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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 1 Facsimile (206) 625-1807

 HONORABLE J. KELLEY ARNOLD

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT TACOMA

ROBERT AINSWORTH

Plaintiff,

vs. 

BNSF RAILWAY COMPANY, a Delaware

corporation

Defendant.

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NO. C06-5349 JKA

FINAL PRETRIAL ORDER

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JURISDICTION

This Court has jurisdiction over Plaintiff’s claims against Defendant as provided by the

Federal Employers’ Liability Act (FELA) 45 U.S.C. § 51 et. seq.

CLAIMS AND DEFENSES

Plaintiff will pursue at trial the following claims:

That on February 13, 2005, plaintiff claims to have suffered an injury while in the

course of his employment with BNSF. Plaintiff claims that the injuries were caused by

defendant's negligence and defective equipment provided by defendant, in violation of the

Federal Employers Liability Act. As a direct result of defendant's negligence and violations of

the Federal Employers Liability Act, plaintiff claims to have suffered back and related hip

injuries, pain, suffering, disability and past and future economic losses. 

Case 3:06-cv-05349-JKA Document 31 Filed 03/13/08 Page 1 of 14
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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 2 Facsimile (206) 625-1807

Defendant BNSF will assert as follows: 

Defendant has admitted that plaintiff reported an injury on February 13, 2005, however

BNSF has denied the nature of the allegations of liability against it, and has also denied the

allegations regarding the cause of the injury to plaintiff’s hips and the extent of the damages

claimed by plaintiff.

ADMITTED FACTS

The following facts are admitted by the parties:

1. Plaintiff has worked for defendant BNSF since 1992, and has held the job of

locomotive conductor since 1994. From 1994 to the present, plaintiff worked in the Seattle

and Tacoma area, and his duties as a conductor included coupling, uncoupling and switching

rail cars at sidings, junctions, rail yards and other places.

2. On February 13, 2005, while in the normal course of his employment, plaintiff was

instructed to remove a freight car from a train, and move the freight car to a siding track. In

order to do so, plaintiff was required to operate a track appliance or device known as a

"derail." When activated, this derail device is designed to derail a freight car to prevent

unauthorized travel. Plaintiff disengaged or opened the derail device. In the course of doing

so, plaintiff claims that he suffered back injuries.

3. Plaintiff underwent medical treatment as a result of these injuries, including lumbar

epidural steroid injections, low back surgery, extensive physical therapy and rehabilitation. 

Plaintiff developed a condition of the hips known as avascular necrosis, which necessitated

bilateral hip replacement. Since 2005, plaintiff has worked sporadically due to limitations

imposed by his medical providers and is now unable to return to his job as a conductor.

The plaintiff contends as follows:

1. Defendant was negligent and in violation of the Federal Employers Liability Act and

said negligence was a direct cause of plaintiff's injuries and complications.

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 3 Facsimile (206) 625-1807

2. Specifically, defendant was negligent in the provision, maintenance, instructions and

work methods pertaining to the operation of the flip-flop derail device which caused plaintiff's

injuries.

3. Plaintiff sustained back injuries which required treatment with steroids and surgery. 

4. As a direct result of the steroid treatment, plaintiff developed avascular necrosis of

both hips, requiring total hip replacement.

5. Plaintiff suffered damages as a direct result of defendant's negligence.

The defendant contends as follows:

1. Defendant BNSF provided Plaintiff with a reasonably safe place to work.

2. Plaintiff’s injuries were not caused by Defendant’s actions, but by preexisting

physical and medical conditions not within defendant’s control.

3. Plaintiff’s comparative fault caused or contributed to plaintiff’s injuries and serves

to preclude or reduce plaintiff’s claim for damages accordingly.

4. Plaintiff’s contention that the twinge he felt in his back caused the avascular necrosis

that later developed in his hips, or that his hip condition was caused by steroid injections given

to him to treat his back injury lacks medical support.

5. Plaintiff has failed to properly mitigate his damages in this case.

6. Defendants are not liable for plaintiff’s claimed damages, .

ISSUES OF LAW

Plaintiff contends, and defendant agrees, that this is a case involving a claim of

negligence. As such, the issues are as follows:

(a) Was defendant negligent?

(b) If defendant was negligent, did such negligence violate the FELA?

(c) Did defendant’s negligence, if any, cause plaintiff’s back and/or hip injuries?

(d) Are plaintiff’s damages, if any, precluded, reduced, or offset by any of the affirmative

defenses asserted by defendant, and if so, to what extent?

