Underwood v. NCL (Bahamas) LTD.
Filing
60
ORDER granting in part and denying in part 50 Plaintiff's Motion in Limine; granting in part and denying in part 51 Defendant's Motion in Limine. Signed by Magistrate Judge Edwin G. Torres on 4/10/2019. See attached document for full details. (abu)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-24492-CV-WILLIAMS/TORRES
JULIA UNDERWOOD,
Plaintiff,
v.
NCL (BAHAMAS) LTD.,
Defendant.
__________________________________________/
ORDER ON MOTIONS IN LIMINE
Before this Court are two Motions in Limine, both filed by Plaintiff JULIA
UNDERWOOD (“Plaintiff” or “Underwood”) and Defendant NCL (BAHAMAS) LTD.
(“Norwegian” or “Defendant”) on March 6, 2019. [D.E. 50, 51]. The Honorable Judge
Kathleen M. Williams referred those Motions to the undersigned on April 1, 2019.
[D.E. 58]. The Motions are now fully-briefed and therefore ripe for disposition.
Following our review of those Motions, the issues presented in each, and the relevant
legal authorities governing the disputes, we hereby ORDER that both Motions be
GRANTED in part and DENIED in part.
I.
FACTUAL BACKGROUND
This case involves a maritime personal injury action in which Plaintiff claims
to have sustained injuries after allegedly slipping in a puddle of water on a deck of
the Norwegian Jade in December of 2016. Plaintiff claims that the incident caused
her to suffer compression fractures in her spine requiring treatment with several
medical providers. The parties have both filed motions in limine on various
evidentiary issues, and those Motions are now before this Court.
II.
ANALYSIS
The purpose of a motion in limine “is to aid the trial process by enabling the
Court to rule in advance of trial on the relevance of certain forecasted evidence, as to
issues that are definitely set for trial, without lengthy argument at, or interruption
of, the trial.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 176
(S.D.N.Y. 2008) (citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d. Cir. 1996)). In
general, motions in limine are disfavored, and most admissibility questions should be
ruled upon as they arise at trial. Garcia v. Scottsdale Ins. Co., 2019 WL 1491872, at
*1 (S.D. Fla. Apr. 4, 2019). Thus, in resolving motions in limine, the court should
exclude introduction of certain evidence “only if [it] is clearly inadmissible for any
purpose.” Arch Specialty Ins. Co. v. Balzebre, 2013 WL 12065533, at *1 (S.D. Fla. Jan.
16, 2013) (quoting Stewart v. Hooters of America, Inc., 2007 WL 1752873, at *1 (M.D.
Fla. June 18, 2007)).
A.
Plaintiff’s Motion
Plaintiff’s Motion raises four separate challenges, asking that we preclude
Norwegian from admitting the following evidence at trial: (1) evidence of a lack of
prior incidents in the area of the vessel where Underwood’s fall took place; (2)
discussions on the credibility of Plaintiff’s experts; (3) texts authored by Defendant’s
experts in a way that inappropriately bolsters their testimony; or (4) information
concerning payments made by collateral sources. [D.E. 50]
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1.
Evidence of Prior Incidents
Plaintiff first asks that Norwegian be precluded from introducing evidence that
no prior incidents or accidents had taken place in the Bali Hai bar in the months and
years leading up to Ms. Underwood’s incident. Plaintiff contends that such
information is irrelevant, misleading, and inadmissible. We disagree.
The Eleventh Circuit has held that evidence of prior incidents “might be
relevant to the defendant’s notice, magnitude of the danger involved, the defendant’s
ability to correct a known defect, the lack of safety for intended uses, strength of a
product, the standard of care, and causation.” Jones v. Otis Elevator Co., 861 F.2d
655, 661 (11th Cir. 1988) (citations omitted). The same can be said for the reverse;
evidence of a lack of prior accidents can be relevant to determining whether
Norwegian had notice of the alleged risk-creating condition. See Higley v. Cessna
Aircraft Co., 2013 WL 12112167, at *6 (C.D. Cal. July 8, 2013) (“Evidence of no prior
accidents involving the same fuel pump is [ ] relevant to the issues of notice and
foreseeability, and especially probative in negligence cases.”) (emphasis added); Colin
v. United States, 2001 WL 776998, at *6-7 (N.D. Cal. May 17, 2001) (finding no prior
accidents probative of defendant’s lack of knowledge in negligence case). For this
reason, the Motion should be denied.
