Blinzler v. Marriott International, Inc.

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2108

GLORIA BLINZLER, Individually and
in her capacity as Wrongful Death
Beneficiary of James A. Blinzler,

Plaintiff, Appellant,

v.

MARRIOTT INTERNATIONAL, INC.,

Defendant, Appellee.

No. 95-2199

GLORIA BLINZLER, ETC.,

Plaintiff, Appellee,

v.

MARRIOTT INTERNATIONAL, INC.,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before
Selya, Cyr and Boudin,
Circuit Judges.

John P. Barylick, with whom Wistow & Barylick Inc. was on

brief, for plaintiff.
Stephen B. Lang, with whom Patrick B. Landers and Higgins,

Cavanagh & Cooney were on brief, for defendant.

April 12, 1996

SELYA, Circuit Judge. These cross-appeals require us
SELYA, Circuit Judge.

to wend our way through a maze of unusual facts and subtly

nuanced legal issues. After exploring a little-charted frontier

of tort law, we reverse the district court's direction of

judgment notwithstanding the verdict and reinstate the jury's

award on the plaintiff's claim for negligent infliction of

emotional distress. In all other respects, we affirm the rulings

of the lower court.

I. BACKGROUND
I. BACKGROUND

This litigation arises out of the tragic demise of

James Blinzler, husband of the plaintiff Gloria Blinzler. The

course of events leading to James Blinzler's death began on

November 13, 1992, when the Blinzlers checked into a Somerset,

New Jersey, hotel operated by the defendant Marriott

International, Inc. (Marriott). Shortly after 8:30 p.m. the

decedent, relaxing in his room, experienced difficulty in

breathing. Sensing danger, he ingested nitroglycerin (he had

suffered heart attacks before) while his wife called the hotel

PBX operator and requested an ambulance. The operator received

the SOS no later than 8:35 p.m. and agreed to honor it. She

promptly told the hotel's security officer and the manager on

duty about the medical emergency. Though the defendant

steadfastly maintains that the operator also called an ambulance

then and there, the record, read hospitably to the verdict, see

Cumpiano v. Banco Santander P.R., 902 F.2d 148, 151 (1st Cir.

1990), indicates that she did not place this critical call until

2

some fourteen minutes after receiving the plaintiff's entreaty.

The ambulance arrived at 9:02 p.m. In the meantime the plaintiff

watched her husband's condition deteriorate: he collapsed on the

bed, vomited while supine, and apparently stopped breathing.

During this horrific hiatus, the plaintiff twice asked hotel

personnel whether an ambulance had been summoned when the

emergency first arose. She was twice falsely reassured (whether

in honest error is not clear) that one had been called.

When the paramedics arrived on the scene, they could

not locate a pulse and discovered that the decedent's airway was

blocked. Resuscitative efforts restored the decedent's heart to

a normal rhythm and he was transported celeritously to a nearby

hospital. Doctors diagnosed the heart attack as a "very small

myocardial infarction." Nevertheless, the brain damage resulting

from a prolonged period of asystole without cardiopulmonary

resuscitation led to James Blinzler's death three days later.

II. PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION
II. PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION

Invoking diversity jurisdiction, 28 U.S.C. 1332

(1994), the plaintiff sued Marriott in Rhode Island's federal

district court for wrongful death (count 1), loss of consortium

(count 2), and negligent infliction of emotional distress (count

3). She alleged in substance that the hotel failed to summon an

ambulance in a timely fashion and that this carelessness

proximately caused both her own damages and her husband's death.

The jury agreed, awarding $200,000 for wrongful death, $50,000

for loss of consortium, and $200,000 for emotional distress.

3

Addressing a variety of post-trial motions, the district judge

upheld the verdict on the first two counts, but granted judgment

for the defendant on the third count. Both sides appeal.

The cross-appeals raise several issues. Two are in the

forefront. The centerpiece of the defendant's appeal is the

assertion that the evidence did not forge a causal link between

the failure promptly to summon an ambulance and the ensuing

death. In contrast, the plaintiff's appeal hinges on the

district court's extirpation of the jury verdict on her claim for

negligent infliction of emotional distress. Because the

defendant's contention that the plaintiff failed as a matter of

law to prove causation involves an across-the-board challenge to

the jury verdict as a whole, we deal first with that issue. We

then mull the plaintiff's contention that the lower court

erroneously forecast emergent New Jersey law on bystander

liability and therefore erred in setting aside the verdict on

count 3. Finally, we address the defendant's remaining

assignments of error.

Under the principles of Erie R.R. Co. v. Tompkins, 304

U.S. 64, 78 (1938), state law (here, the law of New Jersey)

supplies the substantive rules of decision in this diversity

case. Since New Jersey law is less than explicit on one key

issue that concerns us, we pause to comment briefly on the role

of a federal court in adjudicating controversies controlled by

state law.

In its barest essence, borrowing state law demands

4

nothing more than interpreting and applying the rules of

substantive law enunciated by the state's highest judicial

authority, or, on questions to which that tribunal has not

responded, making an informed prophecy of what the court would do

in the same situation.1 See Moores v. Greenberg, 834 F.2d 1105,

1112 (1st Cir. 1987). In the latter instance, we seek guidance

in analogous state court decisions, persuasive adjudications by

courts of sister states, learned treatises, and public policy

considerations identified in state decisional law. See Ryan v.

Royal Ins. Co., 916 F.2d 731, 734-35 (1st Cir. 1990); Kathios v.

General Motors Corp., 862 F.2d 944, 949 (1st Cir. 1988). As long

as these signposts are legible, our task is to ascertain the rule

the state court would most likely follow under the circumstances,

even if our independent judgment on the question might differ.

See Moores, 834 F.2d at 1107 n.3.

III. CAUSATION
III. CAUSATION

The defendant challenges the entire verdict on the

basis that the plaintiff provided insufficient evidence from

which a reasonable jury could conclude that the belated call

constituted a proximate cause of the ensuing death. Under New

Jersey law the plaintiff bears the burden of proving that the

defendant's conduct comprised "a substantial factor in producing

the harm" of which the plaintiff complains. Francis v. United

1Indeed, this kind of predictive approach is among our
conceptions of law itself. See Oliver Wendell Holmes, The Path

of the Law, 10 Harv. L. Rev. 457, 461 (1897) ("The prophecies of

what the courts will do in fact, and nothing more pretentious,
are what I mean by law.").

5

Jersey Bank, 432 A.2d 814, 829 (N.J. 1981). When the questioned

conduct is an omission the defendant's failure to act rather

than the defendant's maladroit performance of an affirmative act

this rule is easier to state than to apply. In the last

analysis, it can rarely (if ever) be said with absolute certainty

that harm would not have befallen the victim if the omitted

action had been taken.

One species of omission that occurs from time to time

involves the generic charge that, had the defendant done some

particular act, the plaintiff (or, as here, the plaintiff's

decedent) would have had a better chance to ward off threatened

harm. In these so-called "loss of chance" cases New Jersey law

instructs that the plaintiff can carry her burden by showing a

"substantial possibility" that the harm would have been averted

had the defendant acted in a non-negligent manner. Hake v.

Manchester Township, 486 A.2d 836, 839 (N.J. 1985); see also Olah

v. Slobodian, 574 A.2d 411, 417-19 (N.J. 1990) (discussing

Hake).2 Transposed to the rescue context, this rule renders a

defendant's omission actionable if the plaintiff can show that

the omission "negated a substantial possibility that prompt

rescue efforts would have been successful." Hake, 486 A.2d at

839.

2It is commonly thought that the "substantial possibility"
standard is more lenient than a standard that requires a
plaintiff to prove it is more likely than not that a defendant's
failure to act constituted a substantial factor in bringing about
the victim's injury or death. See W. Page Keeton et al., Prosser

& Keeton on Torts 41, at 44 (Supp. 1988).

6

Under these authorities, the question here reduces to

whether the evidence, viewed in the light most congenial to the

plaintiff, supports a finding that the defendant's failure

promptly to call an ambulance negated a substantial possibility

that James Blinzler would have survived. We think that this

question warrants an affirmative answer.

The plaintiff submitted evidence that she beseeched the

defendant to summon help at 8:35 p.m.; that an ambulance crew was

available and free to respond at that time; and that the

defendant agreed to place the call but then neglected to do so.

The defendant actually made the call at 8:49 p.m. (some fourteen

minutes later) and the ambulance reached the scene at 9:02 p.m.

(an elapsed time of thirteen minutes). The jury heard opinion

evidence from a renowned cardiologist that serious brain damage

(and, hence, death) would have been forestalled had the

paramedics reached the premises ten minutes earlier. On this

record, we believe that a reasonable jury could conclude that the

defendant's omission negated a substantial possibility that the

rescue efforts would have succeeded. Put another way, a

reasonable jury could find (as this jury apparently did) that the

ambulance likely would have arrived fourteen minutes earlier had

it been summoned immediately; that the course of treatment would

have been accelerated by a like amount of time; and that, but for

Marriott's negligence James Blinzler would have survived.

The defendant tries to parry this thrust in two ways.

One initiative involves assembling a string of cases (mostly of

7

hoary origin) in which courts have rejected plaintiffs' claims of

negligence for failure to rescue. See, e.g., Foss v. Pacific

Tel. & Tel. Co., 173 P.2d 144, 149 (Wash. 1946); Whitehead v.

Carolina Tel. & Tel. Co., 129 S.E. 602, 605 (N.C. 1925);

Volquardsen v. Iowa Tel. Co., 126 N.W. 928, 930 (Iowa 1910);

Lebanon, L. & L. Tel. Co. v. Lanham Lumber Co., 115 S.W. 824, 826

(Ky. 1909). These cases all of which involve fire damage

coupled with some alleged negligence on the part of a telephone

company in respect to a telephone call meant to summon the fire

department provide little guidance. In those cases, unlike

here, the plaintiffs did not proffer evidence that, had the call

gone through, the rescuers (there, the firefighters) could have

reached the scene in time to prevent the harm (there, the rapid

spread of a conflagration that had already started). See, e.g.,

Foss, 173 P.2d at 149; Lebanon, 115 S.W. at 826. And perhaps

more importantly, each of those cases draw on Lebanon for the

legal standard of causation a standard that differs materially

from New Jersey's standard. See Lebanon, 115 S.W. at 826

(stating that "it must be established with certainty that but for

their negligence the fire would have been confined" as the

plaintiff contends) (emphasis supplied).

