Virginia Trial Lawyers Association Annual ConventionMarch 2015 n The Greenbrier

Proving No Economic Damages

Kevin T. Hadden

Proving No Economic Damages

1. Legal Basis-

a. Virginia Rules of Evidence

i. VRE 2:401

1. Definition of Relevant Evidence

a. "Relevant evidence" means evidence having any

tendency to make the existence of any fact in

issue more probable or less probable than it

would be without the evidence.

ii. VRE 2:402

1. Relevant Evidence Generally Admissible; Irrelevant

Evidence Inadmissible

a. (a) General Principle. All relevant evidence is

admissible, except as otherwise provided by the

Constitution of the United States, the Constitution

of Virginia, statute, Rules of the Supreme Court of

Virginia, or other evidentiary principles. Evidence

that is not relevant is not admissible.

iii. VRE 2:403

1. Exclusion of Relevant Evidence on Grounds of Prejudice,

Confusion, Misleading the Jury, or Needless Presentation

of Cumulative Evidence

b. Payne v. Wyeth, Inc. - Civil No. 2:08cv119, 2008 U.S. Dist. LEXIS

91849,2009 WL 4890760 (E.D. Va 2008)

i. Personal Injury in which the Plaintiff's attorney sought to

introduce the amount of medical bills despite the plaintiffs

bankruptcy

ii. Defendant filed a motion in limine to exclude the plaintiffs

medical bills

iii. The court consideredthe issue on several grounds, including

whether the Plaintiff could introduce the bills to prove non­

economic damages

iv. The Eastern District relied on reasoning from a Pennsylvania

case that noted:

1. "It is immediately apparent that there is no logical or

experiential correlation between the monetary value of

medical services required to treat a given injury and the

quantum of pain and suffering endured as a result of

that injury. First, the mere dollar amount assigned to

medical services masks the difference in severity

between various types of injuries. A very painful injury

may be untreatable, or, on the other hand, may require

simpler and less costly treatment than a less painful one.

The same disparity in treatment may exist between

different but equally painful injuries. Second, given

identical injuries, the method or extent of treatment

sought by the patient or prescribed by the physician may

vary from patient to patient and from physician to

physician. Third, even where injury and treatment are

identical, the reasonable value of that treatment may

vary considerably depending upon the medical facility

and community in which care is provided and the rates

of physicians and other health care personnel involved.

Finally, even given identical injuries, treatment and cost,

the fact remains that pain is subjective and varies from

individual to individual."

v. Accordingly, the court ruled the medical bill amounts

inadmissible pursuable to FREs 401 & 402, equitable to VREs

2:401 & 2:402

vi. The court further reasoned that even if the medical bill

amounts were relevant to prove pain and suffering, they were

inadmissible under FRE 403 (equitable to VRE 2:403)

1. Jury confusion-

a. jury may not understand why they are being

shown amounts for medical bills that are not

being proven as damages

b. medical bills often contain medical terminology in

imprecise terms

2. Cumulative-

a. Whatever probative value they have to prove pain

and suffering can be established by other, more

probative evidence from the Plaintiff and his

doctors

c. Virginia Model Jury Instruction 9.000

i. If you find your verdict for the plaintiff, then in determining

the damages to which he is entitled, you shall consider any of

the following which you believe by the greater weight of the

evidence was caused by the negligence of the defendant:

1. (1) any bodily injuries he sustained and their effect on

his health according to their degree and probable

duration;

2. (2) any physical pain and mental anguish he suffered

in the past and any that he may be reasonably expected

to suffer in the futu re;

3. (3) any disfigurement or deformity and any

associated humiliation or embarrassment;

4. (4) any inconvenience caused in the past and any that

probably will be caused in the future;

5. (5) any medical expenses incurred in the past and any

that may be reasonably expected to occur in the future

6. (6) any earnings he lost because he was unable to

work at his calling;

7. (7) any loss of earnings and lessening of earning

capacity, or either, that he may reasonably be expected

to sustain in the future;

8. (8) any property damage he sustained.

ii. Your verdict shall be for such sum as will fully and fairlycompensate the plaintiff for the damages sustained as a resultof the defendant's negligence.

