Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-00560-OES-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO GEORGE M. BULL, Plaintiff, vs. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant. PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE COLLATERAL SOURCE EVIDENCE CONCERNING PLAINTIFF'S ELIGIBILITY TO RECEIVE RETIREMENT PENSION BENEFITS AND SUPPORTING BRIEF TO: Defendant above-named and its attorneys: MOTION Plaintiff George Bull, through his attorneys, respectfully moves the Court for an Order in Limine as follows: Precluding and prohibiting defendant, its counsel and witnesses during trial from referring to or making any mention of any retirement pension income or rights thereto which plaintiff may become entitled to receive in the future. Defendant has made a motion arguing admissibility. Plaintiff's motion herein is based upon the brief that appears below, which is both responsive to defendant's arguments and persuasive as to the inadmissibility of RRB benefits. BRIEF IN SUPPORT OF MOTION IN LIMINE 1. BASIS FOR MOTION. As a result of defendant's negligence, plaintiff suffered severe and disabling injuries that have ended his career as a locomotive conductor and adversely affected his ability to earn a Civil Action No.: 04-ES-0560 (BNB)

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living in the future. Accordingly, plaintiff's pending FELA lawsuit includes a claim for loss of future earning capacity. Plaintiff anticipates that defendant will proffer evidence that had plaintiff not been injured he would have been eligible to retire at age 60 and receive a retirement pension from the United States Railroad Retirement Board. Defendant has attempted to offer such evidence in prior cases based on the erroneous argument that such evidence is relevant and admissible on the issue of plaintiff's claim for future lost earning capacity. In effect, the railroad seeks to use plaintiff's eligibility to receive retirement benefits, a collateral source, to diminish his claim for loss of future earning capacity. As discussed below, allowing evidence of retirement pension to limit either plaintiff's loss of future earning capacity, or any of his compensable damages, runs counter to the policies underlying FELA and the Railroad Retirement Act as articulated by the U.S. Supreme Court in Eichel v. New York Central Railroad, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963). 2. FEDERAL LAW GOVERNS MEASUREMENT OF DAMAGES UNDER FELA. It has long been settled law that the rights and obligations of parties to a FELA action are governed by the terms of the statute and "applicable principles of common law as interpreted by the federal courts." Chicago, Minneapolis & St. Paul Railway Co. v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 565, 70 L.Ed. 1041 (1926). The U.S. Supreme Court has repeatedly reiterated this principle on numerous occasions over the last 75 years. E.g., Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544, 114 S.Ct. 2396, 2404, 129 L.Ed.2d 427 (1994); Norfolk & Western Railway v. Liepelt, 444 U.S. 490, 493, 100 S.Ct. 755, 757, 62 L.Ed.2d 689 (1980); Dice v. Akron, Canton & Youngstown Railroad Co., 342 U.S. 359, 361-62, 72 S.Ct. 312, 314 96 L.Ed. 398 (1952). -2-

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Issues concerning the measurement of damages in actions brought under FELA are likewise governed by federal law. Liepelt, 444 U.S. at 493. Under FELA, an injured worker is entitled to recover all damages caused in whole or in part by the defendant's negligence. 45 U.S.C. §51; Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957). Plaintiff may recover

compensatory damages for lost earning capacity under FELA. Sinclair v. Long Island Railroad, 985 F.2d 74, 78 (2d Cir. 1993); Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1284 (3d Cir. 1989); Gorniak v. National R.R. Passenger Corp., 889 F.2d 481, 483 (3d Cir.1989); Kulavic v. Chicago & Illinois Midland Railway Co., 1 F.3d 507, 522 (7th Cir. 1993); Wiles v. New York, Chicago and St. Louis R.R. Co., 283 F.2d 328, 332 (3d Cir.1960), cert. denied, 364 U.S. 900, 81 S.Ct. 232, 5 L.Ed.2d 193 (1960). A plaintiff in a FELA case may recover damages for the loss of future earning capacity if his injuries "have narrowed the range of economic opportunities available to him." Gorniak, 889 F.2d at 484. The central inquiry into a claim for loss of earning capacity is how the injuries and resulting disabilities and losses (i.e. job loss) will limit the plaintiff's economic horizons. Wiles, 283 F.2d at 332. It therefore follows that a railroad employee must be compensated for loss of future earning capacity even if the employee happens to be earning more at the time of trial then at the time of injury. Ibid. Under the common law "[i]mpairment to future earning capacity is measured by the reduction in the value of the power to earn, not the difference in earnings received for a specific occupation before and after an injury." 22 Am. Jur. 2d Damages §142 (2003). The question central to a FELA plaintiff's claim for future lost earning capacity is whether his "economic horizons have been limited by his injury." Wiles, 283 F.2d at 332. Accordingly, evidence of

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whether plaintiff may be able to receive a retirement pension associated with his railroad employment is irrelevant to his claim for loss of earning capacity in this case. 3. EVIDENCE THAT PLAINTIFF IS ELIGIBLE TO RETIRE AND RECEIVE A RRB PENSION AT AGE 60 IS INADMISSIBLE TO REDUCE PLAINTIFF'S FUTURE ECONOMIC LOSS. Evidence regarding retirement benefits is irrelevant and inadmissible in FELA trials pursuant to the collateral source rule. It is a well-established rule of law that benefits received by a plaintiff from a collateral source may not be used by a railroad to limit damages otherwise recoverable by an injured railroad employee under FELA. Reed v. Philadelphia, Bethlehem & New England Railroad, 939 F.2d 128, 134 (3rd Cir. 1991); Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 821-22 (5th Cir. 1965); Finley v. National Railroad Passenger Corp., 1 F.Supp.2d 440, 443-40 (E.D. Pa. 1998); Lee v. Consolidated Rail Corp., 1995 WL 734108 * 4-6 (E.D. Pa. 1995); Griesser v. National Railroad Passenger Corp., 761 A.2d 606, 609 (Pa. Super. Ct. 2000); Brumley v. Federal Barge Lines, Inc., 396 N.E.2d 1333, 1339 (Ill. App. Ct. 1979). Courts in each of these cases relied on the U.S. Supreme Court's seminal decision in Eichel v. New York Central Railroad, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), for the rule that evidence of receipt of Railroad Retirement Board benefits is inadmissible at trial. It therefore follows that all such evidence is inadmissible in the trial of this case. In Eichel, the U.S. Supreme Court reasoned that admitting evidence of Railroad Retirement Act benefits would emasculate the purposes underlying both FELA and the Railroad Retirement Act: Moreover, it would violate the spirit of the Federal statutes if receipt of disability benefits under the Railroad Retirement Act of 1937 were considered as evidence

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of malingering by an employee asserting a claim under the Federal Employers' Liability Act. 375 U.S. at 255 (statutory citations omitted). The U.S. Supreme Court in Eichel went on to note that "evidence of collateral benefits is readily subject to misuse by a jury." Ibid. The railroad may argue that Eichel only prohibits the introduction into evidence of occupational disability benefits, but does not prohibit the introduction into evidence of a railroad worker being able to retire at age 60. Any such argument limits Eichel too narrowly and ignores the policy behind the Supreme Court's decision. Courts that have considered the issue of whether evidence of eligibility for early retirement is admissible have uniformly held that such evidence is inadmissible under Eichel. Relying on Eichel, the Third Circuit Court of Appeals held in Reed that an FELA plaintiff's future entitlement to collateral benefits, just as his actual receipt of benefits, was inadmissible to challenge the extent or permanency of his disability. In Reed, the district court permitted the railroad to inform the jury that the plaintiff had received RRB disability payments despite a prior in limine ruling that disability benefits were inadmissible. Id. at 133. The district court also allowed the defendant to present testimony that the plaintiff would be able to retired at age 62 with a full pension without any diminution in pay. Id. Defendant's counsel then argued during his closing that the plaintiff would have retired well before age 65 despite the plaintiff's testimony to the contrary. Id. On appeal from a defense verdict, the Third Circuit Court of Appeals held that the district court committed reversible error when it allowed evidence and arguments concerning an early retirement. In finding that the district court committed reversible error, the Court of Appeals stated:

