Preview
Filing # 135888510 E-Filed 10/05/2021 12:01:19 AM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
CIVIL DIVISION
VIRGINIA PHILLIPS,
Plaintiff, CASE NO: 2019-CA-0142
Vv.
DONALD LAMBERT and
DJ’S ROOT SCOOTER, INC.,
A Florida Corporation,
Defendants.
/
DEFENDANT’S FIRST MOTION IN LIMINE REGARDING MEDICAID/MEDICARE
CHARGES, PAYMENTS, AND/OR ADJUSTMENTS TO PAST MEDICAL BILLS
COME NOW, Defendants, DONALD LAMBERT and DJ’S ROOT SCOOTER, INC., by
and through their undersigned counsel, and request that the Court enter a pre-trial order preventing
the Plaintiff, her attorneys, and/or her witnesses from introducing evidence regarding, arguing
about, presenting demonstrative aids about, or otherwise mentioning or referencing in any manner
the following:
1 Any amount of past medical bills over and above the amount actually paid by
Medicaid/Medicare, to the extent that the medical bills or remaining portions thereof have been
“written off” or the partial payment has been accepted as payment in full, at an amount smaller
than that stated on the bill.
MEMORANDUM OF LAW
In this personal injury action, the Plaintiff has presented or is expected to present medical
bills which she claims document her damages. However, discovery has revealed that due to
Medicare/Medicaid payments or other contractual or courtesy discounts, her providers have
accepted smaller payments as payment in full for those bills.
Electronically Filed Marion Case # 19CA000142AX 10/05/2021 12:01:19 AM
(00313934-1
Florida law thus does not permit Plaintiff to either introduce the “written off” portions into
evidence, argue about them, provide them as a demonstrative aid to the jury, or to otherwise seek
to recover those amounts. Accordingly, Defendant requests an appropriate Order in limine barring
the same from being introduced or otherwise referenced in any manner at trial.
The Second District most recently ruled on this issue in the case of Dial v. Calusa Palms
Mi aster Ass'n, Inc., 308 So. 3d 690 (Fla. 2" DCA 2020), which was decided in the wake of the
Joerg decision. In summary, the Second District in Dial held that its prior decision in Cooperativ
Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004) was not overruled or abrogated by
the Supreme Court in Joerg and thus remains good law to this day.
Accordingly, the Cooperative Leasing case involved a case where the plaintiff, Johnson,
sued multiple defendants for personal injuries sustained in an auto accident. Id. Her medical
providers originally billed her a total of $56,950.70. Id. However, the providers accepted
$13,461.00 from Medicare as payment in full for those services. Id. Before trial, the defendants
moved in limine to prevent the plaintiff from introducing into evidence anything other than those
accepted payments. Id. The trial court, however, denied the motion and the jury returned a verdict
that awarded the full, originally-billed amount. Id. After trial, the defendants again sought to have
that verdict reduced to the amount that had actually been paid on Johnson’s behalf. Id. The trial
court denied that motion as well, finding that Johnson was entitled to recover the full amount
originally charged. Id.
On appeal, the Second District reversed. Id. It first noted: “‘The objective of compensatory
damages is to make the injured party whole to the extent that it is possible to measure his injury in
terms of money.” Id.(quoting Mercury Motors Express, Inc., v. Smith, 393 So. 2d 545, 547 (Fla.
1981)). The court then reasoned that Johnson “was not entitled to recover for medical expenses
(00313934-1
beyond those paid by Medicare because she never had any liability for those expenses and would
have been made whole by an award limited to the amount that Medicare paid to her medical
providers.” Id. It further stated: “In Florida an injured party is entitled to recover the reasonable
value of medical care resulting from the defendant’s negligence. . the “reasonable value” of
medical services is limited to the amount accepted as payment in full for medical services.” Id.
Accordingly, the court held: “The trial court should have granted the [defendants’] motion in
limine and prohibited [the plaintiff] from introducing the full amount of her medical bills into
evidence.” Id. See also Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 550 (Fla. 4th DCA
2003)(“When a provider charges for medical service or products and later accepts a lesser sum in
full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to
prove that the claimant has suffered any loss by reason of the charge.”); Miami-Dade County v.
