Marcano Rivera v. Turabo Medical Center Partnership

United States Court of Appeals
For the First Circuit

No. 04-2494

MARÍA YOLANDA MARCANO RIVERA; JORGE RODRÍGUEZ MATOS;
FABIOLA RODRÍGUEZ MARCANO,

Plaintiffs, Appellees,

v.

TURABO MEDICAL CENTER PARTNERSHIP d/b/a
HOSPITAL INTERAMERICANO DE MEDECINA AVANZADA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Lynch, Lipez, and Howard, Circuit Judges.

Orlando H. Martínez-Echeverría, with whom Fernando E. Agrait
was on brief, for appellant.
Jorge M. Suro Ballester, with whom Carlos A. Ruiz was on
brief, for appellees.

July 15, 2005
 LIPEZ, Circuit Judge. Defendant Hospital Interamericano

de Medicina Avanzada ("HIMA") appeals from a jury verdict finding

that it was negligent in monitoring the birth of Fabiola Rodríguez

Marcano and that its negligence caused Fabiola severe and permanent

neurological damage. HIMA argues that there was insufficient

evidence to establish its liability and that the evidence showed

instead that Dr. Pedro Roldán Millan ("Dr. Roldán"), the non-

employee obstetrician who delivered Fabiola, was solely responsible

for Fabiola's injuries. HIMA further claims that the district

court erred in allowing testimony by one of the plaintiffs' experts

and in not remitting the damages award or awarding a new trial on

apportionment of liability. We affirm.

I.

A. Factual background

We take the facts from the trial record, reciting them in

the light most favorable to the verdict. See Grajales-Romero v.

Am. Airlines, 194 F.3d 288, 292 (1st Cir. 1999).

On the morning of September 14, 2000, plaintiff María

Marcano Rivera ("Marcano") was admitted to HIMA, a hospital in

Caguas, Puerto Rico, pursuant to her obstetrician's decision to

induce labor. The obstetrician, Dr. Roldán, was not an employee of

HIMA but had privileges there.

At 10 a.m., HIMA nurses attached Marcano to a fetal

monitor, which monitors both the fetus's heart rate and the

-2-
mother's uterine contractions. A fetal monitor provides a digital

display of the fetal heart rate and prints out a paper record,

known as a tracing, of the heart rate and the contractions. HIMA

protocol dictates that nurses check the fetal monitor and record

the fetal heart rate every 15 minutes during high-risk deliveries,

including induced labor. HIMA protocol also provides that the

nurse monitoring the delivery is responsible for notifying the

physician of any abnormal fetal heart rate or uterine contraction

findings.

At 11:45 a.m., Dr. Roldán induced labor by simultaneously

administering Oxytocin through an intravenous drip and inserting in

Marcano's vagina a 100 mcg tablet of Cytotec from his personal

supply. Dr. Roldán's simultaneous administration of the two drugs

was contrary to HIMA protocol and medical standards established by

the American College of Obstetricians and Gynecologists ("ACOG").

Both Oxytocin and Cytotec stimulate uterine contractions; together

they have a multiplier effect and can produce contractions that are

too intense or too close together, thereby decreasing the flow of

oxygen to the fetus. ACOG thus recommends a four-hour waiting

period between administering Oxytocin and Cytotec. Moreover, the

recommended dose of Cytotec -- when taken alone -- is only 25 mcg.

The higher 100 mcg dose administered by Dr. Roldán also risks

producing contractions which are too intense or too close together.

-3-
 Shortly after Dr. Roldán administered the drugs, he left

Marcano's room. Marcano soon began to feel intense contractions.

Although she rang the nurse call button repeatedly, the nurse

monitoring the delivery, Brenda Marrero, did not respond.

When Marcano's husband, Jorge Rodríguez Matos

("Rodríguez"), joined her at approximately 2:30 p.m., he found her

in a desperate state because of frequent contractions. She told

him that the contractions were not like the ones she experienced

with the delivery of her first child and that she could not stand

the pain. Rodríguez went to the nurses' station and asked them to

summon Dr. Roldán. At approximately 2:45, Dr. Roldán returned to

Marcano's room and administered Demerol, a pain killer. He

remained in the room throughout the rest of the delivery.

