Opinion
A00-31 CV (JWS), [Re: Motions at dockets 195, 196, 197, 198, and 200].
September 15, 2004
ORDER FROM CHAMBERS
I. MOTIONS PRESENTED
This order addresses numerous motions in limine which have been filed by the parties. At docket 195, plaintiffs file what they style a "motion for clarification" regarding an earlier order which limited the economic damages recoverable by plaintiffs Don and Mary Armstrong. At docket 196, plaintiffs seek to exclude the testimony of Dr. David J. Strauss. At docket 197, plaintiffs seek to exclude all references to collateral sources during the trial. At docket 198, plaintiffs seek to exclude all references to the status of defendant Visions, International, Inc. ("Visions") as a non-profit corporation. At docket 200 defendant Visions seeks to preclude references to numerous categories of economic losses claimed by plaintiffs Don and Mary Armstrong. All motions are opposed and have been fully briefed. No party has requested oral argument. Oral argument would not assist the court.
There are two other motions in limine which were timely filed. At docket 201, Visions seeks an order excluding evidence of certain camp standards and evidence of the sale of assets between Visions and Service Adventures International. At docket 221, the United States requests exclusion of certain evidence as specified in the motion. The motions at dockets 201 and 221 will be addressed in a subsequent order or orders.
II. BACKGROUND
In 1997, plaintiff Matthew Armstrong ("Matthew"), the minor son of plaintiffs Don and Mary Armstrong, attended an outdoor camp operated by Visions at Mentasta, Alaska. While at the camp, Matthew was afflicted with a seizure. Nora David, who was employed by the Mentasta Community Health Clinic ("Clinic") as a community health aide, attended Matthew. The Clinic was operated by the Mount Sanford Tribal Consortium ("MSTC"), pursuant to a contract between MSTC and the United States. Matthew suffered serious brain injury and is now incapable of caring for himself.
The Armstrongs sued the United States alleging that the United States is liable for Nora David's negligent failure to provide adequate medical care to Matthew and the Clinic's failure to stock necessary medical supplies and to make adequately trained personnel available. Earlier, in Alaska state court, the Armstrongs sued Visions. After Visions joined the United States, MSTC, the Clinic, and Nora David as third-party defendants in the state court action, it was removed to this court and consolidated with the original federal action.
Case No. A00-182, doc. 1.
Case No. A00-31, this case.
As presently configured, the case at bar is an action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., against the United States with additional state law claims brought by plaintiffs against Visions upon which are attendant Visions' third-party claims against the United States. Additional facts are noted in subsequent sections of this order.
III. DISCUSSION
A. Motion at Docket 195
In an order at docket 81 filed on October 4, 2002, the court ruled that under Alaska law plaintiffs Don and Mary Armstrong could recover damages for the money which they have paid to others for Mathew's care, but that they could not otherwise recover economic damages, and in particular could not recover damages for the economic consequences to Don and Mary Armstrong arising from their giving care to Matthew. In rendering its decision, the court relied on controlling Alaska authority, Heritage v. Pioneer Brokerage Sales, Inc.
604 P.2d 1059, 1064-65 (Alaska 1979) expressly approving the holding in Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669,687 (Calif. 1974).
Plaintiffs' present motion effectively asks the court to reconsider the earlier order so that Don and Mary Armstrong may recover damages for the economic consequences of time spent caring for Matthew. As a request for the court to reconsider its assessment of Alaska law, the motion at docket 195 is untimely. While an intervening change in the controlling law would permit reconsideration even at this late date, plaintiffs point to no intervening change in the law. Indeed, the most recent relevant holding by the Alaska Supreme Court reflects the continuing vitality of the holding in Heritage. There is no other exception to the rule requiring prompt requests for reconsideration. Furthermore, it would be inimical to the broader interests of justice to make major alterations in the issues for trial at the eleventh hour. There is no argument advanced by plaintiffs now which could not have been advanced in October of 2002. The motion at docket 195 will be denied.
See generally, D.Ak.LR 59.1.
D.Ak.LR 59.1(b)(2).
