GRANTED Defendant Tobergte withdrew his 9 Norfolk Southern’s motion to objection at the pretrial conference, and (DE 171 exclude the testimony of Larry all parties agree that this testimony at 9) Mann. should be excluded in light of the Court’s ruling on Norfolk’s first motion in limine regarding positive train control. GRANTED Norfolk Southern’s motion to The evidence appears to be irrelevant. exclude evidence related to 10 However, if Norfolk Southern opens the Defendant Tobergte’s (DE 171 door or such evidence otherwise becomes testimony that no one from at 10) relevant, the Defendants may approach Norfolk Southern visited him the Court and ask for permission to in the hospital. introduce this evidence. Norfolk Southern’s motion to 11 exclude evidence related to DENIED AS MOOT (DE 171 Defendant Tobergte’s reaction Defendants have stated they do not at 10–11) to any newspaper article intend to offer such evidence. regarding the instant lawsuit. The Court will reserve ruling on this Norfolk Southern’s motion to 12 motion pending the issues raised in its exclude evidence related to (DE 171 show cause order related to Defendant Defendant Hall’s reports to his at 11–12) Hall’s abuse of process claim. psychiatrist that he is concerned that Norfolk As related to other claims, the Court does Southern is suing him. not find that this evidence is relevant to the emotional damages being sought by Defendant Hall. His FELA counterclaim centers on issues regarding Norfolk Southern’s negligence and duty to provide a safe workplace, and the damages that flow from that would be damages that were caused by the subject collision, which in the case of emotional damages would be things such as trauma resulting from the collision.
But emotional distress experienced as a result of being sued is not relevant to the damages under his FELA counterclaim, because that emotional distress does not stem from the subject collision or any alleged negligence on Norfolk Southern’s part. Rather, it flows from Norfolk Southern’s act of filing the lawsuit, not its alleged negligence or the actual collision. DENIED as vague and overbroad. Norfolk Southern has not identified any specific accidents, injuries, or even types of accidents that should be excluded from evidence. Excluding broad categories of Norfolk Southern’s motion to 13 evidence is disfavored, so the Court will exclude evidence related to (DE 171 deny this motion and direct the parties to other unrelated injuries or at 12) make contemporaneous objections at accidents. trial. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (“Orders in limine which exclude broad categories of evidence should rarely be employed.”) DENIED The parties agree that medical expenses paid by Norfolk Southern are inadmissible, and Defendants have stated 14 Norfolk Southern’s motion to that they do not intend to introduce such (DE 171 exclude evidence of Defendants’ evidence. Norfolk Southern may make a at 12–13) medical expenses.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON
Norfolk Southern Railway Civil No. 5:18-207-KKC-MAS Company, Plaintiff, v. OPINION AND ORDER Kevin Tobergte and Andy Hall, Defendants. ** ** ** ** ** This matter is before the Court on the parties’ pretrial motions in limine [DEs 138–42, 152, 171]. Being fully briefed on the matters and having heard the arguments of counsel, for the reasons stated in the pretrial conference and in this order, the Court hereby ORDERS as follows: (1) The Court shall reserve ruling on the parties’ objections to exhibits and witnesses. The parties may make contemporaneous objections and the Court will resolve those objections with the benefit of the context of trial. (2) The parties’ motions [DE 138–42, 152, 171}] are GRANTED IN PART and DENIED IN PART in accordance with the tables below. During the course of trial, any party may approach the bench and ask the Court to reconsider any of the following motions if they believe circumstances have changed. NORFOLK SOUTHERN’S MOTIONS IN LIMINE [DE 171] Motion Ruling GRANTED The Court previously granted summary judgment on the Defendants’ positive train control related counterclaims. [DE 114.] Contrary to Defendants’ argument, there is nothing to suggest that the train operators should have been on some kind of heightened alert due to the absence of positive train control on either train. The train operators were required to operate the trains in the condition they were in on the day of the subject collision and Norfolk Southern’s motion to thus evidence of positive train control is 1 exclude evidence related to the not relevant to issues surrounding the (DE 171 Defendants’ dismissed positive standard of care. at 1–2) train control related counterclaims. Any evidence regarding whether either train involved in the subject collision was equipped with positive train control would likely confuse the jury as to Norfolk Southern’s duty. Given the anticipated arguments stated by Defendant Tobergte, allowing evidence of positive train control is likely to confuse or mislead the jury into thinking that Norfolk Southern should have equipped all its locomotives with positive train control. The evidence shall therefore be excluded from trial. GRANTED Evidence related to these dismissed counterclaims is irrelevant and is likely Norfolk Southern’s motion to to confuse or mislead the jury as to 2 exclude evidence related to Norfolk’s duties and the issues to be (DE 171 Defendants’ dismissed decided at trial. If Norfolk Southern at 2–3) training- and supervision- opens the door, Defendants may approach related counterclaims. the bench and ask the Court to allow introduction of evidence related to Defendant Tobergte’s training