Oddly, the tracing from the fetal heart rate monitor is

missing for the period between 10 a.m. and 3:27 p.m., meaning there

is no way to evaluate the fetus's heart rate and oxygen supply

while Marcano was alone in her hospital room.1 The tracing between

1
The record does include a form that purports to be Nurse
Marrero's recording of the fetal heart rate every 30 minutes based
on the monitor's digital display. However, the plaintiffs' expert
questioned the accuracy of the entries on the form, testifying at
trial that
the frequency of the registered fetal heart rates was
inadequate because it was every 30 minutes [instead of
every 15 minutes as dictated by HIMA protocol], but the
fetal heart rates which are registered in this form . . .
are totally out of context with regards not only to the
part of the fetal heart rate tracing which we did get an
opportunity to evaluate, but [also] of the catastrophic
condition of the baby when she was born. This is like

-4-
3:27 p.m. and 3:45 p.m. appears normal, but that reading does not

preclude the possibility that the fetus was deprived of oxygen

during the period for which the tracing is missing. Between 3:45

p.m. and 5 p.m., the tracing reveals a continuing pattern of

contractions that were too intense and too close together,

accompanied by a low fetal heart rate. These factors suggest that

the fetus was not receiving sufficient oxygen. The tracing ends at

approximately 5 p.m., when Marcano was transferred to the delivery

room and the monitor was disconnected.

Baby Fabiola was born at 6:19 p.m. She was taken

immediately to the neonatal intensive care unit, where she was

diagnosed with neonatal asphyxia and seizures secondary to neonatal

asphyxia, and where she spent approximately two weeks before being

discharged to her parents. Marcano and Rodríguez did not learn

until four months later that Fabiola had permanent neurological

damage as a result of neonatal asphyxia. Fabiola continues to

suffer from daily seizures, and her prognosis is grim. Although

she has an anticipated life span of 45 years, she will never see,

walk, or communicate, and will require a caregiver for the rest of

her life.

another patient, another labor and delivery. This
registers perfectly normal fetal heart tones . . . [that]
are totally out of context with the clinical picture.

-5-
B. Procedural history

On January 16, 2002, the plaintiffs sued Dr. Roldán and

HIMA2 in federal district court for medical malpractice resulting

in severe neurological damage to Fabiola. Early in the litigation,

the plaintiffs reached a settlement with Dr. Roldán, who is no

longer in practice. Their malpractice claims against HIMA

proceeded to trial in October 2003, principally on the theory that

HIMA employees failed to adequately monitor the labor and

childbirth process and that HIMA's failure contributed to Fabiola's

injuries.3 Specifically, the plaintiffs suggested that the

neurological damage occurred during the period for which the

tracing is missing, and that regular monitoring would have alerted

Dr. Roldán to Fabiola's distress in enough time to avert permanent

damage.

Following a five-day trial, the jury returned a verdict

in favor of the plaintiffs. The jury found that both HIMA and Dr.

Roldán had been negligent and that their negligence was the

proximate cause of the plaintiffs' damages. It awarded

$5.5 million in damages, apportioning 47% of the liability to HIMA

and 53% of the liability to Dr. Roldán. Accordingly, the court

2
HIMA is also known as Centro Médico del Turabo, Inc.
3
Because Dr. Roldán was not an employee of HIMA, the hospital
is not vicariously liable for his negligence during the delivery
process. Its liability is limited to the acts and omissions of its
own employees –- here, the nursing staff.

-6-
entered judgment against HIMA for $2.585 million (i.e., 47% of $5.5

million). The court subsequently denied HIMA's post-verdict motion

for judgment as a matter of law, a new trial on apportionment of

liability, or remittitur.

II.

HIMA raises several arguments on appeal. First, it

asserts that the district court erred in denying its motion for

judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50. Second, it assigns error to the district court's

decision to admit testimony by one of the plaintiffs' expert

witnesses. Finally, HIMA contends that the district court abused

its discretion in failing to grant its motion for a new trial or

remittitur under Federal Rule of Civil Procedure 59. We consider

these claims in turn.