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 4 Facsimile (206) 625-1807

EXPERT WITNESSES

(a) The parties are limited to the number 

(b) The names and addresses of the expert witnesses to be used by each party at trial

and the issue upon which each will testify are:

(1) On behalf of plaintiff;

Name Will Testify or Possible

Witness Only

Wilson C. Hayes, Ph.D.

Hayes + Associates

301 SW 4th Street, Suite 160

Corvallis, OR 97333

Will testify re negligence and causation

Will Testify

Merrill Cohen

Strategic Consulting Services

401 Olympia Ave. NE

Suite # 301

Renton, Washington

Will testify re vocational rehabilitation

Will Testify

Jeffrey Opp

Carlson, Opp & Associates

7600 E. Arapahoe Road

Suite 100

Englewood, Colorado 80112

Will testify re economic losses

Will testify

Virgil Becker, M.D.

Cascade Orthopedics

122 3rd NE, #401

Auburn, WA 98002

Treating physician: will testify re medical issues 

Will Testify by deposition

James Parker, M.D. 

305 N. River Avenue

Buckley, WA 9832

Treating physician: will testify re medical issues 

Will Testify by deposition

Terri Archer, LOTA/L

Performance Work Rehab

1830 112th St E

Tacoma, Washington 98445

Treating physical therapist: will testify re physical

rehabilitation issues, effect of injuries, return to work

May Testify

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 5 Facsimile (206) 625-1807

(2) On behalf of defendant;

Name Will Testify or Possible

Witness Only

Dr. Michael Battaglia

3 Church Circle, Suite 210

Annapolis, MD 21201

Dr. Battaglia will testify to plaintiff’s orthopedic issues

Will Testify

Stan Owings

Owings and Associates, Inc.

11422 Des Moines Memorial Drive, 

Seattle, WA 98168 

Mr. Owings will testify to plaintiff’s vocational

rehabilitation

Will Testify

Dr. David Knowles

3302 Fuhrman Ave E., Suite 111

Seattle, WA 98102 

Dr. Knowles will testify to plaintiff’s economic loss claim

Will Testify

LAY WITNESSES

(a) The names and addresses of each witness to be called by each party at trial and the

subject matter upon which each witness will testify are:

(1) On behalf of plaintiff;

Name Will Testify or Possible

Witness Only

Robert Ainsworth

22313 112th Street Court East

Buckley, Washington 98321

Plaintiff

Will Testify

Michael D. Hamilton

BNSF Engineer

May Testify

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 6 Facsimile (206) 625-1807

Andrew Vulgas

BNSF Roadmaster

May testify re condition of derail on inspection.

May Testify

(2) On behalf of defendant;

Danny Thomassen

Claims Manager / BNSF

c/o Montgomery Scarp MacDougall

1218 Third Avenue, Suite 2700

Seattle, WA 98101

Mr. Thomassen may testify for the limited purpose of the

recorded statement of plaintiff, the facts and

circumstances surrounding plaintiff’s previous back injury

and release for the same, and any employment offers

conveyed to plaintiff.

Possible Witness Only

EXHIBITS

(a) Admissibility stipulated:

Plaintiff’s Exhibits

33. 2 photographs of derail device (Exh. 3, Ainsworth Dep.); 2 photographs of

location of accident (Ex. 4, Ainsworth Dep.)

43. Spine and hip models (for illustrative purposes only)

50. 02/14/2005 BNSF Employee Personal Injury Report, with statements of plaintiff

and engineer Michael D. Hamilton attached, and BNSF "Non-Reportable Injury

Follow-up Instructions."

Defendant’s Exhibits

A-1 Employee Injury/Occupational Illness Report

A-2 2/14/05 Statement of Robert Ainsworth

A-3 2/14/05 Statement of Michael Hamilton

A-4 Photos of the Derail

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 7 Facsimile (206) 625-1807

(b) Authenticity stipulated, admissibility disputed:

Plaintiff’s Exhibits

1. 03/7/2005 lumbar spine x-ray, Dr. David Rice.

2. 03/29/2005 Nydic lumbar spine MRI.

3. 04/4/2005 lumbar ESI injection report, Dr. David Rice.

4. 04/19/2005 lumbar ESI injection report, Dr. David Rice.

5. 05/3/2005 lumbar ESI injection report, Dr. David Rice.

6. 06/24/2005 initial patient intake form, Dr. Virgil Becker.

7. 07/13/2005 diskography report, Elliott Sacks, M.D.