as a locomotive engineer. GRANTED The Court has already dismissed Defendants’ counterclaims to the extent that they assert Norfolk Southern’s dispatch and signal systems malfunctioned or otherwise did not Norfolk Southern’s motion to operate as expected. The Court therefore 3 exclude evidence related to the grants Norfolk Southern’s motion. (DE 31 )7 1 at D die sf pe an td ca hn - t as n’ dd i ss im gnis as le -sd y stem However, evidence relevant to what personnel on the subject trains saw or did related counterclaims. not see is not excluded by this ruling. The Court notes that the parties agree that this ruling does not preclude introduction of evidence that the northbound signal changed to a stop signal after Train 175 violated its signal. Norfolk Southern’s motion to DENIED AS MOOT 4 exclude evidence related to Defendants do not intend to offer (DE 171 Defendants’ dismissed evidence or argument related to these at 4) Locomotive Inspection Act dismissed counterclaims at trial. counterclaims. Norfolk Southern’s motion to 5 DENIED AS MOOT exclude use of any FRA (DE 171 Defendants state that they do not intend Accident/Investigation Reports at 4–7) to offer such evidence. concerning the subject collision. GRANTED as to Defendant Tobergte’s Norfolk Southern’s motion to earlier employment dispute regarding a exclude evidence relating to 6 missed “STOP” signal. If Defendant Hall Defendant Tobergte’s prior (DE 171 elects to explore Tobergte’s familiarity dismissal from employment at 7) with the signal in this case, he may based on a “STOP” signal explore the topic, but not in the context of violation. any employment disciplinary actions. 7 Norfolk Southern’s motion to (DE 171 exclude evidence regarding GRANTED at 8) allegations of OSHA violations. Norfolk Southern’s motion to The Court will reserve ruling on this 8 exclude evidence relating to motion pending resolution of the issues (DE 171 Defendant Hall’s abuse of presented in its show cause order [DE at 8–9) process counterclaim. 190]. GRANTED Defendant Tobergte withdrew his 9 Norfolk Southern’s motion to objection at the pretrial conference, and (DE 171 exclude the testimony of Larry all parties agree that this testimony at 9) Mann. should be excluded in light of the Court’s ruling on Norfolk’s first motion in limine regarding positive train control. GRANTED Norfolk Southern’s motion to The evidence appears to be irrelevant. exclude evidence related to 10 However, if Norfolk Southern opens the Defendant Tobergte’s (DE 171 door or such evidence otherwise becomes testimony that no one from at 10) relevant, the Defendants may approach Norfolk Southern visited him the Court and ask for permission to in the hospital. introduce this evidence. Norfolk Southern’s motion to 11 exclude evidence related to DENIED AS MOOT (DE 171 Defendant Tobergte’s reaction Defendants have stated they do not at 10–11) to any newspaper article intend to offer such evidence. regarding the instant lawsuit. The Court will reserve ruling on this Norfolk Southern’s motion to 12 motion pending the issues raised in its exclude evidence related to (DE 171 show cause order related to Defendant Defendant Hall’s reports to his at 11–12) Hall’s abuse of process claim. psychiatrist that he is concerned that Norfolk As related to other claims, the Court does Southern is suing him. not find that this evidence is relevant to the emotional damages being sought by Defendant Hall. His FELA counterclaim centers on issues regarding Norfolk Southern’s negligence and duty to provide a safe workplace, and the damages that flow from that would be damages that were caused by the subject collision, which in the case of emotional damages would be things such as trauma resulting from the collision.
But emotional distress experienced as a result of being sued is not relevant to the damages under his FELA counterclaim, because that emotional distress does not stem from the subject collision or any alleged negligence on Norfolk Southern’s part. Rather, it flows from Norfolk Southern’s act of filing the lawsuit, not its alleged negligence or the actual collision. DENIED as vague and overbroad. Norfolk Southern has not identified any specific accidents, injuries, or even types of accidents that should be excluded from evidence. Excluding broad categories of Norfolk Southern’s motion to 13 evidence is disfavored, so the Court will exclude evidence related to (DE 171 deny this motion and direct the parties to other unrelated injuries or at 12) make contemporaneous objections at accidents. trial. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (“Orders in limine which exclude broad categories of evidence should rarely be employed.”) DENIED The parties agree that medical expenses paid by Norfolk Southern are inadmissible, and Defendants have stated 14 Norfolk Southern’s motion to that they do not intend to introduce such (DE 171 exclude evidence of Defendants’ evidence. Norfolk Southern may make a at 12–13) medical expenses. contemporaneous objection at trial if it believes Defendants overstep their bounds regarding evidence of medical expenses. GRANTED IN PART and DENIED IN PART A party’s ability to satisfy a judgment is irrelevant to the substantive issues in the parties’ negligence claims. To the extent that evidence regarding any party’s financial circumstance might be used to show ability or inability to pay a potential judgment, the motion is granted, and that evidence shall be excluded. However, 15 Norfolk Southern’s motion to the Court reserves ruling on the motion (DE 171 exclude evidence of the parties’ to the extent that it applies to Defendant at 13–14) financial circumstances. Hall’s abuse of process counterclaim.
