United States Court of Appeals,
Eleventh Circuit.
No. 95-4639.
Jose Abelardo Calmet COUZADO, Jean Denis Boileau, Claude
Woodhull, Salvador Moran Keydel, Leonardo Moran Auyon, Alcides
Diaz, Plaintiffs-Appellees,
Donna Woodhull, Plaintiff-Appellee-Cross-Appellant,
v.
UNITED STATES of America, By and Through its DRUG ENFORCEMENT
ADMINISTRATION OF THE DEPARTMENT OF JUSTICE, Diverse Agents of the
Drug Enforcement Administration of the United States Department of
Justice, currently unknown, Defendants-Crossclaim Defendants-
Appellants-Cross-Appellees,
Belize Air International, Limited, a Florida Corporation, Trans-
International Crew Leasing, Incorporated, a Florida Corporation,
Don Ewing, Director of Operations, Belize Air International,
Limited, in his individual capacity, Belize Air Operation, Limited
on information and belief, a Belize corporation, Defendants,
Paul Martin, Security Chief, Belize Air International, Limited,
in his individual capacity, Defendant-Cross-Claimant.
Feb. 20, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 92-1135-CIV-FAM), Federico A. Moreno,
Judge.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*,
Senior District Judge.
DUBINA, Circuit Judge:
Jose Abelardo Calmet Couzado ("Couzado"), Jean Denis Boileau
("Boileau"), Claude Woodhull ("Woodhull"), Salvador Moran Keydel
("Keydel"), Leonardo Moran Auyon ("Auyon"), and Alcides Diaz
("Diaz"), (hereinafter "the plaintiffs"), filed suit against the
United States ("the government") pursuant to the Federal Tort
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
Claims Act ("FTCA"), 28 U.S.C. §§ 1346 and 2671-2680. Donna
Woodhull ("Donna"), the wife of Captain Claude Woodhull, also
brought an action for loss of consortium based upon the injuries
her husband sustained due to the government's negligence.
Following a non-jury trial, the district court found the government
liable and awarded damages to the plaintiffs. The district court
did not, however, award damages for loss of consortium to Donna.
The government appeals from the district court's judgment and Donna
cross-appeals. For the reasons that follow, we affirm in part,
reverse in part, and remand.
I. BACKGROUND
On April 3, 1991, United States Customs ("Customs") agents
began investigating a drug trafficking scheme involving several
South American countries and the United States. Customs Group
Supervisor Peter G. Girard ("Girard") appointed Special Agent Alan
Childers ("Childers") to investigate the matter. Childers and
Girard met with a Customs special agent in the Miami office and
members of the United States Department of State. During this
meeting in Miami, the United States Embassy in Belize, by
telephone, expressed its desire to ascertain the identity of the
drug smugglers. The Belize Embassy then contacted the Belize
National Police and arranged for a controlled delivery of cocaine
from Belize to Miami using Belize Air Flight 712. The Belize
police planned to load 45 kilograms of cocaine onto the plane bound
for Miami, where Customs would apprehend the recipients of the
drugs.
That same day, Girard attempted to inform the Miami office of
the United States Drug Enforcement Agency ("DEA") of the
arrangement. DEA instructed Girard to contact the DEA office in
Guatemala to inform them of the plan. However, Girard was
unsuccessful in his attempts to contact the DEA in Guatemala.
Girard therefore requested country clearance from the DEA so that
Childers could go to Belize to determine the status of the
controlled shipment. In response to this request, DEA Agent Larry
Holifield ("Holifield") in Guatemala contacted Girard. During this
initial conversation, Girard disclosed Customs' plan for the
controlled delivery to Miami. Soon thereafter, Holifield's
supervisor, Robert Stia ("Stia") denied Girard's request for
country clearance on behalf of Childers. Instead, one day prior to
the controlled delivery, Stia assigned Holifield to Belize to
supervise the investigation.
That evening, a Miami Customs agent notified Girard that the
DEA had activated its own investigation and that Customs, at that
point, was out of the investigation. Girard then contacted
Childers and informed him that Customs was no longer involved in
the investigation. Although Childers knew that Customs was no
longer involved in the controlled delivery, he met with Paul Martin
("Martin"), head of security for Belize Air in Miami. At this
meeting, Martin informed Childers of Flight 712's itinerary.
