LOPEZ v. CSX TRANSPORTATION, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JONATHAN LOPEZ, by his cousin and _)

duly appointed guardian ad litem, ) Case No. 3:14-cv-257

RAMONA ILARRAVA )

)

Plaintiff, )

) JUDGE KIM R. GIBSON

v.

)

CSX TRANSPORTATION, INC., )

)

Defendant. )

MEMORANDUM OPINION

This case arises from personal injuries suffered by Jonathan Lopez when he was hit by

Defendant CSX Transportation’s (“CSXT”) train. Pending before the Court are the following

twenty-four motions in limine filed by CSXT (each of which is accompanied by a brief in support)

to:

1. Exclude Testimony Regarding Plaintiff's Alleged Need for Adaptive Equipment (ECF

Nos. 150, 151);

2. Exclude Evidence Relating to Plaintiff's Allegations that CSXT Modified and/or

Erased any Recorded Data (ECF Nos. 152, 153);

3. Exclude Evidence Relating to Plaintiff's Allegations that CSXT “Blames the Public” for

Accidents at Crossings (ECF Nos. 154, 155);

4, Exclude Evidence Regarding Plaintiff's Competency to Participate in Trial (ECF Nos.

156, 157);

5. Exclude Evidence Regarding any Crossing Incidents or Accidents at Other than the

Ferndale Crossing (ECF Nos. 160, 161);

6. Exclude Evidence Relating to Claims Decided on Summary Judgment (ECF Nos. 162,

163);

7. Exclude Evidence of the Parties’ Financial Condition (ECF No. 164, 165);

8. Exclude all Documentary and Testimonial Evidence Regarding any Federal Railroad

Administration Incident Reports Filed Related to this Matter (ECF Nos. 166, 167);

9. Exclude Evidence Regarding United States Hazardous Material Instruction for Rail

Effective 1-1-12 (ECF Nos. 168, 169);

10. Exclude Evidence Regarding any Locomotive Incident History Reports (ECF Nos.

170, 171);

11. Exclude Evidence Regarding Photographs of a Locomotive Cab Interior (ECF Nos.

172, 173);

12. Exclude Evidence of any and all References to the Manual of Uniform Traffic Control

Devices to show Negligence (ECF Nos 174, 175);

13. Exclude Evidence Regarding any Other Incidents or Accidents (ECF Nos. 176, 177);

14. Exclude Speculative Testimony Regarding Plaintiff's Phantom Pain Damage Claim

(ECF Nos. 178, 179);

15. Exclude Post-Incident Classifications of Plaintiff (ECF No. 186, 187);

16. Exclude Evidence Regarding Locomotive Work Packages for CSXT 2529 and CSXT

4411 (ECF Nos. 190, 191);

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17. Exclude Evidence Regarding all Track Inspection Documents and any Testimony

Regarding Track Maintenance or Repair (ECF Nos. 184, 185);

18. Exclude the Opinions of Plaintiff's Expert Dr. Carl M. Berkowitz (ECF Nos. 136, 137)

19. Exclude the Opinions of Plaintiff's Expert Mr. Colon R. Fulk (ECF Nos. 140, 141);

20. Partially Exclude the Opinions and Testimony of Dr. Robert L. Rundorff, M.D. (ECF

Nos. 146, 147);

21. Exclude Timothy Wagner’s Deposition Testimony and Report (ECF Nos. 188, 189);

22. Preclude Plaintiff's Expert Mr. Richard Riley's Testimony Regarding his Status as an

Amputee (ECF Nos. 180, 181);

23. Exclude the Opinions of Plaintiff's Expert Mr. Richard Riley (ECF Nos. 142, 143); and

24. Exclude the Opinions of Plaintiff's Expert Mr. Richard Riley Pursuant to Fed. R. Civ.

P. 37 (ECF Nos. 144, 145).

Lopez’s guardian ad litem has responded to many of the motions (ECF Nos. 201, 203, 205,

207, 209, 211, 212, 214, 215, 217, 218, 219, 223) and also filed briefs in opposition to some of the

motions. (ECF Nos. 202, 204, 206, 208, 213, 216, 220, 224) The time for filing responses has passed.

The motions are ripe for disposition.

For the following reasons, the Court:

1. DENIES Defendant’s Motion to Exclude Testimony Regarding Plaintiff's Alleged

Need for Adaptive Equipment (ECF Nos. 150, 151);

2. GRANTS Defendant's Motion to Exclude Evidence Relating to Plaintiff's Allegations

that CSXT Modified and/or Erased any Recorded Data (ECF Nos. 152, 153);

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3. GRANTS Defendant’s Motion to Exclude Evidence Relating to Plaintiff's Allegations

that CSXT “Blames the Public” for Accidents at Crossings (ECF Nos. 154, 155);

4. GRANTS IN PART and DEFERS IN PART Defendant's Motion to Exclude Evidence

Regarding Plaintiffs Competency to Participate in Trial (ECF Nos. 156, 157);

5. GRANTS IN PART Defendant's Motion to Exclude Evidence Regarding any Crossing

Incidents or Accidents at Other than the Ferndale Crossing (ECF Nos. 160, 161);

6. DENIES Defendant's Motion to Exclude Evidence Relating to Claims Decided on

Summary Judgment (ECF Nos. 162, 163);

7. DEFERS Ruling on Defendant's Motion to Exclude Evidence of the Parties’ Financial

Condition (ECF No. 164, 165);

8. GRANTS Defendant's Motion to Exclude all Documentary and Testimonial

Evidence Regarding any Federal Railroad Administration Incident Reports Filed

Related to this Matter (ECF Nos. 166, 167);

9. GRANTS Defendant's Motion to Exclude Evidence Regarding United States

Hazardous Material Instruction for Rail Effective 1-1-12 (ECF Nos. 168, 169);

10. DENIES Defendant's Motion to Exclude Evidence Regarding any Locomotive

Incident History Reports (ECF Nos. 170, 171);

11. DENIES Defendant's Motion to Exclude Evidence Regarding Photographs of a

Locomotive Cab Interior (ECF Nos. 172, 173);

12. DENIES Defendant's Motion to Exclude Evidence of any and all References to the

Manual of Uniform Traffic Control Devices to show Negligence (ECF Nos 174, 175);

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13. GRANTS IN PART Defendant's Motion to Exclude Evidence Regarding any Other

Incidents or Accidents (ECF Nos. 176, 177);

14. DENIES Defendant's Motion to Exclude Speculative Testimony Regarding Plaintiff's

Phantom Pain Damage Claim (ECF Nos. 178, 179);

15. DENIES Defendant’s Motion to Exclude Post-Incident Classifications of Plaintiff

(ECF No. 186, 187);

16. DENIES Defendant’s Motion to Exclude Evidence Regarding Locomotive Work

Packages for CSXT 2529 and CSXT 4411 (ECF Nos. 190, 191);

17. GRANTS Defendant's Motion to Exclude Evidence Regarding all Track Inspection

Documents and any Testimony Regarding Track Maintenance or Repair (ECF Nos.

184, 185);

18. DENIES Defendant's Motion to Exclude the Opinions of Plaintiff's Expert Dr. Carl M.

Berkowitz (ECF Nos. 136, 137);

19. DENIES Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Mr. Colon

R. Fulk (ECF Nos. 140, 141);

20. DENIES IN PART Defendant’s Motion to Partially Exclude the Opinions and

Testimony of Dr. Robert L. Rundorff, M.D. (ECF Nos. 146, 147);

21. DENIES Defendant’s Motion to Exclude Timothy Wagner’s Deposition Testimony

and Report (ECF Nos. 188, 189);

22. Finds that Defendant’s Motion to Preclude Plaintiff's Expert Mr. Richard Riley’s

Testimony Regarding his Status as an Amputee (ECF Nos. 180, 181) is MOOT;

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23. Finds that Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Mr.

Richard Riley (ECF Nos. 142, 143) is MOOT; and

24. Finds that Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Mr.

Richard Riley Pursuant to Fed. R. Civ. P. 37 (ECF Nos. 144, 145) is MOOT.

II. Background!

CSXT filed its motions in limine on October 12, 2020. Lopez filed responses and briefs in

opposition to some of CSXT’s motions on October 17 and October 19, 2020. (ECF Nos. 201-220;

223-229)

III. Legal Standard

A. Relevance

Under Rule 402 of the Federal Rules of Evidence, relevant evidence is admissible unless

the Constitution, a federal statute, the Federal Rules of Evidence, or rules prescribed by the

Supreme Court provide otherwise. Fed. R. Evid. 402. Evidence is relevant if it has any tendency

to make a fact of consequence more or less probable than it would be without the evidence. Fed.

R. Evid. 401. Rule 401 does not set a high standard for admissibility. Hurley v. Atl. City Police

Dep’t, 174 F.3d 95, 109-10 (3d Cir. 1999). The Third Circuit has explained:

[R]elevancy is not an inherent characteristic of any item of evidence but exists

only as a relation between an item of evidence and a matter properly provable in

the case. Because the rule makes evidence relevant if ithas any tendency to prove

a consequential fact, it follows that evidence is irrelevant only when it has no

tendency to prove the fact.

1 A detailed description of the factual background of this case can be found in the Court’s Memorandum

Opinion Granting in Part and Denying in Part Summary Judgment. (ECF No. 63)

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Blancha v. Raymark Indus., 972 F.2d 507, 514 (3d Cir. 1992) (citations and internal quotation marks

omitted) (emphasis in original).

