Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MKS-OES MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants. PLAINTIFFS' REPLY RE: MOTION FOR CLARIFICATION OR PARTIAL RECONSIDERATION OF THE MAY 3, 2005, ORDER ON DOCKET NO. 293 REGARDING COLLATERAL SOURCES

The plaintiffs, Michael E. Clawson, and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Reply Re: Motion for Clarification or Partial Reconsideration of the May 3, 2005, Order on Docket No. 293 Regarding Collateral Sources, and in support thereof, state as follows: I. CLARIFICATION IS APPROPRIATE TO AVOID A DISPUTE AT TRIAL AS TO THE INTERPRETATION OF THE COURT'S ORDER In plaintiffs' motion for clarification, various portions of the court's oral ruling were quoted to demonstrate the potential different interpretations the ruling might be given. Defendants attempt to refute this by singling out a particular portion and stating that the particular portion, a colloquy between Ms. Tuttle and the Court, means the ruling was clear. However, defendants' presentation merely proves plaintiffs point because other portions of the

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 2 of 10

order, if read independently, lead to a different interpretation of the order than that proposed by defendants. For example, the following colloquy occurred between Mr. Killian and the Court: The Court: . . . Any questions or need for clarification on that? Mr. Killian: So - - yes, your honor. You've excluded the evidence of alleged collateral sources during the jury trial portion[?] That's Correct.

The Court:

Reporters Transcript Conference of May 3, 2005, p. 17 l.19 - l.23. This portion of the oral ruling leads to a different interpretation than the portion cited by defendants. Due to the potentially conflicting interpretations of the court's order, clarification is appropriate. Attorneys are allowed to offer any reasonable interpretation of a court's order so long as it could reasonably be supported by the language used in the order. Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 289 (3rd Cir. 1991). Two interpretations are available from the language used, thus plaintiffs are requesting clarification. The purpose of motions in limine is to resolve complicated or potentially prejudicial evidentiary issues in advance of trial so that trial time need not be used, and so that the jury and witnesses are not made to wait while a result is reached. Motions in limine also allow the court more time to contemplate the issues, and thus increase the accuracy of decisions. Where the parties have differing interpretations of the court's order, which they intend to argue at trial, the purpose of filing and deciding a motion in limine is thwarted. Plaintiffs believe that the proper interpretation was that the court was broadly excluding evidence of potential collateral sources from the jury trial, but was reserving for hearing the issue of which payments were in fact collateral sources and which payments, if any, would be deducted from back pay. Defendants disagree. Plaintiffs request that the court clarify its order and resolve this dispute. 2

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 3 of 10

II.

IF AN ADVISORY VERDICT ON BACK PAY IS UTILIZED, THE COURT SHOULD CONSIDER A BROAD EXCLUSION OF COLLATERAL SOURCE INFORMATION A. General Considerations Regarding Exclusion of Collateral Sources

While the potential for prejudice from the jury learning of collateral sources always exists, that potential is increased if the jury is deciding economic damages. This is because the jury will be tempted to integrate any collateral source information with the other economic information that they have. This, in turn, leads to plaintiffs' main concern, which defendants never addressed in their response. If the jury has the formulas for determining the amount of collateral source money received, and they have plaintiffs' wage information, the jury will be able to calculate the amount of collateral source money received by the plaintiffs. This would defeat the purpose of excluding the information, ensuring prejudice to the plaintiffs. If the court was only intending to exclude the amounts received from collateral sources, plaintiffs request the court reconsider. Defendants also fail to address the problem with the jury using collateral source information in calculating back pay, a role this Court reserved to itself. Reporters Transcript Conference of May 3, 2005, p. 17, l.9 - l.12. It seems clear from the court's order that the jury is to give an advisory verdict on gross back pay, which the court may or may not take into consideration in deciding the final back pay amount. If it cannot be determined what role collateral sources played in the jury's advisory verdict, it will be unclear if the court needs to consider collateral sources in the final decision, and the advisory verdict will be of little use. Defendants' response criticizes plaintiffs for wanting to admit aspects of the collateral sources or collateral source policies, but to exclude the remainder. There is nothing sinister, or

