1. LAJ Last Chance CLE Conference December 14, 2018
Emerging Legal Issues in Special Damages – Collateral Source, Finance Agreements, and More
Robert E. Kleinpeter
LAJ Last Chance CLE Conference
December 14, 2018

2. Compensatory Damages
Special Damages
General Damages

3. Special damages can be calculated

4. Lay the foundation for special damages

5. Medical Bills

6. Medical Bills Jury Instruction
A plaintiff may recover reasonable medical expenses, both past and future, which he incurs because of the injury. Past medical expenses are those incurred from the date of the incident through the date of trial. Future medical expenses are those that will be incurred after the date of trial. In determining any compensation that you might make for past or future medical expenses, you should consider the evidence, and the opinions of expert witnesses, to decide the reasonable value or expense of medical, nursing, hospital care, and treatment which is reasonable and necessary for plaintiff’s condition.
Authority: Menard v. Lafayette Ins. Co., (La. 3/16/10), 31 So. 3d 996, 1006; 18 La. Civ. L. Treatise, Civil Jury Instructions § 18:5 (3d ed.).

7. Medical Bills
Past Bills Chart

8. Medical Bills
Future Bills Chart

9. Wages

10. Wages Jury Instruction - Past
A plaintiff may recover his wages for the time missed from work as a result of the injury. The plaintiff must prove the amount of lost earnings and the length of time missed from work due to the incident.
Authority: Boyette v. United Services Auto. Ass’n, (La. 4/3/01), 783 So. 2d 1276, 1279; Woods v. Hall, (La. App. 1st Cir. 4/20/16), 194 So. 3d 689, 693.

11. Wages Jury Instruction - Future
A plaintiff may recover wages for time he will miss from work in the future as a result of the injury. The amount of damages for an item such as loss of future wages is necessarily speculative and cannot be calculated with mathematical certainty. In determining the amount, you may consider the plaintiff’s physical condition before and after this incident, his work record, whether and for how long a plaintiff’s injury will prevent him from engaging in work of the same or similar kind that he was doing at the time of his injury, his earnings in prior years, the probability that he would have earned similar amounts in the remainder of his work life, and similar factors.
Authority: 18 La. Civ. L. Treatise, Civil Jury Instructions § 18:7 (3d ed.); Haydel v. Hercules Transp., Inc., (La. App. 1st Cir. 4/7/95), 654 So. 2d 418, 435–36.

12. Summary of Calculated
Harms and Losses

13. What is the Collateral Source Rule?
“A tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.”

15. The Collateral Source Rule is both a rule of evidence and of damages
Evidence of monies received is inadmissible
Damages may not be reduced by monies received

16. The Collateral Source Rule is usually raised by Motion in Limine

17. Public Policy Supports the Collateral Source Rule
Without the rule, victims would be dissuaded from purchasing insurance or pursuing other forms of available reimbursement
Tort deterrence
Compensation to an injured party

18. The Major Policy Reason for the Rule
Tort Deterrence
Legal scholars
Jurisprudence
Social Science
Common Sense

20. Important Cases
Bozeman
Bellard
Hoffman
Simmons

21. Bozeman held the Collateral Source Rule does not apply to Medicaid benefits
No diminution of the plaintiff’s patrimony
“Benefit of the bargain” approach

22. Bellard held the Collateral Source Rule does not apply to a UM insurer
Applying the rule will not further the goal of tort deterrence
The plaintiff’s patrimony was not diminished by his receipt of workers’ compensation benefits
Principle of solidarity overrides the Collateral Source Rule

23. Hoffman held the Collateral Source Rule does not apply to attorney-negotiated discounts for medical expenses
No diminution of patrimony
Attorney fees are not damages
Evidentiary and ethical dilemmas

24. The analysis depends on
who is the defendant?
Π v. ∆

25. Collateral Sources Medicare Insurance Benefits Workers’ Compensation
Unemployment Compensation
Sick Pay
Vacation Pay
Social Security
Pension and Retirement
Gratuitous Benefits
Client Negotiated Discounts

27. Payments for medical services provided to plaintiffs are not “loans” subject to the Louisiana Consumer Credit Law
In other words, a finance company does not advance funds when it purchases the rights of creditors (health care providers) against debtors (plaintiffs).

28. Plaintiffs usually do not assign their rights to pursue recovery from the defendants in their litigation
Partial assignment must be enforced by both assignor and assignee
The objection is waived if not timely made by dilatory exception or in Answer

30. Examine the documents as a whole and see if they are reimbursement agreements, not assignments of litigious rights
Obtain all of the documents
Ensure C.C.P. art. 966 compliance
Determine intent as a whole, “assignment” word is not dispositive

31. Even if found to be assignment, an agreement may authorize plaintiffs to recover from the defendants any expense amounts owed to the health care providers
Have health care providers agreed to await payment from the lawsuit?
Can the plaintiffs be characterized as agents for the health care providers?