Joseph v. Robrahn

Filing 53

ORDER denying 33 Motion in Limine Signed by Judge Candy W. Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID JOSEPH,
Case No. 1:13-cv-00428-CWD
Plaintiff,
ORDER RE: DEFENDANT’S MOTION
IN LIMINE

v.
DAVID ROBRAHN,
Defendant.

INTRODUCTION
Before the Court is Defendant’s motion in limine to exclude certain testimony by
Plaintiff’s treating physician, Dr. Alexander, and to exclude evidence of Medicare and
GEHA contractual adjustments or write-downs as a component of damages. The Court
conducted a hearing on the motion on July 21, 2015. (Dkt. 52). Although plaintiff did not
timely file a responsive brief, his arguments contained within his trial brief, filed one day
prior to the hearing, were reviewed and considered.
For the reasons set forth below, the Court will deny the motion. But Defendant’s
objection to the testimony of Dr. Alexander as set forth in his motion and during the
hearing is preserved for trial, without the need to restate the objection.

ORDER - 1

ANALYSIS
1.

Dr. Alexander’s Opinions
Defendant objects to the introduction of Dr. Alexander’s opinions that were not set

forth in Plaintiff’s initial disclosures. According to Plaintiff’s initial disclosures, Dr.
Alexander’s expert opinion testimony was described as follows: he will testify to the
“medical surgery and procedures he performed on plaintiff; he will use the x-rays, films
and other medical records to illustrate to the jury how the fractures occurred; [and] the
surgical procedures to repair it.” Defendant indicates the initial disclosures were not
supplemented prior to the taking of Dr. Alexander’s trial deposition on November 13,
2014. 1 But, after the deposition occurred, Plaintiff supplemented his Rule 26(a)
disclosures to indicate that Dr. Alexander may testify about the degree of impact and
force necessarily produced to cause the fractures Dr. Alexander observed on x-ray films
and during surgery.
Dr. Alexander treated Plaintiff on March 26, 2013, the day after the accident
occurred at the base of Bald Mountain in Ketchum, Idaho. Plaintiff had stopped skiing,
and apparently was struck from behind by Defendant, who was riding a snowboard.
Plaintiff was seen in the emergency room that same day. According to Dr. Alexander,
Plaintiff suffered a concussion, injured his left shoulder, and suffered a displaced fracture
of his clavicle that Dr. Alexander determined required surgical repair to avoid a nonunion

1

The parties agreed that Dr. Alexander’s videotaped deposition testimony will be presented to the
jury in lieu of live testimony.

ORDER - 2

or perforation of the skin. Dr. Alexander performed surgery to repair Plaintiff’s clavicle
on March 27, 2013.
During questioning of Dr. Alexander during his deposition, he opined about the
“degree of impact and force produced” during the collision, and offered opinions about
Plaintiff’s alleged concussive symptoms. Defendant contends such testimony should be
excluded because Plaintiff’s initial disclosure did not include such testimony within its
scope.
With regard to Plaintiff’s concussion, Dr. Alexander testified that Plaintiff “was
knocked out. And, in fact, he was hit pretty hard by the – indicating that the helmet had
been broken during the crash.” Dr. Alexander examined the CT scan records taken in the
emergency room on March 25, 2013. Based upon the CT scan results and the emergency
room reports, Dr. Alexander testified that Plaintiff “had a concussion,” and suffered “loss
of consciousness.” Dr. Alexander was asked to describe what happens to the brain, and
he testified that, “that’s not my specialty, but I’m – you know, in lay terms it means that
your head hit so hard that it just shorts out the electrical impulses in the brain and
consciousness does not allow the patient to communicate….”
Defendant objects to the above testimony on the ground that the opinion set forth
above was not included in the scope of testimony identified by Plaintiff in his Rule 26(a)
disclosure. However, Dr. Alexander is certainly qualified to testify as to what he
observed upon reviewing Plaintiff’s medical records. If Plaintiff suffered a concussion,
and the medical records reflect that injury, Dr. Alexander as the treating physician may

ORDER - 3

testify about Plaintiff’s injuries. Notably, however, Plaintiff’s supplemental disclosure
does not include Dr. Alexander testifying about Plaintiff’s concussion injury.
Turning to the second area of objectionable opinion testimony, Defendant objects
to the line of questioning where Dr. Alexander describes the amount of force it takes to
fracture and displace a bone. During questioning about the surgical repair he performed,
Dr. Alexander offered his impromptu opinion that, “in this case it was a high-energy
injury.” Alexander Depo. at 28 (Dkt. 33-2 at 28.) Counsel followed up, asking Dr.
Alexander to describe what that meant. Id. Dr. Alexander answered that, “there was lots
of energy involved….a lot of speed, a lot of energy involved” in this accident. Dr.
Alexander testified that he formed this opinion—that Plaintiff suffered a high-energy
injury to his clavicle—based upon what he saw on the x-rays and the history he obtained
from review of the records and discussion with the patient. Dr. Alexander also formed his
opinion that it was a high-energy impact because of “what [he] found at surgery because
the fragments of the—the larger fragment, this fragment right here, was totally devoid of
soft-tissue attachments.” Defendant objected on the basis of lack of foundation.
Defendant objects to the introduction of this testimony on the grounds that Dr.
Alexander’s opinions are based upon assumptions, and they ignore the respective size of
the persons involved, whether there was a pre-existing injury to the shoulder, or other
mitigating factors. Accordingly, Defendant argues the testimony does not meet the
standards of Rule 702, and may be misleading to the jury. Defendant argues also that Dr.
Alexander’s opinions about the force of the impact causing the injury was not within the
scope of the initial disclosures.
ORDER - 4

