FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA A. GIBSON, as 

Personal Representative of 

the Estate of Johnny G. 

Gibson, and for herself; JOHN 

TRAVIS MORGAN GIBSON;

DIXIE LEE GIBSON,

Plaintiffs-Appellants,

v.

UNITED STATES OF 

AMERICA,

Defendant-Appellee.

No. 20-35333

D.C. No.

4:18-cv-00112-BMM

ORDER CERTIFYING 

QUESTIONS TO THE 

SUPREME COURT OF 

MONTANA

Filed June 22, 2021

Before: Danny J. Boggs,

* Richard A. Paez, and

Paul J. Watford, Circuit Judges.

Order

* The Honorable Danny J. Boggs, United States Circuit Judge for 

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 GIBSON V. UNITED STATES

SUMMARY**

Montana Law

The panel certified to the Montana Supreme Court the 

following questions:

1. Under Montana law, for a claim that accrued prior to 

the effective date of Mont. Code Ann. § 27-1-308 

(2021), may a plaintiff in a survival action recover 

the reasonable value of medical care and related 

services when the costs of such care or services are 

written-off under the provider’s charitable care 

program?

2. For a claim that accrued prior to the effective date of 

Mont. Code Ann. § 27-1-308 (2021), does a 

charitable care write-off qualify as a collateral source 

within the meaning of section 27-1-307? If so, does 

a charitable care write-off qualify for the “gifts or 

gratuitous contributions” exception under section 27-

1-307(1)(c)?

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GIBSON V. UNITED STATES 3

ORDER

Pursuant to Montana Rule of Appellate Procedure 15(3), 

we respectfully certify the questions set forth below to the 

Montana Supreme Court. If the Montana Supreme Court 

accepts certification, the court’s decision will “be 

determinative of an issue” in this appeal, Mont. R. App. P. 

15(3)(a), and there is “no controlling appellate decision, 

constitutional provision, or statute” under Montana law, 

Mont. R. App. P. 15(3)(b).

I. Administrative Information

We provide the following information in accordance 

with Montana Rule of Appellate Procedure 15(6)(a)(iv).

The names and addresses of counsel are:

For Plaintiffs-Appellants Barbara Gibson, as personal 

representative of the estate of Johnny G. Gibson, and for 

herself; John Travis Morgan Gibson; Dixie Lee Gibson: 

John M. Morrison, Morrison, Sherwood, Wilson & Deola, 

PLLP, 401 North Last Chance Gulch, P.O. Box 557, Helena, 

MT 59624-0557.

For Defendant-Appellee United States of America: Tim 

Tatarka, Assistant U.S. Attorney, District of Montana, U.S. 

Courthouse, 2601 Second Avenue North, Box 3200, 

Billings, MT 59101.

II. Certified Questions

We present the following certified questions. We 

acknowledge that the Montana Supreme Court, as the 

receiving court, may reformulate the questions presented. 

Mont. R. App. P. 15(4).
4 GIBSON V. UNITED STATES

1. Under Montana law, for a claim that 

accrued prior to the effective date of 

Mont. Code Ann. § 27-1-308 (2021), may 

a plaintiff in a survival action recover the 

reasonable value of medical care and 

related services when the costs of such 

care or services are written-off under the 

provider’s charitable care program?

2. For a claim that accrued prior to the 

effective date of Mont. Code Ann. § 27-

1-308 (2021), does a charitable care 

write-off qualify as a collateral source 

within the meaning of section 27-1-307? 

If so, does a charitable care write-off 

qualify for the “gifts or gratuitous 

contributions” exception under section 

27-1-307(1)(c)?

