Berry v. Wis. Cent.
| Decision Date | 19 August 2022 |
| Docket Number | 21-cv-220-wmc |
| Parties | MICHAEL BERRY, Plaintiff, v. WISCONSIN CENTRAL LTD. d/b/a Canadian National Railway Co. or Canadian National, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
While working as a railroad conductor for defendant Wisconsin Central Ltd., plaintiff Michael Berry was injured after falling in the train yard. He contends that his injuries were caused by Wisconsin Central's negligence by failing to inspect, maintain and light its tracks properly in the location where he fell. He is proceeding to trial on his claims under the Federal Employers' Liability Act and related safety regulations. With trial scheduled for September 6, 2022, and the court to hold a final pretrial conference (“FPTC”) on August 24th at 3:00 p.m this order addresses the parties' motions in limine.
OPINIONBerry asks the court to exclude all evidence of Berry's past addiction to opioids and current treatment with Suboxone as irrelevant and highly prejudicial. Wisconsin Central responds that it does not intend to offer evidence of Berry's past drug use or current Suboxone use to argue that either played any role in the underlying incident. However, it does wish to argue that Berry's opioid addition is relevant to damages, because of evidence that his prior opioid use (and his current avoidance of opioids) increased the level of pain he experienced from the injuries at issue in this case. Even if the court were willing to allow such an argument in the damages phase of trail, defendant Wisconsin Central fails to cite any admissible, expert testimony to support its assertion, or other evidence from which a lay jury might reasonably infer such an impact. Instead, defendant relies solely on: (1) a note in Berry's medical file stating that he reported a prior history of opioid addiction to a provider after his injury (dkt. #119-1, at 2), which is proof of nothing regarding any impact on his pain level after the accident; and (2) a note from a treating physician that Berry had more pain than average “likely, in part, due to his high preop narcotic dependence in the past,” which reads as nothing more than speculative, non-specific, hearsay whose arguable probative value is far outweighed by its likely undue prejudice. (Dkt. #119-2, at 2). See Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008) () (citation omitted). Accordingly, the court will grant the motion.
Berry asks the court to exclude evidence of collateral source benefits, including the Railroad Retirement Board disability benefits that he is receiving because of his accident. Berry contends that the benefits are not admissible under Eichel v. New York Cent. R. Co., 375 U.S. 253 (1963). In that case, the Supreme Court rejected the railroad's argument that benefits received under the Railroad Retirement Act are admissible to “show a motive for [the employee's] not continuing work, and for his deciding not to continue going back to work after the last accident.” Id. at 254-55. The Court reasoned that “there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension,” which “evidence of collateral benefits is readily subject to misuse by a jury.” Id. at 255. Indeed, the Court went so far as to hold that “it would violate the spirit of the federal statutes if the receipt of disability benefits under the Railroad Retirement Act . . . were considered as evidence of malingering by an employee asserting a claim under the Federal Employers' Liability Act.” Given these rather sweeping pronouncements as to its limited probative value and likely prejudice, our sister, federal district court in Wisconsin interpreted Eichel as holding that railroad benefits “cannot even be mentioned in an effort to establish a plaintiff's motive to exaggerate the extent of his injury or disability.” Larson v. Wisconsin Cent. Ltd., No. 10-C-446, 2012 WL 359672, at *1 (E.D. Wis. Feb. 2, 2012) (emphasis added).
Defendant Wisconsin Central nevertheless seeks to introduce evidence that Berry declined to look for work within his physical restrictions because he does not want to lose his railroad disability benefits, arguing that Eichel is not a categorical bar on introducing evidence of railroad benefits, but rather only precludes reliance on this evidence to argue that plaintiff's damages should be reduced, or that Berry is malingering or exaggerating his injuries to continue receiving disability benefits. This court is hard-pressed to see, much less credit, defendant's facile attempt to distinguish between using the receipt of benefits as a motive to malinger and the fear of loss of these same benefits as a motive not to work.
Regardless, any arguable distinction does not hold up against the Supreme Court's repeated warnings in Eichel of the likely prejudice caused by its introduction in the case. Moreover, the only Seventh Circuit case that Wisconsin Central cites in support of its argument is Brandt v. Vulcan, Inc., 30 F.3d 752, 760 (7th Cir. 1994), which is not a FELA case at all and does not even mention Eichel. Nor did the issue in Brandt involve undermining a party's motivation to work, but rather whether the defendant could use a plaintiff's retirement benefits to impeach an inconsistent statement.
Ultimately, even if Eichel could be read to allow evidence of receipt of collateral benefits under some circumstances, Wisconsin Central does not identify any facts in this case distinguishable from Eichel, and the court sees none. Instead, Wisconsin Central's proposed use of Berry's disability benefits to prove that Berry has failed to look for new employment because he fears losing his disability benefits is squarely and expressly barred in Eichel under the exact circumstances before this court, having held that benefits received under the Railroad Retirement Act are inadmissible to “show a motive for [the employee's] not continuing work.” 375 U.S. at 254-55. If Wisconsin Central has direct evidence that Berry refused or failed to apply for available work that he could perform despite his physical limitations, it may present that evidence, but it cannot introduce evidence of Berry's receipt of disability benefits as indirect proof of a motive to turn down such work.
Thus, the court will grant plaintiff's motion to exclude Berry's railroad benefits unless offered as proper impeachment or Berry were to otherwise open the door to the evidence by asserting that he did not receive such benefits or suffered distress due to a lack of any income. Before attempting to introduce this evidence to the jury for any of those reasons, however, Wisconsin Central must receive advance, expressed permission from the court outside the jury's presence. Finally, Berry also asks the court to exclude evidence of any other collateral source, but he does not identify any other sources, and the court declines to rule on that issue in the abstract.
This motion is somewhat hard to follow, except that Berry seeks to preclude Wisconsin Central from relying generally on its safety rules related to employee “empowerment” as support for its argument that Berry was negligent or “assumed the risks” of his employment with the railroad. Berry also argues that Wisconsin Central should not be permitted to present evidence regarding assumption of risk, which is unavailable as a defense under FELA. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 168 (2007). Finally, he argues that Wisconsin Central's “human factors” expert, David Cades, should be precluded from offering any opinion that amounts to an “assumption of risk” theory.
Wisconsin Central responds that it neither intends to argue that Berry violated any vague “empowerment” rule, nor that he assumed the risk of slipping and falling by accepting railroad employment, so the motion will be granted as undisputed, at least to that extent. However, Wisconsin Central is not precluded from arguing that Berry failed to remain “alert and attentive,” as required by its rules and common sense. Indeed, FELA allows a defendant to raise a comparative negligence defense, Norfolk S. Ry, 549 U.S. at 171, and the evidence identified by Wisconsin Central, including its expert Cade's opinions that Berry was trained to operate safely under conditions similar to those present at the time of his injury, and failed to take precautions accordingly, are relevant to the issue of comparative negligence. Should Wisconsin Central offer evidence that Berry believes is relevant only to an assumption of risk theory, Berry may also object at trial if consistent with the court's rulings above.
If Berry is actually arguing that Wisconsin Central lacked sufficient evidence to show that he acted negligently, a motion in limine is not the place to seek judgment as a matter of law. Rather, Berry could have moved for summary judgment on that issue, or will have to move for judgment as a matter of law under Federal Rule of Civil Procedure 50 at the appropriate time during trial.
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