Opinion

Hopman v. Union Pacific Railroad

Court: District Court, E.D. Arkansas
Filed: Jun 30, 2021
Cited by: 0 cases
Authority: More cited than 17.0%

allowing deposition testimony of physician expert because he was more than 100 miles away from trial and the party offering his testimony did not procure his absence

How later courts described this case

allowing deposition testimony of physician expert because he was more than 100 miles away from trial and the party offering his testimony did not procure his absence
collecting and 7 Mr. Hopman has elected to withdraw page 23, line 10 through page 26, line 4; page 163, line 24 through page 165, line 10, and page 259, line 18 through page 261, line 3 of Mr. Doerr’s deposition testimony (Dkt. No. 120, { 6

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

PERRY HOPMAN PLAINTIFF

v. Case No. 4:18-cv-00074-KGB

UNION PACIFIC RAILROAD DEFENDANT

ORDER

Plaintiff Perry Hopman alleges that defendant Union Pacific Railroad (“Union Pacific”)

discriminated against him due to his disability and failed to accommodate his disability in violation

of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seg., and Section 504 of

the Rehabilitation Act, as amended, 29 U.S.C. § 794, et seg. Before the Court are Union Pacific’s

motion in limine; Mr. Hopman’s motion in limine; Union Pacific’s objections to Mr. Hopman’s

deposition designations; and Mr. Hopman’s objections to Union Pacific’s deposition designations

(Dkt. Nos. 100, 102, 106, 107). Mr. Hopman has responded to Union Pacific’s motion in limine

and has responded to Union Pacific’s objections to his deposition designations (Dkt. Nos. 120,

121). Union Pacific has responded to Mr. Hopman’s motion in limine and has responded to Mr.

Hopman’s objections to its deposition designations (Dkt. Nos. 123, 124).

As to those matters about which the Court grants an in limine motion to either party, all

parties, their counsel, and witnesses are directed to refrain from making any mention through

interrogation, voir dire examination, opening statement, arguments, or otherwise, either directly

or indirectly, concerning the matters about which the Court grants an in limine motion, without

first approaching the bench and obtaining a ruling from the Court outside the presence of all

prospective jurors and the jurors ultimately selected to try this case. Further, all counsel are

required to communicate this Court’s rulings to their clients and witnesses who may be called to

testify in this matter.

I. Union Pacific’s Motion In Limine

A. Unopposed Matters

Mr. Hopman does not contest several matters raised in Union Pacific’s motion in limine.

As to these unopposed matters, the Court grants Union Pacific’s motion in limine on these

unopposed matters. All parties, their counsel, and witnesses are directed to refrain from making

any mention through interrogation, voir dire examination, opening statement, arguments, or

otherwise, either directly or indirectly, concerning these matters without first approaching the

bench and obtaining a ruling from the Court outside the presence of all prospective jurors and the

jurors ultimately selected to try this case. Further, all counsel are required to communicate this

Court’s rulings to their clients and witnesses who may be called to testify in this matter.

1. Defense Counsel

Mr. Hopman does not oppose Union Pacific’s motion to exclude evidence or argument

regarding Union Pacific’s counsel. (Dkt. Nos. 100-1, 121, § 1).

2. Relative Size Or Financial Condition Of Parties

Mr. Hopman does not oppose Union Pacific’s motion to exclude evidence or argument

regarding the relative wealth, financial condition, power, or size of Union Pacific compared to that

of Mr. Hopman (Dkt. Nos. 100-1, 92; 121, 2).

3. Topics In September 9, 2020 Order

Mr. Hopman does not oppose Union Pacific’s motion to exclude evidence or argument

regarding any topic that the Court ordered subject to a motion in limine in its September 9, 2020,

Order (Dkt. Nos. 100-1, 8; 121, § 8; 93).

The Court rules as follows on Union Pacific’s remaining specific requests.

B. Union Pacific’s Net Worth

Union Pacific moves to exclude in limine any references to its financial size, net worth, or

earnings. It claims that testimony or argument on these matters is irrelevant and calculated to

prejudice unfairly Union Pacific (Dkt. No. 100-1, § 3). Mr. Hopman contends that Union Pacific’s

net worth, size, and financial strength are relevant to both punitive damages and the affirmative

defense of undue hardship (Dkt. No. 121, §3 (citing Fed. R. Evid. 401, 403 and 8th Circuit Pattern

Jury Instructions 9.60 and 9.72)).

The Court finds evidence related to Union Pacific’s financial size, net worth, and earnings

is relevant to both the affirmative defense of undue hardship and to punitive damages and that its

probative value outweighs any prejudicial effect. See Fed. R. Evid. 401, 403. The Court denies

Union Pacific’s motion to exclude in limine any references to its financial size, net worth, or

earnings (Dkt. No. 100-1, 4 3).

C. Other Claims, Lawsuits, Or Investigations Against Union Pacific

Union Pacific asks the Court to exclude in limine any references to any other claims,

lawsuits, investigations, alleged federal law violations other than the federal law at issue in this

lawsuit, billings or collections issues or verdicts involving Union Pacific, its employees, or its

counsel on the grounds that such information is irrelevant or would confuse or mislead the jury

and unfairly prejudice Union Pacific (U/d., § 4 (citing Fed. R. Evid. 401, 402, 403, 404(b))). Mr.

Hopman argues that part of the evidence in this case is that Paul Birchfield used successfully a

service dog until Union Pacific summarily prohibited him from working with his service dog and

that such evidence is relevant to rebut Union Pacific’s claims about “dogs and training” as well as

relevant to Union Pacific’s “failure to conduct an individualized assessment.” (Dkt. No. 121, J 4-

5 (citing Fed. R. Evid. 401, 403, 404(b))).! Mr. Hopman also asserts that this evidence is relevant

to contradict Union Pacific’s defense of undue hardship and to support Mr. Hopman’s request for

punitive damages (Jd. (citing 8th Cir. Pattern Jury Instructions 9.60 and 9.72)). Finally, Mr.

Hopman argues that the “court confirmed the relevance of this evidence by citing it in its order

denying summary judgment.” (/d.).

The Court finds that evidence of Mr. Birchfield’s experience working on a locomotive with

his therapy dog for many years to mitigate his anxiety and the circumstances of Union Pacific’s

decision not to allow Mr. Birchfield to continue bringing his therapy dog, Jack, to work are relevant

to Mr. Hopman’s claim and the defenses Union Pacific intends to assert. The Court denies Union

Pacific’s motion in limine to exclude evidence of any claims, lawsuits, and investigations brought

by or involving Mr. Birchfield related to bringing his therapy dog to work at Union Pacific.

Without having a description of any other evidence subject to this motion or the context in

which any other such evidence may be introduced, save and except for the evidence related to Mr.

Birchfield, the Court precludes all other such evidence prior to trial under Rules 401, 402, 403,

and 404 of the Federal Rules of Evidence. The parties are directed to refrain from referring to any

other evidence or testimony, other than the specific evidence and testimony related to Mr.

Birchfield, in opening statements and to approach the bench before introducing or eliciting such

other evidence or testimony for any purpose.

' After Union Pacific filed its motion in limine and Mr. Hopman filed his response, the

Court denied Union Pacific’s motion to amend its answer to plead the affirmative defense of direct

threat and granted Mr. Hopman’s motion to strike (Dkt. No. 133). Because the Court rejected

Union Pacific’s attempt to raise belatedly the affirmative defense of direct threat, the issue of

whether Union Pacific conducted an individualized assessment is no longer an issue in the case,

and any testimony related to whether Union Pacific conducted an individualized assessment is not

relevant. See Fed. R. Evid. 401.

D. Accommodation Of Or Failure To Accommodate Other Employees

Union Pacific asks the Court to exclude in limine any references or argument as to whether

Union Pacific accommodated, or failed to accommodate, any other employees on the grounds that

such information is irrelevant or would confuse or mislead the jury and unfairly prejudice Union

Pacific (Dkt. No. 100-1, 7 5 (citing Fed. R. Evid. 401, 402, 403, 404(b))). Mr. Hopman argues

that part of the evidence in this case is that Mr. Birchfield used successfully a service dog until

Union Pacific summarily prohibited him from working with his service dog and that such evidence

is relevant to rebut Union Pacific’s claims about “dogs and training as well as its U[nion]

P[acific’s] failure to conduct an individualized assessment”* (Dkt. No. 121, {4 4-5 (citing Fed. R.

Evid. 401, 403, 404(b))). Mr. Hopman also asserts that this evidence is relevant to contradict

Union Pacific’s defense of undue hardship and to support his request for punitive damages (/d.

(citing 8th Cir. Pattern Jury Instructions 9.60 and 9.72)). Finally, Mr. Hopman argues that the

“court confirmed the relevance of this evidence by citing it in its order denying summary

judgment.” (/d.).

The Court finds that the evidence regarding Mr. Birchfield’s use of a service dog while an

employee of Union Pacific is relevant, among other reasons, to rebut Union Pacific’s claims about

the training necessary for a service dog to accompany an employee, whether Mr. Hopman’s

requested accommodation to be accompanied by his service dog at work was reasonable, whether

the requested accommodation posed an undue burden on Union Pacific, whether Union Pacific

had an interactive process, whether it followed the process in good faith, and whether punitive

damages are appropriate. Accordingly, the Court will not preclude this line of questioning under

Rules 401, 402, 403, or 404 of the Federal Rules of Evidence.

* See FN 1.

Without having a description of any other evidence subject to this motion or the context in

which any other such evidence may be introduced, save and except for the evidence related to Mr.

