Eleventh Circuit Court of Appeals Permits Introduction of Evidence of Litigation Funding – Health Law and Regulation Update Blog Post by Claire Sumner
Recent Health Law and Regulation Blog Post by Claire Sumner.
In a much anticipated decision, the 11th Circuit, in Houston v. Publix Super Markets, Inc., 2018 U.S. App. LEXIS 2935 (11th Cir. Feb. 7, 2018), held that a district court did not err in admitting evidence at trial concerning payments made by a litigation funding company to the plaintiff’s treating doctors because the evidence was relevant to show bias on the part of the doctors who testified in the case.
Plaintiff Robin Houston sued Publix Super Markets after she slipped and fell in one of its stores. She subsequently underwent treatment for her injuries from a number of providers, which treatment was largely funded my ML Healthcare, a “’litigation investment’ company that contracts with doctors to provide medical care for injured people with viable tort claims who lack medical insurance.” Houston, 2018 U.S. App. LEXIS 2935, at *2. During the litigation, Publix conducted discovery regarding the relationship between Plaintiff, her treating doctors, and third-party ML Healthcare. Publix learned that, pursuant to its contracts, ML Healthcare purchases at a discounted rate from these physicians the medical debt that the putative plaintiffs incur during their treatment. The contracts also grant ML Healthcare the right to later recover the full cost of the medical care provided out of any subsequent tort settlement or judgment the treated individuals receive.
Publix sought to introduce at trial evidence of these contractual relationships to show that Plaintiff’s treatment providers were biased in their testimony and that Plaintiff’s claimed medical expenses were unreasonable. Plaintiff sought to exclude this evidence, arguing, primarily, that it was barred by Georgia’s collateral source rule. That rule generally gives a plaintiff the right to recover damages undiminished by collateral benefits, the rationale being that a defendant should not benefit from a plaintiff’s mitigation of her losses. Polito v. Holland, 258 Ga. 54, 55 (1988). The collateral source rule usually serves to render evidence of litigation funding, for instance, inadmissible when it’s offered in an effort to reduce damages. Id. at 56. In Houston, however, Publix argued that the arrangement between Plaintiff, ML Healthcare, and non-party providers created a risk of bias on the part of the doctors, who receive referrals from ML Healthcare and who subsequently testify on behalf of the plaintiffs they have treated pursuant to those referrals. If a doctor did not provide a favorable causation opinion – necessary to win the case – ML Healthcare likely would find other doctors who would. Houston, 2018 U.S. App. LEXIS 2935, at *15. Finding that such proffer, i.e. establishing bias, was distinctly non-substantive in nature, the Court held that, procedurally, an evidentiary purpose was served by the admission of the evidence, such that the collateral source rule would not prohibit the jury from hearing of ML Healthcare’s role in the litigation.
Much like the recent state court decision in WellStar Kennestone Hospital v. Roman, 2018 Ga. App. LEXIS 34 (Ga. App. Jan. 30, 2018), the 11th Circuit has now limited plaintiffs’ use of the collateral source rule to hide the interplay of non-parties’ financial gambling in litigation. However, the Houston Court has taken it a step further than the Roman decision did. Not only is evidence of litigation funding discoverable, it may also be admissible if an evidentiary purpose is served by its introduction. The significance of this ruling cannot be overstated. The Houston Court did decline to consider whether evidence of ML Healthcare’s contract rates could be used to attack the reasonableness of Plaintiff’s claimed damages, but the path has certainly been paved for the defense bar to make this argument in the future. The Houston case discusses Alabama’s comparable collateral source rule and, in a footnote, mentions that recent legislative changes in Alabama now permit the introduction of evidence that a plaintiff’s medical bills have or will be paid. Perhaps Georgia will one day follow suit. I attended a seminar recently where we were encouraged to keep attacking these issues at the trial court level with the hope that eventually the Georgia legislature will come around. If nothing else, perhaps decisions like Houston and Roman will discourage the ever rampant medico-legal loop driving personal injury litigation.
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