To clarify instructions on the categories of damages, we direct the court on remand to eliminate “disability” and “aggravation of preexisting condition” as separate categories of damages and include instead  “loss of a normal life,” with other instructions consistent with this opinion. 

[T]he testimony of Mr. Cranfill will be helpful to the trier of fact in making its determination regarding Mr. von Wiegen's alleged lost profits. In addition, his opinion will assist the trier of fact determine     whether the plaintiffs' expert had enough data and documentation to determine Mr. von Wiegen's amount of lost damages.

Professor Charles Linke's analysis, during the plaintiffs' case, is based on the earnings for full-time year round average male workers in his analysis. On the other hand, Professor Thomas Ireland used all male workers, including part-time. Since approximately eighty percent of male college graduates work year round full-time, the Court finds Dr. Linke's analysis more valid. His upper bound present value projection is $3,874,604. Dr. Linke's lower bound is $2,559,050. The middle ground of both of those is $3,216,827. That number is a fair value for Sean's diminished earnings capacity.

Professor Linke's methodology included averaging each of the items from the Klosterman/Dietzen plan to calculate the present value. All of Dr. Linke's methodology was set forth in detail in his report. Professor Ireland concedes that Professor Linke's upper bound net discount rate would be appropriate for what Dr. Ireland refers to as "true" medical expenses. Professor Ireland offered no methodology for determining what constitutes "true" medical expenses, as opposed to "false" medical expenses. Indeed, when asked by the Court about physical therapy  costs, he testified that he assumed that they have not gone up and will not go up as much as "true" medical expenses. On the other hand, the medical care segment of the CPI published by the U.S. Bureau of Labor Statistics includes everything in the Klosterman/Dietzen life care plan as medical expenses. . . In particular, it includes "fees paid to individuals or agencies for the personal care of invalids, elderly or convalescence in the home including food preparation, bathing, light house cleaning, and other services." Professor Ireland conceded that if the Court determines that the components of the Klosterman/Dietzen life care plan to be medical expenses, then Dr. Linke's upper bound is the appropriate discount rate.

Dr. Womack expert opinion on future earnings capacity (i.e., Mr. Barclay can only earn a minimum wage salary in the future) is predicated on two assumptions: first, that Mr. Barclay will be able to return to work, which could be supported by Dr. Williams' testimony, and second, that Mr. Barclay will earn no more than the federally mandated minimum wage, which is supported by nothing. Mr. Barclay contends that this latter assumption derives from his age and employment history. Essentially, he argues that he will be unable to make anything above the federally mandated minimum wage in a "light duty" job because he has never worked a "light duty" job. This argument is not supported by any facts or evidence and thus amounts to pure speculation. While this assumption may represent a possibility, possibility alone cannot serve as the basis for an expert's opinion. See Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137 (5th Cir. 1985). Because there is no evidence to support Dr. Womack's minimum wage opinion, any expert testimony that includes these unsupported calculations of future earnings is inadmissible.

[T]he amount of the medical expenses that was discounted or written off can be considered both a benefit of the plaintiff’s bargain with his health insurance carrier, and a gratuitous benefit arising from the plaintiff’s bargain with the medical provider. “A creditor’s forgiveness of debt – that is what a write-down in the present context amounts to – is often considered equivalent to payment in other contexts, e.g., income tax, credit bids at foreclosure, etc.  In other words, a creditor’s partial forgiveness of a tort victim’s medical bills via a write-down is properly considered a third-party ‘payment,’ evidence of which is barred by the collateral source rule.” (Citing McConnell v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 14280 (D. Nev. 2014).

[T]he overwhelming negative response must least raise strong doubts as to whether Dr. Smith’s methodology can be termed ‘generally accepted.’ For this reason and because Dr. Smith’s method relies on unfalsifiable and unsubstantiated inferences, as described, it is unreliable.

The only sufficient testimony Dr. Smith could provide covers matters already “obvious to the layperson” . . . A jury has no need for an expert to make the banal observation that the value of life exceeds a person’s economic productivity.

