Dept. of Forestry & Fire Protection v. Howell, No. C074879 (D3 Dec. 6, 2017)
In complex cases, California trial courts are afforded some procedural leeway to come up with means to streamline the litigation and make it more efficient, so long as the procedures don’t run afoul of any constitutional provision, statute, or rule. One such innovation was blessed in Cottle v. Superior Court, 3 Cal. App. 4th 1367 (1992), which permitted the use of a kind of pretrial preliminary hearing, where the plaintiff in a complex case can be required to come forward with prima facie evidence on a key element as a condition to getting to trail.
The trial court in this case—a complicated muti-defendant case where a state agency is trying to get reimbursed for its costs in fighting a 60,000 acre wildfire—tried to use a Cottle procedure to winnow the case down. Problem is, it did so in a completely unfair way. Two days before the pretrial conference, it gave the parties notice that it might conduct a Cottle hearing. It did not, however, identify the issues that would be subject to it. Plaintiffs were ultimately afforded a half-day’s notice that they would be expected to make a prima facie evidentiary showing on key issues of causation. They tried to make that showing—while also arguing an oral motion for judgment on the pleadings and haggling about jury instructions. But the trial court found they failed to so and dismissed the claims.
In Cottle plaintiffs were given months of notice about the issues they would need to prove up and permitted to offer detailed written presentations, along with argument, as to why they set out a prima facie case. In contrast, here, the whole thing was kind of a ramshackle oral presentation done on almost no notice, jammed into a pretrial conference where a bunch of other stuff was going on. The Court of Appeal finds that, under the circumstances, the trial court’s running the Cottle process as it did violated plaintiffs’ rights to procedural due process.
While that would ordinarily mean a full reversal, the Court of Appeal, however, goes on to sustain a judgment on the pleadings based on a statutory interpretation issue that kills off all, or essentially all, of the claims. (There’s a dissent that disagrees on this point.)
And then the court decides a bunch of other stuff in an unpublished part. So the case is remanded, but it doesn’t look like there’s much left to do.
Reversed.
Showing posts with label howell. Show all posts
Showing posts with label howell. Show all posts
Sunday, January 28, 2018
Monday, November 14, 2016
These Bills Are Too Damn High...
Moore v. Mercer, No. C073064 (D3 Oct. 21, 2016)
Yet another case addressing the Howell rule for measuring past medical costs as and element damages in a PI case. Under that rule the initial rates billed to a patient by a healthcare provider aren’t dispositive because those rates are super-inflated, and pale in comparison to what ultimately gets paid, especially if paid by insurance. Plaintiff here wasn’t insured, and the hospital sold her bill to a collections agency. Defendant argued that what the hospital got from the agency is the true value of the services.
This is pretty much the same facts as the Uspenskaya case, decided almost exactly one year ago. And it has the same result: the collections bill is admissible, but not dispositive. Same rule that applies to the hospital’s initial bill. So the jury’s damages award—which was between the two figures—is affirmed.
There’s a second issue, though. Defendant tried to get the (third party) doctor’s contract with the collections agency in discovery. The court denied a motion to compel on the grounds that the agreement was irrelevant and issued discovery sanctions against Defendant. That was error. The terms of an agreement under which claims are sold “bear[s] some probative value” as to the true reasonable value of the services. But given that the trial court said it would have excluded the evidence at trial—which would not necessarily been erroneous—the discovery error was harmless. The sanctions, however, are reversed.
Notable quote: The “broad scope of permissible discovery is equally applicable to discovery of information from a nonparty as it is to parties in the pending suit.” (quoting Johnson v. Superior Court, 80 Cal. App. 4th 1050 (2000). That’s correct as a matter of the language of the Discovery Act, but read broadly, it’s in some tension with with the oft-cited Calcor decision, which suggests you should exhaust efforts to get discovery from a party before you burden a third party with document demands.
Reversed in part.
Yet another case addressing the Howell rule for measuring past medical costs as and element damages in a PI case. Under that rule the initial rates billed to a patient by a healthcare provider aren’t dispositive because those rates are super-inflated, and pale in comparison to what ultimately gets paid, especially if paid by insurance. Plaintiff here wasn’t insured, and the hospital sold her bill to a collections agency. Defendant argued that what the hospital got from the agency is the true value of the services.
This is pretty much the same facts as the Uspenskaya case, decided almost exactly one year ago. And it has the same result: the collections bill is admissible, but not dispositive. Same rule that applies to the hospital’s initial bill. So the jury’s damages award—which was between the two figures—is affirmed.
There’s a second issue, though. Defendant tried to get the (third party) doctor’s contract with the collections agency in discovery. The court denied a motion to compel on the grounds that the agreement was irrelevant and issued discovery sanctions against Defendant. That was error. The terms of an agreement under which claims are sold “bear[s] some probative value” as to the true reasonable value of the services. But given that the trial court said it would have excluded the evidence at trial—which would not necessarily been erroneous—the discovery error was harmless. The sanctions, however, are reversed.
