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

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MCKENNA Lona &
ALDRIDGE LLP.

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO, 139683)

ALECIA E. COTTON (BAR NO. 252777)

MCKENNA LONG & ALDRIDGE LLP
101 California Street

41st Floor

San Francisco, CA 94111

Telephone: (415) 267-4000
Facsimile: (415) 267-4198

Attorneys for Defendant

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 13 2010

Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk

METALCLAD INSULATION CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOYCE JUELCH and
NORMAN JUELCH, SR.,

Plaintiffs,
v.

ASBESTOS DEFENDANTS, (BP), er ai.

Defendants.

Case No. CGC-09-2745212

DEFENDANT’S Motton IW LiMINE

To EXcLubDE THE TESTIMONY OF
CaROL McDonaLp Or, IN THE
ALTERNATIVE, FOR A HEARING UNDER
EVIDENCE CobDE § 402 [MIL 26]

TRIAL DATE: APRIL 5, 2010
Depr.: 604
JUDGE: HONORABLE MARLA J. MILLER

ATTORNEYS AT LAW
San Francisco

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR, IN THE ALTERNATIVE, FORA HEARING

SE:27418558.1

UNDER EVIDENCE CODE § 402 [MIL 20)28

MCKENNA LONG &
ALDRINGE LLP
ATTORNEYS AT Law
SAN FRANCISCO.

1. INTRODUCTION

IL. Discussion

TABLE OF CONTENTS

A. Ms. McDonaLb’s READING OF Tus EvibeNce Is NoT THE
Proper Sussect Or EXPERT TESTIMONY GIVEN THAT THE JURY

Can Just As EASILY READ THE DOCUMENTARY EVIDENCE

B. THE DOCUMENTARY EVIDENCE CONSTITUTES INADMISSIBLE
HEARSAY; THus, Ms. MCDONALD’S REGURGITATION OF THiS

EVIDENCE ALSO CONSTITUTES INADMISSIBLE HEARSAY ...

1. CAROL MCDONALD’S TESTIMONY IN THis Case Is
IRRELEVANT AND SHE SHOULD BE PROHIBITED From

TESTIFYING AT TRIAL

2. PLAINTIFFS ARE ENTITLED TO RECOVER No More THAN
THE ACTUAL AMOUNT OF REASONABLE MEDICAL

SERVICES

TIL. CONCLUSION 0... tscseeteeeeeeseeseee

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR IN THE ALTERNATIVE, FOR A HEARING
UNDER EVIDENCE CODE § 402 Mil. 20]

SP:27418558.11 TABLE OF AUTHORITIES
2 | Cases Pacx(s)
3 | Cabrera v. Cordis Corp.
(9th Cir, 1998) 134 F.3d 1418
4
Fuentes v. Tucker,
5 BL Cal. 2d 1 (1947) ooo ccececseessevessrecovescnevessaveceucenvuseevecsuasssnuresvacssasesncssnansuscesussnvetsaresseveessaee 8
6 | Hanif'v. Housing Authority of Yolo County
(1988) 200 Cal App.3d 635 c.ccceccsccsssssseccccseesssceunesssonsunsssesssssseuenssesuseesesteursniennveses 10,11
7
fare Air Crash Disaster at New Orleans
8 (Sth Cir, 1986) 795 F.2d 1230 oe ccsescssesccecccseenrceineessesesrvesstersresenseensvesnearsyensareesneeenansosnesssnes 2
9 | Katiuzhinsky v. Perry
(2007) 153 Cal_App.4th 1288
10
Kumho Tire Co. v. Charmichael
1 (1999) 526 US V37 scsccecsseecsecsssnersercssnsssauersveessneessarsnunsentessnecsssecsuersayececesceaseurensnavessucsanneesane 5
2 | Nishihama vy. City and County of San Francisco
(2001) 93 Cal. App.4th 298 oaccccccssessssssessssseescepsvsuecsenseaneessssssesiusnssesienesssteenansetensasanees i
3
People v. Heard,
4 31 Cal. 4th 946 (2003) oo. cecssseessssersccseresscnvsesssutecnsnvessisccssessssuveecesssissvaneenseaseessuesessvasssseueee 8

15 | People v. Mayfield
(1997) 14 Cal 4th 668 ....

