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  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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MARK S. KANNETT, SBN 104572
PAUL S. LECKY, SBN 154480

2 | BECHERER KANNETT & SCHWEITZER ELECTRONICALLY
The Water Tower FILED
3 | 1255 Powell Street i ‘torn
“ Superior Court of California,
4 Emeryville, CA 94608-2604 County of San Francisco
Telephone: (510) 658-3600 OCT 07 2010
5 Facsimile: (510) 658-1151 Clerk of the Court
BY: EDNALEEN JAVIER
6 Attorneys for Defendant Deputy Clerk
JOHNSON CONTROLS, INC.
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SAN FRANCISCO-COURT OF UNLIMITED JURISDICTION
9 °
10 LOUIS CASTAGNA, CASE NO.: CGC 07 — 274230
1 Plaintiff, MOTION /N LIMINE NO. 3
12 v. DEFENDANT JOHNSON CONTROL ING.’S
MOTION IN LIMINE TO LIMIT SPECIAL
13 ASBESTOS DEFENDANTS (BP), et al. DAMAGES FOR MEDICAL EXPENSES TO
THOSE ACTUALLY PAID
14 Defendants.
15 Compliant Filed: June 6, 2007
16 Trial: October 12, 2010
17
18
19 I INTRODUCTION
20 JOHNSON CONTROLS, ING. ("JCI") hereby Moves /n Limine for an Order limiting

21 | evidence of special damages for medical expenses to those actually incurred by Plaintiff.

22 I ARGUMENT

23 There is no question that the appropriate measure of recovery for a person injured by
Kennet 24 | another's tortuous conduct is the reasonable value of medical care and services reasonably
Semetner 25 | required and attributable to the tort. BAJI No. 14.10, CACI 3903A.
Fein ox 26 In Hanif v. Housing Authority of Yolo County (1988) 200 Cal.App.3d 635, the court

510-658-3600
27 examined whether the ‘reasonable value’ measure of recovery means that an injured plaintiff

1

dale

MIL No, 2: JOHNSON CONTROL'’S MOTION IN LIMINE TO LIMIT SPECIAL
DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY PAID_ Becherer
Kannett &
Schweitzer

1285

Powel St
Emeryville, CA
94608
510-658-3600

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may recover from the torffeasor more than the actual amount he paid or for which he incurred
liability for past medical costs and services. Hanif, 200 Cal.App.3d at 640. The Hanif Court
stated that “an award of damages for past medical expenses in excess of what the medical care
and service actually cost constitutes overcompensation. Following an analysis of numerous
cases the Hanif Court stated that “a plaintiff is entitled to recover up to and no more than, the
actual amount expended or incurred for past medical services so long as the amount is
reasonable.” Hanif, 200 Cal.App.3d at 641, 643 (Emphasis original.)

The Hanif Court stated that the comment merely restates the collateral source rule,
which was not at issue, rather, the issue was the meaning of the term “reasonable value” when
applied to past medical services. “Reasonable value’ is a term of limitation, not
aggrandizement.” (Citing Civil Code § 3359—Damages to be Reasonable.) “Thus, when
evidence shows a sum certain to have been paid or incurred for past medical care and services,
whether by the plaintiff or by an independent source, that sum certain is the most the plaintiff may
recover for that care despite the fact it may have been less than the prevailing market rate.”
Hanif, 200 Cal. App.3d 641.

In Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, the
Court of Appeal reduced the trial court's award of $17,168 for medical expenses to $3,600.
The $17,168 was based on California Pacific Medical Center's (‘CPMC”) normal rates.
However, plaintiff was a participant in an employer-sponsored health plan administered by
Blue Cross. At the relevant time Blue Cross had a contract with CPMC under which CPMC.
agreed that Blue Cross would pay reduced rates for specified services rendered to members,
and CPMC would accept Blue Cross’s payment as payment in full for those services. Under the
terms of agreement CPMC accepied $3,600 as payment in full for plaintiffs medical treatment.

