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$560K rhizotomy, medical funding MIL and 2 Daubert decisions

May v. Regional Transit Authority
2016-08271 (Civil District Court 01/31/19)

        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.

Williams v. IQS Insurance Risk Retention
2:18-cv-02472 (USDC-EDLA 02/25/19)

        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."

More Daubert

  • 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