Birchfield, the Court precludes all other such evidence prior to trial under Rules 401, 402, 403,

and 404 of the Federal Rules of Evidence. The parties are directed to refrain from referring to any

other evidence or testimony, other than the specific evidence and testimony related to Mr.

Birchfield, in opening statements and to approach the bench before introducing or eliciting such

other evidence or testimony for any purpose.

E. Other Employers Permitting Employees To Bring Service Dogs To

Work

Union Pacific asks the Court to exclude in limine any references or argument as to whether

other employers who are not Union Pacific permit or have permitted their employees to bring

service dogs to work on the grounds that such information is irrelevant or would confuse or mislead

the jury and unfairly prejudice Union Pacific (Dkt. No. 100-1, { 6 (citing Fed. R. Evid. 401, 402,

403, 404(b))).

Mr. Hopman argues that “[t]he fact that service dogs work well in other jobs” rebuts Union

Pacific’s claims regarding the reasonableness of the accommodation requested by Mr. Hopman

(Dkt. No. 121, § 6). Mr. Hopman asserts that this information was available to Union Pacific

during the accommodation process and was ignored; that it is also relevant to “undue hardship and

punitive damages”; and that “experts will testify that service dogs are trained and are successful in

many jobs, including transportation jobs.” (/d.).

The Court finds that evidence regarding other employers permitting employees to use a

service dog may be relevant to rebut Union Pacific’s affirmative defense of undue hardship and to

support Mr. Hopman’s claim of punitive damages. The Court denies Union Pacific’s motion in

limine to exclude such evidence prior to trial under Rules 401, 402, 403, or 404 of the Federal

Rules of Evidence.

F. Establishing Witnesses As Experts

As the Court understands Union Pacific’s motion, Union Pacific asks the Court to exclude

any reference to a witness as an expert witness or to a witness’s area of expertise prior to that

witness being qualified as an expert witness during questioning and testimony on the grounds that

such speculation about a witness’s qualifications, without the proper foundation, would prevent

Union Pacific from receiving a fair trial and would confuse the issues, mislead the jury, and

unfairly prejudice Union Pacific (Dkt. No. 100-1, § 7 (citing Fed. R. Evid. 401, 402, 403, 404(b))).

Mr. Hopman objects that this “contradicts the Court’s trial procedures” and states that Jordyn

Miller and Lesa Doan are fact witnesses in addition to being expert witnesses (Dkt. No. 121, {7

(citing Fed. R. Evid. 401, 403)).

The Court denies Union Pacific’s request. Union Pacific filed no motions pursuant to

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to exclude Mr. Hopman’s

proposed expert witnesses. Further, the Court set forth its trial procedures in a separate

memorandum regarding civil jury trials. Counsel are to qualify their witnesses as expert witnesses

in certain areas through questioning and then may proceed to ask questions of the witness

appropriate for qualified experts; the Court’s preference is not to recognize expert witnesses. The

other side may request to voir dire the witness to challenge the witness’s qualifications, may object

to the line of questioning, may object to the scope of the inquiry, or may proceed in any other

manner appropriate under the Federal Rules of Civil Procedure and the Federal Rules of Evidence.

The Court will rule on contemporaneous objections at trial.

U. Mr. Hopman’s Motion In Limine

A. Unopposed Matters

Mr. Hopman generally moves to exclude evidence that he claims is inadmissible “for any

purpose” because it has “no bearing on the issues in this case or the rights of the parties to this suit

or, even if relevant, the evidence would confuse the jury or be unfairly prejudicial to the plaintiff.”

(Dkt. No. 102, at 1). Mr. Hopman continues to make specific objections to evidence and testimony

(Dkt. No. 102, at 2-8). Union Pacific responds generally and objects to Mr. Hopman raising issues

regarding expert testimony that the Court has “already decided in prior rulings” and “unfavorable

evidence on matters that he has put at issue in the lawsuit, such as Union Pacific’s treatment of

veterans and whether Union Pacific would meet with him to further discuss his accommodation

request.” (Dkt. No. 124, at 1). The Court will address in this Order the specific requests made by

Mr. Hopman in his motion.

Union Pacific does not oppose Mr. Hopman’s motion in limine related to several matters.

Accordingly, as to these unopposed matters, the Court grants Mr. Hopman’s motion in limine on

these topics. All parties, their counsel, and witnesses are directed to refrain from making any

mention through interrogation, voir dire examination, opening statement, arguments, or otherwise,

either directly or indirectly, concerning these matters without first approaching the bench and

obtaining a ruling from the Court outside the presence of all prospective jurors and the jurors

ultimately selected to try this case. Further, all counsel are required to communicate this Court’s

rulings to their clients and witnesses who may be called to testify in this matter.

1. Exclusion Of Witnesses

Mr. Hopman requests that the Court prohibit any reference or suggestion that there are

other witnesses that Union Pacific could have or wished to call to the stand to testify during trial

but that the Court would not allow (Dkt. No. 102, § 4). Union Pacific does not contest this request

(Dkt. No. 124, at 2). The Court grants Mr. Hopman’s request in this regard.

2. Undisclosed Witnesses

Mr. Hopman requests that the Court prohibit any testimony, evidence, or argument from

any witness whom Union Pacific would purport to call, if Union Pacific did not timely identify the

witness as appropriate and as required by the Federal Rules of Evidence and this Court’s Orders

(Dkt. No. 102, 9 5). Union Pacific does not contest this request (Dkt. No. 124, at 2). The Court

grants Mr. Hopman’s request.

3. Witnesses Not Called By Mr. Hopman

Mr. Hopman requests that the Court prohibit any testimony, evidence, or argument that

witnesses were available to both parties but not called by Mr. Hopman to testify (Dkt. No. 102, §

6). Union Pacific agrees to this request (Dkt. No. 124, at 2). The Court grants Mr. Hopman’s

request.

4. Prior Claims Or Legal Proceedings

Mr. Hopman requests that the Court prohibit any testimony, evidence, or argument that

Mr. Hopman or his wife have ever been involved in any other grievance, claim, or lawsuit or have

settled any claim, including the amount of such settlement, because Mr. Hopman contends that

any such lawsuit or claim is unrelated to the subject of the present action, is irrelevant to the issues

of this case, and is prejudicial to Mr. Hopman (Dkt. No. 102, § 9). Mr. Hopman also requests that

the Court prohibit any mention or reference that Mr. Hopman is, or may be, claims-minded or

litigious (/d., 4 9). He specifically seeks to exclude any question or statement asking Mr. Hopman

if he has ever claimed, testified, or given a deposition in any matter other than the present matter

or any language that would indicate to the jury that there has ever been a previous claim, lawsuit

or lawyers hired, or deposition testimony in any previous case or claim (/d.). Union Pacific does

not contest these requests made by Mr. Hopman (Dkt. No. 124, at 2). The Court grants Mr.

Hopman’s requests in this regard.

5. Filing Of Motion In Limine

Mr. Hopman moves the Court to exclude testimony, evidence, and argument that the

motion in limine was filed or about any ruling by the Court in response to his motion in limine,

suggesting or inferring to the jury that Mr. Hopman has moved to prohibit certain matters from

being heard by the jurors or that the Court has excluded certain matters from the hearing of the

jury (Dkt. No. 102, 4 12). Union Pacific agrees (Dkt. No. 124, at 3). The Court grants Mr.

Hopman’s request.

6. Reference To Mr. Hopman’s Attorneys

Mr. Hopman seeks to exclude reference to the fact that Mr. Hopman’s attorneys are from

outside of Arkansas (Dkt. No. 102, 7 14). Union Pacific agrees to this request (Dkt. No. 124, at

3), and the Court grants this request.

7. Requests To Stipulate To Or To Produce Evidence

Mr. Hopman requests that the Court prohibit Union Pacific from seeking to have Mr.

Hopman’s counsel stipulate to evidence, produce evidence or documents from their file, or produce

evidence or documents in Mr. Hopman’s possession while the jury is present or make any attempt

to address questions to Mr. Hopman’s counsel in front of the jury (Dkt. No. 102, § 16). Union

Pacific does not contest this request (Dkt. No. 124, at 3), and the Court grants the request.

8. Referring To Effect Of Damages Award

Mr. Hopman moves to exclude references to the effect that an award of damages to Mr.

Hopman may have on Union Pacific, its employees, or citizens of this locality and state. According

to Mr. Hopman, such an assertion would have no relevance to the decisions the jury 1s called upon

to make and would be prejudicial (Dkt. No. 102, | 18). Union Pacific agrees to Mr. Hopman’s

request (Dkt. No. 124, at 3). The Court grants the request.

The Court rules as follows on Mr. Hopman’s remaining specific requests raised in his

motion in limine.

B. Unpled Affirmative Defenses

Mr. Hopman asks the Court to exclude any testimony or suggestion from Union Pacific

witnesses that the accommodation Mr. Hopman seeks could have potentially been a threat to health

and/or safety (Dkt. No. 102, § 1). Union Pacific responds by pointing to the arguments that it

raised in its motion to amend its answer and response to Mr. Hopman’s motion to strike the unpled

affirmative defense of direct threat (Dkt. No. 124, at 3). After Mr. Hopman filed his motion, the

Court denied Union Pacific’s motion to amend its answer to plead the affirmative defense of direct

threat and granted Mr. Hopman’s motion to strike (Dkt. No. 133).

The Court grants Mr. Hopman’s motion in limine as to the unpled affirmative defense of

direct threat. Evidence, testimony, and argument regarding the unpled affirmative defense of

direct threat is excluded. All parties, their counsel, and witnesses are directed to refrain from

making any mention through interrogation, voir dire examination, opening statement, arguments

or otherwise, either directly or indirectly, concerning these matters without first approaching the

bench and obtaining a ruling from the Court outside the presence of all prospective jurors and the

jurors ultimately selected to try this case. Further, all counsel are required to communicate this

Court’s rulings to their clients and witnesses who may be called to testify in this matter.