This second point is aptly illustrated by the one entry

in Marriott's string citation that does not involve a burning

building: Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024

(Okla. 1996). To understand Hardy, it is necessary to note that,

in McKellips v. St. Francis Hosp., Inc., 741 P.2d 467, 475-77

8

(Okla. 1987), the Oklahoma Supreme Court held that the causation

standard of the Restatement (Second) of Torts 323 (under which

a plaintiff may prove negligence in a loss of chance case by

showing that the defendant's omission "increase[d] the risk" of

harm), applied in medical malpractice cases. Hardy a case in

which the plaintiff alleged that the telephone company's

negligent operation of a 911 service prevented him from summoning

rescue assistance and thereby proximately caused his wife's death

postdated McKellips. The Oklahoma Supreme Court there

considered extending the causation standard of Restatement 323

to loss of chance claims outside the medical malpractice context.

See Hardy, 910 P.2d at 1025. It declined to do so. See id. at

1030.

Hardy, fairly read, confirms the distinction between

proof of causation in loss of chance cases under the traditional

test (to which Oklahoma adheres in cases not involving medical

malpractice) and under more modern standards that focus instead

on whether a defendant's conduct has significantly increased

particular risks. As we have explained, New Jersey's

"substantial possibility" standard applies to loss of chance

cases in general,3 and it is at a minimum as liberal as the

"increased risk" standard endorsed by section 323 of the

Restatement. See Olah, 574 A.2d at 419 (suggesting that whether

3Like Oklahoma, New Jersey has explicitly adopted section
323 of the Restatement for use in loss of chance cases involving
medical malpractice. See Scafidi v. Seiler, 574 A.2d 398, 405

(N.J. 1990); Evers v. Dollinger, 471 A.2d 405, 415 (N.J. 1984).

9

the plaintiff "has a substantial possibility of avoiding harm

would ordinarily be subsumed in the jury's determination whether

a defendant's deviation increased the risk of harm") (internal

quotations omitted). Since Hardy apparently would have stated a

claim had the Oklahoma court applied the more lenient "increased

risk" standard, see Hardy, 910 P.2d at 1030, Marriott's flagship

case actually supports a finding of causation under New Jersey

law.

Marriott's second attempt to scuttle the finding of

causation features its lament that the plaintiff did not prove

that the same traffic conditions which were extant at and after

8:49 p.m. were also extant at and after 8:35 p.m. This lament

can scarcely be taken seriously. Juries have the power to draw

reasonable inferences from established facts. It is well within

a jury's ordinary competence to conclude that traffic conditions

for an emergency vehicle do not change dramatically in a fourteen

minute period that is well outside rush hour.

The defendant's suggestion that a highway accident, or

a diluvian tempest, or some other freak occurrence, later abated,

might have delayed the ambulance if it began its run at 8:35 p.m.

rather than at 8:49 p.m. is equally jejune. It is the

plaintiff's burden to prove her case by a preponderance of the

evidence, not beyond all conceivable doubt. In the absence of

some reason to suspect changed conditions and there is no

evidence of any actual change here the jury's inference that

the ambulance would have arrived in roughly the same elapsed

10

portal-to-portal time is unimpugnable. See Levesque v. Anchor

Motor Freight, Inc., 832 F.2d 702, 704 (1st Cir. 1987)

(explaining that the "perhapses" that dot a factbound trial

record typically "are for factfinders to resolve not for judges

imperiously to dictate"); see also W. Page Keeton et al., Prosser

& Keeton on Torts 41, at 269 (5th ed. 1984) (noting that a

plaintiff does not have to negate entirely the possibility that

the defendant's conduct was not a contributing cause of the

harm).

Silhouetted against this legal backdrop, the evidence

of record, visualized most favorably to the plaintiff, see

Cumpiano, 902 F.2d at 151, suffices to ground a finding that, had

the defendant hailed an ambulance immediately upon request, there

was at least a significant possibility that James Blinzler's

death could have been prevented. Accordingly, we are not at

liberty under New Jersey law to disturb the jury's conclusion

that Marriott's negligence constituted a substantial factor in

the ensuing death.

IV. BYSTANDER LIABILITY
IV. BYSTANDER LIABILITY

The most vexing issue in this case involves the

plaintiff's claim of negligent infliction of emotional distress.

This claim is based on the injury that she experienced while

watching her husband suffer as the beleaguered couple awaited the

ambulance's overdue arrival. We start this segment of our

analysis with a discussion of the doctrine of bystander liability

as it has evolved in New Jersey, then shift our attention to an

11

open question that the district court found to be dispositive,

and, finally, apply the doctrine as we understand it to the

idiosyncratic facts of this case.

