United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Partial Summary
Judgment, Doc. 26, regarding medical expenses billed versus
incurred. Plaintiff Flora Deatheridge is suing Defendant for
injuries she allegedly suffered after a trip and fall at one
of Defendant's Dollar General stores. She seeks to submit
evidence of “amounts billed for [medical] expenses
incurred in [her] treatment”-$62, 636.87-and to bar
Defendant from submitting statements or testimony concerning
the lower “actual amounts paid for any [medical]
services, ” $21, 774.70, “as full payment of the
obligations.” 12 Okla. Stat. § 3009.1(A). The Court
declines to rule on the Motion at this time for the following
amended 2015 version of 12 Okla. Stat. § 3009.1 governs
Plaintiff's personal injury suit filed on June 27, 2017.
See Id. § 3009.1(D); Doc. 1. It reads in
A. Upon the trial of any civil action arising from personal
injury, the actual amounts paid for any services in the
treatment of the injured party, including doctor bills,
hospital bills, ambulance service bills, drug and other
prescription bills, and similar bills shall be the amounts
admissible at trial, not the amounts billed for such expenses
incurred in the treatment of the party. If, in addition to
evidence of payment, a party submits a signed statement
acknowledged by the medical provider or an authorized
representative or sworn testimony that the provider will
accept the amount paid as full payment of the obligations,
the statement or testimony shall be admitted into evidence. .
. . . .
C. If no bills have been paid, or no statement acknowledged
by the medical provider or sworn testimony as provided in
subsections A and B of this section is provided to the
opposing party and listed as an exhibit by the final pretrial
hearing, then the amount billed shall be admissible at trial
. . . .
first argues that Defendant waived its ability to offer the
actual amount paid under Section 3009.1 by not asserting that
affirmative defense in its answer. It is unclear if Section
3009.1 is an affirmative defense. Plaintiff raises the Tenth
Circuit's decision in Racher v. Westlake Nursing Home
Limited Partnership “conclud[ing] that Okla. Stat.
tit. 23, § 61.2(B) operates as an affirmative defense,
placing the burden on defendants to assert it.” 871
F.3d 1152, 1166 (10th Cir. 2017). However, Racher
only addressed Section 61.2(B), which “caps noneconomic
damages at $350, 000 unless special findings are made.”
Id. at 1161. Section 3009.1 does not necessarily
warrant the same pleading requirement.
deciding if Section 3009.1 is an affirmative defense, the
Court grants Defendant leave under Federal Rule of Civil
Procedure 15(a)(2) to amend its answer and assert 12 Okla.
Stat. § 3009.1 by May 3, 3018. Leave is justified
because Defendant plausibly argues that Section 3009.1 is not
an affirmative defense, and to the extent Racher
dictates otherwise, the decision came out on September 28,
2017, after Defendant filed its answer in June. See
Doc. 3; Fed.R.Civ.P. 6(b)(1)(b); Bales v. Green, No.
16-CV-106-GKF-JFJ, 2018 WL 840762, at *3 (N.D. Okla. Feb. 13,
2018) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat.
Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014))
(“[G]ood cause may be satisfied . . . ‘if the
underlying law has changed.'”).
Plaintiff argues that the deadline for Defendant to submit
exhibits and witnesses expired in March, and “no
statement . . . or sworn testimony . . . [wa]s provided to
[Plaintiff] and listed as an exhibit”; therefore, only
“the amount billed shall be admissible at trial.”
12 Okla. Stat. § 3009.1(C). Defendant responds that the
statute allows the admission of statements and sworn
testimony about the amount actually paid “by the final
pretrial hearing, ” and to the extent the Court finds
otherwise, Defendant seeks leave to amend its exhibit list to
include the affidavit of Samantha Miller, Jackson County
Memorial Hospital's records custodian, discussing the
amount paid. See Doc. 35, at 9; Affidavit, Doc.
35-6. Defendant also intends to call records custodians from
its final witness list to testify that the amount Plaintiff
actually paid for medical expenses is $21, 774.70.
See Doc. 20.
Defendant's ability to submit the Miller affidavit,
despite Section 3009.1(C)'s “by the final pretrial
hearing” language, the statute merely sets the latest
possible disclosure date, subject to the Court's
scheduling order. Id. The deadline for filing
Defendant's final exhibit list passed on March 28, 2018.
See Doc. 11. Nonetheless, the Court grants
Defendant's request to modify the scheduling order and
its final exhibit list to add the Miller affidavit-and no
other new exhibits-by May 3, 2018. Defendant's plausible
misreading of the statute provides “good cause”
for modification. Fed.R.Civ.P. 16(b)(4). Further, to
the extent Plaintiff takes issue with Miller's affidavit,
she can depose Miller by May 1 or seek leave to extend the
discovery deadline, and she can file a motion in limine by
June 1. See Doc. 11.
Defendants' intention to call hospital records custodians
from its final witness list, Section 3009.1(A) expressly
states that “sworn testimony that the provider will
accept the amount paid as full payment of the obligations . .
. shall be admitted into evidence.” The Court therefore
declines to bar such testimony outright on the basis of
Section 3009.1. Again, this does not bar Plaintiff from
conducting further discovery related to these custodians'
ability to bind medical providers to accept “the amount
paid as full payment of the obligations” and later
challenging that evidence.
summary, the Court grants Defendant until May 3, 2018, to
amend: (1) its answer (Doc. 3) and assert 12 Okla. Stat.
§ 3009.1 as an affirmative defense, and (2) its final
exhibit list (Doc. 23) to add the Miller affidavit. If
Defendant fails to do both, the Court will allow Plaintiff to
present the amount billed for medical expenses.