The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
WESLEY BAILEY PLAINTIFF
v. CASE NO. 5:20-CV-5147
ARKANSAS AND MISSOURI
RAILROAD COMPANY DEFENDANT
OPINION AND ORDER
Now before the Court are the parties respective Motions in Limine.1 Both Plaintiff
Wesley Bailey and Defendant Arkansas and Missouri Railroad Company request certain
evidence be excluded during the trial. The Court addresses each of the parties’ respective
motions below.
1 The Court considered the following: Plaintiff Wesley Bailey’s Motion in Limine (Doc. 37)
and Defendant Arkansas and Missouri Railroad Company’s Response (Doc. 43);
Defendant’s Motion in Limine (Doc. 38), Plaintiff’s Response (Doc. 44), and Defendant’s
Reply (Doc. 46); and Defendant’s Motion in Limine Regarding Subsequent Remedial
Measures (Doc. 39) and Brief in Support (Doc. 40), Plaintiff’s Response (Doc. 45), and
Defendant’s Reply (Doc. 47).
Plaintiff’s Motion in Limine (Doc. 37)
37.1 Motion To Exclude Certain Evidence of GRANTED
Contributory Negligence
Plaintiff seeks to exclude evidence of contributory negligence or assumption of risk that
fails to meet the appropriate standard. Under FELA, “[t]he issue of contributory
negligence is submissible to the jury only if a defendant offers some evidence
independent of the plaintiff's testimony from which a jury could reasonably find a lack
of due care by the plaintiff.” Van Boening v. Chi. & N. W. Transp. Co., 882 F.2d 1380,
1382 (8th Cir. 1989).
Defendant agrees that any evidence it offers regarding these issues must comply with
the FELA-specific standard.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
37.2 Motion to Exclude Evidence Regarding GRANTED IN
Certain Safety Rules PART and DENIED
IN PART
Plaintiff seeks to exclude evidence of safety rules that lack an objective standard
against which Plaintiff’s compliance can be assessed. Plaintiff argues Defendant may
only introduce evidence showing Plaintiff’s failure to abide by a safety rule if that rule is
“specific and objective.”
Accordingly, Plaintiff seeks an order prohibiting Defendant from offering evidence of an
alleged rule violation without first informing counsel and the Court outside the presence
of the jury. Defendant argues the Court should make such a determination in the context
of jury instructions—and after Defendant concludes its case-in-chief.
RULING: The parties informed the Court that Defendant agrees not to introduce the
evidence set forth in Plaintiff’s Motion in Limine No. 2 beyond that which is listed in
Defendant’s Exhibit List without first requesting a side bar. Accordingly, the Court
GRANTS IN PART Plaintiff’s liminal motion. The Court adopts the parties’ agreed-to
resolution and DENIES IN PART Plaintiff’s liminal motion to the extent it differs.
37.3 Motion to Exclude Evidence of GRANTED IN PART
Collateral Source Benefits and DENIED IN
PART
Plaintiff seeks to exclude evidence of collateral source benefits, including those under
(a) private group insurance policies, and (b) under insurance policies generally; as well
as those from (c) voluntary contribution by employer, (d) sick-leave and vacation; (e)
state or federal government, (f) Medicare, Medicaid, or Social Security, (g) the Railroad
Retirement Board, and (h) loans provided by Plaintiff’s attorneys.
Defendant maintains that evidence of collateral source benefits is admissible “where
plaintiff’s case itself has made the existence of collateral sources of probative value,”
Moses v. Union Pac. R.R., 64 F.3d 413, 416 (8th Cir. 1995), and argues Plaintiff has
done just that.
RULING: The parties informed the Court that Defendant agrees not to introduce or
reference the evidence set forth in Plaintiff’s Motion in Limine No. 3 without first
requesting a side bar. Accordingly, the Court GRANTS IN PART the liminal motion.
The Court adopts the parties’ agreed-to resolution and DENIES IN PART Plaintiff’s
liminal motion to the extent it differs.
37.4 Motion to Exclude Evidence of Prior DEFERRED
Injuries
Plaintiff seeks to exclude evidence of any injuries he sustained prior to the events at
issue in this litigation as irrelevant under Rule 403.
Defendant maintains that evidence of preexisting physical, emotional, or financial
conditions is relevant to determining the extent to which damages are attributable to
Defendant, and any such evidence should be admissible.
RULING: The Court has now reviewed the medical records contained within
Defendant’s proposed trial exhibits. Mr. Bailey broke his right ankle in a motorcycle
accident on October 20, 2018. Ten days later (after the swelling went down), Dr.