A. Motion for Judgment as a Matter of Law

While conceding that Fabiola suffered permanent

neurological damage during birth, HIMA argues that the evidence at

trial was insufficient to allow a reasonable jury to conclude that

the damage was causally linked to negligent monitoring. The

district court rejected this argument in denying a post-verdict

motion for judgment as a matter of law, concluding that

there was ample evidence presented to the jury, which if
believed, could sustain a finding that HIMA was indeed
negligent in monitoring plaintiff's labor and that said
negligence proximately caused the alleged injuries. . . .
[T]he jury heard evidence that the monitoring was done
every thirty minutes as opposed to every 15 minutes, as

-7-
 was standard in induced labors. Most importantly, the
jury was allowed to make reasonable inferences from the
fact that a significant portion of the tracing of the
fetal heart rate and uterine contractions monitoring
machine was missing, and HIMA was unable to give any
explanation therefor.

A party seeking to overturn a jury verdict faces an

uphill battle. "Courts may only grant a judgment contravening a

jury's determination when the evidence points so strongly and

overwhelmingly in favor of the moving party that no reasonable jury

could have returned a verdict adverse to that party." Rivera

Castillo v. AutoKirey, Inc., 379 F.3d 4, 9 (1st Cir. 2004)

(internal quotation marks omitted). We review de novo the district

court's denial of a motion for judgment as a matter of law, viewing

the evidence in the light most favorable to the nonmoving party.

Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004).

The substantive law of Puerto Rico governs this diversity

suit. See Rojas-Ithier v. Sociedad Española de Auxilio Mutuo y

Beneficiencia de P.R., 394 F.3d 40, 43 (1st Cir. 2005). To prevail

on a medical malpractice claim under Puerto Rico law, "a party must

establish (1) the duty owed; (2) an act or omission transgressing

that duty; and (3) a sufficient causal nexus between the breach and

the harm." Id. HIMA cites deficiencies in the plaintiffs’

evidence as to both the first and third prongs of this test.

-8-
 1. Duty

Puerto Rico courts have explained the standard of care

owed to patients as "[t]hat [level of care] which, recognizing the

modern means of communication and education, . . . meets the

professional requirements generally acknowledged by the medical

profession." Lama v. Borras, 16 F.3d 473, 478 (1st Cir. 1994)

(quoting Oliveros v. Abreu, 101 P.R. Dec. 209, 226 (1973)). The

standard is a national one, and ordinarily must be demonstrated

through expert testimony. Id.

Here, the plaintiffs’ expert, Dr. Jose Juan Gorrín

Peralta (“Dr. Gorrín”), explained that the standard of care

requires monitoring high-risk deliveries, including induced labor,

every 15 minutes. Monitoring includes evaluating both the fetal

heart rate and uterine contraction information provided by the

fetal monitor’s paper tracings and the fetal heart rate information

provided by the fetal monitor’s digital display. Monitoring is a

shared responsibility of the doctor and the nurse; when the doctor

is not present, the nurse is in charge of the monitoring. Dr.

Gorrín’s testimony on this point was corroborated by HIMA's expert,

Dr. José Vargas Cordero, who testified that when the doctor is not

present, the nurse is in charge of checking both the tracing and

the digital monitor, and that if the nurse notices an abnormal

reading, she must call the doctor.

-9-
 There was sufficient evidence for the jury to find that

HIMA failed to monitor Marcano's labor in accordance with the

national standard of care. It is undisputed that Nurse Marrero

checked the fetal monitor’s digital heart rate display at most

every 30 minutes, instead of every 15 minutes as Dr. Gorrín

testified was standard. Indeed, the jury may have concluded that

Nurse Marrero did not even check the fetal heart rate monitor every

30 minutes. Dr. Gorrín testified that the fetal heart rates

recorded by Marrero “are totally out of context not only to the

part of the fetal heart rate tracing which we did get an

opportunity to evaluate, but of the catastrophic condition of the

baby when she was born," implying that Marrero may have falsified

the record. Moreover, Marcano testified that she was alone in the

hospital room between 11:45 a.m. and 2:30 p.m. –- a period of

nearly three hours –- and that nurses failed to respond when she

repeatedly attempted to summon them during that time. Based on

this testimony, the jury could reasonably have concluded that

Marrero failed to adequately monitor the labor.

2. Causation

To establish causation under Puerto Rico law, "[a]

plaintiff must prove, by a preponderance of the evidence, that the

physician’s negligent conduct was the factor that ‘most probably’

caused harm to the plaintiff." Lama, 16 F.3d at 478 (quoting

Sierra Perez v. United States, 779 F. Supp. 637, 643 (D.P.R.

