Laurence Harper vs. Raul Najera Lopez

Motion in Limine

Cal. Super. - 4th Dist.April 13, 2016

TE 80 0 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E A I T K E N +4 A I T K E N ¢ ~O HN S A N T A AN A, CA 92 10 7 3 M A C A R T H U R P L A C E £2 PRINTED ON RECYCLED PAPER ELECTRONICALLY FILED ATTICUS N. WEGMAN, ESQ. (SBN 273496) Superior Court of California, AITKEN 4 AITKEN 4 COHN County of Orange 3 MACARTHUR PLACE, SUITE 800 06/15/2018 at 02:20:00 Ph SANTA ANA, CA 92707-2555 By Jorge A Gomez, Deputy Clerk (714) 434-1424/(714) 434-3600 FAX Attorneys for Plaintiffs LAURENCE HARPER and MICHAEL YN MILOSEVICH-HARPER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER AND RELATED CROSS-ACTIONS. Complaint Filed: 4/13/16 LAURENCE HARPER, an individual; ) CASE NO: 30-2016-00846007 MICHAELYN MILOSEVICH-HARPER, an ) [Hon. Theodore Howard, Dept. C18] individual; Co ) CRETE, ) PLAINTIFFS’ MOTION IN LIMINE ) Vs. ) NO. 7RE PRECLUDING NANCY ) MICHALSKI’S TESTIMONY; RAUL NAJERA LOPEZ, an individual; ) DECLARATION OF ATTICUS N. CAPISTRANO FORD, a business organization, ) WEGMAN; [PROPOSED] ORDER form unknown; DOES 1 to 10, inclusive; Defendants. ) Trial Date: May 7, 2018 ) Time: 9:00 a.m. : Dept.: C18 ) ) ) TO THE HONORABLE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiffs will move the Court for issuance of the following order relating to Motion in Limine No. 7: An order precluding Defendants’ counsel and its expert witness Nancy Michalski from 1 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED | ORDER S S 0 X N O N nn RAR W N = -_ p t p d pe W W N e .T E 80 0 SA NT A AN A, CA 97 27 07 -_ = A N Wn BN 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E p d ~ A I T K E N 4 + A I T K E N + “ H N 3 M A C A R T H U R P L A C E ND N N N N N N = A LL RA W L W N =, Oo VO No 3 28 £2 PRINTED ON RECYCLED PAPER testifying in this matter and from introducing improper hearsay evidence to fortify his own opinions, including case specific hearsay; An order requiring the attorneys for all parties to instruct their witnesses of the court's exclusionary order on this motion; and An order requiring the attorney for Defendants, prior to making any references, comments, or assertions concerning such matters, to approach the bench and make an offer of proof to the court so that the court, prior to any presentation of the above-referenced evidence to the jury, can make a preliminary determination of the relevancy and admissibility thereof. This motion is based on this Notice, the accompanying Memorandum of Points and Authorities, the Declaration of Atticus N. Wegman, the complete file maintained by the Court in this action, and all such other oral and documentary evidence as may be presented at the time of hearing on this motion. Dated: June 15, 2018 AITKEN+4AITKEN4+COHN oy (Le (L ATTICUS N. WEGKPAN, ESQ. Attorney for Plaintiffs 2 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI'’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED | ORDER Oo © 3 O N Un BRA W N - F t p d p d pe Ww NN = Oo T E 80 0 SA NT A AN A, CA 97 70 7 - ee d a a N Wn pb 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E A I T K E N 4 A I T K E N 4 " 9 H N m e t ~ 3 M A C A R T H U R P L A C L DD No BN No No No No - - [@ ) Wn + w o No = oS \ O [= ] No ~ 28 €3 PRINTED ON RECYCLED PAPER MEMORANDUM OF POINTS AND AUTHORITIES IL INTRODUCTION On December 7, 2015, around 2:00 p.m., Plaintiff Mr. Laurence Harper was traveling alone in his four-door sedan on his way to his house on Camino Capistrano Boulevard in San Juan Capistrano, Ca. There are four lanes of travel on Camino Capistrano Boulevard, two Northbound lanes and two Southbound lanes, separated by an open median. Plaintiff Mr. Harper was traveling Southbound in the slow lane. Without any warning or ability to take evasive action, Defendant Raul Lopez, working for his employer Defendant Tuttle Click Capistrano Ford, Inc., entered into Plaintiff Mr. Harper’s lane of travel as he negotiated a left turn onto Camino Capistrano Boulevard from the Tuttle Click Capistrano Ford, Inc. car dealership. Both vehicles collided, and Plaintiff Mr. Harper sustained major injuries to his neck (requiring fusion surgery), back (requiring fusion surgery), left shoulder (requiring surgery), right shoulder (requiring surgery), and minor injuries to his right wrist and right foot. Defendant Mr. Lopez and Defendant Tuttle Click Capistrano Ford, admit they were partially negligent, but dispute the nature and extent of Plaintiffs’ harms and losses. 