ORDER

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on defendant's Motion for Partial Summary Judgment (doc. 35). The Motion has been briefed and is ripe for disposition.

I. Relevant Background.

Plaintiff, Joseph Washington, brought this action against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80 ("FTCA"). According to the well-pleaded factual allegations of the Complaint (which defendant has not disputed for summary judgment purposes), Washington was a customer at the U.S. Postal Service facility on West Capitol Street in Demopolis, Alabama, on July 27, 2011. (Doc. 1, 6.) After concluding his business, Washington exited the Post Office and walked outside across a flat concrete surface with embedded metal "non-slip" strips, between two sets of exterior steps. (Id., 7.) Washington maintains that the concrete had eroded, causing the metal strips to protrude above the flat surface by more than a quarter inch. (Id.) As Washington walked across that surface, the toe of one of his shoes caught on one of these raised metal strips. He fell backwards, with his left knee striking the concrete. (Id.) As a result, Washington's muscles and ligaments were torn and he sustained significant damage to his left leg. (Id.) The Complaint alleges that there were no warning signs to alert Washington or other postal patrons to the hazard posed by the exposed metal strips, and that he was unaware of the danger until he tripped and fell. (Id., 8-10.)

Based on these factual allegations, Washington brings a single claim against the Government for negligence, wantonness or recklessness under the FTCA. (Doc. 1, 15-23.) The Complaint generally alleges that Washington has received treatment (including surgery and physical rehabilitation) for knee and leg injuries (including "a left quadriceps tendon rupture with medial and lateral meniscal tears") from various medical providers, including the Bryan Whitfield Memorial Hospital and Tropeano Orthopedics & Sports Medicine, both in Demopolis, Alabama. (Id., 12.) A plain reading of the Complaint suggests that Washington's medical expenses constitute a significant component of the compensatory damages that he seeks to recover.

The central fact underlying the Government's Motion is that substantial portions of Washington's medical bills have already been paid by Medicare or the Department of Veterans Affairs (the "VA"). This fact appears uncontroversial. Indeed, plaintiff readily admits that "Mr. Washington's hospital and surgical expenses to date have been paid through the Medicare program and The Department of Veterans Affairs."(Doc. 43, at 1.)1 The crucial and, indeed, the only contested issue animating the Government's Motion for Partial Summary Judgment is whether Washington is barred in this litigation from recovering those medical expenses that Medicare and the VA have already paid.2

II. Analysis.

For summary judgment purposes, the parties agree that the substantive law of Alabama governs Washington's FTCA claim. (Doc. 35, at 3; doc. 43, at 2.)3 As such, Washington's ability in this action to recover amounts paid towards his medical bills by Medicare and the VA must be evaluated by reference to Alabama law. The crux of the parties' dispute on summary judgment is whether Alabama's collateral source rule retains continuing vitality today.

Traditionally, as a matter of Alabama common law, "[t]he collateral source rule provide[d] that an amount of damages is not decreased by benefits received by a plaintiff from a source wholly collateral to and independent of the wrongdoer." Williston v. Ard, 611 So.2d 274, 278 (Ala. 1992).4 On summary judgment, however, the Government maintains that "Alabama has repealed the collateral source rule in regard to medical and hospital expenses." (Doc. 35, at 2-3.) By contrast, Washington insists that "Alabama has not repealed the collateral source rule." (Doc. 43, at 2.) Careful examination reveals that the source of the parties' disagreement is imprecise language utilized in case law and briefs. In actuality, the current status of Alabama's collateral source rule is not nearly as muddled, confusing and dichotomous as the parties' briefs would seem to indicate.

In its classic formulation, Alabama's collateral source rule meant that a defendant in a personal injury case could not obtain a reduction in a plaintiff's damages award based on that plaintiff's receipt of medical benefits from a collateral source. Pursuant to that rule, "any evidence of the receipt of such benefits [was rendered] irrelevant and inadmissible." McCormick v. Bunting, 99 So.3d 1248, 1250 n. 3 (Ala.Civ. App.2012); see also American Legion Post No. 57 v. Leahey, 681 So.2d 1337, 1339 (Ala.1996) ("This Court has consistently held that collateral source evidence is inadmissible."). Thus, under the old common-law rule, a defendant in the Government's position would be barred from offering evidence that the plaintiff's medical expenses had been paid by a third party, much less receiving an offset or credit in the damages award for those third-party payments.

