United States Court of Appeals
For the First Circuit
No. 99-2143
JOSE ALICEA PONCE, ET AL.,
Plaintiffs, Appellants,
v.
ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and García-Gregory,* District Judge.
José Luis Ubarri-García, with whom Herbert W. Brown III and
Brown & Ubarri were on brief, for appellants.
José A. Iguina de la Rosa, with whom Martinez-Texidor &
Fuster were on brief, for appellee.
* Of the District of Puerto Rico, sitting by designation.
January 17, 2001
LYNCH, Circuit Judge. On September 4, 1993, plaintiff
Wanda Sánchez gave birth to her daughter Natalie at defendant
Ashford Presbyterian Community Hospital. The delivery was
difficult; after the attending physician applied considerable
traction, Natalie emerged, but with an injury resulting in
partial paralysis of her left arm. This medical malpractice
suit followed, brought under diversity jurisdiction by Ms.
Sánchez, Natalie, and Ms. Sánchez's husband, José Alicea Ponce.
The suit was originally brought against the physicians who had
cared for Ms. Sánchez during her pregnancy, including the one
who delivered Natalie. Subsequently, Ashford was joined as a
defendant. Plaintiffs settled with the physicians for $400,000,
but continued their case against Ashford. After trial by jury,
Ashford was found to be fifty-percent liable for plaintiffs'
damages, which were assessed at, again, $400,000 (although the
jury had not been informed of the settlement). The trial judge
threw out the verdict for want of sufficient evidence. This
appeal ensued. We hold that, even if the verdict against
Ashford were supported by sufficient evidence, it constitutes an
impermissible double-recovery given plaintiff's prior settlement
with the physicians. We therefore affirm without having to
reach the issue of sufficiency of the evidence or related issues
plaintiffs raise.
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I.
We summarize the facts in the light most favorable
to the plaintiff. Andrade v. Jamestown Hous. Auth., 82 F.3d
1179, 1186 (1st Cir. 1996).
Ms. Sánchez became pregnant in 1993. Having
delivered a previous child by Caesarian section, she sought
pre-natal care at Centro Gineco-Obstétrico; the center
specialized in natural childbirth after a Caesarian section.
Her treating physicians there included Dr. Héctor Rosario, Dr.
María Román, Dr. Carlos Roure, and Dr. José Santiago.
On September 3, 1993, a week before her due date,
Ms. Sánchez was examined by Dr. Roure, who determined that Ms.
Sánchez's pregnancy was causing her to suffer hypertension and
that she should be hospitalized. Since Ms. Sánchez was so
close to her due date, her doctors decided to induce labor the
next day.
Labor was induced the morning of September 4, 1993.
Dr. Rosario was the attending physician; also present at
various times were several nurses, including Nurse Elsie
Oliveras. After several hours of contractions, the baby's
head emerged, but then retracted -- an indication (called the
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"turtle sign") that the baby's shoulder was stuck.2 In
response, Dr. Rosario instructed Nurse Oliveras to push Ms.
Sánchez's legs toward her head (putting her in the "McRoberts
position") and then to apply suprapubic pressure, so as to
rotate and free the baby's shoulder.
Nurse Oliveras seemed confused over how to execute
these maneuvers. After she attempted to put Ms. Sánchez in
the McRoberts position, Dr. Rosario told her in an urgent tone
that she was performing the maneuver incorrectly and directed
her to do it the right way. Then, after being told to apply
suprapubic pressure, Nurse Oliveras repeatedly asked "How, how
do I do this?"
At this point, Dr. Rosario sought outside help. He
left the room for a minute or so and returned with another
doctor. The other doctor applied suprapubic pressure, and
soon after baby Natalie was delivered. It later became
apparent that as a result of the traumatic delivery, Natalie
had suffered an injury to her "brachial plexus" -- a net of
nerves connecting the spinal cord with the arm; due to the
injury, she is unable to lift her left arm past 30 degrees.
The specific cause of the injury, crediting plaintiffs'
evidence, was probably excessive traction by Dr. Rosario
2 This condition is termed "shoulder dystocia."
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during delivery, i.e., excessive pulling that overly strained
the nerves near the baby's neck.
On May 18, 1995, plaintiffs brought suit against
Drs. Rosario, Román, Roure, and Santiago of the Centro Gineco-
Obstétrico. The crux of the claim was that the doctors were
negligent in providing care to Ms. Sánchez by failing to
advise her that, due to her having diabetes, she bore a high
risk of a complicated natural childbirth, and that a Caesarian
section was the safer alternative.
Subsequently, plaintiffs amended their complaint to
include Ashford as a defendant. Plaintiffs claimed that
Ashford was negligent in failing to provide qualified nursing
staff during the delivery, as evidenced by Nurse Oliveras's
confusion over how to perform the maneuvers ordered by Dr.
Rosario. As developed at trial, plaintiffs' theory was that
because of Nurse Oliveras's confusion, Dr. Rosario was forced
to seek outside help, using up precious time. (After a doctor
sees the turtle sign, he or she has less than ten minutes to
deliver the baby; any longer risks brain damage or death by
suffocation.) Due to the resulting time pressure, plaintiffs
claimed, Dr. Rosario hurried the remainder of the delivery
and, in his rush, applied the excessive traction that caused
Natalie's injury.
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On September 28, 1998, plaintiffs settled with the
physician defendants for $400,000. The physicians remained
parties in the case, however, as the subjects of a cross-claim
by Ashford. After trial, by way of a special verdict form,
the jury found both Ashford and the physicians negligent,
attributing half the liability for Natalie's injury to Ashford
and half to the physicians. The jury assessed plaintiffs'
total damages to be $400,000; Ashford's resulting liability
was $200,000.
Subsequently Ashford moved to set aside the verdict
for insufficient evidence. The trial judge granted the
motion, finding there was no evidence that Ashford's nurses
were undertrained, nor evidence that the nurses in any way
contributed to Natalie's injury. See Ponce v. Ashford
Presbyterian Community Hosp., 189 F.R.D. 31 (D. P.R. 1999).
Plaintiffs now appeal.
II.
Plaintiffs' appeal is essentially three-pronged.
They argue: first, that there was sufficient evidence to
support the jury's finding that Ashford was negligent; second,
that there was not sufficient evidence to support the jury's
finding that the physicians were negligent; and third, that
the trial judge committed various errors that led the jury to
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underestimate plaintiffs' damages.3 They ask this court to
reverse the trial court's decision to vacate the verdict
against Ashford, to enter judgment as a matter of law on
Ashford's cross-claim against the physicians, and to remand
for a partial new trial limited to the question of damages.
The third prong of plaintiffs' appeal is crucial to
their case. Even if plaintiffs were correct that there was
sufficient evidence to find Ashford negligent but insufficient
evidence to find the physicians negligent -- leaving Ashford
100% liable for plaintiffs' damages -- plaintiffs' victory
would be a hollow one. The resulting award against Ashford
would be $400,000; yet plaintiffs have already recovered
precisely this amount in settlement from the physicians.
Since Puerto Rico (like most jurisdictions) prohibits double
recovery in this context, plaintiffs would net exactly zero.
Villarini-Garcia v. Hospital Del Maestro, 112 F.3d 5, 7 (1st
Cir. 1997). Thus, in order to prevail, plaintiffs must show
that the jury was erroneously led to underestimate damages, so
as to reopen the possibility of winning an award on remand
exceeding their settlement.1
3 Other arguments raised by plaintiffs we ignore because
they were premised on the case being remanded.
1 Ashford timely raised the double recovery issue at trial,
although the district court did not address it in its written
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We see no prejudicial error underlying the jury's
damages assessment, however. Plaintiffs allege three such
errors, which we address seriatim. First, they take issue
with the following jury instruction:
Ashford may not be found liable for any damages
which may have been caused by the negligent acts or
omissions of the treating physicians. Plaintiffs
may only recover damages against Ashford if they
establish . . . that the injury suffered by baby
Natalie Alicea Sánchez was proximately caused by
Ashford's negligent acts or omissions.
Plaintiffs argue that the instruction misled the jury to
believe that it was supposed to assess only that portion of
plaintiffs' damages attributable to Ashford, rather than
plaintiffs' total damages; had the jury properly understood
the latter as its task, it would have reached a figure of
$800,000, rather than fifty percent of that.
However, plaintiffs did not object to the
instruction on this ground at trial; to the contrary,
plaintiffs suggested the very language used in the instruction
and agreed that the instruction "should be clear that Ashford
is liable for its own negligence exclusively." Having waived
the claim, Ashford is entitled to review only for plain error,
opinion. Ashford also properly preserved the double recovery
issue on appeal.
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Drohan v. Vaughn, 176 F.3d 17, 21 (1st Cir. 1999), and we find
none.
The gist of the instruction was simply that Ashford
could not be held vicariously liable for the acts of the
defendant physicians. Unlike in the case plaintiffs rely on,
Murray v. Ross-Dove Co., 72 F.3d 1 (1st Cir. 1995), the
instruction here did not specifically state -- or even suggest
-- that in measuring damages (as opposed to determining
liability) the jury was to consider only damages attributable
to Ashford. Cf. id. at 2. Moreover, the special verdict form
-- which most immediately guided the jury's deliberations --
gave no indication that the jury was to apportion damages on
its own. The form did ask the jury to apportion liability as
between the defendants; but as to damages, the form simply
asked the jury to determine "what amount of damages"
plaintiffs had suffered, without limiting the question to
those damages attributable to Ashford.2 We thus see no error
-- plain or otherwise -- in the guidance given the jury on
this point.
