Tedrow v. Swift Transportation Co. of Arizona, LLC et al

Filing 44

OPINION AND ORDER: Plaintiff's Motion in Limine 37 is GRANTED. Signed on 3/10/2020 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT

DEREK TEDROW,
vs.

Plaintiff,

FOR THE DISTRICT OF OREGON

SWIFT TRANSPORTATION
COMPANY OF AMERICA,
LLC, et al.,
Defendants.

AIKEN, District Judge:

PORTLAND DIVISION

Case No. 3: 18-cv-01609-AA
OPINION AND ORDER

In this wrongful death action, defendants admit liability for decedent Derek

Tedrow's death and that plaintiff, Tedrow's estate, has sustained damages. The

parties dispute the amount of damages. Plaintiffs alleged damages include the loss

of services provided by decedent to his adult son Tanner Tedrow. Plaintiff has filed

a Motion in limine (doc. 37) seeking an order prohibiting defendants from introducing
evidence that disability programs or other family members could replace these lost
Page I-OPINION AND ORDER

services at little or no cost to plaintiff. Plaintiff contends that such evidence is

inadmissible at trial under Oregon's "collateral source" rule, ORS 31.580.
reasons below, plaintiffs motion is GRANTED.

For the

Decedent Derek Tedrow was the father and sole parent of Tanner Tedrow and

E.T., a minor. After Derek Tedrow's death, State Farm paid PIP benefits to the
Estate, and the Social Security Administration paid death benefits to Tanner and

E.T. Defendants agree that such payments are inadmissible collateral benefits under

ORS 31.580 and are willing to stipulate to an Order excluding evidence of receipt of

those payments, including information about any similarly situated person who
receives social security payments or death benefits.

Plaintiffs damages claim includes economic damages for Tanner's loss of his

father's services. Tanner has been diagnosed with Autism Spectrum Disorder with

Accompanying Language Disorder; Other Specified Depressive Disorder; Language
Disorder; and Attention Deficit Hyperactivity Disorder, Predominantly Inattentive

Type.

The parties dispute whether Oregon law permits defendants to offer expert

testimony about or evidence of low-cost or free services that may be available to

Tanner through government, non-government, or non-profit disability programs or
other family members. The parties also dispute the admissibility of evidence that

Tanner has applied for SSD or SSI benefits.
Page 2 OPINION AND ORDER

BACKGROUND

Applying Oregon law to a wrongful death action, courts may award damages

that include an amount that "fj]ustly, fairly and reasonably compensates" a

decedent's child "for the loss" of, inter alia, "services of the decedent." ORS 30.020.

These loss-of-service damages are "economic damages." ORS 31.710(2)(a); Kahn v.

Pony Express Courier Corp., 173 Or. App. 127, 160 (2001), rev. den., 332 Or. 518

(2001) (discussing the definition of "economic damages" in a prior version of the

statute). In determining the amount of loss-of-service damages to award on behalf of

a decedent's child, a jury may consider the following:

(a) Any services the decedent customarily performed for (him /her/them)
in the past;
(b) Any services the decedent might reasonably have been expected to
perform for (him/her/them) in the future;

(c) The decedent's age, ability, life expectancy, health, habits, industry,
sobriety, and thrift; and

(d) The age, health, and life expectancy of the decedent's (spouse/children
/stepchildren/parents/stepparents).

Or. Unif. Civil Jury Instr. No. 71.02.

The "collateral source" rule limits both a court's final determination of damages

and the admissibility of evidence related to a plaintiffs receipt of "collateral benefits."

In 1982, the Oregon Legislature superseded the common-law "collateral source" rule 1

with what is now ORS 31.580:

Page 3 OPINION AND ORDER

STANDARDS

1 Originally a creature of Oregon common law, the rule prohibited courts from reducing an
injured plaintiffs damages by the amount of benefits received from an independent third party-even
if those benefits mean to repair the injury at issue. White, 347 Or. at 219-20 (citing Cary v. Buress,
169 Or. 24 (1942) (adopting the common law "collateral source" rule in Oregon)). In its nascent form,

DISCUSSION

this rule did not "concern itself with whether a plaintiff' achieves a "double recovery" as a result-that
is, one recovery from a third party and another from a defendant for the same injury. Id. at 220.
(1) In a civil action, when a party is awarded damages for bodily injury
or death of a person which are to be paid by another party to the action,
and the party awarded damages or person injured or deceased received
benefits for the injury or death other than from the party who is to pay
the damages, the court may deduct from the amount of damages
awarded, before the entry of a judgment, the total amount of those
collateral benefits other than:
(a) Benefits which the party awarded damages, the person injured or
that person's estate is obligated to repay;
(b) Life insurance or other death benefits;

(c) Insurance benefits for which the person injured or deceased or
members of that person's family paid premiums; and

(d) Retirement, disability and pension plan benefits, and federal Social
Security benefits.

(2) Evidence of the benefit described in subsection (1) of this section and
the cost of obtaining it is not admissible at trial, but shall be received by
the court by affidavit submitted after the verdict by any party to the
action.

ORS 31.580.

Plaintiff intends to offer expert testimony that Tanner needs long-term care

and support to perform day-to-day functioning and will need care and support for the
remainder of his life-care and support that his father would have provided.

Plaintiffs experts will testify that Tanner will need care, assistance, and monitoring

for an average of fourteen hours per day to permit him to reside in the least restrictive
environment with consideration for his safety and dignity.

Page 4 - OPINION AND ORDER

Plaintiffs experts

Resp. to Pl.'s Mot. in Lim., at 2. Plaintiff argues that this evidence is inadmissible
under Oregon's collateral source rule, ORS 31.580, and under FRE 401 and 403.

the reasonable value of those services.'' White v. Jubitz Corp., 347 Or. 212,243 (2009).

subsections (l)(a)-(d). ORS 31.580(2). Any evidence of collateral benefits to plaintiffs

under ORS 31.580(1) is inadmissible at trial "when it discloses the existence and

amount of a collateral source benefit." White, 347 Or. at 243 (emphasis added). A

(2007); ORS 31.580(2).

