Opinion
CIVIL ACTION NO. 00-528, SECTION "N".
February 9, 2001.
ORDER AND REASONS
Before the Court are (1) Defendant's Opposition to Application of the Collateral Source Rule; (2) Defendant's Motion in Limine to Exclude Expert Testimony of Dr. Stuart Wood; (3) Plaintiffs Motion in Limine to Exclude Surveillance Videotapes. For the following reasons, Defendant's Motion to Exclude Expert Testimony is DENIED. The Court cannot rule on the other two motions at this time because the parties have failed to provide appropriate evidence to support their contentions and will DEFER its ruling.
A. BACKGROUND
This case is scheduled to be tried before a jury on Monday, February 12, 2001. Plaintiff Jason Fortenberry, a seaman, claims that he injured his shoulder and knee in two separate incidents while working for Defendant Atwood Oceanics, Inc. He brings claims for damages under the Jones Act and General Maritime Law and for maintenance and cure.
B. LAW AND ANALYSIS 1. Collateral Source Rule.
At least some of Fortenberry's medical bills were paid by insurance provided at least in part by Atwood. Atwood contends that these payments satisfied its cure obligation, while Fortenberry argues that these payments were derived from a collateral source and, therefore, cannot be used to offset Atwood's cure obligation.
Neither party has presented sufficient evidence for the Court to determine whether the health insurance payments were derived from a collateral source. See Phillips v. Western Co. of N. Am., 953 F.2d 923, 933 (5th Cir. 1992) ("evidence . . . should have been presented to the district judge before he ruled on whether the benefits fell within the collateral source rule"). Searching through the exhibits, the Court has found evidence that Atwood paid for at least part of the premiums, see Pl.'s Ex. 6, but there is no evidence that Atwood paid all of the premiums, of any of the plan's terms, or of the plan's relationship to Fortenberry's compensation. See Phillips, 953 F.2d at 932 (court should consider five factors in distinguishing fringe benefits from benefits intended to indemnify an employer against liability, including employee contributions to plan, existence of collective bargaining agreement, whether the plan covers work-related and nonwork-related injuries, whether payments from plan are contingent on employee's length of service, and existence of set-off provision in plan) (citing Allen v. Exxon Shipping Co., 639 F. Supp. 1545 (D.Me. 1986)).
Even assuming that the health insurance payments were derived from a collateral source, the Court is not convinced that the collateral source issue is particularly relevant in the instant case. Although it is incontrovertible that the collateral source rule applies in Jones Act negligence cases, see Phillips, 953 F.2d at 930 ("the collateral source rule . . . is plainly applicable in Jones Act negligence cases"), Atwood argues only that the health insurance payments should be used to set-off its cure obligation. "Because of the unique nature of maintenance and cure, normal rules of damages, such as the collateral source rule in tort, are not strictly applied." Davis v. Odeco. Inc., 18 F.3d 1237, 1246 (5th Cir. 1994) (quotingGauthier v. Crosby Marine Serv. Inc., 752 F.2d 1085, 1089 (5th Cir. 1985)). In Davis, the Fifth Circuit noted that, even where benefits may not be used to offset damages for Jones Act negligence, in some cases they may be used to offset an employer's obligation to pay maintenance and cure. The court inDavis noted that "an injured seaman is not generally entitled to maintenance and cure when he does not incur any expense," unless the seaman has received monies "through his own efforts," such as monies from substitute employment or benefits from medical insurance purchased by the seaman "alone." 18 F.3d at 1246. TheDavis court suggested, albeit in dictum, that where a seaman has "contributed very little" to a benefit plan, payments from that plan might be deducted from the seaman's maintenance award.Id. at 1246. See also Haughton v. Blackships, Inc., 462 F.2d 788, 791 (5th Cir. 1972) (citing with approval a Fourth Circuit case in which maintenance and cure was offset by disability payments from a plan funded by the employer because benefit was best characterized as a voluntary undertaking by the employer to indemnify itself against potential maintenance and cure liability); In re Gulf Pride Marine Serv., Inc., 1997 WL 118394 at *10-44 (E.D. La. March 14, 1997) (Fallon, J.) (finding employer not entitled to set-off for Medicare payments with respect to Jones Act medical expenses, but entitled to set-off with respect to cure). In light of Davis and Gulf Pride, the Court suspects that Atwood is entitled to a set-off for the medical insurance payments with respect to cure, but both parties are ORDERED to submit evidence in accordance withPhillips and Davis.
