ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP

1 80 M on t go m e ry S t re e t, S ui te 1 2 0 0

S a n F r a nci sc o , C al i fo r ni a 9 4 1 0 4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 3:17-CV-00600-LB

OPPOSITION TO MIL #3

335433.1

DALE L. ALLEN, JR., State Bar No. 145279

dallen@aghwlaw.com

PHILIP J. DOWNS, JR., State Bar No. 302939

pdowns@aghwlaw.com

ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP

180 Montgomery Street, Suite 1200

San Francisco, CA 94104

Telephone: (415) 697-2000

Facsimile: (415) 813-2045

Attorneys for Defendants

COUNTY OF NAPA, COUNTY OF NAPA SHERIFF’S 

DEPARTMENT, DEPUTY TIMOTHY REID

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RENEE LEPAGE, an individual,

Plaintiff,

v.

COUNTY OF NAPA; COUNTY OF 

NAPA SHERIFF’S DEPARTMENT; 

AND DEPUTY TIMOTHY REID,

Defendants.

Case No.: 3:17-cv-00600-LB

Magistrate Judge Laurel Beeler

DEFENDANTS’ OPPOSITION TO 

PLAINTIFF’S MOTION IN LIMINE, #3 TO 

EXCLUDE AMOUNT PAID

Trial: October 15, 2019

Defendants COUNTY OF NAPA; COUNTY OF NAPA’S SHERIFF’S DEPARTMENT; 

and DEPUTY TIMOTHY REID (“Defendants”) oppose Plaintiff’s Motion in Limine regarding 

the applicability of Howell v. Hamilton Meats & Provisions, 52 Cal. 4th 541 (Cal. 2011) to 

federal court litigation. For the reasons stated below, Defendants believe Howell applies.

I. BACKGROUND: HOWELL

In Corenbaum v. Lampkin, 215 Cal. App. 4th 1308 (2013), the California Second District 

Court Appeal concisely summarized the Howell opinion:

The California Supreme Court in Howell, supra, 52 Cal.4th 541, 129 Cal.Rptr.3d 325, 257 

P.3d 1130, held that an injured plaintiff whose medical expenses are paid by private 

insurance can recover damages for past medical expenses in an amount no greater than the 

amount that the plaintiff's medical providers, pursuant to prior agreement, accepted as full 

payment or, to the extent that payment is still owing, the amount that the medical 

providers had agreed to accept as full payment for the services provided. The plaintiff's 

Case 3:17-cv-00600-LB Document 117-1 Filed 09/06/19 Page 1 of 6
ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP

1 80 M on t go m e ry S t re e t, S ui te 1 2 0 0

S a n F r a nci sc o , C al i fo r ni a 9 4 1 0 4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 3:17-CV-00600-LB

OPPOSITION TO MIL #3

335433.1

pecuniary loss is limited to the amount paid or incurred for past medical services, so the 

plaintiff cannot recover damages in excess of that amount. Howell approved the general 

rule from Hanif, supra, 200 Cal.App.3d 635, 640–641, 246 Cal.Rptr. 192, and Nishihama, 

supra, 93 Cal.App.4th 298, 306–307, 112 Cal.Rptr.2d 861, in this regard. 

Corenbaum, supra, at 1324-1325 (internal citations omitted). The California Supreme Court 

found its ruling did not violate the collateral source rule or undermine the rule’s policy goals, for 

three reasons: (1) commercially negotiated price contracts between insurers and providers does 

not constitute a gratuitous service1; (2) there is no “windfall” to the tortfeasor because “it is not 

possible to say generally that providers' full bills represent the real value of their services, nor that 

the discounted payments they accept from private insurers are mere arbitrary reductions”2; and (3) 

the “negotiated rate differential” is not an insurance benefit (because a plaintiff never actually 

incurs liability for the full amount charged by the provider)3. The state high court concluded its 

ruling was consistent with the collateral source rule, as a plaintiff still “recovers the amounts paid 

on her behalf by her health insurer as well as her own out-of-pocket expenses. No credit against 

the tortfeasor's liability and no deduction from the damages which the plaintiff would otherwise 

collect from the tortfeasor is allowed for the amount paid through insurance.”4

II. HOWELL IN FEDERAL COURT

Defendants’ research did not uncover any Ninth Circuit or Supreme Court authority on 

this issue. Within California’s four federal District Courts, there have been at least eight (8) cases 

regarding Howell’s application to federal proceedings. In chronological order, they are:

1. Valiavicharska v. Tinney, CV-10-4847-JSC (N.D. Cal. February 2, 2012)5

2. Hill v. Novartis Pharmaceuticals Corp., 944 F. Supl. 2d 943 (E.D. Cal. May 10, 2013) 

3. Pooshs vs. Phillip Morris USA, Inc., 2013 WL 2253780 (N.D. Cal. May 22, 2013) 

4. Forbes v. County of Orange, 2013 WL 12165672 (C.D. Cal. August 4, 2013)

 

1

Howell, supra, at 557-559.

