Lawton-Davis et al v. State Farm Mutual Automobile Insurance Company

Filing 133

ORDER denying in part 106 Motion in Limine; denying in part 110 Motion in Limine; granting 111 Motion ; granting 112 Motion ; granting 122 Motion for Reconsideration ; granting 126 Motion for Reconsideration. Signed by Judge Roy B. Dalton, Jr. on 4/7/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERICKA LAWTON-DAVIS; ANTHONY
DAVIS; and ZORIYAH DAVIS,
Plaintiffs,
v.

Case No. 6:14-cv-1157-Orl-37DAB

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Plaintiff’s [sic] Amended Motion for Judicial Notice (Doc. 111), filed March 1,
2016.

2.

Plaintiff’s [sic] Amended Motion to Permit Medical Bill Summary (Doc. 112),
filed March 1, 2016;

3.

Plaintiffs’ Motion for Reconsideration of Order Denying Motion to Strike or,
Alternatively, Motion for Leave to Conduct Limited Discovery (Doc. 122),
filed March 16, 2016;

4.

Defendant’s Amended Motion in Limine to Limit the Admission of Evidence
(Doc. 110), filed February 29, 2016;

5.

Plaintiffs’ Response [to] Defendant’s Amended Motion in Limine to Limit the
Admission of Evidence (Doc. 116), filed March 14, 2016.

6.

Plaintiffs’ Motion in Limine (Doc. 106), filed February 26, 2016;

7.

[Defendant’s] Response to Plaintiffs’ Motions in Limine (Doc. 117), filed

March 14, 2016; and
8.

Defendant’s Motion for Reconsideration Regarding Nationwide Records
(Doc. 126), filed March 24, 2016.
BACKGROUND

In the instant action, Plaintiff Ericka Lawton-Davis (“Mrs. Lawton Davis”) seeks
uninsured motorist benefits for injuries she allegedly sustained in a car accident on
April 22, 2011 (“2011 Accident”). (Doc. 115, p. 1.) A five-day jury trial is set to commence
on Monday, April 18, at 9:00 a.m. (See Doc. 131.) Pending before the Court are numerous
evidentiary issues, which are now ripe for determination.
PRETRIAL CONFERENCE RULINGS
On March 17, 2016, the Court held a final pretrial conference (“PTC”), attended by
counsel for both parties (“Counsel”). The Court discussed the following motions with
Counsel at the PTC.
I.

Unopposed Motions
First, the Court agreed to take judicial notice of United States Life Tables issued

by the U.S. Department of Health and Human Services. Pursuant to Federal Rule of
Evidence 1006, the Court also agreed to admit Plaintiffs’ proffered medical bill summary
into evidence, along with the respective underlying medical bills. Finally, upon
Defendant’s concession, the Court precluded Defendant from eliciting expert testimony,
contained in its supplemental expert reports, as to the late-disclosed claims file from
Nationwide Mutual Insurance Company (“Nationwide”). In light of the foregoing, the
following motions are due to be granted: (1) Plaintiffs’ Amended Motion for Judicial Notice
(Doc. 111); (2) Plaintiffs’ Amended Motion to Permit Medical Bill Summary (Doc. 112);

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and (3) Plaintiffs’ Motion for Reconsideration of Order Denying Motion to Strike
(Doc. 122).
II.

Boilerplate Motions
As the Court forewarned, the following boilerplate motions in the parties’ omnibus

motions in limine are due to be denied as frivolous: (1) the requests numbered 1–15 in
Plaintiffs’ Motions in Limine (Doc. 106); and (2) the requests numbered 1–13 in
Defendant’s Motion in Limine to Limit Evidence, Testimony, and Argument (Doc. 110,
pp. 9–13). Counsel are advised that, in the future, the Court will sanction any non-case
specific, boilerplate motions in limine as frivolous filings.
III.

Collateral Sources/PIP Evidence
Upon agreement by the parties, and consistent with the Court’s oral

pronouncement at the PTC, documentation of personal injury protection payments will
be admitted into evidence at trial. After trial, the Court will rule on any applicable setoff
from collateral source payments.
IV.

