Smith v. Transwest Inc. et al

Filing 103

ORDER ON MOTIONS IN LIMINE (ECF Nos. 56 , 57 , 58 , and 59 ) By Magistrate Judge N. Reid Neureiter on 9/26/2024.(norlin, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-01246-NRN
KEVIN SMITH,
Plaintiff,
v.
TRANSWEST INC. and
TRANSWEST FREIGHTLINER, LLC OF GRAND JUNCTION d/b/a
TRANSWEST TRUCK TRAILER RV OF GRAND JUNCTION,
Defendants.
ORDER ON MOTIONS IN LIMINE (ECF Nos. 56, 57, 58, and 59)
This is an Americans with Disabilities Act (“ADA”) case in which Plaintiff Kevin
Smith alleges that he had a disability (an injury to his back) that required him to have an
accommodation to work as an RV technician for Defendants Transwest, Inc. and
Transwest Freightliner, LLC of Grand Junction d/b/a Transwest Truck Trailer RV of
Grand Junction (together, “Defendants” or “Transwest”). Transwest says it fired Mr.
Smith because, with his injury, he could not perform the essential functions of his job or
other jobs that may have been available at Transwest.
This matter comes before the Court on various motion in limine filed by the
parties. See ECF Nos. 56 (Plaintiff’s Motion in Limine to Exclude Evidence of Social
Security Disability Insurance), 57 (Plaintiff’s Motion in Limine to Exclude Evidence of
Personal Injury Lawsuit and Workers’ Compensation Proceedings), 58 (Defendants’
Motion in Limine Regarding Statements About Hiring Kevin Smith), and 59 (Defendants’
Motion in Limine Regarding Limitation on Plaintiff's Damages).

The parties each responded to the respective motions, see ECF Nos. 63, 64, 65,
66, and the Court heard argument on the motions during the final pretrial conference on
September 3, 2024. See ECF No. 68. With respect to these motions, the Court rules as
follows.
I.

Plaintiff’s Motion in Limine to Exclude Evidence of Social Security Disability
Insurance, ECF No. 56
After Mr. Smith was fired from his job, and after he suffered another injury, he

applied for Social Security disability insurance benefits (“SSDI”), which he was
ultimately awarded. Plaintiff seeks to exclude all evidence of Mr. Smith’s SSDI
application and evidence of his receipt of such benefits.
The timing is as follows: Mr. Smith was terminated from this job as an RV
technician by Defendants on July 13, 2020, after he had undergone a back surgery and
was released by his doctor for light duty work.
Subsequently, he attempted but failed to obtain alternative employment, and
suffered a subsequent injury to his neck.
Then on April 11, 2022, Mr. Smith applied for SSDI, which he was ultimately
awarded. Mr. Smith began receiving SSDI benefits in September 2022 and continues to
receive them through the present day.
Mr. Smith argues that evidence of his subsequent SSDI application and receipt of
SSDI benefits is inadmissible under Fed. R. Evid. 401, 402, and 403 and Colo. Rev.
Stat. § 13-21-111.6. Mr. Smith bases his argument principally on relevance—something
he did a year and half after Transwest terminated his employment has no relevance to
his physical condition, his ability to work, or why Transwest decided to terminate him in
July 2020. Per Mr. Smith, his SSDI application only reflects his physical abilities as of
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April 11, 2022, which changed months after his termination when the rods in his neck
broke. Mr. Smith argues that the statements he made about himself in his SSDI
application do not accurately reflect his condition at or near the date of his termination.
In addition, the SSDI payments that he is receiving constitute collateral source income
that should not be considered by the jury.
Defendants, for their part, argue that the SSDI application is both relevant and
admissible. Per Defendants, “Plaintiff cannot, on the one hand, assert that he is
physically able to perform the essential functions of employment at Transwest, and
simultaneously assert that he is physically unable to work to the extent where he must
receive SSDI benefits.” ECF No. 65 at 1–2.
Defendants concede that Plaintiff submitted his SSDI application in April of 2022,
whereas he had been let go by Transwest in July of 2020. Despite the incongruity of the
timing, Defendants say that the SSDI application contains numerous admissions, for
example about the physical demands of the RV technician position, that are inconsistent
with the position taken in this litigation, that he could perform those tasks. Also,
Defendants point out that in the application, Plaintiff makes reference to the surgeries
he had prior to his termination of employment as one of the reasons he is disabled—not
simply the complications that occurred after his termination. Defendants argue that
Plaintiff “cannot have it both ways”—he cannot claim he could work and could have
returned to work at Transwest while simultaneously claiming that he is totally disabled
and therefore entitled to receive disability benefits.
Defendants zero in on three areas of relevance of the SSDI material: the physical
functions of the RV technician position; the Plaintiff’s physical condition, and his

