To the editor:
When a client in a personal injury case decides to not claim the cost of medical care, you should file a motion in limine to exclude the cost.
Evidence of medical cost is irrelevant because it does not make the pain and suffering and general damages flowing from the injuries any more or less probable than it would be without the evidence of the cost. Ind. Evid. R. 401 & 402. Admitting medical cost when not being claimed is unfairly prejudicial because it improperly diverts the jurors’ attention from the real issue — the value of pain and suffering and other general damages — and fixes it upon an issue of no consequence. Ind. Evid. R. 403.
Model instruction 703 directs the jury to consider the listed elements of damage in “deciding the amount of money you award … .” But medical expenses are not listed as an element when they are not claimed. Jurors should not hear evidence that the model instruction does not allow them to consider. Under Rule 403, evidence of medical cost is very misleading and confusing for jurors in light of the language of the model instruction.
Fortunately, this issue has been resolved if you have a case in Indiana’s federal courts. In Varhol v. National Railroad Passenger Corporation, 909 F.2d 1557 (7th Cir.1990), an injured railroad worker did not seek medical costs in his claim under the Federal Employers’ Liability Act. The trial judge ruled that the medical bills were inadmissible because they were irrelevant and because of “the possibility that the jury might misuse the amounts in calculating damages (for example, by deciding that trebling the bills would be a good way to fix damages).” Id. at 1565. The plaintiff argued the cost was proof of his general damages. In a unanimous en banc decision, all twelve judges affirmed “that since Varhol could not recover the expenses reflected in those bills, the amounts of those expenses bore little, if any, relevance to this case.” Id. at 1566. “Even if the amounts were somehow relevant, the district court did not abuse its discretion in finding the possibility of jury confusion, misuse, and double-recovery outweighed the bills’ probative value. Fed.R.Evid. 403. This is especially so since several witnesses, lay and expert, testified concerning the extent of Varhol’s injuries.” Id. Varhol confirms that when the medical expenses are not claimed, it is improper to use the cost as a faux “anchor” or multiplier.
Most jurisdictions having examined this issue have concluded medical cost cannot be used to prove or disprove pain and suffering and other general damages. As stated by the Supreme Court of Pennsylvania:
“… (T)here is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury. First, the mere dollar amount assigned to medical services masks the difference in severity between various types of injuries. A very painful injury may be untreatable, or, on the other hand, may require simpler and less costly treatment than a less painful one. The same disparity in treatment may exist between different but equally painful injuries. Second, given identical injuries, the method or extent of treatment sought by the patient or prescribed by the physician may vary from patient to patient and from physician to physician. Third, even where injury and treatment are identical, the reasonable value of that treatment may vary considerably depending upon the medical facility and community in which care is provided and the rates of physicians and other health care personnel involved. Finally, even given identical injuries, treatment and cost, the fact remains that pain is subjective and varies from individual to individual.”
Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022, 1025 (1983); see also, Ford v. National Railroad Passenger Corporation, 734 F.Supp. 215 (D. Md. 1990); Johnson v. Union Pacific Railroad Company, 2007 WL 2914886 (D. Neb. Oct. 4, 2007); Stone v. Patarini, 2000 WL 799102 (Ohio Ct. App. June 21, 2000); Moser v. Brown, 249 N.W.2d 612 (Iowa 1977); Payne v. Wyeth Pharmaceuticals, Inc., 2008 WL 4890760 (E.D. Va. Nov. 12, 2008); Campbell v. Garcia, 2016 WL 4769728 (D. Nev. Sept. 13, 2016); J.B., A Minor, By and Through his Next Friend, Ricky Bullock v. Missouri Baptist Hospital of Sullivan, 2018 WL 746302 (E.D. Mo. Feb. 7, 2018); Schieffer v. Decleene, 539 S.W.3d 798 (Mo. Ct. App. 2017); Wright v. Hixon, 42 Md. App. 448, 400 A.2d 1138 (1979); Clayton v. Davis, 1989 WL 15857 (D.D.C. Feb. 13, 1989); C.C. through Ginnever v. Suzuki Mfg. of Am. Corp., 2018 WL 4504687 (E.D. Mo. Sept. 20, 2018); Ford v. Nat’l R.R. Passenger Corp., 734 F. Supp. 215 (D. Md. 1990); Corenbaum v. Lampkin, 215 Cal. App. 4th 1308, 1333, 156 Cal. Rptr. 3d 347 (2013).•