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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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                                Eugene C. Blackard Jr. (Bar No. 142090)
Jocelyn M. Soriano (Bar No. 201169)

ARCHER NORRIS . ELECTRONICALLY
A Professional Law Corporation
2033 North Main Street, Suite 800 FILED
Walnut Creek, California 94596-3759 Superior Court of California,
Telephone: 925.930.6600 County of San Francisco
Facsimile: 925.930.6620 OCT 18 2013
Clerk of the Court
Attorneys for Defendant BY: WILLIAM TRUPEK
ALBAY CONSTRUCTION COMPANY Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No, CGC-10-275731

Plaintiffs, ALBAY CONSTRUCTION COMPANY'S
MOTION IN LIMINE TO LIMIT

v. PLAINTIFFS’ DAMAGES TO MEDICAL
EXPENSES ACTUALLY PAID OR

C.C. MOORE & CO, ENGINEERS, et al., INCURRED

Defendants, Action Filed: December 17, 2010
Trial Date: © September 9, 2013

Defendant ALBAY CONSTRUCTION COMPANY moves the Court in limine to
preclude Plaintiffs, their attorneys and any witnesses called on their behalf from making reference
to, testifying about or introducing any evidence of damages claims for medical expenses not
actually paid or incurred,

L. INTRODUCTION
In recent years, California courts have acknowledged that allowing plaintiffs to recover
additional amounts for medical expenses that those plaintiffs were never actually charged or paid
for would provide an unfair windfall and would violate fundamental tenets of just compensation.
The issue has specifically come to the forefront with the advent of managed health care, which
ofien involves private agreements between health care providers and insurers to perform services

at a rate lower than the face value or market value of the service, in exchange for a guaranteed

number of assigned patients, a commitment to exclusivity, or other consideration,
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When a plaintiff benefits from this type of arrangement by having to pay less than the
stated value of his medical bills, it is an unfair windfall. Unlike the collateral source rule, which
seeks to promote the responsible purchase of insurance coverage to protect potential parties
against reasonably foreseeable losses, the overpayment of a plaintiff's claimed damages serves no
public policy. To the contrary, it introduces an element of unfairness into what is an otherwise
orderly and just system that follows over 100 years of tort law limiting compensatory damages to
the full exient of the injury sustained, without any "bonus" or "surplus" windfall to an injured
party.

Il. LEGAL AUTHORITIES AND ARGUMENT

A California Law Restricts a Plaintiff's Right te Recover Medical Expenses to Those
Amounts Actually Paid or Jacurred

It is a long-standing rule of California law that the appropriate measure of recovery for a
person injured by another's tortious conduct is the reasonable value of medical care and services
that are reasonably required to repair the injury, and are directly attributable to the tort. Melone v.
Sierra Railway Co. (1907) 151 Cal. 113, 115; Gimbel v. Laramie (1960) 181 Cal.App.2d 77, 81.

Consequently, the proper measure of Plaintiffs’ special damages in this case is limited to
"the reasonable value of the medical services rendered.” Latky v, Wolfe (1927) 85 Cal App. 332,
347, The Latky court further held that a showing of medical bills without any evidence of their
reasonable value does not support a finding of special damages. Larky, supra, 85 Cal.App. 332,
347, Rather, a foundation of reasonableness and necessity must be laid by the plaintiff before
such evidence can be recovered as damages.

A similar holding was reached by the court in Dewhirst v. Leopold (1924) 194 Cal. 424,
433, which stated that evidence of the reasonable value of the medical services included whether
or not the bills in question were already paid. Likewise, the court in Townsend v, Keith (1917) 34
Cal.App. 564, 565, also found that the amount paid for an injured plaintiffs treatment is some
evidence as to the reasonable value of that treatment, and again affirmed the rule that the correct

measure of damages recoverable is limited to the necessary and reasonable value of the services

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rendered. Ibid.

B. Recent California Cases Re-Affirm the Commitment of the Judiciary to Support
to Collateral Source Rule While Refusing to Accord Plaintiffs an Unjust
Windfall
In recent years, California courts have reaffirmed their adherence to these principals. For

example, in Hanif'v. Housing Authority of Yolo County (1988) 200 Cal App.3d 635, the court

had occasion to consider the question and framed the issue as follows: "whether the 'reasonable
value' measure of recovery means that an injured plaintiff may recover from the tortfeasor more
than the actual ammount he paid or for which he incurred liability for past medical care and

services." Hanif, supra, 200 Cal.App.3d at 640.

The Hanif court concluded that "an award of damages for past medical expenses in excess
of what the medical care and services actually cost constitutes overcompensation." [bid. It found
that the appropriate measure of damages instead was that “[a] plaintiff is entitled to recover up to
and no more than, the actual amount expended or incwrred for past medical services so long as
that amount is reasonable." Hanif, supra, 200 Cal.App.3d at 641, 643.

The Hanif court concluded its analysis with the following summary of the law:

When the evidence shows a sum certain fo have been paid or incurred for past
medical care and services, whether by the plaintiff or by an independent source,
the sum certain is the most the plaintiff may recover for that care despite the fact
that it may have been less than the prevailing market rate.

Hanif, supra, 200 Cal.App.3d at 641, It concluded by noting that in using the "reasonable value"
as applied to past medical services, ‘"Reasonable value’ is a term of limitation, not
aggrandizement." Hanif, supra, 200 Cal.App.3d at 641.

