Boettcher et al v. Loosier et al
Filing
90
ORDER denying 52 Motion in Limine to Exclude Gross Medical Billings. Signed by Judge Jon Phipps McCalla on 6/8/2016. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE AT MEMPHIS
PAUL RAYMOND BOETTCHER and
JOYCE DIANE BOETTCHER,
)
)
)
Plaintiffs,
)
)
v.
)
No. 2:14-cv-02796-JPM-dkv
)
SHELTER MUTUAL INSURANCE
)
COMPANY,
)
)
Defendant.
)
________________________________________________________________
ORDER DENYING SHELTER MUTUAL INSURANCE COMPANY’S MOTION IN
LIMINE TO EXCLUDE GROSS MEDICAL BILLINGS
________________________________________________________________
Before the Court is Shelter Mutual Insurance Company’s
(“Shelter”) Motion in Limine to Exclude Gross Medical Billings,
filed February 9, 2016.
(ECF No. 52.)
opposition on March 25, 2016.
Plaintiffs responded in
(ECF No. 66.)
For the following reasons, Shelter’s Motion in Limine to
Exclude Gross Medical Billings is DENIED.
I.
BACKGROUND
This case concerns a motor vehicle collision that allegedly
occurred on October 21, 2013, at 7:35 a.m. at S. Third Street
and Horn Lake Road in Shelby County, Tennessee.
ECF No. 1.)
(Compl. ¶ 1,
Plaintiffs allege that Defendant Houstyn Nicole
Loosier crashed a 2006 Ford F150, owned by Defendant James
Loosier, into a third party’s vehicle, which in turn was pushed
into the rear of a 2007 Ford Focus driven by Plaintiff Paul
Raymond Boettcher.
(Id. ¶ 3.)
Plaintiffs resolved their claims
with Houstyn Nicole Loosier and James Loosier (“the Loosier
Defendants”), and all claims against the Loosier Defendants were
dismissed.
(See ECF Nos. 39, 40.)
Plaintiffs’ only remaining
claims involve their own underinsured motorist (“UIM”) carrier,
Shelter Mutual Insurance Company.
(See Compl. ¶ 6.)
Plaintiffs filed a Complaint against the Loosier Defendants
on October 17, 2014, and thereby gave notice of the filing of
the suit to Shelter under section 56-7-1206(a) of the Tennessee
Code and section 40-284(d) of the Kansas Statutes.
(See Compl.
¶ 6.)
The Loosier Defendants filed an Answer on November 17,
2014.
(ECF No. 9.)
Shelter filed an Answer on December 15,
2014.
(ECF No. 12.)
Shelter formally intervened on May 4,
2016.
(ECF No. 78.)
On February 9, 2016, Shelter filed a Motion in Limine to
Exclude Gross Medical Billings.
(ECF No. 52.)
2016, Plaintiffs responded in opposition.
On March 25,
(ECF No. 66.)
Plaintiffs filed a Notice of Supplemental Authority on April 13,
2016.
(ECF No. 76.)
On June 1, 2016, the Court held a hearing
on the motion in limine.
(Min. Entry, ECF No. 86.)
On June 2,
2016, Shelter filed a Notice to Rebut Presumption of
Reasonableness.
(ECF No. 87.)
On June 3, 2016, Shelter filed a
supplemental brief on the motion to exclude gross medical
2
expenses.
(ECF No. 88.)
Plaintiffs filed a supplemental brief
in opposition on June 7, 2016.
II.
(ECF No. 89.)
LEGAL STANDARD AND ANALYSIS
Shelter argues that evidence of Plaintiffs’ gross medical
bills should be excluded at trial, based on the decision in West
v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014).
(ECF No. 52-1 at 2-3.)
According to Shelter, “[t]he total
‘charged’ amounts are irrelevant and unrecoverable under this
Court’s definition of ‘reasonable’ medical expenses.”
5.)
(Id. at
Additionally, Shelter argues that Plaintiffs are not
entitled to the presumption of reasonableness described in
section 24-5-113(b) of the Tennessee Code because Plaintiffs
failed to notify Shelter of their intent to rely on the
presumption and have produced three different medical
itemizations for Joyce Boettcher.
(ECF No. 88 at 2-3.)
Shelter
argues that the Court should follow the decisions in Smith v.
Lopez-Miranda, No. 15-cv-2240-SHL-dkv, --- F. Supp. 3d ---, 2016
WL 1083845 (W.D. Tenn. Feb. 10, 2016), Hall v. USF Holland,
Inc., No. 2:14-cv-02494-SHL-dkv, --- F. Supp. 3d. ---, 2016 WL
361583 (W.D. Tenn. Jan. 12, 2016), and Keltner v. United States,
No. 2:13-cv-2840-STA-dkv, 2015 WL 3688461 (W.D. Tenn. June 12,
2015), which found that gross medical bills were not
“reasonable” in the personal injury context.