Plaintiff nevertheless argues that “the standard for admissibility of the
evidence of lack of prior similar incidents is the same as the standard for admissibility
of prior similar incidents.” [D.E. 50, p. 2-3]. This is incorrect. First, Plaintiff fails to
cite to any authority supporting this position. Second, if such an argument held true,
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Plaintiff would effectively require Defendant to prove a negative – i.e. “show me that
no incidents occurred because the flooring was exactly as it was at the time Ms.
Underwood fell” – before introducing such a lack of accidents or incidents at trial.
This is not the standard for admissibility, and would place an impossible burden on
Norwegian. See Dorth v. Fowler, 588 F.3d 396, 401 (6th Cir. 2009) (“[T]he mosaic of
evidence that comprises the record before a jury includes both the evidence and the
lack of evidence on material matters.”) (citation omitted; emphasis added).
Plaintiff’s foundation argument is equally misguided. Although Underwood
asserts Norwegian has failed to lay proper foundation to permit the introduction of
evidence of the absence of similar incidents, such an argument is better-suited for
trial, when Defendant can introduce witness testimony or provide other
documentation to lay such a foundation. See Fed. R. Evid. 602, 901; Barnett v. Deere
& Co., 2016 WL 6803152, at *3 (S.D. Miss. Nov. 16, 2016) (“Defendant will be
permitted an opportunity to lay a foundation for testimony that there have been no
or few incidents similar to this one.”); Serna v. Olde Jackson Village, Inc., 2015 WL
4946415, at *3 (D. N.H. Aug. 19, 2015) (denying plaintiff’s motion in limine to exclude
evidence that no prior accidents had occurred at the same location, allowing
defendant to attempt to lay a sufficient foundation at trial).
Ultimately, we find that an absence of prior incidents occurring in the subject
area could be probative of whether or not Norwegian had notice of the risk-creating
condition that allegedly caused Ms. Underwood to fall. Should Plaintiff wish to
challenge the foundation laid by Defendant at trial, she is free to do so; but the
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evidence is not “so clearly inadmissible” that it must be excluded at this time. Arch
Specialty Ins. Co., 2013 WL 12065533 at *1. As such, Plaintiff’s Motion in Limine as
to the lack of prior incidents is denied.
2.
Testimony about Experts’ Credibility
We will deny the Motion as to Plaintiff’s second argument, which asks us to
preclude Norwegian from having its experts opine or attack the credibility of any of
Underwood’s experts. If we were to grant such a Motion, we would effectively prevent
Defendant from rebutting the conclusions drawn by Plaintiff’s expert. Without the
benefit of knowing what that testimony will be, we cannot grant the Motion, and find
it would be inappropriate to do so on a Motion in Limine. As such, the Motion is
denied, but Plaintiff shall be free to renew any such objection during each of
Defendant’s expert’s testimony at trial. See Stewart, 2007 WL 1752873, at *1 (“[I]f
evidence is not clearly inadmissible, evidentiary rulings must be deferred until trial
to allow questions of foundation, relevancy and prejudice to be resolved in context.”).
3.
Texts Authored by Defendant’s Experts
Plaintiff’s third argument involves her contention that Defendant should be
precluded from “any reference to authoritative text, papers, publications, or treatises
authored by the defense expert.” The only support she provides for this position is an
unexplained citation to a case, interpreting Florida law, that in no way is relevant to
this argument. Accordingly, we find that Plaintiff’s Motion on this count is denied.
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4.
Collateral Sources
The final argument in Plaintiff’s Motion asks that we preclude the introduction
of any evidence concerning collateral sources of payment made by third parties for
Plaintiff’s medical care and treatment. We will grant the Motion in part and deny it
in part.
