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WILMA J. GRAY
°
(State Bar No. 188386)
L. MAPLE LAY (State Bar No. 267714) TT i
MCNAMARA, NEY, BEATTY, SLATTERY, FILED
BorGES & AMBACHER LLP ALAMEDA COUNTY
1211 Newell Avenue
Post Office Box 5288 OC! 21 2011
Walnut Creek, CA 94596
Telephone: (925) 939-5330
Facsimile: (925) 939-0203
Attorneys for Defendant
ISLAND PACIFIC SUPERMARKETS, INC.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
LLP
CIVIL -UNLIMITED JURISDICTION
AMBACHER
10
1] JAMES LUTTRELL, Case No. RG09-469504
94596
&
Plaintiff, SUPPLEMENTAL BRIEF IN SUPPORT
BORGES
CA
OF DEFENDANT’S MOTION TO SET
939-5330
13 VS. ASIDE JUDGMENT AND POST VERDICT
CREEK.
LAW
MOTION FOR REDUCTION OF PAST
SLATTERY,
14 ISLAND PACIFIC SUPERMARKETS, MEDICAL SPECIAL DAMAGES AND
AT
(925)
WALNUT
INC., and DOES 1-100, OFFSET
ATTORNEYS
15
TELEPHONE:
Defendants.
5288,
16 RESERVATION NO.: R-1186704
BEATTY,
BOX
17 - Date: 10/31/2011
Time: 8:30 A.M.
P.O.
NEY,
18 Dept.: 21
19 Judge: Hon. Wynne Carvill
McNAMARA,
20
21 Defendant ISLAND PACIFIC SUPERMARKETS, INC. (hereafter referred to as
22 “Defendant”) hereby submits a Supplemental Brief based upon new case law to be considered by
23 the Court when ruling upon Defendant’s Motion to Set Aside Judgment, Post-Verdict Motion for
24 Reduction of Past Medical Special Damages and for Offset, to address the impact of the
25 California Supreme Court’s recent decision inHowell v. Hamilton Meats & Provisions, Inc..
26 /I/
27 ///
28 //
SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF
PAST MEDICAL SPECIAL DAMAGES AND OFFSET ,
I. EXECUTIVE SUMMARY
Following the trial of this matter, the jury awarded Plaintiff James Luttrell $256,109.50
for “past medical expenses.” As the Court is aware, Defendant seeks to set aside that portion of
the Judgment, which was entered on May 20, 2011, for the purpose of reducing the past economic
damages. In light of the state of the case law, Defendant contends that this Court should impose
the Howell standards and require that the award for Plaintiff's past medical expenses be limited to
the amounts accepted as payment in full by Plaintiff's medical care providers.
If. POINTS AND AUTHORITIES
LLP
A. Howell Limits Plaintiff's Recovery to Only Those Medical Expenses
AMBACHER
Paid by his Insurance and Accepted as Payment in Full by the Medical
LO Care Providers.
The California Supreme Court in ruling upon Howell v. Hamilton Meats & Provisions,
94596
&
12 Inc., decisively held that a plaintiff, such as James Luttrell, is limited to recovering only those
BORGES
CA
939-5330
13 medical expenses actually paid by his or her insurer, and which was accepted as payment in full
CREEK,
LAW
14
SLATTERY,
by the medical care providers. The California Supreme Court specifically held:
AT
(925)
WALNUT
ATTORNEYS
15 We agree with the Hanif court that a plaintiff may recover as
TELEPHONE:
economic damages vo more than the reasonable value of the
16
5288,
BEATTY,
medical services received and is not entitled to recover the
17 reasonable value if his or her actual loss was less. (Hanif, supra,
BOX
200 Cal.App.3d at p. 641.) California decisions have focused on
P.O.
18
NEY,
“reasonable value” in the context of /imiting recovery to reasonable
expenditures, not expanding recovery beyond the plaintiff’s actual
19
McNAMARA,
loss or liability.To be recoverable, a medical expense must be both
incurred and reasonable. (Citations omitted.)
20
21 The rule that a plaintiff's expenses, to be recoverable, must be both
incurred and reasonable accords, as well, with our damages statutes.