Under Rule 403, relevant evidence is inadmissible “if its probative value is substantially

outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Rule 403

mandates a balancing test, “requiring sensitivity on the part of the trial court to the subtleties of

the particular situation.” United States v. Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010). Importantly,

“unfair prejudice’ as used in Rule 403 is not to be equated with testimony simply adverse to the

opposing party. Virtually all evidence is prejudicial or it isn’t material. The prejudice must be

‘unfair.’” Carter v. Hewitt, 617 F.2d 961, 972 n.14 (3d Cir. 1980). “Unfair prejudice” means an

“undue tendency to suggest decision on an improper basis, commonly, though not necessarily,

an emotional one.” McBride v. Petulla, No. 3:16-cv-256, 2020 WL 1032535, at *1 (W.D. Pa. Mar. 3,

2020) (quoting Fed. R. Evid. 403 advisory committee’s note to 1972 proposed rules).

B. Expert Testimony □

Under the Federal Rules of Evidence, a trial judge acts as a “gatekeeper” to ensure that

“any and all expert testimony or evidence is not only relevant, but also reliable.” Pineda v. Ford

Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (quoting Kannankeril v. Terminex Int'l, Inc., 128 F.3d 802,

806 (3d Cir. 1997)). Therefore, when a party seeks to admit expert testimony, the Court must

make a preliminary determination that the proffered expert meets the requirements of Rule 702.

Magistrini v. One Hour Martinizing Dry Cleaning, 68 F. App’x 356, 356 (3d Cir. 2003) (citing Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)). After the proffered expert has been found

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by the Court to qualify as an expert, the expert is permitted under Rule 702 to testify in the form

of an opinion if:

(a) the expert's scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue; (b) the

testimony is based on sufficient facts or data; (c) the testimony is the product of

reliable principles and methods; and (d) the expert has reliably applied the

principles and methods to the facts of the case.

Fed. R. Evid. 702.

The Third Circuit has interpreted Rule 702 as having three major requirements. Pineda,

520 F.3d at 244. First, the proffered witness must be qualified as an expert. Id. Second, the expert

must testify about matters requiring scientific, technical, or specialized knowledge and base his

or her opinions on reliable processes and techniques. Id. Third, the expert’s testimony must assist

the trier of fact. Id. The party offering the expert must prove each of these requirements by a

preponderance of the evidence. Mahmood v. Narciso, 549 F. App’x 99, 102 (3d Cir. 2013) (citing In

re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999)).

Rule 702 has “a liberal policy of admissibility.” Pineda, 520 F.3d at 243 (citing Kannankeril,

128 F.3d at 806). Exclusion of expert testimony is the exception rather than the rule because

“vigorous cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but admissible

evidence.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (citing Daubert, 509

U.S. at 595),

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II. Discussion

1. The Court Denies Defendant’s Motion to Exclude Testimony Regarding Plaintiff's

Alleged Need for Adaptive Equipment

CSXT asserts that the Court should exclude testimony regarding Lopez’s need for

adaptive equipment because Lopez’s treating physician concluded that Lopez does not need

adaptive equipment and there is no evidence that Lopez needs adaptive equipment. (ECF Nos.

150; 151 at 2-4) CSXT contends that any testimony about adaptive equipment should be excluded

under Rule 403 because it “contravenes the established facts of this case and is based solely on

speculation.” (ECF No. 151 at 5)

Lopez? responds that Dr. Robert L. Rundorff, M.D., conceded during his deposition

testimony that Lopez needed some adaptive equipment. (ECF No. 217) In particular, Dr.

Rundorff stated that Lopez: “probably had some sort of shower bench [or] tub bench” that had

been prescribed to him prior to leaving the hospital; will probably continue to need a bench in

the shower for his entire life; would need new grab bars if they came out of the wall or if he

moved; and would need crutches or a walker if he was unable to use his prosthesis in the future

(e.g., if he had an infection and could not wear it). (ECF No. 217-1 at 125-129, 144)

Dr. Rundorff is Lopez’s treating physician and he stated during his deposition on October

26, 2015, that Lopez had not needed, and was not “currently in need,” of adaptive equipment.’

(ECF No. 151-1 at 2-3) Dr. Rundorff’s testimony does not foreclose the possibility that Lopez

would need adaptive equipment in the future. It is consistent with Dr. Rundorff’s deposition

2 All of the responses were filed by Lopez’s guardian ad litem.

3 Adaptive equipment is equipment designed to aid in an individual's daily life, such as bathroom rails.

(ECF No. 151-1 at 2)

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testimony that Lopez has come to need adaptive equipment in the five years since Dr. Rundorff

was deposed or that he would be expected to need adaptive equipment in the future. Indeed,

contrary to his statement that Lopez had not needed adaptive equipment, Dr. Rundorff also

stated that Lopez needed crutches, a shower bench, and suggested that he may also need shower

bars. (ECF No. 217-1 at 125-129) Although Dr. Rundorff said that a shower bench would not

need to be replaced often, given Lopez’s age, it is unlikely that the shower bench would never

need to be replaced. Similarly, Lopez’s crutches would certainly need to be replaced at some

point. Dr. Rundorff’s testimony is vague regarding whether Lopez currently needs shower bars,

whether he will come to need them in the future, and to what extent Lopez’s current needs for

adaptive equipment are satisfied based on his current age and mobility as well as the current

configuration of his bathroom. As it stands, it appears that Dr. Rundorff would opine that Lopez

needs a shower bench and crutches. To the extent that Lopez needs shower bars, which is unclear

based on Dr. Rundorff’s deposition testimony, the shower bars may need to be repaired or

replaced and, if Lopez moves to a new residence, new shower bars would be required to be

installed.

Based on Dr. Rundorff’s deposition, it appears that Dr. Rundorff will be able to testify

about Lopez’s future needs for adaptive equipment with sufficient specificity and certainty that

it is not speculative. Dr. Rundorff’s deposition testimony itself, however, does not provide

sufficient detail and would be speculative. To the extent that Lopez can present non-speculative

evidence that he needs or has needed adaptive equipment, or that he would likely come to need

adaptive equipment in the future, it would be admissible.

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2. The Court Grants Defendant’s Motion to Exclude Evidence Relating to Plaintiff's

Allegations that CSXT Modified and/or Erased any Recorded Data

CSXT moves to exclude evidence that CSXT modified or erased data regarding the speed

of the train or the train’s audible warnings because such evidence is irrelevant and any probative

value is substantially outweighed by the prejudicial effect that such evidence would have. (ECF

No. 153 2-5) CSXT contends that such evidence is not relevant because the Court granted

summary judgment for CSXT on Lopez’s claims based on the speed the train was travelling and

the failure to issue proper audible warnings. As a result, the only claim left is based on the

negligent handling and operation of the train for failing to slow or stop the train before it struck

Lopez and punitive damages are limited to whether the train operators had a subjective

appreciation that Lopez was in a position of peril and consciously disregarded the risk by failing

to attempt to slow or stop the train. (ECF No. 153 at 2) The speed of the train, whether audible

warnings were issued, and whether records of either were modified or erased are thus irrelevant

for the remaining claim. In addition, CSXT contends that the Court has already found that no

reasonable juror could conclude that CSXT tampered with the event recorder data. (Id. at 4)

Lopez did not file a response.

The Court holds that evidence that CSXT modified any recorded speed or audible

warning data is inadmissible because it is irrelevant to Lopez’s remaining claim. Evidence that

CSXT modified any data does not have any tendency to make a fact of consequence to

determining whether the train operators were negligent in failing to slow or stop the train more

or less probable. See Fed. R. Evid. 401. In addition, the claim that CSXT modified or tampered

with this data is not supported by the evidence and is mere speculation. (ECF No. 63 at 15 n.5)

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Further, any probative value from evidence that CSXT modified or tampered with recorded data

is substantially outweighed by the danger of unfair prejudice because such evidence is highly

speculative and inflammatory. See Jacobs v. City of Philadelphia, 212 F. App’x 68, 72 (3d Cir. 2006).

However, to the extent that data having been deleted or erased is relevant to explain the absence

of such data—e.g., that data was deleted in the ordinary course of business and that not having

that data affects the accuracy of an expert’s conclusion—the Court at this time does not exclude

such evidence for these purposes.

3. The Court Grants Defendant’s Motion to Exclude Evidence Relating to Plaintiff's

Allegations that CSXT “Blames the Public for Accidents at Crossings

CSXT moves to exclude evidence that CSXT “blames the public” for accidents as crossings

because such evidence is irrelevant, any probative value is substantially outweighed by the

danger of unfair prejudice, and it would not be an admissible expert opinion. (ECF Nos. 154 at

2; 155)

Lopez’s retained expert, Carl M. Berkowitz, Ph.D., PE, AICP, opines in his report that “[a]

reasonable remedy [for the danger that a grade crossings poses to pedestrian safety] would be to

recognize the potential hazard and take simple measures to ameliorate the effects of the dangers,

and stop blaming the public.” (ECF No. 155-1 at 31 (emphasis added)) Lopez contends that CSXT

raised numerous affirmative defenses in its answer that amount to blaming Lopez for the

accident, demonstrating that CSXT is in fact blaming the public for collisions at railroad crossings.

(ECF No. 216 at 1-2) Asa result, Lopez contends that it is a fair comment. (Id.)

