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Robert C. Campbell and Brenda Southern 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

ORDER GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS' MOTION IN LIMINE

Before the Court is the Plaintiffs' motion in limine filed on February 3, 2011. See Docket No. 114. Defendant BNSF Railway Company ("BNSF") filed a response on February 8, 2011. See Docket No. 131. Defendants Roland S. Pederson and KC Transport, LLC ("KC Transport") filed a response on February 11, 2011. See Docket No. 134.

I. LEGAL DISCUSSION

On February 3, 2011, the Plaintiffs filed a motion in limine seeking to exclude:

1. All evidence, arguments or comments that Plaintiff Robert C. Campbell is receiving disability benefits from the United States Railroad Retirement Board . . . and any other collateral source;

2. The testimony of Donald L. Asa, liability expert witness for Defendants Roland S. Pederson and KC Transport, LLC., with respect to Plaintiff Robert C. Campbell discharging his duties as a conductor, including but not limited to testimony that it was his duty to make sure the train was safe, and contribute to decisions that insure the safety of the train; and

3. All evidence, arguments or comments that delegates Defendant BNSF's [sic] Railway Company's continuing and non-delegable duty under the FELA to a third party.

See Docket No. 114.

A. DISABILITY BENEFITS

The Plaintiffs assert that Campbell receives disability benefits from the Untied States Railroad Retirement Board as a result of his injuries suffered in the accident on November 5, 2008. The Plaintiffs contend the disability benefits are a collateral source and evidence of the benefits is inadmissible at trial.

In Vanskike v. ACF Indus., 665 F.2d 188 (8th Cir. 1981), the Eighth Circuit Court of Appeals explained:

As a general rule, evidence of collateral source payments may be admitted for the competent purpose of showing malingering unless the prejudicial impact attending the possibility that the jury will consider it for the purpose of directly reducing recoverable damages is so high, when compared to its probative value for the acceptable purpose, that its admission would be an abuse of discretion. See generally Annot., 47 A.L.R.3d 234 (1973); Fed. R. Evid. 403. A stricter rule is applied, however, in FELA actions. In Eichel v. New York Central R. R., 375 U.S. 253, 255-56 (1963) (per curiam), the Supreme Court held that collateral source payments are inadmissible as bearing on the extent or duration of disability in FELA cases. Eichel dealt specifically with Railroad Retirement Act benefits, but this circuit has applied the Eichel rule to other sources. Raycraft v. Duluth, Missabe & Iron Range Ry., 472 F.2d 27, 29 (8th Cir. 1973) (VA disability benefits). Vanskike, 665 F.2d at 200 (footnote omitted).

The Supreme Court also explained in Eichel, "The Railroad Retirement Act is substantially a Social Security for employees of common carriers. . . . The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer." Eichel, 375 U.S. at 254 (quoting N. Y., New Haven & Hartford R. Co. v. Leary, 204 F.2d 461, 468 (1st Cir.), cert. denied, 346 U.S. 856). Accordingly, the Court finds that Campbell's railroad disability benefits are a collateral source and ...


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