Things changed in 1987, when the Alabama legislature enacted Alabama Code 12-21-45. That section provides, "In all civil actions where damages for any medical or hospital expenses are claimed ..., evidence that the plaintiff's medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence." Ala.Code 12-21-45(a). Furthermore, the statute mandates as follows: "Upon proof by the plaintiff to the court that the plaintiff is obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed, evidence relating to such reimbursement or payment shall be admissible." 12-21-45(c). On its face, 12-21-45(a) abrogates the portion of the common-law rule that forbade defendants from presenting evidence of medical payments made by a collateral source. There is no question that this evidentiary proscription of Alabama's common-law collateral source rule has been abolished by the legislature. Contrary to the old common-law rule, a defendant in a personal injury action governed by Alabama law may now offer evidence that the plaintiff's medical or hospital expenses were or will be paid or reimbursed by a third party. In the wake of 12-21-45, it is error for a trial court to forbid a defendant from introducing evidence of collateral-source payments for a plaintiff's medical expenses. See, e.g., McCormick, 99 So.3d at 1250 ("the trial court erred as a matter of law in precluding McCormick from introducing evidence of the collateral-source payments for Bunting's medical and hospital expenses"); Crocker v. Grammer, 87 So.3d 1190, 1194 (Ala.Civ.App.2011) ("Crocker should have been allowed to introduce into evidence third-party medical and hospital payments made on behalf of Grammer, and she should have been allowed to argue to the jury that Grammer's damages should be reduced on account of those payments.").

Where the plot thickens is in the Government's heavy reliance on the following passage from a 1993 Alabama Supreme Court opinion: "[T]he collateral source rule, insofar as it allowed recovery against a tort-feasor of medical expenses paid by a collateral source, was abrogated by Ala. Code 1975, 12-21-45." Senn v. Alabama Gas Corp., 619 So.2d 1320, 1325 (Ala.1993). Based on that singular sentence, and the Senn Court's choice of the word "abrogated" without qualifiers, the Government argues, "Plaintiff is not entitled to a recovery against the United States to the extent that the United States paid or satisfied any medical or hospital expenses." (Doc. 35, at 3.)

A closer look at Senn and other Alabama authorities spanning the last two decades yields a different conclusion. At issue in Senn was a defendant's assignment of error to the trial court's failure to give requested jury instructions tracking the pre-12-21-45 iteration of the collateral source rule. The Senn Court was not called upon to decide and did not decide that under the 1987 statute a plaintiff can never recover medical expenses for which a collateral source had paid. It is thus an oversimplification to read Senn as categorically sounding the death knell on plaintiffs' ability to recover medical expenses paid by someone else. Instead, Alabama authorities have consistently interpreted both 12-21-45 and Senn as meaning that evidence of collateral-source payments is now properly admissible, but that it is left to the fact finder's discretion to determine whether and, if so, to what extent to reduce a plaintiff's recovery by the amount of such payments, in light of all the surrounding facts and circumstances.

In that regard, a concurring opinion in Senn forms the template for how Alabama courts view the modified collateral source rule today, as follows:

Senn, 619 So.2d at 1326 (Hornsby, C.J., concurring specially); see also McCormick, 99 So.3d at 1250 (recognizing that a modified version of the collateral source rule, as set forth in Ala.Code 12-21-45, remains in effect, and explaining that if collateral source evidence is admitted at trial, the jury would have "the discretion to adjust the damages award on account of the evidence relating to collateral-source payments"); Crocker, 87 So.3d at 1193 ("Section 12-21-45 modifies the substantive component of the collateral-source rule.... Whereas under the common-law collateral-source rule, a jury could not in any case decrease the amount of damages awarded on account of a plaintiff's receipt of third-party payments of medical and hospital expenses, under 12-21-45 a jury can now decide, based on the unique facts of each case, whether such a reduction would be appropriate.... Section 12-21-45 does not dictate any particular outcome, but, rather, it allows a jury to make its own informed decision as to the effect of third-party payments of medical and hospital expenses on a plaintiff's recovery.") (citations omitted); Killian v. Melser, 792 F.Supp. 1217, 1220 (N.D.Ala.1992) ("Alabama trial judges are routinely allowing the introduction of evidence rendered `admissible' by 12-21-45 but thereafter charging the jury that it may `consider' the said evidence for whatever it may be worth"); see generally Marsh v. Green, 782 So.2d 223, 233 n. 2 (Ala.2000) (pointing out that 12-21-45's silence on damages awards in cases involving collateral source payments "gives both a plaintiff and a defendant latitude to explore various arguments about windfalls").

