Filed 6/22/15




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


OMAR BERMUDEZ,

    Plaintiff and Respondent,                         G049510

        v.                                            (Super. Ct. No. 30-2012-00539759)

FAITH CIOLEK,                                         OPINION

    Defendant and Appellant;

NATHAN HEACOX,

    Defendant and Respondent.



                  Appeal from a judgment of the Superior Court of Orange County, Thierry
Patrick Colaw, Judge. Affirmed as modified.
                  Veatch Carlson, Peter H. Crossin and Bruce Schechter; Greines, Martin,
Stein & Richland, Robert A. Olson, Gary D. Rowe and Edward L. Zanders for Defendant
and Appellant Faith Ciolek.
                  Gibson & Hughes and Robert B. Gibson; The Simon Law Group, Robert T.
Simon, Brad M. Simon and Jill P. McDonell for Plaintiff and Respondent Omar
Bermudez.
              Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendant
and Respondent Nathan Heacox.


                                 *           *          *


              Two vehicles collided at an intersection in Fountain Valley on the
afternoon of January 11, 2012. The accident occurred sometime during the traffic light
transition from green to yellow to red in the east-west lanes of Talbert Avenue.
Westbound defendant Faith Ciolek began a left turn onto Bushard Street. Eastbound
defendant Nathan Heacox entered the intersection, intending to proceed straight through.
Following the collision, Heacox’s car veered to the southeast corner of the intersection,
striking plaintiff Omar Bermudez, who was on the sidewalk astride his bicycle. At the
time of the collision, Bermudez apparently had no medical insurance.
              In a special verdict, the jury found both defendants were “negligent” but
concluded only Ciolek was “a substantial factor in causing harm” to Bermudez. Ciolek
was therefore found to be responsible for 100 percent of Bermudez’s $3,751,969 in
damages. Ciolek asserts the verdict is inconsistent. We disagree. The jury was entitled
to conclude that Heacox slightly exceeded a reasonable speed when he entered the
intersection but that his speed was not a substantial factor in causing Bermudez’s injuries.
              Alternatively, Ciolek claims she is entitled to a new trial on damages
because there is insufficient evidence of the reasonable value of Bermudez’s medical
damages in the record. Citing Howell v. Hamilton Meats & Provisions, Inc. (2011) 52
Cal.4th 541 (Howell), Ciolek faults Bermudez (an uninsured plaintiff, unlike the insured
plaintiff in Howell) for relying on the amount of medical expenses incurred and expert
testimony attesting to the fairness and reasonableness of the majority of those medical
bills. Ciolek asserts Bermudez’s experts needed to do more to establish that their
testimony was rooted in the “market value” of medical services. We reject Ciolek’s bid

                                             2
for a new trial. But, because $46,175.41 of the judgment is not supported by substantial
evidence, we reduce the damage award to $3,706,793.60 and affirm the judgment as
modified.


                        CONSISTENCY OF SPECIAL VERDICT


              “‘[W]e review a special verdict de novo to determine whether its findings
are inconsistent. [Citation.] . . . “‘“Where the findings are contradictory on material
issues, and the correct determination of such issues is necessary to sustain the judgment,
the inconsistency is reversible error.”’”’” (David v. Hernandez (2014) 226
Cal.App.4th 578, 585 (David).) “A special verdict is inconsistent if there is no possibility
of reconciling its findings with each other.” (Singh v. Southland Stone, U.S.A., Inc.
(2010) 186 Cal.App.4th 338, 357 (Singh).)


Evidence at Trial
              The three parties, several percipient witnesses, and three accident
reconstruction experts testified at trial. Key factual issues regarding Ciolek’s potential
negligence included the color of the light as she began her left turn, her attentiveness to
traffic conditions in front of her, her reaction upon observing the approaching Heacox
vehicle, and the position of her vehicle at impact. It appears the jury credited evidence
tending to show Ciolek began her turn before the light turned red, Ciolek was not
adequately monitoring the traffic in front of her, and Ciolek braked when she saw Heacox
approaching, thereby blocking parts of both lanes of the intersection. Ciolek’s appeal
does not contest the sufficiency of the evidence for any of these propositions.
              Instead, Ciolek focuses on the perceived inconsistency between the jury
finding Heacox negligent with the finding Heacox’s negligence was not a substantial
factor in causing Bermudez’s harm. Relatedly, Ciolek argues there is insufficient

                                              3
evidence in the record to support the jury’s finding that Heacox was not a substantial
factor in causing Bermudez’s harm. Key factual issues regarding Heacox’s potential
negligence included the color of the traffic light as he entered the intersection, the speed
of his vehicle as he approached the intersection, his attentiveness to the conditions in
front of him, and the extent and timeliness of evasive maneuvers (i.e., braking and
swerving) taken by him.
              The posted speed limit on Talbert Avenue was 45 miles per hour. Heacox
testified he was exceeding the posted speed limit as he approached the intersection,
adding, “If I have to take a percentage of that fault then that’s on me.” When Heacox
saw the vehicle in front of Ciolek’s vehicle turn left into the intersection, Heacox claims
he was driving 55 miles per hour. At that point, he took his foot off the accelerator and
                                                                        1
placed it over the brake. By the time Heacox neared the intersection, he claims he was
driving 45 to 50 miles per hour. When Heacox saw Ciolek had entered and blocked the
intersection, he began braking and swerving to the right. He collided with Ciolek’s
vehicle while driving approximately 45 miles per hour (according to his testimony).
              Percipient witnesses’ estimates of Heacox’s speed as he approached the
intersection varied. Bermudez opined that Heacox was travelling from 40 to 50 miles per
hour. Ciolek opined it was more like 55 to 60 miles per hour. A driver waiting to turn
left onto Talbert Avenue testified that Heacox’s vehicle was moving at a “high rate of
speed,” “easily 40, 45.” A pedestrian witness stated Heacox was at 40 to 50 miles per
hour but was “speeding up” into the intersection.
              The accident reconstruction experts had fairly close estimates of the speed
of Heacox at impact: Bermudez’s expert — 45 miles per hour; Heacox’s expert — 48

1
              According to the driver of the first vehicle that turned left in front of
Heacox, it took less than five seconds to complete his left turn and clear the intersection.
He had to slow down during his turn to allow another car to complete a right turn in front
of him, but then he sped up when he noticed Heacox approaching “much faster” than
other cars.

                                              4
miles per hour; and Ciolek’s expert — 45.7 miles per hour. Bermudez’s and Heacox’s
experts agreed that Heacox’s stated speed of 50 miles per hour on approaching the
intersection fit with their analyses, while Ciolek’s expert opined that Heacox’s speed
approaching the intersection was “well in excess of 60 miles an hour.” The differences in
these analyses depended in part on assumptions about the amount of time Heacox braked
before impact.
              Heacox testified he was already entering the intersection by the time he
perceived Ciolek to be turning. One expert opined that 1.1 to 1.6 seconds passed between
the moment Heacox entered the intersection and the collision between the two cars.
Expert testimony also established that it takes a typical person as much as 1.5 seconds to
react to a new stimulus, and that Heacox was unable to stop or swerve sufficiently to
avoid the collision in the time he had. According to the witness who observed the
accident from the north as he waited to turn left, Heacox’s veering maneuver was “as
much as he possibly could [have done] in that short amount of time.” An accident
reconstruction expert opined that Heacox would not have been able to control his vehicle
immediately after the impact with Ciolek’s vehicle.
              No evidence, whether expert testimony or otherwise, was presented to the
jury concerning the effect of Heacox’s speed before impact on the direction or speed of
travel of Heacox’s car after the collision with Ciolek. In other words, there was no
attempt at trial to show Heacox’s car would not have ricocheted into Bermudez had
Heacox been driving slower, or to show Bermudez’s injuries would have been less severe
had Heacox been driving slower before impact.