6
People y. Pizzaro,
7 110 Cal App.4th 530 (2003) oo c.cssescssssecsssuessconvsgeesssecseneessctssnsersssssneseseversevesserssuseneasececenvese 8
8 | People v. Sword
(1994) 29 Cal App.4th 614 ccc essscsssenmeescsssaasestessnveetesrssssaesesssessumsvavaseuecteevees 2
9
People v. Torres
20 (1995) 33 Cal App.4th 37 [39 Cal Rptr.2d 103}. ccccecccscsssssseceeesssssnesseacenserestennave 1,2,5

21 | Ramsey v. Penry
(1942) 53 Cal. App.2d 773 .

22
Sherman v. Frank

23 (1944) 63 Cal App.2d 278 ooo csessssseccscsesssssesesnemiinennnneescecssnteessssnneemerasaeneee 10
24 | Westbrooks v. State

(1985) 173 Cal. App.3d 1203 [219 CaLRptr, 674] ccc ccsescusssssssssteesececaveeveeuesarereesssees 1,2
25
26
27
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MCKENNA LONG & . ii ~

AtpRIOGE LLP
ATTORNEYS AT LAW DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR, IN THE ALTERNATIVE. FOR A HEARING

SAN FRANCISCO. UNDER EVIDENCE CODE § 492 IMIL 20)

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MCKENNA LONG &.
ALDRIDGE LLP.
ATTORNEYS At LAW
SAN FRANCISCO

TABLE OF AUTHORITIES

(continued)
PAGE(S)

STATUTES
Civil Code

sections 3045.1-3045.6.
section 3359...

Evidence Code
section 350...
section 402
section 403
section 801
section 1200.
section 1220 ef se
section 1200(a).
section 1200(b)

8
2
2
1
2
2
2
2

OTHER AUTHORITIES
jury Instructions

BAJI (Fall ed. 2009)
Ne. 14.10...
No, 14.76...

CAC] (June ed, 2009)
No. 3903A.

9, 10
ad

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OF IN THE ALTERNATIVE, FORA HEARING
UNDER EVIDENCE CODE § 402 (MIL 20) |

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MCKENNA LONG &
ALpRipGs LLP
APTORNEYS AT Law
SAN FRANCISCO

1
INTRODUCTION

The above-named Defendant (hereinafter “Defendant”) hereby moves this Court for an
order to preclude plaintiffs from introducing any evidence from plaintiffs’ expert witness, Carol
McDonald. Plaintiffs have offered Ms. McDonald as an expert who will testify regarding the
reasonable value of medical care provided to Plaintiff Joyce Juelch (“Plaintiff").

Ms. McDonald’s testimony should be precluded on a number of grounds. First, her
testimony is not the proper subject of expert opinion testimony. Second, her testimony
constitutes inadmissible hearsay. Third, her testimony regarding the reasonable value of medical
care is inadmissible and irrelevant because it is based on unreliable matters. Fourth, her
background and training are inadequate to qualify her as an expert on the matters for which
plaintiffs intend to elicit her testimony. For all these reasons, Ms. McDonald should be precluded
from offering opinion testimony in this matter. Alternatively, Defendant respectfully requests an
evidentiary hearing pursuant to Evidence Code § 402 to prove that Ms. McDonald’s proffered
testimony is not the subject of expert opinion and moreover, that she has no expert basis for her
opinions.

HL
DISCUSSION

A. Ms. MCDONALD’S READING OF THIS EvipENCE Is Not THE PROPER SuBsect OF
Expert TESTIMONY GIVEN THAT THE JURY CAN Just AS Easiny READ THE
DOCUMENTARY EVIDENCE

Cul. Evid. Code $80) narrowly limits an expert's opinion to that which is “[rJelated to a
subject that is sufficiently beyond common experience that the opinion of an expert would assist
the trier of fact.” The courts have long held that “expert opinion is not admissible if it consists of
inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by
the witness.” People v. Torres 995) 33 Cal_App.4th 37. 45 [30 Cal Rpw.2d 103); see also
Westbrooks v. Stete (1985) 173 Cal.App.3d 1203, 1209-16 [219 Cal. Rpir, 674]. In short, experts

cannot be allowed to opine on matters that juries can evaluate and decide on their own. Allowing

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UNDER EVIDENCE CODE § 402 [MIL 20)

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ATTORNEYS AT Law
BAM FRANCISCO

an expert to opine on such matters usurps the jury’s fumction. //, In addition, “the trial judge
ought to insist that a proffered expert bring to the jury more than the lawyers can offer in
argument” Ja re Air Crash Disaster ut New Orleans (th Cir, 1986) 793 F.2d 1230, 1233.