2

Howell, supra, at 560-562.

3

Howell, supra, at 563-566.

4

Howell, supra, at 565 (internal quotations and citations omitted).

5

Defendants could not locate a Westlaw cite for this case, so a copy of it is attached as Ex. “A” to this brief.

Case 3:17-cv-00600-LB Document 117-1 Filed 09/06/19 Page 2 of 6
ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP

1 80 M on t go m e ry S t re e t, S ui te 1 2 0 0

S a n F r a nci sc o , C al i fo r ni a 9 4 1 0 4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 3:17-CV-00600-LB

OPPOSITION TO MIL #3

335433.1

5. Howard v. County of Riverside, 2014 WL 12589655 (C.D. Cal. June 3, 2014)

6. Baltazar v. Target Corporation, 2014 WL 12599626 (S.D. Cal. October 22, 2014) 

7. Moreno v. Ross Island Sand & Gravel Co., 2015 WL 6690067 (E.D. Cal. October 29, 

 2015)

8. Avila v. California, 2018 WL 836440 (E.D. Cal. February 13, 2018)

The Districts Courts are split. Five apply Howell; three do not. The five cases in support 

are Hill, Pooshs, Baltazar, Valiavicharska, and Avila. The three opposing cases are Forbes and 

Howard, and Moreno.

“[A] district court opinion does not have binding precedential effect.” NASD Dispute 

Resolution, Inc. v. Judicial Council of State of Cal., 488 F.3d 1065, 1069 (9th Cir. 2007). See also 

United States v. Ensminger, 567 F.3d 587, 591 (9th Cir.2009), citing McGinley v. Houston, 361 

F.3d 1328, 1331 (11th Cir.2004) for the language “[t]he general rule is that a district judge's 

decision neither binds another district judge nor binds him, although a judge ought to give great 

weight to his own prior decisions.”

A. Supporting Cases

In Avila – a Section 1983 case issued last year – Chief District Judge O’Neill ruled that 

“[t]he actual damages for medical bills is the amount the medical professional agrees to accept in 

full payment for the medical services.” Avila, supra, at *6, as clarified on reconsideration, No. 

115CV00996LJOEPG, 2018 WL 1763250 (E.D. Cal. Apr. 12, 2018)6The Court permitted those 

amounts to be presented, “but not how the amounts were determined. There will be no mention of 

health insurance by either side, nor any mention of amounts charged if those amounts are 

different from the amounts actually paid to satisfy the medical billing in its entirety.” Id.

In Valiavicharska, another Section 1983 case, the Court found the Howell rule “makes 

common sense.” (Valiavicharska, p. 4).

B. Opposing Cases Distinguishable 

Forbes, Howard, and Moreno are all distinguishable. 

 

6

The clarified ruling did not relate to the damages issue.

Case 3:17-cv-00600-LB Document 117-1 Filed 09/06/19 Page 3 of 6
ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP

1 80 M on t go m e ry S t re e t, S ui te 1 2 0 0

S a n F r a nci sc o , C al i fo r ni a 9 4 1 0 4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 3:17-CV-00600-LB

OPPOSITION TO MIL #3

335433.1

1. Moreno

This is a maritime case.

2. Forbes

The Forbes Court denied a defense motion limiting past medical expenses to the amount 

paid. Forbes, supra, at * 11. It found that “[u]nder federal common law, as opposed to California 

law, Plaintiff is entitled to recover the full amount of medical expenses charged by his providers, 

not merely the reduced amounts paid by Medi-Cal.” Id. In deciding that federal common law is 

different from Howell, Forbes cited two cases: one from the Seventh and one from the Eighth. Id. 

Those citations are unpersuasive. 

Perry v. Larson, 794 F.2d 279 (7th Cir. 1986) concerned whether or not to reduce an 

economic damages award "by the amount of unemployment compensation” the plaintiff received. 

Perry, supra, at 285. The Court said no to any reduction. Id., at 286. Gill v. Maciejewski, 546 

F.3d 557 (8th Cir. 2008) concerned whether or not to reduce an economic damages award by the 

amount the plaintiff received from his insurer to cover medical expenses. Gill, supra, at 564-565. 

In other words, the defendant sought to have the verdict reduced by the past medical expenses 

paid. The Court said no, citing the common law collateral source rule. Gill, supra, at 564-565.

Neither Perry nor Gill addresses the particular issue raised in Howell (or here): whether to 

permit the gross amount of past medical charges. Rather, the Seventh and Eighth Circuit opinions 

addressed whether to exclude the amount the amount actually paid in unemployment 

compensation/medical expenses. Such is not in dispute here. Both sides agree that, at the very 

least, the amount of medical expenses actually paid is admissible.

Because neither Perry nor Gill stand for the proposition which Forbes purports, Forbes is 

inapposite.

3. Howard

The Howard Court denied a defense motion limiting past medical expenses to the amount 

paid. Howard, supra, at * 6. It found the “Howell method of calculating the “reasonable value” of 

medical expenses is inconsistent with the federal common law collateral source rule.” Id., at * 5. 

