Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-01818-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01818-RPM-PAC

STEPHEN G. KISER Plaintiff, v.

GORDON HARDENBERGH, M.D.; VAIL VALLEY EMERGENCY PHYSICIANS, P.C.; VAIL CLINIC, INC., a Texas non-profit corporation; VAIL VALLEY MEDICAL CENTER FOUNDATION, a Colorado non-profit corporation Defendants.

DEFENDANTS GORDON HARDENBERGH'S AND V.V.E.P.'S MOTION TO BAR PLAINTIFF'S RECOVERY OF CLAIMED DAMAGES PAID FOR BY COLLATERAL SOURCES AND BRIEF IN SUPPORT

COMES NOW Defendants Gordon Hardenbergh, M.D. and Vail Valley Emergency Physicians, P.C. ("V.V.E.P.")(referred to hereafter together as the "Dr. Hardenbergh") by and through their undersigned counsel, and submit the following motion to have this Court offset any potential jury award against any defendant, by an amount equal to the collateral source payments made to the plaintiff, or on his behalf. In support of his motion, Dr. Hardenbergh states as

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follows: As a part of his claims, the plaintiff seeks to recover as damages from all defendants "out of pocket expenses" which he attributes to the acts and omissions of the defendants. These outof-pocket expenses have already been gratuitously paid by the plaintiff's father, Dr. William Kiser. In the event that there is a jury award in this action, that award is required to be offset by the amounts claimed by the plaintiff as out-of-pocket expenses pursuant to C.R.S. §13-21-111.6. This is because these sums were paid by a "collateral source" of monies on the plaintiff's behalf. These payments were undertaken gratuitously by family members who were under no contractual obligation to do so. As the plaintiff has already received the benefit of these collateral payments, he is statutorily barred from making a second recovery for these same sums, this time from the defendants. Statement of Facts The plaintiff was seen by Dr. Hardenbergh in a Vail, Colorado emergency room on September 2, 2002 for flu-like symptoms, and for orthopedic injuries he sustained when he tripped over his dogs. After the plaintiff was treated, and responded well to medications and fluid hydration, he was discharged with instructions to return if he did not improve, or if his condition worsened. The plaintiff was visited by his father (a retired physician) and his mother (a retired nurse) the evening of September 2, 2002. On the morning of September 3, 2002, the plaintiff's parents visited him again and found that the plaintiff's condition had significantly changed for the worse. He was transported to the hospital emergently and was subsequently transferred to a facility in Aurora, Colorado. The plaintiff was thereafter hospitalized and/or 2

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treated for a significant period of time in facilities in Aurora, Colorado; Cleveland, Ohio and Naples, Florida. The plaintiff brought suit against the defendants seeking to recover, among other things, $162,590.96 of what the plaintiff describes as out-of-pocket expenses. The plaintiff's breakdown of those claimed expenses is attached as Exhibit A. A more detailed breakdown of these claimed expenses is attached as Exhibit B-Summary of Expenses. Exhibit B was produced by the plaintiff and his father pursuant to discovery requests and a subpoena duces tecum. Colorado statutes and case law bar the plaintiff from recovering these amounts against Dr. Hardenbergh and/or the other defendant because they are (1) gifts to the plaintiff; and (2) because these payments to, or on behalf of the plaintiff, are collateral sums against which any award against the defendants must be offset. THE PLAINTIFF CANNOT MAKE A DOUBLE RECOVERY OF AMOUNTS RECEIVED BY HIM OR PAID ON HIS BEHALF The plaintiff's father, Dr. William Kiser, has testified that all of the plaintiff's claimed out-of-pocket expenses were paid for by Dr. Kiser, and that all such payments were gifts. See Exhibit C-Deposition of Dr. William Kiser, p. 141, ll. 16-22. The plaintiff has testified that he has not paid any of his claimed out-of-pocket expenses. See Exhibit D-Deposition of Plaintiff, p. 65, l. 23 through p. 66, l. 17; p. 144, l. 23 through p. 146, l.7. Dr. Kiser states that he will continue to pay such amounts in the future. See Exhibit C at p. 141, l. 23- p. 142, l. 5. Colorado law requires that any award which the plaintiff may receive, must be offset by the amount of gifts and other payments made on his behalf, or which will be made on his behalf. 3

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C.R.S. §13-21-111.6 states that:
In any action by any person or his legal representative to recover damages for a tort resulting in death or injury to person or property, the court, after the finder of fact has returned its verdict stating the amount of damages to be awarded, shall reduce the amount of the verdict by the amount by which such person, his estate, or his personal representative has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company, or fund in relation to the injury, damage, or death sustained; except that the verdict shall not be reduced by the amount by which such person, his estate, or his personal representative has been or will be wholly or partially indemnified or compensated by a benefit paid as a result of a contract entered into and paid for by or on behalf of such person. The court shall enter judgment on such reduced amount.

