The Continuing Expansion Of The Ability For Defendants To Cross-Examine Plaintiff’s Damages Experts On The Reasonable Value Of Future Medical Care

THE CONTINUING EXPANSION OF THE ABILITY FOR DEFENDANTS TO CROSS-EXAMINE PLAINTIFF’S DAMAGES EXPERTS ON THE REASONABLE VALUE OF FUTURE MEDICAL CARE

One of the most significant tort cases in 2024 was Audish v. Macias (2024) 102 Cal. App. 5^th 740. In Audish, the issue was whether the court abused its discretion in admitting evidence that the Plaintiff would have had Medicare medical insurance at age of 65 in determining the Plaintiff’s award of future medical damages. The Court of Appeals sided with the Defense and determined that there was no abuse of discretion. The Court explained as follows: “Indeed, multiple courts have concluded, under similar circumstances, that it is permissible – or even necessary – for a trial court to admit evidence concerning a tort plaintiff’s future eligibility for health insurance and the anticipated amounts the insurer would be expected to pay for the patient’s future medical needs, evidence that is relevant to the reasonable value of future medical care.” Id. at 749. Audish is consistent with other cases that have trended in the same direction such as Cuevas v. Contra Costa County (2017) 11 Cal. App. 5^th 163 and Stokes v. Muschinske (2019) 34 Cal. App. 5^th 45.

Audish continues the trend by Courts in giving Defense counsel lead way to effectively cross-examine Plaintiff’s retained experts on the reasonable value of future medical care costs. Plaintiffs will often designate a life care planner or medical bill review expert which will in the Defense’s eyes inflate the costs of Plaintiff’s future medical services by not considering pay rates by insurers. Audish allows for the cross-examination of the Plaintiff’s expert into whether the expert had taken into account the reasonable value of those future medical care services by using Medicare rates since Plaintiff would have been Medicare eligible.

The Audish ruling allows for Defendants to have the ability to cross-examine experts on the costs by opinions provided by Plaintiff’s experts so that the Defense can help put forth evidence of pay rates of insurance benefits, including Medicare, in determining the value of future medical care. This will be extremely important also in cases where the Plaintiff is older and is either at, or approaching, Medicare eligibility as it can significantly change the evaluation of the case given the wide disparity in Medicare pay rates and Plaintiff’s life care planner testified rates.

Another interesting unrelated determination made in Audish is that the jury awarded $0.00 for future non-economic damages despite awarding the Plaintiff a monetary amount for future medical damages. Plaintiff argued that awarding future economic damages but not future non-economic damages is inadequate as a matter of law. The Court of Appeals rejected that conclusion and determined that a trier of fact can award future economic damages but elect not to award future non-economic damages.