The opinion of the court was delivered by: Terrence F. McVerry, Judge United States District Court
MEMORANDUM ORDER OF COURT
Presently before the Court are the following Motions in Limine filed by Defendants in this matter:
(1) DEFENDANTS' MOTIONS IN LIMINE, with brief in support (Document No. 71 and 72 respectively), and Plaintiff's brief in opposition (Document No. 74); and
(2) DEFENDANTS' SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE EVIDENCE OR ARGUMENT CONCERNING PLAINTIFF'S PAY IN THE ADMINISTRATIVE ASSISTANCE JOB (Document Nos. 78 and 79, respectively), and Plaintiff's brief in opposition (Document No. 81).
The Motions will be addressed seriatim.
DEFENDANTS'MOTION IN LIMINE REGARDING TESTIMONY OF DAMAGESEXPERT(Document No. 71-1)
Defendants seek to exclude the testimony of Plaintiff's expert witness, Jay Jerrell, as to the fringe benefits allegedly lost by Plaintiff as a result of the termination of her employment.
Mr. Jarrell bases his calculation of Plaintiff's damages "on a percentage of her W-2 income. Specifically, he appears to indicate that Plaintiff's damages for lost benefits equal 8.1% of her W-2 income." Defs' Br. at 2.
Plaintiff, relying on Kelly v. Matlack, 903 F.2d 978, 985 (3d Cir. 1990), argues that a terminated employee is entitled to the value of fringe benefits he or she would have continued to receive even when the employee does not obtain replacement coverage. While it is certainly correct to argue that, on a proper foundation, courts have allowed an employee to recover benefits other than lost wages such as the replacement of life and disability insurance that had formerly been paid by the employer, this Court does not read Kelly to hold that in an employment discrimination case the proper damage calculation in all instances of lost fringe benefits is the value of the benefits in terms of the employer's cost to provide them.
Similar to the Age Discrimination in Employment Act, Title VII is of a "make-whole" nature. "When the discriminatory action is termination, a prevailing plaintiff is entitled to be made whole for losses sustained as a result of the termination." Erie County Retirees Ass'n v. County of Erie, PA, 166 F. Supp. 2d 310, 311 (W.D. Pa. 2001) (citations omitted). "The appropriate remedy for the discriminatory action is that which will, to the highest extent possible, put the Plaintiff in the position [she] would have been in had there been no discrimination." Id. (citation omitted).
The Court notes that several courts have calculated damages for the loss of health insurance in the termination context by determining how much the plaintiff expended in order to replace the insurance. See, e.g., Purcell v. Sequin State Bank & Trust Co. 999 F.2d 950 (5th Cir. 1993); Kossman v. Calumet County, 800 F.2d 697, 703-04 (7th Cir. 1986), overruled on other grounds by Coston v. Plitt Theatres, Inc., 860 F.2d 834 (7th Cir. 1988); Merkel v. Scovill, Inc., 570 F. Supp. 141, 146 (S.D. Ohio 1983); Curtis v. Robern, Inc., 819 F. Supp. 451, 459 (E.D. Pa. 1993).
After a thorough review of these cases, this Court agrees with the reasoning of the district court in the Erie County Retirees Association case and finds this case to be persuasive. Accordingly, Plaintiff will not be permitted to present evidence regarding lost employee benefits unless she is able to demonstrate that she purchased replacement benefits or incurred some out-of-pocket cost(s) with respect thereto. See Rhodes v. Guiberson Oil Tools, 82 F.3d 615, 620-21 (5th Cir.1996), cert. denied, 502 U.S. 868 (1991); see also Merkel v. Scovill, Inc., 570 F. Supp. 141, 146 (S.D. Ohio 1983) (declined to award sum of health insurance premiums insurer would have paid on plaintiff's behalf in back-pay award because plaintiff never incurred these expenses and awarding them would make him more than whole).
In this matter, the Plaintiff will not be permitted to offer evidence that the value of her lost fringe benefits should be based upon a percentage of her W-2 income. However, evidence of actual costs and expenses which Plaintiff has ...