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Doreen W. v. MWV Healthcare Assocs., Inc.

United States District Court, D. New Hampshire

April 5, 2013

Doreen W.
MWV Healthcare Assocs., Inc., et al

For Doreen W.B., Individually and as Parent of Minor Son A. D. by next friend A. D., Plaintiff: David P. Slawsky, Nixon Raiche Vogelman Barry & Slawsky PA, Manchester, NH.

For MWV Healthcare Assoc., Inc., Memorial Hospital, Defendants: Alan B. Rindler, Daniel R. Sonneborn, Rindler Morgan PC, Boston, MA.

For Rita Kostecke, MD, Defendant: Peter A. Meyer, LEAD ATTORNEY, Sulloway & Hollis, Concord, NH.


Joseph N. Laplante, United States District Judge.

Page 195


The plaintiff, proceeding pseudonymously on behalf of her minor son, " A.D.," has brought a medical malpractice claim against several providers who, she alleges, negligently failed to diagnose him with a brain tumor. Though the tumor was eventually identified and removed, the plaintiff alleges that, by that point, it " had grown substantially in size from the time it should have first been recognized and treated," leaving A.D. without sight in either eye. This court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity), because A.D. is a citizen of Maine, see id. § 1332(a)(c)(2), while the defendants are citizens of New Hampshire.

One of the defendants, Rita Kostecke, M.D., has filed two motions in limine seeking to exclude evidence at the upcoming trial. Kostecke seeks to exclude evidence of (1) the " face amount" of the medical bills allegedly necessitated by her negligence

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and (2) any " neuropsychological injury" to A.D. For the reasons set forth below, Kostecke's first motion in limine is denied, but her second motion in limine is granted (without prejudice to the plaintiff's ability to demonstrate the relevance of A.D.'s neuropsychological injury later in the proceedings).

Face amounts of medical bills

In her first motion in limine, Kostecke seeks to preclude the plaintiff from putting into evidence " the 'face amount' of medical expenses" as reflected in A.D.'s medical bills. Kostecke argues that " [t]he face amount of such bills represents only an arbitrary amount that the providers never expected would be paid, given their preexisting agreements with the insurers that they would accept significantly lesser sums as full compensation." In fact, Kotsecke states, " a significant portion ($32,319.14, representing 22%) of the face amount was neither incurred by the plaintiff nor paid by [her], her insurers, or any other" person. Thus, Kotsecke maintains, the amounts shown on A.D.'s medical bills are " unfairly prejudicial," requiring their exclusion under Rule 403 of the Federal Rules of Evidence.

As Kotsecke acknowledges, this court has repeatedly rejected similar arguments as " at odds with New Hampshire's collateral source rule." Reed v. Nat'l Council of Boy Scouts of Am., Inc., 706 F.Supp.2d 180, 190 (D.N.H. 2010); see also Herbst v. L.B.O. Holding, Inc., 783 F.Supp.2d 262, 267 (D.N.H. 2011); Bartlett v. Mut. Pharm. Co., 2010 DNH 125, 4; Aumand v. Dartmouth Hitchcock Medical Center, 611 F.Supp.2d 78, 90-92 (D.N.H. 2009); Williamson v. Odyssey House, Inc., 2000 DNH 238, 3. Under that rule, " 'if a plaintiff is compensated in whole or part for his damages by some source independent of the tort-feasor, he is still permitted to make full recovery against the tort-feasor.'" Aumand, 611 F.Supp.2d at 90 (quoting Williamson, 2000 DNH at 2 (further quotation marks omitted)).

In Reed, in fact, this court rejected--in a lengthy and detailed analysis discussing caselaw from New Hampshire as well as other jurisdictions--the argument that " the collateral source rule does not apply to charges billed but later 'written off' by a plaintiff's medical provider, since those amounts were never 'paid' by a collateral source or, indeed, anybody." 706 F.Supp.2d at 190-94. Kostecke argues that Reed, and the other decisions of this court that are in accord with it, " must be rejected as misapplying the collateral source rule to the difference between the billed amount and the paid amount for which neither the plaintiff nor anyone else was ever liable." As the court explained in Reed, however, " [t]his argument ignores the reality that, when a medical provider agrees to 'write-off' an amount it would otherwise charge, that confers just as much of a benefit on the plaintiff (and, if disallowed as a measure of damages, would in fact confer just as much of a benefit on the defendant) as if the 'written off' amount had been paid by a third party." Id. The collateral source rule, of course, " applies to all benefits the plaintiff ...

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