Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Luis F. Ramirez (#022653) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S RESPONSE TO SCHWAB'S MOTION RE: PLAINTIFF'S LACK OF INSURANCE

Defendant Charles Schwab Corporation's ("Schwab") Motion in Limine to Preclude Evidence of Ms. Johnson's Lack of Insurance improperly attempts to exclude relevant evidence of damages. Schwab's Motion attempts to preclude Ms. Johnson from introducing evidence relating to the loss of her health insurance benefits by arguing that she has had no medical expenses. In doing so, Schwab confuses consequential damages for medical care with the loss of an employment benefit such as health insurance. Employees who are wrongfully discharged are allowed to recover damages measured by their entire loss of earnings, including the value of fringe benefits such as health insurance. District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 133 (1992). Such recovery is for loss of the health benefit itself, not any additional medical costs incurred by the plaintiff. See Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1348 (11th Cir. 2000) (upholding back pay award that included vacation time, employee meal discounts, and health insurance coverage); Kelly v. Matlack, Inc., 903 F.2d 978, 984-85 (3d Cir. 1990) (allowing for the recovery of medical benefits where employee handbook noted these among the "invisible paycheck" that the employee receives as a
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benefit of employment). Consequently, evidence that Ms. Johnson was deprived of health insurance by her termination from Schwab is relevant and admissible. Further, Schwab misrepresents Ms. Johnson's testimony and asserts that Ms. Johnson "testified during deposition" that she is purposefully not looking for a job that offers medical benefits until this lawsuit is over." In her deposition, Ms. Johnson specifically stated that she has been unable to find a job that offers insurance because she is afraid that Schwab will subpoena that employer, as it has done throughout this litigation, and cause her further damage. [Deposition of Marcela Johnson, pp. 109-110, attached as Exhibit A]. Ms. Johnson explained that the loss of her employment at Schwab and the accompanying loss of insurance benefits have been a significant detriment in her life. Id. Ms. Johnson lost her husband's insurance coverage in September 2005, Schwab does not, and cannot, dispute that Ms. Johnson would have been entitled to health insurance benefits under Schwab's plan if she had not been terminated. Like the loss of income, the unavailability of health insurance benefits is also an integral part of Ms. Johnson's claims against Schwab. The factfinder should be allowed to hear evidence and determine the full extent of the damages caused by Schwab's decision to terminate Ms. Johnson.

RESPECTFULLY SUBMITTED this 17th day of April, 2006. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Luis F. Ramirez Attorneys for Plaintiff Marcela Johnson

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I hereby certify that on April 17, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic filing to the following CM/ECF registrants:

Joseph T. Clees
Karen Gillen Michelle Ganz Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A copy of this document was provided to The Honorable John W. Sedwick s/Dawn C. Valdivia

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