22 “Damages must, in allcases, be reasonable ... .” (Civ. Code, §
3359.) But if the plaintiff negotiates a discount and thereby
23 receives services for less than might reasonably be charged, the
24 plaintiff
greater
has
amount
not suffered
and
a pecuniary
therefore cannot
loss or
recover
other detriment
damages for that
in the
25 amount. (Id., §§ 3281, 3282.) The same rule applies when a
collateral source, such as the plaintiff's health insurer, has
26 obtained a discount for its payments on the plaintiff's behalf.
(Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th
27 541, 555 (italics in original, emphasis in bold added).)
28
2
SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF
PAST MEDICAL SPECIAL DAMAGES AND OFFSET
The plaintiff in Howell attempted to distinguish herself as having private medical
insurance, as opposed to the plaintiff in Hanif v. Hanif v. Housing Auth. of Yolo County (1988)
200 Cal.App.3d 635, 641, who had Medi-Cal insurance. (Howell, 52 Cal. 4th at 556.) Yet, the
California Supreme Court for the Howell case found the distinction to be “unpersuasive.” (/d.)
The Howell plaintiff's medical care providers had pre-existing agreements with her insurance _
company (PacifiCare), and plainly limited the amounts PacifiCare would pay to the medical care
providers for each service rendered. The Supreme Court determined that the Howell plaintiff
“cannot meaningfully be said ever to have incurred the full charges.” (Howell, 52 Cal. 4th at
LLP
556.)
AMBACHER
Here, Plaintiff James Lutrell 1s exactly like the plaintiff in Hanif, whose holding has been
affirmed in Howell. Plaintiff James Lutrell was at the time of the subject accident eligible for an
94596
&
was receiving Medi-Cal insurance, and presented evidence at trial of the “reasonable value” of the
BORGES
CA
939-5330
past medical expenses rendered in his case. These values were in excess of the amount actually
CREEK,
LAW
SLATTERY,
paid by Medi-Cal to the health care providers, on the plaintiffs behalf. There was no evidence
AT
(925)
WALNUT
ATTORNEYS
15S present at trial that Mr. Luttrell personally would be lable for the difference between the
TELEPHONE:
5288,
16 reasonable value of the medical services and the actual paid value. In fact, the medical providers
BEATTY,
had each written off the balance between the amount billed and the amount actually paid on the
BOX
17
P.O.
NEY,
18 plaintiff's behalf. Per the decisions in Howell and Hanif, Mr. Luttrell’s recovery for the value
19 of past medical services must be limited to the amounts actually paid.
McNAMARA,
20 B. Plaintiff Has Been Awarded Damages for Past Medical Expenses in
Excess of the Amounts Actually Paid, Which Was Irrelevant and
21 Unreliable.
22 Howell specifically remarked on the unreliability of a medical care provider’s billed price
23 for services rendered:
24 As we have seen, a medical care provider’s billed price for particular services is
not necessarily representative of either the cost of providing those services or their
25 market value. Within a single hospital’s chargemaster, for example, “[m]ark-ups
tend to vary by service line, with high cost items receiving a lower mark-up than
26 low cost items.” (Citations omitted.) (Howell, 52 Cal. 4th at 564-565.)
27
28
3
SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF
PAST MEDICAL SPECIAL DAMAGES AND OFFSET
Additionally, Howell stated that where a provider has accepted less than a billed amount
as payment in full, “evidence of the full billed amount is not itself relevant on the issue of past
medical expenses.” (/d. at 567.)
Therefore, evidence of the gross amount on Plaintiff James Luttrell’s medical bills must
be considered both unreliable and irrelevant, particularly as cited in support in Plaintiffs
Opposition to the instant Motion for Reduction and Plaintiffs own Motion for New Trial. This is
especially true for Plaintiff's medical bills for all of the disputed medical care providers listed in
Trial Exhibit 19, and in particular St. Rose Hospital, which accepted as full payment, an amount
LLP
considerably less than the original billed amount. Pursuant to well settled law, as confirmed by
AMBACHER
the California Supreme Court in Howell, Plaintiffis limited to recovering only the actual amounts
i paid for his past medical expenses.