Laureiro, 894 So, 2d 268, 269 (Fla. 3d DCA 2004)(“Because the verdict may include amounts for
medical bills beyond those actually paid by Medicare, the judgment under review, while otherwise
affirmed, is vacated and the cause remanded.”); Boyd v. Nationwide Mut. Fire Ins. Co., 890 So.
2d 1240, 1241 (Fla. 4th DCA 2005)(‘‘evidence of the contractual discount by Medicare providers
should be excluded from trial”).
The same rule holds true if the medical bills are reduced for any reason other than
Medicare/Medicaid—the written-off amounts simply do not represent damage and thus are neither
relevant nor admissible. Goble v. Frohman, 848 So. 2d 406, 407 (Fla. 2d DCA 2003), affirmed,
Goble v. Frohman, 901 So. 2d 830, 831 (Fla. 2005).
Those opinions follow longstanding principles of Florida tort law, namely that the primary
basis for an award of compensatory damages is just that—compensation. E.g. McLeod v.
Continental Ins. Co., 591 So. 2d 621 (Fla. 1992)(“the primary basis for an award of damages is
(00313934-1
compensation and the objective is to make the injured party whole.”(quoting Fisher v. City of
Miami, 172 So. 2d 455, 457 (Fla. 1965)); Hanna v. Martin, 49 So. 2d 585, 587 (Fla. 1950)(the
“fundamental principle of the law of damages is that the person injured by breach of contract or
by wrongful or negligent act or omission shall have a fair and just compensation commensurate
with the loss sustained in consequence of the defendant’s act which give rise to the action. In other
words, the damages awarded should be equal to and precisely commensurate with the injury
sustained.”).
Therefore, The Plaintiff is entitled to seek compensation for the actual amounts paid and
actual liabilities incurred—his damages. Plaintiff is not entitled to seek windfall recoveries for
amounts for which he has not paid, will never pay, and for which he accordingly retains no liability.
See also Hollins v. Perry, 582 So. 2d 786 (Fla. 5th DCA 1991)(reversing and remanding for a
reduced judgment because the medical expense award was in excess of the plaintiffs
uncontroverted obligation to her health-care provider); Hanna, 49 So. 2d at 587(reversing and
remanding an economic damage award that was greater than the actual liabilities that the plaintiff
has sustained).
Following the Supreme Court’s decision in Joerg, trial courts in the Second District and
elsewhere were split on whether Cooperative Leasing was still good law following Joerg. That
debate has now been put to rest by the Second District in Dial. Specifically, the court in Dial went
onto affirm the validity of its prior ruling in Cooperative Leasing notwithstanding the holding in
Joerg. Dial v. Calusa Palms Master Ass'n, Inc., 308 So. 3d 690, 691 (Fla. 2"! DCA 2020). In doing
so, the Second District accurately noted that the holding in Joerg was limited in scope and the
Joerg court was simply drawing a distinction between past medical bills—for which any reductions
(00313934-1
would be certain rather than speculative—versus future medical bills—which are inherently
speculative in that there is no way to know what future reductions may or may not occur.
Specifically, in Joerg, the Supreme Court was reviewing the Second District Court of
Appeal’s decision in State Farm Mut. Auto. Ins. Co. v. Joerg, 188 So. 3d 852 (Fla. 2d DCA 2013).
In that underlying decision, the Second District confirmed that the trial court had properly ruled
that “evidence of past medical expenses must reflect the lower Medicare reimbursement amounts
because of Joerg’s participation in that program due to his disability.” Id. at 853(emphasis in
original)(citing Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004)). The
Second District then simply held that “evidence that Joerg’s future medical expenses could
likewise be reduced under the Medicare program.” Id.(emphasis in original).
Furthermore, the Second District astutely noted that the Joerg opinion includes a direct
quote from Cooperative Leasing, specifically with respect to the proposition that there is no risk
of a “windfall” to plaintiffs by precluding evidence of future Medicare benefits, thus implicitly
acknowledging that there is such a “windfall” to Plaintiffs in the case of past medical damages
where the reductions and write-offs are certain and incontrovertible at the time of trial. Dial at 692.
Thus, it is clear that the Supreme Court in Joerg was limiting its holding to future medical
expenses. This reading of Joerg has since been confirmed in the Second District’s opinion in Dial.
