FILED
NOT FOR PUBLICATION SEP 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES LIEBSACK, as guardian for No. 11-35158
Madlyn Liebsack and JON LIEBSACK,
co-personal representatives of the Estate of DC No. 3:07cv-0071 RRB
Madlyn Liebsack,
Plaintiffs - Appellants, MEMORANDUM*
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
JAMES LIEBSACK, as guardian for No. 11-35479
Madlyn Liebsack and JON LIEBSACK,
co-personal representatives of the Estate of DC No. 3:07 cv-0071 RRB
Madlyn Liebsack,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JON LIEBSACK, co-personal No. 11-35535
representatives of the Estate of Madlyn
Liebsack, DC No. 3:07 cv-0071 RRB
Plaintiff - Appellant,
JAMES LIEBSACK, as guardian for
Madlyn Liebsack,
Plaintiff - Appellee,
v.
UNITED STATES OF AMERICA,
Defendant - Appellant.
Appeals from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted May 21, 2013
Anchorage, Alaska
Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.
In this Federal Tort Claims Act (“FTCA”) action, the Estate of Madlyn
Liebsack (“Liebsack”) appeals the district court’s finding, after a bench trial, that
the United States was only 15% liable for Madlyn’s injuries. That liability finding
is addressed – and reversed – in a concurrently filed opinion. In this
memorandum, we address Liebsack’s contentions – and the government’s cross-
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appeal – regarding the district court’s damages award because these issues may
arise on retrial.1 “Damages must be proved with reasonable certainty[, and t]he
party seeking damages must provide a reasonable basis for computing the award.”
Power Constructors, Inc. V. Taylor & Hintze, 960 P.2d 20, 41 (Alaska 1998)
(citations omitted). “[A] trial court’s finding [is] clearly erroneous when, after
reviewing the entire evidence, we are left with the definite and firm conviction that
a mistake has been committed.” Shaw v. United States, 741 F.2d 1202, 1205 (9th
Cir. 1984) (internal quotation marks omitted).
1. In assessing past medical expenses, the district court awarded all
amounts paid by Medicare or Medicaid, but it did not award the amounts that had
been “written off” by her healthcare providers. Liebsack argues that the write-offs
were recoverable. We disagree.
“The components and measure of damages in FTCA claims are taken from
the state where the tort occurred . . . .” Shaw, 741 F.2d at 1205. A trial court’s
award of damages is reviewed for clear error. See Curt’s Trucking Co. v. City of
1
This case, like all FTCA actions, was tried to the court sitting without
a jury. See 28 U.S.C. § 2402. This being a bench trial, it is within the district
court’s discretion to structure the retrial in a manner the court finds would be the
most efficient way to retry those contested issues which require retrial in accord
with our mandate, i.e., to retry only those issues which require a new trial or to
retry the entire action, and nothing in this memorandum is intended to interfere
with or restrict that discretion.
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Anchorage, 578 P.2d 975, 977 (Alaska 1078) (“A trial court’s determination of
damages is a finding of fact which will not be disturbed on appeal unless clearly
erroneous.”). Under Alaska law, “a claimant may only recover damages from the
defendant that exceed amounts received by the claimant as compensation for the
injuries from collateral sources, whether private, group, or governmental, and
whether contributory or noncontributory.” Alaska Stat. § 09.55.548(b). A
claimant may, however, recover funds from a collateral source if it is “a federal
program that by law must seek subrogation.” Id. It is undisputed that Liebsack’s
past Medicare and Medicaid benefits fall under this exception; however, we agree
with the district court that the write-offs do not. Even assuming that the write-offs
qualify as a collateral source, they are not subject to subrogation and thus are
unrecoverable under Alaska law.2
2. The district court did not clearly err in declining to award the $6,240
in alleged co-payments ($520 per month for 12 months) made by Liebsack’s
guardian for her past medical expenses. The testimony in support of this amount
2
We recognize that in a dissent from the dismissal of a petition for
review as improvidently granted, two justices of the Alaska Supreme Court suggest
that they would award write-off amounts to a prevailing plaintiff. See Lucier v.
Steiner Corp., 93 P.3d 1052, 1053 (Alaska 2004) (Fabe, J., dissenting from the
dismissal of the petition for review). Because, however, that dissent is not
controlling precedent under Alaska law, it does not affect our analysis.
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was uncertain at best, and Liebsack does not point to any other evidence to support
this additional award.
3. Liebsack makes a number of arguments regarding the court’s award of
future medical expenses. That award was based on an estimate of Liebsack’s 2009
medical expenses “reduced by Medicare, reduced by costs for pre-existing medical
problems, and reduced by the costs that Madlyn would incur at an assisted living
facility, all reduced to present day value,” and then multiplied by Madlyn’s life
expectancy.
a. Liebsack’s argument that the court miscalculated Madlyn’s 2009
medical expenses is moot. On remand, the court need not rely on the 2009
expenses to estimate future expenses; in light of her unfortunate death, the full
extent of Madlyn’s future expenses are now known.
b. The district court did not clearly err in deducting Medicare expenses
from its future expense award. On this record, Liebsack has failed to demonstrate
that those expenses will be subject to mandatory subrogation.
c. The district court did not clearly err in deducting pre-injury living
expenses from its future expense award. Although Liebsack claims that Madlyn
did not incur any expense for her pre-injury residence at an assisted-living facility,
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the evidence on this issue was, at best, mixed. For example, one government
expert testified that Madlyn did incur those expenses.
d. The court did not clearly err in deducting both Medicare expenses and
pre-existing expenses from the future damage award. Liebsack appears to argue
that this results in a double deduction because the Medicare payments were applied
to all of Madlyn’s pre-existing medical expenses, but Liebsack does not point to
any portion of the record to support this assertion.
e. Both Liebsack and the government (on cross-appeal) take issue with
the district court’s $42,078.15 estimate of Madlyn’s pre-existing medical expenses.
Liebsack primarily attacks the government’s estimate of pre-existing expenses
($420,781.54) which, in Liebsack’s view, was inflated because it was based on
post-injury estimates of pre-existing costs. But even if the government’s figures
were inflated for those reasons, Liebsack fails to explain how and to what extent
they were inflated. More importantly, Liebsack does not explain how the court’s
ultimate figure – which was only a fraction of the government’s figure –
insufficiently accounts for this purported inflation.
The government’s contentions are also unavailing. The government’s
estimate of pre-existing costs was determined by (1) identifying Madlyn’s pre-
injury medical conditions; and (2) estimating the yearly cost of those medical
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conditions based on their post-injury cost. This methodology was arguably more
precise than Liebsack’s, which used a narrow timeframe that may have failed to
account for medical costs that did not arise during that period. But the
government’s approach had its own potential weaknesses, including the fact that its
estimate was based on post-injury costs of pre-injury medical conditions. On this
record, the district court did not clearly err.
AFFIRMED in part, VACATED in part, and REMANDED.
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