Lee v. Small (829 F. Supp. 2d 728, 2011)

MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION..........................................................735

A. Factual Background...................................................735

B. Procedural Background................................................736

II. LEGAL ANALYSIS........................................................737

A. Preliminary Evidentiary Rulings Or Challenges To Claims And Defenses?...........................................................737

B. Relevance And Prejudice Standards ....................................738

C. Uncontested Categories................................................739

1. Evidence of settlement offers........................................739

2. Cross-examination by Small’s counsel regarding Lee’s damages .......739

D. Overlapping Categories................................................740

1. Evidence of liability insurance......................................740

2. Evidence of collateral source payments from Medicare................741

a. Arguments of the parties........................................741

b. Analysis.......................................................742

i. Billed vs. paid medical expenses ...........................742

ii. Identity of the payor......................................745

c. Summary......................................................746

E. Remaining Portions Of Lee’s Motion In Limine..........................746

1. Evidence of the fault of any medical providers........................746

a. Arguments of the parties........................................746

b. Analysis.......................................................747

2. Evidence of correspondence from Medicare...........................751

a. Arguments of the parties........................................751

b. Analysis.......................................................751

3. Evidence of Brown’s fault in causing Lee’s damages..................752

a. Arguments of the parties........................................752

b. Analysis.......................................................752

4. Evidence relating to Lee’s sex life...................................754

a. Arguments of the parties........................................754

b. Analysis..................................... 754

5. Evidence of alcohol consumption and recovery programs ..............755

a. Arguments of the parties........................................755

b. Analysis.......................................................755

F. Remaining Portions Of Small And Toft’s Motion In Limine...............756

1. Damages evidence not disclosed in discovery.........................756

a. Arguments of the parties........................................757

b. Analysis.......................................................757

2. Unidentified experts ...............................................757

a. Arguments of the parties........................................757

b. Analysis.......................................................758

3. Evidence regarding dangerousness..................................758

a. Arguments of the parties........................................758

b. Analysis.......................................................758

4. Evidence of traffic tickets ..........................................760

a. Arguments of the parties........................................760

b. Analysis.......................................................760

G. Brown’s Motion In Limine .............................................763

1. Toft’s factual assertions beyond personal knowledge..................763

a. Arguments of the parties........................................763

b. Analysis.......................................................763

2. Evidence of Small’s status as an EMT and Army Reservist............764

a. Arguments of the parties........................................764

b. Analysis.......................................................764

III. CONCLUSION 764

Two nighttime collisions in quick succession between a tractor pulling farm equipment across a bridge and oncoming passenger vehicles have brought this diversity action before me on pretrial evidentiary motions. While many of the issues presented are appropriate pretrial challenges to admissibility of evidence, some are dis-positive motions dressed up as mere challenges to the admissibility of evidence at trial. Nevertheless, the expeditious resolution of the case requires me to address all of the issues on the footing presented.

I. INTRODUCTION

A. Factual Background

The following factual background is gleaned from the pleadings and the parties’ statements of facts in their evidentiary motions. Late in the evening on November 13, 2009, hours after sunset, Seth T. Small, a farm hand employed by Toft & Sons Farm, was driving a large farm tractor pulling an even wider implement known as a disc ripper or chisel plow westbound on Highway 18, near Spencer in Clay County, Iowa. There appears to be no dispute that Small had the “field lights” on the tractor turned on, but that the implement he was towing was unlit. There also appears to be no dispute that the implement extended well across the center line of the highway. The parties dispute whether the “field lights” blinded oncoming drivers.

Small attempted to cross a bridge, approximately 500 feet long, over the Little Sioux River a few miles east of Spencer. Other parties involved in the incident on November 13, 2009, contend that, at that point, less than a car’s width remained between the implement that Small was towing and the guardrail of the bridge on the eastbound side of the bridge. When Small was about 100 feet onto the bridge, an eastbound vehicle, driven by Llewellyn Brown, approached and collided with the implement. Brown’s vehicle was eventually deflected down the embankment into the north ditch where it struck a tree. Brown alleges that he suffered physical injuries and physical and mental pain and incurred medical expenses and damages to person and property as a result of this first collision.

Small stopped the tractor, either just before or as a result of the first collision. Just after Small, who was an emergency medical technician (EMT), climbed down from the cab of the tractor, intending to render aid to the driver of the vehicle involved in the first collision, a second eastbound vehicle, driven by John Owen Lee, collided with the tractor and implement and also struck Small. Small and Lee each allege that they suffered physical injuries, mental and physical pain and suffering, loss of function of mind and body, and other damages as a result of this second collision.

Somewhat more specifically — because his history of medical treatment is relevant to some of the motions in limine — Lee suffered a fractured left scapula, broken ribs, a lung contusion, and various abrasions. He was taken by ambulance to Spencer Hospital, but was soon transferred to Sanford Health Center in Sioux Falls, South Dakota. On November 18, 2009, while still at Sanford Health Center, Lee was diagnosed with a staphylococcus infection that eventually caused respiratory and renal failure and required a tracheostomy and mechanical ventilation over the next six weeks. Lee was eventually-transferred from Sanford Health Center to Bethesda Hospital in Minneapolis, Minnesota, on January 11, 2010, then to Bayshore Health Center in Duluth, Minnesota, on January 22, 2010. On March 15, 2010, he was transferred again to an assisted living facility in Duluth, where he resided until his release on December 1, 2010. He alleges that he incurred expenses for hospitalizations and medical care as a result of the November 13, 2009, in excess of $600,000. Lee had private group health insurance in effect at the time of the collision and, effective December 1, 2009, he became eligible for and received Medicare coverage. Thus, his medical expenses have been paid, at least in part, by his private insurance and Medicare. The parties dispute the extent to which Lee’s medical expenses were compromised and reduced by agreements between his providers and his insurer and Medicare and the precise amount ultimately paid for his care.

