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Filing # 196674463 E-Filed 04/22/2024 10:53:04 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
CHARLES A. ANDERSON, III,
Plaintiff, CASE NO. 2021-CA-003164-AN
v. DIVISION: 20
THE ESTATE OF KENNETH ELTON
NICHOLLS, SCI SHARED RESOURCES,
LLC, and S.E. CEMETERIES OF FLORIDA,
LLC d/b/a GLEN HAVEN MEMORIAL
PARK,
Defendants.
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE PRESENTATION OF
PLAINTIFF’S PAST MEDICAL DAMAGES BEYOND AMOUNTS REIMBURSED BY
MEDICAID
Defendants Estate of Kenneth Elton Nicholls, SCI Shared Resources, LLC, and S.E.
Cemeteries of Florida, LLC (collectively “Defendants”), by and through undersigned counsel,
hereby files this Motion in Limine to exclude evidence of Plaintiff Charles A. Anderson, III’s past
medical damages exceeding amounts paid or payable by Medicaid.
I. RELEVANT FACTUAL BACKGROUND
This personal injury action arises out of a motor vehicle accident which occurred on
January 30, 2019, at the intersection of Florida State Road 423 (John Young Parkway) and Thacker
Avenue. This case is currently scheduled for a jury trial during the three-week calendar
commencing June 24, 2024.
Plaintiff is a Medicaid beneficiary. Accordingly, it does not appear that Plaintiff has paid
any of the $308,463.20 total medical bills claimed. Rather, it appears most of it has been adjusted
down and/or written off.
II. ARGUMENT AND CITATION OF AUTHORITY
The purpose of a motion in limine is to prevent the introduction of improper evidence, the
mere mention of which at trial would be prejudicial. Fittipaldi USA, Inc. v. Castroneves, 905 So.
2d 182, 187 (Fla. 3d DCA 2005). “Generally, [t]he standard of review of a trial court’s ruling on
a motion in limine is abuse of discretion . . . .” Vazquez v. Citizens Prop. Ins. Corp., 304 So. 3d
1280, 1284 (Fla. 3d DCA 2020) (quotations omitted).
In this case, Plaintiff may attempt to use in the presence of the jury the amount charged by
his medical providers as opposed to use the amounts actually paid or payable by Medicaid.
Defendants respectfully submit that this would be improper. Such evidence should be limited to
the amount of the Medicaid lien because Plaintiff is only entitled to recover the amount paid or
payable by Medicaid, not the amount charged by his medical providers. Using the latter amounts
would mislead a jury’s impression of recoverable damages since the Plaintiff’s right to recovery
is strictly limited to the amount of his medical lien. See Goble v. Frohman, 901 So. 2d 830, 833
(Fla. 2003).
The amount of Plaintiff’s alleged medical bills that should be presented to the jury should
be the actual charges paid, not what was billed, because the billed amounts are not representative
of the medical expenses incurred. See id. at 835 (holding that plaintiff’s recovery for medical
expenses was limited “to the amount of medical expenses that he actually was obligated to pay”);
Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 550 (Fla. 4th DCA 2003) (“We therefore
conclude that defendant is entitled to have the past medical expenses awarded by the jury reduced
– to the extent such amounts are actually included in the past medical expenses awarded – by the
difference between the amounts charged by a provider and the amounts actually paid that provider
by Medicare.”); Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956, 960 (Fla. 2d DCA 2004)
(“Accordingly, we hold that the appropriate measure of compensatory damages for past medical
2
expenses when a plaintiff has received Medicare benefits does not include the difference between
the amount that the Medicare providers agreed to accept and the total amount of the plaintiff’s
medical bills.”); 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 . . . .”); Matrisciani v.
Garrison Prop. & Cas. Ins. Co., 298 So. 3d 53, 59 (Fla. 4th DCA 2020) (noting that “it is error to
permit a plaintiff to introduce into evidence (and to request from the jury) the gross amount of
medical bills rather than the lesser amount actually paid as a governmental or charitable benefit in
full settlement of those bills”); Gulfstream Park Racing Ass’n, Inc. v. Volin, 326 So. 3d 1124,
1127 (Fla. 4th DCA 2021) (“The gross amount the provider billed is inadmissible as evidence
when Medicare satisfies the plaintiff’s medical expenses for a lesser amount.”).
Trial courts routinely grant defense motions in limine prohibiting personal injury plaintiffs
from introducing the full amount of their past medical expenses. See, e.g., Humphries v. Zaccari,
No. 2020CA001543AXX, 2022 WL 17415347, at *3 (Palm Beach Cnty. Cir. Ct. May 23, 2022)
(“Plaintiff is precluded from introducing evidence as to the original charges beyond the
corresponding Medicare rates for the same to establish past medical expenses.”); Cantrill v. Ferris,
Case No. 2013-CA-4462, 2019 Fla. Cir. LEXIS 3833, at *1 (Manatee Cnty. Cir. Ct. May 16, 2019)
(“In establishing compensatory damages Plaintiff shall not present to the jury the difference
between the amount that the Medicare providers agreed to accept and the total amount of the
plaintiff’s medical bills.”); Lucey v. Joseph, Case No. 16-CA-01509, 2019 Fla. Cir. LEXIS 5127,
at *1 (Charlotte Cnty. Cir. Ct. Feb. 20, 2019) (ruling that “the difference between the amount billed
by the health care providers and the amount paid or the amount owed to the health care providers
is not admissible”; “allowing Plaintiff to recover an amount equal to the full amount of his medical
3
bills, including the amount for which he never became liable and for which the federal government
has no right to reimbursement would result in a windfall that is contrary to the legislative policy
evidenced by Florida Statute Section 768.76(2)(b)”); Little v. Memorial Healthcare Grp., Inc., No.
16-2015-CA-7823, 2018 WL 11458293, at *1 (Duval Cnty. Cir. Ct. Oct. 24, 2018) (“Plaintiff is
precluded from introducing evidence regarding the gross amount of the past medical bills, and may
only submit into evidence the amount actually paid by Medicare and Medicaid.”); Richardson v.
Wal-Mart Stores, Inc., No. 2014 CA 015197, 2017 WL 8943313, at *1 (Palm Beach Cnty. Cir. Ct.
Dec. 13, 2017) (“Plaintiff is prohibited, at the time of trial, from introducing the full amount of
medical bills from these Providers and shall only be allowed to attempt to introduce medical bills
at the Medicare reimbursement rate then existing at the time those services were provided”); Dial
v. Calusa Palms Master Ass’n, Inc., No. 36-2016-CA-001114, 2017 WL 10841945, at *1 (Lee
Cnty. Cir. Ct. Dec. 5, 2017) (ruling that “only the amounts of past medical bills paid by Medicare,
any Medicare supplemental insurance company, or Plaintiff herself from September 1, 2015,
through the date of trial shall be allowed to be placed in evidence and mentioned to or in the
presence of the jury”); Aldana v. Pyles, No. 14-2030-CAB, 2016 WL 10520352, at *1 (Marion
Cnty. Cir. Ct. Dec. 20, 2016) (“Plaintiffs shall be permitted to provide to the jury as past medical
bills only those net amounts after reductions, adjustments, and/or write-offs made following
payment by Medicare, Medicaid, and/or PIP benefits.”); Naranjo v. Wal-Mart Stores, Inc., No.
14CA012655, 2016 WL 4937449, at *1 (Hillsborough Cnty. Cir. Ct. Apr. 19, 2016) (“Plaintiff
shall only be permitted to introduce into evidence the amounts actually paid by Medicare, as
opposed to the amount charged to Medicare, as potential past medical expenses.”); Yeager v. Pena,
No. 12-CA-020013, 2016 WL 11800707, at *1 (Hillsborough Cnty. Cir. Ct. Apr. 8, 2016)
(“Plaintiff shall be prohibited from introducing into evidence the full amount of any medical bill,
4
invoice, or statement ultimately paid by Medicare and will be limited at trial to presenting evidence
only of the past medical expense amounts actually paid by Medicare.”); Chowdhury v. Tumbev,
No. 012013CA005253, 2015 WL 9875397, at *1 (Alachua Cnty. Cir. Ct. Sept. 29, 2015)
(“Plaintiff, Plaintiff’s counsel and all witnesses will not mention, reference or allude to the full
amount of Plaintiff’s past medical bills in excess of the amounts actually paid by Medicare and
any amounts owed.”); McGauley v. Doctors Radiology Grp. of Gainesville, LLC, No.
012010CA005732, 2013 WL 12251407, at *2 (Alachua Cnty. Cir. Ct. Nov. 7, 2013) (holding that
“evidence of any amount in excess of that actually paid by Medicare is inadmissible”); Maschi v.
Indian River Mem. Hosp., Inc., No. 312008CA010117, 2012 WL 7849919 (Indian R. Cnty. Cir.
Ct. Jan. 17, 2012) (granting defendant’s motion in limine prohibiting introduction of charges
deemed satisfied by provider’s acceptance of Medicare benefits because “permitting gross medical
bills when a person is covered by Medicare would artificially inflate past and present medical
bills”). Copies of these decisions are attached hereto as Exhibit A.
In those cases, the courts held that it was error to permit the plaintiff to introduce into
evidence (and to request from the jury) the gross amount of medical bills, rather than the lesser
amount actually paid in full settlement of those bills. Simply put, as the court held in Cooperative
Leasing, “[t]he trial court should have granted the appellants’ motion in limine and prohibited
[plaintiff] from introducing the full amount of her medical bills into evidence.” 872 So. 2d at 960.
Additionally, to the extent that any of Plaintiff’s medical bills were written off, those amounts
should be excluded from any medical expenses submitted to the jury as an element of damages.1
The logic supporting these rulings is unassailable. “Permitting Plaintiff to present evidence
1
This does not violate the collateral source rule. See § 768.76(2)(b), Fla. Stat. (stating that
“benefits received under Medicare . . . shall not be considered a collateral source”).
5
at trial of the gross amount of medical bills would potentially enable Plaintiff to improperly receive
a windfall given that Plaintiff incurred no obligation or liability to repay the difference between
the gross amount charged and the amount paid by Medicare and Medicaid to her medical
providers.” Little, 2018 WL 11458293, at *1. Plaintiff is not entitled to recover as damages the
amount by which his medical provider’s charges were reduced upon acceptance of payment from
Medicaid. Permitting such recovery would provide an undeserved windfall to Plaintiff.