A. General Principles of Bystander Liability.
A. General Principles of Bystander Liability.

American courts first recognized bystander liability in

the landmark case of Dillon v. Legg, 441 P.2d 912 (Cal. 1968).

Drawing in part on precedents from English common law, the court

ruled that a mother could recover for emotional and physical

injuries suffered "from witnessing the [negligent] infliction of

death or injury to her child." Id. at 914. The Dillon court

implicitly suggested that any bystander should be able to recover

for all objectively foreseeable injuries. See id. at 920-21. To

help jurists navigate the reefs and shoals of foreseeability, the

court attempted to elucidate guidelines based on Dillon's factual

scenario. See id. at 920.

Twelve years later, New Jersey embraced bystander

liability in Portee v. Jaffee, 417 A.2d 521 (N.J. 1980). The

state supreme court did not clasp Dillon uncritically to its

bosom, but, rather, abjured a tunnel-vision focus on

foreseeability, fearing that it would open the door to claims of

emotional distress advanced on behalf of any onlooker to any

negligently caused event.4 See id. at 527 (cautioning against

4New Jersey is not alone in its reluctance blindly to follow
Dillon's lead. See, e.g., D'Ambra v. United States, 338 A.2d

524, 528 (R.I. 1975) (rejecting rigid foreseeability focus).
Indeed, even the progenitor of the doctrine has had second
thoughts. See Thing v. La Chusa, 771 P.2d 814, 826 (Cal. 1989)

(retreating from Dillon on this point).

12

institutionalizing "an unreasonably excessive measure of

liability"); see also Carey v. Lovett, 622 A.2d 1279, 1286 (N.J.

1993) (suggesting that treating foreseeability as a sole talisman

would render it difficult to differentiate between legitimate and

fraudulent claims); Prosser & Keeton, supra, 54, at 366

(warning that forcing defendants to pay for the "lacerated

feelings" of every bystander would be "an entirely unreasonable

burden on human activity").

In an effort to furnish a condign remedy for deserving

injuries while at the same time avoiding "speculative results or

punitive liability," Portee, 417 A.2d at 526, New Jersey

transmogrified the Dillon guidelines into prerequisites of a

cause of action for bystander liability, see id. at 528. The

Portee court concluded that a bystander plaintiff should be

permitted to recover under New Jersey law only if she could prove

(1) the death or serious injury of another (caused by the

defendant's negligence); (2) an intimate familial relationship

with the victim; (3) her observation of the victim at the time of

the injury or immediately thereafter; and (4) severe emotional

distress resulting from the observation. See id. Subsequent

decisions have cut plaintiffs some slack (but not very much) in

their efforts to fulfill this quadrat of requirements. See,

e.g., Dunphy v. Gregor, 642 A.2d 372, 377-78 (N.J. 1994) (holding

that unmarried cohabitants may enjoy an intimate familial

relationship); Frame v. Kothari, 560 A.2d 675, 678 (N.J. 1989)

(explaining that a plaintiff may recover without actually seeing

13

the injury so long as it is "susceptible to immediate sensory

perception" and the plaintiff observes the victim immediately

after the injury is inflicted).

These four elements serve a critical function in

keeping bystander liability within reasonable bounds. First,

they furnish a set of guideposts that help to identify and define

a range of claims that are presumptively valid while excluding

other claims that society simply cannot afford to honor. See

Dunphy, 642 A.2d at 377 (noting that the elements of bystander

liability "structure the kind of `particularized foreseeability'

that ensures that the class is winnowed . . . and that limitless

liability is avoided"). Second and relatedly they combine to

define narrowly the emotional interest that the law protects.

See Carey, 622 A.2d at 1286; accord Thing v. La Chusa, 771 P.2d

814, 829 (Cal. 1989). While "[t]he law should find more than

pity for one who is stricken by seeing that a loved one has been

critically injured or killed," Portee, 417 A.2d at 526, the

elements of the bystander liability tort frankly recognize that

it is not the law's province to shield people from all anxieties.

Since the ordinary slings and arrows of human existence

inevitably produce stress and strain, "only the most profound

emotional interests should receive vindication for their

negligent injury." Id.

The common thread that runs through these cases is that

emotional anguish is a natural, perhaps omnipresent, reaction

whenever one is forced to watch a loved one suffer, and therefore

14

should not be compensable in the absence of special

circumstances. In an effort to hold the line, New Jersey law

decrees that bystanders may recover in tort only for the

particularly exquisite anguish that occurs when they personally

observe trauma strike a loved one like a bolt from the blue. See

Frame, 560 A.2d at 679 (explaining that bystander liability is

supposed to remedy the "harm of seeing a healthy victim one

moment and a severely injured one the next"); Portee, 417 A.2d at

527 ("Discovering the death or serious injury of an intimate

family member will always be expected to threaten one's emotional

welfare. Ordinarily, however, only a witness at the scene of the

accident causing death or serious injury will suffer a traumatic

sense of loss that may destroy his sense of security and cause

severe emotional distress."). Thus, there can be no recovery

unless the close relation's helpless watching arises in the

context of a sudden, unexpected, and accidental injury.