The collateral source rule bars a tortfeasor from mitigating damages “by
setting off compensation received by the employee from an independent source.”
Haughton v. Blackships, Inc., 462 F.2d 788, 790 (5th Cir. 1972). “In its simplest
application, the rule prohibits the introduction of evidence offered to show that the
employee already has been compensated for his injuries.” Bourque v. Diamond M.
Drilling Co., 623 F.2d 351, 354 (5th Cir. 1980). “In other words, the rule operates to
ensure that a benefit to an injured party – from a third party – is not shifted as a
windfall to the tortfeasor.” Sampson v. Carnival Corp., 2016 WL 11547654, at *2-3
(S.D. Fla. Dec. 9, 2016).
Plaintiff’s Motion is broadly-worded. In it, she simply asks that Norwegian be
“precluded from introduction of evidence of insurance benefits paid to or on behalf [of]
the Plaintiff.” [D.E. 50, p. 9]. To the extent Defendant intends to submit evidence
concerning payments made by third parties – with an eye towards arguing that
Underwood has already been compensated for her injuries – such evidence would be
barred by the collateral source rule. As such, the Motion is granted as to the
introduction of any such evidence.
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This, however, does not end our analysis on the issue. As Norwegian argues in
its Response in Opposition to Underwood’s Motion, an injured plaintiff is only entitled
to recover for medical bills paid, not expenses billed. See Diczok v. Celebrity Cruises,
Inc., 2017 WL 3206327, at *3 (S.D. Fla. July 26, 2017) (“[T]he collateral source
doctrine does not govern the amount of medical expenses a plaintiff may claim in
damages. An abundance of case law in this District holds that, under general
maritime law, recoverable medical expenses are limited [to] those actually paid by the
plaintiff.”) (emphasis added). As such, the collateral source rule does not give Plaintiff
free reign to present to the jury a valuation of her damages consisting of the total
medical expenses billed, but not paid, by her or some third party. See Sampson, 2016
WL 11547654, at *2-3 (“Allowing Plaintiff to introduce the amount billed by the
healthcare providers, rather than the amount paid, would result in a windfall to
Plaintiff, who never actually received such a benefit.”).
Judge Jonathan Goodman recently addressed this issue in a similar case. See
Gharfeh v. Carnival Corp., 2019 WL 186864, at *1 (S.D. Fla. Jan. 14, 2019). In
discussing the collateral source rule, Judge Goodman wrote the following:
Carnival readily acknowledges the applicability of the collateral source
rule and agrees that it may not seek to admit, or refer to, benefits that
[plaintiff] received from third parties, such as insurance proceeds.
Carnival, however, argues that the collateral source rule does not permit
a plaintiff to introduce medical bills representing the total amount
billed, as opposed to the amount actually paid. Therefore, Carnival
contends, a plaintiff cannot introduce evidence of “written off” or
discounted medical charges – and that doing so would result in an
impermissible windfall to [plaintiff], who never actually received such a
benefit.
…
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A discount or write-off does not implicate the collateral source rule in
the way the rule was intended to apply. Moreover, prohibiting evidence
of the discount or write-off gives the jury a skewed view of the financial
reality surrounding the medical bills. The following hypothetical
illustrates the point.
Assume that a plaintiff had rotator cuff surgery in Miami because she
injured her shoulder after she slipped on a wet deck surrounding a
cruise ship pool. Assume further that the average charge by an
orthopedic surgeon in South Florida is $15,000 but that the surgeon who
repaired the plaintiff’s rotator cuff charged $200,000. Assume further
that the plaintiff’s insurance carrier paid the surgeon $13,000, that the
surgeon accepted $2,000 directly from the plaintiff, and then wrote off
$185,000. Under [plaintiff’s] view, the hypothetical plaintiff would be
permitted to introduce the $200,000 bill and the cruise [line] would be
prevented from introducing evidence of the $185,000 discount. This
result would be illogical and fundamentally unfair, but it would be
required by [plaintiff’s] view of the collateral source rule.
