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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-cv-1160-LTB-CBS Isabelle DerKevorkian, Plaintiff, v. Lionbridge Technologies, Inc. d/b/a Lionbridge US, Inc., et al., Defendants. DEFENDANT LIONBRIDGE TECHNOLOGIES, INC.'S REPLY IN SUPPORT OF ITS MOTION FOR NEW TRIAL PURSUANT TO FED.R.CIV.P. 59(a), TO ALTER OR AMEND THE JUDGMENT PURSUANT TO FED.R.CIV.P. 59(e), OR TO ORDER REMITTITUR Defendant Lionbridge Technologies, Inc. ("Lionbridge") respectfully submits this Reply in Support of Its Motion For New Trial Pursuant to Fed.R.Civ.P. 59(a), To Alter Or Amend the Judgment Pursuant to Fed.R.Civ.P. 59(e), or To Order Remittitur. I. A. Argument The Court Prejudicially Erred by Refusing to Instruct the Jury That It Could Consider Plaintiff's Failure to Accept the Translator Position As a Failure to Mitigate Her Damages.

Taking a mitigation issue away from the jury is the exception, not the rule. See Fair v. Red Lion Inn, 943 P.2d 431, 437 ­ 438 & n. 8 (Colo. 1997). One exception concerns offers of reinstatement in cases for wrongful discharge: Where an employer offers a job to a plaintiff, whom the employer wrongfully terminated, the plaintiff must accept a substantially equivalent job to fulfill the duty to mitigate her backpay damages. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 241 (1982). In Ford, the Supreme Court adopted this rule " to fulfill [the] basic need"
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of discrimination victims to return to work as quickly as possible to "feed a family and restore self respect," (id. at 221), in light of Title VII's preference for ending discrimination through "voluntary compliance." Id. at 228. The Supreme Court observed that ordinarily "the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position[.]" Id., at 231. Here, the Court extended the "substantially equivalent position" exception to this case, despite its previous determination that the case is not a wrongful discharge case and which therefore, does not involve an offer of reinstatement. See Order, Doc. No. 88, filed January 26, 2006, p. 5. The Court then took from the jury the issue of whether the translator position (at the same salary and benefits as the translation manager position) was substantially equivalent, and foreclosed any argument that, even if the translator position was not "substantially equivalent," the plaintiff nevertheless should have accepted it in mitigation. These rulings were error. Even plaintiffs who bring federal statutory claims that are within the "substantially equivalent" exception must, in some circumstances, accept lesser jobs in mitigation. See, e.g., Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1274 ­ 1275 (4th Cir. 1985) (plaintiff under the National Labor Relations Act must accept lesser job if search for a "substantially equivalent" position is futile). If the "futility" of finding a "substantially equivalent" job is enough to impose a duty to accept a lesser job, so is the situation here, which plaintiff herself says involved the "horrible ... [choice] between a career-damaging demotion ... and leaving the country and home after her Visa expired." See Plaintiff's Response to Defendant's Rule 59 Motions ("Response"), Doc. No. 137, filed January 16, 2007, p. 12. Moreover, even if plaintiff had accepted the translator position, she would have retained any claims she might have had against Lionbridge for whatever "career damage" resulted. Like the

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NLRA plaintiffs who accept lesser jobs in mitigation, plaintiff still could have recovered damages that she might have claimed for the loss of the translation manager position. Given these facts, a jury could easily find, and should have been allowed to find, that plaintiff acted unreasonably in refusing the translator position. Plaintiff's arguments for taking the issue from the jury should be rejected. First, plaintiff says that, "[a]lthough this case does not involve a wrongful discharge, there is no reason to ignore the analysis applied in those types of situations." Response, p. 2. Plaintiff is wrong. Plaintiff cites no case, and Lionbridge is aware of none, that would extend the rationale of cases like Ford and the Fair dissent to a case like this one. Plaintiff misses the crucial distinction between Ford and this case. This case presents no policy question regarding how best to fashion remedies to make a wrongfully-discharged plaintiff with an employment contract whole. 1 Rather, the wrong alleged in this case was an alleged breach of a contract or breach of fiduciary duty to "support and assist" the plaintiff in applying for permanent residency. Plaintiff claimed that Lionbridge breached these duties by failing to "support and assist" her, and that as a result she suffered damage from being forced to leave the United States. Under these facts, the mitigation question is whether plaintiff reasonably should have accepted the translator position to advance her principal goal of remaining in the United States. The jury should have been allowed to answer that question. The Colorado courts have never articulated a general rule that a plaintiff never has to accept anything other than a "substantially equivalent" job in mitigation, regardless of the nature of the plaintiff's case. Indeed, the general rule is exactly the opposite. See Restatement
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Plaintiff says that the employee in Fair was "an at-will employee." Response, p. 2. Plaintiff does not cite any part of Fair to support this statement. Id. In fact, the plaintiff in Fair prevailed at trial on a claim that she had an implied-in-fact employment contract. See Fair, 943 P.2d at 436. 3
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(Second) of Torts, § 924, comment c (loss of earnings caused by tort calculated by "the difference between what [the plaintiff] probably could have earned but for the harm and any lesser sum that he actually earned in any employment of, if he failed to avail himself of opportunities, the amount that he probably could have earned in work for which he was suited[.]")(emphasis added). The general rule required plaintiff to accept work for which she was "suited," not just work "substantially equivalent" to her previous work. Second, in response to Lionbridge's showing of prejudice, plaintiff argues that the "evidence [of plaintiff's refusal to accept the translator position] was considered on the issue of liability for both breach of contract and breach of fiduciary duty." Response, p. 3. In other words, plaintiff argues that the jury was permitted to consider whether offering the translator position was a reasonable thing for Lionbridge to do. See Response, p. 4 ("The jury could have found that Lionbridge complied with these duties by offering to file the application if Plaintiff accepted an immediate demotion."). This is no answer, or even the issue. The question the jury should have been allowed to decide was whether rejecting that position was a reasonable thing for the plaintiff to do. The focus of a mitigation defense is on the plaintiff's conduct, not the defendant's, and plaintiff's argument simply reinforces the prejudice that Lionbridge identified in its opening brief: The Court's refusal to allow the jury to consider mitigation had to leave the jury believing that plaintiff was completely free to reject Lionbridge's proposal without affecting her damages at all. A properly instructed jury could have found that Lionbridge's offer was not sufficient contractual or fiduciary performance, but that plaintiff nevertheless reasonably should have accepted it in mitigation.

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Third, plaintiff says that Lionbridge's proposed mitigation instruction was legally defective, and so Lionbridge "cannot now complain that the jury was not properly instructed[.]" Response, p. 5. This is mistaken. Plaintiff confuses error in refusing to give a particular instruction with error in the instruction that was actually given. See Fed.R.Civ.P. 51(c)(1) (providing that a party may object to "an instruction" or "the failure to give an instruction"). The focus of Lionbridge's motion for a new trial is that the Court did not give the jury any instruction that would let the jury know it could consider the translator offer as mitigation, and that the instruction the Court did give was designed to take the issue away from the jury. See Exh. A hereto (Trial Transcript), pp. 313 ­ 315. To preserve that error, all Lionbridge had to do was "stat[e] distinctly the matter objected to and the grounds of the objection[.]" See Fed.R.Civ.P. 51(c)(1); see also Weir v. FDIC, 811 F.2d 1387, 1390 (10th Cir. 1987) ("An objection is adequate to preserve the issue on appeal if it identified the objectionable instruction and denoted the legal grounds for the objection.") (citation and quotation omitted). The record shows that Lionbridge made known to the Court its objection to taking the issue from the jury. See Exh. A (Trial Transcript), pp. 313 ­ 314. As the Court noted on the record, Lionbridge preserved its objection. See Exh. A (Trial Transcript), p. 503, ln. 1 ­ 4. B. The Court Should Not Have Permitted the Fiduciary Duty Claim to be Tried, As It Is Barred by the Economic Loss Rule.

As Lionbridge argued in its opening brief, the economic loss (or independent duty) rule forbids recovery in tort for the violation of a contractual duty. As the Court recognized, the source of Lionbridge's duty in this case was purely contractual. See Exh. B to Motion for New Trial (Order) pp. 10 ­ 11. Moreover, under Colorado law, a fiduciary duty based on a confidential relationship must exist before the transaction that gives rise to the claim.

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Plaintiff does not dispute that the rule of Vikell Investors Pacific, Inc. v. Kip Hampden, Ltd., 946 P.2d 589, 597(Colo. 1997), is Colorado law. See Response, pp. 6 ­ 8. Accordingly, if Lionbridge's motion is denied, a verdict contrary to law will be allowed to stand. Plaintiff argues that this result is appropriate because Lionbridge "invited" the error by proposing a jury instruction on fiduciary duty, see Response, pp. 6 ­ 7, and because the evidence showed "as a matter of law" that a confidential relationship existed before Lionbridge agreed to support and assist the plaintiff in the residency application. Id., pp. 7 ­ 9. Plaintiff is wrong on both counts. First, because the application of the economic loss rule is a question of law for the Court, Lionbridge could not "invite" error by proposing a jury instruction on breach of fiduciary duty. See A.C. Excavating v. Yacht Club II Homeowners Ass'n, Inc., 114 P.3d 862, 866 (Colo. 2005). Lionbridge moved for summary judgment on the issue, and as even plaintiff concedes, Lionbridge argued that "its sponsorship of Plaintiff under the Permanent Resident Program did not create a confidential relationship." Response, p. 6. Thus, no dispute can exist that Lionbridge raised the issue. Having lost the motion, Lionbridge was not required to cross its arms and refuse to participate in the instruction of the jury on the fiduciary duty claim. See, e.g., Richardson v. Missouri Pac. R.R., 186 F.3d 1273, 1277 (10th Cir. 1999). The law does not require a party to abandon any effort to protect itself before a jury in order to preserve a previously raised legal point. See Richardson, 186 F.3d at 1277. In Richardson, the plaintiff filed a motion to admit certain evidence, as a defensive response to the district court's prior ruling that certain other evidence would be admitted. See 186 F.3d at 1275 ­ 1277. The Tenth Circuit explained that the invited error doctrine is "equitable in nature," see 186 F.3d at 1277, and held that it did not apply, because the plaintiff's conduct was not an invitation to error, but rather a reaction to the

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district court's prior error. Likewise, Lionbridge was entitled to put its best foot forward after the Court denied its summary judgment motion. The invited error doctrine does not apply. Second, the evidence did not show "as a matter of law" that a confidential relationship existed before plaintiff entered into the "Permanent Resident Program." See Response, p. 9. All plaintiff says to support that claim is that she was "completely dependent" on Lionbridge and that she was required to show "a high level of commitment and loyalty to the company." See Response, pp. 7 ­ 8 (emphasis added). Plaintiff does not cite any case holding that "complete dependency," which under plaintiff's argument means only that plaintiff was required to have a sponsoring employer to remain in the country, creates a confidential relationship. Many employees depend on their employers for their daily bread, but employers do not form a "confidential relationship" or owe them fiduciary duties as a result. Further, plaintiff's required "loyalty and commitment" to Lionbridge does not show that Lionbridge was her fiduciary. To the contrary, a fiduciary owes "commitment and loyalty" to her principal. Plaintiff's evidence goes to show only that she (like all employees) owed her employer a fiduciary duty of loyalty. See Jet Courier Service, Inc. v. Mulei, 771 P.2d 486, 492 (Colo. 1989). Plaintiff's cited cases (Response, p. 8) do not help her at all. In Rosales v. AT&T Info. Sys., 702 F. Supp. 1489 (D. Colo. 1988), the Court dismissed a claim that an employer owed fiduciary duties to the employee. See 702 F. Supp. at 1498 ­ 1499. Security Nat'l Bank v. Peters, Writer & Christiansen, Inc., 569 P.2d 875 (Colo. Ct. App. 1987), has nothing to do with the issue: The plaintiffs there were "preferred shareholders," see 569 P.2d at 877, not mere employees. Moreover, the facts that plaintiff alleges to show her pre-dispute "dependence" upon Lionbridge are wholly indistinguishable from those that any other sponsored alien employed

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anywhere in the U.S. could allege about his or her employer where the employer is performing its obligations under U.S. immigration laws. Under 8 U.S.C. § 118, an employer of an alien on a visa must, for example, petition the Attorney General for the alien's admission into the United States. If the Court finds that the facts that plaintiff now says created a "confidential relationship" with Lionbridge even before the dispute arose, every employer who sponsors alien workers will suddenly find itself to owe those workers common law fiduciary duties. It makes no sense to adopt a rule that imposes fiduciary duties on employers to their alien employees, but not from employers to workers who are U.S. citizens. As a matter of law, the economic loss rule bars the fiduciary duty claim. The Court should reduce the damages awarded on that claim to zero. C. The Verdict on the Fiduciary Duty Claim Was Against the Weight of the Evidence.

For the reasons stated in Lionbridge's opening brief, to which plaintiff offers no substantial response, the verdict on the fiduciary duty claim also was against the weight of the evidence. A new trial on that claim is therefore warranted. D. The Non-Economic Damages Should be Capped at $366,250.

Colorado law limits non-economic damages to $366,250, unless the Court by "clear and convincing evidence" finds that a higher award is justified, in which case the Court may double the cap. Exceeding the cap is proper only in "extreme circumstances." James v. Coors Brewing Co., 73 F. Supp.2d 1250, 1253 (D. Colo. 1999) (Babcock, J.) Plaintiff contends that the Court should double the cap here, for two reasons: first, that the jury awarded more than the cap, see Response, p. 11, and second, that she was put in the "horrible position" of "having to choose between a career-damaging demotion" and "leaving the country and her home after her Visa

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expired." Id., p. 12. Plaintiff adds that she was forced to "bounc[e]" from "house to house" in France. Id., p. 13. Plaintiff's first argument is a makeweight. The jury's award exceeds the cap in every case in which the cap matters. If a large jury verdict was a basis for exceeding the cap, the cap would become a dead letter, contrary to the General Assembly's intent. Plaintiff's second argument is equally unconvincing. The cases in which the cap has been exceeded feature litigants who suffered far worse injury than plaintiff. See Hill v. United States, 854 F. Supp. 727, 729 (D. Colo. 1994) (exceeding cap in case with "permanent brain damage and catastrophic injury"), rev'd in part on other grounds, 81 F.3d 118 (10th Cir. 1996), cert. denied, 519 U.S. 810 (1996); Herrera v. Gene's Towing, 827 P.2d 619, 620 (Colo. Ct. App. 1992) (plaintiff suffered "severe physical impairment and disfigurement"); Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993) (sexual abuse leading to mental illness); Am. Guar. & Liab. Ins. Co. v. King, 97 P.3d 161 (Colo. Ct. App. 2003) (injured party suffered "progressive kidney disease"); Price v. Wilson Sporting Goods Co., 2006 U.S. Dist. LEXIS 34391, ** 4 ­ 8 (D. Colo. 2006) (exceeding cap where plaintiff's mental ability was affected and he suffered continuing pain); Colwell v. Mentzer Invs., Inc., 973 P.2d 631, 639 (Colo. Ct. App. 1998) (exceeding cap where plaintiff may end up confined to a wheelchair); cf. Stewart v. Rice, 25 P.3d 1233, 1234 (Colo. Ct. App. 2000) (refusing to increase cap when plaintiff "incurred head injuries which cause him to suffer frequently recurring severe headaches"), rev'd on other grounds, 47 P.3d 316 (Colo. 2002). In cases where the cap was exceeded, the plaintiff suffered some harm to his or her body which caused emotional distress. See James, 73 F. Supp.2d at 1253 (identifying plaintiff confined to a wheelchair as paradigmatic case where cap may be exceeded). Here, by contrast,

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plaintiff expressly denies suffering any such harm to her body. See Response, p. 18 ("There was no evidence that Ms. DerKevorkian suffered any harmful change in or to her body during her employment or at any time thereafter."). In this case, no reason exists to disturb the General Assembly's conclusion that more than a third of a million dollars would be sufficient compensation for plaintiff's emotional distress. Accordingly, the Court should apply the cap, and reduce plaintiff's non-economic damages to $366,250, if the Court does not reduce the award to zero. E. Pre-Judgment Interest Should Not Be Awarded on the Uncapped Amount of Non-Economic Damages.

For the reasons explained in Lionbridge's response to plaintiff's motion to alter or amend the judgment, any award of interest on the non-economic damage award would violate workers' compensation exclusivity. Plaintiff, however, contends that the Court should award the personal injury interest rate on the entire uncapped amount of $1,000,000. Response, p. 14 ("[P]rejudgment interest must be calculated on the full amount awarded by the jury."). This argument makes no sense. The statutory cap on damages reflects the General Assembly's binding judgment about the damages to which a plaintiff is legally entitled, and an award of pre-judgment interest is supposed to compensate for delay in receiving money to which the plaintiff is legally entitled. James, 73 F. Supp.2d at 1255 ("Pre-judgment interest is a form of compensatory damages and represents a legislatively prescribed award for delay in a plaintiff's receipt of money to which he or she is legally entitled.") (citation and quotation omitted; emphases removed). To award pre-judgment interest on money that not even plaintiff claims to be entitled would be, to say the least, unexpected. The statute does not require this bizarre result. The pre-judgment interest statute directs the Court to add pre-judgment interest "to the amount of damages assessed by the verdict of the

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jury, or found by the Court[.]" C.R.S. § 13-21-101(1). The only meaning of the word "assess" that makes sense in the context of this statute is "to impose." See Merriam-Webster's Dictionary. After the General Assembly passed the caps, a jury's verdict "imposes" no noneconomic damages, unless the amount awarded is less than the cap. If the jury's verdict exceeds the cap, the amount of damages "imposed" is the cap amount, not some higher amount. Further, given that the Court is responsible for applying the cap or for ordering any other remittitur, a capped or otherwise reduced damage award is the amount "found by the Court" within the meaning of Section 13-21-101(1). That is, where the Court finds that the damages a jury awarded should be reduced for any reason, interest accrues only on the reduced amount. Read plaintiff's way, the interest statute becomes incompatible with the damage cap statute. The interest statute then would direct the Court not only to calculate interest on the uncapped amount, but also to add that interest to the uncapped amount. See C.R.S. § 13-21101(1) ("[I]t is the duty of the court in entering judgment for the plaintiff in such action to add to the amount of damages assessed by the verdict of the jury, or found by the court, interest on such amount calculated at the rate of nine percent per annum....") (emphasis added). If the statute really directs the courts to calculate interest on the uncapped amount, it equally directs them to "add" such interest to the uncapped amount. That result, however, would completely undo the statutory damages cap, contrary to the General Assembly's intent, and would be inconsistent with settled Colorado law holding that statutes should be construed to avoid creating conflicts among them. See, e.g., State Farm Mut. Auto. Ins. Co. v. Progressive Mut. Ins. Co., 148 P.3d 117, 2006 Colo. LEXIS 744, ** 10 ­ 11 (Colo. 2006) (holding that a court may select a reasonable understanding of a word to avoid conflict with other statutes).

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By contrast, Lionbridge's reading of the statute is consistent with the usual function of pre-judgment interest, avoids giving a windfall to plaintiff, is consistent with the statute's language2, and avoids an implied repeal of the damages caps. Thus, if the Court awards any prejudgment interest on non-economic damages, the award should be based only on the capped amount. Plaintiff relies on a recent decision, Goodwin v. Morris, 2006 Colo. App. LEXIS 1273 (Colo. Ct. App. 2006), which held that pre-judgment interest should be awarded on the amount "awarded" by the jury. Id., at * 7. Goodwin itself recognized that it was in conflict with a decision of another division of the Court of Appeals. See 2006 Colo. App. LEXIS at * 7 (noting probable conflict with Dupont v. Preston, 9 P.3d 1193 (Colo. App. 2000), aff'd on other grounds, 35 P.3d 433 (Colo. 2001)). Moreover, Goodwin is unsound. As its use of the word "awarded" indicates, it did not discuss or even seem to notice the significance of the word "assessed" in the statute. See 2006 Colo. App. LEXIS at ** 7 ­ 8. Nor did Goodwin seem to recognize or confront the fact that its reading of the statute would require the courts to "add" pre-judgment interest to the uncapped non-economic damage award, not just calculate interest on that amount. That result cannot be reconciled with the General Assembly's plain intent to limit non-economic damage awards, and would bring the pre-judgment interest statute into conflict with the damages caps. Because a reasonable meaning of the word "assessed" (as well as the phrase, "found by the Court") is available that would prevent the conflict, the Goodwin court erred by not selecting that

In Lira v. Davis, 832 P.2d 240 (Colo. 1992), the Court held that the word "assess" as used in another statute (C.R.S. § 13-21-102) had to mean something other than the damages actually awarded, because the statute referred both to "damages assessed" and "damages awarded." See 832 P.2d at 245. Here, of course, the statute refers only to "the amount of damages assessed," and so the Court is not forced to give the word an unlikely meaning or a meaning that produces unlikely results. 12
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meaning. State Farm, 2006 Colo. LEXIS at ** 10 ­ 11. The Goodwin court did not discuss, or try to reconcile its holding, with this settled rule of statutory construction. F. The Fiduciary Duty Claim Is Barred by Workers' Compensation Exclusivity.

