1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * *
6 SUSAN PETERSON, Case No. 3:19-cv-00442-ART-WGC Plaintiff, 7 v. ORDER 8 EVERGREEN TRANS, INC.; 9 BALWINDER SINGH, and DOES I-X, inclusive, 10 Defendants. 11
12 Before the Court are: (1) Plaintiff Susan Peterson’s Motions in Limine to 13 exclude certain evidence (ECF No. 52) from the jury trial in this case scheduled 14 to begin on April 17, 2023; and (2) Defendants Evergreen Transport Inc. and 15 Balwinder Singh’s Motion for Sanctions (ECF No. 53) which also seeks to exclude 16 certain evidence. The Court grants and denies Ms. Peterson’s Motions in Limine 17 as set forth below, and the Court denies Defendants’ Motion for Sanctions. 18 I. MOTIONS IN LIMINE 19 A. COLLATERAL SOURCE RULE 20 The parties dispute whether Defendants can introduce evidence of 21 insurance and Medicare billing rates generally in order to establish that the 22 amounts of Plaintiff’s medical bills were unreasonable. Plaintiff argues that 23 Defendants should be prohibited from entering into evidence the expert opinion 24 of Defendants’ expert, Dr. Olson, insofar as his opinions on the reasonableness 25 of Plaintiff’s medical bills “are a result of applying Medicare rates, insurance rates 26 and CPT codes that reduce Ms. Peterson’s actual medical bills to amounts that 27 Medicare pays to medical providers.” (ECF No. 52.) Plaintiff argues that 28 1 introduction of this evidence would violate the collateral source rule as well as 2 “mislead the jury into thinking that her medical expenses are being paid for by 3 Medicare[.]” (Id.) Defendants argue that they do not seek to introduce collateral 4 source evidence relating to any payments or medical provider discounts actually 5 given to Plaintiff, but rather seek to introduce evidence of insurance and Medicare 6 billing rates generally in order to establish that the amounts of Plaintiff’s medical 7 bills were unreasonable, which would not be barred under the collateral source 8 rule. 9 The collateral source rule provides that if an injured party received some 10 compensation for his injuries from a source wholly independent of the tortfeasor, 11 such payment should not be deducted from the damages which the plaintiff 12 would otherwise collect from the tortfeasor. Proctor v. Castelletti, 112 Nev. 88, 90, 13 911 P.2d 853, 854 (1996). Federal courts apply state law in matters involving the 14 collateral source rule. In re Air Crash Disaster Near Cerritos, Cal., On Aug. 31, 15 1986, 982 F.2d 1271, 1277 (9th Cir. 1992); see also Feldman v. Allstate Ins. Co., 16 322 F.3d 660, 666 (9th Cir. 2003) (“Most evidentiary rules are procedural in 17 nature, and the Federal Rules of Evidence ordinarily govern in diversity cases. 18 However, the Federal Rules do not supplant all state law evidentiary provisions 19 with federal ones. Rather, state evidence rules that are intimately bound up with 20 the state's substantive decision making must be given full effect by federal courts 21 sitting in diversity.”) (internal quotations omitted). 22 In Tri-Cnty. Equip. & Leasing v. Klinke, 128 Nev. 352 (2012), the Supreme 23 Court of Nevada stated in dicta and in a concurrence that evidence of medical 24 provider discounts, i.e. reductions in medical bills that an insurer of the injured 25 party obtains from the medical provider, fall within the ambit of the collateral 26 source rule and should be excluded. Id. at 357 n.6, 360. The Court stated, 27 “The focal point of the collateral source rule is not whether an injured party has 28 ‘incurred’ certain medical expenses. Rather, it is whether a tort victim has 1 received benefits from a collateral source that cannot be used to reduce the 2 amount of damages owed by a tortfeasor. In general, the medical provider and 3 the third-party insurer paying the medical costs on behalf of the insured tort 4 victim negotiate the write-downs. The reduced amounts are as much of a benefit 5 for which a plaintiff paid consideration in the form of insurance premiums as are 6 the actual cash payments made by his health insurance carrier to the health care 7 providers. The write-downs constitute compensation or indemnity received by a 8 tort victim from a source collateral to the tortfeasor. As a result, evidence of write- 9 downs creates the same risk of prejudice that the collateral source rule is meant 10 to combat.” Id. at 360 (internal quotations omitted); see Alexander v. Wal-Mart 11 Stores, Inc., 2013 WL 427132, at *4 (D. Nev. Feb. 1, 2013) (citing Tri-Cnty. Equip 12 & Leasing). 