Worker’s compensation medical expense reductions conclusively join attorney discounts and reductions under Medicaid and certain finance arrangements outside the scope of collateral source recovery. Simmons v. Cornerstone Investments, LLC, 2018-0735 (La. 5/8/19). The amount actually paid under WC remains a collateral source. Howard v. National Union Fire Ins. Co., 2017-1221 (La.App. 1 Cir. 02/16/18), 243 So.3d 4.
The result is not a surprise, but the procedural means by which it was delivered causes some consternation. In Simmons, the Louisiana Supreme Court affirmed the 9th JDC judgment granting a defense motion in limine excluding billed medical expenses from evidence presented to the jury. A question raised by concurring Justice Hughes is whether the Court answered the wrong question. He agrees that the reduction amount is not recoverable, but would not use an evidentiary motion to achieve the result.
Proof of future medical expenses becomes more difficult if the jury considers only reduced past medical expenses. Craft v. Ports America Gulfport, Inc., 2018-0814 (La.App. 4 Cir. 05/08/19), discussed in the 5/8/19 CQ Newsflash, is a recent example of why that may be true. In Craft, the Fourth Circuit reversed a trial court JNOV and reinstated a $1,000,000 future medical expense jury award. Explaining why, the Craft panel quoted Gaunt v. Progressive Security Insurance Company, 2011-1094, p. 34 (La.App. 4 Cir. 6/8/12), 92 So.3d 1250, 1272:
Future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred. Although a plaintiff is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record. If a fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then an award is proper. (Emphasis added.)
So, if past medicals presented to a jury at trial were reduced, but future medicals will not be covered by WC, then the plaintiff’s burden is marginally increased. Simmons prohibits jury consideration of the full billed amount. Justice Hughes’ concurrence addresses this point:
I agree that the plaintiff may only recover the amount authorized by law for his past medical expenses, not the amount billed by the medical providers. However, this does not make the plaintiff "whole." This is not a workers' compensation case. The plaintiff is entitled to seek damages against the tortfeasor for, not only past medical expenses, but also for future medical expenses, pain and suffering, mental anguish, and other general damages allowed by law. To do so, the plaintiff is entitled to present to the jury evidence of the duration of his medical treatment, including each doctor visit, drugs prescribed, physical therapy ordered, or any other medical treatment endured. This evidence may best be presented through an itemized statement from the medical provider, with the dollar amounts for the charges and/or payments redacted. Thus the plaintiff may pursue his claim "to be made whole" without prejudice.
Posted: May 13, 2019
An insight on spine soft-tissue quantum holds that differences between general damages for sprain/strain injury at just one level - cervical soft-tissue, for example - and sprain/strain injuries in two or three - cervical plus thoracic and/or lumbar - are small. The theory stands up well under casual observation. Here we’ll attempt a (very basic) quantitative analysis.
The plots below illustrate soft-tissue trial court judgments posted at CompQuantum. They are not intended for quantum evaluation of any particular case. Their utility lies in comparing the sets of single level, two level and three level spine soft-tissue awards.
A precise test of the theory would require measurements on several axes. Variation between plaintiffs, judges, courts, medical evidence and other metrics would have to be considered. Even without that level of detail, raw data comparing basic inputs (alleged injuries) and outputs (damage awards) is useful. These plots depict that data. The first is a plot of general damages and the second is a plot of total damages for one, two and three level soft-tissue complaints. Darker shading reflects overlapping results.
The values are taken from 238 trial court judgments in the CompQuantum database. Appellate results are not considered. Also, judgments awarding no damages are excluded. Included are 97 awards for three level complaints, 87 awards for two level complaints and 54 awards for single level complaints. Only damage awards for spine soft-tissue (and no additional primary injuries) are included. While it is not a complete collection of all soft-tissue bench trials throughout the state, this is a representative sample covering many of the trials over the last couple of years in the major venues.
A couple of things are readily apparent. First, most judgments award damages substantially less than the bench trial stipulated $50,000 maximum. General damages are usually $20,000 or less and total damages are usually less than $30,000. Second, average damages do not vary much between one, two and three level complaints. The deeper analysis briefly described above would help explain the increase between one and two levels (i.e. random variation versus categorical difference). It is interesting that for both datasets the three level average is lower than the two level average. I have some thoughts on why that might be. At a minimum, it suggests that differences are not entirely related to the number of levels of reported and/or diagnosed injury. I may investigate some of these issues further in a future post.
