United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on the following pretrial motions:
(1) Defendant's Omnibus Motion in Limine [Doc.
55], (2) BNSF Railway Company's Motion in Limine on
Plaintiff's Ballast Related Claims and Claims of
Negligent Track Inspection [Doc. 66], and (3)
Defendant's Motion to Strike Previously Undisclosed
Fact Witnesses [Doc. 107].
Defendant's Omnibus Motion in Limine
motion addresses a potpourri of potential evidentiary issues.
However, Plaintiff has responded to only one of these:
Defendant's contention that the Court should preclude
Plaintiff from presenting evidence of subsequent remedial
measures (outside the limited purposes set forth in
Fed.R.Evid. 407), including evidence that the surface
condition of the Broncho Siding, where Plaintiff's injury
occurred, has been changed, modified, or improved since the
date of his injury. As Plaintiff has declined to respond to
the other issues raised in the motion, in accordance with the
Local Rules the Court presumes that those portions of the
motion are unopposed.
407 states that it “does not require the exclusion of
evidence of subsequent measures when offered for another
purpose, such as ... impeachment.” Fed.R.Evid. 407. The
impeachment exception to Rule 407 is necessary to prevent
litigants from taking “unfair advantage” of the
Rule by adopting a position at trial that is inconsistent
with their previous decision to take remedial measures after
the accident. Minter v. Prime Equipment Co., 451
F.3d 1196, 1212-13 (10th Cir. 1996) (citing Wood v.
Morbark Indus., Inc., 70 F.3d 1201, 1208 (11th Cir.
1995) (evidence of subsequent modifications can be introduced
to rebut testimony that “left the jury with the
impression that [the defendant] had made no modifications to
the [product]”)). See also In re Air Crash
Disaster, 86 F.3d 498, 531 (6th Cir.1996) (evidence of
subsequent design changes to correct deficiencies is
admissible to rebut a witness's claim that the product
was “state of the art”); Polythane Sys., Inc.
v. Marina Ventures Int'l., Ltd., 993 F.2d 1201,
1210-11 (5th Cir. 1993) (evidence of subsequent modifications
is admissible to impeach testimony that the product was
“one of the strongest in the world”).
the impeachment exception, however, threatens to swallow the
rule and therefore must be applied narrowly. Minter,
451 F.3d at 1212. Applied loosely, “any evidence of
subsequent remedial measures might be thought to contradict
and so in a sense impeach [a party's] testimony.”
Id. at 1213 (quoting Complaint of Consolidated
Coal Co., 123 F.3d 126, 136 (3d Cir. 1997)) (emphasis
and internal quotation marks omitted). In Probus v.
K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir. 1986), the
It is undoubtedly true that evidence of subsequent remedial
measures can be said to contradict, and hence, in a sense,
‘impeach' a defendant's contention that he was
exercising due care or that materials used in the manufacture
of a product were appropriate for their intended application.
Yet allowing that and no more to satisfy the impeachment
exception would elevate it to the rule.
result, the impeachment exception has been limited to
evidence of subsequent remedial measures that is
“necessary to prevent the jury from being
misled.” Wood, 70 F.3d at 1208. See also
Minter, 451 F.3d at 1213; Complaint of Consolidated
Coal Co., 123 F.3d at 136 (“[T]he evidence offered
for impeachment must contradict the witness's testimony
directly.”); Harrison v. Sears, Roebuck &
Co., 981 F.2d 25, 31 (1st Cir. 1992) (noting that the
impeachment exception requires “a great[ ] nexus
between the statement sought to be impeached and the remedial
Court cannot evaluate whether or not the impeachment
exception to Rule 407 applies until presented with the
evidence at trial. Therefore, the Court takes the matter
BNSF's Motion in Limine On Plaintiff's
Ballast-Related Claims and Claims of Negligent Track
Federal Employers' Liability Act (“FELA”), 45
U.S.C. § 51 et seq., renders railroads liable for
employees' injuries or deaths “resulting in whole
or in part from [carrier] negligence.” § 51. The
FELA should be construed liberally to effectuate
congressional intent. Atchison, Topeka & Santa Fe Ry.
Co. v. Buell, 480 U.S. 557, 562 (1987). While a
plaintiff must prove “the common law elements of
negligence [to prevail in a FELA case], including
foreseeability, duty, breach, and causation, ” Fulk
v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th
Cir.1994), a “relaxed standard of causation applies
under FELA.” CSX Transp., Inc. v. McBride, 564
U.S. 685, 691-92, 131 S.Ct. 2630, 2636 (2011).
under FELA is limited in these key respects: Railroads are
liable only to their employees, and only for injuries
sustained in the course of employment. FELA's language on
causation, however, ‘is as broad as could be
framed.'” CSX Transp., Inc. v. McBride,
564 U.S. 685, 691 (2011) (quoting Urie v. Thompson,
337 U.S. 163, 181 (1949)). Juries in such cases are properly
instructed that a defendant railroad “caused or
contributed to” a railroad worker's injury
“if [the railroad's] negligence played a part-no
matter how small-in bringing about the injury.”
Id. at 705. The FELA “vests the jury with
broad discretion to engage in common sense inferences
regarding issues of causation and fault.” Harbin v.
Burlington N.R.R. Co., 921 F.2d 129, 132 (7th Cir.
asks the Court to preclude Plaintiff from making reference to
any industry standard that has not been promulgated by the
Federal Railroad Safety Act. In particular, Defendant seeks
to exclude standards from the American Society of Testing and
Materials (ASTM) that have been discussed by Plaintiff's
liability expert, Russel Kendzior. Defendant's reasoning
is that these standards have been “preempted” by
federal law. Defendant then cites FRSA promulgated
regulations aimed at reducing train derailments to argue that
Congress has occupied the field of railroad safety.
See Doc. 66 at 3-4. However, Defendant does not cite
any regulations that bear on the issue at hand, which is not
train derailments, but rather the safety of railroad
employees climbing in and out of trains.
response, Griswold spends many pages explaining why his
Federal Employer's Liability Act (“FELA”)
claim for negligence is not preempted by the Federal Railroad
Safety Act (“FRSA”). While that is true, that is
not the argument that Defendant is making in his motion. The
question is rather what evidence can be offered to
demonstrate that BNSF did not meet the standard of care.
Griswold cites decisions from various federal Circuit Courts
of Appeals and District Courts that have held that while a
violation of regulations under the Occupational Safety and
Health Act of 1970 (“OSHA”) cannot be the basis
for a claim of negligence per se, it can be evidence the jury
may consider when determining whether the railroad violated
the standard of care.
Court agrees with Griswold that evidence of the ASTM
standards is admissible for the limited purpose of suggesting
safety standards in certain industries in the United States.
Thus, they are admissible for the limited purpose of
illustrating BNSF's standard of care. Kendzior's
testimony regarding these standards can be admitted into
evidence with a limiting instruction making it clear that the
ASTM standards are not binding on BNSF in this lawsuit, but
may be considered ...