Simms et al v. The United States of America et al

Filing 183

MEMORANDUM OPINION AND ORDER directing Plaintiffs file any supplemental motions by 1/7/2015; Responses to Plaintiffs' 175 MOTION in Limine No. 7 to Exclude the Testimony of Defendant's Life Expectancy Expert Dr. Holmes, 176 MOTION in L imine No. 8 to Exclude Evidence from Defendant's Expert Witness; Shelene Giles and 177 MOTION in Limine No. 9 to Exclude Evidence from Defendant's Expert Witness; M Brookshire due by 1/19/2015, with any replies due by 1/22/2015; denying w ithout prejudice Plaintiffs' 119 MOTION in Limine No. 1 to Exclude Evidence of Collateral Source Payments and Benefits and 120 MOTION in Limine No. 2 to Exclude Evidence of Collateral Source Payments and Benefits for Future Services/"O ffset" and to Exclude Evidence or Argument Concerning Reversionary Trust Mechanisms; granting Plaintiffs' 127 MOTION for Partial Summary Judgment on the Issue of Set Off of Damages. Signed by Judge Robert C. Chambers on 1/8/2015. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MISTY SIMMS, next friend of
Caelan Jantuah, an infant, and
MISTY SIMMS, individually
Plaintiffs,
v.

CIVIL ACTION NO. 3:11-0932

THE UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court are the following motions: Plaintiffs’ Motion in Limine No. 1
(ECF No. 119), Plaintiffs’ Motion in Limine No. 2 (ECF No. 120), Plaintiffs’ Motion for Partial
Summary Judgment on the Issue of Set Off of Damages (ECF No.127), Plaintiffs’ Motion in
Limine No. 7 (ECF No. 175), Plaintiffs’ Motion in Limine No. 8 (ECF No. 176), and Plaintiffs’
Motion in Limine No. 9 (ECF No. 177).
I.

Motions in Limine

Plaintiffs’ Motion in Limine No. 1 (ECF No. 119) and Plaintiffs’ Motion in Limine No. 2
(ECF No. 120) seek to exclude evidence of collateral source payments and evidence regarding
reversionary trust mechanisms. Such evidence is not relevant at trial but may become relevant in
the event of a verdict for the p laintiffs. Accordingly, these motions are premature and are
DENIED WITHOUT PREJUDICE.
Plaintiffs’ Motion in Limine No. 7 (ECF No. 175), Plaintiffs’ Motion in Limine No. 8 (ECF
No. 176), and Plaintiffs’ Motion in Limine No. 9 (ECF No. 177) were filed on January 3, 2015.

The government has not yet responded to these motions. Plaintiffs intend to supplement Motion
in Limine No. 8 and Motion in Limine No. 9 in response to the Court’s ruling in the instant order.
The Court thus DIRECTS Plaintiffs to file any supplemental motions on or before January 7,
2015. Responses to all three motions in limine are due on or before January 19, 2015, with any
replies due on or before January 22, 2015.
II.

Partial Motion for Summary Judgment

Plaintiffs moved for partial summary judgment on the issue of set-off damages. Plaintiffs
argue that the government is not entitled to a set-off from damages based on the portions of Caelan
Jantuah’s medical bills that have been paid by Medicaid and written off by medical care providers.
ECF No. 127. For the reasons set forth below, Plaintiff’s motion is GRANTED.
A. Standard of Review
To obtain summary judgment, the moving party must show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts in the light most favorable to the
nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from
which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256.
Summary judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for discovery, a