Specifically, the Court rejected “Howell's underlying premise that a negotiated rate differential is 

Case 3:17-cv-00600-LB Document 117-1 Filed 09/06/19 Page 4 of 6
ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP

1 80 M on t go m e ry S t re e t, S ui te 1 2 0 0

S a n F r a nci sc o , C al i fo r ni a 9 4 1 0 4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 3:17-CV-00600-LB

OPPOSITION TO MIL #3

335433.1

not a ‘benefit conferred on the injured party.’” Id. at *6. In reaching this conclusion, the Court 

relied upon Section 911, 920A, and 924 of the Second Restatement of Torts. Id. at *5-6. Those 

are the same provisions relied upon by the California Supreme Court in Howell. Howard is 

unpersuasive because, for the reasons stated below, the California Supreme Court’s interpretation 

of the Restatement is the correct one. 

Howard has not been cited by any District Court.

C. The Second Restatement

Section 911 of the Second Restatement of Torts concerns the reasonable value of services, 

with comment h explaining that “[i]f ... the injured person paid less than the exchange rate, he can 

recover no more than the amount paid, except when the low rate was intended as a gift to him.” 

Howell, supra, at 556 (citing the Second Restatement of Torts). Section 920A of the Second 

Restatement applies the collateral source rule to gratuitous payments and services. Id. at 557-558. 

Section 924 of the Second Restatement provides for the recovery of reasonable medical expenses. 

Id. at 556. Howell finds Section 911 persuasive and the other provisions not inconsistent with it; 

Howard finds the opposite.

Section 911 plainly states that recovery is limited to the amount paid or the exchange rate, 

whichever is lower. And while Section 920A does apply to gratuitous or donated services, Howell

persuasively argues why the negotiated amounts do not qualify as such: the amount charged but 

not ultimately paid is not some charitable gift from the provider to the insurer or the insured. 

Rather, the differential amount reflects the arms-length commercial negotiations between an 

insurer provider and a health-care provider, with the amount ultimately paid reflecting the results 

of such negotiation.

Section 924 does not contradict Section 911. As explained by the California Supreme 

Court: “[c]ontrary to the view of the dissent, section 924 of the Restatement, which provides that 

a tort plaintiff may recover “reasonable medical and other expenses,” expresses no different 

principle. To be recoverable as “expenses,” monies must generally have been expended, or at 

least incurred; that they must also be reasonable does not alter this general rule.” Howell, supra, 

at 556 (internal citations omitted). Howell goes on to reference the reporter’s note for Section 

Case 3:17-cv-00600-LB Document 117-1 Filed 09/06/19 Page 5 of 6
ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP

1 80 M on t go m e ry S t re e t, S ui te 1 2 0 0

S a n F r a nci sc o , C al i fo r ni a 9 4 1 0 4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6 3:17-CV-00600-LB

OPPOSITION TO MIL #3

335433.1

924: “[t]he reporter's note for section 924 (Rest.2d Torts (appen.) § 924, reporter's notes, p. 445), 

cites in support of its rule, among other cases, Birmingham Amusement Co. v. Norris (1927) 216 

Ala. 138, 112 So. 633, which stated, quoting an earlier Alabama case, that [w]hile it is true that 

the defendant is not liable for any more than the reasonable value of the services of a physician, 

yet neither is it liable for any more than has actually been paid or is due. So it is necessary to 

prove both...” Howell, supra, at 556, n. 5.

Howard does not critically analyze or explain why the negotiated differential constitutes a 

gratuitous service or benefit received; it just concludes so. Howard, supra, at * 6.

Conclusion

For the above-stated reasons, Defendants believe that Plaintiff’s recoverable past medical 

expenses are limited to the amounts actually paid. In the event the court is unpersuaded as to the 

federal substantive law issues under the 4th amendment allegations, it must be pointed out that 

plaintiff also has a substantive negligence allegation under California law where Howell does 

apply to her damages claim. In the event the jury returns a verdict finding no federal law liability, 

but state negligence liability, allowing proof of billing in the absence of actual evidence of bills 

owed or paid, has the substantial risk of prejudicing the jury on the damages, both general and 

special. 

Should the court be inclined to allow billing records evidence in plaintiff’s case in chief, 

defendant request leave to file a supplemental motion to bifurcate the liability phase from 

damages to ensure a verdict free from undue prejudice in assessment of damages.

Dated: September 5, 2019 ALLEN, GLAESSNER,

HAZELWOOD & WERTH, LLP

By:___Dale L. Allen, Jr._______________

DALE L. ALLEN, JR.

PHILIP J. DOWNS, JR.

Attorneys for Defendants

COUNTY OF NAPA, COUNTY OF NAPA 

SHERIFF’S DEPARTMENT, DEPUTY 

TIMOTHY REID

Case 3:17-cv-00600-LB Document 117-1 Filed 09/06/19 Page 6 of 6