In re: East Palestine Train Derailment

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

)

IN RE: EAST PALESTINE TRAIN ) CASE NO. 4:23-cv-00242

DERAILMENT )

) JUDGE BENITA Y. PEARSON

)

) OMNIBUS ORDER

) [Resolving Motions in Limine]

Trial commences on March 31, 2025. The parties expected at trial have filed twenty-six

motions in limine. The Court resolves them below.

Legal Standard

A motion in limine is “made before or during trial, to exclude prejudicial evidence before

the evidence is actually offered.” United States v. Walsh, 654 F. App’x 689, 693 (6th Cir. 2016)

(quoting Luce v. United States, 469 U.S. 38, 40 n.2 (1984)). “A ruling on a motion in limine is

no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the

district court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). A court should grant

a motion in limine to exclude evidence when that evidence is plainly inadmissible. See Ind. Ins.

Co. v. Gen. Elec. Co, 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). If the court cannot determine

whether certain evidence is clearly inadmissible, it should defer ruling until trial so that questions

of foundation, relevancy, and potential prejudice can be evaluated in proper context. Id.

Rulings

1. Motion in Limine [805/849&850] To Exclude Evidence, Argument, Or Testimony

That The Class Settlement Agreement Was Not Reasonable (No. 1) Filed By Norfolk

Southern Corp., Norfolk Southern Railway Co.—GRANTED. No party may argue or solicit

testimony that the Class Action settlement or its amount was not reasonable. The Court has

ruled that the settlement was reasonable. See Order, ECF No. 557. The use of that descriptor

regarding the Class Action settlement amount is limited to a Third-Party Defendant’s argument

that its contribution should not be more than what is reasonable.

2. Motion in Limine [806/851] To Exclude Any Argument, Evidence, Or Mention Of

The Scrapping Of Components Of Car 23 (No. 2) Filed By Norfolk Southern Corp.,

Norfolk Southern Railway Co.—GRANTED. The evidence is not relevant to any claim or

defense, and any probative value is substantially outweighed by a risk of undue prejudice.

3. Motion in Limine [807/848&852] To Exclude The NTSB Final Report (No. 3)

Filed By Norfolk Southern Corp., Norfolk Southern Railway Co.—GRANTED. Both the

National Transportation Safety Board’s (“NTSB”) Final Report and Illustrated Digest are

excluded by law, see 49 U.S.C. § 1154(b) (barring admission of any “part of” a final NTSB

report).

4. Motion in Limine [808/860] To Declare Admissions Of Third-Party Plaintiff

Norfolk Southern Binding And Uncontroverted Filed By Third-Party Defendant

OxyVinyls LP—DEFERRED. The Court will revisit the requested relief during trial. No

statements, questions, or argument in reliance on the motion in limine shall be made during trial

without the Court’s ruling.

5. Motion in Limine [809/853] To Exclude Evidence Or Argument Related To

Norfolk Southern's Inspections (No. 4) Filed By Norfolk Southern Corp., Norfolk Southern

Railway Co.—DEFERRED SUBJECT TO FURTHER BRIEFING. No later than 4 p.m. on

March 26, 2025, Norfolk Southern shall identify the specific evidence it seeks to exclude; and,

within three pages, explain why it should be excluded. No reply brief shall be filed. The Court

will inquire further, if needed.

6. Motion in Limine [810/861] To Exclude Expert Testimony On Factual

Determination Filed By Third-Party Defendant OxyVinyls LP—DENIED. The Motion

seeks reconsideration of the Court’s Daubert ruling. See ECF No. 743 (granting and denying in

part motion to exclude Dr. Coates’ opinions). The Court will give an appropriate cautionary jury

instruction regarding witnesses who testify to both fact and opinion evidence.