Captain D's motion to strike the testimony of plaintiff's expert G. Richard Thompson, Phd, who has been called to testify regarding plaintiff's damages, will be granted, to the extent that he seeks to offer expert testimony regarding the pecuniary value of any hedonic damages suffered by Foradori. After reviewing Dr. Thompson's report and the methodologies used therein, the court views his hedonic damages testimony as quintessential "junk" science excluded by Daubert.. See, e.g. Davis v. ROCOR Intern., 226 F.Supp.2d 839 (S.D. Miss. 2002) (excluding hedonic damages expert testimony pursuant to Daubert). Indeed, the notion that Dr. Thompson is able to assign the precise value of $ 1,164,300 to plaintiff's loss of enjoyment of life borders on the absurd, and the specific methodologies used by Dr. Thompson in arriving at this figure strengthen this court's conclusion in this regard.

[F]or an expert to base an opinion as to the reasonable value of future medical services, in whole or in part, on the full amount billed for past medical services to a plaintiff would lead to the introduction of evidence concerning the circumstances under which a lower price was negotiated with that plaintiff’s health insurer, thus violating the evidentiary aspect of the collateral source rule. . . Thus, we conclude that the future medical services that Corenbaum and Carter are reasonably likely to require may not rely on the full amounts billed for plaintiff’s past medical expenses.

The rule has no bearing on amounts that were included in a provider's bill but for which the plaintiff never incurred liability because the provider, by prior agreement, accepted a lesser amount as full payment. Such sums are not damages the plaintiff would otherwise have collected from the defendant. They are neither paid to the providers on the plaintiff's behalf nor paid to the plaintiff in indemnity of his or her expenses. Because they do not represent an economic loss for the plaintiff, they are not recoverable in the first instance. The collateral source rule precludes certain deductions against otherwise recoverable damages, but does not expand the scope of economic damages to include expenses the plaintiff never incurred.

We hold, therefore, that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial. In so holding, we in no way abrogate or modify the collateral source rule as it has been recognized in California; we merely conclude the negotiated rate differential--the discount medical providers offer the insurer--is not a benefit provided to the plaintiff in compensation for his or her injuries and therefore does not come within the rule.

Evidence of the actual amounts paid for Esteban's medical care was considered for the limited purpose of ascertaining the reasonable value of the medical services provided. As specifically noted in the findings of fact and conclusions of law, evidence regarding the amounts actually paid for Esteban's medical services was the only evidence of the value of such services submitted other than the billed amounts, which the court found were unduly inflated. In light of the limited evidence of damages offered by the parties, evidence of the amounts actually paid for all Esteban's medical services was substantially probative. There was no jury hearing Esteban's case. The risk of undue prejudice under Rule 403 resulting from the evidence was nonexistent. Contra Lund, 31 Cal. 4th at 8; ("because collateral source evidence is 'readily subject to misuse by a jury,' the likelihood of misuse 'clearly outweighs' the value of such evidence") (emphasis added); Eichel, 375 U.S. at 255 (same). The evidence of the amounts paid in full satisfaction of Esteban's medical debts was properly admitted under either the evidentiary prong of California's collateral source rule or under the Federal Rules of Evidence to show the value of the services and as bearing on the actual loss qua damages.

The Court agrees with Howell and Quintero that the amount actually paid on behalf of Plaintiff by her insurers pursuant to prior agreements with her medical providers is the reasonable value of her medical care. Plaintiff has not cited any case law to the contrary, and this rule makes common sense. The dilemma, however is how to present such evidence to the jury without – perhaps unintentionally – inducing them to reduce the amount of medical damages by the amount paid by insurers in violation of the collateral source rule. The parties are therefore ordered to meet and confer to determine if they can reach an agreement on how to present such evidence.
   

Another potential solution is to follow the procedure that occurred in Howell, namely “where a trial jury has heard evidence of the amount accepted as full payment by the medical provider but has awarded a greater sum as damages for past medical expenses, the defendant may move for a new trial on grounds of excessive damages,” and the plaintiff may “choose between accepting reduced damages or undertaking a new trial.”

