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Kroh v. Norfolk Southern Railway Co.

January 27, 2009

TIMOTHY L. KROH, ADMINISTRATOR OF THE ESTATE OF APRIL M. ERDMAN, PLAINTIFF
v.
NORFOLK SOUTHERN RAILWAY COMPANY AND NORFOLK SOUTHERN CORPORATION, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

The instant matter arises from a collision between a vehicle driven by plaintiff's decedent, April Erdman ("Erdman") and a locomotive operated by defendants at a private railroad crossing in Dalmatia, Pennsylvania on October 28, 2005. Presently before the court is plaintiff's motion in limine (Doc. 57) to exclude evidence that Erdman and witness Daniel Maurer ("Maurer") consumed alcohol at a bar the evening prior to the collision, that Maurer consumed alcohol on the day of the collision, and that Erdman's vehicle contained a case of beer at the time of impact. Plaintiff also moves to exclude evidence that Erdman's driver's license was suspended, of her poor driving record, and of certain statements that she made to insurance agents when applying for automotive insurance. The court will address these issues seriatim.

A. Alcohol-Related Evidence

Plaintiff moves to exclude evidence that Erdman and Maurer were at a bar consuming alcohol until approximately 2:00 a.m. on the night before the accident. Erdman awoke at approximately 8:00 a.m the next morning, prepared breakfast, and babysat for several hours. During the afternoon, she assisted Maurer in packing and relocating to a new residence, and the hatchback area of her vehicle contained many of his belongings, including a case of beer. She was transporting his belongings at 3:15 p.m., when the collision occurred. Her blood alcohol content was 0.012%.*fn1

Plaintiff seeks to exclude alcohol-related evidence on the grounds that it is irrelevant and prejudicial. Defendants wish to introduce testimony that Erdman retired at a late hour and arose early to establish her mental acuity at the time of the accident. They seek to introduce evidence of the case of beer to impeach the testimony of plaintiff's biomechanical expert, who has opined that the impact of the locomotive propelled Erdman over the vehicle's front and back seats and out the rear window. Defendants plan to rebut this theory with evidence that the vehicle's contents, including the case of beer, obstructed this trajectory.

1. Alcohol Consumption on the Evening Prior to the Accident

Rule 401 of the Federal Rules of Evidence provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. All relevant evidence is admissible unless otherwise excluded by federal law. Id. R. 402. Nevertheless, relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice." Id. R. 403.

In the instant matter, the court will exclude evidence that Erdman and Maurer consumed alcohol at a bar during the evening before the accident. Neither party contends that Erdman's alcohol consumption more than twelve hours prior to the collision impaired her ability to operate a vehicle during the afternoon of October 28, 2005. Moreover, introduction of this evidence creates a strong likelihood of prejudice and confusion of the issues. Indeed, in the personal injury context, there are few evidentiary matters more inflammatory than the suggestion of alcohol consumption. Any evidence that Erdman consumed alcohol or was transporting alcohol could create an unsupported inference that she was impaired at the time of the accident. It could also cause jurors to harbor unwarranted bias against plaintiff based exclusively upon her alcohol consumption at a time and place unrelated to the collision. The probative value of this evidence is substantially outweighed by its prejudicial effect, and it will be excluded pursuant to Rule 403.

However, the short duration of Erdman's slumber the night before the collision and the tiring nature of her activities the next day are probative of her mental alertness and her ability to respond to the events at the time of the collision.

See Thompson v. Austin, 272 F. App'x 188, 193 (3d Cir. 2008) ("[T]he physical state of a driver involved in a traffic accident is relevant evidence."); Hill v. USA Truck, Inc., No. 8:06-CV-1010, 2007 WL 1574545, at *9 (D.S.C. May 30, 2007) (admitting logbooks of tractor-trailer driver as evidence of driver fatigue, which is relevant in a traffic accident case). The jury may consider such evidence to assess whether she possessed the mental ability to respond to the rapidly approaching locomotive the moments before the crash. This evidence will not result in undue prejudice plaintiff because the jury may properly consider Erdman's physical and mental condition at the time of impact. Thompson, 272 F. App'x at 193. Accordingly, defendants may offer evidence of the hour at which Erdman went to sleep and the time when she arose but may not present evidence of her alcohol consumption on the night before the collision.*fn2

2. The Case of Beer in Erdman's Automobile

The case of beer in the hatchback area of Erdman's vehicle will likewise be excluded pursuant to Rule 403. Alcohol use is not in issue, and reference to the beer would cause the jury to speculate unwarrantedly about the cause of the collision. Like Erdman and Maurer's alcohol consumption the previous evening, this evidence poses a significant risk of inflaming juror bias against plaintiff. Moreover, the contents of the case of beer is not essential to defendants' case. Defendants rely upon this evidence to demonstrate that objects in plaintiffs' automobile prevented her from exiting the vehicle via the trajectory proposed by plaintiff's expert. Specific identification of the beer case is not necessary to this testimony because defendants possess evidence that the hatchback area of Erdman's vehicle was occupied by numerous objects, including small articles of furniture, clothing, and Maurer's personal effects. (Doc. 67 at 5; Doc. 69, app. 1 at 21-21.) If the case of beer constitutes an essential component of defendant's cross-examination, they may impeach plaintiff's expert by describing the approximate dimensions and weight of the container without mentioning its contents. Accordingly, evidence of the contents of the case of beer will be excluded. Defendants may describe the box or container by reference to its approximate size and weight.

B. Evidence Associated with Erdman's Driving Record

Plaintiff seeks to bar evidence that Erdman was driving with a suspended license at the time of the collision, of her poor driving record, and of statements she made to insurance agents to obtain automotive liability ...


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