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[T]he situation is exacerbated because the same facts that the defense presented to the jury had been explicitly ruled inadmissible at an in limine hearing, a decision in accord with existing law. We concede that the continuing vitality of the collateral source rule has been challenged on the ground that its economic justification is marginal at best, but we cannot disregard the teachings of the Supreme Court in such cases as Tipton v. Socony Mobil Oil Co., Inc., 375 U.S. 34 . . . (1963) and Eichel . . . . In Eichel, a FELA suit, the Court said that evidence of a disability pension was properly excluded. "[T]he likelihood of misuse by the jury clearly outweighs the value of this evidence . . . [P]etitioner's receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact." Id. at 255 . . . In Tipton, the Court rejected defense counsel's argument that because no damages were awarded, evidence of payments under the Longshoremen and Harbor Workers Compensation Act . . . was harmless error. 375 U.S. at 35 . . . The Court did not limit the application of the collateral source rule to the damage phase of the trial and noted that the jury was led to place undue emphasis on the compensation benefits in determining a liability issue, namely whether the plaintiff was a seaman under the Jones Act. The situation here is somewhat different, but under the current state of the law we cannot say the error was harmless. Id. at 134. Other courts, similarly relying on Eichel, have reached the same conclusion as the Third Circuit in Reed for the rule of law that evidence of an early retirement and/or receipt of retirement pension is inadmissible at trial. Page v. Southwestern Railway Co., 349 F.2d 820, 821-22 (5th Cir. 1965) (notwithstanding limiting instruction, admission of evidence as to receipt of railroad pension was reversible error requiring new trial); Finley v. National Railroad Passenger Corp., 1 F.Supp.2d 440, 443-40 (E.D. Pa. 1998) (defense counsel's statement during opening referring to plaintiff's receipt of pension benefits was prejudicial as a matter of law and required a new trial); Lee v. Consolidated Rail Corp., 1995 WL 734108 * 4-6 (E.D. Pa. 1995) (trial court held that evidence of FELA plaintiff's entitlement to full retirement pension at age 62 was inadmissible collateral source evidence); Haischer v. CSX Transportation Co., 848 A.2d

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620, 630 (Md. 2004) (affirming district court's refusal to admit evidence of RRB benefits after plaintiff testified to his pre-injury intention to work until age 65); Griesser v. National Railroad Passenger Corp., 761 A.2d 606, 613 (Pa. Super. Ct. 2000), appeal denied, 775 A.2d 807 (Pa. 2001), cert. denied, 534 U.S. 170, 122 S.Ct. 386, 151 L.Ed.2d 295 (2001) (trial court committed reversible error when it allowed the defendant railroad to present evidence of the possibility of a FELA plaintiff's early retirement); Leake v. Burlington Northern Railroad Co., 892 S.W.2d 359, 363 (Mo. Ct. App. 1995) (district court erred in admitting evidence of RRB benefits after counsel claimed in opening statement that plaintiff would have had to work 14 more years to age 65 to retire); Brumley v. Federal Barge Lines, Inc., 396 N.E.2d 1333, 1339-1440 (Ill. Ct. App. 1979) (Jones Act plaintiff's right to retirement and social security benefits was inadmissible to demonstrate his motivation to retire before age 65). Eichel and its progeny reflect a strong policy against the admission of all collateral source benefits. E.g. Page, 349 F.2d at 822. Underlying this strong policy is the concern that the admission of collateral source evidence will inevitably impact the jury's determination on all aspects of the case, including liability as well as damages. E.g., Green v. Denver & Rio Grande Western R.R. Co., 59 F.3d 1029, 1033-34 (10th Cir. 1995), cert. denied 516 U.S. 1009 (1995) ("The major reason for excluding collateral source evidence is the concern that juries will be more likely to find no liability if they know that plaintiff has received some compensation"). Defendant argues that an exception to Eichel v. New York Central Railroad, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), exists where plaintiff claims poverty or destitution. Here, plaintiff has not claimed either poverty or destitution, so an evidentiary ruling in advance of trial on this theoretical and thinly supported argument is not justified. Defendant's arguments

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that plaintiff's economist may open the door is also not justified legally or factually. Such evidence is unfairly prejudiced and inadmissible for other reasons as well. Finally, it is significant to note that the there is no mandatory retirement age for railroad employees ­ neither federal law nor the defendant's rules or policies require employees to retire at any particular age. Instead, decisions about when to retire and when to apply for retirement benefits are left solely to the discretion of each individual employee. Accordingly, plaintiff respectfully requests that all evidence of an early retirement be excluded in order to avoid the undue prejudice caused by the admission of evidence associated with plaintiff's receipt of both disability benefits as well as the possibility of an early retirement. The admission of any such evidence is clearly grounds for reversible error. BREMSETH LAW FIRM, P.C.

By: s/ Fredric A. Bremseth 810 East Lake Street Wayzata, Minnesota 55391 Phone: 952-475-2800 Fax: 952-475-3879 E-mail: [email protected]

And SPIES, POWERS & ROBINSON, P.C. Jack D. Robinson, #22037 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of September, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Mark C. Hansen Union Pacific Railroad Company 1331 17th Street, Suite 406 Denver, Colorado 80202 Fredric A. Bremseth Bremseth Law Firm 810 East Lake Street Wayzata, Minnesota 55391 Sabina Y. Chung Jack D. Robinson Spies, Powers & Robinson, P.C. 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264

[email protected]

[email protected]

I certify that there are no non-CM/ECF participants in this case. BREMSETH LAW FIRM

By: /s Rebecca S. Martinson

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