(Id. at 3-4.)
According to Shelter, the gross medical bills would, therefore,
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not be considered reasonable under the presumption set forth in
section 24-5-113(b).
(Id. at 4.)
Plaintiffs argue that the West decision is limited to the
hospital lien context and does not apply in a personal injury
case of this nature.
(ECF No. 66 at 1, 5-6.)
Plaintiffs
further refer to the recent decision of the Court of Appeals of
Tennessee in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV
(Tenn. Ct. App. June 2, 2016), which held that the West holding
does not extend to personal injury cases.
(ECF No. 89 at 2.)
Plaintiffs argue that the medical bills are entitled to a
presumption of reasonableness under section 24-5-113(b) of the
Tennessee Code and, as a result of this presumption, the motion
to exclude gross medical expenses should be denied.
at 4-5.)
(ECF No. 66
Additionally, Plaintiffs argue that evidence of the
amount paid by the insurer violates the collateral source rule.
(Id. at 6-7; see also ECF No. 89 at 4.)
As an initial matter, the parties do not appear to dispute
the application of Tennessee law to the instant motion. 1
The
Court, therefore, considers whether Plaintiffs are entitled to
present at trial evidence of gross medical billings under
Tennessee law.
1
The parties do dispute whether Tennessee law or Kansas law applies to
other issues in the case, such as Plaintiffs’ ability to recover attorney’s
fees in bringing this action. (See ECF Nos. 67, 84.)
4
“An injured plaintiff bears the burden of proving that
medical expenses the plaintiff is seeking to recover are
necessary and reasonable.”
(Tenn. 2009).
Borner v. Autry, 284 S.W.3d 216, 218
Under certain circumstances, a plaintiff may be
entitled to a presumption that medical expenses paid or incurred
are necessary and/or reasonable.
113.
See Tenn. Code Ann. § 24-5-
Of relevance to the instant case, under section 24-5-
113(b) of the Tennessee Code,
in any civil action for personal injury brought by an
injured party against the person or persons alleged to
be
responsible
for
causing
the
injury,
if
an
itemization of or copies of the medical, hospital or
doctor bills which were paid or incurred because of
such personal injury are served upon the other parties
at least ninety (90) days prior to the date set for
trial, there shall be a rebuttable presumption that
such medical, hospital or doctor bills are reasonable.
Tenn. Code Ann. § 24-5-113(b)(1); 2 see also Wilson v. Monroe
Cty., 411 S.W.3d 431, 442 (Tenn. Ct. App. 2013) (applying the
relevant subsection); Iloube v. Cain, 397 S.W.3d 597, 604 (Tenn.
Ct. App. 2012) (discussing the differences between subsections
(a) and (b) of section 24-5-113); Hogan v. Reese, No. 01-A-019801-CV-00023, 1998 WL 430627, at *6-7 (Tenn. Ct. App. July 31,
1998) (discussing the legislative history of section 24-5-113).
A defendant may present evidence at trial to rebut this
2
Although compliance with the procedure set forth in subsection (a)
creates a presumption that the medical bills are both necessary and
reasonable, compliance with subsection (b) creates a presumption only that
the medical bills are reasonable. See Laird v. Doyle, No. 02A01-9707-CV00153, 1998 WL 74258, at *2-3 (Tenn. Ct. App. Feb. 24, 1998).
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presumption, provided that he complies with the requirements of
section 24-5-113(b)(2).
See Tenn. Code Ann. § 24-5-113(b)(2).
Where this presumption does not apply, such as in cases
involving the Tennessee Hospital Lien Act, the court must
independently assess the reasonableness of medical bills.
West
v. Shelby Cty. Healthcare Corp., 459 S.W.3d 33, 44 (Tenn. 2014).
In West, the Supreme Court of Tennessee determined that nondiscounted hospital bills were unreasonable for two reasons.
First, the non-discounted charges did not reflect the rate for
services in the actual marketplace.
Id. at 44-45.
Second, the
non-discounted charges were unreasonable because the healthcare
providers agree to charge insurance companies discounted rates
to advance their own economic interest.
Id. at 45.
Although
the court did not explicitly apply this analysis to the personal
injury context, the court noted that “[s]imilarly, recoveries
for medical expenses in personal injury cases are limited to
those expenses that are ‘reasonable and necessary.’”
Id. at 44
(citing Roberts v. Davis, No. M2000-01974-COA-R3-CV, 2001 WL
921903, at *4 (Tenn. Ct. App. Aug. 7, 2001)).
In Keltner v. United States, No. 2:13-cv-2840-STA-dkv, 2015
WL 3688461 (W.D. Tenn. June 12, 2015), Judge S. Thomas Anderson
of this District applied West’s reasoning in a generic personal
injury case, finding the defendant liable only for the amount
actually paid by the plaintiff and his insurer to medical
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providers.
Judge Anderson observed that “the non-discounted
rate was not an ‘expense’ because it was not ‘expended’ or even
‘incurred.’”
