ESTABLISHING FOUNDATION FOR DEMONSTRATIVE AND ELECTRONIC EVIDENCE. By M. Lawrence Lallande

Transcription

1 SECTION 4 EVIDENCE

2 ESTABLISHING FOUNDATION FOR DEMONSTRATIVE AND ELECTRONIC EVIDENCE DEMONSTRATIVE EVIDENCE DEFINITION: By M. Lawrence Lallande a. All evidence from which the trier of fact may derive a relevant firsthand sense of impression in contrast to the traditional presentation of oral testimony and the introduction of documentary exhibits. 1 b. Demonstrative evidence is admissible for the purpose of illustrating and clarifying a witness' testimony. People v. Kynette (1940) 15 Cal.2d 731, disapproved on other grounds; St. George v. Superior Court (1949) 93 Cal.App.2d 815, 816. c. Rutter Group: California Practice Guide: Civil Trials and Evidence: [8:470] Demonstrative evidence is physical evidence that is not itself at issue in the case but which illustrates or demonstrates a party's testimony or theory of the case. 2. COLLECTION OF EVIDENCE: Think about demonstrative evidence from the first interview. Consider issues of preservation of evidence. The collection of evidence will assist you in preparing demonstrative evidence exhibits for mediation and trial. Prepare an office checklist for different types of cases. On a case by case basis consider what evidence will be most useful for your presentation to the jury. Demonstrative evidence can be obtained from a variety of sources including but not limited to your client, the defendant, independent third party witnesses and vendors. REQUIREMENTS FOR USE OF DEMONSTRATIVE EVIDENCE 1. ADMISSIBILITY: Rutter California Practice Guide: Civil Trials and Evidence, Chapter 8. Evidence a. [8:471] Admissibility In General: Demonstrative evidence is as admissible as the testimony it illustrates. I.e., if the witness' testimony is otherwise admissible (relevant, nonhearsay, etc.), demonstrative evidence is also admissible... subject to the court's discretion (below). It simply helps the jury visualize the witness' testimony. b. [8:472] Limitation court discretion (Ev.C. 352): Ev.C. 352 is often the major limitation on admissibility of demonstrative evidence. It gives the court discretion to exclude such evidence where its probative value is substantially outweighed by risks of undue consumption of time, undue prejudice or confusing the issues or misleading the jury. [Ev.C. 352; DiRosario v. Havens (1987) 196 CA3d 1224, 1232, 242 CR 423, 427] 2. RELEVANCE: California Evidence Code 210: Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. 3. AUTHENTICATION: a. California Evidence Code 1400: Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law. b. California Evidence Code 1401: Authentication required (a) Authentication of a writing is required before it may be received in evidence. 1 Kathleen Flynn Peterson, Enhanced Persuasion: Effective use of demonstrative evidence at trial, Advocate; January 2010

3 (b) Authentication of a writing is required before secondary evidence of its content may be received in evidence. 4. FOUNDATION: Foundation for demonstrative evidence is established by testimony or other evidence establishing that it is a fair representation of the underlying witness testimony or other direct evidence. People v. Ham (1970) 7 Cal.App.3d 768, 780 (disapproved on other grounds in People v. Compton (1971) 6 C3d 55, 60, fn. 3). a. STIPULATION b. JUDICIAL NOTICE c. LAY A FOUNDATION 1. How was the exhibit generated- what program 2. Accuracy of the program in generating the exhibit 3. Widely used in the profession 4. Accurately reflects the experts opinion EXAMPLES OF USE OF DEMONSTRATIVE EVIDENCE INVOLVING EXPERTS 1. OPENING STATEMENT: almost every trial lawyer in the modern age, is to utilize electronic presentation capabilities in opening statement to provide the jury a road map of the case and allow the jury to more easily understand the evidence and testimony that will be presented during the trial. While use of visual aids in opening statement is not a matter of right, such use is discretionary with the court. See People v. Green (1956) 47 Cal.2d 209. a. Los Angeles Superior Court Local Rule 8.40: In opening statement to the jury by counsel, no display to the jury or reference should be made to any chart, graph, map, picture, model, video, or any other graphic device except: (1) When marked as an exhibit and received in evidence; (2) By stipulation of counsel; or (3) When leave of court has first been obtained. With prior approval of the court, counsel may use the blackboard or paper for illustrative purposes during opening statements. b. People v. Arnold (1926) 199 Cal. 471,486: The purpose of the opening statement is to prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force and effect. c. People v. Green (1956) 47 Cal.2d 209, 215: The use of matters which are admissible in evidence, and which are subsequently in fact received in evidence, may aid this purpose. d. People v. Millwee (1998) 18 Cal. 4th 96, 137: Nothing prevents the statement from being presented in a story-like manner that holds the attention of lay jurors and ties the facts and governing law together in an understandable way. e. People v. Fauber (1992) 2 Cal. 4th 792, : when excerpts of witness prior testimony are used in opening statement, it may be highlighted, emphasized, and commented upon by counsel, including by visual means. f. Hawk v. Sup.Ct. (People) (1974) 42 Cal.App.3d 108, 121: Evidence can be referred to in opening statement where there is a good faith and reasonable basis for believing such evidence will be tendered and admitted in evidence. g. People v. Kirk (1974) 43 Cal. App. 3d 921, 929: the court found that [c]ertainly there is no requirement that, prior to an opening jury statement, a party formally authenticate all documentary evidence which he proposes to mention to the jury in the opening statement. 2. ACCIDENT RECONSTRUCTION, ANIMATIONS AND SIMULATIONS: Key Cases:

4 a. People v Hood: 53 Cal App 4 th 965: Functioning of computer in creating animation of shooting presented no issue requiring compliance with Kelly formulation for evidence based on new scientific procedures; California law permits computer animations to be played to a jury on theory that they are not scientific evidence but rather are tantamount to drawings by the experts from both sides to illustrate their testimony. b. People v. Gonzalez (2006) 38 Cal.4th 932, 952: In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case. c. In Gonzalez, the Court held that to, be admissible in evidence, an audio or video recording must be authenticated. A video recording is authenticated by testimony or other evidence that it accurately depicts what it purports to show. (People v. Mayfield (1997) 14 Cal.4th 668, 747, 60 Cal.Rptr.2d 1, 928 P.2d 485.) d. People v. Duenas (2012) 55 Cal. 4th 1, 21 : Courts and commentators draw a distinction between computer animations and computer simulations. (Annot., Admissibility of Computer Generated Animation, 111 A.L.R.5th 529, , 2[a] (2003).) Animation is merely used to illustrate an expert's testimony while simulations contain scientific or physical principles requiring validation. [Citation.] Animations do not draw conclusions; they attempt to recreate a scene or process, thus they are treated like demonstrative aids. [Citation.] Computer simulations are created by entering data into computer models which analyze the data and reach a conclusion. (Harris v. State (Okla.Crim.App.2000) 13 P.3d 489, 494, fn. 6, citing Clark v. Cantrell (2000) 339 S.C. 369, 529 S.E.2d 528, 537.) In other words, a computer animation is demonstrative evidence offered to help a jury understand expert testimony or other substantive evidence (People v. Hood (1997) 53 Cal.App.4th 965, 969, 62 Cal.Rptr.2d 137 (Hood )); a computer simulation, by contrast, is itself substantive evidence. (Commonwealth v. Serge (2006) 586 Pa. 671, 896 A.2d 1170, & fn. 3 (Serge ); State v. Stewart (Minn.2002) 643 N.W.2d 281, (Stewart ).) Courts have compared computer animations to classic forms of demonstrative evidence such as charts or diagrams that illustrate expert testimony. (E.g., Hood, supra, 53 Cal.App.4th at p. 969, 62 Cal.Rptr.2d 137; Serge, supra, 896 A.2d at p ) A computer animation is admissible if it is a fair and accurate representation of the evidence to which it relates...' (Dunkle v. State (Okla.Ct.Crim.App.2006) 139 P.3d 228, 247 (Dunkle ), quoting Harris v. State, supra, 13 P.3d at p. 495; accord, Serge, supra, 896 A.2d at pp ; Stewart, supra, 643 N.W.2d at p. 293.) A trial court's decision to admit such demonstrative evidence is reviewed for abuse of discretion. (See People v. Mills (2010) 48 Cal.4th 158, 207, 106 Cal.Rptr.3d 153, 226 P.3d 276; People v. Williams (1997) 16 Cal.4th 153, , 66 Cal.Rptr.2d 123, 940 P.2d 710.) A computer simulation, by contrast, is admissible only after a preliminary showing that any new scientific technique used to develop the simulation has gained general acceptance... in the relevant scientific community. (People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240; see also Hood, supra, 53 Cal.App.4th at pp , 62 Cal.Rptr.2d 137.) In this case, the parties agree that the evidence was a computer animation, not a simulation, and therefore it was admissible if it was a fair and accurate representation of the evidence. (Dunkle, supra, 139 P.3d at p. 247.) None of defendant's arguments indicates an abuse of discretion by the trial court in admitting the animation (see pt. II.A.2.c., post ); in any event, any error was harmless (see pt. II.A.2.d., post ).

5 e. People v. Rodrigues (1994) 8 Cal.4th 1060, 1113: In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them. (DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1232 [242 Cal.Rptr. 423].) Within these limits, 'the physical conditions which existed at the time the event in question occurred need not be duplicated with precision nor is it required that no change has occurred between the happening of the event and the time the [videotape] is taken. [Citation.]' (Id., at pp ) Rutter California Practice Guide: Civil Trials and Evidence, Chapter 8. Evidence i. [8:514] Accident reconstruction: Assuming a proper foundation is laid, a visual reconstruction of the accident or event in dispute may greatly assist the jurors. Thus, videos or other recordings of such reconstructions, made under substantially similar conditions to the events in dispute, are admissible as demonstrative evidence (illustrating witness testimony or other evidence). ii. [8:515] Substantial similarity of conditions required: The reconstruction must have been made under substantially similar conditions (e.g., comparable lighting, identical intersection, same model car, etc.) to those existing at the time of the accident or event in dispute. [People v. Boyd (1990) 222 CA3d 541, , 271 CR 738, filmed reconstruction, offered to show witness could not have seen clearly enough to make ID, inadmissible where D failed to establish filming occurred under substantially similar lighting conditions] But the conditions need not be absolutely identical. iii. [8:517.5] Photographic reconstruction: Photographs of an accurate reconstruction of an event in issue are admissible as illustrative evidence. iv. [8:518] Computer simulations: Where an accident or event reconstruction is not feasible (e.g., because the occurrence was unseen or the sequence of events involved is uncertain) computer simulations may be used to illustrate events based on witness testimony and other evidence. v. [8:519] Admissibility of computer animations to illustrate expert testimony: A computer animation is admissible if it is a fair and accurate representation of the evidence to which it relates. [People v. Duenas, supra, 55 C4th at 20, 144 CR3d at 837 (internal quotes omitted)] Computer animations are tantamount to drawings by experts to illustrate their testimony. They are admissible to the same extent as if the animations had been done by hand, rather than by a computer. [People v. Hood (1997) 53 CA4th 965, 969, 62 CR2d 137, 140 computer animation did not need to satisfy Kelly rule for scientific evidence ( 8:563 ff.)] 3. DEPOSITIONS: i. CCP Contents of deposition notice; copy of deposition subpoena as notice of deposition (a) A party desiring to take the oral deposition of any person shall give notice in writing. The deposition notice shall state all of the following: (5) Any intention by the party noticing the deposition to record the testimony by audio or video technology, in addition to recording the testimony by the stenographic method as required by Section and any intention to record the testimony by stenographic method through the instant visual display of the

6 testimony. If the deposition will be conducted using instant visual display, a copy of the deposition notice shall also be given to the deposition officer. Any offer to provide the instant visual display of the testimony or to provide rough draft transcripts to any party which is accepted prior to, or offered at, the deposition shall also be made by the deposition officer at the deposition to all parties in attendance. Any party or attorney requesting the provision of the instant visual display of the testimony, or rough draft transcripts, shall pay the reasonable cost of those services, which may be no greater than the costs charged to any other party or attorney. (6) Any intention to reserve the right to use at trial a video recording of the deposition testimony of a treating or consulting physician or of any expert witness under subdivision (d) of Section In this event, the operator of the video camera shall be a person who is authorized to administer an oath, and shall not be financially interested in the action or be a relative or employee of any attorney of any of the parties. ii. iii. iv. CCP : Recordation by audio or video technology; procedural requirements; submission at hearing with stenographic transcript (a) The area used for recording the deponent's oral testimony shall be suitably large, adequately lighted, and reasonably quiet. (b) The operator of the recording equipment shall be competent to set up, operate, and monitor the equipment in the manner prescribed in this section. Except as provided in subdivision (c), the operator may be an employee of the attorney taking the deposition unless the operator is also the deposition officer. (c) [EXPERTS] If a video recording of deposition testimony is to be used under subdivision (d) of Section , the operator of the recording equipment shall be a person who is authorized to administer an oath, and shall not be financially interested in the action or be a relative or employee of any attorney of any of the parties, unless all parties attending the deposition agree on the record to waive these qualifications and restrictions. CCP (m): A party intending to offer an audio or video recording of a deposition in evidence under Section shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered. That notice shall be given within sufficient time for objections to be made and ruled on by the judge to whom the case is assigned for trial or hearing, and for any editing of the recording. Objections to all or part of the deposition shall be made in writing. The court may permit further designations of testimony and objections as justice may require. With respect to those portions of an audio or video record of deposition testimony that are not designated by any party or that are ruled to be objectionable, the court may order that the party offering the recording of the deposition at the trial or hearing suppress those portions, or that an edited version of the deposition recording be prepared for use at the trial or hearing. The original audio or video record of the deposition shall be preserved unaltered. If no stenographic record of the deposition testimony has previously been made, the party offering an audio or video recording of that testimony under Section shall accompany that offer with a stenographic transcript prepared from that recording. CCP Use of deposition at trial or other hearings; procedural requirements; permitted uses; submission of total or partial testimony

7 (a) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing (e) Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced. v. California Rule of Court: Rule Electronic recordings presented or offered into evidence (a) Electronic recordings of deposition or other prior testimony (1) Before a party may present or offer into evidence an electronic sound or sound-and-video recording of deposition or other prior testimony, the party must lodge a transcript of the deposition or prior testimony with the court. At the time the recording is played, the party must identify on the record the page and line numbers where the testimony presented or offered appears in the transcript. (2) Except as provided in (3), at the time the presentation of evidence closes or within five days after the recording in (1) is presented or offered into evidence, whichever is later, the party presenting or offering the recording into evidence must serve and file a copy of the transcript cover showing the witness name and a copy of the pages of the transcript where the testimony presented or offered appears. The transcript pages must be marked to identify the testimony that was presented or offered into evidence. (3) If the court reporter takes down the content of all portions of the recording in (1) that were presented or offered into evidence, the party offering or presenting the recording is not required to provide a transcript of that recording under (2).

8 USE AND ABUSE OF DEMONSTRATIVE EVIDENCE By Jeffrey J. Greenman Since the days of "show & tell", demonstrative evidence has been a very important teaching tool. Learning through seeing and hearing things is much easier and more fun. Most jury psychologists believe that people learn much more through seeing and hearing rather than from hearing alone. Accordingly, demonstrative evidence should be used at trial to give the jury a better understanding of your case. The use of demonstrative evidence usually grabs the jury's attention and often has them sitting at the edge of their seats when things like models and objects are being shown. Demonstrative evidence consists of trial exhibits that are admitted in evidence or visual aids that will not be entered in evidence, but are simply used by a witness or by the lawyer to explain matters that are relevant to the trial. Demonstrative evidence includes models, medical devices, diagrams, photographs, sketches, and objects at issue, as well as a variety of other items. Before a demonstrative exhibit may be used at trial, a witness should establish that the exhibit resembles and is substantially the same as the object or area in question. If using a model, make sure that it fairly and accurately represents the original and that it has been built to scale. You will need to establish this at trial before the use of the exhibit is allowed. This predicate must often be established through expert testimony. A witness intending on using an exhibit as an aid should first explain that the use of the exhibit will facilitate the presentation of the testimony to the jury. Let s turn to the law that covers the use of Demonstrative evidence. USE: It is important to understand just what demonstrative evidence is in the eyes of the law. Demonstrative evidence is as admissible as the testimony it illustrates. Ie. If the witness testimony is otherwise admissible...demonstrative is also admissible. This simply implies that if some evidence can be brought in by a witness, a visual aid that accurately depicts that evidence can be used as well. To compliment testimony with a demonstrative aid we will need to establish foundation. Foundational requirements: These are established through testimony or other evidence establishing that is a fair representation of the underlying witness testimony or other direct evidence. People v. Ham (1970) 7 CA3d 768, 780, 86 CR 906, 913. For example, using a picture of an accident scene, we will need witnesses testimony to establish that the picture depicts how the scene looked on the day of the incident. Be careful to use the demonstrative aid in this situation in as truthful a way as possible. Do not, exaggerate the circumstances of the picture by using a photo from a rainy day if the accident happened on a clear day for example. Requisite of proof: Can vary from testimony of a witness (employee) or an expert/engineer when using a scale model or animation. Keep in mind that there are many avenues to use demonstrative evidence. An eye witness is great, but your experts who re-create the accident can use their own demonstrative devices, ie. animation, to bring your story to life.

9 Types of Demonstrative Evidence: There are a multitude of different demonstrative evidence tools. Below I have selected out the situations most used in civil litigation cases and what to watch out for when relying on them. Graphic illustrations: Maps, diagrams and charts: In an auto accident case I find google maps to be a reliable and very informative source for giving an accurate depiction of the accident scene. In medical malpractice cases I like to use time lines. Due to the complexities of medical malpractice cases, a chronological time line can be a nice crutch to rely on in trial and very helpful for a jury when discussing minutes, hours etc... Furthermore, when it comes to loss of earnings I find bar or line graphs helpful to use with my economists. During closing, the use of a chart showing deposition quotes v. inconsistent trial testimony can be helpful as well, though not admissible. Drawings: When I ask an expert witness to draw a part of the body or even my clients to show which direction they were traveling, I make sure they do so on butcher paper. You would be surprised as to how well people can actually draw, especially doctors. This helps the jury understand what they are hearing through the actual eyes - hands of the witnesses. It also allows the witness to have a one-on-one with the jury and build rapport. If you want to use the butcher paper as an evidence, be sure to mark it as an exhibit on th record. Admissibility: If the graphic is a fair representation of the evidence it purportedly illustrates, it is generally held admissible. Some demonstrative evidence that is not otherwise admissible can be brought it by questioning a witness about it. You can question a witness regarding entries on a chart without offering it into evidence. For example sweep charts or a blow up of financial transactions. Make sure you mark for identification to preserve your record. Demonstration by a witness testifying: This is admissible to illustrate the witness testimony if conducted under substantially similar conditions to the matter at issue. People v. Jacobs (1987) 195 CA3d 1636, 1656, 241. Demonstrations can also be compelled: No person has a privilege to refuse to be a witness Evidence code 911(a). Being a witness includes nonverbal as well as verbal testimony. Emerson Elec. Co. V. Sup.Ct. (Grayson) (1997) 16 C4th 1101, Nonverbal testimony can be compelled at deposition (CCP ). Emerson strongly implies that a trial witness may be compelled to perform a demonstration of reenactment. This includes: Drawing a diagram showing how an accident occurred Use of a product reenact the event in question handwriting exemplar. I found this interesting. You can literally ask a witness to do something on the stand to demonstrate. Use of this can vary widely, ie. Using a product that they state injured them or getting up and walking to re-enact a trip and fall. All of this can be very powerful in front of a jury.

10 Accident reconstruction: Assuming proper foundation has been laid, a visual reconstruction of the accident or event in dispute may greatly assist the jurors. Thus, videos or other recordings of such reconstructions, made under substantially similar conditions to the events in dispute, are admissible as demonstrative evidence. (Illustrating witness testimony or other evidence). Hasson v. Ford Motor Co.(1977) 19 C3d 530, Substantial Similarity of conditions required: The reconstruction must have been made under substantially similar conditions (i.e. comparable lighting, identical intersection, same model car etc.) to those existing at the tiem of the accident or event in dispute. People v. Boyd (1990) 222 CA3d 541, But the conditions need not be absolutely identical Grimshaw v. Ford Motor Co. (1981) 119 Ca3d 757, 791. Filmed recreation of accident scene was admissible despite some dissimilarities. Be wary of dissimilar conditions: Such evidence is likely to be excluded where there are significant variables in the conditions under which there accident reconstruction was conducted. Solis v. Southern Calif. Rapid Transit Dist. (1980) 105 CA3d 382, 390. Ie. Clear day v. rainy day or different vehicle. Also be wary of inconsistencies with eyewitness testimony, putting your bias or how you believe the accident occurred can be a recipe for disaster. Photographic reconstruction: Photographs of an accurate reconstruction of an event in issue are admissible as illustrative evidence People v. Cummings (1993) 4 C4th 1233, 1291 Computer simulations: Where an accident or event reconstruction is not feasible (eg because the occurrence was unseen or the sequence of events involved is uncertain) computer simulations may be used to illustrate events based on witness testimony and other evidence. Admissibility of computer animations to illustrate expert testimony: Computer animations are tantamount to drawings by experts to illustrate their testimony. They are admissible to the same extent as if the animations had been done by hand, tather than by a computer. People v. Hood (1997) 53 CA4th 965, 969. ABUSE: Evidence Code 352: Is the most common limitation to use of Demonstrative evidence. Is the probative value of what your are trying to introduce substantially outweighed: by risks of undue consumption of time, undue prejudice or confusing the issues or misleading the jury. This is the fine line to using your demonstrative exhibit. Be wary not to stray to far from the evidence you intend to produce. Argumentative: Diagrams, charts or graphs that go beyond simply illustrating a witnesses testimony may be excluded as being argumentative. Eg. Showing a picture of the scene but put a chalk out line of a dead person (that wasn t there). Save this for closing! Undue emphasis: The court may consider the extent to which a proffered exhibit place emphasis on certain matter. Eg. Show a picture using bolded words or bright letters. Save this for closing! I will remove my taped up parts at closing to expose my arguments.

11 A picture is worth a thousand words! Visual materials can often successfully convey ideas and facts in a far more comprehensible and persuasive fashion than mere testimony or text. See Frank Herrera & Sonia Rodriguez, Courtroom Technology: Tolls For Persuasion, TRIAL, May 1998, at 68. "A wise trial lawyer is always mindful of the fact that although jurors only retain 15 percent of what they hear alone, they retain 85 per cent of what they both hear and see." (Ibid.)

12 MEDICAL BILLS AND COLLATERAL SOURCES: ADMISSIBILITY CHALLENGES By James R. Kristy The admissibility of medical bills and collateral payments to prove a plaintiff s medical damages has evolved. The purpose of these syllabus materials is to trace this evolution and summarize the current state of the law regarding admissibility of medical bills and collateral payments, whether the plaintiff is insured, uninsured, or dependent on Medicare or Medi-Cal. The collateral source rule Payments made to or benefits conferred on the injured party from other sources [i.e., those unconnected to the defendant] are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable. (Rest.2d Torts, 920A, subd. (2).) If an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor. (Helfend v. S. Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6.) [T]he collateral source rule ensures plaintiffs will receive the benefits of their decision to carry insurance and thereby encourages them to do so. [Citation.] (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 551.) Pre-Howell exceptions to the collateral source rule In medical negligence cases, [t]he defendant may introduce evidence of collateral payments and benefits provided to the plaintiff for his or her injury; the plaintiff, in turn, may introduce evidence of premiums paid or contributions made to secure the benefits. Howell, supra, 52 Cal.4th at p. 552, citing Civ. Code, ) A public entity defendant may move, after trial, to reduce a personal injury award against it by the amount of certain collateral source payments. (Gov. Code, 985, subd. (b).) The trial court has discretion to reduce the judgment, though its discretion is guided and limited in several respects, including that the total deduction may not exceed one-half of the plaintiff's net recovery. (Id.; Howell, supra, 52 Cal.4th at p. 552.) Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 In this case, the injured plaintiff was a Medi-Cal recipient. The amounts Medi-Cal paid for plaintiff s medical care were substantially lower than the providers bills. The plaintiff argued that the reasonable value of the treatment was the amount of the bills, not of the Medi-Cal payments. (Hanif, supra, 200 Cal.App.3d at p. 639.) Although there was no evidence the plaintiff was liable for the difference, the court, in a bench trial, awarded the plaintiff the larger, reasonable value amount. (Ibid.) The appellate court held the trial court had overcompensated the plaintiff for his past medical expenses, and that recovery should have been limited to the amount Medi-Cal had actually paid on his behalf. (Ibid.) While California courts have referred to the reasonable value of medical care in delineating the measure of recoverable damages for medical expenses, in this context [r]easonable value is a term of limitation, not of aggrandizement. (Hanif, supra, 200 Cal.App.3d at p. 641, italics added.) The detriment the plaintiff suffered..., his pecuniary loss..., was only what Medi-Cal had paid on his behalf; to award more was to place him in a better financial position than before the tort was committed. (Id. at pp ) A tort plaintiff's recovery for medical expenses, according to the Hanif court, is limited to the amount paid or incurred for past medical care and services, whether by the plaintiff or by an independent source..... (Id. at p. 641.)

