The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
James Luttrell (Luttrell) appeals from an amended judgment entered after a jury verdict and post-trial rulings in his personal injury action. He contends: (1) substantial evidence did not support the jury's finding that he was five percent comparatively negligent in regard to a hip fracture he sustained at the respondent's premises; (2) substantial evidence did not support the court's ruling that Luttrell's recovery should be reduced by 50 percent, for failure to mitigate his damages, with respect to medical expenses attributable to a decubitus ulcer he developed after his hip fracture; (3) the court should have applied this 50-percent reduction to the amount of medical expenses billed for the ulcer, rather than the amount of medical expenses paid, notwithstanding the holding in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 (Howell); (4) even if Luttrell's damages were properly reduced under Howell, the amount of a Medicare lien should have been added to the judgment; (5) the court erred in reducing the judgment by $10,000 for a payment Luttrell received under respondent's no-fault medical expense insurance, or the $10,000 should be added to the amounts paid in determining the amount of the judgment; and (6) substantial evidence does not support the jury's award for past and future pain and suffering.
In the published portion of our opinion, we conclude that the trial court properly applied Howell, and specifically that Howell governs where past medical expenses have been paid by Medicare, and the Howell cap should be imposed before any reduction for failure to mitigate damages. In the unpublished portion of our opinion, we conclude that the remainder of Luttrell's arguments lacks merit. We therefore affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In June 2009, appellant Luttrell fractured his left hip when an automatic door repeatedly hit him as he struggled to leave the premises owned by respondent Island Pacific Supermarkets, Inc. (Island Pacific). Luttrell received treatment and care at Washington Hospital and Park Central Care & Rehabilitation Center (Park Central) until he was discharged in July 2009. In August 2009, Luttrell sued Island Pacific for failing to maintain the automatic door.
In October 2009, while the lawsuit was pending, Luttrell was admitted to St. Rose Hospital (St. Rose) for treatment of a bedsore that was later diagnosed as a decubitus ulcer. Luttrell received treatment and care at St. Rose and Danville Rehabilitation until he was discharged on March 31, 2010. Luttrell's lawsuit ultimately sought damages, including past medical expenses, for both his fractured hip and his decubitus ulcer.
In November 2010, Island Pacific's insurer issued a $10,000 check payable to Luttrell, his attorney, and Medicare, under Island Pacific's "no-fault" medical payments coverage. The check was cashed, and Luttrell in return signed an Indemnity and Hold Harmless Agreement.
In January 2011, Island Pacific served Luttrell with an offer to compromise for $600,000 under Code of Civil Procedure section 998 (998 offer).
For treatment of his fractured hip and decubitus ulcer, Luttrell's medical providers billed $690,548.93 ($177,403.12 for the hip and $513,145.81 for the ulcer), but settled these bills with Medicare (and Medi-Cal) for $138,082.25. Based on Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 (Hanif) - which held that a plaintiff's recovery for the value of past medical services was limited to the amount actually paid - Island Pacific moved in limine to exclude references to Luttrell's billed medical expenses that had not been paid. With the parties' agreement, the court denied the motion without prejudice to Island Pacific raising the issue after trial if necessary.
The matter proceeded to a jury trial.
We set forth the trial evidence to the extent relevant to this appeal.
1. Luttrell's Account of the Incident
In June 2009, Luttrell was 67 years old and had been on disability since his fifties. As a result of spinal issues, he had problems with his right leg and foot, for which he wore special shoes and was prescribed an ankle/foot orthotic brace for stability. His right leg was weak, and he had little flexion in his right foot. He used a cane or two for balance. Although he had been prescribed a walker, he refused to use it. A medical record indicated that he was "chair-fast" (meaning "he gets up in the chair but doesn't ambulate much") and his mobility was "slightly impaired."
On June 15, 2009, Luttrell parked his car outside the Island Pacific Supermarket. As he entered the market and proceeded through the shopping mall, he used one cane to help him walk and carried a second cane in his other hand. He was not using a walker or wearing his ankle/foot brace.
Luttrell made his way to a travel agency; when he learned the travel agent he wanted to see was not there, he proceeded back toward the exit.
As Luttrell approached the exit, the automated doors began to open. Still using his cane in his left hand and carrying the other cane in this right, he entered the threshold at a normal pace. As he was passing over the threshold, however, the doors began to close. He continued to "struggl[e] to get out the doors" by pushing himself out, and the doors hit him "at least three or four times." After he made it through the doors, he fell to the ground because his legs had "twisted," and he was unable to get up. There were no other witnesses to the event.*fn2
2. Treatment of Luttrell's Fractured Hip
Luttrell was taken by ambulance to Washington Hospital, where he was diagnosed with a fractured hip and underwent surgery.
Later that month, Luttrell was transferred to Park Central for physical therapy. Upon his discharge on July 25, 2009, the Park Central staff recommended that he perform various exercises at home, including walking, hand-weight exercises, and leg exercises. The staff encouraged him to walk every day and advised him that the exercise would help him recover from his hip surgery.
Luttrell testified, however, that he did not perform the leg exercises; he "tried" to walk with assistance and did weight training with mainly two-pound weights "as much as [he] could."
3. Luttrell's Decubitus Ulcer
In October 2009, Luttrell was admitted to St. Rose for what was later diagnosed as a stage IV ischial decubitus ulcer. "Ischial" refers to a person's buttocks; ischial decubitus ulcers are classified by stage, from stage I through stage IV, with stage IV being the most severe.
After a course of antibiotics, Luttrell's St. Rose doctor referred him to Danville Rehabilitation and then to Dr. Daniel B. Allen for further treatment. Dr. Allen first saw Luttrell in January 2010 and admitted him to St. Rose in February 2010 for surgery to repair the ulcer. Luttrell was discharged from St. Rose on March 31, 2010.
Dr. Allen testified that the root cause of a decubitus ulcer is pressure; pressure sores are suffered by people who cannot feel their buttocks and older people who have major medical catastrophes or major orthopedic injuries, which would include a hip fracture.
According to Dr. Allen, Luttrell was predisposed to developing a decubitus ulcer even before he fractured his hip, because of neurological or sensory loss he suffered from an earlier excision of a tumor and other treatment. Dr. Allen opined it was "extremely unlikely" that Luttrell would have developed a stage IV decubitus ulcer if he not had the hip fracture, however, because Luttrell was ...