Solis-Diaz v. Las Vegas Metropolitan Police Department et al

Filing 85

ORDER granting in part and denying in part 60 Motions in Limine. Signed by Judge Jennifer A. Dorsey on 1/25/2017. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Juan Solis-Diaz,

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Case No.: 2:12-cv-00619-JAD-GWF

Plaintiff

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v.

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Las Vegas Metropolitan Police Department
Officer S. Tompkins,

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Order Granting in Part and Denying in Part
Motions in Limine
[ECF Nos. 60, 63]

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Defendant

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Juan Solis-Diaz sues Metro Officer Scott Tompkins for excessive force because the officer

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shot Solis-Diaz twice as he stood holding an assault rifle in his own garage. In anticipation of the

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jury trial of this civil-rights claim, the parties raise two evidentiary issues: (1) should the jury get to

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consider the “contractual adjustment” that Sunrise Hospital made to Solis-Diaz’s bill, or must that

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discount be excluded under the collateral-source rule; and (2) will the jury learn that Solis-Diaz was

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charged with—and a jury acquitted him of—assault with a deadly weapon arising from this incident.

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Because the hospital’s write-off is a benefit from a third party unrelated to the defendant, it falls

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within the collateral-source rule and will be excluded from trial. And although the jury will

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necessarily learn that the arrest in which Solis-Diaz claims excessive force was used was one for

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assault with a deadly weapon, evidence that he was formally charged with, and acquitted of, that

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charge will be excluded because its probative value is substantially outweighed by the danger of

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confusing the issues and misleading the jury.
Discussion

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The Federal Rules of Evidence do not expressly authorize motions in limine, but district

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courts can rule on pretrial evidentiary motions under their “inherent authority to manage the course

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of trials.”1 Pretrial consideration avoids the futile attempt to “unring the bell” when jurors see or

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Luce v. United States, 469 U.S. 38, 40 n.4 (1984).
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hear inadmissible evidence, even when it is stricken from the record.2 It may also save time by

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minimizing side-bar conferences and other trial disruptions and by preventing the need to call some

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witnesses.3 Limine rulings are provisional; they are “not binding on the trial judge [who] may

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always change [her] mind during the course of a trial.”4

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The parties have filed cross-motions in limine to address Solis-Diaz’s Sunrise Hospital

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medical bill and his acquittal on the assault-with-a-deadly-weapon charge by the state-court jury.

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Solis-Diaz argues that the hospital’s $64,000 write-down of his bill—designated as a “contractual

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adjustment”—is collateral-source evidence that should be excluded from trial.5 Tompkins counters

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that the hospital’s own reduction of the amount owed does not qualify as a collateral-source payment

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and it would be unfairly prejudicial to permit Solis-Diaz to claim that he incurred hospital bills of

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$77,000 when the hospital-applied discount left him owing just over $13,000.6 Tompkins also seeks

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to exclude7—and Solis-Diaz wants to introduce—evidence that Solis-Diaz was charged with and

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acquitted of the assault-with-a-deadly-weapon charge arising from this incident.8

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A.

The contractual adjustment to Solis-Diaz’s Sunrise Hospital bill will be excluded under
the collateral-source rule.

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After he was shot by Tompkins, Solis-Diaz was treated for his two gunshot wounds at

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Sunrise Hospital. The single-page Sunrise Hospital statement attached to Tompkins’s motion in

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Brodit v. Cambra, 350 F.3d 985, 1004–05 (9th Cir. 2003) (quoting Kelly v. New W. Fed. Savs., 49
Cal. App. 4th 659 (Cal. Ct. App. 1996)).

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United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002).

Ohler v. United States, 529 U.S. 753, 758 n. 3 (2000) (citing Luce, 469 U.S. at 41–42 (noting that
in-limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated
manner).

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ECF No. 60 at 3.

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ECF No. 65 at 4–5.

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Id. at 5.