This interpretation is reinforced by Alabama's Pattern Jury Instructions, which account for 12-21-45 as follows: "There is evidence that a third party (satisfied) (paid) (name of plaintiff)'s medical expenses, and (name of defendant) asks that you reduce the amount of any award for medical expenses.... You may consider all this evidence. Whether you reduce the award in any amount is up to you." 1 Alabama Pattern Jury Instr. Civ. 11.15 (3d ed.). Likewise, an Alabama treatise explains that, under the state's modified incarnation of the collateral source rule, "juries now decide, based on the facts of each case, the effects of any third-party payments of the plaintiff's expenses.... The statute abrogating the collateral source rule ... allows the jury to make its own decision as to the effect of third-party payments of medical and hospital expenses on the plaintiff's recovery." Jenelle Mims Marsh, Alabama Law of Damages 12:5 (6th ed.).

Confronted with this body of Alabama authorities developed over the last 20 years, the Court does not find persuasive the Government's position that the analysis must begin and end with one sentence of dicta extracted from the Senn majority opinion and presented without context.5 As Alabama appellate courts, commentators, and pattern jury charges all recognize, 12-21-45 did abrogate the common-law evidentiary prohibition against introducing evidence of collateral source payments for medical care in the personal injury context; however, it left open the question of whether and to what extent a damages recovery in a particular case could or should be reduced to account for those payments. That question is reserved for the fact finder's discretion, based on the unique facts and circumstances of the case.

Insofar, then, as the Government moves for summary judgment on the ground that Washington is barred under Senn as a matter of law from recovering medical or hospital expenses for which Medicare or the VA has already paid, the Rule 56 Motion is properly denied.

As an alternative basis for seeking summary judgment, defendant sketches out in skeletal form an argument that Washington cannot recover from the Government for medical expenses already paid by Medicare and the VA because those payments "are amounts paid by the United States." (Doc. 35, at 4.) But the Government cites no authority to support this proposition; to the contrary, its reply brief cites appellate authority supporting the opposite result, at least as to Medicare payments. See Berg v. United States, 806 F.2d 978, 986 (10th Cir.1986) (holding "that the district court properly characterized the Medicare benefits received by Berg as a collateral source" because those benefits are paid from a separate fund, which is supplied in large part by taxes imposed on employees and employers, such that they are logically collateral). Additional research suggests that Berg is not an outlier decision.6 Although the Government maintains that "[a] plaintiff is barred from recovering damages already paid by the tort-feasor" (doc. 45, at 2), it comes forward with no authority supporting the premise that the payments made by various federal entities for Washington's medical care qualify as "amounts paid by the United States" for purposes of this rule. Again, Berg and its progeny are to the contrary, at least as to Medicare payments.

Finally, the Court cannot credit on summary judgment the cryptic reassurance by the Government's counsel that "[a]ny issues involving the Medicare program or the Department of Veterans Affairs in this litigation will be dealt with by the undersigned." (Doc. 35, at 4.) What does that mean? Is counsel suggesting that Medicare and the VA do not have liens or claims for repayment against Washington for medical bills they have paid? Or that counsel intends to work with Medicare and the VA programs to waive or release any such liens or claims? Is this a done deal, or is it just something that counsel anticipates being able to "deal with" at an appropriate time? As plaintiff correctly asserts, there is simply insufficient factual content to warrant entry of Rule 56 relief on that basis at this time.7

III. Conclusion.

For all of the foregoing reasons, the Government's Motion for Partial Summary Judgment (doc. 35) is moot as to the question of whether this case will be tried to a jury, given that all parties have agreed (and at least one court order has clarified) that trial of this action will be non-jury. In all other respects, the Motion is denied.