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Llewellyn v. Ocwen Loan Servicing, LLC

United States District Court, District of Colorado

May 5, 2015

GLEN LLEWELLYN, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC., and NOMURA CREDIT AND CAPITAL, INC., Defendants.

ORDER GRANTING MOTION IN LIMINE

William J. Martínez United States District Judge

Defendants Ocwen Loan Serving, LLC, and Nomura Credit and Capital, Inc. (together, “Defendants”) move in limine to exclude any evidence or testimony from Plaintiff Glen Llewellyn (“Llewellyn”) regarding (a) financial losses allegedly caused by Defendants or (b) physical symptoms Llewellyn attributes to the emotional distress allegedly caused by Defendants. (ECF No. 331.) For the reasons stated below, the motion is granted.

I. BACKGROUND

This is a lawsuit for alleged violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2. The facts of this case are lengthy and have been described elsewhere. (See, e.g., ECF No. 266.) For present purposes, the following suffices.

In June 2011, the Court ruled on Defendants’ motion for summary judgment. (See id.) The Court there concluded that Llewellyn had provided evidence sufficient to go to a jury on whether Defendants had violated FCRA between December 5, 2007 (when Defendants concluded that Llewellyn’s loan should have been classified as paid-in-full rather than in default) and February 15, 2007 (when Defendants requested that credit reporting agencies remove the negative information Defendants had provided about Llewellyn). (Id. at 16–17.) However, the Court concluded that summary judgment for Defendants was appropriate because Llewellyn failed to support any actual damages, which included both direct economic damages (such as business losses) and emotional distress damages. (Id. at 20–26.)

Llewellyn appealed and the Tenth Circuit affirmed except with respect to emotional distress damages. See Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173 (10th Cir. 2013). Specifically, the Tenth Circuit held that Llewellyn’s declaration describing his emotional distress was sufficiently specific and non-conclusory to merit a trial. Id. at 1182–83. Thus, what remains for trial in this case is (a) whether Defendants violated FCRA by their conduct between December 5, 2007 and February 15, 2007, and if so, (b) whether Llewellyn suffered emotional distress caused by Defendants’ FCRA violation.

The Tenth Circuit further noted, however, that Llewellyn asserted various physical symptoms that he attributed to his emotional distress. Id. “At trial, ” the Tenth Circuit said, “[Llewellyn]’s ability to recover for the various physical symptoms he describes will turn, in part, on his ability to establish that the physical symptoms are manifestations of the emotional distress he experienced. . . . [Llewellyn]’s ability to seek damages for the . . . physical symptoms will be more appropriately addressed by the district court through pre-trial and trial motions.” Id. at 1183 n.3.

II. ANALYSIS

Defendants now move in limine to exclude all testimony and evidence related to two subjects: (1) Llewellyn’s economic damages (other than emotional distress damages), and (2) Llewellyn’s physical symptoms that he claims were caused by his emotional distress. (ECF No. 331 at 2.) Llewellyn concedes the first category of evidence is no longer admissible. (ECF No. 342 at 1.) Accordingly, the Court turns to the second category of evidence.

In summary judgment proceedings, Llewellyn submitted a declaration asserting that Defendants’ alleged conduct caused a flare-up in his preexisting Crohn’s Disease, as well as other symptoms:

In 1979, I joined the United States Marine Corps (“USMC”). While I was serving my country, through reasons unknown to me, I developed Crohn’s Disease. Crohn’s Disease is an autoimmune disease that affects the digestive tract and, specifically, the intestine. The disease causes inflammation and severe pain in the abdomen, including diarrhea and other intestinal problems. . . . My doctors have informed me that stress and anxiety worsen Crohn’s Disease and can cause flare-ups of this disease.
* * *
When I came to Colorado, I went to work with my brother at his construction business. Because I was making good money with my brother . . . my stress level decreased dramatically. As a result of this decreased stress, I no longer had any issues with my Crohn’s Disease (i.e. no trouble with ...

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