Salvemini v. Target Stores, Inc.
Filing
110
RULING granting 83 Motion to Preclude; granting 84 Motion to Preclude; denying 106 Motion to Preclude. Signed by Judge Holly B. Fitzsimmons on 4/3/12. (Esposito, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
AMY SALVEMINI
v.
TARGET STORES, INC.
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CIV. NO. 3:08CV402 (HBF)
RULING ON DEFENDANT’S MOTIONS IN LIMINE [DOC. #83, 84, 106]
Plaintiff alleges that a lamp shade fell on her head on
April 10, 2006, while she was shopping at a Target Store located
in Waterford, Connecticut. As a result, she alleges, she
sustained bodily injuries, lost wages and an impairment of her
earning capacity.
Oral argument was held on March 26, 2012, on defendant’s
three pending Motions in Limine.
Trial is scheduled for April
10, 2012.
1.
Defendant’s Motion to Preclude Evidence Regarding Lost Wages
and Impairment of Earning Capacity [Doc. #83]
Defendant moves for an order precluding plaintiff from
introducing evidence of her alleged lost wages and impairment of
earning capacity on the basis that the evidence disclosed during
the discovery process is insufficient to establish plaintiff’s
claims.
1
Plaintiff, who runs a day care business out of her home,
contends that, as a result of the injury at Target, she lost
income and her earning capacity was impaired.
Plaintiff did not
file any Damages Analysis articulating the amount and basis for
her claims.
During the discovery process, plaintiff provided
copies of her tax returns for the years 2002 through 2009.
Plaintiff’s tax returns showed gross receipts from the daycare
services as follows: 2002-$20,006; 2003-$23,994; 2004-$25,585;
2005-$20,729; 2006-$22,109;2007-$23,092; 2008-$20,969; and 2009$18,304. Defendants point out that plaintiff’s gross receipts
were higher in 2007, after the incident, than in 2005 and 2006.
Defendant contends that plaintiff has not produced any evidence
that supports her claim for lost income and the tax returns are
insufficient to show a net loss of clients due to plaintiff’s
alleged injuries.
Ms. Salvemini withdrew the expert, Dr. Gary M. Crakes, Ph.D
she disclosed on economic loss.
Plaintiff agrees that the tax
returns do not, on their own, conclusively establish that her
income and earning capacity have been negatively affected by this
injury. Rather, she intends to offer additional evidence in the
form of testimony supported by her business records.
Specifically, based on calendars from 2004 to the present, in
which she tracked the number of children she cared for daily,
plaintiff plans to testify about the number of prospective day
2
care clients she turned away, as well as the number of clients
she lost following the Target incident. Plaintiff contends she is
competent to testify regarding her damages.
At issue is plaintiff’s contention that she sustained a
twenty-five percent loss of income and impairment of earning
capacity as a result of the injuries she sustained at Target in
2006.
Defendant argues that plaintiff has not explained how she
arrived at this figure.
At deposition, Ms. Salvemini testified she kept a record
of the hours/days her clients were under her care on a calendar
and recorded payment in a receipt book.1 [Amy Salvemini Depo. Tr.
22-25]. She stated she maintains a separate bank account for the
business, tracks business expenses and withdraws money from the
business account to pay for household expenses, as needed. She
testified that her accountant determines what percentage of
general household expenses are attributed to the day care
business. [Amy Salvemini Depo. Tr. 22-25]. Under questioning at
her deposition, Ms. Salvemini was unable to answer what her net
profits were for the years 2005, 2006, 2007 or estimate her
profits for 2008. [Amy Salvemini Depo. Tr. 26-27].
She asserted
at her deposition that she experienced a twenty-five percent loss
1
Plaintiff’s proposed exhibits do not include a receipt
book. The calendars were produced after the deposition, so
defense counsel had no opportunity to examine plaintiff on these
records.
3
in business because she has reduced the number of children she
cares for due to the pain from injuries sustained at Target. [Amy
Salvemini Depo. Tr. 113-15]. At the deposition, Ms. Salvemini was
asked:
Q:
I guess what I’m getting at is, you mentioned
that you are claiming 25 percent of income as
your loss. And I guess I’m trying to figure
out how you get to that figure, how you are
basing that, what are you basing that on?
A:
I don’t have every child as a full-time
child.