13 Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 Because the hospital had agreed to accept a sharply discounted amount from plaintiff s insurer, only the amount actually paid could be claimed as past medical damages, and not the hospital s normal rates. For the first time, the Court of Appeal applied the Hanif restriction to payments made by a private health insurer. The hospital had billed the plaintiff at its normal rates. However, in a pre-existing agreement, the hospital had agreed to accept sharply reduced payments from plaintiff s health plan. (Nishihama, 93 Cal.App.4th at pp ) Applying Hanif, the Nishihama court ordered plaintiff s judgment reduced to reflect only the amount the insurer had paid the hospital. (Id. at pp ) Olszewski v. Scripps Health (2003) 30 Cal.4th 798 In 2003, the California Supreme Court extended the holding in Hanif to another case in which the plaintiff was a Medi-Cal recipient. The Court held that because a medical provider was not entitled to the full amount billed, the plaintiff may recover only the amount Medi-Cal paid. (Olszewski, supra, 30 Cal.4th at pp ) Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595 The California Supreme Court held that a hospital was not entitled to a lien against the plaintiff s recovery for the full amount billed, when it had agreed to accept a lesser amount from plaintiff s insurer. But the court reserved judgment on whether Hanif applied outside of the Medicaid context. (Parnell, supra, 35 Cal.4th at p. 598.) Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288 In Katiuzhinsky, the Court of Appeal declined to extend Hanif and Nishihama where the injured plaintiffs medical providers had sold some of their bills at a discount to a medical finance company. Even though the providers had cashed out their accounts receivable at a discount, the plaintiffs remained liable to the finance company for the full, original amounts of the bills. (Katiuzhinsky, supra, 152 Cal.App.4th at pp ) The Court of Appeal reversed the trial court, which had limited the plaintiffs recovery to the discounted amounts of the bills. It concluded that the trial court did not correctly apply Hanif and Nishihama. The intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment. (Id. at p ) Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person's health insurer, an amount less than that stated in the provider's bill. In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider's bill but never paid by or on behalf of the injured person? We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount. [Citation.] (Howell, supra, 52 Cal.4th at p. 548.) In Howell, the trial court ruled that plaintiff could present, as damages, the gross amounts billed by her medical providers, and defendant could bring a post-trial motion under Hanif to reduce the damages to the amounts actually paid to such providers. (Howell, supra, 52. Cal.4th at p. 549.) After the plaintiff s victory, defendant made a post-trial motion to reduce plaintiff s past medical damages to the amount actually paid under a preexisting agreement by plaintiff s insurer to her medical providers. (Id. at p. 550.) In opposition, plaintiff argued reduction of the medical damages would violate the collateral source rule. She supported her opposition with copies of the patient agreements she had signed with her two medical

14 providers. In one, she agreed to pay the provider s usual and customary charges ; in the other, she agreed to pay any part of the bill her insurance did not pay. (Howell, supra, 52. Cal.4th at p. 550.) The trial court reduced the award as the defendant requested. The Court of Appeal reversed, holding that the trial court had violated the collateral source rule. (Ibid.) The California Supreme Court held that evidence of collateral payments is inadmissible for the purpose of reducing recoverable damages. If proffered for other purposes, such as to support a defense claim of malingering, its probative value must be carefully weighed against the inevitable prejudicial impact such evidence is likely to have on the jury's deliberations. Further, it may be reversible error to admit collateral payments even where the jurors are instructed not to deduct the collateral payments from their award of economic damages. (Howell, supra, 52 Cal.4th at p. 552.) The Court considered four questions: (1) Was Hanif correct that a tort plaintiff can recover only what has been paid or incurred for medical care, even if that is less than the reasonable value of the services rendered? ; (2) Even if Hanif, which involved Medi-Cal payments, reached the right result on its facts, does its logic extend to plaintiffs covered by private insurance? ; (3) Does limiting the plaintiff's recovery to the amounts paid and owed on his or her behalf confer a windfall on the tortfeasor, defeating the policy goals of the collateral source rule? ; and (4) Is the difference between the providers' full billings and the amounts they have agreed to accept from a patient's insurer as full payment what the appellate court below called the negotiated rate differential a benefit the patient receives from his or her health insurance policy subject to the collateral source rule? (Howell, supra, 52. Cal.4th at p. 555.) In answer to Question 1, the Court held: We agree with the Hanif court that a plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less. [Citation.] California decisions have focused on reasonable value in the context of limiting recovery to reasonable expenditures, not expanding recovery beyond the plaintiff's actual loss or liability. To be recoverable, a medical expense must be both incurred and reasonable. [Citations.] (Howell, supra, 52. Cal.4th at p. 555.) The court cited a rule applicable to the recovery of tort damages, generally: the value of property or services is ordinarily its exchange value that is, its market value or the amount for which it could usually be exchanged. (Id. at p. 556.) The Court responded to Question 2 in the affirmative: the Hanif rule applies to plaintiffs covered by private insurance. In this case, Howell observed, the plaintiff never became obligated for the full amount of the providers services because the providers and the insurer had agreed to a discounted amount at the time the services were rendered. (Howell, supra, 52. Cal.4th at p. 557.) The Court conceded that the application of Hanif may result in an uninsured plaintiff recovering more than an insured plaintiff, all other things being equal. (Id. at p. 566.) On Question 3, the court found no windfall for tortfeasors in applying the Hanif rule to plaintiffs covered by private insurance. (Howell, supra, 52. Cal.4th at p. 562.) The Court observed: Pricing of medical services is highly complex and depends, to a significant extent, on the identity of the payer. In effect, there appears to be not one market for medical services but