The Court holds that evidence of the opinion that CSXT “blames the public” for accidents

is irrelevant because it has no tendency to make a fact of consequence in the case more or less

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probable and the probative value that the opinion would have is substantially outweighed by the

danger of unfair prejudice. Further, as an expert opinion, it is an inflammatory and prejudicial

opinion that is not based on Dr. Berkowitz’s expertise, that is not based on facts or data, and that

is not the product of reliable principles and methods. See Fed. R. Evid. 702. Such an opinion is a

personal opinion of Dr. Berkowitz, not an expert opinion. To the extent that Lopez argues that

this is just a “fair comment upon the evidence presented,” the cases Lopez cites to support this

argument are cases about counsel commenting on evidence during their closing arguments, not

a witness commenting on a party’s litigation strategy. (ECF No. 216 at 2-3)

4, The Court Grants in Part and Defers in Part Defendant’s Motion to Exclude

Evidence Regarding Plaintiff's Competency to Participate in Trial

CSXT moves to exclude testimony from Lopez’s guardian ad litem, Ramona Ilarrava,

regarding Lopez’s competency or incompetency and his ability to participate in the trial because

such testimony would be speculative, an improper opinion, and highly prejudicial to CSXT. (ECF

Nos. 156 at 2; 157)

Lopez contends that there will be substantial evidence offered in this case regarding

Lopez’s mental state, both by himself and by CSXT, so Ms. Iarrava should be able to provide her

observations of Lopez’s behavior and actions as someone who has known Lopez his entire life.

(ECF No. 214 at 2) He also contends that she is not going to provide a medical opinion, but only

a lay opinion about Lopez’s competency and his ability to participate in the trial. (Id. at 2-3)

The jury will be informed by the Court that Ms. Iarrava is Lopez’s guardian ad litem, as

she is a party to this litigation. The Court will also inform the jury that the Court appointed her

as Lopez’s guardian ad litem after finding him incompetent with respect to this case. The Court

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will not permit evidence or opinions, lay or expert, regarding Lopez's competency with respect

to the appointment of a guardian ad litem under Federal Rule of Civil Procedure 17(c). The

decision of whether Lopez is incompetent under Rule 17(c) was for the Court to determine. The

Court has made its determination and will not allow the parties to re-litigate whether Lopez is

incompetent under Rule 17(c). Any evidence regarding whether Lopez was or was not

incompetent under Rule 17(c) is not relevant and any probative value that it might have is

substantially outweighed by the danger of confusing the issues, misleading the jury, and wasting

time.

However, to the extent that Lopez’s post-incident mental health becomes an issue in the

case, Ms. Ilarrava would likely be able to testify about her personal observations of, and

interactions with, Lopez. As someone who has known Lopez his entire life and has had

substantial interaction with him, she is likely to be the type of person who can provide lay opinion

regarding his competency. See Asplundh Mfg. Div., a Div. of Asplundh Tree Expert Co. v. Benton

Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995) (listing “competency of a person” as an example of

the types of evidence allowed under Rule 701). Lay opinion testimony is admissible only if it is:

(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness's

testimony or to determining a fact in issue; and (c) not based on scientific, technical or other

specialized knowledge. Fed. R. Evid. 701. An opinion is helpful to the jury only “if it aids or

clarifies an issue that the jury would not otherwise be as competent to understand.” Lauria v.

National R.R. Passenger Corp., 145 F.3d 593, 600 (3d Cir. 1998). “[W]here a witness is not in a better

position than the jurors to form an opinion or make an inference, the witness's opinion is

inadmissible under Rule 701(b).” United States v. Fulton, 837 F.3d 281, 292 (3d Cir. 2016).

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At this point, it is not clear to the Court whether and to what extent Lopez intends to offer

evidence of his post-incident mental health. But, CSXT has listed numerous post-incident social

media posts and emails written by Lopez about the case as exhibits it intends to offer at trial.

(ECF No. 200 at 1-5) If evidence is offered that Lopez wants to dismiss the case or states that the

accident was his fault, Ms. Ilarrava’s testimony would certainly be relevant to place such

statements into context and assist the jury in understating Lopez’s mental state when he made

those statements and his potential motivations for making such statements.

Therefore, the Court holds that evidence regarding Lopez’s Rule 17(c) incompetency with

respect to this case is not admissible. At this time, the Court does not rule on whether evidence

of Lopez’s post-incident mental health is relevant because the Court does not know what

evidence the parties intend to introduce that may touch upon his mental health. If Lopez’s mental

health becomes relevant, then Ms. Ilarrava or another competent witness would likely be able to

provide a lay opinion regarding Lopez’s competency.

5. The Court Grants in Part Defendant’s Motion to Exclude Evidence Regarding any

Crossing Incidents or Accidents at any Crossing Other than the Ferndale Crossing

and Defendant’s Motion to Exclude Evidence Regarding any other Incidents or

Accidents

CSXT’s motion to “Exclude Evidence Regarding any other Incidents or Accidents” and

brief in support (ECF Nos. 176, 177) is substantially the same as its motion to “Exclude Evidence

Regarding any Crossing Incidents or Accidents at Other than the Ferndale Crossing” and brief in

support (ECF Nos. 160, 161). Lopez’s responses to both motions are identical. (ECF Nos. 203,

204, 212, 213) Accordingly, the Court considers these motions together.

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CSXT moves to exclude any evidence of incidents or accidents involving other CSXT

trains because such evidence is not relevant and any probative value is substantially outweighed

by the danger of misleading the jury and unfair prejudice. (ECF Nos. 160 at 2; 161; 177) CSXT

contends that incidents and accidents at other crossings are not relevant to Lopez’s remaining

claim because they are not substantially similar to the incident here. (ECF Nos. 161 at 3-4; 177 at

3-4)) Further, CSXT contends that under Rule 403 any similarity between incidents at other

crossings and the incident here is outweighed by the prejudice that CSXT would suffer and

because it would mislead the jury. (ECF Nos. 161 at 4-6; 177 at 4-6) In particular, CSXT argues

that the jury could be led to find CSXT responsible, not based upon the facts of the accident here,

but because CSXT has been involved in other accidents at other locations. (ECF Nos. 161 at 5; 177

at 5)

In response, Lopez states that he does not intend to offer evidence of any particular prior

incident or accident at a railroad crossing. (ECF No. 204 at 3) Instead, Lopez seeks to offer

evidence that “every year there are numerous rail grade crossing collisions, despite the presence

of operable warnings” without mentioning any specific incident. (Id.) Lopez argues that

evidence that collisions occur is relevant to the foreseeability “that a member of the public might

not see or hear existing warnings, or might even intentionally disregard such warnings,” which

is probative to whether the train crew exercised reasonable care under the circumstances by

failing to slow or stop the train to avoid a collision. (Id.) Lopez also contends that a limiting

instruction can cure any Rule 403 concerns. (ECF No. 204 at 3-4)

Evidence of prior similar accidents is a proper and significant means of proving both the

existence and knowledge of dangerous conditions. Golias v. Norfolk S. Ry. Co., No. 2:07-CV-3, 2009

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WL 10728719, at *5 (W.D. Pa. Apr. 20, 2009). “[K]nowledge of the likelihood of injury is imparted

by information of like occurrences under similar circumstances, and is a fact to be considered by

a jury in determining whether prior precautions were taken.” De Frischia v. New York C. R. Co.,

307 F.2d 473, 476 (3d Cir. 1962). Regardless of why prior accidents are sought to be introduced,

“there must be a basic similarity of conditions and facts between the prior accidents and the

accident in question.” Golias, 2009 WL 10728719, at *5 (quoting Nat'l Freight, Inc. v. Se. Pa. Transp.

Auth., No. CIV.A. 87-3334, 1988 WL 108408, at *3 (E.D. Pa. Oct. 12, 1988)). Where the requisite

similarity of facts is not present, the probative value of such prior accident evidence will, in most

circumstances, be outweighed by its prejudicial or misleading nature. Id.; Nat'l Freight, 1988 WL

108408, at *3; see Evans v. Pennsylvania R.R. Co., 255 F.2d 205, 210 (3d Cir. 1958); see also Stormer v.

Alberts Constr. Co., 165 A.2d 87, 89 (Pa. 1960) (limiting the admissibility of evidence of prior

accidents to those situations where the accidents “occurred at substantially the same place and

under the same or similar circumstances”).

The Court holds that evidence of specific incidents or accidents is not relevant, but general

evidence that collisions between trains and pedestrians occur, information on the frequency at

which they occur, and whether they occur despite the presence of different types of warning

devices is relevant. Such information is relevant as to whether the train operators were negligent

by not recognizing that Lopez was in a position of peril and believing that he would stop rather

than proceed onto the tracks. If collisions between trains and pedestrians were rare occurrences

or tended to occur only in circumstances different from those here, the failure to slow or stop

before striking Lopez might be less likely to be negligent because a reasonable person would

assume that a pedestrian would stop prior to the railroad tracks. For the same reasons, such

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information also helps inform at what point Lopez was in a position of peril and when the train

operators should have recognized that Lopez was in a position of peril. Because such information

about train collisions is generic and does not suggest who it at fault in such collisions, the Court

finds that the probative value of such evidence is not substantially outweighed by the prejudice

that CSXT would suffer if such evidence were introduced.

