UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1646
DANA ANTHONY,
Plaintiff, Appellee,
v.
G.M.D. AIRLINE SERVICES, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Breyer, Chief Judge,
Coffin, Senior Circuit Judge,
and Torruella, Circuit Judge.
Holly S. Harvey, with whom Kathleen M. O'Connor, Thornton,
David, Murray, Richard & Davis, P.A., Juan Marina, Mar a Emilia
Pic and Bufete Rexach & Pic , were on brief for appellant.
Philip E. Roberts, with whom Harry A. Ezratty, was on brief
for appellee.
March 3, 1994
TORRUELLA, Circuit Judge. When confronted with the
difficult task of determining how much in damages is too much,
appellate courts inevitably hesitate to second-guess a jury's
calculation of an appropriate amount. The facts of this case,
however, compel us to overcome our usual reluctance. Plaintiff-
appellee, Dana Anthony, was awarded $571,100 as compensation for
an injury to his leg despite a dearth of evidence that the injury
prevented Anthony from working as a cargo pilot or from engaging
in any other activities he might otherwise enjoy. Even the most
generous interpretation of the record cannot support the amount
granted for Anthony's pain and suffering, which accounts for over
99% of the total award. We therefore set aside the verdict as
excessive and remand for a remittitur of damages in an amount to
be determined by the district court.
I. BACKGROUND
On November 7, 1991, Anthony was struck from behind by
a pallet on a loaded forklift driven by an employee of the
defendant-appellant, G.M.D. Airline Services, Inc. ("GMD"). The
pallet hit Anthony in the calf of his left leg and then pushed
him forward, on both feet, for a short distance. Anthony
suffered an abrasion on his left calf from the accident. Nurses
at an airport first aid facility bandaged the wound and treated
it with hydrogen peroxide, antibiotic ointment, and an ice pack.
Anthony then went to a hospital where doctors took X-rays of
Anthony's leg and determined that it was not fractured.
After the accident, Anthony returned home to Florida
-2-
and briefly took himself off flight duty. He resumed his regular
flight schedule one week later on November 15, 1991. Anthony
then continued flying for nearly five months until the cargo
company he worked for ceased all operations in April of 1992.
With the exception of one brief trip in October of that year,1
Anthony has not flown or worked since. At the time of the
accident, Anthony was 56 years old and had worked as a pilot for
thirty years.
On January 2, 1992, almost two months after the
accident, Anthony went to see his regular federal aviation
doctor, doctor Perraud, because he felt pain behind his left
knee. Doctor Perraud examined Anthony's leg and referred him to
a cardiovascular specialist, Dr. Anthony Revilla. Anthony did
not see doctor Revilla until one year later at which time doctor
Revilla ran some tests and told Anthony to wear special elastic
stockings, to rest, and to elevate his leg. Anthony neither
sought nor received any other medical treatment.2
Anthony brought this suit against GMD in the United
States District Court for the District of Puerto Rico on June 22,
1992. In his amended complaint, Anthony claimed that because of
his injury, he had sustained $3,572.98 in medical expenses and
1 Anthony testified that his renewed attempt at flying "wasn't
working out too well" but gave no specific reasons why he stopped
flying.
2 Anthony also testified to seeing a chiropractor, however, his
counsel stated at trial that he was "not making any claim to the
chiropractor, none at all." In addition, Anthony was examined by
his medical expert in preparation for the trial but never claimed
this was part of his treatment for the injury.
-3-
lost earnings as well as additional damages "in excess of
$75,000." The amount claimed for special damages (medical
related expenses and lost earnings) was adjusted to $3,433.98 in
a pretrial order. During the trial, Anthony testified that he
incurred a total of $1,335 in medical expenses and $47,952 in
lost wages. Unlike the complaint and pretrial order, Anthony's
testimony included lost wages from April 10, 1992 (when Anthony
stopped flying) until the date of the trial.
Anthony testified at trial that since the accident he
has experienced constant pain in his left leg for which he takes
aspirin and Tylenol. Anthony also stated that he spends most of
the day lying down and that he elevates his leg two or three
times a day. According to Anthony, he is "totally disabled" from
the accident and cannot work because of the injury to his leg.
Specifically, Anthony stated that "I had to take myself off
[flight] duty by the rules and regulations of the Federal
Aviation Administration" ("FAA").
No evidence or testimony, however, corroborated
Anthony's claim that his injury prevented him from flying or
engaging in any other gainful employment. Anthony testified that
the FAA refused to issue him a first class medical certificate in
December of 1992 because of the injury to his leg. For each of
the thirty-two years preceding the accident, Anthony had received
his FAA health certification. To prove that the FAA refused to
certify him because of the accident, Anthony presented a medical
examination report by doctor Perraud, sent to the FAA on December
-4-
2, 1992, which mentioned Anthony's leg injury and also that
Anthony suffered from hypertension, a condition unrelated to the
injury. In response to Anthony's medical evaluation, the FAA
sent Anthony a letter dated December 22, 1992, which expressed
concern about Anthony's hypertension and requested that he
undergo further evaluation of that condition and send the results
to the FAA. The letter made no mention of Anthony's leg
condition. The letter also said nothing about the denial of
Anthony's certification. Anthony never complied with the FAA's
request for additional information about his blood pressure nor
did he make any subsequent attempt to obtain FAA certification.
Anthony's medical expert, Dr. Jos R. P rez-Anzalota
("doctor P rez"), a cardiovascular surgeon, testified that he
examined Anthony and observed swelling and varicose veins in his
left leg. In the opinion of doctor P rez, the accident had
caused thrombophlebitis in the deep veins of Anthony's left leg
(also known as deep venous thrombosis ("DVT"), which is basically
a trauma induced blockage in the veins). This condition led to
postphlebitic syndrome which is characterized by the formation of
varicose veins, swelling, pigmentation of the skin, and an
increased potential for ulceration.3 Doctor P rez testified
3 This diagnosis was contested by GMD's expert who, noting among
other things that Anthony had also developed varicose veins in
the right leg and that an important diagnostic test, a venogram,
revealed no evidence of DVT, concluded that the varicose vein
condition was not caused by the accident. For the purposes of
this appeal, however, we credit doctor P rez' testimony and find
it sufficient to prove that the accident caused the present
condition in Anthony's left leg.
-5-
that the treatment for this condition was for Anthony to wear
elastic stockings and to lay down for 30 minutes to one hour,
four times a day, with his leg elevated. When asked how long
Anthony would be able to sit or stand before having to lie down,
doctor P rez responded, "[u]sually, maybe two hours, maybe less.
It depends. Each individual is different. He may have to keep
in contact with his physician to evaluate his case."
Doctor P rez concluded that Anthony's injury caused a
20% "whole body" disability. However, he did not testify as to
what, if any, activities or functions Anthony's injury would
prevent him from performing. Doctor P rez also did not say
whether or not Anthony's injury was permanent.
Following a trial on liability and damages, a jury
found GMD negligent and assessed $571,100 in damages. The jury
also found that Anthony was 39% comparatively negligent for
entering a restricted area at the time of the accident and
consequently reduced the award by 39%, leaving Anthony with a
$348,371 award. GMD moved for a new trial and, in the
alternative, a remittitur on the ground that the verdict was
excessive. The district court denied the motion. GMD then
brought this appeal claiming that the district judge's denial of
a new trial or remittitur was improper.
II. HOW MUCH IS TOO MUCH?
In review of GMD's challenge to the jury's damages
award, our inquiry is limited to determining "whether the trial
court abused its discretion in refusing to set aside the verdict
-6-
as excessive." McDonald v. Federal Laboratories, Inc., 724 F.2d
243, 246 (1st Cir. 1984); see also Toucet v. Maritime Overseas
Corp., 991 F.2d 5, 11 (1st Cir. 1993); Joia v. Jo-Ja Service
Corp., 817 F.2d 908, 918 (1st Cir. 1987), cert. denied, 484 U.S.
1008 (1988). We will find such an abuse of discretion only if
the jury's verdict exceeds "any rational appraisal or estimate of
the damages that could be based on the evidence before the jury."
Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988)
(quoting Segal v. Gilbert Color Systems, Inc., 746 F.2d 78, 81
(1st Cir. 1984) (citation omitted)); see also Toucet, 991 F.2d at
11. As stated in the oft-quoted Dagnello opinion: "We must give
the benefit of every doubt to the judgment of the trial judge;
but surely there must be an upper limit, and whether that has
been surpassed is not a question of fact with respect to which
reasonable men may differ, but a question of law." Dagnello v.
Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961). See,
e.g., Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159
(1968); Laaperi v. Sears, Roebuck & Co., 787 F.2d 726, 734 (1st
Cir. 1986); McDonald, 724 F.2d at 246 n.2. Our determination of
excessiveness must be based upon the evidence of damages viewed
in the light most favorable to the plaintiff. Toucet, 991 F.2d
at 11; Joia, 817 F.2d at 918; McDonald, 724 F.2d at 246.
We have frequently characterized the type of verdict
that an appellate court may vacate for excessiveness as one that
is "grossly excessive," "inordinate," "shocking to the
conscience" or "so high that it would be a denial of justice to
-7-
permit it to stand." See, e.g., Toucet, 991 F.2d at 11; Doty v.
Sewall, 908 F.2d 1053, 1062 (1st Cir. 1990); McDonald, 724 F.2d
at 246 (citing Grunenthal, 393 U.S. at 159). All of these
descriptions apply to the amount awarded in the present case.
The only damages incurred by Anthony that the evidence can
support are $1,335 in medical expenses, $3,000 in lost earnings
for one missed week of flying,4 and the amount attributable to
Anthony's pain and suffering from a condition that requires him
to take aspirin, wear special stockings, and to elevate his leg
several times a day. No reasonable valuation of these damages
could conceivably add up to $571,100 without "shocking the
conscience."
Anthony maintains that the damage award properly
included amounts for lost wages from the period when he stopped
flying in April of 1992 up until the trial and amounts for lost
earning capacity due to his inability to work in the future. The
record, however, does not support damages for past or future
wages (except for the week immediately following the accident),
because there is insufficient evidence to show that Anthony
cannot work because of the injury to his leg. Although Anthony
testified that the injury prevented and continues to prevent him
from flying, his own evidence overwhelmingly contradicts this
assertion.
4 Anthony estimated this figure to be $3,036 in his complaint
but the court reduced it to $2,710 in the pretrial order. On
cross-examination, Anthony testified to a figure of $3,000 which
is the amount we use here.
-8-
In the first place, Anthony never testified that his
leg injury physically impedes his ability to perform his job as a
pilot.5 Likewise, Anthony's expert, doctor P rez, never
described any specific functional limitations that might prevent
Anthony from performing tasks required of a pilot. In fact,
Anthony flew for five months after the accident until the company
he worked for ceased operations. The only reason Anthony gave
for not being able to fly is that the FAA would not certify him.
The FAA, however, never expressed any concern about Anthony's
leg, despite the fact that doctor Perraud's medical report put
the FAA on notice of the injury. The FAA only expressed concerns
relating to Anthony's high blood pressure, a condition unrelated
to the accident. Therefore, if there is any reason to believe
that Anthony could not obtain an FAA health certification -- and
the record does not even establish that the FAA would, in fact,
deny such a certification were Anthony to apply for one -- it
would be because of Anthony's hypertension and not because of the
injury caused by GMD. Furthermore, Anthony presented no evidence
regarding wage rates and projected working hours from which a
jury could estimate lost future earnings. We consequently see no
basis for awarding Anthony damages for lost earnings or lost
capacity to earn in the future. See Qui ones-Pacheco v. American
Airlines, Inc., 979 F.2d 1, 6-7 (1st Cir. 1992) (To claim loss of
earning capacity, a plaintiff "must offer evidence from which a
5 Anthony testified that pilots need to use their legs in order
to operate various airplane controls but he never claimed that he
was unable to operate the controls himself.
-9-
jury may reasonably determine the annualized stream of income
that the plaintiff, uninjured, would probably have earned, and
contrast it, over the period of proven disability, to a similar
forecast of what the injured plaintiff's earnings are likely to
be."); Parra v. Atchison, T. & S. F. R. Co., 787 F.2d 507, 509
(10th Cir. 1986) ("[E]xpert medical testimony is necessary to
establish that a loss of future earnings capacity was caused by
such a non-obvious injury.").
Out of the $571,100 verdict, Anthony only established,
according to the most generous interpretation of the evidence,
$1,335 in medical expenses and $3,000 for one lost week of work.
That leaves Anthony with a whopping $566,765 in damages for pain
and suffering. Although it is admittedly difficult to place a
value on the pain and suffering of another individual, see
Milone, 847 at 37 (citing Wagenmann v. Adams, 829 F.2d 196, 215
(1st Cir. 1987)); McDonald, 724 F.2d at 247, such amounts are not
immune from appellate review. Williams v. Martin Marietta
Alumina, Inc., 817 F.2d 1030, 1038-41 (3d Cir. 1987); Rivera v.
Rederi A/B Nordstjernan, 456 F.2d 970, 975 n.8. (1st Cir.), cert.
denied, 409 U.S. 876 (1972). In this case, an award of $566,765
for Anthony's pain and suffering is "so grossly disproportionate"
to his injury "as to be unconscionable." Marchant v. Dayton Tire
& Rubber Co., 836 F.2d 695, 704 (1st Cir. 1988); see also
Laaperi, 787 F.2d at 735-36; Bonn v. Puerto Rico Int'l Airlines,
Inc., 518 F.2d 89, 94 (1st Cir. 1975).
Anthony suffers from pain in his left leg and the
-10-
inconvenience of having to lie down several times a day to
elevate the leg. According to doctor P rez, Anthony has a 20%
whole body disability and cannot stand or sit for prolonged
periods of time. There is no evidence, however, that Anthony's
injury has rendered him unable to perform any particular
functions or engage in any particular activities; nor is there
evidence that the injury has otherwise interfered with his
professional, recreational, or personal life.
The injury to Anthony's leg is not particularly severe.
Most notably, it required no major medical treatment. Aside from
the initial administration of first aid and the subsequent
referral by doctor Perraud, Anthony's entire medical treatment
consisted of one visit to a doctor who prescribed elastic
stockings and rest. Secondly, Anthony's pain is not so severe as
to require anything more powerful than aspirin or Tylenol.
Furthermore, there is no testimony or other evidence that
Anthony's current condition is permanent. Although it would not
be unreasonable for the jury to conclude that Anthony's pain and
need to lie down will persist for some time in the future,
Anthony's expert never stated or even implied that the condition
in Anthony's left leg was permanent. On the contrary, doctor
P rez described Anthony's treatment as a "long, tedious process"
(emphasis added), implying that the treatment would lead to an
improvement in Anthony's condition over time.
Anthony maintains that GMD's own expert testified that
Anthony's varicose veins were incurable. Quite the opposite is
-11-
true. The expert stated that Anthony's condition could be cured
but that the varicose veins would return after treatment because,
in the expert's opinion, the condition was caused by disease and
not by trauma from the accident. While a reasonable jury could
conclude that Anthony's postphlebitic syndrome and accompanying
varicose veins may persist, there is nothing in the record to
support a finding that Anthony will experience pain and be forced
to lie down several times a day for the rest of his life.
We conclude, therefore, that the nature of Anthony's
injury cannot justify a pain and suffering award that is over one
hundred times larger than the $1,335 in out of pocket expenses
and $3,000 in lost wages that Anthony incurred. See Betancourt
v. J.C. Penney Co., 554 F.2d 1206, 1209 (1st Cir. 1977) ("The
award for pain, suffering and such other intangibles as are
permitted under Puerto Rican law would be roughly one hundred
times the amount of past and future medical bills. We think such
an award simply makes no sense. We cannot, in conscience, allow
it to stand."). In sum, the minimal severity of Anthony's injury
and the lack of evidence concerning any functional limitations --
combined with the fact that Anthony went back to work one week
after the accident, continued working until his employer ceased
operating, and incurred only $1,335 in medical expenses --
convinces us that $571,100 in total damages is excessive as a
matter of law. See, e.g., Marchant, 836 F.2d at 703-04 (finding
$600,000 excessive for wrist injury that would require daily
heating and soaking and future physical therapy but did not
-12-
detrimentally affect employment prospects); Betancourt, 554 F.2d
at 1209-10 (finding $60,000 excessive for shoulder injury that
would continue to cause pain but would not prevent plaintiff from
working); Gautreaux v. Insurance Co. of North America, 811 F.2d
908, 913-16 (5th Cir. 1987) (finding $483,000 excessive for knee
injury that left plaintiff with a functional disability but did
not prevent him from engaging in certain types of employment).
Accordingly, we set aside the award.
III. THE REMEDY
In choosing the appropriate disposition of this case,
we have the option of selecting a reduced damages figure
ourselves or remanding the case to the district court for a
determination of damages. See Marchant, 836 F.2d at 704 & n.7.
We choose the latter. Although we find the damages awarded to
Anthony to be excessive as a matter of law, we decline to set a
specific amount for remittitur as we have the option of doing
under the "maximum recovery rule." See Seidman v. American
Airlines, Inc., 923 F.2d 1134, 1141 (5th Cir. 1991) (finding that
appellate courts can reduce an excessive verdict to the maximum
amount the jury could have properly awarded as a matter of law);
Marchant, 836 F.2d at 704 (noting the First Circuit's adoption of
the maximum recovery rule) (citing Liberty Mutual Ins. Co. v.
Continental Casualty Co., 771 F.2d 579, 588 (1st Cir. 1985)).
The bulk of the damages in this case involves
compensation for pain and suffering. Normally, this type of
damages, which does not involve any measurable economic loss, is
-13-
particularly difficult to estimate upon a mere examination of the
record. In the present case, the difficulty is compounded by the
fact that nothing in the record suggests or even hints at what a
maximum allowable award might be.6 Compare Abernathy v.
Superior Hardwoods, Inc., 704 F.2d 963, 973-74 (7th Cir. 1983)
(basing remittitur on $10 per day figure suggested by plaintiff's
counsel as appropriate pain and suffering damages) with
Gautreaux, 811 F.2d at 915-16 (remanding for a new trial on
damages because the court was "unable to determine loss of future
earnings") and Betancourt, 554 F.2d at 1209 n.5 (reversing for a
new trial on damages instead of ordering a remittitur because the
estimation of the proper award "would rest solely on
speculation").
Instead of setting our own figure for remittitur, we
remand this case to the trial judge with instructions to select a
figure in our stead. Having presided over the trial and observed
Anthony and the other witnesses first hand, the district court
judge is in the best position to assess the evidence and set an
amount for remittitur. Cf. Kristufek v. Hussmann Foodservice
Co., 985 F.2d 364, 371 (7th Cir. 1993) (remanding for the
6 GMD suggests a figure of $75,000 as an appropriate maximum
recoverable amount because Anthony estimated his damages to be
"in excess of $75,000.00" in his amended complaint. We do not
find this figure to be particularly significant. The words "in
excess of" indicate that Anthony intended this number to be a
floor not a ceiling. In addition, GMD presents no legal
authority for the proposition that an amount stated in the
complaint, without being referred to at trial, should be used as
a guide for estimating pain and suffering damages on appeal. We
do not mean to suggest, however, that $75,000 is necessarily an
inappropriate amount.
-14-
calculation of a remittitur by the district court); Peoples Bank
and Trust v. Globe Int'l Publishing, Inc., 978 F.2d 1065, 1071
(8th Cir. 1992) (remanding for a "substantial remittitur" of
compensatory damages).
We recognize that GMD opposes this result. GMD argues
on appeal that certain improper remarks by Anthony's counsel
during closing argument necessitate a new trial on damages
because the remarks infected the jury's verdict with passion and
prejudice. See Mason v. Texaco, Inc., 948 F.2d 1546, 1561 (10th
Cir. 1991) ("It is well settled that mere excessiveness in the
amount of an award may be cured by a remittitur, whereas
excessiveness which results from jury passion and prejudice may
not be so cured. In that case, a new trial is required."), cert.
denied, 112 S. Ct. 1941 (1992); see also De Le n L pez v.
Corporaci n Insular de Seguros, 931 F.2d 116, 125 (1st Cir.
1991); Seidman, 923 F.2d at 1140. GMD makes no claim of error,7
however, and does not assert that the alleged remarks
contaminated the jury's liability findings. Cf. De Le n L pez,
931 F.2d at 125 (noting that the rule against remittitur in cases
of tainted jury verdicts "protects against the potential
contamination of a jury's liability findings") (emphasis added);
11 Wright and Miller, Federal Practice and Procedure, 2815
7 GMD failed to object to the alleged improper remarks at trial
and acknowledges that its claim of error is waived on appeal.
Although such claims can still be reviewed for "plain error," we
conduct no such analysis in this case because GMD "does not claim
that by permitting counsel to make improper and prejudicial
remarks the trial court committed plain error."
-15-
(1973) (same); J. Moore, Moore's Federal Practice, 6A 59.08[7]
(1993) (same). Therefore, we find it unnecessary in the present
case to review the effect on the jury of potentially prejudicial
comments by opposing counsel simply because we found the verdict
to be excessive as a matter of law.
Instead, we hold that Anthony should be given the
opportunity to accept a very substantially reduced verdict before
subjecting both parties to a new trial. Of course, Anthony may
reject the district court's remittitur offer in which case GMD's
desired remedy, a new trial on damages, would result.8
Accordingly, the verdict of the jury as to damages is
set aside, the denial of GMD's motion for remittitur is vacated,
and the case is remanded to the district court for the
determination of a very substantial remittitur of the damages in
an amount not inconsistent with this opinion. A new trial, on
damages only, shall be ordered if Anthony decides not to remit
the amount determined by the district court.
8 It is suggested that counsel seek the aid of the Civil Appeals
Management Program to attempt a settlement of this matter before
causing their clients to incur additional litigation expenses.
-16-