B. The Fork in the Road.
B. The Fork in the Road.

The issue before us is whether the plaintiff's asserted

injury falls within the narrow range of bystander liability

claims that are actionable under New Jersey law. The district

court decided that it did not. The court relied primarily on a

series of bystander liability/medical malpractice cases in which

the New Jersey Supreme Court placed a gloss on its earlier

decisions and indicated that a plaintiff must witness the actual

act of malpractice and appreciate its effect on the patient in

order to bring herself within the class of persons entitled to

15

recover. See Carey, 622 A.2d at 1288 (declaring that a plaintiff

must "contemporaneously observe the malpractice and its effects

on the victim"); Frame, 560 A.2d at 681 ("In an appropriate case,

if a family member witnesses the physician's malpractice,

observes the effect of the malpractice on the patient, and

immediately connects the malpractice with the injury, that may be

sufficient to allow recovery for the family member's emotional

distress."); see also Gendek v. Poblete, 654 A.2d 970, 975 (N.J.

1995) (rejecting a claim on the ground that the bystander did not

"immediately connect[] any act of malpractice" with the victim's

death).

Here, concededly, Mrs. Blinzler cannot satisfy this

added requirement; she neither "witnessed" the negligence (which

comprised the hotel operator's failure immediately to call an

ambulance and which occurred six floors beneath the Blinzlers'

room) nor fully appreciated at the time that the negligence was

hindering needed assistance (indeed, the defendant's

misrepresentations, if believed, concealed the very fact of the

negligence). Thus, to decide this case we must determine whether

the Gendek-Carey-Frame gloss applies only to bystander

liability/medical malpractice claims (as the plaintiff contends)

or whether it applies to all bystander liability claims (as the

defendant contends and as the lower court concluded). Although

the answer to the question is by no means free from doubt, we

think that the district court took the wrong fork in the road.

As an initial matter, the New Jersey Supreme Court has

16

never imposed the added requirement that a plaintiff witness the

negligent act and contemporaneously connect it to the injury of a

loved one in any case outside the medical malpractice context,

and the malpractice cases in which the requirement has been

imposed strongly suggest that it is restricted to that milieu.

See Gendek, 654 A.2d at 974 (describing the requirement as

"added" and "special" in that it is "imposed to establish an

indirect claim for emotional distress arising from medical

malpractice"); Carey, 622 A.2d at 1286 ("With medical-malpractice

claims, we have required that claimants observe contemporaneously

the act of malpractice and the resultant injury.") (emphasis

supplied). What is more, crafting a special set of rules for

bystander liability/medical malpractice cases is not in any way

an unprecedented flight of fancy; other courts that recognize

bystander liability claims in general sometimes treat such claims

more restrictively in the medical malpractice setting, even, on

occasion, barring them outright. See, e.g., Maloney v. Conroy,

545 A.2d 1059, 1063-64 (Conn. 1988); Wilson v. Galt, 668 P.2d

1104, 1110 (N.M. 1983).

We note, too, that the added requirement designed by

the New Jersey Supreme Court for use in connection with bystander

liability/medical malpractice claims is grounded in a set of

policy considerations that do not seem to apply to other

bystander liability claims. For one thing, the unique emotional

interest that fuels the doctrine of bystander liability is

unaffected in most cases of medical malpractice for the harm

17

caused by, say, misdiagnosis usually does not manifest itself

until days, weeks, months, or years have elapsed, and even then,

the misdiagnosis rarely culminates in a single spontaneous and

shocking event. See Frame, 560 A.2d at 678-79 (explaining that

in the typical malpractice case "[g]rief over the gradual

deterioration of a loved one, as profound as that grief may be,

often does not arise from a sudden injury," but, rather, under

circumstances in which the family members have had the "time to

make an emotional adjustment"). It is largely for this reason

that bystander liability must be even more "narrowly

circumscribed in the context of a medical misdiagnosis or failure

to act." Gendek, 654 A.2d at 975-76. New Jersey chose to

accomplish this circumscription by limiting bystander liability

in the medical malpractice arena to those situations in which the

putative plaintiff observes both the act of malpractice and its

immediate effects, and appreciates the interrelationship. See,

e.g., Frame, 560 A.2d at 681. That rationale loses force outside

the medical malpractice context.

