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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 DENYING IN PART AND, FARMERS' ELEVATOR'S MOTION IN LIMINE DEFERRING IN PART BERTHOLD

Before the Court is Defendant Berthold Farmer's Elevator ("the Elevator")'s motion in limine filed on February 4, 2011. See Docket No. 123. BNSF Railway Company ("BNSF") filed a response joining the motion on February 8, 2011. See Docket No. 129. The Plaintiffs filed a response to the motion on February 14, 2011. See Docket No. 148. Roland S. Pederson and KC Transport, LLC ("KC Transport") filed a response on February 15, 2011. See Docket No. 147.

I. LEGAL DISCUSSION

On February 4, 2011, the Elevator filed the following motions in limine:

I. Robert Campbell should not be allowed to testify regarding alleged prior incidents of railroad cars being parked too close to the cemetery crossing.

II. The parties should not be allowed to offer into evidence BNSF's desire to close the subject crossing because it is irrelevant and remote.

III. Berthold joins in BNSF's January 31, 2011 Motions in Limine.

IV. Dr. Mirich -- by his concessions not a spine specialist -- should be precluded from offering spine-related testimony.

V. Berthold joins in BNSF's Motion to exclude Donald Asa's proposed testimony under Fed. R. Evid. 702 inasmuch as his musings are not helpful to the jury, he is unqualified, he does not rely on reliable principles and he has not applied principles reliably.

VI. Plaintiff's rebuttal expert James Rogers should be stricken as a trial witness pursuant to Fed. R. Civ. P. 26(a)(2)(B).

See Docket No. 123. The Court has addressed motions II, III, and V in other orders.

A. ROBERT CAMPBELL'S TESTIMONY

Plaintiff Robert Campbell testified in his deposition that had seen railcars parked too close to the "cemetery crossing" prior to the accident on November 5, 2008. The Elevator seeks to exclude such testimony, arguing that the testimony is "an unsubstantiated, self-serving allegation that does not contain sufficient facts to confirm that he has personal knowledge regarding whether Berthold parked railroad cars too close to the subject crossing." See Docket No. 124.

Rule 602 of the Federal Rules of Evidence provides, in pertinent part, "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony." Campbell may testify to his personal observations of the "cemetery crossing" and the location of railcars near the crossing. All parties can examine Campbell to seek clarification of his testimony and challenge his personal observations. Cross-examination is the proper means by which to impeach a ...


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