Jury Instructions and Verdict Form
              The court provided standard negligence instructions applicable to a motor
vehicle accident (CACI Nos. 400, 401, 406, 411, 430, 700, 701). CACI No. 700 sets
forth the basic standard of care for driving a vehicle: “A person must use reasonable care

                                             5
in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles and other
vehicles. They must also control the speed and movement of their vehicles. The failure
to use reasonable care in driving a vehicle is negligence.” CACI No. 430 described the
causation element: “A substantial factor in causing harm is a factor that a reasonable
person would consider to have contributed to the harm. It must be more than a remote or
trivial factor. It does not have to be the only cause of the harm. Conduct is not a
substantial factor in causing harm if the same harm would have occurred without that
conduct.”
              The court also provided several instructions tailored to the question of
Heacox’s speed, including modified versions of CACI Nos. 706 and 707. “A person
must drive at a reasonable speed. Whether a particular speed is reasonable depends on
the circumstances, such as traffic, weather, visibility, and road conditions. Drivers must
not drive so fast that they create a danger to people or property. [¶] If plaintiff has
proved that defendant Nathan Heacox was not driving at a reasonable speed at the time of
the accident, then defendant Nathan Heacox was negligent.” “The speed limit where the
accident occurred was 45 miles per hour. The speed limit is a factor to consider when
you decide whether or not defendant Nathan Heacox was negligent. [¶] A driver is not
necessarily negligent just because he or she was driving faster than the speed limit.
However, a driver may be negligent even if he or she was driving at or below the speed
limit.”
              The special verdict form asked the jury five basic questions: (1) was
Heacox negligent; (2) was Ciolek negligent; (3) for each defendant, was their “negligence
a substantial factor in causing harm to Omar Bermudez”; (4) what are Bermudez’s
damages (numerous lines for each category); and (5) “[w]hat percentage of responsibility
for Omar Bermudez’s harm do you assign to” each defendant?




                                              6
Argument of Counsel
              Bermudez’s counsel summarized his view of the liability evidence:
“Heacox entered on a yellow and was travelling 50 miles an hour. Very little he could
have done to avoid the collision. Miss Ciolek made a left turn without checking for
oncoming traffic.” Counsel recommended a finding of negligence as to both defendants,
but indicated he was not sure regarding causation as to Heacox. Counsel recommended
Ciolek be held liable for 90 to 100 percent of damages, and Heacox be held liable for 0 to
10 percent of damages.
              Counsel for Ciolek contended the evidence showed Heacox sped into the
intersection on a red light and Ciolek did nothing wrong. He asked the jury to return a
defense verdict for Ciolek and to hold Heacox liable for all damages. Counsel for Ciolek
did not make an argument in the alternative about Heacox’s speed necessarily playing
some role in Bermudez’s harm even if the jury found Ciolek was wholly responsible for
the collision between the two cars.
              Counsel for Heacox argued, “This accident was going to happen whether or
not [Heacox] was going 40, 45, 50 or even slightly faster than that because Miss Ciolek
was not paying attention. She failed to keep a lookout, which is what the instructions
require under the Vehicle Code. She turned right in front of him and then puts her brakes
on, stops and blocks his whole lane of travel.” “[T]he evidence in this case shows that
Miss Ciolek was the sole cause of this accident, and if she doesn’t turn, there’s no
accident, by the way. If she doesn’t turn, this never happens. Mr. Bermudez doesn’t get
hurt . . . .” Counsel for Heacox did not discuss whether Heacox’s speed could have
played a role in harming Bermudez even if the jury concluded Heacox’s speed did not
cause the collision between Heacox and Ciolek.




                                             7
Verdict, Judgment, and Motion for New Trial
              The jury found Heacox and Ciolek negligent, but also found only Ciolek’s
negligence was a substantial factor in causing harm to Bermudez. The jury, answering a
separate question, assigned 100 percent responsibility for Bermudez’s harm to Ciolek,
and zero percent to Heacox. The jurors unanimously found Heacox’s negligence was not
a substantial factor causing harm, but (strangely) three jurors dissented from the
assignment of zero percent fault to Heacox.
              Ciolek timely moved for a new trial on multiple grounds, including her
argument here that the special verdict findings were inconsistent in deeming Heacox
negligent but not a substantial factor in causing Bermudez’s harm. For the first time in
this case, Ciolek argued that “as a matter of physics, plaintiff Mr. Bermudez’s injuries
were caused by Mr. Heacox’s vehicle striking Ms. Ciolek’s vehicle at a particular speed,
causing it to then ricochet to the sidewalk, striking Mr. Bermudez with particular force,
pushing him into a wall. Had Mr. Heacox been traveling at a slower, safer, lawful speed,
the physical result of his vehicle’s impact against Ms. Ciolek’s vehicle would necessarily
have been different, because the force, velocity, and even direction of his vehicle’s
ricochet would have been different.” The court denied the motion.


Analysis: Special Verdict Findings are Consistent
              Ciolek contends the special verdict findings are inconsistent. In a broad
sense, the jury’s findings are easy to reconcile: the jury found Heacox breached his duty
of care in some way (i.e., a combination of excessive speed, a lack of optimal attention to
the conditions around him, and/or an inappropriate response to the conditions at the
intersection) that was not a substantial factor in causing harm to Bermudez. This is not a
case in which the jury made inconsistent findings when answering two essentially
identical factual questions pertaining to different theories of liability (e.g., Kurtin v. Elieff
(2013) 215 Cal.App.4th 455, 479-481; Singh, supra, 186 Cal.App.4th at pp. 358-359) or

                                                8
damages (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1086,
1093-1094; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126
Cal.App.4th 668, 682-684). The simple special verdict form in this case, with a single
negligence cause of action against both defendants, admirably minimized the risk of such
an obvious inconsistency arising.
              Nevertheless, Ciolek suggests the jury’s finding that Heacox breached his
duty is logically inconsistent with a finding that his breach was not a substantial factor in
Bermudez’s harm. Heacox and Bermudez both assert there is no inconsistency. David,
supra, 226 Cal.App.4th 578, the closest California case to the facts presented here, offers
room for the parties to argue their respective positions.
              In David, a jury found by way of special verdict that the defendant truck
driver had breached his duty of care but his conduct was not a substantial factor in
causing harm to plaintiffs. (David, supra, 226 Cal.App.4th at pp. 581, 585.) After the
truck driver parked his northbound vehicle alongside the west edge of Pacific Coast
Highway to rest, the truck driver turned back onto the northbound lane at twilight. (Id. at
pp. 582-583.) Before the truck driver had the opportunity to complete the turn, a
southbound vehicle drove into the end of the trailer in the southbound lane without
braking; the plaintiffs (including the driver of the vehicle) were distracted by their
attempt to play music on a laptop computer. (Ibid.) The record was silent with regard to
the jury’s belief as to how the truck driver was negligent. (Id. at pp. 585-586.)
              Substantial evidence supported any of the following possible findings:
(1) the truck had a nonfunctioning turn signal; (2) the trailer had improperly maintained
reflector strips and lights on its side; and (3) the truck driver failed to survey his
surroundings from an optimal position before turning back on the road. (David, supra,
226 Cal.App.4th at pp. 588-589.) These types of negligence did not necessarily have a
causal impact on the collision. (Id. at pp. 586-587.) The jury did not make specific
findings that the truck driver had illegally parked on the left side of the roadway or that

                                               9
he failed to yield to plaintiffs’ vehicle during the turn, findings which would be more
difficult to square with the conclusion that his conduct was not a substantial factor in
causing harm to plaintiffs. (Id. at pp. 587-588.) In sum, David rejected the idea that the
jury’s verdict was inconsistent because “[t]he jury could have reasonably concluded that
the collision was caused by [plaintiff’s] inattentiveness to the road ahead of him rather
than any act of negligence committed by” the truck driver. (Id. at p. 588.) Some acts or
omissions accurately classified as “negligent” (i.e., a breach of the defendant’s duty of
care) do not necessarily have a causal role in motor vehicle accidents.
              But David ultimately reversed the defense judgment and remanded for a
new trial. The trial court, in ruling on a new trial motion, found that the record compelled
the conclusion that defendant was negligent per se in parking along the opposite side of
the roadway in violation of Vehicle Code section 22502. (David, supra, 226
Cal.App.4th at pp. 589-592.) If the trial court was right about the evidence compelling
this factual conclusion, it was necessarily wrong in deciding there was sufficient evidence
to support a finding that the truck driver’s negligence was not a substantial factor in
causing the accident — the truck driver’s entry back on to the northbound side of the road
obviously played a causal role in the accident. (Id. at p. 591.) Though the trial court was
not obligated to make any findings in ruling on the new trial motion, its finding on the
record manifested an error of law. (Id. at pp. 590-592.) Hence, some negligence findings
are inherently inconsistent with a finding of no causation, a principle Ciolek seeks to
apply in this case (through either the inconsistent verdict or substantial evidence rubric).
              Ciolek does not argue the jury’s findings would have been irreconcilable
with regard to a hypothetical finding concerning merely the collision of the two cars in
this incident. It was reasonable for the jury to conclude (in agreement with Heacox’s
counsel during closing argument) the car collision would have occurred in the
intersection regardless of whether Heacox was negligent. (See Magee v. Coats



