The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TRAVIS SCHMOOCK
CIVIL ACTION
VERSUS
NO. 20-CV-309-JWD-SDJ
THE KANSAS CITY SOUTHERN
RAILWAY COMPANY, ET AL.
RULING ON KANSAS CITY SOUTHERN RAILWAY COMPANY’S MOTION IN
LIMINE TO EXCLUDE SUBSEQUENT REMEDIAL MEASURES
Before the Court is the Motion in Limine to Exclude Subsequent Remedial Measures (Doc.
63) (“Motion”) brought by defendant Kansas City Southern Railway Company (“KCSR” or
“Defendant”). It is opposed by plaintiff Travis Schmoock (“Plaintiff” or “Schmoock”). (Doc. 67.)
No reply brief was filed. The Court has carefully considered the law, facts in the record, and
arguments and submissions of the parties and is prepared to rule. For the following reasons, the
Motion is deferred until trial.
I. BACKGROUND
On July 25, 2018, Plaintiff was involved in a single vehicle motorcycle accident at the
Chenal Road railroad crossing in Pointe Coupee Parish, Louisiana. (Doc. 59 at 7, Pretrial Order
(“PTO”), Established Facts.) Plaintiff contends “a loose board from the railroad track popped up
and hit the back tire of [Plaintiff’s] motorcycle, causing him to lose control and crash, thereby
causing [him] injuries and damages . . . .” (Id. at 1-2.) Defendant argues that the crossing was
properly maintained, it was not negligent, and that the accident and damages “were due solely as
a result of [Plaintiff’s] negligence.” (Id. at 3.)
II. THE MOTION
In its Motion, KCSR asks the Court to prohibit Plaintiff from introducing evidence,
arguing, or referring to “remedial measures taken or made by KCSR at the subject grade crossing
subsequent to the occurrence of the instant accident including, but not limited to, the addition of
bolts or screws to the crossing surface planks.” (Doc. 63 at 1.) KCSR argues that the admission of
such evidence would violate Federal Rule of Evidence 407, which prohibits the introduction of
measures taken subsequent to the subject accident when the evidence is introduced for the purpose
of proving negligence, culpable conduct, a defect in a product or its design, or a need for warning
or instruction. (Id.) KCSR specifically asks the Court to preclude the introduction of argument or
evidence regarding subsequent repairs to the crossing including “new hardware . . . installed to
secure the loose timbers . . . .” which Plaintiff argues caused the accident. (Doc. 63-1 at 1-2.)
III. THE OPPOSITION
Plaintiff urges the Court to deny the Motion because it is “overly broad” and the disputed
evidence may be admissible when offered for a purpose other than those mentioned specifically in
Rule 407. (Doc. 67 at 2.) Plaintiff does not say specifically what other purpose this evidence might
be offered for. Plaintiff also suggests that Rule 407 does not prohibit “evidence of repairs that
render [the] situation the same as it was at [the] time of [the] accident. (Id. at 1 (citation omitted).)
IV. STANDARD
Rule 407 states:
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm
less likely to occur, evidence of the subsequent measures is not admissible
to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or--if disputed--proving ownership, control, or the feasibility
of precautionary measures.
Fed. R. Evid. 407.
“Rule 407 does not preclude the admission of subsequent remedial measures on grounds
other than to prove culpability.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 429 (5th Cir.
2006). So, for instance, in the context of a products liability case, “[t]he admission of evidence of
changes made merely to improve a product, as distinguished from remedial measures that make
an ‘injury or harm less likely to occur,’ is not barred by the rule.” Novick v. Shipcom Wireless, Inc.,
946 F.3d 735, 739 (5th Cir. 2020) (quoting Brazos River Auth., 469 F.3d at 428.) If disputed, such
evidence may be introduced to prove “ownership, control, or the feasibility of precautionary
measures.” Fed. R. Evid. 407.
V. ANALYSIS
The Court agrees with Plaintiff that KCSR’s motion is so broad and devoid of context that
it is impossible at this time to rule on it. With the exception of “the addition of bolts or screws to
the crossing surface planks” (Doc. 63 at 1), KCSR provides no other specific pieces of evidence it
believes may be introduced that run afoul of Rule 407’s prohibition. Without knowing what
evidence is being challenged and the purpose for which the evidence is being introduced, it is
impossible for the Court to determine its admissibility vel non.
Even as to the one specific item KCSR mentions, (the addition of bolts or screws to the
crossing surface planks of the accident crossing), it is not at all clear whether this evidence might
be admissible for a purpose other than to prove KCSR’s negligence or culpable conduct, such as
the feasibility of adding the bolts and screws before the accident, or to show KCSR’s control over
the crossing for purposes of making such improvements.
Therefore, the Court defers ruling on KCSR’s Motion until trial. However, counsel for
Plaintiff is instructed that if he intends to introduce evidence of measures taken by KCSR after the
accident sued on with respect to the crossing in question, he should alert the Court and counsel
outside the presence of the jury so that the issue may be taken up at that time.
VI. CONCLUSION
For the reasons stated above, the Motion in Limine to Exclude Subsequent Remedial
Measures brought by defendant Kansas City Southern Railway Company (Doc. 63) is deferred
until trial.
Signed in Baton Rouge, Louisiana, on February 19, 2025.
S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA