Cooperman v. Woodard, No. 311-8-11 Bncv (Wesley, J. Mar. 12, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                        CIVIL DIVISION
Bennington Unit                                                                                       Docket No. 311-8-11 Bncv

Morton Cooperman,
Plaintiff.

v.

Thomas Woodard,
Defendant.

                                                   Opinion and Order
                                            Denying Pending Motions in Limine

      Plaintiff sues Defendant for negligence. Plaintiff alleges Defendant drove into Plaintiff’s
automobile while Plaintiff was stopped at a traffic light. The case is set for a jury trial starting on
March 27, 2014. David Pollack, Esq. represents Plaintiff. John Brady, Esq. represents
Defendant.

Defendant’s Motion in Limine to Exclude Evidence of Medical Costs

        On February 5, 2014, Defendant filed a motion in limine to exclude evidence of medical
costs other than amounts paid. In his motion, Defendant acknowledges Vermont recognizes the
collateral source rule. The collateral source rule prohibits a defendant from offering evidence that
a plaintiff received payment for medical costs from another source to argue the plaintiff is
entitled to less money in damages. See Windsor Sch. Dist. v. State, 2008 VT 27, ¶ 32, 183 Vt.
452. Defendant seeks to introduce evidence of how much Plaintiff’s providers accepted as
payment rather than how much they charged to show the value of the services. Plaintiff opposed
the motion on February 20, 2014. Plaintiff observed that although the Vermont Supreme Court
has not ruled on this issue, the District of Vermont and Vermont Superior Courts have held the
collateral source rule prohibits introducing the amount a plaintiff paid for medical services.

         Judge Sessions evaluated the scope of the collateral source rule in deciding whether to
admit evidence of the reasonable value of medical bills. See Melo v. Allstate Ins. Co., 800
F.Supp.2d 596, 597 (D. Vt. 2011). The court noted the amount of damages for medical expenses
is the reasonable value of the medical services a plaintiff receives. Id. at 599 (quoting Smedberg
v. Detlef’s Custodial Serv., Inc., 2007 VT 99, ¶ 37, 182 Vt. 349). The court then noted that
although the Vermont Supreme Court has not addressed this issue, it has favorably cited a
Wisconsin case that addressed the issue. Id. at 600; see also Windsor Sch. Dist., 2008 VT 27, ¶
35 (citing Leitinger v. DBart Inc., 2007 WI 84, ¶ 33, 736 N.W.2d 1, 10). Allowing a defendant
to introduce evidence of amount paid would effectively circumvent the collateral source rule and
is therefore not permissible. See Melo, 800 F.Supp.2d at 600–01; see also Leitinger, 2007 WI 84,
54 (“The collateral source rule prevents the fact-finder from learning about collateral source
payments, even when offered supposedly to assist the jury in determining the reasonable value of
the medical treatment rendered, so that the existence of collateral source payments will not
influence the fact-finder.”).

        This Court has also applied Melo in a nearly identical case. See Diamondstone v.
Anagnostopulos, No. 546-10-08 Wmcv, 2011 WL 8472904 (Vt. Super. Ct. Aug. 11, 2011)
(Wesley, J.). This Court determined Melo was a carefully reasoned decision and the court
“cannot reasonably take issue with Judge Sessions’ logic or conclusion.” Id. This Court
therefore held that a defendant may not introduce evidence of the amount paid for medical
services. Id. On the other hand, a defendant could introduce other evidence of the value of the
services, such as what the provider usually charges and what other providers charge for similar
services. Id.

       This Court now adopts the reasoning of Melo and Diamondstone. Defendant may not
introduce evidence of how much Plaintiff’s providers accepted as payment for medical services
because that evidence would violate the collateral source rule. See Melo, 800 F.Supp.2d at 600–
01; Diamondstone, 2011 WL 8472904. Defendant may still introduce other evidence of the
value of the services. Accordingly, the Court must deny Defendant’s motion in limine

Plaintiff’s Motion in Limine to Exclude Evidence of Negotiations and Settlements

        On February 28, 2014, Plaintiff filed a motion in limine to exclude evidence of prior
negotiations and settlements. Plaintiff was in an automobile accident in 2007, approximately two
years before the events leading to this case. Plaintiff suffered similar injuries in the 2007
collision as he did in the 2009 collision. Plaintiff settled with the parties involved in the 2007
collision. During the course of settlement negotiations, Plaintiff made several statements about
his injuries. Plaintiff seeks to exclude those statements from this trial under V.R.E. 408. On
March 6, 2014, Defendant opposed Plaintiff’s motion in limine.