If the entire difference between one and two level general damage awards is a function of the number of reported and treated areas of complaint (as noted, a suspect proposition), the multiplier is approximately 1.3. The increase from the average single level general damage award to the average two level general damage award is approximately $3,400 (a 30% increase from the one level average). This multiplier is relatively modest and essentially consistent with my theory, especially given doubts about causation.
Posted: May 9, 2019
Below is a plot of recent general damage awards for "single primary injury" cervical and lumbar surgery trials. At CompQuantum, single primary injury damages are defined as those awards associated overwhelmingly with a single injury, which excludes minor injuries that likely did not materially affect the result. So, for example, none of the damages below were awarded to a plaintiff whose treatment included both cervical and lumbar surgery. Links to the cases follow.
Only one trial judgment reported at CompQuantum that satisfies the criteria was excluded. In Greene v. Lovisa, 24th JDC 726,691 (3/24/16), a Jefferson Parish jury awarded $1,000,000 for a two level cervical fusion with multiple surgeries. The Fifth Circuit vacated the award on finding that the trial court improperly granted plaintiff's motion for directed verdict on fault. See Greene v. Lovisa, 16-660 c/w 16-661 (La.App. 5 Cir. 05/17/17), 221 So.3d 270. Arguably, the trial judgment could be included because the Fifth Circuit decision was not based on a quantum assessment. However, it was such an outlier - the "cervical mean" jumps to $308,692 with Greene included - that the 5th Circuit reversal justified leaving it out.
Cases ordered according to general damage quantum from high to low:
- Despaux v. RSC Equipment Rental, Inc., 58-141 (25th JDC 11/04/16) (appeal: Despaux v. RSC Equipment Rental Inc., 2017-0765 (La.App. 4 Cir. 04/25/18), 246 So.3d 806);
- Raymond v. Depositors Ins. Co., 745-747 (24th JDC 10/11/16) (appeal:Raymond v. Depositors Ins. Co., 17-132 (La.App. 5 Cir. 09/08/17), 227 So.3d 871);
- Walsh v. Caskey, 126,453 c/w 126,518 (16th JDC 05/21/18);
- May v. Regional Transit Authority, 2016-08271 (Civil District Court 01/31/19) (Suspensive appeal pending);
- Ni v. Ace American Ins. Co., 2013-08478 (Civil District Court 06/21/16) (Post-trial settlement while suspensive appeal was pending);
- McAdams v. Mack, 644,205 (19th JDC 05/11/18) (Defense motion for new trial denied 3/1/19);
- Baldassaro v. Travelers Prop. Cas. Co. of America, 727,793 (24th JDC 07/18/18) (Satisfaction of judgment filed 7/26/18);
- Simpson v. UV Insurance Risk Retention Group, Inc., 628-15 (31st JDC 02/14/19);
- Schultz v. Cincinnati Indemn. Co., 2015-11743 (Civil District Court 05/08/18) (Satisfaction of judgment filed 8/30/18);
- Keys v. The State of Louisiana, 635,511 (19th JDC 02/05/19) (Settled on appeal - 3/26/19);
- Taylor v. The City of Alexandria, 257,983 (9th JDC 09/25/18) (Suspensive appeal lodged 1/14/19);
- Wilson v. Barnes, 631,391 (19th JDC 10/04/16) (UM settlement after jury selection);
- Giavotella v. The Travelers Indemnity Co., 1042796 (18th JDC 03/28/18);
- Corbin v. USAA Cas. Ins. Co., 640,367 (19th JDC 01/12/18);
- Robinson v. Bellsouth Telecommunications, LLC, 2013-3844 (15th JDC 02/08/16) (Satisfaction of judgment filed 7/25/16);
- Richard v. Gisler, 621,506 (19th JDC 03/28/16) (Affirmed by 1st Circuit 8/16/17);
- John v. Simon, 2012-4796 (15th JDC 12/20/17);
- Ferguson v. Gardenia, 751-952 (24th JDC 01/24/17) (Satisfaction of judgment filed 3/6/17);
- Hiller v. Harrington, 595,458 (1st JDC 04/16/18) (Satisfaction of judgment filed 9/11/18);
- Howard v. Norton, 622,507 (19th JDC 12/18/18) (Plaintiff appeal pending);
- Thibodeaux v. State Farm Mut. Auto. Ins. Co., 2015-0109 (14th JDC 01/04/18);
- Henning v. Held, 2016-13770 (22nd JDC 04/24/18);
- Warren v. Laurent, 646,801 (19th JDC 08/14/18) (Plaintiff JNOV denied 11/13/18; Satisfaction of judgment filed 1/7/19).
