Doreen W. V. MWV Healthcare Assoc., Inc, et al. CV-11-36-JL 4/5/13 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Doreen W .
v. Civil N o . 11-cv-036-JL Opinion N o . 2013 DNH 054P MWV Healthcare Assocs., Inc., et al.
SUMMARY ORDER
The plaintiff, proceeding pseudonymously on behalf of her
minor son, “A.D.,” has brought a medical malpractice claim
against several providers who, she alleges, negligently failed to
diagnose him with a brain tumor. Though the tumor was eventually
identified and removed, the plaintiff alleges that, by that
point, it “had grown substantially in size from the time it
should have first been recognized and treated,” leaving A.D.
without sight in either eye. This court has subject-matter
jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity), because
A.D. is a citizen of Maine, see id. § 1332(a)(c)(2), while the
defendants are citizens of New Hampshire.
One of the defendants, Rita Kostecke, M.D., has filed two
motions in limine seeking to exclude evidence at the upcoming
trial. Kostecke seeks to exclude evidence of (1) the “face
amount” of the medical bills allegedly necessitated by her
negligence and (2) any “neuropsychological injury” to A.D. For
the reasons set forth below, Kostecke’s first motion in limine is denied, but her second motion in limine is granted (without
prejudice to the plaintiff’s ability to demonstrate the relevance
of A.D.’s neuropsychological injury later in the proceedings).
Face amounts of medical bills
In her first motion in limine, Kostecke seeks to preclude
the plaintiff from putting into evidence “the ‘face amount’ of
medical expenses” as reflected in A.D.’s medical bills. Kostecke
argues that “[t]he face amount of such bills represents only an
arbitrary amount that the providers never expected would be paid,
given their preexisting agreements with the insurers that they
would accept significantly lesser sums as full compensation.” In
fact, Kotsecke states, “a significant portion ($32,319.14,
representing 22%) of the face amount was neither incurred by the
plaintiff nor paid by [her], her insurers, or any other” person.
Thus, Kotsecke maintains, the amounts shown on A.D.’s medical
bills are “unfairly prejudicial,” requiring their exclusion under
Rule 403 of the Federal Rules of Evidence.
As Kotsecke acknowledges, this court has repeatedly rejected
similar arguments as “at odds with New Hampshire’s collateral
source rule.” Reed v . Nat’l Council of Boy Scouts of Am., Inc.,
706 F. Supp. 2d 1 8 0 , 190 (D.N.H. 2010); see also Herbst v . L.B.O.
Holding, Inc., 783 F. Supp. 2d 2 6 2 , 267 (D.N.H. 2011); Bartlett
2 v . Mut. Pharm. Co., 2010 DNH 125, 4 ; Aumand v . Dartmouth
Hitchcock Medical Center, 611 F. Supp. 2d 7 8 , 90-92 (D.N.H.
2009); Williamson v . Odyssey House, Inc., 2000 DNH 2 3 8 , 3 . Under
that rule, “‘if a plaintiff is compensated in whole or part for
his damages by some source independent of the tort-feasor, he is
still permitted to make full recovery against the tort-feasor.’”
Aumand, 611 F. Supp. 2d at 90 (quoting Williamson, 2000 DNH at 2
(further quotation marks omitted)).
In Reed, in fact, this court rejected--in a lengthy and
detailed analysis discussing caselaw from New Hampshire as well
as other jurisdictions--the argument that “the collateral source
rule does not apply to charges billed but later ‘written off’ by
a plaintiff’s medical provider, since those amounts were never
‘paid’ by a collateral source o r , indeed, anybody.” 706 F. Supp.
2d at 190-94. Kostecke argues that Reed, and the other decisions
of this court that are in accord with i t , “must be rejected as
misapplying the collateral source rule to the difference between
the billed amount and the paid amount for which neither the
plaintiff nor anyone else was ever liable.” As the court
explained in Reed, however, “[t]his argument ignores the reality
that, when a medical provider agrees to ‘write-off’ an amount it
would otherwise charge, that confers just as much of a benefit on
the plaintiff (and, if disallowed as a measure of damages, would
3 in fact confer just as much of a benefit on the defendant) as if
the ‘written off’ amount had been paid by a third party.” Id.