                                             10
(La.Ct.App. 1992) 598 So.2d 531, 535-537 [jury entitled to find driver speeding straight
through intersection breached duty of care but was not a legal cause of the accident].)
               But, according to Ciolek, the question of whether Heacox’s negligence was
a substantial factor in the collision of the two cars is in some sense a “red herring.” The
actual query to the jury was whether Heacox’s negligence was a substantial factor in
causing Bermudez’s injuries, not the collision between the two defendants’ vehicles.
Any possible finding of negligence on the part of Heacox in this particular case is (in
Ciolek’s view) irretrievably irreconcilable with a finding of no causation as to
Bermudez’s harm. As in her new trial motion, Ciolek posits that the direction and speed
of Heacox’s deflected car was affected by the speed of Heacox when he made contact
with Ciolek’s vehicle in the intersection. Had Heacox been driving at the speed limit at
all relevant times, and had he been paying optimal attention to the road (allowing him to
brake and take evasive measures as early as possible), the collision between the vehicles
and the ricochet of Heacox’s vehicle would have been different. The jury’s findings are
supposedly irreconcilable because they ignore the laws of physics by which our universe
is governed.
               In connection with this contention, Ciolek requests we take judicial notice
of “the laws of physics, specifically the law of conservation of momentum.” Ciolek
elaborates, “The law of conservation of momentum provides that in a collision,
momentum is conserved; the combined momentum of two colliding objects going into
the collision must equal the momentum coming out of it. The momentum of an object
equals its mass multiplied by its velocity; velocity is a vector, which in turn is composed
of both speed and direction.” Ciolek attaches written materials explaining this principle
with equations and examples.
               Ciolek’s argument is certainly interesting. Of course, it is not the argument
she made at trial. At trial, she claimed Heacox was the sole cause of the collision (and
therefore the harm to Bermudez). Ciolek did not ask the trial court to take judicial notice

                                             11
of the law of conservation of momentum and to instruct the jury on its meaning. Ciolek
did not ask her accident reconstruction expert to evaluate and opine on the effect of
                                 2
Heacox’s speed on the ricochet. Faced with a result she did not expect (though it was
consistent with the result requested by Bermudez’s counsel and Heacox’s counsel in their
closing arguments), Ciolek now suggests the jury reached an illogical verdict based on
the supposed common sense of the law of conservation of momentum.
              We reject Ciolek’s request to essentially retry the case on appeal and we
deny her request for judicial notice as irrelevant to the issues before us. “It is a firmly
entrenched principle of appellate practice that litigants must adhere to the theory on
which a case was tried. Stated otherwise, a litigant may not change his or her position on
appeal and assert a new theory. To permit this change in strategy would be unfair to the
trial court and the opposing litigant.” (Brown v. Boren (1999) 74 Cal.App.4th 1303,
1316.) It would be fundamentally unfair to both Heacox and Bermudez to grant a retrial
to Ciolek because she wants the chance to try a different theory the second time around.
              Given the record actually developed at trial, it cannot be said that the
special verdict was inconsistent or the findings made therein were not supported by
substantial evidence. The jury’s verdict strongly implies it found Heacox to be minimally

2
               Presumably, an expert witness would consider numerous factors (in
addition to Heacox’s speed) affecting the speed and direction of the ricochet. Factors
might include road friction, braking force, and the amount of momentum absorbed
through the crush of the vehicle bodies. The speed and direction of the ricochet of
perfectly elastic billiard balls on a frictionless billiard table will not, without more,
approximate the speed and direction of automobiles after a collision. Of course, Ciolek
does not offer here to actually solve physics equations based on various assumed speed
inputs. Instead, she simply insists the result of the crash must have been somehow
different (and presumably worse) than in a counterfactual world in which Heacox was
travelling at a nonnegligent speed. Ciolek does not consider the possibility that
Bermudez could have been made worse off had Heacox been travelling slightly slower.
This is theoretically possible (i.e., if Bermudez’s body and Heacox’s car had been in
slightly different positions at the point of impact, perhaps Bermudez would have suffered
more extreme injuries or even died).

                                              12
negligent. We can infer Heacox was not far from a finding that he did not breach his
duty of care. Perhaps he was driving a few miles per hour faster than was prudent and/or
was not quite paying close enough attention to the conditions around him. The evidence
certainly supports a finding that Heacox was slightly over the speed limit at the time he
entered the intersection. But the jury’s other findings indicate Heacox could not have
avoided the collision even if he had exercised due care. This suggests the jury found
Ciolek’s negligence overwhelmed anything Heacox did or reasonably could have done.
Bermudez had the burden of proving by a preponderance of the evidence all three
elements of a negligence cause of action, including causation. No evidence was
introduced suggesting that a small difference in Heacox’s speed would exacerbate
Bermudez’s injuries. The jury concluded that Bermudez’s burden was met with regard to
Heacox as to breach of duty but not causation. Heacox’s breach of his duty of care was
not a substantial factor in causing Bermudez’s injuries.


                                   DAMAGES AWARD


              “Whether a plaintiff ‘is entitled to a particular measure of damages is a
question of law subject to de novo review. [Citations.] The amount of damages, on the
other hand, is a fact question . . . [and] an award of damages will not be disturbed if it is
supported by substantial evidence.’” (Rony v. Costa (2012) 210 Cal.App.4th 746, 753.)


Evidence at Trial
              At the time of the accident, Bermudez apparently had no medical insurance.
He was taken by ambulance to University of California Irvine Medical Center (UCI),
where he stayed four to five days. Bermudez sustained multiple injuries as a result of the
collision, including: (1) a fractured patella (kneecap), for which surgery was necessary;
(2) a fractured pelvis and a chip in his front left hip, which required multiple diagnostic

                                              13
procedures; (3) severe shoulder injuries; (4) lacerations; and (5) deep bruising to his left
leg and testicles. Debilitating pain after his initial convalescence lead to two separate
back surgeries — a microdiscectomy to repair a herniated disc and a separate surgery to
remove and replace the injured disc.
              Defendants did not file motions in limine to exclude medical damages
evidence. The following came into evidence without objection or motion to strike by
either defense counsel.
              Bermudez testified that the amount of his outstanding medical bills was
approximately $450,000. He had not paid any of the bills. Bermudez believed his
medical providers will be paid out of any recovery he receives in this case, but he will be
responsible for the bills no matter what happens in the litigation.
              The parties stipulated to the admissibility (not the reasonableness) of
Bermudez’s exhibit 239, a summary of past medical bills. The total of the past bills was
$445,430.64. The parties also stipulated to the reasonableness (not just the admissibility)
of $15,000 in recent medical charges not reflected in exhibit 239.
              Experts for the parties testified regarding both the necessity of various
procedures and the reasonableness of the charges for those procedures. Dr. William Van
Der Reis, an orthopedic surgeon with a practice in Orange County, testified for Bermudez
regarding his medical treatment, with the exception of the two back surgeries. Van Der
Reis performs surgeries at two hospitals, as well as an outpatient surgery center. Van Der
Reis examined Bermudez and reviewed the charges for his care and treatment. UCI
charged $111,000 for Bermudez’s hospital stay, which Van Der Reis agreed was “fair
and reasonable.” Van Der Reis similarly agreed that the physician fees for treatment at
UCI (specified in exhibit 239) were “fair and reasonable.” Van Der Reis testified that
only some of the fees charged for magnetic resonance imaging (MRI) scans were fair and
reasonable; he indicated a $6,150 scan should be reduced to $2,030 and a $8,346 scan
should be reduced to between $2,000 to $2,500. In sum, Van Der Reis endorsed some of