2 Plaintiffs did object to the special verdict form, but
only to the portion addressing liability, not the portion
addressing damages. Specifically, plaintiffs objected that
there was insufficient evidence to find the physicians
negligent, so the verdict form should not ask the jury to
apportion liability among the doctors and the hospital.
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Plaintiffs next allege error in a separate
instruction directing that the jury "should consider the
economic realities of Puerto Rico" in calculating Natalie's
lost earning capacity. At trial, the question of what the
basis for that calculation should be was controverted.
Plaintiffs' damages expert based his calculation on national
statistics that did not include data from Puerto Rico, on the
ground that since Natalie was a child, one could not predict
where she would reside in her working adult life. Ashford
argued that this ground was purely speculative and that an
accurate assessment of Natalie's lost earning capacity had to
reflect the dramatic differences in economic prospects between
stateside residents and residents of Puerto Rico. The judge
agreed with Ashford, but declined to strike the expert's
testimony, as requested by Ashford; instead, as a curative
instruction, the judge told the jury to consider, in its
assessment of lost earning capacity, Puerto Rico's particular
economic circumstances -- its unemployment rate, the
participation of women in its work force, and so on.
Plaintiffs did object to this instruction at trial,
so we review de novo to determine if the instruction misled
the jury with respect to applicable law. Tatro v. Kervin, 41
F.3d 9, 14 (1st Cir. 1994). The instruction was not
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misleading. While Puerto Rico has not ruled specifically on
whether a minor's lost earning potential is to be assessed
according to local economic statistics, it has ruled generally
that such assessment is to rest on the most concrete,
individualized data available; unbounded speculation is
frowned upon. Ruiz Santiago v. Puerto Rico, 116 P.R. Offic.
Trans. 376, 393-94 (P.R. 1985). The judge's instruction
aligned with this dictate; the instruction properly directed
the jury to look to the economic data most specifically
applicable to the case.3 Importantly, this directive was a
soft one: the judge did not instruct the jury that it had to
rely exclusively on Puerto Rico data, or that it was forbidden
from relying in any way on the national data provided by
plaintiffs' expert; he merely instructed the jury that it
"should consider" local economic conditions. So benign an
instruction leaves plaintiffs little ground for complaint.
Finally, plaintiffs allege prejudicial error in the
accidental submission of two exhibits to the jury. The
exhibits consisted of an extrajudicial claim letter sent by
3 There was no specific evidence to suggest that Natalie
would spend her working life somewhere else than Puerto Rico.
Natalie and her family did move to Massachusetts for a period
around 1995; but the stay was for the purpose of obtaining
better medical treatment for Natalie. After Natalie's treatment
concluded, the family returned to Puerto Rico where they
currently reside.
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Ms. Sánchez to Dr. Rosario a year after Natalie's delivery and
a reply letter sent by Dr. Rosario's counsel. The letters
were marked as exhibits for the purpose of adjudicating a
statute of limitations issue. However, the judge specifically
directed the court clerk not to submit the letters to the
jury, in accordance with the court's prior ruling under
Federal Rule of Evidence 408 that the jury should not be made
aware that plaintiffs had already settled a claim against the
physicians. Notwithstanding, the court clerk by her own
admission accidentally sent the letters to the deliberation
room along with all other trial exhibits.
Obviously, sending the two letters to the jury room
was a mistake; but we do not think it rose to the level of a
prejudicial error. Ms. Sánchez's claim letter indicated
merely that plaintiffs' first move in this dispute was to seek
compensation from Dr. Rosario, whom, the letter said, was
entirely responsible for the injury; in response, the letter
from Dr. Rosario's counsel vehemently denied liability, urged
Ms. Sánchez to drop her claim, and threatened countersuit if
she did not. Taken together, the letters gave no indication
that the two parties ever arrived at a settlement; indeed, it
is not even clear from the letters whether plaintiffs
proceeded any further with their claim against Dr. Rosario.
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Thus, while keeping the letters from the jury certainly would
have accorded with the trial court's general ruling not to
allow in evidence of a prior settlement, by themselves the
letters were uninformative on this point. For the letters to
have resulted in prejudice (assuming that the jury actually
viewed them), they would have to have led the jury to
hypothesize that a settlement had occurred, to speculate as to
its amount, and to subtract that amount from plaintiffs'
damages despite not having been instructed to do so. There is
no reason to believe that the jury digressed down this path --
especially given the considerable sum at which the jury
assessed plaintiffs' damages. Cf. Phav v. Trueblood, 915 F.2d
764, 768 (1st Cir. 1990) (considering parsimonious jury award
as one indicator of tainted deliberations).
For these reasons, we find no error in the jury's
computation of damages. Left as it stands, the jury's award
is redundant with plaintiffs' prior settlement and hence
constitutes an impermissible double-recovery. Accordingly, we
affirm the district court's decision to dismiss the case.
So ordered. Each side to bear its own costs.
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