Here are some assignment that i have done in class....
Word Assignment
Cases
Cornelius v. Gipe, 625 S.W.2d 880, 882 (Mo. App. 1981)………………………………………2 Florida
Physician's Ins. Reciprocal v. Stanley, 452 So.2d 514, 515-16 (Fla.
1984……………...4
Washington v. Barnes Hosp., 897 S.W.2d 611, 619-21 (Mo. banc 1995)……………………….2,4
IN
THE CIRCUIT COURT OF GREENE COUNTY, MISSOURI
MARCEL BRADFORD, a minor, by his )
next friend, Trust of the Ozarks, )
)
Plaintiff, )
)
vs. ) Case No. 104CC0091
)
HILLCREST MEDICAL CENTERS, )
)
Defendant. )
DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST MOTION IN
LIMINE CONCERNING FREE PUBLIC BENEFITS
In point 3 of his first motion in
limine, plaintiff seeks to preclude evidence of collateral source
payments. Plaintiff attempts to
categorize the evidence into two groups:
Group 1: Medicaid
Group 2: Goods and services provided by the public schools.
Plaintiff
claims that evidence of Medicaid is subject to the rule, while the Missouri
Supreme Court in Washington v. Barnes Hosp., 897 S.W.2d 611, 619-21 (Mo.
banc 1995) has held that evidence of programs and therapies available through
the public schools are not subject to the collateral source rule.
While defendant does not agree that
any Missouri appellate court has directly held that Medicaid is subject to the
collateral source rule, defendant does not plan to introduce evidence that
Medicaid has paid for certain medical expenses in this case.[1]
Defendant also agrees that goods and services
provided by the public schools is not subject to the rule. However, to the extent plaintiff is
attempting to recast Washington v. Barnes Hospital as holding that the
availability of free public school programs is the only exception to the
collateral source rule, defendant disagrees.
There are other free public programs and therapies that are available
outside the public school programs that will be available to Marcel that should
also not be considered collateral sources.
Programs that will likely be at issue in this case are those provided
through the Missouri Department of Mental Health, Division of Mental
Retardation and Developmental Disabilities ("MRDD") after Marcel
turns 18.
The State of Missouri has an
extensive system of care and treatment options for individuals with
developmental disabilities. The only criteria for eligibility is they have a
developmental disability which is defined as attributable to:
1. A. Mental retardation, cerebral palsy,
epilepsy, head injury, autism or a learning disability related to a brain
dysfunction;
2. Is
manifested before the person attains age twenty-two (22);
3. Is
likely to continue indefinitely;
4. Results in substantial functional
limitations in two (2) or more of the following six (6) areas of major life activities: self
care, receptive and expressive language development and use, learning,
self-direction, capacity for independent living or economic self sufficiency
and mobility; and
5. Reflects the person's need for a
combination and sequence of special, interdisciplinary or generic care,
habilitation and sequence of special, interdisciplinary or generic care,
habilitation or other services which may be of lifelong or extended duration and
are individually planned and coordinated.
In this case, Marcel will meet this
criteria. He has already been documented
as having cerebral palsy prior to the
age of twenty-two. Plaintiff's own
experts state this is likely to continue indefinitely, and results in
substantial functional limitations in more than two of the six areas of major
life. Evidence that these public
programs are available as an alternative to Dr. Elam's private one-on-one
attendant care projections in his life
care plan are relevant and admissible.
In Washington v. Barnes Hosp.,
897 S.W.2d 611, 619-21 (Mo. banc 1995), the Missouri Supreme Court extensively
re-examined the collateral source rule.
The court began its analysis with the statement that "the
collateral source rule is not a single rule but rather, a combination of
rationales applied to a number of different circumstances to determine whether
evidence of mitigation of damages should be precluded from admission." Id. In analyzing the rationales that supported
the rules application, the court reviewed decisions from other states. In reaching its decision that public school
benefits where not subject to the collateral source rule, the court rejected contrary
views from other states, and adopted the
reasoning of the Florida Supreme Court in Florida Physician's Ins.
Reciprocal v. Stanley, 452 So.2d 514, 515-16 (Fla. 1984), emphasizing:
The
policy behind the collateral source rule simply is not applicable if the
plaintiff has incurred no expense, obligation, or liability in obtaining the
services for which he seeks compensation.
This is further made apparent upon comparison of the present case with a
situation in which the collateral source rule is frequently applied, that of
the defendant who seeks a reduction in damages because the plaintiff has
received insurance benefits. It is a
well-settled rule of damages that the amount recoverable for tortious personal
injuries is not wholly or partially indemnified for the loss by proceeds from
accident insurance where the tortfeasor did not contribute to the payment of
the premiums of such insurance. This
rule is usually justified on the basis that the wrongdoer should not benefit
from the expenditures made by the injured party in procuring the insurance
coverage. In a situation in which the
injured party incurs no expense, obligation, or liability, we see no
justification for applying the Collateral Source rule. We refuse to join those courts which, without
consideration of the facts of each case, blindly adhere to the collateral
source rule, permitting the plaintiff to exceed compensatory limits in the
interest of insuring an impact upon the defendant.
Id. at 620-21 (Emphasis added). The Missouri Supreme Court also stated:
"[w]e reject the concept that the collateral source rule should be
utilized solely to punish the defendant.
Id. at 621.
While the specific issue addressed
in Washington v. Barnes Hospital was evidence relating to the
availability of public special education services, the issue in Florida
Physician's Insurance Reciprocal v. Stanley, the Florida case adopted by
the Missouri Supreme Court, also included the "availability and
effectiveness of free or low-cost charitable and governmental programs
available in the community." 452 So.2d at 515. In the Florida case, the plaintiff
"brought a medical malpractice action against the [defendants] for the
retardation and cerebral palsy [plaintiff] has suffered from birth." Id. Defendant cross-examined plaintiff's damage
experts on the availability of free or low cost services from governmental and
charitable organizations that were available to people that had mental
retardation and cerebral palsy as children.
Id. These are the same
benefits that are at issue in the present case.
The Florida court held:
[Defendants]
claim that evidence of free or low cost services from governmental or
charitable agencies available to anyone with specific disabilities is
admissible on the issue of future damages.
We agree.... Governmental or
charitable benefits available to all citizens, regardless of wealth or status,
should be admissible for the jury to consider in determining the reasonable
cost of necessary future care. Keeping
such evidence from the jury may provide an undeserved and unnecessary windfall
to the plaintiff.
Id. at 515. As
the Missouri Supreme Court adopted the Florida court's reasoning in Washington
v. Barnes Hospital, it is apparent it would reach the same result with
regard to the admissibility of evidence of other public programs, in addition
to the public school special education programs, available to anyone with
specific disabilities on the issue of future damages.
The public programs available
through MRDD are, in effect, an extension of those available through the public
schools. They replace those provided by
the public school after the child turns 18.
Just as in the case of public school benefits, the plaintiff did not
purchase the benefits available through MRDD, nor work for them as an
employment benefit, nor contract for them.
Hence, the "benefit of the bargain" rationale does not
apply. Just as in the case of public
school benefits, the MRDD programs are funded by tax dollars. As the Missouri Supreme Court stated in Washington
v. Barnes Hospital, "[w]hile to
some extent public schools are funded by plaintiffs' tax dollars, they are also
funded by defendants' tax dollars and no windfall results to either." Id.
at 621. The same is true for MRDD
benefits. As the court emphasized in Washington v. Barnes Hospital: "[a]s the injured party [Marcel] incurs
no expense, obligation, or liability, we see no justification for applying the
Collateral Source rule." Moreover,
these free public programs are available to any child that has been documented
to have a developmental disability before age 22, and is not contingent on
indigent status (as in Medicaid benefits) or having been earned through
military service (as for veteran's benefits), or through work credits (as for
social security or medicare benefits.)
Accordingly, these free public
benefits available to people, like Marcel, after they turn eighteen and have
cerebral palsy can be considered by the jury as alternatives to Dr. Elam's
private one-on-one attendant care
projections in his life care plan.
Plaintiff's motion in limine to this extent should be denied.
"Plaintiffs, of course, may respond to this evidence with arguments of its
inadequacy, the risk of its continued availability, etc." Washington v.
Barnes Hosp., 897 S.W.2d at 621.
THE
GRISWALD LAW FIRM, P.C.
[1]The only case cited by plaintiff concerning Medicaid
payments is Cornelius v. Gipe, 625 S.W.2d 880, 882 (Mo. App. 1981). In that case, the court expressly said:
"Even assuming without deciding that the argument [that mentioned
the availability of Social Security, Medicare, and Medicaid] violated the
collateral source rule, the argument clearly bore on damages, and by reason of
the defendant's verdict, Cornelius was not prejudiced." In Washington v. Barnes Hosp., 897
S.W.2d 611, 620 (Mo. banc 1995) the court specifically noted this was
dicta.
[2]If the recipient has annual adjusted gross income
exceeding one hundred thousand dollars ($100,000) he shall be assessed a charge
for case management services, and the charge shall be the lesser of actual cost
or one-fourth (1/4) their monthly ability to pay. 9 CSR 10-31.011(3). This has no application in this case as
plaintiff's experts state Chavon will be permanently unemployable.
Excel Assignment
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