To the extent Mr. Hopman objects to testimony, evidence, and argument regarding safety

generally, not specifically the unpled affirmative defense of direct threat, the Court denies Mr.

Hopman’s motion. The Court will rule on contemporaneous objections at trial.

C. Defense Experts On Safety And Direct Threat

Mr. Hopman moves to exclude the testimony of Union Pacific’s expert witness Patrick

Graham in limine because he asserts that Mr. Graham will testify about safety and direct threat,

which Mr. Hopman contends are irrelevant because these issues are not in this case (Dkt. No. 102,

2).° Union Pacific responds that the Court decided this matter in its earlier Order granting in part

and denying in part Mr. Hopman’s motion to exclude Mr. Graham’s testimony (Dkt. No. 124, at

3).

Mr. Hopman previously moved to exclude Mr. Graham from testifying under Federal Rule

of Evidence 702, and the Court ruled on that challenge (Dkt. Nos. 76; 93). Here, Mr. Hopman

moves to exclude Mr. Graham’s testimony about safety and direct threat on the grounds that such

testimony would be irrelevant under Federal Rules of Evidence 401, 402, and 403 (Dkt. No. 102).

As part of an earlier Order, the Court granted Mr. Hopman’s in limine motion against Union

Pacific’s safety expert Mr. Graham’s anticipated testimony about medical issues and service dogs,

including by way of example but not limited to the incidence of allergic reactions to dogs among

employees, Atlas’s training, how a service dog could be expected to react in a railroad

environment, and how Mr. Hopman could be expected to interact with a service dog on the job

because, based on the record before the Court, Mr. Graham’s anticipated testimony on these topics

would be speculative (Dkt. No. 93, at 8).

3 Mr. Hopman also moved in limine to exclude the testimony of Dr. Holland, but the Court

understands that Union Pacific has withdrawn Dr. Holland from its witness list in this case.

After Mr. Hopman filed his motion, the Court denied Union Pacific’s motion to amend its

answer to plead the affirmative defense of direct threat (Dkt. No. 133). Because the Court denied

Union Pacific’s motion to amend its answer to plead the affirmative defense of direct threat,

matters related to direct threat are no longer an issue in the case. Therefore, the Court grants Mr.

Hopman’s motion to exclude Mr. Graham’s testimony on topics related to direct threat. All parties,

their counsel, and witnesses are directed to refrain from making any mention through interrogation,

voir dire examination, opening statement, arguments or otherwise, either directly or indirectly,

concerning these matters without first approaching the bench and obtaining a ruling from the Court

outside the presence of all prospective jurors and the jurors ultimately selected to try this case.

Further, all counsel are required to communicate this Court’s rulings to their clients and witnesses

who may be called to testify in this matter.

To the extent Mr. Hopman objects to testimony, evidence, and argument regarding safety

generally, not specifically the unpled affirmative defense of direct threat, the Court denies Mr.

Hopman’s motion. The Court will rule on contemporaneous objections at trial.

D. Testimony About Service Dogs

Mr. Hopman moves in limine to exclude any reference by Union Pacific’s witnesses to the

safety, efficacy, attributes, or rehabilitative facets of Mr. Hopman’s service dog under Federal

Rules of Evidence 401 and 403 (Dkt. No. 102, { 3). Mr. Hopman argues that Union Pacific has

not identified any witness with the expertise or foundation to offer such opinions (/d.). Union

Pacific responds that the parties previously briefed these issues and that the Court decided this

matter in an earlier Order granting in part and denying in part Mr. Hopman’s motion to exclude

the testimony of Mr. Graham (Dkt. No. 124, at 4).4 The Court granted an in limine motion under

Federal Rule of Evidence 702, ruling that Mr. Graham may not offer expert testimony about

service dogs (Dkt. No. 93, at 8).

After Mr. Hopman filed his motion, the Court denied Union Pacific’s motion to amend its

answer to plead the affirmative defense of direct threat (Dkt. No. 133). Because the Court denied

Union Pacific’s motion to amend its answer to plead the affirmative defense of direct threat,

matters related to direct threat are no longer an issue in the case. Therefore, the Court grants Mr.

Hopman’s motion to exclude Mr. Graham’s testimony on topics related to the unpled affirmative

defense of direct threat.

All parties, their counsel, and witnesses are directed to refrain from making any mention

through interrogation, voir dire examination, opening statement, arguments or otherwise, either

directly or indirectly, concerning these matters without first approaching the bench and obtaining

a ruling from the Court outside the presence of all prospective jurors and the jurors ultimately

selected to try this case. Further, all counsel are required to communicate this Court’s rulings to

their clients and witnesses who may be called to testify in this matter.

To the extent Mr. Hopman objects to other testimony, evidence, and argument offered by

Union Pacific regarding the safety, efficacy, attributes, or rehabilitative facets of Mr. Hopman’s

service dog, the Court denies Mr. Hopman’s motion. The Court will rule on contemporaneous

objections at trial.

4 When briefing this issue, the parties also address the anticipated testimony of Dr.

Holland, but the Court understands that Union Pacific has withdrawn Dr. Holland from its witness

list in this case.

E. Evidence Of Union Pacific’s Good Character

Mr. Hopman moves in limine to exclude “[a]ny generalized references or suggestions that

Union Pacific has employed or attempted to employ individuals with disabilities and/or veterans,

or that the railroad generally treats such people in a fair manner.” (Dkt. No. 102, 4/7). Mr. Hopman

claims that such testimony would be outside the issue presented in this case which, in his view, is

whether Union Pacific honored its legal duty to accommodate Mr. Hopman. Mr. Hopman

contends that this evidence would only be confusing to the jury and highly prejudicial pursuant to

Federal Rules of Evidence 401 and 403.

Union Pacific argues that Mr. Hopman intends to rely on his service medals and Army

service at trial, and Union Pacific contends that “[t]o the extent Hopman is entitled to rely on his

Army service in advancing his case, Union Pacific should be entitled to demonstrate that it hires

and supports veterans.” (Dkt. No. 124, at 4). Union Pacific objects to Mr. Hopman relying on

what it contends is “prejudicial evidence” of his Army service, on grounds that such evidence

“could only be confusing and highly prejudicial pursuant to F.R.E. 401 and 403.’” (d., at 5).

Union Pacific asks that, to the extent Mr. Hopman is permitted to “rely on such evidence, Union

Pacific is equally entitled to demonstrate that it supports veterans.” (/d.).

The Court denies the motion in limine filed by Mr. Hopman and denies the motion raised

by Union Pacific in its response. The Court will rule on contemporaneous objections to such

testimony, evidence, and argument at the time of trial.

F. Evidence Of Mr. Hopman’s Good Character

Mr. Hopman moves to exclude Union Pacific from referencing any supposed misconduct

or misdeeds by Mr. Hopman because its witnesses, sworn discovery responses, and the testimony

of Union Pacific’s Federal Rule of Civil Procedure 30(b)(6) witnesses did not disclose any

misconduct or misdeeds on the part of Mr. Hopman. Mr. Hopman argues that such testimony

would be irrelevant, would tend to confuse the jury, and would in any event be prejudicial (Dkt.

No. 102, {8 (citing Fed. R. Evid. 401 and 403)). Union Pacific objects to the request arguing that

the phrase “misconduct or misdeeds” is “vague and ambiguous.” (Dkt. No. 124, at 5). Union

Pacific agrees, however, to exclude testimony regarding any “work-related misconduct or

misdeeds contained in Union Pacific’s disciplinary records.” (Id.).

Mr. Hopman’s in limine motion is granted, given that Union Pacific does not appear to

contest that its witnesses, sworn discovery responses, and the testimony of Union Pacific’s Rule

30(b)(6) witnesses did not disclose any misconduct or misdeeds on the part of Mr. Hopman. All

parties, their counsel, and witnesses are directed to refrain from making any mention through

interrogation, voir dire examination, opening statement, arguments or otherwise, either directly or

indirectly, concerning these matters without first approaching the bench and obtaining a ruling

from the Court outside the presence of all prospective jurors and the jurors ultimately selected to

try this case. Further, all counsel are required to communicate this Court’s rulings to their clients

and witnesses who may be called to testify in this matter.

G. Settlement Discussions

Mr. Hopman moves to exclude in limine any mention or reference to discussions between

the parties about resolving this case amicably. Mr. Hopman points out that Union Pacific referred

to settlement discussions in its motion for summary judgment and put in the record emails

regarding settlement discussions and a potential meeting in mid-2018 that might have led to a final

settlement that did not come to fruition. Union Pacific argues that Mr. Hopman, “cloaks a planned

meeting between the parties in 2018 as ‘settlement discussions’ to keep out this unfavorable

evidence.” (Dkt. No. 124, at 5). Union Pacific argues that it is entitled to put into evidence the

2018 meeting to counter Mr. Hopman’s attack that Union Pacific did not meet directly with Mr.

Hopman.

The Court found in its Order denying Union Pacific’s motion to amend and granting Mr.

Hopman’s motion to strike that the 2018 meeting “cannot serve as an attempt by Union Pacific to

conduct an individualized assessment of Mr. Hopman’s accommodation request because Union

Pacific did not propose such a meeting until well after it made its decision to deny the

accommodation and months after Mr. Hopman filed this lawsuit in January 2018.” (Dkt. No. 133,

at 12).