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ECF No. 60 at 4.
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limine9 reflects total charges of $77,178.25, and a “CONTRACTUAL ADJ” (which plaintiff

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acknowledges was a contractual adjustment10) reducing the total bill by $64,057.95 and leaving just

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$13,120.30 “due from patient.”11 The next line of the bill reflects that the “UNINSURED

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DISCOUNT PLAN [was] BILLED,” but it does not reflect how much.12

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In his motion in limine, Solis-Diaz argues (citing to no authority other than generally

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referencing FRE 401 and 403) that “the full Sunrise billing is relevant for presentation to the jury, as

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the full billing proves the entire nature and extent of all the treatment services provided by Sunrise

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Hospital to Solis,” and that “[t]he extent of that care . . . is a matter of direct consequence to Solis’[s]

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overall damage claims.”13 Even if the hospital unilaterally discounted the bill, Solis-Diaz argues, the

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$77,000 in care he received “equated to actual, hard damages and costs incurred as a result of” his

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gunshot wounds.14 He concludes this argument with the offhand sentence, “The collateral source

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rule also supports the admission of the full Sunrise billing at trial,”15 but he does not explain why

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until his reply: the collateral-source rule excludes evidence not just of payments by third parties, but

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of benefits conferred by third parties, and the deep discount that Sunrise Hospital gave Solis-Diaz

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was exactly that type of collateral-source benefit.16 Tompkins, who addressed the collateral-source

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rule in his opposition, argues that the rule should be limited to actual payments that reduce a

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plaintiff’s net damages, and “[b]ecause no one pays [a] write-off, it cannot possibly constitute

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See id. at line 14.

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ECF No. 65 at 10.

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Id.

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ECF No. 60 at 2.

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Id. at 3.

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ECF No. 60 at 3, lines 18–19.

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ECF No. 66 at 3.

ECF No. 65 at 10. Plaintiff also relies on this document. See ECF No. 66 at 3.

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payment of any benefit from a collateral source.”17

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But the collateral-source rule does not apply merely to third-party payments; it applies to

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gratuitous medical services, too. As the Tenth Circuit explained in Prager v. Campbell County

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Memorial Hospital, “The collateral-source rule, which derives from the common law, holds that

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‘payments made to or benefits conferred on the injured party from other sources are not credited

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against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor

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is liable.’”18 The rule “does not differentiate between the nature of the benefits, so long as they did

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not come from the defendant or a person acting for him.”19

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Courts applying the rule to gratuitously provided or discounted medical services reason that a

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tortfeasor “should not be allowed to benefit because the victim of his wrongdoing was able to receive

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gratuitous medical and nursing services for his injuries.”20 As the New Mexico District Court

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ECF No. 65 at 4 (quoting Robinson v. Bates, 857 N.E.2d 1195, 1200 (Ohio 2006), cited in
Schlegel v. Li Chen Song, 493 F. Supp. 2d 918, 920 (N.D. Ohio 2006)).
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Prager v. Campbell County Mem. Hosp., 731 F.3d 1046, 1058–59 (10th Cir. 2013) (emphasis
added). Because this case arises under federal-question jurisdiction, I apply the federal, common law
collateral-source rule. See Perry v. Larson, 794 F.2d 279, 286 (7th Cir. 1986); see also Gypsum
Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962) (applying federal collateral-source
rule in Jones Act case) (cited with approval in McLean v. Runyon, 222 F.3d 1150 (9th Cir. 2000)).
But I would reach the same result under Nevada’s collateral-source rule, which also applies broadly
to third-party payments and benefits, with limited exceptions that do not apply here. See Iazzetta v.
Smith’s Food & Drug Centers, 2016 WL 527047, *5–6 (D. Nev. Feb. 9, 2016) (explaining Nevada’s
collateral-source doctrine); Tri-Cty. Equip. & Leasing v. Klinke, 286 P.3d 593, 598 (Nev. 2012)
(Gibbons, J., concurring) (noting that applying the collateral-source rule to bar “introduction of
evidence showing medical provider discounts or write-downs is consistent with a majority of
jurisdictions that have addressed this issue” under the common-law collateral-source doctrine).
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Restatement (Second) of Torts § 920A cmt. b. It also may be that the contractual adjustment to
Solis-Diaz’s bill was made because of an arrangement with the administrator of the “UNINSURED
DISCOUNT PLAN” that the hospital bill reflects was billed. If this were the case, the discount
would be treated just like other contractual discounts negotiated by insurance providers and other
third-party payers, and the collateral-source rule would apply.
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Degen v. Bayman, 241 N.W.2d 703, 708 (S.D. 1976) (collecting cases); Simms v. United States,
839 F.3d 364, 369 (4th Cir. 2016) (noting under West Virginia’s collateral-source rule that “when a
tortfeasor causes a plaintiff an injury requiring medical services, the plaintiff is entitled to recover
the reasonable value of those services, regardless of the amount actually paid or whether the services
were rendered gratuitously.”); see also Pipkins v. TA Operating Corp., 466 F. Supp. 2d 1255, 1258
(D.N.M. 2006) (noting that the collateral-source rule most often applies to insurance coverage, but it
also applies when “due to a healthcare provider’s gratuitous treatment, a plaintiff neither incurs nor
is responsible for payment of the reasonable value of medical services, but nonetheless can claim and
recover compensation for that value from the tortfeasor”) (quoting Lopez v. Safeway Stores, Inc., 129
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explained when evaluating the contours of the collateral-source rule in Pipkins v. TA Operating

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Corp.:

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In the case of gratuitous medical services, the plaintiff incurs no
financial liability. Yet, regardless of the plaintiff’s lack of financial
liability, the collateral source rule applies because the plaintiff has
received a benefit from a source collateral to the defendant. Gratuitous
treatment, therefore, constitutes a collateral contribution and triggers
application of the collateral source rule.

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Contractual write offs reflect a situation analogous to a health care
provider’s gratuitous provision of medical services and thus yield a
similar result under the collateral source rule.21

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This rationale is also consistent “with a fundamental tenet of the collateral-source rule: that a

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tortfeasor may not reap the benefit of any special payment arrangement involving a collateral

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source.”22 And although permitting a plaintiff to seek his full, undiscounted medical expenses may

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give the plaintiff a windfall, the law has long been comfortable with this result:

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As between the injured person and the tortfeasor, the former’s claim is
the better. . . . Collateral source funds are usually created through the
prudence and foresight of persons other than the tortfeasor, frequently
including the injured person himself. They are intended for the benefit
of the injured person, and not for that of the person who injures him.
That intention should be effectuated.23

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By its contractual adjustment, Sunrise Hospital effectively gave Solis-Diaz $64,057.95 in

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gratuitous medical services. Under the collateral-source rule, this benefit—for whatever reason it

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was given—enures to him, not to the defendant. Accordingly, I find that the hospital’s contractual

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adjustment qualifies as collateral-source evidence that may not be introduced at trial. In the event

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that either party intends to introduce the Sunrise Hospital bill as evidence of the value of the services

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provided to Solis-Diaz, the adjustment and the resulting amount due must be redacted.

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P.3d 487, 492 (Ariz. 2006)).

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Pipkins, 466 F. Supp. 2d at 1260–61.

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Prager, 731 F.3d at 1059.

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Gypsum Carrier, Inc., 307 F.2d at 534.
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B.

Evidence of Solis-Diaz’s formal criminal charge and acquittal will be excluded.

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Solis-Diaz next seeks to introduce evidence that he was charged with—and a jury acquitted

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him of—assault with a deadly weapon for the conduct he was arrested for on the night he was shot.

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He argues that “It would be unfair to [him] to allow the jury to infer that [he] was arrested following

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being shot twice by Officer Tompkins and to then deprive the jury of knowledge regarding the

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ultimate disposition of the criminal case.”24 But, as Tompkins points out in response, the issue in

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this case is whether the officer used excessive force in effectuating Solis-Diaz’s lawful arrest. It

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does not matter that the state formally charged him with—and he was ultimately acquitted of—an

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assault; the state court found (and Solis-Diaz does not challenge) that the officer had probable cause

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to effectuate Solis-Diaz’s arrest in the first place. Thus, the fact that Solis-Diaz was formally

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charged with and acquitted of the assault charge has only some relevance to the excessive-force

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analysis.