Furthermore, any mention of such amount would cause substantial prejudice to Defendants.
Under § 90.403, Fla. Stat., “[r]elevant evidence is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the
jury, or needless presentation of cumulative evidence.” Here, the effect of admitting phantom
damages will unnecessarily inflate the monetary damages which the jury will be asked to consider.
This would mislead the jury on the true value of Plaintiff’s alleged damages, inject an artificial
and inflated value to this issue, and cause prejudice to Defendants by its erroneous admission.
A fundamental principle of Florida law is that the measure of compensatory damages in a
tort case is limited to the actual damages sustained by the injured party. Hannah v. Martin, 49 So.
2d 585, 587 (Fla. 1950). “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.” Mercury Motors
Express, Inc. v. Smith, 393 So. 2d 545, 547 (Fla. 1981). As the Fourth District noted in Lasky,
this is an evidentiary issue: “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.”
868 So. 2d at 551.
Thus, as Plaintiff can only recover those past medical benefits which his providers have
6
accepted as full payment, the face value of past medical bills in excess of that amount is irrelevant.
Under § 90.401, Fla. Stat., relevant evidence is any evidence that tends to prove or disprove a
material fact. Here, Plaintiff should be precluded from introducing evidence which is irrelevant
to the issue of his true compensatory damages, and from misleading this jury and causing prejudice
to Defendants by admitting evidence of a class of damage he cannot recover.
WHEREFORE, Defendants respectfully request an order prohibiting Plaintiff from
introducing the full amount of his past medical bills into evidence, and limiting his presentation of
past medical damages to the jury to only those bills that were paid or are payable by Medicaid, and
any other relief that this Honorable Court deems fair and just under the circumstances.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that a lawyer in my firm with full authority to resolve this matter
had a substantive conversation by telephone and by video conference with opposing counsel in a
good faith effort to resolve this motion before the motion was noticed for hearing but the parties
were unable to reach an agreement.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that pursuant to Fla. R. Jud. Admin. 2.516, a true and correct
copy of the foregoing was served via electronic mail to all counsel on the attached Service List on
April 22, 2024.
7
Respectfully submitted,
WEINBERG, WHEELER, HUDGINS,
GUNN & DIAL, LLC
/s/ Matthew T. Gomes
LAWRENCE E. BURKHALTER
Florida Bar No.: 186104
MATTHEW T. GOMES
Florida Bar No.: 117030
3350 Virginia Street, Suite 500
Miami, Florida 33133
Telephone: (305) 455-9500
Facsimile: (305) 455-9501
E-Mail: lburkhalter@wwhgd.com
mgomes@wwhgd.com
aperdomo@wwhgd.com
arezende@wwhgd.com
atressler@wwhgd.com
Attorneys for Defendants
SERVICE LIST
Nadine S. Diaz, Esq.
Walter L. Grantham, Jr., Esq.
Darrigo & Diaz, P.A.
4504 North Armenia Avenue
Tampa, FL 33603
Telephone: (813) 877-5548
ndiaz@ddlawtampa.com
wgrantham@ddlawtampa.com
mail@ddlawtampa.com
Attorneys for Plaintiff
8
EXHIBIT A
Humphries v. Zuccari, 2022 WL 17415347 (2022)
2022 WL 17415347 (Fla.Cir.Ct.) (Trial Order)
Circuit Court of Florida,
Fifteenth Judicial Circuit, Civil Division.
Palm Beach County
Christa HUMPHRIES, Plaintiff,
v.
Larry ZUCCARI, Defendant.
No. 2020CA001543AXX.
May 23, 2022.
*1 Div: “AF”
Order on Defendant’s Motion in Limine on Plaintiff’s Past Medical Expenses
THIS CAUSE came before the Court on March 7, 2022 upon Defendant’s Motion in Limine on Plaintiffs Past Medical
Expenses (“Motion”), and the Court, having reviewed the Motion, the Plaintiffs Response in Opposition, having reviewed the
court file and record, having heard argument of counsel, being familiar with the applicable law, and after being otherwise
duly advised in the premises, finds as follows:
A. Factual Findings.
1. This is a personal injury action arising out of a December 7, 2018 auto accident.
2. Plaintiff seeks, among other damages, recovery of past medical expenses.
3. Plaintiff is enrolled in Medicare and was so enrolled at the time of the accident.
4. The following medical providers provided treatment to Plaintiff, submitted Plaintiffs bills to Medicare, and were paid by
Medicare: (a) Jupiter Pain; (b) Resolute Pain; (c) Jupiter Outpatient; (d) MD Now; (e) Palm Beach Gardens Hospital; and (f)
Good Sam Hospital.
5. Defendant seeks to limit evidence to the amounts Medicare paid for the treatment/services in past medical expenses for
these six providers. Plaintiff agrees to this relief.
6. The following medical providers provided treatment to Plaintiff, did not opt-out of Medicare, and did not submit bills to
Medicare: (a) Dr. Theofolis; (b) Dr. Contando; and (c) Advanced Diagnosis.
7. Defendant seeks to limit evidence to the amounts Medicare would have paid had Plaintiffs bills been submitted by these
three providers to Medicare. Plaintiff opposes this relief.
B. Legal Analysis and Ruling.
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Humphries v. Zuccari, 2022 WL 17415347 (2022)
1. Limitations on recoverable past medical expenses in a personal injury action.
It is Plaintiffs burden to present evidence proving a “specific and definite amount of economic damage,” including those for
past medical treatment. United Auto. Ins. Co. v. Colon, 990 So. 2d 1246, 1248 (Fla. 4th DCA 2008) (internal citations
omitted). A personal injury plaintiff can recover compensatory or actual damages for the loss (designed to make the plaintiff
whole) but cannot recover damages in excess of the amount that represents that actual loss sustained. MCI WorldCom
Network Servs., v. Mastec, Inc., 995 So. 2d 221, 223 (Fla. 2008); Coop. Leasing, Inc. v. Johnson, 872 So. 2d 956, 957-58
(Fla. 2d DCA 2004).
2. Medical providers participating in Medicare must accept Medicare rates unless they properly opt-out of the
Medicare program.
Medicare was enacted as Title XVIII of the Social Security act and titled, “Health Insurance for the Aged and Disabled.” 42
U.S.C. § 1395, et. seq. The Centers for Medicare & Medicaid Services (“CMS”) administers the Medicare program and states
as follows with regard to medical charges to beneficiaries for services covered by Medicare: “[I]f the provider bills Medicare,
the provider must accept the Medicare approved amount as payment in full and may charge beneficiaries only deductibles
and coinsurance.”1
1 Medicare Secondary Payer (MSP) Manual, Chapter 2 - MSP Provisions,
https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/msp105c02.pdf
*2 The Social Security Act and Section 1848(g)(4)(A) states in pertinent part: For services furnished on or after September 1,
1990, within 1 year after the date of providing a service for which payment is made under this part on a reasonable charge or
fee schedule basis, a physician, supplier, or other person (or an employer or facility in the cases described in section
1842(b)(6)(A)
(i) shall complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on
behalf of a beneficiary; and
(ii) may not impose any charge relating to completing and submitting such a form.
42 U.S.C. § 1395w-4(g)(4)(A)(i-ii).
“If the physician fails to submit a claim to the Medicare carrier on behalf of the beneficiary when one is required to be
submitted the Secretary may impose sanctions.” Stewart v. Sullivan, 816 F. Supp. 281, 284 (D.N.J. 1992). See 42 U.S.C. §
1395w-4(g)(4)(B)(i-ii).
Providers may elect not to bill Medicare under 42 U.S.C. § 1395a under limited circumstances if they properly “opt-out” of
Medicare. Federal law requires providers to follow strict processes for opting out of the program. See 42 U.S.C. § 1395a; 42
C.F.R. §§ 405.405, 405.410, 405.420, 405.425 & 405.430. If the provider does not follow all requirements for opting out, a
private contract requiring a patient to pay the full amount of the provider’s charge for medical treatment is null and void. See
Medicare Benefit Policy Manual, Chapter 15 at 40.10, Failure to Properly Opt Out (explaining that when either the private
contract does not meet required specifications, or the practitioner fails to submit an opt-out affidavit, the contract is null and
void and “[t]he physician/practitioner must submit claims to Medicare for all Medicare-covered items and services furnished
to Medicare beneficiaries, including the items and services furnished under the nullified contracts.”).2 See also 42 C.F.R. §§
405.405(c), (d); 405.430.
2 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c15.pdf
In this case, Plaintiffs providers were enrolled in the Medicare program and did not opt-out; they were required to accept
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Humphries v. Zuccari, 2022 WL 17415347 (2022)
Medicare rates for the services/treatment as a matter of law.
3. A plaintiff is not entitled to admit into evidence and recover more than what Medicare paid (or would pay) for
medical expenses.
Medicare rates for treatment are generally less than those billed by health care providers. See generally Bailey v. Rocky Mt.
Holdings, LLC, 889 F.3d 1259, 1271 n. 24 (11th Cir. 2018) (discussing Medicare rates for medical services). Nevertheless,
“payment by Medicare requires the provider to whom payment is made to accept such amount in full satisfaction of the total
charge even though the amount charged exceeds the amount paid by Medicare.” Thyssenkrupp Elevator Corp. v. Lasky, 868
So. 2d 547, 549 (Fla. 4th DCA 2003).
The undiscounted excess medical charges cannot be admitted in evidence because it would result in a windfall to the Plaintiff
by permitting recovery for past medical expenses for which she was never and will never be liable for. Thyssenkrupp, 868 So.
2d at 550. As the Court in Cooperative Leasing, Inc. stated:
The issue in this case is the appropriate measure of compensatory damages for past medical expenses. “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.” Mercury Motors Express, Inc., v. Smith, 393 So. 2d 545, 547 (Fla. 1981). “The primary basis for an award of
damages is compensation.” Fisher v. City of Miami, 172 So. 2d 455, 457 (Fla. 1965). In this case, Johnson sought to
collect the “additional value of medical services reasonably made necessary” by the appellants. We conclude, however,
that Johnson was not entitled to recover for medical expenses 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.
*3 Coop. Leasing, Inc., 872 So. 2d at 957-58.
Original charges by health care providers, therefore, are irrelevant and inadmissible when the provider accepts payment from
Medicare in full satisfaction of the charge. See Thyssenkrupp, 868 So. 2d at 551. “[I]t is error to permit a plaintiff to introduce
into evidence (and to request from the jury) the gross amount of medical bills rather than the lesser amount actually paid as a
governmental or charitable benefit in full settlement of those bills.” Matrisciani v. Garrison Prop. & Cas. Ins. Co., 298 So.