Ms. McDonald intends to recite to the jury the contents of a survey within a binder that
her office has compiled. Her testimony consists of nothing more than reading a list of estimated
costs of a variety of medical treatments which is merely a series of estimates and conclusions
made by others, Under forres and In re dir Crush Disusier, Ms. McDonald’s testimony is not
the proper subject of expert opinion testimony. The documents speak for themselves; the jury
does not need an expert to read and regurgitate the documents for them. Moreover, it is the jury’s
job, not the expert’s, to determine whether the documents constitute notice to Defendant.

Ms. McDonald’s “expert opinion is not admissible [because] it consists of inferences and
conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness,”
Porves, 33 Cal_App.Ath at 45,

Moreover, in giving her subjective spin and interpretation of the documentary evidence,
Ms. McDonald is simply arguing the evidence. The attorneys, not the witnesses, must make such
argument, [1 re Air Disaster. supra, 795 2d at 1233 (the trial judge ought to insist that a
proffered expert bring to the jury more than the lawyers can offer in argument”). Accordingly,
Ms. McDonald should be precluded from testifying for this reason.

B. Tue DOCUMENTARY EVIDENCE CONSTITUTES INADMISSIBLE HEARSAY; THUS,

Ms. MCDONALD’s REGURGITATION OF THis EVIDENCE ALSO CONSTITUTES
INADMISSIBLE HEARSAY

The courts have long held that the types of documentary evidence that Ms. McDonald

intends to recite constitute inadmissible hearsay. Cal. vid. Cade § 1200. Hearsay evidence is

evidence of a statement made by someone other than the witness that is offered to prove the truth

of the matter asserted therein and is inadmissible unless an exception applies.
§ 1200(a).{b): $ 1220 e¢ sey.) [Hearsay evidence may be admitted, in the discretion ef the court,
if it is trustworthy and there are sufficient indicia of reliability. Penpie v. Sword (1994) 29

Cal App.4th 614.

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR. IN THE ALTERNATIVE, FOR A HEARING
UNDER EVIDENCE CODE § 402 {Mit 20}

SP:27418558.128

McKENna Lonc &
Atoripde LLP
ATTORNEYS AT LAW
SAN FRANCISCO.

Here, there is nothing inherently trustworthy or reliable about the hearsay testimony

conceming the costs she compiled in her binder. In describing her research, Ms. McDonald

confirms that her “process” was nothing more than a series of phone calls conducted by her

assistant:

You had Rebecca Wynia of your office contact various
medical providers including private physicians and medical
centers such as UCSF, CPMC and others to ask them
whether they would provide specific information about
various asbestos-related health care costs; in that right?

That is correct. See deposition transcript of Ms. Carol
McDonald in Lawrence Davie v. Asbestos Defendants, et
al., San Francisco Superior Court Case No. 274065,
attached as Exhibit A to the Declaration of Alecia E. Cotton
(Exh, A”), at 13:14-20,

And by “costs,” you were through Rebecca asking for what
these physicians and facilities would charge a person off the
street, in other words, a non-negotiated rate for certain
health care treatment and care; is that right?

Yes, Their actual charges. Exh. A, 13:21-14:1.

And the way this worked was that Rebecca would call
different facilities and different physicians with the hope
that persons at these facilities would speak to her with this
sort of information that you ultimately gathered in the form
ofa survey; correct?

Yes, Exh. A, 14:2-9,

The survey was done in an informal fashion because you
didn’t want to alienate or make the people she was speaking
with to feel oppressed?

Yes. Exh. A, 15:10-19,

And, for example, in most cases Rebecca did not get the last
names of these individuals?

