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Robert C. Campbell and Brenda Southern, Individually and As Husband v. Bnsf Railway Company

March 2, 2011

ROBERT C. CAMPBELL AND BRENDA SOUTHERN, INDIVIDUALLY AND AS HUSBAND AND WIFE,
PLAINTIFFS,
v.
BNSF RAILWAY COMPANY, A DELAWARE CORPORATION; ROLAND S. PEDERSON; KC TRANSPORT, LLC, A MONTANA CORPORATION; AND BERTHOLD FARMERS' ELEVATOR LLC, A NORTH DAKOTA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

JANUARY 31, 2011

ORDER GRANTING IN PART AND DENYING IN PART BNSF RAILWAY COMPANY'S

MOTION IN LIMINE DATED

Before the Court is Defendant BNSF Railway Company ("BNSF")'s "Motion in Limine dated January 31, 2011." See Docket No. 111. The Plaintiffs filed a response on February 4, 2011. See Docket No. 127. BNSF filed a reply brief on February 8, 2011. See Docket No. 128. Defendants Roland S. Pederson and KC Transport, LLC ("KC Transport") filed a response on February 11, 2011. See Docket No. 135. BNSF filed a reply brief on February 17, 2011. See Docket No. 154. Defendant Berthold Farmer's Elevator ("the Elevator") did not file a response.

I. LEGAL DISCUSSION

On January 31, 2011, BNSF filed a motion in limine requesting the following:

I. No party should be allowed to argue or present evidence that this lawsuit is Campbell's sole remedy against BNSF or that Campbell is ineligible for worker's compensation.

II. No party should be entitled to argue or present evidence that BNSF's General Code of Operating Rules establish a standard of care.

III. KC Transport should not be allowed to argue or present evidence that BNSF had a duty to slow the train.

IV. Neither Campbell nor KC Transport should be allowed to argue or introduce evidence that the crossing was hazardous and that BNSF had an obligation to modify or close the crossing or provide additional warning devices.

V. Any argument or evidence that BNSF has attempted to close this crossing should not be presented to the jury as not relevant and unduly prejudicial. See Docket No. 111.

A. CAMPBELL'S SOLE REMEDY AND WORKER'S COMPENSATION

BNSF contends that "it would unfairly prejudice the jury in favor of the plaintiff and against the railroad if it was allowed to consider plaintiff's ineligibility for worker's compensation benefits." See Docket No. 112. Pederson and KC Transport join in BNSF's motion. See Docket No. 135. The Plaintiffs contend, "Dispelling all notions that Campbell might be covered under some other statute is especially important since the jury may believe that Campbell is attempting to achieve a double recovery under both FELA and state workers' compensation statute." See Docket No. 127.

The Court ruled on a similar motion in Magelky v. BNSF Ry. Co., No. 1:06-cv-025, 2008 U.S. Dist. LEXIS 6573 (D.N.D. Jan. 28, 2008) ("Magelky I"). The Plaintiff requested that the jury be instructed that she was not eligible for worker's compensation and that her sole source of recovery was a lawsuit under FELA. Magelky I, at *20. The Court denied the Plaintiff's motion ...


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