UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) LARRY D. RICE, JR., ) ) Plaintiff, ) ) v. ) Civil Action No. 09-310 (RMC) ) THE DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) )
MEMORANDUM OPINION REGARDING MEDICAL BILLS AND NEGLIGENCE CLAIMS
This case concerns the arrest and shooting of Larry D. Rice, Jr., by Officers John
Stathers and Derek Starliper of the District of Columbia Metropolitan Police Department. Trial
begins next Monday, February 28, 2011. As a result of arguments at the pretrial conference on
February 10, 2011, the Court allowed the parties to file additional motions in limine — regarding
the admission into evidence of Mr. Rice’s medical bills and regarding Mr. Rice’s claims of
negligence and negligent infliction of emotional distress. The Court’s reasoning on the outstanding
motions are addressed here; to assist the parties’ trial preparation, the Court has already issued a
Minute Entry Order notifying them of its holdings. See Minute Order filed Feb. 24, 2011. For
background facts, the reader is directed to the Court’s earlier Memorandum Opinion regarding
Defendants’ motion for summary judgment on claims relating to false arrest. See Mem. Op. [Dkt.
# 67]. I. Plaintiff’s Motion to Introduce Medical Bills At Trial
Mr. Rice was seriously injured when he was shot in the stomach. He underwent
surgery, and he spent two episodes in Washington area hospitals. The costs for his medical care
were paid or will be paid by D.C. Medicaid; those in excess of what Medicaid pays were (or will be)
written off by the providers.1 Mr. Rice moves to introduce “any and all bills . . . to assist the jury in
determining not only the amount of damages to award Plaintiff, if any, but also to assist them in
assessing the severity of the injuries sustained by Plaintiff,” in his case in chief against the District
of Columbia and the Officers. Pl.’s Mot. to Introduce Medical Bills [Dkt. # 60] at 1. He argues that
“the jury would . . . be precluded from rendering a fair award if they did not have the benefit of
considering all expenses incurred as a result of this incident.” Id. at 5. The Court will deny the
motion.
A. Introduction of Medical Bills Against the District of Columbia
Plaintiff may not introduce the medical bills as part of his case against the District
of Columbia. The medical bills do not represent “expenses incurred” by Plaintiff as a result of this
incident. See McAmis v. Wallace, 980 F. Supp. 181, 185 (W.D. Va. 1997) (cited with approval in
Hardi v. Mezzanotte, 818 A.2d 974, 983 (D.C. 2003)). Presenting these bills to the jury as if Plaintiff
were responsible himself for their payment invites confusion and a potentially erroneous verdict.
Further, “the injured party must establish personal liability, at some time, for th[e]
amount’” he seeks to recover for medical expenses. Hardi, 818 A.2d at 983 (quoting McAmis, 980
F. Supp. at 185). “[I]f all medical expenses have been (or will be) paid by Medicaid, plaintiff . . .
1 The District of Columbia was able to obtain information from its agency that administers the Medicaid program, indicating that Medicaid paid for the treatment provided to Plaintiff. See Defs.’ Opp’n [Dkt. # 65] at 2.
-2- shall not seek recovery of such expenses” against the District of Columbia. District of Columbia
v. Jackson, 451 A.2d 867, 874 (D.C. 1982) (emphasis added).2 Only if a plaintiff shares liability
for his medical bills beyond what Medicaid pays does the court “require special findings by the jury
as to the amount of medical expenses awarded as part of each verdict [and] . . . then . . . allocate to
each special finding the amount, if any, paid (or to be paid) by Medicaid,” entering a judgment that
deducts the Medicaid amount(s) so allocated. Id. at 874. Plaintiff invokes the “collateral source
doctrine,” which provides that an injured party may recover in full from a wrongdoer regardless of
anything the injured party may obtain from a collateral source wholly unconnected with the
wrongdoer, such as from an insurer. Hudson v. Lazarus, 217 F.2d 344, 346 (D.C. Cir. 1954).
Medicaid, however, is not a collateral source vis-a-vis the District of Columbia, as Medicaid is not
“wholly independent” of the District. Jackson, 451 A.2d at 874. The District established and
administers its Medicaid program with some matching funds from the federal government. Id.
