Dossett v. Wal-Mart Stores East, Limited Partnership

Filing 38

MEMORANDUM OPINION AND ORDER granting 32 Motion in Limine; Signed by Senior Judge Thomas B. Russell on 1/14/16. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:14-CV-190-TBR
DALE DOSSETT, ADMINISTRATOR OF
THE ESTATE OF LOVERTA DOSSETT,

Plaintiff,

v.
WAL-MART STORES EAST, LIMITED PARTNERSHIP,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Plaintiff Dale Dossett’s Motion in Limine to
Exclude Defendant’s Expert Witness Rebecca A. Reier. (Docket No. 32.) Defendant Wal-Mart
Stores East, Limited Partnership has responded, (Docket No. 33), and Plaintiff has replied,
(Docket No. 34). Fully briefed, this matter is ripe for adjudication. For the reasons enumerated
below, the Court will GRANT Plaintiff’s Motion.
BACKGROUND
Dale Dossett, administrator of the Estate of Loverta Dossett, brings this lawsuit against
Wal-Mart Stores East, Limited Partnership (“Wal-Mart”) alleging a claim of negligence. The
decedent Loverta Dossett went to the Wal-Mart on August 29, 2013. Plaintiff alleges that as the
decedent was shopping, she stepped on a foreign substance, lost her footing, and fell to the floor.
Plaintiff contends that the substance consisted of grapes that had fallen from the display table
onto the floor. Plaintiff further contends that as a result of the decedent’s fall, she incurred over
$257,000 in medical expenses. The decedent was insured by Medicare and a Medicare
supplement insurance policy.
Plaintiff alleges that Wal-Mart was careless and negligent in: its failure to exercise
reasonable care to provide customers with a safe place to shop; its failure to discover the
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substance and correct it; and its failure to warn customers of the dangerous foreign substance.
Lastly, Plaintiff alleges that as a result, the decedent suffered serious injury and physical and
mental pain.
DISCUSSION
The parties’ dispute concerns the opinion of Wal-Mart’s expert Rebecca A. Reier. (See
Docket Nos. 32; 33; 34.) In her expert report, Ms. Reier states that the actual invoice charges for
the decedent’s care were $264,272.82. She then concludes that “the Usual, Customary, and
Reasonable value of [the actual invoice] charges is no less than $84,578.11 (Medicare
allowances) and not greater than $110,365.71 (Average Collection ratios for the providers).”
(Docket No. 33-2 at 2.) Ms. Reier goes on to say that in her opinion, the actual invoice charges
of $264,272.82 “are not reasonable.” (Docket No. 33-2 at 5.) Essentially, Wal-Mart contends
that the decedent’s medical bills “do not reflect the ‘reasonable’ value of the services provided,”
(Docket No. 33 at 3), and therefore, the plaintiff’s recovery should be limited to the amount
actually paid to and accepted by the healthcare provider, (Docket No. 33 at 4). Wal-Mart seeks to
introduce Ms. Reier’s opinion to support its position that the Plaintiff’s recovery should be
limited.
Kentucky’s collateral source rule “precludes courts from reducing a plaintiff's medical
damages based on insurance payments made for her care, so long as the associated premiums
were paid by the plaintiff herself or a third party other than the tortfeasor.” Fulcher v. United
States, No. 5:13-CV-00163-TBR, 2014 WL 7375557, at *4 (W.D. Ky. Dec. 29, 2014) (citing
O'Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky. 1995)). The collateral source rule applies not
only to private medical insurance but also to publically provided benefits such as Medicare. Our
Lady of Mercy Hosp. v. McIntosh, 461 S.W.2d 377, 379 (Ky. 1970); see also Baptist Healthcare

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Sys., Inc. v. Miller, 177 S.W.3d 676, 683 (Ky. 2005). In Baptist Healthcare Systems, Inc. v.
Miller, the Kentucky Supreme Court stated that the collateral source rule “allows the plaintiff to
(1) seek recovery for the reasonable value of medical services for an injury, and (2) seek
recovery for the reasonable value of medical services without consideration of insurance
payments made to the injured party.” Id. at 682. Kentucky courts find that the collateral source
rule serves the following policy concerns:
First, the wrongdoer should not receive a benefit by being relieved of
payment for damages because the injured party had the foresight to
obtain insurance. Second, as between the injured party and the tortfeasor,
any so-called windfall by allowing a double recovery should accrue to
the less culpable injured party rather than relieving the tortfeasor of full
responsibility for his wrongdoing. Third, unless the tortfeasor is required
to pay the full extent of the damages caused, the deterrent purposes of
tort liability will be undermined.

Id. at 683 (citing Schwartz v. Hasty, 175 S.W.3d 621, 626 (Ky. App. 2005)). Due to the
aforementioned policy concerns, the Kentucky Supreme Court strongly supports the collateral
source rule. The court concluded in Miller that “it is absurd to suggest that the tortfeasor should
receive a benefit from a contractual arrangement between Medicare and the health care provider.
Simply because Medicare contracted with [the plaintiff’s] physician to provide care at a rate
below usual fees does not relieve a tortfeasor from negligence or the duty to pay the reasonable
value of [the plaintiff’s] medical expenses.” Id. at 683-84.
As this Court mentioned in its prior decision in Fulcher v. United States, it acknowledges
the logic of Wal-Mart’s argument: the complexities of modern medical billing often result in
phantom charges—a fee for services has been issued, but no party actually incurs the obligation
to pay it; instead, the provider writes off the difference between the billed amount and the
negotiated rate, or classifies it as an adjustment. This mechanism may indeed cloud the analysis

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of factfinders attempting to discern the actual reasonable value of medical services rendered.
However, when faced with the often abstruse task of determining reasonable medical damages,
the Commonwealth's highest court has expressed a distinct preference in favor of conscientious
consumers by requiring tortfeasors to satisfy the full amount of their damages. See Fulcher, 2014
WL 7375557, at *5.
This Court will not depart from the principles articulated by the Kentucky Supreme Court
in Miller. Consequently, the collateral source rule bars the opinion testimony of Wal-Mart’s
expert witness Rebecca A. Reier.
CONCLUSION AND ORDER
For the reasons enumerated above, Plaintiff’s Motion in Limine to Exclude Defendant’s
Expert Witness Rebecca A. Reier is GRANTED. (Docket No. 32.)

January 14, 2016

cc: Counsel

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