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October 6, 2016
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David Rosenbaum, McDowall * Cotter APC
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Howell, Corenbaum, and Bermudez Cited to Support Jury Award for Future Hospitalizations
In an opinion filed October 4, 2016, the Second Appellate District in the case of Markow v.
Rosner [2016 Cal. App. LEXIS 827] found that plaintiff’s life care expert’s testimony, which
included Howell-based market analysis combined with her sufficient expertise in the area, was
substantial evidence sufficient to sustain an award for the cost of future hospitalizations.
In this medical malpractice case, plaintiff’s life care planning expert estimated the amount that
would be billed for plaintiff’s future hospitalizations would be approximately $2 million. She
testified that based on her research, knowledge and experience the amount actually paid is
usually 50% to 75% of the total amount billed. Ultimately, the jury’s award was $1.3 million,
which the court found was approximately 65% of the estimated future billing amount of $2
million. In other words, the jury award was roughly halfway between the 50% to 75% the expert
had testified about.
In upholding the jury’s award, the court applied the “substantial evidence” standard. In addition
to the opinion testimony the court reviewed, the court highlighted the witness’s experience as it
pronounced that a “jury could reasonably find [expert’s] testimony on the reimbursement rate to
be credible.”
West testified that she has been doing life care planning for almost seven
years. In addition to her experience as a life care planner, she has a
bachelor's degree in critical care nursing, and a master's degree in business
administration with a specialty in healthcare management; she is also a
certified hemodialysis nurse and is licensed as both an R.N. and a public
health nurse. The jury could reasonably find West's testimony on the
reimbursement rate to be credible. Accordingly, we find that substantial
evidence supports the jury's award of future economic damages.
(Markow v. Rosner (Oct. 4, 2016, Nos. B260715, B262530) ___Cal. App. 5th___ [2016
Cal. App. LEXIS 827, at *42-44].)

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To determine the standard of review, the court cited Bermudez v. Ciolek (2015) 237 Cal.App.4th
1311: “‘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.”’” (Bermudez at 1324.)
For its legal analysis to assess the parameters of what was needed for “substantial evidence” to
support the award, the court noted the jury had properly been instructed with a CACI instruction,
and that the Supreme Court in its Howell v. Hamilton Meats decision “endorsed a market or
exchange of value as the proper way to think about the reasonable value of medical services.” It
noted that Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308 applied this standard to the
“calculation of future medical expenses.” Finally, it highlighted that the concept of exchange
value is not the billed amount, but the “amount paid pursuant to the reduced rate negotiated by
the plaintiff's insurance company.” (Citing Bermudez at 1332.)
Thus, in this case, to reach her conclusion, plaintiff’s expert testified as to the what medical
industry (market) bills amounts versus what the health insurance industry (market) actually pays.
Finally, the court in a footnote addresses defendant’s contention that the expert’s testimony was
speculative. The court stated that this contention was waived by “not filing a motion in limine
seeking to exclude West’s testimony. “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.” (Bermudez, supra, 237 Cal.App.4th at p. 1340, italics added.)
(Markow v. Rosner (Oct. 4, 2016, Nos. B260715, B262530) ___Cal. App. 5th___, fn. 11 [2016
Cal. App. LEXIS 827, at *44].)