Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-00560-OES-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO GEORGE M. BULL, Plaintiff, vs. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant. PLAINTIFF'S MOTIONS IN LIMINE ON THE ISSUES OF (1) COLLATERAL SOURCE AND (2) ASSUMPTION OF THE RISK 1. MOTION REGARDING COLLATERAL SOURCE Plaintiff George M. Bull, through his attorneys, respectfully moves the Court for an Order in Limine as follows: Precluding and prohibiting defendant, its counsel and witnesses during trial from referring to or making any mention of any disability income, pension income or rights thereto, or similar collateral source benefits plaintiff has received or which plaintiff may become entitled to receive in the future. This Motion in limine is based upon the Brief that appears below and upon all the files, records and proceedings herein. BRIEF IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE COLLATERAL SOURCE EVIDENCE Evidence of benefits and payments that Mr. Bull may have received or may receive in the future from various sources independent of Union Pacific Railroad Company should be excluded from the trial of this case under the common law collateral source rule, which prohibits introduction of evidence regarding receipt of benefits from collateral sources and bars a defendant from utilizing a plaintiff's pension, disability or retirement benefits as a set-off or in Civil Action No.: 04-ES-0560 (BNB)

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mitigation of the damages for which it may be liable. See Annotation at 88 ALR 2d 483. A "collateral source" is a source of payments or benefits that is completed independent of the party responsible for the harm. The basic rationale for this common law rule is that a tortfeasor should not be permitted to reduce a plaintiff's recovery of compensatory damages because of benefits the plaintiff may have received from another source. Cunningham v. Rederiet Vindeggen A/S, 333 F.2d 308, 316 (2d Cir. 1964). In Eichel v. New York Central Railroad, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), the U.S. Supreme Court held that, to avoid jury misuse of such evidence, the common law collateral source rule should be applied in FELA to bar evidence of benefits and payments injured railroad employees received from sources independent of their employers. In Eichel, the railroad sought to introduce evidence that the plaintiff received disability benefits under the Railroad Retirement Act for the purpose of impeaching plaintiff's testimony regarding his alleged motivation in not returning to work. Although the trial court refused to allow the railroad to introduce this evidence, the Second Court of Appeals held that the trial court committed reversible error in excluding the evidence of collateral source benefits. 375 U.S. at 253-54. The U.S. Supreme Court emphatically disagreed, holding that the prejudicial effect of collateral source evidence and its potential for jury misuse far outweighs its probative value: In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. Moreover, it would violate the spirit of the federal statutes if the receipt of disability benefits under the Railroad Retirement Act of 1937, 50 Stat. 309, as amended, 45 U.S.C. § 228(a)4, were considered as evidence of malingering. We have recently had occasion to be reminded that evidence of collateral benefits is readily subject to misuse by a jury. Tipton v. Socony Mobil Oil Co., Inc., 375 U.S. 34, 84 S.Ct. 1. It has long been held that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner's receipt of collateral social insurance benefits

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involves a substantial likelihood of prejudicial impact. We hold therefore that the District Court properly excluded the evidence of disability payments. 375 U.S. at 255 (footnotes omitted; boldface supplied). In Sheehy v. Southern Pacific Transportation Co., 631 F.2d 649 (9th Cir. 1980), the district court denied the plaintiff's motion in limine to exclude all evidence of collateral source payments, ruling that the amount but not the source of the payments was admissible "on the issue of Sheehy's motivation to resume working and on malingering." Id. at 650. In holding that the district court committed reversible error in admitting even this limited evidence of collateral source benefits, the Ninth Circuit considered and rejected the railroad's argument that Fed.R.Evid. 403 displaced the U.S. Supreme Court's holding in Eichel. Id. at 652. The Tenth Circuit Court of Appeals applied the U.S. Supreme Court's Eichel holding in Green v. Denver and Rio Grand Western Railway Co., 59 F.3d 1029 (10th Cir. 1995). In Green, the Tenth Circuit recognized that U.S. Supreme Court precedent controls the collateral source issue in FELA cases, declaring that "Eichel compels the conclusion that the collateral source rule prohibits admission of RRA disability benefits in a FELA case." Id. at 1032. With the lone exception of the First Circuit Court of Appeals' case, McGrath v. Consolidated Rail Corp., 136 F.3d 838 (1st Cir. 1998), every other Federal Circuit Court of Appeals that has considered the admissibility of collateral source benefits in FELA cases has followed Eichel in excluding collateral source evidence.1 Significantly, no other federal court

