Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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Dean Pollack, State Bar No. 176440
Raymond. A. Greene, III, State Bar No. 131510

BURNHAM BROWN ELECTRONICALLY
rofessional Law Corporation

P.O. Box | V i : sopekr IL EDP
Oakland, California 94604-0119 County of San Francisco
1901 Harrison Street, 14th Floor FEB 21 2012
Oakland, California 94612 Clerk of the Court
Telephone: (510) 444-6800 BY: VANESSA WU
Facsimile: (510) 835-6666 Deputy Clerk
Attorneys for Defendant

YORK INTERNATIONAL CORPORATION

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
CHARLES HUSBAND, No. CGC-09-275098
Plaintiff, MOTION IN LIMINE NO. 4

v. DEFENDANT YORK
INTERNATIONAL CORPORATION’S
ASBESTOS DEFENDANTS (B#P), MOTION IN LIMINE TO LIMIT
DAMAGES FOR MEDICAL
Defendants. EXPENSES TO THOSE ACTUALLY
INCURRED AND TO LIMIT
EVIDENCE ON THE ISSUE

Date:

Time:

Dept.: 608

Judge: Hon. Curtis E. A. Karnow

Complaint Filed: March 2, 2009
Pretrial Date: March 9, 2012

Defendant YORK INTERNATIONAL CORPORATION (“York”), before trial and jury
selection, moves this Court for an order in limine to limit damages for medical expenses to those
actually incurred and to limit evidence of medical expenses to the jury in the above-entitled
action.

L INTRODUCTION

In Howell vy. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541 (2011), the California

Supreme Court held that an injured plaintiff whose medical expenses are paid through private

insurance may recover as economic damages no more than the amounts paid by the plaintiff or

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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO LIMIT DAMAGES FOR CGC-09-275098
MEDICAL EXPENSES TO THOSE ACTUALLY INCURRED AND TO LIMIT EVIDENCE ON THE ISSUECe a KR he RB WY Ye

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his or her insurer for the past medical services received or still owing at the time of trial. The
court rejected plaintiff's argument that defendants are liable for the full billed amount, regardless
of any discount the insurer may negotiate. The Court’s ruling prevents plaintiff's from recovering
in damages more than the actual harm incurred, simply because the injured plaintiff did not
suffer any economic loss in that amount. ,

Based on past asbestos trials, Defendant anticipates that Plaintiff CHARLES HUSBAND
(‘Plaintiff’) will claim medical expenses for care given to Plaintiff based on testimony by
medical experts; the average value of medical services based on surveys; or the undiscounted or
unbilled and inflated provider invoices. These are improper means of determining past medical
expenses. Often, insurance companies will negotiate lower medical costs from medical
providers, Medical providers may also forgive or write off the difference between what an
insurance carrier will pay and the actual amount billed.

Plaintiff may only recover those medical expenses for which he or his insurer is liable to
pay. Therefore, what an expert believes is a “reasonable” amount of past medical expenses is an
improper basis for determining the amount of past medical expenses. So is evidence of medical
expenses over and above that which was negotiated by an insurance carrier or the written off or
discounted amount, because plaintiff is not legally obligated to pay that amount, The medical
provider has decided to forego the amount above the negotiated or discounted price with the
expectation that it will never be recovered. A patient/plaintiff is not, therefore, expected to repay
the written-off or discounted amount.

This comports with public policy and California law, because a plaintiff is in the position
of collecting past medical expenses as an indemnitor for the medical provider. After recovering
past medical expenses at trial, a plaintiff is expected to reimburse the medical provider or insurer
for the amounts they paid on the plaintiff's behalf. Allowing a plaintiff to collect more than what
he and his insurers actually paid or continue to be liable for, amounts to an improper windfall for
the plaintiff.

