The Reptilian Response to Missouri’s New Collateral Source Rule

Katherine M. Flett

By Katherine M. Flett

As discussed in “Statutory Changes in Missouri Lead to Blue Skies Ahead for Insurance Companies Facing Bad Faith Set-Ups and Collateral Source Rule Issues,” Missouri Governor Eric Greitens recently signed Missouri Senate Bill 31 into law bringing needed changes to Missouri’s collateral source rule.

Missouri Senate Bill 31 amended Missouri Revised Statute Section 490.715 to redefine the “value” of medical expenses as equating to the amount actually paid by or on behalf of a plaintiff, rather than the total amount of medical bills, prior to adjustments, contractual discounts, or write-offs.

Although the new amendment does not go into effect until August 28, 2017, one of the responses expected from the plaintiffs’ bar is one that has already been trending: refusing to proffer plaintiffs’ medical bills as evidence. This approach has been considered by some as an expansion of the “reptile approach,” an approach where the plaintiff’s attorney aims to influence the jury’s decision-making by using tactics to activate jurors’ survival instincts with the expectation that the jury will make decisions based on instinct rather than logic and reasoning.

In a personal injury case, written discovery is typically exchanged between the parties and this almost always includes the plaintiff’s medical records and bills. In the expanding reptilian approach, however, plaintiff’s counsel refuses to proffer medical bills as part of the damages. Instead – the theory goes – counsel offers evidence of catastrophic injuries and immense pain and suffering to persuade the jury to award the plaintiff a large verdict that is not tethered by the actual cost of the medical treatment provided. In light of the new statutory amendment, this approach would be most beneficial to a plaintiff who has low medical bills due to adjustments, contractual discounts, or even a minimal amount of medical treatment.

Under Missouri Supreme Court Rule 56.01, Missouri’s discovery rules are extremely broad, providing that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.” Moreover, Missouri courts have consistently held that the party claiming damages has the burden of proving the existence and amount of damages with reasonable certainty. Further, the party claiming damages must provide facts supporting a basis for a rational estimate of damages without resorting to speculation. (See The Manors at Village Green Condominium, Inc. v. Webb, 341 S.W.3d 162, 164 (Mo. App. E.D. 2011)).

So, how are plaintiffs’ attorneys getting away with not introducing medical bills? One basis is the argument that if the recovery of past medical bills is not plead as special damage, evidence of medical bills is beyond the scope of the pleadings. Although we have not seen a lot of this approach in St. Louis, in one recent case, a plaintiff’s attorney tried this tactic and the judge agreed with him, at least at the written discovery stage. The case did not go to trial, so it’s unknown how the approach would have worked.

The question that arises is whether or not this strategy will truly be beneficial to personal injury plaintiffs in Missouri. While reptilian strategies have had success when a case reaches a jury trial, an overwhelming majority of personal injury cases settle before reaching a jury. If a plaintiff’s attorney refuses to provide his or her client’s medical bills, even during the earliest stages of a personal injury claim, the defense is left with no benchmark to value the claim. This reptilian approach may very well stunt the plaintiff’s settlement possibilities if counsel and the plaintiff want to reach a quick settlement.

In addition, if the case does reach a jury, the defense may be able to argue a negative inference from the plaintiff’s lack of evidence concerning medical bills. Nothing prevents the defense from introducing the medical bills (if they are low enough), unless the court has been persuaded by a motion in limine to keep them out of evidence. Nevertheless, defense counsel should be leery about making the plaintiff’s case for him or her.

Even if this approach is successful at a jury trial, the plaintiff runs the risk of medical liens attaching to the jury award (even without the submission of medical bills), which would result in them having to go back to court to argue that the liens do not attach to the verdict.

With the new law’s quickly approaching effective date, it will be interesting to see how Missouri’s plaintiffs’ bar responds to the new collateral source amendment and how Missouri courts respond to the growing trend of plaintiffs refusing to proffer their medical bills.

Posted by Attorney Katherine M. Flett. Flett is a member of the litigation team focusing on assisting clients with matters relating to business, civil and commercial litigation.

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