# Collins v. Benton

> District Court, E.D. Louisiana · July 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10185655

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** July 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185655

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WAYLAND COLLINS, et al. CIVIL ACTION

VERSUS NO. 18-7465

JOHN C. BENTON, et al. SECTION: “G”(5)

ORDER AND REASONS
Before the Court is Plaintiffs Wayland Collins, Candy Kelly, and Alvin Polk’s (collectively,
“Plaintiffs”) “Motion in Limine and Daubert Motion [to] Exclude Nancy Frasier Michalski’s
Testimony or Limit her Testimony at Trial.”1 In the instant motion, Plaintiffs seek to exclude
Nancy Michalski (“Michalski”), a medical bill auditor, from providing expert testimony
regarding the reasonable value of Plaintiffs’ medical services.2 Defendants John C. Benton d/b/a
Q & M Motor Transports, Mark Ingle, and Northland Insurance Company (collectively,
“Defendants”) oppose the motion.3 Considering the motion, the memoranda in support and in
opposition, the record, and the applicable law, the Court denies the motion.
I. Background
On August 7, 2018, Plaintiffs filed a complaint against Defendants in this Court, seeking
recovery for injuries and property damages that Plaintiffs allegedly sustained in an automobile

1 Rec. Doc. 81.
2 See id.
3 Rec. Doc. 105.
accident.4 According to the Complaint, on August 9, 2017, Plaintiff Wayland Collins was
operating a vehicle on Interstate 10 and, while exiting onto Interstate 510, he collided with an 18-
wheeler driven by Defendant Mark Ingle.5 Plaintiffs allege that Defendant Mark Ingle was turning

onto Interstate 510 and negligently misjudged his clearance, resulting in the motor-vehicle
collision at issue.6 Plaintiffs further allege that Defendant Mark Ingle was cited for an “improper
lane change.”7 Plaintiffs bring a negligence claim against Defendant Mark Ingle and Defendant
Q & M Transport, who is allegedly Defendant Mark Ingle’s principal under the doctrine of
respondeat superior.8 Plaintiffs also bring claims against Defendant Northland Insurance
Company, who purportedly insured the 18-wheeler operated by Defendant Mark Ingle.9
On November 13, 2018, the Court issued a scheduling order setting this case for trial on
October 21, 2019.10 On June 11, 2019, approximately 10 months after the filing of the Complaint,
all parties jointly moved to continue the October 21, 2019 trial date and the accompanying
deadlines because Plaintiffs had recently underwent surgery and were in the process of being

treated by several physicians.11 On June 17, 2019, this Court granted the parties’ motion for a
continuance because Plaintiffs appeared to not have reached maximum medical recovery at that

4 Rec. Doc. 1 at 3.
5 Id.
6 Id.
7 Id. at 4.
8 Id. at 5.
9 Id.
10 Rec. Doc. 17.
11 Rec. Doc. 23.
time.12 Thereafter, the Court issued a new scheduling order setting this case for trial on January
27, 2020.13
On November 19, 2019, Plaintiffs filed the instant motion seeking to exclude Michalski
from providing expert testimony at trial.14 On November 26, 2019, Defendants filed an opposition

to the instant motion.15 On December 30, 2019, Plaintiffs moved to extend the time to amend
pleadings in order to add several defendants to this litigation.16 On January 9, 2020, the Court
granted Plaintiffs’ motion to extend the time to amend pleadings in order to add several
defendants to this litigation. As a result, all deadlines in this matter were continued.17 The Court
issued a new scheduling order setting this case for trial on April 12, 2021.18
II. Parties’ Arguments
A. Plaintiffs’ Arguments in Support of the Motion
Plaintiffs make three principal arguments in support of the instant motion to exclude
Michalski’s testimony.19 First, Plaintiffs argue that Michalski’s testimony—concerning whether

Plaintiffs’ medical bills are reasonable—is irrelevant for the trier of fact.20 Plaintiffs state that “in
the absence of bad faith, it is error for the trier of fact to fail to award the full amount of medical