94596
&
12 C. Defendant Is Entitled to a New Trial Based on Excessive Damages, or
BORGES
CA
939-5330
in the Alternative, a Reduction of the Past Medical Special Damages.
13
CREEK,
LAW
[f ajury awards damages for past medical expenses greater than the amounts actually paid
14
SLATTERY,
AT
(925)
WALNUT
to those providers of past medical care, a defendant is entitled to a new trial based on excessive
ATTORNEYS
15
TELEPHONE:
damages, or a reduction of those past medical expenses. Specifically, Howell elaborated:
16
5288,
BEATTY,
Where a trialjury has heard evidence of the amount accepted as full
17
BOX
payment by the medical provider but has awarded a greater sum as
18
P.O.
damages for past medical expenses, the defendant may move for a
NEY,
new trialon grounds of excessive damages. (Code Civ. Proc., §
19 657, subd. 5.) A nonstatutory “Hanif motion” is unnecessary. The
McNAMARA,
trial court, if itgrants the new trial motion, may permit the plaintiff
20 to choose between accepting reduced damages or undertaking a
new trial. (Id., § 662.5, subd. (b).) (Howell, 52 Cal. 4th at 567.)
21
22 At the trial of the Luttrell matter, evidence was presented to the Jury by Stipulation of the
23 total amount of past medical expenses charged for the treatment of James Luttrell. The
24 Stipulation was marked and admitted as Trial Exhibit 19. However, the amounts stated on
25 Exhibit 19 were not the actual amounts accepted as payment in full by James Luttrell’s medical
26 care providers. The Jury then returned a Judgment awarding damages for past medical expenses
27 in excess of the amounts actually paid, and which must be reduced, according to the law of the
28 state of California as most recently stated in Howell.
4
SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF
PAST MEDICAL SPECIAL DAMAGES AND OFFSET
If. CONCLUSION
Based on the foregoing, Defendant respectfully requests that the Court modify the
Judgment in this case, particularly the recoverable damages for past medical expenses. The Court
should reduce the past medical expenses to $63,508.56, which represents the total of the amounts
actually paid by Plaintiff, Medicare, or Medi-Cal. (This is a reduction of $192,600.94.) As fully
explained in Defendant’s moving papers, Hanif and its progeny of cases, and now the California
Supreme Court’s decision in Howell, clearly demonstrate that a plaintiff in a personal injury
action can only recover the actual amount he or she paid, or the actual amounts paid on his or her
LLP
behalf.
AMBACHER
Therefore, the Judgment in this case should be revised to reflect the following sums:
REVISED DAMAGES (Question No. 5)
94596
&
(a) Past medical expenses from Exhibit 19:
BORGES
CA
Washington Hospital $28,222.68
939-5330
CREER.
Park Central Care $20,146.24
LAW
St. Rose Hospital $11,301.99
SLATTERY,
AT
(925)
Danville Rehabilitation $ 1,127.15
WALNUT
ATTORNEYS
Dr. W. Stearns $ 475.67
TELEPHONE:
Dr. N. Kannan $ 607.88
5288,
Dr. P. Kudaravalli $ 842.57
BEATTY,
Dr. D. Allen $ 123.04
BOX
17 American Med Response $ 477.24
Dr. S. Gustaveson $_ 184.10
P.O.
NEY,
18
Subtotal $ 63,508.56
19
McNAMARA,
(b) Future medical expenses: $116,664.50
20 Total Economic Damages $180,173.06
(e) Past non-economic loss, including pain
21 and suffering: $ 30,000.00
(f) Future non-economic loss, including pain
22
and suffering $ 10,000.00
23 Total Non-Economic Damages $ 40,000.00
24 REVISED Total Damages $220,173.06
25 The number of Revised Total Damages is reduced by the 5% contributory negligence
26 which the Jury attributed to Plaintiff James Luttrell, to $209,164.41. As explained above, that
27 number is further reduced by the offset of $10,000.00, previously paid to Plaintiff on November
28 10, 2010 by Peerless Insurance Company.
