                                                                            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                           NOT FOR PUBLICATION                               SEP 23 2013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-


                                          -2-
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.

                                          -3-
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.

                                          -4-
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,




                                           -5-
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


                                          -6-
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.




                                            -7-