Evidence of Mrs. Lawton-Davis’s Injuries.
In line with the Court’s discussion with Counsel at the PTC, the requests numbered

16–18 in Plaintiffs’ omnibus Motion in Limine (Doc. 106, pp. 7–8) are due to be denied
without prejudice. However, Plaintiffs’ counsel are not precluded from objecting to such
evidence at trial.
V.

Dr. Rundell & Dr. Masson
As announced at the PTC, until trial, the Court reserves ruling on the parties’

respective challenges to the testimony of Dr. Rundell and Dr. Masson.

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EVIDENCE RELATING TO REASONABLENESS OF MEDICAL BILLS
The Court has also considered Plaintiffs’ motion in limine as it relates to
Defendant’s expressed intention to offer evidence of differential pricing and prevailing
market rates to contest the reasonableness of the medical expenses incurred by
Mrs. Lawton-Davis. At the PTC, Defendant represented that it intends to introduce this
evidence through cross-examination of Plaintiffs’ witnesses and direct expert testimony,
without reference to collateral sources or other matters that would run afoul of Florida
Statute § 768.76.
As noted by Defendant, several factors are relevant to the analysis of whether a
medical provider’s charges are reasonable, including—but not limited to—(1) the
provider’s internal cost structure; (2) the usual and customary rates charged and
payments received for these services; and (3) what other similar medical providers in the
relevant market charge for similar services. Colomar v. Mercy Hosp., Inc.,
461 F. Supp. 2d 1265, 1274 (S.D. Fla. 2006). 1
Equally relevant, of course, would be explanations for pricing differentials,
1

In the context of discovery disputes, courts frequently recognize the relevance of
evidence concerning medical charges. E.g., Gulfcoast Surgery Ctr., Inc. v. Fisher,
107 So. 3d 493 (Fla. 2d DCA 2013) (holding that discovery requests related to a hospital’s
internal cost structure were relevant to the tortfeasor’s defense as to the
unreasonableness of the plaintiff’s medical charges); Columbia Hosp. (Palm Beaches)
Ltd. P’ship v. Hasson, 33 So. 3d 148 (Fla. 4th DCA 2010) (affirming the trial court’s
conclusion that information about the amounts a hospital charged to patients with and
without insurance, those with letters of protection, and the differential billing for litigation
and non-litigation patients was reasonably calculated to lead to the discovery of
admissible evidence); Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So. 3d 1232
(Fla. 2d DCA 2009) (concluding that defendant’s discovery requests for the hospital’s
charges, the discounts it grants to various categories of patients it services, and the
hospital’s internal cost structure were either directly relevant to the reasonableness of the
hospital’s charges or reasonably calculated to lead to the discovery of admissible
evidence).

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including, but not limited to: (1) discounts associated with Medicare or Medicaid billing
restrictions; (2) discounts associated with insurance contracts; (3) agreements on pricing
ceilings; (4) discounts associated with factoring of accounts receivable; or (4) any other
evidence that might be fairly considered on the issue of reasonableness of the charges
incurred. Mrs. Lawton-Davis’s lack of control as to the amount of the charges submitted
by the providers is also relevant to the analysis.
Nonetheless, neither market analysis, nor any of the other factors, can be solely
relied on as the measure of reasonableness. 2 Therefore, at the commencement of trial,
the parties must submit a joint jury instruction in connection with the factors to be
considered in assessing the reasonableness of Mrs. Lawton-Davis’s medical bills.
Due to the Court’s concern that the trial may be improperly sidetracked by the
parties’ protracted effort to litigate the issue of medical expenses—as well as the billing
and referral practices of the involved providers—Counsel are forewarned that cumulative
testimony will not be permitted. Additionally, the Court will give a limiting instruction to the
effect that: (1) the jury may consider such evidence only to assess the reasonableness of
the medical expenses incurred and for no other purpose; (2) any evidence or inference
that Mrs. Lawton-Davis received reimbursement or compensation from any collateral
2

See, e.g., Colomar, 461 F.Supp.2d at 1270, 1271 (stating that “a market analysis
is not the sole measure of evaluating reasonableness,” but rather is “only one of several
nonexclusive means of showing that hospital charges are unreasonable”); Giacalone,
8 So. 3d at 1236 (“The use of comparative market pricing is only one type of relevant
information which may be helpful in establishing a claim of unreasonable pricing.”); see
also Goble v. Frohman, 848 So. 2d 406 (Fla. 2d DCA 2003), approved by 901 So. 2d 830
(Fla. 2005) (warning that “evidence of contractual discounts received by managed care
providers is insufficient, standing alone, to prove that nondiscounted medical bills were
unreasonable”); Hillsborough Cnty. Hosp. Auth., 664 So. 2d 1071 (Fla. 2d DCA 1995)
(“[E]vidence of these contractual discounts, standing alone, is insufficient to prove that [a
hospital’s] charges were unreasonable.”)