Martin also informed Childers that dogs might be used to sniff for
drugs on the plane and that these dogs might not be under the
control of the Belize National Police. Childers testified that he
never discussed his conversation with Martin with anyone at the
DEA. Martin testified that Childers never told him that Customs
was out of the investigation and that DEA never contacted him
regarding the controlled delivery.
On April 5, Holifield informed Girard that the shipment of
cocaine had arrived that morning and that DEA agents would place
the cocaine on the Belize flight to Miami the following day.
Holifield also told Girard that the DEA had no agents in Miami to
handle the shipment once it arrived, so Customs would have to
handle the shipment in Miami. Girard informed Holifield that
Customs was out of the operation. Nevertheless, Customs
reluctantly rejoined the operation, and Girard instructed Childers
to coordinate with Holifield. Childers and Holifield spoke one
time that evening and discussed only the arrival time of the
shipment and the cocaine that would be on board. Holifield had no
knowledge that Martin was the head of security for Belize Air or
that he needed to contact Martin regarding the operation. In
short, vital information regarding the logistics of the operation
was not communicated between Customs and the DEA.
On April 6, the Belize National Police, with the cooperation
of the DEA, loaded the plane with 45 kilograms of cocaine. The
plane then departed to San Pedro Sula, Honduras. After Flight 712
left Belize, Childers and Holifield learned that the plane would
stop in Honduras. Nevertheless, neither agency representative
notified the Ambassador in Honduras regarding the sting operation.
No one from the DEA or Customs inquired about the flight manifest
to determine the identity of the crew and possible passengers. In
addition, neither agency informed the flight crew that their plane
was being used for a covert controlled drug delivery.
Upon the plane's arrival in Honduras, drug-sniffing dogs
alerted and that led to a search of the plane and the discovery of
the cocaine. Honduran officials arrested and incarcerated the
flight crew and the passengers of the flight. Thus began the
plaintiffs' nightmare.
Woodhull, Captain of Flight 712, testified regarding his
incarceration in the Honduran jail. R. 11-III-146-186. Woodhull
stated that the plane carried cargo from Miami to Belize. When the
plane arrived in Belize, Woodhull asked if any cargo was being
loaded and was told that cargo was being unloaded only. Woodhull
did not see any cargo placed on the airplane. When the plane
landed in Honduras, Woodhull proceeded to the crew lounge while
Couzado, the flight engineer, did the "post flight." Id. at 150.
About fifteen minutes after Woodhull entered the lounge, Couzado
ran in and told him that the authorities had found "coke" on the
plane. Id. Woodhull ran back to the plane and noticed two
cardboard boxes. One of the boxes was open and he saw "packages of
something wrapped in plastic." Id. at 151. Woodhull called Frank
Fine ("Fine"), President of Belize Air, to inform him of the
situation. Woodhull then called the station manager for Belize
Air. The Honduran authorities interrupted Woodhull's phone calls
and insisted that he leave with them.
After Woodhull rejoined his crew and the passengers, the
authorities took them all to a hangar, where they remained for four
or five hours under armed guard. The hangar had no toilet
facilities, no air conditioning, and no water. Honduran
authorities then transported the plaintiffs to the Department of
Investigation National ("DIN"), where they were fingerprinted and
"run up on the roof." Id. at 158. Woodhull explained that the
roof was an open area located on top of the building that had a tin
covered portion and some plywood rooms. Toilet facilities had
existed there at some time, but were no longer operational. There
were no beds or other furniture. Woodhull noticed rats and
numerous roaches in the area. Woodhull testified that the group
spent approximately five days on the roof.
When the plaintiffs arrived at the DIN, the guards did not
give them anything to eat or drink. Woodhull requested that the
Honduran authorities contact the United States Embassy, but his
requests were denied. The guards pushed one of the passengers,
Auyon, an elderly man, and shoved Woodhull when he tried to
intervene. In Woodhull's presence, one of the guards violently
beat an incarcerated Honduran. One night, while Woodhull was
sleeping on a board outside, a guard woke him by kicking him in the
back and chest. The guard handcuffed Woodhull, placed a hood over
his head, and marched him downstairs. The hood was filthy, reeked
of vomit, and had no holes for his eyes, nose, or mouth. Woodhull
stated that "they were forcing us down on our knees, and they kept
punching us [the plaintiffs], with what I determined later was a
rubber hose, putting it on our shoulders, around our neck, the
head." Id. Woodhull further testified that "I heard they were
playing spin the cylinder in a pistol, pulling a trigger and things
like that. Disconcerting, saying, "Gringo, you are going to die.'
" Id. While the guards were spinning the barrel of the revolver,
they kept a hood on Woodhull.
Woodhull testified that the guards taped his head and
violently interrogated him. He stated that at one point they "got
a bag of greasy hamburgers that were covered with roaches and stuff
like that." Id. at 171. Woodhull testified that the plaintiffs
did not have clean water to drink or toilet facilities they could
use. He stated that the guards used cattle prods around their ears
to intimidate them.
Several days after his incarceration, Woodhull met with a
representative from the United States Embassy at Tegucigalpa. He
told the representative what was happening to the plaintiffs, but
the Embassy was unaware that the DEA was involved in a sting
operation on Flight 712. On the Wednesday after the plaintiffs'
arrest, the guards escorted them to a local Honduran court where
Woodhull, through a translator, provided a statement to the judge.
After the court appearance, the guards took the plaintiffs to
another jail where "the toilets worked." Id. at 176. The
authorities released the plaintiffs the following Thursday and they
returned home on Friday.
Woodhull testified that as a result of the ordeal, he has lost
his sense of humor, has no tolerance for incompetence, and is
afraid that the incompetence he witnessed pervades all levels of
the United States government. He continues to fly outside the
country but realizes that the same thing could happen to him again
or to someone else.
Keydel also testified about the ordeal. R.12-IV-1-24.
Keydel, a Guatemalan citizen, was traveling to the United States
with his father to conduct banking business. Prior to being
detained in Honduras, Keydel had no knowledge of the cocaine on the
plane.
Keydel testified that the authorities took him and his father
to a hangar where armed guards watched them. Later the guards took
them to the roof of a police station, where they remained for five
days. Keydel described the building as "revolting." Id. at 6.
Around 2:00 or 3:00 a.m. on the first night of Keydel's
incarceration, the guards put a hood on him, handcuffed him, and
took him down several flights of stairs where they interrogated and
beat him. Keydel testified that the hood, or bag, "smelled of
vomit and insecticide." Id. at 7. He stated that he was beaten
with "a metal piece" and then a wooden stick and that he was
threatened with an "electrical noise that sparks." Id. Keydel
testified that the guards kicked him in the stomach and beat him
twice as much because his father was in poor health and they would
not beat him. Keydel stated that he slept on the ground with no
blanket or sheet. According to Keydel, the guards provided no
toilet facilities except for some buckets. In addition, the guards
put cardboard on his face and tape around his head on three
occasions. Keydel stated that he was not fed while in jail. When
the guards transported the plaintiffs to another jail, Keydel was
not beaten again, but he was threatened.
Couzado, the flight engineer, testified that after the guards
took his fingerprints and photographed him, they interrogated him.
R.13-V-151-162. Later that night, two guards put a hood on him,
handcuffed him, and threw him down the stairs. A guard with a bat
kept "smacking" him. Id. at 153. The guards beat him and put a
gun to his head while spinning the barrel. The guards placed his
hands in some liquid that smelled like gasoline and told him that
Woodhull had confessed. They put tape on his face so he almost
could not breathe and kicked him constantly. Couzado testified
that when the guards transported the plaintiffs to court, numerous
people were laughing at them and he felt humiliated. Couzado
stated that he felt mentally tortured and that the whole experience
was "pretty horrifying." Id. at 142.
Boileau, the first officer of Flight 712, corroborated the
other plaintiffs' testimony regarding the beatings, the blindfolds,
the kicks, and the shoves that they endured during their arrest and
incarceration in Honduras. R.13-V-163-174.
In support of her claim for loss of consortium, Donna
testified that her husband left on Saturday morning to fly to
Central America and was due to return that same evening, but did
not. R.13-V-89-112. Donna testified that when she called the
airline to inquire why her husband was not home, she was told that
his aircraft had a mechanical breakdown and that he would not be
returning until Sunday. When her husband did not return on Sunday,
she called the airline again. This time the airline scheduler told
her that Honduran authorities found drugs on her husband's plane
and that he and his crew were being detained. Donna stated that
when she received this information, she became very upset and
nervous, could not sleep, and kept wondering what would happen.
Id. at 92.
Donna called the Director of Operations at the airline, and he
assured her that the airline was taking care of the problem. Donna
testified that she went to work that day but when she returned home
she became upset because many bills were due and she was working
and handling everything. On Tuesday, she called her babysitter to
come stay with her small child while she went to the airline to get
information about her husband's situation. She spoke with Fine,
the President of Belize Air, who said that the operation on the
plane was a DEA one that had gone bad. Fine tried to contact
political representatives in Washington, D.C., as well as Florida's
governor, to obtain some assistance in the matter. Later that day,
Donna received a call from the United States Embassy in Honduras
informing her that her husband was being held in a Honduran jail
and that the Embassy was working for his release. Donna testified
that at this point, she was "hysterical." Id. at 99. She stated
that she was concerned that her husband was not coming home. Donna
was lonely and upset; her demeanor also upset her two-year-old
child.
On Wednesday, Donna contacted a business associate of
Woodhull's. The business associate arranged a telephone call
between Donna and her husband. When Donna heard her husband's
voice, she said that the first thing that struck her was that he
was alive. Id. at 102. Thereafter, Donna continued to call the
airline, friends, business associates, and Congressmen's offices in
Washington, D.C., trying to obtain additional information about her
husband's plight. During this time, her son kept asking her where
his daddy was, and the more he asked, the more she cried. Id. at
103. Donna testified that no one in Washington and no one at the
airline would call her back, so she went an entire week with no
information.
In describing what her husband looked like when he returned
home, Donna testified that it was "like seeing somebody coming home
from war." Id. at 109. He looked very tired, his eyes were red,
and he had lost weight. In short, "he looked dead." Id.
Donna testified that the incident has taken a toll on her
entire family. She stated that some of the love and humor that her
husband previously possessed are gone. Before the incident, her
husband wanted to spend time with her, but now he prefers to be
alone. He does not seem to care as much about their son; he is
very short-tempered with her; and he has threatened to walk out of
their marriage. Donna testified that her husband is a very
different person due to this incident. In addition, she worries
every time he leaves on a trip that this might happen again.
II. ISSUES
1. Whether the district court erred in holding that the
foreign country exception to the FTCA, 28 U.S.C. § 2680(k), did not
apply to this case.
2. Whether the district court erred in failing to award Donna
damages on her loss of consortium claim.
III. STANDARDS OF REVIEW
The district court's legal conclusions regarding the
non-applicability of the foreign country exception of the FTCA is
subject to de novo review. See Boca Ciega Hotel, Inc. v. Bouchard
Transp. Co. Inc., 51 F.3d 235, 237 (11th Cir.1995) (statutory
interpretation is a question of law subject to de novo review).
The district court's findings of fact and apportionment of
liability under the FTCA are reviewable by this court only for
clear error. See Soto v. United States, 11 F.3d 15, 17 (1st
Cir.1993); see also Cole v. United States, 861 F.2d 1261, 1263
(11th Cir.1988) (factual determinations are governed by the clearly
erroneous standard). A finding is clearly erroneous "when although
there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed." Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518
(1985).
IV. DISCUSSION
A. Foreign Country Exception
In 1946, Congress passed the Federal Tort Claims Act, 28
U.S.C. §§ 1346, 2671-2680. The FTCA was designed to waive
sovereign immunity from suit for certain specified tortious acts of
federal employees. Dalehite v. United States, 346 U.S. 15, 73
S.Ct. 956, 97 L.Ed. 1427 (1953). "It was the offspring of a
feeling that the Government should assume the obligation to pay
damages for the misfeasance of employees in carrying out its work."
346 U.S. at 24, 73 S.Ct. at 962. Thus, under the FTCA, the
government consented, under certain circumstances, to be sued in
tort.
The relevant provision of the FTCA provides in part:
(b) ... [T]he district courts, ..., shall have exclusive
jurisdiction of civil actions on claims against the United
States, for money damages, ..., for injury or loss of
property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office of employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.
28 U.S.C. § 1346(b). Thus, individuals generally are capable of
recovering from the government and its agencies for injuries
sustained as a result of the government's negligence if the state
law where the conduct or omission occurred allows such recovery.
Newmann v. United States, 938 F.2d 1258, 1261 n. 2 (11th Cir.1991).
Congress has recognized, however, that the government's
sovereign immunity performs an important function in many instances
and has enumerated a number of exceptions to the FTCA. See 28
U.S.C. § 2680. The exception at issue in this case is the foreign
country exception which exempts "[a]ny claim arising in a foreign
country" from the waiver of sovereign immunity. 28 U.S.C. §
2680(k). The government contends that this exception applies here
because all of the negligent acts took place in a foreign country.
The district court properly concluded otherwise.
First, we look to Florida state law to determine if the
government's actions at issue would support a cause of action for
the plaintiffs. The Florida Supreme Court has recognized that a
defendant owes a duty of care to persons who are foreseeably
endangered by the defendant's conduct and fall into the zone of
risk which makes the conduct unreasonably dangerous. McCain v.
Florida Power Corp., 593 So.2d 500 (Fla.1992). It is clear, under
to the facts of this case, that the plaintiffs have a cause of
action for negligence against the government. It was reasonably
foreseeable that the crew of Flight 712 could be endangered by the
failure of the government to notify the Honduran authorities
regarding the controlled delivery of cocaine.
Next, we consider where the events at issue occurred. An
FTCA claim is decided under the law of the place in which the
negligent act or omission occurred and not the place in which the
act or omission had its operative effect. See Richards v. United
States, 369 U.S. 1, 10, 82 S.Ct. 585, 591, 7 L.Ed.2d 492, 498-99
(1962); Sami v. United States, 617 F.2d 755, 762 (D.C.Cir.1979);
Leaf v. United States, 588 F.2d 733, 735-36 (9th Cir.1978);
Donahue v. United States Dep't of Justice, 751 F.Supp. 45, 47
(S.D.N.Y.1990). These claims are characterized as "headquarters
claims."
The plaintiffs urge that a "headquarters claim" exception
exists in § 2680(k) jurisprudence under which the location of the
injury is not controlling for jurisdictional purposes. This claim
is achieved on proof that a negligent failure to warn, instruct or
train occurred in the United States.
In In re "Agent Orange" Product Liability Litigation, 580
F.Supp. 1242, 1255 (E.D.N.Y.1984), appeal dismissed, 745 F.2d 161
(2d Cir.1984), the court held that although the injuries to the
claimants resulting from the exposure to Agent Orange occurred in
Vietnam, the initial decision to use Agent Orange, the decision to
continue using it, and the decision relating to the specifications
for the herbicide, were all made in the United States. Therefore,
the negligent act or omission occurred in the United States and
liability was properly imposed upon the government. Thus, "a claim
is not barred by section 2680(k) where the tortious conduct occurs
in the United States, but the injury is sustained in a foreign
country." Donahue, 751 F.Supp. at 48.
The plaintiffs in this case have established such a proximate
nexus. The district court, in its findings of fact, described the
actions of the DEA and Customs as bilateral conduct requiring the
coordination of the two agencies and specifically found that these
actions constituted a "joint operation." The district court found
that the plaintiffs' incarceration was directly and proximately
caused by the actions of the government both within and without the
United States. Specifically, the district court determined that
the government loaded cocaine on the plane in Belize, and the
government (mainly DEA Agent Holifield) failed to notify the
authorities in Honduras of the controlled delivery. This failure
resulted in the plaintiffs' arrest and incarceration. The district
court also noted that Customs Agent Childers failed to notify Agent
Holifield regarding his investigation of the controlled delivery
and this failure also contributed to the plaintiffs' misfortune.
In sum, the district court found that the actions of the agencies
resulted in a "turf battle" which proximately caused the arrests
and incarceration of six innocent individuals.
We hold that the district court's factual findings are not
clearly erroneous and, in fact, are amply supported by the record.
Many factors occurring within the United States contributed to the
utter lack of coordination of the controlled delivery in this case.
Childers should have notified Holifield of his investigation and of
the possibility that the Honduran authorities might use
drug-sniffing dogs to search the plane when it landed. Holifield
would then have known that the plane might be subject to a search
and that he should notify the Honduran authorities about the
controlled delivery. Childers should have questioned Holifield
about Childers' growing suspicion that the controlled delivery was
not being appropriately coordinated. As DEA Agent Hidgon admitted,
the disaster would have been prevented, had the agents communicated
to the Honduran authorities about the operation.
We are persuaded that tort liability was properly imposed upon
the government in this case. The plaintiffs proved that the
government agents in Florida engaged in acts or omissions that
breached a duty under Florida law and proximately caused the
plaintiffs' injuries. In conducting the controlled delivery, the
government had a duty to secure the safety of the crew and
passengers unknowingly involved in the mission. The agents'
testimony confirms this duty. Nevertheless, neither Customs nor
the DEA ever requested the flight's manifest to determine who would
be on board the plane. At no time did the agents discuss the use
of drug-sniffing dogs at any transit stops or the itinerary of the
flight. Customs should have provided the DEA with the information
it had to assist the DEA in making informed decisions regarding the
delivery. The Customs agent's failure to divulge critical
information and to cooperate with the DEA in executing the
controlled delivery negligently compromised the safety of the
passengers and the crew and proximately caused the plaintiffs'
injuries. Thus, the district court's judgment in favor of the
plaintiffs is supported by the record and is not clearly
erroneous.1
1
We note the government's formal acceptance of
responsibility in this case. In a letter written by the United
States General Consul in Honduras to the Attorney General of
B. Applicability of 21 U.S.C. § 904
The government attempts to justify the applicability of the
foreign country exception to the FTCA by turning the court's
attention to a claims statute which authorizes the Attorney General
to pay tort claims when such claims arise in foreign countries in
connection with the operations of the DEA abroad. See 21 U.S.C. §
904. Plaintiffs counter that this argument was not raised by the
government in the district court and, accordingly, should not be
considered for the first time on appeal. See Allstate Ins. Co. v.
Swann, 27 F.3d 1539 (11th Cir.1994). We agree and decline to
consider the issue.2
C. Cross-Appeal
Donna argues that the district court erred in failing to
award her damages for her loss of consortium claim. Under Florida
law, the spouse of a person who is injured as a proximate result of
the negligence of another has a right of action against that person
for loss of consortium. See Gates v. Foley, 247 So.2d 40
(Fla.1971). Loss of consortium means the companionship and
Honduras on April 12, 1991, the United States declared that the
operation was an operation of the DEA in conjunction with the
Belize police; that the State and Government of Honduras are
exonerated of all responsibility for the detention and legal
proceedings against the plaintiffs; and the United States
Government accepts responsibility for its error in not having
coordinated this operation with the government of Honduras and
its authorities.
2
In the district court, the government also argued that the
discretionary function exception to the FTCA applied in this
case. See 28 U.S.C. § 2680(a). The government appears to have
abandoned that argument on appeal because it fails to discuss the
issue in its briefs. Even if the government presented the issue
to us, however, we would not be persuaded that the exception
applies. Indeed, we conclude that the district court's analysis
of this issue is correct and that the exception does not apply.
fellowship of husband and wife and the right of each to the
company, cooperation, and aid of the other in every conjugal
relation. Id. at 43. "Consortium means much more than mere sexual
relations and consists, also, of that affection, solace, comfort,
companionship, conjugal life, fellowship, society and assistance so
necessary to a successful marriage." Id. The wife's right of
action is a derivative right and she may recover only if her
husband has a cause of action against the defendant. Id. at 45.
As previously stated, the government was negligent in its
handling of the controlled delivery operation. As a proximate
result of the government's negligence, Woodhull was injured. The
unrebutted testimony shows that Donna was deprived of her husband's
companionship, fellowship, and aid for the eleven days he was
incarcerated in Honduras. Additionally, the evidence shows that
after Woodhull returned to the United States, his marital
relationship with his wife changed. Donna testified that Woodhull
is more withdrawn, wants to be by himself, is not concerned about
her or their child, is very short-tempered, and has threatened to
walk out of the marriage. The evidence clearly shows a
deterioration in the conjugal relationship.
Where the unrebutted substantive evidence shows a loss of
consortium, an award of zero damages cannot stand. Bach v. Murray,
658 So.2d 546 (Fla.Dist.Ct.App.1995). See also Villatoro v.
Concepcion, 671 So.2d 216, 217 (Fla.Dist.Ct.App.1996) ("A zero
verdict for loss of consortium cannot stand where liability is
conceded and there is evidence to support a verdict of nominal
damages.").
For the foregoing reasons, we affirm the judgment of the
district court imposing liability upon the government pursuant to
the FTCA. We reverse the judgment of the district court on Donna
Woodhull's claim of loss of consortium and remand this case for
further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.