12 Rec. Doc. 25.
13 Rec. Doc. 27.
14 Rec. Doc. 81.
15 Rec. Doc. 101.
16 Rec. Doc. 164.
17 Rec. Doc. 178.
18 Rec. Doc. 197.
19 Rec. Doc. 81-1.
20 Id. at 3.
expenses that are proven by a preponderance of the evidence.”21 Plaintiffs contend that Michalski
has no basis for giving opinions on the reasonable value of medical bills unless she is opining that
such medical bills were incurred in bad faith.22 Because Michalski will not provide any testimony

concerning medical expenses incurred in bad faith, Plaintiffs conclude that her testimony is
irrelevant and will only confuse the jury.23
Second, Plaintiffs argue that Michalski’s methodology is not reliable.24 Plaintiffs contend
that Michalski relies on the Physicians Fee Reference data and other aggregates that “compile
discounts and write-offs without conducting thorough geographic surveys to see what is actually
reasonable in this medical market for privately-owned surgery centers . . . .”25 Moreover,
Plaintiffs argue that Michalski’s report erroneously: (1) uses only reimbursement rates; (2) does
not opine on reasonable costs but instead merely averages the typical reimbursement; and (3)
does not include a geographical survey to see what other physicians charge for their services.26
In addition to the alleged deficiencies above, Michalski’s report also supposedly fails to offer any

conclusions.27

21 Id. at 4 (quoting Antippas v. Nola Hotel Grp., LLC, 2017-0798 (La. App. 4 Cir. 2/27/19), 265 So. 3d
1212, 1218).
22 Id.
23 Id. Plaintiffs also repeat an argument from their omnibus motion in limine. Id. at 5. The repetitive
argument states that Louisiana’s collateral source rule allows Plaintiffs to present the full value of their
medical bills at trial because they remain legally responsible for paying the full value to Medport. Id.
Plaintiffs also argue that Defendants should not be permitted to present Michalski’s testimony because it
would entail an impermissible attempt to circumvent Louisiana’s collateral source rule. Id. at 8. The Court
has considered these arguments.
24 Id. at 11.
25 Id.
26 Id. Plaintiff also contends that Michalski “fails to explain any of the principles underlying her
methodology and fails to provide any facts or date that she relies on in her reports.” Id. at 12.
27 Id.
Finally, if the Court permits Michalski to testify at trial, Plaintiffs request that the Court
exclude Michalski from mentioning Medicaid or Medicare write-offs, medical discounts, private
health insurance, and any other type of collateral source.28 Plaintiffs maintain that this limitation

is appropriate because Defendants cannot legally argue that Plaintiffs’ medical bills are
unreasonable by noting healthcare providers often accept discounted payments.29
B. Defendants’ Arguments in Opposition to the Motion
Defendants make four principal arguments in opposition to the instant motion.30 First,
Defendants argue that they may contest whether Plaintiffs’ medical bills are reasonable.31
Defendants contend that Plaintiffs may recover “reasonable and customary” charges under
Louisiana law.32 For that reason, Defendants contend that they “must be allowed to present
contradictory evidence at trial regarding the reasonable and customary value of the medical
expenses.”33
Second, Defendants argue that Michalski has the requisite knowledge, skill, and experience

to opine on whether Plaintiffs’ medical bills are reasonable.34 Defendants contend that Michalski
has more than 30 years of experience “in the health care profession and, in particular, in the
billing, collection[,] and pricing areas.”35 Defendants point out that from 1984 to 2001, Michalski

28 Id.
29 Id.
30 Rec. Doc. 101.
31 Id. at 4.
32 Id.
33 Id. at 5.
34 Id.
35 Id. at 7.
directed the medical billing department of an outpatient surgical medical unit.36 There, Michalski
established medical charges, negotiated third-party payer contracts, and took responsibility over
medical billing and collections for approximately 2,000 surgeries and 5,000 patients per year.37

Michalski subsequently founded Elevate Services, Inc., a company that allegedly “provides
medical record reviews, medical bill audits, and life care plans to corporate legal departments and
law firms.”38 Finally, since 2000, Michalski allegedly has qualified and testified as an expert
medical bill auditor in court on 89 occasions and 430 times in depositions.39
Third, Defendants argue that Michalski’s methodology is reliable.40 Defendants represent
that Michalski used the “Physicians Fee Reference and Optum databases” and “over 20 other
sources” when forming her opinion.41 Defendants explain that the Physicians Fee Reference
provides a dollar amount “for the usual and customary fees charged for a procedure in [a] specific
geographic area.”42 The Physicians Fee Reference is supposedly “relied on industry wide by
healthcare providers (doctors, clinics and hospitals), [and] insurance payors . . . .”43 Defendants

contend that Michalski used the 75th percentile of the Physicians Fee Reference to establish the

