Hold em or Fold em: Gambling with the Introduction of Medical Bills Presented by Heather G. Connor and Kevin D. Elliott Emerging Trend Growing trend among the Plaintiff s bar to refrain from offering medical bills as evidence of damages Tactic appears in several forms: Plaintiff s counsel simply avoids introduction or testimony regarding medical bills Plaintiff s counsel move to prohibit the introduction of medical bills by opposing party Plaintiff s counsel proceeds under a theory of general damages Impetus for Trend Major catalyst for this growing trend are: North Carolina Rule of Evidence 414 Increasing popularity of Reptile Theory 1
Rule 414 North Carolina Rule of Evidence 414 provides: Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. This rule does not impose upon any party an affirmative duty to seek a reduction in billed charges to which the party is not contractually entitled. Rule 414 Tactic has developed as a way for the Plaintiff s bar to push back against Rule 414 Plaintiff s bar has argued that Rule 414 is unconstitutional and arbitrarily limits the compensatory damages available to Plaintiff Used as a way to circumvent Rule 414 in order to increase potential verdict by avoiding actual amounts necessary to satisfy medical bills Theory developed by David Ball and Don Keenan as a tool for plaintiff attorneys to maximize impacts with the jury Based on the work of neuroscientist Paul MacLean Developed in response to a national push for tort reform The Reptile Theory 2
Reptile Theory Basics Tool developed by the Plaintiff s bar to lessen the effect of tort reform on juries Based on the work of neuroscientist Paul MacLean Three discrete parts of the brain Violation of safety rules triggers Reptile brain Reptile Theory Basics Hallmark of the Reptile Theory is to focus on the Defendant and the conduct of the Defendant Avoids making Plaintiff the focus of the case Plays on basic human psychology Maslow s hierarchy People want to feel safe Birth of a New Strategy In the wake of the passing of Rule 414 and the increasing use of the Reptile Theory, Plaintiff s attorneys have begun avoiding or excluding the introduction of medical bills Strategy fits in line with the Reptile Theory as it follows the theme of making the trial about the Defendant rather than the Plaintiff Plays on the jurors sense of responsibility and need to protect the community rather than compensate for losses 3
How is the Strategy Used? Plaintiff s attorneys are beginning to proceed at trial under a theory of general damages instead of presenting evidence of special damages Plaintiff s attorneys often seek to amend their Complaint in order to strike any reference to specific damages or take VD as to bills Seek damages for general harm to Plaintiff Think Reptile Theory Motions in Limine Pre-Trial motions in limine to exclude any evidence of special damages Proceeding under a general damages theory, medical bills are irrelevant under N.C. Rule of Evidence 402 Introduction of medical bills barred under N.C. Rule of Evidence 403 because of the danger of confusion Motion in Limine - Example 4
Combatting the Strategy Seek information in the discovery stage related to medical bills Tailor discovery requests to elicit specific information on claimed damages including medical bills Request verified responses Seek continued supplementation of discovery responses to ensure that interrogatories are fully answered Combatting the Strategy Elicit damages information from Plaintiff at deposition Focus on bodily injury claim Get Plaintiff to admit specific injuries on record What are your specific injuries? Were you treated for those injuries? How were you treated for those injuries? Were you or your insurance provider billed for that treatment? Would you agree with me that those bills demonstrate the cost associated with treating those injuries? Combatting the Strategy Preemptive Motions in Limine to allow the introduction or use of medical bills Scope of cross-examination Pattern jury instructions Consider language in jury instruction - 106.62 Evidence of [estimates of the cost to repair] (and) [the actual cost of repairing] the damage to the plaintiff's property may be considered by you in determining the difference in fair market value immediately before and immediately after the damage occurred.) 5
Scope of Cross-Examination N.C. Rule of Evidence 611 provides that a witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Cross-examination is not confined to the subject matter of direct testimony and impeachment Therefore, proper grounds exist so as to warrant the use of medical bills on the issue of damages Pattern Jury Instruction N.C.P.I. 106.00 Plaintiff has the burden to prove actual damages if she wishes to recover more than nominal damages N.C.P.I. 106.02 Actual damages are the fair compensation to be awarded to a person for any injury proximately caused by the negligence of another. In determining the amount, if any, you will consider the evidence you have heard as to medical expenses, etc. Motions in Limine Plaintiff carries the burden of proving damages if she wishes to recover damages NC Pattern Jury Instructions make clear that a relevant consideration of the amount of damages is medical expenses Medical bills are evidence of medical expenses incurred Therefore, use of medical bills on the issue of damages is relevant and should be allowed 6
Motion in Limine - Example The Gamble When deciding whether you should try to introduce medical bills in a case where Plaintiff s counsel has refrained from introducing medical bills there is one major potential implication waiving last closing The Gamble You must be aware and consider the real possibility of waiving last closing should you chose to use medical bills Motion in Limine example: 7
The Gamble Introducing Evidence "As a general proposition, any testimony elicited during cross-examination is 'considered as coming from the party calling the witness, even though its only relevance is its tendency to support the crossexaminer's case.'" State v. Shuler, 135 N.C. App. 449, 452, 520 S.E.2d 585, 588 (1999). On cross-examination, evidence may be "introduced" when the cross-examiner offers it into evidence. Id. at 453, 520 S.E.2d at 588. Additionally, evidence is introduced "when new matter is presented to the jury during cross-examination and that matter is not relevant to any issue in the case." Id. The Gamble Introducing Evidence New matters raised during the cross-examination, which are relevant, do not constitute the introduction of evidence within the meaning of Rule 10. To hold otherwise, would place upon a defendant the intolerable burden of electing to either refrain from the exercise of his constitutional right to cross-examine and thereby suffer adverse testimony to stand in the record unchallenged and un-impeached or forfeit the valuable procedural right to closing argument. State v. Shuler, 135 N.C. App. 449, 453, 520 S.E.2d 585, 588-589. We believe the proper test as to whether an object has been put in evidence is whether a party has offered it as substantive evidence or so that the jury may examine it and determine whether it illustrates, corroborates, or impeaches the testimony of the witness. State v. Macon, 346 N.C. 109, 113, 484 S.E.2d 538, 540 (1997). The Gamble Practical Considerations In evaluating a case where you are faced with a decision to introduce or use medical bills you must consider: Can I convince court to let me introduce bills? Is case stronger without the evidence of medical bills? Am I willing to potentially waive last closing should I chose to use medical bills? Have I armed myself with the strongest arguments to preserve last closing while also being permitted to use medical bills? 8
Recent case to consider Haarhuis v. Cheek COA 9/19/17 Wrongful death compensatory & punitives Stipulated to fault Bifurcated trial defendant impaired Jury awarded $4.25 million in compensatory and $45,000 in punitives Deterrence Argument Plaintiff s counsel argued in closing that purpose of civil justice system was to make people pay full and fair compensation and not one penny more in order to enforce safety rules. He went on to say If you require less than full and fair compensation not only are you failing to compensate for the harm that s been suffered but you re not creating a deterrent of making people pay for the harm they cause, and not one penny more. Defendant objected to statements but COA held that a general deterrence argument is appropriate so long as it does not refer to any of the aggravating factors set forth in NCGS 1D-15(a) or urge the trier of fact to punish the defendant. COA held statements were proper characterization of purpose of compensatory damages. 9
Deterrence argument COA held counsel just recounted purpose of tort law and requested the jury make defendant pay for the harm she caused, and not one penny more. COA noted a purpose of compensatory damages is to deter negligent behavior. 10