7. Motion in Limine [811/854] To Exclude Evidence, Argument, Or Testimony

Regarding Other Derailments (No. 5) Filed By Norfolk Southern Corp., Norfolk Southern

Railway Co.—GRANTED. The Court has not made nor been requested to make a finding of

substantial similarity to the matter on trial. Even if substantially similar, the evidence is

substantially more prejudicial than probative—likely to distract the jury, delay proceedings, and

cause a trial within a trial. No witness, including, Norfolk Southern’s expert, Mr. Lunsford, may

testify about derailments other than that occurring in East Palestine, Ohio in February 2023.

8. Motion in Limine [812/847] To Exclude Evidence, Argument, Or Testimony

Regarding 2023 Thoroughbred Chemical Safety Award (No. 6) Filed By Norfolk Southern

Corp., Norfolk Southern Railway Co.—GRANTED. The award was not given to a party at

trial. Thus, it is not relevant to the matter at trial. If relevant, such evidence would be

unnecessarily distracting to the jury and substantially more prejudicial than probative of the

matter on trial.

9. Motion in Limine [813/862] To Exclude Evidence Of Financial Condition Filed

By Third-Party Defendant OxyVinyls LP—GRANTED. The evidence is not relevant to

matter on trial. If a door is opened by OxyVinyls claiming a financial inability to contribute, this

ruling will be revisited.

10. Motion in Limine [814/846] To Exclude Evidence, Argument, Or Testimony Of

Hold Harmless Agreements With Emergency Contractors (No. 7) Filed By Norfolk

Southern Corp., Norfolk Southern Railway Co.—GRANTED. Evidence of hold harmless

agreements are not relevant to the issue at trial and likely to confuse the jury and waste time on a

trial within a trial. Whether Norfolk Southern could have sued SPSI, SRS, or ESI has no bearing

on any claim or defense in this case. Norfolk Southern’s contractual agreements with these

relevant nonparties shed no light on the allegations of whether GATX negligently failed to

inspect and maintain the roller bearings on its car that caused the derailment, nor on whether

OxyVinyls provided Norfolk Southern and its contractors with erroneous emergency response

information that led to the vent and burn. Nor are the hold harmless agreements relevant to

whether Norfolk Southern and its contractors acted reasonably, given the information they had

on the ground, in recommending the vent and burn.

11. Motion in Limine [815/845&855] To Exclude Evidence, Argument, Or

Testimony Regarding The Expert Report Drafting Process And Communications Between

Experts And Counsel (No. 8) Filed By Norfolk Southern Corp., Norfolk Southern Railway

Co.—GRANTED. FED. R. CIV. P. 26(b)(4)(C) protects from disclosure communications

between counsel and experts whom file a report, unless the expert relies on the communication to

formulate an opinion or the communication relates to compensation for the expert’s study or

testimony. All evidence, argument, or testimony regarding the expert report drafting process,

expert report metadata, and communications between experts and counsel are protected work

product and is, therefore, excluded.

12. Motion in Limine [816/863] GATX Corp.'s Motion In Limine To Exclude The

Declarations Of Joe Bentrup And Alex Haase Filed By Third-Party Defendant GATX

Corp.—DENIED. Movant claims declarations are out-of-court statements which were prepared

nearly a year after the derailment and constitute inadmissible hearsay under Federal Rules of

Evidence 801 and 802, and do not meet any exceptions. The time to submit objections to the use

of this testimony under Rule 32(a) has passed, and GATX has therefore waived any objection to

the use of the deposition at trial. More to the point, both declarations appear to be admissible

under Federal Rule of Evidence 807, as indicated by Norfolk Southern, claiming, “[r]ule 807

counsels that a hearsay statement is not excluded if ‘(1) ‘the statement is supported by sufficient

guarantees of trustworthiness—after considering the totality of circumstances under which it was

made and evidence, if any, corroborating the statement,’ (2) the statement is ‘more probative on

the point for which it is offered than any other evidence that the proponent can obtain through

reasonable efforts,’ and (3) notice is given to the adverse party.’ S.C. v. Wyndham Hotels &

Resorts, Inc., 2024 WL 884672, at *2 (N.D. Ohio Mar. 1, 2024) (quoting FED. R. EVID. 807(a)

and holding that transcripts from depositions of defendant’s former employees taken in another

case were admissible under the residual exception).” See Norfolk Southern’s Opp’n, ECF No.