3d 53, 59 (Fla. 4th DCA 2020) (citing Thyssenkrupp, Boyd, and Coop. Leasing, Inc.). See also Dial v. Calusa Palms Master
Ass’n, 308 So. 3d 690 (Fla. 2d DCA 2020) (affirming decision limiting evidence of Plaintiff’s past medical expenses to the
Medicare bills that were tendered and paid); Gulfstream Park Racing Ass’n v. Volin, 326 So. 3d 1124 (Fla. 4th DCA 2021)
(holding the circuit court erred in allowing Plaintiff to introduce evidence of the amount billed by medical providers
(“phantom damages”) instead of the discounted amount Medicare paid for past medical expenses).
Notably, Medicare is not a collateral source subject to reduction post-trial, pursuant to section 768.76, Florida Statues.
“Section 768.79 excludes Medicare benefits as collateral sources because the federal government has a right to
reimbursement ... for payments it has made on [a plaintiffs] behalf.” Coop. Leasing, Inc., 872 So. 2d at 960. See also
Matrisciani, 298 So. 3d at 58; Humana Medical Plan, Inc. v. Reale, 180 So. 3d 195, 207 (Fla. 3d DCA 2015) (holding that
section 768.76, Florida Statutes, excludes consideration of Medicare benefits as a collateral source).
The parties here agree that Plaintiff can only introduce into evidence (and recover), the past medical expenses in the amount
paid by Medicare. Accordingly, Plaintiff may only introduce into evidence the discounted amounts Medicare paid for past
medical expenses for the following providers: (a) Jupiter Pain; (b) Resolute Pain; (c) Jupiter Outpatient; (d) MD Now; (e)
Palm Beach Gardens Hospital; and (f) Good Sam Hospital.
Additionally, based on the facts and legal authority outlined above, the Court finds and concludes as follows: (1) Plaintiff
bears the burden of proving a specific and definite amount of past medical expenses; (2) Plaintiff cannot recover in excess of
the damages sustained; (3) Plaintiff was a Medicare beneficiary at all material times; (4) as a Medicare beneficiary, Plaintiff
is not liable for reimbursement of any amount in excess of Medicare rates; (5) none of Plaintiff’s health care providers
opted-out of Medicare, and were, therefore, required by law to submit Plaintiff’s bills to Medicare and accept Medicare rates
as payment in full; (6) those providers who did not properly opt-out violated statutory law by not submitting Plaintiff’s bills
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Humphries v. Zuccari, 2022 WL 17415347 (2022)
to Medicare; (7) the improper charges in excess of applicable Medicare rates are not recoverable either by the providers or
Plaintiff; and (8) awarding Plaintiff anything above the Medicare rates would result in a wind-fall as over and above the
amounts necessary to make Plaintiff whole. Accordingly, Plaintiff is precluded from introducing evidence as to the original
charges beyond the corresponding Medicare rates for the same to establish past medical expenses.
4. Joerg applies only to future Medicare benefits, not past Medicare benefits.
*4 Plaintiff relies on Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015) in opposition to
Defendant’s Motion. The holding in Joerg is inapplicable because it only applies to future Medicare benefits, which are
uncertain and for which Medicare retains a right of reimbursement. Id. at 1253. Defendant is not attempting to limit evidence
as to future treatment potentially covered by Medicare. Defendant’s motion pertained only to past medical treatment, which
should have been paid for by Medicare. Instead, this issue is governed by Coop. Leasing and Thyssenkrupp both of which
remain good law. See Dial, 308 So. 3d at 691 (determining that Joerg did not abrogate the evidentiary ruling in Coop.
Leasing, and only spoke to future Medicare benefits, not past benefits).
5. The presence of Defendant’s liability insurer as a potential primary payer is irrelevant.
Plaintiff argues Medicare is a secondary payer under federal law, and the presence of primary payer (in this case the
Defendant’s insurer) precludes Medicare from paying for Plaintiffs treatment. Initially, this is incorrect as Medicare has paid
much of Plaintiffs past medical bills in this case. Additionally, regardless of whether there may be a primary payer, such
entity’s responsibility to pay has not been demonstrated. Even if it had been demonstrated, that would only mean the primary
payer is responsible for reimbursing Medicare for Medicare’s conditional payments made at the Medicare rates. In any event,
the most Plaintiff could recover would be the rates charged by Medicare.
“The Medicare Secondary Payer statute (“MSP”) ... makes Medicare the secondary payer for medical services provided to
Medicare beneficiaries whenever payment is available from another primary payer.” Glover v. Liggett Group, Inc., 459 F.3d
1304, 1306 (11th Cir. 2006). One such primary payer is an automobile or liability insurance policy or plan. Id. (citing 42
U.S.C. § 1395y(b)(2)(A)). See also MSP Recovery Claims v. QBE Holdings, Inc., 965 F.3d 1210, 1214 (11th Cir. 2020)
(“Sometimes a third party has an obligation to pay for a beneficiary’s healthcare costs, such as when a person enrolled in
Medicare is injured in an automobile accident caused by another driver ..”); Cochran v. U.S. Health Care Fin. Admin., 291
F.3d 775, 777 (11th Cir. 2002) (primary payer includes the private insurer of someone liable to the beneficiary).
“This means that if payment for covered services has been or is reasonably expected to be made by someone else, Medicare
does not have to pay.” Glover at 1306. But Medicare often makes conditional payments for covered services when the
primary payer is not expected to pay promptly. Id. “The way the system is set up the beneficiary gets the health care she
needs, but Medicare is entitled to reimbursement if and when the primary payer pays her.” Cochran, 291 F.3d at 777.
Authority to make conditional payment. The Secretary may make payment under this title with respect to an item or
service if a primary plan described in subparagraph (A)(ii) [subpara. (A)] has not made or cannot reasonably be expected
to make payment with respect to such item or service promptly (as determined in accordance with regulations). Any such
payment by the Secretary shall be conditioned on reimbursement to the appropriate Trust Fund in accordance with the
succeeding provisions of this subsection.
42 U.S.C. § 1395y(b)(2)(B)(i) (emphasis added).
In that scenario, Medicare has a right of reimbursement from the primary payer. Reimbursement must occur if the primary
payer “has or had a responsibility to make payment with respect to such item or service.” Glover at id. (quoting 42 U.S.C. §
1395y(b)(2)(B)(ii)). Responsibility is demonstrated by “a judgment, a payment conditioned upon the recipient’s compromise,
waiver, or release (whether or not there is a determination of liability) of payment for items or services included in a claim
against the primary plan or the primary plan’s insured, or by other means.” Id. In other words, “a separate adjudication or
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Humphries v. Zuccari, 2022 WL 17415347 (2022)
agreement.” MSP Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1361 (11th Cir. 2016) (“In Glover, we concluded that
responsibility [to pay] must be demonstrated by ‘a separate adjudication or agreement.’ ”). See also Cochran, 291 F.3d at 778
(reimbursement responsibility based on “judgments or settlements related to injuries for which Medicare paid medical costs,
thereby casting the tortfeasor as the primary payer”). “That is why Medicare asks attorneys handling any related tort suits for
its beneficiaries to supply the agency with a copy of the agreement setting out the share of the recovery they are to receive.”
Id.
*5 In Glover, Plaintiff argued Defendants’ (primary payers) responsibility to pay was demonstrated simply because
Defendants were litigating a state court tort claim. Glover, 459 F.3d at 1308. The Eleventh Circuit rejected that argument.
Defendants’ responsibility to pay was not demonstrated simply by being a party to the tort litigation. Defendants were never
adjudicated liable and never made a payment conditioned on a release of claims for the health care expenses caused by the
tort. Id. at 1308. Defendants’ responsibility to pay for items or services, therefore, was not demonstrated simply based on
filing the underlying tort action or the subsequent action under the MSP to recover benefits. Id. at 1309. Until Defendants’
responsibility to pay is demonstrated (e.g., by a judgment), there is no obligation to reimburse Medicare. Id. The Eleventh
Circuit, in a different case, gave a real-world example:
As with most complex concepts, a real-world example helps make the Act’s contours more clear. Imagine a 65-year-old
Medicare beneficiary who is injured when he slips on the wet floor of a supermarket and subsequently receives medical
attention for his injuries. If the supermarket’s negligence caused the man’s injuries, the supermarket (or its liability
insurance carrier) is ultimately responsible for his medical bills. But if the supermarket denies responsibility, litigation may
be required to resolve the man’s negligence claim, and he may not have the money to pay for his medical care in the
meantime. Because this is a situation in which the supermarket cannot reasonably be expected to pay promptly, the Act
allows Medicare to pay the man’s medical bills on a conditional basis.
Now imagine that the man and the supermarket settle the negligence claim and that the supermarket’s insurer pays the
settlement funds to the man. To recoup the medical payments Medicare conditionally made, the Act allows the government
to sue the insurer (which, because of the settlement, has been demonstrated to be the primary payer), the injured man (who
is the recipient of a payment from the primary payment), or both of them. The government can, of course, recover only
once, see 54 Fed. Reg. 41716, 41720 (Oct. 11, 1989) (the agency “will not pursue duplicate recoveries”), and if its
recovery is against the insurer, the insurer can in turn sue the man to recover the payment it made to him, see Shalala, 23
F.3d at 418 n.4. See also 42 C.F.R. § 411.24(i)(1) (“If Medicare is not reimbursed as required ... the primary payer must
reimburse Medicare even though it has already reimbursed the beneficiary or other party.”).
U.S. v. Stricker, 524 F. App’x. 500, 504 (11th Cir. 2013) (emphasis added). See also Shapiro v. Sec’y of HHS, No.
15-22151-Civ-COOKE/TORRES, 2017 U.S. Dist. LEXIS 42278, *6 (S.D. Fla. Mar. 23, 2017) (explaining tortfeasor’s
post-judgment and post-settlement responsibility to reimburse Medicare).
Additionally, 42 U.S.C. § 1395y(b)(2)(A) does not address whether providers may charge or bill a Medicare beneficiary in
excess of Medicare rates or whether they may enter into a private contract with a beneficiary without first opting out of the
Medicare program. Thus, health care providers remain legally restricted in the amounts they can charge Medicare
beneficiaries regardless of whether those charges are ultimately paid by Medicare or a primary payer in the future.
