Making the most of motions in limine: you can defeat five common defense arguments in medical negligence cases before trial even begins. Motions in limine--backed by powerful precedent--are the key.

In any trial of a medical negligence case, you can expect to encounter certain defenses. Some are difficult to overcome; others are easily countered and dismissed. But some common defense tactics can be stopped in their tracks before a jury is even impaneled, with a powerful, but underused, tool: the motion in limine.

A motion in limine may be used to facilitate the admission of evidence, to limit what may be introduced into evidence, or to limit what a piece of evidence may be used for. The motion also may be used to exclude part or all of a defense expert's testimony. Use this tool preemptively to attack five common defense arguments, and you and your client will be in a better position before trial begins.

Unfavorable inference

In many jurisdictions, a defendant can argue that a plaintiff's failure to call a witness under his or her control permits an inference that the witness's testimony would have been unfavorable. (1) Under limited circumstances, a jury instruction may be given to this effect. (2)

A missing-witness instruction should not be given if the witness is equally available to both parties or if the plaintiff can provide a reasonable excuse for the failure to produce the witness. (3) These rules are especially helpful when you know you will not be calling one of the treating professionals in a case where the plaintiff suffered injuries that required continuous medical care.

In support of a motion in limine to block the defense's use of a missing-witness inference or instruction, argue that the defendant was aware that the plaintiff was seen by many doctors, nurses, and other health care professionals, any of whom could have been disclosed and subpoenaed by any party. (4) Point out that where the defendant has access to the same list of professionals who may have knowledge of the plaintiff's injuries, the plaintiff does not have an obligation to call each one. (5)

You can also argue that you have a reasonable excuse for not calling the witness. Explain to the court that calling every doctor or nurse as a witness would require extraordinary expense and involve the presentation of a good deal of cumulative testimony. (6)

Free services 

Defendants are responsible to the plaintiff for all damages proximately resulting from their negligent conduct. But what happens to that responsibility when the plaintiff has received free government services, which often are available for children and adults with disabilities?

Some states prohibit plaintiffs from recovering for "the value of services ... obtained without expense, obligation, or liability." (7) In those jurisdictions, the jury should not be asked to reduce the defendant's liability for future care based on the value of these services provided to the plaintiff in the past. (8) Defense arguments seeking such reductions generally are prohibited by the collateral source rule. (9) Also, they are improper because the value of free services expected in the future is uncertain.

You can use motions in limine to convince courts that evidence or argument regarding the value of these services should be prohibited. (10) For example, in Northern Trust Co. v. County of Cook, the defendants argued that the trial court had erred in barring evidence that free government services for handicapped children were available to the plaintiff and in refusing to instruct the jury as to the future availability of free services. The appellate court held that the evidence was properly excluded because "the availability and level of future free services is a matter of speculation." (11)

Similarly, in Alvis v. Henderson Obstetrics, S.C., the appellate court held that the trial court properly excluded evidence or testimony relating to the possible availability and level of future government benefits for a seriously-injured minor. (12)

The plaintiff may also receive free services--such as speech therapy, physical therapy, and occupational therapy-through public schools or other public agencies. The plaintiff's damages recovery should not be reduced by the value of these services because the defendant is not entitled to benefits or credits arising from the availability of programs it has not provided. (13)

Defendants will also typically argue that damages for future care should be lessened by the value of care that the plaintiff's family members may provide. This argument also is improper. (14) It assumes that family members have a legal duty to supply, at no cost, the future care and treatment a plaintiff may require. No such duty exists. Further, the plaintiff's family members may not always be capable of providing the necessary care, and these services cannot be guaranteed.

The courts of California, Nebraska, New Jersey, and North Carolina bar evidence of low-cost or free care. For example, in Cates v. Wilson, the North Carolina Supreme Court held that the collateral source rule precluded reducing the plaintiff's recovery because the plaintiff's expenses were paid by a source other than the defendant, such as the plaintiff's family. The court stated:

   Family members perform gratuitous services
   for their injured relative's benefit, not
   the tortfeasor's. As with other future benefits,
   forced dependence on these services,
   rather than the independence associated
   with a plaintiff made whole, is antithetical
   to the goal of damage awards in our tort system.
   Furthermore ... uncertainty characterizes
   the continued availability of gratuitous
   familial aid. (15)

Clearly, the defendant should not benefit when the plaintiff may have access to inexpensive or free services. The availability of these services in the future is speculative at best, and permitting the defendant to argue for a reduction of damages based on these services allows it to avoid compensating the plaintiff for its wrongdoing. Whenever the defense attempts this argument, you should file a motion in limine seeking to prohibit the introduction of such testimony.