5
SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF
PAST MEDICAL SPECIAL DAMAGES AND OFFSET
The Judgment in this matter, should be amended accordingly, and a new Amended
Judgment should be entered in the amount of $199,164.41.
Dated: October 20 »2011 MCNAMARA, NEY, BEATTY, SLATTERY,
BORGES & AMBACHER LLP
wy DopeLe
Wilma J. Gray Cc)
L. Maple Lay
Attorneys for Defendant, ISLAND PACIFIC
SUPERMARKETS, INC.
LLP
AMBACHER
94596
&
12
BORGES
CA
939-5330
13
CREEK,
LAW
14
SLATTERY,
AT
(925)
WALNUT
ATTORNEYS
15
TELEPHONE:
16
$288,
BEATTY,
17
BOX
P.O.
18
NEY,
19
McNAMARA,
20
21
22
23
24
25
26
27
28
6
SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF
PAST MEDICAL SPECIAL DAMAGES AND OFFSET
PROOF OF SERVICE BY MAIL (C.C.P. §§ 1013a, 2015.5)
Thereby declare that Iam a citizen of the United States, am over the age of eighteen years,
and not a party to the within action; my business address is 1211 Newell Avenue, Walnut Creek,
California 94596.
On this date I served the foregoing SUPPLEMENTAL BRIEF IN SUPPORT OF
DEFENDANT'S MOTION TO SET ASIDE JUDGMENT AND POST VERDICT
MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET
on the parties in said action, by placing a true copy thereof enclosed in a sealed envelope
LLP
addressed as listed below for mailing. I am readily familiar with this firm's practice of collection
AMBACHER
10 and processing correspondence for mailing. Under that practice, itwould be deposited with the
11 United States Postal Service on that same day with postage thereon fully prepaid, in the United
94596
&
12 States Post Office mail box at Walnut Creek, California, addressed as follows:
BORGES
CA
939-5330
13.
CREEK,
Attorneys For Plaintiff, James Luttrell:
LAW
14
SLATTERY,
AT
(925)
Howard Melamed, Esq.
WALNUT
Attorney at Law
ATTORNEYS
15 319 Lennon Lane
TELEPHONE:
Walnut Creek, CA 94598
16
5288,
BEATTY,
Phone: 925-932-0417
17
BOX
Fax: 925-256-9542
P.O.
18
NEY,
I declare under penalty of perjury under the lawsof the State of California that the
19
McNAMARA,
foregoing is true and correct and that this declaration was executed on October 20, 2011 at
20
Walnut Creek, California.
21
22
7 eS
23 Diane Gordon
24
25
26
27
28
Preview
@ — wv WILMA J. GRAY ° (State Bar No. 188386) L. MAPLE LAY (State Bar No. 267714) TT i MCNAMARA, NEY, BEATTY, SLATTERY, FILED BorGES & AMBACHER LLP ALAMEDA COUNTY 1211 Newell Avenue Post Office Box 5288 OC! 21 2011 Walnut Creek, CA 94596 Telephone: (925) 939-5330 Facsimile: (925) 939-0203 Attorneys for Defendant ISLAND PACIFIC SUPERMARKETS, INC. SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA LLP CIVIL -UNLIMITED JURISDICTION AMBACHER 10 1] JAMES LUTTRELL, Case No. RG09-469504 94596 & Plaintiff, SUPPLEMENTAL BRIEF IN SUPPORT BORGES CA OF DEFENDANT’S MOTION TO SET 939-5330 13 VS. ASIDE JUDGMENT AND POST VERDICT CREEK. LAW MOTION FOR REDUCTION OF PAST SLATTERY, 14 ISLAND PACIFIC SUPERMARKETS, MEDICAL SPECIAL DAMAGES AND AT (925) WALNUT INC., and DOES 1-100, OFFSET ATTORNEYS 15 TELEPHONE: Defendants. 5288, 16 RESERVATION NO.: R-1186704 BEATTY, BOX 17 - Date: 10/31/2011 Time: 8:30 A.M. P.O. NEY, 18 Dept.: 21 19 Judge: Hon. Wynne Carvill McNAMARA, 20 21 Defendant ISLAND PACIFIC SUPERMARKETS, INC. (hereafter referred to as 22 “Defendant”) hereby submits a Supplemental Brief based upon new case law to be considered by 23 the Court when ruling upon Defendant’s Motion to Set Aside Judgment, Post-Verdict Motion for 24 Reduction of Past Medical Special Damages and for Offset, to address the impact of the 25 California Supreme Court’s recent decision inHowell v. Hamilton Meats & Provisions, Inc.. 26 /I/ 27 /// 28 // SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET , I. EXECUTIVE SUMMARY Following the trial of this matter, the jury awarded Plaintiff James Luttrell $256,109.50 for “past medical expenses.” As the Court is aware, Defendant seeks to set aside that portion of the Judgment, which was entered on May 20, 2011, for the purpose of reducing the past economic damages. In light of the state of the case law, Defendant contends that this Court should impose the Howell standards and require that the award for Plaintiff's past medical expenses be limited to the amounts accepted as payment in full by Plaintiff's medical care providers. If. POINTS AND AUTHORITIES LLP A. Howell Limits Plaintiff's Recovery to Only Those Medical Expenses AMBACHER Paid by his Insurance and Accepted as Payment in Full by the Medical LO Care Providers. The California Supreme Court in ruling upon Howell v. Hamilton Meats & Provisions, 94596 & 12 Inc., decisively held that a plaintiff, such as James Luttrell, is limited to recovering only those BORGES CA 939-5330 13 medical expenses actually paid by his or her insurer, and which was accepted as payment in full CREEK, LAW 14 SLATTERY, by the medical care providers. The California Supreme Court specifically held: AT (925) WALNUT ATTORNEYS 15 We agree with the Hanif court that a plaintiff may recover as TELEPHONE: economic damages vo more than the reasonable value of the 16 5288, BEATTY, medical services received and is not entitled to recover the 17 reasonable value if his or her actual loss was less. (Hanif, supra, BOX 200 Cal.App.3d at p. 641.) California decisions have focused on P.O. 18 NEY, “reasonable value” in the context of /imiting recovery to reasonable expenditures, not expanding recovery beyond the plaintiff’s actual 19 McNAMARA, loss or liability.To be recoverable, a medical expense must be both incurred and reasonable. (Citations omitted.) 20 21 The rule that a plaintiff's expenses, to be recoverable, must be both incurred and reasonable accords, as well, with our damages statutes. 22 “Damages must, in allcases, be reasonable ... .” (Civ. Code, § 3359.) But if the plaintiff negotiates a discount and thereby 23 receives services for less than might reasonably be charged, the 24 plaintiff greater has amount not suffered and a pecuniary therefore cannot loss or recover other detriment damages for that in the 25 amount. (Id., §§ 3281, 3282.) The same rule applies when a collateral source, such as the plaintiff's health insurer, has 26 obtained a discount for its payments on the plaintiff's behalf. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 27 541, 555 (italics in original, emphasis in bold added).) 28 2 SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET The plaintiff in Howell attempted to distinguish herself as having private medical insurance, as opposed to the plaintiff in Hanif v. Hanif v. Housing Auth. of Yolo County (1988) 200 Cal.App.3d 635, 641, who had Medi-Cal insurance. (Howell, 52 Cal. 4th at 556.) Yet, the California Supreme Court for the Howell case found the distinction to be “unpersuasive.” (/d.) The Howell plaintiff's medical care providers had pre-existing agreements with her insurance _ company (PacifiCare), and plainly limited the amounts PacifiCare would pay to the medical care providers for each service rendered. The Supreme Court determined that the Howell plaintiff “cannot meaningfully be said ever to have incurred the full charges.” (Howell, 52 Cal. 4th at LLP 556.) AMBACHER Here, Plaintiff James Lutrell 1s exactly like the plaintiff in Hanif, whose holding has been affirmed in Howell. Plaintiff James Lutrell was at the time of the subject accident eligible for an 94596 & was receiving Medi-Cal insurance, and presented evidence at trial of the “reasonable value” of the BORGES CA 939-5330 past medical expenses rendered in his case. These values were in excess of the amount actually CREEK, LAW SLATTERY, paid by Medi-Cal to the health care providers, on the plaintiffs behalf. There was no evidence AT (925) WALNUT ATTORNEYS 15S present at trial that Mr. Luttrell personally would be lable for the difference between the TELEPHONE: 5288, 16 reasonable value of the medical services and the actual paid value. In fact, the medical providers BEATTY, had each written off the balance between the amount billed and the amount actually paid on the BOX 17 P.O. NEY, 18 plaintiff's behalf. Per the decisions in Howell and Hanif, Mr. Luttrell’s recovery for the value 19 of past medical services must be limited to the amounts actually paid. McNAMARA, 20 B. Plaintiff Has Been Awarded Damages for Past Medical Expenses in Excess of the Amounts Actually Paid, Which Was Irrelevant and 21 Unreliable. 