Q:
Why do you pick the number of 25 percent?
A:
That’s what it came out to be.
Q:
And how did you reach that figure?
A:
Just with the amount that I had given [my
attorney], the information I had given him.
. . . . .
Q:
When we talked earlier, it seemed like from
2005 to 2006 to 2007 your income has actually
gone up each year; is that correct?
A:
Yes.
Q:
If you are claiming that there is a 25%
reduction in your income, wouldn’t we see . .
. reductions of about 25% each year?
A:
Not necessarily. The way the day care works
is the slots that are taken, you have one kid
full-time, or you’ve got six kids full-time
all week long compared to three part-time and
three part-time and what you charge them, and
it varies. And right now I’m not at where I
would be if I was not injured.
Q:
And in 2005, you made less in net profit than
what you made in 2007; correct?
4
A:
Correct.
[Amy Salvemini Depo. Tr. 117-18].
Plaintiff’s husband, Mark Salvemini, testified that his wife
was claiming a twenty-five percent loss in business but he was
also unable to explain the loss calculation, stating the
accountant did not prepare annual financial statements for the
day care business. [Mark Salvemini Depo. 14-19].
Mr. Salvemini
was asked,
Q:
Have you ever looked at any of the profit
declarations or the income claimed by the
business in these tax returns to attempt to
quantify whether Amy’s business has sustained
any economic loss since April of 2006?
A:
No. I have never evaluated these forms.
[Mark Salvemini Depo. Tr. 19].
At oral argument, plaintiff’s counsel stated he intends to
offer her calendars, pl. exs. 12 (typed) and 13 (contemporaneous
handwritten), and her testimony to explain the flow of clients
both before and after the accident and the day care rates charged
each year.
The lost hours per day/week/year and the day care
rates have not been provided.
Defendant moves to preclude a claim for lost income and
impairment of earning capacity because: (1) the tax returns do
not support the claim; (2) both plaintiff and her husband were
unable to articulate the rationale for how they arrived at a
twenty-five percent loss at their depositions; (3) no damages
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figure has been presented; and (4) there is no financial data to
support the claim.
“A party who seeks to recover damages . . .
on the ground of lost earnings or earning capacity must establish
a reasonable probability that his injury did bring about a loss
of earnings, and must afford a basis for a reasonable estimate by
the trier, court or jury, of the amount of loss.”
Daigle v.
Metropolitan Property and Casualty Ins. Co., 60 Conn. App. 465,
469-70 (2000) (ellipses and brackets omitted) (quoting Bombero v.
Marchionne, 11 Conn. App. 485, 489, cert. denied, 205 Conn. 801
(1987)).
In Daigle, the plaintiff, a self-employed general
contractor, offered tax returns to substantiate his claim for
lost wages and lost earning capacity. The tax returns he sought
to introduce “showed an increase in his net income for each year
after the accident.” Id. 60 Conn. App. at 469.
The Daigle Court
found that “because the plaintiff’s tax returns showed an
increase in net income after the accident, they could not provide
a basis for a reasonable estimate by the jury of an alleged loss
in wages or earning capacity due to his injuries.”
60 Conn. App.
at 270 (finding trial court did not abuse its discretion by
granting defendant’s motion in limine).
On the current record, plaintiff has not demonstrated a
“reasonable probability” that her to lose earnings and earning
capacity. No financial records have been produced from which a
reasonably probable computation of damages can be made, nor has
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plaintiff’s testimony adequately explained her claimed losses.
Rule 26(a)(1)(A) requires a plaintiff to make certain
initial disclosures to the defendant “without awaiting a
discovery request.” Pursuant to subsection 26(a)(1)(A)(iii), the
plaintiff must provide “a computation of each category of damages
claimed” and must “make available for inspection and copying as
under Rule 34 the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each
computation is based.”2
The advisory committee note to Rule 26
describes this last requirement as “the functional equivalent of
a standing Request for Production under Rule 34.” Fed. R. Civ. P.
26 advisory committee's note to 1993 Amendments (explaining that,
“[a] party claiming damages or other monetary relief must ...
make available the supporting documents for inspection and
copying as if a request for such materials had been made under
Rule 34”).
