Conventional wisdom and practice hold that in personal injury cases, the plaintiff should introduce post-incident medical bills as an element of damages. However, over the last four or five years in Alabama, plaintiffs have increasingly tried personal injury cases without introducing medical bills—arguing only for pain and suffering damages. The tactic is almost always utilized when a plaintiff has 1) relatively low medical bills, 2) an actual injury (a fracture, or some other injury requiring braces, casts, etc), and 3) a good story to tell. The tactic developed out of the theory that jurors over-value health care costs. I suspect plaintiff-friendly jury consultants have conducted research suggesting jurors over-value healthcare costs when asked to speculate on costs. The theory also developed out of the psychological principle of anchoring: a person’s tendency to rely too heavily on one piece of information when making a decision—usually the first piece of information acquired. If a jury is presented with relatively low medical bills, it follows that the jury should render a verdict anchored to the low medical bills.
Unfortunately, Alabama offers little guidance to juries concerning how they should go about assessing pain and suffering damages. Alabama Pattern Jury Instruction 11.10 provides:
(Name of plaintiff) says that (he/she) has had (pain and suffering) (mental anguish) (emotional distress) (and will have future pain and suffering/mental anguish/emotional distress).
There is no legal rule or yardstick that tells you how much money to award for physical pain (and mental anguish). The amount you decide to award is up to you, but it must be fair and reasonable, based on sound judgment, and proved by the evidence. In deciding the amount of the award, you may consider, among other things, the nature, severity, and length of time (name of plaintiff) had physical pain (and mental anguish).
(You should award (name of plaintiff) an amount for future physical pain (and mental anguish) if (name of plaintiff) has proved that it is reasonably certain that (he/she) will have physical pain (and mental anguish) in the future.)
Without actual medical bills, and no yardstick for pain and suffering, the plaintiff is free to set a high damages anchor (in closing argument) for pain and suffering unconnected to the actual cost of medical care provided to the plaintiff. It is not difficult to see how unpredictable verdicts, and nuclear verdicts in particular, can occur under these circumstances. Moreover, it is extremely difficult to successfully appeal a pain and suffering award given the lack of clear objective standards.
To combat the pain-and-suffering-no-bills tactic, defendants often attempt to introduce relatively low medical bills in an effort to create a concrete and objective (albeit low) anchor from which a jury can base its verdict. Naturally, plaintiffs strenuously object to the introduction of medical bills in such situations. Plaintiffs often argue that since the plaintiff is not seeking to recover for medical bills, medical bills are irrelevant. Plaintiffs argue evidence of medical bills do not make the plaintiff’s pain and suffering more or less probable than it would be without the evidence because the value of medical services is not correlated with the amount of pain and suffering a person might endure as a result of an injury. A very painful injury might be untreatable or the painful injury may require a simple or cheap treatment while a complex and expensive medical treatment may result in very little pain. The method and extent of medical treatment may vary from patient to patient and physician to physician. The value of medical treatment may vary depending on the medical facility, physicians, and community in which care is provided. Finally, plaintiffs argue that even in situations where two people suffer the same injury, undergo the same treatment, and incur the same costs, the perception of pain can vary greatly.
There are no reported decisions in Alabama state or federal courts on the introduction of medical bills when the plaintiff is not seeking compensation for medical expenses. However, a number of courts across the country have weighed in on the tactic. It is perhaps no surprise that state and federal courts across the country have reached different conclusions:
Reported Decisions
- Nestler v. Fields, (“[w]e see no reason [the jury] should be kept ignorant of the cost of Nestler’s medical treatment in determining the facts[]” even when the plaintiff is not seeking recovery of medical expenses) 824 S.E.2d 461, 464 (S.C. Ct. App. 2019)
- Chapman v. Mazda Motor of Am., Inc. 7 F. Supp. 2d 1123, 1125 (D. Mont. 1998) (past medical bills that were not relevant to prove past medical expenses were admissible because they were relevant to the plaintiff’s care and treatment)
- Brice v. National Railroad Passenger Corp. 664 F. Supp. 220, 224 (D. Md. 1987) (although the amount of medical expenses paid through an insurance policy procured by the defendant was not recoverable, the court found that evidence of the bills and expenses for medical care was “relevant to the determination of the full extent and nature of plaintiff’s injuries.”)
- McGee v. River Region Medical Center, 59 So. 3d 575, 581–82 (Miss. 2011) (past medical bills may be relevant and admissible because the amounts “can serve as an aid in [the jurors’] deliberations with respect to the seriousness and extent of the injuries complained of.”)
- Luther v. Lander, 373 P.3d 495, 500, 502 (Alaska 2016) (medical expenses should have been admitted because “evidence of the amount of medical bills is relevant to the severity of a plaintiff’s injuries.”)
- Barkley v. Wallace, 595 S.E.2d 271, 274 (Va. 2004) (plaintiff’s medical bills “tended to establish the probability of [plaintiff]’s claim that she experienced pain and suffering as a result of the accident.”)
- Melaver v. Garis, 138 S.E.2d 435, 436 (Ga. App. 1964) (medical bills were “relevant to show not only the amount of medical expense incurred but the number and duration of plaintiff’s treatment as illustrative of pain allegedly suffered by the plaintiff.”)
