Opinion
Case No. 98-4175-RDR.
May 30, 2001
MEMORANDUM AND ORDER
This matter is presently before the court upon motions in limine filed by each side. The court has conducted oral argument on these motions and is now prepared to rule.
This is a diversity action. Plaintiff seeks damages for an assault he allegedly suffered on April 18, 1996 while he was a student at the defendant's facility in Manhattan, Kansas. Since the events that form the basis of this case, plaintiff has been convicted of first degree murder, attempted first degree murder, aggravated burglary, and aggravated robbery and sentenced to life imprisonment.
In his motion in limine, plaintiff seeks an order precluding any evidence or mention of his criminal convictions. In its motion, the defendant seeks an order precluding any evidence or mention of any medical expenses claimed by plaintiff that have been written off by health care providers.
PLAINTIFF'S MOTION IN LIMINE
Plaintiff seeks an order precluding any evidence or mention of his criminal convictions. Plaintiff argues that such evidence is not relevant to this case. The defendant argues the criminal convictions are admissible under Fed.R.Evid. 609 to attack plaintiff's credibility. Plaintiff asserts in response that this evidence should not be allowed because its prejudicial impact outweighs its probative value.
Rule 609 provides in pertinent part as follows:
(a) General Rule. For the purpose of attacking the credibility of a witness,
(1) evidence that a witness . . . has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted . . .; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
As noted, Rule 609 provides two alternatives for admitting convictions for the purpose of attacking the credibility of a witness. Defendant relies upon Rule 609(a)(1) for support of its argument that plaintiff's convictions should be admitted to impeach his credibility. Defendant does not suggest that they are admissible under Rule 609(a)(2) or Rule 404(b). Accordingly, the court shall focus upon Rule 609(a)(1).
In order to admit convictions under Rule 609(a)(1), we must consider the balancing test of Fed.R.Evid. 403. If the danger of unfair prejudice, confusion of the issues, or misleading the jury substantially outweighs the evidence's probative value on the issue of credibility, the evidence can be excluded. See Fed.R.Evid. 403; Wilson v. Union Pacific Railroad Co., 56 F.3d 1226, 1231 (10th Cir. 1995) (drug conviction not permitted under Rule 609(a)(1) because not highly relevant to veracity and highly prejudicial). Here, the court believes that the danger of unfair prejudice outweighs any probative value of this evidence. The convictions occurred after the incident in this case and the nature of the crimes would be highly prejudicial. Accordingly, the court shall grant plaintiff's motion in limine.
DEFENDANT'S MOTION IN LIMINE
The defendant seeks an order precluding any evidence or mention of any medical expenses claimed by plaintiff that have been written off by health care providers. The defendant asserts Medicaid paid a portion of the plaintiff's medical expenses ($13,767.00 out of $60,002.66), and the remainder has been written off pursuant to an agreement entered into by the health care providers. Accordingly, the defendant argues that plaintiff's claim is limited to $13,767.00.
Plaintiff does not dispute the fact that some of his medical expenses have been written off pursuant to the agreement noted by the defendant. Plaintiff, however, suggests the defendant has not accurately portrayed the facts concerning his medical expenses. Plaintiff agrees that Medicaid has paid $13,767.00, but asserts that this amount was based upon a bill of $42,479.67. Thus, he asserts that only $28,712.67 has been written off by health care providers. Plaintiff further points out that Prudential Health Care, a private insurance group, paid $16,236.87 of a $23,508.58 claim submitted to it. Plaintiff contends that he is still responsible for the remaining amount of $7,271.71. Accordingly, plaintiff asserts that, even under the defendant's argument, he can still seek $37,275.58 in damages. Plaintiff also argues that he should be allowed to seek the entire of amount of the damages he claims, i.e., $60,002.66.
The admissibility of evidence in diversity cases in federal court is generally governed by federal law. See Romine v. Parman, 831 F.2d 944, 945 (10th Cir. 1987). If an evidentiary question is intertwined with a state substantive policy, however, state law applies. See Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 930-33 (10th Cir. 1984) (in diversity case, Kansas law controls admissibility of evidence of subsequent remedial measures). Judge Vratil has determined that the "[a]pplication of the collateral source doctrine, while an evidentiary rule, is closely tied to state substantive policy, and thus is governed by Kansas law." Strahley v. Mercy Health Center of Manhattan, Inc., 2000 WL 1745291 at * 2 (D.Kan. 2000).
Under the collateral source rule in Kansas, benefits received by a plaintiff from a source independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. Gregory v. Carey, 246 Kan. 504, 791 P.2d 1329, 1333 (1990). Accordingly, under the collateral source rule, the fact that Medicaid and private health insurance paid plaintiff's medical expenses is not admissible. The question here, however, is whether plaintiff may introduce evidence of amounts which represent write-offs of medical expenses.
In Bates v. Hogg, 22 Kan. App. 2d 702, 705, 921 P.2d 249, 253 (1996), statutory overruling on other grounds noted in Frans v. Gausman, 6 P.3d 432 (Kan.Ct.App. 2000), the Kansas Court of Appeals, in a 2 to 1 decision, held that plaintiff could not apply the collateral source rule to include in her claim for damages amounts that were written off by a health care provider in conjunction with a Medicaid contract. 921 P.2d at 253. The majority found that it would be unconscionable to permit taxpayers to bear the expense of providing free medical care to a person and then allow that person to recover damages for medical services from a tortfeasor and pocket the windfall. Id. The dissenting judge disagreed and indicated that a plaintiff should be allowed to recover the reasonable value of medical services rendered to treat an injury regardless of whether any amounts were actually paid. 921 P.2d at 255, 256 (Rulon, J., dissenting).
In Strahley, Judge Vratil applied Bates in a federal diversity case and determined that the plaintiffs could not recover medical expenses written off by health care providers. 2000 WL 1745291 at *2. She determined that the reasoning of Bates concerning Medicaid write-offs applied to amounts written off in conjunction with private health care insurance. Id.
The defendant, in support of its motion, points to Bates and Strahley. The defendant suggests that these cases should be followed here and we should prevent the plaintiff from introducing evidence or seeking damages for any medical expenses that have been written off under the Medicaid policy. Plaintiff suggests that (1) the court is not obligated to Bates because admissibility of evidence in the federal courts is governed by federal law; and (2) the court should follow the ruling and reasoning of the dissent in Bates.
Having carefully reviewed Bates and Strahley, the court has decided to follow their lead. Since plaintiff is not liable for the amount of write-offs, we do not find that the plaintiff has suffered actual losses. Accordingly, the court shall preclude any evidence of any amount of the plaintiff's medical bills that represent write-offs. Based upon the information presently before the court, plaintiff may only introduce evidence of medical expenses of $37,275.58.
IT IS THEREFORE ORDERED that plaintiff's motion in limine (Doc. # 83) be hereby granted. The defendant is hereby precluded from mentioning or introducing any evidence at trial of plaintiff's criminal convictions.
IT IS FURTHER ORDERED that defendant's motion in limine (Doc. # 81) be hereby granted. The plaintiff is hereby precluded from mentioning or introducing any evidence at trial of medical expenses that represent adjustments or write-offs.
IT IS SO ORDERED.