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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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                                1 || TUCKER ELLIS & WEST LLP
EVAN C. NELSON — STATE BAR NO. 172957
2 || NICOLE GAGE — STATE BAR NO. 208658

135 Main Street, Suite 700 ELECTRONICALLY
3 ||San Francisco, California 94105 FILED

Telephone: 415.617.2400 i Fa
4 || Facsimile: 415.617.2409 See Geen reac
. Email Addresses: Evan.Nelson@tuckerellis.com; JUL 05 2011

5 || Nicole.Gage@tuckerellis.com;

Clerk of the Court

: K. WON!
6 || Attorneys for Defendant BY: RAYMOND ONG

ROCKWELL AUTOMATION INC. Deputy Clerk
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
0 |; RODRICK BRECKLER and JOANN Case No. CGC-08-274566
BRECKLER,
11
Plaintiffs, ROCKWELL AUTOMATION, INC.’S
12 MOTION IN LIMINE TO EXCLUDE
v. EVIDENCE OF MEDICAL DAMAGES
3 NOT ACTUALLY INCURRED BY
ALLIS-CHALMERS CORPORATION PLAINTIFFS
4 || PRODUCT LIABILITY TRUST,
[MOTION IN LIMINE NO. 24]
5 Defendants.
Judge: Harold E. Kahn
6 Dept.: 220
17 Complaint filed: March 12, 2008
Trial Date: July 11, 2011
18
9 MEMORANDUM OF POINTS AND AUTHORITIES
20 T/L INTRODUCTION
21 Defendant Rockwell Automation, Inc. (“Defendant”), before trial and the selection of a

22 ||jury, hereby move this Court for an order in Jimine that plaintiffs be required to prove relevant
23 || medical expenses related to plaintiff Rodrick Breckler’s care through the submission of invoices
24 |i verifying the actual costs paid or incurred.

25 |{II. ARGUMENT

26 A.. Plaintiffs Should Be Limited In Their Presentation Of The Evidence To Medical
Expenses Actually Paid Or Incurred

27

28 The standard means of proving past medical expenses is to introduce bills, documents or

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ROCKWELL’S MOTION IN LIMINE # 24

SFOiManage\0! 1374,000203\226028,1other evidence detailing the amounts actually paid. Concurrently with the production of medical
invoices, an expert is usually engaged by plaintiff to opine that, in fact, the amounts paid for
medical expenses were reasonable. The reason for this order of proof is set forth clearly in Hanif
yv. Housing Authority (1988) 200 Cal.App.3d 635, 641; accord, Nishihama v. City and County of
San Francisco (2001) 93-Cal.App.4" 298, 307 (holding that an injured plaintiff in a tort action
cannot recover more than the amount of medical expenses actually paid or incurred, even if the
market value of the services is a greater sum.)
California courts adopted this rule to ensure that “a plaintiff in a tort action is not, in
being awarded damages, to be placed in a better position than he would have been had the wrong

not been done.” Hanif, supra, 200 Cal.App.3d at p. 642-43, quoting Valdez v. Taylor

Automobile Co. (1954) 129 Cal.App.2d 810, 821-822. Thus, the plaintiffs are entitled to recover
up to, but no more than, the actual amount expended or incurred for past medical services so
long as that amount is reasonable. /d. al 643.

B. Plaintiffs’ Reliance on Greer v. Buzgheia for the Premise That They May

Present Evidence Of The “Fair Market Value: Of Plaintiff's Medical
Treatment Is Misplaced, And That Case Is Neither Controlling Nor
Persuasive Authority

Despite the fact that this is already a lengthy trial with numerous witnesses and
voluminous exhibits to be presented to the jury, plaintiffs seek to complicate matters further still,
by presenting evidence of damages they have no right to recover.

Specifically, plaintiffs contend they are entitled to present evidence of the “fair market
value” or “going rates” for plaintiffs medical treatment, despite the fact that plaintiffs have no
obligation to pay those amounts. Defendant, in contrast, relies on several well-reasoned
California cases for the rule that plaintiffs can recover no more than the amount actually paid or
accrued and owing for Mr. Breckler’s medical care, and any surplus figures are irrelevant and
superfluous. Plaintiffs intend to introduce the inflated value of the amounts they billed, which
exceeds by tens of thousands of dollars the actual costs paid by plaintiffs.

Defendant’s motion should be granted, because there is no benefit to this Court or to any

party in having a misinformed jury. If plaintiffs’ scenario is permitted to introduce artificial

2
ROCKWELL’S MOTION IN LIMINE # 24

SFOiManage\0! 1374.000203226028.112

14

numbers for their damages claim instead of the true amount of out-of-pocket losses, there will be
no possible way for the jury in this case to award the maximum amount legally recoverable by
plaintiffs for past medical expenses, unless the jury engages in “pure speculation” as to the
negotiated amounts accepted by the providers.

Plaintiffs would have this Court simply ignore the fundamental rule that the “reasonable
value” of medical services reasonably required and attributed to the tort is a term of limitation,
not of aggrandizement. Civil Code section 3359; Gimbel v. Laramie (1960) 181 Cal.App.2d 77,
81; Civil Code section 1431.2(b)(1).