15 several, with the price of services depending on the category of payer and sometimes on the particular government or business entity paying for the services. Given this state of medical economics, how a market value other than that produced by negotiation between the insurer and the provider could be identified is unclear. (Id., italics added.) On Question 4, the Court held that the negotiated rate differential is not a benefit protected by the collateral source rule. Having never incurred the full bill, plaintiff could not recover it in damages for economic loss. (Howell, supra, 52. Cal.4th at p. 563.) Certainly, the collateral source rule should not extend so far as to permit recovery for sums neither the plaintiff nor any collateral source will ever be obligated to pay. [Citation.] (Id. at p. 564.) In denying plaintiffs the benefit of the negotiated rate differential, the Court emphasized that the collateral source rule applies in full force in cases that consider its scope, as Howell does (Howell, supra, 52. Cal.4th at p. 565): Evidence that [collateral] payments were made in whole or in part by an insurer remains, however, generally inadmissible under the evidentiary aspect of the collateral source rule. [Citation.] Where the provider has, by prior agreement, accepted less than a billed amount as full payment, evidence of the full billed amount is not itself relevant on the issue of past medical expenses. We express no opinion as to its relevance or admissibility on other issues, such as noneconomic damages or future medical expenses. (Id. at p. 567, italics added.) Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, as modified (May 13, 2013) Following Howell, the Court of Appeal in Corenbaum emphasized the mechanics of applying the collateral source rule in these cases: any evidence of a collateral source payment is inadmissible for the purpose of determining the amount of damages. This precludes evidence that an insurer, or another source independent of the tortfeasor, paid for the plaintiff's medical care, but does not preclude evidence of the amount that a medical provider, pursuant to prior agreement, accepted as full payment. [Citation.] Evidence of the amount that a medical provider accepted as full payment, pursuant to prior agreement, is relevant to the amount of damages for past medical expenses and is admissible for that purpose.... (Corenbaum, supra, 215 Cal.App.4th at p. 1327, italics added.) Corenbaum considered the case of injured plaintiffs who were insured and whose medical providers accepted vastly reduced amounts in satisfaction of their bills. (Id. at p ) But Corenbaum went slightly further than Howell in its holding: Although Howell... did not directly so hold, we are persuaded by the carefully considered reasoning in Howell, and therefore do hold that evidence of the full amount billed for a plaintiff's medical care is not relevant to the determination of a plaintiff's damages for past medical expenses, and therefore is inadmissible for that purpose if the plaintiff's medical providers, by prior agreement, had contracted to accept a lesser amount as full payment for the services provided. In contrast, evidence of the amount accepted by medical providers as full payment does not violate the collateral source rule and is admissible provided that the source of the payment is not disclosed to the jury and the evidence satisfies the other rules of evidence. [Citation.] (Id. at p )

16 Corenbaum further rejected the argument that a plaintiff seeking damages for past medical expenses should be able to present evidence of not only the amount accepted as full payment for past medical services provided, but also the reasonable value of those services. [E]vidence that the reasonable value of such services exceeded the amount paid is irrelevant and inadmissible on the issue of the amount of damages for past medical services. [Citation.] (Corenbaum, supra, 215 Cal.App.4th at p. 1329, italics added.) Corenbaum also suggested in dicta that the full amount billed cannot provide the basis for an expert opinion of the reasonable cost of future medical expenses in a case where the insurer paid the negotiated rate. (Id. at pp ) Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, as modified on denial of rehearing (July 20, 2015) Bermudez considered the case of an injured plaintiff who had no medical insurance. It cited Corenbaum s holding that past medical expenses are limited to the lesser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the services. (Bermudez, supra, 237 Cal.App.4th at pp ) Further: The rule that medical expenses, to be recoverable, must be both incurred and reasonable [citations] applies equally to those with and without medical insurance. (Id. at p. 1329, citing Howell, supra, 52 Cal.4th at p. 559 & fn. 6.) But the measure of damages in cases where the plaintiff is insured differs from those in which plaintiff is not insured, according to Bermudez: In practical terms, the measure of damages in insured plaintiff cases will likely be the amount paid to settle the claim in full..... Conversely, the measure of damages for uninsured plaintiffs who have not paid their medical bills will usually turn on a wide-ranging inquiry into the reasonable value of medical services provided, because uninsured plaintiffs will typically incur standard, nondiscounted charges that will be challenged as unreasonable by defendants. (Bermudez, supra, 237 Cal.App.4th at pp ) The Bermudez court took note of Howell s endorsement of a general rule applicable to the recovery of tort damages: the value of property or services is ordinarily its exchange value, that is, its market value or the amount for which it could usually be exchanged. [Citations.] (Bermudez, supra, 237 Cal.App.4th at p ) But, Bermudez noted, Howell did not prescribe a particular method of determining the reasonable value of medical services. (Id. at p ) And Howell did not provide guidance for determining the reasonable values of medical services when an uninsured plaintiff has incurred but not paid medical bills. (Ibid.) The Court of Appeal in Bermudez further observed that the uninsured plaintiff is not necessarily in the same market as insured healthcare recipients or wealthy healthcare recipients who can pay cash. (Ibid.) As Howell remarks, the amount recovered by an uninsured plaintiff may be higher than that recovered by an insured plaintiff. (Id. at p ) Bermudez broadly surveyed cases both pre- and post-howell that had ruled on whether to exclude evidence of the full amount of injured plaintiffs medical bills. It thoroughly analyzed Corenbaum s holdings in light of these cases, and its findings are timely and enlightening: Several pre-howell cases held courts are not required to exclude evidence of the initial billed amounts of medical expenses, even when a lesser amount was subsequently accepted by the medical care providers as payment in full. (Olsen v. Reid (2008) 164 Cal.App.4th 200, 204; Greer v. Buzgheia (2006) 141 Cal.App.4th ; Nishihama, supra, 93 Cal.App.4th at pp. 309; but cf. Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 73 [court did not err by excluding medical bills when no other evidence was offered to prove they were reasonable in amount, or that the billed procedures were necessary and attributable to the accident].) (Bermudez, supra, 237 Cal.App.4th at p ) Nishihama and Hanif stand for the principle that it is error for the plaintiff to recover medical expenses in excess of the amount paid or incurred. Neither case, however, holds that evidence of the