-10-
1991)). While this causation standard does not require all other

causes of damage to be eliminated, "a jury normally cannot find

causation based on mere speculation and conjecture; expert

testimony is generally essential." Id.; see also Rojas-Ithier, 394

F.3d at 43 ("[A] factfinder normally cannot find causation without

the assistance of expert testimony to clarify complex medical and

scientific issues that are more prevalent in medical malpractice

cases than in standard negligence cases.").

HIMA argues that there was insufficient evidence for a

reasonable jury to find that its negligent monitoring was "most

probably" the factor that caused Fabiola to be injured during her

delivery. It contends that the evidence demonstrated instead that

Fabiola's injuries were mostly likely the result of Dr. Roldán's

negligence.

The issue of causation is complicated in this case by the

disappearance of the fetal monitor tracing for the period between

10 a.m. and 3:27 p.m. Experts for both parties agree that

Fabiola's heart rate was in the normal range for a short time after

3:27, when the tracing begins, and that it dropped perilously low

at approximately 5 p.m., shortly before the tracing ends. The

experts also agree that the low heart rate reading at 5 p.m.

indicates that Fabiola was in distress and that Dr. Roldán, who was

present at the time, should have taken steps immediately to

ameliorate the situation. Such steps would have included turning

-11-
off the Oxytocin drip to reduce the strength and frequency of

contractions, turning Marcano on her side to increase the flow of

oxygen to the fetus, administering oxygen to Marcano, and, if those

measures failed, performing a cesarean section. It is undisputed

that Dr. Roldán took none of these steps; by the time Fabiola was

born at 6:19 p.m., she was suffering from neonatal asphyxia.

HIMA's medical experts testified that because the fetal

monitor indicated a normal heart rate at 3:27 p.m. and an ominously

low heart rate at 5 p.m., Fabiola’s injuries must have occurred

sometime between 3:27 p.m. and 6:19 p.m. Emphasizing that Dr.

Roldán was present throughout that period and failed to act, HIMA

argues that Fabiola's injuries are directly attributable to the

doctor's failure to intervene and that any failure of monitoring

before 3:27 p.m. did not cause the asphyxia. HIMA further contends

that without the tracing for the period before 3:27 p.m., any

conclusion that the injury occurred during that period would be

based on impermissible speculation.

HIMA is correct that, without the missing tracing, it is

impossible to know with certainty whether the fetus was in distress

before 3:27 p.m. –- or, more particularly, between 11:45 a.m., when

Dr. Roldán induced the labor and left a nurse in charge of the

monitoring, and 2:45 p.m., when Dr. Roldán returned to Marcano's

bedside to supervise the delivery. It does not follow, however,

that no reasonable jury could find that negligent monitoring during

-12-
that period most probably caused or contributed to Fabiola’s

injuries. Although HIMA's experts testified that the normal fetal

heart rate at 3:27 p.m. indicated a smooth process up to that

point, the plaintiffs' expert, Dr. Gorrín, took a different

position. He testified that a normal fetal heart rate at 3:27 p.m.

does not rule out the possibility that the fetus was in distress

earlier:

The baby could have had an hypoxic episode producing
asphyxia, and mother nature will try to preserve life,
and the baby's heart will not necessarily stay at [the
below-normal rate of] 60 beats per minute or the baby
might not even die if he was severely asphyxiated during
a window of time when he or she was subjected not to one,
but to two medications, one of which at a very excessive
dose and another one at a dose we'll never know about,
without monitoring. I cannot say just because there was
an 18-minute window [between 3:27 p.m. and 3:45 p.m.]
with an adequate baseline fetal heart rate that nothing
else happened before [the beginning of the tracing at
3:27 p.m.].

Dr. Gorrín’s testimony that the fetus may have been

deprived of oxygen between 11:45 a.m. and 3:27 p.m. is consistent

with the evidence presented about the effects of Oxytocin and

Cytotec, the drugs Dr. Roldán used to induce labor. Experts for

both parties testified that it is contraindicated to administer

Oxytocin and Cytotec simultaneously because, in the words of Dr.

Gorrín,

the synergistic effect of one drug, which acts to produce
uterine contractions on top of another, which also acts
to produce uterine contractions, will cause something
like adding two plus two and getting five instead of
four. . . One thing works with the other, and the lump
effect is a lot more than just the sum of each one.