Glamman v. Kirk, 29 P.3d 255, 265 (Alaska 2001).
Cf., Fed.R.Civ.P. 1.
B. Motion At Docket 196
At docket 196, plaintiffs seek to preclude the opinion testimony of Dr. David J. Strauss, regarding Matthew's life expectancy after the events at Mentasta, Alaska. After reading the parties' papers, the court might write at some length about the Daubert issues plaintiffs attempt to raise, but the court could do no better than what the defendants have written in their oppositions at dockets 253 and 264 to explain the misconceptions under which plaintiffs labor when they assert the testimony would be neither relevant nor reliable. While it is Matthew's life expectancy prior to the events at Mentasta which is relevant for assessing some items of damages, it is Matthew's life expectancy after those events which is relevant to a determination of the cost of future care. Furthermore, the statistical methodology used by Dr. Strauss is explained and shown to be consistent with accepted statistical practices in defendants' papers. The bottom line is that defendants have convincingly demonstrated that Dr. Strauss' testimony is both relevant and reliable. They need do no more. Of course, the weight to be given Dr. Strauss' testimony will be decided by the trier of fact.
Dr. Strauss is an Emeritus Professor of statistics at the University of California, and the director of a group whose research focuses on the statistical and epidemiological study of developmentally disabled persons.
Fed.R.Civ.P. 702, Lust v. Merrill Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996).
C. Motion At Docket 197
At docket 197, plaintiffs ask the court to exclude evidence of benefits plaintiffs have received or will receive from collateral sources. Analysis of the motion requires consideration of two separate Alaska statutes dealing with collateral sources.
The first and more general statute, AS 09.17.070, provides that consideration of "evidence of amounts received or to be received by the claimant as compensation for the same injury from collateral sources that do not have a right of subrogation" is a matter for the court to consider after the trier of fact has made an award. The common law collateral source rule's purpose to foreclose reduction of a tortfeasor's responsibility through the fortuity that an injured person had secured benefits from another source has been modified by the post-award adjustments contemplated by AS 09.17.070. Nevertheless, it is evident that the statute still embodies the common law rule's "evidentiary role [which is] excluding evidence of other compensation on the theory that such evidence would affect the jury's judgment unfavorably to the plaintiffs on the issues of liability and damages." The more general statute applies to plaintiffs' claims against Visions.
Ridgeway v. North Star Terminal and Stevedoring, Inc., 378 P.2d 647, 650 (Alaska 1963).
Tolan v. ERA Helicopters, Inc., 699 P.2d 1265, 1267 (Alaska 1985).
The second and more specialized statute, AS 09.55.548, provides that in medical malpractice cases, a claimant may not seek to recover damages for losses for which compensation from a collateral source is paid unless the collateral source is a federal program which is required by law to seek subrogation or is a benefit paid under a life insurance policy. This statute applies to plaintiffs' claims against the United States.
The more general statute does not apply to medical malpractice cases. AS 09.17.070(e).
The statute also contemplates that adjustments to account for the depletion or exhaustion of coverage may be made by the court after the finder of fact makes its award. AS 09.55.548(b).
Visions has opposed the motion at docket 197, but the United States has not. Visions' opposition approaches the request to exclude evidence as if it were to be analyzed under Rules 401 and 403 of the Federal Rules of Evidence. In general, it is not. Rather, the evidence of collateral sources must generally be excluded by virtue of the state statute in point.
Visions' analytical approach is traceable to its focus on evidence that Visions provided information to prospective campers which urged campers' parents to secure "emergency medical air evacuation insurance." The recommendation that evacuation insurance be considered is not offered by Visions as evidence of a collateral source which paid for an evacuation; rather, it is offered as evidence relevant to the reasonableness of Don and Mary Armstrong's decision to send Matthew to the remote camp. Evidence relating to the evacuation insurance is, therefore, properly subject to Rule 403 analysis. The Rule 403 issue pertaining to this evidence is addressed in the opposition and in the reply, but it was not raised in the original motion. Furthermore, it is not adequately explored in the opposition and reply. For example, although it appears the Armstrongs declined to purchase such insurance based on the fact that their existing health insurance covered emergency air evacuation, the court is not sure that actually was the situation. Furthermore, it is unclear to what extent Visions wishes to introduce evidence which would go beyond the fact that Visions made the recommendation.
