DTCI: Admitting past medical expense evidence when plaintiff’s counsel does not: An update

Tammy Meyer

By Tammy J. Meyer

In August 2019, this writer co-authored in these pages a discussion of admitting past medical expense evidence when plaintiff’s counsel elects not to do so. Two years later, the Indiana Court of Appeals has spoken on the issue.

Gladstone v. West Bend Mut. Ins. Co., 166 N.E.3d 362 (Ind. Ct. App. 2021), trans. denied

Facts of case: Daniel Gladstone was driving his vehicle in Calumet and was struck by a vehicle operated by Christina Carli. Gladstone sustained injuries, including a laceration to his arm, a contusion to his knee and a fracture to his wrist. He filed suit against Carli alleging negligence and seeking punitive damages. Gladstone then filed an amended complaint adding West Bend Mutual Insurance Company as a party defendant for claimed uninsured motorist benefits pursuant to his policy with West Bend. Carli tendered her policy limits of $50,000 and was dismissed from the case, and the case proceeded on the UIM claim against West Bend.

Gladstone moved to exclude evidence of his medical billing records on the basis that he was not seeking reimbursement or an award from the jury for those expenses. The Lake Superior Court denied the motion. West Bend filed a motion in limine seeking to present billed amounts and reductions, and that motion was granted. At trial, the court permitted West Bend to introduce evidence of the medical bills and the reduced amounts, indicating that the billed medical specials of $14,000 had been reduced to just under $2,000 by insurance payments and discounts. The jury also heard evidence that Gladstone had already recovered $50,000 from Carli and awarded Gladstone $0 in UIM benefits. Gladstone appealed the trial court’s pretrial rulings.

Issue: Is evidence of medical bills admissible in a proceeding in which recovery of them is not sought in Indiana?

Holding: YES. The court reviewed caselaw from other jurisdictions and noted that while the amounts of disallowed medical expenses are not relevant to prove damages for past medical loss, it does not follow that the evidence of medical expenses is irrelevant for all purposes. They are relevant to prove the nature and extent of a plaintiff’s injuries. The court stated that when, in the estimation of one of the parties, the amount of the medical bills does not accurately reflect the amount of pain and suffering, that party is free to counter it with other evidence and argument. The weight such evidence is to be given is generally for the attorneys to argue and the jury to decide.

What defense counsel should do: Defense attorneys should be mindful of this growing trend and plan thoughtfully to avoid a pretrial scramble to address it. Among other things, attorneys should craft discovery designed to understand each element of damage a plaintiff will claim at trial. If a plaintiff does not claim past medical expenses in written discovery or at deposition, this may indicate they will not be introduced as evidence at trial. Under those circumstances, defense attorneys should be prepared to introduce such evidence in their case-in-chief and anticipate that plaintiff’s counsel may object to the introduction of this evidence as irrelevant where no past medical expenses are claimed. Ideally, defense counsel will seek a pretrial ruling on the admissibility of a plaintiff’s medical bills at trial. Now that Indiana’s appellate courts have decided the issue, the task should be much easier.•

Tammy J. Meyer is a partner in the Noblesville firm of Metzger Rosta. Opinions expressed are those of the author.

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