8. 06/24/2005-11/25/2005 records and reports of Dr. Virgil Becker

9. 12/1/2005 lumbar ESI injection report, Dr. David Rice.

10. 12/1/2005 letter from Dr. Daniel Anderson to Dr. Virgil Becker.

11. 12/7/2005 chiropractor report, Daniel Anderson, D.C.

12. 12/8/2005 Lumbar spine x-ray, David Rice, M.D.

13. 12/21/2005 letter regarding job descriptions, Dr. Daniel Anderson.

14. 01/30/2006 discharge summary, Dr. Virgil Becker, Auburn Reg. Med. Ctr.

15. 02/16 – 04/5/2006 MVP Physical Therapy chart notes.

16. 04/10/2006 Work Hardening Update rpts., Olympic Sports & Spine.

17. 04/10/2006 Intake checklist and form and patient questionnaire.

18. 04/11/2006 Olympic Sports & Spine Rehab report titled “Personal Profile.”

19. 04/13/2006 MCMC records; Ashley Stevens, RN.

20. 04/10 – 05/1/2006 chart notes, Olympic Sports & Spine.

21. 05/4/2006 MRI of hips, Jeffrey Morrison, M.D.

22. 05/4/2006 hip MRI, Valley Diagnostic Imaging.

23. 05/10/2006 billing summary, Olympic Sports & Spine.

24. 05/18/2006 Patient statement inquiry.

25. 06/7/2006 Patient Medical History Form, David H. Bishop, M.D.

Case 3:06-cv-05349-JKA Document 31 Filed 03/13/08 Page 7 of 14
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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 8 Facsimile (206) 625-1807

26. 06/7/2006 report of Dr. David Bishop.

27. 06/16/2006 operative report, Virgil Becker, M.D.

28. 02/23/2005-06/19/2006 Records of James L. Parker, M.D.

29. 07/11/2006 report of Gary P. Hunter, D.O.

30. 07/14/2006 operative report, Dr. Gary Hunter.

31. 07/17/2006 Attending Physician Suppl. Statement, Dr. Gary Hunter.

32. 08/23/2006 operative report, Dr. Gary Hunter.

37. Supervisor’s Report and report of inspection of derail device.

44. Ainsworth tax returns.

51. 08/27/2007 DVD with photographs and video from inspection of accident site

 by Wilson C. Hayes, Ph.D.

53. 10/19/2007-2008 chart notes, Performance Work Rehabilitation, Terri Archer.

54. 11/15/2007 report of Wilson C. Hayes, Ph.D.

55. 12/21/2007 report, Merrill Cohen.

56. 12/21/2007 report; 12/26/2007 supplemental report, Jeffrey B. Opp.

57. Photographs of derail taken by defendant shortly after accident.

59. 12/17/2007 report of Dr. Becker.

Defendant’s Exhibits

A-5 11/6/2007 report, Stan Owings.

A-6 CV, Stan Owings.

A-7 8/21/07 report, Dr. Michael Battaglia

A-8 8/26/07 report addendum, Dr. Michael Battaglia.

A-9 1/8/08 report addendum, Dr. Michael Battaglia.

A-10 CV, Dr. Michael Battaglia.

A-11 12/28//07 report, Dr. David Knowles.

A-12 CV, Dr. David Knowles.

A-13 Recorded Statement of Robert Ainsworth.

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 9 Facsimile (206) 625-1807

A-14 Employee Injury/Occupational Illness Report.

A-15 BNSF Employee Transcript.

A-16 Medical Records – Injury of 2/13/05.

A-17 Medical Records - Back Injury of 09/12/00.

A-18 3/14/05 Voluntary Advancement Program, signed by Robert Ainsworth

A-19 Letter to Mr. Ainsworth from Joan Costa dated January 29, 2008

A-20 5/19/2006 report of Dr. Becker

A-21 9/15/2003 report of Dr. Michael A Welsh

(c) Authenticity and admissibility disputed:

Plaintiff’s Exhibits

34. Learned treatise materials on steroids and avascular necrosis relied upon by

plaintiff’s experts.

35. FDA publications on Kenalog.

36 Medical and scientific journal articles regarding steroids and avascular necrosis.

38. Defendant’s Claims file.

39. Prescribing information for Kenalog, Physicians Desk Reference.

40. Manufacturer’s product insert for Kenalog.

41. Prescribing information for Medrol, Physicians Desk Reference.

42. Manufacturer’s product insert for Medrol.

45. Defendant’s Seniority roster.

46. Personnel file.

47. High school transcript.

48. April 1990 AAR report “An Ergonomic Investigation of Hand Switch

Operation.”