                                             14
the medical bill amounts not related to Bermudez’s back as fair and reasonable, while
discounting other medical bills to what he considered to be a fair and reasonable amount.
              Van Der Reis also identified four charges Bermudez would incur in the
future for an additional knee surgery to remove the plate inserted during the first knee
surgery. These expected charges totaled $14,250. Van Der Reis opined Bermudez would
benefit from cortisone injections ($300 to $350 per visit) and physical therapy ($1,500 for
12 sessions). Van Der Reis’s testimony about future medical expenses was not linked to
existing medical bills.
              Dr. Fardad Mobin, a neurosurgeon who performed Bermudez’s second
back surgery, testified regarding Bermudez’s back problems. Mobin maintains an active
clinical and surgical practice in Los Angeles County. Mobin was familiar with
reasonable and customary charges for spinal surgeries and related services. Mobin
reviewed Bermudez’s medical records. Mobin opined that charges for initial treatment
($1,820) were reasonable. Mobin opined that the first back surgeon’s charge of $65,328
was too high because the cost for this type of surgery in his region was between $20,000
to $25,000. But Mobin stated the remainder of the charges for the first surgery were fair
and reasonable: $69,500 for the surgical center, $483 for spinal X-rays, $3,250 for
anesthesia, $323 for fluoroscopy, and $3,520 for postsurgery medical equipment. With
regard to the surgery he performed, Mobin opined that the surgeon’s fee ($50,176),
anesthesiologist’s fee ($3,976), MRI fee ($2,220), and the facility cost ($93,629) were
reasonable and within the community standard. He noted these services were provided
on a lien. Like Van Der Reis, Mobin endorsed some of the medical bills as fair and
reasonable, while discounting other medical bills to what he considered to be a fair and
reasonable amount.
              As to future medical expenses, Mobin opined Bermudez would require an
additional back surgery in the next 10 to 15 years at a total cost of between $160,000 and
$180,000. Mobin also identified various other future medical costs pertaining to

                                            15
Bermudez’s back: pain management regime, including up to three epidurals per year
costing $10,000 each; facet blocks in sets of two for a total of approximately $15,000;
and consultations with a spine surgeon twice per year for four to five years (initial consult
at $1,000 to $1,500, follow ups at $400 to $600). Bermudez should obtain annual X-rays
($150 per set), annual MRIs ($2,000 to $2,500), and two computed tomography (CT)
scans ($2,000 each) in the next five years. Bermudez will need 16 to 18 physical therapy
sessions for the next four to five years, at $100 to $150 per session. Mobin’s testimony
about future medical expenses was not linked to existing medical bills.
              Bermudez’s economist expert opined as to the present value of Bermudez’s
future medical expenses. Based on medical expert testimony and alternate assumptions
concerning the growth of health care costs, he testified that ranges of either $582,190 to
$816,770, or $691,013 to $984,650 would be incurred.
              Dr. Michael Weinstein, an orthopedic surgeon called to testify by Ciolek,
also testified regarding the reasonableness of Bermudez’s medical costs. He opined that
“[s]ome of the charges . . . were fine. All the charges from UCI, the surgeries [at UCI], I
thought they were all fine.” Weinstein disagreed with the necessity and reasonableness
of the back surgeries and related costs. Even assuming the back surgeries were
appropriate, Weinstein put the market value of the first back surgery at $1,200 to $3,000,
and the market value of the facility fee at $6,000 to $12,000. The second surgery’s
market value was $6,000 to $8,000, with a facility fee of $20,000 to $25,000. Weinstein
explicitly established his foundation for these opinions by describing his own practice
and his knowledge of rates in his areas of practice, including the amounts he actually
recovers from insurers or individuals who make cash payments.




                                             16
Jury Instructions and Argument of Counsel
              The jury was instructed with modified versions of CACI instructions
pertaining to damages, including CACI Nos. 3900, 3902, 3903, 3903A, 3903C, 3903D,
3904A, 3905, 3905A, 3924, 3925, 3932, 3933, and 3964. For purposes of this appeal,
CACI No. 3903A is most pertinent: “To recover damages for past medical expenses,
plaintiff, Omar Bermudez, must prove the reasonable cost of reasonably necessary
medical care that he has received. [¶] To recover damages for future medical expenses,
plaintiff, Omar Bermudez, must prove the reasonable cost of reasonably necessary
medical care that he is reasonably certain to need in the future.”
              After reviewing the evidence of damages in his closing argument,
Bermudez’s counsel requested $414,255.59 in past medical expenses; $691,000 to
$984,000 for future medical expenses; $11,538 in past lost earnings; $442,400 to
$815,000 in future lost earnings; $2,125,000 in past noneconomic losses (“I suggest to
you it’s worth far more than those economic losses that we’ve been talking about. Three
times, four times, five times more than that because the damage to the person is what
hurts us to the core.”); and $5.5 million for future noneconomic losses.
              Counsel for Ciolek contested the necessity and reasonableness of medical
expenses, both past and future, in his closing argument. He put forth the following
numbers as appropriate and supported by the evidence: $135,000 — past medical
expenses; $12,000 (rounded up) — past lost earnings; and $90,000 for future lost wages.
Counsel for Ciolek did not provide a number for future medical expenses or
noneconomic damages.
              Counsel for Heacox did not question the necessity of Bermudez’s various
surgeries. He did argue “some of the doctors” charged “a lot of money,” “[m]ore than
Dr. Weinstein thinks is right. But it’s up to you to, again, weigh the credibility of those
doctors. You’ve heard the arguments, good arguments on both sides.”



                                             17
Verdict Form, Judgment, and Motion for New Trial
              The jury’s special verdict indicated the following damages for Bermudez:
                                     3
past medical expenses — $460,431; past lost earnings — $11,538; future medical
expenses —$425,000; future lost earnings — $130,000; past noneconomic loss —
$2 million; and future noneconomic loss — $725,000. Total damages equaled
$3,751,969 and the court entered judgment against Ciolek accordingly.
              One section of Ciolek’s new trial motion classified the damages awarded to
Bermudez as excessive because the past medical damage amounts were not based on
market value. As previously noted, the court denied the new trial motion. The court
stated on the record at the new trial hearing, “Frankly, I don’t understand why he
survived the accident. Probably one might consider him to have been easily killed in this
accident. His injuries were . . . serious. [¶] He was badly injured. He is still badly
injured. He is going to need more surgeries. And the jury’s verdict was probably right
on.”


Disentangling the Measure of Damages, the Admissibility of Evidence, and the
Sufficiency of Evidence to Support a Judgment
              Ciolek argues a new trial on damages is necessary because Bermudez
“failed to meet his burden of proving that his claims for past and future medical damages
were reasonable, as measured by an exchange or market value” and because Bermudez
“urged the jury to award noneconomic damages as a multiple of the improperly-grounded
economic damages.”




3
              The jury awarded more in past medical damages ($460,431) than requested
by counsel for Bermudez ($414,255.59), who explained to the court while the jury was
deliberating that he had adjusted his requested damages downward based on testimony by
his own medical experts that certain amounts charged by treating physicians were
excessive.

                                            18
              Three separate but related questions are pertinent to Ciolek’s contentions:
(1) what is the proper measure of medical damages; (2) what evidence is admissible to
prove the proper measure of medical damages; and (3) what evidence is sufficient to
affirm an award of medical damages based on the proper measure? We address each
question in turn.


A. Proper Measure of Medical Damages
              Tort damages consist of “the amount which will compensate for all the
detriment proximately caused” by the breach at issue. (Civ. Code, § 3333.) “Detriment
is a loss or harm suffered in person or property.” (Civ. Code, § 3282.) “Damages must,
in all cases, be reasonable . . . .” (Civ. Code, § 3359.) The jury was properly instructed
in this case to determine “the reasonable cost of reasonably necessary medical care that
[Bermudez] has received” and “the reasonable cost of reasonably necessary medical care
that [Bermudez] is reasonably certain to need in the future.” But as a consequence of the
discrepancy in recent decades between the amount patients are typically billed by health
care providers and the lower amounts usually paid in satisfaction of the charges (whether
by a health insurer or otherwise), controversy has arisen as to how to measure the
reasonable costs of medical care in a variety of factual scenarios. Citing the collateral
source rule, some plaintiffs suggested they should be entitled to recover the reasonable
costs of medical care, even if that dollar value exceeded the amount actually paid in
exchange for the medical services.
              Our Supreme Court rejected this contention: “[A]n injured plaintiff whose
medical expenses are paid through private insurance may recover as economic damages
no more than the amounts paid by the plaintiff or his or her insurer for the medical
services received or still owing at the time of trial.” (Howell, supra, 52 Cal.4th at p.
566.) In other words, “a plaintiff may recover as economic damages no more than the
reasonable value of the medical services received and is not entitled to recover the

                                             19
reasonable value if his or her actual loss was less.” (Id. at p. 555; see also Corenbaum v.
Lampkin (2013) 215 Cal.App.4th 1308, 1325-1326 (Corenbaum) [“Damages for past
medical expenses are limited to the lesser of (1) the amount paid or incurred for past
medical expenses and (2) the reasonable value of the services”].) Howell’s holding was
in accord with pre-Howell case law on the question of the proper measure of damages
involving plaintiffs with insurance. (See Nishihama v. City and County of San Francisco
(2001) 93 Cal.App.4th 298, 306-309 (Nishihama); Hanif v. Housing Authority (1988) 200
Cal.App.3d 635, 639-644 (Hanif).)
              The ramifications of Howell on the proper measure of damages in a case
brought by an uninsured plaintiff (who has not paid his bill) are less clear. En route to its
holding, Howell observed, “The rule that medical expenses, to be recoverable, must be
both incurred and reasonable [citations] applies equally to those with and without
medical insurance.” (Howell, supra, 52 Cal.4th at p. 559, fn. 6.) And Howell endorsed
“a rule, applicable to recovery of tort damages generally, that the value of property or
services is ordinarily its ‘exchange value,’ that is, its market value or the amount for
which it could usually be exchanged.” (Id. at p. 556, quoting Rest.2d Torts, § 911, com.
h, pp. 476-477.)
              But the holding in Howell ultimately depended upon the “paid or incurred”
prong of the test, not the “reasonable value” prong. (Howell, supra, 52 Cal.4th at pp.
555-556.) Insured plaintiffs incur only the fee amount negotiated by their insurer, not the
initial billed amount. Insured plaintiffs may not recover more than their actual loss, i.e.,
the amount incurred and paid to settle their medical bills. (Id. at p. 555.) It was not
necessary in Howell to examine the mechanics of properly measuring damages in the
case of an uninsured plaintiff. (Ibid.)
              Howell certainly did not suggest uninsured plaintiffs are limited in their
measure of recovery to the typical amount incurred by an insured plaintiff, or, for that
matter, the typical amount incurred by any other category of plaintiff. Howell noted

                                             20
“pricing of medical services is highly complex and depends, to a significant extent, on the
identity of the payer. In effect, there appears to be not one market for medical services
but several, with the price of services depending on the category of payer . . . .” (Howell,
supra, 52 Cal.4th at p. 562.) Howell refused to “suggest hospital bills always exceed the
reasonable value of the services provided. . . . [Citation.] With so much variation [in
pricing], making any broad generalization about the relationship between the value or
cost of medical services and the amounts providers bill for them — other than that the
relationship is not always a close one — would be perilous.” (Id. at pp. 561-562, fn.
omitted.) Howell acknowledged that, all other factors being held equal, the amount
recovered by an uninsured plaintiff may be higher than that recovered by an insured
plaintiff: “There is, to be sure, an element of fortuity to the compensatory damages the
defendant pays under the rule we articulate here. A tortfeasor who injures a member of a
managed care organization may pay less in compensation for medical expenses than one
who inflicts the same injury on an uninsured person treated at a hospital (assuming the
hospital does not offer the person a discount from its chargemaster prices). But, as
defendant notes, ‘[f]ortuity is a fact in life and litigation.’” (Id. at p. 566.)
               Howell offered no bright line rule on how to determine “reasonable value”
when uninsured plaintiffs have incurred (but not paid) medical bills. Ciolek is correct
that the concept of market or exchange value was endorsed by Howell as the proper way
to think about the “reasonable value” of medical services. But she is incorrect to the
extent she suggests: (1) Bermudez is necessarily in the same market as insured
healthcare recipients or wealthy healthcare recipients who can pay cash; or (2) Howell
prescribes a particular method for determining the “reasonable value” of medical
services.
               This takeaway from Howell is consistent with a pre-Howell case involving
uninsured plaintiffs who were hurt in an automobile accident and obtained medical care.
(See Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1291-1292 (Katiuzhinsky).) In

                                               21
Katiuzhinsky, the healthcare providers secured a lien against any personal injury recovery
by plaintiffs, then sold plaintiffs’ accounts at a discount to a firm specializing in such
transactions (MedFin). (Id. at pp. 1291-1293.) The trial court limited plaintiffs’ recovery
for medical care bills sold to MedFin to the amount MedFin paid for the accounts. (Id. at
p. 1296.) The appellate court found error in the trial court’s ruling because there was
evidence plaintiffs remained liable for the full amount billed; MedFin’s purchase of the
accounts at a discount did not reduce the amount owed by plaintiffs. (Id. at pp. 1296-
1297.) Plaintiffs should have been entitled to argue to the jury that “the amounts charged
to and incurred by them . . . represented the reasonable value of the medical services
provided.” (Id. at p. 1298.) Howell did not disapprove of Katiuzhinsky; it explicitly
distinguished the facts before it from Katiuzhinsky, noting Howell was “not a case . . .
where the plaintiffs ‘remain[ed] fully liable for the amount of the medical provider’s
charges for care and treatment.’” (Howell, supra, 52 Cal.4th at p. 557.)
              In sum, the measure of medical damages is the lesser of (1) the amount paid
or incurred, and (2) the reasonable value of the medical services provided. In practical
terms, the measure of damages in insured plaintiff cases will likely be the amount paid to
settle the claim in full. It is theoretically possible to prove the reasonable value of
services is lower than the rate negotiated by an insurer. But nothing in the available case
law suggests this will be a particularly fruitful avenue for tort defendants. Conversely,
the measure of damages for uninsured plaintiffs who have not paid their medical bills will
usually turn on a wide-ranging inquiry into the reasonable value of medical services
provided, because uninsured plaintiffs will typically incur standard, nondiscounted
charges that will be challenged as unreasonable by defendants.


B. Admissibility of Evidence, Particularly the Billed Amount, to Prove Medical Damages
              Trial courts typically “enjoy ‘“broad authority”’ over the admission and
exclusion of evidence.” (Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1156 (Greer).)

                                              22
Consistent with this principle, several pre-Howell cases held courts are not required to
exclude evidence of the initial billed amounts of medical expenses, even when a lesser
amount was subsequently accepted by the medical care providers as payment in full.
(Olsen v. Reid (2008) 164 Cal.App.4th 200, 204; Greer, supra, 141 Cal.App.4th at p.
1157; Nishihama, supra, 93 Cal.App.4th at pp. 309; but cf. Calhoun v. Hildebrandt
(1964) 230 Cal.App.2d 70, 73 [court did not err by excluding medical bills when no other
evidence was offered to prove they were reasonable in amount, or that the billed
procedures were necessary and attributable to the accident].)
              For instance, in Greer, supra, 141 Cal.App.4th at page 1156, the tortfeasor
contended the court erred in denying his motion in limine to exclude evidence of the full
amount initially billed for the plaintiff’s medical expenses. When it denied the motion in
limine, the trial court ruled that “while a postverdict reduction of the jury’s award of
medical expenses might be justified, defendant could not prevent the jury from hearing
evidence regarding reasonable medical costs for plaintiff’s care in the first instance.” (Id.
at p. 1157.) The appellate court agreed: “Nishihama and Hanif stand for the principle
that it is error for the plaintiff to recover medical expenses in excess of the amount paid
or incurred. Neither case, however, holds that evidence of the reasonable cost of medical
care may not be admitted. Indeed, Nishihama suggests just the opposite: Such evidence
gives the jury a more complete picture of the extent of plaintiff’s injuries. Thus, the trial
court did not abuse its discretion in allowing evidence of the reasonable cost of plaintiff’s
care while reserving the propriety of a Hanif/Nishihama reduction until after the verdict.”
(Ibid.)
              Katiuzhinsky — as discussed above, a case in which the plaintiffs were
uninsured — held the trial court committed error by excluding evidence of medical
charges. (Katiuzhinsky, supra, 152 Cal.App.4th at pp. 1295-1296.) “The trial court’s
ruling did not merely preclude plaintiffs from recovering special damages for medical
expenses above the discounted rate paid by MedFin, but kept the jurors from considering