B. Procedural Background

On April 28, 2010, Lee, the driver of the vehicle involved in the second collision, filed a Complaint (docket no. 2) initiating this action, based on diversity of citizenship, naming as defendants Small and Gregory Toft, individually and doing business as Toft & Sons Farm, as Small’s employer and the owner of the tractor and implement that Small was towing. Lee asserts that the defendants were negligent in various respects and that their negligence caused his injuries. On May 20, 2010, the defendants filed a joint Answer (docket no. 4), denying Lee’s negligence claim.

On May 27, 2010, Small filed a separate Counterclaim And Third-Party Complaint (docket no. 5), alleging, inter alia, that “[t]he combined negligence of John Owen Lee and Llewellyn Brown was a proximate cause of the accident and the injuries sustained by Seth T. Small” on November 13, 2009. Counterclaim And Third-Party Complaint, Counterclaim at ¶ 5 and Third-Party Complaint at ¶ 6. Small asserted a counterclaim for negligence against Lee, the driver of the vehicle involved in the second collision, and a third-party claim for negligence against Brown, the driver of the vehicle involved in the first collision. On June 15, 2010, Lee filed an Answer To Counterclaim (docket no. 10), denying Small’s negligence counterclaim against him and asserting various affirmative defenses. On June 21, 2010, Brown filed an Answer (docket no. 13) to Small’s Third-Party Complaint also denying Small’s third-party negligence claim against him and asserting the same affirmative defenses as Lee.

A jury trial on all of these claims was originally set for September 26, 2011, before Senior United States District Court Judge Donald E. O’Brien. See Order (docket no. 16). On March 4, 2011, however, this case was transferred to me, see Order (docket no. 23), and on April 8, 2011, a jury trial was rescheduled before me to begin on December 12, 2011. See Order docket no. 24.

On June 15, 2011, Brown filed a Counterclaim And Cross-Claim (docket no. 27) asserting a negligence claim against Small and Toft, individually and doing business as Toft & Sons Farm, arising from the accident on November 13, 2009. On June 15, 2011, Small and Toft filed a joint Amended Answer (docket no. 29) to Lee’s Complaint, again denying Lee’s negligence claim, but adding various affirmative defenses. On June 24, 2013L, Small and Toft filed a joint Answer To Counterclaim And Cross-Claim Of Llewellyn Brown (docket no. 30), denying Brown’s negligence claims against them and asserting the same affirmative defenses that they had asserted against Lee.

In anticipation of the December 12, 2011, trial date, the parties have now filed various evidentiary motions. Somewhat more specifically, on October 31, 2011, Lee filed his Motion In Limine (docket no. 31), seeking to exclude nine categories of evidence; on November 2, 2011, Small and Toft filed a joint Motion In Limine (docket no. 32), seeking to exclude six categories of evidence; on November 2, 2011, Brown filed his Motion In Limine (docket no. 33), seeking to exclude two categories of evidence; and on November 9, 2011, Lee filed a Supplemental Motion In Limine (docket no. 39), expanding one of the categories of evidence that he seeks to exclude. Unfortunately, there is little overlap among the categories of evidence that these motions seek to exclude, and almost all are contested. Resistances to all of these evidentiary motions have now been duly filed.

My crowded schedule has not permitted the timely scheduling of oral arguments on these motions, nor do I believe that oral supplementation of the written arguments is likely to be helpful to me. Therefore, I will consider these motions on the written submissions.

II. LEGAL ANALYSIS

A. Preliminary Evidentiary Rulings Or Challenges To Claims And Defenses?

As a preliminary matter, I note that Rule 104 of the Federal Rules of Evidence provides, generally, that “[preliminary questions concerning ... the admissibility of evidence shall be determined by the court____” Fed.R.Evid. 104. Preliminary questions may depend upon such things as whether the factual conditions or legal standards for the admission of certain evidence have been met. See id., Advisory Committee Notes, 1972 Proposed Rule. This rule, like the other rules of evidence, must be “construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined.” Fed.R.Evid. 102. I conclude that, with exceptions noted below, preliminary determination of the admissibility of the evidence put at issue in the parties’ evidentiary motions will likely serve the ends of a fair and expeditious presentation of issues to the jury.

As I also observed at the outset of this opinion, however, some of the issues presented as challenges to the admissibility of certain evidence more properly are, or should have been, presented in the form of motions for summary judgment. This is so, because, while they are ostensibly presented as evidentiary challenges, in actuality, they attempt to “define disputed facts and issues and ... dispose of unmeritorious claims [or defenses],” which is the province of summary judgment. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.... ”). Because of the footing in which these issues have been presented, I am hampered in my attempt to resolve them in a speedy and inexpensive manner. See, e.g., Fed. R.CrvP. 1 (the rules of civil procedure “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding”). Specifically, I have been deprived of a more developed factual record, of undisputed and disputed facts, pertinent to the questions presented, and I have been deprived of more extensive briefing of the legal issues. Nevertheless, because those issues are presented now, in the form of motions in limine, I will address them in that form.

B. Relevance And Prejudice Standards

Most, but by no means all, of the categories of evidence at issue in the parties’ motions in limine are challenged on the grounds that the evidence either is not relevant, or if relevant, is more unfairly prejudicial than probative. Where relevance and prejudice are not the primary challenges, they remain the last bulwark against admission of the evidence. Therefore, before turning to the challenged categories of evidence, I will summarize the generally applicable standards of relevance and prejudice.

Rule 401 of the Federal Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides that relevant evidence is generally admissible, but irrelevant evidence is not. Rule 403 provides for exclusion of even relevant evidence on various grounds, as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed.R.Evid. 403. As the Eighth Circuit Court of Appeals recently explained, in the criminal context,

[UJnder Rule 403, the [challenged evidence’s] probative value must be substantially outweighed by unfair prejudice. “Evidence is not unfairly prejudicial because it tends to prove guilt, but because it tends to encourage the jury to find guilt from improper reasoning. Whether there was unfair prejudice depends on whether there was an undue tendency to suggest decision on an improper basis.” United States v. Farrington, 499 F.3d 854, 859 (8th Cir.2007) (quotations omitted).

United States v. Muhlenbruch, 634 F.3d 987, 1001 (8th Cir.2011) (emphasis in the original); United States v. Myers, 503 F.3d 676, 681 (8th Cir.2007) (“Rule 403 ‘does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party’s case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to suggest decision on an improper basis.’ ”) (quoting Wade v. Haynes, 663 F.2d 778, 783 (8th Cir.1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). Similarly, in the civil context, the Eighth Circuit Court of Appeals has observed that evidence was not unfairly prejudicial to the defendant within the meaning of Rule 403 simply because it demonstrated an element of the plaintiff’s claim. Garner v. Missouri Dep’t of Mental Health, 439 F.3d 958, 960 (8th Cir.2006). Instead, the pertinent “prejudice” is the unfair prejudice of decision on an improper basis. Muhlenbruch, 634 F.3d at 1001.

The Advisory Committee Notes to Rule 403 explain that a decision on an “improper basis” is “commonly, though not necessarily, an emotional one.” Fed.R.Evid. 403, Advisory Committee Notes; see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir.2007) (quoting this note); United States v. Dierling, 131 F.3d 722, 730-31 (8th Cir.1997) (considering whether evidence was unfairly prejudicial, because it might lead to a decision on an improper basis, where it purportedly had no connection to the charged offense and revealed grisly or violent behavior that made the defendant appear “dangerous”). Unfairly prejudicial evidence has also been described as evidence that is “ ‘so inflammatory on [its] face as to divert the jury’s attention from the material issues in the trial.’ ” United States v. Adams, 401 F.3d 886, 900 (8th Cir.2005) (quoting United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir.1995)). The Eighth Circuit Court of Appeals has also recognized that Rule 403 may properly be used to exclude evidence that could result in a “trial within a trial” of issues that is not justified by their probative value. See Chism v. CNH America L.L.C., 638 F.3d 637, 642 (8th Cir.2011).

“Generally, the balance of Rule 403 weighing should be struck in favor of admission.” Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 885 (8th Cir.2006). However, whether the probative value of challenged evidence is substantially outweighed by unfair prejudice “is a fact-intensive question,” which must often be answered by the trial court in the course of trial. Bennett v. Nucor Corp., 656 F.3d 802, 813 (8th Cir.2011). ‘“[U]nder Rule 403, great deference is given to a district court’s balancing of the relative value of a piece of evidence and its prejudicial effect.’” Chism, 638 F.3d at 641 (quoting United States v. Zierke, 618 F.3d 755, 759 (8th Cir.2010), in turn quoting United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir.2007)). “A district court has broad discretion whether to admit evidence, and [the appellate court] will not reverse ‘absent a clear and prejudicial abuse of that discretion.’ ” SEC v. Shanahan, 646 F.3d 536, 548 (8th Cir.2011) (quoting Hoselton v. Metz Baking Co., 48 F.3d 1056, 1059 (8th Cir.1995)).

C. Uncontested Categories

Notwithstanding that there is little agreement on the admissibility of most of the challenged categories of evidence, two are uncontested. I will briefly dispose of those categories.

1. Evidence of settlement offers

The fifth category of evidence that Lee seeks to exclude, pursuant to Rule 408 of the Federal Rules of Evidence, is evidence of any settlements of, or any offers to settle or compromise, any of the claims made by any of the parties in this suit. Neither Brown, Small, nor Toft resists exclusion of this category of evidence. Rule 408 plainly precludes such evidence “when offered to prove liability for, or invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction,” although such evidence may be offered for other purposes. Fed. R.Evid. 408. No party cites any permissible purpose for which such evidence might be offered in this case. Therefore, this category of evidence will be excluded.

2. Cross-examination by Small’s counsel regarding Lee’s damages

The ninth category of evidence or argument that Lee seeks to exclude in his Motion In Limine is cross-examination or argument by Small’s counsel on Small’s third-party claim against Brown on any matters concerning Lee’s damages. Lee represents, and the defendants do not dispute, that Small and Toft are jointly represented on Lee’s claim against them, but that Small has separate counsel on his third-party claim against Brown. Lee asserts that Small’s separate counsel has no right to cross-examine witnesses or make arguments before the jury concerning the cause and/or extent of Lee’s damages. To allow otherwise, Lee contends, would effectively give Small multiple representation on the same issues and permit duplicative and repetitive examination and argument that would unfairly prejudice him. No party has resisted this part of Lee’s Motion In Limine. Therefore, Small’s separate counsel, for his third-party claim against Brown, will be precluded from cross-examining Lee or making any argument concerning Lee’s damages.

D. Overlapping Categories

There are also two overlapping categories of evidence that the parties seek to exclude. All parties seek to exclude evidence of their having or lacking liability insurance at the time of the accident or join in others’ motions to that effect. Also, Lee seeks to exclude evidence of collateral source payments from Medicare, while Small and Toft seek to limit Lee’s recovery to the amount of medical bills actually paid (including payments by Medicare) or the net amount due and owing. I will consider these overlapping categories of evidence in turn.

1. Evidence of liability insurance

The one overlapping category of evidence that Lee, Small, and Toft all seek to exclude is evidence of their having or lacking liability insurance at the time of the accident. Specifically, the sixth category of evidence that Lee seeks to exclude is any evidence of his lack of automobile insurance at the time of the collision. He contends that such evidence has no probative value and is inadmissible pursuant to Rule 411 of the Federal Rules of Evidence. Small and Toft do not contest exclusion of this category of evidence in their Resistance (docket no. 36). Indeed, the first category of evidence that Small and Toft seek to exclude, also pursuant to Rule 411, is evidence concerning their having or lacking liability insurance. In Brown’s Response (docket no. 35) to the motion by Small and Toft, Brown joins in their request for exclusion of evidence of liability insurance or the name of the carrier. Lee also does not resist this part of the motion by Small and Toft in his Resistance (docket no. 40) to their motion.

Rule 411 currently provides as follows:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Fed.R.Evid. 411. The parties agree that evidence of the existence or lack of insurance coverage is generally inadmissible, and no party has asserted an excepted purpose for admitting that evidence. Thus, the pertinent parts of the parties’ motions in limine seeking to exclude evidence of the existence or lack of liability insurance will be granted.

2. Evidence of collateral source payments from Medicare

The third category of evidence that Lee seeks to exclude is evidence and discussion of his eligibility for Medicare benefits, the fact that Medicare has made payments for the medical care that he has received to date, or the fact that Medicare may make payments for care that he may require in the future. In particular, in the absence of a stipulation, he contends that Small and Toft must be prohibited from discussing or presenting evidence that a collateral source (Medicare) has paid any lesser sums or portions of the medical expenses that he has incurred as a result of the collision on November 13, 2009. While Brown does not resist this portion of Lee’s Motion In Limine, Small and Toft do. Moreover, as the sixth issue in their Motion In Limine, Small and Toft ask me to rule that Lee is limited to recovering the amount of medical bills actually paid or the net amount due and owing, not a windfall of billed expenses that are not due and owing. I find that these issues would have been better addressed on a motion for summary judgment, for the reasons stated above, in Section II.A. Nevertheless, because these issues are presented now, in the form of a motion in limine, I will address them in that form.

a. Arguments of the parties

Lee argues that the evidence in question in this part of his Motion In Limine is precluded by Iowa Code § 668.14(1), because that statute may permit evidence concerning payments made by his group health insurance plan, but it unequivocally prohibits evidence and argument concerning payments made by a state or federal program, such as Medicare. Although he admits that Iowa courts have allowed evidence of actual payments to medical providers, which may be probative as to the fairness and reasonableness of the medical expenses, Iowa courts have also rejected jury instructions that limited the recovery to the amount that a similar state or federal program actually paid. Lee agrees that evidence of collateral source payments may be admitted for the limited purpose of permitting the parties to argue the fairness and reasonableness of medical charges, and he even admits that payments accepted by medical providers in lesser amounts than billed charges may be evidence of what is fair and reasonable, but he argues that the payor may not be identified. He also argues that, pursuant to Iowa Code § 668.14, he may also provide evidence that the unreduced charges are fair and reasonable and that the jury may award the higher amount. In short, Lee asserts that, if Small and Toft do not stipulate to (1) the actual amounts of his medical expenses paid by the collateral sources and (2) the fact that these amounts paid by the collateral source must be reimbursed from Lee’s recovery, pursuant to 42 U.S.C. § 1395y(b)(2)(A)(ii), then Small and Toft must be prohibited from discussing or presenting evidence that a collateral source has paid any lesser sums or portions of the medical expenses that he has incurred as a result of the collision on November 13, 2009.

In resistance to this portion of Lee’s motion, Small and Toft argue that evidence of the payments, adjustments, and write-offs by a state or federal program, such as Medicare, may be introduced to establish the actual expense of the medical services provided to an injured plaintiff and that, Iowa Code § 668.14 notwithstanding, the collateral source rule is not implicated by such evidence. They argue that such evidence is relevant, because a plaintiff is only entitled to recover the reasonable and necessary costs of medical care, and the reasonable value of those services may be proved by evidence of the amount actually paid for those services. They contend that they seek to introduce evidence of Medicare payments for the limited purpose of showing fairness and reasonableness of the medical charges. They also argue that nothing in Iowa case law suggests that, when evidence of Medicare payments is offered for this purpose, the identity of the payor must be hidden.

In their own Motion In Limine, they assert that Lee is only entitled to recover the amount of medical bills that was actually paid by any insurance provider or Medicare, and/or the net amount that remains due and owing, because only those amounts are recoverable as damages actually sustained as a result of his tort injuries. Any larger sum, they argue, is a windfall. Thus, they seek to exclude recovery of any amounts written off by the healthcare provider to obtain payments from Medicare or an insurance provider. They argue that Lee has not actually incurred any costs that care providers have written off and that the collateral source rule is inapplicable to such write-offs. They argue that Lee is not entitled to recover additional funds nor is he entitled to introduce into evidence any initial charges that are greater than the amount insurers or Medicare actually agreed to and paid.

In his resistance to- the motion by Small and Toft, Lee argues that he incurred roughly $700,000 in medical bills as a result of injuries that he sustained in the collision on November 13, 2009, but that his private insurance and Medicare have settled with his care providers for approximately $300,000. He disputes the position taken by Small and Toft that he is only entitled to recover the compromised amount that his insurance and Medicare paid. He argues that the Iowa Supreme Court has rejected the contention that an injured party’s recovery for past medical services should be limited to the amount actually paid for medical services. Instead, he argues that the Iowa Supreme Court recognizes the principle that damages are measured by the reasonable value of medical services and that the amount paid is but one form of evidence on that issue. He also argues that the Iowa Supreme Court has recognized the possibility that medical charges may be compromised for reasons other than the unreasonableness of the billed amounts.

b. Analysis

I find that it is appropriate to consider separately the questions of whether Lee’s damages for medical expenses are limited to the amount paid by his private insurance and Medicare, rather than the amount that he was billed for medical expenses, and whether Medicare may be identified as one of the payors.

i. Billed vs. paid medical expenses. As the parties acknowledge, in Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150 (Iowa 2004), the Iowa Supreme Court considered whether the trial court “erred in limiting [a tort] plaintiffs recover to the amount paid for medical services rendered to him and in instructing the jury accordingly.” Pexa, 686 N.W.2d at 155. The court noted, first, that “[w]hether a plaintiff may recover more than the amount actually paid for medical care is a legal question.” Id. As a question of substantive law, it is plainly governed by Iowa law in this diversity action, although federal procedural rules otherwise apply. See, e.g., In re Baycol Prods. Litig., 616 F.3d 778, 785 (8th Cir.2010) (“ ‘It is, of course, well-settled that in a suit based on diversity of citizenship jurisdiction the federal courts apply federal law as to matters of procedure but the substantive law of the relevant state.’ ” (quoting Hiatt v. Mazda Motor Corp., 75 F.3d 1252, 1255 (8th Cir.1996), in turn citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938))).