Correct. Exh. A, 15:20-22.

And your office didn’t receive any written confirmation that
these individuals concerning the figures Rebecca received
fram them after the fact; is that right?

‘That is correct. Exh. A, 15:23-15:2.

..-[W]hile Rebecca obtained that information she typed up
that information under various categories that have now
become the tab in a binder that you have and have been

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DEFENDANT'S MOTION IN LIMINE TO EXCLUGE THE TESTIMONY OF CAROL MCDONALD OR, IN THE ALTERNATIVE, FOR A HEARING
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McKenna LONG &
ALpgipce LLP
ATTORNEYS AT LAW
SAN FRANCISCO

using in these Brayton cases such as the ones that you’re
appearing in her today; is that right?

A Yes. Exh. A, 16:4-10,

Ms. McDonald’s survey is unreliable because it constitutes several levels of hearsay.

Multiple hearsay is admissible for its truth only if each hearsay layer separately meets the

requirements of a hearsay exception. Peaple v. Mayfield (1997) 14 Cal.4ih 968 (exception found
for each layer; prior inconsistent statement and admission of party opponent.) Here,

Ms. McDonald admits that she did not participate in the survey process first-hand. The method
for creating the survey involved staff persons in her office who then contacted facilities that were
willing to provide information. These surveys contain non-verbatim, second, or even third hand
out-of-court statements and cannot be verified for accuracy and are lacking any indicia of
reliability.

Testimony that is based on such unsubstantiated information is inadmissible because it is
without adequate foundation. Cabrera. Cordis Corp, (th Cir, 1998) 134 F.3d 1418, In
Cabrera, the court excluded the testimony of four experts that the plaintiff proffered to support
her claim against the manufacturer of a medical device known as a brain shunt. 13-4 {3d at 1422-
23, The Cabrera court excluded these experts because they based their testimony on unpublished
“aficionado’s knowledge.” /d. at (423. In excluding plaintiff's expert witnesses, the court stated

the following:

“(The expert witness] stated that relevant information was
essentially left unpublished and unlearned. It was not conveyed to
the medical community on average. It is what we call an
aficionado’s knowledge . . . it has simply been kept very closed to
manufacturing circles and has not been shared with the medical
community. By [the expert's] own characterization, he is relying
on underground knowledge, untested and unknown to the scientific
community. An opinion based on such unsubstantiated and
undocumented information is the antithesis of the scientifically
reliable expert opinion admissible under Daubert and Rule 702.”
/d. (emphasis added) (internal quotations and citations omitted).

Likewise, in this case, Ms. McDonald’s testimony is based on unpublished “aficionado’s
knowledge,” which “is the antithesis of . . . scientifically reliable expert opinion.” /, The
Daubert gatekeeping obligation applies not only to scientific testimony but to all expert

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCOONALO OR IW ‘THE ALTERNATIVE, FOR A HEARING
UNDER EVIDENCE CODE § 402 [MIL 20}

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MCKENNA LONG &
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ATTORNEYS AT LAW
SAN FRANCISCO

ussion of California

testimony. Kuontio Tire Co. v. Charmichael 1999) 526 US 137 (disc!
application of Daubert). Rule 702 does not distinguish between “scientific” knowledge and
“technical” or “other specialized” knowledge, but makes clear that any such knowledge might
become the subject of expert testimony. /d. Moreover, Ms. McDonald’s lack of training
regarding the medical procedures about which plaintiffs seek to elicit her testimony call in to
question her qualification to testify as an expert on these matters:
Q: ...1’m looking at your CV. 1 know it is attached as an
exhibit. I sce you went to Santa Rosa Junior College. Do
you have any degrees from that institution?
Ido not.
You also went to the University of Florida, the
Rehabilitation Training Institute.
You said you graduated from Postgraduate Advance Life
Care Planning. Is that a Bachelor’s degree? 1s that a degree
or is that a certificate that you have?
It’s a postgraduate certificate.
Do you have a Bachelor’s Degree?
Tdo not. So how did I get the postgraduate?

Yes, ma’am. Thanks.

POP OQ >

You're welcome. | applied and went through a very
extensive interview process with the head of the department,
Dr. Roger Weed, W-e-e-d.

