Aidini v. Costco Wholesale Corporation

Filing 80

ORDER Granting in part 44 Motion in Limine regarding reference to collateral source payments. Signed by Judge Andrew P. Gordon on 4/5/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ARTANO AIDINI,

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Case No. 2:15-cv-00505-APG-GWF
Plaintiff,

v.
COSTCO WHOLESALE CORPORATION,

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Defendant.

ORDER GRANTING IN PART
MOTION IN LIMINE REGARDING
REFERENCE TO COLLATERAL
SOURCE PAYMENTS
(ECF No. 44)

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Plaintiff Artano Aidini moves to preclude defendant Costco Wholesale Corporation from

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referencing at trial any collateral source for payments of his medical bills, such as health

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insurance. Costco responds that collateral source information is inadmissible but Costco should

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be able to elicit testimony that physicians treated Aidini on a lien basis because that would impact

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the doctors’ credibility.

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The Supreme Court of Nevada has “adopt[ed] a per se rule barring the admission of a

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collateral source of payment for an injury into evidence for any purpose.” Proctor v. Castelletti,

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911 P.2d 853, 854 (Nev. 1996). It did so due to its conclusion that “[c]ollateral source evidence

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inevitably prejudices the jury because it greatly increases the likelihood that a jury will reduce a

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plaintiff’s award of damages because it knows the plaintiff is already receiving compensation.”

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Id. Federal courts likewise have adopted the collateral source rule. See Eichel v. New York Cent.

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R. Co., 375 U.S. 253, 255 (1963) (stating that evidence the plaintiff is receiving benefits from a

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collateral source is prejudicial); Russo v. Matson Nav. Co., 486 F.2d 1018, 1020 (9th Cir. 1973)

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(stating that “where the injured plaintiff’s compensation comes from a collateral source, it should

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not be offset against the sum awarded for the tort nor considered in determining that award”)

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(quotation omitted).

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Other judges in this District have concluded that the collateral source rule bars admission
of evidence of medical write downs. “The collateral source rule makes the tortfeasor liable for

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the full extent of the damages caused, no matter how much the victim actually pays.” McConnell

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v. Wal-Mart Stores, Inc., 995 F. Supp. 2d 1164, 1169 (D. Nev. 2014). “That a medical provider

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ultimately accepts less than a billed amount, whether from an insurance company or from the

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victim directly, is not relevant to whether the tortfeasor is liable for the full value of the harm he

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has caused.” Id. The rule is an equitable one “designed to ensure that the victim, and not the

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tortfeasor, benefits from any ‘windfall’ resulting from a difference between the value of the harm

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caused and the amount actually paid to remedy it.” Id. Thus, a plaintiff “may recover the

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reasonable value of his treatment, and no more, without regard to whether the amount he paid out

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of his pocket directly in order to obtain that treatment was reduced by a third-party payor or a

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third-party payee.” Id. at 1171 (emphasis omitted); see also Alexander v. Wal-Mart Stores, Inc.,

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No. 2:11-cv-00752-JCM-PAL, 2013 WL 427132, at *4-5 (D. Nev. Feb. 1, 2013); Gresham v.

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Petro Stopping Ctrs., LP, No. 3:09-CV-00034-RCJ-VPC, 2012 WL 5198481, at *3 (D. Nev. Oct.

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18, 2012); Restatement (Second) of Torts § 920A(2) & cmt. c(3) (1979) (“Thus the fact that the

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doctor did not charge for his services or the plaintiff was treated in a veterans hospital does not

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prevent his recovery for the reasonable value of the services.”). I agree. Calvert v. Ellis, No.

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2:13-cv-00464-APG-NJK, 2016 WL 153044, at *4 (D. Nev. Jan. 12, 2016) (medical write downs

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and possibility that medical liens may be negotiated for a lesser amount inadmissible under

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collateral source rule).

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Allowing the jury to learn that Aidini had health insurance, that bills were written down,

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or that Aidini may be able to negotiate the amount of a lien would violate the collateral source

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rule. The collateral source rule focuses on the extent of the damages the tortfeasor caused, not on

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how much the victim actually pays. McConnell, 995 F. Supp. 2d at 1169. Accordingly, Costco is

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precluded from questioning witnesses about whether: (1) Aidini has insurance, (2) Aidini was

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able to obtain write downs of medical bills, or (3) medical liens may be negotiated for less than

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the full amount.

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However, that Aidini was treated by a physician who holds a medical lien does not, in and
of itself, violate the collateral source rule. Evidence of the existence of a medical lien does not

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suggest a third-party source of payment. However, it could suggest bias by a treating physician

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or expert who testifies at trial. Expert compensation is relevant and admissible as it may impact

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bias. I therefore will not preclude Costco from asking Aidini’s treating physicians whether they

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hold a medical lien. Nor will I preclude Costco from arguing that those physicians may be biased

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because they have an incentive to assist Aidini in maximizing recovery in this civil case.

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However, I caution Costco not to ask questions that may elicit a response that would reveal that

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Aidini has insurance or that the liens (or portions thereof) may be written off or negotiated down.

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IT IS THEREFORE ORDERED that plaintiff Artano Aidini’s motion in limine to

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preclude reference to collateral source payments (ECF No. 44) is GRANTED in part.
DATED this 5th day of April, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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