Id. at *6-7.
We find Judge Goodman’s analysis compelling and agree with his ultimate
conclusion. As such, we find that the collateral source rule does not preclude
Norwegian from introducing evidence of the amount paid by Plaintiff for her alleged
medical expenses, as opposed to the amount billed. See Sampson, 2016 WL 11547654,
at *3. For this reason, we will deny the Motion as to any argument that the collateral
source rule would allow Plaintiff to list medical expenses not actually paid by her or
a third party.
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B.
Defendant’s Motion 1
1.
Causation Opinions 2
Defendant first asks that we prevent Plaintiff’s treating physicians from
offering expert opinions as to causation. [D.E. 51, pp. 5]. The main thrust of its
argument is that those treating physicians failed to complete expert reports pursuant
to Federal Rule of Civil Procedure 26, which should preclude them from offering
testimony as to matters of causation unless determining the cause of the injury was
necessary to diagnose or otherwise explain the doctors’ treatment. See Fed. R. Civ. P.
26(a)(2)(B); Wilson v. Taser Int’l, Inc., 303 F. App’x 708, 712-13 (11th Cir. 2008)
(“Although we agree that a treating physician may testify as a lay witness regarding
his observations and decisions during treatment of a patient, once the treating
physician expresses an opinion unrelated to treatment…[the] witness is offering
expert testimony for which the court must perform its essential gatekeeping function
as required by Daubert.”); Kilpatrick v. Breg, 2009 WL 2058384, at *11 (S.D. Fla. June
25, 2009) (“Treating physicians not offered as experts, however, may only testify as
lay witnesses to matters within the scope of their own personal observation.”).
In addition to the issues discussed here, Defendant also attempted to limit the
introduction of two other pieces of evidence dealing with Plaintiff’s husband’s death
and Dr. Gawith’s opinion on her knee injury. [D.E. 51, pp. 6-8]. It appears that these
issues are unopposed by Plaintiff, who indicated she did not intend to introduce any
such evidence at trial. [D.E. 54, pp. 4-5].
1
This Order only applies to Drs. Dickerman, Gill, and Jansson. We previously
found that Plaintiff cannot introduce any causation testimony from Dr. Jayme
Gawith, and our decision here should not be construed as disrupting the findings
included in that Order. [See D.E. 59].
2
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Contrary to Defendant’s argument, treatment related to causation does not
automatically require the party seeking to introduce that testimony to first prepare
an expert report. See Brown v. NCL (Bahamas) Ltd., 2016 WL 8730145, at *5 (S.D.
Fla. Oct. 13, 2016) (“[A] treating physician may not offer testimony regarding
causation unless the determination of causation was necessary for treatment and
their opinions are helpful to a clear understanding of the witnesses’ testimony.”);
Milbrath v. NCL (Bahamas), Ltd., 2018 WL 2036081, at *2 n.1 (S.D. Fla. Feb. 28,
2018) (“Testimony, including related to causation, from any treating physicians
without a [Rule] 26(a)(2)(B) report must be limited to opinions formed and based upon
observations made during the course of treatment.”); Levin v. Wyeth Inc., 2010 WL
2612579, at *1 (M.D. Fla. June 25, 2010) (“[B]ecause a treating physician considers
not only the plaintiff’s diagnosis and prognosis, opinions as to the cause of injuries do
not require a written report if based on the examination and treatment of the
patient.”) (emphasis added). Thus, any testimony offered by Plaintiff’s treating
physicians about causation would be permissible if based on each doctor’s
observations made during the course of their treatment with Plaintiff.
At this stage, it would be inappropriate to determine whether the doctors’
opinions required a written report in accordance with Rule 26(a)(2)(B) because
Norwegian has not met its burden in showing that the matter can or should be
resolved in a pretrial Motion. The record fails to establish that the doctors’ proposed
causation testimony was unnecessary for treatment or otherwise cannot be linked to
the observations made during treatment with Ms. Underwood. In our view, a ruling
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on the issue “should be deferred until trial so that questions of foundation, relevancy,
and potential prejudice may be resolved in proper context.” See United States v.
Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (citation and quotation
omitted); Brown, 2016 WL 8730145 at *5 (deferring on ruling on defendant cruise
line’s motion in limine concerning treating physicians’ opinions as to causation until
trial).
For the time being, then, the Motion is denied without prejudice. At trial, and
based on the doctors’ testimony, Plaintiff must lay predicate as to how and why the
causation opinion relates to or is otherwise necessary for purposes of treatment of
Underwood after the incident. Norwegian may raise an objection at that time if
Plaintiff fails to do so.
2.
Medical Expenses Paid, Not Billed
In its second argument, Norwegian asks that Plaintiff be limited to introducing
only the amount of medical bills actually paid. [D.E. 51, p. 5]. In Response, Plaintiff
contends that the collateral source rule applies to discounts and write-offs, and that
she is entitled to introduce into evidence the total amount billed for her claimed
injuries. [D.E. 54, p. 5]. As discussed above, we disagree with Plaintiff’s argument as
to how broadly the collateral source rule sweeps.
Indeed, the collateral source rule does not bar a defendant from admitting
evidence that the amount billed by a third-party medical provider is not the amount
paid by a collateral source. Sampson, 2016 WL 11547654, at *3; Diczok, 2017 WL
3206327, at *3 (“An abundance of case law in this District holds that, under general
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maritime law, recoverable medical expenses are limited to those actually paid by the
plaintiff.”); Gharfeh, 2019 WL 186864, at *8 (“Here, [plaintiff] may not introduce all
of his medical bills. Introducing all of the medical bills without also providing
simultaneous evidence of the discounts or write-offs would be unfairly prejudicial and
would provide a skewed view of what constitutes reasonable medical expenses.”);
Chimine v. Royal Caribbean Cruises, Ltd., 2017 WL 8809632, at *1 (S.D. Fla. Nov.
17, 2017) (granting cruise line’s motion in limine that would only permit the plaintiff
to enter evidence of damages that were “actually incurred – whether by Plaintiff or a
collateral source.”). Nor does it preclude a court from determining that a Plaintiff may
only enter evidence of the amount paid, not the amount billed, as so aptly illustrated
by Judge Goodman’s hypothetical in the Gharfeh decision.
Plaintiff urges us to rely on Judge Adalberto Jordan’s opinion in Jones v.
Carnival Corp., 2006 WL 8209625, at *1 (S.D. Fla. Jan. 24, 2006), where the Court
held that evidence that plaintiff received over $37,000 in contractual discounts for
her medical payments could not reach the jury, based wholly on the collateral rule.
As Plaintiff readily acknowledges, however, “some, but not all judges in this District
continue to uphold the ruling in Jones.” [D.E. 54, p. 3]. Even if this were the case –
and many of the decisions cited to Plaintiff date back several years – the Jones
decision goes back more than thirteen years, and our view is that most courts in this
District now hold that plaintiffs may only introduce into evidence medical bills paid,
not billed. See generally Gharfeh, 2019 WL 186864, at *7-8 (collecting cases); Diczok,
2017 WL 3206327, at *3.
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The collateral source rule does not and should not allow Plaintiff to introduce
all her medical bills, including those she or a third party was never required to pay.
If it did, Plaintiff would be allowed to obtain an improper windfall for “the billed-butnot-paid amount,” instead of the value of her actual medical expenses. Gharfeh, 2019
WL 186864, at *7, at *6; see also Sampson, 2016 WL 11547654, at *3 (allowing
plaintiff to introduce to the jury the amount billed, rather than the amount paid,
“would result in a windfall to [the plaintiff], who never actually received such a
benefit.”).
For these reasons, we find that Norwegian’s Motion should be granted on this
issue.
III.
CONCLUSION
In accordance with our findings above, we hereby ORDER that both Motions
in Limine be GRANTED in part and DENIED in part.
DONE AND SUBMITTED in Chambers at Miami, Florida, this 10th day of
April, 2019.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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