6. The Court Denies Defendant’s Motion to Exclude Evidence Relating to Claims

Decided on Summary Judgment

CSXT moves to exclude evidence related to Lopez’s claims on which the Court granted

summary judgment because such evidence is irrelevant and unduly prejudicial. (ECF Nos. 162

at 2; 163) CSXT argues that six categories of evidence are irrelevant: (1) evidence on negligence

allegations based upon the train’s speed; (2) evidence on negligence allegations based upon

negligent lack of pedestrian warning devices and inadequacy of pedestrian warning devices at

the Ferndale Crossing; (3) evidence on negligence allegations based on negligent maintenance of

the Ferndale Crossing; (4) evidence on negligence allegations based on negligent failure to issue

proper audible warnings to announce the approach of the train; (5) evidence that CSXT failed to

follow its internal rules; and (6) evidence that CSXT negligently failed to sound the horn in an

emergency. (ECF No. 163 at 3-4)

Lopez states that all the evidence he intends to offer will be relevant, material, and

probative; evidence that was relevant to other claims are also relevant to the claim here and to

CSXT’s affirmative defenses; and CSXT does not specify what evidence they are referring to or

specifically how it is not relevant. (ECF No. 211 at 1~2)

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The Court denies CSXT’s motion because it fails to delineate specific evidence that it seeks

to exclude or explain why such specific evidence is not relevant. As Lopez notes, evidence which

was relevant to Lopez’s claims that were decided at summary judgment may also be relevant to

his remaining claim and CSXT’s affirmative defenses. Without identifying the specific evidence

CSXT seeks to exclude or the specific basis on which CSXT seeks to exclude the evidence, the

Court is at this point unable to evaluate whether such evidence is admissible. If Lopez seeks to

admit evidence that CSXT believes is inadmissible, it may make an appropriate objection at that

time.

7. The Court Defers Ruling on Defendant’s Motion to Exclude Evidence of the Parties’

Financial Condition

CSXT contends that evidence of its financial information, wealth, or condition: (1) is not

relevant unless and until the Court determines there is sufficient evidence to warrant punitive

damages; (2) should be excluded even if there is sufficient evidence to warrant punitive damages

because such evidence is highly prejudicial and would serve no purpose other than to inflame

the jury because it is a large out-of-state corporation; and (3) should be excluded because Lopez

has not complied with the disclosure requirements in Federal Rule of Civil Procedure 26. (ECF

No. 164 at 1-2; 165) Lopez did not file a response.

The Court holds that Lopez may present evidence that is relevant to punitive damages so

long as it relates to liability. A punitive damages claim must be supported by evidence sufficient

to establish that: (1) a defendant had a subjective appreciation of the risk of harm to which the

plaintiff was exposed; and (2) he acted in conscious disregard of that risk. Brand Mktg. Grp. LLC

v. Intertek Testing Servs., N.A., Inc., 801 F.3d 347, 360 (3d Cir. 2015) (citing Hutchison ex rel. Hutchison

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v. Luddy, 870 A.2d 766, 772 (Pa. 2005)). Courts frequently decline to grant pretrial motions to

exclude evidence related to punitive damages without prejudice so that the moving party may

renew any objections to punitive damages claims at trial based upon a fully developed factual

record. R.D. v. Shohola, Inc., No. 3:16-cv-01056, 2019 WL 6211365, at *4 (M.D. Pa. Nov. 20, 2019).

The Court agrees with the approach taken by other courts and reserves its ruling on

whether the jury may be charged with a punitive damages claim until the end of trial with a fully

developed factual record. Lopez may present evidence that is relevant both to liability and

punitive damages during his case-in-chief. At the end of Lopez’s case-in-chief, but prior to

resting, CSXT may move to exclude the punitive damages claim. If the Court denies the motion,

Lopez may then introduce evidence solely related to punitive damages, such as CSXT’s wealth.

8. The Court Grants Defendant’s Motion to Exclude Evidence Regarding United

States Hazardous Material Instructions for Rail Effective 1-1-12

CSXT moves to exclude “evidence regarding the United States Hazardous Material

Instructions for Rail Effective 1-1-12” because such evidence is not relevant to Lopez’s claim and

any relevance it may have is substantially outweighed by the danger of unfair prejudice and

misleading the jury. (ECF Nos. 168 at 2; 169 at 3-5) CSXT contends that the instructions are not

relevant because the claim does not involve hazardous cargo aboard a locomotive and the

instruction does not contain any information regarding train handling and operations. (ECF No.

169 at 2) Lopez has not filed a response.

The Court holds that “evidence regarding the United States Hazardous Material

Instructions for Rail Effective 1-1-12” is not admissible because there is no indication that it is

relevant. Although the Court has not been provided a copy of the instruction, there is no claim

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or indication that the train at issue here was carrying hazardous cargo or that regulations related

to hazardous cargo would be relevant to the issues in this case. Even assuming the train here

were carrying hazardous cargo, there is no indication that regulations for carrying hazardous

cargo would have any relevance for train operations and handling with respect to slowing or

stopping the train under the circumstances present here.

9. The Court Denies Defendant’s Motion to Exclude Evidence Regarding Photographs

of a Locomotive Cab Interior

CSXT contends that certain photographs of a locomotive cab interior (ECF No. 173-1 at 2—

5) should be excluded because they are not relevant and any probative value would be

substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading

thejury. (ECF Nos. 172 at 2; 173) CSXT argues the photographs are not relevant because: (1) they

are not photographs or depictions of the locomotive cab interior at issue in this case; (2) they are

pictures of a Union Pacific locomotive, not a CSXT locomotive; and (3) the configuration of

instruments in different locomotive cabs can be different. (ECF No. 173 at 3) CSXT contends that

the photographs would be “highly confusing, misleading, and prejudicial” because they “would

confuse the jury and provide a false sense of the configuration of the cab environment of the CSXT

locomotive”; “would fail to provide the jury with a relevant and accurate depiction of the

environment of the CSXT locomotive actually involved in the incident”; and would “only serve

to confuse and mislead the jury because it does not establish the proximity of the instruments,

types of instruments and general layout of the controls in a CSXT locomotive.” (ECF No. 173 at

5)

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Lopez argues that the photos will be used for demonstrative purposes with witnesses to

help the jury visualize the locomotive, the layout of the locomotive, and the locations of the

operators and relevant equipment in the locomotive cab. (ECF No. 202 at 1-4) Lopez notes that,

except for the owner of the train, CSXT does not identify anything in particular in the

photographs that is wrong, confusing, or misleading. (ECF No. 3) Lopez further argues that any

objections that CSXT has to the photographs not being sufficiently accurate goes to the weight,

not the admissibility, of the photographs and that CSXT will have the opportunity to address any

incorrect, confusing, or misleading aspects of the photographs through cross-examination. (Id.)

“(T]tems offered for purposes of illustration and clarification, such as photographs, are

admissible if they are ‘sufficiently explanatory or illustrative of relevant testimony in the case to

be of potential help to the trier of fact.” Zaprala v. USI Servs. Grp., Inc., No. CIV.A. 09-1238, 2013

WL 1148335, at *3 (E.D. Pa. Mar. 20, 2013) (citation omitted).

The Court finds that the photographs are admissible as demonstrative aids because they

would assist the jury in understanding testimony regarding the interior of the locomotive cabs

and the location of items and people within locomotive cabs. Lopez does not intend to admit the

photographs as depictions of the actual locomotive cab involved in the accident in this case.

Instead, the photographs are demonstrative exhibits by his expert witnesses to assist the jury in

understanding the layout of the interior of a locomotive cab, what the interior of a locomotive

looks like, and the locations of individuals and relevant items within the locomotive cab. As such,

there is no requirement that the photographs be substantially similar to the locomotive involved

here. See Russo v. Mazda Motor Corp., No. CIV. A. 89-7995, 1992 WL 309630, at *2 (E.D. Pa. Oct. 19,

1992). Any dissimilarities between the photographs and the locomotive involved here goes to the

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weight of the evidence, not the admissibility. Id. Indeed, as noted by Lopez, several of these

photographs were used by witnesses at their depositions to depict the locations of individuals in

the cab and the location of the emergency brake. (ECF No. 202 at 1-2) Further, the jury will not

be confused or misled because the witness through whom these photographs would be used

would need to explain what the photographs are and why they are relevant. In addition, CSXT

will have the opportunity through cross-examination to clarify any confusion.

10. The Court Denies Defendant’s Motion to Exclude any and all Reference to the

Manual of Uniform Traffic Control Devices to show Negligence

CSXT contends that the any evidence regarding the Manual of Uniform Traffic Control

Devices should be excluded because such evidence is not relevant and any probative value is

substantially outweighed by the danger of unfair prejudice and confusing the issues. (ECF Nos.

174 at □□ 175) CSXT argues that the manual is not relevant because it concerns national standards

for traffic control devices—such as road markings, highway signs, and traffic signals—and CSXT

was granted summary judgment on the claims where such information would have been

relevant. (ECF No. 175 at 3-4) CSXT also argues that admitting this evidence would risk the jury

impermissibly considering this evidence on the issue of punitive damages. (Id. at 4-4) CSXT

specfically seeks to exclude: (1) the Manual of Uniform Traffic Control Devices; (2) all references

to the manual by Dr. Berkowitz in his report; and (3) any testimony regarding the manual from

Dr. Berkowitz or any other witness. (ECF No. 174 at 2-3; 175 at 5)

Lopez contends that the manual is relevant for two reasons. First, the manual informs the □

train crew's knowledge of crossings and existing warnings which is relevant to their “subjective

appreciation of the risk from the specific hazard in front of them.” (ECF No 220 at 3) The train

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operators’ knowledge of the different warnings that exist goes to the foreseeability that a member

of the public might not see or hear the existing warnings. (Id.) Second, Lopez’s actions are to be

“judged based on the subjective awareness of the plaintiff and existing science and knowledge

regarding human reaction, or lack thereof, to various types of warnings.” (Id.) Lopez also notes

that this evidence is relevant to some of CSXT’s affirmative defenses, including Lopez’s

negligence. (Id.) Finally, Lopez states that a jury instruction would alleviate any Rule 403 issues.