-13-
The experts also testified that contractions that are too intense

or too frequent can deprive the fetus of oxygen and lead to a

depressed heart rate. Shockingly, Dr. Roldán administered both

Oxytocin and Cytotec simultaneously, and he administered four times

the appropriate dose of Cytotec.

According to Marcano's testimony, the intense

contractions began almost immediately after Dr. Roldán administered

the drugs at 11:45 a.m., and continued until at least 2:45 p.m.,

when her husband summoned Dr. Roldán to return to the room. That

timing is consistent with Dr. Gorrín's testimony that Oxytocin

would exert its effect within ten minutes of being administered and

that Cytotec, if placed in the vagina as it was here, would also

exert its effect in a short while. That timing is also consistent

with ACOG’s recommendation that doctors wait four hours between

administering Oxytocin and Cytotec; the waiting period suggests

that either drug exerts its strongest effects in the hours

immediately after it is administered. A reasonable jury could

therefore have concluded that Marcano suffered the most intense and

frequent contractions beginning shortly after 11:45 a.m., that the

missing tracing would reveal that Fabiola was deprived of oxygen

during this period, and that negligent monitoring between 11:45

a.m. and Dr. Roldán's return at 2:45 p.m. caused or contributed to

Fabiola's injuries. Although HIMA's experts testified that the

damage occurred later, such contradictory expert testimony "does

-14-
nothing to vitiate the sufficiency of the plaintiff’s proof."

Muñiz v. Rovira, 373 F.3d 1, 5 (1st Cir. 2004).

The plaintiffs introduced sufficient evidence to support

a finding that negligent monitoring on the part of HIMA caused

Fabiola's injuries. The district court therefore did not err in

denying HIMA’s Rule 50 motion for judgment as a matter of law.

B. Admission of Expert Testimony

The plaintiffs offered testimony at trial by life-care

planner Frank Woodrich regarding the projected cost of Fabiola's

future care. HIMA objected to Woodrich's testimony, both through

a motion in limine and at trial, arguing that Woodrich's

methodology, the foundation for his testimony, was not reliable.

The court denied the motion in limine without explanation. In

response to the renewed objection at the outset of Woodrich's

testimony, the court allowed HIMA to conduct a brief voir dire of

Woodrich. After a series of questions focusing on Woodrich's

failure to have a physician review his projections regarding

Fabiola's future medical needs, HIMA moved again to strike Woodrich

as an expert. The district court overruled the motion, commenting

that "what you're doing is going to the weight, not to the

expertise." HIMA argues that the district court’s ruling was

erroneous.

The admission of expert testimony is governed by Federal

Rule of Evidence 702, which requires that "(1) the testimony is

-15-
based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the

case." Rule 702 "imposes a gate-keeping function on the trial

judge to ensure that an expert's testimony 'both rests on a

reliable foundation and is relevant to the task at hand.'" United

States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (quoting Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). We review

the district court's decision to admit expert testimony for abuse

of discretion. Id.

The district court considered Woodrich's professional

credentials and ascertained that he had been admitted as an expert

on rehabilitation and life-care planning in numerous state and

federal courts before accepting him as an expert in this case.

Woodrich also testified that his proposed care plan for Fabiola was

based on a review of records from the agency providing her with

skilled nursing care, a letter from her physician, and an interview

of Fabiola's family and caregiver. Although Woodrich's report

might have benefitted from a physician's review of the projections

regarding Fabiola's future needs, the court did not abuse its

discretion in determining that Woodrich's methodology was

sufficiently reliable for admissibility.

-16-
C. Motion for a New Trial or Remittitur

Finally, HIMA claims that the district court erred in

denying its motion for new trial or remittitur under Federal Rule

of Civil Procedure 59. "A district court should only grant such

motions if the outcome is against the clear weight of the evidence

such that upholding the verdict will result in a miscarriage of

justice." Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 375

(1st Cir. 2004) (internal quotation marks omitted). Our review is

for an abuse of discretion. Id.

1. Apportionment of Liability

HIMA contends that even if its negligent monitoring

played a role in Fabiola’s injuries, its negligence was far

outweighed by Dr. Roldán’s negligence in inducing and handling the

labor. As such, HIMA maintains, there was insufficient evidence to

support a jury finding that it was liable for 47% of the damage and

it is entitled to a new trial on apportionment of liability. The

district court rejected this argument, ruling that "the plaintiff's

expert witness and several documents admitted into evidence"

supported a finding that HIMA's negligence caused 47% of the

plaintiffs' damages. We agree.