For another thing, the added requirement applicable to

bystander liability in the medical malpractice context reflects

societal concerns about the impact of expanded liability on the

delivery of health care. See Gendek, 654 A.2d at 975 ("In

considering the standards that govern an appropriate duty of care

and limitations of liability in [the health care] setting, we

must be especially mindful of the principles of sound public

policy that are informed by perceptions of fairness and

18

balance."); Carey, 622 A.2d at 1286 (voicing uneasiness about the

"effects of the expansion of liability on the medical profession

and society," and specifically noting sharp increases in

malpractice insurance premiums); Frame, 560 A.2d at 681

(emphasizing that the special refinement of bystander liability

for medical malpractice cases is at least partly driven by a

desire to avoid "unreasonably burdening the practice of

medicine"). This group of situation-specific policy concerns is

best addressed by "narrowly circumscrib[ing]" bystander liability

in the medical malpractice setting so as to minimize any "adverse

effect on the practice of medicine or on the availability of

medical services." Frame, 560 A.2d at 681. Once again, this

reasoning loses force outside the medical malpractice context.

The language of the New Jersey cases and the

distinctive nature of the policy considerations that underlie the

added requirement mark the genesis of our belief that, when the

opportunity arises, the New Jersey Supreme Court will not engraft

this health-care-specific requirement upon the body of cases that

lie beyond the medical malpractice arena. New Jersey has already

expressed its view of general public policy concerns with respect

to expanded liability for run-of-the-mine accidents by conferring

a right of recovery on bystanders and defining the elements of

the tort. See Dunphy, 642 A.2d at 377; Portee, 417 A.2d at 528.

We think it is no accident that in superimposing the added

requirement on bystander liability/medical malpractice cases, the

state supreme court has been scrupulously careful not to imply a

19

broader sweep. Because we believe that this specificity is

purposeful rather than serendipitous, we hold that the added

requirement imposed by the Gendek-Carey-Frame line of cases is

applicable only to causes of action that, at bottom, charge

health-care providers with malpractice. The district court,

therefore, took the wrong fork in the road.

C. Applying the Principles.
C. Applying the Principles.

Once we put the added requirement to one side, the only

question that remains open under this rubric is whether the jury

lacked evidence satisfactory to support a finding that the

plaintiff's injury fell within the standard parameters of

bystander liability that obtain in New Jersey vis-a-vis suits

arising outside the medical malpractice context. We think the

evidence sufficed. Intimate relationship and third-party injury

(i.e., a spouse's death) are not in dispute, and the record

contains adequate proof of severe emotional distress. The

seminal New Jersey case suggests that, in addition to these three

elements, a plaintiff need only show that she "observ[ed] the

death . . . while it occur[red]." Portee, 417 A.2d at 527; see

also supra p. 13 (recounting the four elements of the tort under

New Jersey law). This last element firsthand observation

corresponds to the distinct emotional interest that is infringed

when an individual witnesses a "shocking event" and "see[s] a

healthy [family member] one moment and a severely injured one the

next." Frame, 560 A.2d at 679.

We appreciate that things are not always what they seem

20

and that it may be overly simplistic to say that in New Jersey

firsthand observation of a suddenly inflicted injury to a loved

one invariably gives rise to the unique emotional interest that

underlies bystander liability. Arguably, it is not merely the

observation of the injury but the perception that it is

accidental or otherwise unwarranted that threatens a "plaintiff's

basic emotional security," Portee, 417 A.2d at 521, and thus

paves the way for bystander liability. See id. at 528 (noting

that it is the "shock and fright" attendant to observing the

"accidental death" of an intimate relation that infringes the

narrowly defined interest in emotional security). Frame makes

this point most clearly, albeit in dictum:

Everyone is subject to injury, disease, and
death. Common experience teaches that the
injury or death of one member of a family
often produces severe emotional distress in
another family member. A threshold problem
is separating the grief that attends that
distress when no one is at fault from the
added stress attributable to the fact that
the injury or death was produced by the
negligent act of another.

Id. at 677. And while the Portee elements have not yet been

formally modified in this respect,5 we think it is not unlikely

that New Jersey will move in this direction. Cf. Thing, 771 P.2d

at 829 (tightening the elements of a bystander liability action

5In Portee, the question was not raised squarely. There the

plaintiff (the victim's mother) arrived at the scene after her

son became trapped in an elevator. She did not witness either
the initial entrapment or the act of negligence (faulty
maintenance) that caused the accident. It was quite clear,
however, that the mother knew immediately that her child's
injuries had an unnatural cause and stemmed from the elevator's
accidental collapse.

21

under California law to require that the plaintiff be "present at

the scene of the injury-causing event" and be "then aware that it

is causing the injury to the victim"). But there are two reasons

why we need not cross this bridge today.

1. The evidence here clearly satisfies the Portee

requirements simpliciter. The plaintiff witnessed a sudden and

shocking event when she watched her husband of forty-two years

undergo excruciating chest pain, vomit, struggle to catch his

breath, asphyxiate, lose consciousness, and ultimately die.

Because she "witness[ed] the victim when the injury [was]

inflicted," Frame, 560 A.2d at 678, recovery would seem

appropriate under a formal incantation of the Portee elements.