Posted: May 2, 2019
This federal directive comes from the Department of Labor, as reported at Law.Com (reposted by Yahoo! News HERE).
Posted: April 11, 2019
Last week, we covered Judge Morgan's Daubert order limiting testimony supporting future annual ablation treatments. Add May to the examples of recent trials in which the physician's recommendation was consistent with the limitations imposed by Judge Morgan. Dr. Eric Lonseth testified that plaintiff "would undergo a fluoroscopic rhizotomy procedure every year over the next 5-7 years to address her ongoing back pain." See page 3 of Judge Cate's Reasons For Judgment.
The low back pain was plaintiff's primary injury. An MRI revealed disc pathology, including L5-S1 herniation. Treating and defense physician testimony differed on some aspects of causation. Dr. Rand Voorhies testified that plaintiff was a candidate for fusion at L3-4 (presumably to address facet hypertrophy at that level), but plaintiff was unequivocal that she would not submit to the procedure. Prior to trial, Dr. Lonseth performed "several bilateral lumbar fluorscopic rhizotomy procedures." Cervical soft-tissue pain resolved "within a few months of the accident." Judge Cates awarded $560,000 general damages, $106,733 past medical expenses and $298,575 future specials.
After the Louisiana Supreme Court Hoffman v. 21st Century N. Am. Ins. Co. decision, holding that attorney medical discounts are not a collateral source, the question of third-party medical funding became a focus of it's effect. Taking an "Erie guess," EDLA Judge Zainey recently held that the balance between billed medical charges and the amount actually paid to the provider by a third-party was not recoverable from the defendant as a collateral source. The provider was paid 40% of billed medical expenses. The plaintiff was not a party to the finance contract and was not personally liable for the balance:
Significantly, Plaintiffs themselves were not parties to any of these agreements, and while they would have presumably agreed vis à vis their attorney that the Difference must come out of their recovery as a cost of the litigation, no suggestion has been made that Plaintiffs themselves agreed to be responsible to anyone for any medical bills or for the Difference should their recovery at trial fall short.
In this case, Plaintiffs cannot establish that they paid any benefit or suffered any diminution in their patrimony in order to obtain the discounted medical payments. The discounts were obtained via a series of contractual agreements that apparently triggered no obligations on Plaintiffs' part. Again, the Court assumes that Plaintiffs have agreed vis à vis their attorney that the Difference must come out of their recovery as a cost of the litigation, but in Hoffman the Supreme Court rejected the argument that this contractual obligation constitutes the type of payment or diminution in patrimony necessary to recover undiscounted medical expenses that were never incurred. Hoffman, 209 So. 3d at 707. The collateral source rule does not apply to the Difference so as to allow Plaintiffs to recover it as an element of special damages.
Williams at 5-7.
In 2009, Judge Barbier, applying federal law under the Jones Act, reached a different conclusion under circumstances where the "plaintiff engaged" the funding provider. Kelly v. Bayou Fleet, Inc., 2:05-cv-06871 (USDC-EDLA 06/09/09).
The distinction does not necessarily define categorically different results. The two cases were not decided under the same substantive law. Nevertheless, Judge Zainey comments in a footnote that plaintiff's personal obligation under the contract in Kelly is "critical."
- CDC Judge Julien on Dr. Charles Bain: "While Dr. Bain has a medical degree specializing in family emergency medicine, a certificate in accident reconstruction, and a nuclear engineering degree, he has no training in biomechanics and his education does not demonstrate a special knowledge in the mechanism of injury." Written Reasons - Excluding biomechanics testimony - CDC # 2015-11478.
- CDC Judge Griffin on Louis M. Fey, Jr.: In Harris v. U.S. Xpress, Inc., CDC # 2016-12685, defendants wanted to present expert testimony of Louis Fey in support of a contention that the subject accident was staged. Judge Griffin ruled that, absent evidence triggering an exception, Mr. Fey could not testify as an expert in "claim handling" specific to any accident other than the one at issue in Harris. Transcript posted at Louis Fey expert witness page.
Posted: March 8, 2019
What effect Judge Morgan's decision to limit future ablation treatment testimony may have is open to question. Her defense Daubert ruling in a case subsequently settled would not materially impact treatment recommendation evidence at other recent trials.fn Nevertheless, when ablations for life remains a recommendation of physicians, her memorandum opinion will be must reading for future briefs on the issue.