3 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED [ ORDER Oo 0 d N RN W N e e E E Ww N = Oo TE 80 0 S A N T A AN A, CA 92 70 7 e d p m A A Wn A 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E A I T K E N 4 A I T K E N 4+ " O H N r d ~3 3 M A C A R T H U R P L A C L D D N N N N N N m o AN Y Un B R A W N = Oo © No ~ 28 £3 PRINTED ON RECYCLED PAPER Defendants Mr. Lopez and Tuttle Click Capistrano Ford and Plaintiffs Mr. Harper and Mrs. Harper (who maintains a claim for loss of consortium) allege that Defendant Cervando Salgado, working for his employer Defendant URS Midwest, Inc., is at least partly responsible for parking its car hauler and trailer with cars loaded on an adjacent red curb, thus impeding the ability for motorists to see each other. Defendant Mr. Salgado and Defendant URS Midwest, Inc., admit they were parked illegally, but do not admit they were negligent or that Mr. Harper and Mrs. Harper were harmed. III. MS. MICHALSKI’S OPINIONS ARE IN VIOLATION OF HOWELL V, HAMILTON MEATS & PROVISIONS, INC. (2011) 52 Cal.4th 541 Mr. Harper carried health insurance at the time of the crash. Mr. Harper’s health insurance carrier billed him approximately $360,000 for all of this treatment, which included a lumbar fusion, two shoulder surgeries, multiple neck and back epidural injections, countless sessions of physical therapy and imaging studies. Mr. Harper’s health insurance paid approximately $260,000 of the total bill. The remainder was "written-off". Attached as Exhibit A, please find St. Joseph's lien indicating the amount billed and paid. This $260,000 figure is the Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555 number that Mr. Harper is seeking to recover at the time of trial regarding the treatment provided to him - he will not be seeking the full billed amounts, only what was paid. Defendants medical billing auditor - Nancy Michalski - is attempting to argue that the amounts actually paid by Mr. Harper’s health insurer are unreasonably high and the reasonable and customary value of the services provided is a mere $179,000. Howell v. Hamilton Meats & Provisions, Inc., supra has been a dagger in the hearts of many Plaintiffs lawyers, and now Ms. Michalski is improperly and in violation of Howell trying to further limit the paid amount of medical expenses that Mr. Harper is entitled to recover. 4 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED [| ORDER A I T K E N 4 A I T K E N + “ H N 3 M A C A R T H U R P L A C E .T E 80 0 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A AN A, CA 92 70 7 £2 PRINTED ON RECYCLED PAPER IV. MS. MICHALSKI’S MEDICAL BILLING METHODOLGY HAS BEEN RULED IMPOPER BY SAN DIEGO SUPERIOR COURT JUDGE JOEL WOHLFEIL Ms. Michalski’s methodology for calculating the reasonable value past medical costs is improper and must be excluded. On April 2, 2018, just over two (2) months ago, the Hon. Judge Joel Wohlfeil excluded Ms. Michalski from giving her opinions at trial relating to the reasonable value of past medical costs. Ms. Michalski also admitted in her deposition taken in this matter that she was excluded from testifying in the above cited case in San Diego. When asked whether she has also been excluded elsewhere, she indicated the following: Q Okay. Have you ever been excluded from testifying at trial? A Twice in Nevada. Q Were you excluded from testifying in California within the past 30 days? A Yes. (Michalski Depo. 86:17-25-87:1-7). Attached as Exhibit B, please find pertinent testimony from Nancy Michalski’s deposition and an order from the District Court in Clark County, Nevada that excluded Ms. Michalski from testifying due to lack of foundation for her opinions. Defendants knew of the above information during her deposition yet have not asked for