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Earl L. Masters v. Norfolk Southern Railway Company

February 6, 2012

EARL L. MASTERS, PLAINTIFF,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Cathy Bissoon

ORDER

The parties' Motions in limine will be resolved as follows.

A. Plaintiff's Motion in Limine (Doc. 192)

1. "Non-Admissible Hospital Records"

Plaintiff's statements to medical providers regarding the cause of his accident/injuries are not hearsay. See Fed. R. Evid. 801(d)(2)(A). Additionally, statements made by Plaintiff in connection with his medical diagnosis or treatment, as defined under Fed. R. Evid. 803(4), will not be excluded on hearsay grounds. Finally, hospital records kept in the course of regularly conducted activity fall under the hearsay exception in Fed. R. Evid. 803(6). See Hayduk v. City of Johnstown, 2009 WL 3335351, *2 (W.D. Pa. Jun. 4, 2009) (holding same). Thus, Plaintiff's Motion is DENIED.

2. "Railroads Empowerment Rule/Improper Assumption of Risk"

Defendants will not argue that Plaintiff was "empowered" not to perform unsafe tasks. See Norfolk's Br. (Doc. 209) at 3; Arnold's Br. (Doc. 211) at 3. Rather, Defendants intend to introduce evidence that Plaintiff violated Norfolk's safety rules. See id. Plaintiff's Motion does not address this issue, and therefore, it is DENIED.

To the extent that Plaintiff argues Defendants' expert should not be permitted to reference the safety rules in question, see Doc. 193-1 at 8-12, this issue is moot because neither side will be permitted to offer expert testimony regarding liability. See discussion infra. Otherwise, the Court finds Norfolk's safety rules sufficiently specific to warrant their admission. Compare Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1280 (3d Cir. 1995) (under FELA, "[e]xamples of evidence of [comparative] negligence include failing to follow specific safety instructions reasonably calculated to protect the employee from the injury that occurred") with Doc. 209 at 4 (quoting Norfolk safety rules instructing employees that, "[w]hen walking," employees must "[r]emain aware of surroundings," "[b]e alert for slipping and tripping hazards" and "[u]se extra caution while walking on ballast and ballast shoulders").*fn1

3. "Letters from Railroad's Vocational Rehabilitation Department"

Plaintiff has failed to provide sufficient legal bas(es) for excluding Norfolk's letters to him regarding its vocational rehabilitation program. In this regard, Plaintiff's Motion is DENIED.

4. "Characterization of Dr. Cohen's and/or Dr. Kaufmann's Examination[s] in this Case as 'Independent'"

These physicians appear to have conducted examinations of Plaintiff pursuant to Fed. R. Civ. P. 35(b). Although the parties' disagreements appear to be much ado about little, Plaintiff's objection is SUSTAINED. See Behler v. Hanlon, 199 F.R.D. 553, 54-55 (D. Md. 2001) (acknowledging that, within context of Rule 35, reference to "independent medical examinations" is "euphemistic") (emphasis added); Fair v. Allen, 2011 WL 830291, *3 (W.D. La. Mar. 3, 2011) (directing that physician be referred to as "a retained medical expert").

5. "Surveillance of Mr. Masters"

Neither Defendant intends to introduce surveillance evidence at trial. Although Defendant Arnold seeks to reserve its right to "still obtain[] surveillance" of Plaintiff, any ruling at ...


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