Rice v. Williams

Filing 37

MEMORANDUM OPINION. Signed by Chief Judge Michael F. Urbanski on 7/26/17. (sas)

CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ELIZABETH M. RICE,
Plaintiff,

v.
JOHN C. WILLIAMS,

)
)
)
)
)
)

JUL2 6 2017

Civil Action No. 7:16-cv-00396

) By: Michael F. Urbanski

Defendant.

)
)
)

Chief United States District Judge

MEMORANDUM OPINION
In this diversity case, defendant John C. Williams ("Williams") has admitted liability
for an automobile accident on Interstate 81 in Montgomery County, Virginia, involving
plaintiff Elizabeth M. Rice ("Rice"). A trial as to damages is scheduled to begin August 1,
2017.
In a motion in limine filed July 7, 2017, Williams raises two evidentiary issues. First,
Williams argues that Rice may not introduce evidence of the cost of possible future lumbar
or cervical fusion surgeries because those surgeries are not medically necessary. Rather,
because these procedures are optional at this point, there is no reasonable probability that
these medical expenses are reasonably expected to occur in the future. Review of the
deposition of Rice's treating orthopedic surgeon compels the conclusion that while the
future surgeries are recommended options, their occurrence is not reasonably probable. As
such, Rice may not admit evidence of the expected costs of these optional surgeries.
Second, Williams seeks to exclude the fact that his liability insurer, State Farm, has
paid his medical expert witness $524,045 in fees over the last six years based on the long

established evidentiary prohibition against injection of insurance into tort trials and Federal
Rule of Evidence 411. Rice counters that the enormity of the money paid to Williams'
medical expert is admissible to show bias or prejudice. Rice founds her argument on the
opinion of the Virginia Supreme Court in Lombard v. Rohrbaugh, 262 Va. 484, 551 S.E.2d
349 (2001), where the court held that "testimony concerning liability insurance may be
elicited for the purpose of showing bias or prejudice of a witness if there is a substantial
connection between the witness and the liability carrier." I d. at 497, 551 S.E.2d at 356. The
Lombard court found a substantial connection in that case from the fact that the physician
witness was paid by the insurer, Allstate, slightly more than $100,000 a year for the two years
prior to suit being filed. In the instant case, the medical expert witness has a similar
substantial connection to State Farm, having been paid $524,045 by State Farm over the past
six years. As a result, the court concludes that Rice may introduce evidence of State Farm's
payments to Williams' medical expert witness to show bias or prejudice under Federal Rules
of Evidence 401, 403 and 411.
Accordingly, the court will GRANT in part and DENY in part Williams' motion in
limine (ECF No. 25).

I.
Under Virginia damages law applicable in this diversity case, a plaintiff may recover
for future medical expenses if those expenses are causally related to defendant's negligence
and are reasonable and medically necessary. McMunn v. Tatum, 237 Va. 558, 568, 379
S.E.2d 908, 913-14 (1989). Virginia law allows for recovery of damages for physical pain and
mental anguish that a plaintiff may be reasonably expected to suffer in the future. Roark v.

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United States, 456 F. Supp. 2d 739, 743 (W.D. Va. 2006) (citing Virginia Model Jury
Instructions, Civil, Inst. No. 9.000). "It has been universally recognized ... that an award for
the future effects of an injury, such as pain and suffering and medical expenses, is
appropriate when there is evidence to support it." Hailes v. Gonzales, 207 Va. 612, 614, 151
S.E.2d 388, 390 (1966). Damages must be shown with reasonable certainty. Id. ''Proof with
mathematical precision is not required, but there must be at least sufficient evidence to
permit an intelligent and probable estimate of damage." Id. (citing Gwaltney v. Reed, 196
Va. 505, 507-08, 84 S.E.2d 501-02 (1954)). Evidence of future surgeries is admissible if
"brought out of the realm of speculation and into the realm of reasonable probability; the
law in this area deals in 'probabilities' and not 'possibilities."' State Farm Mut. Auto. Ins. Co.
v. Kendrick, 254 Va. 206, 208-09, 491 S.E.2d 286, 287 (1997).
Rice relies on the testimony of her treating orthopedic surgeon, Dr. George R.
Williams, to meet this standard. Dr. Williams testified in: deposition 1 as follows:

Q.