In this lawsuit, regardless of whether there may be a primary payer, such entity’s responsibility to pay has not been
demonstrated. Such entity is not even a party to this lawsuit. And there is no judgment and no settlement in this case. The
simple fact that an entity may insure the Defendant in this action does not demonstrate that entity’s responsibility to pay for
Plaintiffs medical expenses.
Moreover, even if Medicare had paid for Plaintiffs medical expenses, and even if-ultimately-an insurer is responsible to
reimburse Medicare as the primary payer, the insurer would reimburse Medicare at the rates charged by Medicare. Absent
properly opting-out of Medicare, nothing in 42 U.S.C. § 1395y suggests a provider can charge greater amounts than
Medicare’s rates. Further, the CMS guidelines again state: “[I]f the provider bills Medicare, the provider must accept the
Medicare approved amount as payment in full and may charge beneficiaries only deductibles and coinsurance.” 10
*6 Thus, Plaintiff would still only incur actual medical expenses at the lower Medicare rates. And only those costs may be
awarded to make the Plaintiff whole.
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 5
Humphries v. Zuccari, 2022 WL 17415347 (2022)
6. A Plaintiff also owes an obligation to submit medical bills to Medicare.
A Medicare beneficiary can submit his bills to Medicare if his physicians do not.3 Doing so would mitigate the Plaintiff’s
damages.
3 See https://www.medicare.gov/claims-and-appeals/file-a-claim/file-a-claim.html
[T]he term “mitigation of damages” has no single meaning and is used by the courts to describe several different problems in
the law of damages, the term as used herein encompasses those facts which tend to show that the conceded or assumed cause
of action does not entitle the plaintiff to as large an amount of damages as would otherwise be recoverable. Specifically, the
type of problem litigated herein involves the doctrine of avoidable consequences, or efforts to minimize damages, where the
plaintiff reasonably could have avoided a part or all of the consequences of the defendant’s wrongful act.
Parker v. Montgomery, 529 So. 2d 1145, 1147 (Fla. 1st DCA 1988) (concluding that “the concept of avoidable consequences
or mitigation of damages is included within the ... definition of comparative fault”).
Both comparative fault and avoidable consequences make recovery dependent on the plaintiff’s proper care of the protection
of her own interests and both require she act as a reasonable person under the circumstances. Ridley v. Safety Kleen Corp.,
693 So. 2d 934, 942 (Fla. 1996). “Accordingly, if some of the damages incurred could have reasonably been avoided by the
plaintiff, [this] doctrine prevents those damages from being added to the amount of damages recoverable.” Id.; See also Sys.
Components Corp. v. Fla. DOT, 14 So. 3d 967, 982 (Fla. 2009).
7. Public policy favors limiting a plaintiff to recover only Medicare’s reimbursement rates.
Not only does federal law require the providers accept Medicare, but public policy favors requiring providers accept
Medicare reimbursement rates for Medicare enrolled patient/plaintiffs. Judge Thomas H. Barkdull, III issued a
comprehensive order on this issue. In granting Defendant’s motion to limit evidence of medical expenses to Medicare
rates-where Plaintiffs providers were required but did not submit Plaintiffs bills to Medicare-he explained the public policy
reasons in support of his decision:
The particular danger that is sought to be avoided are situations where patients/plaintiffs, who are Medicare beneficiaries
and who have filed suit against an alleged tortfeasor, receive medical treatment from providers who would otherwise
accept Medicare reimbursement rates but decline to submit bills for treatment through Medicare in these litigation cases so
that they may charge and claim full value for their treatment. All too frequently, these plaintiffs, who, by virtue of being
Medicare recipients, are recognized as being at-risk population due either to seniority or disability, are left with exorbitant
medical bills when they are unsuccessful in litigation.
Based on this long standing established public policy, this Court finds that in addition to the federal regulations which
govern how participating physicians and practitioners are permitted to charge and contract with beneficiaries, there is a
legitimate government interest in protecting the elderly community and other beneficiaries from being charged in excess of
Medicare reimbursement rates and in properly and thoroughly advising plaintiff-patients of the perils of permitting their
providers to bill outside of the Medicare reimbursement schedules. These public policy concerns support this Court’s
ruling.
*7 Richardson v. Wal-Mart Stores, Inc., No. 2014-CA-015197 (Fla. 15th Cir. Ct., Dec 13, 2017) (Order on Re-Hearing on
Wal-Mart Stores, Inc.’s Motion to Limit Medical Bills Provided Under Letters of Protection).
The purpose behind Title XVIII of the Social Security Act, the administration of the Medicare program by CMS, and the case
law cited above, is thwarted by permitting Plaintiff to recover in excess of Medicare rates when the services/treatment is
required by law to be limited to Medicare rates. Plaintiffs health care providers here are only legally permitted to charge
Plaintiff in the amounts established by the Medicare program. Plaintiff, therefore, is only responsible for that amount, which
would represent Plaintiffs compensatory damages. If a defendant can only be liable for Plaintiff’s compensatory damages for
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 6
Humphries v. Zuccari, 2022 WL 17415347 (2022)
past medical expenses, it would contravene public policy for said defendant be held liable for an amount greater than what
Plaintiff would ever be responsible for paying. WHEREFORE, it is hereby
ORDERED and ADJUDGED that Defendant’s Motion is GRANTED. Plaintiff may only introduce into evidence (and
recover) the amounts of past medical expenses paid by Medicare for the following providers: (a) Jupiter Pain; (b) Resolute
Pain; (c) Jupiter Outpatient; (d) MD Now; (e) Palm Beach Gardens Hospital; and (f) Good Sam Hospital. Plaintiff may only
introduce into evidence (and recover) the Medicare rates for her past medical expenses billed by the following providers: (a)
Dr. Theofolis; (b) Dr. Contando; and (c) Advanced Diagnosis.
DONE and ORDERED in Chambers, at West Palm Beach, Palm Beach County, Florida, this ___ day of May, 2022.
<>
502020CA001543XXXXMB
05/23/2022
John S. Kastrenakes
Circuit Judge
JOHN S. KASTRENKES
Circuit Judge
Copies furnished:
Jonathan M. Cox, Esquire, Keller, Keller & Caracuzzo, P.A., jc@kkcinjuyrlaw.com and christina@kkcinjurylaw.com
Thomas A. Berger, Esquire, Boyd & Jenerette, PA, tberger@boydjen.com and Mkruemmel@boydjen.com
End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 7
Cited
As of: February 2, 2024 5:40 PM Z
Cantrill v. Ferris
Circuit Court of the Twelfth Judicial Circuit of Florida, Manatee County
May 16, 2019, Decided; May 17, 2019, Filed
Case No. 2013-CA-4462
Reporter
2019 Fla. Cir. LEXIS 3833 *
JOSHUA RAY CANTRILL, Plaintiff, v. KRISTOPHER
SCOTT FERRIS, RACHEL M. WEBER,
Defendants.LERAY CANTRILL, Plaintiff, v.
KRISTOPHER SCOTT FERRIS, Defendant.
Judges: [*1] CHARLES SNIFFEN, County Judge.
Opinion by: CHARLES SNIFFEN
Opinion
PARTIAL ORDER ON DEFENDANTS' FIRST MOTION
IN LIMINE
THIS CAUSE having come before the Court upon the
above referenced motion, and the Court having
reviewed the motion and Court file, heard argument of
counsel, and being otherwise fully advised, it is hereby,
ORDERED AND ADJUDGED as follows:
1. Paragraph 15 of the motion is GRANTED. In
establishing compensatory damages Plaintiff shall not
present to the jury the difference between the amount
that the Medicare providers agreed to accept and the
total amount of the plaintiff's medical bills. See Coop.
Leasing, Inc. v. Johnson, 872 So. 2d 956, 960 (Fla. 2d
DCA 2004) and Thyssenkrupp Elevator Corp. v. Lasky,
868 So. 2d 547 (Fla. 4th DCA 2003).
DONE AND ORDERED in Bradenton, Manatee County,
Florida this 16 day of MAY, 2019.
/s/ Charles Sniffen
CHARLES SNIFFEN
County Judge
End of Document
Cited
As of: February 2, 2024 5:39 PM Z
Lucey v. Joseph
Circuit Court of the Twentieth Judicial Circuit of Florida, Charlotte County
February 20, 2019, Decided; February 20, 2019, Filed
CASE NO. 16-CA-01509
Reporter
2019 Fla. Cir. LEXIS 5127 *
the Department of Health and Rehabilitative Services
DAVID T. LUCEY and MONICA LUCEY, Plaintiffs, vs.
shall not be considered a collateral source." Fla. Stat.
SOVI JOSEPH, M.D.; SOVI JOSEPH, M.D. P.A.;
§768.76(2)(b). "Benefits received under Medicare" have
STEVEN GOLDIN, M.D.; and 21st CENTURY
been defined to mean only the amount paid to medical
ONCOLOGY, LLC, Defendants.
providers. See Cooperative Leasing, Inc. v. Johnson,
872 at 960.
Core Terms
As benefits received under Medicare are not a collateral
benefits received, medical bill, healthcare provider, source [*2] under Florida Statute Section 768.76 (2)(b),
federal government, collateral source, amount paid, in they cannot be set off from his recovery under Florida
limine, reimbursement, recipient Statute Section 768.76 (2)(b). Cooperative Leasing, Inc.
v. Johnson, 872 So.2d 956, 960 (Fla. 2nd DCA 2004).
Judges: [*1] LISA PORTER, JUDGE. Therefore, allowing Plaintiff to recover an amount equal
to the full amount of his medical bills, including the
Opinion by: LISA PORTER amount for which he never became liable and for which
the federal government has no right to reimbursement
Opinion would result in a windfall that is contrary to the
legislative policy evidenced by Florida Statute Section
768.76 (2)(b). Id. Accordingly, the difference between
the amount billed by the health care providers and the
ORDER ON PLAINTIFFS' SECOND SUPPLEMENTAL amount paid or the amount owed to the health care
MOTION IN LIMINE (NO. 47) REGARDING providers is not admissible. Cooperative Leasing, Inc. v.
INTRODUCING AMOUNT OF MEDICAL BILLS AT Johnson, 872 So.2d 956 (Fla. 2nd DCA 2004);
TRIAL Thyssenkrupp Elevator Corporation v. Lasky, 868 So.2d
547 (Fla. 4th DCA 2003). As Plaintiff is a Medicare
THIS MATTER came on for hearing on October 31,
recipient, only the final lien amount(s) will be presented
2018, upon Plaintiffs' Second Supplemental Motion in
to the jury.
