Bravo v. United States

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 *1298under 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 To the extent that it implies the panel disregarded unpublished Florida appellate court decisions, the dissenting opinion is mistaken. 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 There were no relevant unpublished Florida appellate court decisions cited to us by either side, and we could not And any. The reason probably is that the Florida appellate courts do not issue unpublished opinions.1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 And. 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 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 1301. 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 93 (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 clear that ....”); id. at 1164 (“[B]e-cause 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 *1299Limone 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 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.

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 *1300the 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.

. 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.

. 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_j ohn_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_decades_ofL 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.eom/id/l 72571 (detailing prosecution of former FBI agent John Connolly for murder in the second degree).