Decker et al v. Target Corporation

Filing 91

MEMORANDUM DECISION AND ORDER Granting in Part and Denying in Part Motions in Limine Regarding Medical Expenses and Internal Policies: Target's Motion in Limine Regarding Medical Expenses 44 is DENIED and Target's Motion in Limine Regarding Internal Policies 45 is GRANTED IN PART AND DENIED IN PART. Signed by Judge Jill N. Parrish on 10/12/18. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CARYL JEAN DECKER AND DENNIS
DECKER,
Plaintiffs,
v.
TARGET CORPORATION, a Minnesota
corporation,
Defendant.

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS IN
LIMINE REGARDING MEDICAL
EXPENSS AND INTERNAL POLICIES

Case No. 1:16-cv-00171-JNP-BCW
District Judge Jill N. Parrish

Before the court are two motions in limine filed by defendant Target Corporation
(“Target”) on September 14, 2018: 1) Motion in Limine Regarding Medical Expenses and 2)
Motion in Limine Regarding Internal Policies. Plaintiffs Mr. and Mrs. Decker (“the Deckers”)
opposed both motions on September 21, 2018. Oral argument was heard at the Final Pretrial
Conference and Motions Hearing on October 5, 2018. The court will address each motion in turn.
I.

Defendant’s Motion in Limine Regarding Medical Expenses

Target seeks an order precluding the plaintiffs from offering any evidence regarding
“medical expenses that were written off” by their “medical providers” under the theory that
plaintiffs may not seek to recover damages for medical expenses that were never actually incurred.
Alternatively, if the court concludes that Mrs. Decker’s billed medical expenses are admissible,
Target seeks permission to introduce evidence of how much was accepted as payment for the
medical care she received. The Deckers respond that they are entitled to submit evidence of the
amount billed and that allowing Target to introduce evidence of the amounts written off would
violate Utah’s collateral source rule.

In Utah, “[t]he collateral source rule provides that a wrongdoer is not entitled to have
damages, for which he is liable, reduced by proof that the plaintiff has received or will receive
compensation or indemnity for the loss from an independent collateral source.” Mahana v. Onyx
Acceptance Corp., 2004 UT 59, ¶ 37, 96 P.3d 893, 901 (internal citation and quotation marks
omitted). Unfortunately, the Utah appellate courts have yet to address the application of the
collateral source rule to medical bills that are written off by providers because of discounts
negotiated by health insurers. Amos v. W.L. Plastics, Inc., 2010 WL 360772, at *1 (D. Utah 2010).
This court must therefore predict how the Utah courts would rule on the issue.
The court begins its analysis by noting that the majority of courts around the nation that
have addressed the issue have concluded that the collateral source rule precludes introduction of
medical bill write-offs. And in a relatively recent and well-reasoned opinion, another judge of this
court predicted “that the Utah Supreme Court would follow the majority rule.” Id. at * 3.
Under the “majority rule,” articulated in Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 206,
129 P.3d 487, 495 (Ct. App. 2006), plaintiffs are entitled to seek “the full amount of reasonable
medical expenses charged, based on the reasonable value of medical services rendered, including
amounts written off from the bills pursuant to contractual rate reductions.” Id.
This court agrees with the Amos court that the Utah courts would likely adopt the majority
rule. In Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 37, the Utah Supreme Court held that
the collateral source rule “does not differentiate between the nature of the benefits, so long as they
did not come from the defendant or a person acting for him.” Mahana v. Onyx Acceptance Corp.,
2004 UT 59, ¶ 39, 96 P.3d 893, 901 (quoting Restatement (Second) of Torts § 920A cmt. b (1979)).
Because write-offs are a benefit received “pursuant to contractual relationships” between health
insurance companies and medical providers, they are presumably a benefit to which the collateral

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source rule applies. 1 And allowing Target to introduce evidence of how much was actually
accepted as payment for the medical care provided would necessarily inject into the trial the
prejudicial issue of insurance coverage—one of the evils that the collateral source rule was
designed to remedy. For these reasons, the court concludes that Utah courts would likely follow
the majority rule. Defendant’s Motion in Limine Regarding Medical Expenses is therefore denied.
II.

DEFENDANT’S MOTION IN LIMINE REGARDING INTERNAL POLICIES

Target next seeks to preclude the Deckers from introducing evidence of “Target’s internal
policies and procedures to show a breach of a duty toward plaintiffs,” reasoning that “the standard
of care owed by Target is defined by law, and not by Target’s own internal policies and
procedures.” The Deckers respond that evidence of Target’s internal policies is evidence of
whether it exercised due care and that it particularly bears on whether Target should have realized
that the cart posed an unreasonable risk of harm to its invitees.
The court grants the motion to exclude evidence of Target’s general safety policies but will
allow evidence of any policies that specifically address the issue of flatbed carts. And with respect
to those specific policies, the court will give a limiting instruction explaining that Target’s internal
policies on that issue do not establish the legal duty of care owed by Target, but are relevant only
to the extent they bear on the issues of whether Target knew or should have known that the flatbed
cart presented an unreasonable risk of harm to its customers, that its customers would not discover

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In reaching its decision, Lopez surveyed courts deciding that, “for purposes of the collateral
source rule, no rational distinction exists between payments made by an insurance carrier on
behalf of an injured plaintiff; a healthcare provider's acceptance of reduced payments from health
maintenance organizations (HMOs) and government payors; or a provider's write-off of portions
of billed charges to patients pursuant to contractual relationships with HMOs or government
payors.” Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 206, 129 P.3d 487, 495 (Ct. App. 2006)
(internal citations omitted).

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or realize the danger, and whether Target used reasonable care to protect its customers from the
danger.
Target correctly argues that internal rules and policies do not define the legal duty of a
business. “The duty of a business is simply to ‘exercise due care and prudence for the safety of
business invitees,’ and ‘that duty cannot be altered by higher standards prescribed by a merchant
for his or her employees.’” Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 20, 311 P.3d
564, 572–73 (quoting Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991) and Steffensen
v. Smith's Mgmt. Corp., 862 P.2d 1342, 1345 (Utah 1993)). What is more, just as internal policies
do not establish the legal duty, a violation of those policies does not “necessarily establish a breach
of duty.” Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 20, 311 P.3d 564, 572–73.
Target is also correct that admitting evidence of Target’s “poor safety culture” and failure
to observe internal policy as it relates to safety in general is fraught with problems. The jury in
this case will be asked to determine whether Target was negligent in placing the flatbed cart in
the aisle. Whether Target was generally negligent towards its customers or the adequacy of its
“safety culture” are not at issue. Similarly, the reasons why Target may have been negligent are
not at issue. Focusing the jury on Target’s general safety practices would only serve to distract
the jury from the issue at hand and demonize Target. Moreover, any slight probative value such
evidence may have is clearly outweighed by a danger of unfair prejudice, confusing the issues,
misleading the jury, and undue delay. The court therefore grants Target’s motion in limine to
exclude evidence of Target’s general safety policies and safety culture. It will, however, allow
the Deckers to present evidence of any Target policies that specifically address flatbed carts to
the extent such policies bear on the issue of whether Target knew or should have known that the
flatbed cart presented an unreasonable risk of harm to its customers, that Target knew or should

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have known that its customers would not discover or realize the danger associated with the
flatbed cart and that Target failed to use reasonable care to protect its customers from that
danger.
ORDER
For the reasons above, Target’s Motion in Limine Regarding Medical Expenses (ECF No.
44) is DENIED and Target’s Motion in Limine Regarding Internal Policies (ECF No. 45) is
GRANTED IN PART AND DENIED IN PART.

Signed October 12, 2018
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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