Noble v. BNSF Railway Company

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THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL NOBLE, Individually and 	)
As Guardian of THERESA ANN PULLEY, 	)
)
and 	)
)
DANIELLE N. PRUETT, Individually and 	)
as Mother and Next Friend of her son A.G., 	)
a minor, and TINA PULLEY, 	)
)
Plaintiffs, 	)
)
vs. 	) 	Case No. 3:24-cv-02268-SMY
)
BNSF RAILWAY COMPANY, 	)
)
Defendant. 	)
__________________________________________)
MEMORANDUM & ORDER
SISON, Magistrate Judge:
I NTRODUCTION AND BACKGROUND
On February 17, 2024, Plaintiffs’ vehicle and a train operated by the Defendant
BNSF Railway Company collided, which resulted in catastrophic injuries. Plaintiffs allege
that the Defendant was negligent in failing to install certain safety equipment at the
railroad crossing in question and failing to maintain the crossing in a reasonably safe
condition. Plaintiffs further allege that the Defendant failed to sound the locomotive’s
horn when it approached and went through the crossing.
The instant matter comes before the Court on Plaintiff Michael Noble’s Second
Motion to Compel, which was filed on July 2, 2025. (Doc. 44). The Defendant BNSF
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Railway Company filed a response to the motion on July 16, 2025. (Doc. 50). The matter
was referred to the undersigned for disposition by United States District Judge Staci M.
Yandle on July 7, 2025. (Doc. 45). The Court held a hearing on the motion on August 12,
2025. 	(Doc. 	56). 	At 	the 	hearing, 	the 	Court, 	on 	the 	record, 	disposed 	of 	various
interrogatories and requests for production that were at issue between the parties. Id. It
further ordered the Defendant to supplement the requested discovery within 30 days. Id.
The Court, however, took under advisement the matter of whether post-accident
discovery should be produced. Id. For the foregoing reasons, the Court GRANTS
Plaintiff’s Motion to Compel (Doc. 44) regarding this issue.
D ISCUSSION
Plaintiff seeks to resolve objections raised by the Defendant to certain discovery
requests propounded by Plaintiff. The relevant discovery requests are as follows:
• 	Interrogatory No. 11. Other than the warning devices, signs, and markings in place
at the Crossing at the time of the Crash, were any other devices, signage or
markings installed or in place at the Crossing from January 1, 2017[,] to the
present[;]
• 	Request No. 12. Produce all Documents and Correspondence related to any
complaints, notices, reports or writings regarding or referencing the Crossing from
January 1, 2017[,] to the present. This includes but it not limited to any complaints
related to safety, warning devices, signs, ground surface, layout, near misses,
visual 	obstructions, 	vegetation 	surrounding 	the 	track, 	train 	movements 	or
handling, and/or train noise or audible sounds[;]
• 	Request No. 13. Produce all Documents relating to any inspections of the Crossing,
including but not limited to the vegetation near and approaching the Crossing
from January 1, 2017[,] to the present[;]
• 	Request No. 15. Produce all Documents regarding installation of each warning
device, sign, marking, gates, and/or lights currently in place at the Crossing[;]
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• 	Request No. 20. Produce all Documents and Correspondence sent to or received
from the Illinois Commerce Commission related to the Crossing from January 1,
2020[,] to the present[;]
• 	Request No. 21. All Documents and Correspondence referencing or related to any
Stop sign at the Crossing from January 1, 2020[,] to the present[;] and
• 	Request No. 24. Produce all Documents regarding any other incidents, collisions,
near misses, or other safety-related reports regarding the Crossing, or any other
crossings within a 2-mile radius of the Crossing, from January 1, 2017[,] to the
present.
(Doc. 44-1, p. 4, 10-12, 14-16). Specifically, Defendant raised relevance objections to these
discovery requests because Plaintiff sought information which post-dated the date of the
crash.
