[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13052 July 2, 2008
________________________ 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
_________________________
(July 2, 2008)
Before CARNES and WILSON, Circuit Judges, and STAGG,* District Judge.
CARNES, Circuit Judge:
This is a tragic case in which the negligence of those acting for the United
States government destroyed the life of a little boy and did much damage to the
lives of his mother and father. The case is here not because anyone questions
whether the government should pay, but because there are good faith
disagreements about issues affecting how much it must pay.
I.
Raiza Bravo was entitled to care and treatment at the Naval Hospital in
Jacksonville, Florida because her husband, Oscar Rodriguez, was a serviceman in
the Navy. On June 10–11, 2003, Bravo was at the hospital for the birth of their
child, Kevin Bravo Rodriguez. As a result of medical malpractice, Kevin was
born with severe brain injuries. No one disputes that some of those whose
negligence caused the injuries were full-time Naval personnel and therefore
government employees for purposes of the Federal Tort Claims Act. There is a
dispute about whether one doctor whose negligence contributed to the injuries is a
government employee for FTCA purposes, and the resolution of that issue will
*
Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.
2
determine what portion of the judgment the government is responsible for paying.
There are also disputes about the size of the judgment.
One of the physicians who attended Bravo during the delivery was Dr.
Kenneth Kushner, a civilian OB/GYN working at the Naval Hospital on a
contractual basis. He is the negligent actor whose status as a government
employee for FTCA purposes is in issue. A description of his status requires some
explanation of the contractual context in which he worked.
The Department of Defense entered into a contract with Humana Military
Healthcare Services, known as the “TRICARE Contract,” through which Humana
would provide medical services for eligible military personnel and their
dependents. The contract allowed facilities like the Naval Hospital in Jacksonville
to enter into their own agreements with Humana, known as “Resource Sharing
Agreements” under which Humana (or its subcontractor) provides medical staff
for the hospital. These contracts were subject to the terms of the original
TRICARE Contract.
The Jacksonville Naval Hospital entered into a Resource Sharing
Agreement with Humana, incorporating the hospital’s own OB/GYN “Statement
of Work” into the contract; that statement described with specificity the duties and
responsibilities of the physician who was contracted to do OB/GYN work at the
3
hospital. Humana, in turn, sub-contracted with Sterling Medical Corporation to
supply an OB/GYN physician to the Naval Hospital. Sterling contracted with Dr.
Kushner for that purpose, and it was through that contract and Sterling’s contract
with Humana, as well as Humana’s contract with the Naval Hospital, that Dr.
Kushner came to the hospital as a civilian physician. The same “Statement of
Work” included in the contract between Humana and the hospital was in turn
incorporated into Dr. Kushner’s contract with Sterling.
Following Kevin’s birth, Dr. Kushner was subjected to peer review,
temporarily suspended from the Naval Hospital, and instructed to take a course on
fetal monitoring. Later, because of his negligence during Kevin’s birth, the
hospital permanently suspended Dr. Kushner’s privileges with the result that he
can no longer work there.
II.
Bravo and Rodriguez filed suit against the government on their own behalf
and on behalf of Kevin under the FTCA based on the personal injuries Kevin
suffered and the loss of consortium with him that they each suffered. Bravo also
claimed economic loss because of the time that she was required to spend caring
for Kevin and her resulting loss of earning power. Bravo and Rodriguez claimed
that Kevin was injured as a result of the wrongful acts and omissions of hospital
4
employees who were acting within the scope of their employment for the United
States. They later amended the complaint to add a negligence count against Dr.
Kushner individually.
Bravo and Rodriguez filed a motion for summary judgment asking the
district court to find, as a matter of law, that Dr. Kushner was a government
employee for FTCA purposes at the time he treated Bravo. Dr. Kushner filed a
similar motion seeking the same result. Conversely, the government filed a
cross-motion for summary judgment, asking the court to find as a matter of law
that Dr. Kushner was an independent contractor and not a government employee.
The district court denied the motions and set the case for trial.
After an eleven-day bench trial, the district court issued its findings of fact
and conclusions of law. The court determined that the medical evidence indicated
that everyone treating Bravo had failed to meet the requisite standard of care and
that their negligence contributed substantially to Kevin’s injuries. The
government requested that the damages be apportioned under Fla. Stat. §
768.81(3) between the culpable Naval personnel (for which it admitted
responsibility) and Dr. Kushner. The court declined to do that because it
concluded that Dr. Kushner was himself a government employee for FTCA
purposes. As a result there would be no basis for apportionment because the
5
government would be fully responsible for Dr. Kushner’s part of the judgment.
The court ruled that even if it were wrong about Dr. Kushner being a government
employee, apportionment would still not be proper because of two exceptions to
Fla. Stat. § 768.81(3): (1) the initial-subsequent tortfeasor exception, and (2) the
indivisible injury exception.
The court entered a total judgment against the government in the amount of
$60,485,788.98 to Bravo, Rodriguez, and Kevin. That judgment included: (1)
$25 million in non-economic damages for Bravo; (2) $603,883 in economic
damages for Bravo; (3) $15 million in non-economic damages for Rodriguez; (4)
$10 million in non-economic damages for Kevin; and (5) $9,881,905.98 in
economic damages for Kevin. At the time judgment was entered Kevin was
almost two-and-a-half years old and had a life expectancy of twenty-one years.
The damages were calculated based on the parental sacrifices and the surgeries,
therapies, and medications that it was projected Kevin would need over the
remaining eighteen-and-a-half years of his life as well as the suffering that would
be endured during that time.
Dr. Kushner and the government both filed Rule 59 motions to alter or
amend the judgment or, alternatively, for a new trial. The district court denied
those motions, except that it did reduce the non-economic damages awarded to
6
Bravo and Rodriguez by $10 million each, so that Bravo received $15 million for
her non-economic damages and Rodriguez received $5 million for his. The court
left the award to Kevin in place. Those reductions lowered the total judgment to
$40,485,788.98. The only explanation the court gave for reducing the awards, and
the amount of the reductions, was that it was being done “[u]pon consideration of
all relevant factors.” Even after the district court reduced the award, it was at that
time the largest amount ever awarded to a single family for non-economic
damages in the sixty-year history of the FTCA.1
The government filed its notice of appeal on May 22, 2006. Kevin died, at
the age of three, on August 21, 2006.
III.
1
The government asserted in its briefs that the award of $30,000,000 in non-economic
damages in this case is the largest ever to a single family. Bravo and Rodriguez did not disagree.
While our own research suggests that assertion was true at the time the government made it, a
recent award by a California district court is slightly higher. In Gutierrez v. United States, No.
8:04-cv-01045-AHS-AN (C.D. Cal. Sept. 5, 2007), appeal filed, No. 07-56708 (9th Cir. Nov. 5,
2007), the court awarded a severely injured four-year-old child with a life expectancy of thirty-
five years $31,000,000 in non-economic damages and also awarded the child’s mother $750,000
in non-economic damages. Gutierrez, No. 8:04-cv-01045-AHS-AN, slip op. at 9, 27, 38–39.
The government has appealed the judgment in Gutierrez to the Ninth Circuit. See Gutierrez v.
United States, No. 07-56708 (9th Cir. Nov. 5, 2007).
Our dissenting colleague cites another large FTCA judgment from the Fifth Circuit,
Dickerson ex rel. Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002), and notes that the
total award in that case, before it was reduced on appeal, was higher than the total award here.
This observation is true, but irrelevant. We are not concerned with the size of the total award in
this case, but instead with the size of the non-economic damages portion of the award.
7
The government raises three primary issues on appeal, contending that the
district court erred by: (1) finding that Dr. Kushner was a government employee
instead of an independent contractor; (2) failing to apply Fla. Stat. § 768.81(3) to
apportion the damages among the joint tortfeasors; and (3) not further reducing the
damages awarded.
A.
There is some dispute among the circuits about whether an individual’s
status as a government employee in a given factual scenario is a question of law
subject to de novo review or a question of fact subject to clear error review. See
Duplan v. Harper, 188 F.3d 1195, 1200 (10th Cir. 1999) (holding that an
individual’s status as a government employee for the purpose of the FTCA is a
question of law); Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998)
(same); but see Van Camp & Bennion v. United States, 251 F.3d 862, 865 (9th
Cir. 2001) (“We review for clear error the question whether independent
contractor status as opposed to employee status was correctly determined.”). We
need not take our place on one side or the other of the split because it does not
matter in this case. Under either standard of review, we would leave the district
court’s determination of the government employee issue standing.
The district court stated that the question of Dr. Kushner’s employment
8
status was “merely academic,” because the court determined that either of two
exceptions to Fla. Stat. § 768.81(3) applied, making all of the defendants jointly
and severally liable for the entire damage award regardless of whether Dr.
Kushner was an employee of the government. Alternatively, the court addressed
the issue of Dr. Kushner’s employment status, and interpreted the various
contracts to mean that he was employed by the government for FTCA purposes.
Because we agree with that alternative ruling we need not address the § 768.81(3)
issues.
We have established the “control test” for determining whether an
individual is a government employee or an independent contractor: “[A] person is
an employee of the Government if the Government controls and supervises the
day-to-day activities of the alleged tortfeasor during the relevant time.” Patterson
& Wilder Constr. Co. v. United States, 226 F.3d 1269, 1274 (11th Cir. 2000).