Even if Atwood is entitled to a set-off, the Court is hesitant to allow evidence ofpast medical benefits paid by Fortenberry's insurance to go before the jury in light of the Fifth Circuit's admonition in Phillips. See 953 F.2d at 934 ("it is quite unnecessary in cases where the defendant is entitled to a setoff to introduce evidence of benefits that already have been paid"). The Court also sees little need to submit evidence of future insurance payments to the jury. In both situations, the Court can perform the relevant set-off calculations. Withholding the insurance evidence avoids the risk of prejudicing any liability determination. See Phillips, 953 F.2d at 929 934. If Atwood believes that there is some reason to introduce the insurance evidence independent of the set-off issue, it must submit another trial memorandum and a limiting instruction in accordance withPhillips.
2. Expert Testimony of Dr. Stuart Wood Regarding Past and Future Income Loss and Loss of Earning Capacity.
Atwood objects to allowing an economist, Dr. Stuart Wood, to testify with respect to Fortenberry's past and future income loss and loss of earning capacity on the ground that there is no known evidentiary foundation for such testimony and, therefore, that such testimony will prejudicially confuse the jury. Atwood notes that Fortenberry's treating physician, Dr. Scott Bowen, testified at his deposition that he had planned to release Fortenberry to work by Monday, January 31, 2000, but that Fortenberry reinjured or reaggravated his knee before he could go back to work. Based on this testimony, Atwood argues that Fortenberry should not be allowed to present evidence of economic loss after January 30, 2000.
Atwood does not challenge Dr. Wood's qualifications or methodology.
Contrary to Atwood's contention, it is not "an undisputed fact in this litigation that after January 30, 2000, the plaintiff had reached maximum medical improvement from his knee injury with Atwood, and was capable of returning to work offshore, in his former occupation, with his former employer at `100 percent without any injuries.'" Def.'s Mem. in Support of Mtn. in Limine p. 6. Fortenberry intends to offer evidence that he never completely recovered from the knee injury, and the jury will be required to resolve this factual issue. If the jury accepts the Plaintiffs version, then it will have found a basis for Dr. Wood's wage loss testimony.
Atwood also contends that Fortenberry's continued employment in the construction industry since March 2000 justifies exclusion of Dr. Wood's testimony. This fact goes to the weight of the evidence, not its admissibility.
3. Surveillance Videotapes.
Atwood, presumably covertly, videotaped Fortenberry in order to demonstrate his "physical abilities and/or lack of physical impairment." Def's Mem. in Opp'n. to Pl.'s Motion in Limine p. 2. Fortenberry argues that these tapes should be excluded as having no probative value because he has already admitted that he walks without a limp unless strenuous activity causes pain and that he has been working at a construction site. Alternatively, he argues that they should be excluded because they were not produced in discovery. See Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993).
The Court agrees with Atwood that these tapes constitute substantive evidence of Fortenberry's claims and, therefore, are relevant. See Chiasson. The Court has absolutely no way, however, to evaluate whether these tapes were produced in discovery. The Plaintiff says they were not, the Defendant says they were. Since Fortenberry knows about the tapes, the Court assumes that they were produced at some point, but, as the party seeking to introduce the tapes into evidence, Atwood bears the burden of establishing their admissibility. Atwood, therefore, should be prepared to prove to the Court that the tapes were produced.
C. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant's Motion to Exclude Expert Testimony of Dr. Stuart Wood is DENIED.
IT IS FURTHER ORDERED that the parties provide evidence with respect to Defendant's Opposition to Application of the Collateral Source Rule and Plaintiffs Motion in Limine to Exclude Surveillance Videotapes in accordance with this Order.