UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1691
JESSIE MEJIAS-QUIROS, ET AL.,
Plaintiffs, Appellants,
v.
MAXXAM PROPERTY CORP.,
Defendant, Appellee.
No. 96-1759
JESSIE MEJIAS-QUIROS, ET AL.,
Plaintiffs, Appellees,
v.
MAXXAM PROPERTY CORP.,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court, issued on March 13, 1997, is amended
as follows: On cover page, replace "[Hon. Hector M. Laffitte, U.S.
District Judge]" with "[Hon. Justo Arenas, U.S. Magistrate Judge]".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1691
JESSIE MEJIAS-QUIROS, ET AL.,
Plaintiffs, Appellants,
v.
MAXXAM PROPERTY CORP.,
Defendant, Appellee.
No. 96-1759
JESSIE MEJIAS-QUIROS, ET AL.,
Plaintiffs, Appellees,
v.
MAXXAM PROPERTY CORP.,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Hector F. Oliveras-Delgado with whom Dario Rivera Carrasquillo
and Pinto-Lugo & Rivera were on brief for defendant.
Eric M. Quetglas Jordan with whom Quetglas Law Offices was on
brief for plaintiffs.
March 13, 1997
BOUDIN, Circuit Judge. In this diversity action,
brought in the district court, Jessie Mej as Quiros and his
wife sued Maxxam Property Corporation ("Maxxam") for
negligence. Mej as charged that injuries that he suffered
during a fight on Maxxam's resort property were due to
Maxxam's failure to provide adequate security to him as a
guest. The jury awarded Mej as and his wife separate damages
for pain and suffering and, in his case, for medical
expenses. Both sides have appealed.
A summary of the background events, largely not in
dispute, is as follows. At the time of the incident, Mej as,
then 24 years old, was vacationing at Maxxam's Palmas del Mar
resort, located in Humacao, Puerto Rico. He and his wife
planned to stay for a week with several friends and relatives
at a villa in the Club Cala pool complex area of the resort.
Around 11 p.m., on July 31, 1993, Mej as went for a stroll
around the resort premises with his wife's brother-in-law,
Francis Cardona, and his teenage neighbor, Jorge Gonz lez.
The three men walked from the Club Cala area, across an
adjacent parking lot, to a lawn located near the Palmas Inn
Hotel and Casino. As many as 150 youths were gathered in
smaller groups on the grass in front of the hotel, drinking
and talking. There were apparently no hotel security
officers in the immediate area. Mej as, Cardona and Gonz lez
joined the youths, sitting on the grass together, talking,
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and looking around to see if they knew anyone there. Later,
Mej as noticed a young woman in a group nearby and encouraged
Gonz lez to go over and talk to her, saying something like
"hecha, Jorge Tito," or "go for it, Jorge."
A young man sitting with the girl whom Mej as had
noticed heard his remark and challenged it, standing up and
loudly asking Mej as what was going on. In response, Mej as
also got up, and a scuffle ensued. Mej as was hit several
times on his head and back while seeking only to defend
himself. Then, the fight was broken up by several other
youths, and Mej as, Cardona and Gonz lez left the scene.
After they departed, a hotel security guard arrived to
investigate, but since Mej as was gone, the guard took no
action beyond questioning the youths still on the lawn.
Mej as and his companions walked back across the Club
Cala parking lot to the pool complex and sat down on some
outdoor stairs, about one or two minutes' walk from their
villa. The time was almost 1:00 a.m. About 20 minutes
later, eight to ten of the youths from the group Mej as had
encountered earlier approached from the parking lot. One of
them kicked Cardona in the chest; he fell into the bushes and
then ran in search of help. Then, the youths beat Mej as
about his head, face and body, using a hard blunt object for
at least one blow and ultimately knocking him unconscious.
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Mej as sustained several cuts and bruises on his head
and face, as well as abrasions on his knees. He required
stitches for cuts over his right eye and in his left upper
lip, and has been left with scars. According to trial
testimony by Mej as and medical experts, Mej as has suffered
continuing headaches, mild depression, low self-esteem, and
post-traumatic stress--all as a result of the encounter and
injuries inflicted upon him. Surgery would be required to
minimize the scarring.
Mej as and his wife, Zoribel D az, brought suit,
charging that Maxxam had negligently failed to provide
adequate security. The jury agreed. It awarded Mej as pain
and suffering damages of $200,000 and medical expenses of
$25,000, and awarded his wife $50,000 for pain and suffering.
Maxxam moved for a new trial, asserting that the verdict was
contrary to the evidence, that a requested comparative
negligence instruction should have been given, and that the
damages were excessive. The trial court denied the motion.
On appeal, Maxxam no longer disputes the jury's finding
that it was negligent, so the facts pertaining to this issue
have not been developed. It argues instead that a new trial
is warranted because the jury should have received a
comparative negligence instruction and because the award of
$25,000 for medical expenses was excessive. By a cross-
appeal, Mej as asserts that under local law the district
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court should have awarded him attorney fees and pre-judgment
interest due to Maxxam's alleged obstinacy in contesting the
complaint.