III. Statement of Facts

In 2015, Johnny Gibson (“Gibson”) was working as a 

seasonal rancher in Montana. On September 14, 2015, he 

visited the Central Montana Community Health Center 

(“CMCHC”), a federally-funded health care center in 

Lewistown, Montana, due to chest pain, pain between the 

shoulder blades, heartburn, and fatigue. The nurse did not 

perform a heart workup, refer Gibson for a heart workup, or 

mention potential heart issues in the medical record. One 

week later, Gibson, his wife Barbara, and his adult daughter 

Dixie Lee began driving back home to Colorado, but stopped 

at a truck stop when Gibson experienced chest pain. He was 

transported by ambulance to St. Vincent Hospital in Billings, 

Montana, where he died following a myocardial infarction.
GIBSON V. UNITED STATES 5

In 2018, Barbara Gibson filed a wrongful death and 

survival action pursuant to the Federal Tort Claims Act, 28 

U.S.C. §§ 1346(b), 2672, in her role as the personal 

representative of her late husband’s estate, and on behalf of 

Gibson’s heirs: herself and their two adult children, Dixie 

Lee and John Travis (collectively, the “Gibson Estate”). The 

government conceded negligence in the failure to evaluate 

and treat Gibson’s heart condition at CMCHC, and that the 

negligence was more likely than not a substantial factor in 

Gibson’s death. The district court granted summary 

judgment to the Gibson Estate on these issues and proceeded 

to a bench trial to determine damages. The district court 

awarded $183,814 to the estate, $289,434 to Barbara Gibson, 

$70,000 to Dixie Lee Gibson, and $35,000 to John Travis 

Gibson, for a total of $578,248.1

The district court did not award damages for the 

reasonable value of medical expenses incurred at St. Vincent 

Hospital or for the cost of the ambulance service, because 

the hospital and ambulance provider wrote off Gibson’s bills 

as part of their charity programs. The hospital and 

ambulance provider sent Gibson statements listing a total of 

$165,661.50 in medical charges, but both the hospital and 

ambulance provider showed on the same documents that

those amounts were forgiven in full as part of their charity 

1 The district court initially awarded a higher amount of damages. 

The government moved to alter the judgment under Federal Rule of Civil 

Procedure 59(e), arguing that Montana law capped non-economic 

damages in medical malpractice cases at $250,000. See Mont. Code 

Ann. § 25-9-411. The district court then reduced the damages to comply 

with the limitation on non-economic damages. The district court 

awarded $328,248 in economic damages.
6 GIBSON V. UNITED STATES

care programs.2 Under the header of “Payments and 

Adjustments,” the hospital statement lists the amount of 

$164,670.22 followed by the entry “CHARITY – BELOW 

FPG” and a balance of zero. Similarly, the ambulance 

statement lists “Total Charges” of $991.28 followed by the 

notation “HARDSHIP WRITE-OFF” and a balance of zero. 

The hospital never tried to collect payment from the estate 

or family.3 The Gibson Estate appealed to the Ninth Circuit, 

raising a single issue: whether the Estate was entitled to 

damages for the written-off medical and ambulance 

expenses.

IV. Explanation of Certification

In Federal Tort Claims Act actions, we apply the law of 

the state “where the act or omission occurred.” 28 U.S.C. 

§ 1346(b)(1); F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994). 

The negligent acts in this case occurred in Montana. 

Consequently, Montana law applies to this case.

The Montana Legislature recently revised Mont. Code 

Ann. § 27-1-308(3) (2021) to provide that a jury cannot 

consider “charges for medical services or treatment that were 

included on health care providers’ bills but resolved by way 

of contractual discount, price reduction, disallowance, gift, 

2 The total medical expenses included a $164,670.22 medical bill 

from St. Vincent Hospital and a $991.28 bill for the ambulance service. 

The district court and parties all state that the medical expenses totaled 

$165,651.50, which appears to be a minor miscalculation.

3 At oral argument, the Gibson Estate conceded that the hospital did 

not reserve a right to collect payment for the charitable care write-off in 

the event the Estate recovered from a third-party tortfeasor. In 

supplemental briefing, the Gibson Estate asserted there is no evidence 

that the hospital forfeited any subrogation rights, but presented no 

affirmative evidence that the hospital retained a subrogation right.
GIBSON V. UNITED STATES 7

write-off, or otherwise not paid.” The revised statute, 

however, only “applies to claims that accrue on or after” the 

effective date of the act, April 30, 2021. 2021 Mont. Laws 

Ch. 327 § 6. Because the Estate’s claim accrued prior to 

April 30, 2021, the revised statute does not apply to this case.