Moreover, Rule 37(c)(1) provides that “[i]f a party
2
Rule 26(a)(1)(A)(iii) of the Federal Rule of Civil
Procedure provides that
A computation of each category of damages
claimed by the disclosing party-who must also
make available for inspection and copying
under Rule 34 the documents or other
evidentiary material, unless privileged or
protected from disclosure, on which each
computation is based, including materials on
the nature and extent of injuries suffered.
See Spinale v. Ball, 352 Fed. Appx. 599, **2 (2d Cir. 2009)
(“Appellants should have been aware that a computation of damages
would be required [under Fed. R. Civ. P. 26(a)(1)(A)(iii)]”).
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fails to provide information . . . as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness
to supply evidence on a motion . . . at a trial, unless the
failure was substantially justified or is harmless.”
Fed. R.
Civ. P. 37(c)(1).
Rule 26(a)(1)(A)(iii) required Ms. Salvemini provide
defendant with a computation of damages and the documents
supporting that claim.
“Failure to provide damage computation
documents may result in exclusion of damages calculation evidence
or expert testimony regarding damage calculations at trial.” 6
James Wm. Moore, Moore’s Federal Practice, at §26.22[4][c] (3d
Ed. 2010). Now, nearly four years after the case was filed,
plaintiff proffers her deposition and her husband’s deposition
testimony and asserts that, at trial, her testimony and calendars
will explain her claim of a twenty-five percent loss in income.
At oral argument, plaintiff’s counsel stated that the calendars
were provided and are “fairly straight forward,” asserting that,
although it’s labor intensive, all one has to do is add up the
open client slots to reach a damages figure.
The Court finds
plaintiff’s disclosure insufficient to provide defendant with a
basis for evaluating the lost earnings damages, insight into
plaintiff’s method, or a reasonable basis for calculating
damages.
Daigle, 60 Conn. App. at 469-70.
Accordingly, defendant’s Motion in Limine to Preclude
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Evidence Regarding Lost Wages and Impairment of Earning Capacity
[doc. #83] is GRANTED.
2.
Defendant’s Motion to Preclude Evidence of Medical Expenses
that have been Written Off or Adjusted by Health Insurance
Carriers [Doc. #84]
Defendant moves for an order precluding plaintiff’s counsel
or any witness from referring to or presenting evidence,
including testimony or statements, or arguments as to amounts
billed to plaintiff for medical treatment which include amounts
eventually written off or adjusted downward by the provider.
Defendant requests an order requiring that all medical bills
submitted to the jury reflect the actual amounts accepted by the
health care providers in payment for their services.
Alternatively, defendant requests that it be permitted to submit
evidence to the jury of the amounts written off or adjusted for
the purpose of assisting the jury in evaluating and deciding the
necessity and reasonableness of the charges and to prevent
misleading evidence from being considered by the jury.
The parties agree that Connecticut General Statute §52572h(a) defines the recovery of “economic damages” as,
“compensation determined by the trier of fact for pecuniary
losses including . . . the cost of reasonable and necessary
medical care.”
Connecticut Superior Court judges considering
this issue have recognized that a plaintiff should not be
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permitted to recover amounts that were billed but then written
off or adjusted.
Madsen v. Gates, 85 Conn. App. 383, n.4
(2004); Smallridge v. Tramantozzi, X04CV0304001300S, 2006 Conn.
Super. LEXIS 3223,*8 (Conn. Super. Ct. Oct. 25, 2006) (“In the
case presented, the award of medical bills greater than actually
paid and, of course, greater than any payer’s subrogation right,
is a windfall. There is no ability on the part of anyone to
collect the difference, and the provider of service has
contractually agreed to the amounts paid.”); Seguenzia v.
Guerriri Masonry, Inc., CV054015138S, 2007 Conn. Super. LEXIS
2684, *23-24 (Conn. Super. Ct. Oct. 11, 2007) (Reducing, on postverdict motion the damages awarded by the jury to “reflect the
amount of medical bills paid by the actual payer and accepted by
the provider as full payment for the bills.”); Bolanos v. Curry,
Docket No. CV01-0341916-S, Tr. of Oral Arg. at 2-3 (Conn. Super.
