Evans v. Thobe , 195 Ohio App. 3d 1 ( 2011 )

[Cite as Evans v. Thobe, 195 Ohio App.3d 1, 2011-Ohio-3501.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
EVANS et al.,
Appellant, : C.A. CASE NO. 24283
v. : T.C. CASE NO. 2008 CV 2468
THOBE et al., : (Civil Appeal from
. Common Pleas Court)
Appellees. :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of July, 2011.
. . . . . . . . .
Lee C. Falke and Susan M. Brasier, for appellant.
Michael W. Sandner, attorney for appellees.
. . . . . . . . .
GRADY, Presiding Judge.
{¶ 1} This is an appeal from a final order granting a new trial
in a personal-injury action on the motion of the
defendants-appellees pursuant to Civ.R. 59. We find that the trial
court abused its discretion in granting their motion.
Accordingly, the order from which the appeal is taken will be
reversed and vacated.
{¶ 2} On August 4, 2006, plaintiff, 18-year-old Linzie Evans,
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suffered a detached retina in her right eye while participating
in a sports training program at the University of Dayton when a
stretch band on an exercise device broke and struck her right eye.
Surgery was performed to repair the detachment, but Evans’s vision
remains permanently impaired.
{¶ 3} Evans and her parents, plaintiffs-appellants, commenced
an action on claims for negligence and loss of consortium against
the University of Dayton and Mark Thobe, who had supervised Evans’s
training when her injury occurred. Evans claimed losses arising
from past and future medical expenses, impaired vision, and the
value of a college volleyball scholarship for which she was in
training.
{¶ 4} Shortly before trial, the plaintiffs filed a motion in
limine asking the court to exclude evidence of any health-insurance
benefits Evans received for her medical costs and/or contractual
write-offs or adjustments to their bills that her medical providers
accepted. The plaintiffs argued that such evidence is subject
to exclusion pursuant to R.C. 2315.20 when the source of the
benefits maintains a right of subrogation. Defendants filed no
response. The parties agree that the court granted the motion
in limine.1
1
No written judgment appears in the docket and journal
entries, and no transcript was filed.
3
{¶ 5} The matter proceeded to trial. On August 7, 2009, the
jury returned a verdict for Evans in the amount of $96,477. In
a jury interrogatory, the jury found that Evans’s compensatory
damages for her economic loss is $46,477 and that her compensatory
damages for her noneconomic loss is $50,000. In that same
interrogatory, the jury found that Evans’s parents suffered no
losses on their consortium claims. On October 26, 2009, the court
entered judgment for Evans in the amount of $96,477, plus statutory
interest and court costs.
{¶ 6} On November 9, 2009, the defendants filed a combined
motion for new trial and/or motion for judgment notwithstanding
the verdict. In support of their motion for a new trial, and with
respect to the issue presented in this appeal, the defendants argued
that the trial court should have given a jury instruction that
defendants had requested pursuant to Robinson v. Bates, 112 Ohio
St.3d 17, 2006-Ohio-6362, which construed R.C. 2315.20 to permit
introduction of evidence of both the amount of an original medical
bill and any lesser amount the provider accepted as full payment,
but not evidence of a write-off. Plaintiffs filed a memorandum
in opposition.
{¶ 7} The trial court had not ruled on defendants’ motion when
on May 21, 2010, plaintiffs filed a supplemental memorandum in
opposition to defendants’ motion. Anticipating a possible adverse
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ruling based on the Ohio Supreme Court’s May 4, 2010 decision in
Jaques v. Manton, 125 Ohio St.3d 342, 2010-Ohio-1838, plaintiffs
argued that defendants could not benefit from Jaques because the
jury had heard no evidence of any write-offs or lesser amounts
that Evans’s medical providers accepted for their services.
Plaintiffs argued that it would be speculative to find an amount
the jury awarded for Evans’s medical costs absent a jury
interrogatory finding such an amount. Defendants filed a
memorandum in opposition to plaintiffs’ supplemental memorandum.