49. October 1993 AAR report “Manual of Hand Switch Operation.”

52. NIOSH report referenced in report of Dr. Hayes.

58. Report of inspection of derail by Andrew Vulgas, roadmaster.

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 10 Facsimile (206) 625-1807

Defendant’s Exhibits

//

ORDERS IN LIMINE

(a) Pursuant to the agreement of the parties, the court orders as follows:

Plaintiff’s Motions In Limine:

(1) Railroad Retirement Eligibility: Defendant is precluded from introducing

evidence regarding railroad retirement eligibility.

(Stricken without prejudice at pretrial conference.)

(2) Collateral Source Benefits: Defendant is precluded from introducing evidence

of benefits or payments that plaintiff may receive from an independent source.

This does not include payments from BNSF or earnings from other employment

that would be relevant to the issue of mitigation of damages.

(3) Assumption of Risk: Defendant is precluded from arguing that plaintiff assumed

the risk of injury as part of the nature of his employment.

Defendant’s Motions In Limine:

(4) Federal Safety Appliance Act / Locomotive Inspection Act: Plaintiff is

precluded from arguing or introducing evidence relating to the Federal Safety

Appliance Act or the Locomotive Inspection Act as no claims are being pursued

thereunder.

(5) Loss of Consortium: Plaintiff is precluded from offering any evidence or

testifying regarding loss of consortium.

(6) Relative Financial Conditions: Neither party shall mention plaintiff’s or

defendant’s relative financial positions.

(7) Railroad’s General Safety or Lack of Safety: Plaintiff is precluded from offering

any evidence, arguing or referring to the railroad as a generally unsafe or

dangerous place to work.

(8) Punitive Arguments: Plaintiff is precluded from arguing or suggesting any type

of punitive award, or that a large award will “send a message” to the railroad. 

Such punitive damages are not recoverable under the FELA. Arguments

designed to inflame the jury to “punish” a defendant in an FELA case are

inadmissible and constitute reversible error.

(9) Plaintiff’s Financial Condition / Expenditures / Financial Needs: Plaintiff is

precluded from offering any evidence, testifying, arguing or referring to his

financial condition, expenditures or requirements for expenditures other than

those directly related to his injury. Plaintiff shall not introduce testimony to

imply poverty or neediness or inability to maintain his standard of living.

(10) Non-Party Witnesses Excluded: Witnesses who may be called by either party

shall be excluded from the courtroom prior to giving their testimony. ER 615.

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1 (See Defendant BNSF’s Motions In Limine).

MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 11 Facsimile (206) 625-1807

(11) Mediation / Settlement Negotiations: Neither party shall make reference to

settlement negotiations or mediation. Offers to compromise are inadmissible at

time of trial. ER 408.

(12) Physical Demonstration of Injury: Plaintiff is precluded from offering any

evidence or physical demonstration of his injury.

(13) Liability or Indemnity Insurance: Plaintiff is precluded from making any

reference whatsoever that defendant has any type of insurance coverage. The

fact that a defendant may or may not be insured is entirely immaterial to the

issues in the case.

(14) Characterization of Attorneys: The parties are precluded from referring to

themselves or the other lawyers in the case except by name or as representing

their respective party. The attorneys shall not be referred to as “corporate

counsel, out-of-state counsel, Seattle attorneys, railroad lawyers,” or other

similar characterizations.

(15) Golden Rule Arguments: Plaintiff is precluded from making any “golden rule”

argument or appealing to jurors to put themselves in the plaintiff’s position and

to decide on what they would want under similar circumstances. Such

arguments are improper and misleading.

(16) Motions In Limine: The parties are precluded from referring to the motions in

limine.

(17) Unrelated Railroad Accidents or Lawsuits: Plaintiff is precluded from making

any reference to other lawsuits, claims of injuries, and/or accidents involving the

railroad. Evidence of other lawsuits or accidents involving defendant is not

admissible to establish negligence in this case. ER 404(b).

(b) The following motions in limine are in dispute, and require rulings by the court:1

(The Court ruled at pretrial conference on 3/12/2008.) 

(18) The Alleged "Congressional Intent" Of The Federal Employers' 

Liability Act Should Be Excluded. The parties are precluded from offering any

testimony or making any reference to the “congressional intent” of the

enactment of the FELA. It is improper to refer to any purported 

"congressional intent" of the FELA. 