See, e.g. Santa Maria v. Metro-North Commuter Railroad, 81 F.3d 265, 272-73 (2nd Cir. 1996) ("the general rule in FELA cases is that evidence of payments made to plaintiff from collateral sources is not admissible . . . though such evidence may be admissible if the plaintiff puts his financial status at issue); Reed v. Philadelphia, Bethlehem & New England R., 939 F.2d 128, 134 (3d Cir. 1991) (trial court committed reversible error in allowing the railroad to argue that plaintiff was receiving disability benefits); Stillman V. Norfolk & Western Railway Co., 811 F.2d 834, 838 (4th Cir. 1987) ("defendants in FELA cases are not permitted to inform the jury that a plaintiff has received benefits from a collateral source"); Wilcox v. Clinchfield Railroad Co., 474 F.2d 1059, 1060-61 (6th Cir. 1984) (new trial required because trial court informed jury that plaintiff received collateral source benefits); Clark v. Burlington Northern, Inc., 726 F.2d 448, 451 n.4 (8th Cir. 1984)(evidence of payments to plaintiff under the Railroad Retirement Act "is inadmissible in FELA actions"); Southern v. Plumb Tools, 696 F.2d 1321, 1323 (11th Cir. 1983)

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has cited McGrath with approval on the collateral source issue in a published decision. McGrath is clearly an anomalous case that is confined to the peculiar facts of that case. McGrath has no precedential value to the Court's decision in this case. The great weight of controlling federal authority on the collateral source issue in FELA cases only grows heavier when state appellate court decisions are consulted. The highest

appellate courts in at least 14 states have similarly held that Eichel is controlling precedent in FELA cases.2 The Collateral Source Rule as applied in FELA cases extends not only to benefits provided under the Railroad Retirement Act, but also to Social Security benefits and benefits received under private disability insurance policies. See, e.g., Vanskike v. Union Pacific

Railroad, 725 F.2d 1146, 1152 (8th Cir. 1984) (upholding trial court's refusal to allow defendant to cross-examine plaintiff's psychologist on termination of plaintiff's Social Security benefits); Sheehy v. Southern Pacific Transportation Co., 631 F.2d 649, 651 (9th Cir. 1980) (holding that

(It is "prejudicial to plaintiff in suit brought under Federal Employer's Liability Act to admit evidence he received disability payments under Railroad Retirement Act"); Schroeder v. Pennsylvania Railroad Co., 307 F.2d 452, 457 (7th Cir. 1968) (evidence offered by railroad that plaintiff applied for and received workers' compensation benefits "had no relevance and served only to prejudice the jury against the plaintiff"); Caughman v. Washington Terminal Co., 345 F.2d 434, 436 (D.C. Cir. 1965) (evidence of disability payments to plaintiff was inadmissible on extent and duration of injury and on issue of malingering; verdict for railroad reversed); Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 821-22 (5th Cir. 1963) (admission of evidence concerning plaintiff's receipt of railroad pension required reversal of verdict for railroad); New York, N.H. & H.R. Ry. Co., 204 F.2d 461. Haischer v. CSX Transportation, Inc., 381 Md. 119, 138, 848 A.2d 620, 631 (2004); Mickelson v. Montana Rail Link, Inc., 299 Mont. 348, 359, 999 P.2d 985, 992 (2000). Giddens v. Kansas City Railway Co., 29 S.W.3d 813, 824 (Mo. 2000); Hileman v. Pittsburgh and Lake Erie R. Co., 546 Pa. 433, 439-40, 685 A.2d 994, 997 (Pa. 1996); Snipes v. Chicago, Cent. & Pacific R. Co., 484 N.W.2d 162, 166 (Iowa 1992); Illinois Central Gulf Railroad Co. v. Haynes, 592 So.2d 536, 541 (Al. 1991); Raines v. New York Central Railroad Co., 51 Ill. 428, 432, 283 N.E.2d 230, 233 (Ill. 1972); Kansas City Southern Railway v. Stokes, 20 ,S.W.3d 45, 49 (Tex. Ct. App. 2000); CSX Transportation, Inc. v. Levant, 410 S.E.2d 299, 303 (Ga. Ct. App. 1991), rev'd on other grounds, 262 Ga. 313, 418 S.E.2d 320 (Ga. 1991); Montgomery v. Long Island Railroad Co., 514 N.Y.S.2d 452, 453, 129 A.D.2d 690, 691 (N.Y.A.D. 1987); Lamont v. Union Pacific Railroad Co., 714 P.2d 1341, 1343 (Co. Ct. App. 1986); Transit Authority of River City v. Vinson, 703 S.W.2d 482, 485 (Ky. Ct. App. 1985); Blanton v. Union Pac. R. Co., 43 Or.App. 741, 741, 604 P.2d 883, 884 (Or. Ct. App. 1979), rev'd other grounds, 289 Or. 617, 616 P.2d 477 (Or. 1980); Morse v. Southern Pacific Transportation Co., 133 Cal.Rptr. 577, 582, 63 Cal.App.3d 128, 138 (Cal. Ct. App. 1976).
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admission of evidence that plaintiff received $800 per month in disability benefits and $225 per month from a disability insurance policy "constitutes reversible error"). The applicability of the Collateral Source Rule to this case is beyond dispute. Consequently, any evidence, testimony or reference to plaintiff's receipt of benefits payable under the Railroad Retirement Act, private insurance policies or other collateral sources would be improper and would undoubtedly constitute prejudicial and reversible error.

