Eric G.

Jensen*

2010 Supplement to
Chapter 13

ADMISSIBILITY OF SUBSEQUENT
REMEDIAL MEASURES,
INSURANCE COVERAGE,
SETTLEMENTS, PLEA BARGAINS,
AND COLLATERAL PAYMENT OF
MEDICAL EXPENSES

Supplemented:
§§13.8
13.10A (New Section) Motive and Intent Concerning Punitive
Damages
13.15
13.18A (New Section) Cases Interpreting § 490.715, RSMo

I. Subsequent Remedial Measures

B. Exceptions to General Rule

5. (§13.8) Impeachment or Rebuttal of Statements by

Witness

In Rader Family Limited Partnership, L.L.L.P. v. City of Columbia,

307 S.W.3d 243 (Mo. App. W.D. 2010), the Western District of the
Missouri Court of Appeals held that a city’s subsequent remedial
measures in a nuisance and inverse condemnation lawsuit were

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*Mr. Jensen’s biographical information appears on page 13–1 of the original chapter.

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§13.10A ADMISSIBILITY OF SUBSEQUENT REMEDIAL MEASURES, ETC.

not admissible. The court applied the same rationale as it would

in negligence cases, holding that the city will be unlikely to adopt
measures that will protect the public if subsequent remedial
measures could be used against the city in these types of cases.
The court did note that city employees who testified at trial
and made comments that could be construed as controverting
the feasibility of certain remedial measures could be challenged
in cross-examination and impeached with city statements and
policies, even if those policies were adopted after the incident
involved in the lawsuit.

8. (§13.10A) Motive and Intent Concerning Punitive

Damages (New Section)

In Boshears v. Saint-Gobain Calmar, Inc., 272 S.W.3d 215, 226

(Mo. App. W.D. 2008), the Western District of the Missouri Court
of Appeals affirmed a trial court’s ruling under an abuse of
discretion standard when counsel asked Calmar’s witnesses what
Calmar would do differently in the future to avoid injuries to the
plaintiff or others and “whether [Calmar] had learned its lesson.”
The trial court allowed these questions. On appeal, the defendant
contended that these questions amounted to improper testimony
about subsequent remedial measures. The appellate court affirmed
the trial court’s ruling that subsequent acts may be relevant and
admissible as to the issue of exemplary damages. If the actions
are so connected with the particular acts as tending to show the
defendant’s disposition, intention, or motive in the commission of
the particular acts for which damages are claimed, they may be
admitted. Thus, the court affirmed that postevent conduct may be
deemed relevant to mitigate punitive damages or could be
relevant to punitive damages and the conscious disregard of
others’ rights.

III. (§13.15) Settlements and Offers to

Compromise

In Ullrich v. CADCO, Inc., 244 S.W.3d 772 (Mo. App. E.D. 2008), the
Eastern District of the Missouri Court of Appeals affirmed a trial court’s
ruling allowing an attorney’s letter into evidence when the letter
outlined four alternative methods of resolving the dispute between
the parties. The defendant’s counsel introduced the letter into
evidence; the plaintiff objected to it as being an inadmissible offer of
settlement. The trial court ruled that the letter was admissible

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because it was relevant on the issue of punitive damages and whether

the defendant ever intended to perform the parties’ original
agreement. The Eastern District affirmed the trial court’s ruling and
adopted the rationale that, when the settlement offer was
independently relevant to show the defendant’s intent to perform its
obligations, it would be admissible.

IV. Payment of Medical and Other

Expenses by Collateral Sources

C. (§13.18A) Cases Interpreting § 490.715, RSMo

(New Section)

Section 490.715, now RSMo Supp. 2010, was amended effective

August 28, 2005. Missouri courts have struggled with portions of the
revised statute concerning the value of medical treatment in injury
cases. The Supreme Court of Missouri addressed § 490.715 in Deck v.
Teasley, No. SC 90628, 2010 WL 4232835 (Mo. banc Oct. 26, 2010). In
Deck, the Supreme Court held that, under § 490.715, the trial court
erred in using the dollar amount necessary to satisfy the obligation to
the plaintiff's health care providers (the amount paid by Medicare)
rather than allowing the plaintiff to introduce evidence of the amount
of the medical services actually billed. The Court held that the trial
court’s failure to admit the testimony of witnesses who testified that
the amount of the medical services billed by the providers, rather
than the amount actually paid by Medicare, reflected the true value
of the medical services was reversible error. The Court held that the
presumption set out in § 490.715 was a rebuttable presumption and
that the plaintiff properly rebutted the presumption with testimony
that the amount billed, rather than the amount paid, reflected the
true value of the services. The Court also noted that § 490.715
precludes any mention of any collateral source payment in front of
the jury.