{¶ 8} On September 28, 2010, the trial court granted
defendants’ motion for a new trial. The court’s written decision
and judgment states:
{¶ 9} “By recent decision, the Ohio Supreme Court has,
illogically, in this writer’s opinion, disregarded the plain
language of R.C. 2315.20, and ruled that a tortfeasor may introduce
evidence of any reduced amount payable as a benefit on behalf of
the plaintiff in spite of there being a contractual right of
subrogation by the insurer from the plaintiff. Jaques v. Manton,
2010-Ohio-1838, 125 Ohio St.3d 342. This decision was released
May 4, 2010, and the result of this decision mandates that the
motion for a new trial be granted, since this court disallowed
evidence of the write-offs by the medical providers, and that error
is prejudicial and casts doubt on the jury’s verdict.”
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{¶ 10} Evans filed a notice of appeal from the order granting
defendants’ motion.
ASSIGNMENT OF ERROR
{¶ 11} “Because defendants failed to request a jury
interrogatory to determine what, if anything, the jury awarded
to compensate plaintiff for her medical bills, defendants failed
to preserve the issue, and the trial court erred in granting a
new trial.”
{¶ 12} R.C. 2315.20(A) states:
{¶ 13} “In any tort action, the defendant may introduce
evidence of any amount payable as a benefit to the plaintiff as
a result of the damages that result from an injury, death, or loss
to person or property that is the subject of the claim upon which
the action is based, except if the source of collateral benefits
has a mandatory self-effectuating federal right of subrogation,
a contractual right of subrogation, or a statutory right of
subrogation or if the source pays the plaintiff a benefit that
is in the form of a life insurance payment or a disability payment.
However, evidence of the life insurance payment or disability
payment may be introduced if the plaintiff’s employer paid for
the life insurance or disability policy, and the employer is a
defendant in the tort action.” (Emphasis added.)
{¶ 14} The common-law collateral-source rule excludes
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evidence of payments in compensation for claimed losses that a
plaintiff received from other sources. R.C. 2315.20(A) creates
an exception to the common-law collateral source rule. However,
per that section, the exception does not apply when “the source
of collateral benefits has a * * * contractual right of subrogation
* * *.”
{¶ 15} In Jaques v. Manton, the Supreme Court explained:
{¶ 16} “The subrogation exception will generally prevent
defendants from offering evidence of insurance coverage for a
plaintiff’s injury, because insurance agreements generally include
a right of subrogation. The defendant would then be liable for
the full cost of the plaintiff’s medical expenses, even though
those expenses have been paid by insurance. The plaintiff does
not receive a windfall payment, however, because the insurer has
subrogation rights to recover any expenses it has already paid.
This appropriately leaves the burden of medical expenses on the
tortfeasor. If there is no right of subrogation, then any recovery
for expenses paid by a third party that have benefitted the
plaintiff would remain with the plaintiff, resulting in a
windfall.” Jaques, 125 Ohio St.3d 342, 2010-Ohio-1838, ¶ 10.
{¶ 17} It happens, not infrequently, that health-care
providers agree to accept from insurers an amount substantially
less than the face amount of the providers’ bills as payment in
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full for the cost of services provided. In Jaques, after observing
that R.C. 2315.20(A) concerns only “evidence of any amount payable
as a benefit to the plaintiff,” the Supreme Court held that R.C.
2315.20(A) does not exclude evidence of write-offs because
“[w]rite-offs are amounts not paid by third parties, or anyone
else, so permitting introduction of evidence of them allows the
fact-finder to determine the actual amount of medical expenses
incurred as a result of the defendant’s conduct. This result
supports the traditional goal of compensatory damages -- making
the plaintiff whole.” Id. at ¶ 12.
{¶ 18} Of course, for purposes of the simple mathematical
operation of subtraction, the amount written off is the subtrahend
which, when deducted from the minuend of the face amount of the
provider’s bill, reveals the lesser amount the collateral source
paid. R.C. 2315.20(A) applies the collateral-source rule to
exclude evidence of that lesser amount when the source of the
payment is subrogated on the plaintiff’s claim. Jaques permits
a defendant who would benefit from proof of any lesser amount that
was paid to introduce evidence demonstrating what that lesser
amount was, circumstantially, through direct evidence of the amount
written off, even when the insurer is subrogated on the plaintiff’s
claim.
{¶ 19} But we digress. Our concern is not the Supreme Court’s
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ardent embrace of textualism. Our concern is whether, on the
record before it, the trial court abused its discretion when it
granted defendants’ Civ.R. 59 motion for a new trial.