863 at PageID #: 60276.

13. Motion in Limine [817/864] To Exclude Evidence Of Norfolk Southern's

Remediation Efforts, Cleanup Costs, And Aid To The East Palestine Community Filed By

Third-Party Defendant OxyVinyls LP—GRANTED WITH CAUTION. Norfolk Southern

conceded that the only damages that it is seeking from Third-Party Defendants in this action are

contribution damages for some unidentified portion of the amount Norfolk Southern agreed to

pay the Class Plaintiffs in settlement. See, e.g., Norfolk Southern’s Opp’n to Mot. to Strike, ECF

No. 472 at PageID #: 7144; see also Hearing Tr. of 01/31/2024, ECF No. 363 at PageID #: 4805.

In Norfolk Southern’s words: “it is asking only that OxyVinyls contribute its proportionate share

of the amount Norfolk Southern has paid and will pay to Plaintiffs pursuant to the $600 million

settlement.” Opp’n to OxyVinyls’ Mot. for Summ. J., ECF No. 676 at PageID #: 47049.

Evidence of remediation is not relevant to the matter at trial, unless a door is opened, and the

Court revises this ruling.

14. Motion in Limine [818/866] GATX Corp.'s Motion In Limine To Preclude

Evidence And Argument Concerning Any References To Discovery Disputes Filed By

Third-Party Defendant GATX Corp.—GRANTED WITH CAUTION. No evidence of

discovery disputes shall be offered unless a door is opened requiring the Court to revisit this

issue and revise the herein ruling.

15. Motion in Limine [819/856] To Exclude Evidence, Argument, Or Testimony

Regarding Employee And Other Non-Expert Witness Compensation (No. 9) Filed By

Norfolk Southern Corp., Norfolk Southern Railway Co.—GRANTED. Norfolk Southern’s

motion may be shy of detail but when details of the sort added by GATX are considered the

ruling is unchanged. Jurors understand that employment is compensated. The amount of

compensation is not relevant, and, if it were, it would be more prejudicial than probative of the

matter at trial. That a witness has been compensated may be elicited at trial, but not the amount

of that compensation.

16. Motion in Limine [820/843&857] To Exclude Evidence And Argument

Regarding Attorney Compensation, Information About The Size Of Parties' Attorneys'

Law Firms, Number Of Attorneys, Or The Use Of Jury Consultants By Parties' Counsel

(No. 10) Filed By Norfolk Southern Corp., Norfolk Southern Railway Co.—GRANTED.

No evidence of the size of parties' attorneys' law firms, number of attorneys, or the use of jury

consultants shall be introduced or alluded to by parties' counsel at trial. Additionally, Norfolk

Southern shall not introduce evidence of its good citizenship or of a “make it right” campaign.

The latter ruling is subject to being revisited, if a door is opened.

17. Motion in Limine [821/867] To Exclude Evidence Of Changes And

Recommended Changes To OxyVinyls' Safety Data Sheet And Response Policies Filed By

Third-Party Defendant OxyVinyls LP—DEFERRED SUBJECT TO FURTHER

BRIEFING. Evidence of changes and recommended changes to the SDS may be admitted,

under certain circumstances. No later than 4 p.m. on March 26, 2025, OxyVinyls shall, within

three pages, reply. No additional briefing shall be filed. The Court will inquire further, if

needed.