Accordingly, Joerg is inapplicable to the Defendant’s request in this case. In accordance
with Joerg, Defendant is not asking the Court to rule on any future damage issues. To the contrary,
in accordance with both Joerg and all of the above-cited and longstanding law, Defendant is simply
asking the Court to preclude evidence or argument related to past reductions.
Those reductions are neither speculative nor confusing. They have already been made, so
the amount The Plaintiff had to pay—his actual damage and thus the amount needed to make him
(00313934-1
whole—is a known quantity. The Plaintiff thus should not be permitted to present some other
“phantom” number to the jury when he has not paid, and will not ever have to pay, that amount.
Doing so would be nothing short of misleading, because it would be a representation to the jury
that the Plaintiff's economic damages—the amount required to make him whole—was something
other than the amount he is contractually obligated to pay.
For those reasons, the Court should enter an Order in limine barring any such evidence,
argument, or other presentation of amounts above and beyond what the Plaintiff or any other third-
party payors, including Medicare/Medicaid, actually paid on his behalf to satisfy those bills.
WHEREFORE, the Defendant respectfully requests that the Court enter a pre-trial order
preventing The Plaintiff, his attorneys, and/or his witnesses from introducing evidence regarding,
arguing about, presenting demonstrative aids about, or otherwise mentioning or referencing in any
manner the information described in this motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-served
through the Florida Courts E-filing Portal to: Scott J. Liotta, Esquire, Dan Newlin & Partners, 7335
W. Sand Lake Road, Suite 300, Orlando, F1 32819 at liotta.pleadings@newlinlaw.com this 4th day
of October 2021.
/s/Garrett M.Brown
Gregory D. Jones, Esquire
Florida Bar No.: 372285
Primary email: gjones@rywantalvarez.com
Secondary: service@rywantalvarez.com
mkeni@rywantalvarez.com
Garrett M. Brown, Esquire
Florida Bar No.: 1015765
Primary email:misabel@rywantalvarez.com
Secondary: mecarthy@rywantalvarez.com
Rywant, Alvarez, Jones, Russo & Guyton, P.A.
(00313934-1
302 Knights Run Ave., Suite 1000
Tampa, FL 33602
(Tel) 813-229-7007 / (Fax) 813-223-6544
Attorneys for Defendants
(00313934-1
Preview
Filing # 135888510 E-Filed 10/05/2021 12:01:19 AM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA CIVIL DIVISION VIRGINIA PHILLIPS, Plaintiff, CASE NO: 2019-CA-0142 Vv. DONALD LAMBERT and DJ’S ROOT SCOOTER, INC., A Florida Corporation, Defendants. / DEFENDANT’S FIRST MOTION IN LIMINE REGARDING MEDICAID/MEDICARE CHARGES, PAYMENTS, AND/OR ADJUSTMENTS TO PAST MEDICAL BILLS COME NOW, Defendants, DONALD LAMBERT and DJ’S ROOT SCOOTER, INC., by and through their undersigned counsel, and request that the Court enter a pre-trial order preventing the Plaintiff, her attorneys, and/or her witnesses from introducing evidence regarding, arguing about, presenting demonstrative aids about, or otherwise mentioning or referencing in any manner the following: 1 Any amount of past medical bills over and above the amount actually paid by Medicaid/Medicare, to the extent that the medical bills or remaining portions thereof have been “written off” or the partial payment has been accepted as payment in full, at an amount smaller than that stated on the bill. MEMORANDUM OF LAW In this personal injury action, the Plaintiff has presented or is expected to present medical bills which she claims document her damages. However, discovery has revealed that due to Medicare/Medicaid payments or other contractual or courtesy discounts, her providers have accepted smaller payments as payment in full for those bills. Electronically Filed Marion Case # 19CA000142AX 10/05/2021 12:01:19 AM (00313934-1 Florida law thus does not permit Plaintiff to either introduce the “written off” portions into evidence, argue about them, provide them as a demonstrative aid to the jury, or to otherwise seek to recover those amounts. Accordingly, Defendant requests an appropriate Order in limine barring the same from being introduced or otherwise referenced in any manner at trial. The Second District most recently ruled on this issue in the case of Dial v. Calusa Palms Mi aster Ass'n, Inc., 308 So. 3d 690 (Fla. 2" DCA 2020), which was decided in the wake of the Joerg decision. In summary, the Second District in Dial held that its prior decision in Cooperativ Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004) was not overruled or abrogated