The Court grants Mr. Hopman’s motion in limine to exclude testimony regarding

settlement discussions and the meeting in mid-2018. All parties, their counsel, and witnesses are

directed to refrain from making any mention through interrogation, voir dire examination, opening

statement, arguments or otherwise, either directly or indirectly, concerning these matters without

first approaching the bench and obtaining a ruling from the Court outside the presence of all

prospective jurors and the jurors ultimately selected to try this case. Further, all counsel are

required to communicate this Court’s rulings to their clients and witnesses who may be called to

testify in this matter.

H. Damages And Attorneys, Including Their Fees

Mr. Hopman moves to exclude testimony or references to the time or circumstances under

which Mr. Hopman employed his attorneys, including the fee arrangement between Mr. Hopman

and his lawyers (Dkt. No. 102, § 13 (citing Fed. R. Evid. 401, 403)). Union Pacific agrees that

excluding “the fee arrangement issue is appropriate,” but Union Pacific argues that evidence about

the circumstances under which Mr. Hopman hired his attorneys is relevant to his “intentions during

the accommodation process.” (Dkt. No. 124, at 5). Union Pacific argues that Mr. Hopman’s

accommodation request “constantly mutated” and that it should be “permitted to demonstrate when

Hopman retained an attorney to allow the jury to determine if Hopman was genuine during the

interactive process or instead, aiming solely to engage in litigation with Union Pacific.” (Dkt. No.

124, at 6).

The Court finds, based on the information before it at this time, that testimony, evidence,

and argument regarding the circumstances under which Mr. Hopman employed his attorneys is

likely to be confusing to the jury and that the probative value of such testimony, if any, is

substantially outweighed by the potential for unfair prejudice, confusing the issues, and misleading

the jury, among other considerations. See Fed. R. Evid. 402, 403. Mr. Hopman’s motion in limine

is granted on this topic. All parties, their counsel, and witnesses are directed to refrain from making

any mention through interrogation, voir dire examination, opening statement, arguments, or

otherwise, either directly or indirectly, concerning these matters without first approaching the

bench and obtaining a ruling from the Court outside the presence of all prospective jurors and the

jurors ultimately selected to try this case. Further, all counsel are required to communicate this

Court’s rulings to their clients and witnesses who may be called to testify in this matter.

I. Undisclosed Evidence And Requests Of Counsel

Mr. Hopman asks the Court to exclude “any mention or introduction of evidence to justify

its decision about Hopman’s requested accommodation that were not in the possession of the

defendant at the time the decision was made.” (Dkt. No. 102, § 15). He asserts that Union Pacific

has not pled the affirmative defense of after-acquired evidence, and this evidence was not relied

upon when Union Pacific decided to deny Mr. Hopman’s requested accommodation (/d. (citing

Fed. R. Evid. 401, 403)). Union Pacific argues that Mr. Hopman “seeks to exclude this evidence

because he changed his story regarding the reasons he needed a service animal after Union Pacific

denied him the accommodation.” (Dkt. No. 124, at 6 (citing Dkt Nos. 54, 55)).

The Court finds that evidence that Union Pacific acquired after it denied Mr. Hopman his

requested accommodation is not relevant to justify its decision to deny the requested

accommodation and that the danger of jury confusion and unfair prejudice from such evidence

outweighs its probative value, if any. See Fed. R. Evid. 401, 403. The Court grants Mr. Hopman’s

motion in limine to exclude such after-acquired evidence. All parties, their counsel, and witnesses

are directed to refrain from making any mention through interrogation, voir dire examination,

opening statement, arguments or otherwise, either directly or indirectly, concerning these matters

without first approaching the bench and obtaining a ruling from the Court outside the presence of

all prospective jurors and the jurors ultimately selected to try this case. Further, all counsel are

required to communicate this Court’s rulings to their clients and witnesses who may be called to

testify in this matter.

Mr. Hopman also moves to exclude in limine stipulations, discovery responses, and Rule

30(b)(6) testimony that has not been properly supplemented. See Fed. R. Civ. P. 30. Union Pacific

argues that Mr. Hopman’s request is “too vague and subjective.” (Dkt. No. 124, at 6). Union

Pacific claims that Mr. Hopman has “improperly claimed numerous times in this lawsuit that

Union Pacific has ‘contradicted’ its prior assertions when the evidence clearly demonstrated to the

contrary.” (/d., (citing Dkt. No. 66, at 3-4)). Union Pacific anticipates that Mr. Hopman “will

claim arguments unfavorable to his position are ‘contradictory,’ when, in fact, they are not,” and

it asserts that any contradiction should be handled by cross-examination (/d., at 6-7).

The Court grants Mr. Hopman’s motion in limine with respect to stipulations, written

discovery responses, and Rule 30(b)(6) deposition testimony provided by designated witnesses on

properly noticed Rule 30(b)(6) topics. Union Pacific is prohibited in limine from presenting

testimony, evidence, or argument that contradicts Union Pacific’s stipulations, written discovery

responses, and Rule 30(b)(6) deposition testimony provided by designated witnesses on properly

noticed Rule 30(b)(6) topics to the extent the stipulations, discovery responses, and deposition

testimony have not been properly supplemented as required. In this Court’s view, specifically in

regard to Rule 30(b)(6) deposition testimony provided by designated witnesses on properly noticed

Rule 30(b)(6) topics, “some extraordinary explanation must be required before a corporation is

allowed to retreat from binding admissions in the testimony of its Rule 30(b)(6) designee.” Estate

of Thompson v. Kawasaki Heavy Indus., Ltd., 291 F.R.D. 297, 304 (N.D. Iowa 2013) (internal

citation omitted). All parties, their counsel, and witnesses are directed to refrain from making any

mention through interrogation, voir dire examination, opening statement, arguments or otherwise,

either directly or indirectly, concerning these matters without first approaching the bench and

obtaining a ruling from the Court outside the presence of all prospective jurors and the jurors

ultimately selected to try this case. Further, all counsel are required to communicate this Court’s

rulings to their clients and witnesses who may be called to testify in this matter.

J. Misleading The Jury Regarding The Effect Of A Verdict and Equitable

Relief

Mr. Hopman states that, in the event of a verdict for breach of the duty of accommodation,

the Court will “determine the equitable relief’ which Union Pacific owes to Mr. Hopman (Dkt.

No. 102, § 19). In his motion in Jimine, Mr. Hopman moves to prohibit Union Pacific from arguing

or suggesting that a jury verdict means that Union Pacific “cannot argue or have input regarding

the accommodation protocol that this Court will determine” because “[t]his Court alone will

determine the precise equitable relief to which Hopman is entitled in the event of a plaintiff's

verdict” (Dkt. No. 102, J 19 (citing See Slaby v. Holder, 2013 WL 12314682 (E.D. Va. 2013)).

Union Pacific argues the motion in limine is “vague and ambiguous.” (Dkt. No. 124, at 7).

Further, Union Pacific asserts that it is “entitled to argue that granting Hopman’s accommodation

would result in a safety risk that could not be otherwise ameliorated and that Union Pacific may

be required to permit this accommodation despite its best (and expert) judgment.” (/d.).

The Court finds that Union Pacific is entitled to present evidence and argument at trial

related to affirmative defenses, if properly pled and raised, but not as to the unpled affirmative

defense of direct threat because Union Pacific did not assert timely the direct threat affirmative

defense. The Court grants Mr. Hopman’s motion in limine to the extent it is directed at testimony,

evidence, and argument related to the unpled affirmative defense of direct threat. All parties, their

counsel, and witnesses are directed to refrain from making any mention through interrogation, voir

dire examination, opening statement, arguments or otherwise, either directly or indirectly,

concerning these matters without first approaching the bench and obtaining a ruling from the Court

outside the presence of all prospective jurors and the jurors ultimately selected to try this case.

Further, all counsel are required to communicate this Court’s rulings to their clients and witnesses

who may be called to testify in this matter

K. Mr. Hopman’s Earnings

Mr. Hopman asks the Court to exclude all references to Mr. Hopman’s earnings at Union

Pacific (Dkt. No. 102, § 20 (citing Fed. R. Evid. 401, 403)). He argues that his case is not one

seeking lost wages. He asserts that his wages have nothing to do with the case and that he would

be prejudiced by the Court permitting Union Pacific to discuss his earnings (/d.).

Union Pacific argues that the records demonstrate that Mr. Hopman has “not only been

able to perform the essential functions of his job without an accommodation, but he has performed

well.” (Dkt. No. 124, at 7). Union Pacific also argues the evidence of Mr. Hopman’s wages helps

Union Pacific counter Mr. Hopman’s claims that he has been mistreated by Union Pacific (/d.).

Finally, Union Pacific asserts that Mr. Hopman has put the costs related to his service dog at issue

and that it has the “right to counter this assertion by demonstrating that Hopman had the means to

afford the service animal by virtue of his employment with Union Pacific.” (/d.).

The Court has not been presented with or viewed any compensation records the parties

may offer into evidence in this matter. Based on the information before the Court at this time, the

Court grants Mr. Hopman’s motion in limine with respect to his earnings. Whatever slight

probative value testimony, evidence, and argument about Mr. Hopman’s earnings may have under

Federal Rule of Evidence 401 is substantially outweighed by the danger of unfair prejudice,

confusing the issues, or misleading the jury under Federal Rule of Evidence 403. All parties, their

counsel, and witnesses are directed to refrain from making any mention through interrogation, voir

dire examination, opening statement, arguments or otherwise, either directly or indirectly,

concerning these matters without first approaching the bench and obtaining a ruling from the Court

outside the presence of all prospective jurors and the jurors ultimately selected to try this case.

Further, all counsel are required to communicate this Court’s rulings to their clients and witnesses

who may be called to testify in this matter.