Pleimann with Ozark Orthopaedics performed an open reduction surgery with internal
hardware to repair the right ankle. According to the records, Mr. Bailey healed nicely
and was released to return to work on January 21, 2019. Afterwards, it appears that
Mr. Bailey stopped attending physical therapy—which was formally terminated by the
provider in April 2019 after several no-show no-calls.
At issue in this case is the injury to Mr. Bailey’s left foot and ankle that occurred on July
1, 2019. Evidence about his prior right ankle injury is potentially relevant, but only to
the extent there is a non-speculative basis to believe that the scope or timing of Mr.
Bailey’s present impairment was caused (in whole or in part) by the prior injury to the
right extremity. The Defendant has not pointed to, and the Court has not found, any
medical records discussing the significance of Mr. Bailey’s prior right ankle injury vis-à-
vis the overall damages allegedly flowing from the July 1, 2019 injury to his left foot and
ankle. Consequently, in the absence of such contextual evidence, the Court
provisionally EXCLUDES under Rule 403 any evidence or argument about the prior
right ankle injury, because it would tend to confuse the jury about the damages at issue
in this case. However, if Defendant believes it can show a contextual foundation, or if
Plaintiff opens the door, the Defendant may revisit this ruling at side bar.
The Court also EXCLUDES under Rules 401 and 403 any references during opening
statement to Defendant’s “financial distress theory” or the arguably related comments
made by Plaintiff’s then-wife. Should Defendant believe there is non-speculative
context at trial that renders evidence of this theory relevant and appropriately probative,
Defendant may request a side bar to revisit this issue.
Defendant’s newly proposed Exhibit P (provided to the Court on April 15th), while
relevant and otherwise admissible, is nevertheless EXCLUDED as cumulative under
Rule 403, because this same medical record (Dr. Rankin 4-16-20 clinic visit) is already
part of Defendant’s Exhibit N (at page FCFD000005).
37.5 Motion to Exclude Plaintiff’s Pleadings GRANTED
Plaintiff seeks to exclude the pleadings entered in this case. Defendant does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
37.6 Motion to Exclude Counsel Deposition GRANTED
Comments
Plaintiff seeks to exclude comments, interjections or objections made by counsel during
the course of a deposition read to the jury. Defendant does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
37.7 Motion to Exclude Evidence of Other GRANTED
Claims
Plaintiff seeks to exclude evidence of his involvement in other claims, suits or
settlements outside the present controversy. Defendant does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
37.8 Motion to Exclude Evidence GRANTED
Regarding Rules for Working Off of
the Locomotive
Plaintiff seeks to exclude evidence that, in working off of the locomotive, Plaintiff
violated a rule or policy. Defendant does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
37.9 Motion to Exclude Statements GRANTED
Regarding Impact on Insurance Rates
or the Economy
Plaintiff seeks an order preventing Defendant from stating or alluding to how the present
(or similar) litigation may impact insurance rates or the economy. Defendant does not
object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
37.10 Motion to Exclude Evidence of Plaintiff’s GRANTED
Tax Return Status
Plaintiff seeks to exclude evidence regarding whether he filed income tax returns.
Plaintiff states that he did not file a 2019 tax return, but he did file a 2020 tax return.
Defendant opposes this request, arguing such evidence is relevant to Plaintiff’s alleged
damages, and potentially to the credibility of witnesses.
RULING: The Court provisionally EXCLUDES under Rules 401 and 403 the fact that
Plaintiff has “not filed tax returns” in a given year. However, Defendant may revisit this
issue at side bar if Plaintiff somehow opens the door. Also, it is fair game for Defendant
to cross-examine Plaintiff’s wage loss expert on the fact that he was “not provided”
and/or did not rely on a 2019 tax return.
37.11 Motion to Exclude Prejudicial GRANTED
Statements
Plaintiff seeks an order prohibiting Defendant from arguing Plaintiff is “trying to get rich,”
“hit the lottery,” or making any similar comment. Defendant does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
Defendant’s Motion in Limine (Doc. 38)
38.1 Motion to Exclude Evidence that FELA GRANTED
constitutes Plaintiff’s Sole Remedy
Defendant seeks to exclude evidence showing either that FELA constitutes the only
source of recovery available to Plaintiff or that Plaintiff is ineligible for worker’s
compensation benefits. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.2 Motion to Exclude Evidence GRANTED
Regarding FELA Legislative History
Defendant seeks an order prohibiting Plaintiff from referring to the history of FELA or
Congress’s intent in enacting it on the ground that such information is irrelevant. Plaintiff
does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.3 Motion to Prohibit Plaintiff From GRANTED
Misstating the Burden of Proof
Defendant seeks an order prohibiting Plaintiff from misstating the burden of proof during
voir dire or opening statements. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.4 Motion to Prohibit Plaintiff From DEFERRED
Asking the Jury to Consider Improper
Factors
Defendant seeks an order preventing Plaintiff from suggesting to the jury that (a) jurors
should render a verdict to punish Defendant, or (b) the jury serves as the conscious of
the community.