22 Howell specifically remarked on the unreliability of a medical care provider’s billed price 23 for services rendered: 24 As we have seen, a medical care provider’s billed price for particular services is not necessarily representative of either the cost of providing those services or their 25 market value. Within a single hospital’s chargemaster, for example, “[m]ark-ups tend to vary by service line, with high cost items receiving a lower mark-up than 26 low cost items.” (Citations omitted.) (Howell, 52 Cal. 4th at 564-565.) 27 28 3 SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET Additionally, Howell stated that where a provider has accepted less than a billed amount as payment in full, “evidence of the full billed amount is not itself relevant on the issue of past medical expenses.” (/d. at 567.) Therefore, evidence of the gross amount on Plaintiff James Luttrell’s medical bills must be considered both unreliable and irrelevant, particularly as cited in support in Plaintiffs Opposition to the instant Motion for Reduction and Plaintiffs own Motion for New Trial. This is especially true for Plaintiff's medical bills for all of the disputed medical care providers listed in Trial Exhibit 19, and in particular St. Rose Hospital, which accepted as full payment, an amount LLP considerably less than the original billed amount. Pursuant to well settled law, as confirmed by AMBACHER the California Supreme Court in Howell, Plaintiffis limited to recovering only the actual amounts i paid for his past medical expenses. 94596 & 12 C. Defendant Is Entitled to a New Trial Based on Excessive Damages, or BORGES CA 939-5330 in the Alternative, a Reduction of the Past Medical Special Damages. 13 CREEK, LAW [f ajury awards damages for past medical expenses greater than the amounts actually paid 14 SLATTERY, AT (925) WALNUT to those providers of past medical care, a defendant is entitled to a new trial based on excessive ATTORNEYS 15 TELEPHONE: damages, or a reduction of those past medical expenses. Specifically, Howell elaborated: 16 5288, BEATTY, Where a trialjury has heard evidence of the amount accepted as full 17 BOX payment by the medical provider but has awarded a greater sum as 18 P.O. damages for past medical expenses, the defendant may move for a NEY, new trialon grounds of excessive damages. (Code Civ. Proc., § 19 657, subd. 5.) A nonstatutory “Hanif motion” is unnecessary. The McNAMARA, trial court, if itgrants the new trial motion, may permit the plaintiff 20 to choose between accepting reduced damages or undertaking a new trial. (Id., § 662.5, subd. (b).) (Howell, 52 Cal. 4th at 567.) 21 22 At the trial of the Luttrell matter, evidence was presented to the Jury by Stipulation of the 23 total amount of past medical expenses charged for the treatment of James Luttrell. The 24 Stipulation was marked and admitted as Trial Exhibit 19. However, the amounts stated on 25 Exhibit 19 were not the actual amounts accepted as payment in full by James Luttrell’s medical 26 care providers. The Jury then returned a Judgment awarding damages for past medical expenses 27 in excess of the amounts actually paid, and which must be reduced, according to the law of the 28 state of California as most recently stated in Howell. 