AMI 2215 Measure of Damages—Collateral Sources

This instruction should be given when evidence of the receipt of benefits or payments is admitted into evidence or the jury poses a question concerning a collateral source.

There are also other circumstances where the jury may acquire knowledge of collateral sources (for example, from impeachment evidence or a nonresponsive answer) or may assume, believe or infer the existence of collateral sources given the facts of the case (for example, an injured person likely to be covered by workers' compensation, first-party medical insurance, or governmental benefits) or the type of damages involved. This instruction should therefore be given if the circumstances of the case warrant its use, and if requested by the claiming party.

Use the bracketed provision when evidence is introduced of payments by or on behalf of a defendant.

The collateral source rule is both a principle of the substantive law of damages, providing that a plaintiff's receipt of benefits or payments from the collateral source does not reduce the plaintiff's recovery from defendant, and a rule of evidence, generally precluding a defendant from eliciting or introducing evidence of such benefits or payments. Younts v. Baldor Elec. Co., 310 Ark. 86, 88, 90, 832 S.W.2d 832, 834, 835 (1992) (collateral source rule “excludes evidence of benefits received by a plaintiff from a source collateral to the defendant” and the plaintiff has “ ‘a substantive right’ not to have his recovery so reduced if indeed he recovered from insurance for which he paid”). See Parker v. Wideman, 380 F.2d 433, 436 (5th Cir. 1967) (collateral source rule is “substantive rule of law which applies whether or not evidence of collateral compensation is introduced,” applying Florida law). See generally James L. Branton, The Collateral Source Rule, 18 St. Mary's L.J. 883 (1987) (observing that collateral source rule is both substantive rule of law and rule of evidence); Restatement (Second) of Torts § 920A (payments or benefits from collateral source do not reduce plaintiff's recovery).

In accord with several other jurisdictions, this instruction is intended to clarify what the jury is to consider in assessing damages and specifically to reduce speculation about the existence of such benefits or payments and their effect on its award. Fla. Standard Jury Instructions–Civil Cases § 6.13, Note on Use, 700 So. 2d 377 (Fla. 1997) (per curiam) (collateral source instruction to be given in proper case if “improper evidence of collateral benefits is inadvertently admitted or if, in the circumstances of the case, the payment of collateral benefits is inferred”); Ill. Pattern Jury Instructions–Civil § 3.03, Note on Use (2011 ed.) (“With the wide prevalence of liability insurance … many jurors question the role of insurance in contested accident, medical malpractice or other cases.”); Md. Civil Pattern Jury Instructions § 10:8 (4th ed. 2009) (jurors instructed not to “reduce the amount of your award because you believe or infer that the plaintiff has received or will receive reimbursement,” payments, or benefits from a collateral source); Mo. Approved Jury Instructions (Civil) § 34.05, cmt. (7th ed., 2012 revision) (jury's “knowledge” of payment “may be acquired from impeaching evidence, a nonresponsive answer, collateral source supposition, or inference from the disappearance of a settling party defendant”; instruction intended to avoid juror speculation); Nev. Jury Instructions Civil § 1-12-101 No. 1.07 (Michie 1986) (providing alternative instruction to be “used in cases in which the plaintiff's damages are the type which may have been compensated” by a collateral source).

Jurors' statements during deliberations that plaintiff's medical expenses would be paid by his federal employee's health insurance plan, which were based on their own personal experience as federal employees, do not constitute “extraneous prejudicial information” under Arkansas Rule of Evidence 606(b). Blake v. Shellstrom, 2012 Ark. 428, at 9–10. The plaintiff in Blake did not request that AMI 2215 be given.

In Arkansas, a plaintiff seeking recovery for medical expenses may invoke the collateral source rule to exclude evidence that the plaintiff had actually paid less than the full amount of those expenses (e.g., because the provider had discounted the bill or some portion had been covered by another source). Montgomery Ward & Co. v. Anderson, 334 Ark. 561, 564–68, 976 S.W.2d 382, 383–85 (1998) (excluding under collateral source rule evidence of an agreement between the plaintiff and a hospital to discount the hospital bill by 50%) (distinguishing Auto Transports, Inc. v. May, 224 Ark. 704, 275 S.W.2d 767 (1955), as based on a failure of proof by plaintiff of medical expenses). The medical-cost provision, § 15(b), of the Civil Justice Reform Act, Act 649 of 2003, codified at Ark. Code Ann. § 16-55-212(b), apparently sought to overrule Montgomery Ward by limiting evidence of damages for costs of necessary medical care, treatment, or services to only “those costs actually paid by, or on behalf of, the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible.” In Johnson v. Rockwell Automation, Inc., however, the court held the medical-cost provision of the Civil Justice Reform Act unconstitutional as a violation of the separation of powers principle embodied in Article 4, § 2 and Amendment 80, § 3 of the Arkansas Constitution because it purported to prescribe a rule of evidence. 2009 Ark. 241, at 9–10, 308 S.W.3d 135, 142. Presumably, Johnson also applies to § 19(b) of the Act, Ark. Code Ann. § 16-114-208(a), the medical malpractice version of the medical-cost provisions.

A claiming party's testimony that he felt obligated to pay his doctor's bill, when some of his medical bills were paid by his own insurer, does not make the source of the payments proper impeachment evidence. Patton v. Williams, 284 Ark. 187, 187–90, 680 S.W.2d 707, 708–09 (1984). For an exception to the rule of exclusion to apply, the evidence to be impeached must be misleading on some point other than whether there is insurance. Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 240–42 148 S.W.3d 754, 759–61 (2004).