United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE
matter is before the Court on a motion by Plaintiffs, Beau
Brooks and Tina Brooks, to preclude the entry of collateral
source evidence [DN 122], to preclude reference to
undocumented and unwitnessed risk assessments or hazard
analyses allegedly performed on the subject roof bolting
lines [DN 121], and to strike Dr. David Shraberg as a witness
[DN 118]. Fully briefed, these matters are ripe for decision.
a product-liability case against Defendant, Caterpillar
Global Mining America, LLC (“CGM”), arising out
of an accident that happened in May of 2013. Plaintiff, Beau
Brooks, a Western Kentucky coal miner, sustained injuries to
his left hand when his hand was crushed between a rib of coal
and a Caterpillar RB220 Roof Bolter. Plaintiffs allege that
the injury occurred because Brooks was holding onto the
operator handle of the roof bolter that extended his hand
beyond the roof and outside the protective operator
compartment. Plaintiffs contend that the crush injuries would
not have occurred if CGM's operator handle had not been
located so close to the edge of the roof bolter's
operator compartment that Brooks left hand was left
unprotected. Brooks and his wife sued CGM.
Collateral Source Evidence [DN 122]
intend to introduce at trial all medical expenses which have
been incurred to date. A substantial portion of the medical
expenses have been paid by Beau Brooks' workers'
compensation insurance carrier. Plaintiffs seek to prohibit
the introduction or reference to the workers'
compensation case or the fact that workers' compensation
insurance, health insurance, and any other third-party
sources not related to the tortfeaser have paid wage and
medical benefits relating to Beau Brooks' injuries.
Plaintiffs also seek to exclude any evidence of any reduction
or charged-off expenses paid by any collateral sources,
including workers' compensation and private insurance.
Plaintiffs also move to preclude the introduction of evidence
regarding the Plaintiff's potential future Affordable
Care Act benefits or the fact that his insurance company may
pay benefits in the future.
does not specifically address the collateral source rule;
instead, it argues that the Kentucky Workers'
Compensation Act precludes the Plaintiffs from introducing
evidence at trial of medical bill totals that exceed the
amount paid by the Plaintiff's Workers' Compensation
carrier, American Zurich Insurance Company, from the date of
the accident forward. Defendant argues that Plaintiffs should
be precluded from introducing evidence of the gross amount of
Beau Brooks' past medical bills to the extent this total
exceeds the total amount paid to him pursuant to the
Workers' Compensation Act fee schedule. Thus, Defendant
seeks an order limiting the amount of the Beau Brooks'
past medical bills presented at trial to the amount that has
been paid by American Zurich.
support of its argument, Defendant cites KRS §
342.035(1) which provides: “Periodically, the
commissioner shall promulgate administrative regulations to
adopt a schedule of fees for the purpose of ensuring that all
fees, charges, and reimbursements under KRS 342.020 and this
section shall be fair, current, and reasonable and shall be
limited to such charges as are fair, current, and reasonable
for similar treatment of injured persons in the same
community for like services, where treatment is paid for by
general health insurers.” Defendant contends that in
light of the statute, any medical bills in excess of what was
paid on Plaintiff's behalf in accordance with the
Workers' Compensation Act fee schedule are not
“fair and reasonable” under Kentucky law. As a
result, Defendant maintains that at trial the only amount
that the jury should be presented regarding the
Plaintiff's total past medical expenses is the amount of
medical bills paid by the Plaintiff's Workers'
Compensation provider. Defendant does not offer any case law
in support of its argument.
collateral source rule “precludes courts from reducing
a plaintiff's medical damages based on insurance payments
made for [his] care, so long as the associated premiums were
paid by the plaintiff [himself] or a third party other than
the tortfeasor.” Fulcher v. United
States, 2014 WL 7375557, at *4 (W.D. Ky. Dec. 29,
2014) (citing O'Bryan v. Hedgespeth, 892 S.W.2d
571, 576 (Ky. 1995)). In Baptist Healthcare Systems, Inc.
v. Miller, “the Kentucky Supreme Court stated that
the collateral source rule ‘allows the plaintiff to (1)
seek recovery for the reasonable value of medical services
for an injury, and (2) seek recovery for the reasonable value
of medical services without consideration of insurance
payments made to the injured party.'” Dossett
v. Wal-Mart Stores East, Ltd. Partnership, 2016 WL
183923, *1 (W.D. Ky. Jan. 14, 2016)(quoting Baptist
Health Care Systems, Inc. v. Miller, 177 S.W.3d 676, 682
(Ky. 2005)) Kentucky courts articulate the following policy
concerns served by the collateral source rule:
First, the wrongdoer should not receive a benefit by being
relieved of payment for damages because the injured party had
the foresight to obtain insurance. Second, as between the
injured party and the tortfeasor, any so-called windfall by
allowing a double recovery should accrue to the less culpable
injured party rather than relieving the tortfeasor of full
responsibility for his wrongdoing. Third, unless the
tortfeasor is required to pay the full extent of the damages
caused, the deterrent purposes of tort liability will be
Dossett, 2016 WL 183923, *2 (citing Baptist
Health Care Systems, 177 S.W.3d at 683)(citing
Schwartz v. Hasty, 175 S.W.3d 621, 626 (Ky. App.
2005))). Based on these policy concerns, the Kentucky Supreme
Court held that “‘it is absurd to suggest that
the tortfeasor should receive a benefit from a contractual
arrangement between Medicare and the health care provider.
Simply because Medicare contracted with [the plaintiff's]
physician to provide care at a rate below usual fees does not
relieve a tortfeasor from negligence or the duty to pay the
reasonable value of [the plaintiff's] medical
expenses.'” Dossett, 2016 WL 183923, *2
(citing Baptist Health Care Systems, 177
S.W.3d at 683-84). This language applies to private medical
insurance or workers' compensation insurance.
Id. While the Court understands the Defendant's
argument, a similar argument has been previously rejected by
the district court in Dossett. “[W]hen faced
with the often abstruse task of determining reasonable
medical damages, the Commonwealth's highest court has
expressed a distinct preference in favor of conscientious
consumers by requiring tortfeasors to satisfy the full amount
of their damages.” Dossett, 2016 WL 183923, at
these reasons, Plaintiffs' motion in limine with respect
to this issue is GRANTED. Defendant's
request to limit the amount of Beau Brooks' past medical
bills presented at trial to the amount paid by the
workers' compensation carrier is DENIED.
Risk Assessments or Hazard Analyses [DN 121]
record reflects that the RB220 roof bolter was initially
designed in 1990 by Simmons Rand Company. The Long-Airdox
Company then acquired Simmons-Rand. The Long-Airdox Company
added the operator handle to the design in 1998. Long-Airdox
was acquired by DBT which was later acquired by Bucyrus
International. Bucyrus was acquired by Caterpillar Inc. and
Caterpillar then essentially ...