Evidence of Defendants’ earnings history shall be permitted to prove their loss of earnings and earning capacity. So to the extent that the motion seeks to exclude evidence of earnings history used to establish damages related to Defendants’ FELA counterclaims, the motion is denied. Norfolk Southern’s motion to DENIED AS MOOT exclude arguments that 16 The parties have all stated they will Defendants may recover (DE 171 follow precedent established by the because Norfolk Southern’s at 14–15) United States Supreme Court regarding negligence was a “but for” causation in a FELA action. cause of their injuries. DENIED as premature. Defendants have stated they have no intention of making the kind of comments Norfolk Southern’s motion to or references described in Norfolk 17 prohibit comments or reference Southern’s motion, but as the Court and (DE 171 to persons in the courtroom the parties do not know who will be at 15) who are not active participants present in the courtroom during trial, the or witnesses in the trial. motion is denied as premature and the parties may make contemporaneous objections at trial. Norfolk Southern’s motion to GRANTED, with the exception that such 18 exclude evidence regarding evidence is not excluded to the extent it is (DE 171 Congress’s intent in enacting necessary for the Court to properly at 15) the Federal Employers’ instruct the jury. Liability Act. Norfolk Southern’s motion to 19 exclude evidence of the effect of (DE 171 DENIED as vague and premature. employee injuries on Norfolk at 5) Southern’s supervisors. Norfolk Southern’s motion to exclude arguments that it GRANTED 20 harasses, fires, or disciplines Defendants have stated they have no (DE 171 employees based upon the intention of making such arguments or at 15–16) employee filing a lawsuit or introducing such evidence. sustaining an injury during the course of their employment. DENIED AS MOOT Punitive damages are not permitted 21 Norfolk Southern’s motion to under a FELA claim, and Defendants (DE 171 exclude argument or evidence have stated they do not intend to at 16–18) that it should be punished. introduce such evidence or make such arguments. DENIED FELA does not permit the recovery of damages for loss of consortium or loss of services, and Defendants have stated Norfolk Southern’s motion to they are not pursuing such damages. 22 exclude evidence regarding the However, Defendants may demonstrate (DE 171 impact of Defendants’ injuries emotional and mental injuries that may at 18–19) on their families. arise from their inability to support or engage with family members. The motion is therefore denied, and parties may make contemporaneous objections at trial if necessary. DENIED AS MOOT Defendants have stated they will follow Norfolk Southern’s motion to 23 the rules of evidence regarding expert exclude evidence from (DE 171 testimony and the parties appear to be in unqualified witnesses at 19–21) agreement regarding which witnesses are regarding medical causation. qualified to give evidence regarding medical causation. Norfolk Southern’s motion to DENIED AS MOOT 24 exclude certain opinion The Court expects the parties to adhere (DE 171 evidence regarding credibility to the rules of evidence regarding opinion at 21) of witnesses. evidence and credibility of witnesses. DENIED AS MOOT Norfolk Southern’s motion to Defendants have stated that they do not exclude evidence concerning 25 intend to introduce such evidence. The workers’ compensation benefits (DE 171 Court will properly instruct the jury and or the exclusivity of at 21–22) make a proper inquiry during voir dire Defendants’ remedies pursuant with respect to the scope of this case and to FELA. the remedies that apply. The Court reserves ruling on this motion. Norfolk Southern’s motion to Such evidence may be relevant to 26 exclude evidence of other Defendant Hall’s abuse of process claim, (DE 171 lawsuits, grievances, or claims but generally evidence of other litigation at 22) against Norfolk or its is rarely, if ever, relevant to the facts in a employees. case. GRANTED IN PART To the extent that it relates to Defendant Hall’s abuse of process claim, the Court reserves ruling.