Contrary to the government’s argument, and what might be deduced from the
language we have just quoted, the test does not require that the government
exercise actual control over an individual. It is enough that the government has
reserved the power or authority to control him. In Patterson, we put it this way:
“[I]t is not necessary that the Government continually control all aspects of the
individual’s activities, so long as it has the authority to do so given the nature of
9
the task.” Id.; see also Logue v. United States, 412 U.S. 521, 527–28, 93 S. Ct.
2215, 2219 (1973) (“[T]he critical factor in [determining if an individual is a
government employee or an independent contractor] is the authority of the
principal to control the detailed physical performance of the contractor.”
(emphasis added)).
The question of whether the Naval Hospital reserved the right to control Dr.
Kushner’s activities is one whose answer depends on the various contractual
provisions. The Naval Hospital’s own “Statement of Work” was incorporated into
the Resource Sharing Agreement it had with Humana, and also into Dr. Kushner’s
contract with Sterling. The statement establishes that:
The contractor OB/GYN [Dr. Kushner] physician activities shall be
subject to day-to-day direction by Navy personnel in a manner
comparable to the direction over Navy uniformed and civil service
personnel engaged in comparable work. The term “direction” is
defined as that process by which the OB/GYN physician receives
technical guidance, direction and approval with regard to an element
of work or a series of tasks within the requirements of this agreement.
What’s more, the Resource Sharing Agreement between Humana and the hospital
was also subject to the original TRICARE contract between Humana and the
Department of Defense. The original TRICARE contract, as incorporated into the
Resource Sharing Agreement, provided:
[Humana] shall be responsible for monitoring the performance of
10
Resource Sharing personnel [Dr. Kushner] to ensure compliance with
the terms and conditions of the Resource Sharing provider
agreements. However, this does not preclude Resource Sharing
personnel [Dr. Kushner] from complying with directions received
from [Navy hospital] professional personnel in the course of patient
care activities.
(emphasis added). Even though Humana, as the government contractor, retained
the authority to enforce the terms of the agreement, the contractual language
makes clear that the Naval Hospital reserved the right to direct Dr. Kushner “in the
course of patient care activities.” That TRICARE contract provision and the
“Statement of Work” contained in the other contracts show that the government
retained sufficient control over the day-to-day activities of Dr. Kushner to satisfy
the Patterson control test.
The Resource Sharing Agreement does provide that “[t]he contractor
[Humana] shall be solely liable for negligent acts or omissions of the contractor’s
agents [Sterling and Dr. Kushner] and shall ensure that providers maintain full
professional liability insurance,” but the allocation of insurance obligations is only
one factor in determining an employee’s status. See, e.g., Duplan, 188 F.3d at
1200. We look at the “totality” of the relationship, Patterson, 226 F.3d at 1276,
and doing that, we agree with the district court that Dr. Kushner was a government
employee for FTCA purposes.
11
Because Dr. Kushner was an employee of the government, we need not
reach the government’s argument that liability should have been apportioned
among the separate tortfeasors in accordance with Fla. Stat. § 768.81(3).
Regardless of the applicability of that statue, the government is liable for the entire
judgment in its role as employer.
B.
Our review of the size of the damages verdict is for clear error. Ferrero v.
United States, 603 F.2d 510, 512 (5th Cir. 1979).2 “[T]he components and
measure of damages in FTCA claims are taken from the law of the state where the
tort occurred . . . .” Johnson v. United States, 780 F.2d 902, 907 (11th Cir. 1986)
(quoting Harden v. United States, 688 F.2d 1025, 1029 (5th Cir. Unit B 1982))
(internal quotation marks omitted). Florida law dictates that a verdict cannot stand
if it: (1) “is so extravagant that it shocks the judicial conscience,” (2) “is
manifestly unsupported by the evidence,” or (3) “indicates the jury was influenced
by passion, prejudice or other matters outside the record.”3 Citrus County v.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
3
Our dissenting colleague makes much of the fact that we have pointed to no evidence
that the factfinder, in this case the district court judge, was “influenced by passion, prejudice or
other matters outside the record,” Citrus County v. McQuillin, 840 So. 2d 343, 347 (Fla. 5th
DCA 2003), or that the award “is manifestly unsupported by the evidence,” id. Dissenting op. at
12
McQuillin, 840 So. 2d 343, 347 (Fla. 5th DCA 2003); see also Krys v. Lufthansa
German Airlines, 119 F.3d 1515, 1530 (11th Cir. 1997) (applying Florida law).
Florida law is also clear that a “verdict must be set aside if it is so inordinately
large as 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.
In this case, the district court initially awarded a total of more than $60
million with $50 million of that being for non-economic damages. Bravo and
Rodriguez were awarded $40 million ($25 million for Bravo and $15 million for
Rodriguez) to compensate them for their non-economic suffering, while the child
was awarded $10 million for that purpose. Without detailed explanation the court
later reduced Bravo’s and Rodriguez’s non-economic damages awards by a total
of $20 million, leaving them with $20 million ($15 million for Bravo and $5
million for Rodriguez).4 The court left in place the child’s non-economic damages
award of $10 million. There was also an economic damages award to Bravo of
56. Our decision does not, and need not, rest on those bases. Instead, we confine our discussion
to the first reason to set aside a verdict as excessive, that it “is so extravagant that it shocks the
judicial conscience,” McQuillin, 840 So. 2d at 347, and to the requirement under Florida law that
an award of non-economic damages “bear a reasonable relation to the philosophy and general
trend of prior decisions in such cases,” Johnson, 780 F.2d at 907.
4
The government filed a motion for new trial, or in the alternative, to amend the
judgment. The district court entered an order denying that motion, except to the extent that it did
reduce the award of non-economic damages to Bravo and Rodriguez by $10 million each.
13
approximately $10 million.
We recognize the deep and abiding tragedy of the loss Bravo and Rodriguez
suffered. They are obviously entitled to recover a substantial amount to
compensate them for their mental pain and suffering and for the loss of their
child’s companionship. Our task as an appellate court, however, is to decide the
question of whether the award that Bravo and Rodriguez received is excessive. As
the Third District Court of Appeal has explained, the excessiveness of an award is
an issue that “will have to be determined in each individual case by the particular
court upon the examination of a cold record without being subjected to prejudice
and bias that may be occasioned in the emotionally charged atmosphere of a trial
courtroom.” Seaboard Coast Line R.R. Co. v. McKelvey, 259 So. 2d 777, 781
(Fla. 3d DCA), approved by 270 So. 2d 705 (Fla. 1972). Performing our task, we
conclude that the award to Bravo and Rodriguez of $20 million in non-economic
damages is excessive. It does “jar or shock the judicial conscience of an appellate
court.” Id. We reach this conclusion not by “plowing a new and rather circuitous
route,” Dissenting op. at 38, but by walking a well-worn and clearly marked path
paved by the Florida court that would have reviewed this judgment if it had been
rendered in a state court.
Our conclusion is bolstered by the fact that the $20 million to Bravo and
14
Rodriguez (to say nothing of the additional $10 million to the child) is one of the
largest non-economic damages awards ever given anywhere in this country to a
single family in the six-decade long history of the FTCA. It is grossly in excess of
any non-economic damages award in any FTCA case applying Florida law in this
circuit that we have been able to find. See, e.g., Dempsey ex rel. Dempsey v.
United States, 32 F.3d 1490, 1497 (11th Cir. 1994) (affirming an award of “$1.3
million to [the deceased infant’s] parents for the loss of [their child’s] society and
affection” (internal quotation marks omitted)); Johnson, 780 F.2d at 908 (vacating
an award of $2 million, a portion of which was for mental pain and suffering, in a
medical malpractice case involving the death of an infant because there was
“nothing in the record before the district court to justify the amount of damages
awarded,” despite the fact that the parents testified at trial); Fairhurst v. United
States, 2006 WL 2190553, at *4–5 (N.D. Fla. Aug. 1, 2006) (awarding $500,000
in non-economic damages to surviving spouse of elderly service member for her
own pain and suffering and that of her husband in medical malpractice case);
Turner v. United States, 2005 WL 2077297, at *9 (M.D. Fla. Aug. 26, 2005)
(awarding $2.5 million in non-economic damages to a nine-year-old child who
was blinded and suffered “brain damage and severe injuries” as a result of medical
malpractice at a naval hospital; also awarding $750,000 in non-economic damages
15
to both of the child’s parents), aff’d in part, rev’d in part, & vacated in part, 514
F.3d 1194 (11th Cir. 2008); Grayson v. United States, 748 F. Supp. 854, 863 (S.D.
Fla. 1990) (awarding $2.95 million dollars in non-economic damages to a navy
serviceman whose wife and two children were killed as a result of the Navy’s
failure to properly maintain a pier), 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, 765 (N.D. Fla. 1988) (awarding $900,000 each to parents who lost a
young child and recognizing that the parents’ pain and suffering was “real and
intense and [would] remain a part of their lives for many years”).
We find further support for our conclusion in the Florida appellate court
decisions addressing whether other non-economic damage awards were excessive,
which we will discuss in more detail later. Under Florida law an award of non-
economic damages must “bear a reasonable relation to the philosophy and general
trend of prior decisions in such cases.” Johnson, 780 F.2d at 907 (quoting
Gresham v. Courson, 177 So. 2d 33, 39–40 (Fla. 1st DCA 1965)) (applying
Florida law); see also id. at 907–08 (“[I]t must bear some reasonable relation to . . .
the philosophy and general trend of decisions effecting such cases.” (quoting Fla.
Dairies Co. v. Rogers, 161 So. 85, 88 (Fla. 1935))).
We first grappled with this standard in the Johnson case. There we vacated
16
a judgment of $2 million in an FTCA medical malpractice case because the district
court had erred in excluding the testimony of a government expert witness.
Johnson, 780 F.2d at 906. We also reached an alternative holding to support our
decision. Id. That alternative holding counts because in this circuit additional or
alternative holdings are not dicta, but instead are as binding as solitary holdings.
Johnson v. DeSoto County Bd. of Comm’rs, 72 F.3d 1556, 1562 (11th Cir. 1996)
(“[W]e are bound by alternative holdings.”); McClellan v. Miss. Power & Light
Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (en banc) (“It has long been settled
that all alternative rationales for a given result have precedential value. It does not
make a reason given for a conclusion in a case obiter dictum, because it is only
one of two reasons for the same conclusion.” (internal quotation marks and
citations omitted)); see also Massachusetts v. United States, 333 U.S. 611, 623, 68
S. Ct. 747, 754 (1948) (explaining that where a decision “rested as much upon the
one determination as the other. . . . the adjudication is effective for both”).
We held in Johnson that, even putting aside the evidentiary error, the
judgment still was due to be reversed because the $2 million non-economic
damages award was excessive. Johnson, 780 F.2d at 906. In articulating the
standard for gauging excessiveness under Florida law, we noted that “Florida
appellate courts rely heavily on the damages awarded by juries in similar cases,”
17
id. at 907, and we explained that:
Although 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. Perhaps some research or
compilation of similar cases tried in Florida is available that could be
submitted to the court and could be made a part of the record to
furnish a basis for the amount that should ultimately be awarded.
Id. at 908 (citations omitted).
The parties disagree about what that passage from our Johnson opinion
means. The crux of their disagreement is whether we should confine our review to
published decisions of Florida appellate courts in gauging the philosophy and
general trend of decisions in cases similar to this one. The government’s position
is that we should look only to reported appellate decisions applying Florida law
that actually decide whether awards are excessive. Bravo and Rodriguez argue
that we should also look to jury verdicts, trial court opinions, and reported
appellate decisions that affirm judgments even when they do not address whether
the award was excessive.
We acknowledge, as the dissenting opinion points out, that district courts
and some appellate courts in Florida have interpreted Johnson as Bravo and
Rodriguez argue we should. See, e.g., Grayson, 748 F. Supp. at 863 (considering
18
both jury verdicts and settlements in “ascertaining the trend of damage awards”);5
Williams, 681 F. Supp. at 764–65 (purporting to apply Johnson and considering
jury verdicts and Florida appellate decisions to gauge the excessiveness of
non-economic damages award); McQuillin, 840 So. 2d at 347 & n.2 (reviewing
awards affirmed by another Florida appellate court, other states’ appellate courts,
the Eleventh Circuit, and one federal district court, and concluding that an award
of non-economic damages totaling $4.4 million “although on the outer limit in
size, [was] not so excessive as to shock [the court’s] composite judicial
consciences”); cf. Kammer v. Hurley, 765 So. 2d 975 (Fla. 4th DCA 2000)
(reversing the trial court’s remittitur order after concluding that portions of the
5
Our dissenting colleague notes that we affirmed the district court’s judgment in
Grayson. Dissenting op. at 2644. That affirmance gives no additional weight to the district
court’s opinion in that case. Our entire unpublished opinion in that case simply reads: “The
judgment of the district court is AFFIRMED except the district court’s award of interest from the
date of the initial judgment as opposed to date of the affirmance is vacated.” Grayson v. United
States, 953 F.2d 650 (11th Cir. 1992) (unpublished table decision). Because our Grayson
opinion is unpublished, it is not binding precedent. 11th Cir. R. 36-2.
In its opinion in Grayson the district court listed a number of verdicts and settlements that
it considered in setting an award of non-economic damages for the loss of the Grayson’s
children. Grayson, 748 F. Supp. at 863–66. The court summarized those cases: “Four of the
nineteen cases involve damages for the death of a child under ten years old. In these four cases,
it appears that damages for a parent approximated $1 million for the wrongful death of a child.”
Id. at 863. The district court did not pick the highest judgment it could find but instead came up
with a general amount or average. The resulting award was for $1.7 million in 1990 dollars
($850,000 for the death of each child). Id. Adjusted for inflation that award would be
approximately $1,350,000 for each child in today’s dollars. So, if we were to use the Grayson
case as our touchstone, we certainly would vacate the $20 million non-economic damages award
Bravo and Rodriguez received in this case.
19
non-economic damages awarded were not excessive when measured against other
Florida appellate decisions, one of which did not address the issue of
excessiveness).
Other courts, including other Florida appellate courts, in judging
excessiveness have limited their consideration of other awards to those that have
been challenged on appeal. See, e.g., Compania Dominicana de Aviacion v.
Knapp, 251 So. 2d 18, 23 (Fla. 3d DCA 1971) (determining that a verdict which
included non-economic damages in a wrongful death case was not excessive after
comparing it to reported Florida appellate decisions and rejecting one party’s
reliance on “mere reports of trial verdicts” because such reports were “not binding
as precedent” and were “factually distinguishable”); Smith v. Goodpasture, 179
So. 2d 240, 242 (Fla. 2d DCA 1965) (reversing an award for non-economic
damages as excessive because it did not bear a “reasonable relation to . . . the
philosophy and general trend of decisions affecting such cases” and citing only
published Florida appellate decisions in determining the trend); Gresham, 177 So.
2d at 39–40 (reversing an award of non-economic damages as excessive after
“duly not[ing] the amount of damages sustained by the appellate courts of Florida
in like actions”).
Presented with this variation among the state appellate courts as to the
20
proper approach, because we are bound to decide the issue the way the Florida
courts would have, we look to the decisions of the Florida appellate court that
would have had jurisdiction over an appeal in this case had it been filed in state
court. See Farmer v. Travelers Indem. Co., 539 F.2d 562, 563 (5th Cir. 1976) (“A
state action by this Lee County plaintiff would have been reviewed by the Second
District [Court of Appeal]. Undoubtedly the trial court and the Second District
would have followed the recent Second District opinion. Thus, the same law has
been applied in federal court as would have been applied in the specific courts
available to plaintiff in the state system.”); see also Peoples Bank of Polk County
v. Roberts, 779 F.2d 1544, 1546 (11th Cir. 1986) (following a particular District
Court of Appeal decision because “it is the law that would have been applied in
the specific courts available to plaintiff in the state system” (internal quotation
marks omitted)). This case was filed in the Miami Division of the United States
District Court for the Southern District of Florida. State courts located there are
within the territory of, and are bound to follow decisions issued by, the Third
District Court of Appeal.
Every decision we have found of the Third District Court of Appeal that
looks to other judgments, thereby applying the general trend and philosophy
approach to judging the excessiveness of non-economic damages awards,
21
considers only awards that have been challenged and upheld on appeal. In
Metropolitan Dade County v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974), the court
looked to two reported Florida appellate decisions when it applied the “shocks the
conscience” standard and affirmed an award of $900,000 to parents of a six-year-
old child killed by a county garbage truck. Dillon, 305 So. 2d at 40–41. In
McKelvey, the court noted that it had been “pointed to a number of authorities
throughout [the] country on the amount of damages approved by appellate courts”
for similar injuries. McKelvey, 259 So. 2d at 780. Nevertheless, the court only
cited and relied on reported Florida appellate decisions to assess whether an award
of $399,000 for pain and suffering for the loss of an arm was excessive and
concluded that it was not. Id. at 780–81. In Knapp, the court determined that a
verdict which included non-economic damages in a wrongful death case was not
excessive, but it did so only after comparing it to reported Florida appellate
decisions. Knapp, 251 So. 2d at 23. In the course of doing that, the court refused
to consider “numerous million dollar jury verdicts” in part because “[m]any are
mere reports of trial verdicts which are not binding as precedent.” Id. None of
those Third District Court of Appeal decisions measuring the philosophy and trend
of judgments in Florida looked to judgments that had not been size-tested on
22
appeal.6
Our dissenting colleague points out that in Loftin v. Wilson, 67 So. 2d 185
(Fla. 1953), a decision we cited in Johnson, the Florida Supreme Court relied not
only on Florida appellate decisions but also on trial and appellate opinions from
outside of Florida to gauge the excessiveness of a non-economic damages award.
Loftin, 67 So. 2d at 189–90. If we were operating in a decisional vacuum, Loftin
might affect our analysis, but the atmosphere we are working in includes later
Third District Court of Appeal decisions, one of which the Florida Supreme Court
6
The dissent cites Sta-Rite Industries., Inc.v. Levey, 909 So. 2d 901 (Fla. 3d DCA 2004),
as an example of a Third District Court of Appeal decision considering a trial court opinion from
another state to determine whether a damages award was excessive. In Levey the Third District
Court of Appeal reversed a judgment of $104,409,053.20, some unknown portion of which was
for non-economic damages. Id. at 903, 909. The court did so because it concluded that the
award was based on “equivocal and uncertain testimony,” was “shockingly excessive,” and was
“contrary to the manifest weight of the evidence.” Id. at 909. In one of the string citations that
follows those conclusions, the court cited a decision of the Northern District of New York, Slade
v. Whitco Corp., 811 F. Supp. 71 (N.D.N.Y. 1993). Levey, 909 So. 2d at 909.
The Levey court did not compare the damages award before it to Slade, or to any of the
Florida decisions contained in the string citations. Id. The string citations in Levey look nothing
like the fact and amount-driven comparisons present in Knapp, McKelvey, and Dillon. Compare
id., with Knapp, 251 So. 2d at 23, McKelvey, 259 So. 2d at 780–81, and Dillon, 305 So. 2d at 40.
Instead, it seems clear that the court cited Slade, and other cases, for the straightforward
proposition that a damages award “not based upon sufficient credible evidence” cannot be
sustained. Slade, 811 F. Supp. at 76. Our interpretation of Levey is bolstered by the fact that the
Slade court left in place the jury’s non-economic damages award but ordered a remittitur of the
economic damages award, which it concluded was not supported by the evidence but instead
speculative testimony about the injured person’s life expectancy. Slade, 811 F. Supp. at 77–78.
The Third District Court of Appeal in Levey was faced with similarly “uncertain testimony”
about the injured person’s life expectancy. Levey, 909 So. 2d at 909. We therefore read Levey
not as a retreat from the approach set forth in Knapp, McKelvey, and Dillon, but as a nod to
persuasive authority from another jurisdiction on a relevant point of law.
23
affirmed. See Seaboard Coast Line R.R. Co. v. McKelvey, 270 So. 2d 705,
706–07 (Fla. 1972). Because we are bound to apply the specific law that would
govern if this case were brought in state court, which in this case would be the
Third District Court of Appeal’s approach to size-testing non-economic damages
awards against only published Florida appellate decisions, an approach the Florida
Supreme Court has affirmed, Loftin does not dictate that we decide this case
differently.7
There is also the fact that our Johnson opinion speaks of “reported” cases
and uses the descriptive phrase “damage awards determined not to be excessive in
similar cases,” language which most aptly describes awards reviewed for
7
We disagree with the dissenting opinion’s characterization of the relationship between
Loftin and McKelvey. While it is true that the Florida District Courts of Appeal may not
overrule a decision of the Florida Supreme Court, that is not what we have here. Even though
the Florida Supreme Court did not discuss the Third District Court of Appeal’s approach to
selecting comparator cases in its decision affirming McKelvey, it did affirm McKelvey, which is
good enough for our purposes. Moreover, in McKelvey the Third District Court of Appeal cited
Loftin. See McKelvey, 259 So. 2d at 781. It gave no hint of any conflict between its decision
and Loftin. We will not second-guess the relevant Florida appellate court’s read of this state law
issue, especially since the Third District Court of Appeal has used the approach we take to
settling this issue both before and after McKelvey.
We also disagree with our dissenting colleague’s suggestion that we should infer from
McKelvey that “the comparative analysis is not confined solely to published Florida decisions.”
Dissenting op. at 44 n.3. McKelvey cited no decisions from outside of Florida. That the parties
to the case “pointed to a number of authorities throughout [the] country on the amount of
damages approved by appellate courts” for similar injuries, McKelvey, 259 So. 2d at 780, does
not mean that the court adopted that approach. If the court had relied on decisions from outside
of Florida to gauge excessiveness, it would have told us so by citing those decisions. The fact
that it did not do so is telling.
24
excessiveness on appeal. In Johnson we relied on Gresham v. Courson, 177 So.
2d 33 (Fla. 1st DCA 1965), when articulating the rule that we look only to
reported Florida appellate decisions to measure excessiveness. Johnson, 780 F.2d
at 907–08. The First District Court of Appeal in Gresham looked only to reported
decisions of Florida’s appellate courts to guide its determination of whether an
award for pain and suffering in an action for the wrongful death of a child bore a
“reasonable relation to the philosophy and general trend of prior decisions in such
cases.” Gresham, 177 So. 2d at 39. After reviewing the “only reported case in
[Florida] involving the wrongful death of the child of the age” of the plaintiff’s
child, and after noting “the amount of damages sustained by the appellate courts of
Florida in like actions,” the court reduced the award accordingly. Id. at 38–40.
This interpretation of Johnson makes sense. The restriction of our
consideration to reported appellate decisions in which awards were tested for size
assures that we assess the “philosophy and general trend of prior decisions in such
cases” on a statewide basis, not on the basis of varied trial court decisions.
Focusing on awards that are appealed is also essential to ensuring that the measure
is not skewed by phantom awards. There are a number of reasons that a verdict or
award entered at the trial stage may not realistically reflect what is actually going
on in the world of damage awards. Sometimes the limits of the defendant’s assets
25
or of its insurance policy make most of an award meaningless and remove any
incentive for testing its size on appeal. Other times there will be a high-low
agreement that renders much of an award academic. Still other times the parties
will settle after the verdict or award is announced for a more realistic amount
which is not disclosed. In each of those situations, phantom awards that might
well have been set aside as excessive on appeal, or even in further proceedings at
the trial stage, are left to haunt the judgment books.
To take just one example, consider a case in which a jury returns a verdict
for $100 million in non-economic damages. News of that huge verdict will, of
course, be heralded in the usual bulletins and newsletters. The attorneys for both
sides will recognize that an award of that size has no chance of being upheld on
appeal. Suppose as well that it goes about $98 million beyond the assets and
insurance of the defendant anyway. The two sides will do what we encourage
them to do, which is to negotiate a more realistic figure between one and two
million dollars. Settlements like that one are often kept confidential, and the news
of the $100 million award cannot be recalled. Under Bravo and Rodriguez’s view
the ghost of that other-worldly award would establish that anything less than $100
26
million is not excessive. It cannot be.8
At oral argument the parents’ counsel relied heavily on Eagleman v.
Korzeniowski, 924 So. 2d 855 (Fla. 4th DCA 2006). The facts of that case are
similar to those in this case, and there was a large award of non-economic
damages: $7 million to each parent and $17 million to the child. Id. at 858. The
damages award, however, was not appropriately appealed in the Eagleman case.
In fact, the defendant’s counsel failed to properly preserve any issues for appeal
and the point of the Florida appellate court’s opinion was “to remind trial counsel
of the necessity of a proper objection to preserve issues for appellate review.” Id.
at 856–57. The court determined that none of the issues raised on appeal were
properly before it and dismissed the appeal. Id. at 856. Because the damages
award was not put into issue and was not addressed by the Eagleman decision, it
does not assist us in assessing Florida’s “philosophy and general trend” regarding
non-economic damages. (Even if the issue of excessiveness had been raised and
8
This is not a farfetched example. One of the judgments that Bravo and Rodriguez
relied on in the district court and before us awarded a total of $46.5 million in non-economic
damages. See Appellee’s Br. Ex. A (citing Navarro v. Austin, No. 02–6154 (Fla. Cir. Ct. Sept.
29, 2006)). The public docket in that case indicates that sometime after the notice of appeal was
filed the parties filed a joint motion to dismiss, which was granted, and thereafter there is an
entry stating: “Approval of Global Mediated Settlement Granted.” We do not know the
settlement amount or how much of it was for non-economic damages, yet Bravo and Rodriguez
would have us count the huge pre-settlement award in Navarro in their favor. That we will not
do.
27
the award affirmed, the $14 million awarded to the parents in Eagleman would
still be less than the total award to the parents in this case.)
Bravo and Rodriguez have also brought to our attention two other large jury
verdicts. See Hinton v. 2331 Adams St. Corp., No. 01-12933 (Fla. Cir. Ct. Jan.
30, 2003) (awarding $45 million in non-economic damages); Navarro v. Austin,
No. 02-6154 (Fla. Cir. Ct. Sept. 29, 2006) (awarding $46.5 million in non-
economic damages). We know nothing about the facts of those two cases. We do
not know what happened to the awards after they were entered. We do not know
whether they were later set aside by the trial court, or if there was a post-award
settlement for a substantially lower amount. We do know that there was a post-
judgment settlement in Navarro, but the details of it are unknown. See supra at 27
n.8. We also know that there is no appellate decision sustaining against an
excessiveness challenge the award in either of those two cases.
Cases resulting in recent appellate decisions actually addressing whether a
given damage award is excessive are far more helpful, and there are some of those.
See, e.g., Glabman v. De La Cruz, 954 So. 2d 60, 62–63 (Fla. 3d DCA 2007) (per
curiam) (reversing as excessive the award of $8 million in non-economic damages
to the parents of a teenage girl who died as a result of medical malpractice,
reasoning that it was so large it could only have been the product of passion and
28
emotion); Citrus County v. McQuillin, 840 So. 2d 343, 347 (Fla. 5th DCA 2003)
(holding that a $4.4 million verdict in non-economic damages to the seven-year-
old son of a woman who was killed in a car accident, while “on the outer limit in
size,” was not so excessive as to require reduction (emphasis added)); Kammer v.
Hurley, 765 So. 2d 975, 978 (Fla. 4th DCA 2000) (holding that a $2.5 million
award to each parent for mental pain and anguish was not excessive where doctor
negligently crushed the skull of the child just before birth, causing a stillborn
delivery); see also Walt Disney World Co. v. Goode, 501 So. 2d 622, 626 (Fla. 5th
DCA 1986) (holding that award of $1 million for past and future pain and
suffering to each parent of a child who drowned on amusement park premises was
not excessive).
Those decisions establish, among other things, that a total award of $5
million in non-economic damages to both parents of a child killed by medical
malpractice was not excessive in 2000, Kammer, 765 So. 2d at 977–78, and that a
$4.4 million non-economic damages award in 2003 also was not excessive,
although the Florida appellate court noted that it did push the outer limits of
permissible size, McQuillin, 840 So. 2d at 347. Those decisions also establish that
in 2003 a total award of $8 million in non-economic damages to parents for the
loss of a child through medical malpractice was so excessive that it could only
29
have been the product of passion and emotion. Glabman, 954 So. 2d at 62–63.
The most favorable decision for Bravo and Rodriguez is General Motors
Corp. v. McGee, 837 So. 2d 1010 (Fla. 4th DCA 2002). In that case the parents
watched as their son was trapped in a burning car. McGee, 837 So. 2d at 1015.
He finally escaped but died later. Id. at 1016. Before the child died, he suffered
burns over 98 percent of his body, but he could not even cry out because his vocal
cords were “scorched.” Id. The emergency room staff had to cut off his skin to
relieve the pressure on his chest. Id. The physician who supervised the boy’s care
in the last few hours of his life described his injuries as the worst he had seen in a
surviving burn victim. Id. The boy’s father recounted seeing the boy suffer after
the accident, recalling that “[h]e was black, he was just burned. I didn’t see any
hair, I didn’t see any ears. I could see his braces; he had wor[n] braces.” Id. at
1016 n.4. Both parents were also severely burned in the accident, as was their
daughter. Id. at 1016. The mother’s and daughter’s burns were so severe that they
each had to be immersed in a stainless steel tub of antiseptic to have their blisters
scrubbed off every day. Id. The parents were not only suffering terribly from their
own wounds and grieving over the loss of their son, but they also had to endure
their daughter’s screams as she had her burn blisters scraped and treated twice
daily. Id.
30
The Fourth District Court of Appeal affirmed a total judgment of $60
million against General Motors in the McGee case. Id. at 1030, 1039. Included in
that total was $30 million to the parents for non-economic damages stemming
from their son’s injuries and death. Id. at 1030. In affirming, the court stated that
in the sixty years combined judicial experience of the judges on that appellate
panel, “[t]hese injuries and the suffering they caused were extraordinary, among
the worst that this panel has ever encountered.” Id. at 1039.
The 2002 McGee decision by the Fourth District Court of Appeal must be
read not only against the total facts and circumstances of that case, but also in light
of the other Florida appellate court decisions of the same era. One year after the
McGee decision the Fifth District Court of Appeal held that a $4.4 million award
for non-economic damages to a seven-year-old for the death of his mother was “on
the outer limit in size” of what is permissible. McQuillin, 840 So. 2d at 347. And
five years after the McGee decision—just last year—the Third District Court of
Appeal reversed an award of $8 million in non-economic damages to the parents
($4 million to each) of a child killed through medical malpractice on the ground
that the amount was so large that it must have been the product of emotion and
passion. Glabman, 954 So. 2d at 62. The McQuillan and Glabman decisions are
more recent than the McGee decision and convince us that McGee is the outlier.
31
It is difficult to reconcile the Fourth District Court of Appeal’s McGee
decision on the one hand, and the Third and Fifth District Court of Appeals’
Glabman and McQuillan decisions on the other. Given the lack of any fixed,
precise standards it may simply be that the point at which an award shocks the
judicial conscience varies from district court of appeal to district court of appeal in
Florida.9 Our choice between them is guided by our duty, which we have already
noted, to decide this issue the way it would have been decided if the case had
arisen in the state courts and had been appealed there. The award would have
been reviewed by the Third District Court of Appeal. That court would not be
bound by the Fourth District’s McGee decision, but would instead follow its own
decision last year in Glabman. For that reason, we will follow it too.
9
The Florida Supreme Court, of course, could resolve the differences between the
district courts of appeal, but it has been more than thirty years since that Court’s last decision on
the subject. See Seaboard Coast Line R.R. Co. v. McKelvey, 270 So. 2d 705 (Fla. 1972). There
is unlikely to ever be another one from it, because the Florida Legislature has resolved the matter.
In 2003 the legislature enacted a statute imposing a $1 million cap on “the total
noneconomic damages recoverable from all practitioners, regardless of the number of claimants”
in all medical malpractice cases resulting in a permanent vegetative state or death. Fla. Stat. §
766.118(2)(b). As a result of that statute, except possibly for one or two remaining
pre-enactment, straggler cases, there will never be another non-economic damages award above
$1 million in a case like this one.
The reform legislation does not apply to this case because the complaint was filed just
days before the effective date of the act. Nevertheless, it is interesting to note that the people of
Florida through their representatives have decided that the ceiling for non-economic damages in
cases like this one ought to be $19 million less, or 95 percent lower, than was awarded to Bravo
and Rodriguez.
32
For all of these reasons, we conclude that the record-setting award of non-
economic damages in this FTCA case—$15 million to Bravo and $5 million to
Rodriguez—is “so extravagant that it shocks the judicial conscience,” McQuillin,
840 So. 2d at 347, and for that reason it is clear error which must be overturned.
C.
The government also contends that the award of $10 million in
non-economic damages to Kevin himself is excessive, but in light of the abatement
doctrine that is an issue we need not address. The parties agreed at oral argument
that because Kevin died during the pendency of this appeal, if we vacated any part
of the judgment and remanded for any reason, the judgment would no longer be
“final” and the Florida abatement statute, Fla. Stat. § 768.20, would apply. We are
vacating the portion of the judgment awarding non-economic damages to Bravo
and Rodriguez, so the abatement statute does apply.
As a result, the medical malpractice personal injury action will abate and be
replaced by a wrongful death action. Kevin’s personal claims will not survive his
death, and both the economic and non-economic damages awarded to him will
have to be reevaluated accordingly. See Variety Children’s Hosp., Inc. v. Perkins,
382 So. 2d 331, 336 & n.1 (Fla. 3d DCA 1980) (noting that had the court not
affirmed the decision below and instead reversed on the merits, “the action would
33
again be ‘pending’ in the lower court and would, by operation of Sec. 768.20, then
be subject to abatement”); Levey, 909 So. 2d at 908 n.16 (noting that the effect of
the death of the plaintiff on the reversed final judgment “may be to ‘abate’ the
personal injury action entirely in favor of a yet-to-be brought action for [the
plaintiff’s] wrongful death”). Likewise, Bravo’s and Rodriguez’s derivative loss
of consortium claims do not survive Kevin’s death. See ACandS, Inc. v. Redd,
703 So. 2d 492, 494 (Fla. 3d DCA 1997) (holding that a spouse’s loss of
consortium claim is a derivative action that abates with the death of the injured
spouse).10
D.
As for the district court’s award of economic damages to Bravo, we have no
need to pass on the government’s contention that the district court clearly erred in
calculating them. Because the calculation was based on Kevin living twenty-one
10
There appears to be a split among the district courts of appeal in Florida as to whether
a loss of consortium action is derivative (abating with the injured party’s death) or independent
(surviving the injured party’s death). Compare Taylor v. Orlando Clinic, 555 So. 2d 876, 878
(Fla. 5th DCA 1989) (holding consortium claim survives husband’s death), with ACandS, 703
So. 2d at 494 (holding consortium claim is derivative and, like the injured party’s claim, abates
with the injured party’s death). We are persuaded by the reasoning of the Third Circuit Court of
Appeal in that the loss of consortium claim is derivative and abates. ACandS, 703 So. 2d at 494.
We again note that had this case been filed in state court in Miami, the law of the Florida Third
Circuit Court of Appeal no doubt would have been applied. See Farmer, 539 F.2d at 563.
34
years, it will have to be re-calculated on remand. Should the government’s
dissatisfaction about that measure of damages survive the remand it can file an
appeal from the new judgment. Unless and until that happens, it would be
premature for us to speak to any of the issues that may arise in a future appeal.
IV.
The judgment entered against the government is VACATED, and the case
is REMANDED to the district court for further proceedings consistent with this
opinion.
35
WILSON, Circuit Judge, concurring in part, dissenting in part:
I concur with the majority on the liability issue and on apportionment of
damages. However, I would not interfere with the district court’s award of non-
economic damages.
The standard of review governing a claim of excessive damages is well-
established. Damage calculations are factual determinations committed to the
sound discretion of the factfinder. Hence, we review the factfinder’s award for
clear error. Ferrero v. United States, 603 F.2d 510, 512 (5th Cir. 1979). Our role
on appellate review is not to reassess the credibility of the witnesses or re-weigh
the evidence. See Williams v. United States, 405 F.2d 234, 239 (5th Cir. 1968)
(“We are not fact finders.”). Furthermore, we are not authorized to substitute our
judgment for that of the district court under the clear error standard of review. Id.
(“Thus, while we might differ with the District Court regarding the amount of the
award in this case, we cannot say that under the evidence it was ‘clearly
erroneous.’”). If there are two possible views of the evidence, the district court’s
preference for one of them cannot be clearly erroneous. “We [will] judge a trial
court’s finding to be clearly erroneous [only] when, after reviewing the entire
evidence, we are ‘left with the definite and firm conviction that a mistake has been
committed.’” Ferrero, 603 F.2d at 512 (quoting United States v. U.S. Gypsum
36
Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 29 L. Ed. 746 (1948)).
Seldom are injuries identical, and there is no formula prescribed by law to
calculate non-economic damages. Consequently, the amount awarded for pain and
suffering will vary widely from case to case. Such damages “are largely
speculative and difficult of determination, but no one’s estimate is better than [the
factfinder]’s.” Winner v. Sharp, 43 So. 2d 634, 636 (Fla. 1950). The factfinder is
simply required to award an amount it finds reasonable in light of the evidence.
Although the award of non-economic damages in this case is large, “a large
damage award by itself is not indicative of an excessive or improper verdict.”
Citrus County v. McQuillin, 840 So. 2d 343, 347 (Fla. 5th DCA 2003). “If the
jury’s award is so extravagant that it shocks the judicial conscience, or is
manifestly unsupported by the evidence or indicates the jury was influenced by
passion, prejudice or other matters outside the record, the court in its discretion
may set aside the verdict.” Id. This FTCA case was not considered by a jury.
Instead, this case was presented to the court during an eleven-day bench trial.
Regardless, we apply the same standard to review the damage award. The
majority is unable to point to any indication in the record that the United States
District Judge who awarded the plaintiffs damages in this case was influenced by
prejudice or passion. Nor is there any discussion in the majority opinion of any
37
mistake of fact, or evidence outside the record that influenced the judge as
factfinder. Rather, by plowing a new and rather circuitous route, the majority
concludes that the size of the verdict shocks the judicial conscience. To get there,
the majority creates a new rule for Florida: Florida and federal courts are limited
to considering only published appellate decisions when reviewing damage verdicts
for excessiveness. More about that later.
The evidence in this case showed that Kevin Bravo was profoundly brain
damaged as a result of his birth-related injuries. The delivering physician testified
that the standard of care, given the clinical evidence of distress and danger,
required Kevin to be delivered by 5:00 a.m. Even if the physician had called a
cescerean section by 7:30 a.m., with delivery at 8:00 a.m., Kevin would have been
normal. Yet, due to the negligence of multiple government actors, Kevin was not
delivered until 1:20 p.m. This resulted in Kevin being born cyanotic, with no
heart rate, respirations, muscle tone, or muscle reflex. It was only after 13 minutes
of resuscitation that Kevin’s heart finally began to beat, although he remained
unable to breathe and without muscle tone or reflex.
At 29 months (his age at the time of trial), Kevin had the developmental
stage of a 0–1 month old. He did not suck, swallow, eat, speak, see, hear, roll, sit,
or respond to any stimuli except pain. When anyone moved Kevin’s body, he
38
screamed in pain because his muscles were permanently contracted. Kevin’s
muscles were so rigid that his hip bones were pulled out of their sockets and his
leg was broken during a therapy session. Kevin had to be tube fed every few
hours and suctioned with a machine up to 20 times an hour to prevent him from
choking on his own secretions. He had been hospitalized 20 times in two years.
Experts testified that Kevin had a life expectancy of approximately 20 years and
would require around-the-clock care for life, in addition to several surgeries and
extensive therapy.
The record also contains evidence that Raiza Bravo suffered from major
depression and anxiety as a consequence of the traumatic experience of Kevin’s
birth and resulting injuries. At trial, she described the extreme emotional pain she
endured daily in tending to her son’s needs while knowing he would never have a
normal life. Her psychiatrist prescribed numerous medications to treat her
depression, anxiety, and insomnia. Raiza testifed that she and her husband could
not go out together alone because they could not leave Kevin, and they felt
restricted from taking him to social places because of all the machines he required.
Because of Kevin’s needs, his parents no longer socialized with friends, which
made them feel isolated. At trial, Kevin’s father explained how, like his wife, his
life completely revolved around Kevin. He testified that, while they had planned
39
to have at three or four children, Kevin’s condition influenced their decision not to
have other children until Kevin’s health improved. They both testified that,
because of the attention Kevin needed, they were no longer the young, romantic,
and active couple they once were.
According to the district court:
Kevin has been robbed of the life to which he was entitled, while his
parents have been robbed of the son, and the relationship with their
son, to which they were entitled. No one in the case disputed the
magnitude of Kevin’s injury, or the magnitude of the impact it has
had on all of their lives. Everyone agreed Kevin’s parents remain
devoted to providing Kevin with the most loving and supportive
environment possible, at great sacrifice to themselves. Florida law
provides compensation for these losses.
The district court awarded $10 million to Kevin for “any bodily injury” and
“any resulting pain and suffering, disability or physical impairment, disfigurement,
mental anguish, inconvenience, and loss of capacity for the enjoyment of life,
experienced in the past or to be experienced in the future.” The court also found
that Kevin’s parents should be compensated “[f]or any loss . . . by reason of the
injury to [their] son, Kevin, of his companionship, society, love, affection, and
solace.” Originally, the court awarded non-economic damages of $25 million to
Kevin’s mother and $15 million to Kevin’s father. The court reduced these
awards by $10 million each after the government filed its post-trial motion. This
40
resulted in a final non-economic damage award of $15 million to Kevin’s mother
and $5 million to Kevin’s father, for a total of $30 million (including the $10
million awarded to Kevin).
Although each case must be decided on its own facts and circumstances, we
generally consider the amounts awarded in prior cases for similar injuries to help
determine whether a damage award for pain and suffering is excessive. The
Florida Supreme Court has held:
In cases where damages for mental pain and suffering are
allowed, it must bear some reasonable relation to . . . the philosophy
and general trend of decisions effecting such cases. When we say
that the amount allowed must bear some reasonable relation to such
factors, we do not mean that it must be equal to, be twice these, or
bear any other arbitrary relation to them . . . .
Fla. Dairies Co. v. Rogers, 161 So. 85, 88 (Fla. 1935).
The majority opinion states that in determining the philosophy and general
trend of decisions effecting these cases in the State of Florida, we look only to
reported Florida appellate decisions. This misstatement of Florida law allows the
majority to ignore recent jury verdicts in factually similar cases awarding
comparable or higher damages for pain and suffering.
The majority opinion also disregards McGee1 as an “outlier,” which is a
1
Gen. Motors v. McGee, 837 So. 2d 1010 (Fla. 4th DCA 2003).
41
2002 Florida District Court of Appeal case where a much larger non-economic
award was upheld. The facts of that case closely mirror our own, and it ensures
that the award in this case is not excessive.
I will compare the damage awards in McGee and the other factually similar
cases to the award in this case, but first I will address the majority’s new and
unprecedented holding that we are limited to published appellate decisions by the
Florida District Courts of Appeal when reviewing for excessiveness.
Johnson v. United States
The majority relies heavily on our prior opinion in Johnson v. United States,
780 F.2d 902 (11th Cir. 1986), to support its holding that only prior published
appellate opinions are relevant to determine whether a personal injury damage
award in Florida is excessive. Johnson does not stand for this proposition. The
case involved a $2 million dollar non-economic award to parents of a 21-month-
old boy who died after consuming a large quantity of iron. There are no details
about the child’s injury. The Johnson court engaged in a discussion of damages to
provide some helpful guidance to the district court on remand. Id. at 906
(“Although the case is remanded for further evidentiary proceedings and
reconsideration of liability, it is appropriate for this Court to rule upon other issues
raised for appeal for guidance to the district court on remand.”). All the panel then
42
said about damages was that it was unable to locate a reported case approving a
comparable award. Id. at 908. The court suggested that the plaintiffs compile
“some research” on “similar cases tried in Florida” and submit them to the district
court so that it could “be made part of the record to furnish a basis for the amount
that should ultimately be awarded.” Id. I find no language in the Johnson opinion
limiting excessiveness review to published appellate decisions and excluding
consideration of similar damage awards in comparable cases. In fact, the Johnson
court actually said: “[F]lorida appellate courts rely heavily on the damages
awarded by juries in similar cases.” Id. (emphasis added.) It did not limit
consideration to published Florida appellate decisions. The Johnson court had
nothing to compare the award to, as we do in this case, thus, the court was without
a way to assess and measure the award. Johnson also left open the possibility that
the award in that case was reasonable.2 The majority misconstrues Johnson to
defend its flawed methodology, ignoring recent, factually similar cases with
comparable non-economic damage awards. To accept the majority’s logic is to
conclude that if there was a factually identical case resulting in an unpublished
2
Unlike this case, medical malpractice liability in Johnson “was a close call, at best.”
Johnson, 780 F.2d at 908. In this case, medical negligence is clear. As the majority puts it in its
opening paragraph, all that is at issue in this case is how much the government “must pay”. As to
the damage award in Johnson (a 22 year-old case), we do not know how much plaintiffs were
awarded on remand. It could conceivably have been more.
43
opinion affirming the same damage award as in this one, we could not consider it.
Florida Courts Look Beyond Published Florida Appellate Decisions
To my knowledge, no Florida state or federal court, before today, has held
that only published Florida appellate cases are relevant to the philosophy and
general trend analysis. The majority opinion creates this rule for the first time.
Before today, reviewing courts have always been able to consider comparable
verdict awards in similar cases without limitation to reported published decisions.
In Loftin v. Wilson, 67 So. 2d 185 (Fla. 1953), cited in Johnson, the Florida
Supreme Court relied on two Florida cases and five non-Florida cases, (i.e., two
unappealed New York trial court decisions, two Missouri Supreme Court
decisions, and an Ohio Supreme Court decision) as comparators in making an
excessiveness determination. Id. at 189-90. Additionally, the Florida Supreme
Court stated that it considered “many other” cases reviewed in a treatise, 16
A.L.R.2d 3. Id. at 190.3
3
The majority opinion disregards Loftin, contending that: (1) a later Third DCA case,
Seaboard Coast Line R.R. Co. v. McKelvey, 259 So. 2d 777 (Fla. 3d DCA 1972), adopted the
rule that the comparative analysis is solely confined to published Florida appellate cases; and (2)
the Florida Supreme Court affirmed McKelvey in Seaboard Coast Line R.R. Co. v. McKelvey,
270 So. 2d 705, 706 (Fla. 1972) (“McKelvey II”). This is incorrect for two reasons. First, while
the court in McKelvey cited to published Florida appellate decisions as comparators, the court
never held that the comparative analysis was confined to such cases. Indeed, the court actually
made clear that it considered “a number of authorities throughout this country” when gauging the
reasonableness of the award before it. McKelvey, 259 So. 2d at 780. If any inference is to be
drawn from McKelvey, it is that the comparative analysis is not confined solely to published
44
Our own federal district courts in Florida are the same. In Williams v.
United States, 681 F.Supp. 763 (N.D. Fla. 1988), decided after we issued our
opinion in Johnson, the district court expressly considered “jury verdicts involving
the wrongful death of a minor child rendered in Escambia County, Florida,” id. at
764, as well as cases from the Florida district courts of appeal, id. at 764-65.
In Grayson v. United States, 748 F.Supp. 854 (S.D. Fla. 1990), aff’d in part,
vacated in part, 953 F.2d 650 (11th Cir. 1992), the reviewing court considered
“nineteen wrongful death verdicts and settlements from courts in south Florida
that were submitted by plaintiff.” Id. at 863 (emphasis added). We affirmed the
district court’s judgment in Grayson, vacating only the award of interest from the
Florida decisions. Second, in McKelvey II, the Florida Supreme Court did not address the scope
of the comparative analysis; it simply affirmed the Third DCA’s holding that the award was
reasonable. McKelvey II, 270 So. 2d at 706. McKelvey II certainly cannot be understood to
overrule Loftin. Florida state courts cannot “decline to follow a supreme court opinion in the
absence of a specific indication by the court itself that the case is no longer viable.” McGee v.
State, 570 So. 2d 1079, 1081 (Fla. 3d DCA 1990) (citing cases); see also Puryear v. State, 810
So. 2d 901, 905 (Fla. 2002) (“Where a court encounters an express holding from this Court on a
specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to
apply our express holding in the former decision until such time as this Court recedes from the
express holding.”). Likewise, we may not turn to Florida’s intermediate courts when the Florida
Supreme Court has spoken on the issue—as it has in Loftin. Freeman v. First Union Nat’l, 329
F.3d 1231, 1232 (11th Cir. 2003). The majority opinion departs from our precedent in Freeman
by failing to regard Loftin as binding and controlling Florida authority on this question.
The majority also cites to two other Third DCA cases. See Metro. Dade County v. Dillon,
305 So. 2d 36 (Fla. 3d DCA 1974); Compania Dominicana de Aviacion v. Knapp, 251 So. 2d 18
(Fla. 3d DCA 1971). Nowhere in either of these cases does the Third DCA hold that, as a rule,
the comparative analysis is confined to published Florida appellate cases. Again, even assuming
arguendo that they did, Loftin would still bind us.
45
date of initial judgment as opposed to the date of affirmance. Grayson v. United
States, No. 90-6076 (11th Cir. Jan. 14, 1992) (unpublished).
In Turner v. United States, No. 3:03-CV-709-J-25TEM, 2005 WL 2077297
(M.D. Fla. Aug. 26, 2005), rev’d in part on other grounds, 514 F.3d 1194, the
district court looked solely to two jury verdict reports in similar medical
malpractice cases in finding that the damages were reasonable. Id. at *8.
In Fairhurst v. United States, No. 3:03CV601/RS, 2006 WL 2190553 (N.D.
Fla. Aug. 1, 2006), the court considered three settlement awards as well as two
trial verdicts in determining that the award was reasonable. Id. at *4.
Moreover, Florida’s District Courts of Appeal (“DCAs”) have historically
looked outside the realm of its own appellate court system to measure
excessiveness. In Washington County Kennel Club, Inc. v. Edge, 216 So. 2d 512
(Fla. 1st DCA 1968), cert. dismissed, 225 So. 2d 522 (Fla. 1969), Florida’s First
DCA considered appellate court decisions in Missouri and Georgia. In City of
Tamarac v. Garchar, 398 So. 2d 889 (Fla. 4th DCA 1981), overruled in part on
other grounds by Seaboard Coastline R.R. v. Addison, 502 So. 2d 1241, 1242-43
(Fla. 1987), Florida’s Fourth DCA looked beyond Florida decisions to the District
of Columbia U.S. Court of Appeals, as well as two California appellate state cases
and one Nevada appellate state case when conducting an excessiveness
46
determination. Id. at 896 n.7.
More recently, Florida’s Fourth DCA discussed the trial court’s use of the
Williams analysis in Hyundai Motor Co. v. Ferayorni, 842 So. 2d 905, 908 (Fla.
4th DCA 2003). While the court distinguished Williams because it “was decided
in 1988 and relied on verdicts returned between 1974 and 1987,” id. at 909, it did
not in any way suggest that the Williams approach was improper or that a trial
court could not consider unappealed jury verdicts when testing a damage award
for excessiveness. The court simply concluded that the original jury verdict
should stand because the trial court’s remittitur was based on stale information.
Id. (“The Williams opinion recognized that cases decided more than five years
earlier were of limited value.”).
That same year, Florida’s Fifth DCA looked to an unpublished and
unappealed Delaware trial court, an unpublished Texas appellate court, a Texas
appellate court, a Missouri appellate court, and a Florida federal district court in
identifying a trend in damage awards for loss of a child, parent, or spouse.
McQuillin, 840 So. 2d at 347-48. Likewise, in 2004, the Third DCA considered a
federal New York district court case in determining that the award was excessive.
Sta-Rite Indus., Inc. v. Levey, 909 So. 2d 901 (Fla. 3d DCA 2004), cert. denied,
47
919 So. 2d 435 (Fla. 2005).4
Therefore, it is clear that even the Florida DCAs do not restrict their review
of damage awards to comparisons of published decisions from the state’s appellate
courts. No court in Florida has heretofore limited the comparative analysis to
4
The majority states that Levey cited Slade v. Whitco Corp., 811 F. Supp. 71 (N.D.N.Y.
1993) and other cases not to compare awards in those cases, but for the proposition that a
damages award “not based upon sufficient credible evidence” cannot be sustained.
The relevant passage from Levey is as follows:
In the light of the equivocal and uncertain testimony that Lorenzo would enjoy a normal
life expectancy of more than forty years, and the almost entirely speculative testimony
that, despite his vegetative state, he actually suffered excruciating “conscious” pain and
suffering for all that period, the amount of the verdict is shockingly excessive, see
Brown v. Stuckey, 749 So. 2d 490 (Fla. 1999); MBL Life Assurance Corp v. Suarez, 768
So. 2d 1129 (Fla. 3d DCA 2000); Jeep Corp. v. Walker, 528 So. 2d 1203 (Fla. 4th DCA
1988); Slade v. Whitco Corp., 811 F.Supp. 71 (N.D.N.Y. 1993), aff’d, 999 F.2d 537 (2d
Cir. 1993), and as such, and as we find, contrary to the manifest weight of the evidence.
Miller v. First American Bank and Trust, 607 So. 2d 483 (Fla. 4th DCA 1992); Florida
Nat’l Bank v. Sherouse, 80 Fla. 405, 86 So. 279 (Fla. 1920); Ziontz v. Ocean Trail Unit
Owners Ass’n, Inc., 663 So. 2d 1334 (Fla. 4th DCA 1993); In re: Estate of Simon, 402
So. 2d 26 (Fla. 3d DCA 1981).
Levey, 909 So. 2d at 909.
Left unaddressed by the majority opinion is that the first string cite in Sta-Rite includes
Walker, which contains no discussion of a damages award “not based upon sufficient credible
evidence;” indeed, the court approved the jury’s pain and suffering verdict. Walker, 528 So. 2d
at 1205. Moreover, it is doubtful that the first string cite aims at awards being stricken for
insufficient credible evidence when that proposition is so closely related to the second string cite
aimed at awards that are “contrary to the manifest weight of the evidence.” The better reading is
that Suarez (striking $4 million award for pain and suffering to four adult children as a result of
father’s death in boat accident), Brown (striking $50,000 award for pain and suffering in
defamation case), Walker (upholding $4.9 million award for pain and suffering to quadriplegic
victim in vehicle accident case), and Slade (upholding $6 million pain and suffering award to
brain-damaged and quadriplegic victim of vehicle accident) are all cited to show that the
$104,409,053.20 award to the severely brain-damaged victim of a swimming pool accident was
“shockingly excessive.” Levey, 909 So. 2d at 909.
48
published Florida appellate decisions.
Glabman, McQuillin and McGee
Our role is to review the size of the non-economic damage award to ensure
that it does not exceed the maximum limit of the reasonable range set by awards in
similar Florida cases. The question of excessiveness is not the kind of question
that should subject itself to irreconcilable splits between courts, thus requiring us
to choose one over the other, which is what the majority opinion does with
Glabman, McQuillin and McGee. Instead, we review the award to determine
whether it is “so inordinately large as obviously to exceed the maximum limit of a
reasonable range within which the jury may properly operate.” Bould v.
Touchette, 349 So. 2d 1181, 1184-85 (Fla. 1977).
Glabman was about a teenage girl who died from Lupus complications.
Glabman v. De La Cruz, 954 So. 2d 60, 62 (Fla. 3d DCA 2007). The jury found
the girl’s physician to be 80 percent negligent and awarded the parents $8 million
dollars. Id. at 61-62. On review, the Third DCA recognized that the father’s trial
testimony was “highly emotional” and caused the father, the court personnel, and
the trial judge to cry. Id. at 62. In fact, the jury returned a verdict for $2 million
dollars more than what the parent’s counsel had requested. Id. at 62.
Consequently, the Third DCA found that the award was “so excessive” that it
49
“could only have been a product of passionate emotion based on [the father’s]
emotional testimony.” Id. at 63. These facts are dramatically different than our
own. The government points to no highly emotional evidence – let alone any
evidence that caused court personnel or the United States District Judge who heard
this case to cry. The judge here did not award an amount in excess of what was
requested by the plaintiffs. And liability was not a close question – the
government concedes that plaintiff’s injuries were due to medical negligence.
McQuillin involved a woman who died in a car accident – an accident for
which she was found to be 80 percent negligent, while the defendant was found
only 20 percent negligent. Citrus County v. McQuillin, 840 So. 2d 343 344-45
(Fla. 5th DCA 2003). The jury awarded the woman’s son $4.4 million for pain
and suffering. Id. at 347. After commenting that the award was “on the outer
limit in size,” the Fifth DCA held that the amount determination was not for it to
decide, but for the jury:
Who can place a dollar value on a human life, measured by the loss
and grief of a loved one? That difficult question is generally one for
the jury or factfinder, not the appellate court.
Id. at 348.
The Fifth DCA in McQuillin approved the jury verdict.
McGee involved a family of four, all of whom were burned because of a
50
design defect in their car’s gas tank. Gen. Motors Corp. v. McGee, 837 So. 2d
1010, 1015-16 (Fla. 4th DCA 2002). While the parents and daughter survived, the
son died shortly after the accident from severe burns covering 98 percent of his
body. Id. at 1016. Like this case, the McGee parents endured extraordinary pain
and suffering in watching their son suffer without being able to assist him. Id. at
1015-16, 1039. The parents were awarded $30 million dollars for their pain and
suffering. Id. at 1030. On review, the Fourth DCA found that the verdict “was not
‘so inordinately large as obviously to exceed the maximum limit of a reasonable
range within which the jury may properly operate.’” Id. at 1039 (quoting Bould,
349 So. 2d at 1184). The $30 million dollar non-economic award in McGee was
for the parents alone. Id. at 1030. In this case, Kevin Bravo’s parents received
somewhat less ($20 million). When you combine Kevin’s non-economic award
with his parents, the total award still does not exceed the non-economic damages
approved by the Fourth DCA in McGee.
To dismiss McGee as an outlier or an annoyance, is, in my view to usurp the
applicable Florida law. I can find no precedent in Florida to support an excessive
determination made by lining up awards in similar cases, cutting off the top award,
and treating the lower awards as a ceiling to the amount that can be awarded.
I am also unaware of any Florida DCA case suggesting that the DCAs are
51
split on the question of excessiveness. Yet, because the majority perceives a
DCA-split on this question, the majority says it has a duty to follow the Third
DCA decision in Glabman—rather than the Fourth DCA decision in McGee.
According to the majority, the Third DCA trumps because it would have had
jurisdiction over this case had it been filed in the state system. This sets an
interesting precedent. Since the majority holds that the DCAs are split on what
constitutes an excessive verdict, Eleventh Circuit courts applying Florida law to
excessiveness determinations will systematically consider case law from the
jurisdictionally-relevant DCA as controlling. Rather than applying Florida law,
our courts will routinely apply a jurisdictional subset of Florida law. I do not
know of any Florida DCA that, as a rule, makes excessiveness determinations by
confining itself solely to its own DCA precedent.5 But, ironically, we will be
doing just that, and we will say we are following Florida law in doing so. If there
was ever an incentive for forum shopping, this is it—and the shopping only works
in federal courts of the Eleventh Circuit.
5
Indeed, one of the very Third DCA cases relied upon by the majority looks to the
excessiveness determinations made in other non-Third DCA decisions. See Compania
Dominicana de Aviacion v. Knapp, 251 So. 2d 18, 23 (Fla. 3d DCA 1971) (evaluating the
excessiveness determinations made in two First DCA cases).
52
Similar Awards in Recent Cases
In addition to McGee, there are other similar cases that show Bravo’s award
to be non-excessive. Bravo has called our attention to three judgments entered
after jury verdicts in comparable cases within the last three years that included
non-economic damages exceeding the damages finally awarded by the district
court in this case. Korzeniowski v. Eagleman, No. CL 00-4828 AO (Fla. Cir. Ct.
2004), a medical negligence case arising in Palm Beach County involving a child
who was born with a comparably devastating brain injury, resulted 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 Street
Corp., No. 01-012933(12) (Fla. Cir. Ct. 2003), a similar case from Broward
County, involved a two-year-old child who suffered severe brain damage and
resulted 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. Again,
in Navarro v. Austin, No. 02-6154 (Fla. Cir. Ct. 2006), a trial court in
Hillsborough County entered judgment on a jury verdict awarding over $100
million in damages, $46.5 million of which was for the injured plaintiff’s past and
53
future pain and suffering and $52.5 million of which was for the wife’s past and
future loss of her husband’s services, comfort, society, and affection. These trial
court judgments in comparable cases demonstrate that the damage award in this
case was not “so inordinately large as obviously to exceed the maximum limit of a
reasonable range within which the [trier of fact] may properly operate,” the only
instance in which an appellate court should disturb a verdict for damages. Bould,
349 So. 2d at 1184-85 (“In tort cases[,] damages are to be measured by the
[factfinder’s] discretion. The court should never declare a verdict excessive
merely because it is above the amount which the court itself considers the [trier of
fact] should have allowed.”).
Florida puts the burden on the appellant to demonstrate clear error by
coming forward with factually similar cases demonstrating that a damage award
exceeds the maximum limit of a reasonable range. It has long been the rule in
Florida that “[t]he burden is on an appellant to demonstrate that the jury rendered
an excessive [verdict].” Seaboard Coastline R.R. Co. v. McKelvey, 259 So. 2d
777, 781 (Fla. 3d DCA 1972). The government failed to make its case, and we
should not make it for them, creating Florida law in the process.
54
Other FTCA Awards
There have been other FTCA awards with higher non-economic damages.
See Gutierrez v. United States, 2007 WL 2827720 (C.D. Cal. 2007) (total award of
$55,184.288, of which $31,750,000.00 was non-economic damages to child and
mother in a car accident case brought under the FTCA). There have also been
FTCA awards with higher total amounts. See Dickerson v. United States, 280 F.3d
470 (5th Cir. 2002) (total award of $44,717,681.00 to parents and child where
medical negligence during birth delivery resulted in profound brain and
neurological injuries to the child). The verdict in Dickerson was ultimately
reduced on appeal, not because it was excessive, but because the plaintiffs were
precluded from recovering more than the $20 million dollars they requested in
their administrative claim. Id. at 479.
Conclusion
By holding that we may only look to published appellate decisions when
testing a damage award for excessiveness, the majority re-writes Florida law. We
do not have the authority to make Florida law. That is the task of the Florida
courts and the Florida legislature, and we should leave that task to them.6
6
The Florida legislature, in 2003, capped non-economic damages at $1 million in cases of
catastrophic injury. See Fla. Stat. § 766.118(2)(b). The fact that the Florida legislature capped
non-economic damages does not establish a downward trend for awards in cases like this one; it
55
I find no clear error on the part of the United States District Judge, who
heard and considered the evidence and awarded the plaintiffs their damages after
an eleven-day bench trial. The majority opinion fails to make the case that the
verdict is unsupported by the evidence, that it is based on anything outside of the
record, or that it reflects passion or prejudice by the judge. Nor does the verdict
“shock the judicial conscience” when compared with other verdicts in similar
cases, some of which are higher and some of which are lower. Remanding this
case back to the district court for a lower damages award constitutes an improper
invasion into the realm of factfinding. Therefore, I would affirm.
suggests the contrary. The passage of the non-economic damages cap is an indication that, in the
view of the Florida legislature, jury awards in Florida were becoming too high. The legislature
explicitly decided that the act does not apply to cases such as this one, which was commenced
before September 15, 2003, the effective date of the act.
56
Bravo v. United States
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2008-07-02
Citations: 532 F.3d 1154
Copy CitationsCombined Opinion