Bravo v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 30, 2009
THOMAS K. KAHN
No. 06-13052 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
___________

(September 30, 2009)
Before DUBINA, Chief Judge, EDMONDSON, TJOFLAT, BIRCH, BLACK,
CARNES, BARKETT, HULL, MARCUS, WILSON, and PRYOR, Circuit Judges.

O R D E R:

The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the

Suggestion of Rehearing En Banc is DENIED.

/s/ Joel F. Dubina
CHIEF JUDGE

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CARNES, Circuit Judge, concurring in the denial of rehearing en banc:

In his opinion dissenting from the denial of rehearing en banc, Judge Wilson

criticizes the panel opinion for determining, as a matter of Florida law, that in

deciding whether an award for non-economic damages is excessive the focus

should be on Florida appellate court decisions either affirming or reversing awards

challenged on that ground. The panel opinion explains at some length its

conclusion that jury awards that were not size-tested on appeal were not to be

considered. Bravo v. United States, 532 F.3d 1154, 1163–68 (11th Cir. 2008). It

cites decisions of three Florida District Courts of Appeal that, in judging whether

awards were excessive, limited their consideration of other awards to those that

had been challenged on appeal. See id. at 1164. And it explains why considering

jury awards that were not appealed on excessiveness grounds makes little or no

sense. See id. at 1166–67.

Instead of addressing the panel opinion’s authorities and reasoning head on,

the dissenting opinion asserts that in deciding that the award in this case was

excessive under Florida law the panel limited its consideration to “awards

reflected only in published appellate decisions in a limited locale.” Dissent at

1301 (emphasis added). To the extent that it implies the panel disregarded

unpublished Florida appellate court decisions, the dissenting opinion is mistaken.

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The panel did not disregard any Florida appellate decision because it was not

published. We considered every Florida decision the parties cited or we could

find that had upheld or rejected an award of non-economic damages on

excessiveness grounds. There were no relevant unpublished Florida appellate

court decisions cited to us by either side, and we could not find any. The reason

probably is that the Florida appellate courts do not issue unpublished opinions.1

The dissenting opinion is also mistaken to the extent that it asserts that the

panel limited its consideration to published appellate decisions arising from

judgments in any one locale in Florida. We considered every award excessiveness

decision from every District Court of Appeal that was cited to us or that we could

find. Bravo, 532 F.3d at 1164–65 (considering award excessiveness decisions

from the First, Second, and Third District Courts of Appeal); id. at 1168–69

(citing award excessiveness decisions from the Third, Fourth, and Fifth District

Courts of Appeal); see also Bravo v. United States, 577 F.3d 1324, 1326 (11th Cir.

2009) (explaining, in an extension of the opinion denying rehearing, that we had

considered damage excessiveness decisions of the First, Second, and Third

District Courts of Appeal “in light of all the other data about how the Florida

1
Florida appellate courts do issue one-line per curiam affirmed (PCA) opinions stating
without explanation that the judgment of the trial court is affirmed, and those are not
“published.” None of those was cited to us.

4
Supreme Court might rule including, but not limited to, [a] decision of the Fifth

District Court of Appeal”).

The recent decision in Limone v. United States, 579 F.3d 79 (1st Cir. 2009),

is the centerpiece of the dissenting opinion. It asserts that in Limone “[t]he First

Circuit rejected the very same argument adopted by the majority in Bravo.”

Dissent at 32. Impossible. In issuing its decision in Limone the First Circuit was

required to and did apply Massachusetts law to a case that arose in Boston,

Massachusetts. Limone, 579 F.3d at 88–89 (“Here, both the allegedly tortious

conduct and the harm complained of occurred in Massachusetts. Massachusetts

law, therefore, supplies the beacon by which we must steer.”); id. at 103 (“We

approach the awards at issue here mindful that, in an FTCA case, both the nature

of allowable damages and the measure of those damages are drawn from state

law.”); see also id. at 86 (“Under Massachusetts law . . . .”); id. at 89 (same); id. at