(Id. at 4)

Plaintiff's only remaining claim is whether the train operators were negligent in failing to

slow or stop the train before striking Lopez. The traffic control devices that were in place at the

Ferndale Crossing, the types of traffic control devices that exist, and whether the devices at the

Ferndale Crossing met the national standards are relevant because they inform when Lopez was

in a position of peril, the train crew’s subjective belief about whether Lopez was in a position of

peril, whether the train crew reasonably believed that Lopez would stop rather than proceed onto

the tracks. Further, the manual is relevant to CSXT’s affirmative defenses that Lopez was

negligent. (ECF No. 76 at 4, 8-9) In determining whether Lopez was negligent, the manual is

relevant to inform what kinds of signals exist, the effectiveness of different types of signals, and

whether the Ferndale Crossing met the national standards. The signals that existed at the

Ferndale Crossing and how those differed from other signals that exist are relevant to

determining what “a reasonably prudent person” would expect to encounter at an active railroad

crossing when there is a train approaching. Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998).

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The Court finds that the probative value of the manual is not substantially outweighed by

the danger of unfair prejudice or confusing the issues. (ECF No. 175 at 5) If CSXT is concerned

about how the jury will consider evidence of the manual, it can request a limiting instruction.

11. The Court Denies Defendant’s Motion to Exclude Speculative Testimony

Regarding Plaintiff’s Phantom Pain Damage Claim

CSXT contends that Lopez’s “phantom pain” damage claim should be excluded because

itis speculative. (ECF Nos. 178 at □□ 179) Despite Dr. Rundorff stating that Lopez had experienced

phantom pain and continued to experience it, CSXT argues that future phantom pain is

speculative because the phantom pain may go away or it may continue for Lopez’s entire life, but

there is no way to know what will happen in the future to Lopez’s phantom pain. (ECF No. 179

1-2)

Lopez contends that he has suffered from, and continues to suffer from, phantom pain.

(ECF No. 206 at 2-4) Therefore, he argues that the possibility that the pain might disappear does

not make future pain inadmissibly speculative. (Id.)

A jury may not award damages based on speculation or conjecture. Carroll v. Philadelphia

Hous. Auth., 650 A.2d 1097, 1100 (Pa. Commw. Ct. 1994). Damages are speculative if “the

uncertainty concerns the fact of damages, not the amount.” Id. But, “where the issue in question

is one of prognosis, ‘a doctor cannot be required to express his opinion with the definiteness

required in a causation question.” Martin v. Johns-Manville Corp., 494 A.2d 1088, 1094 (Pa. 1985)

(quoting Boyle v. Pa. R.R. Co., 170 A.2d 865, 867 (Pa. 1961)). Where a doctor's opinion is that the

plaintiff will “gradually improve” or that an injury may “possibly be permanent or may possibly

get better within a year” the uncertainty of these “honest medical opinion[s] should not be the

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basis for any finding by the jury of permanent injury but is sufficient, on the other hand, for the

jury to find some future disability.” Boyle, 170 A.2d at 867 (quoting Stevenson v. Pa. Sports &

Enters., Inc., 93 A.2d 236, 240 (Pa. 1952)) (emphasis in original). On the other hand, the “mere

possibility of future consequences” from an injury to the plaintiff is too speculative. Lorch v. Eglin,

85 A.2d 841, 844 (Pa. 1952).

The Court finds that the phantom pain damage claim is not impermissibly speculative.

Unlike in Lorch, Lopez has suffered and continues to suffer phantom pain; Lopez suffering such

pain is not a “mere possibility.” Id. That the pain may go away in the future does not render

Lopez’s pain impermissibly speculative. Dr. Rundorff’s prognosis that Lopez’s phantom pain

could go away or could continue for Lopez’s whole life, and that there is no way to know whether

it will go away in the future or not, is analogous to the opinion that it “may “possibly be

permanent or may possibly get better within a year,’” which is a proper damages claim in

Pennsylvania and the jury may find “some future disability.” Boyle, 170 A.2d at 867 (quoting

Stevenson, 93 A.2d at 240). The only limitation on such a damages claim is that it cannot be the

basis for a finding by the jury that his phantom pain will be permanent. Id. (quoting Stevenson,

93 A.2d at 240).

12. The Court Grants Defendant’s Motion to Exclude Evidence Regarding all Track

Inspection Documents and any Testimony Regarding Track Maintenance or Repair

CSXT moves to exclude any evidence regarding track inspection documents or testimony

regarding track maintenance or repair because: (1) the evidence is not relevant to the remaining

claim, (2) Lopez never raised any allegations that defects in the track caused the incident, and

(3) any relevance is substantially outweighed by the danger of unfair prejudice, misleading the

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jury, or confusing the issues. (ECF No. 184 at 2) CSXT contends that maintenance and repair

documents and similar testimony “have nothing to do with the handling and operation of the

train” so are not relevant to Lopez’s claim. (ECF No. 185 at 3) Lopez has not filed a response.

The Court holds that evidence and testimony regarding track maintenance and repair is

not relevant. Such evidence would not make any fact that is of consequence in determining

whether the train crew was negligent for failing to slow or stop the train before striking Lopez

more or less probable. The condition of the track in no way relates to, or impacts, the handling

and operation of the train and any negligence by not slowing or stopping the train sooner.

13. The Court Denies Defendant’s Motion to Exclude Post-Incident Classifications of

Plaintiff

CSXT moves to exclude any documents or evidence of CSXT’s post-incident references to

Lopez as a “trespasser” because such references are irrelevant and any probative value is

substantially outweighed by the danger of unfair prejudice and misleading the jury (ECF Nos.

186, 187 at 1-6) CSXT contends that the “trespasser designation” is a “technical term-of-art used

to refer to an individual within a railroad crossing, whenever a CSXT maintains the right-of-way”

and that since Lopez was not a legal trespasser, references to him as a trespasser after the fact are

irrelevant because it did not impact the duty owed to Lopez. (ECF No. 187 at 1-3) CSXT contends

that, not only would Lopez being referred to as a “trespasser” confuse and mislead the jury, it

contends that it would be prejudiced by it because it believes Lopez is going to use the references

to him as a trespasser to incite the jury and claim that CSXT lied when it referred to Lopez as a

trespasser. (ECF No. 187 at 4-6)

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Lopez contends that the use of the word “trespasser” to refer to Lopez is relevant to:

(1) whether CSXT, through its employees, exercised reasonable care, and (2) whether punitive

damages are appropriate because it goes to the defendant's subjective appreciation of the risk of

harm and whether there was a conscious disregard of that risk. (ECF Nos. 207, 208 at 3) Lopez

contends that the train operators referring to Lopez as a trespasser immediately after the accident

is strong evidence of their state of mind. (ECF No. 208 at 3-4)

The Court denies CSXT’s motion to exclude references to Lopez as a trespasser. What the

train operators meant when they referred to Lopez as a trespasser is a question for the jury, not

the Court to decide under Rules 401 or 403. CSXT may elicit from the witnesses what they meant

when they referred to Lopez as a trespasser; and Lopez may contend that the use of the word

trespasser is suggestive of their mindset, their vigilance, and that they incorrectly believed they

owed a lower duty of care. The jury would not be confused or misled by witnesses or documents

referring to Lopez as a trespasser, and an explanation for why that term is used can be easily

explained by a witness through either direct or cross-examination. Referring to Lopez as a

trespasser, when CSXT has an opportunity to present an explanation for the use of that term,

would not prejudice CSXT, mislead the jury, or incite the passions of the jury.

14. The Court Denies Defendant’s Motion to Exclude Timothy Wagner's Deposition

Testimony and Report

CSXT contends that Timothy Wagner’s testimony and Report should be excluded because

(1) they are irrelevant to the remaining claim, and (2) they are based on hearsay, not on his own

personal knowledge, because his report merely recites what Police Chief Arthur Boring told him

about the incident. (ECF No. 189 at 5)

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Lopez contends that Wagner took pictures of the Ferndale Crossing, his testimony is

relevant to authenticate those photographs, and that Wagner will provide “factual testimony

about the crossing.” (ECF No. 209 at 1-2) He denies that Wagner previously offered any opinion

regarding CSXT’s negligence. (Id.)

The Court holds that Wagner may testify about his observations of the Ferndale Crossing

and may testify to lay the appropriate foundation for the photographs. Lopez’s response suggests

that he does not intend to have Wagner testify as to any opinions or offer any hearsay. Of course,

if Wagner were to testify as to inadmissible hearsay or offer an improper opinion, CSXT may

object at that time.

15. The Court Denies Defendant’s Motion to Exclude Evidence Regarding Locomotive

Work Packages for CSXT 2529 and CSXT 4411

CSXT moves to exclude Locomotive Work Packages for CSXT2529 and CSXT4411 because

they contain “no information regarding the remaining claim involving train handling and

operation” and any probative value they may have is substantially outweighed by the danger of

unfair prejudice and misleading the jury. (ECF No. 190; 191 at 3-5) Lopez did not file a response.

The Court denies CSXT’s motion to exclude the Locomotive Work Packages in their

entirety. CSXT did not provide the Court a copy of the Locomotive Work Packages along with

its motion. CSXT states that the Locomotive Work Packages “document the routine inspections,

repairs and maintenance of the locomotives.” (ECF No. 191 at5) Assuming the Locomotive Work

Packages contain such information, the Court would agree that they are not directly relevant to

whether the train crew’s handling and operation of the train was negligent for failing to slow or

stop before striking Lopez. However, insofar as the work packages indicate that relevant aspects

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of the locomotives were or were not in good working order—e.g., that the emergency brake was

in good working order at the time the train struck Lopez—such evidence is relevant. It would

tend to exclude the possibility that the failure to slow or stop before striking Lopez was the result

of the locomotive themselves. It would also tend to show that the train could have stopped had

the emergency brake been timely engaged, and thus such evidence would tend to suggest that

the cause of the accident was the train crew themselves. In other words, the evidence that the

locomotives were in good working order could make it more probable that the cause of the

accident was the negligence of the train crew and, specifically, that the negligence of the train

crew was the proximate cause of the train striking Lopez.