Notable quote: The “broad scope of permissible discovery is equally applicable to discovery of information from a nonparty as it is to parties in the pending suit.” (quoting Johnson v. Superior Court, 80 Cal. App. 4th 1050 (2000). That’s correct as a matter of the language of the Discovery Act, but read broadly, it’s in some tension with with the oft-cited Calcor decision, which suggests you should exhaust efforts to get discovery from a party before you burden a third party with document demands.
Reversed in part.
Wednesday, December 2, 2015
A Portrait of a Repo Man as an Imperfect Heuristic
Uspenskaya v. Meline, No. C071647 (D3 Oct. 28, 2015)
This is another med-mal case where the issue is to what degree plaintiff’s as-billed medical expenses—which have no relation to reality, much less what she actually paid—are admissible evidence of her special damages. Plaintiff here was uninsured and she gave her doctors liens on the full billed amounts. So she did, in fact, technically owe them what was billed.
This issue was kind of addressed this in the Bermudez case, decided last summer. There, the court—expounding on the Supreme Court’s 2011 Howell decision—explained that for an uninsured plaintiff, the true measure of her medical specials is the lesser of (1) what she actually paid to satisfy the doctor; and (2) a “reasonable value,” to be determined through a wide-ranging gestalt-type test. Bermudez said that the billed amount is not, on its own, sufficient to the prove reasonableness of the expense. But along with just a little other stuff—like, in particular, an expert’s opinion—it gets plaintiff to the jury.
The trial court here found plaintiff’s billed amounts to be more or less reasonable and let them go to the jury. It’s not clear that plaintiff had any other evidence. So that might not jibe with Bermudez. But these Defendants didn’t raise that issue in their appeal. Instead, their argument was that Plaintiff’s doctors sold her bills to a collection agent—likely for cents on the dollar. Defendants wanted to put that in as evidence of the “reasonable value” of plaintiff’s claim, in lieu of the billed amounts.
The trial court refused. Because the plaintiff still owed the whole amount and the collector could and would invariably seek to recover more from plaintiff than it paid her doctors for the claims, nothing suggested that the sale value of the claims—without more—represented their true “reasonable value.” Defendant needed something to bridge the gap between the sale value and the reasonable one. Otherwise, the sale value would not stand up as an acceptable proxy for reasonable value. So without an expert, the trial court correctly held that whatever evidentiary value the context-less sale numbers had, it was outweighed by the potential that the jury might give them too much credence.
In a way, the case is essentially Bermudez in reverse. The court points out—with considerable examination of the post-Howell case law—that while “reasonable value” can be measured by what the doctor would accept from the plaintiff to settle her bill, what the doctor would take from a repo man to clear bad debt off the books isn’t quite the same thing.
Affirmed.
This is another med-mal case where the issue is to what degree plaintiff’s as-billed medical expenses—which have no relation to reality, much less what she actually paid—are admissible evidence of her special damages. Plaintiff here was uninsured and she gave her doctors liens on the full billed amounts. So she did, in fact, technically owe them what was billed.
This issue was kind of addressed this in the Bermudez case, decided last summer. There, the court—expounding on the Supreme Court’s 2011 Howell decision—explained that for an uninsured plaintiff, the true measure of her medical specials is the lesser of (1) what she actually paid to satisfy the doctor; and (2) a “reasonable value,” to be determined through a wide-ranging gestalt-type test. Bermudez said that the billed amount is not, on its own, sufficient to the prove reasonableness of the expense. But along with just a little other stuff—like, in particular, an expert’s opinion—it gets plaintiff to the jury.
The trial court here found plaintiff’s billed amounts to be more or less reasonable and let them go to the jury. It’s not clear that plaintiff had any other evidence. So that might not jibe with Bermudez. But these Defendants didn’t raise that issue in their appeal. Instead, their argument was that Plaintiff’s doctors sold her bills to a collection agent—likely for cents on the dollar. Defendants wanted to put that in as evidence of the “reasonable value” of plaintiff’s claim, in lieu of the billed amounts.
The trial court refused. Because the plaintiff still owed the whole amount and the collector could and would invariably seek to recover more from plaintiff than it paid her doctors for the claims, nothing suggested that the sale value of the claims—without more—represented their true “reasonable value.” Defendant needed something to bridge the gap between the sale value and the reasonable one. Otherwise, the sale value would not stand up as an acceptable proxy for reasonable value. So without an expert, the trial court correctly held that whatever evidentiary value the context-less sale numbers had, it was outweighed by the potential that the jury might give them too much credence.
In a way, the case is essentially Bermudez in reverse. The court points out—with considerable examination of the post-Howell case law—that while “reasonable value” can be measured by what the doctor would accept from the plaintiff to settle her bill, what the doctor would take from a repo man to clear bad debt off the books isn’t quite the same thing.
Affirmed.
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