Discounted costs

Defense counsel may seek to introduce testimony about the actual cost paid by the health insurer or state agency--rather than the amount billed by the hospital or health care provider for the plaintiff's care. The defendant's lawyer will argue that the amount the insurer paid is the true measure of damages because the plaintiff was never obligated to pay the full amount billed and that allowing damages greater than the amount the plaintiff was obligated to pay constitutes a windfall. (16)

In many states, any discount obtained by the plaintiff or on behalf of the plaintiff as a result of insurance coverage for health care benefits cannot be introduced as evidence. (17) Thus, a plaintiff may recover as damages the entire amount billed for medical services.

In Arthur v. Catour, for example, the Illinois Supreme Court acknowledged that the purpose of compensatory tort damages is to compensate the plaintiff for his or her injuries and not to bestow a windfall. The court noted, however, that "discounted" medical bills are a consequence of large insurance companies' ability to negotiate favorable costs for their insureds; the uninsured are charged the full price.

The court concluded that, if the plaintiff receives damages in an amount greater than the cost the insurer paid, it is a benefit of his or her contract with the insurer that does not flow to the defendants. (18)

A defendant should not benefit from the plaintiff's ability to secure a good deal with his or her insurer. You should argue in motions in limine that the defendant does not deserve such a windfall.

Investment income

Defendants often argue that the plaintiff could invest a damages award and live off the interest for the rest of his or her life, so a large award for future income is unnecessary. However, it is improper for the defendant to introduce evidence pertaining to potential interest earnings from a damages award. (19) This argument invites the jury to make either an additional reduction in sums already reduced to present cash value by expert witnesses or an improper reduction in sums that should not be reduced to present cash value--such as damages for pain and suffering. (20)

In American National Bank & Trust Co. v. Peoples Gas Light & Coke Co., the Illinois Appellate Court held that defense counsel's closing argument, which made this assertion about interest income, was improper. The court ruled that the closing "improperly told the jury that [the] plaintiff could invest the sum at 5 percent interest and receive $6,000 per year, which would accommodate her for life and leave the principal intact." (21)

Use a motion in limine supported by case law to convince the court that the defendants should not be allowed to introduce evidence of interest income on a plaintiff's damages award.

Present value

Another typical defense tactic is to claim that the plaintiff's future medical care costs and lost income should be reduced to their present cash value. During discovery, defense counsel may attempt to identify expert witnesses to discuss the use of an annuity to fund the plaintiff's future care costs and lost wages.

In several jurisdictions, annuity testimony is admissible as relevant to the jury's consideration of the present cash value of future damages. For example, in Cornejo v. Washington, the Washington appellate court approved the admission of annuity cost testimony to counter the plaintiff's evidence of damages. (22) In Southlake Limousine & Coach, Inc. v. Brock, the Indiana appellate court held that a party should be permitted to question experts regarding alternative means of formulating the present value of damages. (23)

But many variables, including time limits and market factors, affect the quote that an annuitist delivers to the jury. These factors not only make testimony about the cost of an annuity speculative, but they also raise questions about its potential to mislead the jury. (24) Finally, where the insurance broker relies on final quotations from outside sources, the broker cannot be cross-examined effectively as to the basis and legitimacy of his or her testimony.

In some states, annuity testimony is inadmissible because the cost of an annuity does not comply with state law for calculating future lost income or medical expenses. In Illinois, for example, the Illinois Pattern Jury Instructions address how the jury should calculate the present cash value of future damages, such as medical care expenses and lost income. (25)

Juries are directed to determine the amount of money needed immediately, and the amount necessary at the present time to produce an amount that will cover expenses when they are incurred in the future. The jury is not instructed to select an insurance annuity contract that the plaintiff must purchase. (26) Further, the cost an insurance company chooses to charge for an annuity contract has nothing to do with the present value of the plaintiff's future damages as defined by Illinois law. (27)

Following these strategies with motions in limine will avoid unfavorable inferences about witnesses not called and free services the plaintiff received. It also will prevent the jury from hearing inadmissible and prejudicial evidence about free services, discounted costs, or annuity income, which will make it much more likely that the jury's award of damages will fully compensate the plaintiff for his or her injury.

Notes

(1.) See e.g. Santucci Constr. Co. v. Co. of Cook, 315 N.E.2d 565, 570-71 (Ill. App. 1974). Whether that inference can be drawn depends on the posture of a particular case and the state of evidence. See e.g. Brownlie v. Kanzaki Specialty Papers, Inc., 691 N.E.2d 953,962 (Mass. App. 1998).

(2.) See Hawkey v. Peirsel, 869 A.2d 983, 986-89 (Pa. Super. 2005) ; see also Shaffner v. Chi. & N. W. Transp. Co., 541 N.E.2d 643, 652 (Ill. 1989).