The probative value of the Locomotive Work Packages, insofar as they document that

relevant aspects of the train were in good working order at the time the train struck Lopez, are

not substantially outweighed by the danger of unfair prejudice or misleading the jury. CSXT

asserts that the Locomotive Work Packages would be “highly confusing, misleading, and

prejudicial” but does not explain why they would be. Instead, CSXT simply reiterates that the

work packages are not relevant. (ECF No. 191 at 5) The Court struggles to find any prejudice

from evidence that relevant aspects of the locomotives were, or were not, in good working order

at the time of the accident. Although simply admitting hundreds (or thousands) of pages of

inspection, repair, or maintenance logs to the jury without any explanation of what they are or

what they mean could certainly be confusing to the jury, such risk of confusion would be

mitigated by a witness explaining what the records indicate. If CSXT has specific aspects of the

Locomotive Work Packages that it believes are irrelevant or would be prejudicial, CSXT is free to raise

that more specific objection to the work packages.

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16. The Court Denies Defendant’s Motion to Exclude Evidence Regarding any

Locomotive Incident History Reports

CSXT moves to exclude evidence of the “Locomotive Incident History Reports for

Locomotives CSXT2529 and CSXT4411.” (ECF Nos. 170, 171). The reports include repair and

maintenance information for the locomotives, both before and after the incident here. But CSXT

contends that such information is not relevant because Lopez's claim is for negligent handling

and operation of the train by not slowing or stopping before it struck Lopez and the claim does

not allege that the locomotives were defective. (ECF No. 171 at 3) Further, determining whether

the operators of the train were negligent in failing to slow or stop the train does not depend on

or involve the condition of the locomotives. (Id.) CSXT also contends that any probative value

the reports would have is substantially outweighed by the danger of unfair prejudice and

misleading the jury. (ECF No. 171 at 3) Lopez did not filed a response.

The Court denies CSXT’s motion to exclude the locomotive incident history reports in

their entirety. CSXT did not provide the Court a copy of the reports. CSXT states that the incident

history reports “detail repairs and maintenance performed on the locomotives after an incident.”

(ECF No. 171 at 3) Assuming the reports contain such information, the report are relevant for the

same reasons as the work packages, discussed above. The work packages would be relevant if

they indicate that relevant aspects of the locomotives were or were not in good working order at

the time of the incident. Also, for the same reasons discussed above about the work packages,

the Court finds that the probative value of the incident reports is not substantially outweighed

by the danger of unfair prejudice or misleading the jury. If CSXT has specific aspects of the

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reports that it believes would be irrelevant or prejudicial, CSXT may raise a more specific

objection during trial.

17. The Court Grants Defendant’s Motion to Exclude all Documentary and Testimonial

Evidence Regarding any Federal Railroad Administration Incident Reports Filed

Related to this Matter

CSXT moves to exclude any Federal Railroad Administration (“FRA”) Incident Reports

about the incident in this case because such reports are inadmissible under federal law. (ECF

Nos. 166 at 1-2; 167) Lopez has not filed a response.

Railroad carriers are required to file a report with the Secretary of Transportation “on all

accidents and incidents resulting in injury or death to an individual.” 49 U.S.C. § 20901(a). “No

part of an accident or incident report filed by a railroad carrier under section 20901 of this title or

made by the Secretary of Transportation under section 20902 of this title may be used in a civil

action for damages resulting from a matter mentioned in the report.” 49 U.S.C. § 20903; see 49

C.E.R. § 225.7(b).

CSXT seeks to exclude any such reports that were filed regarding the incident at issue in

this case, and specifically seeks to exclude: (1) FRA Form 6180.57, Highway-Rail Grade Crossing

Accident/Incident Report (ECF No. 167-1 at 2); and (2) FRA Form 6180.97, Initial Rail Equipment

Accident/Incident Record (ECF No. 167-1 at 3-5). Both forms fall within § 20901(a) and are

inadmissible in this case. See 49 C.F.R. §§ 225.7(b), 225.11, 225.19(b), 225.21. Therefore, the Court

grants CSXT’s motion to exclude FRA incident reports about the incident in this case. See

Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 186 (3d Cir. 2013).

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18. The Court Denies Defendant's Motion to Exclude the Opinions of Plaintiff's Expert

Mr. Colon R. Fulk

CSXT moves to exclude the opinions of Colon R. Fulk, arguing that his opinions are not

relevant, are speculative, and are not the product of reliable scientific principles and methods.

(ECF Nos. 140, 141) CSXT contends that “in almost all respects” Fulk’s opinions were rendered

irrelevant by the Court’s summary judgment decision. (ECF No. 141 at 2-3) However, CSXT

does not explain in its motion what opinions it believes are now irrelevant. CSXT contends that

any of Fulk’s opinions regarding the negligent handling and operation of the train for failing to

slow or stop before striking Lopez are not the product of reliable principles and methods. (ECF

No. 141 at 3-6) It contends that his opinions are speculation because: (1) they are based solely

upon self-serving statements that are unsubstantiated; (2) he fails to use sufficient facts or data in

support and he only cites to a limited number of references in the depositions as support; (3) he

did not visit the Ferndale Crossing or measure and calculate stopping distances; and (4) he “did

not apply any method in arriving at his ‘conclusions’ regarding the crew’s ‘train handling.” (ECF

No. 141 at 4)

Further, CSXT contends that Fulk relied on a photograph of a train cab that was neither

the locomotive cab involved in this accident nor a CSXT train at all; that he cites to no rule,

requirement, or regulation to support his conclusion that the emergency brake was not deployed

soon enough; and that he relies on his own subjective belief of what the train crew should have

done. (ECF No. 141 at 5)

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CSXT specifically identifies three opinions of Fulk that they object to: (1) the train crew

was inattentive; (2) the train crew failed to keep the proper lookout; and (3) the train crew failed

to timely apply the emergency brake. (ECF No. 141 at 5-6)

Lopez argues that Fulk’s stating that it would be “mere speculation to opine as to what

was going on inside the cab of the locomotive” was taken out of context by CSXT because the

next sentence of his report is: “However, it certainly is my opinion the actions were not that of a

well trained and prudent train crew.” (ECF No. 224 at 4; 141-1 at 18) Fulk then goes on to state:

During my 40 years of railroading, I have experienced it to be extremely rare that

the one crew member furthest away form the emergency brake valve is the person

that applies emergency braking to the train. Both, the engineer and the conductor,

sitting in the front seat, had an emergency brake valve within inches of their reach

and neither employee attempted to stop the train.

(ECF No. 141-1 at 18) The Court finds that, when read as a whole, Fulk’s opinion is not mere

speculation but based on his knowledge and experience. In some sense, Fulk is correct that it is

mere speculation to opine on what was going on inside the cab since he was not there, but his

opinion is that, whatever was going on, the crew was inattentive because, had they been attentive,

they would have applied the emergency brake sooner.

CSXT contends that Fulk’s opinion that the train crew failed to keep the proper lookout

ignores the contrary testimony of Rhoads that the train crew were being diligent, does not

consider that Churby was a trainee and that there were three people in the cab rather than the

normal two, and Fulk cites to no rule or regulation that the third person should have pulled the

emergency brake. (ECF No. 141 at 5-6) Lopez contends that Rhoads was a certified and qualified

conductor. (ECF No. 224 at 4) The Court finds that this opinion is permissible for the same

reasons as the previous opinion. Indeed, they are virtually identical—the train crew was

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inattentive and the train crew failed to keep a proper lookout. In reaching his opinions, Fulk

reviewed and relied on a number of items, including videos and the testimony of the train

operators. Of course, he also relies on his own experience. Essentially, CSXT’s objections with

this opinion are that it disagrees with the foundation and it believes that the evidence actually

shows the opposite—that the crew was attentive. CSXT is free to present evidence to this effect

and to make these arguments at trial, but these objections are insufficient for the Court to exclude

Fulk’s testimony.

CSXT objects to Fulk’s opinion that the train crew failed to timely apply the emergency

brake because it contends that such an opinion is based merely on his own personal speculation

and not on any facts or reliable methodology; he does not state when the train crew should have

applied the emergency brake; and does not calculate whether applying the emergency brake at

that time would have avoided the collision. (ECF No. 141 at 6) For the same reasons as the

previous two opinions, the Court finds this opinion admissible. In reaching this conclusion, Fulk

details the deposition testimony of Churby, Rhoads, and Spicula. (ECF No. 141-1 at 13-18) Given

Fulk’s extensive training and experience, his opinion that the crew failed to timely apply the

emergency brake based on their descriptions of what occurred is permissible. Accordingly, the

Court does not exclude the expert testimony of Fulk.

19. The Court Denies in Part Defendant’s Motion to Partially Exclude the Opinions and

Testimony of Dr. Robert L. Rundorff, M.D.

CSXT moves to exclude two opinions and related testimony of Dr. Rundorff. (ECF Nos.

146, 147) First, CSXT contends that testimony and opinions regarding Lopez’s work

restrictions/impairments and memory loss as a result of Lopez suffering a concussion and

-35-

traumatic brain injury should be excluded because Dr. Rundorff admitted that he had insufficient

facts to reach these conclusions because Lopez failed to attend the necessary treatment and

therapy appointments. (ECF Nos. 146 at 2; 147 at 3) Second, CSXT argues that Dr. Rundorff’s

testimony and opinions regarding Lopez’s back pain should be excluded as unreliable because

Dr. Rundorff was not aware of Lopez’s previous back injuries and, therefore, did not account for

this alternative source of Lopez’s back pain.

