Thomas O. Jackson, Jr.
The parties in this matter have each filed several motions in limine. I have reviewed each of the motions and the responses thereto as well as the relevant case law. I shall now discuss my decisions on each motion in turn, beginning with Plaintiff's first motion, followed by each of Defendant's three motions, then Plaintiff's second motion, as it was the last in time to be filed and appears to be made in response to Defendant's third motion.
Plaintiff's first motion: Plaintiff's unemployment benefits
Plaintiff's first motion in limine seeks to preclude any reference to Plaintiff's receipt of unemployment benefits under the collateral source rule. Plaintiff was unemployed at the time of his accident in 2009; Plaintiff collected $19, 282 in unemployment benefits in 2010, despite earning $6, 695 from working "odd jobs" following his recovery from his injuries. Defendant argues that the collateral source rule does not bar reference to Plaintiff's unemployment benefits and that such evidence would be relevant for impeachment purposes.
The collateral source rule is a doctrine that is "firmly embedded" in Delaware law, and bars a tortfeasor from mitigating any damages he is liable to pay a plaintiff "because of payments or compensation received by the injured person from an independent source." The rule is "predicated on the theory that a tortfeasor has no interest in, and therefore no right to benefit from monies received by the injured person from sources unconnected with the defendant." However, in Sears, Roebuck and Co. v. Midcap, the Supreme Court held that the collateral source rule did not prevent the defendant from showing that the plaintiff was receiving pension and social security benefits which the plaintiff had claimed were lost. The Midcap Court explained that the collateral source rule did not prevent the defendant from introducing evidence "to show that a payment that is represented to the jury as a benefit that the plaintiffs lost as result of...injury or death, was in fact not lost, either in whole or in part, and is actually being received." The Supreme Court has also recognized an exception to the general rule of inadmissibility of collateral source evidence, allowing evidence of payments from a collateral source for the limited purpose of impeaching a witness' credibility.
By Order dated April 2, 2014, this Court denied Plaintiff's Motion for Partial Summary Judgment as to Past Lost Wages, on the grounds that several genuine disputes of material fact exist as to Plaintiff's employment status at the time of his accident. Plaintiff collected $19, 282 in unemployment benefits in 2010; normally, Defendant would be precluded from introducing evidence of Plaintiffs' receipt of these benefits under the collateral source rule. However, Plaintiff was already unemployed prior to his accident, and given the unclear nature of his "interim" job that was to start the day after his accident in 2009, it may very well be that Plaintiff would have collected unemployment benefits at some point in 2010 even if the accident had not occurred. Thus, this appears to be a case that more squarely falls within the scope of Midcap than under the traditional collateral source doctrine. Further, Defendant is correct that evidence of Plaintiff's unemployment benefits would be admissible under the impeachment exception to the collateral source rule, depending on Plaintiff's testimony on direct examination.
Accordingly, Plaintiff's first motion in limine to exclude evidence of Plaintiff's receipt of unemployment benefits is DENIED.
Defendant's first motion: testimony of Dr. Evan Crain
Defendant's first motion in limine seeks to limit the trial testimony of Plaintiff's expert, Dr. Evan Crain, in two ways. First, Defendant seeks to preclude Dr. Crain from testifying as to Plaintiff's increased susceptibility to developing post-traumatic arthritis in the left-knee due to his accident, and as to surgeries Plaintiff may have to receive in the future as a result. Second, Defendant argues that Dr. Crain has no basis to testify that Plaintiff's medical bills were reasonable and necessary because Dr. Crain was not Plaintiff's treating physician.
The admissibility of expert testimony is subject to a five-prong test: (1) the witness must be qualified as an expert by knowledge, skill, experience, training, or education; (2) the testimony must be relevant; (3) the opinion must be based upon information reasonably relied upon by experts in that particular field; (4) the expert's testimony will assist the trier of fact; and (5) the expert testimony will not create unfair prejudice, confusion or mislead the jury. Courts have excluded expert testimony on future medical expenses when the testimony was too vague and uncertain "to enable the jury to do more than engage in impermissible speculation and conjecture. When a medical expert offers an opinion it must be stated in terms of a reasonable medical probability or certainty, because an expert's opinion about what is merely possible "is no more valid than the jury's own speculation as to what is or is not possible." However, under the "increased risk doctrine, " an expert may testify about the plaintiff's increased risk of suffering a negative medical condition in the future as a result of negligence, even if the increased risk is not prescribed a precise statistical percentage of occurring, so long as the expert offers an opinion on the increased risk with reasonable medical probability.
Dr. Crain states in his reports that Plaintiff is "prone to developing posttraumatic arthritis of the knee as a result of the extensive nature of this injury." This opinion was stated within a reasonable degree of medical probability. Even Defendant's expert, Dr. Michael Mattern, stated in a letter dated October 28, 2013 that Plaintiff "may develop some degree of arthritis" as a result of the accident. In other words, the parties' experts seem to agree that Plaintiff is at increased risk to developing arthritis in his knee as a result of a his injuries. Accordingly, Dr. Crain will be permitted to generally testify about this increased risk.
However, the remainder of Dr. Crain's challenged testimony constitutes impermissible speculation, and shall be excluded. Specifically, after describing the "significant risk" of Plaintiff developing arthritis over a ten-to-fifteen year period, Dr. Crain states that treatment "would include medication, exercise, brace, and if ineffective, surgery." Dr. Crain states that the surgery would "likely" be in the form of an arthroscopic surgery, and goes on to state that he is "hopeful" that a total knee replacement would not be required. Notwithstanding this, Dr. Crain states that "typically" the costs of treatment and arthroscopic surgery would be $15, 000 and the knee replacement, if performed, would be $60, 000.
This is all nothing but conjecture and speculation, and requires too many "what-ifs" in order to get to the $15, 000 cost of treatment and surgery and the $60, 000 total knee replacement, that even Dr. Crain himself acknowledges may not be required. Thus, while Dr. Crain may be permitted to generally testify as to the increased risk of arthritis Plaintiff faces as a result of the accident, Dr. Crain will not be allowed to testify as to the potential surgeries and cost thereof, as such testimony enters the realm of impermissible speculation.
As to the reasonableness and necessity of Plaintiff's medical bills, Dr. Crain may testify that Plaintiff's medical treatment was reasonable and necessary. Dr. Crain's testimony meets the five-pronged test for admissibility. Even though Dr. Crain was not Plaintiff's treating physician, Dr. Crain's reports indicated that he reviewed Plaintiff's medical bills, and has offered his opinion within a reasonable degree of medical probability. Defendant misconstrues the case offered in support of her position, as it involved treating physicians who could not recall specific treatment that was provided and could not account for that treatment in their billing.This Court has never held that only a treating physician may testify that his or her own medical bills are reasonable and necessary. Because Dr. Crain has reviewed ...