United States District Court, District of Wyoming
RONALD D. BROWN and VALERIE BROWN, Plaintiffs,
SHELL ROCKY MOUNTAIN PRODUCTION LLC, SWEPI LP, and JEROMY MOFFAT, Defendants,
ORDER ON MOTIONS
D. FREUDENTHAL UNITED STATES DISTRICT JUDGE.
Court has before it several pending motions: Defendant Jeromy
Moffat's August 16, 2019 motion in limine (doc. 46),
Plaintiffs Ron and Valerie Brown's August 21, 2019 motion
in limine (doc. 50), Defendant's motion and amended
motion to strike the latter (docs. 55, 57), Plaintiffs'
motion to strike the Defendant's motion to strike (doc.
59), and Plaintiffs' August 28, 2019 motion in limine.
Doc. 60. As the Court indicated during the final pretrial
conference, it now rules on these motions as follows. I.
Defendant's Motion in Limine (Document 46)
seeks to limit or exclude three types of evidence:
1. To limit Mr. Brown's treating health providers'
testimony to only the factual matters contained in their own
records (not records of other providers) and to preclude them
from offering expert testimony of any kind.
2. To preclude any testimony as to the reasonable value of
the amount billed by any provider or hospital for medical
services Mr. Brown received after the accident at issue.
3. To exclude any evidence of the amounts billed for medical
treatment. Defendant argues Plaintiffs' February 28, 2019
expert designation of his 22 non-retained, treating medical
providers is faulty because Plaintiffs include a
“catch-all” sentence to disclose opinions on the
reasonableness of their charges. “The above
doctors” are expected to opine that “all the
Plaintiff's medical care as reflected in Plaintiff's
medical records produced to date, were reasonable and
necessary and the amount charged was reasonable.” Doc.
18, p. 12. Defendant argues this is insufficient under the
IPT Order and Rule 26(a)(2)(C) for disclosing non-retained
treating providers' opinions on the reasonable value of
medical treatment Mr. Brown received.
the Court's standard practices, the subject of this
motion is inappropriate for a motion near trial.
Allegations that designations are faulty or fail to satisfy
Daubert and its progeny should be brought by motion in a
timely fashion. Do not wait and file such objections in the
form of a motion in limine near trial.
Other cases from the Court addressing similar arguments of
faulty designations for non-retained, treating providers
reflect the party raised the issue months before trial.
See, e.g., Lundquist v. Whitted, No. 15-CV-148-NDF,
2016 WL 3674695, at *4 (D. Wyo. May 25, 2016);
Prager v. Campbell Cty. Mem'l Hosp.,
No. 10-CV-202-J, 2011 WL 13141599, at *3 (D. Wyo. May 11,
2011). Such motions should not wait until 5 weeks before
trial, when there is no longer sufficient time for the
disclosing party to supplement their designation without
prejudicing the movant. Here, Defendant has had these
designations since February 28, 2019 and waited until weeks
before trial to raise the issue. Accordingly, Defendant's
motion (doc. 46) is DENIED as tardy.
motion is also DENIED because for non-retained experts, the
party must disclose only “the subject matter on which
the witness is expected to present evidence” and
“a summary of the facts and opinions to which the
witness is expected to testify.” Fed.R.Civ.P.
26(a)(2)(C). The IPT Order requires a “complete
summary.” Doc. 14, p. 5. In addition to the
“catch-all” designation, Plaintiffs gave adequate
summaries of non-retained, treating providers' opinions.
Many of the summaries sound similar, but they are not
boilerplate. In particular, for most of Mr. Brown's
providers,  Plaintiffs disclosed their opinions
include the “cost” of their services to him. Doc.
18, pp. 4-7, 11 (February 28, 2019).
appears to argue that in order to present evidence of the
billed amounts, Plaintiffs had to designate an expert capable
of testifying regarding the “chargemaster” rates
for that hospital or clinic. Defendant argues
“chargemaster” rates, i.e., the rates
that appear on medical bills to patients, are rates that
providers set artificially high to induce third-party payers
to negotiate and pay more reasonable rates. Thus, in the view
of several law review articles (and Defendant), the medical
bills sent to patients often do not reflect reasonable or
market value. For the latter point, Defendant cites cases
outside of Wyoming and the Tenth Circuit.
respond that their designations are sufficient to ask the
treating providers' to testify regarding their charges to
Mr. Brown, and in addition that they are not necessarily
required to present an expert witness on the billed amounts,
i.e., the “chargemaster” rates, because
they can rely on evidence of the paid amounts to show the
reasonableness of the charges. Plaintiffs cite Colorado law
on this issue: Walters v. Encompass Ins. Co. of
America, 2007 WL 3090766 at *3 (D. Colo. 2007), and
Grabau v. Target Corp., 2008 WL 659776 at *2 (D.
Colo 2008). Under Colorado law, both the billed and paid
amounts are relevant to the reasonable value of medical
services provided. Walters, 2007 WL 3090766 at *2;
Grabau, 2008 WL 659776 at *2. Plaintiffs also cite
22 American Jurisprudence Second - Damages § 734 for
considering evidence of a paid medical bill as prima facie
evidence of the reasonableness of the charge, and for
considering a patient's and physician's testimony on
the medical bills to suffice. For those points, the treatise
cites cases outside Wyoming.
law appears to allow Plaintiffs to risk relying on solely
non-expert testimony to establish the reasonableness of the
charges for which they seek recovery. See, e.g., Wyoming
Med. Ctr., Inc. v. Murray, 2001 WY 63, ¶¶
16-17, 27 P.3d 266, 270 (Wyo. 2001). However, in this case
Plaintiffs appear to plan on presenting testimony as to both
the billed and paid amounts on Mr. Brown's medical
expenses. See, e.g., Doc. 53, p. 6. As Plaintiffs
point out, it is the jury who decides what medical expenses
are reasonable. Defendant does not cite Wyoming authorities
to support his theory that Plaintiffs must present expert
testimony on the “chargemaster” rates for each
treating hospital or clinic. Defendant's argument goes to
the weight of the evidence, not admissibility.
request to exclude Mr. Brown's medical bills or other
evidence of the amount billed for medical services is
premised on his unpersuasive arguments to exclude the expert
testimony. As ...