2. The law of the case doctrine eliminates any

potential problem as to the precise dimensions of Portee. At

trial's end, the district court charged the jury that "the

plaintiff must be present at the scene of the event and be aware

that the victim is being injured." The defendant's counsel

objected generally to the court's decision to instruct the jury

at all on count 3 (asseverating that New Jersey law requires the

plaintiff actually to witness the negligent act) but he did not

object in any other, more specific respect to the district

court's formulation of the basic elements of the tort. Thus,

even if New Jersey might in an appropriate case impose some

intermediate limitation going beyond Portee but stopping short of

mandating that the plaintiff witness the negligent act, the

defense formulated no such intermediate position at the jury-

22

instruction stage. In other words, the content of the

instruction stands as the law of the case with respect to the

unembellished contours of a cause of action for bystander

liability. See Quinones-Pacheco v. American Airlines, Inc., 979

F.2d 1, 4 n.3 (1st Cir. 1992); Milone v. Moceri Family, Inc., 847

F.2d 35, 38-39 (1st Cir. 1988). And as we have already pointed

out, the plaintiff's proof, measured against the language of the

trial court's instruction, suffices to create a jury question.

Even if we assume arguendo that the New Jersey Supreme

Court would augment the elements of a non-medical-malpractice

cause of action for bystander liability along the lines

exemplified by Thing, the verdict might well be sustainable.

From the evidence adduced at trial, the jury rationally could

find that during the incident proper the plaintiff twice asked

the manager whether the ambulance had been called. Though she

was (erroneously) assured that the call had been made punctually,

she asked the manager yet again at the hospital (receiving the

same misinformation), and then checked with the hotel three days

later (after her husband had perished). This type of evidence

arguably could support an illation that the plaintiff suspected

all along that a delay attributable to the defendant was causing

injury to her husband. Watching the event while suspecting that

her husband's suffering was being unnecessarily prolonged and

worrying that prospects for his rescue were diminishing would

appear to be the kind of distinct emotional harm for which

bystander liability would lie under the premise of Thing. See,

23

e.g., Bloom v. Dubois Regional Med. Ctr., 597 A.2d 671, 683 (Pa.

Sup. Ct. 1991).

V. OTHER ISSUES
V. OTHER ISSUES

The defendant raises a salmagundi of other issues in

connection with its appeal. None of its asseverations is

persuasive. Only three warrant discussion.

A. The Evidentiary Rulings.
A. The Evidentiary Rulings.

The defendant argues that it is entitled to a new trial

because the district court erred in certain evidentiary rulings.

Its chief complaint concerns the admission of evidence relating

to the destruction of the so-called Xeta report (a printout that

catalogues all outgoing calls from the hotel's PBX operator) for

November 13, 1992. The defendant destroyed this telephone log

approximately thirty days after the incident. Had the report

been preserved, it would have pinpointed the very moment that the

operator first placed the call for emergency assistance.

During the trial, the plaintiff sought to show that the

defendant had destroyed this evidence. The defendant objected,

contending that it discarded the Xeta report in the ordinary

course of business, pursuant to established practice, and not as

part of an effort to inter unfavorable evidence. The district

court overruled the objection and permitted the plaintiff to

introduce evidence at trial of the existence and subsequent

destruction of the Xeta report, leaving the defendant's

explanation to the jury. We review the district court's rulings

admitting or excluding evidence for abuse of discretion. See

24

Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d

1364, 1373 (1st Cir. 1991); United States v. Nazzaro, 889 F.2d

1158, 1168 (1st Cir. 1989). We see none in this instance.

When a document relevant to an issue in a case is

destroyed, the trier of fact sometimes may infer that the party

who obliterated it did so out of a realization that the contents

were unfavorable. See Nation-Wide Check Corp. v. Forest Hills

Distributors, Inc., 692 F.2d 214, 217 (1st Cir. 1982); see also 2

Wigmore on Evidence 285, at 192 (James H. Chadbourn rev. ed.

1979). Before such an inference may be drawn, there must be a

sufficient foundational showing that the party who destroyed the

document had notice both of the potential claim and of the

document's potential relevance. See Nation-Wide, 692 F.2d at

218. Even then, the adverse inference is permissive, not

mandatory. If, for example, the factfinder believes that the

documents were destroyed accidentally or for an innocent reason,

then the factfinder is free to reject the inference. See , e.g.,

Jackson v. Harvard Univ., 900 F.2d 464, 469 (1st Cir.), cert.

denied, 498 U.S. 848 (1990); Anderson v. Cryovac, Inc., 862 F.2d

910, 925-26 (1st Cir. 1988).

In this case, the defendant contends that there was no

direct evidence to show that it discarded the Xeta report for any

ulterior reason. This is true as far as it goes but it does

not go very far. The proponent of a "missing document" inference

need not offer direct evidence of a coverup to set the stage for

the adverse inference. Circumstantial evidence will suffice.

25

See, e.g., Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d

1119, 1134 (7th Cir. 1987), cert. denied, 485 U.S. 993 (1988).

