Free Motion in Limine - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

PLAINTIFF'S MOTION IN LIMINE RE COLLATERAL SOURCE PAYMENTS

Plaintiff, Alexander Jung, submits this Motion in Limine respectfully requesting that this Court preclude any testimony, evidence, argument or instruction from Defendant and move to exclude all reference to collateral source payments, including workers' compensation, disability payments, social security benefits and unemployment compensation. This motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES

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The collateral source rule is a substantive rule of law that bars a tortfeasor from reducing the quantum of damages owed to a plaintiff by the amount of recovery the plaintiff received from other sources of compensation that are independent of (or

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collateral to) the tortfeasors. Davis v. Odeco, Inc. 18 F.3d 1237, 1243 (5th Cir. 1994) The collateral source rule applies in employment discrimination cases. Hamlin v. Charter Tp. Of Flint, 165 F.3d 426, 435 (6th Cir. 1999) (affirming district court's holding that employer Defendants in employment discrimination cases are subject to the rule that tortfeasors should not benefit by way of offset from payments made to employees from collateral sources and that, as a consequence, payments from an entity that is separate and distinct from an employer generally should not be used to offset damage awards in Title VII and ADEA cases). The Supreme Court held that the backpay provision of Title VII was expressly modeled on the backpay provision of the National Labor Relations Act, which resulted in the National Labor Relations Board refusing to deduct unemployment benefits from an

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employee's backpay award for discriminatory discharge. Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 (1975) citing National Labor Relations Board v. Gullet Gin Co., 340 U.S. 361 (1951) (citations omitted). In Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir. 1982), the Ninth Circuit followed the reasoning of both Albermarle and Gullet Gin, noting that "unemployment benefits received by a successful Plaintiff in an employment discrimination action are not offsets against a backpay award." Kauffman at 347. Plaintiff respectfully requests that this Court enter an order precluding any testimony, evidence, argument or instruction from Defendant regarding any collateral source payments Plaintiff received from the time of his termination to the present.

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Dated this 2nd day of March, 2007
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s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd of March, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected]

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By: s/Stephanie Coulter Stephanie Coulter

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