Do you have an opinion, to a reasonable degree of
medical certainty, whether Ms. Rice will ultimately need a C3 to
C7 fusion surgery?
A.
Yes. So it's not so much needed. It's just it's an option
for her, and we have recommended it in the past due to her
continued symptomatology.
Williams Dep., ECF No. 25-1, at 46. Dr. Williams likewise recommended lumbar surgery for
Rice, but she indicated to him that "she'd rather not undergo any spinal surgery."
At deposition, Rice's counsel questioned Dr. Williams further:

Q.

do

1

Based on your course of treatment of Ms. Rice to date,
you believe that Ms. Rice will require the cervical fusion and

Dr. Williams practices in Louisiana, and Rice intends to introduce his videotaped deposition at trial.

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Id~

at 49.

lumbar fusion we've just discussed in order to obtain lasting
relief of any symptoms?

*

*

*

A.
Yes. So, minimally, it's a recommendation for her. She
certainly doesn't have to have it unless she - if she doesn't want
to. It's just a treatment option for her. And the only reason we
opted it for her was because she's tried everything else. And
she's had good bouts with her treatment. Don't get me wrong.
It's just she keeps coming back to - the same issues keep
revolving. And this has been going on for two and a half,
almost three years.

Q.

Do you believe- if Ms. Rice elects not to proceed with
the fusion surgeries we've discussed, will she require periodic
anti-inflammatory medications to treat her neck and back
injuries?
A.

Correct.

Id. at 49-50. At the same time, Dr. Williams testified that he would not discuss surgical
options with a patient if he did not believe they were needed. Id. at 57.
On cross-examination, Dr. Williams testified:

Q.

Now, I do want to talk to you a little bit about the
surgical procedure that you talked about. At this time at least,
the surgical procedures that you talked about - the potential
fusion surgeries ~ those are just possibilities, correct? ·
A.
You know, it's an option for her and it's something that
she can endure. But, at this point in time, I don't think she even
wants it.

*

*

*

Q.
So you can't say to a reasonable degree of medical
probability and/ or certainty that she's going to have either of
these surgeries in the future, correct?
A.
You know, I can't guarantee you with a hundred percent
validity she is. All I can state at this point in time is that based
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on her track record of things going on and coming and going,
the conservative care does help. The problem is that it doesn't
resolve for any long period of time. That surgery, because she
tried all of those things, is an option for her.

Q.

You also answered some questions about future
treatment with regard to possible injections and that sort of
thing in the future. Again, you can't say to a reasonable degree
of medical probability and/ or certainty that she's going to have
those things, correct?

A.
A hundred percent validity, no, sir. Just based on the
track record we've done so far, it seems like she will.

Q.

But you would agree with me that she could potentiallyher symptoms could resolve, different options could happen
where she wouldn't need those things in the future, correct?
A.

That's true. Yes, sir.

Id. at 64-66. On redirect examination, Dr. Williams conflrmed that he discussed surgery with
Rice on January 24, 2017, but she "did not want surgery. She wanted the physical therapy."
Id. at 70. Dr. Williams considered the fusion surgeries to be the "deflnitive treatment," a
term he explained as follows:

A.
Well, it just means after trying and exhausting all formal
aspects ofconservative care and measurements that don't have
any scientiflc merit or beneflt, if she's still symptomatic, then
that would be the last option for her - and hopefully to resolve
her issue.

Q.

Based on her treatment to date, do you believe Ms.
Rice's symptoms will resolve with further non-surgical
treatment?

A.
Well, as we've seen so far, following her for almost three
years, there are issues that continue to wax and wane. So it's
doubtful conservative care is going to resolve it.
Id. at 71.

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In sum, while cervical or lumbar fusion remains a possible option for Rice, her
treating orthopedic surgeon was unable to testify that it was probable. Rice has told her
doctor that she does not want surgery, and whether cervical or lumbar surgery is in her
future is uncertain at this point Because Rice's need for future surgery remains in the realm
of possibility, rather than reasonable probability, her doctor's estimate of future surgical
expenses is not admissible. 2