We review de novo the district court's decision not to
give a comparative negligence instruction. Tatro v. Kervin,
41 F.3d 9, 14 (1st Cir. 1994). The issue is whether the
evidence--viewed in the light most favorable to Maxxam, the
party requesting the instruction--would have allowed a
rational jury to find Mej as comparatively negligent.
Sullivan v. National Football League, 34 F.3d 1091, 1107-09
(1st Cir. 1994), cert. denied, 115 S. Ct. 1252 (1995).
Negligence, comparative or otherwise, is usually a jury
issue, but only if there exists evidence from which a
rational jury could find negligence in the case at hand.
Maxxam argues that Mej as was comparatively negligent
because he should have foreseen that his remark to Gonz lez
about the young woman sitting near them on the lawn would
provoke a violent reaction from whatever young man
accompanied her. Maxxam also points to Mej as' failure to
report the first incident to hotel security, and it argues
that he invited further trouble by moving to the outdoor Club
Cala stairs instead of returning to his family's villa.
Puerto Rico holds hotels to a stringent standard of care
with respect to their guests; it requires hotels to respond
to various risks of harm with security measures, and it thus
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effectively exposes the hotels in certain circumstances to
liability for injuries inflicted on guests by third parties.
See Coyne v. Taber Partners I, 53 F.3d 454, 458 (1st Cir.
1995). But Puerto Rico law reduces liability for
"[c]oncurrent imprudence of the party aggrieved." 31
L.P.R.A. 5141. See Torrent v. Continental Ins. Co., 314 F.
Supp. 323, 325 (D.P.R. 1970). Against this legal background,
we agree that the evidence of comparative negligence was too
thin to require that the issue be submitted to a jury in this
case.
Although Mej as' comment may have been in bad taste, it
was a single comment to a friend, and not to a third party,
made in a casual and festive atmosphere. There is no
indication that Mej as was belligerent. As for Mej as'
decision not to report the incident but to move away to the
Club Cala stairs, one witness testified that these stairs
were as much as one hundred meters away from the first
incident's location, and no evidence suggests that they were
visible from the grass outside the hotel and casino.
We can find no case, and Maxxam has cited none,
suggesting that Mej as' behavior constitutes negligence or
could be viewed in that light by a reasonable jury. It might
not take much more to create a jury issue: an offensive
remark directed to the young lady whom Mej as had noticed
could easily do; and, depending on circumstances, so might a
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refusal to leave the immediate area after the scuffle. But
what occurred here is just too little to impute fault to
Mej as. Compare Torrent, 314 F. Supp. at 325 (guest knew of
dangerous condition).
Maxxam also appeals from the district court's denial of
its motion for a new trial on the ground that the $25,000
medical damages award was excessive. The federal rule is
that a jury verdict may be set aside, and a new trial
granted, if the award is excessive or against the weight of
the evidence.1 An appeals court reviews the trial judge's
denial of a new trial for abuse of discretion. Gasperini,
116 S. Ct. at 2225. We will overturn such a denial only if
the damages awarded lack "a rational basis in evidence." Air
Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d
1, 4 (1st Cir. 1996).
This latter standard accords considerable latitude both
to the jury's award and the trial judge's decision not to set
it aside. The general language ("rational basis") is given
content by cases declaring that the verdict should stand
unless it is "'grossly excessive,' 'inordinate,' 'shocking to
the conscience of the court,' or 'so high that it would be a
1See 11 C. Wright, et al., Federal Practice & Procedure
2807, at 78-79 (2d ed. 1995). If local law placed a
substantive cap on medical damages, it would control,
Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211,
2220-21 (1996), but Puerto Rico case law suggests no such
departure from ordinary practice, see, e.g., Rodr guez
Gonz lez v. Ponce Cement Corp., 98 P.R.R. 196, 213 (1969).
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denial of justice to permit it to stand.'" Segal v. Gilbert
Color Sys., Inc., 746 F.2d 78, 80-81 (1st Cir. 1984)
(citations omitted). Nevertheless, there is an outer limit.
Certainly, the jury could find that Mej as would likely
incur future medical expenses (no past expenses were
claimed). Dr. Angel Chinea, a neurologist, explained that
Mej as suffered from chronic headaches, dizziness and
insomnia, which he had treated with painkillers and
relaxants. Dr. Fernando Cabrera, a psychiatrist, testified
that Mej as had chronic mild depression and post-traumatic
stress disorder. Cabrera prescribed medication including a
mild tranquilizer, and recommended future therapy.
But neither Chinea nor Cabrera offered any evidence as
to the future cost of treating the conditions that they
described. Dr. Carlos Portocarrero provided the only
evidence regarding the actual cost of future medical
treatment. He testified that reconstructive surgery to
minimize Mej as' facial scars, which resulted from the
incident, would cost between $3,000 and $4,000. Thus, the
only specific figures offered to the jury supported, at most,
an award of $4,000.
Given the symptoms, any projection of future medical
expenses beyond this figure could be only a fairly loose
estimate. But without some figures from the doctors or
others with useful knowledge, the jury was poorly equipped to
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determine what the medicines or therapy sessions would cost
and how much or many of each might be required. And it is
only these concrete expenses that are at issue; the suffering
itself (e.g., from headaches and depression) was covered
under the jury instructions by the much larger award for pain
and suffering.
Deciding whether enough evidence has been presented can
depend not only on what is offered but on what reasonably
could be expected. On pain and suffering, courts readily
tolerate estimates by the jury based on a description of the
injury. E.g., Williams v. Missouri Pac. R.R. Co. , 11 F.3d
132, 135 (10th Cir. 1993); McCormick on Damages 88, at 318
(1935). But the cost of individual medicines and medical
visits can easily be provided by experts able to offer
informed forecasts beyond the ken of jurors.
Accordingly, the courts have been very reluctant to
allow damages for future medical expenses in the absence of
medical testimony that goes beyond mere assertions that
office visits or medicines might be needed. E.g., Wood v.
Day, 859 F.2d 1490, 1494 (D.C. Cir. 1988); Simeon v. T. Smith
& Son, Inc., 852 F.2d 1421, 1427-28 (5th Cir. 1988). The
Tenth Circuit put the matter more generally in Williams, by
saying: "Unlike general damages for pain and suffering,
which are not susceptible to proof by a dollar amount,
medical expenses and loss of earnings must be proved by
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evidence demonstrating the reasonable value of those losses."
11 F.3d at 135.
We think that the medical expense award in this case, to
the extent it exceeded the $4,000 figure given for surgery,
lacked any rational basis. There may be simple cases where,
out of common experience, the jury can make such estimates,
but hardly here and in so large an amount. The doctors who
testified here, providing the groundwork for the handsome
award for pain and suffering, could have been asked to
quantify the future costs of medicine and office visits.
Doubtless, the jury did the best it could without evidence;
but the evidence should have been supplied.
Although the award of medical costs is excessive, we
cannot order a reduction to the maximum $4,000 figure
permitted by the evidence. This might appear odd, because
trial judges and appellate courts often "decide" factual
issues otherwise left to juries where the evidence is such
that a reasonable jury could decide the issue only one way.
That is what happens when a judge directs a verdict or--as
here--refuses to instruct on a defense for which there is
insufficient evidence. But damages are different.
The reason is the Supreme Court's reading of the Seventh
Amendment provision that "no fact tried by a jury shall be
re-examined [in a federal court], than according to the rules
of the common law." Construing this language, the Supreme
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Court has held that a jury verdict may be set aside where
"palpably and grossly inadequate or excessive" but that "both
parties remain entitled" to a jury determination as to
damages by means of a new trial. Dimick v. Schiedt, 293 U.S.
474, 486 (1935). The Court then went on to temper the
holding by reluctantly approving remittitur practice. Id. at
484-88.
Remittitur practice, perhaps not altogether easy to
square with Dimick's literal language about the entitlement
of "both parties," is also well established. See Air Safety,
94 F.3d at 6; Wright, supra, 2820, at 216-17. Here, the
practice permits us to order the district court to afford
Mej as a reasonable time in which to file a written
acceptance of a reduced award of $4,000 for medical expenses;
to deny a new trial if Mej as accepts the remittitur; and
otherwise to vacate that portion of the judgment and order a
new trial thereon.
Finally, Mej as claims that Maxxam acted obstinately and
that he is therefore entitled to an award of attorney fees
and pre-judgment interest under P.R.R. Civ. P. 44.1(d) and
44.3(b). Such an award is allowed if the trial court finds
that a litigant has been "unreasonably adamant or stubbornly
litigious, beyond the acceptable demands of the litigation,
thereby wasting time and causing the court and the other
litigants unnecessary expense and delay." De Leon Lopez v.
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Corporacion Insular de Seguros, 931 F.2d 116, 126 (1st Cir.
1991).
For obvious reasons, a trial court's denial of such
damages is rarely upset. Qui ones-Pacheco v. American
Airlines, Inc., 979 F.2d 1, 7-8 (1st Cir. 1992). Mej as has
offered three specific instances of alleged obstinate
conduct. We have examined each with some care and conclude
that the conduct, largely refusals to concede certain facts,
were either trivial (in one case) or defensible (in several
others). Mej as' most far-reaching claim--that the hotel was
obstinate in denying its own negligence and in litigating the
issue--cannot have been seriously intended.
The judgment of the district court is vacated insofar as
it awards $25,000 to Mej as for medical costs and otherwise
affirmed, and the matter is remanded to the district court
for a new trial on medical costs unless Mej as accepts a
remittitur reducing damages to $4,000 on this element of his
damage claims.
It is so ordered.
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