leave of court to replace Ms. Michalski with an expert who is qualified to give opinions related to the reasonable value past medical expenses in this matter. V. MS. MICHALSKI’S METHODOLOGY REGARDING AMOUNTS PAID BY MR. HARPER’S INSURANCE (AND THE RELATED LIEN) MUST BE PRECLUDED In all cases, damages must be reasonable. (Cal. Civ. Code § 3359). Plaintiff may only introduce the amounts owed and the amounts paid by insurers, without making any reference or actually, using the word “insurance.” See Howell v. Hamilton Meats & Provisions, Inc. (201 1) 52 Cal.4th 541. If the plaintiff paid less than the actual charged rate, he or she can recover no more than the amount paid. In this case, Plaintiff agrees to only present the actual amounts that were paid by his health insurance. Ms. Michalski is attempting to argue that the pre-negotiated contractual rates between Mr. Harper's health insurance and his providers is unreasonably high. This is the first time ever that Plaintiff's counsel can recall a Defendant’s expert attempting to 5 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED | ORDER S S 0 X X N N N R W - a 11 iT E 80 0 SA NT A AN A, CA 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E A I T K E N 4 A I T K E N # " H N 3 M A C A R T H U R P L A C L £3 PRINTED ON RECYCLED PAPER argue that the negotiated, reduced, adjusted, and paid insurance rates for past medical treatment being unreasonably high. Howell has been a dagger in the hearts of many Plaintiffs lawyers, and now Ms. Michalski is improperly trying to further limit the paid amount of medical expenses that Mr. Harper is entitled to recover. Furthermore, Mr. Harper’s health insurer, UnitedHealthcare, through its claims administrator St. Joseph Heritage, has asserted a lien against Mr. Harper for approximately $260,000. Attached as Exhibit C, please find documentation from Mr. Harper's health insurance claims administrator indicating that he will be billed directly if this amount is not paid. As such, if the net recovery for Mr. Harper is less than the lien amount, the lien holder can send Mr. Harper to collections. If a collateral source pays for a patient’s medical bills, and a jury determines that a third party-tortfeasor is responsible for that harm, why should the collateral source be reimbursed less than what they paid? Not only will the health insurer be short-changed, so will Mr. Harper. To make matters worse, the wrongdoer, in this case Defendants, will also benefit by having to pay less than they owe. “(A) person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift. The tortfeasor should not garner the benefits of his victim's providence.” Helfend v. Southern Calif Rapid Transit Dist. (1970) 2 Cal.3d 1, 10; Lund v. San Joaquin Valley R.R. (2003) 31 Cal.4th 1, 7. The goal in tort law is to put the plaintiff in a position he or she was in prior to the tort occurring. Allowing Defendants to argue the reasonable value of a medical service is less than what Mr. Harper actually owes goes astray from this goal. It will undoubtedly influence the jury to minimize Plaintiff's actual damages. This is improper when juxtaposed with the goal in tort law. VI. MS. MICHALSKI AND DEFENDANTS DO NOT HAVE STANDING TO INTERFERE WITH THE CONTRACT BETWEEN MR. HARPER AND UNITEDHEALTHCARE AND THE CONTRACT BETWEEN HIS MEDICAL PROVIDERS AND UNITEDHEALTHCARE 6 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED | ORDER Oo 0 NN NN RA W N P t p m p d pe WwW N = Oo {T E 80 0 S A N T A AN A, CA 92 70 7 -_ e m a N n n A 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E [S Y ~ A I T K E N 4 A I T K E N Z H N 3 M A C A R T H U R P L A C L N N No N N N N -_ AN Wn BH LW N = OO OO ® No ~ 28 £2 PRINTED ON RECYCLED PAPER “As a general rule a party to the contract or a privy thereto, and he alone, is entitled to maintain a suit to cancel or rescind [the contract], and one who is a stranger to, or has no interest in, the subject matter of the suit is not ordinarily entitled to such relief.” Reina v. Erassarret (1949) 90 Cal. App.2d 418, 423-24. Defendants have no standing to interfere with a contract between Mr. Harper and UnitedHealthcare. Per