Supreme Court of Florida

____________

No. SC21-43

____________

ELAINE DIAL,

Petitioner,

vs.

CALUSA PALMS MASTER ASSOCIATION, INC.,

Respondent.

April 28, 2022

PER CURIAM.

We review the Second District Court of Appeal’s decision in 

Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690 (Fla. 2d DCA 

2020), in which the Second District certified the following question 

of great public importance:

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL 

AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 

2015), PROHIBITING THE INTRODUCTION OF 

EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL 

INJURY CASE FOR PURPOSES OF A JURY’S 

CONSIDERATION OF FUTURE MEDICAL EXPENSES 

ALSO APPLY TO PAST MEDICAL EXPENSES?
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Id. at 692.1 For the reasons explained below, we answer the 

certified question in the negative and approve the Second District’s 

decision in Dial.

I. BACKGROUND

This case arises out of a negligence action, in which Elaine 

Dial sought to recover past medical expenses due to injuries she 

sustained when she tripped and fell on property owned by Calusa 

Palms Master Association, Inc. Before trial, the trial court granted 

a motion in limine that precluded Dial from introducing as evidence 

the gross amount of her past medical expenses and limited her to 

introducing only the discounted amounts paid by Medicare. After 

the jury awarded Dial $34,641.69 in past medical expenses, Dial 

appealed arguing that Joerg allowed her to admit the full amount of 

her past medical expenses as evidence.

The Second District affirmed the trial court’s ruling based 

upon its prior decision in Cooperative Leasing, Inc. v. Johnson, 872 

So. 2d 956, 960 (Fla. 2d DCA 2004), which held “that the 

appropriate measure of compensatory damages for past medical 

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
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expenses when a plaintiff has received Medicare benefits does not 

include the difference between the amount that the Medicare 

providers agreed to accept and the total amount of the plaintiff’s 

medical bills.” Dial, 308 So. 3d at 691 (quoting Cooperative 

Leasing, 872 So. 2d at 960). The Second District explained:

While we recognize that Cooperative Leasing cited to the 

Florida Supreme Court’s decision in Florida Physician’s 

Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 

1984), a decision that was subsequently receded from in 

Joerg v. State Farm Mutual Automobile Insurance Co., 176 

So. 3d 1247 (Fla. 2015), we do not believe the Joerg

decision “implicitly abrogated” our evidentiary ruling in 

Cooperative Leasing . . . .

Dial, 308 So. 3d at 691. The Second District further explained that

“whatever its analytical underpinnings, the Joerg court very clearly 

set the scope of its holding to evidence concerning future Medicare 

benefits, which is not in dispute here.” Dial, 308 So. 3d at 691.

II. ANALYSIS

The certified question asks whether this Court’s holding in 

Joerg applies to past medical expenses.2 In Joerg, this Court 

2. The certified question presents a question of law, which we 

review de novo. Arch Ins. Co. v. Kubicki Draper, LLP, 318 So. 3d 

1249, 1253 n.4 (Fla. 2021).
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addressed “[w]hether the exception to the collateral source rule 

created in Stanley applies to future benefits provided by social 

legislation such as Medicare.” Joerg, 176 So. 3d at 1253.3 This 

Court “conclude[d] that future Medicare benefits are both uncertain 

and a liability under Stanley, due to the right of reimbursement 

that Medicare retains.” Joerg, 176 So. 3d at 1253. We explained 

that “it is absolutely speculative to attempt to calculate damage 

awards based on benefits that a plaintiff has not yet received and 

may never receive, should either the plaintiff’s eligibility or the 

benefits themselves become insufficient or cease to continue.” Id. at 

1255. Ultimately, we “conclude[d] that the trial court properly 

excluded evidence of [the plaintiff]’s eligibility for future benefits 

from Medicare, Medicaid, and other social legislation as collateral 

sources.” Id. at 1257 (emphasis added).