4 SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET If. CONCLUSION Based on the foregoing, Defendant respectfully requests that the Court modify the Judgment in this case, particularly the recoverable damages for past medical expenses. The Court should reduce the past medical expenses to $63,508.56, which represents the total of the amounts actually paid by Plaintiff, Medicare, or Medi-Cal. (This is a reduction of $192,600.94.) As fully explained in Defendant’s moving papers, Hanif and its progeny of cases, and now the California Supreme Court’s decision in Howell, clearly demonstrate that a plaintiff in a personal injury action can only recover the actual amount he or she paid, or the actual amounts paid on his or her LLP behalf. AMBACHER Therefore, the Judgment in this case should be revised to reflect the following sums: REVISED DAMAGES (Question No. 5) 94596 & (a) Past medical expenses from Exhibit 19: BORGES CA Washington Hospital $28,222.68 939-5330 CREER. Park Central Care $20,146.24 LAW St. Rose Hospital $11,301.99 SLATTERY, AT (925) Danville Rehabilitation $ 1,127.15 WALNUT ATTORNEYS Dr. W. Stearns $ 475.67 TELEPHONE: Dr. N. Kannan $ 607.88 5288, Dr. P. Kudaravalli $ 842.57 BEATTY, Dr. D. Allen $ 123.04 BOX 17 American Med Response $ 477.24 Dr. S. Gustaveson $_ 184.10 P.O. NEY, 18 Subtotal $ 63,508.56 19 McNAMARA, (b) Future medical expenses: $116,664.50 20 Total Economic Damages $180,173.06 (e) Past non-economic loss, including pain 21 and suffering: $ 30,000.00 (f) Future non-economic loss, including pain 22 and suffering $ 10,000.00 23 Total Non-Economic Damages $ 40,000.00 24 REVISED Total Damages $220,173.06 25 The number of Revised Total Damages is reduced by the 5% contributory negligence 26 which the Jury attributed to Plaintiff James Luttrell, to $209,164.41. As explained above, that 27 number is further reduced by the offset of $10,000.00, previously paid to Plaintiff on November 28 10, 2010 by Peerless Insurance Company. 5 SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET The Judgment in this matter, should be amended accordingly, and a new Amended Judgment should be entered in the amount of $199,164.41. Dated: October 20 »2011 MCNAMARA, NEY, BEATTY, SLATTERY, BORGES & AMBACHER LLP wy DopeLe Wilma J. Gray Cc) L. Maple Lay Attorneys for Defendant, ISLAND PACIFIC SUPERMARKETS, INC. LLP AMBACHER 94596 & 12 BORGES CA 939-5330 13 CREEK, LAW 14 SLATTERY, AT (925) WALNUT ATTORNEYS 15 TELEPHONE: 16 $288, BEATTY, 17 BOX P.O. 18 NEY, 19 McNAMARA, 20 21 22 23 24 25 26 27 28 6 SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT’S POST VERDICT MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET PROOF OF SERVICE BY MAIL (C.C.P. §§ 1013a, 2015.5) Thereby declare that Iam a citizen of the United States, am over the age of eighteen years, and not a party to the within action; my business address is 1211 Newell Avenue, Walnut Creek, California 94596. On this date I served the foregoing SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO SET ASIDE JUDGMENT AND POST VERDICT MOTION FOR REDUCTION OF PAST MEDICAL SPECIAL DAMAGES AND OFFSET on the parties in said action, by placing a true copy thereof enclosed in a sealed envelope LLP addressed as listed below for mailing. I am readily familiar with this firm's practice of collection AMBACHER 10 and processing correspondence for mailing. Under that practice, itwould be deposited with the 11 United States Postal Service on that same day with postage thereon fully prepaid, in the United 94596 & 12 States Post Office mail box at Walnut Creek, California, addressed as follows: BORGES CA 939-5330 13. CREEK, Attorneys For Plaintiff, James Luttrell: LAW 14 SLATTERY, AT (925) Howard Melamed, Esq. WALNUT Attorney at Law ATTORNEYS 15 319 Lennon Lane TELEPHONE: Walnut Creek, CA 94598 16 5288, BEATTY, Phone: 925-932-0417 17 BOX Fax: 925-256-9542 P.O. 18 NEY, I declare under penalty of perjury under the lawsof the State of California that the 19 McNAMARA, foregoing is true and correct and that this declaration was executed on October 20, 2011 at 20 Walnut Creek, California. 21 22 7 eS 23 Diane Gordon 24 25 26 27 28