Free Motion in Limine - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' MOTION FOR COURT INTERVENTION ON ENFORCING STIPULATION FOR PRESENTATION OF MEDICAL BILLS TO JURY

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CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ___________________________________ _

Plaintiff's Motion in Limine number 10 addressed the issue of violation of Arizona's collateral source rule as relates to Defendant's proposed cross-examination of Plaintiff's medical services' providers (and/or custodians of record) about how much money actually was accepted as payment for any given medical bill. During the -1Document 234

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Final Pre-trial Conference, the Court questioned defense counsel about how such questioning might occur. Defense counsel claimed that the questioning would inquire about what the total charge was, and what was ultimately accepted as payment, and thereby this testimony would establish a dollar figure that represented what was actually paid for the medical services. Defense Counsel promised that this could be accomplished without referencing the fact that insurance paid the final, negotiated payment. (Exhibit 1, Transcript of hearing, 26:21 ­ 27:13) Also, during the Final Pre-trial Conference, Plaintiff's counsel notified the Court of Plaintiff's probable intention to agree with what we understood the Defendant's position to be, that Mrs. August actually paid $19,000.00 for the medical services she

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received. It was expected that such an agreement would obviate the need to call medical providers and custodians of records for admission of the records and bills (Exhibit 1, Transcript, 30:9-22). On December 17, 2006, Plaintiff's counsel emailed Defense counsel the following:

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Also, I'll talk with my client as quickly as possible, so that I can get you a decision whether she'll agree to the appx. $19,000.00 in total paid medical bills. On this issue, if she does agree to the lower figure, and thus obviates the need to bring in med docs/custodians of records, I forsee the questions as follows to Mrs. August along the lines of how Judge Silver identified would be an acceptable phrasing of what Mrs. August paid. (dollar figures are by way of example): Q: How much were you charged for Dr. Seligson's services? A: The total charges were $3,000.00. Q: How much were you able to pay in satisfaction of Dr. S's services?
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A:

$1,500.00

If she agrees, I also would anticipate to stipulate to her medical summary, which is one of our exhibits. (Exhibit 2, copy of email dated December 17, 2006 between undersigned counsel and Kathleen Wieneke) Defense Counsel responded: In light of the court's ruling, I would agree to a stipulation along the lines that, without waiving your right to appeal the court's ruling on the issue, the parties agree that reasonable and necessary medical bills incurred were $____. This would then eliminate the need for all custodians of records. We have already stipulated to her medical records anyway. (Exhibit 2) On January 3, 2007, Plaintiff's counsel advised Defense counsel that Plaintiff would agree to stipulate that she paid $19,000.00 for the medical services, and asked for a confirmation so that Plaintiff would not have to call the custodians of records as Plaintiff would agree also to stipulate to the medical records and bills:

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I've confirmed with my client that she will agree to the stip that she paid $19k for the medical services, and so I will not call the custodians of records as I understand that we will stipulate to the medical records and bills. Please confirm. (Exhibit 3, January 3, 2007 email; emphasis added) Defense counsel responded on January 3, 2007 stating: I can prepare a stipulation that we are agreeing to the medical bills of $19,000 without waiver of Plaintiff's right to waive the court's ruling on the Motion in limine on appeal. In addition, we will stipulate to the admission of the medical records as listed in the Joint Pretrial Order. As for the bills themselves, I suggest you prepare a summary of the bills itemizing the total for each provider, or, alternatively, we can simply submit a statement that the parties have stipulated that Plaintiff's medical bills incurred total $19,000. (Exhibit 4, January 3, 2007 email from Defense counsel to Plaintiff's counsel).
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The next day, at 9:18 a.m., Plaintiff's counsel emailed Defense counsel: Please send the stip. Attached is what we'll use for the medical bills summary (modified version of Plaintiff's Exhibit #26. I removed the Target receipt of $12.99 for wrist weights, which she paid for our of pocket). (Exhibit 5, copy of undersigned counsel's January 4, 2007 email to Kathleen Wieneke; Exhibit 6, copy of medical bills summary) Although undersigned counsel sent the medical bills summary to Defense counsel at 9:18 a.m. on Thursday, January 4, 2007, Defense counsel waited until after noon on January 6, 2007 to now inform Plaintiff that Defendant would not agree

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to a medical bill summary that references the actual total charges incurred before the negotiated sum was established as the amount actually paid. Defendant now, after waiting two work days (days that Plaintiff could have utilized to coordinate with medical services providers), insists that the stipulation should only be to medical "expenses of $19,000.00." Predictably, Defendant takes the position that if Plaintiffs

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do not agree to this, we will, "have to call not just a custodian of record, but someone who is familiar with the billing practices for each provider" to be cross-examined, to establish that they accepted less than the full amount of billed charges as payment in full. (Exhibit 7, January 6, 2007 email at 12:29 p.m. from Kathleen Wieneke) On Sunday, January 7, Plaintiff's counsel emailed Defense counsel explaining

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Plaintiff's position regarding Defendants playing fast and loose with terms like "billed," "incurred," and "paid." (Exhibit 8, January 7, 2006 email from undersigned counsel to

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Kathleen Wieneke) Further, Plaintiff pointed out the timing of Defendants' just now taking these positions and denying Plaintiff the ability to show what the actual medical bills were (before the reduction), which was precisely what Defense counsel led the Court to believe was the relevant inquiry in establishing what was actually "paid." Instead of referring to the $19,000.00 as what was "paid," Defendant now wants to refer to the $19,000.00 as "expenses" that simply were "incurred." This prejudicially invites a jury to speculate that the $19,000.00 is a ceiling, leaving them to speculate that Mrs. August had insurance and the amount that truly was "paid" was far less than the $19,000.00. At this point, Plaintiff is severely prejudiced regarding her ability to present the fact that $19,000.00 is what was paid, not just what was "incurred." Plaintiff asks the Court to enforce the spirit of the Defense's representation to the Court that the presentation of evidence to the jury is to include what was charged and what was paid. At a minimum, any stipulation should state the fact that $19,000.00 is what was paid, that it is not just an expense or an incurred expense.

DATED this 7th day of January, 2007.

TREON & SHOOK, P.L.L.C.

By:

s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on January 7, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Laura L. Quesada

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