IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS J. JONES, )

)

Plaintiff, )

)

v. ) No. 12 C 328

)

STANDARD INSURANCE COMPANY, )

)

Defendant. )

OPINION AND ORDER

This case is before the court for consideration of the parties' motions in

limine.

Plaintiff's first motion in limine is to exclude the amount of benefits he is

receiving from other sources, particularly disability benefits from the Social

Security Administration ("SSA"). Plaintiff still seeks admission of the evidence

that he was awarded disability benefits; he just seeks to exclude the amounts of

those benefits. Defendant seeks to exclude all evidence regarding plaintiff's award

of disability benefits, both the amounts and the existence of an award, including

plaintiff's exhibits 11, 12, and 14. Plaintiff cites decisions, see Metro. Life Ins. Co.

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v. Glenn, 554 U.S. 105, 109-10 (2008); Raybourne v. Cigna Life Ins. Co. of N.Y.,

700 F.3d 1076 (7th Cir. 2012); Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758

(7th Cir. 2010); LaBarge v. Life Ins. Co. of N.A., 2001 WL 109527 *8 (N.D. Ill.

Feb. 6, 2001); White v. Airline Pilots Ass'n, Int'l, 364 F. Supp. 2d 747, 768

(N.D. Ill. 2005), in which reviewing courts have considered SSA decisions

granting disability benefits. Those cases, however, all involved court review,

under ERISA, of administrative decisions denying disability benefits under

insurance policies and often concern whether the administrator acted arbitrarily in

failing to take into consideration the SSA determination. That is unlike the present

case in which a jury is to determine de novo whether plaintiff meets the contractual

requirements for disability benefits under his insurance policy and whether the jury

should be able to consider that SSA has found that its disability standard is

satisfied. Cases cited by defendant,1 see Chambers v. Sch. Dist. of Philadelphia

1

None of the cases cited by defendant involve an SSA disability

determination. Although not cited by either party, it has been held that evidence of

an SSA disability determination can be admissible to show that a person is a

qualified individual with a disability for purposes of an ADA claim in which it

must be shown that the person is substantiality limited in life activities including

work. However, such a holding is based on the similarity of the ADA standard to

the SSA disability standard and such evidence should not be admitted if differences

applicable to the particular case are likely to confuse the jury. See Lawson v. CSX

Transp., Inc., 245 F.3d 916, 927-28 (7th Cir. 2001); Henry v. TDS Metrocom,

2005 WL 1651044 *9 (N.D. Ill. July 8, 2005).

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Bd. of Educ., 827 F. Supp. 2d 409, 420 (E.D. Pa. 2011) (IDEA determination

being considered regarding Rehabilitation Act and ADA claims), rev'd, ___

F. App'x ___, 2013 WL 5225182 (3d Cir. Sept. 17, 2013); Hall v. Sterling Park

Dist., 2012 WL 1050302 *8 (N.D. Ill. March 28, 2012) (EEOC and Ill. Dep't of

Labor files and determinations); Lewis v. City of Chicago, 563 F. Supp. 2d 905,

919-20 (N.D. Ill. 2008) (EEOC discrimination determination), aff'd sub nom.,

Lewis v. City of Chicago Police Dep't, 590 F.3d 427, 441-42 (7th Cir. 2009);

Wells v. Berger, Newmark & Fenchel, P.C., 2008 WL 4365972 *4 (N.D. Ill.

March 18, 2008) (Ill. Dep't of Human Rights and Ill. Dep't of Employment

Security determinations), support the view that administrative decisions should not

be presented to the jury as evidence if the unfairly prejudicial component of the

evidence outweighs its legitimate probative value. See generally Fed. R. Evid.

403.

The somewhat Delphic decision of the SSA which plaintiff proposes to

offer is as follows:

The statement of evidence in the determination of

06/01/11, except as modified herein, is hereby incorporated by

reference but not the inferences, findings, or conclusions

based thereon.

This determination reopens and revises the previous

determination(s) dated 06/01/11.

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The prior determination is being reopened because he

has had a diagnosis of PTSD and depressive disorder since

3/8/11. New MER in file establishes a severe, disabling

impairment as his condition has not improved. The claimant

meets listing 12.04AB. At the time of the prior determination,

it was noted that he was receiving treatment for

depression/anxiety and appeared stable. However, as noted

previously, MER received indicates that his condition has

deteriorated. Therefore, the prior decision dated 6/1/11 is

being reopened.

Disability is therefore established on 03/22/11 and

continues to date.

To admit the SSA decision would require an explanation of various SSA

standards for determination of a disability and, arguably, the admission of the

entire SSA record which does not in all respects conform with the Rules of

Evidence. There could easily be duplication and confusion. This court will follow

the decisions which decline to admit such determinations in a jury fact-finding

proceeding in which presenting the evidence will result in unfair prejudice and

confusion. 

A related question arises from the intention of the defendant to offer in

evidence a statement (defendant's Exhibit No. 2) made by the plaintiff to the

Illinois Department of Human Rights and the EEOC in connection with charging

DS Waters with disability discrimination. Plaintiff stated to the agency that,

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although disabled, he could "with reasonable accommodation" carry on his work at

DS Waters. Defendant, however, by its motion in limine No. 10, seeks to preclude

all evidence of the findings of the Illinois agency--which were contrary to plaintiff

because it was found that there was no "reasonable accommodation" available in

his employment circumstances. Plaintiff contends that, if the statement he made is

received, the decision which recites evidence should be received. Otherwise, the

jury might believe that the case was lost because it was found that plaintiff did not

have a disability.

