Lee vs. Small 829 F. Supp. 2d 728; 2011 U.S. Dist. LEXIS 135054; US Dist. Crt. Northern Division of Iowa, Western Division
Roy Franco
July 26, 2012

Case Summary:
Lee vs. Small and Toft, Small v. Lee, Small v. Brown, 829 F. Supp. 2d 728; 2011 U.S. Dist. LEXIS 135054; US Dist. Crt. Northern Division of Iowa, Western Division
Background Facts of Case:
On November 13, 2009 Seth T. Small, employed by Toft & Sons Farm, was driving a farm tractor while pulling a wide piece of farm equipment across a bridge. While attempting to cross the bridge, a vehicle driven by Llewellyn Brown collided with the piece of equipment being pulled and was deflected into a ditch and struck a tree. Brown allegedly suffered from physical injuries and physical and mental pain as well as incurred medical expenses and damages to person and property. Small was an EMT and after the collision climbed out of the cab with the intention of climbing down to Brown to remove him from the vehicle. During this time a second vehicle driven by John Owen Lee struck the tractor and Small. Both Small and Lee allegedly suffered from physical injuries, mental and physical pain and suffering, loss of function of mind and body, and other damages. Lee had private group health insurance at the time of the accident but became a Medicare beneficiary later on December 1, 2009. Therefore, his medical expenses were paid in part by private insurance and Medicare.
Legal Question:
To what extent were Lee’s medical expenses compromised and reduced by agreement between providers, his insurer and Medicare and the amount paid for his care?
Procedural Background:
Lee filed a Complaint and named defendants Small and Gregory Toft, individually and doing business as Toft & Sons Farm, Small’s employer and owner of the tractor. Lee asserted that the defendants were negligent and this negligence caused his injuries.
Small filed a Counterclaim and Third-arty Complaint alleging that the negligence of Lee and Brown was a proximate cause of the accident and injuries he sustained. Small asserted the counterclaim for negligence against Lee and a third-party claim against Brown.
Brown filed a Counterclaim and Cross-Claim asserting negligence against Small and Toft. This case looks at various evidentiary motions, specifically the Motion in Limine that Lee filed on October 31, 2011 seeking to exclude nine categories of evidence. This decision also looks at the Motion in Limine Small and Toft filed on November 2, 2011 seeking to exclude six categories of evidence as well as the two categories of evidence that Brown seeks to exclude.
Legal Analysis:
Preliminary Evidentiary Rulings or Challenges to Claims and Defenses
Rule 104 of the Federal Rules of Evidence Provides that “preliminary questions concerning….the admissibility of evidence shall be determined by the court….”
Rule 102 provides that evidence must be “construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined”
Relevance and Prejudice Standards
Rule 401 of the Federal Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Rule 402 states that relevant evidence is generally admissible but irrelevant evidence is not
Rule 403 provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”
Categories of Evidence in Question:
Evidence of settlement offers:
Lee sought to exclude evidence of any settlements or offers to settle any claims made by any of the parties pursuant to Rule 408 of the Federal Rules of Evidence precluding evidence that “when offered to prove liability for, or invalidity of, or amount of a claim that was disputed as to validity or amount or to impeach through a prior inconsistent statement or contradiction.”
No party cites any permissible purpose for why such evidence should be offered and therefore motion to exclude is granted.
Cross-examination by Small’s counsel regarding Lee’s damage
Lee sought to exclude cross-examination by Small’s counsel on Small’s third-party claim against Brown on matters concerning Lee’s damages. Lee asserts that because Small has separate counsel on his third-party claim against Brown, his separate counsel does not have the right to cross-examine witnesses concerning the cause and extent of Lee’s damages because it would give Small multiple representation on the same issues which would unfairly prejudice him.
No party resisted this motion; therefore, Small’s separate counsel is precluded from cross-examining Lee or making any argument regarding Lee’s damages. Motion is granted.
Evidence of liability insurance
All parties sought to exclude evidence of their lack of liability insurance at the time of the accident. Specifically, Lee sought to exclude evidence of his lack of automobile insurance at the time of the accident be cause the evidence has no probative value pursuant to Rule 411 of the Federal Rules of Evidence. Small and Toft did not resist this motion and sought to exclude evidence of their lack of liability insurance, which Lee does not resist.
Rule 411 states that “Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Therefore, the motion to exclude such evidence was granted.
Evidence of collateral source payments from Medicare
Lee argues that the Iowa Code Section 668.14(1) prohibits evidence and argument concerning payments made by a state or federal program. He argues that evidence of collateral payments may only be admitted for the purpose of permitting the parties to argue the fairness and reasonableness of medical charges, but the payer may not be identified. Small and Toft sought to limit Lee’s recovery payment to the amount that was actually paid toward his medical bills. Small and Toft argue that the evidence of the payments of a state or federal program are admissible to establish the actual expense of services provided. They argue that because a plaintiff is only entitled to recover reasonable and necessary costs of medical care, the reasonable value of those services can be proved by evidence of actual payment.
Billed v. paid medical expenses
According to Pexa v. Auto Owners Ins. Co., 6867 N.W.2d (Iowa 2004), the court noted that a plaintiff may recover more than what was actually paid for medical care. The court also stated that the amount charged in medical bills is not alone evidence of reasonable and fair value of services. To determine “the reasonable and necessary costs of medical care” jury may consider the amount paid but the amount billed is not in itself probative until a paid or expert witness testifies to the reasonableness of the charges. Therefore, motion is granted to extent that Lee may recover more than the amount paid.
Identity of the payer
Identity of the payer has no probative value and may invite a decision purely based on the fact that payment of expenses came from the government. Iowa Code Section 668.14 suggests that identifying the government as a payer has potential dangers in recovery. Therefore, identification of payers was limited to that of “insurers” with specific information redacted. Motion to exclude identity of Medicare as payer is granted.
Evidence of the fault of any medical providers
Lee believed that Small & Toft may attempt to show that his medical providers’ negligence was a superseding cause of his injuries which would relieve Small and Toft from liability for those injuries. He argues that even if his damages were enhanced by “misadventures” with medical care, Toft and Small are still responsible for the injuries their negligence caused. He argues that pursuant to Iowa Code Section 668.2 and 668.3, fault cannot be allocated to his medical providers because they are non-parties. Small and Toft argue that the jury should determine whether elements of damages are recoverable against them. They argue that the jury should determine this issue as a matter of fact.
There was no developed record to determine whether the staphylococcus infection Lee suffered is a known risk of hospitalization or risk of accepted and common medical treatments Lee received. Therefore, no conclusion can be made as to whether there were “additional circumstances” regarding physician negligence that might take the case outside the “general rule” that if there was no negligence in selecting the doctor; the original tortfeasor is responsible for negligence of an attending physician. Thus, the motion to exclude evidence concerning fault of medical providers is denied as premature.
Evidence of correspondence from Medicare
Lee asserted that while he is eligible for Medicare and that Medicare made payments, evidence regarding correspondence from Medicare about estimates of payment for medical expenses should be excluded. He argues that these estimates are incomplete and provisional and would only increase the potential for prejudice and confusion. Small and Toft argue that such correspondence is important for the jurors to understand the actual damages claimed by Lee.
While the amount paid by Medicare is relevant to determining Lee’s recoverable damages, estimates have little or no probative value and have the potential for unfair prejudice. Federal Rule of Evidence 403 states that probative evidence may be excluded on the basis that it may mislead or confuse the jury. Therefore, the motion to exclude correspondence from Medicare is granted.
Evidence of Brown’s fault in causing Lee’s damage
Lee argues that Small filed a counterclaim against him for negligence causing Small’s injuries and a claim against Brown that his negligence partially caused Small’s injuries. However, neither Small nor Toft alleges that Brown’s fault was a cause of Lee’s damages and is therefore not an issue. Small & Toft claim that Brown’s fault must be compared to Lee’s claims because Brown is within the definition of a “party” in the claim. Also, Brown’s fault in causing Lee’s damages is at issue because his fault is at issue in the original action and in Small’s third-party action. They argue that there is a relationship between Lee’s injuries and Brown’s conduct.
The decision in Schwennen v. Abell, 430 N.W.2d 98, (Iowa 1988) makes it clear that it is not enough to bring a person into litigation as a third party defendant to attribute fault to that party on the original claim but rather, the fault of that person “toward the claimant” must be put at issue. There is no allegation that Brown “is or may be liable for all or part of [Lee’s] claim against [Small].” (See Fed. R. Civ. P. 14(a)(1). It is also not apparent that a claim that Brown was at fault would be a claim with “legal efficacy”. Therefore, the motion to preclude Small & Toft from presenting evidence regarding Brown’s fault in causing Lee’s damages is granted.
Evidence relating to Lee’s sex life
Lee asserts that there is no suit for loss of consortium nor did his injuries cause impairment of sexual function. He argues that admission of this evidence risks prejudice against him. Small and Toft claim that Lee is seeking damages regarding his quality of life and therefore sexual impairment is relevant to damages.
This evidence has little probative values and it is apparent that its use is in an attempt to create an issue attempting to embarrass Lee and play on jurors’ biases. Therefore, the motion to exclude such evidence is granted.
Evidence of alcohol consumption and recovery programs
Lee argues that there is no evidence that he consumed alcohol surround the time of the crash. He argues that any suggestion of treatment or recovery workshops he attended would cause prejudice to him. Small and Toft argue that if any mention of alcohol use by Lee is brought to light regarding causation of the accident or damages relating to Lee’s quality of life then such references should be admissible.
References to Lee’s past consumption of alcohol are denied unless they demonstrate relevance to the case. Information regarding Lee’s involvement in treatment has some probative value because his attendance was for issues involving depression and anxiety when relevant to his suffered anxiety as a result of the collision. Much of the value depends upon the context in which the information is used. Bennett, 656 F.3d at 813 states that “whether the probative value of challenged evidence is substantially outweighed by unfair prejudice is a fact-intensive question which must often be answered by the trial court in the course of trial.” Therefore, the motion to exclude reference to treatment programs is denied.
Damages evidence not disclosed in discovery
Small and Toft argue that in their interrogatories they asked Lee for information as to the claims that he was making relating to the damages. They believe that Lee may claim additional damages that were not disclosed at that time. Therefore, Lee should be limited in evidence to the damages that were set forth in the answers to interrogatories. Lee argues that Small and Toft cannot claim that they were unaware that his claim for future mental pain and suffering would be substantial and therefore were not prejudiced in preparing a defense for those claims.
Small and Toft mistakenly relied on Iowa Rule of Procedure 1.508 on a matter that is controlled by federal law. Therefore, the motion is denied based on lack of relevant authority.
Unidentified experts
Small and Toft sought to exclude testimony from unidentified experts due to the fact that they submitted interrogatories asking about experts to be called and they believe that Lee may intend to offer additional experts that were not made known. They argue that this would prevent them from following the two-step process of discovery set out in Sulllivan v. Chicago & Northwestern Transp., 326 N.W.2d 320, 327 (Iowa 1982). Lee asserts that he is not able to determine what witnesses they are referring to because all witnesses have been designated.
Small and Toft were attempting to exclude experts based on speculation which is premature. Unless Lee identifies an expert that was not disclosed, the Pretrial Order is not implicated.
Evidence regarding dangerousness
Small and Toft argue that such expert opinions regarding dangerousness are prejudicial and cannot be overcome by cross-examination or objections. Brown argues that expert testimony is necessary in regards to establishing dangerousness because an expert testimony could explain the phenomenon of “glare blindness” and the dangers of Small’s conduct.
In Peterson v. Taylor, 316 N.W.2d 869, 874 (Iowa 1982), the court stated that in a “reasonable man” inquiry a expert should not “be permitted to express an opinion on what a reasonable person would have done in a similar situation, because such testimony would be tantamount to an opinion on whether the person in question was negligent”. Therefore, within the decision of this case it would not be permissible to allow an expert to testify as to the “dangerousness” of a conduct. While experts may not testify as to a conclusion whether a person acted “dangerously”, such witness may testify as to the existence or non-existence of circumstances that would allow jurors to determine whether a person acted “dangerously.” The motion to exclude expert testimony regarding “dangerousness” of a person’s actions however is granted.
Evidence of traffic tickets
Small and Toft argue that such evidence is not relevant pursuant to Rules 401 and 402 of the Federal Rules of Evidence because this type of evidence would not have a tendency to prove the existence of fault in connection with the collisions. Brown asserts that Small made evidentiary admission at the trial of his traffic ticket and in commenting upon the trial judge’s findings of fact and that such admissions are relevant to the issue of Small’s fault.
While Iowa Code Section 321.489 and Section 321.490 provide that “no record of conviction of any person for any violation of this chapter shall be admissible as evidence” there is no law which bars admissibility of the fact of a conviction of a traffic violation on the issue of negligence. It is clear that Small’s convictions and admissions about the circumstances of the accident tin the trial of the traffic violations and his deposition in the civil case are admissible. Therefore, ruling is reserved to the extent that it relates to evidence of the conviction itself.
Toft’s factual assertions beyond personal knowledge
Brown asserts that in Toft’s deposition he made speculations about what happened based on personal knowledge. These speculations are not supported by any other evidence and should be precluded by Rule 602 of the Federal Rules of Evidence. Small and Toft argue that Toft has sufficient personal knowledge of the tractor and its specifications to be able to testify about the position of the vehicles. They assert that the jury should give weight and creditability to this testimony.
Rule 602 provides that “evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.” This testimony may be “rationally based on the perception of the witness,” may be “helpful to a clear understanding of the witness’ testimony or determination of a fact in issue.” Therefore, the motion to exclude Toft’s testimony is denied.
Evidence of Small’s status as an EMT and Army Reservist
Brown argues that Small will attempt to “glamorize” himself by referencing the fact that he was an EMT and member of the Army Reserve which will be prejudicial to Brown and improperly focus on Small’s status instead of his conduct during the collision. Small and Toft argue that this level of education and experience is important to determine fault aspects in the case.
Small’s level of education and experience may be probative of the reasonableness of his conduct, including the decision to leave his cab and assist Brown. Passing references to EMT training and membership in the Army Reserve are far from prejudicial to outweigh the probative value. Small will not be allowed to dwell upon his training; however, they do not make any representation they will. Therefore, the motion that Exhibit 406 which consists of news articles referencing Small’s status be excluded is granted but motion to limit evidence of Small’s is denied.