Actually, I don’t think he was the department chair. He was
involved in the life care planning program and helping set it
up. Extensive interview process as well as submitting
examples of my work and a listing of pertinent or related
course work that I had completed. And I was admitted to
the program based on that information.

Q: What degree do you actually have, then, if you do have a
degree?

AL J have the certificate, the postgraduate certificate. Exh. A,
32:7-33:10.

The above testimony indicates Ms. McDonald lacks the foundation to present expert
testimony on the medical procedure costs her firm informally collected. She has nothing more
than the sort of “aficionado’s knowledge” just as easily and intelligently drawn by the trier of fact

as this witness. Cabrera, supra at 1423: Torres, supra at 45,
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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCBONALO OR, IN THE ALTERNATIVE, FORA HEARING
UNDER EVIDENCE CODE § 402 (MIL 20}

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VECKENNA LONG &
Atneoce LLP
ATTORNEYS AT LAW
BAN FRANCISCO

1. CaroL McDonatp’s Testimony IN Tus Case Is IRRELEVANT AND SHE
SHOULD BE PROHIBITED FROM TESTIFYING AT TRIAL

Here, plaintifis have offered Ms. McDonald for deposition for generic testimony only.

Defendant therefore reasonably concluded, based on prior experiences deposing her, that

Ms. McDonald’s testimony would in no way relate to the herein Plaintiff. Typically, when

offered for generic testimony, Ms, McDonald admits that she has conducted no case-specific

research, did not review any case-specific documents, generated no notes, and spoke to no one

about facts specific to this case:

Q.

>

Now, it’s my understanding that you were retained by the
law firm of Brayton Purcell to give generic opinion
testimony in the Barlettani, Kimbrough, and Martin (sic)
matters. Correct?

Yes. See deposition transcript of Ms. Carol McDonald in
Brayton Group 477, transcript captioned San Francisco
Superior Court Case Nos. 314112 (Barlettani), et ai.
attached as Exhibit B to the Declaration of Alecia E. Cotton
(Exh. B”), at 6:1 1-15.

Can you tell me when you were first retained in the
Barlettani matter.

I received an e-mail on April the 3rd, 2009, giving me the
date and time of the deposition.

And that was an e-mail from the Brayton law firm?
Yes, it was.

And was that, as far as you can think of, the very first
contact you had regarding the Barlettani matter?

That’s correct.

Okay. Is it the same e-mail and the same date for the
Kimbrough and Martin matters, or were those separate
contacts?

Kimbrough and Parker, yes.

Okay. And I'm sorry. You said Parker. Thank you very
much, I said Martin and I meant Parker.

Okay.

Okay. Allright. Thank you. So there was a single e-mail,
and it contained information regarding these three matters?

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR, IN THE ALTERNATIVE, FOR A HEARING

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UNDER EVIDENCE CODE § 402 (MI. 20)I A. Yes.
2 Q. Thank you. Since that e-mail, what other contacts have you
had from the Brayton firm regarding these three matters?
3
A. There has been nothing further.
4
Q. Okay. All right. Can you tell me how much time you spent
5 working specific to the Barlettani matter.
6 A. Only the review of the correspondence just discussed.
7 Q. Okay. So if] were to divvy your amount of time as to each,
could you answer that? Is it five minutes per?
8
A. With regard to each case?
9
Q. Correct.
10
A, It would be less than five nuinutes for all three, fo read.
i
Q. Okay. So a minute each would be about as fair as we might
12 get?
13 A. Yes.
14 Q. All right. And can you please describe for me all the
information you received specifically regarding Woodrow
15 Barlettani.
16 A. I received only the e-mail we just discussed, dated April 3,
2009, giving me the date, time, and call-in number for the
17 deposition today.
18 Q. Okay. Did you learn from that e-mail or from any other
source Mr, Barlettani’s age at any given point?
19
A. No.
20
Q. Where Mr. Barlettani lived?
2k
A. No.
22
Q. His disease?
23
A. No.
24
Q. His trade or his profession?
25
A. No.
26
Q. Did you learn that Mr. Barlettani had passed away?
27
A. No.
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aneeeees ee DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR INTHE ALTERNATIVE, FOR A HEARING
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Q. How about for Lena Parker? Had you at any point -- have
you at any point learned that she had passed away?