A more recent case recognizing the Hanif/Nishihama reduction is Greer v.
Buzgheia (2006) 141 Cal.App.4th 1150. There, the court held that “Nishihama and Hanif
stand for the principle that it is error for the plaintiff to recover medical expenses in excess of
the amount paid or incurred,” not that the evidence of the full of cost of medical services may

not be admitted. Supra at 141 Cal.App.4th at 1157. Furthermore, the Greer decision held that
2

MIL No. 3: JOHNSON CONTROL'S MOTION IN LIMINE TO LIMIT SPECIAL
DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY PAIDBecherer
Kannett &
Schweitzer

510-658-3600

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aN fF Oo eAN AA PB WON FO

a defendant must request that the verdict form requires the trier of fact distinguish medical
expenses from other economic damages.

A more recent case supporting the defendant's position is Olsen v. Reid (2008) 164
Cal.App.4th 200. In that case, the injured plaintiff was permitted to introduce the full amount of
medical bills into evidence for consideration by the jury. The trial judge stated that the
determination of the past medical award would occur post-verdict. A judgment was entered
after the verdict, and defendant filed a Motion for Judgment not Withstanding the Verdict.
The Motion was granted and the court reduced the medical damages. On appeal, this decision
was reversed. The Fourth District, Division Three, held that the ambiguous documentation
at trial did not constitute evidence of what amount was actually paid by the private insurer,
which is the correct measure of damages. Consistent with the other legal authorities cited
herein, the amount of the actual payments is the proper measure of past medical damages.

Because plaintiff has failed to disclose the amount he asserts as damages for medical

expenses, defendants have heretofore been unable to evaluate the sufficiency of any such
evidence, or to determine whether the amounts claimed are, in fact, reasonable and related to
the injuries asserted.

As a result, the Court should require plaintiff to make an offer of proof to demonstrate the
manner in which he will offer proof to support his claim for medical expenses. Plaintiff must also
be prohibited from attempting to establish past medical expenses through generalized testimony,
such as offered Carol McDonald during pre-trial discovery, as to the usual or customary cost of
such care and treatment for asbestosis patients. The testimony must be specific to the plaintiff,
and the medical care that he actually received. Despite the use of the term reasonable value of
the medical services, the actual amount paid or incurred is the maximum amount of a potential
recovery, and an award of damages for past medical expenses in excess of that the medical
care and services actually cost constitutes overcompensation. Hanif, supra, 200 Cal.App.3d at
641. Any attempt to quantify plaintiff's medical expenses without resort to the actual amount paid

or incurred by the plaintiff and/or his insurers would lead to an extremely high likelihood of

3 .

MIL No. 3; JOHNSON CONTROL’S MOTION IN LIMINE TO LIMIT SPECIAL +
DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY PAID1 | overcompensation. Given the standard set forth in Hanif, it would also be highly speculative,
2 || irrelevant and immaterial and unduly prejudicial, and should therefore be excluded.
3 Il. CONCLUSION
4 For the above reasons, JCI requests this court issue an Order only allowing introduction
5 | of medical expenses actually paid on behalf of Plaintiff in this matter.
6
7
8 | Dated: October 6, 2010 BECHERER KANNETT & SCHWEITZER
9 . LL
10 By: \ Gu
11 Paul S. Lecky
Attorneys for Defendant
12 JOHNSON CONTROLS, INC.
13
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MIL No. 3: JOHNSON CONTROL'S MOTION IN LIMINE TO LIMIT SPECIAL
DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY PAIDBecherer
Kannett &
Schweitzer

1255
Powell St
Emeryville, CA,
94608

510-658-3600

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22

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

1, Sonjua R. Fisher, declare that | am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and | am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608,

On October 7, 2010, | electronically served the document(s) via LexisNexis File & Serve
described as:

DEFENDANT JOHNSON CONTROL INC.’S MOTION IN LIMINE TO LIMIT SPECIAL
DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY PAID

on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve
website. .

| declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on October 7, 2010, at
Emeryville, California.

5 =

MIL No. 3: JOHNSON CONTROL’S MOTION IN LIMINE TO LIMIT SPECIAL 4
DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY PAID