13 The evidence that Defendants seek to present does not fall squarely within 14 the collateral source rule, since Defendants do not seek to introduce evidence 15 regarding any medical provider discounts given to Plaintiff specifically, but rather 16 evidence of write-downs generally given for certain procedures. Nonetheless, for 17 the reasons set forth in Tri-Cnty. Equip & Leasing, the Court finds that this 18 evidence should also be excluded. Plaintiff’s Motion in Limine is granted. 19 Defendants and their experts may not allude to insurance or Medicare billing 20 rates or use them in their calculations, though Defendants remain free to contest 21 the reasonableness of the billed amounts by other means. 22 B. REPORTS OF DR. OLSON 23 Plaintiff argues that Defendants’ expert, Dr. Cash, should not be permitted 24 to reference, comment on, or utilize the reports prepared by Defendants’ previous 25 expert, Dr. Olson. Dr. Olson withdrew from his practice during the litigation and 26 Defendants submitted an Emergency Motion to Substitute Defendants’ Expert, 27 which the Court granted. (ECF Nos. 38, 41.) Defendants appear to concede that 28 Dr. Olson’s reports are not admissible at trial, however Defendants argue that 1 their substitute expert, Dr. Cash, may properly rely on information in the reports 2 created by Dr. Olson. The Court agrees that under Fed. R. Evid. 703, a report of 3 another doctor is properly considerable by an expert doctor since doctors would 4 reasonably rely on such reports when forming opinions. Plaintiff’s Motion in 5 Limine to prevent Dr. Cash from relying on the reports prepared by Dr. Olson is 6 denied. However, as explained above, Defendants are not permitted to refer to or 7 utilize insurance or Medicare billing rates to establish the reasonableness of the 8 rates billed to Ms. Peterson, so Dr. Cash is not permitted to refer to or utilize any 9 portion of Dr. Olson’s reports which are based on such billing rates. 10 C. INSURANCE 11 Plaintiff and Defendants agree that evidence of or references to any liability 12 insurance held by Plaintiff is improper. As such, the Court orders that the parties 13 shall not present any evidence or ask any questions regarding any insurance 14 coverage potentially held by Plaintiff, including regarding actions by any 15 insurance company for coverage potentially held by Plaintiff. Plaintiff’s Motion in 16 Limine is granted. 17 D.
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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * *
6 SUSAN PETERSON, Case No. 3:19-cv-00442-ART-WGC Plaintiff, 7 v. ORDER 8 EVERGREEN TRANS, INC.; 9 BALWINDER SINGH, and DOES I-X, inclusive, 10 Defendants. 11
12 Before the Court are: (1) Plaintiff Susan Peterson’s Motions in Limine to 13 exclude certain evidence (ECF No. 52) from the jury trial in this case scheduled 14 to begin on April 17, 2023; and (2) Defendants Evergreen Transport Inc. and 15 Balwinder Singh’s Motion for Sanctions (ECF No. 53) which also seeks to exclude 16 certain evidence. The Court grants and denies Ms. Peterson’s Motions in Limine 17 as set forth below, and the Court denies Defendants’ Motion for Sanctions. 18 I. MOTIONS IN LIMINE 19 A. COLLATERAL SOURCE RULE 20 The parties dispute whether Defendants can introduce evidence of 21 insurance and Medicare billing rates generally in order to establish that the 22 amounts of Plaintiff’s medical bills were unreasonable. Plaintiff argues that 23 Defendants should be prohibited from entering into evidence the expert opinion 24 of Defendants’ expert, Dr. Olson, insofar as his opinions on the reasonableness 25 of Plaintiff’s medical bills “are a result of applying Medicare rates, insurance rates 26 and CPT codes that reduce Ms. Peterson’s actual medical bills to amounts that 27 Medicare pays to medical providers.” (ECF No. 52.) Plaintiff argues that 28 1 introduction of this evidence would violate the collateral source rule as well as 2 “mislead the jury into thinking that her medical expenses are being paid for by 3 Medicare[.]” (Id.) Defendants argue that they do not seek to introduce collateral 4 source evidence relating to any payments or medical provider discounts actually 5 given to Plaintiff, but rather seek to introduce evidence of insurance and Medicare 6 billing rates generally in order to establish that the amounts of Plaintiff’s medical 7 bills were unreasonable, which would not be barred under the collateral source 8 rule. 9 The collateral source rule provides that if an injured party received some 10 compensation for his injuries from a source wholly independent of the tortfeasor, 11 such payment should not be deducted from the damages which the plaintiff 12 would otherwise collect from the tortfeasor. Proctor v. Castelletti, 112 Nev. 88, 90, 13 911 P.2d 853, 854 (1996). Federal courts apply state law in matters involving the 14 collateral source rule. In re Air Crash Disaster Near Cerritos, Cal., On Aug. 31, 15 1986, 982 F.2d 1271, 1277 (9th Cir. 1992); see also Feldman v. Allstate Ins. Co., 16 322 F.3d 660, 666 (9th Cir. 2003) (“Most evidentiary rules are procedural in 17 nature, and the Federal Rules of Evidence ordinarily govern in diversity cases. 