Lopez agrees with CSXT that Dr. Rundorff stated that he could not reach any medical

conclusions about whether Lopez’s memory loss or traumatic brain injury would affect his ability

to work and that he did not intend to attempt to elicit any such opinions from Dr. Rundorff. (ECF

No. 218 at 3) Therefore, the motion with regard to this evidence is moot since both parties agree

that Dr. Rundorff did not give such an opinion.

“In considering the reliability of testimony on causation, a court should consider whether

the expert has adequately accounted for obvious alternative explanations.” Miller v. United States,

287 F. App’x 982, 984 (3d Cir. 2008) (per curiam) (citation and internal quotation marks omitted).

Dr. Rundorff repeatedly references a 2007 MRI during his deposition, comparing Lopez’s MRI

after the accident to it, and states that “the fact that [Lopez] had an MRI of his back in 2007 would

suggest that at some point in the past he must have had some issues with his back.” (ECF No.

218-1 at 202) Dr. Rundorff considered the 2007 MRI in his evaluation and treatment of Lopez.

(Id. at 182) During the deposition, Dr. Rundorff was asked if Lopez’s prior conditions, in

particular a herniated disc, were a factor in causing him ongoing pain after the accident and Dr.

Rundorff opined that it was his opinion that Lopez’s “ongoing back problems primarily relate to

the soft tissue pain, which is soft tissue in nature.” (Id. at 183)

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The Court holds that Dr. Rundorff’s opinion regarding Lopez’s back pain is admissible.

In Miller, the expert’s opinion was based solely on “subjective complaints” and the resolution of

symptoms after surgery. Miller, 287 F. App’x at 984. Here, however, Dr. Rundorff also had an

MRI on which to base his opinion and the 2007 MRI to which he could compare it. (Id. at 182-

185) Although Dr. Rundorff was not aware of why Lopez had an MRI of his back in 2007, the

existence of the 2007 MRI alerted him to some pre-existing back injury. Further, that he compared

the two MRIs in arriving at his conclusions demonstrates that he did account for alternative

sources of causation that would have occurred prior to the 2007 MRI.

20. The Court Denies Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert

Dr. Carl M. Berkowitz

CSXT moves to exclude the opinions of Dr. Carl Berkowitz, arguing that his opinions are

irrelevant, that he is not qualified to render an opinion regarding train handling, that his opinions

lack foundation and are speculative and unreliable, and he fails to utilize any methods in arriving

at his opinions and conclusions. (ECF No. 136 at 2) CSXT objects to Dr. Berkowitz’s opinions

that CSXT personnel were negligent in the operation and handling of the train by: (1) not

providing the proper lookout; (2) failing to do anything at their disposal to avert the collision;

(3) choosing not to slow the train upon immediately observing Lopez; and (4) failing to properly

control the train. (ECF No. 137 at 4-5) CSXT contends that, in reaching these opinions, Dr.

Berkowitz: (a) fails to use sufficient facts or data in support of his conclusions because he does

not rely on any record evidence to reach his conclusions; (b) his opinions are not the product of

reliable principles and methods because he does not articulate in his report any methods that he

used; and (c) his opinions are based solely on his own subjective beliefs. (ECF No. 137 at 5)

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Further, CSXT contends that Dr. Berkowitz lacks qualifications and a foundation for his opinions

because his background “deals with crossing design, planning and safety—not train handling

and operation”; he has never been a train operator; he has never been to the Ferndale Crossing;

he has never spoken with Lopez; he did not consider whether Lopez did not “stop, look, or listen”

when he rendered his opinion; he opined that the train crew was inadequately trained without

reviewing any training documents; and has “used his own ‘interpretation’ and extrapolation of

the train crew’s testimony” to opine that the crew understood Lopez was not going to stop. (ECF

No. 137 at 5)

Lopez argues that Dr. Berkowitz is qualified because he has “extensive experience in

designing and overseeing entire transportation systems” which includes trains and train crews

as well as establishing the safety rules that train crew are to follow. (ECF No. 226 at 3) He

contends that Dr. Berkowitz’s opinions are relevant to evaluate the train crew’s subjective

appreciation of the specific hazard and relevant to CSXT’s affirmative defenses regarding Lopez’s

negligence. (Id.).

The Court holds that Dr. Berkowitz’s testimony is relevant to the remaining claim. In

addition, Dr. Berkowitz’s testimony is relevant to the issue of whether Lopez was contributorily

negligent. The issue of Lopez’s negligence will expand the scope of relevant evidence into areas

of the train’s operation which might otherwise not be relevant.

The Court further holds that Dr. Berkowitz is qualified to testify as an expert on the issues

objected to by CSXT. Dr. Berkowitz has a Ph.D. in Transportation Planning and Engineering and

has significant experience over the course of several decades as an engineer working on public

transportation systems, including experience with railroads and crossing design, planning and

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safety. (ECF No. 225-1) As Lopez notes in his response, Dr. Berkowitz’s expertise regarding

railroad crossings necessarily requires significant expert knowledge regarding train handling and

operations. (ECF No. 226 at 3-4) Expertise regarding crossing design and safety requires

expertise regarding the component parts, including how trains operate, human factors relating

to train crews, and rules and regulations for operating trains. It does not seem possible to be an

expert in designing railroad crossings and in railroad crossing safety without also being an expert

in the operations of trains that will be using the crossings—train operations are a critical

component of designing crossings and crossing safety. To the extent that CSXT contends that an

individual with experience physically operating a train would be a more authoritative or better

expert than Dr. Berkowitz on these issues, that may very well be so. But that is not the issue here.

See In re Paoli R.R. Yard PCB Litig., 35 F.3d at 744 (stating that a party does not have to

“demonstrate to the judge by a preponderance of the evidence that the assessments of their

experts are correct, they only have to demonstrate by a preponderance of evidence that their

opinions are reliable”). Dr. Berkowitz’s opinions are “based on extensive and specialized

experience” that he applies to the facts of this case. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.

137, 156 (1999); Langbord v. U.S. Dep't of the Treasury, No. CIV.A. 06CV05315, 2009 WL 1312576, at

*3 (E.D. Pa. May 7, 2009) (“It is also well-established that an expert's reliable methodology may

consist primarily of applying his personal knowledge and experience to the facts of a case.”).

Further, CSXT can probe this during cross-examination. Accordingly, Dr. Berkowitz’s expert

opinions satisfy the requirements of Rule 702.

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21. Defendant’s Motions to Exclude the Opinions of Plaintiff's Expert Mr. Richard

Riley are Moot.

CSXT filed three motions with respect to the testimony of Richard Riley: (1) exclude the

testimony of Riley because Lopez did not comply with Federal Rule of Civil Procedure 26 and

timely provide CSXT with Riley’s full and final report, Riley lacks the requisite qualifications or

expertise to opine as an expert, and Riley’s opinions lack foundation, are speculative, and are not

reliable. (ECF Nos. 142 at 2-3; 143); (2) preclude the testimony of Riley regarding his status as an

amputee because such testimony is irrelevant and any probative value is substantially

outweighed by the danger of unfair prejudice (ECF Nos. 180; 181 at 2-4); and (3) exclude the

testimony of Riley for not providing all of the opinions that Riley will express or the basis and

reasons for them in violation of Federal Rules of Civil Procedure 26 and 37 (ECF Nos. 144, 145).

Lopez did not file a response to these three motions. At the pretrial conference held on

October 23, 2020, counsel for Lopez stated that Riley would not be called as a witness.

Accordingly, CSXT’s three motions about the testimony of Riley (ECF Nos.142, 144, 180) are moot.

IV. Conclusion

For the forgoing reasons, the Court:

1. DENIES Defendant's Motion to Exclude Testimony Regarding Plaintiff's Alleged

Need for Adaptive Equipment (ECF Nos. 150, 151);

2. GRANTS Defendant's Motion to Exclude Evidence Relating to Plaintiffs Allegations

that CSXT Modified and/or Erased any Recorded Data (ECF Nos. 152, 153);

3. GRANTS Defendant’s Motion to Exclude Evidence Relating to Plaintiff's Allegations

that CSXT “Blames the Public” for Accidents at Crossings (ECF Nos. 154, 155);

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4. GRANTS IN PART and DEFERS IN PART Defendant’s Motion to Exclude Evidence

Regarding Plaintiff's Competency to Participate in Trial (ECF Nos. 156, 157);

5. GRANTS IN PART Defendant's Motion to Exclude Evidence Regarding any Crossing

Incidents or Accidents at Other than the Ferndale Crossing (ECF Nos. 160, 161);

6. DENIES Defendant’s Motion to Exclude Evidence Relating to Claims Decided on

Summary Judgment (ECF Nos. 162, 163);

7. DEFERS Ruling on Defendant’s Motion to Exclude Evidence of the Parties’ Financial

Condition (ECF No. 164, 165);

8. GRANTS Defendant’s Motion to Exclude all Documentary and Testimonial

Evidence Regarding any Federal Railroad Administration Incident Reports Filed

Related to this Matter (ECF Nos. 166, 167);

9. GRANTS Defendant's Motion to Exclude Evidence Regarding United States

Hazardous Material Instruction for Rail Effective 1-1-12 (ECF Nos. 168, 169);

10. DENIES Defendant's Motion to Exclude Evidence Regarding any Locomotive

Incident History Reports (ECF Nos. 170, 171);

11. DENIES Defendant’s Motion to Exclude Evidence Regarding Photographs of a

Locomotive Cab Interior (ECF Nos. 172, 173);

12. DENIES Defendant's Motion to Exclude Evidence of any and all References to the

Manual of Uniform Traffic Control Devices to show Negligence (ECF Nos 174, 175);

13. GRANTS IN PART Defendant’s Motion to Exclude Evidence Regarding any Other

Incidents or Accidents (ECF Nos. 176, 177);

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14. DENIES Defendant’s Motion to Exclude Speculative Testimony Regarding Plaintiff's

Phantom Pain Damage Claim (ECF Nos. 178, 179);

15. DENIES Defendant’s Motion to Exclude Post-Incident Classifications of Plaintiff

(ECF No. 186, 187);

16. DENIES Defendant’s Motion to Exclude Evidence Regarding Locomotive Work

Packages for CSXT 2529 and CSXT 4411 (ECF Nos. 190, 191);

17. GRANTS Defendant’s Motion to Exclude Evidence Regarding all Track Inspection

Documents and any Testimony Regarding Track Maintenance or Repair (ECF Nos.