- Gladstone v. West Bend Mutual Insurance Company, 166 N.E. 362 (Ind. Ct. App. 2021) (upholding a $0.00 verdict in a case where the defendant was permitted to introduce medical bills at trial even though the plaintiff only sought damages for pain and suffering noting “[c]ommon sense and experience dictate that a more serious injury generally brings with it greater medical expenses as well as greater pain and suffering.”)
- Rodriguez v. Walmart Stores East, LP, 2023 U.S. Dist. LEXIS 104998 (US Dist. Ct. W. Dist. Ok.) (the Court allowed the defendant to present testimony and evidence of the plaintiff’s medical bills but prohibited the defendant from stating or implying that pain and suffering is limited by the amount of medical bills)
- Debower v Spencer, 2021 U.S. Dist. LEXIS 208267 N.D. Iowa (Court excluded medical bills from evidence where the plaintiff was not seeking to recover for medical bills.)
- Pinkett v. Leonard’s Healthcare Corp., No. CV 18-1656 (JEB), 2021 U.S. Dist. LEXIS 80108, 2021 WL 1634565, at *1-2 (D.D.C. Apr. 27, 2021) (“while the scope of Plaintiff’s medical treatment is certainly relevant, . . . ‘the price tag of treatment does not tend to prove or disprove anything about the nature and extent of injuries, save what it has cost to treat them.’”)
- Bridges v. Wal-Mart Stores East, LP, No. CIV-19-213-G, 2021 U.S. Dist. LEXIS 76679, 2021 WL 1579920, at *1 (W.D. Okla. Apr. 21, 2021)
- C.C. v. Suzuki Mfg. of Am. Corp., No. 4:16CV01271 ERW, 2018 U.S. Dist. LEXIS 160788, 2018 WL 4504687, at *7 (E.D. Mo. Sept. 20, 2018)
- J.B. v. Mo. Baptist Hosp. of Sullivan, No. 4:16CV01394 ERW, 2018 U.S. Dist. LEXIS 19689, 2018 WL 746302, at *1 (E.D. Mo. Feb. 7, 2018)
- Campbell v. Garcia, No. 3:13-cv-0627-LRH-WGC, 2016 U.S. Dist. LEXIS 124047, 2016 WL 4769728, at *6-7 (D. Nev. Sept. 13, 2016) (granting plaintiff’s motion to exclude medical bills because “there is no relevance between these costs and [plaintiff’s] purported pain and suffering”)
- Payne v. Wyeth Pharms., Inc., No. 2:08cv119, 2008 U.S. Dist. LEXIS 91849, 2008 WL 4890760, at *6-7 (E.D. Va. Nov. 12, 2008)( “there is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury.” Id. at *6 (quoting and adopting the reasoning of Carlson v. Bubash, 432 Pa. Super. 514, 639 A.2d 458, 462 (Pa. Super. Ct. 1994)))
- Phillips v. Yatsko, 2021 Colo. Dist. LEXIS 1669 (the Court precluded argument or evidence regarding the plaintiff’s past medical bills where the plaintiff was not seeking to recover for past medical bills)
- Wright v. Hixon, 42 Md. App. 448, 456 (1979) (“We see no relevance in the submission of a bill for services submitted by a physician to the severity of appellant’s pain and suffering.”)
- Martin v. Soblotney, 466 A.2d 1022, 1025 (Pa. 1983) (“It is immediately apparent that there is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury. First, the mere dollar amount assigned to medical services masks the difference in severity between various types of injuries. A very painful injury may be untreatable, or, on the other hand, may require simpler and less costly treatment than a less painful one.”).
- Lowe v. Difei Transp., LLC 2022 U.S. Dist. LEXIS 232638 (N.D. Ga. November 10, 2022) (in denying a defendant’s motion in limine to prevent the plaintiff from presenting evidence of some of the plaintiff’s medical treatment, the court observed: “While the dollar amounts charged or owing are not relevant to a claim for pain and suffering, what medical treatment the plaintiff underwent is a concrete element of pain and suffering.”)
Conclusion
The pain-and-suffering-no-bills tactic can be effective in increasing jury verdicts in low medical bill cases. The tactic, along with Reptile Theory tactics, supports the plaintiffs’ bar’s larger objective of generating large appeal-proof jury verdicts. The defendant is not without options; although the great weight of federal case law prohibits the introduction of medical bills in cases where the plaintiff does not seek recovery of medical expenses finding medical bills irrelevant to pain and suffering. The defendant should attempt to obtain testimony from the plaintiff establishing that he/she is seeking compensation for pain and suffering in connection with the medical care and treatment he/she received following the injuries sustained in the accident. The defendant should obtain testimony from the plaintiff’s treating physician establishing that medical bills are helpful in understanding the scope and extent of the plaintiff’s medical care. Where the defendant is precluded from introducing medical bills in a pain and suffering case, the defendant should provide another damages anchor to compete with the plaintiff’s likely extreme damages anchor, and take every opportunity to show the defendant’s damages anchor is a reasonable and objective alternative to the plaintiff’s extreme, unreasonable, unfounded, and baseless damages claim.
M. Jansen Voss has developed a diverse defense litigation and appellate practice in both state and federal courts in Alabama and Mississippi. He represents a wide range of businesses, governmental entities, and individuals in complex personal injury and wrongful death lawsuits, as well as business disputes and breach of contract matters.
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