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Clemens v. Union Pacific Railroad Co.

United States District Court, E.D. California

November 13, 2019

TIM C. CLEMENS, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.

          AMENDED PRETRIAL CONFERENCE ORDER

          John A. Mendez United States District Judge

         Pursuant to court order, a Pretrial Conference was held on November 1, 2019, before Judge John Mendez. Anthony Petru and Gavin Barney appeared as counsel for plaintiff; Robert Gibbons appeared as counsel for defendant. After hearing and submission of additional papers by the parties, the Court makes the following amended findings and orders:

         I. JURISDICTION/VENUE

         Jurisdiction is predicated upon 45 U.S.C. § 51 et seq., and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.

         II. JURY/NON-JURY

         Plaintiff has requested a jury trial in this case.

         III. STATEMENT TO BE READ TO JURY

         No later than December 2, 2019, the parties shall E-file a joint statement of the case that will be read to the jury at the beginning of jury selection.

         IV. UNDISPUTED FACTS

         1. On April 2, 1986, Plaintiff hired out with Southern Pacific Railroad as a track department laborer in Klamath Falls, Oregon. Southern Pacific later merged into UPRR and Plaintiff remained an employee with the company.

         2. At all times during Plaintiff's employment with UPRR, UPRR was a common carrier by railroad and was engaged in interstate commerce. During that time Plaintiff's job duties for UPRR furthered, or in any way substantially affected, interstate commerce.

         3. In 1991, Plaintiff transferred to the water services department and, in 1998, became a foreman. In 2006, Plaintiff transferred out of the water services department and worked in the bridge department with UPRR. In 2012, he returned to his position as a water services foreman.

         4. While he was employed as a water services foreman, Plaintiff was responsible for UPRR plumbing and wastewater systems throughout Northern California and Southern Oregon, including the in UPRR railyard in Dunsmuir, California.

         5. At the time of the alleged accident, UPRR operated and maintained a waste water treatment plant or "groundwater extraction treatment system ("GETS") in the UPRR Dunsmuir yard. The GETS in the Dunsmuir Yard was equipped with a filtration system that backwashed excess filtered matter into two drying beds.

         6. On March 30, 2015, Plaintiff reported a workplace injury to UPRR. Plaintiff has not returned to work since.

         V. DISPUTED FACTUAL ISSUES

         Plaintiff will argue that UPRR negligently failed to provide Plaintiff with a reasonably safe place to work and with reasonably safe tools, resources, procedures, and assistance with which to perform that work. UPRR will argue that it provided Plaintiff with a reasonably safe place to work, with reasonably safe tools, resources, procedures and assistance with which to perform his work.

         Plaintiff will argue that UPRR's negligence in January 2015 and during the course and scope of Plaintiff's employment with UPRR played a part, no matter how small, in causing Plaintiff to suffer serious injury to his back, requiring medical care including surgery. UPRR will argue that it was not negligent, and any injury or medical condition suffered by Plaintiff is unrelated to his work at Union Pacific.

         Plaintiff will argue that, as a result of his workplace injuries, he suffered damages including medical costs, lost earnings, and pain and suffering. UPRR will dispute the amount of any damages, including medical costs, lost earnings, and pain and suffering.

         VI. DISPUTED EVIDENTIARY ISSUES

         The parties believe that the evidentiary issues in this case can be resolved by motions in limine.

         At this time, Plaintiff expects to file such motions regarding the following:

         1. Inadmissibility of collateral source payments received by Plaintiff;

         2. Inadmissibility of any suggestion that Plaintiff assumed the risks of his employment with Defendant;

         3. Inadmissibility of demonstrative evidence that is substantially dissimilar to the facts at issue here;

         4. Inadmissibility of the UPRR video depicting the removal and replacement of dry filter media;

         5. Inadmissibility of surveillance not previously produced;

         6. Inadmissibility of past claims, litigation, settlement, or other use of the legal system;

         7. Inadmissibility of Plaintiff's unrelated medical conditions;

         8. Inadmissibility of any evidence of medical records relating to a person other than Plaintiff;

         9. Inadmissibility of Plaintiff's eligibility to retire at age 60;

         10. Inadmissibility of any medical expenses allegedly paid by UPRR;

         11. Inadmissibility of evidence pertaining to misdemeanors;

         12. Inadmissibility of any evidence pertaining to Plaintiff's drug use or involvement in substance recovery programs;

         13. Daubert motions regarding UPRR's experts; and

         14. Preclusion of any biomechanical or causation opinions by defense expert Mr. Page.

         At this time, UPRR expects to file such motions regarding the following:

         1. Exclusion of any evidence of medical expenses paid by Union Pacific;

         2. Daubert motions regarding Plaintiff's experts;

         3. Exclusion of any testimony from Plaintiff's retained expert Bonneau Dickson;

         4. Exclusion of any testimony from Plaintiff's retained expert Mills as ...


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