18. Motion in Limine [822/868] To Exclude Testimony Of Defects In The Pressure

Relief Devices Filed By Third-Party Defendant OxyVinyls LP—DENIED. Witnesses may

testify based on their personal observations regarding whether they believed the PRDs were

acting erratically or violently. This testimony is probative to Norfolk Southern’s decision to

conduct the vent and burn, a key issue in its case against OxyVinyls. OxyVinyls does not object

to lay witnesses testimony about what they personally observed about the PRDs’ behavior, but

asks that such testimony must be restricted to rational observations within the bounds of Rule

701. Based on the opposition, Norfolk Southern does not intend to introduce evidence of the

PRD activity for the purpose of proving that the PRDs were defective. Therefore, OxyVinyls’

request that the Court “prevent lay witnesses from masking speculative opinions or unreliable

conclusory statements as personal observations by excluding testimony opining that the PRDs

were defective when no evidence of such exists” is denied. ECF No. 822 at PageID #: 59248.

19. Motion in Limine [823/869] To Exclude Testimony Of William Carroll, Jr. Ph.D

Filed By Third-Party Defendant OxyVinyls LP—DENIED. It is anticipated that Dr. Carroll

will testify based on his personal knowledge about the nature of VCM and the conditions under

which it will polymerize. “Courts routinely hold that witnesses may offer lay testimony under

Rule 701 when that testimony is ‘based not on ‘experience, training or specialized knowledge

within the realm of an expert,’ but on ‘the particularized knowledge that the witness has by

virtue of his or her position in the business.’’ Lord & Taylor, LLC v. White Flint, L.P., 849 F.3d

567, 576 (4th Cir. 2017) (quoting FED. R. EVID. 701, Advisory Committee Note to 2000

Amendment)).” See Norfolk Southern’s Opp’n, ECF No. 869 at PageID ##: 60338–39. The

anticipated testimony bears directly on a key issue at trial, is based on the witnesses’ personal

knowledge, and is more probative than prejudicial. If necessary, a cautionary instruction will be

given the jury to distinguish this testimony from expert testimony.

20. Motion in Limine [824/870] To Exclude Testimony Of Conflicting OxyVinyls

Communication Filed By Third-Party Defendant OxyVinyls LP—DENIED. Because

Norfolk Southern intends to introduce such testimony to show its witnesses’ state of mind, not

for the truth of the matter, it is not hearsay and is admissible. See FED. R. EVID. 801(c)(2). Even

where this may be true, both layers of hearsay are admissible, making the testimony as a whole

admissible. See Norfolk Southern’s Opp’n, ECF No. 870 at PageID #: 60345 (citing FED. R.

EVID. 803(3) and United States v. Payne, 437 F.3d 540, 547 (6th Cir. 2006) (“In order to admit

an out-of-court statement that is nested within another, Rule 805 requires that both statements be

admissible.”)). In addition, as OxyVinyls acknowledges, the statements that OxyVinyls

employees made to Norfolk Southern contractors, including Drew McCarty and Chip Day, do

not qualify as hearsay because they are statements of an adverse party’s agent or employee under

Rule 801(d)(2). All layers are therefore admissible. To the extent that OxyVinyls becomes

concerned about testimony being offered for its truth rather than to show Norfolk Southern

employees’ state of mind, OxyVinyls may object at trial.

21. Motion in Limine [825/871] GATX Corp.'s Motion In Limine To Preclude

Evidence And Argument Concerning Norfolk Southern’s Expenditures And Community

Involvement Filed By Third-Party Defendant GATX Corp.—GRANTED WITH

CAUTION. If GATX or OxyVinyls alludes to or argues at trial that the dollar amount of the

class settlement was unreasonable or unfairly high, evidence of Norfolk Southern’s, GATX’s and

OxyVinyls’ expenditures and or community involvement or lack thereof will be admitted, as

appropriate.

22. Motion in Limine [826/872] GATX Corp.'s Motion In Limine To Exclude

Undisclosed Expert Witness Testimony By Jamie Williams Filed By Third-Party Defendant

GATX Corp.—DENIED. Jamie Williams may testify about his lay, personal knowledge about

Norfolk Southern’s practices and to what extent Norfolk Southern necessarily relies on actions

taken by other railroads, if, as Norfolk Southern indicates, the testimony stems from Mr.