A. No.

Q. Do you know anything about Ms. ~ the claims regarding
Ms. Parker?

A. No.

Q. Did you know or did you learn of her husband, Richard
Parker’s, trade or profession?

A. No.
Okay. Similar sorts of questions for Delbert Kimbrough.
Did you learn his age, where he lived, his disease, his trade,
his profession, or that he had passed away?

A Nothing. Exh. B, 6:25-9:24.

The California Evidence Code provides that “[n]o evidence is admissible except relevant
evidence.” Cal, Evid. Code § 330. The test of relevance is whether “the evidence tends to
logically, naturally, and by reasonable inference, to establish material facts such as identity, intent
or motive. People y. Heard, 31 Cal.dth 946, 973 (20033. Evidence which is not pertinent to
issues raised by the pleadings is immaterial and it is an error to allow the introduction of such
evidence. Fuentes» Pucker, 34 Cal.2d 1,4 (1947). The trial court has broad discretion in
determining the relevance of evidence, but lacks discretion to admit relevant evidence. Meare
supra, 31 Cal.athat p. 973. The proponent of the proffered materials has the burden of producing
evidence of the preliminary facts upon which the relevance of the proffered evidence rests.
People v. Pizzuro, 110 Cal. App ath 530, 554 (2003),

Ms. McDonald does nothing to establish the relevant issue here: what are the reasonable
costs related to the Plaintiff’s medical treatment. Ms. McDonald’s testimony can only serve to
distract the jury with irrelevant, disparate facts which do nothing more than surmise treatment
costs at various hospitals within the Bay Area. Her testimony in the courtroom will do nothing
more than confuse the jury with useless and erroneous damages testimony and should be

prohibited.

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DEFENDANT'S MOTION IN TIMINE TO EXCLOGE THE TESTIMONY OF CAROL MCOONALD GR. INTHE ALTERNATIVE, FOR A HEARING
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2. PLAINTIFFS ARE ENTITLED TO RECOVER No MORE THAN THE ACTUAL
AMOUNT OF REASONABLE MEDICAL SERVICES

CACENe, 39034 “Medical Expenses - Past and Future (Economic Damages)” provides
that:
To recover damages for past medical expenses, plaintiffs must
prove the reasonable costs of reasonably necessary medical care
that he received. To recover damages for future medical expenses,

plaintiffs must prove the reasonable cost of reasonably necessary
medical care that he is reasonably certain to need in the future.

Similarly, former Jury Instruction BAJ! No, 14.10, which pertained to the “Measure of
Damages ~ Personal Injury ~ Expenses Incurred” provided:
The reasonable value of medical [hospital and nursing] care,
services and supplies reasonably required and actually given in the
treatment of the plaintiff to the present time [and the present cash

value of the reasonable value of similar items reasonably certain to
be required and given in the future].

Furthermore, BAJ! No, 14.76 defined “economic damages,” in pertinent part, as
“objectively verifiable monetary losses such as past and future medical expenses”. (Brackets
omitted.) However, plaintiffs’ desire to completely disregard these well-established guidelines,
as well as the fundamental requirement that plaintiffs bear the burden to establish causation and
damages, by seeking to introduce speculative testimony regarding the value of past and future
medical care. Instead of allowing the jury to determine a Plaintiffs damages based on his or her
actual medical treatment, Plaintiffs wish to introduce Ms. McDonald, who admits that when she
acquires medical costs on a case, she gets the “actual costs.” Exh, A, at 27:8-10. However,

Ms. McDonald's interpretation of actual costs include costs that “non-negotiated costs for each
medical for each medical procedure,” in other words, regardless of insurance or Medicare
discounts. Exh. B, at 19:7-20:19. Ms. McDonald’s “actual costs” are not the reasonable value of
medical costs in the State of California.