36 Id.
37 Id.
38 Id.
39 Id
40 Id. at 8. Defendants also contend that Plaintiffs “make a number of inaccurate, unsupported assertions to
attack [] Michalski’s methodology.” Id.
41 Id.
42 Id. at 9.
43 Id. at 8–9.
customary fees for medical bills in this case.44
Defendants represent that Michalski’s methodology was “peer-reviewed by Gerard
Anderson, Ph.D.”—a “faculty member at John Hopkins University and a Professor of Health
Policy and Management.”45 He allegedly attests that Michalski’s methodology reliably analyzes

the reasonable market value of medical services.46 On these grounds, Defendants conclude that
Michalski’s methodology is reliable.47
Finally, Defendants argue that the collateral source rule is inapplicable and does not
preclude expert testimony concerning the reasonable value of medical services.48 Defendants
contend that “the collateral source rule is used when the amounts actually charged by the medical
providers are reduced ‘because of monies received by the plaintiff from sources independent of
the tortfeasor’s procuration or contribution.’”49 Yet, according to Defendants, “the collateral
source rule is not used to examine [whether] amounts actually charged by medical providers . . .
are ‘reasonable and customary’ charges.”50

Defendants maintain that Michalski will not testify that any medical expenses were

44 Id. at 9.
45 Id. at 10. Defendants also point out that Judge Vance recently deemed Marilyn Pacheco, a medical billing
expert employed by Elevate Services, as “qualified to render her opinions, employed a reliable
methodology, and that her opinions were relevant to impeach the credibility of plaintiffs’ treating physicians
at trial.” Id. at 10–11.
46 Id. at 10.
47 Id. at 11.
48 Id.
49 Id. (internal citation omitted). Defendants also repeat arguments from their opposition to Plaintiffs’
omnibus motion in limine. Id. at 14. Such arguments need not be summarized again. The Court has
considered these arguments.
50 Id. at 11.
adjusted, discounted, or written-off because of a collateral source.51 She will instead testify about
the usual and customary value of the medical services provided to Plaintiffs.52 Defendants
conclude that “[a]pplication of the collateral source rule to exclude [] Michalski’s testimony
would swell the collateral source rule far past the boundaries established by Louisiana law.”53

III. Legal Standard
The district court has considerable discretion to admit or exclude expert testimony under
Federal Rule of Evidence 702.54 Rule 702 states that a witness “qualified as an expert by
knowledge, skill, experience, training, or education” may provide expert testimony when
“scientific, technical or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue.”55 For the testimony to be admissible, Rule 702
establishes the following requirements:
(1) the testimony must be based upon sufficient facts or data,
(2) the testimony must be the product of reliable principles and methods, and

(3) the expert must reliably apply the principles and methods to the facts of the case.56
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 702
requires the district court to act as a “gatekeeper” to ensure that “any and all scientific evidence
admitted is not only relevant, but reliable.”57 The court’s gatekeeping function involves a two-

51 Id. at 12.
52 Id.
53 Id.
54 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 371 (5th Cir. 2000).
55 Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
56 Fed. R. Evid. 702.
57 Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that
part inquiry.
First, the Court must determine whether the expert testimony is reliable—which requires
an assessment of whether the expert testimony’s underlying reasoning or methodology is valid.58
The court’s inquiry into the reliability of expert testimony is flexible and fact-specific.59 The aim

is to exclude expert testimony based merely on subjective belief or unsupported speculation.60
Second, the court must determine whether the expert’s reasoning or methodology “fits” the facts
of the case and whether it will assist the trier of fact in understanding the evidence.61 The second
inquiry primarily analyzes whether the expert testimony is relevant.62
Yet a court’s role as a gatekeeper does not replace the traditional adversary system.63 A
“review of the caselaw after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”64 “Vigorous cross-examination, presentation of contrary evidence, and