The parties agree that there is a conflict between Wisconsin and Florida law regarding the "collateral source" rule, which generally provides that a plaintiff's recovery of medical expenses will not be reduced by the fact that they were paid by some source collateral to the defendant, such as an insurance company. Leitinger v. Van Buren Mgmt., 2006 WI App 146, 295 Wis. 2d 372, 720 N.W.2d 152, 156 (Wis. Ct. App. 2006). Schultz accrued $762,173.54 in medical expenses for his cancer treatment. Medicare paid $202,323.31 towards this amount, and Schultz's medical providers are not attempting to recover the balance. Under Wisconsin law, Schultz would be entitled to recover the entire balance so long as that amount represents the "reasonable value of medical and nursing services reasonably required by the injury." Id. (citing Ellsworth v. Schelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 764, 769 (Wis. 2000)).  [*11] Under Florida law, Schultz would be limited to the amount paid out by Medicare. Cooperative Leasing v. Johnson, 872 So. 2d 956, 960 (Fla. Dist. Ct. App. 2004) ("the appropriate measure of compensatory damages for past medical expenses when a plaintiff has received Medicare benefits does not include the difference between the amount that the Medicare providers agreed to accept and the total amount of the plaintiff's medical bills"). Accordingly, the Court agrees with the parties that there is a conflict between Wisconsin and Florida law.

The Vermont Supreme Court has not decided whether the collateral source rule applies to bar evidence of third party payment that is directed to proof of the value of medical services rendered rather than to proof of the amount of damages owed by a defendant. Vermont's trial courts have reached different conclusions, although the majority have ruled that evidence of collateral source payments is not admissible to prove the reasonable value of medical services rendered.

[Thomas R.] Ireland may not provide testimony at trial that challenges the “hedonic damages” approach to a determination of the the loss of enjoyment of life, or that the use of the “values of statistical life” studies are not scientifically reliable or valid to use in the determination of the value of life. These conclusions are contrary to the law of New Mexico. Further, Mr. Ireland may not provide testimony that is his lay person intepretation of the law. This is an improper invasion of the Court’s exclusive role in instructing the Jury on the law.

Lost benefits are recoverable only if the plaintiff has offered evidence of out-of-pocket expenses for the same benefits. See Kossman v. Calumet County, 800 F.2d 697, 703-04 (7th Cir. 1986) (holding that, to recover damages representing benefits, a plaintiff must show that she actually incurred insurance or medical care expenses); Taylor v. Central Pa. Drug & Alcohol Servs. Corp., 890 F. Supp. 360, 372 (M.D. Pa. 1995); Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 604 F. Supp. 962, 965 (E.D. Pa. 1985). In this case, even if the budgeted value of benefits corresponding to plaintiff's salary had been less than the budgeted value of benefits corresponding to the salaries of the other department heads, plaintiff presented no evidence that she incurred insurance expenses. In addition, she presented no evidence that any employer-contributed retirement benefits were tied to the amount of her salary. Further, that benefits may have amounted to twenty-one percent of her supervisees' salaries does not mean that benefits constituted an equal percentage of higher salaries. Indeed, it would be logical to expect that employer insurance contributions at all salary levels were substantially the same and that, therefore, benefits were a considerably lower percentage of higher salaries. Because there was no competent evidence from which a  reasonable jury could conclude that Dr. McMillan suffered any loss in benefits as a result of her lower salary, Dr. McMillan's back pay award should be accordingly reduced by the amount of the lost benefits award.

Because the remedies available under the ADEA (Age Discrimination in Employment) and the FMLA (Family Medical Leave Act) both track the FLSA, cases interpreting remedies under the statutes should be consistent. Consequently,  we hold that the correct measure of damages for lost insurance benefits in FMLA cases is either actual replacement cost for the insurance, or expenses actually incurred that would have been covered under a former insurance plan. The lost "value" of benefits, absent actual costs to the plaintiff, is not recoverable. Here, because the jury awarded an undifferentiated sum for employee benefits without segregating insurance benefits, and the award was based on an incorrect understanding of FMLA remedies, we must  remand to the district court for redetermination of this damage element (parentheses added.). 