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damages (claimed front and back pay). Ultimately, Plaintiff must prove that he was able
(with an accommodation) to perform the essential functions of the job or jobs available
at Transwest. Per Defendants, in the SSDI application, Plaintiff makes sworn
statements that the physical demands of the RV technician job far exceed the work
restrictions placed on him by his doctor before Transwest terminated his employment.
Defendants also argue that although Mr. Smith applied for SSDI after his termination
and after the rods in his neck broke, the SSDI application references the surgery and
the doctor’s work restrictions as part of the basis for his disability claims, which predated
his termination from Transwest.
To makes its decision, the Court turns for guidance to the Supreme Court’s
decision in Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795 (1999). There, the Court
held that the pursuit, and receipt, of SSDI benefits does not automatically estop a
recipient from pursuing an ADA claim, nor does it erect a strong presumption against
the recipient's ADA success. However, an ADA plaintiff cannot ignore her SSDI
contention that she was too disabled to work, but must explain why that contention is
consistent with her ADA claim that she can perform the essential functions of her job, at
least with reasonable accommodation.
As the Supreme Court explained, there are “many situations in which an SSDI
claim and an ADA claim can exist side by side.” Id. at 802–03. The reason for this is that
the standard for disability is different under the two regimes. Under the ADA, a “qualified
individual” includes a disabled person who can perform the essential functions of her job
“with reasonable accommodation.” Id. at 803. While the Social Security Act (“SSA”)
determines whether a person is disabled for SSDI purposes without taking the

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possibility of “reasonable accommodation” into account, and an applicant need not
“refer to the possibility of reasonable accommodation when she applies for SSDI.” Id.
“The result is that an ADA suit claiming that the plaintiff can perform her job with
reasonable accommodation may well prove consistent with an SSDI claim that the
plaintiff could not perform her own job (or other jobs) without it.” Id. The Supreme Court
also seems to have foreshadowed the circumstances of this case, noting that “the
nature of an individual’s disability may change over time, so that a statement about that
disability at the time of an individual’s application for SSDI benefits may not reflect an
individual’s capacities at the time of the relevant employment decision.” Id. at 805.
The bottom line is that based on the Cleveland case, I find that Plaintiff’s
application for SSDI benefits and the admissions made in that application are relevant
to the issues in this case and are admissible. Plaintiff will need to explain the various
admissions he made in his 2022 SSDI application about the work requirements of an
RV technician and the source (or cause) and timing of his disability. The Defendants will
be entitled to use Plaintiff admissions in the SSDI application in this case, and to that
extent, this motion in limine (ECF No. 56) is DENIED in part.
However, I do not find that Plaintiff’s receipt of SSDI benefits is admissible. As
explained by the Supreme Court, the determination of disability under the SSA is
different from the whether a plaintiff could have worked with an appropriate
accommodation. So, whether the Social Security Administration found the Plaintiff
disabled for SSDI purposes is irrelevant to what the jury will be assessing in this case—
whether he could perform the essential functions of the job with a reasonable
accommodation. Thus, with respect to the ultimate determination that the Plaintiff was

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and is disabled for Social Security purposes and is receiving SSDI, I find that to be not
relevant to the issues, and potentially very confusing to the jury. To the extent that the
receipt of benefits is related to front pay or back pay damages (or any offset thereof), as
the Parties have explained, these are equitable remedies to be awarded by the Court. If
necessary, the Court will hear evidence on those damages issues outside the presence
of the jury. Therefore, Plaintiff’s motion in limine seeking to exclude evidence that
Plaintiff has been deemed disabled for the purpose of receiving SSDI and is receiving
those benefits, this motion in limine (ECF No. 56) is GRANTED in part.
Further, the Court will consider a giving the jury a limiting instruction explaining
that the because the standards for disability are different under the ADA and the SSA, it
is not relevant to their task whether Plaintiff qualified as disabled for purposes of Social
Security.
II.