the court’s gatekeeping function applies to all forms of expert testimony).
58 See Daubert, 509 U.S. at 589. The party offering the testimony has the burden to establish reliability by
a preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998)
(citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)).
59 Seatrax, 200 F.3d at 372. Furthermore, in Daubert, the Court identified a number of factors that are useful
in analyzing reliability of an expert’s testimony: (1) whether the theory has been tested; (2) whether the
theory has been subject to peer review and publication; (3) any evaluation of known rates of error; (4)
whether standards and controls exist and have been maintained with respect to the technique; and (5) general
acceptance within the scientific community. See Daubert, 509 U.S. at 592–94. In Kumho Tire Co. v.
Carmichael, the Supreme Court emphasized that the test of reliability is “flexible” and that Daubert’s list
of specific factors does not necessarily nor exclusively apply to every expert in every case. Kumho Tire,
526 U.S. at 142. The overarching goal “is to make certain that an expert, whether basing testimony on
professional studies or personal experience, employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.” Id. at 152.
60 See Daubert, 509 U.S. at 590.
61 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.
62 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.
63 See Daubert, 509 U.S. at 596.
64 Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”
careful instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.”65 “As a general rule, questions relating to the bases and sources
of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”66

IV. Analysis
A. Whether Michalski is a Qualified Expert
Plaintiffs do not appear to argue that Michalski is unqualified to testify as a medical billing
auditor.67 Nor could Plaintiffs seriously contend that Michalski is unqualified to do so.
An expert “need only possess a higher degree of knowledge, skill, experience, training, or
education than an ordinary person in the subject matter of her testimony.”68 Michalski is a
certified legal nurse consultant with more than 30 years of experience “in the health care
profession and, in particular, in the billing, collection[,] and pricing areas.”69 She previously
directed the medical billing department of an outpatient surgical medical unit.70 There, she
established medical charges, negotiated third-party payer contracts, and took responsibility over

the medical billing and collections for approximately 2,000 surgeries and 5,000 patients per

65 Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
66 Id. (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)).
67 See generally Rec. Doc. 81-1.
68 Thomas v. Chambers, No. CV 18-4373, 2019 WL 8888169, at *12 (E.D. La. Apr. 26, 2019) (Vance, J.);
see also Taylor v. Diamond Offshore Drilling, Inc., No. 06-5318, 2009 WL 961273, at *8 (E.D. La. Apr. 7,
2009) (Lemmon, J.) (crediting the expert testimony of a medical bill auditor who owned a company that
assesses the reasonableness of medical bills for insurance companies, attorneys, self-insured companies,
and insurance adjustors); Cummins v. BIC USA, Inc., No. 08-19, 2011 WL 2633959, at *5-6 (W.D. Ky. July
5, 2011) (McKinley Jr., J.) (crediting a medical bill auditor as qualified to render an opinion when she had
been employed as a hospital bill auditor for five years).
69 Rec. Doc. 101-6 at 1.
70 Id.
year.71 With her experience, she has qualified and testified “as an expert medical bill auditor in
state and federal court on 89 occasions and 430 times in depositions for both plaintiffs and
defendants” in the past 20 years.72

For these reasons, Michalski possesses a “higher degree of knowledge, skill, experience,
training, or education than an ordinary person in the subject matter of her testimony.”73 The Court
finds that Michalski is qualified to serve as an expert medical bill auditor.
B. Whether Michalski’s Methodology is Reliable
Plaintiffs argue that Michalski’s methodology is not reliable.74 Plaintiffs contend that
Michalski relies on the Physicians Fee Reference and other aggregates that “compile discounts
and write-offs without conducting thorough geographic surveys to see what is actually reasonable
in this medical market for privately-owned surgery centers . . . .”75 On the other hand, Defendants
contend that Michalski’s reliance on the Physicians Fee Reference is reliable because it is “relied
on industry wide by healthcare providers (doctors, clinics and hospitals), [and] insurance payors

. . . .”76
Federal courts have deemed an expert opinion’s reliance on the Physicians Fee Reference
as sufficiently reliable under the Federal Rules of Evidence.77 Here, Michalski used the 75th