This Court’s holding in Joerg, precluding the admission of 

evidence of a plaintiff’s eligibility for future Medicare benefits, dealt 

only with future medical expenses. As explained by the Second 

3. In Stanley, this Court held that “evidence of free or low cost 

services from governmental or charitable agencies available to 

anyone with specific disabilities is admissible on the issue of future 

damages.” 452 So. 2d at 515.
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District below, “the Joerg court very clearly set the scope of its 

holding to evidence concerning future Medicare benefits, which is 

not in dispute here.” Dial, 308 So. 3d at 691. Accordingly, Joerg

has no application to the past medical expenses issue in the 

present case.

III. CONCLUSION

For the above reasons, we answer the certified question in the 

negative and approve the Second District’s decision in Dial.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and 

GROSSHANS, JJ., concur.

POLSTON, J., concurs with an opinion, in which COURIEL, J., 

concurs.

LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

POLSTON, J., concurring.

I agree with the Court’s reasoning and holding that this 

Court’s decision in Joerg v. State Farm Mutual Automobile Insurance 

Co., 176 So. 3d 1247 (Fla. 2015), does not apply to the past medical 

expenses issue in this case. I also agree with the Second District 

Court of Appeal’s decision in Dial v. Calusa Palms Master Ass’n, 308 
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So. 3d 690 (Fla. 2d DCA 2020), which held “that the appropriate 

measure of compensatory damages for past medical expenses when 

a plaintiff has received Medicare benefits does not include the 

difference between the amount that the Medicare providers agreed 

to accept and the total amount of the plaintiff’s medical bills.” Id. at 

691 (quoting Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956, 

960 (Fla. 2d DCA 2004)). However, I write separately to explain why 

I would adopt the reasoning of Justice Bell’s specially concurring 

opinion in Goble v. Frohman, 901 So. 2d 830 (Fla. 2005), and limit 

the admissible evidence of past medical expenses to the amounts 

medical providers were willing or required to accept in full 

satisfaction for services rendered to a plaintiff, regardless of 

whether those amounts are derived from government insurance, 

private insurance, or other third-party arrangement.

“It has long been established as a fundamental principle of 

Florida law that the measure of compensatory damages in a tort 

case is limited to the actual damages sustained by the aggrieved 

party.” Goble, 901 So. 2d at 834 (Bell, J., specially concurring). 

“The objective of compensatory damages is to make the injured 

party whole to the extent that it is possible to measure his [or her] 
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injury in terms of money.” Mercury Motors Express, Inc. v. Smith, 

393 So. 2d 545, 547 (Fla. 1981). “A plaintiff, however, is not 

entitled to recover compensatory damages in excess of the amount 

which represents the loss actually inflicted by the action of the 

defendant.” MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995 

So. 2d 221, 223 (Fla. 2008).

In Goble, the majority concluded that “[t]he contractual 

discounts negotiated by Goble’s HMO fall under the statutory 

definition of ‘collateral sources’ that are to be set off against an 

award of compensatory damages under [section 768.76, Florida 

Statutes (1999)].” 901 So. 2d at 833 (Bell, J., specially concurring). 

In his specially concurring opinion, Justice Bell explained an 

alternative reason, outside of the collateral source context, why 

Goble was not entitled to recover the full amount of his medical 

bills: “Goble has not paid, nor is he obligated to pay, the 

prediscount amount of his medical bills. And, absent any evidence 

that the discount was intended as a gift, Goble can recover no more 

than the amount he paid or is obligated to pay.” Id. As Justice Bell 

further explained,
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Under common-law principles of compensatory 

damages, Goble can recover only the discounted portion 

of his medical bills—the only portion that he actually was 

obligated to pay. The amount of the full (prediscount) bill 

that was written off pursuant to the contractual 

agreement between Goble’s HMO and Goble’s medicalservices provider was an amount that Goble never was 

obligated to pay. This amount, therefore, does not 

represent Goble’s actual damages. To allow for the 

recovery of this full amount, under the guise of 

“compensatory damages,” would allow for the recovery of 

what the district court aptly described as “phantom 

damages.”

