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Timmons v. United Parcel Service

June 14, 2010


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Both Plaintiff and Defendants have filed multiple motions in limine in this case, which was remanded here for further adjudication after the Ninth Circuit reversed this Court's decision granting summary judgment in favor of UPS as to the case in its entirety. The dismissal of Plaintiff's claims for retaliation and age discrimination under the ADA and the FEHA, however, was not disturbed on appeal. Nor was this Court's dismissal of Plaintiff's claim alleging wrongful termination in violation of public policy disturbed.

Plaintiff's claims for disability discrimination in violation of the ADA and FEHA are the only claims that must now be tried. Consequently the only issue to be adjudicated is whether or not UPS unlawfully failed to accommodate Plaintiff's disability by giving him a job assignment commensurate with his physical limitations.

This Court's written rulings on the parties' in limine requests follow.


1. or in Initial Disclosures. (Denied)

Exclude Evidence Not Previously Produced in Discovery

This Motion is predicated on Plaintiff's claim that UPS' Trial Exhibit List includes documents produced neither in discovery or in Rule 26 disclosures. Documents cited include Exhibit AA, a statement from Dr. Kirk Granlund regarding Plaintiff's post-knee surgery, Exhibit CC, letter from Liberty Mutual regarding Plaintiff's permanent disability rating, Exhibit DD, Plaintiff's Pension Trust Work History Statement, Exhibit EE, A Statement re: Plaintiff's Pension Payment dated December 1, 2006, and Exhibit FF, another Statement re: Pension Payment dated February 1, 2007. Plaintiff appears to claim that all these items were previously undisclosed.

Plaintiff's position is without merit. All five of the documents at issue were produced by Plaintiff's own experts, and were included as exhibits to those experts' depositions. Consequently, Plaintiff cannot argue that he knew nothing about the documents before they appeared on UPS' Exhibit List.

Plaintiff's Motion also appears to request that the Court exclude any documents related to UPS' alleged "undue hardship" defense in reasonably accommodating Plaintiff with another delivery vehicle with automatic transmission/power steering, even though no specific documents are targeted for such exclusion. Given the fact that Plaintiff does not identify any actual documents, and by his own admission makes the request as a "precautionary measure", the request appears premature on its face. UPS also claims to have produced documents concerning its hardship defense in any event. In addition, UPS identified two witnesses knowledgeable about the defense who it claims were deposed by Plaintiff for a total of seven hours.

2. Payments. (Denied, without Prejudice to Renew During Exclude Evidence and Testimony re: Collateral Source Trial)

Through this Motion, Plaintiff seeks to prevent UPS from introducing any evidence or testimony concerning payments received by Plaintiff from any collateral source such as worker's compensation, disability insurance, or unemployment.

The general rule precluding evidence of such payments is well established and rests on the rationale that tortfeasors should not receive a windfall from their own thrift and foresight in having secured insurance and other benefits. See, e.g., Arambula v. Wells, 72 Cal. App. 4th 1006, 1009 (2009); Whatley v. Skaggs Co., 707 F.2d 1129, 1138 (10th Cir. 1983).

UPS opposes Plaintiff's Motion in two respects. First, to the extent that Plaintiff received disability benefits from Liberty Mutual, it claims that the collateral source doctrine does not apply because UPS reimbursed Liberty Mutual for 100 percent of the disability benefits paid by Liberty to Plaintiff. Decl. of Al Hammermiller, ¶¶ 2-4. Ninth Circuit authority does support the proposition that if the "source" is not "collateral" to the alleged tortfeasor (in the sense that UPS ultimately paid for the benefits), the rule does not apply since the payments are not in fact from a collateral source. See McLean v. Runyon, 222 F.3d 1150, 1156 (9th Cir. 2000). Consequently, on the basis of the Hammermiller Declaration, Plaintiff's Motion cannot be granted with respect to the Liberty Mutual disability benefits.

Second, UPS points out that the collateral source doctrine is a rule of damages which prohibits certain kinds of payments from being deducted. UPS argues that it intends to submit evidence that Plaintiff received disability benefits for reasons completely independent from any damages calculation.

Specifically, according to UPS, evidence that Plaintiff was receiving disability based on medical representations that he could not perform the duties attendant to his job (like lifting anything more than 10-20 pounds, or lifting any weight above his shoulders) is relevant to show that he was not a "qualified individual" for purposes of accommodation under FEHA.

It is true that the collateral source rule cannot be invoked to bar introduction of evidence regarding benefits when introduced not to show that such benefits were received but rather for another valid purpose. See, e.g., England v. Reinauer Transp. Co., 194 F.3d 265, 273-74 (1st Cir. 1999). Here, to the extent that evidence was generated showing that Plaintiff could not meet even the most basic prerequisites for serving as a package driver (apart from the kind of vehicle he was assigned), that evidence is admissible independent of the collateral source doctrine. Consequently, while the amount of benefits obtained would not be admissible (except with respect to the Liberty Mutual benefits discussed above), it would appear inappropriate to exclude anything pertaining to collateral source given UPS' claim that during the disability benefits application process both Plaintiff and his physicians made certain representations about his condition that would otherwise be relevant.

Consequently, based both on the evidence provided concerning the Liberty Mutual payments and the fact that some evidence pertaining to disability benefits may in fact be admissible on other grounds, this Motion is denied as overbroad sweep.

To the extent that issues come up during trial that properly invoke the collateral source doctrine on a more limited basis, however, Plaintiff can renew this Motion.

3. Exclude Evidence of Plaintiff's Alleged Discipline in the Early 1990's. (Granted)

This Motion is unopposed and will ...

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