Based on the preceding, the court will grant the motion at docket 197, but in doing so emphasizes that as construed by the court the motion does not raise the Rule 403 issue regarding the emergency air evacuation insurance. Thus, in granting the motion, the court does not reach the question of the admissibility of such evidence.
Of course, granting the motion also has no bearing on consideration of any collateral source evidence by the court pursuant to AS 09.17.070 and AS 09.55.548 subsequent to any award of damages by the finder of fact.
D. Motion At Docket 198
At docket 198, the Armstrongs ask the court to prohibit any reference to the fact that at the time of Matthew's injury defendant Visions was operating as a non-profit organization. Plaintiffs contend that evidence which discloses Visions' status is irrelevant and unduly prejudicial. Plaintiffs also contend that any suggestion that Visions continued as a non-profit organization is factually incorrect.
With respect to the last argument, the court has no trouble concluding that plaintiffs' position is incorrect. The record discloses that Visions was operating as a nonprofit corporation at all times relevant to the litigation. The status of the entity which purchased Visions assets is unrelated to the litigation.
Plaintiffs are correct to say that Visions' status is largely irrelevant. Whether Visions was a for profit or not-for-profit entity has no bearing on the standard of care owed, nor any relevance to the reasonableness of the Armstrongs' reliance on Visions' representations. On the other hand, basic identifying information about any person or entity which is a party to the litigation is routinely admitted in evidence even though it has little or no relevance to the issues in dispute. The trier of fact is entitled to know enough about the parties to understand who or what they are.
The motion at docket 198 will be granted in part and denied in part as follows: In brief testimony describing Visions, it will be permissible to present the fact that Visions was operated as a non-profit corporation. If a document that is otherwise admissible contains a reference to Visions' non-profit status, it need not be redacted, unless the court finds that the document contains an excessive number or peculiar type of references to Visions' non-profit status. Otherwise, no party will be permitted to present further evidence on the topic of Visions' non-profit status, and no party will be allowed to argue to the finder of fact that Visions' non-profit status has a bearing on any issue regarding liability or damages. Such a limited presentation of Visions' status cannot unfairly prejudice plaintiffs; a more expansive presentation is unnecessary for any legitimate purpose.
E. Motion at Docket 200
In the motion at docket 200, defendant Visions asks the court to exclude evidence which would be inconsistent with the court's earlier orders at dockets 76 and 81. Visions also seeks to exclude evidence of certain damages attributable to Mary Armstrong's physical condition, pursuant to an agreement between the parties. As to the last issue, plaintiffs do not dispute the proposition that they have agreed not to present evidence of such damages, but do contend that some evidence of Mary's physical condition is admissible. Defendants indicate that they may make objections to such evidence if it is offered. Plaintiffs' acknowledgment that they will not seek to introduce evidence of damages attributable to Mary's condition eliminates the only ripe issue relating to her condition.
The order at docket 76 was a preliminary order, much of which was adopted in the final order at docket 8. Of course, to the extent the final order modified the preliminary order, the final order controls.
As to the economic damage issues, it should be noted that the court has declined to alter — or as plaintiffs would have it "clarify" — its original decision. It follows that the only evidence of economic damages suffered by Don or Mary Armstrong which will be admitted is evidence of what they have paid to others for Matthew's care. Under Alaska law, plaintiffs may not seek to recover damages for Don and Mary's past and future loss of earnings or earning capacity, nor for the loss of "economic prospects." While Matthew may recover the cost of future care, his parents may not recover for the value of the time they may spend caring for him in the future.
The motion at docket 200 will be granted for the reasons above.
IV. CONCLUSION
For the foregoing reasons: the motions at dockets 195 and 196 are DENIED; the motion at docket 197 is GRANTED subject to the caveat set out in the text above; the motion at docket 198 is GRANTED in part and DENIED in part as explained in the text above; and the motion at docket 200 is GRANTED.