{¶ 20} Civ.R. 59(A) sets out nine grounds in which a new trial
may be ordered. Paragraph nine allows the court to order a new
trial for an “[e]rror of law occurring at the trial and brought
to the attention of the trial court by the party making the
application.” In their motion for new trial, as supplemented,
defendants argued that the trial court committed an error of law,
per Jaques, when the court excluded evidence of amounts Evans’s
medical providers had written off from their bills when they
accepted lesser amounts as payment in full.
{¶ 21} The error that defendants’ motion alleged had its
origin in the motion in limine that the trial court granted prior
to trial. Plaintiffs asked the court to exclude evidence of
collateral benefits that Evans received from her health-care
insurer, which was subrograted on Evans’s claim against defendants,
as well as any write-offs from the face amount of the provider’s
bills pursuant to R.C. 2315.20(A). The record does not contain
a judgment entry by the court granting the motion. Neither do
we have a transcript showing that the motion was granted. The
parties nevertheless agree that the motion was granted, and we
will therefore proceed on a finding that it was.
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{¶ 22} An order granting or denying a motion in limine is a
tentative, preliminary, or presumptive ruling about an evidentiary
issue that is anticipated but has not yet been presented in its
full context. State v. White (1982), 6 Ohio App.3d 1. “When the
court grants the motion in limine, the proponent must proffer the
rejected evidence when it would be admissible to preserve any
error.” Markus, Trial Handbook for Ohio Lawyers (2005), Section
31:7. That requirement is consistent with Evid.R. 103(A)(2),
which provides that error may not be predicated upon a ruling that
excludes evidence unless “the substance of the evidence was made
known to the court by offer or was apparent from the context within
which questions were asked. Offer of proof is not necessary if
evidence is excluded during cross-examination.”
{¶ 23} The parties agree that defendants proffered evidence
that they would have been able to introduce but for the court’s
liminal order. However, we are not provided a transcript of the
evidentiary proceedings at trial that demonstrate what those
proffers concerned2 -- that is, any lesser amounts that were paid
to medical providers or the amounts the providers wrote off from
their bills. Neither do we know the amount of any medical bills
offered by Evans as proof of that element of her economic losses.
2
We have a partial transcript containing the jury
instructions and related proceedings.
10
{¶ 24} Defendants argue that Evans opened the door to proof
of any write-offs or lesser amounts paid when Evans asked her expert
whether the amount of her medical bills was reasonable. That could
have opened the door, but the door had been locked by the liminal
order. Therefore, no evidence of any write-offs or lesser amounts
paid was put before the jury. Defendants’ argument that the court
should have instructed the jury that it could consider such matters
is unavailing, because, absent evidence of those matters, there
was no evidence of lesser payments accepted or write-offs allowed
that the jury could consider.
{¶ 25} Defendants might have filed a notice of appeal from
the judgment for $96,477 that the court entered in favor of Evans.
Instead, defendants took a different tack and filed a Civ.R. 59(A)
motion for new trial, claiming that the ruling constituted an error
of law. As we earlier pointed out, paragraph nine of Civ.R. 59
authorizes the trial court to order a new trial for an “[e]rror
of law occurring at the trial and brought to the attention of the
trial court by the party making the application.” The trial court
presumably relied on that provision when it found that, per Jaques,
it misapplied R.C. 2315.20(A) to exclude evidence of contractual
write-offs by Evans’s medical providers.
{¶ 26} Civ.R. 61 states:
{¶ 27} “No error in either the admission or the exclusion of
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evidence and no error or defect in any ruling or order or in anything
done or omitted by the court or by any of the parties is ground
for granting a new trial or for setting aside a verdict or for
vacating, modifying or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”
(Emphasis added.)
{¶ 28} In commenting on Civ.R. 59(9), the authors of Baldwin’s
Ohio Civil Practice write:
{¶ 29} “The only time that error is grounds for the granting
of a new trial is when the error is prejudicial to the moving party
in a substantial way.* * * ‘In order for a party to secure relief
from a judgment by way of new trial, he must not only show some
error but must also show that such error was prejudicial.’* * *.”
{¶ 30} Baldwin’s Ohio Civil Practice, Section 59:6, quoting
Morgan v. Cole (1969), 22 Ohio App.2d 164, 166.
{¶ 31} The authors of Baldwin’s also cite a decision of this
court, Fada v. Information Sys. & Networks Corp. (1994), 98 Ohio
App.3d 785, with respect to the degree of prejudice resulting from
such an error. We wrote:
{¶ 32} “The existence of error does not require a disturbance
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of the judgment unless the error is materially prejudicial to the
complaining party. McQueen v. Goldey (1984), 20 Ohio App.3d 41,
20 OBR 44, 484 N.E.2d 712. Pursuant to Civ.R. 61, the error must
affect the substantial rights of the complaining party or
substantial justice must not have been done. It is well
established that errors ‘will not be deemed prejudicial where their
avoidance would not have changed the result of the proceedings.’
Walters v. Homberg (1914), 3 Ohio App. 326, syllabus, Surovec
v. LaCouture (1992), 82 Ohio App.3d 416, 612 N.E.2d 501.” Id.At 792.
{¶ 33} The inquiry that Civ.R. 61 requires is retrospective
from the judgment that was entered and in relation to the error
of law that occurred. It is the burden of the party who moves
for a new trial to demonstrate the degree of prejudice required.
A defendant who urges that evidence of collateral-source payments
that could have diminished the amount of a verdict should have
been admitted has the burden to prove the amount of such payments,
and jury “interrogatories are the most efficient and effective
method, if not the only method, by which to determine whether the
collateral benefits to be deducted are within the damages actually
found by the jury.” Buchman v. Wayne Trace Local School Dist.
(1995), 73 Ohio St.3d 260, 270.
{¶ 34} Interrogatories were submitted wherein the jury
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divided its general verdict of $96,477 in favor of Evans, awarding
$46,477 for economic losses and $50,000 for noneconomic losses.
No interrogatory was submitted, and none was requested, asking
the jury to identify what part of its award for economic losses
was for Evans’s past and/or future medical expenses.
{¶ 35} The trial court instructed the jury that Evans’s
economic loss includes “[a]ll expenditures for medical care or
treatment or other care or treatment, services, products, or
accommodations incurred as a result of her injury.” As the party
that would challenge the reasonableness of the medical expenses
Evans claimed, it was defendant’s obligation to request an
interrogatory showing what award, if any, the jury made on that
claim, in order to show that defendants were prejudiced by the
court’s liminal order.
{¶ 36} Defendants argue that the interrogatories that were
submitted were in accordance with Ohio Jury Instructions Section
315.01, as amended following the passage of S.B. 80 in 2005, which
relieved the court of the duty imposed by Fantozzi v. Sandusky
Cement Prods. Co. (1992), 64 Ohio St.3d 601. Fantozzi held that
when a plaintiff in a personal-injury action claims a resulting
inability to perform usual activities, the jury must be instructed
that “any amount of damages awarded to the plaintiff for pain and
suffering must not be awarded again as an element of damages for
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the plaintiff’s inability to perform usual activities.” Id., 618.
That rule and the particular prohibition against duplicative
awards it involves has nothing to do with Evans’s claims for medical
expenses. Neither does Ohio Jury Instructions Section 315.01
refer to interrogatories. Defendants’ contention is feckless.
{¶ 37} On this record, we hold that the trial court abused
its discretion when it ordered a new trial by granting defendants’
motion. Interrogatories were submitted to the jury, from which
it found that Evans’s compensatory damages for her economic losses
were $46,477. The jury was not asked to find, and it did not find,
what part of the award of Evans’s economic losses represented
payments made to her medical providers. Absent that finding, it
would be purely speculative to suppose what amount of Evans’s
economic losses, if any, the jury awarded for the cost of medical
services Evans was provided. Absent that information, it cannot
be determined that defendants were materially prejudiced by not
being allowed to introduce evidence of any lesser amounts paid
and/or any write-offs by providers. It was defendants’ burden
to preserve the record to show material prejudice necessary for
its motion for a new trial. Civ.R. 61; Fada, 98 Ohio App.3d 785.
Defendants failed to satisfy that duty.
{¶ 38} The assignment of error is sustained. The order from
which the appeal is taken will be reversed and vacated.
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Judgment accordingly.
FROELICH, J., concurs.
DONOVAN, J., concurs in judgment only.