        The issue in this motion is whether Plaintiff may offer statements Defendant made in
settlement negotiations for a pervious case to show the extent of damages Plaintiff sustained.
Parties may not offer “statements made in compromise negotiations” to prove liability or the
amount of a claim. V.R.E. 408(a). A party may introduce evidence of settlement negotiations for
other purposes, such as “proving a witness's bias or prejudice; negativing a contention of undue
delay; and proving an effort to obstruct a criminal investigation or prosecution.” V.R.E. 408(b).
Vermont case law does not answer whether settlements for previous injuries are admissible to
show the extent of damages. The Vermont rule is similar to the federal rule and the rules in other
jurisdictions. See Reporter’s Notes to V.R.E. 408.

         The reasoning of courts in other jurisdictions indicates a settlement from a previous law
suit is admissible to show the extent of damages based on a prior injury. See, e.g., Gailey v.
Allstate Ins. Co., 210 S.W.3d 40, 45 (Ark. 2005); Page v. Guidry, 506 So.2d 854, 857 (La. Ct.
App. 1987). Gailey involved a suit for uninsured motorist benefits. 210 S.W.3d at 42. The
plaintiff was involved in two car accidents in a single day. Id. The Arkansas Supreme Court
upheld the admissibility of a settlement where the plaintiff described similar injuries for both
accidents. Id. at 45. The court held: “Because evidence relating to the second accident and
settlement with GEICO was introduced for a purpose other than proving ‘liability for, invalidity

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of, or amount of the claim,’ we hold that the circuit court did not abuse its discretion in admitting
it.” Id. In a similar scenario, the Louisiana Court of Appeals admitted evidence of a settlement
because “plaintiff's veracity and credibility were questioned by the fact that he had submitted the
same medical bills in both settlements and was now seeking recovery for these costs for a third
time.” Page, 506 So.2d at 857.

        Despite allowing evidence of settlements, courts tend to prevent defendants from asking
about the amount of the settlement. See e.g., Id.; Larsen v. Johnson, 958 P.2d 953, 957–58 (Utah
1998). In Page, the court allowed evidence of the previous settlements but only “with the amount
of each deleted.” 506 So.2d at 857. Similarly, the Utah Court of Appeals ruled “the evidence
regarding the amount of plaintiff's settlement was irrelevant and thus had no probative value.”
Larsen, 958 P.2d at 957–58.

        In this case, the Court will likely allow Defendant to introduce evidence about Plaintiff’s
previous settlements and the statements he made in settlement negotiations. As explained in
Gailey, admitting evidence of previous settlements to show prior injuries does not violate V.R.E.
408(a) and likely fits within V.R.E. 408(b). See 210 S.W.3d at 45. In this case, Plaintiff received
similar injuries in a previous automobile collision and Defendant may introduce evidence about
those injuries and statements Plaintiff made in previous settlement conferences to show the
extent of Plaintiff’s injuries. The Court will not likely allow evidence about the amounts of the
settlements because the amount is not relevant and is prejudicial. See Larsen, 958 P.2d at 957–
58. The Court may revisit its determination on the admissibility of the evidence at trial because
the Court will need to evaluate the proffered evidence in the context of the case as it develops.
Nevertheless, the Court will deny Plaintiff’s motion in limine at this point

                                               Order

       The Court DENIES Defendant’s motion in limine to exclude evidence of medical costs .
The Court DENIES Plaintiff’s motion in limine to exclude evidence of negotiations and
settlements.

Dated and signed electronically at Bennington, Vermont on March 12, 2014




                                                              John P. Wesley
                                                              Superior Court Judge




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