Thus, Plaintiff may not introduce his medical bills against the District of Columbia.
B. Introduction of Medical Bills Against the Officers
A different analysis applies when considering whether Plaintiff may introduce his
medical bills as part of his case in chief against the Officers, who are sued individually. The District
argues that it has conceded that the Officers were acting within the scope of their authority and that
they, therefore, should be treated as the District of Columbia under the collateral source rule. The
Court is not persuaded that the alleged torts and constitutional violations3 for which Plaintiff seeks
2 Notably, the District of Columbia was the only defendant in Jackson, even though the claims were based on an alleged false arrest and assault by police officers. 3 The Court recognizes that the District of Columbia cannot be held liable for the alleged constitutional torts of police officers on the basis of respondeat superior. Monell v. Dep’t of Social
-3- to hold the Officers personally responsible can be squeezed into that tent.
A “[d]efendant is not permitted to avoid compensating his victim merely because [he]
was able to qualify for Medicaid benefits.” McAmis, 980 F. Supp. at 185. When a defendant is not
the government entity funding Medicaid, a Medicaid beneficiary/plaintiff can recover what Medicaid
paid for his treatment as if Medicaid were private insurance. Id. However, a plaintiff may not
recover amounts in excess of what Medicaid paid; a plaintiff cannot recover for charges written off
by medical providers. The collateral source rule does not apply to write off amounts because the
plaintiff is not personally liable for such amounts and “did not incur the Medicaid discount.” Id. at
184-85.
Thus, Mr. Rice might recover from the Officers “the actual costs of medical care
borne by Medicaid. These are the amounts that [a plaintiff] has incurred for the purposes of the
collateral source rule.” Id. at 185 (citing Rayfield v. Lawrence, 253 F.2d 209, 213 (4th Cir. 1958)
and Manko v. United States, 830 F.2d 831, 836 (8th Cir. 1987)). Plaintiff, however, indicates that
he does not know what actual costs were paid by Medicaid; all he has are the gross bills from
medical care providers. These gross bills are not admissible at trial.4
Servs., 436 U.S. 658, 694 (1978); Morgan v. District of Columbia, 550 F. Supp. 465, 468 (D.D.C. 1982), aff’d without op., 725 F.2d 125 (D.C. Cir. 1983) (Table). 4 At the pretrial conference, the Court specifically directed Plaintiff to provide a release for medical records to Defendants so that they could obtain his full Medicaid record to find out exactly how his medical bills were handled. See Tr. of Feb. 10, 2011 Pretrial Conference (informal copy) at 31 (“[H]ave him sign a release so that D.C. can obtain information. Then we’ll know before trial whether his bills have already been paid.”); at 31-32 (“Let’s not argue about whether there was [a release] two years ago. We need to know whether or not the plaintiff’s bills for these hospitalizations have already been covered one way or another.”); at 31 (“[P]roduce an up-to-date release from Mr. Rice so that the government can find out [if his medical bills have been paid]”); at 35 (“Would you get a release from your client so that D.C. can find out what’s been paid and what has not.”). Plaintiff never provided the release ordered by the Court. Trial starts in one more
-4- Plaintiff seeks to present “any and all” medical bills to the jury and asks the Court to
determine, after trial, what amounts should be deducted from a jury award because it was already,
or will be, paid by Medicaid. See Pl.’s Mot. [Dkt. #60] at 2 (citing Reid v. District of Columbia, 391
A.2d 776, 778 (D.C. 1978) (whether a setoff is proper is a matter of law for the court’s determination
and the court should adjust the jury’s verdict accordingly), vacated in part on other grounds, 399
A.2d 1293 (D.C. 1978). But that is not the question vis-a-vis a non-governmental defendant. Under
the analysis of McAmis, Plaintiff may recover from the Officers (and not from the District) what
Medicaid paid and no more. To allow a more generous recovery would be an impermissible
windfall to Plaintiff.