Under the principals of tort law, a plaintiff may not be placed in a better position that if
the alleged wrong had not been done. “A damage award for past medical expenses in an amount
greater than its actual cost ‘constitutes overcompensation.’” Kusiiziniisky v. Perry (2007) 153
Cal.Appatth 1288. 1294, Any reduction in a plaintiff's past and future medical billing must be

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DEFENOANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR. IN THE ALTERNATIVE, FOR A HEARING t
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MCKENNA LONG &
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ATTORNEYS AT Law
SAN FRANCISCO.

accounted for by the jury to prevent overcompensation. Plaintiffs must meet certain standards
regarding future damages. Speculative damages may not be recovered. Ramsey v. Peary (1942)
33 Cal.App.2d 773. Furthermore, to justify a recovery for future consequences, the evidence
must show with reasonable certainty that such consequences will follow. Shermun vy. freak
(1944} 63 Cal. App.2d 278. Accordingly, plaintiffs must meet these standards, as well as those
found in the jury instructions discussed. above, in order to introduce such evidence.
In Hanif v. Housing Authority of Yolo County (988) 200 Cal. App.3d 635, the issue was
“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.” /anif, 200 Cal. App. 3d at 640, The //:0:f court stated that “an award
of damages for past medical expenses in excess of what the medical care and services actually
cost constitutes overcompensation. Following an analysis of numerous cases the Hanif court
siated 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 that amount is reasonable.” Manif. 200
Cal.App.3d at 64], 643. (Emphasis in original.)
The Hanif court noted that a misunderstanding may have arisen from the language of
BAIT 14.10 which states the measure of damages as follows:
“The reasonable value of medical [hospital and nursing] care,
services, and supplies reasonably required and actually given in the
treatment of the plaintiff to the present time [and the present cash
value of the reasonable value of similar items reasonably certain to
be required and given in the future].”

A comment to BAJI No. 14.10 states:

“The reasonable value of medical and nursing care may be
recovered although rendered gratuitously or paid for by a source
independent of the wrongdoer.”

The //azif 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 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
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DEFENDANT'S MOTION IN LiMINE TO EXCLUDE THE TESTIMONY OF CAROL MCDONALD OR INTHE ALTERNATIVE, FOR A HEARING
UNDER EVIDENCE CODE § 402 [Mil. 20)

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ATTORNEYS AT Law
SAN FRANCISCO

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.” /fari/. 200) Cal App.3d at 641,

In Vishiheme v. City and County of Sun Francisca (2001) 93 Cai. App.4ih 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 (“CPMC”)’s 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 the
agreement CPMC accepted $3,600 as payment in full for plaintiffs medical treatment.

Plaintiff raised the issue that in accordance with California’s Hospital Lien Act (“HLA”)
and Civil Code §§ 3045.1-3045.6, CPMC had filed a lien against the judgment which reflected its
normal rates and argued that 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 \ishitan 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, Nisiihamea 93 CalApp.4ih at 307.

As was the case in //anif and Nishifiana, here the collateral source rule is not at issue.
The law in California is clear: “when the evidence shows a sum cettain 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 that it may have

been less than the prevailing market rate.” Nishihamu, supra. (2001) 93 CaLApp-tth ai 306

[citations omitted].

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DEFENDANT S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CAROL MODONALD Of IN THE ALTERNATIVE, FOR A HEARING
UNDER EVIDENCE CODE § 402 [MIL 20)

SP:27418538.11 In.
CONCLUSION
2
3 Based on the foregoing, Defendant respectfully requests that the Court grant this Motion
4 {| in Limine and enter an order precluding any opinions by Ms, Carol McDonald at trial. In the
5 | alternative, Defendant moves the court to conduct a hearing pursuant to /videnee Code
6 | sections 402 and 403 to determine the relevancy and/or admissibility, if any, of Ms. McDonald’s
7 | testimony.
8
9 | Dated: April 5, 2010 MCKENNA LONG & ALDRIDGE LLP
i
0 iif CL i
1 By: AN Gio 2 le.
Lisa L. OBERG
2 Danie. B. Hove
5 ALECIA E. COTTON
Attorneys for Defendant
4 METALCLAD INSULATION
5 CORPORATION
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AYTORNEYS AT Law DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CARGL MCDONALD OR, IN THE ALTERNATIVE, FOR A HEARING
San Francisco. UNDER EVIDENCE CODE § 402 [MIL 20} |

SF:27418558.1