Gragg v. Hutchinson, 217 Or. App. 342, 350

estimate the present value of the loss of Derek Tedrow's services to Tanner at between
5.4 and 6 million dollars. Pl.'s Mot. in Lim., at 5.

Defendants intend to submit expert testimony that Tanner Tedrow may obtain

services to replace his father's lost services from governmental and nongovernmental

programs or from other family members and that these services are available to

plaintiff at low or no cost. Defendants intend to use this testimony to demonstrate

that Tanner's claims for lost services "would not justify so much in damages." Def.'s

"The amount one pays for services" can be "an important factor in determining

However, Oregon's "collateral benefits" rule limits the admissibility of evidence of any

"collateral benefits" a plaintiff will receive, regardless of whether they fall under

defendant may not admit any evidence of "collateral benefits" at trial-even to
impeach a witness-and must wait to submit the evidence "by affidavit...after the
verdict by any party to the action.''

Here, plaintiff may recover from defendants damages for the value of lost
services Derek Tedrow was reasonably expected to perform . in the future by

Page 5 - OPINION AND ORDER

demonstrating the cost of replacement of those services. And defendants may "put
plaintiff to his proof' for the elements of that claim. See White, 347 Or. at 243. But
in so doing, defendants may not submit evidence at trial that the government or some
other third party will replace those services at low or no cost to plaintiff.
Defendants argue that they seek to introduce evidence of "collateral services"
that are not "collateral benefits" made inadmissible by ORS 31.580, which they argue
are limited "to an amount of money." Def.'s Resp. to Pl.'s Mot. in Lim., at 3. In White,
the Oregon Supreme Court rejected this argument. There, the court noted that
plaintiffs may recover "the value of medical services made necessary by the tort."
White, 347 Or. at 236 (citing with approval Zehr v. Haugen, 318 Or. 647, 656 n. 6
(1994), and Restatement (Second) of Torts § 924(£) (1979)) (emphasis added). The
Court held that "a plaintiff may claim the reasonable value of medical charges
without limitation to the amount that a third party pays or remains liable to pay on
the plaintiffs behalf." Id. at 236-37 (emphasis added). A plaintiff may recover the
value of these services even if they "had not paid those expenses and would not be
required to do so." Id. at 237 (citing Willis v. Foster, 229 Ill. 2d 393, 414 (2008)).
Oregon courts have also rejected defendants' argument that "collateral
benefits" must be amounts of money and that it only wants to introduce evidence of
services. "Collateral benefits" are not "limited to cash payments made to a plaintiff,"
but may "take other forms, such as a service, gift, and financial help." White v. Jubitz
Corp., 219 Or. App. 62, 72 (2008), aff'd, 347 Or. 212 (2009). And "services" can have
the monetary value required by the definition of "economic damages" in ORS 30.020

Page 6 - OPINION AND ORDER

"even if they do not in fact result in the production of tangible goods or m
remuneration to the person performing them." Kahn, 173 Or. App. at 158.
Under ORS 31.580(2), defendants may not introduce evidence at trial that
discloses the existence or amount of any collateral benefit to Tanner Tedrow or E.T.
This includes evidence of those benefits the parties have stipulated to exclude: Social
Security death benefits, Social Security disability and Social Security insurance
payments, funds or trusts that may help Tanner Tedrow pay for replacement of lost
services, PIP payments, and the receipt of any of the above benefits by persons
similarly situated to Tanner Tedrow or E.T. It also includes evidence that Tanner
Tedrow's lost services could be replaced by the third party provision of services for
free or at low cost, including such benefits from the Social Security Administration,
the Deschutes County Developmental Disabilities program, or another governmental,
nongovernmental, or nonprofit entity, the application by Tanner Tedrow for such
benefits, and such benefits Tanner Tedrow may receive from relatives.
While the above evidence is inadmissible at trial, defendants may submit it
post-verdict pursuant to ORS 31.580(2). At that time, the parties may argue whether
any of the evidence submitted falls within ORS 31.5809(1)(a)-(d) or if it permits a
reduction in the awarded damages. At trial, the question for the jury is what services
Derek Tanner was reasonably expected to provide for Tanner in the future and what
is the present value of those services. Defendants may submit evidence to contradict
plaintiffs assertions on the type or value of those services. Defendants remain
permitted to submit evidence that the cost of services proposed by plaintiff is

Page 7 - OPINION AND ORDER

CONCLUSION

unreasonable or that Derek Tanner would not reasonably have been expected to
provide the amount or type of services that plaintiff asserts.
Plaintiff also argues that evidence of Tanner Tedrow's application for or receipt
of benefits under federal or state disability programs is irrelevant. under FRE 401 and
prejudicial under FRE 403. In general, the amount paid for services is admissible
"and often may be an important factor in determining the reasonable value of those
services." White, 347 Or. at 243.

But where a third party provides benefits to a

plaintiff that reduce the cost to the plaintiff of repairing an injury, the "collateral
benefits" rule ensures that the plaintiffs damages do not suffer reduction as a result.
This is because a plaintiff may collect the value of services made necessary by the
injury. To a jury, therefore, evidence of collateral benefits given to the plaintiff is
irrelevant to the amount of damages to award for loss of services.

For the reasons above, plaintiffs Motion in Limine (doc. 37) is GRANTED.
IT IS SO ORDERED.
-\

Dated this \0 �ay of March 2020.

Ann Aiken
United States District Judge

Page 8 - OPINION AND ORDER