Motion,Ex Parte: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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McKenna Lone &
ALDRIDGE LLP
ATTORNEYS AT LAW
San FRANCISCO

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO. 252777)

MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY
101 California Street FILED

41st Floor Superior Court of California,
San Francisco, CA 94111 County of San Francisco
Telephone: (415) 267-4000

Facsimile: (415) 267-4198 APR 13 2010
Attorneys for Defendant BY: CHRISTLE ‘Deputy Clerk

METALCLAD INSULATION CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOYCE JUELCH and CasE No. CGC-09-275212
NORMAN JUELCH, SR.,
DEFENDANT'S MOTION IW LIMINE To Limit
DAMAGES FoR MEDICAL EXPENSES TO THOSE
ACTUALLY INCURRED [MIL 8]

Plaintiffs,
TRIAL DATE: ApRIL 5, 2010
v. Dept.: 604
JUDGE: HONORABLE MarLa J. MILLER

ASBESTOS DEFENDANTS, (BP), ef al,
Defendants.

1. INTRODUCTION
TO PLAINTIFFS AND PLAINTIFFS’ ATTORNEYS OF RECORD:

THE ABOVE NAMED DEFENDANT (hereinafter “Defendant”) hereby moves this
Court in limine for an order that, should a verdict be reached in this matter including damages for
medical costs, Defendant should be liable only for the actual costs of reasonable medical care and
treatment under the First District Court of Appeals’ decision in Nistivau v. (ii aif Connty of

Seat Francisco (2001) 93 Cal App.tth 298 and the Third District Court of Appeals’ decisions in

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DEFENDANT'S MOTION IN LIMINE TO LIMIT DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY INCURRED [MIL 8]
SF27418307.1oOo 0 SS KN KR tH RB BY OM

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MCKENNA LONG &
ALORIDGE LLP
AVTORNEYS AT Law
SAN FRANCISCO

Honif'v. Housing Aurhoruy of Yolo County (1988) 200 Cal. App.jd 635 and Greer v. Buzgheia,
(2006) 141 Cal.Apptth 1150. 1157, as set forth below.
TE. Discussion

There is no question that the appropriate measure of recovery for a person injured by
another’s tortious conduct is the reasonable value of medical care and services reasonably
required and attributable to the tort. Velone v. Sierra Railway Co (1907) TST Cal. TEAL EESS
Gimbel v. Laramie (1960) 181 Cal. App.2d 77.81; Henit v. ousting Authority of Yolo Cony
(1988) 206 Cal. App.3d 635; BAIT No. 14.10.

In Hanif. Housing Authority of Yolu County (1988) 200 Cal. App.ad 635. 640. the Court
decided “whether the ‘reasonable value’ measure of recovery means that an injured plaintiff may
recover from the tortfeasor more than the actual amount he paid or for which he incurred liability
for past medical care and services.” The Court stated that “an award of damages for past medical
expenses in excess of what the medical care and services actually cost constitutes
overcompensation” and thus held that “a plaintiff is entitled to recover up fo and no more than,
the actual amount expended or incurred for past medical services so long as that amount is
reasonable.” /c/, a1 643, (Emphasis in original.) “‘Reasonable value’ is a term of limitation, not
aggrandizement.” ff at 6-41, citing Civil Code § 3359 — Damages to be Reasonable, “Thus,
when the 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.” Munif. supra, 200 Cal App.3d at 641,

In Nishifuana vy. City and Cuunty of San Franciseo (2001) 93 Cal. App-lth 298, a jury
awarded the plaintiff $20,295 for the costs of plaintiff's medical care as that amount represented
the medical provider's normal rates. // at 306. However, plaintiff's insurance company only
paid $3,600 for those services under the terms of a contract between the insurance company and
the medical provider and the medical provider accepted that $3,600 as payment in full for those

services. dd at 306-07. The appellate court found that the tial court erred in permitting the jury

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DEFENDANT'S MOTION IN LIMINE TO LIMIT DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY INCURRED [MIL 8]
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MCKeNna LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

to award a greater amount and reduced the judgment to reflect the amount of medical expenses to
be only that amount actually paid. fd. at 309.

Plaintiff in Vistéfcmns 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.

Plaintiff argued that because CPMC, in accordance with California’s Hospital Lien Act
CHLA”) and Creil Cade §§ 3045.1-3045.6, filed a lien against the judgment which reflected its
normal rates, she should not be at risk of having to accept the lesser amount in damages while
risking the possibility that she would have to pay a greater amount to CPMC on the lien. The
Nishihamu Court found that “CPMC’s lien rights do not extend beyond the amount it agreed to
receive from Blue Cross as payment in full for services provided to plaintiff.” Since CPMC had
been paid that amount, it had no lien rights in 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.
Nishihame, supra. 93 Cal_App4th at 307,

Additionally, like the Medi-Cal benefits at issue in Hanif, Medicare is not private
insurance, but rather a government-funded healthcare program. Moreover, Medicare plans
purchased from Kaiser are also treated as government-funded healthcare programs, as all
determinations of the reasonable and customary charges an individual may incur for their medical
expenses are determined by Medicare’s fee schedule, not the privately purchased Kaiser plan.
Accordingly, Defendant does not contend it is entitled to any economic damages offset for
discounts resulting from a private insurer’s contract with Plaintiff's medical providers, if any.
Defendant likewise does not seek any offset for medical expenses Plaintiff received for asbestos-
related injuries from any medical providers who may have refused to accept Medicare’s fee
schedule as payment in full for their services.

It is well established that trial courts have “ ‘broad authority’ over the admission and
exclusion of evidence, thus enabling them to limit the introduction of evidence which could be

objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial.”
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DEFENDANT'S MOTION IN LIMINE TO LIMIT DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY INCURRED [MIL 8}
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MCKENNA LONG &
ALORIDGE LLP
ATTORNEYS AT LAW
Saw FRANCISCO

Peat, Marwick, Mitchell & Co. v. Superior Court (988) 200 Cal App.3d 272, 288, In Greer v.
Buzgheia, (2006) 141 Cal. App4ih 1150. 1157, the Third District Court of Appeal discussed a
trial court’s discretion to allow evidence of reasonable costs of a plaintiff's medical care. The
Greer court, like Nishihame and /lunif, held that a trial court has the discretion to bar evidence of
the full amount of a plaintiff's billed medical expenses if they exceeded the amount actually paid
by plaintiff or his insurer given the plaintiff is not entitled to recover medical expenses in excess
of the amount paid or incurred. //.

For the foregoing reasons, Defendant’s motion to limit special damages for medical

expenses to those expenses actually incurred should be granted.

Dated: = April 5, 2010 MCKENNA LONG & ALDRIDGE LLP

By:
Lisa L. OBERG
DANIEL B, HOYE
ALECIA E. COTTON

Attomeys for Defendant,

METALCLAD INSULATION
CORPORATION

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DEFENDANT'S MOTION IN LIMINE TO LIMIT DAMAGES FOR MEDICAL EXPENSES TO THOSE ACTUALLY INCURRED [MIL 8}
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