Plaintiff agrees that, because punitive damages are not available in FELA actions, it
would be inappropriate to suggest the verdict should punish Defendant. However,
Plaintiff maintains he should not be barred from framing the jury’s task as one that
should reflect community values or standards.
RULING: Given Plaintiff’s representations, the Court has no reason to believe that
Plaintiff will commit any golden rule violations. If either party believes the other is
making an improper argument, they should object at trial. The Court DEFERS ruling on
this liminal motion.
38.5 Motion to Exclude Evidence GRANTED
Regarding Defendant’s Finances
Defendant seeks to exclude as irrelevant and unduly prejudicial any evidence regarding
the financial worth of Defendant. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.6 Motion to Exclude Evidence GRANTED
Regarding Defendant’s Insurance
Coverage
Defendant seeks to (a) exclude evidence of liability insurance, self-insured retention, or
its ability to pay a judgment as improper under Rule 411; (b) during jury selection, bar
Plaintiff from asking the jury panel about employment, investment, or general
connection to insurance providers; and (c) exclude any evidence regarding health
insurance provided by Defendant to Plaintiff. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.7 Motion to Exclude Prior Bad Act GRANTED
Evidence
Defendant seeks to exclude evidence under Rule 404(b) related to prior incidents or
litigation involving Defendant or other railroad companies. To the extent Plaintiff intends
to introduce such evidence, Defendant seeks an order requiring Plaintiff to first lay a
proper foundation. Under Rule 404(b), for a “prior bad act” to be relevant, Plaintiff must
establish that it is “substantially similar” to the events at issue. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.8 Motion to Exclude References to GRANTED
Defendant or the Railroad Industry as
“Dangerous”
Defendant seeks an order prohibiting Plaintiff from characterizing Defendant or the
railroad industry as “generally unsafe” or “dangerous” on the ground that such a
statement would be factually incorrect, irrelevant, and prejudicial. Defendant also seeks
an order prohibiting Plaintiff from referencing general complaints or comments about
workplace safety unrelated to the event at issue. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.9 Motion to Exclude Evidence DEFERRED
Regarding the Quality of Defendant’s
Post-Accident Investigation
Defendant seeks to exclude evidence regarding the quality of its post-accident
investigation on the ground that such commentary would be irrelevant, prejudicial, and
confusing to the jury.
Plaintiff anticipates Defendant will argue Plaintiff is exclusively at fault. Should
Defendant do so, Plaintiff argues, that would place the quality of the post-accident
investigation at issue.
RULING: Defendant’s motion is speculative and premature. The Court has no context
to know how or when evidence of the relative “quality” of the accident investigation will
be presented. If an evidentiary line has been (or is about to be) crossed, an objection
should be made at that time, and the Court will rule in the context of trial. Accordingly,
the Court DEFERS this liminal motion.
38.10 Motion to Exclude Certain Data from GRANTED
Evidence
Defendant seeks to exclude evidence regarding injury statistics and the reportability of
such incidents to the Federal Railroad Administration (“FRA”). That includes whether
Plaintiff’s injury was reportable. Defendant argues use of such information would
contradict Congress’s intent in implementing reporting requirements and would be
prejudicial. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.11 Motion to Exclude Depictions of GRANTED IN PART
Plaintiff Receiving Medical Care or and DENIED IN
Recovering from Injuries PART
Defendant seeks to exclude photographs of Plaintiff in a medical setting or recovering
from his injuries. Defendant argues the prejudicial effect of such evidence far outweighs
its probative value, and it would be unduly cumulative.
Plaintiff disagrees. He argues that photos of the injury provide important evidence
regarding damages and appropriately supplement his testimony.
RULING: The parties informed the Court that they have reached an agreement
regarding which photographs will be presented to the jury. Accordingly, the Court
GRANTS IN PART the liminal motion. The Court adopts the parties’ agreed-to
resolution and DENIES IN PART Plaintiff’s liminal motion to the extent it differs.