Limine (No. 47) Regarding Introducing Amount of
Medical Bills At Trial, and the Court having reviewed the /s/ Lisa Porter
pleadings, having heard argument of counsel and being
otherwise fully advised in the premises, it is hereby eSigned by JUDGE LISA PORTER in 16001509OA
ORDERED AND ADJUDGED as follows: on 02/20/2019 15:13:22 q85WaczK
Denied. Plaintiff, David Lucey, is a Medicare recipient.
Pursuant to Florida Statute Section 768.76 (2)(b), End of Document
"...benefits received under Medicare, or any other
federal program providing for a Federal Government lien
on or right of reimbursement from the plaintiff's
recovery, the Workers' Compensation Law, the
Medicaid program of Title XIX of the Social Securit
Preview
Filing # 196674463 E-Filed 04/22/2024 10:53:04 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION CHARLES A. ANDERSON, III, Plaintiff, CASE NO. 2021-CA-003164-AN v. DIVISION: 20 THE ESTATE OF KENNETH ELTON NICHOLLS, SCI SHARED RESOURCES, LLC, and S.E. CEMETERIES OF FLORIDA, LLC d/b/a GLEN HAVEN MEMORIAL PARK, Defendants. DEFENDANT’S MOTION IN LIMINE TO EXCLUDE PRESENTATION OF PLAINTIFF’S PAST MEDICAL DAMAGES BEYOND AMOUNTS REIMBURSED BY MEDICAID Defendants Estate of Kenneth Elton Nicholls, SCI Shared Resources, LLC, and S.E. Cemeteries of Florida, LLC (collectively “Defendants”), by and through undersigned counsel, hereby files this Motion in Limine to exclude evidence of Plaintiff Charles A. Anderson, III’s past medical damages exceeding amounts paid or payable by Medicaid. I. RELEVANT FACTUAL BACKGROUND This personal injury action arises out of a motor vehicle accident which occurred on January 30, 2019, at the intersection of Florida State Road 423 (John Young Parkway) and Thacker Avenue. This case is currently scheduled for a jury trial during the three-week calendar commencing June 24, 2024. Plaintiff is a Medicaid beneficiary. Accordingly, it does not appear that Plaintiff has paid any of the $308,463.20 total medical bills claimed. Rather, it appears most of it has been adjusted down and/or written off. II. ARGUMENT AND CITATION OF AUTHORITY The purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial. Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 187 (Fla. 3d DCA 2005). “Generally, [t]he standard of review of a trial court’s ruling on a motion in limine is abuse of discretion . . . .” Vazquez v. Citizens Prop. Ins. Corp., 304 So. 3d 1280, 1284 (Fla. 3d DCA 2020) (quotations omitted). In this case, Plaintiff may attempt to use in the presence of the jury the amount charged by his medical providers as opposed to use the amounts actually paid or payable by Medicaid. Defendants respectfully submit that this would be improper. Such evidence should be limited to the amount of the Medicaid lien because Plaintiff is only entitled to recover the amount paid or payable by Medicaid, not the amount charged by his medical providers. Using the latter amounts would mislead a jury’s impression of recoverable damages since the Plaintiff’s right to recovery is strictly limited to the amount of his medical lien. See Goble v. Frohman, 901 So. 2d 830, 833 (Fla. 2003). The amount of Plaintiff’s alleged medical bills that should be presented to the jury should be the actual charges paid, not what was billed, because the billed amounts are not representative of the medical expenses incurred. See id. at 835 (holding that plaintiff’s recovery for medical expenses was limited “to the amount of medical expenses that he actually was obligated to pay”); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 550 (Fla. 4th DCA 2003) (“We therefore conclude that defendant is entitled to have the past medical expenses awarded by the jury reduced – to the extent such amounts are actually included in the past medical expenses awarded – by the difference between the amounts charged by a provider and the amounts actually paid that provider by Medicare.”); Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956, 960 (Fla. 2d DCA 2004) (“Accordingly, we hold that the appropriate measure of compensatory damages for past medical 2 expenses when a plaintiff has received Medicare benefits does not include the difference between the amount that the Medicare providers agreed to accept and the total amount of the plaintiff’s medical bills.”); 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 . . . .”); Matrisciani v. Garrison Prop. & Cas. Ins. Co., 298 So. 3d 53, 59 (Fla. 4th DCA 2020) (noting that “it is error to permit a plaintiff to introduce into evidence (and to request from the jury) the gross amount of medical bills rather than the lesser amount actually paid as a governmental or charitable benefit in full settlement of those bills”); Gulfstream Park Racing Ass’n, Inc. v. Volin, 326 So. 3d 1124, 1127 (Fla. 4th DCA 2021) (“The gross amount the provider billed is inadmissible as evidence when Medicare satisfies the plaintiff’s medical expenses for a lesser amount.”). Trial courts routinely grant defense motions in limine prohibiting personal injury plaintiffs from introducing the full amount of their past medical expenses. See, e.g., Humphries v. Zaccari, No. 2020CA001543AXX, 2022 WL 17415347, at *3 (Palm Beach Cnty. Cir. Ct. May 23, 2022) (“Plaintiff is precluded from introducing evidence as to the original charges beyond the corresponding Medicare rates for the same to establish past medical expenses.”); Cantrill v. Ferris, Case No. 2013-CA-4462, 2019 Fla. Cir. LEXIS 3833, at *1 (Manatee Cnty. Cir. Ct. May 16, 2019) (“In establishing compensatory damages Plaintiff shall not present to the jury the difference between the amount that the Medicare providers agreed to accept and the total amount of the plaintiff’s medical bills.”); Lucey v. Joseph, Case No. 16-CA-01509, 2019 Fla. Cir. LEXIS 5127, at *1 (Charlotte Cnty. Cir. Ct. Feb. 20, 2019) (ruling that “the difference between the amount billed by the health care providers and the amount paid or the amount owed to the health care providers is not admissible”; “allowing Plaintiff to recover an amount equal to the full amount of his medical 3 bills, including the amount for which he never became liable and for which the federal government has no right to reimbursement would result in a windfall that is contrary to the legislative policy evidenced by Florida Statute Section 768.76(2)(b)”); Little v. Memorial Healthcare Grp., Inc., No. 16-2015-CA-7823, 2018 WL 11458293, at *1 (Duval Cnty. Cir. Ct. Oct. 24, 2018) (“Plaintiff is precluded from introducing evidence regarding the gross amount of the past medical bills, and may only submit into evidence the amount actually paid by Medicare and Medicaid.”); Richardson v. Wal-Mart Stores, Inc., No. 2014 CA 015197, 2017 WL 8943313, at *1 (Palm Beach Cnty. Cir. Ct. Dec. 13, 2017) (“Plaintiff is prohibited, at the time of trial, from introducing the full amount of medical bills from these Providers and shall only be allowed to attempt to introduce medical bills at the Medicare reimbursement rate then existing at the time those services were provided”); Dial v. Calusa Palms Master Ass’n, Inc., No. 36-2016-CA-001114, 2017 WL 10841945, at *1 (Lee Cnty. Cir. Ct. Dec. 5, 2017) (ruling that “only the amounts of past medical bills paid by Medicare, any Medicare supplemental insurance company, or Plaintiff herself from September 1, 2015, through the date of trial shall be allowed to be placed in evidence and mentioned to or in the presence of the jury”); Aldana v. Pyles, No. 14-2030-CAB, 2016 WL 10520352, at *1 (Marion Cnty. Cir. Ct. Dec. 20, 2016) (“Plaintiffs shall be permitted to provide to the jury as past medical bills only those net amounts after reductions, adjustments, and/or write-offs made following payment by Medicare, Medicaid, and/or PIP benefits.”); Naranjo v. Wal-Mart Stores, Inc., No. 14CA012655, 2016 WL 4937449, at *1 (Hillsborough Cnty. Cir. Ct. Apr. 19, 2016) (“Plaintiff shall only be permitted to introduce into evidence the amounts actually paid by Medicare, as opposed to the amount charged to Medicare, as potential past medical expenses.”); Yeager v. Pena, No. 12-CA-020013, 2016 WL 11800707, at *1 (Hillsborough Cnty. Cir. Ct. Apr. 8, 2016) (“Plaintiff shall be prohibited from introducing into evidence the full amount of any medical bill, 4 invoice, or statement ultimately paid by Medicare and will be limited at trial to presenting evidence only of the past medical expense amounts actually paid by Medicare.”); Chowdhury v. Tumbev, No. 012013CA005253, 2015 WL 9875397, at *1 (Alachua Cnty. Cir. Ct. Sept. 29, 2015) (“Plaintiff, Plaintiff’s counsel and all witnesses will not mention, reference or allude to the full amount of Plaintiff’s past medical bills in excess of the amounts actually paid by Medicare and any amounts owed.”); McGauley v. Doctors Radiology Grp. of Gainesville, LLC, No. 012010CA005732, 2013 WL 12251407, at *2 (Alachua Cnty. Cir. Ct. Nov. 7, 2013) (holding that “evidence of any amount in excess of that actually paid by Medicare is inadmissible”); Maschi v. Indian River Mem. Hosp., Inc., No. 312008CA010117, 2012 WL 7849919 (Indian R. Cnty. Cir. Ct. Jan. 17, 2012) (granting defendant’s motion in limine prohibiting introduction of charges deemed satisfied by provider’s acceptance of Medicare benefits because “permitting gross medical bills when a person is covered by Medicare would artificially inflate past and present medical bills”). Copies of these decisions are attached hereto as Exhibit A. In those cases, the courts held that it was error to permit the plaintiff to introduce into evidence (and to request from the jury) the gross amount of medical bills, rather than the lesser amount actually paid in full settlement of those bills. Simply put, as the court held in Cooperative Leasing, “[t]he trial court should have granted the appellants’ motion in limine and prohibited [plaintiff] from introducing the full amount of her medical bills into evidence.” 872 So. 2d at 960. Additionally, to the extent that any of Plaintiff’s medical bills were written off, those amounts should be excluded from any medical expenses submitted to the jury as an element of damages.1 The logic supporting these rulings is unassailable. “Permitting Plaintiff to present evidence 1 This does not violate the collateral source rule. See § 768.76(2)(b), Fla. Stat. (stating that “benefits received under Medicare . . . shall not be considered a collateral source”). 