                                             23
the medical bills as evidence of the reasonable value of the medical services. This ruling
was erroneous. . . . [¶] [R]egardless of whether defendants were entitled to a Nishihama-
type reduction of the medical damage award, there was no basis in law to prevent the
jurors from receiving evidence of the amounts billed, as they reflected on the nature and
extent of plaintiffs’ injuries and were therefore relevant to their assessment of an overall
general damage award.” (Ibid.)
              In sum, prior to Howell, so long as there was independent evidence that the
underlying medical procedures were made necessary by the tort at issue, there was little
question as to the admissibility on relevance grounds of the amount plaintiffs were
                              4
charged for medical services. These cases implied that the amount initially billed is
always “relevant” (Evid. Code, §§ 210, 350) to either the question of the amount incurred
by the plaintiff or to the “reasonable” value of the services provided, even if the measure
of damages is limited by a lower amount actually paid. Relevant evidence is
presumptively admissible. (Evid. Code, § 351.)
              In Howell, the trial court denied a motion in limine to exclude evidence of
unpaid medical bills, but granted a posttrial motion to reduce the medical damage award
to the amount actually paid by plaintiff and her insurer. (Howell, supra, 52 Cal.4th at pp.
549-550.) As discussed above, Howell’s holding essentially approved of this reduction

4
                There was always, of course, a potentially valid hearsay objection to
documents evidencing the amount charged (i.e., medical bills). “Since invoices, bills,
and receipts for repairs are hearsay, they are inadmissible independently to prove that
liability for the repairs was incurred, that payment was made, or that the charges were
reasonable.” (Pacific Gas & E. Co. v. G.W. Thomas Drayage Etc. Co. (1968) 69
Cal.2d 33, 42-43 (Drayage).) The invoices in Drayage were admissible as corroboration
for testimony that the invoices had been paid. (Id. at p. 43 [“If, however, a party testifies
that he incurred or discharged a liability for repairs, any of these documents may be
admitted for the limited purpose of corroborating his testimony [citations], and if the
charges were paid, the testimony and documents are evidence that the charges were
reasonable”].) Here, Bermudez testified that he had incurred approximately $450,000 in
medical expenses. Apparently, rather than corroborating this testimony with every
invoice, the parties sensibly stipulated to the admission of exhibit 239.

                                             24
(though Howell suggested the proper procedure was to grant a new trial unless the
plaintiff accepted a reduced judgment). The proper measure of damages was the amount
paid pursuant to the reduced rate negotiated by the plaintiff’s insurance company.
              Despite the motion in limine at the trial court, the admissibility of evidence
was not strictly at issue in Howell. Nevertheless, the court commented: “It follows from
our holding that when a medical care provider has, by agreement with the plaintiff’s
private health insurer, accepted as full payment for the plaintiff’s care an amount less
than the provider’s full bill, evidence of that amount is relevant to prove the plaintiff’s
damages for past medical expenses and, assuming it satisfies other rules of evidence, is
admissible at trial. Evidence that such payments were made in whole or in part by an
insurer remains, however, generally inadmissible under the evidentiary aspects of the
collateral source rule. [Citation.] Where the provider has, by prior agreement, accepted
less than a billed amount as full payment, evidence of the full billed amount is not itself
relevant on the issue of past medical expenses. We express no opinion as to its relevance
or admissibility on other issues, such as noneconomic damages or future medical
expenses. (The issue is not presented here because defendant, in this court, conceded it
was proper for the jury to hear evidence of plaintiff’s full medical bills.)” (Howell,
                                               5
supra, 52 Cal.4th at p. 567, italics added.)

5
               In the course of its analysis, Howell extensively discussed the complexities
and oddities of health care services markets (Howell, supra, 52 Cal.4th at pp. 560-566),
including the observation that “[b]ecause so many patients . . . pay discounted rates,
hospital bills have been called ‘insincere, in the sense that they would yield truly
enormous profits if those prices were actually paid.’” (Id. at p. 561.) Howell noted, “[I]t
is not possible to say generally that providers’ full bill represent the real value of their
services, nor that the discounted payments they accept from private insurers are mere
arbitrary reductions.” (Id. at p. 562.) “Given this state of medical economics, how a
market value other than that produced by negotiation between the insurer and the
provider could be identified is unclear.” (Ibid.) To be clear, these observations provide
support for the court’s statement that the full billed amount was not itself relevant to the
issue of past medical expenses when the provider had accepted less pursuant to a prior
agreement with an insurer. But Howell did not actually hold that medical charges are

                                                   25
               Seizing on the italicized language, a post-Howell case disagreed with pre-
Howell cases regarding the admissibility of evidence of the amount charged for medical
expenses. In Corenbaum, supra, 215 Cal.App.4th at pages 1320-1321, plaintiffs sued for
injuries suffered in a motor vehicle accident. The trial took place before Howell.
(Corenbaum, at pp. 1321-1323.) Defendant did not request the exclusion of evidence
pertaining to the amount plaintiffs were billed for their medical care, but instead reserved
the right to move posttrial to reduce medical damages to the amount actually paid. (Id. at
p. 1321.) The trial court granted plaintiffs’ motion to exclude evidence of the amount of
medical charges actually paid by a collateral source. (Ibid.) “In accordance with the trial
court’s in limine rulings, the jury heard evidence of the full amounts billed for
[plaintiffs’] past medical care and heard no evidence of the lesser amounts accepted by
their medical providers as full payment pursuant to prior agreements with . . . private
insurers.” (Id. at p. 1322.) Defendant filed a postverdict motion to reduce the damages
awarded “by the difference between the full amounts billed for past medical expenses and
the amounts actually accepted by plaintiffs’ medical providers as full payment for the
services provided.” (Id. at pp. 1322-1323.) The trial court, though expressing its view
that the motion had merit, lost jurisdiction to rule on this motion by the passage of time.
(Id. at p. 1323.)
               Rather than seeking a mere reduction of the damage award on appeal, the
Corenbaum defendant appealed on the grounds that the trial court erred by “admitting
evidence of the full amounts billed for [plaintiffs’] medical care when the amounts
accepted by their medical providers as full payment were less than the amounts billed.”
(Corenbaum, supra, 215 Cal.App.4th at p. 1324.) Corenbaum held that evidence of the
full amount billed for past medical services was not relevant (and was therefore
inadmissible) to prove past medical expenses, future medical expenses, and/or


inadmissible. Nor did it engage with or critique prior case law on this question.

                                             26
noneconomic damages. (Id. at pp. 1328-1333.) The analysis was driven by the view that
Howell “stated that the full amount billed by medical providers is not an accurate
measure of the value of medical services.” (Corenbaum, at p. 1326; see also id. at p.
1330; but see Howell, supra, 52 Cal.4th at p. 561 [“We do not suggest hospital bills
always exceed the reasonable value of the services provided”].) Distinguishing
Katiuzhinsky, supra, 152 Cal.App.4th 1288, Corenbaum observed that “the plaintiffs in
that case, who apparently had no health insurance, remained fully liable to their medical
providers for the full amount billed despite the providers’ sale of their accounts to a
medical finance company at a discount.” (Corenbaum, at p. 1328, fn. 10.) The matter
was remanded for a new trial as to compensatory damages. (Id. at pp. 1333-1334.)
Offering guidance to the trial court for its retrial of the damages issue on remand, the
court opined that evidence of the full amount billed for past medical services could not
support an as yet unoffered expert opinion as to the reasonable value of future medical
services. (Id. at pp. 1331-1332.)
              Another post-Howell case involved a dispute between a hospital and
insurers “over the reasonable value of the poststabilization emergency medical services
provided by” the hospital to the insured patients. (Children’s Hospital Central California
v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1264.) The trial court erred
when it “precluded evidence of the various rates Hospital charges and accepts as
payment. Reasonable value is market value, i.e., what Hospital normally receives from
the relevant community for the services it provides. Hospital rarely receives payment
based on its published charge master rates. Thus, in determining the reasonable value of
the poststabilization services, the full range of fees is relevant. The scope of the rates
accepted by or paid to Hospital by other payors indicates the value of those services in
the marketplace.” (Id. at p. 1277, italics added.) Although decided in a different legal
context (i.e., pursuant to regulations applicable to hospitals and insurers lacking a
preexisting contractual relationship), it is worth considering this case. In holding the