Nishihama v, City and County of San Francisco (2001) 93 Cal.App.4th 298, agreed with
the Hanif court's analysis. In that case, the Court of Appeal reduced the trial court's award of
$17,168 for medical expenses to $3,600, The $17,168 that plaintiff originally claimed was based
on California Pacific Medical Center's ("“CPMC") normal billing rates for the services rendered to
plaintiff. However, the Nishihama plaintiff was a participant in an employer-sponsored health
plan administered by Blue Cross, which provided for substantially reduced rates. Under the terms

of the agreement CPMC accepted $3,600 as payment in full for plaintiff's medical treatment.
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Nishihama, supra, 93 Cal.App.4th at 303.

The Nishihama plaintiff challenged the trial court's attempt to restrict her damages
recovery to the reduced amount, arguing that she would be unfairly penalized because CPMC had
filed a lien for recovery of some or all of the foregone medical expenses based on its normal rates
under California's Hospital Lien Act and Civil Code sections 3045.1-3045.6, Plaintiff argued
that she should not be at risk by accepting the lesser amount in damages while risking the
possibility that she would have to pay a greater amount to CPMC on the lien. Nishikama, supra,
93 Cal.App.4th at 306-07.

However, the Nishihama court was not persuaded by that argument. It found that
"CPMC's lien rights to de not extend beyond the amount it agreed to receive from Blue Cross as
payment in full for services provided to plaintiff." Nishihama, supra, 93 Cal. App.4th at 307,
Because CPMC had already accepted the lesser amount in satisfaction of its bill, it had no lien
rights as against damages awarded to the plaintiff and the trial court therefore erred in awarding
the plaintiff an excess of $3,600 for services provided by CPMC, Nishihama, supra, 93
Cal.App.4th at 307, As explained by the Nishihama court, '[t]he Hospital Lien Act places the
burden of satisfying the hospital's lien on the defendant tortfeasor, not on the plaintiff... [and
while] Civil Code sections 3045.4 and 3045.5 permit the hospital to seek recourse against the
tortfeasor . . there is no authority permitting the hospital to seek recourse from the plaintiff."
Nishihama, supra, 93 Cal.App.4th at 309.

The Court of Appeal has also approved of the trial court’s post-trial reduction of a
plaintiff's recovery of past medical expenses from the amount billed by the plaintiff's medical
provider to the amount paid by the plaintiffs private medical insurer. Cabrera v. E. Rajas
Properties, Inc., 192 Cal.App.4th 1319 (2011). And finally, in August, 2011, the California
Supreme Court upheld the ruling in Hanif, similarly holding that a plaintiff whose medical
expenses are paid through private insurance may recover as economic damages no more than the
amounts paid by the plaintiff, or his insurer for the medical services rendered or still owing at the
time of trial. Howell v. Hamilson Meats & Provisions, Inc. (SDSC Case No, GIN053925.)

Thus, under prevailing case law, Plaintiffs in this case cannot recover more than the costs
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actually incurred for medical treatment, i.e., those costs actually paid by plaintiff and any
collateral source, such as medical insurance. Moreover, under Evidence Code section 350 and
350, no evidence of the inflated and unrecoverable face amounts of plaintiffs medical bills should
be put before the jury, because such information is not probative of any material fact in dispute in
this matter and can only serve to confuse the jury and unnecessarily prolong the trial.
TL, CONCLUSION

ALBAY CONSTRUCTION COMPANY respectfully requests that the Court issue an
order precluding Plaintiffs, their attorneys and any witnesses called on Plaintiffs’ behalf from’
making reference to, testifying about or otherwise asserting any claim for medical expenses not
actually paid or incurred by plaintiffs.
Dated: October /O., 2013 ARCHER NORRIS

omeys for Defendant
LBAY CONSTRUCTION COMPANY

ALBIQI/16575 17-1 5

ACTUALLY PAID OR INCURREDPROOF OF SERVICE

Name of Action: Robert Ross et al. vy. C.C. Moore & Co Engineers, et al.
Court and Action Ne: San Francisco Superior Court Action No, CGC-10-275731

1, the undersigned, declare that | am over the age of eighteen years and not a party to this
action or proceeding. My business address is 2033 North Main Street, Suite 800, Walnut Creek,
California 94596-3759. On this date, I caused the following document(s) to be served:

ALBAY CONSTRUCTION COMPANY’S MOTION IN LIMINE TO LIMIT PLAINTIFFS’
DAMAGES TO MEDICAL EXPENSES ACTUALLY PAID OR INCURRED

oO by placing a true copy of the document(s) listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. I am readily familiar
with this business’ practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fully prepaid.

o by having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
machine,

oO by having personal delivery by One Hour Delivery of a true copy of the document(s)
listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set
forth below.

og by placing a trae copy of the document(s) listed above, in a box or other facility
regularly maintained by _ _, an express service carrier, or delivered to a
courier or driver authorized by the express service carrier to receive documents, in an
envelope designated by the express service carrier, with delivery fees paid or provided
for, addressed as set forth below.

1 electronically served the above referenced document(s) through Lexis-Nexis. E-

service in this action was completed on all parties listed on the service list with Lexis-
Nexis. This service complies with the court’s order in this case.

Tdeclare under penalty of perjury that the foregoing is true and correct, Executed on
October _{% , 2013, at Walnut Creek, California.

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ACTUALLY PAID OR INCURRED

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Anny, Harkness”