Ct. Apr. 12, 2005) (citing footnote 4 in Madsen v. Gates); Ozga
v. Federowicz, HHB-CV-04-4000341-S, Tr. Of Oral Arg. at *13
(Conn. Super. Ct. Apr. 13, 2005)(Advising counsel that the
medical bills submitted to the jury should reflect that actual
charge. “If the doctor agreed to reduce the cost of the visit and
has not only accepted a lesser amount from the insurance company
but has also released your client from the difference, then we do
have, in fact, a new charge for the visit.”); Bonin v. Bar B.
Corp., No. X04 CV 05 4004267S, Rul. Pretrial Issues at *4 (Conn.
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Super. Ct June 26, 2007) (Ruling that the “bill presented to the
jury shall presumptively be the “adjusted” amount. If the
plaintiff, who has the burden as to economic damages, wishes to
introduce some higher amount, she shall have the burden to make
some showing that the provider, or a subrogee, has the potential
ability to collect a greater amount from the plaintiff. Once a
showing is made, the court shall determine what amount will be
presented to the jury.”); Owens v. HNS, No: CV08-5016542S, Tr. of
Oral Arg. at *4-5
(Conn. Super. Ct. Nov. 3, 2011)
(“[U]nderstanding that collateral sources should be determined
post verdict, I do believe that a jury should be faced with the
real number, and not some number that has no basis in reality.”).
Plaintiff seeks to admit into evidence the total amount
billed for medical services.
She argues that, “where a third
party, such as a health insurer, has made payments on behalf of
an injured plaintiff, it is proper that the plaintiff be
permitted to include the amount written off when presenting to
the jury evidence of the cost of obtaining “reasonable and
necessary medical care” as contemplated by Conn. Gen. Stat. §52572(a)(1).” [Doc. #89 at 6-7]. Plaintiff contends that jury
should consider the “full value of the service” and “[i]f there
is to be any reduction, such reductions should be addressed via
post-verdict motions under the collateral source statutes.”
Id.;
see Conn. Gen. Stat. §52-255a (Reduction in economic damages in
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personal injury and wrongful death actions for collateral source
payments).
On reply, defendant correctly points out that plaintiff
failed to address the specific argument asserted in defendant’s
motion as to the admissibility of the total amount billed where,
as here, it is uncontested that the medical provider agreed to
accept a lesser amount.
The Court agrees that the question of
whether a collateral source reduction should be made can only be
addressed after plaintiff has been awarded medical bills.
Smallridge v. Tramantozzi, X04CV0304001300S, 2006 Conn. Super.
LEXIS 3223, *5 (Conn. Super. Ct. Oct. 25, 2006) (“The issue
presented is not one involving voluntarily reduced medical bills
or deductions for payments actually made by qualified collateral
sources. Rather, it is about the amount of the medical bill
properly presented to the trier of fact in the first place.”);
Ozga v. Federowicz, HHB-CV-04-4000341-S, Tr. Of Oral Arg. at *5,
14 (Conn. Super. Ct. Apr. 13, 2005) (In ruling on the motion to
preclude unredacted medical bills the court left for another day
the determination of co-pays and insurance premiums).
The Court is persuaded by the cases cited in defendant’s
brief that the appropriate course is to submit the adjusted
medical bills so the jury may properly evaluate and determine the
reasonable and necessary medical expenses actually incurred by
plaintiff or on her behalf.
The Court notes that plaintiff did
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not address defendant’s cases in her brief or at oral argument.
Accordingly, the Court will preclude plaintiff from
introducing into evidence at trial bills from healthcare
providers that do not reflect the amounts written off by the
health care provider or adjusted by the health insurance carrier.
The parties should be able to agree on a format for presenting
stipulated bills as exhibits at trial.
3.
Defendant’s Motion to Preclude Bethany Salvemini From
Testifying as a Witness at Trial [Doc. #106]
Defendant’s Motion to Preclude the testimony of Bethany
Salvemini is DENIED, subject to plaintiff laying a foundation
that the witness is competent to testify regarding the events in
question.
If defendant’s counsel seeks a cautionary instruction,
he should provide proposed language to the Court in advance of
trial.
This is not a Recommended Ruling.
The parties consented to
proceed before a United States Magistrate Judge [doc. #77] on
November 28, 2011, with appeal to the Court of Appeals.
Fed. R.
Civ. P. 73(b)-(c).
SO ORDERED at Bridgeport this 3rd day of April 2012.
______/s/_____________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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