                                              27
court erred by excluding all evidence other than the billed charges, i.e., “the highest
amounts that are ever received for the services,” the appellate court did not wall off any
part of the “full range” as per se irrelevant. (Id. at pp. 1269-1270, 1277.)
              Though raising a sufficiency of the evidence (rather than an admissibility of
evidence) challenge, Ciolek attacks the evidence marshaled by Bermudez (in particular,
the amount of medical expenses incurred and the use of those figures as a starting point
by the expert witnesses). To be clear, however, neither Howell, supra, 52 Cal.4th 541,
nor Corenbaum, supra, 215 Cal.App.4th 1308, holds that billed amounts are inadmissible
in cases involving uninsured plaintiffs. Bermudez’s uninsured status meant that billed
amounts were relevant to the amount he incurred (unlike insured plaintiffs, who really
only incur the lower amount negotiated by their insurer). The billed amounts are also
relevant and admissible with regard to the reasonable value of Bermudez’s medical
expenses, at least according to the only case clearly addressing the issue in the context of
uninsured plaintiffs. (Katiuzhinsky, supra, 152 Cal.App.4th at pp. 1295-1296.) The
admissibility of the billed amount is consistent with the “full range of fees” being
relevant in determining the reasonable value of services in the health care marketplace.
(Children’s Hospital Central California v. Blue Cross of California, supra, 226
                           6
Cal.App.4th at p. 1277.)




6
               Of course, this case does not feature an insured plaintiff. But as a general
matter, we express some reservations about Corenbaum, supra, 215 Cal.App.4th 1308
seemingly holding that the amount initially billed is per se inadmissible in cases of
insured plaintiffs whose bills were paid in full for less than the initial billed amount.
Howell, supra, 52 Cal.4th 541, and Corenbaum did not contemplate a battle over the
reasonableness of the amount paid to settle the bill in full. Unless defendants stipulate to
the reasonableness of the amount actually paid to settle in full the medical bill, it seems to
us that, consistent with pre-Howell case law, evidence of the initial billed amount would
be relevant to proving the reasonableness of the discounted amount that was actually
paid.

                                             28
Sufficiency of the Evidence to Support Medical Damage Awards
              Two points about the sufficiency of evidence to support a judgment can
fairly be taken from Howell. First, the amount paid to settle in full an insured plaintiff’s
medical bills is likely substantial evidence on its own of the reasonable value of the
services provided. (See Howell, supra, 52 Cal.4th at p. 562 [“looking to the negotiated
prices” is good way to seek “the exchange value of medical services”; “how a market
value other than that produced by negotiation between the insurer and the provider could
be identified is unclear”].) Second, consistent with pre-Howell law (see, e.g., Latky v.
Wolfe (1927) 85 Cal.App. 332, 346-347, 352 [judgment reduced by $160 because there
was no evidence of “reasonable value” for the billed amount]), initial medical bills are
generally insufficient on their own as a basis for determining the reasonable value of
medical services. Ensuing cases have held that a plaintiff who relies solely on evidence
of unpaid medical charges will not meet his burden of proving the reasonable value of
medical damages with substantial evidence.
              State Farm Mutual Automobile Ins. Co. v. Huff (2013) 216
Cal.App.4th 1463 (Huff) was an interpleader action in which a motor vehicle injury
victim contested a hospital’s asserted lien right to a portion ($34,320.86) of the injury
victim’s tort recovery (a judgment including $232,708.80 in medical damages). (Id. at p.
1466.) In attempting to prove its claim pursuant to the Hospital Lien Act (Civ. Code,
§§ 3045.1-3045.6), the hospital introduced an authenticated hospital bill with itemized
charges; testimony that the injury victim had no insurance and had not paid his bill;
testimony that the injury victim was on notice of the bill and the lien; and testimony that
the injury victim had introduced evidence of the hospital’s bill in his tort action. (Huff, at
pp. 1466-1467.) This evidence was insufficient to support a judgment in the hospital’s
favor. The hospital was required to prove “the reasonable and necessary charges” (Civ.
Code, § 3045.1) as part of its case-in-chief. (Huff, at pp. 1469-1470.) Huff held medical
bills are insufficient evidence of the amount of the lien. (Id. at pp. 1471-1472.) The

                                             29
hospital “introduced no evidence the charges in [victim’s] hospital bill were reasonable or
were for necessary treatment attributable to the motor vehicle collision.” (Id. at p. 1472.)
“The bill itself was based on the [hospital’s] standard charges and thus ‘is not an accurate
measure of the value of medical services.’” (Ibid.) Huff did not suggest the amount the
victim incurred was irrelevant and therefore inadmissible on the damages issue. Indeed,
facts pertaining to this amount were accurately described as “evidence,” albeit evidence
insufficient to prove reasonable medical expenses. (Id. at pp. 1471-1472.)
              Next came Ochoa v. Dorado (2014) 228 Cal.App.4th 120 (Ochoa). Once
again, plaintiffs were injured in a motor vehicle accident. (Id. at pp. 125-126.) There is
no indication in the opinion that plaintiffs’ medical bills had been paid in full, whether for
the amount billed or for a lesser amount. Evidence of the amounts of the medical bills
was admitted, but no evidence was admitted as to the reasonableness of those medical
bills, thanks to a successful motion in limine by defendants to exclude evidence of
reasonableness based on the lack of discovery produced on this issue. (Id. at pp. 127-
                                                                                             7
128.) The jury returned a verdict awarding substantial medical damages. (Id. at p. 128.)
              After discussing Howell, Corenbaum, Huff, and a host of older cases,
Ochoa concluded with three observations: (1) “an unpaid medical bill is not an accurate
measure of the reasonable value of the services provided”; (2) “an unpaid medical bill is
not evidence of the reasonable value of the services provided”; and (3) “evidence of
unpaid medical bills cannot support an award of damages for past medical expenses.”
(Ochoa, supra, 228 Cal.App.4th at pp. 138-139.) It is difficult to precisely identify the
holding in Ochoa, because its analysis and terminology conflated two related questions

7
               The procedural posture of Ochoa was unusual. Basically, no judgment was
entered but the trial court granted a new trial based on several grounds. The appellate
court held this order was void. Nevertheless, the appellate court offered guidance for
proceedings upon remand, i.e., consideration of an updated new trial motion after proper
entry of judgment. (Ochoa, supra, 228 Cal.App.4th at pp. 130-134.)


                                             30
(as discussed herein, the admissibility of evidence and the sufficiency of evidence to
                     8
support a judgment). Uncontroversially, Ochoa holds that evidence of unpaid medical
bills, without more, is not substantial evidence of the reasonable value of services
provided. Less clear is whether Ochoa intended to say something about the admissibility
of evidence pertaining to the amount of unpaid medical bills — if it did, we reiterate our
critique of Corenbaum, supra, 215 Cal.App.4th 1308 as stated in footnote 7 of this
opinion.


All But $46,175.41 of the Judgment is Supported by the Record
              Ciolek argues Bermudez failed to prove the proper measure of damages,
i.e., the reasonable value of his past medical costs, with substantial evidence. Ciolek
attributes this evidentiary shortfall to Bermudez’s alleged failure to present evidence
                                                                       9
pertaining to the market or exchange value of the services received.
              To reiterate, “[d]amages for past medical expenses are limited to the lesser
of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value

8
               Ochoa, supra, 228 Cal.App.4th at page 139 repeatedly characterized facts
tending to prove the amount of unpaid medical bills as “not evidence.” But “‘[e]vidence’
means testimony, writings, material objects, or other things presented to the senses that
are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140.)
Clearly, testimony and documents tending to prove the amount of an unpaid medical bill
are “evidence” if they are admitted at trial. One can state that such matter should be
inadmissible (either at a particular trial or in every trial), or one can state that this
evidence is insufficient to prove something at a trial (e.g., the reasonable value of medical
services received). But to characterize something as “not evidence” when it clearly is
evidence under the Evidence Code only confuses matters.
9
                It is undisputed (for purposes of appeal) that the record supports findings
that all of the surgeries and other procedures performed on Bermudez were reasonably
necessary and caused by Ciolek’s negligence. The discussion in this section pertains to
the reasonable value of medical services, not the separate question of whether the
services should have been provided or were caused by the breach of duty at issue.