Id. at 833-34 (quoting Goble v. Frohman, 848 So. 2d 406, 410 (Fla. 

2d DCA 2003)).

In this case, Dial sought to introduce the gross amount of her 

past medical expenses—an amount that she will never be 

responsible for paying. Dial’s medical providers billed $106,087.08 

after she became eligible for Medicare, but Medicare paid a 

discounted amount of $19,973.89 (and Blue Cross Blue Shield paid 

other costs not covered by Medicare) in full satisfaction of the 

medical bills. Medicare has a subrogation right of reimbursement 

for the $19,973.89, the amount Medicare paid medical providers on 

Dial’s behalf. However, the roughly $85,000 that was written off or 

discounted is not recoverable either by Dial’s medical providers or 

Medicare, and Dial is not liable to pay that amount. See 
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Cooperative Leasing, Inc., 872 So. 2d at 960 (“Under federal law the 

government’s right to reimbursement does not extend to amounts 

never actually paid to medical providers.”); 42 U.S.C. 

§ 1395cc(a)(1)(A) (providing that medical providers that accept 

payment from Medicare agree “not to charge . . . any individual or 

any other person for items or services for which such individual is 

entitled to have payment made under” Medicare); cf. Goble, 901 

So. 2d at 831-32 (“Under the medical providers’ contracts with 

Aetna, the providers have no right to seek reimbursement from 

Goble or from any third party for the contractual ‘discount’ of over 

$400,000, the difference between the amounts billed and the 

amounts paid.”).

It therefore follows that admissible evidence of past medical 

expenses must be limited to the amounts medical providers were 

willing or required to accept in full satisfaction for services rendered 

to a plaintiff. The inflated gross amount Dial sought to admit is 

irrelevant to the proper measure of compensatory damages and 

should be inadmissible at trial. See Charles W. Ehrhardt, Florida 

Evidence § 402.1, at 222 (2021 ed.) (“To be admissible, evidence 

must be relevant; that is, it must tend to prove or disprove a 
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material fact.”); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 

547, 551 (Fla. 4th DCA 2003) (concluding that the medical 

provider’s “original charge becomes irrelevant” when it accepts a 

lesser sum from Medicare “because it does not tend to prove that 

the claimant has suffered any loss by reason of the charge”).

These principles should apply regardless of whether the 

discounted amounts are derived from government insurance, 

private insurance, or other third-party arrangement. In deciding 

the issue of the appropriate measure of compensatory damages for 

past medical expenses, Florida district courts of appeal have 

erroneously created a distinction based on whether a private or 

public source paid the past medical expenses. Compare 

Thyssenkrupp Elevator Corp., 868 So. 2d at 550 (holding that a 

plaintiff is limited to admitting into evidence the amount of past 

medical bills paid by Medicare rather than the gross amount), with 

Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084, 1087 (Fla. 

1st DCA 2010) (“[A]ppellee was entitled to introduce into evidence 

(and to request from the jury) the gross amount of her medical bills, 

rather than the lesser amount paid by appellee’s private health 

insurer in full settlement of the medical bills.”). The present case 
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further illustrates this distinction. Dial had private insurance at 

the time she was injured, but she later became eligible for Medicare. 

Before trial, the parties agreed that Dial could admit the gross 

amount of her medical bills until she became eligible for Medicare. 

And the trial court’s ruling limiting Dial to admitting the discounted 

amount paid by Medicare, any Medicare supplemental insurance, 

and Dial herself, only applied from the time she became eligible for 

Medicare.

The parties and amici argue that Medicare and private 

insurance should be treated equally, and I agree that there is no 

principled reason to distinguish between them. In the context of 

post-trial setoffs, section 768.76 creates a distinction by excluding 

Medicare as a collateral source. See § 768.76(2)(b), Fla. Stat. (2021) 

(“[B]enefits received under Medicare . . . shall not be considered a 

collateral source.”). However, from an evidentiary position, both 

should be treated the same. The determination of the appropriate 

measure of compensatory damages for past medical expenses is the 

same regardless of the source of a plaintiff’s insurance. When the 

proper amount is admitted into evidence, there is no need for a 

post-trial setoff and no resulting disparate treatment.
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Accordingly, I would limit the admissible evidence of past 

medical expenses to the amounts medical providers were willing or 

required to accept in full satisfaction for services rendered to a 

plaintiff, regardless of whether those amounts are derived from 

government insurance, private insurance, or other third-party 

arrangement.

