Thursday, September 29, 2016

Cross-Examination of Life Care Planning Expert on Affordable Care Act Precluded by Collateral Source Rule

In his recent decision in the case of Bernheisel v. Mikaya, No. 3:13-cv-01496 (M.D. Pa. Aug. 9, 2016 Mariani, J.), Judge Robert D. Mariani addressed a number of Pre-Trial Motions in Limine filed by Defendants in this medical malpractice action including a request for a bifurcation of trial and motions seeking to preclude and limit medical expense and future economic damages claims.  

The Opinion is notable with respect to Judge Mariani’s recitation and application of Federal Rule of Civil Procedure 42(b) pertaining to motions to bifurcate trials.   Here, the Defendants requested a bifurcation of the liability issues from the damages issues.   Using his broad discretion on the matter, Judge Mariani denied this motion.  

With regards to the Motions pertaining to the economic damages claims, Judge Mariani ruled, in part, that he would defer ruling on the Defendant’s Motions relative to the Plaintiff’s medical cost claims until the time of trial.   The Court did generally note that Pennsylvania law requires the Plaintiff to produce evidence which establishes this type of claim with reasonable certainty and does not require the Plaintiff to establish a precise amount of damages.  

The Defendants also sought the permission of the court to cross-examine the Plaintiff’s life care planning experts on the future medical expenses claims by crossing the expert and introducing evidence pertaining to Medicaid, Medicare, and the Affordance Care Act.  

Judge Mariani, citing, in part, to the case of Deeds v. University of Pennsylvania Medical Center, noted that the collateral source rule precludes counsel from pursuing certain inquiries, including raising an individual’s access to Medicare, Medicaid, and benefits under the Affordance Care Act when opposing a future medical expenses claim.  

As such, the court in Bernheisel precluded the defense from cross-examining the Plaintiff’s life care planning expert on these issues.  

Anyone desiring a copy of this decision may click this LINK.

To review the February 9, 2015 Tort Talk post on the Deeds v. University of Pennsylvania Medical Center case, which contains a Link to that decision, click HERE.

The prevailing Plaintiff’s attorney in this matter was Attorney Max Kennerly, Esquire of the Philadelphia law firm of Kennerly Loutey, LLC.  I send thanks to Attorney  Michael A. O’Donnell of the Kingston, Pennsylvania O’Donnell Law Offices for bringing this decision to my attention.   

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