(19) BNSF’s Supervisor Report Is Not Admissible. Plaintiff is precluded from

offering any testimony or evidence related to the BNSF Supervisor's Report. 

Under federal law, BNSF is required to submit monthly reports of employee

accidents to the Federal Railroad Administration. 49 USC § 20901; 49 CFR §§

225.11; 225.19. However, no part of the accident reports can be admitted or

used for any purpose in any action "for damages resulting from a matter

mentioned in the report." 49 USC § 20903 and 49 CFR §225.7. Moreover,

plaintiff did not disclose the report under CR 26, did not request it through

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 12 Facsimile (206) 625-1807

discovery, and plaintiff’s expert did not rely on the report in formulating his

opinions.

(20) Railroad Discipline or Disciplinary Measures: Plaintiff is precluded from

offering any evidence that BNSF did or did not discipline him for this incident.

(21) Family Status: Plaintiff is precluded from offering any evidence or testifying

regarding his family or family status in any way. 

(22) Workers’ Compensation Case / Law: Plaintiff is precluded from offering any

evidence or reference to this action as a workers’ compensation case. 

Defendant is not covered by state workers’ compensation laws. Evidence that

defendant is not covered by the state workers’ compensation scheme shall also

be excluded.

(23) Occurrence Or Quality Of Defendant Railroad’s Post Accident Investigation.

Plaintiff is precluded from introducing evidence or making reference to any post

accident investigation by defendant railroad. Evidence relating to this issue is

federally preempted. The preemptive effect of regulations adopted pursuant to

the Federal Rail Safety Act, 49 U.S.C. § 20101, et. seq., is set forth in 49

U.S.C. § 20106; See also Norfolk Southern Ry. Co. v. Shanklin, 120 S.Ct.

1467, 146 L.Ed.2d 374 (2000). 

(24) Evidence Regarding Safer Procedures Or Methods of Work. Plaintiff is precluded from arguing or offering evidence or arguing that the

railroad could have provided safer procedures or methods of work, because

such evidence misstates defendant’s duty. In establishing the railroad's duty in

FELA cases, the courts have consistently held that the duty is simply to provide

reasonably safe equipment. The railroad is not required to furnish an absolutely

safe workplace. Rather, the railroad's duty is to exercise reasonable and

ordinary care to provide a reasonably safe place for the work to be performed. 

Brady v. Southern Ry. Co., 320 U.S. 476 (1943).

(25) Evidence Of Plaintiff's Gross Wage Loss.

Plaintiff is precluded from offering evidence of gross wages or economic loss

based on gross earnings. Because damages are limited to the proven pecuniary

loss sustained by plaintiff, merely calculating the gross income which the

plaintiff would have earned in the future is an improper measure of damages in a

FELA case. Only after-tax earnings, or net loss earnings, can be used. Norfolk

& Western Railway v. Leipelt, 444 U.S. 490 (1980). 

(26) FELA As The Sole Remedy Available To The Plaintiff.

Plaintiff is precluded from arguing, making reference to, or implying that the

FELA is plaintiff's sole remedy. The existence or non-existence of the FELA as

the sole remedy has no relevance in this trial. Comments by plaintiff's counsel to

the effect that the plaintiff has no compensation rights other than through

prosecution of this FELA case are, under the greater weight of authority,

irrelevant, improper, and would constitute prejudicial error. Van Slyke v. New

York Central, 21 A.D. 2d 147, 249 NYS 2d 462, 466 (1964); see also Kocack,

supra at 247; Lanni v. Wyer, 219 F.2d 701, 703 (2d Cir. 1955).

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 13 Facsimile (206) 625-1807

(27) Reference To Plaintiff As A Good Or Safe Employee.

Plaintiff is precluded from arguing, testifying or implying that plaintiff is a good or

a safe employee. Whether plaintiff was on other occasions a good or safe worker

is not an issue in this case and would seem to bear only on the images of the

parties as being "good" or "bad". As such, evidence that on other occasions

plaintiff was a good or safe worker would be prejudicial if admitted, and should

be excluded. ER 402, 403. Evidence of a person's character as a good or safe

worker (or otherwise) used to prove the quality and nature of his conduct at the

time of the accident is also inadmissible. ER 404.

(28) Evidence of Related Medical Conditions or Accidents Is Admissible. It is

 anticipated that the plaintiff will argue that under Norfolk & Western Ry. v. Ayers,

538 U.S. 135, 123 S. Ct. 1210, 155 L.Ed. 2d 261 (2003), this court should

preclude any evidence that his injuries were caused by a pre-existing condition. 

