Thanh Huyen Nguyen vs. Denise Wednesday Sunico

Motion in Limine

Cal. Super. - 4th Dist.January 11, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF RICHARDSON, FAIR & COHEN BY: Manuel Dominguez - State Bar No. 128438 3700 Central Avenue, 3rd Floor Riverside, California 92506 Telephone: 951-637-8573 Facsimile: 951-787-0738 Email: dominguez.manuel@aaa-calif.com Attorney for Defendant, Denise Wednesday Sunico SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER UNLIMITED CIVIL ACTION Thanh Huyen Nguyen, an individual; and Julie Vo, CASE NO. 30-2016-00829375 an individual, MOTION IN LIMINE TO EXCLUDE Plaintiffs, EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT vs ACCEPTED BY PLAINTIFF’S : HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; Denise Wednesday Sunico, an individual; and Does] MEMORANDUM OF POINTS AND 1 through 10, inclusive, AUTHORITIES Defendant. MOTION IN LIMINE NUMBER 1 Date: 08/21/2017 Dept. C13 TO PLAINTIFF AND HER ATTORNEY OF RECORD:PLEASE TAKE NOTICE THAT defendant Denise Wednesday Sunico, requests that the courtorder plaintiff and his attorney and any witnesses to refrain from presenting evidence ofthe billingssubmitted by plaintiff’s healthcare providers for treatmentof the injuries incurred in the accident suedlwMOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNTACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS;MEMORANDUM OF POINTS AND AUTHORITIES i 12 13 14 18 16 17 18 19 20 21 22 23 24 25 26 27 28 upon herein other than the amount accepted by plaintiff’s healthcare providers as paymentin full of said billings. This Motion will be based on the following grounds: Plaintiff is entitled to recover medical damages at trial based upon the “reasonable value” of her medicalbills; Plaintiff’s medicalbills related to his injuries may have been paid by plaintiff’s health insurance Anthem Blue Cross/Shield. The payments were at rates according to an agreement between the medical insurance provider and plaintiff's various healthcare providers; and since a certain sum has or will be paid for plaintiff's past medical care and services, that sum certain is the most the plaintiff may recover for that care despite the fact that it may have been less than the prevailing market rate. Accordingly, defendant asks the court for an order admonishing plaintiff, his attorney of record and their witnesses not to attempt to introduce such evidence in any form, and not to suggest, comment directly or indirectly on, or refer to the evidence in any way before the jury without first obtaining the court’s permission. The court is further requested to direct the plaintiff's counsel to caution, warn and instruct any witnesses not to make any reference to such evidence and to obey the same order. This Motion is based on this notice, the attached Memorandum of Points and Authorities, the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of this Motion. Dated: % | |§ [9 RICHARDSON, FAIR & COHEN Manut] Dominguez Attorney for Defendant Denise Wednesday Sunico De MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. THE COURT HAS JURISDICTION TO GRANT MOTIONS IN LIMINE. The court may grant a motion in limine through its inherent power to provide for orderly conduct of proceeding before it, to controlits process and orders, and to make them conformable to law and justice (Code of Civil Procedure Section 128(3) and 128(8)). Inherent in this poweris the court’s authority to hear and determine the question of the admissibility of evidence out of the presence or hearing ofthe jury (Evidence Code Section 402(b)). This includes the power to exclude irrelevant evidence, as well as relevant evidence whenits probative value is outweighed by the probability thatits admission will necessitate and undue consumption of time, create a substantial danger ofundue prejudice, confuse the issues or mislead the jury (Evidence Code Section 251 and 352). The courts have recognized the importance of motions in limine, the most important factor of which was discussed in Hyatt vs. Sierra Boat Co. (1978) 79 Cal.App.3d 325, as follows: The advantage of such motions is to avoid the obviously futile attempt to “Unring the bell” in the event a motion to strike is granted in the proceedings before the jury. (Hyatt, at page 337.) Furthermore, motions in limine serve other purposes as well, as the Supreme Court in People v. Morris (1991) 53 Cal.3d 152 Stated. They permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial. They minimize side-bar conferences and disruptions during trial, allowing for an uninterrupted flow of evidence. Finally, by resolving potentially critical issues at the outset, they enhance the efficiency oftrial and promote settlements. (Morris, at page 188). 