LAJ Last Chance CLE Conference December 14, 2018 Emerging Legal Issues in Special Damages – Collateral Source, Finance Agreements, and More Robert E. Kleinpeter LAJ Last Chance CLE Conference December 14, 2018

Compensatory Damages Special Damages General Damages

Special damages can be calculated

Lay the foundation for special damages

Medical Bills

Medical Bills Jury Instruction A plaintiff may recover reasonable medical expenses, both past and future, which he incurs because of the injury. Past medical expenses are those incurred from the date of the incident through the date of trial. Future medical expenses are those that will be incurred after the date of trial. In determining any compensation that you might make for past or future medical expenses, you should consider the evidence, and the opinions of expert witnesses, to decide the reasonable value or expense of medical, nursing, hospital care, and treatment which is reasonable and necessary for plaintiff’s condition. Authority: Menard v. Lafayette Ins. Co., 09-1869 (La. 3/16/10), 31 So. 3d 996, 1006; 18 La. Civ. L. Treatise, Civil Jury Instructions § 18:5 (3d ed.).

Medical Bills Past Bills Chart

Medical Bills Future Bills Chart

Wages

Wages Jury Instruction - Past A plaintiff may recover his wages for the time missed from work as a result of the injury. The plaintiff must prove the amount of lost earnings and the length of time missed from work due to the incident. Authority: Boyette v. United Services Auto. Ass’n, 00-1918 (La. 4/3/01), 783 So. 2d 1276, 1279; Woods v. Hall, 15-1162 (La. App. 1st Cir. 4/20/16), 194 So. 3d 689, 693.

Wages Jury Instruction - Future A plaintiff may recover wages for time he will miss from work in the future as a result of the injury. The amount of damages for an item such as loss of future wages is necessarily speculative and cannot be calculated with mathematical certainty. In determining the amount, you may consider the plaintiff’s physical condition before and after this incident, his work record, whether and for how long a plaintiff’s injury will prevent him from engaging in work of the same or similar kind that he was doing at the time of his injury, his earnings in prior years, the probability that he would have earned similar amounts in the remainder of his work life, and similar factors. Authority: 18 La. Civ. L. Treatise, Civil Jury Instructions § 18:7 (3d ed.); Haydel v. Hercules Transp., Inc., 94-1246 (La. App. 1st Cir. 4/7/95), 654 So. 2d 418, 435–36.

Summary of Calculated Harms and Losses

What is the Collateral Source Rule? “A tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.”

The Collateral Source Rule is both a rule of evidence and of damages Evidence of monies received is inadmissible Damages may not be reduced by monies received

The Collateral Source Rule is usually raised by Motion in Limine

Public Policy Supports the Collateral Source Rule Without the rule, victims would be dissuaded from purchasing insurance or pursuing other forms of available reimbursement Tort deterrence Compensation to an injured party

The Major Policy Reason for the Rule Tort Deterrence Legal scholars Jurisprudence Social Science Common Sense

Important Cases Bozeman Bellard Hoffman Simmons

Bozeman held the Collateral Source Rule does not apply to Medicaid benefits No diminution of the plaintiff’s patrimony “Benefit of the bargain” approach

Bellard held the Collateral Source Rule does not apply to a UM insurer Applying the rule will not further the goal of tort deterrence The plaintiff’s patrimony was not diminished by his receipt of workers’ compensation benefits Principle of solidarity overrides the Collateral Source Rule

Hoffman held the Collateral Source Rule does not apply to attorney-negotiated discounts for medical expenses No diminution of patrimony Attorney fees are not damages Evidentiary and ethical dilemmas

The analysis depends on who is the defendant? Π v. ∆

Collateral Sources Medicare Insurance Benefits Workers’ Compensation Unemployment Compensation Sick Pay Vacation Pay Social Security Pension and Retirement Gratuitous Benefits Client Negotiated Discounts

Payments for medical services provided to plaintiffs are not “loans” subject to the Louisiana Consumer Credit Law In other words, a finance company does not advance funds when it purchases the rights of creditors (health care providers) against debtors (plaintiffs).

Plaintiffs usually do not assign their rights to pursue recovery from the defendants in their litigation Partial assignment must be enforced by both assignor and assignee The objection is waived if not timely made by dilatory exception or in Answer

Examine the documents as a whole and see if they are reimbursement agreements, not assignments of litigious rights Obtain all of the documents Ensure C.C.P. art. 966 compliance Determine intent as a whole, “assignment” word is not dispositive

Even if found to be assignment, an agreement may authorize plaintiffs to recover from the defendants any expense amounts owed to the health care providers Have health care providers agreed to await payment from the lawsuit? Can the plaintiffs be characterized as agents for the health care providers?