(3.) Terry v. State, 668 So. 2d 954, 963 (Fla. 1996); Barkett v. Gomez, 908 So. 2d 1084, 1087 (Fla. App. 2005); Antol v. Chavez-Pereda, 672 N.E.2d 320, 325 (Ill. App. 1996) (citing Chiricosta v. Winthrop-Broen, 635 N.E.2d 1019,1037 (Ill.App. 1994)); but see Grove v. Overby, 2004 WL 1686326 at *9 (Tex. App. July 29, 2004) ("The right to comment on the failure to call a witness does not grow out of the availability of the witness but out of the witness's relationship with the other party.... [F]ailure to present testimony from any ... treating health care providers is a legitimate matter for argument."). In some states, such as Pennsylvania, "it is the inference itself that is prohibited, whether it comes from opposing counsel or the court in its instructions." Bennett v. Sakel, 725 A.2d 1195, 1196 (Pa. 1999) (emphasis in original).

(4.) See e.g. Bunton v. Ill. C. R.R. Co., 146 N.E.2d 205, 212 (Ill. App. 1957); see also Antol, 672 N.E.2d at 325-26.

(5.) Smith v. Covell, 161 Cal. Rptr. 377, 382-83 (Cal. App. 1980); Bunton, 146 N.E.2d at 212; see also Cooper v. Am. Fam. Mut. Ins. Co., 1999 WL 717632 at *3 (Iowa App. Sept. 15, 1999); Bella v. Turner, 30 S.W.3d 892, 897 (Mo. App. 2000); but see Patton v. Lemoine, 776 So. 2d 513, 517-18 (La. App. 2000) (finding that erroneous jury instruction on adverse presumption for failure to call all health care providers is not reversible error).

(6.) See Santucci Constr. Co., 315 N.E.2d at 571.

(7.) See e.g. Peterson v. Lou Bachrodt Chevrolet Co., 392 N.E.2d 1, 5 (Ill. 1979).

(8.) See 22 Am. Jur. 2d Damages [section] 206 (2007); Mineiko v. Rizzuto, 212 N.E.2d 712, 714 (Ill. App. 1st Dist. 1965).

(9.) See 22 Am. Jur. 2d Damages [section] 392 (2007); Fear v. Smith, 539 N.E.2d 1297, 1302 (Ill. App. 1989).

(10.) See e.g. N. Trust Co. v. Co. of Cook, 481 N.E.2d 957,960 (Ill. App. 1985); but see Fla. Physician's Ins. Reciprocal v. Stanley, 452 So. 2d 514, 51516 (Fla. 1984).

(11.) N. Trust Co., 481 N.E.2d at 960.

(12.) 592 N.E.2d 678, 685 (Ill. App. 1992).

(13.) See e.g. Phelan v. Santelli, 334 N.E.2d 391, 398 (Ill. App. 1975).

(14.) Cf. id.

(15.) 361 S.E.2d 734, 739 (N.C. 1987); see also Hanif v. Hous. Auth., 246 Cal. Rptr. 192, 197-98 (Cal. App. 1988) (finding that it was improper to allow defense counsel to suggest that parents must provide home health care to the minor child injured by a defendant's negligence); Bandel v. Friedrich, 584 A.2d 800 (NJ. 1989) (finding that the defendant's argument that the plaintiff's mother could care for the plaintiff free of charge in the future was properly excluded because a tortfeasor may not benefit from gratuitous care rendered by a family member).

(16.) See Mitchell v. Haldar, 883 A.2d 32 (Del. 2005).

(17.) See e.g. Arthur v. Catour, 833 N.E.2d 847 (Ill. 2005). Other jurisdictions in agreement include Delaware and Virginia. See Mitchell, 883 A.2d at 32; Radvany v. Davis, 551 S.E.2d 347, 34748 (Va. 2001).

(18.) Arthur, 833 N.E.2d at 851-53.

(19.) See e.g. Green v. USAA Cas. Ins. Co., 754 So. 2d 774, 775 (Fla. App. 2000) (per curiam); Shaffner, 541 N.E.2d at 653; see also Am. Natl. Bank & Trust Co. v. Peoples Gas Light & Coke Co., 191 N.E.2d 628,638-39 (Ill. App. 1963).

(20.) Shaffner, 541 N.E.2d at 652-53.

(21.) Am. Natl. Bank, 191 N.E.2d at 639.

(22.) 788 P.2d 554, 563 (Wash. App. 1990).

(23.) 578 N.E.2d 677, 684-85 (Ind. App. 1991).

(24.) See e.g. Mercer v. Vanderbilt U., Inc., 134 S.W.3d 121, 133-34 (Tenn. 2004).

(25.) See Ill. Pattern Jury Instr. 34.01, 34.02.

(26.) See e.g. Richardson v. Chapman, 676 N.E.2d 621, 628-29 (Ill. 1977).

(27.) See e.g. Wingo ex rel. Wingo v. Rockford Meml. Hosp., 686 N.E.2d 722, 731-32 (Ill. App. 1997); Singh v. Air Ill., Inc., 520 N.E.2d 852, 856-57 (Ill. App. 1988).

KEVIN G. BURKE practices at Burke Mahoney & Wise in Chicago. He may be reached at [e-mail].