Montana law prior to the enactment of Mont. Code Ann. 

§ 27-1-308 (2021) provides little guidance on how to 

approach the certified questions, and no precedent by the 

Montana Supreme Court directly addresses the issues at 

hand. The Montana Supreme Court has held in other 

contexts that tort plaintiffs should not receive a windfall 

recovery by recovering damages in excess of medical 

expenses, Newbury v. State Farm Fire & Cas. Ins. Co., 

184 P.3d 1021, 1029 (Mont. 2008); Conway v. Benefis 

Health Sys., Inc., 297 P.3d 1200, 1207 (Mont. 2013), and 

Montana tort law “works to ensure that an award of damages 

restores an injured party as near as possible to the party’s 

pre-tort position—no better, no worse,” Lampi v. Speed, 

261 P.3d 1000, 1004 (Mont. 2011). There is no controlling 

precedent from the Montana Supreme Court, however, that 

answers the certified questions.

First, the Montana Supreme Court has not addressed 

whether a charitable write-off of medical expenses can be 

recovered as damages. Cf. Meek v. Mont. Eighth Judicial 

Dist., 349 P.3d 493, 494–95 (Mont. 2015) (holding that a full 

hospital bill was admissible as evidence, but declining to 

address whether a plaintiff could recover damages for the 

full bill when the hospital had accepted a lower payment 

from Medicare and an insurer as payment in full). Second, 

the Montana Supreme Court has not addressed whether 

write-offs are subject to Montana’s collateral source rule. 

See id. at 496 (explaining that “payments made by Medicare 

to satisfy the providers’ billings are clearly a collateral 
8 GIBSON V. UNITED STATES

source” but not addressing whether the written-off portion of 

the medical bill was similarly a collateral source). Further, 

we are unaware of any precedent interpreting the gifts or 

gratuitous assistance exception under Mont. Code Ann.

§ 27-1-307(1)(c). The Restatement (Second) of Torts 

§ 920A, which the Montana Supreme Court has relied upon 

in a different context, see Five U’s, Inc. v. Burger King 

Corp., 962 P.2d 1218, 1220–21 (Mont. 1998), also suggests 

that the fact a hospital wrote off a bill will not prevent a 

plaintiff from recovering the reasonable value of medical 

expenses. Restatement (Second) of Torts § 920A cmt. c(3) 

(Am. Law Inst. 1979) (“[T]he fact that the doctor did not 

charge for his services . . . does not prevent [the plaintiff’s] 

recovery for the reasonable value of the services.”).

We thus respectfully ask the Montana Supreme Court to 

exercise its discretionary authority to accept and decide these 

certified questions. If the court decides that the questions 

presented are inappropriate for certification, or declines the 

certification for any other reason, we request that it so state, 

and we will resolve the questions according to our best 

understanding of Montana law.

The Clerk of this court shall file a certified copy of this 

order with the Montana Supreme Court under Montana Rule 

of Appellate Procedure 15(5). This appeal is withdrawn 

from submission and will be submitted following receipt of 

the Montana Supreme Court’s opinion on the certified 

questions or notification that it declines to answer the 

certified questions. The panel shall retain jurisdiction over 

further proceedings in this court. The parties shall notify the 

Clerk of this court within one week after the Montana 

Supreme Court accepts or rejects certification. In the event 

the Montana Supreme Court grants certification, the parties 
GIBSON V. UNITED STATES 9

shall notify the Clerk within one week after the court renders 

its opinion.

The Clerk of this court shall administratively close this 

case pending further court order.

CERTIFICATION REQUESTED; SUBMISSION 

VACATED.