The primary goal of the backpay award is to make a victim of age discrimination whole. (Omitting citation.)  Including the cost of insurance coverage in a backpay award when the victim of discrimination fails to secure alternative coverage allows the victim to recover an unwarranted windfall unless he or she can demonstrate that they were unable to secure coverage and had a medical expense. As the preceding cases demonstrate, Kossman and Jodar must establish  that in fact they incurred expenses in securing alternative insurance coverage or incurred medical expenses that would have been covered under the County's insurance program had they not been terminated in order that they might recover the cost of the insurance benefits or be reimbursed for any proper medical expenses incurred. Thus, the trial court should consider whether Kossman and Jodar after their retirement purchased insurance coverage the County would have purchased for them. The court should include those expenditures in the backpay award that Jodar and Kossman incurred if in fact they did purchase alternative coverage or in lieu thereof incurred medical expenses ordinarily covered under the County's policy.

Common sense dictates that Kossman and Jodar certainly had no need for deputy sheriff's uniforms during the period they were not employed as deputy sheriffs. The inclusion of the clothing allowance in the backpay award, therefore, would not be in accord with the underlying policy of the ADEA, to make the victim of age discrimination whole.

Where an employee's fringe benefits include medical and life insurance, a plaintiff should be compensated for the loss of those benefits if the plaintiff has purchased substitute insurance coverage or has incurred, uninsured, out-of-pocket medical expenses for which he or she would have been reimbursed under the employer's insurance plan.

Defendants also object to including as damages $7,882, which represents the cost of replacing insurance benefits defendants provided to plaintiff.  Instead, defendants argue that plaintiff should be awarded actual expenditures made by plaintiff in obtaining replacement insurance coverage, and if an uninsured loss is incurred, the actual loss to the extent it would have been covered by the employer's insurance programs.  The Court does not accept the defendants' proposed method of calculating plaintiff's damages. . . The insurance benefits plaintiff lost are not any less of a monetary benefit to her because she could not afford to replace her insurance benefits or because she did not become sick. . . . Accordingly, the Court finds that plaintiff is entitled to recover her lost insurance benefits.

Had Mr. Fariss not been terminated, he would have been covered by a life insurance policy with a $42,000 face value for the two years before his death. This insurance coverage, not the proceeds, is the benefit for which the employer must be held liable. Here the employer would in no event have been liable to the employee for the $42,000, but only for the continuing payment of premiums. The value of being insured for a given period is precisely the amount of the premiums paid. To require the employer to pay the face value of the policy would be to compel assumption of a risk not undertaken on behalf of any other employee.

Nor is it sufficient to respond that an employer who discriminates in violation of the ADEA deserves to bear such a sizable and unanticipated penalty, for in most instances, the employee can easily avoid the risk of being uninsured by purchasing  an individual policy of comparable value. Where the employee elects to obtain substitute insurance, the "make whole" concept underlying ADEA damages . . . would permit full recovery of any additional premiums for the comparable individual policy beyond what the employer would have paid for group insurance.

[Mo. Rev. Stat. § 490.715.5(1)] provides a non-exhaustive list of factual matters to consider in determining whether the presumption has been rebutted, including (1) the medical bills incurred, (2) the medical bills paid, and (3) the unpaid amount that the plaintiff will be "obligated to pay to any entity" in the event of a favorable verdict. Other factors recognized, or testimony accepted, by Missouri courts as rebutting the presumption include: whether the amounts charged are customary and reasonable, whether the health care provider typically attempts to recover the full amount of the bill, and the extent to which the amount accepted represents the value of the medical services.

Because R.C. 2315.20 does not prohibit evidence of write-offs, the admissibility of such evidence is determined under the Rules of Evidence. A plaintiff is entitled to recover the reasonable value of medical expenses incurred due to the defendant's conduct. . .The reasonable value may not be either the amount billed by medical providers or the amount accepted as full payment. . . "Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care."