Presented with proposed testimony of Drs. Schlosser and DeFrancesch recommending 30 years of annual ablations, Judge Morgan documents the medical literature offered in support and opposition to the defendant's Daubert motion.
fn See, for example, Vinet v. Wal-Mart Stores, Inc., 763,474 (24th JDC 02/14/19), recommendation for 7 years of future ablation treatments; McAdams v. Mack, 644,205 (19th JDC 05/11/18), future abalations "for as long as the treatment provides adequate pain relief. Contra Cooley v. Adgate, 52,000 (La.App. 2 Cir. 05/30/18), amending trial court judgment to include cost of ablations for life. Judge Morgan distinguishes Cooley, emphasizing the Second Circuit's focus on the need for future medical care as opposed to the question of medical efficacy.
Affirming one of the more interesting 2018 general damage awards (Koertge v. State Farm Fire & Cas. Ins. Co., 148,797 (26th JDC 05/04/18)), the Second Circuit amended to add $10,000 future medical care and $4,500 future psychological counseling. Plaintiff was 14 years old when she suffered severe scalp chemical burns. Multiple surgeries preceded trial. The treating plastic surgeon testified that two future hair follicle transplants would probably be necessary. The trial court awarded special damages for the cost of only one. The trial court also denied recovery of future psychological counseling expenses. The $250,000 general damage award was affirmed over plaintiff's quantum appeal.
The Second Circuit reversed a defense judgment sustaining an exception of no cause of action. Plaintiff sued the Minden PD for its actions in connection with reported sexual abuse of her daughter. A mandatory hospital referral to the police and ensuing investigation culminated with a decision by the medical staff to forego "rape kit testing." The daughter allegedly attempted suicide, partially in reaction to the loss of chance that the perpetrator could be held accountable.
The panel's discussion of duty-risk and "Child in Need of Care" (La. Ch. C. art. 601, et seq.) legislation is informative.
CompQuantum Trial Reports on Appeal
- Thomas v. Cage, 2018-1144 (La.App. 1 Cir. 02/25/19), Unpublished, affirming 50% fault assessed to pedestrian injured by motorist and assessment of $2,000 general damages;
- Bernal v. Crescent Foundations, LLC, 18-495 (La.App. 5 Cir. 02/27/19), affirming special and general damages resulting from "fraudulent criminal charges filed by the defendants"; and
- Antippas v. NOLA Hotel Group, 2017-0798 (La.App. 4 Cir. 02/27/19), affirming 30% plaintiff fault and general damage award to cyclist injured in accident with notor vehicle in the French Quarter.
Posted: Feb. 28, 2019
Defense results often don't make the cut for reporting here. Plenty are reported at CompQuantum, but to include in an email, there must be an issue of compelling interest. And today we have one, but not without the company of two significant plaintiff judgments.
Plaintiff worked as a Merchant Mariner from 1966 until 2002. Asbestos exposure and development of mesothelioma led to multiple legal actions in California and this suit in the Eastern District of Louisiana.
Pretrial motions considered by Judge Sarah Vance included defense Daubert motions to exclude testimony on medical causation. Finding that neither Dr. Robert Harrison, an occupational health and environmental medicine expert, nor Dr. David Tarin, an expert pathologist, knew enough about the plaintiff's exposure to provide "specific causation" testimony, the evidence was excluded. Lacking support for a causal relation between plaintiff's alleged six-week exposure on the vessel AVOCET and his cancer, the court further granted summary judgment for the defense.
Judge Vance's detailed discussion will be of interest to anyone dealing with difficult medical causation issues. It is not an asbestos specific opinion. The depositions of Drs. Harrison and Tarin are also posted at CompQuantum.
For the second consecutive Newsflash, Darrell Papillion features as prevailing counsel. A Western District, Lafayette Division jury awarded $2,000,000 wrongful death damages to the wife of a worker killed by a natural gas pipeline valve failure. Each of three surviving children was awarded $100,000.
The defense argued that plaintiffs' claims were subject to workers compensation exclusive remedy. A jury finding of a "significant causal link" between the death and defendant's offshore operations allowed tort recovery under the Outer Continental Shelf Lands Act.
Following a five day bench trial, Judge Milazzo issued her findings and signed a judgment awarding $3,308,094.55 total damages under the Longshore and Harbor Workers Compensation Act. The court found that the injured worker was not a Jones Act seaman. The owner was not entitled to limitation of liability on finding knowledge of the captain's "unsafe custom of allowing equipment to be offloaded from the M/V TROOPER without first tying up the vessel."
