ALLEN, GLAESSNER, HAZELWOOD WERTH, LLP

180 Montgomery Street, Suite 1200 Telephone (415) 697-2000

San Francisco, California 94104 Facsimile (415) 813-2045

E-Mail: dallen@aghwlaw.com

209018.1

& ATTORNEYS

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Our File No.:

01405-50569

October 1, 2019

Honorable Laurel M. Beeler

United States Magistrate Judge

450 Golden Gate Ave.

Courtroom B, 15th Floor

San Francisco, CA 94102

Re: Renee LePage v. County of Napa, et al.

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

Dear Judge Beeler:

Defendants hereby submit their statement regarding admissibility of medical expenses versus 

medical bills. Defendants apologize for not filing with Plaintiff’s submission. The parties were 

coordinating a joint filing and an inadvertent miscommunication occurred. 

The parties agree that Howell applies to Plaintiff’s state-law claim. The respective disagreement 

arises over how to handle the federal claims. This issue arises because Plaintiff intends to present, via Mr. 

Madsen, both the amount billed and the amount actually paid as evidence at trial. Defendants submit, as 

detailed in motion in Dkt. No. 117-1, that the only the paid figure should be submitted to the jury. Put 

another way: Defendants specifically move to exclude evidence of the amount actually billed to Plaintiff. 

Defendants’ position is supported by Howell and its progeny. As to why Howell should apply to 

federal damages claims, Defendants refer to their Opposition (Dkt. No. 117-1), which fully briefed the 

issue. For judicial economy, Defendants’ position is not restated here.

Defendants recognize Plaintiff cites to differing case authority. Defendants do not deny such 

authority exists: they specifically acknowledged such to the Court (Dkt. No. 117-1, 2:16-3:14). 

Defendants previously distinguished, for example, the Howard case cited by Plaintiff.

With both sides lacking binding Ninth Circuit authority, the question ultimately comes down to 

the common law; what the Second Restatement of Torts means. As articulated in Defendants’ earlier

brief, they submit that Sections 911, 920A, and 924 only permit recovery of medical expenses actually 

paid.

There’s also a practical consideration. Assuming, arguendo, Plaintiff prevails on federal and state 

claims at trial, she only gets one damages recovery. There is no recovery for her Section 1983 claim and 

then a separate one for her state claims. But if the jury is presented with evidence of medical expenses 

billed, the verdict is inherently tainted because a jury will have calculated damages for California claim 

(both economic and non-economic) using evidence barred under California law. 

Plaintiff’s proposed jury instruction does not resolve this dilemma, because the issue is inherent 

to the verdict form itself and the fact there is one unified damages recovery (regardless of how many 
October 1, 2019

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causes of action a plaintiff may prevail upon. Defendants also note that Plaintiff’s proposed instruction 

also addresses economic damages, not non-economic. California law prohibits introduction of amount 

billed for non-economic damages as well. See Corenbaum v. Lampkin, 215 Cal. App. 4th 1308, 1333, 156 

Cal. Rptr. 3d 347, 365 (2013), as modified (May 13, 2013) (“We conclude that evidence of the full 

amount billed is not admissible for the purpose of providing plaintiff's counsel an argumentative construct 

to assist a jury in its difficult task of determining the amount of noneconomic damages and is 

inadmissible for the purpose of proving noneconomic damages.”)

Sincerely,

ALLEN, GLAESSNER,

HAZELWOOD & WERTH, LLP

/s/ Kevin P. Allen

Kevin P. Allen