As our supreme court has now made clear, Illinois follows a "reasonable-value approach" to the collateral source rule. Id. at 413. Under this approach, and as a substantive rule of damages, "[a]ll plaintiffs are entitled to seek to recover the full reasonable value of their medical expenses." . . . Furthermore, under this approach, "'collateral benefits do not reduce the defendant tort liability, even though they reduce the plaintiff's loss.'" Id. at 419, quoting Arthur, 216 Ill. 2d at 78. [ Arthur v. Catour, 216 Ill. 2d 72, 833 N.E.2d 847, 295 Ill. Dec. 641 (2005)] As such, a plaintiff may recover for the reasonable value of medical treatment even where that treatment is, in whole or in part, paid for by private insurance, by a governmental insurance program, or is provided gratuitously. Id. at 413, citing Restatement (Second) of Torts § 920A cmt. b, c (1979).

We conclude that  negotiated-discount amounts--amounts a plaintiff is billed by a medical provider but does not pay because the plaintiff's insurance provider negotiated a discount on the plaintiff's behalf--are "collateral sources" for purposes of the Minnesota collateral-source statute, Minn. Stat. § 548.251. We therefore hold that the district court erred in its collateral-source determination because it failed to classify the amount by which Swanson's medical providers discounted Swanson's medical bills as a collateral source. Because of Swanson's accident with Rebecca Brewster, Swanson's medical expenses totaled $ 62,259.30. After Swanson's copayments of $ 1,169.80, $61,089.50 in charges remained. Because the money HealthPartners delivered to the medical providers ($17,643.76) combined with the negotiated discount ($43,445.74) fully satisfied Swanson's remaining $ 61,089.50 obligation, the total amount of "collateral sources that have been paid for the benefit of [Swanson] or are otherwise available to [Swanson]" is $ 61,089.50 for purposes of Minn. Stat. § 548.251, subd. 2(1). As required by Minn. Stat. § 548.251, subd. 3, the district court on remand should also offset the collateral-source amount--$ 61,089.50--by $ 4,570.64, the total of Swanson's health insurance premium payments for the two-year period immediately before this action. Accordingly, the district court on remand should reduce Swanson's damage award by the amount of $ 56,518.86.

[T]he mere acceptance by a medical provider of the payment of a lesser amount on a bill is not probative of the reasonable value of the medical services reflected in that bill. There are many reasons (e.g., managed care contracts, Medicaid contracts, private insurance agreements, etc.) why medical providers would accept a lesser amount than the amount charged. Indeed, in his deposition testimony, Dr. Urban stated: "I think that the charges are what I should get paid for [the medical service provided]. We have horrible contracts with our companies and I think that we are actually right now redoing our contracts because we don't get paid enough for what we do." 

The judge properly excluded from the jury's consideration the amounts paid to Scott's health care providers.  The collateral source rule required that the amounts actually paid to the health care providers by the health insurer be redacted on the medical bills admitted in evidence. In any event, there could be no abuse of discretion here. Despite the defendants' argument that the jury, in determining Scott's reasonable medical expenses, should have been allowed to consider, in addition to the amounts billed, the amounts actually accepted by the health care providers as full payment, the defendants made no evidentiary proffer, i.e., a showing that the health care providers had agreed to accept as full payment some amount less than the amount billed, that would have laid the foundation for such a challenge to the application of the collateral source rule.

Dr. Ireland's deposition testimony shows that he does not know the value of alleged household services loss. Dr. Ireland does not have enough information to draw any conclusions or assist the trier of fact in assessing the household service loss. His testimony does nothing other than invite the jury to speculate about the amount of the alleged household service loss.

September 21, 2014

Toyota Motor Manufacturing v. Williams, 122 S.Ct. 681 (2002). “It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of impairment.” Disability must be analyzed in a “case by case manner” “in terms of their own experience,” in terms of “the effect of that impairment on the life of the individual.” Revised listing.