the contract - as is the case with any health insurance contract - UnitedHealthcare has a right of subrogation and Mr. Harper is contractually obligated to repay any funds to UnitedHealthcare if a lien is asserted due to injuries caused by a third-party tortfeasor. A lien has been asserted. Ms. Michalski and the Defendants do not have the right to interfere with this contract and argue that Mr. Harper should be permitted to repay UnitedHealthcare less than what they are owed because the rates paid by UnitedHealthcare are unreasonable. Nor do they have the right to interfere with the contract between UnitedHealthcare and Mr. Harper’s providers and argue the pre- negotiated contractual rates are unreasonable. VII. MS. MICHALSKI’S METHODOLOGY FAILS TO MEET THE KELLY-FRYE THRESHOLD OF A PRELIMINARY SHOWING OF GENERAL ACCEPTANCE OF THE NEW TECHNIQUE IN THE RELEVANT SCIENTIFIC COMMUNITY Admissibility of expert testimony based on “a new scientific technique” requires proof of its reliability - 1i.e., that the technique is “sufficiently established to have gained general acceptance in the particular field to which it belongs.” People v. Venegas (1998) 18 Cal. 4th 47, 76. Moreover, a witness testifying to such reliability “must be properly qualified as an expert to give an opinion on the subject.” Id. The Kelly-Frye threshold is a three-prong test of reliability to protect jury from scientific techniques that convey a misleading aura of certainty: 1) there must be proof that the technique is considered reliable in the scientific community; 2) the witness testifying about the technique must be a qualified expert on the subject, and 3) there must be proof that the correct scientific procedures have been used in the particular case. Concerning this methodology, there is one letter purportedly signed by Gerard Anderson, Ph.D. on a Johns Hopkins University letterhead as the only evidence of “acceptance.” Attached as Exhibit D, please find Dr. Anderson's letter. However, this letter dated November 21, 2013, only reviewed 7 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED | ORDER A I T K E N 4 A I T K E N Z ~ 9 H N 3 M A C A R T H U R PL AC : S 0 XX N N Wn RA W N iT E 80 0 - h s Ft ! - p t e k wn = U I No -_ Fo k aN 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E SA NT A AN A, CA 92 70 7 N o N o r o nN No N o ro -_- -_- J AN wn += G o N O -_ {o ws O o o ~J No ~ 28 £3 PRINTED ON RECYCLED PAPER one report previously prepared by Nancy Michalski in a previous case. The hearsay letter neither states the methodology she used nor what documentation she provided for the reviewer to review. We have no evidence whether the methodology in this case was the same or similar to the methodology used by Ms. Michalski in the case that was reviewed by Mr. Anderson. Lastly, Mr. Anderson was provided with a $5,000 payment for his “review” of Ms. Michalski’s work. Attached as Exhibit E, please find Michalski Testimony relating the $5,000. As a result, the only evidence of “general acceptance” of this methodology provided by Ms. Michalski is a hearsay letter that pertains to Elevate Medical-Legal Services (the company Ms. Michalski works for) work in a prior case and where there is no evidence to discern whether her work in this case was even the same. Accordingly, the Kelly-Frye standard is not satisfied. VIII. PLAINTIFF'S EXPERT PAUL ADAMS’S OPINIONS AGREE WITH THE REASONABLE VALUE OF PAST MEDICAL CARE CALCULATED BY THE LIENHOLDER, ST. JOSEPH’S The calculation of the reasonable value of the past medical bills in this matter requires expertise in understanding claims billing and auditing including the calculation of health insurance repayment of medical services. In this case, medical services were paid on a capitated and a fee-for-services basis. This testimony will be provided by Plaintiff’s expert Paul Adams and independent witness from Plaintiff’s health insurer’s claims administrator, St. Joseph’s Health Care. Ms. Michalski admitted in her deposition she has no knowledge of this industry standard: Do you have any experience in health plans and delegated risk? See pages 77-79 No, I do