The collateral source rule, of course, “applies to all benefits
the plaintiff receives from third parties as a result of his
injuries by the defendant, regardless of their nature.” Id.
(citing Clough v . Schwartz, 94 N.H. 139, 141 (1946)); see also,
e.g., Restatement (Second) of Torts § 920A cmt. b, at 514 (1979).
Neither Kostecke, nor any of the cases she cites, attempts
to engage this reasoning, nor the many cases collected in the
Reed opinion that support it. 1 So she provides no reason for
this court to waver from its position, announced in Reed, that
“unless and until this state’s version of the collateral source
rule is changed by the New Hampshire legislature or New Hampshire
Supreme Court, this court will continue to apply it to billed
amounts ‘written off’ by a plaintiff’s providers, in accordance
with the law here and in the vast majority of other
jurisdictions.” 706 F. Supp. 2d at 194. Neither the New
Hampshire legislature nor the Supreme Court has done s o .
Kostecke also argues, in the alternative, that her motion to
prevent the plaintiff from introducing the face amount of A.D.’s
medical bills “does not involve the collateral source rule,” but
1 Indeed, nearly all of the cases on which Kostecke relies were discussed, and specifically rejected, in Reed.
4 rather, the rule limiting a plaintiff’s recovery to the
“reasonable value of medical services” necessitated by the
defendant’s negligence. As this court has recognized, that is
the proper measure of that item of damages under New Hampshire
law. See Aumand, 611 F. Supp. 2d at 90 (discussing Williamson,
2000 DNH 2 3 8 , at 2 ) . Kostecke argues that the face amount of
A.D.’s medical bills is not probative on that point because it
“represents only an arbitrary amount,” “a sum that bears no
reflection on the value of the services,” and “a fictional,
inflated figure.” The court disagrees.
As an initial matter, the face amount of the bills is
clearly relevant, i.e., it “has [a] tendency to make a fact more
or less probable . . . and the fact is of consequence in
determing the action.” Fed. R. Evid. 401. That fact, of course,
is the reasonable value of medical services that A.D. received.
It may be true that the face amount of A.D.’s medical bills is
not conclusive on that point. But it does not follow that the
face amount of the bills is so lacking in probative worth as to
the reasonable value of A.D.’s medical expenses that the evidence
should be excluded, under Rule 403, based on its risk of
prejudicing Kostecke, or confusing the jury.
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Doreen W. V. MWV Healthcare Assoc., Inc, et al. CV-11-36-JL 4/5/13 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Doreen W .
v. Civil N o . 11-cv-036-JL Opinion N o . 2013 DNH 054P MWV Healthcare Assocs., Inc., et al.
SUMMARY ORDER
The plaintiff, proceeding pseudonymously on behalf of her
minor son, “A.D.,” has brought a medical malpractice claim
against several providers who, she alleges, negligently failed to
diagnose him with a brain tumor. Though the tumor was eventually
identified and removed, the plaintiff alleges that, by that
point, it “had grown substantially in size from the time it
should have first been recognized and treated,” leaving A.D.
without sight in either eye. This court has subject-matter
jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity), because
A.D. is a citizen of Maine, see id. § 1332(a)(c)(2), while the
defendants are citizens of New Hampshire.
One of the defendants, Rita Kostecke, M.D., has filed two
motions in limine seeking to exclude evidence at the upcoming
trial. Kostecke seeks to exclude evidence of (1) the “face
amount” of the medical bills allegedly necessitated by her
negligence and (2) any “neuropsychological injury” to A.D. For
the reasons set forth below, Kostecke’s first motion in limine is denied, but her second motion in limine is granted (without
prejudice to the plaintiff’s ability to demonstrate the relevance
of A.D.’s neuropsychological injury later in the proceedings).
Face amounts of medical bills
In her first motion in limine, Kostecke seeks to preclude
the plaintiff from putting into evidence “the ‘face amount’ of
medical expenses” as reflected in A.D.’s medical bills. Kostecke
argues that “[t]he face amount of such bills represents only an
arbitrary amount that the providers never expected would be paid,
given their preexisting agreements with the insurers that they
would accept significantly lesser sums as full compensation.” In
fact, Kotsecke states, “a significant portion ($32,319.14,
representing 22%) of the face amount was neither incurred by the
plaintiff nor paid by [her], her insurers, or any other” person.