2. THE COURTS RULING ON A MOTION IN LIMINE MAY BE ENFORCED AGAINST ALL PARTIES BOUND. Any person who violates an in limine order by mentioning the prohibited matter within the hearing ofthe jury may becited for contempt of the authority of the court (Code of Civil -3- MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Procedure, Section 1209 (5)). A new trial may be granted on the ground that the violation of an in limine order constituted an accident, surprise or irregularity in the proceedings by which a party was prevented from having a fair trial (Code of Civil Procedure Section 657 (1) and 657 (3); Witkin, California Procedure (3rd ed. 1985), Volume 7, “Trial” section 163, p. 162). 3. PLAINTIFF IS ENTITLED TO RECOVER NO MORE THAN THE AMOUNT ACTUALLY PAID FOR HER INCURRED MEDICAL BILLS To be recoverable in damages, a plaintiff’s medical expenses must be both incurred and reasonable. In Hanifv. Housing Authority ofYolo County (1988) 200 Cal.App.3d 635, plaintiff incurred medical expenses which were paid for by Medi-Cal. The court awarded as special damages the reasonable value of medical care and services even though that amount exceeded the amount paid by Medi-Cal. The Court of Appeal reversed holding that: “Thus, when the evidence shows a sum certain to have been paid or incurredfor past medical care and services, whether by the plaintiffor by an independent source, that sum certain is the most the plaintiffmay recoverfor that care despite thefact that it may have been less than the prevailing market rate.” (Ibid at p. 641). See also Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal. 4th 541 in which the Court held an injured plaintiff, whose medical expenses were paid by private insurance, can recover damages for past medical expenses in an amount no greater than the amount paid by plaintiff's private insurance 4 MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (per the prior contractual agreement) and accepted as full payment by the providers for services rendered. Howell stated the full amountbilled by the medical providersis not an accurate measure of the value of medical services. In fact, the negotiated rate may be the best indication of the reasonable value of the services provided and it is unclear how any other “market value” could be determined. Further, the Howell Court held that limiting a plaintiff’s recovery in this manner does not contravene the collateral source rule. (Howell, supra, 52 Cal.4th at pp. 563-566.) The collateral source rule provides that the damages awarded to an injured plaintiff cannot be reduced by the amount paid on the plaintiff’s behalf by a source independent of the tortfeasor, such as an insurer. (/d. at p. 551; Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 (Helfend).) In the instant case, the plaintiffs were covered with health insurance. The plaintiffs must identify which bills, if any, were submitted to the insurance and paid on behalf of plaintiffs. Payments made would be under their contract allowance basis which the providers accepted as payment in full. It is defendant’s belief that the actual amount paid by plaintiff’s health insurance coveragesis less than the amount billed. Pursuant to the holding in Hanif, and Howell, supra, plaintiff should be precluded from presenting to the jury anything other than the amount accepted by his healthcare providers as payment in full for the services provided. Plaintiff’s pecuniary loss is limited to the amount paid or incurred for past medical services, so plaintiff cannot recover damages in excess of that amount. The court in Nishihama v. San Francisco (2001) 93 Cal.App.4th 298 applied the rule as outlined in the Hanifcase. In Nishihama, the plaintiff tripped over a pothole and brought a negligence action for her injuries. She claimed that her medical bills from California Pacific Medical Center (CPMC)totaled $17,168.00. However, plaintiff participated in an employer-sponsored health plan administered by Blue Cross. At the time ofplaintiff’s care, CPMC was a participating provider under Blue Cross’ benefits to -5- MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff. Accordingly, Blue Cross paid to CPMC a total of $3,600.00 as payment for plaintiff's medical