COURIEL, J., concurs.

LABARGA, J., dissenting.

Because I conclude that the holding in Joerg v. State Farm 

Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), also 

applies to a jury’s consideration of past medical expenses, I dissent 

to the majority’s answer to the certified question.

In Joerg, Luke Joerg pursued a negligence action for injuries 

he sustained when he was struck by a car while riding his bicycle. 

Id. at 1252. Due to a disability, Joerg was entitled to 

reimbursement from Medicare for his medical bills. Id. Before trial, 

“Joerg filed a motion in limine to exclude evidence of any collateral 

source benefits to which [he] was entitled, including discounted 

benefits under Medicare and Medicaid.” Id. Ultimately, the trial 

court ruled that State Farm could not introduce evidence of Joerg’s 
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future Medicare or Medicaid benefits.4 Id. The jury found in favor 

of Joerg and awarded damages; State Farm appealed to the Second 

District Court of Appeal. Id.

The Second District affirmed the trial court’s rulings, except 

for the trial court’s decision that evidence of Joerg’s future Medicare 

benefits were inadmissible. Id. Based on this Court’s decision in 

Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514 

(Fla. 1984), the district court concluded that Joerg’s future 

Medicare benefits should not have been excluded because they were 

free and unearned. Joerg, 176 So. 3d at 1253.

However, this Court quashed the Second District’s ruling and 

concluded that the trial court properly excluded evidence of Joerg’s 

eligibility for future benefits from Medicare, Medicaid, and other 

social legislation as collateral sources. Id. at 1257. In doing so, 

4. Notably, “[t]he trial court initially granted Joerg’s motion, 

but only with respect to past medical bills. After Joerg moved for 

reconsideration, the trial court vacated its prior ruling and allowed 

State Farm to introduce evidence of ‘future medical bills for specific 

treatment or services that are available . . . to all citizens regardless 

of their wealth or status.’ However, it precluded State Farm from 

introducing evidence of [Joerg]’s future Medicare or Medicaid 

benefits.” Joerg, 176 So. 3d at 1252.
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this Court receded from Stanley to the extent that it supported the 

admission of social legislation benefits as an exception to the 

evidentiary collateral source rule, noting that “it was never intended 

to apply to benefits from Medicare or Medicaid, or to collateral 

sources where a right of reimbursement or subrogation exists.” Id.

at 1256.

With this background in mind, in the present case, the Second 

District Court of Appeal certified the following as a question of great 

public importance:

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL 

AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 

2015), PROHIBITING THE INTRODUCTION OF 

EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL 

INJURY CASE FOR PURPOSES OF A JURY’S 

CONSIDERATION OF FUTURE MEDICAL EXPENSES 

ALSO APPLY TO PAST MEDICAL EXPENSES?

Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690, 692 (Fla. 2d 

DCA 2020).

The correct answer to the certified question is a resounding 

yes; Joerg prohibits the introduction of evidence of Medicare 

benefits for the jury’s consideration of past medical expenses. 

However, largely based on its conclusion that Joerg “dealt only with 
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future medical expenses,” the majority answered the certified 

question in the negative. Majority op. at 4-5. I disagree.

Joerg did not distinguish between past and future medical 

expenses; it merely addressed future Medicare benefits. In fact, 

this Court did not consider the factual distinction between past 

benefits and future benefits as relevant. See Joerg, 176 So. 3d at 

1256 n.7 (“Like Peterson, the Illinois Supreme Court in Wills also 

considered the admissibility of past Medicare benefits, not the 

future benefits at issue here. Wills, 323 Ill. Dec. 26, 892 N.E.2d at 

1020. Given our agreement with the policy pronouncement in Wills, 

we do not consider this factual distinction relevant.”) (emphasis 

added).

