The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES WELDON STRICKLER and
JUDITH ANNE STRICKLER,
Plaintiffs,
v. Case No.: 2:18-cv-781-FtM-38MRM
WALMART STORES EAST, LP,
Defendant.
/
OPINION AND ORDER1
Before the Court is Defendant Walmart Stores East, LP’s Motion in Limine (Doc.
53), Plaintiffs James and Judith Strickler’s response in opposition (Doc. 54), and
Walmart’s reply (Doc. 66). Walmart seeks two rulings: (1) limit Strickler’s evidence of
past medical expenses to the discounted amount actually paid by Medicare and AARP,
not the amount charged by medical providers; and (2) permit Walmart to introduce
evidence of available Medicare, Medicaid, Veteran’s Administration (“VA”), and AARP
benefits Strickler may have related to future damages. Strickler opposes both requests.
The Court grants and denies the Motion in part.
A motion in limine is a “motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United
States, 469 U.S. 38, 40 n.2 (1984). These motions “are generally disfavored.” Acevedo
v. NCL (Bah.) Ltd., 317 F. Supp. 3d 1188, 1192 (S.D. Fla. 2017). “Evidence is excluded
1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the
Court does not endorse, recommend, approve, or guarantee any third parties or the services or products
they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s
availability and functionality, and a failed hyperlink does not affect this Order.
upon a motion in limine only if the evidence is clearly inadmissible for any purpose.” Id.
(internal quotation marks and citation omitted).
Strickler brought state-law claims, and the Court has diversity jurisdiction. The
Federal Rules govern admissibility of evidence. ML Healthcare Servs., LLC v. Publix
Super Markets, Inc., 881 F.3d 1293, 1299 (11th Cir. 2018). However, determining
damages is a substantive issue controlled by Florida law. Hessen for Use & Benefit of
Allstate Ins. v. Jaguar Cars, Inc., 915 F.2d 641, 645 (11th Cir. 1990). Florida’s collateral
source rule has both substantive and procedural aspects, with the damages component
superseded by statute. Joerg v. State Farm Mut. Auto. Ins., 176 So. 3d 1247, 1249 (Fla.
2015). On the first matter, the precise question is how much past medical expenses
Strickler can seek to recover in damages (a substantive issue) and the resulting
admissibility for relevance (a procedural one). See Schenone v. Zimmer, Inc., No. 3:12-
cv-1046-J-39MCR, 2014 WL 12619911, at *2 & n.2 (M.D. Fla. Aug. 27, 2014) (holding
damages substantive and admissibility a procedural relevance matter under Federal
Rules 401 and 402). While the second point is the admissibility of collateral source
evidence, the answer is the same under either state or federal law.
The Court takes these matters in three parts.
First, the Court grants the Motion for any past medical expenses paid by Medicare.
Strickler may introduce evidence only on the discounted amounts Medicare actually paid.
In Florida, “a party is not entitled to recover the difference between the amount paid by
Medicare or Medicaid and the amount charged by medical providers.” Bowen v. State
Farm Mut. Auto. Ins., No. 6:10-cv-144-Orl-19DAB, 2010 WL 1257470, at *3 (M.D. Fla.
Mar. 29, 2010).2 Because Strickler can only recover the amount Medicare paid, he cannot
introduce evidence of the higher rates charged by medical providers for which neither he
nor Medicare is responsible. That evidence is simply irrelevant to his past medical
expenses as the charges were not incurred. Addressing this exact issue, Judge Moody
held a plaintiff with medical bills paid by Medicaid at a discounted rate could only introduce
evidence of that amount, not the total amount billed. Sensini v. MTD Sw. Inc., No. 5:17-
cv-113-Oc-30PRL, 2019 WL 2015957, at *1 (M.D. Fla. Jan. 7, 2019). Other courts agree.
Lizarazo v. Greaves, No. 1:16-cv-20558-UU, 2018 WL 8224944, at *1 (S.D. Fla. June 21,
2018). The reason for such a rule is simple: courts cannot reduce or set off amounts paid
by Medicare posttrial, so defendants must be able to limit the evidence on damages at
trial to the amount paid as those were the only past expenses incurred. Matrisciani v.
Garrison Prop. & Cas. Ins., No. 4D19-406, 2020 WL 3067749, at *3-4 (Fla. Dist. Ct. App.
June 10, 2020).
Strickler points to a recent case, which differs because it only addressed future
damages. Joerg, 176 So. 3d at 1257. In fact, a substantial part of Joerg’s reasoning was
concern over the uncertain nature of future social legislation benefits and whether they
would be enough to meet plaintiff’s future damages. While dicta buried within a footnote
suggested the court might apply the rationale to past medical expenses, it never ruled on
that issue. Id. at 1256 n.7. What is more, the decision repeatedly relied on Johnson,
which held a plaintiff’s past medical expense damages are limited to what Medicare paid
2 See also Coop. Leasing, Inc. v. Johnson, 872 So. 2d 956, 959-60 (Fla. Dist. Ct. App. Apr. 14, 2004);
Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 549-51 (Fla. Dist. Ct. App. 2003); Nationwide Mut.