18 However, the Federal Rules do not supplant all state law evidentiary provisions 19 with federal ones. Rather, state evidence rules that are intimately bound up with 20 the state's substantive decision making must be given full effect by federal courts 21 sitting in diversity.”) (internal quotations omitted). 22 In Tri-Cnty. Equip. & Leasing v. Klinke, 128 Nev. 352 (2012), the Supreme 23 Court of Nevada stated in dicta and in a concurrence that evidence of medical 24 provider discounts, i.e. reductions in medical bills that an insurer of the injured 25 party obtains from the medical provider, fall within the ambit of the collateral 26 source rule and should be excluded. Id. at 357 n.6, 360. The Court stated, 27 “The focal point of the collateral source rule is not whether an injured party has 28 ‘incurred’ certain medical expenses. Rather, it is whether a tort victim has 1 received benefits from a collateral source that cannot be used to reduce the 2 amount of damages owed by a tortfeasor. In general, the medical provider and 3 the third-party insurer paying the medical costs on behalf of the insured tort 4 victim negotiate the write-downs. The reduced amounts are as much of a benefit 5 for which a plaintiff paid consideration in the form of insurance premiums as are 6 the actual cash payments made by his health insurance carrier to the health care 7 providers. The write-downs constitute compensation or indemnity received by a 8 tort victim from a source collateral to the tortfeasor. As a result, evidence of write- 9 downs creates the same risk of prejudice that the collateral source rule is meant 10 to combat.” Id. at 360 (internal quotations omitted); see Alexander v. Wal-Mart 11 Stores, Inc., 2013 WL 427132, at *4 (D. Nev. Feb. 1, 2013) (citing Tri-Cnty. Equip 12 & Leasing). 13 The evidence that Defendants seek to present does not fall squarely within 14 the collateral source rule, since Defendants do not seek to introduce evidence 15 regarding any medical provider discounts given to Plaintiff specifically, but rather 16 evidence of write-downs generally given for certain procedures. Nonetheless, for 17 the reasons set forth in Tri-Cnty. Equip & Leasing, the Court finds that this 18 evidence should also be excluded. Plaintiff’s Motion in Limine is granted. 19 Defendants and their experts may not allude to insurance or Medicare billing 20 rates or use them in their calculations, though Defendants remain free to contest 21 the reasonableness of the billed amounts by other means. 22 B. REPORTS OF DR. OLSON 23 Plaintiff argues that Defendants’ expert, Dr. Cash, should not be permitted 24 to reference, comment on, or utilize the reports prepared by Defendants’ previous 25 expert, Dr. Olson. Dr. Olson withdrew from his practice during the litigation and 26 Defendants submitted an Emergency Motion to Substitute Defendants’ Expert, 27 which the Court granted. (ECF Nos. 38, 41.) Defendants appear to concede that 28 Dr. Olson’s reports are not admissible at trial, however Defendants argue that 1 their substitute expert, Dr. Cash, may properly rely on information in the reports 2 created by Dr. Olson. The Court agrees that under Fed. R. Evid. 703, a report of 3 another doctor is properly considerable by an expert doctor since doctors would 4 reasonably rely on such reports when forming opinions. Plaintiff’s Motion in 5 Limine to prevent Dr. Cash from relying on the reports prepared by Dr. Olson is 6 denied. However, as explained above, Defendants are not permitted to refer to or 7 utilize insurance or Medicare billing rates to establish the reasonableness of the 8 rates billed to Ms. Peterson, so Dr. Cash is not permitted to refer to or utilize any 9 portion of Dr. Olson’s reports which are based on such billing rates. 10 C. INSURANCE 11 Plaintiff and Defendants agree that evidence of or references to any liability 12 insurance held by Plaintiff is improper. As such, the Court orders that the parties 13 shall not present any evidence or ask any questions regarding any insurance 14 coverage potentially held by Plaintiff, including regarding actions by any 15 insurance company for coverage potentially held by Plaintiff. Plaintiff’s Motion in 16 Limine is granted. 