Plaintiff’s Motion in Limine to Exclude Evidence of Personal Injury Lawsuit
and Workers’ Compensation Proceedings, ECF No. 57
While he was employed at Transwest, on March 6, 2018, Mr. Smith sustained a
whiplash injury to this neck from a motor vehicle accident. He filed suit against the other
driver on April 29, 2019 in Mesa County District Court. The case was settled and
dismissed in November 2021. Plaintiff asks the Court exclude all evidence of Mr.
Smith’s personal injury lawsuit pursuant to Fed. R. Evid. 201, 401, 402, and 403.
Plaintiff argues that the motor vehicle accident occurred two years before his
termination from Transwest, and that his negligence and loss of consortium claims in
the personal injury case (filed a year before he filed this case) have no relevance to the
issues in this case (which focus on why Plaintiff was terminated from his job, not the
vehicle accident). In addition, Plaintiff argues that any mention of his settlement or the
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money recovered from that accident would confuse the jury in this case, leading the jury
to wrongfully conclude that he is seeking to recover additional damages for injuries he
has already been compensated.
Plaintiff also seeks to exclude any evidence of worker’s compensation
proceedings initiated against Transwest in connection with that motor vehicle accident.
In this regard, Mr. Smith had filed his application for workers’ compensation benefits on
January 5, 2021, in Colorado Workers’ Compensation Case No. 5-149-065, claiming his
back injuries were work related. The case was subsequently settled. Plaintiff anticipates
that Transwest will attempt to admit this evidence of Plaintiff’s workers’ compensation
proceedings and ask he and his experts about it on cross-examination. Here again,
Plaintiff is fearful that the jury will be confused by these various legal filings, and that the
worker’s compensation records are not relevant to the ADA claims being brought here.
Plaintiff cites Aldrich v. Boeing Co., 146 F.3d 1265, 1296 (10th Cir. 1998), for the
proposition (similar to the one seen in Cleveland) that a worker cannot be estopped
from pursuing an ADA claim merely because he applied for and received permanent
and total disability benefits under a state workers' compensation statute, as those
workers’ compensation benefits are awarded without regard to reasonable
accommodation. But critically, Aldrich did not say that evidence of workers’
compensation proceedings or statements made in those proceedings are inadmissible,
merely that the two claims (an ADA claim asserting the plaintiff could work with an
accommodation and a workers’ compensation claim asserting a full disability) are not
mutually incompatible. Indeed, Aldrich notes that testimony or statements by an ADA

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plaintiff may “constitute evidence relevant to a determination of whether the plaintiff is a
‘qualified person with a disability’ . . .but it is not dispositive.” Id. at 1269.
Transwest characterizes this motion in limine as “an overbroad, allencompassing request to bar any and all evidence from two other cases he filed.” ECF
No. 63 at 1. Transwest asserts that these two other cases contain numerous relevant
statements regarding the cause of Plaintiff’s injuries, his disability, and the disability
preventing him from working at Transwest. In Transwest’s view, this evidence is all
“critical to Transwest’s defense that Plaintiff is disabled and was unable to perform the
essential functions of employment with or without a reasonable accommodation.”
Similar to the ruling on the Social Security claim above, I find that the records of
these proceedings do include relevant information (including statements made by
Plaintiff) about the extent of Plaintiff’s injuries and the degree of his disability and ability
to work. Therefore, I DENY in part Plaintiff’s motion in limine (ECF No. 57) which seeks
to preclude any reference to or evidence from the personal injury and workers’
compensation proceedings. That said, I believe that evidence of the outcomes of these
proceedings are irrelevant to the issues before the jury in this ADA case. A workers’
compensation claim is not necessarily inconsistent with an ADA claim and the fact that
a person has received workers’ compensation benefits does not mean he was not
discriminated against because of his disability. Similarly, a personal injury claim, and a
disability that may have resulted from said injury, is not inconsistent with an ADA claim
for a failure to accommodate that disability. Therefore, the Court will GRANT in part
Plaintiff’s motion to the limited extent that evidence about the outcomes of these
proceedings or any payments to Plaintiff as a result of these proceedings will be

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excluded on the grounds of lack of relevance, potential confusion of the jury and the
potential for unfair prejudice to Plaintiff.
III.