As Lionbridge explained in its opening brief, the entire award on plaintiff's tort claim is preempted by Colorado's workers' compensation law (the "Act"). Plaintiff contends that she suffered "personal injury" (mental suffering) caused by her co-employee's mishandling of her residency application, and the record shows that obtaining permanent residency was a condition of plaintiff's continued employment. Plaintiff raises four arguments in response. First, plaintiff says that her personal injuries "were not caused by accident, injury, or occupational disease." Response, p. 17. Second, plaintiff says there was "no nexus" between her employment and the injuries she suffered. Id., p. 18. Third, plaintiff says that because the phrase "personal injury" "includes any harmful change in the body," it must necessarily not include anything else, such as mental suffering unaccompanied by another harmful change in the body. Id., p. 18 (first emphasis added). Fourth, the plaintiff says that she could not recover in workers' compensation for "mental impairment." Id., p. 18. None of these arguments has merit.3 First, the assertion that plaintiff's "injuries were not caused by accident, injury, or occupation disease" is incomprehensible. Response, p. 17. It is not even clear what it means to say an "injury" was not caused by an "injury." In any event, the issue is irrelevant. "Under the [Workers' Compensation Act], an employee surrenders, as against his or her employer, any Plaintiff says that the Court "already has ruled [that] Plaintiff's claim for non-economic injuries is not barred by the exclusivity provisions of the Colorado Worker's Compensation Act." Response, p. 19. This is not so. The Court ruled that plaintiff's claim for economic injuries was not barred by workers' compensation. See Order, p. 14. The Court never held that the jury could award damages for personal injury without running afoul of workers' compensation exclusivity. 13
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cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of [his or her] personal injury or death." Serna v. Kingston Enter., Inc., 72 P.3d 376, 379 (Colo. Ct. App. 2002) (citation and quotation omitted; alteration in original). The Act is not limited to personal injuries that are themselves caused by accident; intentional torts are governed as well by the Act. See, e.g., Triad Painting Co. v. Blair, 812 P.2d 638, 642 (Colo. 1991) (injuries caused by intentional assault on employee are covered by the Act); Tolbert v. Martin Marietta Corp., 759 P.2d 17 (Colo. 1988) (rape of an employee covered by the Act). Moreover, plaintiff's current assertion that no "accident" is involved in this case is contradicted by her own attempt to bring a negligence claim against Lionbridge. Second, there plainly was a "nexus" between plaintiff's employment and the injury she claims to have suffered in this case. The Act covers an injury if "there is a causal connection between the employment and the injury," Younger v. Denver, 810 P.2d 647, 649 (Colo. 1991), and the injury has "some connection with the employee's job-related functions[.]" Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). In this case, both are true. Plaintiff's employment with Lionbridge was a "but-for" cause of the injury; if she were not an employee, she would not have participated in the program. And her participation in that program had "some connection" with plaintiff's job-related functions, because participation in the program was a condition of her ability to continue working for Lionbridge. See Hoffman Plastics Compound, Inc. v. NLRB, 535 U.S. 137, 147 ­ 148 & n. 3 (2002) (holding that alien must be lawfully entitled to work in the United States in order to be employed in the United States). Third, plaintiff's argument that "personal injury" "includes" "harmful change in the body" is true, but irrelevant. As the Colorado courts have expressly held, personal injury also includes "mental injuries." Serna, 72 P.3d at 379. Accordingly, the "exclusivity provision bars