17 D. CHARACTERIZATION OF THE CASE 18 Plaintiff argues that the Court should enter an order preventing Defendants 19 from referring to this case as “attorney-driven litigation” or as a “medical buildup” 20 case and generally prohibiting Defendants from arguing that “Plaintiff’s attorneys 21 directed Plaintiff’s medical care, and that Plaintiff’s physicians performed 22 unnecessary, unwarranted, and non-indicated medical procedures.” Defendants 23 have agreed not to use the terms “attorney-driven,” “medical buildup,” and 24 “conspiracy,” but assert that they remain entitled to impeach Plaintiff’s witnesses 25 by introducing evidence of partiality, which, in this case, involves evidence 26 relating to the frequency in which Plaintiff’s doctors involve themselves in 27 litigation and whether Plaintiff was referred to her doctors by her attorneys. 28 Relevant evidence is admissible if it is not barred by a specific evidentiary 1 rule and if it is not unduly prejudicial relative to its probative value. The 2 credibility of witnesses is generally relevant, and evidence of bias or partiality is 3 generally admissible to demonstrate or impeach credibility. Evidence that a 4 witness has a medical lien or was referred to by plaintiff’s counsel is relevant to 5 show bias and challenge credibility. See Ruiz v. Walmart Inc., 2021 WL 5759043, 6 at *3–4 (C.D. Cal. Oct. 28, 2021) (“Evidence that a testifying medical provider 7 holds a lien is relevant to show that provider may have an interest in inflating 8 bills or testifying in favor of Plaintiff to ensure payment. Additionally, the 9 existence of a regular referral relationship between a plaintiff's lawyer and a 10 testifying expert could impact that expert's credibility.”) (internal quotations 11 omitted); Alexander v. Wal-Mart Stores, Inc., 2013 WL 427132, at *6 (D. Nev. Feb. 12 1, 2013) (denying similar motion in limine). However, where there was no evidence 13 of a referral relationship that predated the plaintiff’s referral or a medical lien, 14 courts have prohibited introduction of this evidence. E.g., Dillon Cullinan v. City 15 of Los Angeles, 2022 WL 18216097, at *1 (C.D. Cal. July 27, 2022). 16 Defendants have already agreed not to use certain terms which may be 17 unduly prejudicial. The parties appear to contest, however, whether there is any 18 evidence that Ms. Peterson’s witnesses had a preexisting referral relationship or 19 treat on medical liens. (Compare ECF No. 52 at 6 (arguing that Ms. Peterson’s 20 treatment was medically necessary), with ECF No. 54 at 5 (“Plaintiff sought 21 medical attention from doctors who enjoy referral relationships and treat on 22 liens.”).) At this time the Court will not issue a general prohibition preventing 23 Defendants from examining Plaintiff’s witnesses regarding their referral 24 relationships and involvement in litigation as well as whether there was a medical 25 lien. Nonetheless, the Court will entertain and may grant specific objections 26 relating to these topics during trial. Furthermore, if there is no evidence of a 27 preexisting referral relationship or medical lien, Defendants will not be permitted 28 to refer to referral relationships or medical liens or imply that they may have 1 existed in this case. Plaintiff’s Motion in Limine is granted to the extent of 2 Defendants’ agreement not to use certain terms and denied in all other aspects. 3 E. DEFENDANTS’ FINANCIAL CONDITION 4 Plaintiff argues that Defendants should be prevented from referencing their 5 financial condition as it relates to their ability to pay for Plaintiff’s damages, 6 including references to the existence or non-existence of insurance which would 7 cover the judgment. Defendants agree and further request that Plaintiff be 8 prohibited from referencing her financial condition as well. The Court finds that 9 the financial condition of either party is not relevant to this matter. The Court 10 grants Plaintiff’s Motion in Limine and further orders that Plaintiff shall not 11 reference her financial condition during trial. 