Daily Blast May 18, 2018

Good afternoon, we understand this case has received a lot of attention and we wanted to provide our appellate department’s discussion on the case. Therefore, below is a daily blast we prepared.

As you may know, the Court of Appeal in Pebley v. Santa Clara Organics LLC (B277893, May 8, 2018) (Los Angeles)__ Cal.App.5th __, issued an opinion holding that an injured plaintiff who elects not to use an available insurance plan will be treated as uninsured for the purpose of determining economic damages. (Slip opn., p. 2.)

The court explained that with an uninsured plaintiff, “medical bills are relevant and admissible to prove both the amount incurred and the reasonable value of medical services provided.” (Slip opn., p. 12.) The uninsured plaintiff, however, must also “present additional evidence, generally in the form of expert opinion testimony, to establish that the amount billed is a reasonable value for the service rendered.” (Ibid.) According to the court, the plaintiff should be permitted to introduce expert testimony that the amount incurred and billed is the reasonable value of the service rendered. (Ibid.) “The defendant may then test the expert’s opinion through cross-examination and present his or her own expert opinion testimony that the reasonable value of the service is lower.” (Ibid.) Based upon this “wide-ranging inquiry,” a jury can then “best decide the reasonable value of the medical treatment, which is likely to be the cap on the uninsured plaintiff’s medical damages. [Citation.]” (Ibid.)

The court rejected the defendants’ argument that the plaintiff failed to mitigate his damages. (Slip opn., p. 14.) The plaintiff was entitled to recover the lesser of: (1) the amount incurred or paid for medical services, and (2) the reasonable value of the services rendered. (Id. at p. 13.) “A tortfeasor cannot force a plaintiff to use his or her insurance to obtain medical treatment for injuries caused by the tortfeasor. That choice belongs to the plaintiff.” (Id. at p. 14.)

The court also seemed to suggest that BAJI No. 14.10 regarding the reasonable value of medical services might have been a better instruction in this case than CACI No. 3903A. The defendants pointed out that both of plaintiff’s surgeons emphasized the reasonable cost of the medical services rather than their reasonable value, market value or exchange rate value. (Slip opn., p. 17.) CACI No. 3903, which the court instructed the jury with, refers to “cost” instead of any type of “value.” (Id. at pp. 17-18.) BAJI No. 14.10, on the other hand, discusses reasonable value. (Id. at p. 18, fn. 4.) The court stated that “[t]he surgeons’ testimony was consistent with CACI No. 3903A and, in the absence of an objection to the instruction, it was appropriate for them to testify regarding the reasonable cost of reasonably necessary medical care that the plaintiff has received and is expected to receive in the future.” (Id. at p. 18.)

The case also includes a good summary of the more recent Hanif/Howell line of cases, which is worth reading.