3

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 4 of 10

even unusual in plaintiffs' proposal. A single document may contain relevant admissible information, irrelevant information, and relevant but unduly prejudicial information. See Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 717-18 (8th Cir. 2001) (Trial court erred in excluding letter to insurance company in its entirety, should have admitted part and excluded part). The same is true for the collateral source information. Generally, information on collateral sources should be excluded. Green v. Denver & Rio Grande R.R., 59 F.3d 1029, 1035 (10th Cir. 1995). In this case, certain information about the collateral sources is relevant to the merits of the claims and should be admitted into evidence. However, the relevance and admissibility of some information regarding a collateral source does not make all of the information relevant or admissible. It is appropriate for plaintiffs to introduce the portions of the collateral source information, including the policies and their applications, which tend to show liability, while seeking to exclude the remainder. Of course, if defendants have evidence showing contrary applications or contrary interpretations of the policies, defendants should be allowed to admit this information. On the other hand, the introduction of evidence on the application of these policies should not result in the wholesale introduction of evidence on amounts received, application of benefits, or other collateral sources. B. Specific Issues Raised by Defendants' Response

First, defendants assert that the only clear rule is one that is limited to excluding evidence of the amounts received. This is incorrect. Plaintiffs' motion at page 5 addresses this issue. Plaintiffs were able to clearly define the relevant evidence regarding collateral sources, which in turn gives the parties adequate notice of what is and is not admissible. By defining what

4

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 5 of 10

information on collateral sources is admissible, the court will create a clear and distinct line that will be easily understood and easily enforced. This clear definition of admissible collateral source evidence is one of the reasons defendants' proposal to reserve the issue for trial should be rejected. It will be much easier to apply a strict pre-trial ruling than to attempt to apply the full rules of evidence every time a collateral source issue comes up at trial. The second reason the court should not delay until trial is the potential prejudice to the plaintiffs. Collateral sources are to plaintiffs what liability insurance is to defendants. Both are generally irrelevant, and both result in prejudice because the jury believes someone else has, or will, take care of the damages through money payments. It is rarely appropriate to raise the issue of insurance at trial. Prudential Property & Cas. Ins. Co. v. District Court, 617 P.2d 556, 559 (Colo. 1980) (any allusion to insurance is improper). If the court awaits trial to rule, defense counsel will be able to allude to collateral sources in front of the jury multiple time during questioning and prejudice the plaintiffs even if none of the questions is answered. Such questioning regarding insurance would ordinarily not be allowed, and such questioning about collateral sources should not be allowed here. Second, defendants question whether the impairment rating of each plaintiff is relevant and should be admitted. An impairment rating puts a number on the extent of an individual's physical impairment from an injury. To measure permanent impairment in the Colorado workers' compensation system, the AMA Guides to the Evaluation of Permanent Impairment, Revised 3rd Ed. is used. Section 8-42-107(8)(b.5)(I) & (II). "The Guides to the Evaluation of Permanent Impairment . . . provides a reference framework within which physicians may evaluate and report medical impairments and within which others may understand and make

5

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 6 of 10

appropriate use of the medical information they receive in evaluation reports." AMA, Guides to the Evaluation of Permanent Impairment, Revised 3rd Ed., § 1.0 p.1. "[W]hereas impairment is a medical matter, disability arises out of the interaction between impairment and external demands, especially those of an individual's occupation." AMA, Guides to the Evaluation of Permanent Impairment, Revised 3rd Ed, § 1.1 p.1. Providing the impairment rating allows the jury to assess the extent to which the plaintiffs were in fact permanently impaired by their onthe-job injuries. Further, the existence of a "permanent" impairment rating serves an evidentiary purpose of supporting plaintiffs' claim that defendants regarded the plaintiffs as disabled. Third, defendants argue that because the calculation of benefits is part of the short-term disability policy, the calculations must be introduced with other evidence of the policy; this is a non sequitor.1 As described above, portions of a policy may be admissible, while other portions are inadmissible as being irrelevant or unduly prejudicial. This is the case with the formula for determining the amounts paid under the short-term disability plan. The formula is irrelevant to the determination of liability or compensatory damages, and defendants have not even attempted to argue otherwise. If certain exhibits contain both the formula and relevant admissible evidence, the formula can be redacted, as shown in Wheeling Pittsburgh Steel. If plaintiffs seek to admit a non-redacted exhibit, they may waive any objections to further evidence of the STD formula, but that possibility is irrelevant unless it actually occurs. Fourth, defendants allege that a variety of information relating to Clawson's claim for long-term disability (LTD) is relevant, but they do not explain why. While certain statements made by Clawson on the LTD forms might be admissible by defendants as statements of a party
1

Defendants have filed a separate motion regarding short-term disability. Plaintiffs will not address the arguments in that motion here, but will file a separate response specifically addressed to that motion.