Il. Union Pacific’s Objections To Mr. Hopman’s Deposition Designations

A. General Objection

Union Pacific moves to exclude the entirety of Mr. Hopman’s reliance on the depositions

of Bruce Bombeck, Rodney Doerr, and Jay Everett because the designations were provided after

the Court’s deadline.* After Union Pacific filed its objections to Mr. Hopman’s deposition

> Counsel for Union Pacific references an Exhibit in support of her assertion that Mr.

Hopman’s designations were provided after the Court’s deadline, but there are no attachments to

Union Pacific’s objections in the Court’s record (Dkt. No. 106).

designations, the Court removed the case from the Court’s trial calendar for the week of September

28, 2020 (Dkt. No. 135). The Court, by separate Order, set a new deadline for the parties to

designate the pertinent portions of a deposition to be used as evidence at trial (Dkt. No. 141, □ 7).

Mr. Hopman’s deposition designations were provided well before the June 21, 2021, deadline set

forth in the Court’s third amended final scheduling Order. Accordingly, the Court denies as moot

Union Pacific’s motion to exclude the entirety of Mr. Hopman’s reliance on the designated

deposition testimony of Mr. Bombeck, Mr. Doerr, and Mr. Everett on this ground.

B. Paul Birchfield Objections®

Union Pacific objects to much of Mr. Birchfield’s testimony arguing that Mr. Birchfield’s

experience working with his therapy dog, Jack, is not relevant, that such information has no

tendency to make the existence of any material fact more or less probable than it would be without

the evidence, and that it would prevent Union Pacific from receiving a fair trial (Dkt. No. 106, at

1-10 (citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401, 402, 403)). The Court finds Mr.

Birchfield’s experience working on a locomotive with his therapy dog for many years to mitigate

his anxiety and the circumstances of Union Pacific’s decision not to allow Mr. Birchfield to

continue bringing Jack to work is relevant to Mr. Hopman’s claim and Union Pacific’s defenses,

including but not limited to whether Mr. Hopman’s requested accommodation to be accompanied

by his service dog at work was reasonable, whether the requested accommodation posed an undue

burden on Union Pacific, whether Union Pacific had an interactive process, whether it followed

the process in good faith, and whether punitive damages are appropriate.

6 Mr. Hopman has elected to withdraw page 42, line 9 through page 43, line 19 and page

56, lines 7 through 25 of Mr. Birchfield’s deposition testimony (Dkt. No. 120, § 6).

The Court overrules Union Pacific’s objections on relevance grounds to Mr. Birchfield’s

deposition testimony at page 35, line 11 to page 36, line 4; page 43, line 20 to page 44, line 3; page

50, line 3 to page 51, line 6; page 51, line 17 to page 52, line 35; page 57, line 2 to page 57, line 4;

page 57, line 11 to page 57, line 22; page 59, line 11 to page 60, line 2; page 61, line three to page

61, line 20; page 63, line 15 to page 63, line 23; page 64, line two to page 64, line five (Dkt. No.

106, at 3-10). See Fed. R. Evid. 401, 402, 403. Further, having reviewed the record before it, the

Court rejects Union Pacific’s assertion under Federal Rule of Evidence 403 and determines that

the relevance of the challenged testimony is not substantially outweighed by Rule 403

considerations. With respect to Union Pacific’s claim that Mr. Birchfield’s dog is an emotional

support animal, not a trained service animal, that issue if it exists goes to the weight of such

testimony, not its admissibility.

Union Pacific objects to Mr. Birchfield’s testimony on grounds that Mr. Birchfield has no

personal knowledge about what other individuals thought or felt regarding whether Jack ever

distracted anybody (Birchfield Dep., at 23:17-18; 23:24-24:2) and regarding whether Jack was

ever distracted and did anything inappropriate because of noise going on around him (Dkt. No.

106, at 1-2 (citing Fed. R. Evid. 602; Fed R. Civ. P. 32(b), (d)(3); Fed R. Evid. 401, 402, and 403)).

The Court overrules the objections. Mr. Birchfield’s testimony is based on his personal experience

and observations working on a locomotive around others with his therapy dog and is relevant to

Mr. Hopman’s claim and Union Pacific’s defenses, including but not limited to whether Mr.

Hopman’s requested accommodation to be accompanied by his service dog at work was

reasonable, whether the requested accommodation posed an undue burden on Union Pacific,

whether Union Pacific had an interactive process, whether it followed the process in good faith,

and whether punitive damages are appropriate. The Court rejects Union Pacific’s assertion under

Federal Rule of Evidence 403 and determines that the relevance of this testimony is not

substantially outweighed by Rule 403 considerations.

Union Pacific objects to questioning during Mr. Birchfield’s deposition (Birchfield Dep..,

at 30:14-30:21) regarding whether his supervisors and coworkers were supportive of him working

with his therapy dog (Dkt. No. 106, at 2). Union Pacific argues that Mr. Birchfield had no personal

knowledge about what other individuals thought or felt (Dkt. No. 106, at 2 (citing Fed. R. Evid.

602; Fed. R. Civ. P. 32(b), (d)(3)). The Court sustains the objection.

Union Pacific argues that Mr. Birchfield has no expertise or personal knowledge to testify

whether his therapy dog compromised the safety of the railroad or, in his opinion, increased the

safety of the railroad (Birchfield Dep., at 37:6-37:16; 45:14-45:20) (Dkt. No. 106, at 3-5). The

Court overrules the objection. Mr. Birchfield’s testimony is based on his personal experience and

observation working at Union Pacific on a locomotive around others with his therapy dog, and his

testimony may assist the trier of fact in determining whether Mr. Hopman’s requested

accommodation was reasonable and whether the requested accommodation posed an undue burden

on Union Pacific. See Fed. R. Evid. 701.

Mr. Birchfield testified from his personal knowledge watching Jack that he did not observe

any hardship created on anybody from having Jack at work (Birchfield Dep., at 60:11-60:15).

Union Pacific argues Mr. Birchfield has no personal knowledge regarding whether Jack caused a

hardship on someone else and would only know if someone told him (Dkt. No. 106, at 8 (citing

Fed. R. Evid. 602; Fed. R. Civ. P. 32(b), (d)(3))). Union Pacific also argues that this testimony

improperly reaches a legal conclusion (Dkt. No. 106, at 9-10 (citing Fed. R. Evid. 403)). The

Court overrules the objection. Mr. Birchfield’s testimony is based on his personal experience and

observation working at Union Pacific on a locomotive around others with his therapy dog, and his

testimony about whether his therapy dog caused hardship to others is relevant to Mr. Hopman’s

claim and Union Pacific’s defenses.

C. Bruce Bombeck Objections

Union Pacific objects to much of Mr. Bombeck’s testimony arguing that Mr. Bombeck’s

experience working with Union Pacific’s K-9 team is irrelevant, that such information has no

tendency to make the existence of any material fact more or less probable than it would be without

the evidence, and that admitting this testimony would prevent Union Pacific from receiving a fair

trial (Dkt. No. 106, at 10-14) (citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401, 402, 403)).

The Court finds Mr. Bombeck’s experience working on Union Pacific’s K-9 team is relevant to

Mr. Hopman’s claim and Union Pacific’s defenses, including but not limited to whether Mr.

Hopman’s requested accommodation was reasonable, whether the requested accommodation

posed an undue burden on Union Pacific, and whether punitive damages are appropriate. The

Court overrules Union Pacific’s objections to the relevance of Mr. Bombeck’s deposition

testimony at page 14, line 18 to page 15, line six; page 28, line three to page 29, line one; page 30,

line 2 to page 31, line two; page 61, line 25 to page 62, line eight; page 63, line four to page 64,

line 13; page 68, line 23 to page 69, line 21; and page 70, line 18 to page 71, line four.

Union Pacific’s objection to Mr. Bombeck’s testimony about farm dogs is sustained

(Bombeck Dep., at 13:20-14:17) (Dkt. No. 106, at 10).

Union Pacific objects to Mr. Bombeck’s testimony about a Union Pacific video (Bombeck

Dep., at 52:23-53:2) (Dkt. No. 106, at 12). The objection is sustained because Mr. Bombeck later

in his deposition states that he does not have personal knowledge to answer the question (Dkt. No.

106, at 12). See Fed. R. Civ. P. 602.

Union Pacific objects to Mr. Bombeck’s testimony that Union Pacific’s K-9 program is a

“good program.” (Dkt. No. 106, at 14). Union Pacific does not make a specific objection with

respect to this testimony but states generally that “any such testimony would only confuse the

issues, mislead the jury, and unfairly prejudice Union Pacific.” (/d. (citing Fed. R. Evid. 403). The

Court overrules the objection. The Court finds that the probative value of Mr. Bombeck’s

testimony is not substantially outweighed by the danger that the testimony would confuse the

issues, mislead the jury, and unfairly prejudice Union Pacific. See Fed. R. Evid. 403.

D. Objections To Rodney Doerr’s Testimony’

Mr. Hopman’s counsel has informed Union Pacific and the Court of his intention to offer

Mr. Doerr’s videotaped testimony during Mr. Hopman’s case-in-chief even though Mr. Doerr will

be present at trial (Dkt. No. 148, at 6). Mr. Hopman’s counsel states that Union Pacific has advised

that it will object to the presentation of his video testimony because it is making Mr. Doerr

available in person. The Court overrules Union Pacific’s objection.

Union Pacific offered Mr. Doerr for deposition under Federal Rule of Civil Procedure

30(b)(6) to testify on behalf of the corporation. Federal Rule of Civil Procedure 32(a)(3) addresses

the use of a Rule 30(b)(6) deposition, and states: “An adverse party may use for any purpose the

deposition of a party or anyone who, when deposed, was the party’s officer, director, managing

agent, or designee under Rule 30(b)(6) or 31(a)(4).” Fed. R. Civ. P. 32(a)(3) (emphasis added).