bills. Nevertheless, the court permitted the jury to award damages for medical costs based upon the normal rate of $17,168.00. The jury awarded plaintiff special damages which included the $17,168.00 in medical bills from CPMC. Defendant then appealed. On appeal, the court held that the most plaintiff could recover for these services was $3,600.00 as the amount paid. The court further held that the trial court “erred in permitting the jury to award plaintiff in excess of $3,600.00 for the services provided by CPMC.” Ibid at p. 307. In the recent case of Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308,the California Court of Appeal (Second District) held that it was error to have admitted evidence of the full amounts billed for plaintiffs medical care, rather than the amounts actually paid and accepted as full payment by plaintiffs medical providers. The Court held the full amounts billed for plaintiffs’ medical care was not relevant to the amount of damages for past medical services, damages for their future medical care or noneconomic damages. As such the admission of such evidence (the full amounts billed for medical services) was error. As demonstrated by Hanif, Howell and Nishihama, the plaintiff is entitled to recover as medical bills no more than those actually paid by plaintiff or on her behalf. Any further amounts — such as plaintiff presenting evidence of the amount “billed” vs. amount “paid” would not represent actual damagesto plaintiff. The medical providers who treated plaintiff in this case may have accepted from Anthem Blue Cross/Shield, pursuant to prior agreements, less than the full amount oftheir medical billings as payment in full for their services. The contractual agreements between the medical insurer — Anthem Blue Cross/Shield- and the service provider involve “negotiated rate differentials” which is the -6- MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES 10 Ll 12 13 14 15 16 L7 18 19 20 a1 2.2 23 24 25 26 27 28 difference between the full sum billed and the amountthe service provider has agreed to accept from the insurer as full payment. Further this evidence of higher — and not incurred - medical/special damages would improperly influence the jury with respect to a higher general damages award, would unjustly enrich plaintiff and would be prejudicial to this defendant. 2. CONCLUSION Based upon the foregoing, defendant requests the court to issue an order before voir dire examination precluding plaintiffs, their counsel and any witnesses from testifying and/or referring to the amount of any bills from plaintiff’s healthcare providers — and charges for any medical expenses - in excess of the amount actually paid to satisfy such bill. Defendant further requests the court to direct plaintiff and his counselto instruct their witnesses to comply withthis order. Dated: i< 7 RICHARDSON, FAIR & COHEN Manuel Doming Wz Attorney for Defendant, Denise Wednesday Suni “7 MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 1.2 13 14 15 16 17 18 19 20 21 2.2 23 24 25 26 27 28 CERTIFICATE OF SERVICE I certify I am over the age of eighteen years and employed in the County of RIVERSIDE; my business address is 2° Central Avenue, 3rd Floor, Riverside, CA 92506. I am not a party to the within action. On ii , I served the within MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties by placing a true copy thereof, enclosed in a sealed envelope addressed as follows: David Do, Esq. Law Offices Of Tung T. Pham 15355 Brookhurst Street, Suite 210B Westminster, California 92688 XX BY MAIL AS FOLLOWS: [ am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on the same day with postage thereon fully prepaid at Riverside, California in the ordinary course of business. I am aware that on motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY FACSIMILE: I caused a facsimile transmission from the following facsimile number to the abovelisted facsimile numbers. Upon completion of the said facsimile transmission, the transmitting machine issued a transmission report showing the transmission was complete and without error. Executed on 3 [6 [17 . at Riverside, California. I declare under penalty of perjury under the laws of the State of California than the above is true and correct. Declarant William Ayala -8- MOTION IN LIMINE TO EXCLUDE EVIDENCE OF HEALTHCARE MEDICAL BILLS OTHER THAN THE AMOUNT ACCEPTED BY PLAINTIFF'S HEALTHCARE PROVIDERS AS PAYMENT IN FULL OF SAID BILLS; MEMORANDUM OF POINTS AND AUTHORITIES