6

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 7 of 10

opponent, the statements could be admitted without revealing they were made to obtain LTD benefits. If context is needed for the documents or statements, it can simply be stated that the documents are insurance forms, without providing any further prejudicial detail. Fifth, defendants argue that Cleveland v. Policy Mngmt. Sys. Corp., 526 U.S. 795 (1999) compels admission of the collateral source information. This is incorrect. Cleveland simply holds that a party may pursue and receive Social Security Disability benefits and still bring an ADA suit, despite the apparent contradiction between claiming an inability to work and the ability to work with an accommodation. Cleveland, 526 U.S. at 797-98. The court also held that in order to survive summary judgment, the plaintiff bringing such a claim must present evidence sufficient to explain the discrepancy between the claim for SSDI benefits and the ADA claim. Id. at 798, 805-807. The U.S. Supreme Court did not hold that applications for, or receipt of, SSDI benefits was admissible into evidence at trial. The Tenth Circuit has specifically held that Cleveland does not require the admission of applications for short-term disability, long-term disability, or SSDI. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1253-54 (10th Cir. 2005). The Praseuth court affirmed the trial judges decision to exclude such documents. Id. Sixth, and finally, defendants argue that evidence of the type of workers' compensation benefits received is relevant to issues such as Dillon's availability to work. In order to make this argument, defendants mischaracterize the workers' compensation system. The employees' doctors do not place the employees on temporary total disability (TTD) or temporary partial disability (TPD). In fact, neither TTD nor TPD is a status, but each is a type of benefit received. Doctors only give work restrictions, which may or may not qualify an individual for TTD or TPD depending on the circumstances at their job. TTD is available when the employee has an

7

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 8 of 10

injury that prevents him from returning to work, usually shown through work restrictions imposed by a doctor. The employee need not be totally restricted from any work to receive TTD; if there are no positions available within the restrictions, or the employer refuses to accommodate the restrictions, the employee is eligible for TTD. If an employee can only do part of his former job, or only work part time, they can receive TPD to make up for the difference in income. A doctor's opinion is not required to establish the right to recover TTD; the employee's testimony may be enough. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). What does all of this mean for defendants' contention? It means that none of them are correct. Receipt of TTD does not mean that the employee cannot work. Receipt of TTD does not even mean the employee cannot do their former position. It could mean the employee is entirely restricted from working. It could also mean the employee requires accommodation and the employer refuses to provide it. Receipt of TTD does not even mean the employee has a doctor's restriction because the employee's own testimony is adequate evidence to receive TTD. If an injured employee is not receiving TTD he may still have restrictions but is being accommodated by his employer. Receiving or not receiving TTD benefits depends on so many variables that it is not dispositive of any issue. Due to these variables, TTD benefits are irrelevant to the determination of any of the issues defendants propose, such as determining the dates of restrictions, availability to work, or the availability of jobs. In regard to the specific example with Dillon, Dillon was released to work on June 1, 1999, to the extent his symptoms allowed. (Exhibit 1). When Dillon left work he was given permission by his supervisor O'Connell and told to take off until he was fixed. (Exhibit 2). If Dillon had pressed the issue, he may have received TTD for this time under Lymburn. Whether

8

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 9 of 10

Dillon could not do any work at the mine during this time or if he simply needed an accommodation is part of the dispute in this case. What is certain is that the receipt or nonreceipt of TTD has no bearing on the issue. CONCLUSION Plaintiffs request that the court clarify its order in regard to the extent information about collateral sources is admissible. Such clarification will prevent, or at least reduce, dispute of the matter at trial. If the court intended only to exclude evidence of the amounts of collateral sources, plaintiffs request that the court reconsider in light of the planned advisory verdict on back pay damages. Merely excluding the amounts will accomplish nothing if the jury has the means to calculate those amounts at trial. The potential prejudicial effect of allusions to plaintiffs receiving collateral source money is such that awaiting trial to decide these issues will not protect plaintiffs from prejudice. RESPECTFULLY SUBMITTED this 25th day of July, 2005.

J. Keith Killian Joanna C. Jensen Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

9

Case 1:01-cv-02199-MSK-MEH

Document 356

Filed 07/25/2005

Page 10 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on July 25, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

Damon Davis Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

10