Rule 702 permits a witness to testify in the form of an opinion if the expert’s
specialized knowledge will help the trier of fact to understand the evidence; the testimony
is based upon sufficient facts or data; the testimony is the product of reliable principles
and methods; and the expert has reliably applied the principles and methods to the facts
of the case. Rule 703 permits an expert to base an opinion on “facts or data in the case
that the expert has personally observed.” In this case, Dr. Alexander based his opinion
about the degree of force or impact based upon his personal observation of the bone and
bone fragments during the surgery he performed. Further, the degree of force is partly a
matter of common sense, considering Plaintiff suffered a completely displaced fracture of
his clavicle. Dr. Alexander’s opinion that the impact or injury was “high-energy” may
help the jury determine whether Defendant was exercising reasonable care or not given
the location of the collision at the base of the ski mountain.
As for Defendant’s argument that Dr. Alexander’s opinions stray from the scope
of Plaintiff’s initial disclosures, Plaintiff’s initial disclosures arguably encompass such
opinion testimony. Plaintiff indicated Dr. Alexander would illustrate to the jury how the
fractures occurred based upon Plaintiff’s medical records and Dr. Alexander’s personal
observations. Dr. Alexander testified that he based his opinion about the force of impact
upon the x-rays, Plaintiff’s medical history, and by what he observed during surgery. Dr.
Alexander’s opinions about the force required to completely displace Plaintiff’s clavicle
bone arguably fall within the broad scope described in the initial disclosures, and did not
require submission of a written report. See Goodman v. Staples, 644 F.3d 817, 826 (9th

ORDER - 5

Cir. 2011) (treating physician is exempt from Rule 26(a)(2)(B)’s written report
requirement if his or her opinions were formed during the course of treatment).
Furthermore, Defendant obtained a rebuttal opinion of Dr. Jeffrey Hessing who
examined the pre- and post-operative medical records. According to Dr. Hessing, he
“would not classify the forces involved as high velocity” because the type of fracture was
a fairly common fracture pattern. If Dr. Alexander’s opinions are allowed into evidence,
Dr. Hessing’s testimony provides rebuttal for the jury to evaluate. Plaintiff indicated
during the hearing he had no objection to the introduction of Dr. Hessing’s testimony.
Therefore, any unfair surprise caused by Dr. Alexander’s testimony is cured by Dr.
Hessing, Defendant’s rebuttal expert.
The motion in limine to exclude the testimony by Dr. Alexander about the force of
injury and the concussive symptoms is DENIED. However, Defendant’s objection is
preserved for all purposes, and he does not need to restate the objection at trial.
2.

Contractual Adjustments
Defendant argues Idaho Code § 6-1606 precludes presentation of evidence of

Medicare adjustments and contractual write-downs taken by GEHA, and that Plaintiff
should be allowed to present only the amount actually paid for medical services to the
jury.
Idaho Code § 6-1606 prohibits double recoveries from collateral sources in any
action for personal injury. The statute provides that judgment may be entered “only for
damages which exceed amounts received by the claimant from collateral sources as
compensation for the personal injury…. For the purposes of this section, collateral
ORDER - 6

sources shall not include benefits paid under federal programs which by law must seek
subrogation…and benefits paid which are recoverable under subrogation rights created
under Idaho law or by contract. Evidence of payment by collateral sources is admissible
to the court after the finder of fact has rendered an award. Such award shall be reduced by
the court to the extent the award includes compensation for damages which have been
compensated independently from collateral sources.” 2
In Dyet v. McKinley, 81 P.3d 1236, 1239 (Idaho 2003), the Idaho Supreme Court
held that Idaho Code § 6-1606 applies to prevent plaintiffs from recovering the amount of
a Medicare write-off from a tortfeasor so as to prevent a double recovery. The court
explained that, although the write-off is not technically a collateral source, “it is the type
of windfall that Idaho Code § 6-1606 was designed to prevent.” The write-off is “not an
item of damages for which plaintiff may recover because plaintiff has incurred no
liability therefore.”
Later, in Slack v. Kelleher, 104 P.3d 958, 967 (Idaho 2004), the court had occasion
to revisit Dyet. There, the court held that the district court erred when it denied