Defendants’ Motion in Limine Regarding Statements About Hiring Kevin
Smith, ECF No. 58
Transwest seeks to exclude as hearsay Plaintiff’s deposition testimony

recounting statements made by potential employers to Plaintiff about why they did not
hire him after he had been terminated by Transwest. In his deposition, Mr. Smith
testified about applying for other jobs after leaving Transwest. Specifically, he testified
that he applied for “[s]ervice technicians, boat mechanics, car mechanics. I was all – I
was turned down on all of them because workers’ comp would not take me.” ECF No.
58-1, Smith Depo. Tr. at 146:5–8. Although he did not complete a paper application, he
applied to several facilities in Grand Junction in person. Id. at 146:17–147:1. Mr. Smith
testified that he “disclosed [his] back [condition]” to each prospective employer, and he
was told “their insurances would not cover me. Too high of a risk with previous injury.”
Id. at 147:1–7. He stated that because these companies’ insurance would not cover
him, they could not hire him. Id. at 147:18–22; see also 148:6–23 (discussing specific
application and rejection).
Transwest asserts that Mr. Smith’s testimony about his job applications and
reasons for rejection is hearsay, and its admittance would violate Fed. R. Evid. 801 and
802, as the testimony is an out of court statement by a declarant submitted for its truth.
Transwest argues that it cannot cross-examine the potential employers who rejected
Plaintiff and have no way to verify whether Plaintiff’s recounting of their statements
about why they could not hire him were true or not. Transwest argues that any probative
value is minimal and such testimony runs the risk of unfair prejudice and misleading the
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jury. On the minimal probative nature of the testimony, Transwest argues that the focus
of this case is the end of Plaintiff’s employment at Transwest and whether he could
have maintained any role with the company—not why he could not get a job with other
employers. Transwest also says it runs the risk of confusing the issues, misleading the
jury, and unfairly prejudicing Transwest.
Plaintiff, for his part, argues that the present state of mind exception to the
hearsay rule (Fed. R. Evid. 803(3)) would allow admission of Plaintiff’s recollection of
contemporaneous statements made to Plaintiff while he was applying for jobs and
explaining his prior medical and injury history.
I agree with Plaintiff that the then-existing state of mind exception (including a
statement of motive or intent) is an exception the hearsay rule that applies here. Plaintiff
will be presumably testifying about what the potential employers told him when they
rejected him for positions: words effectively communicating that “we can’t hire you, your
injury history makes you too much of a risk.” This reflects the state of mind of the
employer who considered Plaintiff to be too risky to hire, because of his medical
condition. There is little basis for fabrication of such a statement. I also conclude that
there is little danger of prejudice to Defendants or confusion of the jury. Plaintiff is
entitled to explain what he did after he was fired and how he tried to minimize his loss of
income by applying for other jobs. It would be more confusing for the jury to not hear
about those efforts and whether they bore fruit or not. Learning that he was rejected,
and the reasons given for the rejection is merely part of the story, and it does not place
any unduly prejudicial information before the jury. Therefore Transwest’s motion in
limine (ECF No. 58) on this subject is DENIED.

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IV.

Defendants’ Motion in Limine Regarding Limitation on Plaintiff's Damages,
ECF No. 59
Transwest moves to limit evidence related to Plaintiff’s lost wages. Transwest
asserts that based on Plaintiff’s expert reports, Plaintiff will claim damages from the date
of his termination through approximately 2029, his anticipated year of retirement. This
encompasses 3.5 years of backpay, from July 3, 2020 through January 2024, and 5.2
years of front pay, from January 2024 through early 2029. However, based on multiple
admissions from Mr. Smith, he is unable to work and receives SSDI because of his
inability to work. Mr. Smith began receiving SSDI in September 2022, slightly over two
years after his termination from Transwest. Thus, at most, according to Transwest, Mr.
Smith can claim approximately two years of back pay, from July 13, 2020 through
September 21, 2022. Based on this testimony, Transwest argues that the Court should
restrict any evidence of lost wages after September 21, 2022. ECF No. 59 at 7.
I agree with Plaintiff that, on the issue of damages, Plaintiff should be afforded
the opportunity at trial to explain how he would have been able to continue working had
he been provided with a reasonable accommodation, which would have allowed him to
continue to earn the wages at issue. And if those wages exceed the SSDI payments he
is currently receiving, then he may be entitled to some monetary compensation,
regardless of the fact that he receives SSDI.
I also note that the issues of awarding front pay or back pay are equitable
remedies for the Court to decide. It may be appropriate to take evidence on this issue
after the jury has deliberated and rendered a verdict on the ADA liability questions and
non-economic damages (if any). The Court will address the procedure of taking

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evidence on economic damages (whether before the jury or outside the jury’s presence)
on the first day of trial. But for now, this motion in limine (ECF No. 59) will be DENIED.

Date: September 26, 2024
___________________________
N. Reid Neureiter
United States Magistrate Judge

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