Such evidence is admissible here. In Rust v. BNSF, 2003 U.S. Dist. LEXIS

24476 (D.C. Co. 2003), the court disagreed, finding that Ayers did not ever

address whether a railroad could introduce evidence of an employee’s preexisting

medical condition in determining the extent of the employee’s fault. The Rust

court decided that post-Ayers, the prevailing law on this issue is still Sauer v.

Burlington N. R.R. Co., 106 F.3d 1490, 1494 (10th Cir. 1997), where evidence of

an employee’s preexisting medical condition was proper so that the jury could

determine to what extent, if any, the preexisting condition should affect a finding

of liability or computation of damages. 

(29) Experts / Lay Witnesses Not Previously Or Properly Disclosed.

Plaintiff is precluded from offering any expert witnesses not timely identified and

whose opinions and all relevant facts in support thereof have not been properly

disclosed. Fed.R.Civ.P. 26(a). Plaintiff is further precluded from calling any lay

witnesses not timely disclosed. Id.

(30) Plaintiff’s Expert Wilson C. Hayes’ Medical Causation Opinions. Plaintiff is precluded from offering medical testimony by biomechanical

engineering expert Wilson C. “Toby” Hayes. Mr. Hayes is precluded from

testifying at trial that plaintiff’s back injury was caused by operating BNSF’s

derail switch. Mr. Hayes, is an engineer, and is not competent to testify as to

medical causation of injury under FRE 702. 

(31) Plaintiff’s Expert David Schenkar’s Medical Causation Opinions.

Plaintiff is precluded from offering testimony regarding medical causation testimony

by expert witness Dr. David Louis Schenkar. Dr. Schenkar is precluded from

testifying at trial that plaintiff’s avascular necrosis was caused injections of epidural

steroids. 

(32) Railroad Retirement Benefits / Monetary Advancement / Pension Contribution

(a) BNSF may introduce evidence of Railroad Retirement benefits. Evidence of

benefits paid under the Railroad Retirement System shall be permitted on the issue

of plaintiff’s failure to mitigate his damages. 

(b) For monetary advancements to plaintiff under BNSF’s Voluntary Income

Program, BNSF is entitled to a set-off as to any monies plaintiff received under that

program. 

(c) The cost of BNSF’s contribution to a pension system are paid as taxes to the

Railroad Retirement system, similar to Social Security. If plaintiff is eligible to

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MONTGOMERY SCARP MACDOUGALL, PLLC

1218 Third Avenue, Suite 2700

Seattle, Washington 98101

Telephone (206) 625-1801

AMENDED PRETRIAL ORDER - 14 Facsimile (206) 625-1807

receive, or did receive any benefits under this system, BNSF’s contribution is not

a fringe benefit and shall be excluded from plaintiff’s economists calculations.

As provided for in the Court’s December 11, 2006 Scheduling Order, defendant has

submitted, along with this proposed pretrial order, a memorandum addressing the merits of the

disputed orders in limine.

ACTION BY THE COURT

(a) This case is scheduled for a jury trial beginning on March 17, 2008.

(b) Trial briefs should be submitted to the court on or before - filed 3/3/2008. 

(c) Amended jury instructions are to be submitted forthwith. 

(d) Other court rulings.

This order has been approved by the parties as evidenced by the signatures of their counsel.

This order shall control the subsequent course of the action unless modified by a subsequent order.

This order shall not be amended except by of order of the court pursuant to agreement fo the

parties or to prevent manifest injustice.

DATED this 13th day of March, 2008.

BY THE COURT:

/s/ J. Kelley Arnold 

Honorable J. Kelley Arnold

United States Magistrate Judge

Bremseth Law Firm MONTGOMERY SCARP MACDOUGALL,

PLLC

 /s/ Keith E. Ekstrom /s/ Bradley Scarp 

Fredric Bremseth, admitted Pro Hac Vice Bradley Scarp, WA. Bar No.21453

Keith E. Ekstrom, admitted Pro Hac Vice Tobias J. Kammer, WA Bar No. 34578

Attorneys for plaintiff Attorneys for Defendant BNSF 

601 Carlson Parkway, Suite 995 Brad@MontgomeryScarp.com

Minnetonka, Minnesota 55391

Phone: 952-475-2800

Case 3:06-cv-05349-JKA Document 31 Filed 03/13/08 Page 14 of 14