                                             31
of the services.” (Corenbaum, supra, 215 Cal.App.4th at pp. 1325–1326.) Like insured
plaintiffs, uninsured plaintiffs must introduce substantial evidence of both the amount
incurred and the reasonable value of the services. The amount incurred sets a cap on
medical damages. But unlike the amount paid pursuant to an insurer’s negotiated rates,
the amount incurred by an uninsured medical patient is not sufficient evidence on its own
to prove the reasonable amount of medical damages.
              Neither Bermudez nor anyone else (e.g., an insurer) had paid for
Bermudez’s medical expenses at the time of trial. Thus, the operative measure of
damages was destined to be “the reasonable value” of the medical services as determined
by the jury, rather than the amount incurred by Bermudez. The jury was properly
instructed to determine “the reasonable cost of reasonably necessary medical care that he
has received” and “the reasonable cost of reasonably necessary medical care that he is
reasonably certain to need in the future.”
              Bermudez offered evidence of both the amount he incurred and the
reasonable value of medical care received. Bermudez testified to the amount
(approximately $450,000) he had been billed and for which (in his view) he was
responsible. The parties stipulated to the admissibility of an exhibit detailing Bermudez’s
past medical charges ($445,430.64) and to the reasonableness of $15,000 in recently
incurred medical expenses not listed in the exhibit. Bermudez’s expert medical witnesses
testified (without objection) to the fairness and reasonableness of the medical expenses
incurred by Bermudez, up to $414,255.59, and also estimated the costs of future care
(without reference to the current medical bills). Defense experts took issue with the
necessity of the back surgeries and the reasonableness of the fees charged for the back
surgeries and related expenses. But even Ciolek’s expert and counsel agreed with the
UCI hospital fees as proper (as well as other discounted amounts for procedures Ciolek
thought were unnecessary or improper).



                                             32
              The jury awarded $460,431 in past medical damages. There is a logical
basis for the award ($445,430.64 + $15,000 = $460,431). But the jury’s verdict is
nonetheless legally incorrect and not supported by substantial evidence because it
awarded the full amount incurred by Bermudez, not the reasonable value of his past
medical services (i.e., up to $414,255.59). There is no substantial evidence that the total
amount incurred was the reasonable value of the services provided. “When the evidence
is sufficient to sustain some but not all alleged damages, we will reduce the judgment to
the amount supported by the evidence.” (Behr v. Redmond (2011) 193 Cal.App.4th 517,
                                                                      10
533; see also id. at pp. 538-539 [disposition modifying judgment].)        We therefore
modify the judgment to reduce the amount of damages by $46,175.41.
              Ciolek claims nothing other than the $15,000 stipulated to as reasonable by
the parties and (perhaps) $50,000 certified as reasonable by her expert, Weinstein (i.e.,
damages for which Weinstein discussed his knowledge of market data as supporting his
figures, not the UCI fees which Weinstein agreed with but did not provide a foundational
basis for his agreement), are supported by substantial evidence. Relying on Corenbaum,
supra, 215 Cal.App.4th at pages 1331-1332 (which suggested in dicta that the full
amount billed cannot provide the basis for an expert opinion of the reasonable cost of
future medical expenses in a case where the insurer paid the negotiated rate) and other
post-Howell case law, Ciolek asserts that Bermudez’s experts’ classification of
Bermudez’s medical charges as reasonable was too terse and conclusory to amount to
substantial evidence because the experts did not sufficiently make clear they were
identifying the market or exchange value of these services. Ciolek reasons these experts

10
                 Counsel for Bermudez offered to stipulate to a postjudgment reduction in
the damages amount when it became clear (by way of a jury question) that the jury might
award more than $414,255.59. Ciolek did not accept this offer, and has not sought this
relief in her motion for new trial or in this appeal. We nevertheless provide this limited
relief, as it is subsumed within Ciolek’s broader request to reverse the judgment for
insufficient evidence as to damages.

                                             33
simply evaluated the medical bills based on their own vague, idiosyncratic sense of
reasonableness.
                   We reject Ciolek’s view that we must grant a new trial on damages or
reduce the amount awarded to Bermudez beyond the $46,175.41 reduction acknowledged
above. This is not a case in which Bermudez actually incurred a lower amount in
medical costs than the initial billed amount. Nor is this a case in which Bermudez simply
declared that the incurred amount was reasonable. Bermudez called two medical doctors
to testify about the reasonable costs of procedures about which they were knowledgeable,
including one expert who testified concerning the back surgery he performed himself.
(Cf. Ochoa, supra, 228 Cal.App.4th at p. 141 [treating physician entitled to testify to
“reasonable value of medical services that he or she provided”].) These experts did not
merely rubber stamp all of the medical bills as reasonable; they identified lower numbers
as reasonable in some cases. These doctors were qualified to provide expert opinions
concerning the reasonable value of the medical costs at issue. This opinion testimony
was based in part on the medical costs incurred by Bermudez and in part on other factors
considered by the experts, including their own experiences treating patients. This was
not purely speculative evidence without any basis in the real world (like, for instance,
speculative lost profits expert testimony in a business dispute). Bermudez actually
suffered severe injuries and underwent expensive medical treatment. The evidence
presented was sufficient to support an award of $414,255.59 in past medical damages.
                   Though not framed in this fashion, Ciolek’s real complaint is that expert
opinion testimony about the reasonable cost of Bermudez’s medical procedures should
have been inadmissible because the experts did not sufficiently establish that their
method of forming an opinion was linked to a market or exchange value of medical
            11
services.        (See, e.g., Sargon Enterprises, Inc. v. University of Southern California
11
               Ciolek also notes reasons why these experts’ opinions should not have been
believed (e.g., Mobin had a financial incentive to overstate the reasonable value of his

                                                 34
(2012) 55 Cal.4th 747, 753 [trial court properly fulfilled gatekeeper role by excluding
speculative expert testimony concerning lost profits].) For instance, in her opening brief,
Ciolek states “there was no foundational testimony as to what actual market rates were.”
               But Ciolek is unable to pursue this argument on appeal because appropriate
objections were not made below. (Evid. Code, § 353, subd. (a).) No motion in limine
was filed. No objections or motions to strike were made, whether on grounds of
relevance or lack of foundation. It would be inappropriate to speculate as to whether any
hypothetical objection or motion should have been granted. (See Evid. Code, § 802 [“A
witness testifying in the form of an opinion may state . . . the reasons for his opinion and
the matter . . . upon which it is based . . . . The court in its discretion may require that a
witness before testifying in the form of an opinion be first examined concerning the
matter upon which his opinion is based”]; Evid. Code, § 803 [“The court may, and upon
objection shall, exclude testimony in the form of an opinion that is based in whole or in
significant part on matter that is not a proper basis for such an opinion”].) For all we
know, Bermudez’s experts could have provided compelling testimony supporting their
chosen method of determining the reasonableness of Bermudez’s medical expenses for
the market in which he was served. We leave the question of how courts should fulfill
their gatekeeper role in a case like the instant one for an appeal in which the parties have
actually litigated the issue at trial.
               We likewise reject Ciolek’s assertion that she is entitled to a new trial as to
all damages because the jury’s award of past medical damages was “fundamentally
flawed” and Bermudez’s counsel asked the jury to base noneconomic damages on a
multiple of economic damages. The jury’s award was slightly too high, but the court
committed no error and there is no compelling evidence or argument that the excess in
past medical damages unfairly prejudiced Ciolek’s rights with regard to her noneconomic

services as a result of his lien). But these issues pertain to weight, not admissibility, and
they were properly made the subject of cross-examination.

                                               35
damages. (See, e.g., Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990,
1013-1014 [no prejudice at trial due to supposed erroneous admission of evidence of full
amounts billed in case where lower amount was accepted as payment in full].)


                                     DISPOSITION


             The judgment is modified to reduce the award of damages to Bermudez by
$46,175.41 to $3,706,793.60. In all other respects, the judgment is affirmed. Ciolek’s
request for judicial notice is denied. Bermudez and Heacox shall recover from Ciolek
costs incurred on appeal.




                                                IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




                                           36