Reid v. District of Columbia is not to the contrary. In Reid, evidence that the plaintiff
had failed to apply for Medicaid benefits, and thus, arguably, failed to mitigate his damages, was
admitted before the jury in error. Even if the plaintiff’s bills were fully paid by Medicaid, the court
found that this fact still should not have been presented to the jury because it was “an invitation for
the jury to speculate that if they find no liability, plaintiff will still be reimbursed for his losses
through Medicaid. There was no evidence that Medicaid would actually pay the bills . . . .” 391
A.2d at 781.
In accordance with Reid, the Court also will preclude the parties from mentioning
Medicaid to the jury. Reid, 391 A.2d at 781. There is no need. The jury can be told that there is no
business day. Plaintiff’s failure to provide a signed release is baffling. Counsel breathes not a murmur of explanation or excuse — or any information on the subject at all, even though they assured the Court they would obtain specifics. Plaintiff’s failure to supply a release for his medical records, could be the subject of sanctions. See Fed. R. Civ. P. 37(b)(2)(A) (if a party fails to obey an order to provide or permit discovery, the court may issue further just orders). The Court declines to sanction Plaintiff at this juncture as it is time to concentrate on trial.
-5- dispute about (or the parties have stipulated to) Plaintiff’s medical expenses. Without specifying the
amount at issue, the jury can be asked to decide whether Plaintiff should be awarded compensatory
damages for his medical expenses as against the Officers. His gross medical bills will be excluded
from evidence against all Defendants and no mention will be made to the jury by either party of
medical costs, payments, reimbursements, Medicaid, or insurance.
II. Plaintiff’s Motion for Appropriate Relief on Negligence Claims
A little history of this case is necessary to present this issue. The initial Complaint
in this matter was filed on February 18, 2009. See Compl. [Dkt. #1]. Count IV alleged negligence
against the District of Columbia; Count V alleged gross negligence against Officer Stathers; Counts
IX to XI alleged malicious prosecution against each Officer and the District of Columbia; Counts
XII to XIV alleged intentional infliction of emotional distress against each Officer and the District
of Columbia; and Counts XV to XVI alleged negligent infliction of emotional distress against each
Officer and the District of Columbia. The District of Columbia responded with a pre-discovery
motion to dismiss certain counts on May 5, 2009. The Court entered its Opinion and Order on June
17, 2009, dismissing, inter alia, Counts IV (negligence), V (gross negligence), and IX to XI
(malicious prosecution). See Mem. Op. & Order [Dkt. ## 14 & 15]. The District of Columbia
answered the Complaint on June 30, 2009, and discovery began in August 2009, and, after numerous
extensions, was completed in June or July 2010.
However, an Amended Complaint was filed on December 22, 2009. The Amended
Complaint set forth twenty-one counts, including Counts IV and V alleging negligence against
Officer Stathers and the District of Columbia; Counts IX and X, alleging malicious prosecution; and
Counts XIV and XV alleging negligent infliction of emotional distress against Officer Stathers and
-6- the District of Columbia. See Am. Compl. [Dkt. # 29]. By Opinion and Order dated June 7, 2010,
the Court again dismissed the negligence counts and again dismissed the malicious prosecution
counts. See Mem. Op. & Order [Dkt. ## 39 & 40].
Before the pretrial conference, Defendants submitted a motion to dismiss the
negligent infliction of emotional distress claims, see Defs.’ Supplemental Mot. to Dismiss [Dkt.
# 54], which the Court denied. See Order [Dkt. # 58].
After the pretrial conference, Plaintiff filed a “Motion for Appropriate Relief” on
February 15, 2011, asking the Court to reconsider its June 2010 dismissal of Counts IV and V of the
Amended Complaint. Plaintiff asks the Court to permit him to proceed to trial on a theory that
Officer Stathers negligently used his gun and that the District of Columbia is liable for such
negligence under the doctrine of respondeat superior. Plaintiff sought this relief in light of the
Court’s denial of Defendants’ motion to dismiss the negligent infliction of emotional distress claims.
See Pl.’s Mot for Appropriate Relief [Dkt. # 62]; see also Pl.’s Reply [Dkt. # 66]. Defendants
oppose the reinstatement of the negligence claims and also, on the basis of “clear error,” ask the
Court to reconsider its denial of Defendants’ motion to dismiss the negligent infliction of emotional
distress claims. See Defs.’ Opp’n [Dkt. # 64] at 2.
