Barbara Gibson v. United States ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA A. GIBSON, as Personal No. 20-35333
Representative of the Estate of Johnny G.
Gibson, and for herself; et al., D.C. No. 4:18-cv-00112-BMM
Plaintiffs-Appellants,
MEMORANDUM*
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted March 5, 2021
Submission Vacated June 22, 2021
Resubmitted December 27, 2021
Portland, Oregon
Before: BOGGS,** PAEZ, and WATFORD, Circuit Judges.
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
*
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.
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.1 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.
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
1
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.
2
for medical expenses.
AFFIRMED.
3