On this substantive legal question, in Pexa, the Iowa Supreme Court explained the scope of the “collateral source rule,” as follows:

The collateral source rule is a common law rule of evidence that bars evidence of compensation received by an injured party from a collateral source. Schonberger v. Roberts, 456 N.W.2d 201, 202 (Iowa 1990). The rule prevents the jury from reducing the tortfeasor’s obligation to make full restitution for the injuries caused by the tortfeasor’s negligence. Id. Although this rule has been modified by statute, see Iowa Code § 668.14 (1999), it continues to preclude evidence of payments made pursuant to any federal program for an injured person’s actual economic losses, see id. § 668.14(1).

Pexa, 686 N.W.2d at 156. Iowa Code § 668.14 provides, in pertinent part, as follows:

1. In an action brought pursuant to this chapter seeking damages for personal injury, the court shall permit evidence and argument as to the previous payment or future right of payment of actual economic losses incurred or to be incurred as a result of the personal injury for necessary medical care, rehabilitation services, and custodial care except to the extent that the previous payment or future right of payment is pursuant to a state or federal program or from assets of the claimant or the members of the claimant’s immediate family.

Iowa Code § 668.14(1) (emphasis added). In Pexa, the court concluded that the collateral source rule was not implicated, “because the court did not reduce the plaintiffs recovery by the amounts paid by a collateral source; rather, the court limited the plaintiffs recovery to those amounts,” see Pexa, 686 N.W.2d at 156, just as Small and Toft seek to limit Lee’s recovery to the amount paid by Medicare and his private insurance. Thus, ■ the collateral source rule does not answer the question of whether or not Lee’s recovery is limited to the amounts paid by Medicare and his insurance.

The court in Pexa went on to explain,

A proper calculation of the plaintiffs medical expenses must precede a determination of their recoverability; only the latter issue implicates the collateral source rule. Thus, the pertinent question here is not whether there has been an inappropriate offset to the plaintiffs economic loss, but instead whether the court’s rulings and instructions improperly limited the evidence and incorrectly calculated that loss. To answer this question, we must consider the rules governing the measurement and proof of an injured person’s medical expenses.

Pexa, 686 N.W.2d at 156. Turning to those rules, and their application, the court stated,

An injured plaintiff may recover only the reasonable and necessary costs of medical care. See Stanley v. State, 197 N.W.2d 599, 606 (Iowa 1972). Therefore, the plaintiff has the burden to prove the reasonable value of the services rendered. See id.; Ege v. Born, 212 Iowa 1138, 1153, 236 N.W. 75, 82 (1931). The reasonable value of medical services can be shown by evidence of the amount paid for such services or through the testimony of a qualified expert witness. Stanley, 197 N.W.2d at 606; Arnold v. Ft. Dodge, Des Moines & S. R.R., 186 Iowa 538, 547, 173 N.W. 252, 255 (1919). The amount charged, standing alone, is not evidence of the reasonable and fair value of the services rendered. Stanley, 197 N.W.2d at 606-07; Arnold, 186 Iowa at 547, 173 N.W. at 255. The billed amount is relevant only if that figure was paid or an expert witness has testified to the reasonableness of the charges. Arnold, 186 Iowa at 547, 173 N.W. at 255. We have consistently held that evidence of the amount charged will not, in the absence of proof of the reasonableness of the billed sum, support recovery of medical expenses. Stanley, 197 N.W.2d at 606-07; Ege, 212 Iowa at 1151-52, 236 N.W. at 82; Arnold, 186 Iowa at 547, 173 N.W. at 255. This court has also stated that the jury is not bound by the testimony of an expert with respect to the reasonable value of medical services, but “may use and be guided by their own judgment in such matters.” Ege, 212 Iowa at 1153, 236 N.W. at 82.

With these principles in mind, we conclude the trial court erred in limiting the plaintiffs proof of the reasonable value of his medical expenses to the amount paid to and accepted by the medical providers. Counsel for Auto Owners candidly acknowledged at oral argument that he had agreed to stipulate that a particular witness, if called at trial, would testify that the charges of the hospital and other providers were fair and reasonable. Had such testimony been permitted, the plaintiff would have provided an adequate evidentiary basis for the jury to award the billed charges to compensate Pexa for past medical expenses. •

We reject the insurer’s contention that an injured party’s recovery for past medical services should be limited to the amount actually paid for medical services. This position is contrary to the long-standing principle that such damages are measured by the reasonable value of medical services, and the amount paid is but one form of probative evidence on this issue. In addition, this argument fails to account for the possibility that medical charges may be compromised for reasons other than the unreasonableness of the billed amount.

Pexa, 686 N.W.2d at 156-57.

The Iowa Supreme Court’s decision in Pexa plainly establishes that the parties here are both overplaying their positions. Lee’s assertion that, in the absence of a stipulation, Small and Toft must be prohibited from discussing or presenting evidence that a collateral source has paid any lesser sums or portions of the medical expenses that he has incurred as a result of the collision on November 13, 2009, is wrong. The decision in Pexa plainly establishes that “[t]he value of medical services can be shown by evidence of the amount paid for such services.” Id. at 156. Thus, the evidence of amounts paid that Lee seeks to preclude is admissible under Pexa, without regard to any stipulation by Small and Toft as to the amount of those payments or the fact that the payors must be reimbursed from any recovery in this case. At the same time, Small and Toft go too far when they argue that Lee’s recovery must be limited to the amount that Medicare and his private insurance paid, rather than the amount that he was billed. The Iowa Supreme Court expressly rejected this contention in Pexa. Id. at 157 (“We reject the insurer’s contention that an injured party’s recovery for past medical services should be limited to the amount actually paid for medical services.”).