2. MOTION ON ISSUE OF ASSUMPTION OF THE RISK Plaintiff George M. Bull, through his attorneys, respectfully moves the Court for an Order in Limine as follows: Precluding and prohibiting defendant, its counsel and witnesses from mentioning, referring to or making any suggestion or argument that plaintiff was injured as a result of "normal risks and hazards of plaintiff's employment" or any such equivalent language. This Motion in limine is based upon the Brief that appears below, and upon all the files, records and proceedings herein. BRIEF IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE EVIDENCE AND ARGUMENT REGARDING ASSUMPTION OF RISK The evidence in this case will demonstrate that Mr. Bull sustained repetitive and cumulative trauma causing injury to his back, legs, and other body parts due to rough riding locomotives and/or locomotive cab seats that failed to protect plaintiff from long-term exposure to vibratory forces, in addition to a specific event on February 28, 2003 at a rough crossover, in which he was thrown about the cab of Locomotive 6263. These defects constitute a violation of the Locomotive Inspection Act, 49 U.S.C. § 20701 ("LIA") as well as regulations promulgated

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by the Federal Railroad Administration to enforce the LIA. 49 C.F.R. § 229.7(a) (1) and 49 C.F.R. § 229.45. FELA Bars UP from Introducing Evidence or Argument of Assumption of Risk Under the Guise of Contributory Negligence. While assumption of risk may be a common law defense in ordinary negligence cases, Congress abolished assumption of risk as a defense in FELA actions in 1938 by amending 45 U.S.C. § 54. As amended, § 54 provides as follows: In any action brought against any common carrier under or by virtue of the provisions of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risk of his employment in any case where such injuries or death resulted in whole or in part from the negligence of any of the officers, agents or employees of such carrier; and no employee shall be held to have assumed the risks of employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. (Emphasis supplied). This statute has been explicitly interpreted to the effect that the employee does not assume the risk of any normal or ordinary risks and hazards of his railroad employment. Owens v. Union Pacific Railroad Co., 319 U.S. 715, 63 S.Ct. 1271, 87 L.Ed. 1683 (1943). In Owens, plaintiff's decedent was involved in a switching move and was struck by a rail car that had been shoved down the same track from opposite direction. An appellate court negated a verdict for plaintiff, holding as a matter of law that plaintiff assumed the risk of death in the activities in which he was engaged when the accident occurred. The U.S. Supreme Court reversed, holding not only was there sufficient evidence to raise a jury question on the railroad's negligence but also holding reversal was compelled by the appellate court's rationale that plaintiff's decedent accepted and continued in his employment, knew that risks of the general character which caused his death would be incurred and, by taking or continuing