Thus, Kotsecke maintains, the amounts shown on A.D.’s medical
bills are “unfairly prejudicial,” requiring their exclusion under
Rule 403 of the Federal Rules of Evidence.
As Kotsecke acknowledges, this court has repeatedly rejected
similar arguments as “at odds with New Hampshire’s collateral
source rule.” Reed v . Nat’l Council of Boy Scouts of Am., Inc.,
706 F. Supp. 2d 1 8 0 , 190 (D.N.H. 2010); see also Herbst v . L.B.O.
Holding, Inc., 783 F. Supp. 2d 2 6 2 , 267 (D.N.H. 2011); Bartlett
2 v . Mut. Pharm. Co., 2010 DNH 125, 4 ; Aumand v . Dartmouth
Hitchcock Medical Center, 611 F. Supp. 2d 7 8 , 90-92 (D.N.H.
2009); Williamson v . Odyssey House, Inc., 2000 DNH 2 3 8 , 3 . Under
that rule, “‘if a plaintiff is compensated in whole or part for
his damages by some source independent of the tort-feasor, he is
still permitted to make full recovery against the tort-feasor.’”
Aumand, 611 F. Supp. 2d at 90 (quoting Williamson, 2000 DNH at 2
(further quotation marks omitted)).
In Reed, in fact, this court rejected--in a lengthy and
detailed analysis discussing caselaw from New Hampshire as well
as other jurisdictions--the argument that “the collateral source
rule does not apply to charges billed but later ‘written off’ by
a plaintiff’s medical provider, since those amounts were never
‘paid’ by a collateral source o r , indeed, anybody.” 706 F. Supp.
2d at 190-94. Kostecke argues that Reed, and the other decisions
of this court that are in accord with i t , “must be rejected as
misapplying the collateral source rule to the difference between
the billed amount and the paid amount for which neither the
plaintiff nor anyone else was ever liable.” As the court
explained in Reed, however, “[t]his argument ignores the reality
that, when a medical provider agrees to ‘write-off’ an amount it
would otherwise charge, that confers just as much of a benefit on
the plaintiff (and, if disallowed as a measure of damages, would
3 in fact confer just as much of a benefit on the defendant) as if
the ‘written off’ amount had been paid by a third party.” Id.
The collateral source rule, of course, “applies to all benefits
the plaintiff receives from third parties as a result of his
injuries by the defendant, regardless of their nature.” Id.
(citing Clough v . Schwartz, 94 N.H. 139, 141 (1946)); see also,
e.g., Restatement (Second) of Torts § 920A cmt. b, at 514 (1979).
Neither Kostecke, nor any of the cases she cites, attempts
to engage this reasoning, nor the many cases collected in the
Reed opinion that support it. 1 So she provides no reason for
this court to waver from its position, announced in Reed, that
“unless and until this state’s version of the collateral source
rule is changed by the New Hampshire legislature or New Hampshire
Supreme Court, this court will continue to apply it to billed
amounts ‘written off’ by a plaintiff’s providers, in accordance
with the law here and in the vast majority of other
jurisdictions.” 706 F. Supp. 2d at 194. Neither the New
Hampshire legislature nor the Supreme Court has done s o .
Kostecke also argues, in the alternative, that her motion to
prevent the plaintiff from introducing the face amount of A.D.’s
medical bills “does not involve the collateral source rule,” but
1 Indeed, nearly all of the cases on which Kostecke relies were discussed, and specifically rejected, in Reed.
4 rather, the rule limiting a plaintiff’s recovery to the
“reasonable value of medical services” necessitated by the
defendant’s negligence. As this court has recognized, that is
the proper measure of that item of damages under New Hampshire
law. See Aumand, 611 F. Supp. 2d at 90 (discussing Williamson,
2000 DNH 2 3 8 , at 2 ) . Kostecke argues that the face amount of
A.D.’s medical bills is not probative on that point because it
“represents only an arbitrary amount,” “a sum that bears no
reflection on the value of the services,” and “a fictional,
inflated figure.” The court disagrees.