The decision in Pexa establishes not only the controlling rule, but the evidentiary framework here: The question of Lee’s recovery for medical expenses does not turn, alone, on either the amount that he was billed for medical care or the amount that has been paid by his insuranee or Medicare, it turns on “the reasonable and necessary costs of medical care.” Id. at 156. To determine “the reasonable and necessary costs,” the jury may consider the amount paid, while the amount billed is not, in and of itself, probative, until “that figure was paid or an expert witness has testified to the reasonableness of the charges.” Id. In other words, evidence of the amount billed will not be admissible here until the figure billed has been shown to be “reasonable” from evidence that it was paid or from expert evidence. Evidence of the amount paid, in turn, may be shown not to be the “reasonable” amount by evidence that it was compromised for reasons other than “unreasonableness.” Id. at 157.

While I may have some sympathy for the argument by Small and Toft that allowing recovery in excess of the amount paid for medical expenses would result in something of a “windfall” to Lee, the Iowa Supreme Court has expressly sanctioned that result. Id. Small and Toft’s reliance on decisions from other jurisdictions in support of this contention is of no moment, where Iowa decisions establish the substantive law on this point in this diversity action. See In re Baycol Prods. Litig., 616 F.3d at 785.

The unpublished decision of the Iowa Court of Appeals in Wildner v. Wendorff, 723 N.W.2d 451, 2006 WL 2265453 (Iowa Ct.App.2006) (table op.), cited by both parties, is not to the contrary on any of these points — nor could it control over Iowa Supreme Court precedent. Citing Pexa, that decision held that evidence of payments, adjustments, and write-offs by Medicaid was introduced to establish the actual expense of the medical services provided to the plaintiffs, and that being the case, the collateral source rule was not implicated. Wildner, 2006 WL 2265453 at *4. Although the Iowa Court of Appeals held that the plaintiffs were only entitled to recover the reasonable and necessary costs of the medical care and that the reasonable value of those services could be proved by evidence of the amount paid for such services, see id., it did not hold that the plaintiffs’ recovery was limited to the amount paid for such services.

In short, if supported by proper evidence of “reasonableness,” Lee may recover more than the amount actually paid by his insurance or Medicare, but evidence of the amount actually paid will not be excluded.

ii. Identity of the payor. Because information about payments made by Medicare is admissible, the remaining question is whether or not Medicare should be identified as the payor. Lee argues that it should not, while Small and Toft argue that nothing in Iowa law precludes identifying Medicare as the payor.

Small and Toft miss the point. While information that a collateral source, such as Medicare, has paid certain medical expenses is relevant to the determination of Lee’s damages for reasonable medical expenses, the identity of the payor has.no probative value that I can see, and Small and Toft identify none. Because the identity of the payor has little or no discernible probative value, relatively little potential for prejudice or confusion would substantially outweigh admission of such identity information. See Fed.R.Evid. 403. Identification of the payor as Medicare could invite a decision on an improper basis, in that it could induce jurors to give either too much or too little weight to the inferences of “reasonableness” from payment of the expenses by a government program. See id., Advisory Committee Notes (explaining the meaning of decision on an “improper basis”); Muhlenbruch, 634 F.3d at 1001 (Rule 403 is intended to prevent decision on an “improper basis”). Moreover, the statutory reformulation of the common-law collateral source rule in Iowa Code § 668.14, directed specifically at payments from government programs, suggests that the Iowa legislature perceived a particular danger in identification of the payor as a government program. In my view, whatever probative value information about collateral payment of Lee’s medical expenses might have is essentially the same if the payor (either Lee’s private insurer or Medicare) is identified simply as an “insurer.” Therefore, this part of Lee’s Motion In Limine will be granted to the extent that the amount of medical expenses actually paid by collateral sources may be identified only as payments by “insurers,” with more specific identifying information redacted.

c. Summary

The third part of Lee’s Motion In Li-mine, seeking to exclude evidence of collateral source payments from Medicare, will be granted to the extent that the amount of medical expenses actually paid by collateral sources, including Medicare, may be identified only as payments by “insurers,” but will otherwise be denied. The sixth part of the Motion In Limine by Small and Toft, asking me to rule that Lee is limited to recovering the amount of medical bills actually paid or the net amount due and owing, will be denied.

E. Remaining Portions Of Lee’s Motion In Limine

Lee’s challenges to the admissibility of five categories of evidence remain unresolved. Brown either does not resist exclusion of these categories of evidence or joins in Lee’s request to exclude them, but Small and Toft do resist exclusion of these categories of evidence. I will consider these five categories of evidence in turn.

1. Evidence of the fault of any medical providers

The first category of evidence that Lee seeks to exclude is evidence concerning the fault of any of his medical providers. Lee anticipates that Small and Toft may attempt to show that his injuries and medical complications as a result of and following the collision on November 13, 2009, were caused or worsened by his medical providers and, consequently, his medical providers’ negligence was a superseding cause of most of his injuries, relieving Small and Toft from liability for those injuries. He argues that Small and Toft should be precluded from doing so. Small and Toft argue that a jury should determine whether certain elements of damages are recoverable against them. I find that this issue would have been better addressed on a motion for summary judgment, for the reasons stated above, in Section II.A. Nevertheless, because the issue is presented now, in the form of a motion in limine, I will address it in that form.

a. Arguments of the parties

Lee argues that the substantive law is clear: Small and Toft are responsible for his damages, even if his damages were enhanced or multiplied by his “misadventures” with medical care. He argues that Iowa cases show that, so long as he was not negligent in selecting a physician to treat his injuries, Toft and Small are responsible for the injuries their negligence caused, any aggravation or increase of those injuries by any of his physicians’ negligence, and the results of the treatment. In other words, he argues that medical treatment sought by an injured person is a normal consequence of the original tortfeasor’s conduct, and the original tortfeasor is also liable for any adverse effects of aid or treatment of those injuries, even if the aid or treatment was negligent. He argues that whether or not the physician’s negligence is a superseding intervening cause only arises in subsequent ■ litigation involving contribution among tortfeasors. Lee argues that there will be and can be no evidence presented that he was in any way negligent in selecting his medical care, so that Small and Toft are liable under the law for the full extent of his damages, which include all of his damages manifested in the course of his care at Sanford Health Center, including his damages from the staphylococcus infection that he contracted there.