Federal Rule of Civil Procedure 54(b) governs reconsideration of orders that do not
constitute final judgments in a case. Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C.
2005). Rule 54(b) provides that “any order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised
at any time before the entry of judgment adjudicating all the claims and all the parties’ rights and
liabilities.” Fed. R. Civ. P. 54(b). Revision may be permitted when the Court has “‘patently
-7- misunderstood a party, has made a decision outside the adversarial issues presented to the Court by
the parties, has made an error not of reasoning but of apprehension, or where a controlling or
significant change in the law or facts [has occurred] since the submission of the issue to the Court.’”
Singh, 383 F. Supp. 2d at 101 (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)).
Plaintiff never filed motions for reconsideration of the Court’s earlier dismissals of
the negligence claims. He only raised the issue, woefully late, at the pretrial conference, when he
finally clarified his various theories of liability. However, the Court finds that Defendants are not
prejudiced because the current claims were all outstanding during the last six months of discovery
and the relevant evidence was available for summary judgment motions. Questions regarding the
intent and conduct of Officer Stathers and the use of his gun during the arrest of Mr. Rice have
always been at issue in this case, as those matters are critical to all of Plaintiff’s claims. Moreover,
Defendants do not oppose Plaintiff’s motion on grounds of prejudice.
Therefore, despite the late hour and in the interests of justice, the Court will grant the
motion for reconsideration of the dismissals of Counts IV and V of the Amended Complaint,
conditioned on Plaintiff having a qualified and appropriate expert witness on the applicable
standard(s) of care.
Having further studied the Amended Complaint, in light of its own research, the
Court concludes that it erred. Counts IV and V allege sufficient negligent action by Officer Stathers,
separate and apart from the alleged excessive force and battery allegations:
64. Upon approaching Plaintiff attempting to flee out the back window, Officer Stathers shot Plaintiff, negligently discharging his firearm, to stop Plaintiff on mere suspicion of a crime simply because Plaintiff attempted to run away.
-8- 65. As a direct and proximate result of Officer Stathers’ negligent handling of his firearm, Plaintiff suffered severe physical and substantial economic damages . . . .
Am. Compl. ¶¶ 64 & 65 (emphasis added). This alternative theory of liability must be allowed to
proceed so long as (1) Plaintiff presents a qualified and appropriate expert witness on the applicable
standard(s) of care, of whom Defendants have had notice, an expert report, and an opportunity to
depose5 and (2) Plaintiff presents sufficient evidence of negligence independent of his excessive
force claim. See Scales, 973 A.2d at 731; see also Reed v. District of Columbia, 474 F. Supp. 2d
163, 173-74 (D.D.C. 2007) (a plaintiff has advanced a distinct claim of negligence where he alleges
that a misperception of fact may have played a part in the decision to fire a weapon.)
This analysis does not save the negligent infliction of emotional distress claims.
While Count XIV in the Amended Complaint is so titled, it alleges that Officer Stathers’ conduct
was “negligent and in deliberate disregard of a high degree of probability that emotional distress
would result to Plaintiff” and was “extreme and outrageous.” Am. Compl. ¶¶ 122, 123. Further,
“[a]s a direct and proximate result of Officer Stathers’ extreme and outrageous conduct, Plaintiff has
suffered . . . .” Id. ¶ 124. “Deliberate disregard” and “extreme and outrageous” conduct are
intentional, not negligent, acts. While Plaintiff includes the word “negligent” to describe the basis
for Count XIV, his terminology throughout alleges only intentional acts. “[U]se of the terms
‘careless and negligently,’ without more, are conclusory and do not raise a cognizable claim of
negligence.” District of Columbia v. Chinn, 839 A.2d 701, 708 (D.C. 2003).
5 Without an expert witness on the relevant standard(s) of care, Plaintiff cannot proceed on these negligence claims. See Scales v. District of Columbia, 973 A.2d 722, 730 (D.C. 2009) (expert testimony is required to prove the standard of care in case regarding excessive force and negligence by police).