91 (same); id. at 94 (same); id. at 100 (same); id. at 103 (same). By contrast, in

reaching our decision we were required to and did apply Florida law to a case

arising in Jacksonville, Florida. See, e.g., Bravo, 532 F.3d at 1160–61 (“The

components and measure of damages in FTCA claims are taken from the law of

the state where the tort occurred.” (alterations, citation, and quotation marks

omitted)); id. at 1161 (“Florida law dictates that . . . .”); id. (“Florida law is also

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clear that . . . .”); id. at 1164 (“[B]ecause we are bound to decide the issue the way

the Florida courts would have . . . .”). The argument we accepted was that under

Florida law unappealed damage awards are not considered in deciding the

excessiveness of an award. The First Circuit in Limone could not have decided,

and did not purport to decide, anything about that or any other issue of Florida

law. Nor did we purport to decide anything about Massachusetts law in this case.

It follows that the decisions cannot be inconsistent, unless one assumes, as the

dissenting opinion apparently does, that the law of every state is, in its words, “the

very same” on every issue and in every particular. See Dissent at 1301 (emphasis

omitted).

The dissenting opinion suggests that the result in the Limone case, which

was the affirmance of an award of nearly $102 million, is inconsistent with the

result in this case, which was the reversal of a $20 million part of an award. The

results in the two cases are not inconsistent for two reasons. First, as I have

already explained, one award was reviewed under Massachusetts law, the other

under Florida law. Second, the facts of the two cases are fundamentally different.

Unlike this case, Limone was not a medical malpractice case. Unlike this case,

Limone did not involve negligent conduct. Instead, it involved intentional

conduct of the worst kind. Limone arose from “egregious governmental

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misconduct,” 579 F.3d at 83, involving the “extreme and outrageous,” id. at 91,

actions of FBI agents in Boston who conspired over a period of years to railroad

four innocent “scapegoats” into prison and then engaged in a coverup to keep

them there, id. at 86.2 Three of the four victims of that outrageous misconduct

served some of their time on death row “in the grim shadow of death sentences.”

Id. at 104. Two of the victims died in prison after serving 18 and 28 years. Id.

The other two victims served 29 and 33 years before finally being freed. Id. The

damages award was to compensate the four victims for the total of 108 years that

they were wrongfully imprisoned and for all of the emotional distress that had

been deliberately inflicted on them as a result. See id. at 106.

2
The facts in the Limone case grew out of one of the darkest chapters in the history of the
FBI, which involved rampant misconduct and corruption in the Boston office spanning a period
of at least two decades. See generally David Boeri, The Martyrdom of John Connolly, BOSTON
MAG ., Sept. 2008, available at
http://www.bostonmagazine.com/articles/the_martyrdom_of_john_connolly/ (describing scale of
Boston office’s involvement with organized crime during 1970s and 1980s); Elizabeth Mehren,
Ex-FBI Agent Guilty of Taking Bribes, Tipping Off Mafia, L.A. TIMES, May 29, 2002, at A-3,
available at http://www.sfgate.com/cgi-bin/article/article?f=/c/a/2002/05/29/MN221042.DTL
(reporting conviction of former FBI agent John Connolly on four counts of corruption stemming
from his involvement with organized crime); Shelley Murphy, Death, Deceit, Then Decades of
Silence, BOSTON GLOBE , July 27, 2007, available at
http://www.boston.com/news/local/massachusetts/articles/2007/07/27/death_deceit_then_decade
s_of_silence/ (recounting events and personalities surrounding the murder at the center of
Limone); Suzanne Smalley & Evan Thomas, A Sequel to ‘The Departed’: Did a Rogue FBI
Agent Instigate a Mob Hit? A Judge Will Soon Decide, NEWSWEEK, Dec. 15, 2008, available at
http://www.newsweek.com/id/172571 (detailing prosecution of former FBI agent John Connolly
for murder in the second degree).

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 There is, however, one aspect of the Limone decision that should be

mentioned for the sake of completeness. The $20 million in non-economic

damages that the district court gave the plaintiff parents in the present case, and

that the panel decided was excessive, was entirely for the parents’ loss of

consortium with their child. Bravo, 532 F.3d at 1157–58, 1170 (majority opinion);

see also id. at 1172 (Wilson, J., dissenting). In the Limone case the children of

each of the four victims were awarded damages for the loss of consortium with

their fathers during the decades the men were wrongfully imprisoned. The loss of

consortium award to each child was only $200,000 (each child also received an

additional $50,000 for emotional suffering). Limone, 579 F.3d at 107.

One of the children cross-appealed in Limone, contending the award was

inadequate. Id. at 107–08. The First Circuit disagreed and held that the award

was big enough. Id. at 108. So, Limone stands for the proposition that under

Massachusetts law a $200,000 loss of consortium award to the child in that case

was sufficient. See id. That hardly supports the dissenting opinion’s position that

under Florida law a $20,000,000 loss of consortium award—one hundred times

larger—to the parents in this case is not excessive.

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WILSON, Circuit Judge, dissenting from the denial of rehearing en banc.

This is a Federal Tort Claims Act1 case arising from the negligence of

medical personnel at a naval hospital in Jacksonville, Florida which caused severe

brain damage to a child who was delivered there. After an 11-day bench trial in

the Southern District of Florida, the district judge entered judgment against the

United States in the amount of $40,485,788.98, $20,000,000.00 of which

constituted non-economic damages awarded to the parents. The parents’ part of

the award was vacated by the panel and remanded to the district court on the sole

ground of it being excessive and shocking to the judicial conscience. See Bravo v.

United States, 532 F.3d 1154, 1161 (11th Cir. 2008). The majority opinion

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 (quoting Johnson v.

United States, 780 F.2d 902, 907 (11th Cir. 1986)). In determining the philosophy

and general trend, the majority opinion compared the damages award to other

awards in similar cases. But, in conducting this comparative analysis, the majority

opinion confined its comparison solely to Florida published appellate opinions.

I would have affirmed the verdict. Our job was to find “the philosophy and

general trend” i.e., to determine whether the verdict “[was] so inordinately large as

1
28 U.S.C. §§ 1346, 2671 et seq.

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obviously to exceed the maximum limit of a reasonable range within which the

trier of fact may properly operate.” Johnson, 780 F.2d at 908. Other Florida jury

verdicts demonstrate that the award by the district judge who heard this case after

an 11-day bench trial is within the maximum limit of a reasonable range. Those

other verdicts would include Florida published appellate decisions that the

majority simply disregards. See, e.g., General Motors Corp. v. McGee, 837 So. 2d

1010, 1039 (Fla. 4th DCA 2002) (upholding a $60,000,000.00 verdict against

General Motors to the parents of a boy who died in a burning car, which included

$30,000,000.00 to the parents for their non-economic damages). But my

disagreement with the opinion published by the majority extends beyond that

determination. In holding that our comparative analysis was confined exclusively

to published Florida appellate decisions, I believe that the majority unnecessarily

disregarded established precedent, including Florida law, as I explained in a

partial dissent. See Bravo, 532 F.3d at 1173–79 (Wilson, J., concurring in part and

dissenting in part).2 Florida courts have not limited their review of personal injury

awards in the way that the majority does on this appeal. More importantly, the

majority opinion represents the first time, as far as I can find, that any federal or

2
See also Bravo v. United States, 11th Cir. 2009, 532 F.3d 1154, 1159 (11th Cir. 2009)
(Wilson, J., dissenting) (denying panel rehearing).

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state court has held that in reviewing a personal injury award for excessiveness,

the reviewing court is confined to comparing and considering awards reflected

only in published appellate decisions in a limited locale.3 I believe that by

confining its review of compensable awards, the majority was able to disregard

similar awards reflected in other published opinions in similar cases in other

locales, as well as awards not reflected in published opinions.4 I disagree with that

methodology, as well as the departure from clear Florida law. I cannot find that

Florida has ever adopted such a rule that would permit a reviewing court to

disregard awards reflected in unpublished decisions, out-of-state cases, in-state

trial decisions, jury verdicts, etc. Additionally, the Government in its briefs did

not cite a single Florida case to support its contention that the non-economic

3
By “limited locale,” I do not mean that the majority confined its review to appellate
decisions from the Third District Court of Appeal, but confined its review to the limited locale of
Florida. I argue, however, that there should not be a limited locale to which the court must
confine its review in determining excessiveness, and the court should be permitted to look
outside of Florida and elsewhere for guidance.
4
For example, the Bravos cited in their briefs three unappealed cases with higher non-
economic damage awards. See Resp’t’s Br. 54–55 (citing Navarro v. Austin, Fla. Cir. Ct. 2006,
(No. 02-6154, Oct. 3, 2006) (awarding $9 million for Mr. Navarro’s past pain and suffering,
$37.5 million for Mr. Navarro’s future pain and suffering, and $52.5 million for Mrs. Navarro’s
loss of her husband’s services, comfort, society, and attentions in the past and future);
Korzeniowski v. Eagleman, Fla. Cir. Ct. 2004, (No. 00-4828 AO, Feb. 26, 2004) (awarding $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., Fla. Cir. Ct. 2003, (No. 01-012933(12), Jan. 30, 2003) (awarding $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)).

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damage award should be reversed for excessiveness. Instead, they cited only two

cases: one from the Fifth Circuit and one from the Tenth Circuit. See Pet’r’s

Reply Br. 19–24 (citing Lebron v. United States, 279 F.3d 321, 333 (5th Cir.

2002) and Miller v. United States, 901 F.2d 894, 986–97 (10th Cir. 1990)).

Therefore, I would grant en banc rehearing to determine whether we, as a

reviewing court, are so limited in our analysis in review of personal injury awards

for excessiveness.

On August 27, 2009, the First Circuit, inter alia, affirmed a district court’s

award (after a bench trial) of non-economic damages in an FTCA case in the

amount of $101,750,000.00. Limone v. United States, 579 F.3d 79, 106–07 (1st

Cir. 2009). The First Circuit rejected the very same argument adopted by the

majority in Bravo. In Limone, the Government argued that “the district court

should have limited its comparability survey of the personal injury verdict to cases

arising in Massachusetts . . . .” Id. at 104. The First Circuit dismissed this

argument as “parochial” and “incorrect as a matter of law.” Id. (emphasis added).

The First Circuit explained its reasoning:

Although we have said that helpful guidance may be found
in damage awards from similar cases arising out of the
same context that are tried in the same locale, that does not
mean that a court is prohibited from looking for guidance
elsewhere. The key is comparability: whether the

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 counterpart cases involve analogous facts, similar measures
of damages, and are otherwise fairly congruent.

Id. (internal quotation marks and citations omitted). The First Circuit went on to

consider jury awards from other jurisdictions, ultimately affirming the award of

over $100 million. See id. at 106–07 (relying on cases from the Fifth and Seventh

Circuits as well as Missouri federal district court). I believe that the First Circuit

has the better review.

The majority in Bravo created its rule out of whole cloth, limiting review to

reported Florida appellate court decisions, based in large part on a passage from

our own precedent in Johnson v. United States: “[a]lthough excessiveness may be

tested by comparing the verdict to those damage awards determined not to be

excessive in similar cases, we have been unable to find any reported case in

Florida with an award this high.” 780 F.2d at 908 (emphasis added) (internal

citations omitted). Setting aside the fact that the Johnson Court did not create any

rule but merely noted that it had not located a “reported case in Florida” on point,

the Bravo majority nevertheless extrapolated a rule from that language in Johnson.

On the other hand, in Limone, the First Circuit declined to interpret the following

language as a limitation of its review to Massachusetts cases: comparisons to

“similar cases arising out of the same context that are tried in the same locale. . . .”

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Limone, 579 F.3d at 104 (citation omitted) (emphases added). Despite its own

precedent limiting comparison to cases from the “same locale,” the First Circuit

nevertheless concluded that “that does not mean that a court is prohibited from

looking for guidance elsewhere,” i.e., outside Massachusetts. Id. In the instant

case, the Bravo majority interpreted broader and more ambiguous language in

Johnson (when compared to that in Limone) to mean that we may only look to

reported Florida appellate court decisions in this Federal Tort Claims Act case.

Borrowing from the First Circuit, that rule is “incorrect as a matter of law.” Id.

The majority opinion in Bravo represents a shift in logic in the way we

review personal injury awards for excessiveness. The only avenue available to us

to reconsider this precedent, and correct an appeal which I believe to be wrongly

decided, is the vehicle provided for en banc review by Federal Rule of Appellate

Procedure 35.

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