Free Motion in Limine - District Court of Arizona - Arizona

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Mishka L. Marshall (#016641) MARSHALL LAW GROUP, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 Telephone: 602/274-7873 Facsimile: 602/274-8207 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SEAN L. HARGROW, Case No. CIV 2003-0642 PHX DGC Plaintiff, V. FEDERAL EXPRESS CORPORATION, a Delaware corporation doing business in Arizona; JOHN and JANE DOES I-X;
BLACK CORPORATION I-X, WHITE LIMITED LIABILITY COMPANIES I-X, PLAINTIFF'S MOTION IN LIMINE RE COLLATERAL SOURCE PAYMENTS

Defendants.

Plaintiff Sean Hargrow 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 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

Case 2:03-cv-00642-DGC

Document 143

Filed 11/02/2006

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plaintiff received from other sources of compensation that are independent of (or 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 NLRB refusing to deduct unemployment benefits from an 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. Respectfully submitted this 2nd day of November, 2006. s/Mishka L. Marshall Mishka L. Marshall MARSHALL LAW GROUP, P.C. 777 E. Thomas Rd., Suite 210 Phoenix, Arizona 85014 Attorney for Plaintiff

Case 2:03-cv-00642-DGC

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CERTIFICATE OF SERVICE I hereby certify that on November 2, 2006 I transmitted by electronic filing the foregoing Motion in Limine re Collateral Source Payments to the Clerk of the United States District Court for the District of Arizona using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary H. Beard FEDERAL EXPRESS CORPORATION 3620 Hacks Crossing Road, Building B-3rd Floor Memphis, Tennessee 38125 Lori Higuera Alec Hillbo FENNEMORE CRAIG, PC 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Counsel for Defendant s/Mishka L. Marshall Mishka L. Marshall

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Document 143 3 - Filed 11/02/2006

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