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Perry v. Ethicon

November 27, 2006

CHARLES ROBERT PERRY PLAINTIFF
v.
ETHICON, INC.; ET AL. DEFENDANTS



ORDER

Pending before the is plaintiff's motion for an evidentiary ruling on medical costs.

Plaintiff asks that the Court rule on the constitutionality of Ark. Code Ann. 16-55-212(b)*fn1 and that plaintiff be allowed to introduce at trial the total amount of medical bills incurred by plaintiff. Plaintiff contends that the statute is in conflict with the Arkansas supreme Court's collateral source rule, in conflict with Amendment 80 of the Arkansas Constitution*fn2 and in conflict with Article VI, Section 32 of the Arkansas Constitution.*fn3

The issue was raised before the first trial. At the first trial, the Court allowed evidence of plaintiff's medical expenses, including those already paid. The Court stated it could make any reduction after the jury verdict and gave the jury AMI 2215, the instruction on collateral sources.

Plaintiff has waited until two weeks before the retrial to again raise the issue. Had plaintiff raised the issue before, the Court could have certified the question of the constitutionality of the statute to the Arkansas Supreme Court.*fn4 According to the submissions of the parties, two Arkansas trial courts have decided the issue. One found the statute constitutional while another with absolutely no analysis did not. The matter should be resolved by the Arkansas Supreme Court.

Plaintiff had ample opportunity to raise this issue prior to the retrial. The Court is left trying to resolve an important constitutional issue on the eve of trial. The Court has considered the two state court opinions and adopts the reasoning of Judge Charles E. Clawson, in Ray v. McDaniel, CV-2006-32 (Van Buren County) attached as exhibit A to defendant's response to plaintiff's motion for evidentiary ruling on medical costs. (Document no. 128-2). Thus, the Court finds that the statute is constitutional.

Accordingly, the motion for evidentiary ruling on medical costs is denied.

IT IS SO ORDERED this 27th day of ...


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