5 at trial of the gross amount of medical bills would potentially enable Plaintiff to improperly receive a windfall given that Plaintiff incurred no obligation or liability to repay the difference between the gross amount charged and the amount paid by Medicare and Medicaid to her medical providers.” Little, 2018 WL 11458293, at *1. Plaintiff is not entitled to recover as damages the amount by which his medical provider’s charges were reduced upon acceptance of payment from Medicaid. Permitting such recovery would provide an undeserved windfall to Plaintiff. Furthermore, any mention of such amount would cause substantial prejudice to Defendants. Under § 90.403, Fla. Stat., “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Here, the effect of admitting phantom damages will unnecessarily inflate the monetary damages which the jury will be asked to consider. This would mislead the jury on the true value of Plaintiff’s alleged damages, inject an artificial and inflated value to this issue, and cause prejudice to Defendants by its erroneous admission. A fundamental principle of Florida law is that the measure of compensatory damages in a tort case is limited to the actual damages sustained by the injured party. Hannah v. Martin, 49 So. 2d 585, 587 (Fla. 1950). “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.” Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545, 547 (Fla. 1981). As the Fourth District noted in Lasky, this is an evidentiary issue: “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.” 868 So. 2d at 551. Thus, as Plaintiff can only recover those past medical benefits which his providers have 6 accepted as full payment, the face value of past medical bills in excess of that amount is irrelevant. Under § 90.401, Fla. Stat., relevant evidence is any evidence that tends to prove or disprove a material fact. Here, Plaintiff should be precluded from introducing evidence which is irrelevant to the issue of his true compensatory damages, and from misleading this jury and causing prejudice to Defendants by admitting evidence of a class of damage he cannot recover. WHEREFORE, Defendants respectfully request an order prohibiting Plaintiff from introducing the full amount of his past medical bills into evidence, and limiting his presentation of past medical damages to the jury to only those bills that were paid or are payable by Medicaid, and any other relief that this Honorable Court deems fair and just under the circumstances. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that a lawyer in my firm with full authority to resolve this matter had a substantive conversation by telephone and by video conference with opposing counsel in a good faith effort to resolve this motion before the motion was noticed for hearing but the parties were unable to reach an agreement. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that pursuant to Fla. R. Jud. Admin. 2.516, a true and correct copy of the foregoing was served via electronic mail to all counsel on the attached Service List on April 22, 2024. 7 Respectfully submitted, WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Matthew T. Gomes LAWRENCE E. BURKHALTER Florida Bar No.: 186104 MATTHEW T. GOMES Florida Bar No.: 117030 3350 Virginia Street, Suite 500 Miami, Florida 33133 Telephone: (305) 455-9500 Facsimile: (305) 455-9501 E-Mail: lburkhalter@wwhgd.com mgomes@wwhgd.com aperdomo@wwhgd.com arezende@wwhgd.com atressler@wwhgd.com Attorneys for Defendants SERVICE LIST Nadine S. Diaz, Esq. Walter L. Grantham, Jr., Esq. Darrigo & Diaz, P.A. 4504 North Armenia Avenue Tampa, FL 33603 Telephone: (813) 877-5548 ndiaz@ddlawtampa.com wgrantham@ddlawtampa.com mail@ddlawtampa.com Attorneys for Plaintiff 8 EXHIBIT A Humphries v. Zuccari, 2022 WL 17415347 (2022) 2022 WL 17415347 (Fla.Cir.Ct.) (Trial Order) Circuit Court of Florida, Fifteenth Judicial Circuit, Civil Division. Palm Beach County Christa HUMPHRIES, Plaintiff, v. Larry ZUCCARI, Defendant. No. 2020CA001543AXX. May 23, 2022. *1 Div: “AF” Order on Defendant’s Motion in Limine on Plaintiff’s Past Medical Expenses THIS CAUSE came before the Court on March 7, 2022 upon Defendant’s Motion in Limine on Plaintiffs Past Medical Expenses (“Motion”), and the Court, having reviewed the Motion, the Plaintiffs Response in Opposition, having reviewed the court file and record, having heard argument of counsel, being familiar with the applicable law, and after being otherwise duly advised in the premises, finds as follows: A. Factual Findings. 1. This is a personal injury action arising out of a December 7, 2018 auto accident. 2. Plaintiff seeks, among other damages, recovery of past medical expenses. 3. Plaintiff is enrolled in Medicare and was so enrolled at the time of the accident. 4. The following medical providers provided treatment to Plaintiff, submitted Plaintiffs bills to Medicare, and were paid by Medicare: (a) Jupiter Pain; (b) Resolute Pain; (c) Jupiter Outpatient; (d) MD Now; (e) Palm Beach Gardens Hospital; and (f) Good Sam Hospital. 5. Defendant seeks to limit evidence to the amounts Medicare paid for the treatment/services in past medical expenses for these six providers. Plaintiff agrees to this relief. 6. The following medical providers provided treatment to Plaintiff, did not opt-out of Medicare, and did not submit bills to Medicare: (a) Dr. Theofolis; (b) Dr. Contando; and (c) Advanced Diagnosis. 7. Defendant seeks to limit evidence to the amounts Medicare would have paid had Plaintiffs bills been submitted by these three providers to Medicare. Plaintiff opposes this relief. B. Legal Analysis and Ruling. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 Humphries v. Zuccari, 2022 WL 17415347 (2022) 1. Limitations on recoverable past medical expenses in a personal injury action. It is Plaintiffs burden to present evidence proving a “specific and definite amount of economic damage,” including those for past medical treatment. United Auto. Ins. Co. v. Colon, 990 So. 2d 1246, 1248 (Fla. 4th DCA 2008) (internal citations omitted). A personal injury plaintiff can recover compensatory or actual damages for the loss (designed to make the plaintiff whole) but cannot recover damages in excess of the amount that represents that actual loss sustained. MCI WorldCom Network Servs., v. Mastec, Inc., 995 So. 2d 221, 223 (Fla. 2008); Coop. Leasing, Inc. v. Johnson, 872 So. 2d 956, 957-58 (Fla. 2d DCA 2004). 2. Medical providers participating in Medicare must accept Medicare rates unless they properly opt-out of the Medicare program. Medicare was enacted as Title XVIII of the Social Security act and titled, “Health Insurance for the Aged and Disabled.” 42 U.S.C. § 1395, et. seq. The Centers for Medicare & Medicaid Services (“CMS”) administers the Medicare program and states as follows with regard to medical charges to beneficiaries for services covered by Medicare: “[I]f the provider bills Medicare, the provider must accept the Medicare approved amount as payment in full and may charge beneficiaries only deductibles and coinsurance.”1 1 Medicare Secondary Payer (MSP) Manual, Chapter 2 - MSP Provisions, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/msp105c02.pdf *2 The Social Security Act and Section 1848(g)(4)(A) states in pertinent part: For services furnished on or after September 1, 1990, within 1 year after the date of providing a service for which payment is made under this part on a reasonable charge or fee schedule basis, a physician, supplier, or other person (or an employer or facility in the cases described in section 1842(b)(6)(A) (i) shall complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on behalf of a beneficiary; and (ii) may not impose any charge relating to completing and submitting such a form. 42 U.S.C. § 1395w-4(g)(4)(A)(i-ii). “If the physician fails to submit a claim to the Medicare carrier on behalf of the beneficiary when one is required to be submitted the Secretary may impose sanctions.” Stewart v. Sullivan, 816 F. Supp. 281, 284 (D.N.J. 1992). See 42 U.S.C. § 1395w-4(g)(4)(B)(i-ii). Providers may elect not to bill Medicare under 42 U.S.C. § 1395a under limited circumstances if they properly “opt-out” of Medicare. Federal law requires providers to follow strict processes for opting out of the program. See 42 U.S.C. § 1395a; 42 C.F.R. §§ 405.405, 405.410, 405.420, 405.425 & 405.430. If the provider does not follow all requirements for opting out, a private contract requiring a patient to pay the full amount of the provider’s charge for medical treatment is null and void. See Medicare Benefit Policy Manual, Chapter 15 at 40.10, Failure to Properly Opt Out (explaining that when either the private contract does not meet required specifications, or the practitioner fails to submit an opt-out affidavit, the contract is null and void and “[t]he physician/practitioner must submit claims to Medicare for all Medicare-covered items and services furnished to Medicare beneficiaries, including the items and services furnished under the nullified contracts.”).2 See also 42 C.F.R. §§ 405.405(c), (d); 405.430. 2 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c15.pdf In this case, Plaintiffs providers were enrolled in the Medicare program and did not opt-out; they were required to accept © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2 Humphries v. Zuccari, 2022 WL 17415347 (2022) Medicare rates for the services/treatment as a matter of law. 3. A plaintiff is not entitled to admit into evidence and recover more than what Medicare paid (or would pay) for medical expenses. Medicare rates for treatment are generally less than those billed by health care providers. See generally Bailey v. Rocky Mt. Holdings, LLC, 889 F.3d 1259, 1271 n. 24 (11th Cir. 2018) (discussing Medicare rates for medical services). Nevertheless, “payment by Medicare requires the provider to whom payment is made to accept such amount in full satisfaction of the total charge even though the amount charged exceeds the amount paid by Medicare.” Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 549 (Fla. 4th DCA 2003). The undiscounted excess medical charges cannot be admitted in evidence because it would result in a windfall to the Plaintiff by permitting recovery for past medical expenses for which she was never and will never be liable for. Thyssenkrupp, 868 So. 2d at 550. As the Court in Cooperative Leasing, Inc. stated: The issue in this case is the appropriate measure of compensatory damages for past medical expenses. “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.” Mercury Motors Express, Inc., v. Smith, 393 So. 2d 545, 547 (Fla. 1981). “The primary basis for an award of damages is compensation.” Fisher v. City of Miami, 172 So. 2d 455, 457 (Fla. 1965). In this case, Johnson sought to collect the “additional value of medical services reasonably made necessary” by the appellants. We conclude, however, that Johnson was not entitled to recover for medical expenses 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. *3 Coop. Leasing, Inc., 872 So. 2d at 957-58. Original charges by health care providers, therefore, are irrelevant and inadmissible when the provider accepts payment from Medicare in full satisfaction of the charge. See Thyssenkrupp, 868 So. 2d at 551. “[I]t is error to permit a plaintiff to introduce into evidence (and to request from the jury) the gross amount of medical bills rather than the lesser amount actually paid as a governmental or charitable benefit in full settlement of those bills.” Matrisciani v. Garrison Prop. & Cas. Ins. Co., 298 So. 3d 53, 59 (Fla. 4th DCA 2020) (citing Thyssenkrupp, Boyd, and Coop. Leasing, Inc.). See also Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690 (Fla. 2d DCA 2020) (affirming decision limiting evidence of Plaintiff’s past medical expenses to the Medicare bills that were tendered and paid); Gulfstream Park Racing Ass’n v. Volin, 326 So. 3d 1124 (Fla. 4th DCA 2021) (holding the circuit court erred in allowing Plaintiff to introduce evidence of the amount billed by medical providers (“phantom damages”) instead of the discounted amount Medicare paid for past medical expenses). Notably, Medicare is not a collateral source subject to reduction post-trial, pursuant to section 768.76, Florida Statues. “Section 768.79 excludes Medicare benefits as collateral sources because the federal government has a right to reimbursement ... for payments it has made on [a plaintiffs] behalf.” Coop. Leasing, Inc., 872 So. 2d at 960. See also Matrisciani, 298 So. 3d at 58; Humana Medical Plan, Inc. v. Reale, 180 So. 3d 195, 207 (Fla. 3d DCA 2015) (holding that section 768.76, Florida Statutes, excludes consideration of Medicare benefits as a collateral source). The parties here agree that Plaintiff can only introduce into evidence (and recover), the past medical expenses in the amount paid by Medicare. Accordingly, Plaintiff may only introduce into evidence the discounted amounts Medicare paid for past medical expenses for the following providers: (a) Jupiter Pain; (b) Resolute Pain; (c) Jupiter Outpatient; (d) MD Now; (e) Palm Beach Gardens Hospital; and (f) Good Sam Hospital. Additionally, based on the facts and legal authority outlined above, the Court finds and concludes as follows: (1) Plaintiff bears the burden of proving a specific and definite amount of past medical expenses; (2) Plaintiff cannot recover in excess of the damages sustained; (3) Plaintiff was a Medicare beneficiary at all material times; (4) as a Medicare beneficiary, Plaintiff is not liable for reimbursement of any amount in excess of Medicare rates; (5) none of Plaintiff’s health care providers opted-out of Medicare, and were, therefore, required by law to submit Plaintiff’s bills to Medicare and accept Medicare rates as payment in full; (6) those providers who did not properly opt-out violated statutory law by not submitting Plaintiff’s bills © 2024 Thomson Reuters. No claim to original U.S. Government Works. 3 Humphries v. Zuccari, 2022 WL 17415347 (2022) to Medicare; (7) the improper charges in excess of applicable Medicare rates are not recoverable either by the providers or Plaintiff; and (8) awarding Plaintiff anything above the Medicare rates would result in a wind-fall as over and above the amounts necessary to make Plaintiff whole. Accordingly, Plaintiff is precluded from introducing evidence as to the original charges beyond the corresponding Medicare rates for the same to establish past medical expenses. 4. Joerg applies only to future Medicare benefits, not past Medicare benefits. *4 Plaintiff relies on Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015) in opposition to Defendant’s Motion. The holding in Joerg is inapplicable because it only applies to future Medicare benefits, which are uncertain and for which Medicare retains a right of reimbursement. Id. at 1253. Defendant is not attempting to limit evidence as to future treatment potentially covered by Medicare. Defendant’s motion pertained only to past medical treatment, which should have been paid for by Medicare. Instead, this issue is governed by Coop. Leasing and Thyssenkrupp both of which remain good law. See Dial, 308 So. 3d at 691 (determining that Joerg did not abrogate the evidentiary ruling in Coop. Leasing, and only spoke to future Medicare benefits, not past benefits). 5. The presence of Defendant’s liability insurer as a potential primary payer is irrelevant. Plaintiff argues Medicare is a secondary payer under federal law, and the presence of primary payer (in this case the Defendant’s insurer) precludes Medicare from paying for Plaintiffs treatment. Initially, this is incorrect as Medicare has paid much of Plaintiffs past medical bills in this case. Additionally, regardless of whether there may be a primary payer, such entity’s responsibility to pay has not been demonstrated. Even if it had been demonstrated, that would only mean the primary payer is responsible for reimbursing Medicare for Medicare’s conditional payments made at the Medicare rates. In any event, the most Plaintiff could recover would be the rates charged by Medicare. “The Medicare Secondary Payer statute (“MSP”) ... makes Medicare the secondary payer for medical services provided to Medicare beneficiaries whenever payment is available from another primary payer.” Glover v. Liggett Group, Inc., 459 F.3d 1304, 1306 (11th Cir. 2006). One such primary payer is an automobile or liability insurance policy or plan. Id. (citing 42 U.S.C. § 1395y(b)(2)(A)). See also MSP Recovery Claims v. QBE Holdings, Inc., 965 F.3d 1210, 1214 (11th Cir. 2020) (“Sometimes a third party has an obligation to pay for a beneficiary’s healthcare costs, such as when a person enrolled in Medicare is injured in an automobile accident caused by another driver ..”); Cochran v. U.S. Health Care Fin. Admin., 291 F.3d 775, 777 (11th Cir. 2002) (primary payer includes the private insurer of someone liable to the beneficiary). “This means that if payment for covered services has been or is reasonably expected to be made by someone else, Medicare does not have to pay.” Glover at 1306. But Medicare often makes conditional payments for covered services when the primary payer is not expected to pay promptly. Id. “The way the system is set up the beneficiary gets the health care she needs, but Medicare is entitled to reimbursement if and when the primary payer pays her.” Cochran, 291 F.3d at 777. Authority to make conditional payment. The Secretary may make payment under this title with respect to an item or service if a primary plan described in subparagraph (A)(ii) [subpara. (A)] has not made or cannot reasonably be expected to make payment with respect to such item or service promptly (as determined in accordance with regulations). Any such payment by the Secretary shall be conditioned on reimbursement to the appropriate Trust Fund in accordance with the succeeding provisions of this subsection. 42 U.S.C. § 1395y(b)(2)(B)(i) (emphasis added). In that scenario, Medicare has a right of reimbursement from the primary payer. Reimbursement must occur if the primary payer “has or had a responsibility to make payment with respect to such item or service.” Glover at id. (quoting 42 U.S.C. § 1395y(b)(2)(B)(ii)). Responsibility is demonstrated by “a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means.” Id. In other words, “a separate adjudication or © 2024 Thomson Reuters. No claim to original U.S. Government Works. 4 Humphries v. Zuccari, 2022 WL 17415347 (2022) agreement.” MSP Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1361 (11th Cir. 2016) (“In Glover, we concluded that responsibility [to pay] must be demonstrated by ‘a separate adjudication or agreement.’ ”). See also Cochran, 291 F.3d at 778 (reimbursement responsibility based on “judgments or settlements related to injuries for which Medicare paid medical costs, thereby casting the tortfeasor as the primary payer”). “That is why Medicare asks attorneys handling any related tort suits for its beneficiaries to supply the agency with a copy of the agreement setting out the share of the recovery they are to receive.” Id. *5 In Glover, Plaintiff argued Defendants’ (primary payers) responsibility to pay was demonstrated simply because Defendants were litigating a state court tort claim. Glover, 459 F.3d at 1308. The Eleventh Circuit rejected that argument. Defendants’ responsibility to pay was not demonstrated simply by being a party to the tort litigation. Defendants were never adjudicated liable and never made a payment conditioned on a release of claims for the health care expenses caused by the tort. Id. at 1308. Defendants’ responsibility to pay for items or services, therefore, was not demonstrated simply based on filing the underlying tort action or the subsequent action under the MSP to recover benefits. Id. at 1309. Until Defendants’ responsibility to pay is demonstrated (e.g., by a judgment), there is no obligation to reimburse Medicare. Id. The Eleventh Circuit, in a different case, gave a real-world example: As with most complex concepts, a real-world example helps make the Act’s contours more clear. Imagine a 65-year-old Medicare beneficiary who is injured when he slips on the wet floor of a supermarket and subsequently receives medical attention for his injuries. If the supermarket’s negligence caused the man’s injuries, the supermarket (or its liability insurance carrier) is ultimately responsible for his medical bills. But if the supermarket denies responsibility, litigation may be required to resolve the man’s negligence claim, and he may not have the money to pay for his medical care in the meantime. Because this is a situation in which the supermarket cannot reasonably be expected to pay promptly, the Act allows Medicare to pay the man’s medical bills on a conditional basis. Now imagine that the man and the supermarket settle the negligence claim and that the supermarket’s insurer pays the settlement funds to the man. To recoup the medical payments Medicare conditionally made, the Act allows the government to sue the insurer (which, because of the settlement, has been demonstrated to be the primary payer), the injured man (who is the recipient of a payment from the primary payment), or both of them. The government can, of course, recover only once, see 54 Fed. Reg. 41716, 41720 (Oct. 11, 1989) (the agency “will not pursue duplicate recoveries”), and if its recovery is against the insurer, the insurer can in turn sue the man to recover the payment it made to him, see Shalala, 23 F.3d at 418 n.4. See also 42 C.F.R. § 411.24(i)(1) (“If Medicare is not reimbursed as required ... the primary payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party.”). U.S. v. Stricker, 524 F. App’x. 500, 504 (11th Cir. 2013) (emphasis added). See also Shapiro v. Sec’y of HHS, No. 15-22151-Civ-COOKE/TORRES, 2017 U.S. Dist. LEXIS 42278, *6 (S.D. Fla. Mar. 23, 2017) (explaining tortfeasor’s post-judgment and post-settlement responsibility to reimburse Medicare). Additionally, 42 U.S.C. § 1395y(b)(2)(A) does not address whether providers may charge or bill a Medicare beneficiary in excess of Medicare rates or whether they may enter into a private contract with a beneficiary without first opting out of the Medicare program. Thus, health care providers remain legally restricted in the amounts they can charge Medicare beneficiaries regardless of whether those charges are ultimately paid by Medicare or a primary payer in the future. In this lawsuit, regardless of whether there may be a primary payer, such entity’s responsibility to pay has not been demonstrated. Such entity is not even a party to this lawsuit. And there is no judgment and no settlement in this case. The simple fact that an entity may insure the Defendant in this action does not demonstrate that entity’s responsibility to pay for Plaintiffs medical expenses. Moreover, even if Medicare had paid for Plaintiffs medical expenses, and even if-ultimately-an insurer is responsible to reimburse Medicare as the primary payer, the insurer would reimburse Medicare at the rates charged by Medicare. Absent properly opting-out of Medicare, nothing in 42 U.S.C. § 1395y suggests a provider can charge greater amounts than Medicare’s rates. Further, the CMS guidelines again state: “[I]f the provider bills Medicare, the provider must accept the Medicare approved amount as payment in full and may charge beneficiaries only deductibles and coinsurance.” 