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The limited relevance that the formal charge and acquittal have in this case is substantially

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outweighed by the danger of confusing the issues and misleading the jury.25 Solis-Diaz’s own

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argument highlights this risk: “The acquittal evidence answers the question for the jury as to whether

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Solis had committed any criminal act by his fateful conduct in the early morning hours of April 22,

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2010, inside his own garage.”26 But Solis-Diaz’s argument greatly overemphasizes the impact of his

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acquittal on this civil excessive-force claim. As the Supreme Court has explained, an acquittal

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“merely proves the existence of a reasonable doubt as to [the defendant’s] guilt,” it does “not negate

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the possibility that a preponderance of the evidence could show” otherwise in a subsequent civil case

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with a lower evidentiary burden.27

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ECF No. 60 at 4.

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Fed. R. Evid. 403.

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ECF No. 66 at 6.

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United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984); see also Borunda v.
Richmond, 885 F. 2d 1384, 1387 (9th Cir. 1988) (citing S. Gard, 2 Jones on Evidence, § 12:25, p.
391 (6th ed. 1972)) (“Evidence of an acquittal is not generally admissible in a subsequent civil action
between the same parties since it constitutes a ‘negative sort of conclusion lodged in a finding of
failure of the prosecution to sustain the burden of proof beyond a reasonable doubt.’”).
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Solis-Diaz acknowledges that “[t]his civil trial is predicated upon the exact same factual

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scenario as presented in the state-court criminal trial. There will be no deviation in this case from

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the factual testimony as to how and why Solis[-Diaz] was shot by Officer Tompkins, which was

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previously presented in the criminal action.”28 But the standard of proof and the focus of the inquiry

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will be markedly different. The jury will be asked to “judge the reasonableness of” Tompkins’s “use

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of force from the perspective of a reasonable officer on the scene” and to apply the Graham v.

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Connor factors, which include an assessment of the nature of the crime and other circumstances that

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Tompkins knew at the time he pulled the trigger, how long he had to assess those circumstances, and

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whether Solis-Diaz posed an immediate threat to the officer’s safety.29 And while the state-court jury

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that acquitted Solis-Diaz of the assault charge would have focused primarily on Solis-Diaz’s

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conduct,30 “the calculus of reasonableness” in this civil action “must embody allowance for the fact

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that police officers are often forced to make split-second judgments—in circumstances that are tense,

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uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

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situation.”31 In light of this significant difference in standard and focus, evidence of Solis-Diaz’s

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criminal charge and acquittal will only serve to mislead the jury and confuse the issues.

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In sum, I find that the probative value of the formal charge and acquittal evidence is

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substantially outweighed by the danger of confusing the issues and misleading the jury, and I exclude

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it under FRE 403. The prejudice that concerns Solis-Diaz—that the jury will needlessly and unfairly

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assume that he was found guilty32—can be sufficiently mitigated by a jury instruction that the jurors

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ECF No. 66 at 5.

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See, e.g., Graham v. Connor, 490 U.S. 386, 397 (1989); Ninth Circuit Model Civil Jury Instruction
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When Solis-Diaz was charged, NRS 200.471 defined assault as “(1) Unlawfully attempting to use
physical force against another person; or (2) Intentionally placing another person in reasonable
apprehension of immediate bodily harm.”

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Graham, 490 U.S. at 396–97.

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ECF No. 66 at 4–5.
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must not consider the outcome of the charge of arrest when deciding this case.33 The parties should

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propose the language for this instruction during the charge conference.

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Conclusion

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IT IS THEREFORE ORDERED that the parties’ motions in limine [ECF Nos. 60, 63] are

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GRANTED in part and DENIED in part:

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Evidence that Sunrise Hospital gave Solis-Diaz a contractual adjustment on his hospital bill
is collateral-source evidence that may not be introduced at trial; and

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Evidence that the District Attorney charged Solis-Diaz with, and a jury acquitted him of,
assault with a deadly weapon will be excluded from trial under FRE 403.

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DATED January 25, 2017.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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See, e.g., Adams v. Szczerbinski, 329 Fed. Appx. 19, 24 (7th Cir. 2009) (unpublished) (affirming
trial court’s exclusion of acquittal evidence and finding that a jury instruction directing “the jury not
to be concerned with the outcome of the criminal trial” was “sufficient to address [the] concern that
the jury might speculate whether it would be finding in favor of a person convicted of a criminal
offense arising out of the underlying events”).
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