General damages for cervical, head and minor brain injuries totaled $975,000. Plaintiff's treatment included 28 staples to close a scalp laceration and two-level cervical fusion. Inner ear and TBI issues were relatively minor, but persistent and were sigificnat contributing factors to the damage evaluation.
I will be unveiling a host of never before seen trial court stats and covering recent trial quantum at the Baton Rouge Bar Association Bench Bar Conference in April. Come for the enlightenment. Stay for the comfort of Point Clear's beautiful Grand Hotel.
Posted: Feb. 8, 2019
Simpson v. UV Insurance Risk Retention Group, Inc.
628-15 (31st JDC 02/14/19)
On overcoming long odds
Joshua Simpson testified that the second to last truck of an oversize load convoy veered to the left, striking his box truck. The driver of the trailing vehicle testified that Simpson caused the minor accident, then attempted to flee.
The contrast prioritized credibility for jury deliberations. Simpson's claim hinged on gaining the jury's trust. Evidence of drug seeking behaviors, low impact accident and a relevant prior injury claim history made Blake David's task on Simpson's behalf more difficult. But not impossible.
Defying conventional wisdom on serveral levels, a Jefferson Davis Parish jury's plaintiff verdict assessed general damages of $490,000 for a neck injury treated with two level fusion. Special damages totalled $809,433.
Vinet v. Wal-Mart Stores, Inc.
763,474 (24th JDC 02/14/19)
A case of careless customer service
On evidence that "service area" employees violated internal safety regulations, a Jefferson Parish jury assigned 75% fault to the defendants for backing a car into their customer. General damages for rotator cuff and knee meniscus tears and a lumbar injury treated with ablations totalled $360,000. The judgment also included special damages of $172,746.
Posted: Feb. 22, 2019
Homeowner's insurance and the business pursuits exclusion
Buiness pursuit liability coverage exclusions: 2 from the 3rd Circuit
Parker v. American Western Home Ins. Co., 18-392 (La.App. 3 Cir. 12/28/18)
Latour v. Allstate Ins. Co., 18-395 (La.App. 3 Cir. 12/28/18)
The Third Circuit released two opinons on December 28, 2018 guiding litigants through the narrows of buisness pursuits exclusions to homeowner's insurance liability coverage.
The scrutinized activities included a day care operation and rental of an insured property. In Latour, a three judge panel reversed the trial court and granted summary judgment for Allstate Insurance Company on finding that the policyholder breached a duty to properly supervise a child under her paid care. Judge Sylvia Cooks dissented. A five judge panel in Parker held that "there are genuine issues of material fact as to whether the property at issue was being leased on an occasional basis," potentially triggering an exception to the exclusion (emphasis added). Judge Cooks authored the Parker opinion.
The majority in Latour looked to "the alleged actions or omissions of the insured upon which liability is asserted and whether those actions further the operation of the daycare." The Parker, opinion quotes The Law of Liability Ins., Rowland Long, Matthew Bender & Co., Inc., § 9.06:
Many courts that have examined the definition of business and the business pursuits exclusion agree that a business pursuit must involve two elements: continuity of the activity, and monetary gain, or at least the hope or expectation of monetary gain.
See Parker at p. 8.
These opinions work remarkably well together to define understandable parameters for analysis of a buisness pursuits exclusion defense.
Posted: Jan. 4, 2019
Judge Piper Griffin recently ruled in favor of LIGA, allowing a credit for medical expenses incurred by a Medicaid eligible plaintiff even though she had not and could not submit the bills for payment under the program. See, Anderson v. Gutierez-Cruz, 2015-00611 (Civil District Court 10/24/18).
At issue were $5,408.12 of billed medical expenses related to treatment for injuries incurred in a March 1, 2014 motor vehicle accident. The deadline for submitting the bills to Medicaid for payment was November 12, 2015.
Plaintiff filed suit against an insured of Affirmative Casualty Insurance Company. Rather than going through Medicaid, she sought recovery of medical expenses through liability insurance. When Affirmative was declared insolvent on March 24, 2016, the Medicaid deadline was expired.
LIGA claimed a credit for medical expenses under Louisiana Revised Statute 22:2062. Plaintiff opposed the credit, arguing that before LIGA's obligation ever existed, her right to the alternative benefits was extinguished.
Judge Griffin recognized the "unfortunate" consequences, but concluded that the statutory "expression of legislative will" superseded "plaintiffs' equity argument."
Posted: Nov. 27, 2018