Hough-Scoma v. Wal-Mart Stores, Inc., WL 261857 W.D.N.Y.; 1999 U.S. Dist. LEXIS 7046. The decision in this case was reversed because the vocational expert, Dr. Allen Winship, had relied upon the Gamboa tables as the sole basis for projecting that the plaintiff’s work-life expectancy had been shortened.  The plaintiff had returned to work at her old job, though with modified duties, but at the same pay. The Court pointed out that the Gamboa tables had not been admitted into evidence, that there was no evidence in the record that the Gamboa tables had been accepted in the relevant scientific community, and that there was no medical evidence that the plaintiff’s condition would worse over time such that she would not continue to work as long as before her injury. Given the lack of evidence of a reduction in work-life expectancy, the Court concluded that Dr. Winship’s testimony should not have been admitted. This is a revised listing.

[W]e conclude that Duvall's testimony based upon the Gamboa study was relevant and could assist the trier of facts in understanding the evidence presented or in determining a fact in issue, to wit: the amount of damages suffered by Nilavar due to Osborn's breach of contract. Applying the factors set forth in Daubert, we note that while there was no evidence that the Gamboa study had been subjected to peer review or had been generally accepted by the scientific community, these factors are not prerequisites to admissibility under Daubert. . . . The Gamboa study was based on data from the Current Population Survey by the U.S. Department of Commerce, Bureau of Census. The Gamboa study had been published for at least nine years at the time of trial, and Duvall knew of other experts who relied on it. Duvall also testified that if he had based his damage calculations on the "Cieka Study," which Osborn's expert recognized as authoritative, his calculations would have been even higher. Duvall utilized the more conservative study.

Dr. Anthony Gamboa, PhD, also testified at trial. Dr. Gamboa  is a vocational economist who testified regarding Johnson's future wage loss claim based on his status as a disabled person. Dr. Gamboa utilized a definition of disability from the American Community Service (ACS) that is published by the Census Bureau. According to Dr. Gamboa, the ACS definition of disability provides that a physical disability is a limitation or problem with climbing, lifting, prolonged standing, sitting or walking. Dr. Gamboa performed a vocational assessment of Johnson that was based on Johnson's medical records, Johnson's employment and tax records and depositions given by Drs. Miz, Carobene and Gates. Dr. Gamboa also testified that he functions like an appraiser, who measures the impact of disability on a subject's earning potential. Dr. Gamboa testified that Johnson was 39 years old at the time of trial, had a high school education and a pre-injury work-life expectancy between 21.2 and 22.5 years and a pre-injury earning capacity of $ 63,177 per year. According to Dr. Gamboa, disability reduces earnings because it reduces the work-life expectancy. Dr. Gamboa also testified that it is probable that Johnson will have a post-injury reduction in his work-life expectancy  to between 16.4 and 19.4 years as a result of his injury and resulting disability. According to Dr. Gamboa, people with herniated discs have problems with heavy lifting, with bending and with pain and Johnson was halfway between a person with anon-severe work disability and no work disability at all. Dr. Gamboa also testified that Johnson's lifetime loss of earning capacity ranged from $ 195,909 to $ 299,137.

Dr. Gamboa based his opinion on the medical findings of Dr. Fortson, who had previously testified. Therefore, we cannot conclude that the trial court abused its discretion in determining that the findings of a medical doctor were a sufficiently reliable basis for a specialist's opinion under Rule 702(b). . . Moreover, Dr. Charles Linke, an economist and Tube City's expert, used the same methodology as Dr. Gamboa, including the same percentage for fringe benefits, the same interest rate growth rate, and the same data from the Current Population Survey that is gathered by the U.S. Bureau of the Census. Therefore, Tube City cannot now complain that Dr. Gamboa's methodology is unreliable.

We note that defendants used the gain in actual earnings effectively to impeach Dr. Gamboa. The jury found that the plaintiff showed that he would lose $200,000 in earnings, and that amount is less than one-fourth of Dr. Gamboa’s estimate of lost earnings. At plaintiff’s 2001 earnings of nearly $60,000 per year, 3.5 years of diminished work life will cost plaintiff about $200,000 in lost earnings. Even if the jury had completely rejected Dr. Gamboa’s testimony, the evidence supports the assessment of $200,000 in lost earnings.  See Stringham v. United Parcel Service, Inc., 181 Ill. App. 3d 312, 317, 536 N.E.2d 1292, 130 Ill. Dec. 81 (1989) (uses change in expected work life to estimate lost earnings).