2005 | Cited 0 times | D. Maine | October 21, 2005


Plaintiff filed a motion in limine to exclude evidence of hisprior receipt of maintenance and cure benefits and SocialSecurity Disability and Medicare benefits, and to preventDefendant from offering expert testimony on the issue ofliability. Defendant moves in limine to allow the introduction ofevidence of Plaintiff's prior receipt of Social SecurityDisability and Medicare benefits. This Court denies Plaintiff'srequest to exclude evidence of maintenance and cure benefits, butgrants Plaintiff's request to exclude evidence of prior receiptof Social Security Disability and Medicare. Correspondingly,Defendant's motion is denied. This Court grants Plaintiff'sexpert testimony motion, except as to lay opinion testimony.

I. Discussion

a. Plaintiff's Receipt of Maintenance and Cure Benefits

Mr. Falconer moves in limine arguing that his prior receipt ofmaintenance and cure benefits is inadmissible, since he neverasserted a claim against the Defendant for maintenance and cureand is not seeking recovery on that basis. He seeks an orderprecluding Penn Maritime from introducing evidence of maintenanceand cure benefits. Pl.'s Mot. in Limine re Pl.'s Receipt of Maintenance and CureBenefits (Docket # 35). Defendant responds that Plaintiff hasnot identified which benefits he considers "maintenance and cure"and which are advance payments of claimed damages. Sincemaintenance and cure extends only until the condition ordisability is incurable, any further payments, Defendant reasons,must satisfy part of Plaintiff's claim for compensatorydamages.1 Def.'s Resp. to Pl.'s Mot. in Limine re Pl.'s.Receipt of Maintenance and Cure Benefits (Docket # 45).

Under the Jones Act, the obligation to provide maintenance andcure is, unlike negligence, not based on fault and is separatefrom and supplemental to compensatory damages. Pacific S.S. Co.v. Peterson, 278 U.S. 130, 137-38 (1928); Muise v. Abbott,160 F.2d 590, 592 (1st Cir. 1947). However, care should be taken toavoid a windfall for the Plaintiff. It does not follow that a"particular item of his claim, such as maintenance, if recoveredin one suit, may again be recovered in another. In admiralty aselsewhere, a litigant may not recover compensation for a singleclaim more than once." McCarthy v. American Eastern Corp.,175 F.2d 727, 729 (3d Cir. 1949); Bartholomew v. Universe Tankships,Inc., 279 F.2d 911, 915-916 (2d Cir. 1960); Fitzgerald v.United States Lines Co., 374 U.S. 16, 20 (1963) ("This Court hasheld that recovery of maintenance and cure does not bar asubsequent action under the Jones Act . . . but of course, wheresuch closely related claims are submitted . . . questions of resjudiciata and collateral estoppel necessarily arise,particularly in connection with efforts to avoid duplication of damages"); Lafontaine v. The G.M. McAllister et al.,101 F. Supp. 826, 829 (S.D.N.Y. 1951) ("The damages recoverable in anaction based either on negligence under the Jones Act or onunseaworthiness under the general maritime law overlap to someextent those sought in an action for maintenance and cure.").

When "a seaman's `condition has stabilized and further progressended short of a full recovery, the seaman . . . is no longerentitled to maintenance and cure.'" Whitman v. Miles,387 F.3d 68, 71 (1st Cir. 2004) (quoting In re RJF Int'l Corp.,354 F.3d 104, 106 (1st Cir. 2004)). This point is known as the seaman's"maximum medical recovery." Id. To allow Plaintiff to claimthat Defendant's payments past the point of maximum medicalrecovery were part of "maintenance and cure" rather thanpre-payment of damages would be to allow Plaintiff a bonusrecovery. Policy, however, dictates that Defendant bear theburden of proof on this issue. Bartholomew, 279 F.2d at 916.Evidence of maintenance and cure damages will be strictly limitedto two questions: (1) if and when the "fuzzy boundary betweenimprovement and palliation", RJF, 354 F.3d at 107, was crossed;and, (2) whether Penn Maritime's payments were in fact prepaymentof damages.2 Mr. Falconer's motion in limine to excludeevidence of maintenance and cure payments is DENIED.

b. Plaintiff's Receipt of Social Security and MedicareBenefits

Arguing that Social Security Disability and Medicare benefitsare subject to the collateral source rule and inadmissible, Mr.Falconer moves in limine to exclude evidence of his receipt ofthese benefits. Pl.'s Mot. in Limine Regarding Pl.'s Receipt ofCollateral Benefits (Docket # 36). In turn, Penn Maritimeargues, both in response and in its own motion, that there is no per se rule excluding collateralsource evidence, and it seeks to introduce evidence of thesebenefits to offset its maintenance and cure obligation as well as"for any permissible use, such as proving lack of motivation forreturning to work". Def.'s Mot. in Limine at 8 (Docket # 43);Def.'s Resp. to Pl.'s Mot. in Limine Regarding Pl.'s Receipt ofCollateral Benefits at 3 (Docket # 46).

1. Offset

Penn Maritime argues that Mr. Falconer's receipt of SocialSecurity Disability Income (SSDI) benefits and eligibility forMedicare benefits should be admissible "as proof that Penn[Maritime] does not owe plaintiff maintenance and cure" and tooffset "defendant's maintenance and cure obligation toplaintiff". Def.'s Mot. in Limine at 8, 10. Penn Maritime'sargument is rather cryptic and difficult to parse. But, asframed, this Court will not allow Penn Maritime to introduceevidence of Mr. Falconer's receipt of Medicare and SocialSecurity benefits to gain an offset. Although Penn Maritime'sobligation for maintenance and cure may overlap with Medicare andSSDI benefits, Mr. Falconer has not asserted a claim against PennMaritime for maintenance and cure benefits in this law suit and,therefore, the issue is not joined. See Pl.'s Resp. in Opp'n toDef.'s Mot. in Limine Regarding Pl.'s Receipt of CollateralBenefits at 2 (Docket # 53) (". . . there is no claim byPlaintiff for Defendant improperly and untimely cutting Plaintiffoff from maintenance and cure.").

Elsewhere, however, Defendant suggests that its real purpose isto prevent Plaintiff from obtaining an award for lost wages andmedical expenses on the erroneous premise that he has notreceived such benefits and will not continue to receive them inthe future. Def.'s Mot. in Limine at 8-9. The parties have notprovided sufficient information to allow a final determination of the issue; however, in In reRJF Int'l Corp., 332 F. Supp. 2d 458, 464 (D.R.I. 2004), JudgeSmith in a thorough and persuasive opinion set forth the analyticmethod this Court will follow. This Court remains to be convincedthat Medicare is the functional equivalent to the "cost-free"care once provided seamen in the Public Health Service. For thereasons well expressed in RJF, it is more likely the MedicareSecondary Payer provisions of federal law,42 U.S.C. § 1395y(b)(2), contemplate reimbursement, not an offset. To theextent Moran Towing & Transp. Co. v. Lombas, 58 F.3d 24 (2dCir. 1995) would work a different result, this Court declines tofollow it.

However, this does not end the analysis, as in this case,Medicare and the union health plan have liens for past amountspaid in the event of any money received as a result of judgmentor settlement. Pl.'s Resp. in Opp'n to Def.'s Mot. in LimineRegarding Pl.'s Receipt of Collateral Benefits at 3. In thesecircumstances, to allow Penn Maritime to encourage the jury tooffset Mr. Falconer's recovery by taking into account hisprevious receipt of both SSDI benefits and maintenance and curewould not merely prevent a double recovery, but would allow adouble deduction. Penn Maritime may not introduce evidence of Mr.Falconer's receipt of SSDI and Medicare benefits to demonstratethat he is not entitled to damages for lost wages or past medicalexpenses.

2. Motivation to Return to Work

Under the collateral source rule, the Plaintiff need not offsethis recovery from the Defendant by the amount of any benefitsreceived from a source collateral to the Defendant, and evidenceof such benefits should, therefore, not be permitted at trial.McGrath v. Consolidated Rail Corp., 136 F.3d 838, 840-41 (1stCir. 1998). The rule is designed to prevent juries from improperly misusing evidence ofcollateral sources. However, every rule has its exceptions. InMcGrath, the First Circuit upheld the trial court's allowanceof collateral source evidence in order to show lack of motivationto go back to work — precisely the same purpose which Defendantintends. Id. On the other hand, in Eichel v. New York CentralRailroad Co., 375 U.S. 253 (1963), the Supreme Court found amplereason to uphold the district court's decision to exclude suchevidence, finding that "insofar as the evidence bears on theissue of malingering, there will generally be other evidencehaving more probative value and involving less likelihood ofprejudice". Id. at 255. See also McGrath, 136 F.3d at 841;De Medeiros v. Koehring Co., 709 F.2d 734, 741 (1st Cir. 1983)("Even in Eichel . . . the narrower question was simply whether ornot to uphold the district court's discretionary ruling").

Consistent with Eichel, Plaintiff argues that evidence ofmalingering can come from witnesses, introduction of documents,or other less prejudicial material. He also asserts that ifPlaintiff recovers any money, he will have to repay a lien toMedicare. Consequently, if this evidence is admitted, he facesthe possibility of a double deduction — once from Medicare andagain when the jury calculates his "real" damages. Pl.'s Resp.in Opp'n to Def.'s Mot. in Limine Regarding Pl.'s Receipt ofCollateral Benefits at 3; Pl.'s Mot. in Limine Regarding Pl.'sReceipt of Social Security and Medicare Benefits at 3. PennMaritime argues that the evidence should be admitted both onissues of motivation and credibility.

At this stage, this Court agrees with Mr. Falconer. PennMaritime is free to introduce evidence, as it apparently intendsto do, that Mr. Falconer is a college graduate with anengineering degree and is an excellent candidate for vocationaltraining, that he is not totally disabled and can and should be gainfully employed,that if he had received training, it is likely he would now bere-employed and earning wages consistent with his wages at PennMaritime. However, to introduce evidence that the reason he hasnot done so is his receipt of SSDI benefits would in this Court'sview unnecessarily complicate the trial of this case with complexand tangential issues, would likely lead to juror confusion,would bear marginal relevance, and would be more prejudicial thanprobative. Fed.R.Evid. 403.

This ruling is of course subject to the evidence at trial. IfMr. Falconer opens the door, the evidence may become admissible.See McGrath, 136 F.3d at 840-41; Fitzgerald v. ExpresswaySewerage Construction, Inc., 177 F.3d 71, 76 (1st Cir. 1999)(allowing collateral source evidence if the plaintiff opens thedoor, its relevance is plain, its probative value not outweighedby the danger of unfair prejudice and an immediate prophylacticinstruction is given as to the limited use for which it wasadmitted); Santa Maria v. Metro-North Commuter R.R.,81 F.3d 265, 273 (2d Cir. 1996) (holding collateral source evidence ofpayments admissible if the plaintiff puts financial status atissue); Lange v. Missouri Pac. R.R. Co., 703 F.2d 322, 324 (8thCir. 1983) (finding that "evidence concerning [the plaintiff's]receipt of workers' compensation benefits was relevant to testthe credibility of plaintiff's assertion that he had to return towork immediately after the surgery because he had no disabilityincome").

This Court DENIES Defendant's motion in limine to introducesuch evidence and GRANTS Plaintiff's motion to exclude suchevidence.

c. Preclusion of FRE 702 Expert Testimony on the Issue ofLiability Mr. Falconer's moves in limine seeking to prevent Penn Maritimefrom offering expert testimony on issues of liability (includingnegligence), since no expert witness has been designated and PennMaritime has refused to allow him to conduct discovery regardingthe opinions held by its employees who might qualify as experts.Pl.'s Mot. in Limine to Preclude the Def. from Offering anyF.R.E. 702 Expert Testimony on the Issue of Liability (Docket #38). In response, Penn Maritime argues that the proper avenue forrelief would have been filing a Rule 37 motion, not waiting untilthe eve of trial and it argues that lay opinions can be offeredby Captain Duplantis, who observed the accident. Def.'s Resp. toPl.'s Mot. in Limine to Bar Opinion Testimony from Lay Witnesses(Docket # 44).

Whether Captain Duplantis and Mr. Carvalhiero can testify atall is easily resolved. To the extent they personally observedevents leading up to the accident, Rule 701 permits them totestify to their opinions to the extent they are "rationallybased" on their perceptions, helpful to a clear understanding ofthe determination of facts in issue, and not based on scientific,technical, or other specialized knowledge. Fed.R.Evid. 701.

The question of expert testimony on the issue of liability isas easily resolved. On July 15, 2003, Judge Ellis approved anagreed-upon schedule of expert disclosure, including arequirement that Penn Maritime disclose its liability expertwitnesses and serve liability expert reports on or before July14, 2003. Court Order Dated Jul. 15, 2003 at 2 (Docket # 38 —Ex. A). Penn Maritime has acknowledged it failed to designateexpert witnesses on the issue of liability. See Def.'s Resp. toPl.'s Mot. in Limine to Bar Opinion Testimony from Lay Witnessesat 1. During discovery, Mr. Falconer relied on the designation ofCaptain Duplantis and Mr. Carvalhiero as non-expert witnesses and Penn Maritime instructed them not to respond to questions thatcould have elicited expert responses. Pages from Depositions ofCarvalhiero, Duplantis (Docket # 38 — Ex. B, C).

The Plaintiff's Motion in Limine is DENIED to the extent itseeks to exclude lay opinion testimony allowed by 701, but isotherwise GRANTED.

II. Conclusion

This Court DENIES Mr. Falconer's motion in limine to excludeevidence of maintenance and cure payments (Docket # 35). ItGRANTS Plaintiff's motion in limine to exclude evidence ofreceipt of SSDI and Medicare benefits (Docket # 36) and DENIESDefendant's corresponding motion to introduce such evidence(Docket # 43). Finally, this Court GRANTS Plaintiff's motion inlimine to exclude expert testimony on the issue of liability,except to the extent it seeks to exclude lay opinion testimony(Docket # 38).


Back to top