71 Id.
72 Id.
73 See, e.g., Thomas, 2019 WL 8888169 at *12.
74 Rec. Doc. 81-1 at 11.
75 Id.
76 Rec. Doc. 101 at 8–9.
77 See e.g. Thomas, 2019 WL 8888169 at *12; Incardone v. Royal Caribbean Cruises, Ltd., No. 16-20924,
2018 WL 6520934, at *7 (S.D. Fla. Dec. 11, 2018) (Goodman, J.); Lee v. Fischer, No. 08-16, 2009 WL
10678390, at *3 (S.D. Ga. July 10, 2009) (Wood, J.).
percentile of the Physicians Fee Reference—and more than 20 other sources—to establish the
national customary fees for medical bills.78 She used a geographic modifier to arrive at the local
value for these services in the New Orleans area.79 She then compared Plaintiffs’ medical bills to
the local value in the New Orleans area.80 Her methodology was peer-reviewed by Gerard

Anderson, Ph.D.—a “faculty member at John Hopkins University and a Professor of Health
Policy and Management.”81 He attested that Michalski’s methodology reliably analyzed the
reasonable market value of medical services.82 Michalski’s methodology easily passes the
“flexible” reliability test under Federal Rule of Evidence 702.83
Lastly, to the extent that Plaintiffs argue that the Physicians Fee Reference is not a reliable
source, “questions relating to the bases and sources of an expert’s opinion affect the weight to be
assigned that opinion rather than its admissibility and should be left for the jury’s
consideration.”84 It is “the role of the adversarial system, not the court, to highlight weak
evidence.”85

C. Whether Michalski’s Methodology Will Assist the Trier of Fact
Plaintiffs argue that Michalski’s testimony—concerning whether Plaintiffs’ medical bills

78 Rec. Doc. 106-1 at 2–6.
79 Id.
80 Id.; see also Rec. Doc. 101-1; Rec. Doc. 101-2; Rec. Doc. 101-3.
81 Rec. Doc. 101-6 at 2.
82 Id.
83 Seatrax, 200 F.3d at 372.
84 United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996).
85 Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004).
are reasonable—is irrelevant for the trier of fact.86 Plaintiffs state that “in the absence of bad faith,
it is error for the trier of fact to fail to award the full amount of medical expenses that are proven
by a preponderance of the evidence.”87 Plaintiffs contend that Michalski has no basis for giving

opinions on the reasonable value of medical bills unless she is opining that such medical bills
were incurred in bad faith.88 In opposition, Defendants contend that Plaintiffs may recover
“reasonable and customary” medical expenses under Louisiana law.89 Defendants admit that they
seek to use Michalski’s testimony to contest the reasonableness of Plaintiffs’ medical bills.90
Louisiana courts have clearly stated that a trier of fact commits reversible error when (1) it
finds that a defendant’s negligence caused a plaintiff’s injury and medical expenses but (2) does
not award the plaintiff the full value of their medical expenses.91 Indeed, in Gunn v. Robertson,
the Louisiana Fifth Circuit Court of Appeal clearly stated that a “tortfeasor is required to pay for
medical treatment of his victim, even over treatment or unnecessary treatment, unless such
treatment was incurred by the victim in bad faith.”92 The court in Gunn also stated that a “trier of

fact is in error for failing to award the full amount of medical expenses” when proved by a
preponderance of the evidence.93

86 Rec. Doc. 81-1 at 3.
87 Id. at 4 (quoting Antippas, 265 So. 3d at 1218).
88 Id.
89 Id.
90 Id.
91 See, e.g., Gunn v. Robertson, 801 So. 2d 555, 564 (La. App. 5 Cir. 2001); Yee v. Imperial Fire & Cas.
Ins. Co., 25 So. 3d 872, 877 (La. App. 2 Cir. 2009); Revel v. Snow, 664 So. 2d 655, 661 (La. App. 3 Cir.
1995).
92 Gunn, 801 So. 2d at 564.
93 Id.
Recently, in Thomas v. Chambers, another judge in the Eastern District of Louisiana
addressed a similar situation.94 In that case, the defendants attempted to introduce a medical bill
auditor’s expert testimony to assist the jury in determining whether plaintiffs’ medical bills were
reasonable.95 The court held that the medical bill auditor’s expert testimony—concerning whether

the plaintiffs’ medical bills were reasonable—was not admissible if “used solely to suggest to the
jury that plaintiffs’ award of past medical expenses should be reduced because the charges are
unreasonably high for the treatment plaintiffs received.”96 The court elaborated: “If the jury were
to find that plaintiffs’ injuries and medical expenses were caused by [the defendant’s] negligence,
and that plaintiffs did not incur their treatment in bad faith, the jury would be required to award
plaintiffs the full value of their past medical expenses that can be proved by a preponderance of
the evidence.”97 Accordingly, the court held that the medical bill auditor’s expert testimony “[did]
not assist the trier of fact” if introduced to determine whether the plaintiffs’ medical bills were
reasonable.98