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showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252. “‘[W]here
the moving party has the burden—the plaintiff on a claim for relief or the defendant on an
affirmative defense—his showing must be sufficient for the court to hold that no reasonable trier of
fact could find other than for the moving party.’” Proctor v. Prince George’s Hosp. Ctr., 32 F.
Supp. 2d 820, 822 (D. Md. 1998) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir.
1986)).
B. Discussion
Under West Virginia law, a victim of tortious conduct is “entitled to recover the reasonable
value of the medical services that were necessary and caused by the defendant's misconduct.”
Kenney v. Liston, 760 S.E.2d 434, 439 (W. Va. 2014). Generally, medical bills serve as proof of
the reasonable value of medical services rendered. Id. at 437. As the court explained in Kenney
v. Linston, the initial cost of the plaintiff’s medical bills serves as the measure of damages:
The plaintiff may recover the full amount of his or her reasonable and necessary medical
expenses, even if those expenses were later discounted and a portion written off by the
health care provider. Regardless of how, or even whether, the plaintiff's obligation to the
medical provider was later discharged, the plaintiff became liable for the bills when the
services were received; the plaintiff is therefore entitled to recover the value of the
services. . . . This recovery is for the reasonable value of the services and not for the
expenditures actually made or obligations incurred.
Kenney, 760 S.E.2d at 445-46. In sum, the full amount of a plaintiff’s medical bills, regardless of
insurance payments and write-offs, represents the reasonable value of the medical services
rendered. See id. Therefore, the amount of Plaintiffs’ damages in the present case is the total
amount of Caelan Jantuah’s medical bills before Medicaid payments and write-offs.

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The Government maintains that it is entitled to at least a partial set-off of this total amount
because it cannot be required to pay damages for “services for which it has already paid.” ECF
No. 141. Under West Virginia’s collateral source rule, payments made to a plaintiff “from
sources other than the tortfeasor” do not reduce or set off the tortfeasor’s liability to the plaintiff.
Kenney, 760 S.E.2d at 440. This includes payments from Medicaid and gratuitous payments or
write-offs. Id. at 442-444. The government argues that the collateral source rule does not apply
to the payments made by Medicaid towards Caelan’s medical bills because the government is both
the alleged tortfeasor and the party responsible for making these payments.

Thus, the

Government argues, it is entitled to a set-off in the amount of these payments.
The Court disagrees. The Government cites Brooks v. United States for the proposition
that the United States cannot be forced “to pay twice for the same injury.” Brooks v. United
States, 337 U.S. 49, 54 (1949). In Brooks, the Court discussed in dicta whether the United States
was entitled to a reduction in damages in a tort action where it had previously made payments to
the plaintiffs through the Veterans’ Administration and other agencies. Id. In Brooks, it was
clear that any payments that might be set off were made by agencies of the federal government.
See id. Here, the West Virginia state Medicaid program paid portions of Caelan’s medical bills.
ECF No. 127. Federal contributions to the state Medicaid program do not turn state payments
into federal payments. The state of West Virginia is responsible for administering the state
Medicaid program and paying health care providers.

The state system also sets rates for

reimbursement. Finally, the state Medicaid program has the lien against any award to Plaintiffs
here. Thus, it is the state, and not the alleged tortfeasor, that made payments on Caelan’s medical
bills. The collateral source rule thus acts to prevent any set-off of damages for the amounts
already paid.

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Although the traditional collateral source rule does not permit a set-off here, the Court must
consider West Virginia Code Section 55-7B-9a, which reduces damages based on payments from
certain collateral sources in medical malpractice actions. The statute instructs courts to “subtract
the net amount of collateral source payments received or to be received by the plaintiff in each
category of economic loss from the total amount of damages awarded.”

W. Va. Code §

55-7B-9a(e) (2003). The courts must not, however, reduce the total amount of damages to reflect
payments “which the collateral source has a right to recover from the plaintiff through subrogation,
lien or reimbursement.” W. Va. Code § 55-7B-9a(g)(1).
Here, the West Virginia state Medicaid program has a subrogation lien against any verdict
in Plaintiffs’ favor. Thus, pursuant to Section 55-7B-9a(g)(1), the payments made by Medicaid
on Caelan Jantuah’s medical bills are not to be reduced from Plaintiffs’ total damages. The
government is therefore not entitled to a set-off as a matter of law. Accordingly, there is no
genuine issue of material fact for trial on the issue of set-off damages. For this reason, Plaintiffs’
Motion for Partial Summary Judgment (ECF No.127) is GRANTED.
CONCLUSION
For the reasons stated above, Plaintiffs’ Motion in Limine No. 1 (ECF No. 119) and
Plaintiffs’ Motion in Limine No. 2 (ECF No. 120) are DENIED WITHOUT PREJUDICE.
Plaintiffs’ Motion for Partial Summary Judgment on the Issue of Set Off of Damages (ECF
No.127) is GRANTED. The Court DIRECTS the Clerk to send a copy of this written Opinion
and Order to counsel of record and any unrepresented parties.

ENTER:

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January 8, 2015