by the Supreme Court in Joerg and thus remains good law to this day. Accordingly, the Cooperative Leasing case involved a case where the plaintiff, Johnson, sued multiple defendants for personal injuries sustained in an auto accident. Id. Her medical providers originally billed her a total of $56,950.70. Id. However, the providers accepted $13,461.00 from Medicare as payment in full for those services. Id. Before trial, the defendants moved in limine to prevent the plaintiff from introducing into evidence anything other than those accepted payments. Id. The trial court, however, denied the motion and the jury returned a verdict that awarded the full, originally-billed amount. Id. After trial, the defendants again sought to have that verdict reduced to the amount that had actually been paid on Johnson’s behalf. Id. The trial court denied that motion as well, finding that Johnson was entitled to recover the full amount originally charged. Id. On appeal, the Second District reversed. Id. It first noted: “‘The objective of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money.” Id.(quoting Mercury Motors Express, Inc., v. Smith, 393 So. 2d 545, 547 (Fla. 1981)). The court then reasoned that Johnson “was not entitled to recover for medical expenses (00313934-1 beyond those paid by Medicare because she never had any liability for those expenses and would have been made whole by an award limited to the amount that Medicare paid to her medical providers.” Id. It further stated: “In Florida an injured party is entitled to recover the reasonable value of medical care resulting from the defendant’s negligence. . the “reasonable value” of medical services is limited to the amount accepted as payment in full for medical services.” Id. Accordingly, the court held: “The trial court should have granted the [defendants’] motion in limine and prohibited [the plaintiff] from introducing the full amount of her medical bills into evidence.” Id. See also Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 550 (Fla. 4th DCA 2003)(“When a provider charges for medical service or products and later accepts a lesser sum in full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to prove that the claimant has suffered any loss by reason of the charge.”); Miami-Dade County v. Laureiro, 894 So, 2d 268, 269 (Fla. 3d DCA 2004)(“Because the verdict may include amounts for medical bills beyond those actually paid by Medicare, the judgment under review, while otherwise affirmed, is vacated and the cause remanded.”); Boyd v. Nationwide Mut. Fire Ins. Co., 890 So. 2d 1240, 1241 (Fla. 4th DCA 2005)(‘‘evidence of the contractual discount by Medicare providers should be excluded from trial”). The same rule holds true if the medical bills are reduced for any reason other than Medicare/Medicaid—the written-off amounts simply do not represent damage and thus are neither relevant nor admissible. Goble v. Frohman, 848 So. 2d 406, 407 (Fla. 2d DCA 2003), affirmed, Goble v. Frohman, 901 So. 2d 830, 831 (Fla. 2005). Those opinions follow longstanding principles of Florida tort law, namely that the primary basis for an award of compensatory damages is just that—compensation. E.g. McLeod v. Continental Ins. Co., 591 So. 2d 621 (Fla. 1992)(“the primary basis for an award of damages is (00313934-1 compensation and the objective is to make the injured party whole.”(quoting Fisher v. City of Miami, 172 So. 2d 455, 457 (Fla. 1965)); Hanna v. Martin, 49 So. 2d 585, 587 (Fla. 1950)(the “fundamental principle of the law of damages is that the person injured by breach of contract or by wrongful or negligent act or omission shall have a fair and just compensation commensurate with the loss sustained in consequence of the defendant’s act which give rise to the action. In other words, the damages awarded should be equal to and precisely commensurate with the injury sustained.”). Therefore, The Plaintiff is entitled to seek compensation for the actual amounts paid and actual liabilities incurred—his damages. Plaintiff is not entitled to seek windfall recoveries for amounts for which he has not paid, will never pay, and for which he accordingly retains no liability. See also Hollins v. Perry, 582 So. 2d 786 (Fla. 5th DCA 1991)(reversing and remanding for a reduced judgment because the medical expense award was in excess of the plaintiffs uncontroverted obligation to her health-care provider); Hanna, 49 So. 2d at 587(reversing and remanding an economic damage award that was greater than the actual liabilities that the plaintiff has sustained). Following the Supreme