38.12 Motion to Exclude Evidence of GRANTED
Plaintiff’s Medical Bills
Defendant seeks to exclude evidence regarding Plaintiff’s medical bills because
Defendant has already paid them. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.13 Motion to Exclude Evidence GRANTED
Regarding Inflation
Defendant seeks to exclude evidence regarding inflation and its effect on an award of
damages. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.14 Motion to Exclude Evidence Irrelevant GRANTED
to Damages Calculation
Defendant seeks an order (a) prohibiting Plaintiff from arguing that any award of
damages would be subject to income tax, (b) excluding evidence of Plaintiff’s gross
wage loss, given that the proper measure of damages is net wage loss. Plaintiff does
not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.15 Motion to Exclude Evidence That GRANTED
Mischaracterizes Defendant’s Duty
Defendant seeks to exclude evidence that mischaracterizes Defendant’s duty to its
employees. Defendant maintains it has an obligation to provide a reasonably safe work
environment, but it is not required to implement the safest or most effective procedures
or provide the safest or most effective equipment. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.16 Motion to Exclude Reference to GRANTED
Discovery Disputes or Deficiencies
Defendant seeks an order prohibiting Plaintiff from referencing the discovery process
that occurred in this case, including any discovery disputes or discovery deficiencies.
Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.17 Motion to Prohibit Improper Appeals to GRANTED
Juror Emotions
Defendant seeks an order prohibiting Plaintiff from asking jurors to place themselves in
Plaintiff’s position or to imagine his pain or emotions. Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.18 Motion to Prohibit Improper GRANTED
Commentary on Witness Credibility
Defendant seeks an order barring witness commentary on the credibility of other
witness, as well as the solicitation of such commentary by opposing counsel. Plaintiff
does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.19 Motion to Exclude Evidence GRANTED
Regarding Settlement Negotiations
Defendant seeks to exclude evidence of settlement negotiations under Rule 408.
Plaintiff does not object.
RULING: The parties stipulated that this liminal motion applies to both parties and
should be granted. Accordingly, the Court GRANTS this liminal motion.
38.20 Motion to Exclude Reference to an DENIED WITHOUT
Incorrect Standard of Care PREJUDICE
Defendant seeks to exclude evidence regarding the “Reptile Theory,” which Defendant
defines as “an argument that [it] should make the ‘safest possible choice’ in all
circumstances.” Defendant contends it has an obligation to provide workers with “a
reasonably safe place to work,” and it possesses no obligation to provide employees
with the “safest possible workplace.”
Plaintiff says he does not intend to argue that the standard of care is something other
than a “reasonably safe place to work.” However, he maintains that asking jurors to rely
on their commonsense or consider the community’s expectation of what a reasonably
safe place to work does not conflict with that standard.
RULING: The Defendant’s motion is non-specific and speculative, and therefore the
Court DENIES WITHOUT PREJUDICE this liminal motion. If an improper argument is
made, the aggrieved party should object and the Court will rule in the context of trial.
38.21 Motion to Exclude Evidence GRANTED
Regarding Defendant’s Payment of
Lost Wages
Defendant seeks to exclude evidence that it improperly withheld income from Plaintiff
on the ground that it had no duty to pay Plaintiff during the periods in which he did not
work for Defendant. Defendant argues evidence of lost wages should be considered
only as an element of damages.
Plaintiff agrees in part. Plaintiff says he will not argue Defendant failed to pay income
that was due. However, Plaintiff maintains that if Defendant argues Plaintiff failed to
mitigate his damages by obtaining other employment, then Plaintiff may introduce
evidence of Defendant’s failure to provide appropriate alternative employment.
RULING: Plaintiff stipulated during the pretrial hearing that he will not argue Defendant
failed to pay income that was due. The Court GRANTS this liminal motion to that extent.
38.22 Motion to Exclude Evidence of GRANTED
Subsequent Remedial Measures
Defendant seeks to exclude evidence regarding remedial measures implemented after
Plaintiff was injured while performing a “gravity switch maneuver” on July 1, 2019.
Defendant argues that such evidence is inadmissible to prove negligence under rule
407. Defendant further contends no other purpose for which such evidence may be
admissible—such as impeachment and establishing ownership or the feasibility of
precautionary measures—renders the probative value greater than the risk of unfair
prejudice.
Plaintiff contends Defendant took no real remedial action following the incident but
instead reiterated its existing policy. Plaintiff argues, even if this did constitute a
subsequent remedial measure, (a) any assertion by Defendant that its policy as of July
1, 2019, was proper and its employees received proper training opens the door to
evidence of subsequent retraining, (b) evidence of the subsequent remedial measures
can be introduced to establish feasibility, one of the exceptions to Rule 407.
RULING: Plaintiff stipulated during the pre-trial hearing that he intends to argue the
training he received prior to the accident was inadequate. He does not intend to
introduce evidence regarding a safety meeting Defendant held after the event at issue.
Accordingly, the Court GRANTS this liminal motion.
IT IS SO ORDERED this 15!" day of April, 2022.
AO lor
~ UNITED STATES DISTRICT JUDGE
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