Opinion
Civil Action No. 01-F-2504 (PAC)
December 1, 2003
ORDER GRANTING PLAINTIFF'S MOTION IN LIMINE (CRIMINAL CONVICTION)
Presently before the Court is Plaintiff Robin L. Rust's Motion in Limine (Criminal Conviction) (Dkt. #48-1). The plaintiff contends that evidence of a 1989 prior felony conviction for attempted theft should be excluded under Rule 609 of the Federal Rules of Evidence. The defendant states that it does not intend to introduce any evidence regarding the prior felony conviction of the plaintiff in its case-in-chief or for impeachment purposes.
Fed. Rule of Evid. 609 (Impeachment by Evidence of Conviction of Crime) states in relevant part:
(a) General rule. For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted . . .
(2) evidence that any witness is convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction . . ., unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, ir certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year.
The defendant states that it does not intend to introduce any evidence of the plaintiff's prior felony conviction for attempted theft.
This Court finds that the plaintiff's motion is GRANTED to the extent he seeks to exclude evidence of his 1989 prior felony conviction for attempted theft as the defendant states that it will not use such evidence. Moreover, the Court, at this time, denies the motion without prejudice as it relates to any other potential Rule 609(b) or Rule 609(c) evidence. It would be more appropriate to address this issue if and when the defendant informs the plaintiff of any intent to use specific evidence that may fall under Rule 609(b) or Rule 609(c). At that time, the plaintiff may reassert the motion addressing his objections, if any, to any evidence the defendant seeks to introduce at trial.
ORDER
AND NOW, upon consideration of Plaintiff Robin L. Rust's Motion in Limine (Criminal Conviction) and Defendant's Response thereto, IT IS HEREBY ORDERED that the plaintiffs Motion is GRANTED;
IT IS FURTHER ORDERED that the defendant shall have until December 23, 2003, to give written notice to the plaintiff of its intent to use any other specific evidence that may fall under Rule 609(b).
BY THE COURT:
ORDER DENYING PLAINTIFF'S MOTION IN LIMINE (APPORTIONMENT)
Presently before the Court is Plaintiff Robin L. Rust's Motion in Limine (Apportionment) (Dkt. # 49-1). The plaintiff seeks to exclude from trial any and all evidence that the plaintiff's injuries were caused by a pre-existing degenerative medical condition, contending that the introduction of such evidence is improper under a recent United States Supreme Court decision rejecting apportionment in cases predicated upon the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51-60. The defendant, The Burlington Northern and Santa Fe Railway Company, states that the introduction of evidence of a preexisting medical condition is permitted under established case law, and would aid in the proper apportionment of damages.
The plaintiff relies solely on the recently-decided United States Supreme Court case Norfolk Western Rwy. Co. v. Ayers, 538 U.S. 135, 123 S.Ct. 1210 (2003) to bolster his assertion that this Court should exclude any and all evidence of a preexisting medical condition. In Ayers, six former employees of Norfolk Western Railway brought suit under the FELA against the railroad for work-related exposure to asbestos. At trial, the Court refused to require the jury to apportion damages between Norfolk and other alleged contributors to the workers' disease, instructing the jurors not to reduce recoveries because of any non-railroad exposures to asbestos, as long as the exposures at Norfolk contributed in any way to the plaintiffs' injuries. The defendant appealed.
The Supreme Court ruled that under the FELA, negligent railroads are not entitled to reduce the amount they owe to employees if some other person or company also played a part in causing an accident. 123 S.Ct. at 1225. However, a negligent railroad is entitled to a reduction of the amount the jury may decide the railroad owes its injured employee when the employee is partially at fault in causing the accident. Id. The Court did not address whether a railroad may introduce evidence of an employee's preexisting medical condition in determining the extent of the employee's fault.
Therefore, while instructive is some respects, Ayers is by no means dispositive as to admissibility of evidence of an employee's preexisting medical condition for damages purposes. This Court must thus turn to the prevailing law of this Circuit, which is set forth in Sauer v. Burlington Northern Railroad Co., 106 F.3d 1490 (10th Cir. 1997). In Sauer, the Court permitted the introduction of evidence of a railroad employee's preexisting medical condition, and presented the jury with the task of determining to what extent, if any at all, the preexisting condition should affect a finding of liability or computation of damages. See 106 F.3d at 1494.
Apportionment of damages is best determined by the jury, and is properly addressed by this Court through its instructions to the jury. For example, in Stevens v. Bangor and Aroostook Railroad Co., 97 F.3d 594 (1st Cir. 1996), an employee brought an action against a railroad company under the FELA for back injuries allegedly sustained from an accident on the job. The trial court instructed the jury that if they could not "separate the pain or disability caused by the pre-existing condition from that caused by the [accident] then the defendant is liable for all of plaintiffs injuries." Id. at 601.
In affirming the lower court's decision to instruct the jury on the usefulness of the evidence of a preexisting condition, the First Circuit acknowledged that as a general matter, when a plaintiff's preexisting medical condition is aggravated by defendant's negligence, the defendant is liable only for the additional increment caused by the negligence. Id. at 601. However, the court concluded, "particularly in light of FELA's broad remedial purposes, . . . if the fact finder cannot separate injuries caused or exacerbated by the accident from those resulting from a pre-existing condition, the defendant is liable for all such injuries." Id. at 603. Allowing the defendant to escape such liability because the fact finder could not apportion damages between an injury caused by the defendant and a pre-existing condition would "defeat the remedial purpose of the statute." Id. at 602.
Therefore, this Court finds that evidence of the plaintiff's preexisting medical condition is admissible, and will allow its introduction at trial. The plaintiff may offer rebuttal evidence as it deems appropriate. Both parties will be permitted to submit proposed jury instructions to address the effect such evidence may have upon the jury's finding of liability and any computation of damages.