Court’s decision in Joerg, trial courts in the Second District and elsewhere were split on whether Cooperative Leasing was still good law following Joerg. That debate has now been put to rest by the Second District in Dial. Specifically, the court in Dial went onto affirm the validity of its prior ruling in Cooperative Leasing notwithstanding the holding in Joerg. Dial v. Calusa Palms Master Ass'n, Inc., 308 So. 3d 690, 691 (Fla. 2"! DCA 2020). In doing so, the Second District accurately noted that the holding in Joerg was limited in scope and the Joerg court was simply drawing a distinction between past medical bills—for which any reductions (00313934-1 would be certain rather than speculative—versus future medical bills—which are inherently speculative in that there is no way to know what future reductions may or may not occur. Specifically, in Joerg, the Supreme Court was reviewing the Second District Court of Appeal’s decision in State Farm Mut. Auto. Ins. Co. v. Joerg, 188 So. 3d 852 (Fla. 2d DCA 2013). In that underlying decision, the Second District confirmed that the trial court had properly ruled that “evidence of past medical expenses must reflect the lower Medicare reimbursement amounts because of Joerg’s participation in that program due to his disability.” Id. at 853(emphasis in original)(citing Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004)). The Second District then simply held that “evidence that Joerg’s future medical expenses could likewise be reduced under the Medicare program.” Id.(emphasis in original). Furthermore, the Second District astutely noted that the Joerg opinion includes a direct quote from Cooperative Leasing, specifically with respect to the proposition that there is no risk of a “windfall” to plaintiffs by precluding evidence of future Medicare benefits, thus implicitly acknowledging that there is such a “windfall” to Plaintiffs in the case of past medical damages where the reductions and write-offs are certain and incontrovertible at the time of trial. Dial at 692. Thus, it is clear that the Supreme Court in Joerg was limiting its holding to future medical expenses. This reading of Joerg has since been confirmed in the Second District’s opinion in Dial. Accordingly, Joerg is inapplicable to the Defendant’s request in this case. In accordance with Joerg, Defendant is not asking the Court to rule on any future damage issues. To the contrary, in accordance with both Joerg and all of the above-cited and longstanding law, Defendant is simply asking the Court to preclude evidence or argument related to past reductions. Those reductions are neither speculative nor confusing. They have already been made, so the amount The Plaintiff had to pay—his actual damage and thus the amount needed to make him (00313934-1 whole—is a known quantity. The Plaintiff thus should not be permitted to present some other “phantom” number to the jury when he has not paid, and will not ever have to pay, that amount. Doing so would be nothing short of misleading, because it would be a representation to the jury that the Plaintiff's economic damages—the amount required to make him whole—was something other than the amount he is contractually obligated to pay. For those reasons, the Court should enter an Order in limine barring any such evidence, argument, or other presentation of amounts above and beyond what the Plaintiff or any other third- party payors, including Medicare/Medicaid, actually paid on his behalf to satisfy those bills. WHEREFORE, the Defendant respectfully requests that the Court enter a pre-trial order preventing The Plaintiff, his attorneys, and/or his witnesses from introducing evidence regarding, arguing about, presenting demonstrative aids about, or otherwise mentioning or referencing in any manner the information described in this motion. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-served through the Florida Courts E-filing Portal to: Scott J. Liotta, Esquire, Dan Newlin & Partners, 7335 W. Sand Lake Road, Suite 300, Orlando, F1 32819 at liotta.pleadings@newlinlaw.com this 4th day of October 2021. /s/Garrett M.Brown Gregory D. Jones, Esquire Florida Bar No.: 372285 Primary email: gjones@rywantalvarez.com Secondary: service@rywantalvarez.com mkeni@rywantalvarez.com Garrett M. Brown, Esquire Florida Bar No.: 1015765 Primary email:misabel@rywantalvarez.com Secondary: mecarthy@rywantalvarez.com Rywant, Alvarez, Jones, Russo & Guyton, P.A. (00313934-1 302 Knights Run Ave., Suite 1000 Tampa, FL 33602 (Tel) 813-229-7007 / (Fax) 813-223-6544 Attorneys for Defendants (00313934-1