II.
Williams moves to exclude evidence of payments made by his liability insurer, State
Farm, to his medical expert witness under Federal Rule of Evidence 411. Rule 411 provides
that "[e]vidence that a person was or was not insured against liability is not admissible to
prove whether the person acted negligently or otherwise wrongfully." However, "the court
may admit this evidence for another purpose, such as proving a witness's bias or prejudice ..
. ."Rice seeks to do just that, arguing that the magnitude of the fees paid to this medical
expert witness by State Farm establishes a "substantial connection" with State Farm,
rendering the amount of the payments admissible under the bias or prejudice exception to
Rule 411 and the Virginia Supreme Court's decision in Lombard.
Rice proffers that Williams' medical expert witness has been paid substantial sums by
State Farm for his medical legal consulting work, amounting to $524,045 over the last six
Rice relies on decisions from two companion cases from this district for admission of this evidence. Neither case
supports her argument. First, in Creech v. United States, No. 7:06cv00279, 2007 WL 2029310 (W.D. Va. July 10, 2007),
plaintiff's treating orthopedic surgeon, Dr. James McCoig, testified that she "will likely need surgery in the next five
years." Id. at *5. In contrast, when asked whether Rice would need surgery, Dr. Williams testified that "it's not so much
needed. It's just an option for her." ECF No. 25-1, at 46. The companion case, Leitch v. United States, No.
7:06cv00278, 2007 WL 2688169 (W.D. Va. Sept. 11, 2007), is inapposite. Not only did that case not concern the issue of
medical expenses for future surgery, Betty Leitch's treating physician testified that she "will require" future osteopathic
manipulation therapy (OM1) sessions. Id. at *5. In any event, those cases were bench trials conducted under the Federal
Tort Clail:ns Act, 28 U.S.C. § 2671 ~~,and the well-established concern over the potential for jury speculation as to
damages was not present.
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years. In addition, Williams' medical expert witness historically has performed roughly 90%
of his medical legal work for defendants, earning more than $300,000 per year since 2013.
Although not addressed by the parties, the flrst question is whether Rule 411 even
applies to this case. Rule 411 concerns the admission of insurance "to prove whether the
person acted negligently or otherwise wrongfully." Here, however, Williams has admitted
liability, and the only issue for trialis damages. The notion that the prohibition in Rule 411
may not apply in a case where liability has been admitted is bolstered by the 1972 Advisory
Committee Notes, where the rules Advisory Committee explained that the exclusion was
designed to negate any inference of fault from the presence or absence of liability insurance.
The courts have with substantial unanimity rejected evidence of
liability insurance for the purpose of proving fault, and the
absence of liability insurance as proof of lack of fault. At best
the inference of fault from the fact of insurance coverage is a
tenuous one, as is its converse.
Fed. R. Evid. 411 advisory committee's note. Here, in contrast, where fault has been
admitted, there is a question as to whether the flrst sentence of Rule 411 is properly applied.
The court need not reach this question, however, as it concludes that the evidence may be
admitted whether or not Rule 411 applies. Should Rule 411 apply in the case of admitted
fault, the evidence is nonetheless admissible under the second sentence of the rule as to
proof of bias or prejudice. Should Rule 411 not apply, the issue then becomes the familiar
balance of relevance under Rule 401 with unfair prejudice under Rule 403.
Plainly, under Rule 401, the payment of such a large amount of money by State Farm
to its medical expert witness is relevant to the issue of bias asserted by Rice. While the fact
that Williams has admitted liability and the only issue facing the jury is one of damages tends

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to mollify to some degree the traditional concern of prejudice resulting from the mention of
liability insurance undergirding both Rules 411 and 403, that concern is not entirely
eliminated, as .some danger of prejudice to defendant Williams remains as the jury will be
deciding the amount of damages to award. In striking a balance between the considerations
underlying Rules 401, 403 and 411, the court is persuaded that Lombard's "substantial
connection" test properly accounts for the competing consideration of relevance and undue
prejudice. Given the large amount of fees paid by State Farm and other liability insurance
carriers to the medical expert witness in this case, the court finds that a substantial
connection exists, authorizing Rice to question Williams' medical expert witness regarding
the monies paid for his medical legal work by liability insurers generally and State Farm in.
particl,llar. . At the same time, the court will give a limiting instruction to the jury directing
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·'.

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them to consider the issue of payments to Williams' medical expert witness by State Farm
and other liability insurance carriers only for the purpose of evaluating his bias or prejudice.
The court also will give a limiting instruction and final instruction consistent with Virginia
Model Jury Instruction 9.015, directing the jury not to consider the presence or absence of
insurance in deciding the issue of damages.
On balance, the court concludes that the competing considerations under Rules 401,
403 and 411 are satisfied by the admission of the payment evidence for the narrow purpose
of assessing the issue of bias or prejudice as offset by these limiting instructions.
For these reasons, the court will GRANT in part and DENY in part Williams'
motion in limine (ECF No. 25).
An appropriate Order will be entered.

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Entered:

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Michael F. Urbanski"
Chief United States District Judge

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