NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA A. GIBSON, as Personal No. 20-35333 Representative of the Estate of Johnny G. Gibson, and for herself; et al., D.C. No. 4:18-cv-00112-BMM

Plaintiffs-Appellants,

MEMORANDUM*

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Argued and Submitted March 5, 2021 Submission Vacated June 22, 2021 Resubmitted December 27, 2021 Portland, Oregon

Before: BOGGS,** PAEZ, and WATFORD, Circuit Judges.

The estate of Johnny Gibson and his surviving relatives—his wife, Barbara,

and his two adult children, Dixie Lee and John Travis—appeal from the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. court’s denial of damages for medical expenses in a wrongful death and

survivorship action. The hospital and ambulance provider originally billed Gibson

a total of $165,661.50, but both the hospital and ambulance provider forgave the

bills in full as part of their charity programs.1 The district court awarded $578,248

in damages to Johnny Gibson’s estate and his surviving family members but

declined to award damages for the written-off medical expenses.

Noting the absence of any Montana Supreme Court decisions directly

addressing whether a plaintiff may recover written-off medical expenses under

Montana law, we certified the question to that court. Gibson v. United States, 1

F.4th 1129, 1129 (9th Cir. 2021). In response, the Montana Supreme Court held

that “[b]ecause the written-off costs of medical services were never a detriment the

Estate suffered from the Government’s negligence,” Gibson may not recover for

those expenses. Gibson v. United States, 2021 MT 309, ¶ 21, --- P.3d ---. The

court further held that Montana’s then-applicable statute requiring the reduction of

damages due to a collateral source, see Mont. Code Ann. § 27-1-308 (2019),

“simply has no application” to this case because there was no payment involved

here. Id. at ¶ 27. The district court was therefore correct to deny Gibson damages

1 The total medical expenses included a $164,670.22 medical bill from St. Vincent Hospital and a $991.28 bill for the ambulance ride. The district court and parties all state that the medical expenses totaled $165,651.50, which appears to be a minor miscalculation.

2 for medical expenses.

AFFIRMED.

3