In Berra v. Danter, 299 S.W.3d 690, 697 (Mo. App. E.D. 2009),
the Eastern District of the Missouri Court of Appeals held that the
trial court could consider the amount of medical cost “incurred” as set
forth in billing statements, even though it was not the amount
actually paid. The court noted that, before trial, both the plaintiff and
defendant had filed a motion to determine the value of medical
treatment under § 490.715.5(2). The plaintiff had attached to his
motion copies of the medical bills in the amount of $90,062.52,
healthcare and provider affidavits attesting to the reasonableness of

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these charges, and a Medicare medical payment summary. The summary

showed that the plaintiff was billed $118,015.61 but had only paid
$28,734.37. The plaintiff requested that the trial court find that either
the amount of the bills reflected in the original billing statements
($90,062.52) or the amount reflected in the Medicare summary
($118,015.61) constituted the reasonable value of the plaintiff’s
medical treatment. The trial court found that the amounts reflected
in the billing statements were the reasonable value of the medical
services and allowed that amount, $90,062.52, to be presented to the
jury.

The defendant argued that the presumption set forth in

§ 490.715.5(2) had not been rebutted and that the plaintiff should
only be allowed to put into evidence the amount actually paid to
satisfy the medical bills. The Eastern District held that the plaintiff
had rebutted the presumption and that the trial court had the power
under the statute to determine the value of the medical treatment
based on additional evidence, including, but not limited to, the
medical bills incurred by a party. The Eastern District ultimately
stated that the trial court properly considered the amount reflected in
the plaintiff’s billing statements in determining the reasonable value
of the plaintiff’s medical treatment.

In Hall v. Wal-Mart Stores East, LP, 316 S.W.3d 428 (Mo. App. S.D.
2010), the Southern District of the Missouri Court of Appeals held
that the plaintiff’s submitted affidavits were insufficient to rebut the
statutory presumption under § 490.715.5(2). The plaintiff argued
that, under § 490.525.2, RSMo Supp. 2010, his affidavits as to the
reasonableness of medical charges compelled the trial court to accept
those charges and no lower figure as the medical treatment’s “value”
under § 490.715.5(2). The Southern District rejected this argument,
stating that some of the plaintiff’s affidavits made no mention of the
charges or their reasonableness and that § 490.525 permits, but does
not require, the trial court or jury to find in accordance with the
affidavit. The court simply stated that the plaintiff’s attempt to blend
§§ 490.525 and 490.715.5 failed as a concept. The affidavits are just
one factor for the court to consider.

In Klotz v. St. Anthony’s Medical Center, 311 S.W.3d 752 (Mo. banc
2010), the Supreme Court affirmed a trial court’s ruling under
§ 490.715.5(2) concerning the difference between the amount billed
and the amount the insurance paid on the plaintiffs’ medical bills.
The plaintiffs provided evidence that they had signed agreements
with two providers, stating that they were responsible for the

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amounts charged regardless of what insurance paid. The trial court

found that the plaintiffs had rebutted the presumption with regard to
the medical bills, which had a reduced amount paid, because they
presented expert testimony that the bills were reasonable, they were
still subject to liens for unpaid bills, and the medical providers had
not provided any release of obligation to the plaintiffs for any
amounts charged, but not received, by the medical provider. The
Supreme Court stated that the trial court did not err in allowing the
testimony about the full amount charged for the medical bills. The
Supreme Court relied on two things:

1. The plaintiffs provided expert testimony that the full amounts

of the bills were fair and reasonable charges.

2. The plaintiffs continued to have liens concerning the medical

bills.

The bills were reasonable in their entirety, regardless of the amount

paid.

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