It has been held that the standards for determination under disability

discrimination claims are not the same as are applicable to disability claims under

the SSA. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802-06 (1999);

Lawson, 245 F.3d at 927-28. Whatever evidentiary value could be derived from

plaintiff's statement would in fairness require admission and explanation of the

agency decision and involve the jury in a distracting issue. Denying admission of

the statement and the record before the Illinois Department of Human Rights is the

proper disposition of these objections, but does not preclude an inquiry of the

plaintiff about his condition at the time the proceedings were started. Accordingly,

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plaintiff's objection to defendant's exhibit No. 2 is granted, and defendant's motion

in limine No. 10 is granted.

Consistent with the ruling that Count II, the Section 155 proceedings,

will be tried to the court, see Order dated May 16, 2013 [65], the SSA decision can

be considered in determining that matter. Accordingly, plaintiff's motion in limine

to exclude evidence of other award benefits will be granted. Defendant's motion in

limine to exclude evidence of the Social Security Award and plaintiff's exhibits 11,

12, and 14 during the trial before the jury is granted.

Plaintiff's motion No. 2 in limine to exclude unidentified witnesses is

reserved.

Plaintiff's motion in limine No. 3 in so far as he seeks to bar the use of

the term "malingering" is granted. It is a pejorative term and need not be used. 

However, the Federal Judicial Center, Reference Manual on Scientific Evidence

(3d ed. 2011) states at page 841:

Psychological testing can be helpful in detecting deception;

the MMPI-2 [Minnesota Multiphasic Personality Inventory-2],

for example, has scales that correlate with persons who are

both "faking bad" (i.e., fabricating symptoms) and "faking

good" (i.e., hiding symptoms that actually exist). Other

instruments specifically for the assessment of malingering also

have been developed, with varying degrees of validation. 

Information from records of previous psychiatric or

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psychological evaluations can be helpful in determining the

congruence of the person's current symptoms with past reports

and behaviors.

Consistent with the cited reference, defendant will be permitted to inquire about

the scale results of the MMPI-2 test taken by plaintiff if defendant calls

Dr. Langgut as a witness. Defendant will also be permitted to introduce

background information.

Plaintiff's motion in limine Nos. 4, 5, 7, and 13 to bar the calling of

experts for lack of identification is denied. The identification provided in

defendant's initial disclosure and the subsequent discovery proceedings are

adequate.

Plaintiff's motion in limine No 6. (to exclude witnesses from DS

Waters), and Nos. 9 and 10 (job applications and appeals to DS Waters) are

reserved.

Plaintiff's motion in limine No. 11 to describe witness as independent is

reserved.

Plaintiff's motion in limine Nos. 14 and 15 are denied.

The motions in limine of the defendant, not referred to in previous

rulings, are ruled upon as follows:

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Defendant has moved (motion in limine No. 2) to exclude evidence and

testimony regarding the MMPI-2 testing of plaintiff by clinical psychologist Mark

Langgut, and all testimony from Langgut and any conclusions based on the tests

contained in Plaintiff's exhibits 8, 9, and 10. Defendant argues that the testimony

and report produced by Langgut fails to meet Daubert analysis. However, Langgut

is a well-qualified psychologist, experienced in diagnosing and treating patients

suffering from PTSD, and has administered a recognized psychological test, the

MMPI-2. The Daubert standards to not preclude his testimony. For test accuracy

reasons, however, Langgut has questioned or rejected the validity of the test

because of possible exaggerated responses by plaintiff and stated that any opinion

by him would require further interview of plaintiff.

Defendant has chose not to proceed further with the test or the witness,

which it has a right to do. This does not preclude plaintiff from calling Langgut to

explain his experience with PTSD or the MMPI-2. Defendant may offer testimony

from Langgut explaining why he regarded the results of the MMPI-2 test of

plaintiff to be invalid.

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Because defendant decided not to call Langgut or introduce the MMPI-2

results, plaintiff may not, before the jury, go into the question of why defendant did

not arrange for more time for Langgut to interview plaintiff in greater depth.

Defendant's motion in limine No. 3 to bar Drs. Capriotti, Tran, Lynch,

and Langgut from testifying and excluding plaintiff's exhibits 2, 3, 4, 5, 6, 7, 8, 9,

and 10 is denied.

Defendant's motion in limine No. 4 to bar evidence related to vexatious

or unreasonable conduct as claimed in Count II of the Amended Complaint and for

penalties and plaintiff's exhibit 21 is granted.

Defendant's motion in limine Nos. 5, 7, 11, and 12 are granted. 

Defendant's motion in limine Nos. 6, 8, 9, and 13 are reserved.

IT IS THEREFORE ORDERED that plaintiff's motion in limine No. 3 is

granted. Plaintiff's motion in limine Nos. 1 and 12 are granted in part and denied

in part. Plaintiff's motion in limine Nos. 4, 5, 7, 13, 14, and 15 are denied. 

Plaintiff's motion in limine Nos. 2, 6, 8, 9, and 13 are reserved. Defendant's motion

in limine Nos. 1, 4, 5, 7, and 10-12 [69, 72, 73, 75, 78-80] are granted. Defendant's

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motion in limine Nos. 2 and 3 [70-71] are denied. Defendant's motion in limine

Nos. 6, 8, 9, and 13 [74, 76-77, 81] are reserved.

ENTER:

 

UNITED STATES DISTRICT JUDGE

DATED: OCTOBER 8, 2013

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