In the alternative, Lee argues that fault cannot be allocated to his medical providers pursuant to Iowa Code §§ 668.2 and 668.8, because they are non-parties. Lee points out that he has not filed a negligence claim against any of his medical providers, nor has he negotiated a settlement with or released any of his medical providers, and he doubts that he even has any claim against them. Lee argues that the risk of prejudice raised by any discussion of the fault of non-parties outweighs any purpose for doing so that Small and Toft may offer.

Small and Toft argue that the issue of whether Lee’s injuries resulted from their conduct or from treatment by his medical providers is a jury question. They argue that the evidence will show that a significant amount of the damages that Lee claims relate solely to the treatment of the staphylococcus infection. Thus, they argue that the jury should be able to make a factual determination that the stay in the hospital, where Lee contracted the staphylococcus infection, was an intervening cause which Small and Toft could not reasonably foresee or anticipate. They contend that the Iowa Supreme Court has recognized that the factors quoted in Restatement (Second) Of Torts § 442 are relevant to the determination of whether an intervening act or force constitutes a superseding cause. They also argue that a serious staphylococcus infection is not the type of harm that normally follows a car accident a week after being hospitalized. Although they do not contend that a physician or medical provider was a superseding cause of Lee’s damages as a matter of law, they do argue that the jury should determine that issue as a matter of fact,

b. Analysis

As Lee points out, decades ago, the Iowa Supreme Court observed as follows:

Numerous decisions hold that where one negligently injures another who exercises reasonable care in selecting a physician to treat the injury, and it is aggravated or increased by the physician’s negligence, the original tortfeasor is liable for the results of the treatment. Phillips v. Werndorff, 215 Iowa 521, 522, 243 N.W. 525 [ (1932) ], and citations; Johnson v. Selindh, 221 Iowa 378, 382-383, 265 N.W. 622 [(1936)]; Annotations, 8 A.L.R. 506, 39 A.L.R. 1268, 126 A.L.R. 912; 15 Am.Jur., Damages, section 85; 25 C.J.S. Damages § 20, p. 477. To like effect is Restatement, Torts, section 457.

* * *

And the rules just mentioned seem equally applicable to negligent treatment of an injury by nurses or other employees of a hospital in which the injured person is treated. See Feinstone v. Allison Hospital, 106 Fla. 302, 143 So. 251 [ (1932) ]; Restatement, Torts, section 457, Comments c and d; 26 Am.Jur., Hospitals and Asylums, section 14; 15 Am.Jur., Damages, section 85, page 496. See also Lucas v. City of Juneau, D.C.Alaska, 127 F.Supp. 730, 732 [ (1955) ].

Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 386-87, 101 N.W.2d 167, 173-74 (1960); see also Hunt v. Ernzen, 252 N.W.2d 445, 446-47 (Iowa 1977) (citing an even older source for the rule in Iowa, Collins v. City of Council Bluffs, 32 Iowa 324, 329 (1871), and also citing Paine v. Wyatt, 217 Iowa 1147, 1149, 251 N.W. 78, 79 (1933)). Indeed, read casually, some Iowa cases seem to suggest that any argument that a physician’s malpractice in treating a plaintiffs injuries was a superseding intervening cause is simply barred, if the plaintiff was not negligent in selecting the doctor. See, e.g., Casey v. Koos, 323 N.W.2d 193, 197 (Iowa 1982) (stating, “Assuming there was no negligence in selecting the doctor, which is not claimed here, the general rule is that a tort-feasor is responsible for the negligence of an attending physician in treating the injured party,” (citing Hunt, 252 N.W.2d at 446; Schnebly v. Baker, 217 N.W.2d 708, 730 (Iowa 1974); and Bradshaw, 251 Iowa at 386, 101 N.W.2d at 173), and rejecting, as “without merit,” the defendant’s attempt to introduce evidence of the attending physician’s malpractice in treating the plaintiffs injuries, on the basis that it was a superseding intervening cause of the plaintiffs condition). Small and Toft fail to address any of this authority.

Nevertheless, their position — that there may be fact questions for the jury to resolve as to whether the negligence of Lee’s medical providers, resulting in Lee’s staphylococcus infection, was a superseding intervening cause of much of Lee’s damages — is not wholly without merit. For example, in Casey, the Iowa Supreme Court noted that, in a preceding case, Schnebly, “additional facts” had raised a fact question on the issue of whether medical malpractice in the care of the injured party was a superseding intervening cause. Casey, 323 N.W.2d at 197 (citing Schnebly, 217 N.W.2d at 729). In Casey, however, the court ultimately held that, under the circumstances of that case, the trial court had correctly rejected the defendant’s offer of proof of a superseding intervening cause based on the attending physician’s malpractice. Id. That decision does not make clear what “circumstances of the present case” precluded the argument and offer of proof, except that there was no showing of circumstances like those in Schnebly “involving the negligent conduct of the defendant doctor in continuing to rely on hospital reports after he knew or should have known they were erroneous,” and that the issue arose only in the context of contribution between two tortfeasors, both of whom were held hable to the injured plaintiff. Id. (citing Schnebly, 217 N.W.2d at 729).

Similarly, the Iowa Court of Appeals has also observed that “[generally, medical treatment sought by an injured person is considered a normal consequence of the tortfeasor’s conduct,” and that the “general rule” is, “ ‘if the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal effects of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.’” Weems v. Hy-Vee Food Stores, Inc., 526 N.W.2d 571, 573 (Iowa Ct.App.1994) (quoting RESTATEMENT (SECOND) OF TORTS § 457). Thus, the court observed, “[a] defendant will be liable for the adverse results of medical treatment unless the treatment is extraordinary or the harm is outside the risks incident to the medical treatment.” Id. (citing Restatement (Second) of Torts § 457, comments d and e).

In Weems, the court explained why a fact question was not presented, and why the “general rule” of Restatement (Second) Of Torts § 457 applied, as follows:

It is immaterial in our analysis that the later injury in this case, spinal meningitis, was a rare side effect of the medical treatment. The important evidence was the undisputed testimony that an epidural block was an accepted and common treatment for chronic back pain and that spinal meningitis was a known risk of the procedure. These facts establish the lack of superseding cause.