To the extent that the evidence relates to Defendants other counterclaims and Norfolk Southern’s motion to defenses, the motion is granted. Norfolk 27 exclude evidence or argument Southern’s decisions to sue or not sue are (DE 171 criticizing it for defending itself irrelevant to the factual issues to be at 22–23) in this case, for not settling, or resolved by the jury in this case. The for not apologizing. issues relevant to this action relate to who was responsible for the subject collision, how much any responsible party is at fault, and what damages flowed from the collision. Norfolk Southern’s decision to commence or refrain from litigation is irrelevant to those issues. Norfolk Southern’s motion to exclude evidence that it or 28 GRANTED other railroads have “playbook” (DE 171 The Defendants have stated they do not or common practice relating to at 23) intend to offer such evidence. denying compensation to injured employees. GRANTED Norfolk Southern’s motion to The Defendants have stated they do not exclude evidence of insurance, 29 intend to offer such evidence. However, self-insurance, or any other (DE 171 evidence of Defendants fringe benefits source of payment for a at 23) that might be used to establish lost judgment against Norfolk compensation is not excluded by this Southern. order. Norfolk Southern’s motion to 30 exclude certain evidence (DE 171 relating to future medical DENIED AS MOOT at 23–24) expenses unsupported by competent expert testimony. 31 Norfolk Southern’s motion to (DE 171 exclude evidence misstating its DENIED AS MOOT at 24) duty to the Defendants. 32 Norfolk Southern’s motion to (DE 171 exclude “Golden Rule” DENIED AS MOOT at 24–25) arguments by Defendants. Norfolk Southern’s motion to 33 GRANTED, to the extent that Norfolk exclude evidence relating to its (DE 171 Southern asks the Court to require the settlements with David Isaacs at 25–26) parties to follow FRE 408. or Eric Gardner.
KEVIN TOBERGTE’S MOTIONS IN LIMINE [DE 138–142] Motion Ruling Kevin Tobergte’s motion to exclude evidence pertaining to The Court reserves ruling on this motion 1 collateral source benefits, to review the parties’ arguments and the (DE 138) including Railroad Retirement applicable case law. Benefits. DENIED as premature. If Defendants Kevin Tobergte’s motion to believe that Norfolk Southern’s evidence 2 exclude evidence or argument or argument during trial amount to an (DE 139) regarding Norfolk Southern’s assumption of the risk defense, they may “empowerment rule.” raise objections at that time. Kevin Tobergte’s motion to 3 exclude evidence related to his DENIED as premature. (DE 140) alleged failure to mitigate his damages. Kevin Tobergte’s motion to DENIED as premature. Parties shall 4 exclude evidence regarding follow the rules of evidence regarding (DE 141) personal opinions of Norfolk opinion evidence and credibility of Southern employees. witnesses. DENIED Defendant Tobergte seeks to exclude the testimony of two witnesses listed on Kevin Tobergte’s motion to Norfolk Southern’s trial witness list [DE exclude testimony from 5 173] because they were not disclosed witnesses that were not (DE 142) prior to appearing on the witness list. disclosed prior to the deadline
for disclosing witnesses. The first, Eric Thomas, is a substitute for Christopher Shorts, who was the 30(b)(6) witness for Norfolk Southern to testify on the value of salvaged equipment, locomotives, and railcars. Mr. Shorts is no longer with the company and Mr. Thomas has taken his place within the company. A witness designated to testify on behalf of an organization under FRCP 30(b)(6) is testifying about information that is known or reasonably available to the organization, not necessarily their personal knowledge. So long as the person is an appropriate designee under 30(b)(6) and can testify regarding the organization’s knowledge, their personal identity does not seem relevant. A substituted designee, such as Mr. Thomas, is subject to cross examination and impeachment with the previous designee’s deposition, which here would be that of Mr. Shorts. The Court therefore denies Defendant’s motion as to Mr. Thomas.
The second witness, Dustin Mashburn, is expected to testify in the place of Steven Cox regarding assessments of damage to equipment at the site of the collision. Norfolk Southern has stated it would prefer to use Mr. Mashburn because of potential scheduling conflicts that may arise for Mr. Cox. Mr. Mashburn was mentioned in depositions taken by Defendants and thus his testimony is not an undue surprise, so the Court also denies the motion as to Dustin Mashburn. ANDY HALL’S MOTIONS IN LIMINE [DE 152] Motion Ruling 1 Andy Hall’s motion to exclude The Court reserves ruling on this motion (DE 152 evidence pertaining to to review the parties’ arguments and the at I-2) collateral source benefits. applicable case law. Andy Hall’s motion to exclude 2 evidence related to disciplinary DENIED AS MOOT (DE 152. charges or discipline that the Norfolk Southern has stated it does not at 2) railroad issued to him during intend to introduce any such evidence. his employment. Andy Hall’s motion to exclude evidence referencing his 3 pending administrative claim DENIED AS MOOT (DE 152. against Norfolk Southern Norfolk Southern has stated it does not at 2) under the anti-retaliation intend to introduce any such evidence. provision of the Federal Railroad Safety Act. Andy Hall’s motion to prohibit (DE 152 reference to counsel being , GRANTED at 2-3) referred to as “union lawyers or “union designated counsel.”
Dated February 23, 2022.
AS. denen fi, (fat CWeeee é □ wm eo Me KAREN K. CALDWELL aweaey UNITED STATES DISTRICT JUDGE ns EASTERN DISTRICT OF KENTUCKY
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