184, 185);

18. DENIES Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Dr. Carl M.

Berkowitz (ECF Nos. 136, 137)

19. DENIES Defendant's Motion to Exclude the Opinions of Plaintiff's Expert Mr. Colon

R. Fulk (ECF Nos. 140, 141);

20. DENIES IN PART Defendant's Motion to Partially Exclude the Opinions and

Testimony of Dr. Robert L. Rundorff, M.D. (ECF Nos. 146, 147);

21. DENIES Defendant's Motion to Exclude Timothy Wagner's Deposition Testimony

and Report (ECF Nos. 188, 189);

22. Finds that Defendant's Motion to Preclude Plaintiff's Expert Mr. Richard Riley’s

Testimony Regarding his Status as an Amputee (ECF Nos. 180, 181) is MOOT;

23. Finds that Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Mr.

Richard Riley (ECF Nos. 142, 143) is MOOT; and

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24. Finds that Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Mr.

Richard Riley Pursuant to Fed. R. Civ. P. 37 (ECF Nos. 144, 145) is MOOT.

An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JONATHAN LOPEZ, by his cousin and

duly appointed guardian ad litem, ) CIVIL ACTION NO. 3:14-257

RAMONA ILARRAVA )

)

Plaintiff, )

) JUDGE KIM R. GIBSON

v. )

)

CSX TRANSPORTATION, INC., )

)

Defendant. )

ORDER

AND NOW, this Go day of July, 2021, upon consideration of Plaintiff's Motions to:

1. Exclude Testimony Regarding Plaintiff's Alleged Need for Adaptive Equipment (ECF

Nos. 150, 151);

2. Exclude Evidence Relating to Plaintiff's Allegations that CSXT Modified and/or

Erased any Recorded Data (ECF Nos. 152, 153);

3. Exclude Evidence Relating to Plaintiff's Allegations that CSXT “Blames the Public” for

Accidents at Crossings (ECF Nos. 154, 155);

4. Exclude Evidence Regarding Plaintiff's Competency to Participate in Trial (ECF Nos.

156, 157);

5. Exclude Evidence Regarding any Crossing Incidents or Accidents at Other than the

Ferndale Crossing (ECF Nos. 160, 161);

6. Exclude Evidence Relating to Claims Decided on Summary Judgment (ECF Nos. 162,

163);

7. Exclude Evidence of the Parties’ Financial Condition (ECF No. 164, 165);

8. Exclude all Documentary and Testimonial Evidence Regarding any Federal Railroad

Administration Incident Reports Filed Related to this Matter (ECF Nos. 166, 167);

9. Exclude Evidence Regarding United States Hazardous Material Instruction for Rail

Effective 1-1-12 (ECF Nos. 168, 169);

10. Exclude Evidence Regarding any Locomotive Incident History Reports (ECF Nos.

170, 171);

11. Exclude Evidence Regarding Photographs of a Locomotive Cab Interior (ECF Nos.

172, 173);

12. Exclude Evidence of any and all References to the Manual of Uniform Traffic Control

Devices to show Negligence (ECF Nos 174, 175);

13. Exclude Evidence Regarding any Other Incidents or Accidents (ECF Nos. 176, 177);

14. Exclude Speculative Testimony Regarding Plaintiff's Phantom Pain Damage Claim

(ECF Nos. 178, 179);

15. Exclude Post-Incident Classifications of Plaintiff (ECF No. 186, 187);

16. Exclude Evidence Regarding Locomotive Work Packages for CSXT 2529 and CSXT

4411 (ECF Nos. 190, 191);

17. Exclude Evidence Regarding all Track Inspection Documents and any Testimony

Regarding Track Maintenance or Repair (ECF Nos. 184, 185);

18. Exclude the Opinions of Plaintiffs Expert Dr. Carl M. Berkowitz (ECF Nos. 136, 137)

19. Exclude the Opinions of Plaintiff's Expert Mr. Colon R. Fulk (ECF Nos. 140, 141);

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20. Partially Exclude the Opinions and Testimony of Dr. Robert L. Rundorff, M.D. (ECF

Nos. 146, 147);

21. Exclude Timothy Wagner’s Deposition Testimony and Report (ECF Nos. 188, 189)

22. Preclude Plaintiff's Expert Mr. Richard Riley’s Testimony Regarding his Status as an

Amputee (ECF Nos. 180, 181);

23. Exclude the Opinions of Plaintiff's Expert Mr. Richard Riley (ECF Nos. 142, 143); and

24. Exclude the Opinions of Plaintiff's Expert Mr. Richard Riley Pursuant to Fed. R. Civ.

P. 37 (ECF Nos. 144, 145);

and for the reasons set forth in the accompanying Memorandum Opinion, it is HEREBY

ORDERED that the Court:

1. DENIES Defendant's Motion to Exclude Testimony Regarding Plaintiff's Alleged

Need for Adaptive Equipment (ECF Nos. 150, 151);

2. GRANTS Defendant's Motion to Exclude Evidence Relating to Plaintiffs Allegations

that CSXT Modified and/or Erased any Recorded Data (ECF Nos. 152, 153);

3. GRANTS Defendant’s Motion to Exclude Evidence Relating to Plaintiff's Allegations

that CSXT “Blames the Public” for Accidents at Crossings (ECF Nos. 154, 155);

4, GRANTS IN PART and DEFERS IN PART Defendant's Motion to Exclude Evidence

Regarding Plaintiff's Competency to Participate in Trial (ECF Nos. 156, 157);

5. GRANTS IN PART Defendant's Motion to Exclude Evidence Regarding any Crossing

Incidents or Accidents at Other than the Ferndale Crossing (ECF Nos. 160, 161);

6. DENIES Defendant’s Motion to Exclude Evidence Relating to Claims Decided on

Summary Judgment (ECF Nos. 162, 163);

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7. DEFERS Ruling on Defendant’s Motion to Exclude Evidence of the Parties’ Financial

Condition (ECF No. 164, 165);

8. GRANTS Defendant's Motion to Exclude all Documentary and Testimonial

Evidence Regarding any Federal Railroad Administration Incident Reports Filed

Related to this Matter (ECF Nos. 166, 167);

9. GRANTS Defendant's Motion to Exclude Evidence Regarding United States

Hazardous Material Instruction for Rail Effective 1-1-12 (ECF Nos. 168, 169);

10. DENIES Defendant’s Motion to Exclude Evidence Regarding any Locomotive

Incident History Reports (ECF Nos. 170, 171);

11. DENIES Defendant's Motion to Exclude Evidence Regarding Photographs of a

Locomotive Cab Interior (ECF Nos. 172, 173);

12. DENIES Defendant’s Motion to Exclude Evidence of any and all References to the

Manual of Uniform Traffic Control Devices to show Negligence (ECF Nos 174, 175);

13. GRANTS IN PART Defendant's Motion to Exclude Evidence Regarding any Other

Incidents or Accidents (ECF Nos. 176, 177);

14. DENIES Defendant's Motion to Exclude Speculative Testimony Regarding Plaintiff's

Phantom Pain Damage Claim (ECF Nos. 178, 179);

15. DENIES Defendant’s Motion to Exclude Post-Incident Classifications of Plaintiff

(ECF No. 186, 187);

16. DENIES Defendant’s Motion to Exclude Evidence Regarding Locomotive Work

Packages for CSXT 2529 and CSXT 4411 (ECF Nos. 190, 191);

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17. GRANTS Defendant’s Motion to Exclude Evidence Regarding all Track Inspection

Documents and any Testimony Regarding Track Maintenance or Repair (ECF Nos.

184, 185);

18. DENIES Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Dr. Carl M.

Berkowitz (ECF Nos. 136, 137)

19. DENIES Defendant's Motion to Exclude the Opinions of Plaintiff’s Expert Mr. Colon

R. Fulk (ECF Nos. 140, 141);

20. DENIES IN PART Defendant's Motion to Partially Exclude the Opinions and

Testimony of Dr. Robert L. Rundorff, M.D. (ECF Nos. 146, 147);

21. DENIES Defendant’s Motion to Exclude Timothy Wagner's Deposition Testimony

and Report (ECF Nos. 188, 189);

22. Finds that Defendant’s Motion to Preclude Plaintiffs Expert Mr. Richard Riley’s

Testimony Regarding his Status as an Amputee (ECF Nos. 180, 181) is MOOT;

23. Finds that Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Mr.

Richard Riley (ECF Nos. 142, 143) is MOOT; and

24. Finds that Defendant’s Motion to Exclude the Opinions of Plaintiff's Expert Mr.

Richard Riley Pursuant to Fed. R. Civ. P. 37 (ECF Nos. 144, 145) is MOOT.

BY THE COURT:

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE

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