We readily recognize the general rule that the determination of whether an intervening act constitutes a superseding cause should be made by the fact finder. Iowa Elec. Light & Power [v. General Elec. Co.], 352 N.W.2d [231] at 235 [ (Iowa 1984) ]. Nevertheless, it is the exclusive function of the court to declare the existence or nonexistence of the rules governing superseding cause. Stalter by Stalter v. Iowa Resources, Inc., 468 N.W.2d 796, 801 (Iowa 1991); Restatement (Second) of Torts § 453. If the facts are undisputed, the court is duty-bound to apply the rules to determine the existence or extent of a negligent actor’s conduct. Stalter, 468 N.W.2d at 801; Restatement (Second) of Torts § 453 comment b. Where the facts are in dispute or room exists for a reasonable difference of opinion on whether the intervening act is a superseding cause, the question is for the jury. Haumersen [v. Ford Motor Co.], 257 N.W.2d [7] at 15 [(Iowa 1977)]; Restatement (Second) of Torts § 453 comments b and c.

We conclude the trial court correctly rejected Hy-Vee’s requested jury instruction on superseding cause. It was not supported by substantial evidence. The undisputed evidence revealed that medical treatment rendered to Weems was not an extraordinary or unforeseeable act. It was within the scope of the original risk of harm of Hy-Vee’s negligence. Hy-Vee exposed Weems to the risk of harm and under the superseding cause analysis, it is immaterial that the precise harm to Weems was rare or even unforeseeable. The instructions by the court properly allowed the jury to consider whether the negligence of Hy-Vee was a proximate cause of the subsequent spinal meningitis, but under the record in this case it was not possible to conclude that the epidural block treatment was a superseding cause.

Weems, 526 N.W.2d at 574 (emphasis added). Thus, Weems involved a fully developed record, including undisputed evidence that spinal meningitis was a rare, but known risk of an accepted and common treatment for the plaintiffs injury.

In the present case, the question is presented in a motion in limine, not in a motion for summary judgment or a post-trial motion for relief from a jury verdict, that is, it is not presented after development of any kind of record. Therefore, I do not have a sufficiently developed record to determine that, as a matter of law, a staphylococcus infection is a known risk of hospitalization or a known risk of accepted and common medical treatments that Lee received (or, indeed, whether the medical treatments that Lee received were accepted and common or extraordinary or unforeseeable). Cf Weems, 526 N.W.2d at 574. Nor has Lee pointed me to any sources from which I could take judicial notice of such facts. Similarly, I have no information, on the present record, from which I could conclude, as a matter of law, that there were or were not “additional circumstances” regarding hospital or physician negligence that might take this case outside the scope of the “general rule” that, if there was no negligence in selecting the doctor, the original tortfeasor is responsible for the negligence of an attending physician in treating the injured party, and make the question of whether medical malpractice was a superseding intervening cause a fact question. Casey, 323 N.W.2d at 197. Under these circumstances, the part of Lee’s Motion In Li-mine seeking to exclude evidence (or argument) concerning the fault of any of his medical providers will be denied as premature.

Nevertheless, my suspicion that Small and Toft will not be able to generate a triable issue on their “superseding intervening cause” theory, at least if Lee is correct that they have designated no medical experts with reference to his medical condition, is sufficiently strong that I will not initially instruct on that theory as a basis for limiting their liability. Cf. Weems, 526 N.W.2d at 574 (affirming denial of a “superseding intervening cause” instruction, because it was not supported by substantial evidence). Nor will I instruct that the negligence of any hospital or medical provider is a basis for attributing such entity or person a percentage of fault under the Comparative Fault Act, even though the Iowa Supreme Court likely would apply comparative fault principles to that question. See Jahn v. Hyundai Motor Co., 773 N.W.2d 550, 559-60 (Iowa 2009). This is so, because no hospital or medical provider is a “party” to this action within the meaning of Iowa Code § 668.2 to whom fault can be attributed under Iowa Code § 668.3. See Iowa Code § 668.2 (defining a “party” as “a claimant,” “a person named as a defendant,” “a person who has been released pursuant to section 668.7,” or “a third-party defendant”); Iowa Code § 668.3 (requiring that percentages of fault be attributed to parties). Not only has Lee not sued or released any of his medical providers in this lawsuit, but it is also apparent that Small and Toft have not asserted a third-party complaint against any medical providers on the ground that they are or may be liable to them for all or part of Lee’s claim against them. See Fed. R.CrvP. 14(a) (stating, in pertinent part, “A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.”).

Therefore, I will deny the part of Lee’s Motion In Limine seeking to preclude evidence that negligence of medical providers was a superseding intervening cause of any of Lee’s damages, but I will not ini tially instruct on such a defense, either, nor will I submit to the jury, under any circumstances, any question of the comparative fault of medical providers in causing Lee’s damages.

2. Evidence of correspondence from Medicare

The second category of evidence that Lee seeks to exclude is evidence of correspondence from Medicare, the Medicare Secondary Payer Recovery Contractor (MSPRC), or the Center for Medicare Services (CMS). Brown does not oppose this part of Lee’s Motion In Limine, but Small and Toft do. I find that, unlike the preceding issue, this issue is a straightforward one concerning the admissibility of evidence properly addressed on a pretrial evidentiary motion. See Fed.R.Evid. 104.

a. Arguments of the parties

Lee asserts that it is undisputed that he turned age 65 on December 14, 2009, making him eligible for Medicare effective December 1, 2009, and that Medicare thereafter made payments of significant sums to medical providers who treated him for his injuries and medical complications. Nevertheless, Lee asks me to preclude evidence or discussion concerning correspondence from Medicare (or its contractors or agents, MSPRC and CMS, collectively “Medicare”) regarding its evolving estimates of its payment for Lee’s medical expenses. Lee argues that Medicare has sent several letters with