2

The collateral source rule is a rule that allows a claimant to collect damages for medical and
hospital care from the defendant even if he has insurance to cover them. Black’s Law Dictionary, 2nd
Edition. The Court of Appeals for the Ninth Circuit, discussing California law, explained that the
“collateral source rule ... embodies the venerable concept that a person who has invested years of
insurance premiums to assure his medical care should receive the benefits of his thrift. The tortfeasor
should not garner the benefits of his victim’s providence.” Berg v. First State Ins. Co., 915 F.2d 460, 467
(9th Cir. 1990). In other words, a defendant should not be able to avoid payment of full compensation for
the injury inflicted because the plaintiff provided himself with insurance. Id.

ORDER - 7

defendant’s post-judgment motion seeking to have the medical expense award reduced
due to Medicare write-offs under Idaho Code § 6-1606. The court remanded the matter
for the district court to reduce the judgment by the appropriate amount of the write
downs. Id.
Finally, in Carrillo v. Boise Tire Co., Inc., 274 P.3d 1256, 1269 (Idaho 2012), the
court had a third occasion to review the application of Idaho Code § 6-1606 in a motor
vehicle accident case. Defendant moved post-judgment to reduce the damage award by
the amount of plaintiff’s past social security disability benefits. The court explained that
Idaho Code § 6-1606 was enacted to require collateral source payments to be deducted
from damage awards. Id. at 1268. The court held that the plaintiff’s disability benefits
were amounts received from a collateral source as compensation for personal injury, and
vacated the judgment as to plaintiff’s personal injury award. The court instructed the trial
court to reduce the award by the amount of the plaintiff’s social security disability
benefits received at the time judgment was entered. Id. at 1269.
Based upon the above, it appears Idaho Code § 6-1606 operates to prevent an
injured party from recovering damages for the amount of the write-offs or contractual
adjustments provided for by Medicare or private insurance. But, confounding this triad of
cases is Verska v. St. Alphonsus Regional Med. Ctr., 265 P.3d 502 (Idaho 2011). Verska
mentioned Dyet in its discussion of statutory interpretation, indicating Dyet was a case in
which the Idaho Supreme Court did not address whether it had considered the
unambiguous statute absurd as written. Verska, 265 P.3d at 508. The court continued,
explaining that it has never agreed with arguments that would invite disagreement with a
ORDER - 8

statute because its wording, when found unambiguous, would produce an absurd result.
Id. at 509. The court concluded by stating that it has not, and cannot, revise or void an
unambiguous statute on the ground that it is patently absurd or would produce absurd
results when construed as written. Id. The court then confirmed the rules of statutory
interpretation, explaining the difference between ambiguous versus unambiguous
statutes. Id.
While not mentioning Dyet in anything other than a string citation, and having not
referred specifically to Idaho Code § 6-1606, later cases have recognized that Verska’s
holding abrogated Dyet. See Kaseburg v. State of Idaho, 300 P.3d 1058, 1065 (Idaho
2013) (recognizing that Verska’s holding abrogated the holding in Dyet). Turning to
Idaho Code § 6-1606, Verska’s impact upon the holding in Dyet would exclude from the
definition of “collateral source” benefits paid by Medicare and private insurance, and
render evidence of payments by Medicare and private insurance admissible and
potentially not subject to reduction by the Court. Slack, however, has not been overruled
or otherwise abrogated.
During the hearing on Defendant’s motion in limine, the Court explained that it
was still examining the impact of Verska on Dyet, and indicated its understanding that the
amount of the write down 3 would not be considered a part of the damages. But, the Court

3

Generally, when a physician bills the patient’s insurance provider, the entirety of the physician’s
bill is submitted. If the physician is a contracting physician, Medicare and private insurance “allow” a
certain amount, and pay that amount less any deductible or co-payment, which is the patient’s
responsibility. The difference is the contractual write-off. Thus, as an example, for a $150 medical bill,
$100 may be “allowed,” insurance will pay $75, and the patient pays $25.

ORDER - 9

instructed Plaintiff should present the entirety of his medical bills and, if damages are
awarded, the Court would consider the extent to which damages should be reduced by
any contractual write-offs that neither Plaintiff nor any insurer was obligated to pay.
Plaintiff was in agreement with the Court’s procedure. Based upon the above authorities,
and the uncertainty of Verska’s impact upon Dyet given the holding in Slack, the Court
will adhere to the procedure outlined above and as explained to the parties during the
hearing. The Court will entertain a motion post-trial addressing reduction of any award
consistent with the above authorities.
The motion in limine seeking to exclude the amount of the write-offs or
contractual adjustments by Medicare and GEHA is therefore DENIED at this time.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Defendant’s Motion in Limine (Dkt. 33) is DENIED.

July 28, 2015

ORDER - 10