-9- Under D.C. law, the elements of a claim for negligent infliction of emotional distress
are: (1) the plaintiff was in the zone of physical danger, which was (2) created by the defendant’s
negligence, (3) the plaintiff feared for his own safety, and (4) the emotional distress so caused was
serious and verifiable. Estate of Manook v. Research Triangle Inst., Int’l & Unity Resources Grp.,
693 F. Supp. 2d 4, 21 (D.D.C. 2010). “Serious and verifiable” means that the distress must have
manifested in an external condition or physical symptoms. Jones v. Howard Univ., Inc., 589 A.2d
419, 424 (D.C. 1991).
It is not enough, as Plaintiff argues, that each Count “begins by incorporating the
allegations raised in all prior paragraphs of the complaint.” Pl.’s Reply [Dkt. # 66] at 2. An
individual count must contain a plausible recitation of enough facts to support it. See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (to survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face”).
The earlier allegation that Officer Stathers negligently used his weapon does not save a later count
that alleges “deliberate disregard” and “extreme and outrageous” conduct and that does not allege
negligence. Further, the Amended Complaint fails to allege the other elements of a negligent
infliction of emotional distress claim. There are no allegations that Plaintiff feared for his own safety
and suffered serious and verifiable distress as a result. This is another example of counsel’s failure
to distinguish the bases for Plaintiff’s claims. The eve of trial is too late to amend the Complaint.
Because Count XIV of the Amended Complaint does not distinguish between negligent and
intentional acts, does not identify any specific act that was allegedly negligent, and fails to make out
a claim of negligent infliction of emotional distress, the Count will be dismissed.
The Court also has reconsidered its ruling that Count XV, alleging negligent infliction
-10- of emotional distress against the District of Columbia, can proceed. Count XV alleges:
126. Officer Stathers shot Plaintiff in the abdomen.
127. While Plaintiff was shot and injured, Metropolitan Police officers continuously yelled profanities at Plaintiff, demanding that he shut his mouth, despite the fact that Plaintiff was only indicating that he had been shot.
128. At no time did any of the Metropolitan Police officers on the scene attempt to administer first aid to Plaintiff.
129. This negligent conduct was perpetrated by the agents and employees of the District of Columbia and within the scope of their employment.
130. As a result of negligent conduct of Metropolitan Police officers, Plaintiff experienced severe emotional distress.
Am. Compl. ¶¶ 126-130.6 The District convincingly argues that police officers owe no “duty of
care” to avoid yelling profanities at an arrested suspect. See Chinn, 839 A.2d at 708 (“it is
impossible to negligently commit assault”). Further, police officers owe no duty to administer
medical aid to persons they have shot, given the risks of encountering blood-borne pathogens. See
Toy v. District of Columbia, 549 A.2d 1, 5 n.7 (D.C. 1988) (trial court found that police have no duty
to administer CPR and thereby risk exposure to infectious diseases). Because Count XV fails to
allege an actionable claim of negligent infliction of emotional distress against the District of
Columbia, it will be dismissed.
6 Immediately after the shooting, Officer Stathers called for an ambulance, and emergency medical technicians soon arrived. See Defs.’ Opp’n [Dkt. # 64], Ex. A1 (Stathers Dep.) at 43. Count XV, alleging negligent infliction of emotional distress against the District of Columbia, does not rely on any action by Officer Stathers. It merely mentions unidentified officers who yelled at Plaintiff and failed to administer first aid.
-11- III. CONCLUSION
As explained above, Plaintiff’s motion to introduce medical bills [Dkt. # 60] will be
denied. Plaintiff’s motion for appropriate relief [Dkt. #62] will be granted in part and denied in part
as follows: Counts IV and V alleging negligence against Officer Stathers and the District of
Columbia will be reinstated, and Counts XIV and XV alleging negligent infliction of emotional
distress against Officer Stathers and the District of Columbia will be dismissed. A memorializing
Order accompanies this Memorandum Opinion.
Date: February 25, 2011 /s/ ROSEMARY M. COLLYER United States District Judge
-12-