Pursuant to Federal Rule of Civil Procedure 32(a)(3), the Court will permit Mr. Hopman to present

Mr. Doerr’s video deposition testimony for any purpose at trial. See Estate of Thompson v.

Kawasaki Heavy Industries, Ltd., 291 F.R.D. 297, 301-306 (N.D. Ia. 2013) (collecting and

7 Mr. Hopman has elected to withdraw page 23, line 10 through page 26, line 4; page 163,

line 24 through page 165, line 10, and page 259, line 18 through page 261, line 3 of Mr. Doerr’s

deposition testimony (Dkt. No. 120, { 6).

analyzing cases and concluding that the plaintiff was permitted to use the videotaped deposition

of a Rule 30(b)(6) witness during its case in chief in spite of the witness being available to testify

live at trial); see also e.g. Northern Ins. Co. of N_Y. v. Albin Mfg., Inc., C.A. No. 06—190—S, 2008

WL 3285852, *3 n. 4 (D. R.I. 2008) (Rule 32(a)(3) is “to be liberally construed, and though the

court ‘has discretion to exclude parts of the deposition that are unnecessarily repetitious in relation

to the testimony of the party on the stand, [ ] it may not refuse to allow the deposition to be used

merely because the party is available to testify in person”) (citation omitted); SanDisk Corp. v.

Kingston Tech. Co., Inc., 863 F.Supp.2d 815, 817-18 (W.D. Wis. 2012) (overruling both sides’

objections to the submission of deposition testimony in a bench trial from any individual who was

not unavailable to testify in person within the meaning of Rule 32 or who testified live at the trial

because the court concluded “these individuals were officers and designees under Fed. R. Civ. P.

30(b)(6), which means that under Rule 32(a)(3) an adverse party may use their deposition

testimony for any purpose, regardless of their availability” (citing Fey v. Walston & Co., Inc., 493

F.2d 1036, 1046 (7th Cir. 1974))). Further, as explained, in this Court’s view, “some extraordinary

explanation must be required before a corporation is allowed to retreat from binding admissions

in the testimony of its Rule 30(b)(6) designee.” Kawasaki Heavy Indus., 291 F.R.D. at 304.

Union Pacific objects to Mr. Doerr’s testimony that Union Pacific calls its data on Union

Pacific’s experience with dogs “incident data.” (Dkt. No. 106, at 15-16). Union Pacific argues that

the testimony is irrelevant and that it would confuse the issues, mislead the jury, and unfairly

prejudice Union Pacific (Dkt. No. 106, at 15-16 (citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid.

401, 402, 403)). The Court finds the testimony is relevant and not unduly prejudicial; the Court

overrules Union Pacific’s objections to Mr. Doerr’s testimony at page 26, line five through line

seven.

Union Pacific also objects to Mr. Doerr’s testimony regarding Union Pacific’s K-9 team,

arguing that Union Pacific’s K-9 team is irrelevant, that the testimony has no tendency to make

the existence of any material fact more or less probable than it would be without the evidence, and

that the testimony would prevent Union Pacific from receiving a fair trial (Dkt. No. 106, at 16-17

(citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401, 402, 403)). The Court finds that Union

Pacific’s K-9 team is relevant and not unduly prejudicial. The Court overrules Union Pacific’s

objections to Mr. Doerr’s testimony at page 49, line eight through page 50, line one.

Union Pacific objects to Mr. Hopman introducing counsel’s questioning of Mr. Doerr at

page 74, line 10 through page 74, line 14 as irrelevant because, according to Union Pacific, Mr.

Doerr never answered the question (Dkt. No. 106, at 17 (citing Fed. R. Evid. 401, 402, 403)). The

‘Court reviewed the testimony, and Mr. Doerr never answered the question. The objection to this

testimony is sustained.

Union Pacific objects to Mr. Doerr’s testimony about legal issues (Doerr Dep., at 104:8-

105:17; 113:25-114:24; 115:2-9; 115:12-116:3; 116:22-117:3). Union Pacific argues the

testimony is irrelevant and would confuse the issues, mislead the jury, and unfairly prejudice

Union Pacific (Dkt. No. 106, at 17-18). The Court overrules the objection because Mr. Doerr is

Union Pacific’s designated Rule 30(b)(6) witness who may testify about Union Pacific’s

understanding of its obligations and policies.

Union Pacific argues that Mr. Doerr’s testimony regarding Mr. Birchfield’s experience

bringing his therapy dog to work is irrelevant (Dkt. No. 106, at 20-21). The Court finds Mr.

Birchfield’s experience working on a locomotive with his therapy dog to mitigate his anxiety for

several years and the circumstances of Union Pacific’s decision not to allow Mr. Birchfield to

continue bringing Jack to work is relevant to Mr. Hopman’s claim and Union Pacific’s defenses,

including but not limited to whether Mr. Hopman’s requested accommodation to be accompanied

by his service dog at work was reasonable, whether the requested accommodation posed an undue

burden on Union Pacific, whether Union Pacific had an interactive process, whether it followed

the process in good faith, and whether punitive damages are appropriate. The Court overrules

Union Pacific’s objections to Mr. Doerr’s testimony on this topic (Doerr Dep., at 135:4-135:13

and 143:7-143:10).

Union Pacific objects to Mr. Doerr’s testimony regarding Mr. Hopman’s mitigation of

damages as irrelevant (Dkt. No. 106, at 22 (citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401,

402, 403)). The parties have since stipulated that, “[t]here is no evidence of plaintiff's failure to

mitigate his damages.” (Dkt. No. 118). Accordingly, the Court denies as moot Union Pacific’s

objection to this testimony (Doerr Dep., at 178:20-179:6), with the understanding that this

designated testimony will not be offered into evidence. If the Court’s understanding of the parties’

position on this is incorrect, either party may seek clarification of this ruling from the Court.

Union Pacific moves to exclude Mr. Doerr’s testimony regarding its sixth affirmative

defense alleging the proposed accommodation conflicts with provisions of 49 U.S.C. § 2101 et

seq. (Doerr Dep., at 248:23-249:16) arguing the testimony is irrelevant (Dkt. No. 106, at 22-23

(citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401, 402, 403)). The Court overrules the

objection because Mr. Doerr is Union Pacific’s designated Rule 30(b)(6) witness who may testify

about Union Pacific’s understanding of its obligations and policies.

E. Jay Everett Objections®

Union Pacific objects to Mr. Hopman’s designation of testimony regarding deposition

procedures arguing that it is not relevant and has no tendency to make the existence of any material

fact more or less probable and may confuse or mislead the jury or unfairly prejudice Union Pacific

(Dkt. No. 106, at 23-24 (citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401, 402, 403)). The

Court finds that the designated testimony is not relevant (Everett Dep., at 16:20-17:12). The

objection is sustained. Similarly, Union Pacific obj ects to the relevance of Mr. Everett’s testimony

asking if he could ask his lawyer about whether he viewed a document in preparation for his

deposition. The Court finds that the designated testimony is not relevant and sustains Union

Pacific’s objection (Everett Dep., at 42:3-42:15).

Union Pacific argues that Mr. Everett’s testimony regarding Mr. Birchfield bringing his

therapy dog to work is irrelevant. The Court finds Mr. Birchfield’s experience working on a

locomotive with his therapy dog to mitigate his anxiety for several years and the circumstances of

Union Pacific’s decision not to allow Mr. Birchfield to continue bringing Jack to work is relevant

to Mr. Hopman’s claim and Union Pacific’s defenses, including but not limited to whether Mr.

Hopman’s requested accommodation to be accompanied by his service dog at work was

reasonable, whether the requested accommodation posed an undue burden on Union Pacific,

whether Union Pacific had an interactive process, whether it followed the process in good faith,

and whether punitive damages are appropriate. The Court overrules Union Pacific’s objections to

the testimony on this topic (Everett Dep., at 63:17-63:23, 70:5-70:7, 70:10-70:13).

8 Counsel for Union Pacific notified the Court by electronic mail that it was withdrawing

its objections to the following Everett deposition designations made by Mr. Hopman: page 39,

line one through page 39, line six; page 62, line 21 through page 63, line one; page 108, lines seven

through 15; page 109, lines four through 11. See Court’s Exhibit No. 1.

Union Pacific objects to Mr. Everett’s testimony about an email exchange between Mr.

Hopman and Mr. Storlie and his impression of that email as being kind and empathetic or helpful

and an email from Astuto to Lopez, Anderson, and Fritz that removed “Chad and Perry” from the

email as irrelevant (Dkt. No. 106, at 26-27) (citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401,

402, 403)). Given the status of the record before the Court, the Court understands that Mr. Hopman

did not respond to this objection (Dkt. No. 120, 42). As a result, the Court sustains the objection.

Union Pacific objects on relevance grounds to Mr. Everett’s testimony regarding the

number of emails he receives, whether he reads the emails he receives, whether he would read an

email from Mr. Doerr (Everett Dep., at 90:22-90:24, 91:6-21), and whether he had ever heard

anything from coworkers negative about Mr. Hopman (Everett Dep., at 108:7-9) (Dkt. No. 106 at

27 (citing Fed. R. Civ. P. 32(b), (d)(3); Fed. R. Evid. 401, 402, 403)). The Court finds the

testimony is relevant to Mr. Hopman’s claim and Union Pacific’s defenses, including but not

limited to the information Mr. Everett considered before deciding whether to grant Mr. Hopman’s

requested accommodation, whether the requested accommodation posed an undue burden on

Union Pacific, whether Union Pacific had an interactive process, whether it followed the process

in good faith, and whether punitive damages are appropriate.

