BARBARA GIBSON V. USA, No. 20-35333 (9th Cir. 2021)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 22, 2021.
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 28 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT BARBARA A. GIBSON, as Personal Representative of the Estate of Johnny G. Gibson, and for herself; et al., No. U.S. COURT OF APPEALS 20-35333 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
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