In a repeat of their argument that there was insufficient

evidence that the hospital caused or contributed to Fabiola's

injuries, HIMA argues that without the missing tracing, any

evidence that Fabiola was deprived of oxygen while the nurse was

-17-
responsible for monitoring in Dr. Roldán's absence (i.e., between

11:45 a.m. and 2:45 p.m.) is impermissible speculation. That

reasoning would have the effect of punishing the plaintiffs for

HIMA's failure to produce the tracing, and we reject it again.

Although there is no way to know for certain what happened between

11:45 a.m. and 2:45 p.m. without the tracing, the circumstantial

evidence, together with Dr. Gorrín's expert testimony, would allow

a reasonable jury to find that Marcano's strong contractions

between 11:45 a.m. and 2:45 p.m. deprived Fabiola of oxygen and

that HIMA's negligent monitoring during that period deprived Dr.

Roldán of an opportunity to intervene before Fabiola suffered

permanent damage. While Dr. Roldán was unquestionably negligent as

well, the 47-53 apportionment of liability was not contrary to the

clear weight of the evidence.

2. Excessiveness

Under the Supreme Court's holding in Gasperini v. Center

for Humanities, Inc., 518 U.S. 415 (1996), federal courts sitting

in diversity must apply state substantive law standards in

reviewing jury awards if the state law departs from the federal

standards for judging excessiveness. See id. at 431 ("Erie [R.R.

Co. v. Tompkins, 304 U.S. 64 (1938),] precludes a recovery in

federal court significantly larger than the recovery that would

have been tolerated in state court."). Emphasizing that the Puerto

Rico Supreme Court has reduced damages awards to victims of medical

-18-
malpractice to conform to its own precedent, HIMA maintains that

the district court was obligated under Gasperini to reduce the

plaintiffs' award to conform with Puerto Rico precedent. The

district court rejected this argument in a post-verdict ruling.

We have previously rejected the argument that Gasperini

requires federal district courts to review damages awards for

consistency with awards approved by the Supreme Court of Puerto

Rico in similar cases. As we have explained, Gasperini would

control if state law departed from the ordinary practice of

reviewing awards under the federal standards for judging

excessiveness, but Puerto Rico law "suggests no such departure."

Grajales-Romero, 194 F.3d at 300 (internal quotation marks

omitted); see also Mejias Quiros v. Maxxam Prop. Corp., 108 F.3d

425, 427 n.1 (1st Cir. 1997) (same); cf. Stewart v. Tupperware

Corp., 356 F.3d 335, 339 (1st Cir. 2004) (applying Grajales-Romero

to the amount-in-controversy determination for purposes of

diversity jurisdiction).

Emphasizing that none of the cases in which we have

rejected Gasperini arguments involved medical malpractice claims,

HIMA asserts that Gasperini requires a remittitur of damages here

despite our extant case law. HIMA's argument is based primarily

on Nieves Cruz v. Universidad de Puerto Rico, 151 P.R. Dec. 150

(2000), a case in which the Puerto Rico Supreme Court remitted a

$3.9 million award to a minor plaintiff who, like Fabiola, suffered

-19-
from severe hypoxia during childbirth. In reducing the original

judgment by approximately 50%, the Puerto Rico Supreme Court

explained that it was "[f]ollowing the parameters of . . .

precedent." Id. (certified translation). The precedent on which

the Nieves court relied was Riley v. Rodríguez de Pacheco, 119 P.R.

Dec. 762 (1987), in which the court reduced a damages award in a

medical malpractice case because "[w]ithout certain reasonable

limits, the compensation would cease to have the characteristic of

compensation [and would] become punitive" (quoted in Nieves, 151

P.R. Dec. 150 (certified translation)). HIMA contends that Nieves

reflects a Puerto Rico standard for reviewing damages awards in

medical malpractice cases that differs from the federal standard of

reviewing to determine whether an award is "grossly excessive," and

that Gasperini requires us to adopt the Puerto Rico standard in

this case.