F, Debra Gengler Objections’

Union Pacific objects to Mr. Hopman’s designation of an exchange between counsel at Ms.

Gengler’s deposition regarding a stipulation that Mr. Hopman has an impairment, which is post-

traumatic stress disorder (Gengler Dep., at 16:18-17:2) (Dkt. No. 106, at 28). Mr. Hopman agrees

° Counsel for Union Pacific notified the Court that it is withdrawing its objection to Ms.

Gengler’s testimony regarding Mr. Hopman’s post-traumatic stress disorder because of a

stipulation of the parties (Gengler Dep., at 16:18-17:2) (Dkt. No. 120 at 5).

and withdraws the designation (Dkt. No. 120, at 5). Accordingly, the Court denies as moot Union

Pacific’s objection to the designation, with the understanding that this designated testimony will

not be offered into evidence by Mr. Hopman.

Union Pacific also objects to Ms. Gengler’s testimony that she was designated to testify

about Union Pacific’s assessment of Mr. Hopman and Atlas individually as to how the dog was

certified, what his qualities were, and any potential concerns (Dkt. No. 106, at 29). Union Pacific

argues the testimony is Mr. Hopman’s counsel’s testimony rather than Ms. Gengler’s and moves

to exclude it because it would potentially mislead the jury and unfairly prejudice Union Pacific

(Dkt. No. 106, at 29 (citing Fed. R. Evid. 403). The Court finds the testimony is probative to

understanding Ms. Gengler’s Federal Rule of Civil Procedure 30(b)(6) designation, and its

probative value outweighs any potential prejudice. See Fed. R. Evid. 403.

IV. Mr. Hopman’s Objections To Union Pacific’s Deposition Designations

A. General Objection

In his objections to Union Pacific’s deposition proffers, Mr. Hopman generally objects to

Union Pacific presenting testimony by deposition of “three of its own employees,” Dr. John

Holland, Greg Thompson, and Pauline Weatherford (Dkt. Nos. 94, at 7; 107, at 1).!° Mr. Hopman

argues that Union Pacific has not established that these witnesses are “unavailable” to testify at

trial under Federal Rule of Civil Procedure 32(a)(4) Ud, at 1). In response to questions from the

Court at a recent status conference, Union Pacific stated that it did not know which witnesses it

intends to call to testify “live” at the trial. Accordingly, the Court will address Mr. Hopman’s

general objection (Dkt. No. 107 at 1).

'0 Mr. Hopman also moved to exclude the testimony by deposition of Dr. Holland, but the

Court understands that Union Pacific has withdrawn Dr. Holland from its witness list in this case.

Federal Rule of Civil Procedure 32(a)(4) provides:

(4) Unavailable Witness. A party may use for any purpose the deposition of a

witness, whether or not a party, if the court finds:

(A) that the witness is dead;

(B) that the witness is more than 100 miles from the place of hearing

or trial or is outside the United States, unless it appears that the

witness's absence was procured by the party offering the deposition;

infirmity, or imprisonment;

(D) that the party offering the deposition could not procure the

witness's attendance by subpoena; or

(E) on motion and notice, that exceptional circumstances make it

desirable--in the interest of justice and with due regard to the

importance of live testimony in open court--to permit the deposition

to be used.

Fed. R. Civ. P. 32. Rule 32(a)(4)(B) gives the Court discretion to admit deposition testimony of a

witness when the witness is more than 100 miles away from the place of the trial or when the

witness cannot attend trial because of age, illness, infirmity, or impairment. Fletcher v. Tomlinson,

895 F.3d 1010, 1020 (8th Cir. 2018) (allowing deposition testimony of physician expert because

he was more than 100 miles away from trial and the party offering his testimony did not procure

his absence).

Union Pacific argues that Mr. Thompson lives and works in Wichita, Kansas, which is

more than 400 miles from Little Rock, Arkansas (Dkt. No. 123, at 2-3). Accordingly, the Court

overrules Mr. Hopman’s objection to Union Pacific presenting Mr. Thompson’s testimony by

deposition should it choose to do so. See Fed. R. Civ. P. 32. Rule 32(a)(4)(B).

It is unclear to the Court based on the record before it on what grounds under Rule 32(a)(4)

Union Pacific is seeking to offer Ms. Weatherford’s testimony by deposition, rather than live at

trial. The Court grants Mr. Hopman’s motion to exclude the deposition testimony of Ms.

Weatherford without prejudice to Union Pacific filing a motion to establish Ms. Weatherford’s

unavailability at trial under Federal Rule of Civil Procedure 32(a)(4).'!

B. Specific Objections To Mr. Thompson’s Deposition Testimony

Remaining before the Court are Mr. Hopman’s specific objections to Mr. Thompson’s

deposition testimony (Thompson Dep., at 47:3-25, 48:1-21, 50:15-24; 53:6-21; 54:14-19; 55:8-19)

on grounds that the testimony contains inadmissible hearsay (Dkt. No. 107, at 2 (citing Fed. R.

Evid. 802)). Union Pacific responds that Mr. Thompson’s personal accounts of what he saw and

heard are not hearsay, and the Court should deny the remainder of Mr. Hopman’s objections

because they are “so vague that they do not constitute a recognizable objection nor do they even

provide Union Pacific an opportunity to meaningfully respond.” (Dkt. No. 123 at 3). The Court

has reviewed the portions of Mr. Thompson’s testimony to which Mr. Hopman specifically objects

and rules that the following testimony is excluded as hearsay: page 47 at line 12 after the word

“was” through line 20; page 48 at lines nine through 14 through the word “no”; page 50 at lines

15 through 18; and page 55 at lines eight through 19.

V. Conclusion

Consistent with the terms of this Order, the Court grants in part and denies in part the

pending motions and sustains in part and overrules in part the pending objections to designated

deposition testimony.

11 The Court will not rule on Mr. Hopman’s objections related to Ms. Weatherford’s

testimony in this Order. At the time Union Pacific responded to Mr. Hopman’s objections to its

deposition proffers, Union Pacific did not respond to the objections because it intended to call Ms.

Weatherford live and, consequently, the objections are not ripe for decision (Dkt. No. 123, at 1).

If Union Pacific moves to present Ms. Weatherford’s testimony by deposition and establishes to

the Court’s satisfaction that she is an unavailable witness, then Mr. Hopman may, if he chooses,

renew his objections to Union Pacific’s deposition designations for Ms. Weatherford (Dkt. No.

107, at 2-3).

So ordered this 30th day of June, 2021.

Kristine G. Baker

United States District Judge

From: Wadsworth, Brian

To: "John. W. Griffin"; Debra Willams: Kathy Butler; Schoonmaker, Linda; Tracy Washington

Ce: Carty, Robert J.; tngarlan@up.com: Lena A. Waterkotte; becca@lawmak.com; Judy Nelson (judv@lawmak.com)

Subject: RE: Hopman v. Union Pacific :

Date: Wednesday, September 23, 2020 10:10:41 AM

Good morning,

Please note that after a conference between the Parties, Union Pacific withdraws the

following objections to the Everett deposition designations made by plaintiff:

Page 39, lines 1-6-objection removed

Page 62, line 21-page 63, line 1-objection removed

Page 108, lines 7-15-objection removed

Page 109, lines 4-11-objection removed

vir,

Brian

Brian A. Wadsworth | Associate | Seyfarth Shaw LLP

700 Milam St. | Suite #1400 | Houston, Texas 77002-2812

Direct: +1-713-238-1806 | Mobile: 1-832-585-4253 | Fax: +1-715-821-0647

bawadsworth@seyfarth.com | www.seyfarth.com

| a

The information contained in this transmission is attorney privileged and/or confidential information intended for the use of the individual

or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any use, dissemination,

distribution or copying of this communication is strictly prohibited.

From: John W. Griffin <jwg@lawmegk.com>

Sent: Wednesday, September 23, 2020 9:56 AM

To: Debra Williams <Debra_Williams@ared.uscourts.gov>; Kathy Butler <kathy@butlerharris.com>;

Schoonmaker, Linda <LSchoonmaker@seyfarth.com>; Tracy Washington

<Tracy_Washington @ared.uscourts.gov>

Cc: Wadsworth, Brian <bawadsworth@seyfarth.com>; Carty, Robert J. <RCarty@seyfarth.com>;

tngarlan@up.com; Lena A. Waterkotte <LAWATERKOTTE@up.com>; becca@lawmgk.com; Judy

Nelson (judy@lawmegk.com) <judy@lawmgk.com>

Subject: Re: Hopman v. Union Pacific

[EXT. Sender]

Good morning to all. In order to facilitate Judge Baker's review of UP's objections to

2 Courts

¢ EXHIBIT —

a {

deposition testimony, we attach actual transcripts of the testimony that we propose to offer.

These are for the four higher priority witnesses. The parts that have X over them are those

portions we have withdrawn as a result of UP's objections. We previously emailed the entire

deposition transcripts of the witnesses, so these only include the direct examination that we

intend to present. Mr. Bombeck's offer is highlighted on the full transcript. Hopefully this will

assist in comparing the actual questions and answers with UP's objections and Hopman's

response. We also have video files of these witnesses and can share those as well if that's

helpful. Thanks. John and Kathy

Ms. Williams, the parties have conferred on the four witnesses whose deposition testimony is

a high priority. Union Pacific is standing on all of its objections to all four witnesses, but is

reviewing certain objections to Mr. Everett's testimony, and will advise in the morning if any

objections are withdrawn. The parties remain divided on the relevance of UP's experience

with Mr. Birchfield and Jack, and its experience with its K-9 dog program. Many of the

Birchfield and Bombeck objections are on the grounds that those subjects are off limits. We

also are divided on whether or not the questions about how UP understood its accommodation

duties under its policies and the ADA are relevant. We hope that resolving the objections

won't take long since each of these four offers is less than an hour and two are less than half an

hour.

