Author: Catherine S. Giering

Simmons: No Bright-Line Rule as to Future Medical Specials?

The difference between the amount charged and the amount paid for medical treatment can be substantial.  Knowing the dollar amount of the medical specials that a plaintiff will be allowed to seek at trial is often critical in case evaluation and resolution.  In this context, the Louisiana Supreme Court provided a “bright-line” rule in Bozeman v. State, 03-1016 (La. 7/2/04), 879 So. 2d 692, that a plaintiff can only seek the amount actually paid for medical treatment, when it is funded by Medicaid. Our state’s highest court then added, in Simmons v. Cornerstone Investments, LLC, 18-0735 (La. 5/8/19), 282 So.3d 199, that only the amount actually paid for medical specials may be sought, when it is funded by workers’ compensation insurance. The “written off” amount is considered a “phantom charge” that the plaintiff will never pay.  Some questions remain as to how courts will apply the holding and analysis of Simmons.

The rationale behind Simmons is that any discount in the amount of medical expenses given to the workers’ compensation carrier does not constitute a “collateral source” because the plaintiff did not give anything in exchange for the discount.  Roughly six months after Simmons, the Louisiana First Circuit Court of Appeal reversed the trial court’s denial of the defendants’ motion in limine seeking to exclude evidence of the plaintiff’s total past medical expenses.  Love v. Nelson, 2020-1050 (La.App. 1 Cir. 1/13/21), 2021 WL 118936, *1.  Relying solely upon Simmons, the appellate court stated, “[T]he amount of medical expenses charged above the amount actually incurred is not a collateral source … .  Accordingly, we find the trial court abused its discretion, and the motion in limine is granted and evidence of medical expenses not actually owed and paid by or on behalf of plaintiff … is excluded from evidence at the trial.”  Id

Federal courts, relying upon Simmons, have held that the collateral source rule does not apply to third-party-funded past medical expenses.  See Collins v. Benton, Civ. A. No. 18-7465, 2021 WL 638116, *5, 8 (E.D. La. Feb. 17, 2021).  However, see Lee v. United Rentals, Inc., Civ. A. No. 18-977, 2021 WL 2184763, *3 (M.D. La. May 28, 2021), where the court granted the defendant’s motion in limine to exclude evidence of the plaintiff’s past medical expenses not paid by workers’ compensation.  Only the amounts paid by the employer/workers’ compensation carrier would be presented to the jury in support of the plaintiff’s past medical expenses.  The court then added:

“However, there are two matters left in contention: first, may the Plaintiff offer evidence of the amounts charged by Plaintiff’s providers in connection with his back injury which [the employer] refused to pay?  Second, may Plaintiff present evidence of the market rate for Plaintiff’s future medical needs or is he relegated to the amounts set out in the Workers’ Compensation Fee Schedule?  As to both items, Simmons is not controlling.”

In other words, the federal court in Lee found that Simmons applied only to past medical expenses, but it did not apply to future medical expenses (i.e., the plaintiff would be allowed to present the full amount of anticipated future medical charges to the jury).  As a federal court sitting in diversity, the Lee court applied the law of the state.  Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).  The findings in Lee may be correct, but, until it is definitively resolved by legislative act or by the Louisiana Supreme Court, parties will likely continue to debate what impact the reasoning of Simmons will have as to future medical charges past the date of trial. If, as held in Lee, the reduced workers’ compensation rate is irrelevant to future medical specials, then plaintiffs will seek the full future medical charges. This blog does not address the potential impact of the “Civil Justice Reform Act of 2020” which can reduce a plaintiff’s ability seek full medical charges for cases arising after January 1, 2021 in some circumstances.

CORPORATE DEPOSITIONS: Recent Amendment to Federal Rules Mark a Positive Change

Litigation is increasingly a “part of doing business.” In federal court, corporate depositions are governed by Federal Rule of Civil Procedure 30(b)(6) (frequently referred to as a “30(b)(6) deposition”).  When a corporate representative is appointed to testify on behalf of a company, they are typically provided a deposition notice which identifies the subjects he or she will be asked to address in their testimony. However, the process is not always smooth when the parties disagree about what is fairly covered in the notice. A recent amendment to Rule 30 aims to improve the process.

Preparing for a 30(b)(6) deposition can be overwhelming and time-consuming.  Often, the imprecise identification of subjects in the notice leaves the corporation wondering what the noticing party really seeks to explore or even who is the best individual to testify to the topics identified.  The federal judiciary has observed that corporate representative(s) under the current practice are often unprepared to provide the necessary testimony and/or that the entity’s interpretation of the deposition topics does not match the intent of the noticing party.  The result is aborted or suspended depositions, extended litigation, increased costs, and the birth of theories that the deponent intentionally obstructed the deposition, which is usually not the case.

To address these issues, effective December 1, 2020, Rule 30(b)(6) now reads as follows (changes in bold):

Notice or Subpoena Directed to an Organization.  In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination.  The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.  Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.  A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. …

The recent amendment directs the serving party and the named organization to confer before or promptly after the notice or subpoena is served about the matters for examination.  The intent is to “facilitate collaborative efforts” and to encourage “candid exchanges about the purposes of the deposition and the organization’s information structure [which] may clarify and focus the matters for examination and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements.”  (Committee Notes; Rule 30).  The Committee Notes even suggest that the notice of the deposition may be “refined as the parties confer.”  The Committee Notes further provide that the obligation is to “confer in good faith,” not to reach agreement, and remind that “it may be desirable to seek guidance from the court.” 

The recent changes to Rule 30 are subtle but may prove impactful. Because the new procedure is now in effect, we should know soon.