Evidence of a medical provider’s bills over and above that which was actually paid or for
which Plaintiff remains liable for past treatment and services are arguably admissible for the

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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO LIMIT DAMAGES FOR, CGC-09-275098
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limited purpose of proving the reasonableness of the amounts actually paid. However, such
evidence should not be presented to the jury because it is highly likely to confuse the finder of
fact. Consequently, defendant requests that this Court exclude any evidence of the amounts
billed that exceed the amounts paid or actually due for past medical expenses.
Il. LEGAL ARGUMENT
A Plaintiff Can Only Recover Past Medical Expenses Up To The

Amount He Or His Insurance Company Actually Paid Or For Which
They Remain Liable

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. Melone v. Sierra Railway Co. (1907) 151 Cal. 113, 115;
Gimber v. Laramie (1960) 181 Cal.App.2d 77, 81. A plaintiff may recover for medical expenses
billed by his medical provider “as long as the plaintiff legitimately incurs those expenses and
remains liable for their payment.” Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1291.
The issue presented is “whether the ‘reasonable value’ 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.” Hanif v, Housing Authority of Yolo County
(1988) 200 Cal.App.3d 635, 640. The appellate court in Hanif found that an award of damages
for past medical expenses in excess of what the medical care and services actually cost
constitutes overcompensation, and 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.” Id, at 643.

The Howell Court continued with the reasoning of Hanif. In Howell, Ms. Howell was
injured in an auto accident. Her providers billed approximately $190,000, but accepted as
payment in full from her insurers about $60,000. The California Supreme Court reversed the
Court of Appeals’ decision reversing the trial court's reduction of the medical damages award,
holding that the trial court properly granted defendant’s motion reducing the past medical
damages award to reflect the amount the medical providers accepted as payment in full. The
Court further held that evidence of the higher billed amount was irrelevant on the issue of past

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DEF. YORK INTERNATIONAL CORPORATION’S MOTION IN LIMINE TO LIMIT DAMAGES FOR CGC-09-275098
MEDICAL EXPENSES TO THOSE ACTUALLY INCURRED AND TO LIMIT EVIDENCE ON THE ISSUECe Fe NY DR HA FF BW NO

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medical expenses, although because the issue was not presented by the defendant in this case,
the court expressed no opinion as to its relevance or admissibility on other issues, such as non-
economic damages or future medical expenses. Thus, it is still an open question whether
plaintiffs can put the higher billed amounts in front of a jury even though Howell recognizes that
the bills are irrelevant as to past medical damages, and may even be inadmissible because unduly
prejudicial.

Under Howell and Hanif, to be recoverable a medical expense must be both incurred and
reasonable. The Howell Court noted that “the general rule under the Restatement!, as well as
California law, is that a personal injury plaintiff may recover the lesser of (a) the amount aid or
incurred for medical services, and (b) the reasonable value of the services.” Howell at 556
(emphasis in original).

WW. CONCLUSION

Since medical expenses actually paid ot incurred are the only expenses recoverable by
plaintiff, plaintiff should be limited in the evidence offered on the issue of past medical
expenses. As damages cannot be awarded against York for medical expenses which neither
Plaintiff nor his insurer were required to pay, this Court is requested to issue an in limine order
that any evidence of those expenses, such as copies of medical bills or expert testimony about
those bills, is admissible only to the extent that they establish the amounts actually paid by or on
behalf of plaintiff.

DATED: February 21, 2012 BURNHAM BROWN

Mw

RAYMOND A. GREENE, IIT

Attorneys for Defendant YORK
INTERNATIONAL CORPORATION

1116888

 Rest.2d Torts, § 911, com. h, pp. 476-77
4

DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO LIMIT DAMAGES FOR CGC-09-275098
MEDICAL EXPENSES TO THOSE ACTUALLY INCURRED AND TO LIMIT EVIDENCE ON THE ISSUE .Re: Charles Husband v. Asbestos Defendants (BP)
Court: San Francisco Superior Court
Action No: _£LGC-09-275098

PROOF OF SERVICE OF ELECTRONIC SERVICE

I declare that I am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnham Brown whose business address is 1901 Harrison Street,
14" Floor, Oakland, Alameda County, California 94612 (mailing address: Post Office
Box 119, Oakland, California 94604).

On the date executed below, I electronically served the document(s) via
LexisNexis File & Serve described as:

DEFENDANT YORK INTERNATIONAL CORPORATION’S MOTION IN
LIMINE TO LIMIT DAMAGES FOR MEDICAL EXPENSES TO THOSE
ACTUALLY INCURRED AND TO LIMIT EVIDENCE ON THE ISSUE

on recipients designated on the Transaction Receipt located on the LexisNexis File &
Serve website. I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct and was executed on February 21, 2012,
at Oakland, California.

‘

ie ‘Andrew-Marshall é —

1040060

PROOF OF SERVICE CGC 09-275098