That leaves us with Mr. Doerr's testimony. We have prepared to present his testimony by

video since UP would not commit to bring him to trial. Belatedly, UP has advised us that it

will bring him live at the beginning of the trial. Ms. Schoonmaker takes the position that since

she recently shared that he would be present for the entire trial, presumably as UP's company

representative, we ought not to present his video testimony. Mr. Doerr was UP's designee on

the vast majority of Rule 30b6 topics, and stated UP's position on those topics. None of those

positions have been supplemented.

However, when Hopman moved in limine to prohibit any ambush by new positions or

contradictions that were not supplemented, UP objected and would not agree not to contradict

UP's testimony on the topics or otherwise ambushing Hopman with different or new

positions. Since Doerr’s testimony was as a 30(b)(6) witness who states the corporation’s

position, we believe this is a very serious matter. Accordingly, rather than call him live and

risk being ambushed with unsupplemented information on the topics, we decided to let the

jury hear his testimony in a way that he, on behalf of the corporation, cannot attempt to end

run the rules of supplementation. Assuming that the Court will instruct UP not to attempt to

unleash unsupplemented positions and information, then UP could still call him in its case in

chief, but the risk of ambush would be smaller since the jury will have already heard his

testimony. This is an unusual situation, but there is case law that holds that under the Rules, a

corporate designee can be called by video testimony even if the witness is present in the

courtroom. In a scholarly opinion, Judge Bennett applied Rule 30(b)(6) and Rule 32(a)(3)

and held that the rules, by their plain terms, permit a party to call the witness by video even if

they are in the courtroom. See Estate of Thompson v. Kawasaki Heavy Industries, Ltd, 291

F.R.D. 297,301-306, 85 Fed.R.Serv.3d 219, 90 Fed. R. Evid. Serv. 1257 (N.D. Ia. 2013). The

Court also enforced the rule against corporate designees attempting to retreat from admissions

without having supplemented the responses, citing some of the cases we cited in our motion in

limine on this subject.

All that said, we want to be sensitive to the Court's view regarding the most efficient manner

of presenting this witness's testimony during our case in chief. We are well satisfied with his

testimony from his deposition, and think that a conversation with Judge Baker and UP's

counsel would help us identify the best option for presenting Mr. Doerr's testimony, if UP

intends to lodge an objection to us presenting his video testimony. If the Court feels that we

should call him live, we will do so, but what we don't want to see happen is Mr. Doerr

attempting to change or alter the company's testimony or positions that have not been

supplemented. While we don't contend that they are judicial admissions, they still must be

supplemented before trial, in our respectful but firm view. We had briefed this issue in our

motion in limine, but UP ignored the cases cited and only responded by arguing that it could

not understand what contradict means and that its perception of contradict is different from our

own. In any event, this issue is one that the Court can surely assist the parties in resolving.

Thanks. John and Kathy

Hi all. One other piece of information for Judge Baker and everyone's convenience. The

length of our video testimony of each of the four priority witnesses is as follows:

Mr. Bombeck---20 minutes

Mr. Everett---40 minutes

Mr. Birchfield---50 minutes

Ms. Genglar---27 minutes

John and Kathy

Thanks for the email, Ms. Williams. In terms of priority, we think that the following four

witnesses's testimony are high priority in terms of resolving UP's objections: Mr. Bombeck,

Mr. Everett, Ms. Genglar and Mr. Birchfield. We appreciate Ms. Schoonmaker's willingness

to confer with us about these and other issues at 430, and we will attempt to work out

disagreements at that time and will report back with our progress after we confer. Thanks

again. John and Kathy

On 9/22/2020 1:16 PM, Debra Williams wrote:

Counsel:

Thank you for your emails. If counsel are able to confer this afternoon, the

Court would appreciate an update from the parties regarding deposition

designations. It would be helpful to the Court to know from the parties

which deposition designations are a priority for each side’s case so that that

the Court may rule on those designations and objections first. Based upon

your emails, the Court understands that it should begin its review with the

deposition designations for Doerr, Everett, Bombeck and Gengler. Please

advise.

Debra L. Williams

Law Clerk to the Honorable Kristine G. Baker

U.S. District Court, Eastern District of Arkansas

500 West Capitol Avenue, Room D444

Little Rock, Arkansas 72201

debra_williams@ared uscourts.

(501) 604-5423

From: Kathy Butler <kathy@butlerharris.com>

Sent: Tuesday, September 22, 2020 12:57 PM

To: Schoonmaker, Linda (LSchoonmaker@seyfarth.com)

<LSchoonmaker@seyfarth.com>; Debra Williams

<Debra_ Williams@ared.uscourts.gov>; Tracy Washington

<Tracy.. Washington @arec.uscourts gov>

Ce: Wadsworth, Brian <bawadsworth@seyfarth.com=; Carty, Robert J.

<RCarty@seyfarth.com>; tngarlan@up.com; Lena A. Waterkotte

<LAWATERKOTTE@up.com>: John Griffin (jwg@lawmek.com) <iwg@lawmgk.com>;

becca@lawmegk.com; Judy Nelson (judv@lawmgk.com) <judy@lawmek com>

Subject: RE: Hopman v. Union Pacific

Linda — | will contact you at 4:30. Kathy

From: Schoonmaker, Linda (LSchoonmaker@seyfarth.com)

[mailto:LSchoonmaker@seyfarth.com]

Sent: Tuesday, September 22, 2020 12:04 PM

To: Kathy Butler; Debra Williams (Debra_Williams@ared,uscourts.gov)

(Debra_Williams@ared.uscourts.gov); Tracy Washington

(Tracy. Washington@ared.uscourts.gov)

Cc: Wadsworth, Brian; Carty, Robert J.; tngarlan@up.com; Lena A. Waterkotte; John

Griffin Gwa@lawmgk.com); becca@lawmgk.com; Judy Nelson (Gudy@lawmak.com)

Subject: RE: Hopman v. Union Pacific

Ms. Butler:

| apologize for the delay in scheduling a time to discuss deposition objections

with you. If you think there is any opportunity for agreement to some of our

objections to your deposition excerpts | am happy to schedule a call this

afternoon at 4:30 pm.

We are planning on coming to Little Rock on Sunday for the trial. It would be

difficult for me with my home situation to come earlier than that.

Linda C. Schoonmaker | Martner | Seyfarth Shaw LLP

700 Milam St. | Suite #1400 | Houston, Texas 77002-2812

Direct: +1-713-860-0083 | Fax: +1-713-821-0656

Board Certified by the Texas Board of Legal Specialization-Labor & Employment Law

My assistant Beverly Maxwell can be reached at (713) 238-1807

Ischoonmaker@seyfarth.com | www.seyfarth.com

The information contained in this transmission is attorney privileged and/or confidential information intended for the use

of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby

notified that any use, dissemination, distribution or copying of this communication is strictly prohibited.

From: Kathy Butler <kathy@butlerharris.com>

Sent: Tuesday, September 22, 2020 11:55 AM

To: Schoonmaker, Linda <LSchoonmaker@seyfarth.com>; Debra Williams

(Debra _Williams@ared uscourts.gov) (Debra Williams@ared.uscourts. gov)

<Debra_Williams@ared.uscourts.gov>; Tracy Washington

(Tracy. Washington@ared.uscourts.gov) <Tracy_ Washington @ared.uscourts.gov>

Cc: Wadsworth, Brian <bawadsworth@seyfarth.com>; Carty, Robert J.

<RCarty@seyfarth.com>; tngarlan@up.com; Lena A. Waterkotte

<LAWATERKOTTE@up.com>; John Griffin jwg@lawmek.com) <jwg@lawmek.com>;

becca@lawmek.com; Judy Nelson (judv@lawmgk.com) <judy@lawmgk.com>

Subject: RE: Hopman v. Union Pacific

[EXT. Sender]

Good morning, all. We write to share logistics for our travel and lodging and

contact information. We are able to arrive in Little Rock on Thursday or Friday,

so if the Court would prefer us to be present on Friday, we can easily arrange

this. Our team will be staying at the AC Hotel down the street from the

courthouse. We have provided our cell numbers in the event that the Court,

Debra and Tracy needs to find us.

Second, we are working with our video IT team to prepare the cuts for our

examinations of four UP witnesses: Doerr, Everett, Bombeck and Gengler. UP

has lodged many objections, but to this point, has not been willing to confer on

them with us. We are prepared to discuss them with the Court if that is helpful,

but we have logistical issues in getting the video files edited for presentation on

Monday and Tuesday. Our respectful goal is to have this resolved in some

manner before we depart for Little Rock. The Court's assistance in this regard

would be greatly appreciated. We believe Judge Baker has our proposed

testimony, UP's objections, our responses as well as the deposition transcript of

each witnesses, and we can also discuss this on a phone call with the Court if

that's helpful. Thanks. Kathy and John

Contact Information:

Kathy Butler — 713-443-6456

John Griffin — 361-655-7745

Becca Shows — 361-676-0217

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John W. Griffin, Jr.

Marek, Griffin & Knaupp

The McFaddin Building

203 N. Liberty Street

Victoria, Texas 77901

(361) 573-5500

(361) 573-5040 (facsimile)

www. lawmgk.com [lawmgk.com]

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American Diabetes Association

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