As an initial matter, the face amount of the bills is
clearly relevant, i.e., it “has [a] tendency to make a fact more
or less probable . . . and the fact is of consequence in
determing the action.” Fed. R. Evid. 401. That fact, of course,
is the reasonable value of medical services that A.D. received.
It may be true that the face amount of A.D.’s medical bills is
not conclusive on that point. But it does not follow that the
face amount of the bills is so lacking in probative worth as to
the reasonable value of A.D.’s medical expenses that the evidence
should be excluded, under Rule 403, based on its risk of
prejudicing Kostecke, or confusing the jury.
Indeed, as this court explained in Aumand, nothing prevents
a defendant from “questioning the face amount of medical bills as
5 equivalent to the reasonable value of [the plaintiff’s] medical
expenses,” id. at 92 n . 12--so long as the defendant does not use
the amounts actually paid, by the plaintiff’s insurers, to settle
those bills to do s o . That would constitute “an end-run around
the collateral source rule, as a number of courts have concluded
in upholding the exclusion of what a third party paid toward
medical expenses as evidence of their value.” Id. at 91
(collecting cases). 2 Thus, so long as she does not use evidence
of the write-offs, Kostecke is free to challenge the face amount
of the bills as representing the reasonable value of medical
services, whether by cross-examining the plaintiff’s witnesses on
that subject, presenting admissible opinion testimony from a
properly qualified and designated expert, or in any other manner
allowed by the rules of evidence and procedure. See Bartlett,
2010 DNH 125, 5 . But Kostecke’s motion to prevent the plaintiff
from introducing the face amounts of the bills is denied.
Evidence of neuropsychological injury
Kostecke also seeks to exclude any evidence of A.D.’s
neuropsychological injuries. She argues that the plaintiff has
2 Kostecke--who does not seek to introduce evidence of the “written-off” amounts, but to prevent the plaintiff from introducing the face amounts--does not appear to question this aspect of Aumand and, in any event, offers no reason why this court should depart from it here.
6 not disclosed an expert witness to give the requisite expert
testimony as to a casual connection between those injuries and
Kostecke’s alleged negligence. In fact, Kostecke points out,
while the plaintiff’s designated medical experts have disclosed
opinions identifying Kostecke’s malpractice as the cause of
A.D.’s vision deficits, they have admitted at their depositions
that they reached no opinion linking the malpractice to A.D.’s
neuropsychological deficits. Because New Hampshire law requires
expert testimony to prove the causal connection between a
defendant’s medical malpractice and the plaintiff’s injury, see
N.H. Rev. Stat. Ann. § 507-E:2, I ( c ) , Kostecke argues, allowing
the plaintiff to present evidence of A.D.’s neuropsychological
injury in the absence of such expert testimony creates an
unacceptable risk of prejudicing her and confusing the jury. See
Fed. R. Evid. 403.
The plaintiff’s only response is a statement that
“prohibit[ing] the jury from considering any neuropsychological
injury would unfairly restrict the jury’s consideration of the
circumstances of the case and [A.D.’s] medical condition.” This
otherwise unexplained assertion falls woefully short of
establishing the relevance of A.D.’s neuropsychological injuries,
see Fed. R. Evid. 4 0 1 , let alone that, under Rule 403, their
probative value comes close to outweighing their prejudicial
7 effect (which Kostecke’s motion amply shows, as just discussed).
Accordingly, Kostecke’s motion is granted, albeit without
prejudice to the plaintiff’s ability, between now and when she
seeks to introduce any such evidence at trial, to demonstrate its
relevance and probative value. But the plaintiff shall not seek
to introduce such evidence, or mention A.D.’s neuropsychological
injuries to the jury, without this court’s prior ruling that she
may do s o .
Conclusion
For the foregoing reasons, Kostecke’s first motion in
limine3 is DENIED, and her second motion in limine4 is GRANTED
without prejudice.
SO ORDERED.
Jo/eph N . Laplante U s ted States District Judge
Dated: April 5 , 2013
cc: David P. Slawsky, Esq. Daniel R. Sonneborn, E Alan B . Rindler, Esq.
3 Document n o . 2 9 . 4 Document n o . 3 0 .