Last Thursday, the California Supreme Court handed down its decision in Howell v. Hamilton Meats.  The ruling favors those who cause injury to others (such as people who get into accidents while texting) over their victims. The Court decided that it is those who cause injuries, and not their victims, who will benefit from the health insurance that the victim has paid for.

I attended the oral argument before the Supreme Court back in May.  I wrote about that here.  Today, Gary Simms, who argued the case for Rebecca Howell, provided me his perspective on the Court’s decision.  

Q: Were you surprised by the 6-to-1 decision against the plaintiff?

A: Unfortunately, I wasn’t surprised by the result. The Court is deeply conservative (six Republican appointees) and predictably anti-plaintiff in most personal-injury cases, so I knew from the outset of being retained for the Supreme Court briefing that I would face a very uphill battle. I was working at the margins; in other words; three justices would never vote for my position, and I knew it. I expected to get Justice Pro Tem Klein’s vote, though, and she very clearly signaled it at oral argument. I hoped to get three other votes, but I knew it would be difficult.

Q: Were you surprised by the new Chief Justice’s vote with the majority after she had taken the opposite view in her Court of Appeal opinion in King v. Willmett very shortly before she was appointed to the Supreme Court?

A: Yes, but after the oral argument, I sensed that she would flip-flop, so I was only mildly surprised. I can only speculate why she reversed her position. But I think the most likely reason was that she knew her vote would not change the outcome, so she chose to join the majority to make it unanimous. (Because Justice Klein was sitting pro tem by designation, her dissent does not matter in that regard; all the permanent Justices joined in the majority opinion.) This allowed the Chief Justice to establish herself as being a collegial and open minded consensus-builder. That’s a very important quality for a Chief Justice. And perhaps

she simply doesn’t care deeply about the issue. As one Justice who I knew was fond of saying, “I’m not going to break my pick on this one,” meaning that, if he did not much care about an issue, he would not waste his time writing a dissent. Or as another Justice put it, “Sometimes, you just have to hold your nose and sign an opinion.”

Q: Isn’t that a cynical or lackadaisical approach?

A: Not really. Actually, I think it is a very good approach. It would defy human nature for every Justice to care passionately about every issue in every case. But some justices are so enamored of their own perceived brilliance that they think they must write a separate opinion for every thought that occurs to them. That doesn’t serve anyone except the justice’s ego. Consensus should be the goal whenever possible. A judge should write separately only when it really matters to the outcome or is a matter of deeply held principle. So, I am disappointed in the Chief Justice’s change of position, but I commend her for joining the majority in this circumstance.

Q: The case was generally viewed as being the most important personal-injury case in the California Supreme Court since Li v. Yellow Cab Co. in 1975, and the reported economic effect was reported to be $3 billion per year. But the majority opinion was fairly short (28 pages).

A: I am a strong proponent of shorter opinions. The Court typically writes opinions that are much too long. (The reason for that is a topic for a separate discussion.) Nonetheless, the Court’s opinion was surprisingly short for so major a decision. I think the reason was that a detailed discussion would have revealed the major weaknesses in the Court’s opinion, and the Court left open for future cases many issues that would have required extensive discussion. Put bluntly, the Court “kicked the can down the road” on many issues.

Q: Give us an example of a weakness in the Court’s opinion.

A: Well, as the Court grudgingly acknowledged, it has adopted a small-minority view. The overwhelming majority of states to address the issue has taken the opposite approach, allowing plaintiffs to recover the amounts billed by their medical providers. But rather than analyze that body of law, the Court simply brushed it aside in a footnote.

Q: What about issues the Court declined to address?

A: That is quite troubling because it leaves every personal-injury case in turmoil and will create years of needless litigation in the trial courts and courts of appeal and eventually the Supreme Court. But it is not surprising at all. The Court, like most appellate courts, especially supreme courts, sees itself as a “big picture” court. It does not like to deal with what it views as mundane procedural and evidentiary issues, even if hundreds of millions of dollars are at stake.

Q: What are some examples issues the Court left undecided?

A: The Court held that evidence of the amount of a medical provider’s charges is not relevant on the issue of past medical expenses. But the Court declined to address whether the billed charges are relevant to other issues such as future medical expenses or noneconomic damages. So, of course, defendants will now argue in every case that billed charges are not admissible for any reason. The trial courts and courts of appeal will have to grapple with those issues.

Another glaring omission from the Court’s opinion is any guidance on how to deal with patients who are treated by Health Maintenance Organizations (HMOs) such as Kaiser Permanente. Unlike the traditional fee-for-service model, in the HMO situation, the medical provider is not paid based on the value of the service. Defendants will argue that, because nothing was paid to the HMO, the plaintiff should receive nothing. That result would be a travesty. But lower courts will have to deal with this issue.

Q: Why is bad to leave issues to the courts of appeal? 

A: It reflects the Court’s “ivory tower” view that other courts should deal with practical issues. But worse, it is a public disservice. The Court, like most courts, is quick to complain that judicial resources are scant and that courts should be given more funding. But when the Court can actually do something about it, the Court does just the opposite and creates a quagmire that will drain judicial resources for the next five years or more.

Q: Why would the Court leave matters undecided?

A: Well, it reminds me of the Mad Magazine character, Alfred E. Neuman’s, signature phrase, “What, me worry?” The court would rather leave the work to others until the Court has to step in. But of course, it took 23 years from the time Hanif was decided until now and, in that almost quarter of a century, countless time and money were expended on the issue. Also, an institutional shortcoming of the Court is that, with rare exception, the Justices and their staff attorneys have no trial-court experience, certainly not as civil-trial lawyers. (The United States Supreme Court has the same problem.) So it is very difficult for the Court to understand and to deal with the “in the trenches” practical consequences of their decisions.

Q: Again, do you have an example?

A: Yes. The Court held that a plaintiff is entitled to recover only the amounts paid or owed at the time of trial. But as any personal-injury lawyer knows, that is not nearly as simple to determine as it seems. It is often very difficult to get a provider to state unequivocally how much it is owed. It is almost impossible to get a straight answer from Medicare.

Q: So, the Howell opinion is not the end of the matter?

A: Not at all. Rather, it is the beginning of a new and uncharted world of personal-injury litigation. Tortfeasors, their insurers, and their lawyers, are already meeting and plotting how to use Howell to make litigation even more difficult for plaintiffs to recover fair compensation for their injuries.

Q: What’s the one point that the majority, in your view, failed to grasp?

A: They simply could not understand that a medical provider’s agreement to accept less than the amount of its charges is solely the result of the plaintiff’s healthcare insurance. The plaintiff paid for that benefit; it is a collateral benefit; she should be entitled to it under the collateral source rule. Even the Howell defendant knew this. When it petitioned for review, it argued that the collateral source rule should be abolished. The defendant had to do so because its proposed result was clearly contrary to the rule. The Court, though, claimed that it was reaffirming the collateral source rule. I disagree. The Court eviscerated the rule in practice while reaffirming it in theory.

Gary Simms is a Certified Appellate Specialist.  He is a member of the California and Oregon bars.  He has argued appeals in the California Supreme Court and Courts of appeal, the US Court of Appeals for the Ninth Circuit, the Oregon Supreme Court and Court of Appeal, and the Texas Supreme Court and Court of Appeals.  He argued Howell v. Hamilton Meats on behalf of Mrs. Howell.

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