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source must not be considered in connection with any damage award the jury deems
supported by the evidence; and (3) the jury should not reduce any monetary award
in favor of Mrs. Lawton-Davis due to collateral source payments made on her behalf
or discounts obtained by the providers. Pursuant to Goble v. Frohman, 901 So. 2d 830,
833 (Fla. 2005), after trial, the Court will reduce any amounts paid by collateral
sources or discounted as a result of a contract for which no right of subrogation or
reimbursement exists.
Finally, the Court will exercise its authority under Federal Rule of Evidence 611 to
avoid wasting time and to protect witnesses from undue harassment. As such, Counsel
is forewarned that this mine-run uninsured motorist claim will not be used as a forum for
protracted litigation of collateral and marginally relevant issues associated with the
reasonableness of Mrs. Lawton-Davis’s medical expenses.
DEFENDANT’S MOTION FOR RECONSIDERATION REGARDING NATIONWIDE’S
RECORDS
In addition to the 2011 Accident, Mrs. Lawton-Davis also sustained injuries in a
2004 automobile accident (“2004 Accident”) (see Doc. 107, p. 5), for which she
submitted a claim to Nationwide (see id. at 2). On April 29, 2015, during discovery in
the instant action, Defendant subpoenaed Nationwide (“April Subpoena”) to obtain its
claim file for the 2004 Accident (“Nationwide File”). (Doc. 126, p. 1.) That same day,
Defendant served Plaintiffs with notice of the April Subpoena, which required
submission of the Nationwide File to Defendant on or before May 29, 2015. (Id.)
Notwithstanding this deadline, Nationwide did not produce any records in response to
the April Subpoena. (Id. at 2.) Nonetheless, in September 2015, Plaintiffs served
Defendant with a request for copies of the Nationwide File. (Id. at 1–2.)

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Defendant did not contact Nationwide until October 2015 to discuss its
noncompliance with the April Subpoena. (Id. at 2.) According to Defendant, the
Nationwide representative could not locate the April Subpoena and requested a new one.
(Id.) Consequently, Defendant served Nationwide and Plaintiffs with an amended
subpoena in October 2015 ("October Subpoena"), which required production of the
Nationwide File on or before October 30, 2015. (Id.) Defendant finally received the
Nationwide File on November 4, 2015. (Id.)
On November 6, 2016—the discovery deadline—Defendant attempted to e-mail
Plaintiffs the Nationwide File; however, the email "bounced back" because it was too
large. (Id.) Later that day, Defendant sent Plaintiffs another email with a purported
Dropbox link to the Nationwide File. (Id.) However, the Dropbox link did not contain the
Nationwide File (“Faulty Link”). (Id. at 3.) Defendant maintains that it did not become
aware of the Faulty Link until November 23, 2015, after reviewing Plaintiffs’ response to
a Daubert Motion. (Id. (citing Doc. 67, p. 4).) Defendant subsequently e-mailed Plaintiffs
an updated Dropbox link containing the complete Nationwide File. (Doc. 126, p. 3.)
Based on the foregoing, and by agreement of the parties at the PTC, the Court
precluded Defendant from eliciting expert testimony at trial concerning the matters
disclosed in supplemental expert reports prepared after Defendant obtained the
Nationwide File. At the PTC, the Court also limited admission of the Nationwide File at
trial to impeachment purposes only (“Limitation Ruling”). Defendant now moves for
reconsideration of the Court’s Limitation Ruling.
In support of its Motion, Defendant asserts that: (1) it was only obligated to provide
Plaintiffs with a copy of the Nationwide File obtained in response to the April Subpoena,