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actions for or on account of such injuries of an employee." Id. This is true even if the employee suffered no "physical" injury whatsoever. The Building and Constr. Dept. v. Rockwell Int'l Corp., 7. F.3d 1487, 1493-94 (10th Cir. 1993) (Colorado worker's compensation statute barred claim for "medical monitoring" even though claim requires no physical injury). Here, plaintiff was awarded common law damages for her mental injuries, contrary to Colorado law. Finally, plaintiff argues that she could not prove a claim of "mental impairment" under the Act. This argument is also irrelevant. "Mental impairment" under the Act means a "recognized, permanent disability," see C.R.S. § 8-41-301(2)(a), and the Act imposes certain evidentiary requirements on such a claim. Id. Here, plaintiff has not claimed that she suffered a "recognized, permanent disability." She claimed instead garden-variety emotional distress arising from her fellow employee's alleged mishandling of her residency application, which is a "mental injury" within the scope of the Act. Serna, 72 P.3d at 379. The scope of the Act's preemption is broader than its specific compensation. "It is clear under [the Act] that `if [an] injury itself comes within the coverage formula, an action for damages is barred even although [a] particular element of damage is not compensated for.'" The Building and Constr. Dept., 7 F.3d at 1494 (citation omitted); see also Serna, 72 P.3d at 379) (same). In this case, plaintiff brought an action that she now concedes was an action "for or on account of [her] personal injuries[.]" Serna, 72 P.3d at 379. As a matter of law, under the workers' compensation system, plaintiff surrendered any such action for personal injuries. The fact that the General Assembly imposed limits in the compensation system on awards for mental injuries does not mean that it opened the floodgates for lawsuits against employers. All that is required is that an injury be "compensable" as a general matter, not that the plaintiff would necessarily succeed in obtaining a workers' compensation award. Because mental injuries are

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compensable as a general matter, plaintiff's claim for them is barred, even if she would be unable to obtain a worker's compensation award for them on her particular facts. See Building and Constr. Dept., 7 F.3d at 1494 (even if plaintiffs could not obtain medical monitoring in worker's compensation, their claims were still barred). Any other result would have the perverse consequence that the weaker an employee's claim for mental injury, the more likely the employer would be forced to defend the claim in court, contrary to the Act's purpose. For these reasons, the award of non-economic damages for plaintiff's emotional distress should be reduced to zero, as barred by workers' compensation exclusivity. G. The Economic Damage Award Is Not Supported by the Evidence.

The jury awarded $313,570.20 in economic damages for plaintiff's 25 months of effective unemployment. Plaintiff defends this award by speculating that the jury may have used a base pay rate of $106,288 to calculate her damages for that period. See Response, p. 20. Because even that number only leads to an award of $221,443, plaintiff suggests that the jury may have awarded additional damages for "benefits," "Social Security," and "retirement." Id., p. 20. But plaintiff finally admits that it is "unknown how the jury came up with its award of economic damages[.]" Id., p. 20. However the jury did it, it had no evidence to support what it did. No one argued that the contract required Lionbridge to pay plaintiff a salary of $106,288, and plaintiff's expert testified that this rate of pay would have been unreasonable. Exh. A (Trial Transcript), p. 481, ln. 17-25. The fact that two parties have a contract is not a license for jurors to award whatever amount strikes them. The amount awarded must still reflect a legal obligation under the contract. If the jury did use $106,288 as a rate of pay, it had no legal basis to do so.

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Nor did the jury have any basis to award almost another hundred thousand dollars in "benefits," "Social Security," or "retirement." There was no evidence at all concerning, or that would allow the jury to calculate, amounts for any of these categories. Plaintiff estimated her consequential damages at only $5,500 to $6,000 (see Exh. A to Mot. at p. 556, ln. 6 ­ 9). The jury was given no evidence remotely supporting an award nearly 20 times greater than plaintiff suggested. The award of economic damages was unsupported by the evidence. A new trial should be ordered on those damages, unless the plaintiff accepts a remittitur in the amount of $172,918. II. Conclusion

For all of the reasons argued above and in Lionbridge's motion for new trial, the Court should grant Lionbridge's motion. Respectfully submitted this 26th day of January 2007. s/ David B. Wilson_________ David B. Wilson Michael J. Hofmann HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 Telephone: (303) 861-7000 Facsimile: (303) 866-0200 Email: [email protected]; [email protected] Attorneys for Lionbridge Technologies, Inc.

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Case 1:04-cv-01160-LTB-CBS

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 26th day of January, 2007, I electronically filed the foregoing DEFENDANT LIONBRIDGE TECHNOLOGIES, INC.'S REPLY IN SUPPORT OF ITS MOTION FOR NEW TRIAL PURSUANT TO FED.R.CIV.P. 59(a), TO ALTER OR AMEND THE JUDGMENT PURSUANT TO FED. R. CIV. P. 59(e), OR TO ORDER REMITTITUR with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Joel C. Maguire [email protected] Attorneys for Plaintiff John Edwin Bolmer, II [email protected] [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected]

s/ S.M. DeVore S.M. DeVore

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