We view this issue as a close one. As HIMA emphasizes,

the Puerto Rico Supreme Court has remitted a damages award in at

least two medical malpractice cases to conform with the Riley

precedent. See Nieves, 151 P.R. Dec. 150; Blás Toledo v. Hospital

Nuestra Señora de la Guadalupe, 146 P.R. Dec. 267 (1998). On the

other hand, the Supreme Court of Puerto Rico has indicated that it

"will not intervene in the decision on the estimation of damages

issued by the lower courts, unless the amounts granted are

ridiculously low or exaggeratedly high." Nieves, 151 P.R. Dec. 150

-20-
(certified translation). Puerto Rico's "exaggeratedly high"

standard echoes the federal "grossly excessive" standard. That

consonance distinguishes this case from Gasperini, which involved

a New York law that empowered state courts to reduce any damages

award that "deviates materially from what would be reasonable

compensation." 518 U.S. at 418. The Supreme Court emphasized that

New York's "deviates materially" rule entailed "[m]ore rigorous

comparative evaluations" than the federal standard and that it had

a "manifestly substantive" objective. Id. at 429. Unlike New

York's "deviates materially" standard, the Puerto Rico Supreme

Court's standard has been expressed in terms similar to the federal

standard.

In the end, therefore, we are unable to conclude that the

remittiturs in Blás-Toledo and Nieves mean that the Puerto Rico

Supreme Court has adopted a more rigorous standard of review for

medical malpractice damages that is tantamount to a substantive

rule of law that must be applied in diversity cases. That is, we

cannot say, on the basis of the available precedents, that Puerto

Rico case law suggests a "departure from [the] ordinary practice of

reviewing awards under the federal standards for judging

excessiveness." Grajales-Romero, 194 F.3d at 300 (internal

quotation marks omitted) (alteration in original). In the absence

of such a departure, Gasperini controls. See id.

-21-
 Therefore, the district court did not abuse its

discretion in rejecting HIMA's claim that the damages awarded to

the plaintiffs were excessive. "[A] party seeking remittitur bears

a heavy burden of showing that an award is grossly excessive,

inordinate, shocking to the conscience of the court, or so high

that it would be a denial of justice to permit it to stand."

Currier v. United Techs. Corp., 393 F.3d 246, 256 (1st Cir. 2004)

(internal quotation marks omitted). As the district court

recognized, the plaintiffs presented ample evidence of the severe

physical and emotional toll that Fabiola's permanent injuries have

inflicted, and will continue to inflict, on both her and her

family. Woodrich testified that Fabiola's life-care plan alone had

a cost of approximately $1.9 million. The plaintiffs also

presented evidence that Fabiola's loss of potential income was

approximately $350,000, and that Fabiola and her parents suffered

severe pain and anguish as a result of her injuries. In light of

this evidence, the jury awarded $4 million to Fabiola, $1 million

to her mother, and $500,000 to her father.4 Moreover, HIMA

4
In summarizing the evidence supporting the $5.5 million
damages award, the court emphasized that

[b]aby Fabiola, who was only three years old at the time
of trial, has a long life expectancy. In fact, Dr.
Woodrich, an expert in rehabilitation counseling and life
care planning, prepared a life care plan for Fabiola
which was submitted to the jury . . . . There was also
testimony from Carlos Rodríguez, an economist, relative
to Fabiola's loss of potential income. The jury also
heard testimony regarding baby Fabiola's grim prognosis;

-22-
conceded at trial that it had "presented no evidence to offset

Fabiola's and her family's damages. We agree that she has suffered

serious damages, both the baby and the family. Our sole issues

with the damages is not to negate [their] existence, but to make

clear that it was Dr. Pedro Roldán, and not HIMA, [who was] the

responsible party." In light of this concession, together with the

evidence offered at trial, an award of $5.5 million (of which HIMA

will pay $2.585 million) does not shock the conscience. See Muñiz,

373 F.3d at 6 (upholding a medical malpractice award of $2 million

to a minor who suffered nerve damage to his arm and shoulder at

birth).

Affirmed.

the fact that she has no chance for a normal development,
the fact that she will require a care giver for the rest
of her life; and the physical pain and anguish that she
endures as a result of her daily physical therapy
sessions. The jury also heard testimony of Haydée
Costas, an expert in psychiatry, who diagnosed Maria
Yolanda Marcano as suffering from a major depression.
The record in this case is replete with evidence of the
pain endured and yet to be endured by both Fabiola and
her parents, as a result of the injuries that she
sustained at childbirth.

-23-