12 F. PRIOR INJURIES 13 Plaintiff argues that “all evidence regarding prior unrelated injuries or 14 treatment should be excluded[,]” including evidence relating to a prior wrist injury 15 and a gallbladder surgery. Defendants agree not to reference the wrist injury or 16 gallbladder surgery but contend that evidence of prior spinal pain and 17 degeneration as well as psychological issues are relevant to this case. 18 Evidence of prior injuries or preexisting conditions is relevant to the issue 19 of whether medical expenses were caused by the injury at issue or stem from the 20 prior injuries or preexisting conditions, provided that the defendant presents 21 evidence of a causal connection between the prior injuries or conditions and the 22 injury at issue. Gresham v. Petro Stopping Centers, LP, 2011 WL 1748569, at *4 23 (D. Nev. Apr. 25, 2011) (explaining the relevance of past injuries and conditions 24 and declining to issue a ruling in limine on whether to exclude prior injury 25 evidence because there was not enough context for the court to determine 26 whether or not the prior injury evidence was related to the injury at issue); see 27 also FGA, Inc. v. Giglio, 128 Nev. 271, 283 (2012) (“A prior injury or preexisting 28 condition may be relevant to the issues of causation and damages in a personal 1 injury action. In order for evidence of a prior injury or preexisting condition to be 2 admissible, a defendant must present by competent evidence a causal connection 3 between the prior injury and the injury at issue.”) (internal citations omitted). 4 The Court will grant Plaintiff’s Motion in Limine to the extent of Defendants’ 5 agreements and as to psychological conditions, but will not enter an order at this 6 stage generally prohibiting Defendants from inquiring into spinal conditions that 7 predate the injury and which may have influenced Plaintiff’s conditions and 8 course of treatment after the accident. Defendants have not made a prima facie 9 showing of a causal connection between any psychological condition and the 10 injuries at issue, nor is such a connection obvious or natural, such as the 11 connection a potential prior spinal injury has to a claimed spinal injury. At 12 present, the Court lacks sufficient information concerning the prior spinal 13 conditions to evaluate their relationships to the injuries at issue. The Court will 14 hear evidence at calendar call on the causal relationships of the alleged prior 15 spinal injuries at issue before determining its admissibility. Defendants remain 16 obligated to show that all evidence is relevant and to support their evidence with 17 proper foundation. 18 II. MOTION FOR SANCTIONS 19 Defendants seek an order of sanctions excluding evidence of certain 20 medical care received by Plaintiff from April 15, 2021 to August 30, 2022, 21 allegedly proffered by Plaintiff after the discovery period closed on April 15, 2021. 22 (ECF No. 53.) Defendants also state that Plaintiff failed to timely disclose a 23 computation of damages for future medical expenses, past wage loss, future loss 24 of wages and earning capacity, past and future loss of household services, past 25 and future loss of consortium claims. Plaintiff responds that this care is simply 26 the continuation of the care that she was receiving before the discovery period 27 closed, which Plaintiff has timely disclosed and supplemented throughout this 28 case, and that there is no prejudice to Defendants by the timing of this disclosure 1 || since it is Defendants’ position that all the care she received after June 11, 2017 2 || was not related to the subject accident. (ECF No. 56.) 3 Defendants’ Motion for Sanctions was filed on September 23, 2022, when 4 || this case was set for trial beginning on November 1, 2022. At that time, the 5 || disclosure of Plaintiffs supplemental information, which Plaintiff provided on 6 || September 6, 2022, was 56 days before trial. However, after the filing of 7 || Defendants’ Motion but before trial, the trial date was rescheduled to April 17, 8 || 2023, due to a scheduling conflict with this Court’s criminal docket. (ECF No. 9 || 59.) This rescheduling gave Defendants an additional 167 days to evaluate this 10 || evidence. For this reason, and because the Court agrees with Plaintiff that 11 || Defendants were on notice that Plaintiffs care would be continuing, the Court 12 || finds that Plaintiffs submission of the additional evidence was harmless and 13 || substantially justified. Defendants’ Motion for Sanctions is denied. 14 However, if Plaintiff has not yet provided a calculation of damages as 15 || required by Fed. R. Civ. P. 26(a)(1)(A)(iii), Plaintiff is ordered to do so as soon as 16 || practicable. 17 18 It is so ordered. 19 20 DATED THIS 13t# day of February 2023. 21 22 en Ye Nossa 24 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 25 26 27 28