Federal Evidence Review

In Federal Employers’ Liability Act (FELA) action, after circuit reversed and remanded damage assessment as excessive for plaintiff worker who was run over by the train on which he worked, plaintiff could submit evidence of payment of past medical expenses on retrial on medical expense damages because the evidence of past payments would not be used to prove liability, in Williams v. Missouri Pacific R. Co., 11 F.3d 132, 135 (10th Cir. 1993)

There are few cases covering an issue involving FRE 409. The rule limits evidence of “furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury.” However, the rule limits medical expense evidence only to the extent it is used to prove liability. Payment of medical expenses may be otherwise admissible for other purposes.

According to the Advisory Committee Note for the rule, the reason to allow evidence of the payment or offer to pay is that such statements are motivated by humanitarian purposes, and are not made as an admission of liability. As a matter of policy, to allow the use of payment or the offer to pay medical expenses to be used in a liability case would discourage assistance to those who have been injured. ACN FRE 409.

The application of FRE 409 has rarely been a point of contention. One case demonstrating application of the rule come from Williams v. Missouri Pacific R.R., 11 F.3d 132, 135 (10th Cir. 1993). In that case, the circuit addressed whether FRE 409 barred admission of medical expenses paid by the defendant employer in a FELA case when damages only, and not liability, was the issue. The liability of the defendant railroad was not in contention. What was hotly argued was the reasonableness of the jury’s damages assessment. As noted by the circuit the disputed award to the plaintiff worker involved:

“special damages: $1,113,000.00 for past and future loss of earnings and $1,904,000.00 for past and future medical expenses. These amounts, totalling $3,017,000.00, exceed [plaintiff] Williams’ proof by $1,756,640.00.”

Williams, 11 F.3d at 135.

In reversing the judgment and remanding the case, the circuit spent all of one long sentence on teh FRE 409 evidence issue:

“Clearly the amounts awarded for the special damages cannot stand. Unlike general damages for pain and suffering, which are not susceptible to proof by a dollar amount, medical expenses and loss of earnings must be proved by evidence demonstrating the reasonable value of those losses.”

Williams, 11 F.3d at 135.

Because the plaintiff had not established the factual basis for the award, the circuit remanded the case with the following directions:

“The excessiveness of the amounts awarded for medical expenses and lost earnings cannot stand absent evidentiary support. Consequently, we must vacate the award of special damages. On retrial, to avoid possible confusion, the jury should be advised that past medical expenses, except for the $600.00 bill, have been paid and thus may not be estimated and added to the award. The jury may receive such information. See Fed. R. Evid. 409. Evidence of past medical expenses is inadmissible to prove liability, but liability will not be an issue on retrial.”

Williams, 11 F.3d at 135.

Williams stands as one of the few cases touching upon the application of FRE 409. Because the defendant railroad had paid much of the plaintiff’s medical expenses, the circuit directed that this statement be available to the jury, so that it could consider deducting that amount from the total medical damages. The case demonstrates that FRE 409 limits the admission of evidence that a defendant paid for plaintiff’s expenses only when such evidence is offered to prove liability for the plaintiffs injury. Where the payment evidence is relevant for a purpose other than proving liability, as demonstrated by Williams, its admissibility is not barred by the rule.