Yet the court in Thomas permitted the medical bill auditor to testify for impeachment
purposes.99 In Thomas, one treating physician billed a plaintiff $66,750 for cervical injections,
but the medical bill auditor stated that the services were worth only $8,641.47.100 The treating
physicians apparently sold that $66,750 medical bill to Medport at a substantially discounted

94 Thomas, 2019 WL 8888169 at *12.
95 Id. at *13.
96 Id.
97 Id. (emphasis added).
98 Id.
99 Id. at *14.
100 Id.
price.101 The court noted that a “jury could [] infer that by overcharging plaintiffs, the physicians
were guaranteed to receive a windfall.”102 “Even if [the] plaintiffs’ physicians offered . . . Medport
a substantial discount on these inflated [medical] bills, the physicians’ recovery would still likely
be greater than what [the medical bill auditor] states is the reasonable value for their services.”103

This financial arrangement could be “extremely lucrative to the [treating] physicians.”104
Considering that financial incentive, the court held that the medical bill auditor’s report was
“relevant to impeach the treating physicians’ testimony because it suggests the physicians have a
substantial financial interest in plaintiffs winning their case and receiving more referrals from
[Medport].”105 Thus, “[b]ecause the expert report was relevant to [] impeach the testifying
physicians’ credibility, it assist[ed] the trier of fact with an issue at trial and [was] admissible.”106
Here, Michalski’s testimony cannot be used to attack the reasonableness of Plaintiffs’
medical bills—unless Defendants present evidence that Plaintiffs incurred medical expenses in
bad faith. Under Louisiana law, in the absence of bad faith, a trier of fact must award the full

amount of medical expenses if the expenses are proved by a preponderance of the evidence.107 If
the Court allowed Michalski’s testimony to attack the reasonableness of Plaintiffs’ medical bills
without any evidence of bad faith, the Court would be inviting the jury to do something that it

101 See id.
102 Id.
103 Id.
104 Id.
105 Id.
106 Id.
107 See, e.g., Antippas, 265 So. 3d at 1218. This statement assumes that a defendant’s negligence caused the
plaintiff’s injuries. The jury may find otherwise and refuse to award medical expenses.
clearly cannot do under Louisiana law.
Yet, as in Thomas, Plaintiffs’ treating physicians may have a substantial financial incentive
to provide a favorable medical causation analysis.108 A jury could find that by overcharging

Plaintiffs, the treating physicians will undoubtedly receive a windfall. Indeed, even if Plaintiffs’
treating physicians offered Medport a substantial discount on the medical bills, the treating
physicians’ financial recovery may still exceed Michalski’s estimate for the reasonable value of
such services. That financial arrangement could be “extremely lucrative to the [treating]
physicians.”109
Accordingly, because Michalski’s testimony is relevant to impeach the credibility of
Plaintiffs’ treating physicians, her testimony may assist the trier of fact with an issue at trial and
is admissible.110 Unless evidence that Plaintiffs incurred medical expenses in bad faith is
presented at trial, the Court will instruct the jury that Michalski’s testimony cannot be used to
decrease Plaintiffs’ recoverable medical expenses.

V. Conclusion
Considering the foregoing reasons,

108 Rec. Doc. 101 at 15–17.
109 Thomas, 2019 WL 8888169 at *14.
110 United States v. Abel, 469 U.S. 45, 52 (1984) (“Proof of bias is almost always relevant because the jury,
as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might
bear on the accuracy and truth of a witness’ testimony.”).
IT IS HEREBY ORDERED that Plaintiffs Wayland Collins, Candy Kelly, and Alvin
Polk’s “Motion in Limine and Daubert Motion [to] Exclude Nancy Frasier Michalski’s Testimony
or Limit her Testimony at Trial” is DENIED.!"!
NEW ORLEANS, LOUISIANA, this 294 day of July, 2020.

NANNETTE J ol BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

1 Rec. Doe. 81.
17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185655. Public record. Not legal advice.