As noted by the special concurrence in Dial, “[a]lthough arising 

in the context of future benefits, Joerg did not create any exception 

for future benefits; rather, it negated the exception for future 

benefits, created by Stanley, to the rule ‘that the admission of 

evidence of social legislation benefits such as those received from 

Medicare, Medicaid, or Social Security, is considered highly 

prejudicial and constitutes reversible error.’ ” Dial, 308 So. 3d at 
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693 (Rothstein-Youakim, J., specially concurring) (quoting Joerg, 

176 So. 3d at 1250).

Most significantly, the majority ignores the primary purpose 

for excluding evidence of eligibility for past and future benefits from 

Medicare, Medicaid, and other social legislation as collateral 

sources: its explosive prejudicial effect.

In Joerg, this Court emphasized that “[a]s an evidentiary rule, 

payments from collateral source benefits are not admissible 

because such evidence may confuse the jury with respect to both 

liability and damages.” Joerg, 176 So. 3d at 1249. The Court 

elaborated:

[I]ntroduction of collateral source evidence misleads the 

jury on the issue of liability and, thus, subverts the jury 

process. Because a jury’s fair assessment of liability is 

fundamental to justice, its verdict on liability must be 

free from doubt, based on conviction, and not a function 

of compromise. Evidence of collateral source benefits 

may lead the jury to believe that the plaintiff is trying to 

obtain a double or triple payment for one injury . . . or to 

believe that compensation already received is sufficient 

recompense.

Id. at 1249-50 (quoting Gormley v. GTE Prods. Corp., 587 So. 2d 

455, 458 (Fla. 1991)).
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The Court further emphasized: “It is also well established in 

Florida that the admission of evidence of social legislation benefits 

such as those received from Medicare, Medicaid, or Social Security, 

is considered highly prejudicial and constitutes reversible error.” 

Id. at 1250.

Although the analysis in Joerg involved future medical 

expenses, the concerns emphatically expressed in Joerg—about the 

prejudicial effect of admitting evidence of social legislation 

benefits—are also, unequivocally, applicable to cases involving past 

medical expenses. The fact that this Court did not include past 

medical expenses in its analysis in Joerg does not render those 

concerns inapplicable to cases, like Dial’s, that involve past 

expenses.

Accordingly, addressing only the question posed by the Second 

District Court of Appeal, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal

Certified Great Public Importance

Second District – Case No. 2D18-4339

(Lee County)

Mark A. Boyle, Alexander Brockmeyer, and Molly Chafe Brockmeyer

of Boyle Leonard & Anderson, P.A., Fort Myers, Florida; and 
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Scot Goldberg, Logan Goldberg, Michael Noone, and Sheba 

Abraham of Goldberg Noone Abraham, LLC, Fort Myers, Florida,

for Petitioner

Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., 

Orlando, Florida,

for Respondent

Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen 

LLP, Tallahassee, Florida, and Elise Engle of Shutts & Bowen 

LLP, Tampa, Florida,

for Amici Curiae Associated Industries of Florida and 

Florida Retail Federation

Mark Hicks, Dinah Stein, and Aneta Kozub McCleary of Hicks, 

Porter, Ebenfeld & Stein, P.A., Miami, Florida,

for Amicus Curiae The Doctors Company

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, Florida; and 

Derek J. Angell of Bell & Roper, P.A., Orlando, Florida,

for Amicus Curiae Florida Defense Lawyers Association

Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, 

P.L., Coral Gables, Florida,

for Amici Curiae Florida Trucking Association, Florida 

Chamber of Commerce, American Property Casualty 

Insurance Association, and Florida Justice Reform Institute

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; 

and Nichole J. Segal of Burlington & Rockenbach, P.A., West 

Palm Beach, Florida,

for Amicus Curiae Florida Justice Association