Defendant relies on Rule 407 of the Federal Rules of Evidence to argue that the
Plaintiff cannot show relevance with the above requests. Rule 407 states: “[w]hen
measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove: negligence; culpable
conduct; a defect in a product or its design; or a need for a warning or instruction.” F ED.
R. EVID. 407. In its response, Defendant noted that the crash occurred more than eight (8)
months prior to when it was required to install certain safety improvements at the
crossing in question. (Doc. 50, p. 5). Defendant further noted that it completed installation
of advanced safety devices at the subject crossing on or about April 1, 2024, in compliance
with 	its 	obligations. 	Id. 	Defendant 	argues 	that 	the 	installation 	of 	these 	safety
improvements at the crossing after the crash is a subsequent remedial measure covered
by Rule 407. Because such evidence cannot be used to establish negligence, culpable
conduct, and/or the need for a warning or instruction, Plaintiff’s request for information
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post-dating the accident is irrelevant.1 Rather, the true question is what was in place at
the time of the incident.
The scope of discovery is limited to matters “relevant to any party’s claim or
defense . . . .” F ED. R. C IV. P ROC. 26(b)(1). However, “[i]nformation within this scope of
discovery need not be admissible in evidence to be discoverable.” Id. (emphasis added).
Plaintiff correctly notes that the issue is discoverability (not admissibility) and relies on
several cases where the court rejected attempts to use Rule 407 to prohibit discovery. See,
e.g., Jumper v. Yellow Corp., 176 F.R.D. 282, 284-285 (N.D. Ill. 1997) (holding that requested
grievance documents did constitute evidence of subsequent remedial measures, but such
materials should not be withheld from discovery because its admissibility at trial would
later be determined via a motion in limine); Stalling v. Union Pacific Railroad Co., No. 01 C
1056, 2003 WL 21317297, at *10 (N.D. Ill. June 6, 2003) (holding that discovery requests
relating to improvements at railroad crossing were not precluded under Rule 407 because
it was “not a rule governing pretrial discovery.”); Boldt Co. v. Black & Veatch Construction,
Inc., No. 19-cv-08383, 2021 WL 12319872, at *4 (N.D. Ill. Dec. 2, 2021) (rejecting argument
that Rule 407 shielded certain requested documents from discovery).
The Court further notes that Rule 407 provides for certain exceptions to its general
exclusionary rule. For example, “the court may admit this evidence for another purpose,
1 	Defendant also relies on Rule 401 for the definition of relevance. Rule 401 states
that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable
that it would be without the evidence; and (b) the fact is of consequence in determining
the action.” FED. R. EVID. 401.
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such as impeachment or – if disputed – proving ownership, control, or the feasibility of
precautionary measures.” FED. R. EVID. 407. At the hearing, Plaintiff argued that a
potential issue at trial could be the feasibility of precautionary measures and that the
requested information could be used for impeachment depending on what was argued.
The applicability of Rule 407 and whether any relevant exception applies will be a matter
for Judge Yandle to determine at some later point in time. In light of Rule 26 and the legal
authorities cited by Plaintiff, Defendant’s relevance objections are overruled, and
Defendant must now produce the requested discovery.2
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Compel (Doc.
44) regarding the production of post-accident discovery. Defendant is hereby given until
December 19, 2025, to provide the requested discovery to Plaintiff.
IT IS SO ORDERED.
DATED: November 26, 2025.
______________________________
GILBERT C. SISON
United States Magistrate Judge
2 	Defendant also relied on Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344
(2000), to argue that Plaintiff’s state tort law claims should be preempted because federal
funds were used to install warning devices at the crossing in question. Shanklin, however,
does not address pre-trial discovery – a point to which Defendant conceded at the
hearing. The issue of preemption is best raised through a dispositive motion, which will
be for Judge Yandle to determine.
Gilbert C
Sison
Digitally signed by
Gilbert C Sison
Date: 2025.11.26
08:48:24 -06'00'
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