Opinion
20-35333
12-28-2021
BARBARA A. GIBSON, as Personal Representative of the Estate of Johnny G. Gibson, and for herself; et al., Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted March 5, 2021
Submission Vacated June 22, 2021 Resubmitted December 27, 2021 Portland, Oregon
Appeal from the United States District Court No. 4:18-cv-00112-BMM for the District of Montana Brian M. Morris, District Judge, Presiding
Before: BOGGS, [**] PAEZ, and WATFORD, Circuit Judges.
MEMORANDUM [*]
The estate of Johnny Gibson and his surviving relatives-his wife, Barbara, and his two adult children, Dixie Lee and John Travis-appeal from the district court's denial of damages for medical expenses in a wrongful death and survivorship action. The hospital and ambulance provider originally billed Gibson a total of $165,661.50, but both the hospital and ambulance provider forgave the bills in full as part of their charity programs. The district court awarded $578,248 in damages to Johnny Gibson's estate and his surviving family members but declined to award damages for the written-off medical expenses.
The total medical expenses included a $164,670.22 medical bill from St. Vincent Hospital and a $991.28 bill for the ambulance ride. The district court and parties all state that the medical expenses totaled $165,651.50, which appears to be a minor miscalculation.
Noting the absence of any Montana Supreme Court decisions directly addressing whether a plaintiff may recover written-off medical expenses under Montana law, we certified the question to that court. Gibson v. United States, 1 F.4th 1129, 1129 (9th Cir. 2021). In response, the Montana Supreme Court held that "[b]ecause the written-off costs of medical services were never a detriment the Estate suffered from the Government's negligence," Gibson may not recover for those expenses. Gibson v. United States, 2021 MT 309, ¶ 21, __ P.3d __. The court further held that Montana's then-applicable statute requiring the reduction of damages due to a collateral source, see Mont. Code Ann. § 27-1-308 (2019), "simply has no application" to this case because there was no payment involved here. Id. at ¶ 27. The district court was therefore correct to deny Gibson damages for medical expenses.
AFFIRMED.
[*]This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**]The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.