Defendant anticipates that plaintiffs will attempt to rely on Greer v. Buzgheia (2006) 141
Cal. App.4” 1150, as the only support for their argument in favor of giving the jury artificially
inflated damage figures. However, Greer is neither controlling nor compelling, especially since
it is a stand-alone third division case that conflicts with the majority of California case law
addressing this issue in virtually all divisions.

Most importantly, the Greer court acknowledged the resulting risk of error and reversal
should a trial court adopt the broad-brush approach that plaintiffs here urge upon this Court. In
making these observations, the Greer court emphasized that the key issue before it was not
whether the jury should consider the amount of medical treatment billed versus the amount paid,
but rather, whether the defendants motorist’s failure to request a special verdict form that
contained separate entries for medical expenses and lost earnings as separate line items forfeited
the defendants’ claim on appeal for post-verdict reduction. Greer, supra, 141 Cal. App.4" at
1158-59. The court in Greer concluded that it did. /d.

The Greer court went on to conclude that “none of defendants’ challenges to the
judgment based on Hanif/Nishihama is cognizable on appeal,” confirming that it had neither the
jurisdiction nor the ability to address those challenges, and in so doing, affirming that the
portions of the Greer opinion on which plaintiffs here rely are feckless dictum. Greer, supra,
141 Cal.App.4" at 1159. The Greer court unwittingly explained the public policy concerns that
justify this Court’s rejection of its reasoning, stating that permitting evidence of a plaintiff's

medical ills — as opposed to amounts paid or accrued — could lead to many instances of

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ROCKWELL’S MOTION IN LIMINE # 24

SFOIManage\01 1374,000203\226028.1oc 2D &

reversible error due to juror confusion and excessive awards. /bid. Finally, the Greer court
return to the substance of the matter before it, to conclude that “defendants* counsel has no-one
but herself to blame for a verdict form that was too general to preserve a reduction claim.”
Greer, supra, 141 Cal.App.4" at 1159.

Here, permitting plaintiffs to introduce as elements of their damages claim bills and
invoices for medical expenses would needlessly complicate the otherwise discrete and
segregatable issue of admissible. Evidence Code sections 250, 350.

And by any account, such evidence is far more prejudicial than probative. Evidence
Code section 352. Defendant will be forced to lengthen an already unwieldy witness list, to add
economist testimony to rebut plaintiffs’ arguments, as well as additional documents, calculations
and evidence of what was paid by plaintiffs versus what was billed to them. Why? What benefit
is gained by this additional delay, time and expense?

Plaintiffs will no doubt answer “to give the jury a better picture of plaintiff's injuries”
because that is the rationalization the Greer court used in attempting to justify its contorted
ruling. Wrong. There is no right of recovery for plaintiff's pain and suffering such that the jury
would have a “better picture” of the damages claim by considering the total medical services
billed. Greer is simply inapposite.

“The primary object of an award of damages in a civil action, and the fundamental
principle on which it is based, are just compensation or indemnity for the loss or injury sustained
by the complainant, and no more [citations].” Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d
565, 576. (Emphasis in original.) Defendant is not trying to reduce plaintiffs’ recovery because
his medical bills were paid by insurance or settlements with third parties. Rather, they simply
seek the legally approved reduction of the medical bills to the amount actually paid or incurred
by plaintiffs before the case ever goes to the jury, so that unfair double recovery is not forced
upon Defendant by a confused jury that has not been apprised of the true facts. This case is not
Greer, and plaintiffs’ unpaid medical bills are not evidence.

Ill. CONCLUSION

It is plaintiffs’ burden to prove damages, and in tort.cases, the damages for past medical

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ROCKWELL’S MOTION IN LIMINE # 24

SFOIManage\011374.000203'226028.1a a

ll

costs consist of nothing more than the amount of medical expenses incurred. Thus, during trial

plaintiffs should be required to prove past medical expenses by the production of actual amounts

paid or due and owing, as required by law.

DATED: July 5, 2011

TUCKER ELLIS & WEST LLP

Nn §—

yt
Nicole E. Gage
Attorney for Defendant
ROCKWELL AUTOMATION INC.

5

SFOIManage\0 1 1374.000203\226028.1

ROCKWELL’S MOTION IN LIMINE # 24Rodrick Breckler et al. v. Allis-Chalmers et al.
San Francisco County Case No. CGC-08-274566
PROOF OF SERVICE

I, the undersigned, 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 San Francisco, State of California. My business address is 135 Main Street, Suite
700, San Francisco, California 94105. My electronic notification address is
rene. paufve@tuckerellis.com.

On the date executed below, I electronically served the document via LexisNexis File &
Serve described as: ,
ROCKWELL AUTOMATION, INC.’S MOTION IN LIMINE TO EXCLUDE
EVIDENCE OF MEDICAL DAMAGES NOT ACTUALLY INCURRED BY
PLAINTIFFS [MOTION IN LIMINE 24]
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. This service was completed in accordance with the Amended General Order No. 158. —

I declare under penalty of perjury pursuant to the laws of the State of California that the

foregoing is true and correct and was executed on July 5, 2011, at San Francisco, California.

ah fa

ene Paufve

6
ROCKWELL’S MOTION IN LIMINE # 24

SFOiManage\011374.000203\226028.1