not. Do you have nay experience in converting capitated payments into fee-for-service payments? No, not specifically. You don’t have any opinion as to how HMO recoups its payment for medical services, do you? No. That’s outside my scope. You’ve never worked in a claims department, right? No. (Michalski Depo. 77:10-25-78:1-16). Attached as Exhibit F please find Michalski Testimony relating to her lack of knowledge of the O P O P » O » O 0 industry standard. As such, Ms. Michalski cannot provide the proper foundation for her 8 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED [| ORDER Oo 0 NN O n RA W N L a EE WwW N N = OO IT E 80 0 SA NT A AN A, CA 97 70 7 E E a AN On pb 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E [ - ~ A I T K E N 4 A I T K E N + ~9 OH N 3 M A C A R T H U R PL AC IL N N No N N N N N = = aN wh +S [# 8] No - oS 0 oo No 3 28 £2 PRINTED ON RECYCLED PAPER opinions, and this Court, like other courts, should exclude her from testifying in this matter. As an aside, Defendants have filed a motion in limine to preclude Plaintiffs billing expert Paul Adams from testifying in this trial. One basis for their opinions is likely that Mr. Adams has not testified in trial before. The reason for this is because Mr. Adam’s opinions are crystal clear industry standards, and nobody has disputed them until Ms. Michalski decided to in this case. IX. CONCLUSION Plaintiffs respectfully requests that the Court grant this motion in its entirety. Dated: June 15, 2018 AITKEN+AITKEN4+COHN By: lie u_/ ATTICUS N. WEGMAN-FSTQ. Attorneys for Plai Gin 9 PLAINTIFFS’ MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED | ORDER OO 0 NN O N Wn BA W O N = “ O H N JI TE 80 0 S A N T A A N A , C A 92 70 7 - -_- I t - - f - - AN wn So Ww No pd oS 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E A I T K E N 4 A I T K E N * - ~ 3 M A C A R T H U R P L A C Do No Do No B o N o No No NN = o o ~ AN w h Ia Ww N o L e = \O 0 $Y PRINTED ON RECYCLED PAPER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE [ am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On June 15, 2018 I served the foregoing documents described as MOTION IN LIMINE NO. 7 RE PRECLUDING NANCY MICHALSKI’S TESTIMONY; on the parties herein in this action by placing ( ) the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached service list. (X) BYMAIL (X) As follows: Iam "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 that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course pe wy I am aware that on motion of the party served, service is presumed invalid if postal cancellation date of pose meter date is more than one day after date of deposit for mailing an affidavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. ( ) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of Service list. () By Email Transmission: I caused the above-referenced document(s) to be transmitted to the persons listed in the attached Proof of Service lists. Executed on June 15,2018 at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws of the State of Califprnja that the above is true and correct. =~ Ll ) i, | # Kziétin McCarthy 1 PROOF OF SERVICE IT E 80 0 SA NT A AN A, CA 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 FA CS IM IL E A I T K E N A I T K E N ” H N 3 M A C A R T H U R P L A C : & PRINTED ON RECYCLED PAPER HARPER v. LOPEZ, et al. SERVICE LIST Debra L. Braasch BROWN, BONN & FRIEDMAN, LLP 4 Hutton Center, Suite 350 Santa Ana, CA 92707 714-427-3900 714-427-5449-fax and Scott L. MacDonald MACDONALD & CODY LLP 38 Executive Park, Suite 280 Irvine, CA 92614 (714) 831-1713 (714) 823-3229-fax Attorneys for Defendants/ Cross- Complainants/Cross-Defendants TUTTLE CLICK'S CAPISTRANO FORD, INC. (erroneously sued and served as "Capistrano Ford") and RAUL NAJERA LOPEZ Richard C. Moreno, Esq. Steven J. McEvoy, Esq. MURCHISON & CUMMING LLP 801 South Grand Ave., 9th Floor Los Angeles, CA 90017 (213) 623-7400 (213) 623-6336-fax Attorneys for Defendants/Cross- Complainants /Cross-Defendants DNJ SERVICES LLC, DONALD PINKUS; Defendants/Cross-Defendants CERVANDO SALGADO, ROE 1 AND URS MIDWEST, INC., ROE 2 PROOF OF SERVICE