Fire Ins. v. Harrell, 53 So. 3d 1084, 1085-87 (Fla. Dist. Ct. App. 2010); Boyd v. Nationwide Mut. Fire Ins.,
890 So. 2d 1240, 1241 (Fla. Dist. Ct. App. 2005).
out. 872 So. 2d at 960. Finally, the issue here is intertwined with a damages calculation,
which differs from Joerg (where a defendant sought to enter collateral source evidence).
Still, for an expansive interpretation of Joerg, Strickler cites a state trial court order
with no reasoning and the Second District’s later affirmance without opinion. Yet a PCA
doesn’t stand for anything. Dep’t of Legal Affairs v. Dist. Ct. of Appeal, 5th Dist., 434 So.
2d 310, 311-13 (Fla. 1983). It is “but a walking shadow, a poor player” strutting upon the
Westlaw stage “full of sound and fury, Signifying nothing.” See William Shakespeare,
Macbeth, Act 5, Scene 5 (1606). As for the other state court order Strickler relies on, the
Court is unpersuaded. It provides no rationale for the decision. And other Florida trial
courts disagree. Storch v. Arnov, No. 2018 CA 009644, 2019 WL 1468007, at *1-2 (Fla.
Cir. Ct. Feb. 13, 2019).
Strickler appears to concedes he cannot recover the difference between the price
Medicare paid and the amount charged by providers. (Doc. 54 at 6). So he asks the
Court permit introduction of the full-board charges, then simply set off or reduce the
difference after trial. Yet the relevant statute prohibits the Court from doing so. Fla. Stat.
§ 768.76(2)(b) (excluding Medicare benefits from collateral sources capable of set off).
Under the statute, there would be no way to set off past medical expenses posttrial to the
amount incurred.3 Dugas v. 3M Co., No. 3:14-cv-1096-J-39JBT, 2016 WL 3966289, at
*1 (M.D. Fla. July 5, 2016). This would provide damages Strickler cannot recover. Given
Medicare’s contractual discounts, that recovery is not insubstantial (apparently over
$450,000 here). Strickler contends Walmart can simply contest the reasonableness of
past medical expenses. Yet the only way for Walmart to do so effectively would be to
3 Strickler made no argument on remittitur. The Court will not do so on his behalf. And as Matrisciani noted,
remittitur would not apply here. 2020 WL 3067749, at *4.
enter Medicare evidence, running afoul the general collateral source rule. Thus—for past
medical expenses paid by Medicare—the Motion is granted and Strickler can only offer
evidence of the discounted amounts Medicare actually paid. To be clear, however, this
ruling is limited to Strickler entering evidence for past medical expenses. Walmart cannot
offer evidence of Medicare (nor any other insurer) paying Strickler’s past medical
expenses. E.g., Sensini, 2019 WL 2015957, at *1, 3.
Second, the Court denies the Motion for any discounted amount paid by AARP.
Strickler contends his AARP policy is a private insurance supplement to Medicare. So
like other private insurance policies, Strickler can introduce the gross past medical
expenses with any amount paid under the policy set off or reduced posttrial. Nationwide
Mut. Fire Ins. v. Harrell, 53 So. 3d 1084, 1085-87 (Fla. Dist. Ct. App. 2010). This includes
any contractual discount from AARP benefitting Strickler. Goble v. Frohman, 901 So. 2d
830, 833 (Fla. 2005). Walmart has not pointed to a single instance when a court limited
a plaintiff’s ability to introduce medical expenses paid by AARP or any similar
nongovernmental entity. Thus, the Motion is denied as it relates to past medical expenses
paid by AARP.
And third, Walmart seeks to introduce evidence of various insurance benefits
available to Strickler related to future damages. If Walmart seeks to introduce evidence
of private insurance, it cannot do so. Sheffield v. Superior Ins., 800 So. 2d 197, 200, 203
(Fla. 2001). Likewise, if Walmart seeks to bring up public insurance programs (like
Medicare and Medicaid), that evidence is inadmissible. Joerg, 176 So. 3d at 1257. As
Justice Lewis explained at length, allowing defendants to introduce this evidence is
improper because it is prejudicial, speculative, misleading for juries, and creates windfalls
for tortfeasors. /d. at 1253-57. Federal courts generally agree. See Holder v. Anderson,
No. 3:16-cv-1307-J-39JBT, 2018 WL 4956757, at *3 (M.D. Fla. May 30, 2018). Thus, the
Motion is denied as to Strickler’s future medical expenses.
Accordingly, it is now
ORDERED:
Defendant's Motion in Limine (Doc. 53) is GRANTED and DENIED in part.
Plaintiffs’ evidence on damages related to past medical expenses paid by Medicare is
LIMITED to the amount the program paid. In all other respects, the Motion is DENIED.
DONE and ORDERED in Fort Myers, Florida this 23rd day of July, 2020.
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record