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in the work, accepted their burden; in other words, not that he knew of and accepted the particular risk at the time it descended, but knew generally that risks of such character might fall and elected in advance to sustain him. We think no such view is consistent with the statute's provisions. 319 U.S. at 719-20. This is controlling law. Taylor v. Burlington Northern Railroad Co., 787 F.2d 1309 (9th Cir. 1986); Heiselmoyer v. Pennsylvania R. Co., 243 F.2d 773 (2nd Cir. 1957), cert. denied, 355 U.S. 833. Likewise, the railroad cannot argue contributory negligence by reference to the employee's "knowledge" of "ordinary risks" or equivalent language, since this is nothing but assumption of risk by another name. Taylor, 787 F.2d at 1316. A concrete example of one of the ways in which UP frequently attempts to argue assumption of risk by another name is by invoking the "empowerment" concept. UP and its management witnesses regularly testify that UP employees are "empowered" by UP's rules to refuse work posing a risk of injury. But a railroad worker is not contributorily negligent if he fails to bid off of a job; the worker is instead engaging in assumption of the risk of his employment. Taylor, 787 F.2d at 1316-17. Contributory negligence "is a careless act or

omission on the plaintiff's part tending to add new dangers to conditions that the employer negligently created or permitted to exist." Id. at 1316. Therefore, arguing to the jury that plaintiff was contributorily negligent because he was "empowered" to refuse to do his job is nothing more than arguing assumption of the risk. Furthermore, to the extent that UP relies upon its "empowerment rules" to defend against liability in this case, such rules are invalid under § 55 of the FELA and are therefore irrelevant and inadmissible: Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void. . . . 45 U.S.C. § 55 (boldface and italics supplied).

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The purpose of FELA, as expressed in 45 U.S.C. § 51 and § 55, is to impose liability on negligent railroads for injuries to employees during the course of their employment. See Dice v. Akron, Canton & Youngstown Railroad Co., 342 U.S. 359, 362, 72 S.Ct. 312, 96 L.Ed. 398 (1952) (noting that the general policy of the FELA is "to give railroad employees a right to recover just compensation for injuries negligently inflicted by their employers"); see also Taylor v. Wells Fargo & Co., 220 F. 796, 797 (5th Cir 1915) (noting that "[f]or such a carrier to be able . . . to exempt itself from liability created by the statute . . . would be in plain contravention of the explicit provision" of the FELA). Thus, by enacting § 55, Congress sought to prevent railroads from undermining the liability created by the statute. Philadelphia, B. & W.R. Co. v. Schubert, 224 U.S. 603, 609, 32 S.Ct. 589, 56 L.Ed. 911 (1912). Accordingly, the U.S. Supreme Court interprets § 55 very broadly: The Act expressly prohibits covered carriers from adopting any regulation, or entering into any contract, to limit their FELA liability. The coverage of the statute is defined in broad language, which has been construed even more broadly. We have recognized generally that the FELA is a broad remedial statute, and have adopted a "standard of liberal construction in order to accomplish [Congress'] objects." Urie v. Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282 (1949). Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 561-62, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) (footnotes omitted; bracketed material in original). See also Duncan v. Thompson, 315 U.S. 1, 6, 62 S.Ct. 422, 86 L.Ed. 575 (1942) ("Congress wanted [§ 55] to have the full effect that its comprehensive phraseology implies"). Since UP's "empowerment" rule is designed to allow UP to escape liability by blaming the injured employee for his own injuries, UP's "empowerment" rule has an actual purpose or intent of allowing UP to exempt itself from liability under the plain, broad and expansive language of § 55. Consequently, this rule is null and void under § 55 and UP should be

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precluded from introducing its "empowerment" rule into evidence and from arguing this rule to the jury.

BREMSETH LAW FIRM, P.C.

By: s/ Fredric A. Bremseth Fredric A. Bremseth (#11149) Keith E. Ekstrom (#181808) 810 East Lake Street Wayzata, Minnesota 55391-1839 (952) 475-2800 And SPIES, POWERS & ROBINSON, P.C. Jack D. Robinson, #22037 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264 303-830-7090 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of October , 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Mark C. Hansen Union Pacific Railroad Company 1331 17th Street, Suite 406 Denver, Colorado 80202 Fredric A. Bremseth Bremseth Law Firm 810 East Lake Street Wayzata, Minnesota 55391 Sabina Y. Chung Jack D. Robinson Spies, Powers & Robinson, P.C. 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264

[email protected]

[email protected]

I certify that there are no non-CM/ECF participants in this case. BREMSETH LAW FIRM

By: /s Rebecca S. Martinson

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