10 *6 Thus, Plaintiff would still only incur actual medical expenses at the lower Medicare rates. And only those costs may be awarded to make the Plaintiff whole. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 5 Humphries v. Zuccari, 2022 WL 17415347 (2022) 6. A Plaintiff also owes an obligation to submit medical bills to Medicare. A Medicare beneficiary can submit his bills to Medicare if his physicians do not.3 Doing so would mitigate the Plaintiff’s damages. 3 See https://www.medicare.gov/claims-and-appeals/file-a-claim/file-a-claim.html [T]he term “mitigation of damages” has no single meaning and is used by the courts to describe several different problems in the law of damages, the term as used herein encompasses those facts which tend to show that the conceded or assumed cause of action does not entitle the plaintiff to as large an amount of damages as would otherwise be recoverable. Specifically, the type of problem litigated herein involves the doctrine of avoidable consequences, or efforts to minimize damages, where the plaintiff reasonably could have avoided a part or all of the consequences of the defendant’s wrongful act. Parker v. Montgomery, 529 So. 2d 1145, 1147 (Fla. 1st DCA 1988) (concluding that “the concept of avoidable consequences or mitigation of damages is included within the ... definition of comparative fault”). Both comparative fault and avoidable consequences make recovery dependent on the plaintiff’s proper care of the protection of her own interests and both require she act as a reasonable person under the circumstances. Ridley v. Safety Kleen Corp., 693 So. 2d 934, 942 (Fla. 1996). “Accordingly, if some of the damages incurred could have reasonably been avoided by the plaintiff, [this] doctrine prevents those damages from being added to the amount of damages recoverable.” Id.; See also Sys. Components Corp. v. Fla. DOT, 14 So. 3d 967, 982 (Fla. 2009). 7. Public policy favors limiting a plaintiff to recover only Medicare’s reimbursement rates. Not only does federal law require the providers accept Medicare, but public policy favors requiring providers accept Medicare reimbursement rates for Medicare enrolled patient/plaintiffs. Judge Thomas H. Barkdull, III issued a comprehensive order on this issue. In granting Defendant’s motion to limit evidence of medical expenses to Medicare rates-where Plaintiffs providers were required but did not submit Plaintiffs bills to Medicare-he explained the public policy reasons in support of his decision: The particular danger that is sought to be avoided are situations where patients/plaintiffs, who are Medicare beneficiaries and who have filed suit against an alleged tortfeasor, receive medical treatment from providers who would otherwise accept Medicare reimbursement rates but decline to submit bills for treatment through Medicare in these litigation cases so that they may charge and claim full value for their treatment. All too frequently, these plaintiffs, who, by virtue of being Medicare recipients, are recognized as being at-risk population due either to seniority or disability, are left with exorbitant medical bills when they are unsuccessful in litigation. Based on this long standing established public policy, this Court finds that in addition to the federal regulations which govern how participating physicians and practitioners are permitted to charge and contract with beneficiaries, there is a legitimate government interest in protecting the elderly community and other beneficiaries from being charged in excess of Medicare reimbursement rates and in properly and thoroughly advising plaintiff-patients of the perils of permitting their providers to bill outside of the Medicare reimbursement schedules. These public policy concerns support this Court’s ruling. *7 Richardson v. Wal-Mart Stores, Inc., No. 2014-CA-015197 (Fla. 15th Cir. Ct., Dec 13, 2017) (Order on Re-Hearing on Wal-Mart Stores, Inc.’s Motion to Limit Medical Bills Provided Under Letters of Protection). The purpose behind Title XVIII of the Social Security Act, the administration of the Medicare program by CMS, and the case law cited above, is thwarted by permitting Plaintiff to recover in excess of Medicare rates when the services/treatment is required by law to be limited to Medicare rates. Plaintiffs health care providers here are only legally permitted to charge Plaintiff in the amounts established by the Medicare program. Plaintiff, therefore, is only responsible for that amount, which would represent Plaintiffs compensatory damages. If a defendant can only be liable for Plaintiff’s compensatory damages for © 2024 Thomson Reuters. No claim to original U.S. Government Works. 6 Humphries v. Zuccari, 2022 WL 17415347 (2022) past medical expenses, it would contravene public policy for said defendant be held liable for an amount greater than what Plaintiff would ever be responsible for paying. WHEREFORE, it is hereby ORDERED and ADJUDGED that Defendant’s Motion is GRANTED. Plaintiff may only introduce into evidence (and recover) the amounts of past medical expenses paid by Medicare for the following providers: (a) Jupiter Pain; (b) Resolute Pain; (c) Jupiter Outpatient; (d) MD Now; (e) Palm Beach Gardens Hospital; and (f) Good Sam Hospital. Plaintiff may only introduce into evidence (and recover) the Medicare rates for her past medical expenses billed by the following providers: (a) Dr. Theofolis; (b) Dr. Contando; and (c) Advanced Diagnosis. DONE and ORDERED in Chambers, at West Palm Beach, Palm Beach County, Florida, this ___ day of May, 2022. <> 502020CA001543XXXXMB 05/23/2022 John S. Kastrenakes Circuit Judge JOHN S. KASTRENKES Circuit Judge Copies furnished: Jonathan M. Cox, Esquire, Keller, Keller & Caracuzzo, P.A., jc@kkcinjuyrlaw.com and christina@kkcinjurylaw.com Thomas A. Berger, Esquire, Boyd & Jenerette, PA, tberger@boydjen.com and Mkruemmel@boydjen.com End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 7 Cited As of: February 2, 2024 5:40 PM Z Cantrill v. Ferris Circuit Court of the Twelfth Judicial Circuit of Florida, Manatee County May 16, 2019, Decided; May 17, 2019, Filed Case No. 2013-CA-4462 Reporter 2019 Fla. Cir. LEXIS 3833 * JOSHUA RAY CANTRILL, Plaintiff, v. KRISTOPHER SCOTT FERRIS, RACHEL M. WEBER, Defendants.LERAY CANTRILL, Plaintiff, v. KRISTOPHER SCOTT FERRIS, Defendant. Judges: [*1] CHARLES SNIFFEN, County Judge. Opinion by: CHARLES SNIFFEN Opinion PARTIAL ORDER ON DEFENDANTS' FIRST MOTION IN LIMINE THIS CAUSE having come before the Court upon the above referenced motion, and the Court having reviewed the motion and Court file, heard argument of counsel, and being otherwise fully advised, it is hereby, ORDERED AND ADJUDGED as follows: 1. Paragraph 15 of the motion is GRANTED. In establishing compensatory damages Plaintiff shall not present to the jury the difference between the amount that the Medicare providers agreed to accept and the total amount of the plaintiff's medical bills. See Coop. Leasing, Inc. v. Johnson, 872 So. 2d 956, 960 (Fla. 2d DCA 2004) and Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003). DONE AND ORDERED in Bradenton, Manatee County, Florida this 16 day of MAY, 2019. /s/ Charles Sniffen CHARLES SNIFFEN County Judge End of Document Cited As of: February 2, 2024 5:39 PM Z Lucey v. Joseph Circuit Court of the Twentieth Judicial Circuit of Florida, Charlotte County February 20, 2019, Decided; February 20, 2019, Filed CASE NO. 16-CA-01509 Reporter 2019 Fla. Cir. LEXIS 5127 * the Department of Health and Rehabilitative Services DAVID T. LUCEY and MONICA LUCEY, Plaintiffs, vs. shall not be considered a collateral source." Fla. Stat. SOVI JOSEPH, M.D.; SOVI JOSEPH, M.D. P.A.; §768.76(2)(b). "Benefits received under Medicare" have STEVEN GOLDIN, M.D.; and 21st CENTURY been defined to mean only the amount paid to medical ONCOLOGY, LLC, Defendants. providers. See Cooperative Leasing, Inc. v. Johnson, 872 at 960. Core Terms As benefits received under Medicare are not a collateral benefits received, medical bill, healthcare provider, source [*2] under Florida Statute Section 768.76 (2)(b), federal government, collateral source, amount paid, in they cannot be set off from his recovery under Florida limine, reimbursement, recipient Statute Section 768.76 (2)(b). Cooperative Leasing, Inc. v. Johnson, 872 So.2d 956, 960 (Fla. 2nd DCA 2004). Judges: [*1] LISA PORTER, JUDGE. Therefore, allowing Plaintiff to recover an amount equal to the full amount of his medical bills, including the Opinion by: LISA PORTER amount for which he never became liable and for which the federal government has no right to reimbursement Opinion would result in a windfall that is contrary to the legislative policy evidenced by Florida Statute Section 768.76 (2)(b). Id. Accordingly, the difference between the amount billed by the health care providers and the ORDER ON PLAINTIFFS' SECOND SUPPLEMENTAL amount paid or the amount owed to the health care MOTION IN LIMINE (NO. 47) REGARDING providers is not admissible. Cooperative Leasing, Inc. v. INTRODUCING AMOUNT OF MEDICAL BILLS AT Johnson, 872 So.2d 956 (Fla. 2nd DCA 2004); TRIAL Thyssenkrupp Elevator Corporation v. Lasky, 868 So.2d 547 (Fla. 4th DCA 2003). As Plaintiff is a Medicare THIS MATTER came on for hearing on October 31, recipient, only the final lien amount(s) will be presented 2018, upon Plaintiffs' Second Supplemental Motion in to the jury. Limine (No. 47) Regarding Introducing Amount of Medical Bills At Trial, and the Court having reviewed the /s/ Lisa Porter pleadings, having heard argument of counsel and being otherwise fully advised in the premises, it is hereby eSigned by JUDGE LISA PORTER in 16001509OA ORDERED AND ADJUDGED as follows: on 02/20/2019 15:13:22 q85WaczK Denied. Plaintiff, David Lucey, is a Medicare recipient. Pursuant to Florida Statute Section 768.76 (2)(b), End of Document "...benefits received under Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff's recovery, the Workers' Compensation Law, the Medicaid program of Title XIX of the Social Securit