[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 3, 2009
No. 06-13052
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-21807-CV-JAG
RAIZA BRAVO,
OSCAR RODRIGUEZ,
individually and as co-personal representatives
of the Estate and Survivors of Kevin Bravo
Rodriguez,
Plaintiffs-Appellees,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant,
KENNETH KUSHNER, MD.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 3, 2009)
ON PETITION FOR REHEARING
Before CARNES and WILSON, Circuit Judges, and STAGG,* District Judge.
PER CURIAM:
The appellants have filed a petition for rehearing en banc, which under 11th
Cir. R. 35-5 is treated as including a petition for rehearing before the original
panel. To the extent that it is a petition for rehearing en banc, no judge in active
service having requested that the Court be polled, the petition is denied. To the
extent it is a petition for panel rehearing, we deny the petition but take this
opportunity to extend our opinion to clarify the methodology to be used in
determining state law when there is no decision of the state supreme court on
point.
In Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938), the
Supreme Court held that federal courts sitting in diversity jurisdiction must apply
substantive state law. That decision left open the question “of the effect to be
given to decisions by lower state courts on points never passed on by the highest
state court.” King v. Order of United Commercial Travelers of Am., 333 U.S.
153, 158, 68 S. Ct. 488, 491 (1948). The answer came in a series of decisions,
beginning two years after Erie, in which the Supreme Court instructed that
*
Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.
2
“federal courts are bound by decisions of a state’s intermediate appellate courts
unless there is persuasive evidence that the highest state court would rule
otherwise.” Id., 68 S. Ct. at 491 (citing Six Cos. of Cal. v. Joint Highway Dist.
No. 13 of Cal., 311 U.S. 180, 61 S. Ct. 186 (1940); West v. Am. Tel. & Tel. Co.,
311 U.S. 223, 61 S. Ct. 179 (1940); Stoner v. N.Y. Life Ins. Co., 311 U.S. 464, 61
S. Ct. 336 (1940). The Court explained in its West opinion:
State law is to be applied in the federal as well as the state courts and
it is the duty of the former in every case to ascertain from all the
available data what the state law is and apply it rather than to
prescribe a different rule, however superior it may appear from the
viewpoint of ‘general law’ and however much the state rule may
have departed from prior decisions of the federal courts. . . . Where
an intermediate appellate state court rests its considered judgment
upon the rule of law which it announces, that is a datum for
ascertaining state law which is not to be disregarded by a federal
court unless it is convinced by other persuasive data that the highest
court of the state would decide otherwise.
West, 311 U.S. at 237, 61 S. Ct. at 183 (citations omitted).
One of the earliest, if not the earliest, pronouncements of our circuit in this
area of the law came in Putman v. Erie City Manufacturing Co., 338 F.2d 911
(5th Cir.1964).1 There, on examining Texas law, we found “cross-currents,
especially in the decisions of the Courts of Civil Appeals, but a general trend” in
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
3
one direction. Id. at 915. We had this to say about how a federal court should
decide what to do when there were “cross-currents” in state intermediate appellate
court decisions:
The case before us presents the type of situation Judge Clark has described
as the most troublesome, the most unsatisfying in its consequences of all
the situations in which Erie requires a federal court to ascertain state law.
Here, although the trend in Texas may be as evident as Judge Levet found
it to be, there is no decision of the Texas Supreme Court on the question at
issue. The Court is forced, therefore, to look to all available data; for
example, to such sources as the Restatements of Law, treatises and law
review commentary, and the majority rule, keeping in mind that it must
choose the rule which it believes the state court, from all that is known
about its methods of reaching decisions is likely in the future to adopt.
Id. at 917 (internal quotation marks and footnotes omitted); see also McKenna v.
Ortho Pharm. Corp., 622 F.2d 657, 662–63 (3d Cir. 1980); Pisciotta v. Old Nat’l
Bancorp, 499 F.3d 629, 635 (7th Cir. 2007); Ariz. Elec. Power Coop., Inc. v.
Berkeley, 59 F.3d 988, 991 (9th Cir. 1995); Gilstrap v. Amtrak, 998 F.2d 559,
560 (8th Cir. 1993) Royal Coll. Shop, Inc. v. N. Ins. Co. of N.Y., 895 F.2d 670,
677 (10th Cir. 1990); Bailey v. V & O Press Co., 770 F.2d 601, 604 (6th Cir.
1985); Michelin Tires (Can.) Ltd. v. First Nat’l Bank of Boston, 666 F.2d 673,
682 (1st Cir. 1981).
We are, of course, bound to follow the instructions of the Supreme Court and
our prior panel precedent on this matter, and nothing in our original opinion should
4
be read to the contrary. It follows that we are “bound” to follow an intermediate
state appellate court “unless there is persuasive evidence that the highest state court
would rule otherwise.” King, 333 U.S. at 158, 68 S. Ct. 491. We have considered
the decisions in Compania Dominicana de Aviacion v. Knapp, 251 So. 2d 18, 23
(Fla. 3d DCA 1971), Smith v. Goodpasture, 179 So. 2d 240, 242 (Fla. 2d DCA
1965), and Gresham v. Courson, 177 So. 2d 33, 39–40 (Fla. 1st DCA 1965), in light
of all the other data about how the Florida Supreme Court might rule including, but
not limited to, the decision of the Fifth District Court of Appeal in Citrus County v.
McQuillin, 840 So. 2d 343 (Fla. 5th DCA 2003). After full consideration of “all the
available data,” West, 311 U.S. at 237, 61 S. Ct. at 183, we reiterate our conclusion
that the $20,000,000 in non-economic damages awarded to Bravo and Rodriguez is
excessive as a matter of Florida law.
Accordingly, we reiterate the ruling in our initial opinion that the judgment
entered against the government is VACATED, and the case is REMANDED to
the district court for further proceedings consistent with that opinion.
5
WILSON, Circuit Judge, dissenting:
To the extent that the majority concludes that we are bound by the
substantive law of the State of Florida in consideration of this diversity case,
pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938), I
agree. I also have no quarrel with the general principle that we are bound by
decisions of Florida intermediate state appellate courts unless there is persuasive
evidence that the Florida Supreme Court would rule otherwise. See King v. Order
of United Commercial Travelers of Am., 333 U.S. 153, 158, 68 S. Ct. 488, 491
(1948). The problem here is that after recognizing these axioms, the majority
then disregards the very Florida law that binds us.
In Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008), the majority
concluded that when reviewing Florida personal injury verdicts for excessiveness
by considering the general trend and philosophy of similar cases, the comparative
analysis must be confined to the published Florida appellate decisions in the
judicial district in Florida where the case would have been heard if brought in
state court. 532 F.3d at 1164. As far as I can determine, no Florida court has
ever so held. I find no other appellate court, Florida or federal, that has so limited
itself. Rather, historically, all of the Florida courts that have conducted these
types of excessiveness reviews of personal injury verdicts take into consideration
6
all factually similar cases presented by the parties. See, e.g., Loftin v. Wilson, 67
So. 2d 185, 189-90 (Fla. 1953) (comparing a non-economic damages award to
two Florida cases and five non-Florida cases, including two New York federal
trial court decisions, two Missouri Supreme Court decisions, an Ohio Supreme
Court decision, and “many other” cases reviewed in a treatise); Sta-Rite Indus.,
Inc. v. Levey, 909 So. 2d 901, 909 (Fla. 3d DCA 2004) (considering a New York
federal district court case); Citrus County v. McQuillin, 840 So. 2d 343, 347 n.2
(Fla. 5th DCA 2003) (considering decisions from Delaware trial court
(unpublished and unappealed), Texas appellate court, Missouri appellate court,
and Florida federal district court); City of Tamarac v. Garchar, 398 So. 2d 889,
896 n.7 (Fla. 4th DCA 1981) (en banc on pet. for reh’g) (considering a decision
from the United States Court of Appeals for the District of Columbia Circuit, two
California state appellate cases, and a Nevada Supreme Court case), overruled in
part on other grounds by Seaboard Coastline R.R. Co. v. Addison, 502 So. 2d
1241, 1242-43 (Fla. 1987); Washington County Kennel Club, Inc. v. Edge, 216
So. 2d 512, 517 (Fla. 1st DCA 1968) (considering Missouri and Georgia appellate
court decisions). Likewise, our own federal courts have not limited their
analyses to published appellate decisions the way that the majority has. See, e.g.,
Fairhurst v. United States, No. 3:03CV601/RS, 2006 WL 2190553, at *4 (N.D.
7
Fla. Aug. 1, 2006) (considering jury verdicts and settlement awards); Turner v.
United States, No. 3:03-CV-709-J-25TEM, 2005 WL 2077297, at **8-9 (M.D.
Fla. Aug. 26, 2005) (considering reported jury verdicts), aff’d in part, vacated in
part, rev’d in part on other grounds, 514 F.3d 1194 (11th Cir. 2008); Grayson v.
United States, 748 F. Supp. 854, 863-66 (S.D. Fla. 1990) (considering jury
verdicts and settlements), aff’d in part, vacated in part, 953 F.2d 650 (11th Cir.
1992) (unpublished table decision); Williams v. United States, 681 F. Supp. 763,
764-66 (N.D. Fla. 1988) (considering jury verdicts). The relevant case law
demonstrates that in their excessiveness reviews, Florida state and federal courts
have not only considered unpublished as well as published decisions, but also
have considered decisions from outside Florida, let alone decisions from outside
the relevant DCA in Florida.
Turning to the comparative analysis, there have been higher non-economic
damages awards in similar cases. See Gen. Motors Corp. v. McGee, 837 So. 2d
1010, 1039 (Fla. 4th DCA 2002) (upholding a $30 million dollar award for pain
and suffering to the parents of a boy burned in a fire, which resulted in the boy’s
death); Navarro v. Austin, No. 02-6154 (Fla. Cir. Ct. 2006) (involving a jury
award of over $100 million in damages, $46.5 million of which was for the
injured plaintiff’s past and future pain and suffering and $52.5 million of which
8
was for the wife’s past and future loss of her husband’s services, comfort, society,
and affection); Korzeniowski v. Eagleman, No. CL 00-4828 AO, 2004 WL
3206914 (Fla. Cir. Ct. 2004) (involving a child who was born with a brain injury
due to medical negligence resulting in a $31 million non-economic damage
award––$17 million for the child’s past and future pain and suffering, $7 million
for the mother’s loss of filial consortium, and $7 million for the father’s loss of
filial consortium); Hinton v. 2331 Adams St. Corp., No. 01-012933(12) (Fla. Cir.
Ct. 2003) (involving a two-year-old child who suffered severe brain damage
resulting in a $45 million combined non-economic damage award––$35 million
for the child’s past and future pain and suffering, $5 million for the mother’s loss
of filial consortium, and $5 million for the father’s loss of filial consortium). I
also note that in a recent case, Gutierrez v. United States, No. 07-56708, 2009
WL 784266, at *1 (9th Cir. March 26, 2009) (mem.), the Ninth Circuit held, in a
Federal Torts Claims Act (“FTCA”) case like this one, that “an award of $31
million dollars for non-economic damages is substantial, but in the tragic
circumstances of this case, we cannot say that the district court’s award was clear
error.”
Upon review, we were only to reverse the award if we found clear error.
See Ferrero v. United States, 603 F.2d 510, 512 (5th Cir. 1979). Because this
9
was an FTCA case arising out of Florida, we were to follow and apply Florida
law. See Johnson v. United States, 780 F.2d 902, 907 (11th Cir. 1986). Under
Florida law, the award could be reversed only if it: (1) “[was] so extravagant that
it shock[ed] the judicial conscience,” (2) “[was] manifestly unsupported by the
evidence,” or (3) “indicate[d] the jury was influenced by passion, prejudice or
other matters outside the record. . . .” McQuillin, 840 So. 2d at 347 (citations
omitted).
The majority opinion strikes the $20 million award on the sole ground of it
being shocking to the judicial conscience.1 See Bravo, 532 F.3d at 1161. The
majority reasoned that the award did not “bear a reasonable relation to the
philosophy and general trend of prior decisions in such cases.” Id. at 1162 (citing
Johnson, 780 F.2d at 907). By confining its review of compensable awards to
Florida Third District Court of Appeals published opinions, the majority was able
to disregard similar awards in similar cases. Because I disagree with that
methodology, and the departure from clear Florida law, I dissent.
If we were faithful to the analysis of the Florida courts, we would find that
the district court’s non-economic damages award in this case falls comfortably
1
The verdict here was not rendered by an inflamed and impassioned jury. It was a
dispassionate verdict by a United States District Judge who entered the award after an 11-day
bench trial. The verdict does not shock the judicial conscience.
10
within the general trend of prior decisions in similar cases. Consequently, I am
unable to join in the conclusion that the $20 million verdict for pain and suffering
awarded to the plaintiffs for the loss of their child’s consortium is so grossly
exorbitant as to require a reversal.
11