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and not the October Subpoena; (2) even though it was not obligated to provide the
Nationwide File to Plaintiffs, it attempted to do so twice on November 6, 2015, just two
days after receiving it; (3) any remaining prejudice to Plaintiffs resulted from their failure
promptly notify Defendant of problems with the Faulty Link; (4) the exhibits to Defendant’s
Daubert Motion (Doc. 62), which it filed on the discovery deadline, contained the most
significant portions of the Nationwide File; and (5) pursuant to Federal Rule of Civil
Procedure 26(e)(A), it was not required to supplement its discovery disclosures after
obtaining the Nationwide File because Plaintiffs had prior knowledge of the contents of
the Nationwide File.
Rule 26(e)(A) provides that:
a party who has made a disclosure under Rule 26(a) . . . must
supplement or correct its disclosure . . . in a timely manner if
the party learns that in some material respect the disclosure
or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to
the other parties during the discovery process or in writing.
“If a party fails to provide information . . . as requested by Rule 26(a) or (e), the party is
not allowed to use that information . . . to supply evidence . . . at a trial, unless the failure
is substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1).
As an initial matter, this dispute stems from a lack of diligence on both sides. The
Court also finds Defendant’s distinction between Plaintiffs’ request for copies of the
Nationwide File sought in the April Subpoena and their failure to request the same file
sought in the October Subpoena to be disingenuous gamesmanship.
Nonetheless, the issue at hand boils down to the question of prejudice. Importantly,
Defendant represents that the Nationwide File “is the only known record in existence of
Mrs. Lawton-Davis’s significant medical treatment after her [2004 Accident].” (Doc. 126,

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p. 3.) It is unmistakable that Plaintiffs had superior access to Mrs. Lawton-Davis’s own
medical records—the most significant contents of the Nationwide File. Notwithstanding
Plaintiffs’ representation at the PTC that the medical records contained in the Nationwide
File were too remote in time to obtain from Mrs. Lawton-Davis's treating providers, nothing
precluded Plaintiffs from acquiring such records from other sources, as Defendant did.
Indeed, such acquisition is standard practice in a case where causation is at issue.
Consequently, Plaintiffs cannot now claim that they were prejudiced by the late disclosure
of her own medical records by a third party. Based on the foregoing, the Court finds that
Defendant’s Motion is due to be granted. As such, Defendant will be permitted to offer the
Nationwide File at trial for all purposes consistent with the Federal Rules of Evidence and
the Court’s rulings.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiff’s [sic] Amended Motion for Judicial Notice (Doc. 111) is GRANTED.

2.

Plaintiff’s [sic] Amended Motion to Permit Medical Bill Summary (Doc. 112)
is GRANTED.

3.

Plaintiffs’ Motion for Reconsideration of Order Denying Motion to Strike or,
Alternatively, Motion for Leave to Conduct Limited Discovery (Doc. 122) is
GRANTED.

4.

Defendant’s Amended Motion in Limine to Limit the Admission of Evidence
(Doc. 110) is DENIED IN PART.
a.

The Court DEFERS ruling on Defendant’s request to further limit the
testimony of defense expert Dr. Robert Masson (Doc. 110, pp. 3–9)

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until the time of trial. Pending such ruling, the parties shall not
reference Dr. Masson’s testimony.
b.
5.

In all other respects, the Motion is DENIED.

Plaintiffs’ Motion in Limine (Doc. 106) is DENIED IN PART.
a.

The Court DEFERS ruling on Plaintiffs’ request to further limit the
testimony of defense expert Dr. Steven Rundell (Doc. 106, pp. 9–10)
until the time of trial. Pending such ruling, the parties shall not
reference Dr. Rundell’s testimony.

b.

The Court will admit evidence of personal injury protection payments
at trial. The Court will rule on any applicable setoff from collateral
source payments after trial.

c.
6.

In all other respects, the Motion is DENIED.

At or before the commencement of trial, the parties are DIRECTED to
submit a jointly proposed jury instruction regarding the non-exclusive
factors pertinent to assessing the reasonableness of the contested medical
expenses.

7.

Defendant’s Motion for Reconsideration Regarding Nationwide Records
(Doc. 126) is GRANTED.

DONE AND ORDERED in Chambers in Orlando, Florida, on April 7, 2016.

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Copies:
Counsel of Record

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