(emphasis added). As there is no contract between the plaintiff and Dr. Kiser, there is no exception to this statute under which the plaintiff can be awarded the out-of-pocket amounts he claims in this action. This conclusion is consistent with the purposes of C.R.S. §13-21-111.6, which was passed with the intent to prevent double recovery by plaintiffs. See United States Fidelity & Guaranty Co. v. Salida Gas Service Co., 793 P.2d 602, 604 (Colo. App. 1989). Colorado's collateral source statute represents a departure from the common law rule that allowed a plaintiff to seek, and obtain, a double recovery for claimed injuries. In this diversity action, the plaintiff's claimed damages are governed by this statutory override of the common law. The plaintiff's description of portions of his claimed out of pocket expenses as "loans" does not change the fact that they are in reality, gifts. See Exhibit C-Deposition of Dr. William Kiser, p. 130, ll. 3-23 (Dr. Kiser never tried to collect on pre-illness "loans" to the plaintiff); p.

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131, ll. 19 through p.133, ll. 6 (no plan to call due a $60,000.00 loan made to plaintiff in 2002). Dr. Kiser's characterization of these amounts as gifts appears much more accurate than the plaintiff's attempts to characterize any portions of the claimed amounts as loans. Much of the plaintiff's claimed out-of-pocket expenses cannot be described as being caused by, or otherwise attributable to a "loss" as the term is used in C.R.S. §13-21-111.6. For example, the $107,000.00 in cash and "loans" to the plaintiff includes his father's full payment of a $50,000.00 loan taken out by the plaintiff before he became ill. That $50,000.00 loan consolidated some of the plaintiff's debts, including the purchase price of his Land Rover automobile. See Exhibit D-Deposition of Plaintiff, p. 72, l. 24 through p. 73, l. 1; Exhibit CDeposition of Dr. William Kiser, p. 131, l. 19 through p. 132, l. 8. Nothing that these defendants did or did not do in the course of treating the plaintiff entitles him to recover amounts paid to satisfy his car loan. Similarly, the plaintiff's father paid, and the plaintiff is now claiming, $11,006.00 in homeowner association dues for the plaintiff's Vail, Colorado condominium. See Exhibit B, p. K-D-0016 ("Vail Condo"); Exhibit C, p. 154, ll. 21-24. As with the car loan, the plaintiff is not entitled to have the defendants pay for costs for which the plaintiff was going to be responsible had he never become ill in the first place. Finally, the plaintiff is claiming as damages, monies spent for his girlfriend and parents to travel to, and stay in Aurora, Colorado. See Exhibit B, p. K-D-0016 (Dr. and Mrs. Clancy's expenses and Connie Clancy's expenses). Not only do these expenses not belong to the plaintiff, they are in no way attributable to the defendants. While it is Dr. Hardenbergh's position that the plaintiff is not entitled to claim these sums at trial, if he does, and if a jury makes an award to the plaintiff for 5

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these claimed items, then the defendants are entitled to have any award made against them offset by these amounts. Dr. Kiser's gratuitous payment of the plaintiff's claimed expenses without being contractually obliged to do so, precludes the plaintiff from recovering these sums under C.R.S. §13-21-111.6. WHEREFORE Dr. Hardenbergh respectfully requests that, in the event that a jury enters an award against the plaintiffs, this Court offset any such award by an amount equal to the "outof-pocket" expenses claimed by the plaintiff, as well as by any future payments to be gratuitously made by the plaintiff's father, or other family members, in accordance with C.R.S. §13-21-111.6.

Respectfully submitted this 17th day of July, 2006. KENNEDY CHILDS & FOGG, P.C.

s/ Miles L. Buckingham __________________________ Daniel R. McCune Miles L. Buckingham 1050 Seventeenth Street, Suite 2500 Denver, Colorado 80265-2080 (303) 825-2700 Counsel for Defendants Gordon Hardenbergh, M.D. and Vail Valley Emergency Physicians, P.C.

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of July, 2006, a true and correct copy of the foregoing DEFENDANTS GORDON HARDENBERGH'S AND V.V.E.P.'S MOTION TO BAR PLAINTIFF'S RECOVERY OF CLAIMED DAMAGES PAID FOR BY COLLATERAL SOURCES AND BRIEF IN SUPPORT was served by filing the same with the United States District Court for the District of Colorado via the CM/ECF System which will send notification to following individuals: Jerome M. Reinan, Esq. Law Offices of J.M. Reinan 2150 W. 29th Avenue, 5th Floor Denver, Colorado 80211 J. Stephen Mullen, Esq. Retherford, Mullen, Johnson & Bruce, LLC 121 S. Tejon Street, Suite 601 Colorado Springs, CO 80903

s/ Miles L. Buckingham ________________________________

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