2. Practical Basis-a. It is often what our clients want

i. How often do we have clients who are most impacted by thecosts they have incurred?

ii. Or rather, are they most impacted by what they and theirfamily have gone through?

b. It focuses the case on what is most importanti. Human health and happinessii. Those aspects of your client's life that changed, both

temporarily and permanentlyiii. The defendant's actions that caused these changesiv. The value of those losses to a human being

c. Helps sharpen our focusi. Obtain the relevant witnesses to our client's non-economic

lossesii. Develop a relationship with the client that helps us truly

understand their non-economic losses and communicate thoseto a jury

iii. Develop the link between the medical treatment and thestruggles of our client, rather than focusing on the medicaltreatment and the link to the medical bills

3. Other considerations-a. Case by case basisb. May alter your view of what you consider a General District Court

case versus a Circuit Court casec. Insurance carriers don't evaluate cases in the same fashiond. You will develop a "reputation"

RULES OF SUPREME COURT OF VIRGINIAPART TWO

VIRGINIA RULES OF EVIDENCE

ARTICLE IV. RELEVANCY, POLICY, AND CHARACTER TRAIT PROOF

Rule 2:401 DEFINITION OF "RELEVANT EVIDENCE"

"Relevant evidence" means evidence having any tendency to make the existence of any factin issue more probable or less probable than it would be without the evidence.

Adopted and promulgated by Order dated Juue 1, 2012; effective July 1, 2012.

RULES OF SUPREME COURT OF VIRGINIAPART TWO

VIRGINIA RULES OF EVIDENCE

ARTICLE IV. RELEVANCY, POLICY, AND CHARACTER TRAIT PROOF

Rule 2:402 RELEVANT EVIDENCE GENERALLY ADMISSffiLE;IRRELEVANT EVIDENCE INADMISSIBLE

(a) General Principle. All relevant evidence is admissible, except as otherwise provided bythe Constitution of the United States, the Constitution of Virginia, statute, Rules of the SupremeCourt ofVirginia, or other evidentiary principles. Evidence that is not relevant is not admissible.

(b) Results of Polygraph Examinations. The results of polygraph examinations are notadmissible.

Adopted and promulgated by Order dated June 1,2012; effective July 1,2012.

RULES OF SUPREME COURT OF VIRGINIAPART TWO

VIRGINIA RULES OF EVIDENCE

ARTICLE IV. RELEVANCY, POLICY, AND CHARACTER TRAIT PROOF

Rule 2:403 EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OFPREJUDICE, CONFUSION, MISLEADING THE JURY, OR NEEDLESSPRESENTATION OF CUMULATIVE EVIDENCE

Relevant evidence may be excluded if:

(a) the probative value of the evidence is substantially outweighed by (i) the danger of unfairprejudice, or (ii) its likelihood ofconfusing or misleading the trier of fact; or

(b) the evidence is needlessly cumulative.

Adopted and promulgated by Order dated June 1,2012; effective July 1,2012.

Page 1

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®,...... LexisNexis®'20 of32 DOCUMENTS

AnalysisAs of: Mar 08, 20 IS

WESLEY DOYLE PAYNE, Plaintiff, v. WYETH PHARMACEUTICALS, INC.,Defendant.

Civil No. 2:08cv1l9

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFVIRGINIA, NORFOLK DIVISION

2008 U.S. DisL LEXIS 91849

November 12, 2008, DecidedNovember 12, 2008, Filed

SUBSEQUENT HISTORY: Motion denied by Payne v.Wyeth Pharms., Inc., 2008 U.S. Disr. LEXIS 91840 (E.D.Va., Nov. 12,2008)

CASE SUMMARY:

PROCEDURAL POSTURE: In a negligence actionbrought by plaintiff, defendant filed a motion in limine toexclude plaintiffs medical bills.

OVERVIEW: Plaintiff alleged that defendant'semployee negligently drove his automobile into plaintiffsautomobile, seriously injuring plaintiff. The debtor filedfor Chapter 7 bankruptcy protection. He listed some, butnot all, of his pre-bankruptcy petition medical bills. Thebankruptcy court discharged plaintiffs debt. In grantingdefendant's motion, the court held that plaintiffs medicalbills that were discharged in bankruptcy could not beintroduced into evidence to prove special damagesbecause the state's collateral source rule did not apply tobankruptcy discharges. The court also held that all of

plaintiffs pre-bankruptcy petition medical bills, whetherlisted or not listed, were excluded from evidence to provespecial damages because all of plaintiffs pre-bankruptcypetition debts, whether listed in the petition or not, weredischarged pursuant to 11 U.S.C.S. § 727. The court alsoheld that plaintiff could not introduce any of his medicalbills to prove pain and suffering damages because themedical bills were not relevant to pain and sufferingpursuant to Fed. R. Evid. 401, and even if the bills wererelevant, the medical bills were inadmissible pursuant toFed. R. Evid. 403.

OUTCOME: The court granted defendant's motion.

COUNSEL: [*1] For Wesley Doyle Payne, Plaintiff:Carlton F. Bennett, Craig Stewart Gill, Jr., LEADATTORNEYS, Bennett & Zydron PC, Virginia Beach,VA.

For Wyeth Pharmaceuticals, Inc., Defendant: RobertFrancis Redmond, Jr., LEAD ATTORNEY, Brendan

Page 22008 U.S. Dis!. LEXIS 91849, *1

David O'Toole, Williams Mullen, Richmond, VA; LindaS. Laibstain, Williams Mullen Hofheimer, Norfolk, VA;Robert Henry Burger, Williams Mullen, Virginia Beach,VA.

JUDGES: F. Bradford Stillman, UNITED STATESMAGISTRATE JUDGE.

OPINION BY: F. Bradford Stillman

OPINION

OPINIONAND ORDER

Plaintiff, Wesley Doyle Payne (I1Payne"), brings thisnegligence action against Defendant, WyethPhannaceuticals, Inc. ("Wyeth Pharmaceuticals"),alleging that Wyeth Pharmaceuticals is vicariously liablefor an automobile accident in which Payne was injured.Plaintiff seeks $ 25,000,000 in compensatory damages.Presently before the Court is Wyeth Pharmaceuticals'Motion In Limine To Exclude Plaintiffs Medical Bills.After considering the motion, counsel's accompanyingmemoranda, 1 and oral arguments before the Court onOctober 29, 2008, and for the reasons set forth herein, theCourt GRANTS Wyeth Pharmaceuticals' Motion InLimine to Exclude Plaintiffs Medical Bills.

1 The accompanying memoranda include Wyeth[*2] Pharmaceuticals Inc!s Memorandum InSupport of Motion in Limine to ExcludePlaintilrs Medical Bills ("Def.'s Mem. Supp."),Plaintiffs Memorandum in Opposition To WyethPhannaceuticars Motion In Limine To ExcludeMedical Bills ("PI.'s Mem. Opp'n"), and WyethPbarmaceuticals Inc's Reply In Support Of ItsMotion In Limine to Exclude Plaintiffs MedicalBills ("Def.'s Reply").

I. Facts and Procedural History

Payne's Complaint alleges that on or about January8, 2007, Wyeth Pharmaceuticals' employee, MichaelCharles Romano, negligently drove his automobile intoPayne's automobile. Compl. PP 5-6. Payne allegedly wasseriously injured, suffering, among other things, a severebrain injury that has left him permanently impaired.CompI. P 8. Payne has received treatment since theaccident from various medical providers. See PI. 's Mem.Opp'n Ex. 4 (listing various medical bills incurred by

Payne). Payne brought this diversity action against WyethPharmaceuticals on March 10, 2008, seekingcompensatory damages.

On October 8, 2007, Payne filed for Chapter 7bankmptcy protection in the United States BankmptcyCourt for the Eastern District of Virginia. See In reWesley Doyle Payne, No. 07-72297-FJS [*3] (Bankr.E.D. Va.). Payne filed a set of schedules with thebankmptcy court detailing his assets and liabilitiespursuant to II u.s.c. 521(a)(l)(B)(l). 2 In Schedule F,"CREDITORS HOLDING UNSECUREDNONPRIORlTY CLAIMS," Payne specifically lists hispre-bankmptcy petition medical bills. See Def.'s Mem.Supp. Ex. B. Schedule F lists $ 19,736.00 as "medicalbills." 3 Id. Wyeth Pharmaceutical alleges that Payne onlylisted some, but not all, of his pre-bankruptcy petitionmedical bills. See Def.'s Mem. Supp. 2. Specifically,Wyeth Pharmaceuticals alleges that Payne did not list $21,483.87 in medical expenses incurred prior to filing thebankruptcy petition. Jd. The bankruptcy court dischargedPayne's debt on April 7, 2008, In re Wesley Doyle Payne,No. 07-72297-FJS (Bankr. ED. Va.), almost one monthafter the instant lawsuit was filed.

2 The Court notes that Payne filed an amendedpetition for bankmptcy, which included anamended set of schedules, on January 11, 2008.All references herein are to the amended petitionand amended schedules.3 Payne argues that the amounts of certainentries in Schedule F do not accurately reflect thecorrect amount of discharged debt either becausePayne [*4J paid part of the medical bills prior todischarge or because the amount in the actualmedical bills was different from the amount listedin the schedule. See Pl.'s Mem. Opp'n 2-3 no. 3-9.This distinction, however, is not relevant to thedisposition of the instant motion.

Payne intends to introduce his medicalbills--including the medical bills discharged inbankmptcy--into evidence at trial. PI.'s Mem. Opp'n 2.On October 3, 2008, Wyeth Pharmaceuticals moved thisCourt in limine to exclude Payne's medical bills that weredischarged in bankmptcy because, WyethPhannaceuticals argues, Virginia's collateral source ruledoes not apply to bankruptcy discharges. WyethPhannaceuticals also argues that all of Payners medicalbills should be inadmissible to prove pain and suffering

Page 32008 U.S. Dis!. LEXIS 91849, *4

damages because the medical bills are not relevant toprove pain and suffering. Payne argues, in tum, thatVirginia's collateral source rule applies to bankruptcydischarges, and, therefore, the Court should deny WyethPharmaceuticals' motion. 4

4 Payne further argues that the Court shouldenter an order prohibiting Wyeth Pharmaceuticalsfrom mentioning any matters set forth in theinstant memoranda because discharging [*5] debtin bankruptcy is irrelevant to the instant case. TheCourt has disposed of that issue in a separateruling.

II. DISCUSSION

A. ADMISSIBILITY TO PROVE SPECIAL DAMAGES

Wyeth Pharmaceuticals argues that Payne's medicalbills that were discharged in bankruptcy cannot beintroduced into evidence to prove special damagesbecause Virginia's collateral source rule does not apply tobankruptcy discharges. Payne argues, in tum, that thecollateral sonrce rule applies to bankruptcy discharges.

i. The Collateral Source Rule as Virginia State Law

Generally, federal courts sitting in diversity applystate substantive law and federal procedural law. See,e.g., Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82L. Ed II88 (l938); Hottle v. Beech Aircraft Corp., 47F.3d 106, 109-10 (4th Cir. 1995). However, '''there arecircumstances in which a question of admissibility ofevidence is so intertwined with a state substantive rulethat the state rule ... will be followed in order to give fulleffect to the state's substantive policy.1I1 Hottle, 47 F.3d at110 (quoting DiAntonio v. Northampton-AccomackMemorial Hosp., 628 F.2d 287,291 (4th Cir. 1980). "Theapplication of the collateral source doctrine, while anevidentiary rule, [*6] is closely tied to state substantivepolicy, and thus is governed here by Virginia law."Mitchell v. Hayes, 72 F. Supp. 2d 635, 636-37 (W.D. Va.1999) (citing Hottle, 47 F.3d at IIO).

The Supreme Court of Virginia has expresslydeclined to rule upon the issue of whether the collateralsource rule applies to allow the introduction of evidenceof medical bills when those medical bills have beendischarged in bankruptcy. Barkley v. Wallace, 267 Va.369, 595 S.E.2d 271, 273 (Va. 2004) ("Thus, we are notpresented with and do not decide the question whether

evidence of medical bills is admissible to recover theamount charged for such treatment when a plaintiff hasobtained a discharge of those medical bills in bankruptcyproceedings. 11). Virginia Circuit Courts have split on theissue. A substantial majority of these courts have heldthat the collateral source rule does not apply to medicalbills that have been discharged in bankruptcy. See, e.g.,Choice v. Kruse, 57 Va. Cir. 13 (Va. Cir. Ct. 2001);Daniels V. Owens, 54 Va. Cir. 284 (Va. Cir. Ct. 2000);Morganthal V. Piper, 38 Va. Cir. 354 (Va. Cir. Ct. 1996);Walker v. Long, 57 Va. Cir. 419 (Va. Cir. Ct. 1993). Onlyone case has held to the contrary. [*7] See Dodd V. Lang,71 Va. Cir. 235 (Va. Cir. Ct. 2006). The issue is also oneof first impression in the Fourth Circuit. 5

5 One district court in this Circuit has held thatVirginia's collateral source rule applies to debtsdischarged in bankruptcy. See Hall V. Wal-MartStores, Inc., No. 4:05cv50, 2006 U.s. Dist. LEXIS98017 (WD. Va. Apr. 25, 2006) (order grantingmotion in limine). That court, however, did notprovide any written analysis in support of itsholding.

As a federal court sitting in diversity, the Court mustpredict how the state's highest court would resolve theissue when that court has not yet spoken on the issue. SeeLiberty Mut. Ins. Co. v. Triangle Industries, Inc., 957F.2d II53, II56 (4th Cir. 1992). In predicting thedecision of the staters highest court, this Court mayconsider, inter alia, decisions of lower state courts,canons of construction, restatements of the law, and"recent pronouncements of general rules or policies bythe state's highest court. II Id. For the reasons that follow,this Court holds that, pursuant to Virginia law, thecollateral source rule does not apply to medical bills thathave been discharged in bankruptcy and concludes thatthe Virginia Supreme Court would hold [*8] the same.

ii. The Collateral Source Rule

The collateral source rule is a "long-standingprinciple in Virginia tort lawn and provides that"'compensation or indemnity received by a tort victimfrom a source collateral to the tortfeasor may not beapplied as a credit against the quantum of damages thetortfeasor owes. 1lI Acuar v. Letourneau, 260 Va. 180, 531S.E.2d 316, 320 (Va. 2000) (quoting Schickling V.

Aspinall, 235 Va. 472, 369 S.E.2d 172, 174, 4 Va. LawRep. 2971 (Va. 1988)). "A person who is negligent andinjures another owes to the latter full compensation for

Page 42008 U.S. Dist. LEXIS 91849, *8

the injury inflicted, and payment for such injury from acollateral source in no way relieves the wrongdoer of theobligation." !d. (quotation omitted). In addition to"paymentsll and "indemnities,n the Supreme Court ofVirginia has also characterized the rule as including"benefits'! from a collateral source. See id. at 322("Rather, [the focal point of the rule] is whether a tortvictim has received benefits from a collateral source . . .,"). As such, the collateral source rule applies toinsurance payments, "social security benefits, public andprivate pension payments, unemployment and workers'compensation benefits, vacation and sick leaveallowances, and other payments [*9] made by employersto injured employees, both contractual and gratuitous. II

Schickling, 369 S.E.2d at 174. The Supreme Court ofVirginia has also held the rule to apply to medical billsthat a plaintiff's health care providers wrote off. Acuar,531 S.E.2d at 323.

iii. Plain Meaning

The plain meaning of the collateral source rulefavors not applying the rule to debts discharged inbankruptcy.

The very term "collateral source" implies theexistence of a third party. Cf Choice, 57 Va. Cir. at 13("First, as the Supreme Court [of Virginia] has stated, thefocal point of the rule is that the plaintiff receivedbenefits, e.g. compensation, indemnity or write off, froma third party."). "This rule historically has been applied inthe situation where a third party, such as an insurer,employer, family member, etc., acts on the plaintiffsbehalf. In the bankruptcy situation, however, no thirdparty as such benefits the plaintiff.!! Id.; see also Oliver v.Heritage Mutual1nsurance Company, 179 Wis. 2d 1, 505N. W.2d 452, 461 (Wis. 1993) (holding that, pursuant toWisconsin law, the Wisconsin collateral source rule doesnot apply to bankruptcy discharges because there is nothird party in a bankruptcy discharge). [*10] On thecontrary, debts discharged in bankruptcy areunrecoverable by operation of law. See 11 U.S C. §524(a)(2).

That the rule references "payments" and "benefits"further buttresses this point. Cf Walker, 57 Va. Cir. at419 (noting that lithe very term 'collateral source' impliesa source of payment!!). Even the one Virginia CircuitCourt to hold that the collateral source rule applies tobankruptcy discharges admitted that "a bankruptcy is not,by definition, a 'collateral source,' since there is no

collateral payment." Dodd, 71 Va. Cir. at 235.

iv. Purpose andPublic Policy

The purpose of the collateral source rule and publicpolicy also favor not applying the rule to debtsdischarged in bankruptcy.

As the Supreme Court of Virginia has stated:

The collateral source rule is designed tostrike a balance between two competingprinciples of tort law: (l) a plaintiff isentitled to compensation sufficient tomake him whole, but no more; and (2) adefendant is liable for all damages thatproximately result from his wrong. Aplaintiff who receives a double recoveryfor a single tort enjoys a windfall; adefendant who escapes, in whole or inpart, liability for his wrong enjoys awindfall. Because [*11] the law mustsanction one windfall and deny the other,it favors the victim of the wrong ratherthan the wrongdoer.

Schickling, 369 SE.2d at 174; see also Acuar, 531 S.E.2dat 322 (noting the "fundamental purpose of the rule" is"to prevent a tortfeasor from deriving any benefit fromcompensation or indemnity that an injured party hasreceived from a collateral source"). Normally, therefore,equity favors the innocent injured party over thetortfeasor.

This equitable balance, however, is upset in thebankruptcy context. Where the collateral source rule hastraditionally been applied-in the insurance andgovernmental benefits contexts, for instance-the collateralsource has previously agreed to provide compensation inthe event of an injury. The collateral source rule thereforeencourages people to obtain insurance. The rule alsoprovides for governmental benefits to be fullyappreciated because to do otherwise would be to punishthose the govermnent wished to help. Cf Wills V. Foster,229lll. 2d 393,892 NE.2d 1018, 1026-27, 1030-31, 323lll. Dec. 26 (lll. 2008) (arguing that not applying thecollateral source rule to Medicaid beneficiariesimproperly discriminates against the poor and disabled).Thus, important public [*12] policies are generallyfurthered when the collateral source rule is applied:insurance coverage is promoted and governmental

Page 52008 U.S. Dis!. LEXIS 91849, *12

regulatory regimes like worker's compensation,Medicare, Medicaid, and Social Security are fullyeffectuated. The thrust of the collateral source rule is toreward plaintiffs favored status prior to injury. CfWalker, 57 Va. Cir. at 419 (arguing that, under thecollateral source rule, plaintiffs windfall results from"plaintiffs status at the time of the accident or treatment II

and not "from an act of plaintiff taken after treatment w~srendered"); see also Restatement (Second) of Torts 920cmt. B (1979) ("If the plaintiff was himself responsiblefor the benefit, as by maintaining his own insurance or bymaking advantageous employment arrangements, the lawallows bim to keep it for himself.").

Applying the collateral source rule to debtsdischarged in bankruptcy would not result in the sarneequitable balance. First, applying the collateral sourcerule to debts discharged in bankruptcy may encouragebankruptcies. E.g., Walker, 57 Va. Cir. at 419 (arguingthat applying the collateral source rule in the bankruptcycontext "might encourage some plaintiffs to declare[*13] bankruptcy so that payment intended for medicalproviders could be transferred to the plaintiff instead");Choice, 57 Va. Cir. at 14 (adopting the Walker court'sreasoning). Such a tendency would be lIpoor publicpolicy." /d.; see also Oliver, 505 N. W,2d at 462 ("Itwould be poor public policy to encourage bankruptciesfor this purpose."); Olariu v. Marrero, 248 Ga. App. 824,549 S.E.2d 121, 124 (Ga. Ct. App. 2001) ("The secondreason for not extending the collateral source rule is thatto hold otherwise might encourage bankruptcy, which isnot consistent with public policy. ").

Second, allowing the collateral source rule to applyto an act by a plaintiff taken after the injury leads to otherpotential hazards. After an injury occurs, the injured partymay intend to bring a lawsuit to recover for his injuries.That potential lawsuit may thus be in mind when thefuture plaintiff files for bankruptcy protection. Indeed,damages from potential lawsuits are considered assets tobe listed in a bankruptcy schedule pursuant to II US. C. §52I(a) (1)(B) (I). See generally In re Alphin, 1997 WL33344251 (Bankr. D.S.C. Nov. 3, 1997) (acknowledgingthat a potential lawsuit is an asset pursuant to II Us.c. §52I(a)(I)(B) (I)). [*14] A plaintiff therefore has a strongincentive to "low-ball" the value of a potential lawsuit ona bankruptcy petition to prevent his or her creditors fromrecovering from the damages resulting from the potentiallawsuit. 6 When a plaintiff can thus take affirmative stepsafter the injury to ensure that there will be double

recovery if he or she succeeds in the lawsuit, equity nolonger favors a windfall for the plaintiff and the collateralsource rule should not apply.

6 In some situations, as here, the personal injurylawsuit was currently pending in this Court beforedisposition of Payne's bankruptcy petition.

v. Dodd v. Lang

This Court notes that the Virginia Circuit Court inDodd v. Lang, 71 Va. Cir. 235 (Va. Cir. Ct. 2006), cameto the opposite conclusion, finding that the collateralsource rule applies to debts discharged in bankruptcy.The Court, however, believes that the Supreme Court ofVirginia would agree with the holding in the instant case.First, Dodd worries that not applying the collateral sourcerule to debts discharged in bankruptcy would be unfairwhen the injury forced the injured party into bankruptcy.See id. That situation, however, does not appear to bebefore this [*15J Court. Second, and more importantly,Dodd notes that a court may impose a constructive trustupon damages a plaintiff recovers for discharged medicalbills to ensure the damages are forwarded to the medicalproviders. See id. Such a result would run counter toensuring the effectiveness of bankruptcy proceedingsbecause all of a debtor's creditors are required to be listedin the set of schedules pursuant to II U.s. C. §52I(a)(I)(B)(I). It is for the bankruptcy court, not a statecourt, to determine in its proceedings the assets andliabilities of the debtor and the settlement of the claims ofthe creditors. If that resolution is to be adjusted orquestioned, Congress has provided an adequate remedy inII Us.c. § 350(b), which provides that the bankruptcycourt may reopen the case. Cf Hawkins v. LandmarkFinance Co., 727 F.2d 324.326 (4th Cir. 1984) (holdingthat it is within the discretion of the federal bankruptcycourt to reopen a bankruptcy case).

vi. Discharged Medical Bills

Wyeth Pharmaceuticals argues that all of Payne'spre-bankruptcy petition debts, whether listed in thepetition or not, are discharged. "A discharge inbankruptcy relieves the debtor of personal liability [*16]for all pre-petition debts but those excepted under theBankruptcy Code." In re Rosenfeld, 23 F.3d 833. 836(4th Cir. 1994) (citing II US.c. § 727 (1993)). "Section727(b) provides that discharge releases a debtor frompersonal liability for allowed claims and debts 'that arosebefore the date of the [discharge]' unless that debt is

Page 62008 U.S. Dist. LEXIS 91849, *16

specifically excepted from discharge under 11 u.s. C. §523." Horizon Aviation of Virginia, Inc. V. Alexander,296 B.R. 380, 382 (Bankr. E.D. Va. 2003). Pre-petitiondebts that are not fraudulently incurred, whether listed inthe schedules or not, are discharged pursuant to Section727. Cf id. (holding the same for Chapter 7 no-assetcases). Therefore, the Court holds that all of Payne'spre-bankruptcy amended petition medical bills, whetherlisted or not listed, are excluded from evidence to provespecial damages.

B. ADMISSIBILITY TO PROVE PAIN ANDSUFFERING DAMAGES

Wyeth Pharmaceuticals further argues that Paynecannot introduce any of his medical bills to prove painand suffering damages because (I) the medical bills arenot relevant to pain and suffering pursuant to FederalRule a/Evidence 401 and (2) even if the medical bills arerelevant, the bills [*17] should nonetheless be excludedpursuant to Federal Rule of Evidence 403. Def.'s Mem.Supp. 8. Payne argued at the October 29, 2008 hearingthat the medical bills are relevant to prove pain andsuffering because they could corroborate the testimony ofPayne and his doctors, should they testify at trial.

Federal Rule of Evidence 401 defines I1relevantevidence" as llevidence having any tendency to make theexistence of any fact that is of consequence to thedetermination of the action more probable or lessprobable than it would be without the evidence." Allrelevant evidence is admissible unless otherwiseprohibited; irrelevant evidence is inadmissible. Fed. R.Evid. 402. Neither this Court nor the Fourth Circuit hasruled whether medical bills are relevant to prove pain andsuffering; therefore, the issue is one of first impressionbefore the Court.

The Court holds that the medical bills are notrelevant to pain and suffering. In reaching thisconclusion, the Court is persuaded by the analysis ofCarlson v. Bubash, 432 Po. Super. 514, 639 A.2d 458,462 (Pa. Super. Ct. 1994).7 As that court reasoned:

It is immediately apparent that there isno logical or experiential correlationbetween the monetary value [* 18] ofmedical services required to treat a giveninjury and the quantum of pain andsuffering endured as a result of that injury.First, the mere dollar amount assigned to

medical services masks the difference inseverity between various types of injuries.A very painful injury may be untreatable,or, on the other hand, may require simplerand less costly treatment than a lesspainful one. The same disparity intreatment may exist between different butequally painful injuries. Second, givenidentical injuries, the method or extent oftreatment sought by the patient orprescribed by the physician may vary frompatient to patient and from physician tophysician. Third, even where injury andtreatment are identical, the reasonablevalue of that treatment may varyconsiderably depending upon the medicalfacility and community in which care isprovided and the rates of physicians andother health care personnel involved.Finally, even given identical injuries,treatment and cost, the fact remains thatpain is subjective and varies fromindividual to individual.

Id. Furthennore, tla single figure representing the totalamount of an individual's medical bills does notdemonstrate the number of [*19] times the personreceived treatment or the nature of the treatment."Barkley, 595 S.E.2d at 274-75 (Kinser, J., concurring inpart and dissenting in part) ("In some instances, onenoninvasive diagnostic test can cost as much as manyvisits to a physical therapist or chiropractor."). Therefore,the medical bills have no tendency to establish Payne'sclaim that he experienced pain and suffering as a result ofthe accident. The Court accordingly holds that themedical bills are inadmissible pursuant to Fed R. Evid.401 and 402.

7 While the Court notes that determining"relevance!! pursuant to the Federal Rules ofEvidence is a distinct legal analysis fromdetennining "relevance" pursuant to Pennsylvaniastate law, the Court nevertheless finds the Carlsoncourt's analysis instructive in detennining"relevance" under federal law.

Even if the Court were to conclude the medical billsare relevant and admissible, the medical bills arenevertheless inadmissible pursuant to Fed. R. Evid. 403."Although relevant, evidence may be excluded if its

Page 7Z008 u.s. Dist. LEXIS 91849, *19

probative value is substantially outweighed by the dangerof unfair prejudice, confusion of the issues, or misleadingthe jury, or by considerations of undue [*ZO] delay,waste of time, or needless presentation of cumulativeevidence." Fed. R. Evid 403. Here, there is a substantialpossibility of jury confusion if the medical bills wereintroduced to prove pain and suffering. The jury may betempted to treat the medical bills as recoverable specialdamages rather than to only assess the medical bills asevidence that Payne experienced pain and suffering. Thejury may also be confused by the medical bills'characterization of the treatment Payne allegedlyunderwent because the treatment is described in the billsin summary, imprecise terms. 8 These ill-defined terms,presented right beside their cost in dollar figures, withlittle explanation to guide the jury, would unfairlyprejudice Wyeth Pharmaceuticals. To cure this prejudice,and thus to clarify the meaning of the terms in themedical bills, Payne would likely have to call a witnessfrom each medical office from which a bill was issued totestify regarding, among other things, the terms in the billand whether a doctor or administrator labeled theprocedures and treatments. Such a process could undulydelay the trial. Furthermore, introduction of the medicalbills into evidence would be [*Zl] overly cumulative:whatever tendency they would have to prove pain andsuffering may already be amply demonstrated by other,more probative evidence, such as the testimony of Payneand his doctors. On the other side of the scale, themedical bills are of limited probative value for many ofthe reasons discussed in the relevance analysis, supra.For all these reasons individually, and for all of themtogether, the Court holds that Payne's medical bills fail

Rule 403 analysis and are therefore inadmissible to provepain and suffering.

8 For but one example of Payne's medical bills,see, e.g., Pl.'s Mem. Opp'n Ex. 4 at 33 (labelingvarious expenses as "THERAPEUTICEXERCISES," "ELECTRICALSTiMIUNATTENDED," and "PTEVALUATION," among other things, with nofurther explanation).

III. CONCLUSION

For the foregoing reasons, the Court (I) holds thatPayne's medical bills that were discharged in bankruptcyare inadmissible to prove the amounts charged becauseVirginia's collateral source rule does not apply to medicalbills discharged in bankruptcy; (Z) holds that Payne'sunlisted pre-bankruptcy amended petition medical billsare inadmissible to prove the amounts charged; and (3)holds that Payne's [*ZZ] medical bills are inadmissible toprove pain and suffering damages. WyethPhannaceuticals' motion is therefore GRANTED.

IT IS SO ORDERED.

/s/ F. Bradford Stillman

UNITED STATES MAGISTRATE mDGE

Norfolk, Virginia

NovernberlZ,Z008

Virginia Model Jury Instruction 9.000

If you find your verdict for the plaintiff, then in determining thedamages to which he is entitled, you shall consider any of the followingwhich you believe by the greater weight of the evidence was caused bythe negligence of the defendant:

(l) any bodily injuries he sustained and their effect on his healthaccording to their degree and probable duration;

(2) any physical pain and mental anguish he suffered in the pastand any that he may be reasonably expected to suffer in thefuture;

(3) any disfigurement or deformity and any associatedhumiliation or embarrassment;

(4) any inconvenience caused in the past and any that probablywill be caused in the future;

(S) any medical expenses incurred in the past and any that maybe reasonably expected to occur in the future

(6) any earnings he lost because he was unable to work at hiscalling;

(7) any loss of earnings and lessening of earning capacity, oreither, that he may reasonably be expected to sustain in thefuture;

(8) any property damage he sustained.

Your verdict shall be for such sum as will fully and fairly compensate theplaintiff for the damages sustained as a result of the defendant'snegligence.

Virginia Model Jury Instruction 9.000 (modified)

If you find your verdict for the plaintiff, then in determining thedamages to which he is entitled, you shall consider any of the followingwhich you believe by the greater weight of the evidence was caused bythe negligence of the defendant:

(1) any bodily injuries he sustained and their effect on his healthaccording to their degree and probable duration;

(2) any physical pain and mental anguish he suffered in the pastand any that he may be reasonably expected to suffer in thefuture;

(3) any disfigurement or deformity and any associatedhumiliation or embarrassment;

(4) any inconvenience caused in the past and any that probablywill be caused in the future;

Your verdict shall be for such sum as will fully and fairly compensate theplaintiff for the damages sustained as a result of the defendant'snegligence.