17 reasonable cost of medical care may not be admitted. Indeed, Nishihama suggests just the opposite: Such evidence gives the jury a more complete picture of the extent of plaintiff's injuries. Thus, the trial court did not abuse its discretion in allowing evidence of the reasonable cost of plaintiff's care while reserving the propriety of a Hanif / Nishihama reduction until after the verdict. [Citation.] (Ibid.) Katiuzhinsky... a case in which the plaintiffs were uninsured held the trial court committed error by excluding evidence of medical charges. [Citation.] The trial court's ruling did not merely preclude plaintiffs from recovering special damages for medical expenses above the discounted rate paid by [the insurer], but kept the jurors from considering the medical bills as evidence of the reasonable value of the medical services. This ruling was erroneous... [ ] [R]egardless of whether defendants were entitled to a Nishihama-type reduction of the medical damage award, there was no basis in law to prevent the jurors from receiving evidence of the amounts billed, as they reflected on the nature and extent of plaintiffs' injuries and were therefore relevant to their assessment of an overall general damage award. (Id., italics added.) In sum, prior to Howell, so long as there was independent evidence that the underlying medical procedures were made necessary by the tort at issue, there was little question as to the admissibility on relevance grounds of the amount plaintiffs were charged for medical services. These cases implied that the amount initially billed is always relevant (Evid.Code, 210, 350) to either the question of the amount incurred by the plaintiff or to the reasonable value of the services provided, even if the measure of damages is limited by a lower amount actually paid. Relevant evidence is presumptively admissible. (Evid. Code, 351.) (Id. at p. 1332, italics added.) In Howell, the trial court denied a motion in limine to exclude evidence of unpaid medical bills, but granted a posttrial motion to reduce the medical damage award to the amount actually paid by plaintiff and her insurer. [Citation.] As discussed above, Howell's holding essentially approved of this reduction (though Howell suggested the proper procedure was to grant a new trial unless the plaintiff accepted a reduced judgment). The proper measure of damages was the amount paid pursuant to the reduced rate negotiated by the plaintiff's insurance company. (Id.) Despite the motion in limine at the trial court, the admissibility of evidence was not strictly at issue in Howell. Nevertheless, the court commented: It follows from our holding that when a medical care provider has, by agreement with the plaintiff's private health insurer, accepted as full payment for the plaintiff's care an amount less than the provider's full bill, evidence of that amount is relevant to prove the plaintiff's damages for past medical expenses and, assuming it satisfies other rules of evidence, is admissible at trial. Evidence that such payments were made in whole or in part by an insurer remains, however, generally inadmissible under the evidentiary aspects of the collateral source rule. [Citation.] Where the provider has, by prior agreement, accepted less than a billed amount as full payment, evidence of the full billed amount is not itself relevant on the issue of past medical expenses. We express no opinion as to its relevance or admissibility on other issues, such as noneconomic damages or future medical expenses. (The issue is not presented here because defendant, in this court, conceded it was proper for the jury to hear evidence of plaintiff's full medical bills.) [Citation.] (Id. at pp , italics added in Bermudez.) Seizing on the italicized language, a post-howell case disagreed with pre-howell cases regarding the admissibility of evidence of the amount charged for medical expenses. In Corenbaum, [citation], plaintiffs sued for injuries suffered in a motor vehicle accident. The trial took place before Howell. [Citation.] Defendant did not request the exclusion of evidence pertaining to the amount plaintiffs were billed for their medical care, but instead reserved the right to move posttrial to reduce medical damages to the amount actually paid. [Citation.] The trial court granted plaintiffs' motion to exclude evidence of the amount of medical charges actually paid by a collateral source. [Citation.] In accordance with the trial court's in limine rulings, the jury heard evidence of the full amounts billed for [plaintiffs'] past medical care and heard no evidence of the lesser amounts accepted by their medical providers as full payment pursuant to prior agreements with... private insurers. [Citation.] Defendant filed a postverdict motion to reduce the damages awarded by the difference between the full amounts billed for past medical expenses and the amounts actually accepted by plaintiffs' medical providers as full payment for the services provided. [Citation.] The trial court, though expressing