Williams’ own job responsibilities, which requires Mr. Williams to have personal knowledge

about regulations and requirements that Norfolk Southern was required to implement. Mr.

Williams shall not testify broadly about industry practices. Norfolk Southern has written, “[t]hat

is not Williams’s role, [and] not his expected testimony.” ECF No. 872 at PageID #: 60357. The

Court expects Norfolk Southern to adhere to that statement.

23. Motion in Limine [827/873] GATX Corp.'s Motion In Limine To Preclude

Evidence And Argument Concerning Other Weather Events Filed By Third-Party

Defendant GATX Corp.—DEFERRED/DENIED IN PART. Movant’s request is vague. To

the extent the motion is specific, the motion is denied to the extent it requests exclusion of entire

documents, like the NTSB’s Supplemental Meteorological Specialist’s Factual Report’s

discussion of the effects of Hurricane Harvey, simply because they mention other storms. The

Meteorological Report appears relevant to several disputed issues. That evidence will not be

excluded merely because elsewhere in that same document are mentions of other storms. To the

extent there are concerns about undue prejudice, the parties shall consult and agree on proper

redactions of the documents at issue and suggest an appropriate cautionary instruction to be

given the jury. See Norfolk Southern’s Opp’n, ECF No. 873 at PageID #: 60367 (citing for

example Arrowood Indem. Co. v. Lubrizol Corp., 2016 WL 6634747, at *4 (N.D. Ohio Feb. 22,

2016) (“The court will require the parties to remove all privilege designations on the documents,

and the court will instruct the jury that the redactions and designations are not relevant to their

analysis.”)).

24. Motion in Limine [828/871] GATX Corp.'s Motion In Limine To Preclude

Evidence And Argument Concerning GATX’s Post-Derailment Expenditures, Community

Involvement, And Settlement Negotiations Filed By Third-Party Defendant GATX Corp.—

GRANTED WITH CAUTION. If GATX or OxyVinyls alludes to or argues at trial that the

dollar amount of the class settlement was unreasonable or unfairly high, evidence of Norfolk

Southern’s, GATX’s and Oxy Vinyls’ expenditures and or community involvement or lack

thereof will be admitted, if appropriate.

25. Motion in Limine [829/874] GATX Corp.'s Motion In Limine To Preclude

Joseph Poplawski From Proffering Hearsay Testimony Filed By Third-Party Defendant

GATX Corp.—DENIED TO EXTENT IT CONTRAVENES COURT’S DAUBERT

RULING (ECF No. 754). OTHERWISE RULING IS DEFERRED.

26. Motion in Limine [830/875] GATX Corp.'s Motion In Limine To Exclude

Evidence Of The NTSB's Conclusions And Opinions Filed By GATX Corp.—DENIED.

Ruling on ECF No. 807 is fully incorporated herein. That said, NTSB factual reports—including

group chair factual reports—are admissible; NTSB final reports are not.

Conclusion

Accordingly, Motions in Limine:

• ECF Nos. 810, 816, 822, 823, 824, 826, and 830 are denied;

• ECF Nos. 805, 806, 807, 811, 812, 813, 814, 815, 819, and 820 are granted;

• ECF Nos. 808, 809, and 821 are deferred;

• ECF Nos. 817, 818, 825 and 828 are granted with caution;

• ECF No. 827 and 829 are deferred and denied in part.

In addition, as ordered by the Court above:

• Norfolk Southern shall identify the specific evidence it seeks to exclude and

explain why, within three pages, by March 26, 2025 at 4:00 p.m. ( regarding ECF

No. 809);

• OxyVinyls shall reply, within three pages, by March 26, 2025 at 4:00 p.m.

(regarding ECF No. 821); and

• Parties shall consult and agree on proper redactions and suggest an appropriate

cautionary instruction for the jury by March 26, 2025 at 4:00 p.m (regarding ECF

No. 827).

No statement, question, oral objection, or argument shall contravene the rulings made herein.

IT IS SO ORDERED.

March 24, 2025 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge