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Nov 2011: Trials and Settlements After Howell v. Hamilton Meats
By Robert M. Tessier

The Supreme Court issued a remittur on November 2, 2011 and denied all requests for reconsideration/rehearing in Howell. Thus, barring any Legislative action in the area, trial lawyers and claims handlers will be adjusting to life after Howell.

While no one has a crystal ball, we are beginning to see some trends emerging in the mediation of personal injury claims. This short email is both a reflection of these trends and a request for information from trial lawyers concerning how trial judges are dealing with the issues.

1. The Defense Analysis begins with the "Howell number." It is no secret that past medical bills are an important part of the equation in adjusting personal injury claims. With the Supreme Court now holding that the only relevant evidence of the cost of past medical expenses is the amount paid, it is no surprise that this amount is the only evidence being considered by the defense. Not having this number, or a reasonable approximation of this number, is going to bog down negotiations.

2. The Plaintiff's bar correctly points out that Howell does not apply to future medical expenses. Thus, jury verdicts are likely to reflect recovery of the amount paid for past medical expenses, but recovery for "reasonable" costs for future medical expenses. Given that Howell did not change the evidentiary component of the collateral source rule, evidence of plaintiff having or not having health insurance is not admissible at trial on this issue. One would therefore expect a greater ocus on the "reasonable and necessary" costs for future medical expenses through expert testimony.

3. There will likely be more cases tried without plaintiff seeking recovery for past medical expenses. If the plaintiff's lawyer believes that the past medical bills paid are so low that the jury will "anchor" the value in a less than reasonable range, then consideration may be given to waiving past medical expenses and focusing on future medical expenses and the "reasonable and necessary" cost of them.

4. Conversely, some plaintiffs may choose to admit evidence of health insurance in their case in chief if doing so is consistent with their case theme. This might also make sense if the plaintiff, due to the subject incident, actually loses his/her health insurance due to a layoff resulting from the claimed injury. Could we actually see the defense fighting to keep out evidence of plaintiff's health insurance in such cases?

5. More plaintiffs will choose to forgo using their health insurance and instead seek treatment from doctor on a lien basis. It remains to be seen if the Howell decision gives plaintiffs a retort to the cross examination on this issue.

The Supreme Court left to the trial court the decision as to whether the amount of past medical expenses is relevant to any other issue in the trial. Ironically, the plaintiff's bar may rely on the holding in Nishihama (the most disliked opinion from the plaintiff's perspective pre- Howell) that the amount billed can bear on the issue of general damages. From a practical perspective, it is now a difficult needle to thread. A trial court would have to find the billed amount relevant, but allow only the amount paid to be recovered, while at the same time not admitting evidence of the existence of health insurance in the process. That's a head-scratcher...and perhaps a successful argument by the defense can be made that admitting the amount billed will cause undue confusion for the jury.

Nevertheless, I have no doubt that cogent arguments will be made to trial court y both sides. I am most interested in what trial courts will do, and invite each of you to email me at robert@tessiermediation.com with whatever happens in your cases. It helps me, and all mediators, to know what trial courts are doing in order to add value to the mediation process. I greatly appreciate the time you take to fill me in on each court is doing on the issue.


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