Keltner, 2015 WL 3688461, at *4.
Similarly, in Hall v. USF Holland, Inc., No. 2:14-cv-02494SHL-dkv, --- F. Supp. 3d. ---, 2016 WL 361583 (W.D. Tenn. Jan.
12, 2016), and Smith v. Lopez-Miranda, No. 15-cv-2240-SHL-dkv, -- F. Supp. 3d ---, 2016 WL 1083845 (W.D. Tenn. Feb. 10, 2016),
Judge Sheryl H. Lipman of this District granted the defendant’s
motion in limine and excluded evidence of undiscounted hospital
charges in a personal injury case.
Judge Lipman found that, in
light of West, “a Tennessee court would not find healthcare
provider charges in excess of what an insurer paid to a provider
to be ‘necessary and reasonable’ costs that may be recovered as
damages in a personal injury suit.”
Hall, 2016 WL 361583, at
*1.
The Keltner, Hall, and Smith decisions did not consider,
however, the presumption of reasonableness that arises under the
procedure of section 24-5-113(b) of the Tennessee Code.
Additionally, these decisions are inconsistent with the recent
Dedmon decision, in which the Court of Appeals of Tennessee
determined that the holding in West does not extend to personal
injury actions.
Dedmon, No. W2015-01462-COA-R9-CV, slip op. at
13.
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In the instant case, the parties do not dispute that
Plaintiffs served Shelter with itemized medical bills at least
ninety days before trial. 3
Accordingly, by serving Shelter with
an itemization of the medical bills which they incurred, 4
Plaintiffs complied with the requirements of section 24-5113(b)(1) and are entitled to a presumption of reasonableness.
Despite Shelter’s contention that Plaintiffs were required to
inform Shelter of their intent to rely on said presumption, the
statute does not establish such a requirement.
See Tenn. Code
Ann. § 24-5-113.
This presumption does not affect Plaintiffs’ burden to show
that the bills were necessary or their burden to show that the
bills were incurred because of the personal injuries sustained
3
Shelter does argue, however, that the fact that it was served with
multiple itemizations of medical bills, each claiming different amounts,
negates Plaintiffs’ reliance on the presumption of section 24-5-113(b).
Shelter does not reference any authority in support of this contention, and
this contention is inconsistent with the plain language of section 24-5113(b). Section 24-5-113(b) merely requires a plaintiff to serve “an
itemization of . . . the medical, hospital or doctor bills which were paid or
incurred because of such personable injury . . . upon the other parties at
least ninety (90) days prior to the date set for trial.” Tenn. Code Ann.
§ 24-5-113(b). Under this provision, it appears that a plaintiff may provide
multiple itemizations of medical bills, such as an initial itemization and a
subsequent itemization accounting for continuing treatment, as long as each
itemization is served at least ninety days prior to the date set for trial.
4
Since the parties agree that these bills were not “paid,” the
presumption of section 24-5-113(b) arises only if the bills were “incurred.”
The word “incur” is defined in Black’s Law Dictionary as “[t]o suffer or
bring on oneself (a liability or expense).” Black’s Law Dictionary (10th ed.
2014). Although Plaintiffs’ insurance company may have ultimately received a
discount on Plaintiffs’ medical bills, Plaintiffs did, at one point in time,
“incur” the total amount of the bills. Had Plaintiffs not had health
insurance or had their insurer not paid the medical bills, Plaintiffs would
have remained liable for the total amount of the bills. Thus, by receiving
medical care, Plaintiffs “brought on themselves” the liability of the total
amount of the medical bills.
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in the underlying automobile collision.
§ 24-5-113.
See Tenn. Code Ann.
The West decision suggests that undiscounted
medical bills may be unreasonable.
Because Plaintiffs are
entitled to a rebuttable presumption that their medical bills
are reasonable, however, the Court need not independently assess
their reasonableness, such as the court did in West.
III. CONCLUSION
Because Plaintiffs’ gross medical bills are presumed
reasonable, Shelter’s Motion in Limine to Exclude Gross Medical
Billings is DENIED.
Shelter, having complied with the
requirements of section 24-5-113(b)(2), may present proof
contradicting the reasonableness of the medical expenses.
See
Tenn. Code Ann. § 24-5-113(b). 5
IT IS SO ORDERED, this the 8th day of June, 2016.
/s/ Jon Phipps McCalla
JON PHIPPS McCALLA
UNITED STATES DISTRICT JUDGE
5
As the Court of Appeals of Tennessee noted in Dedmon, Shelter “must
not run afoul of the collateral source rule.” No. W2015-01462-COA-R9-CV,
slip op. at 16. Shelter may, however, offer “evidence indicating that
something less than the charged amount has satisfied . . . the amount
billed.” Id. (quoting Martinez v. Milburn Enters., Inc., 233 P.3d 205, 222223 (Kan. 2010)).
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