We do not believe that the district court abused its

considerable discretion in deciding that the totality of the

circumstances here rendered such an inference plausible. A

reasonable factfinder could easily conclude that Marriott was on

notice all along that the Xeta report for November 13, 1992 was

relevant to likely litigation. Although no suit had yet been

begun when the defendant destroyed the document, it knew of both

James Blinzler's death and the plaintiff's persistent attempts

including at least one attempt after Blinzler died to discover

when the call for emergency aid had been placed. This knowledge

gave the defendant ample reason to preserve the report in

anticipation of a legal action. When the evidence indicates that

a party is aware of circumstances that are likely to give rise to

future litigation and yet destroys potentially relevant records

without particularized inquiry, a factfinder may reasonably infer

that the party probably did so because the records would harm its

case. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156

(4th Cir. 1995); Partington v. Broyhill Furn. Indus., Inc., 999

F.2d 269, 272 (7th Cir. 1993); Nation-Wide, 692 F.2d at 219. In

the circumstances at bar, the trial court acted within its

discretion in admitting the Xeta report.

The defendant also chastises the court for admitting

evidence of another missing record. The security officer's log

for November 13, 1992 could not be located, and the judge

26

permitted evidence of that fact to go to the jury. Once again,

the ruling cannot be faulted. The defendant had no good

explanation for the missing log, and the jury was entitled to

infer that the defendant destroyed it in bad faith.

To cinch matters, these two pieces of evidence had a

synergistic effect. We think it would be proper for a reasonable

factfinder to conclude that the unavailability of two important

documents, both of which bore upon the timing of the call for

emergency assistance, was something more than a coincidence. The

veteran district judge, after hearing all the evidence limning

these mysterious disappearances, put it bluntly in the course of

ruling on post-trial motions:

I will tell you now that the Xeta Report
raises a compelling inference in my mind that
personnel at the Marriott Hotel did destroy
that record willfully, along with the
security officer's daily log of that date.
The inference is compelling that the Marriott
Hotel was hiding the delay of the telephone
operator in making this telephone call.

This is a harsh assessment but it is based on a firsthand

appraisal of the testimony and it is one that a rational jury

easily could draw on the record.

B. The Motion to Reopen.
B. The Motion to Reopen.

After the plaintiff rested, the defendant moved for a

directed verdict under Fed. R. Civ. P. 50(a). After hearing

arguments, the district court permitted the plaintiff to reopen

her case in order to offer certain additional evidence on the

27

issue of causation.6 The defendant assigns error to this

ruling. There is none.

The Federal Rules of Evidence give the district court

broad discretion in ordering the proof. See Fed. R. Evid. 611.

This discretion extends to granting or denying motions to reopen,

see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,

331-32 (1971); Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d

742, 746 (1st Cir. 1995); Lussier v. Runyon, 50 F.3d 1103, 1113

(1st Cir.), cert. denied, 116 S. Ct. 69 (1995), and such rulings

are reviewed principally for abuse of that discretion.

A trial court's decision to reopen is premised upon

criteria that are flexible and fact-specific, but fairness is the

key criterion. See Rivera-Flores, 64 F.3d at 746; Capital Marine

Supply, Inc. v. Thomas, 719 F.2d 104, 107 (5th Cir. 1983). The

specific factors to be assessed include the probative value of

the evidence sought to be introduced, the proponent's explanation

for failing to offer the evidence earlier, and the likelihood of

undue prejudice. See Rivera-Flores, 64 F.3d at 746; Joseph v.

Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir. 1994); see also

6A James W. Moore, Moore's Federal Practice 59.04[13], at 59-33

(2d ed. 1993). The prospect of prolonging the trial is also

material. If the additional evidence is immediately available or

6The supplemental evidence consisted of testimony from two
witnesses. The first, plaintiff's medical expert, simply
clarified and confirmed his earlier testimony that James Blinzler
would have survived had the ambulance arrived ten minutes
earlier. The second witness (an employee of the ambulance
service) testified that the ambulance service had a unit ready,
available, and on call at 8:35 p.m. on November 13, 1992.

28

nearly so, the trial court will have a greater incentive to

permit the case to be reopened. Conversely, if gathering the

additional evidence portends a significant delay in the trial,

the court ordinarily will have a greater reluctance to grant the

motion. See Moore, supra, 59.04[13], at 59-33.

Here, the additional evidence that the plaintiff sought

to introduce was non-cumulative. It had significant probative

value on an essential element in the plaintiff's case, helping to

connect the defendant's negligence to the injuries claimed. See

supra note 6. There is no sign that the plaintiff withheld the

proof as a strategic matter. To the contrary, the record shows

quite clearly that she attempted to streamline her case in chief

and offered the incremental evidence only after the judge

expressed reservations about the state of the proof on the issue

of causation.7

Notwithstanding these circumstances, the defendant

insists that permitting the plaintiff to reopen worked

substantial prejudice because the defense hoped all along that

the plaintiff would fail to prove causation. This is

7This is consistent with the method of the Civil Rules.
Rule 50(a) exists in part to afford the responding party "an
opportunity to cure any deficiency in that party's proof that may
have been overlooked until called to the party's attention by a
late motion for judgment." Fed. R. Civ. P. 50, advisory
committee's note (1991 amendment). In other words, Rule 50(a)
should be construed "to avoid tactical victories at the expense
of substantive interests." Moore, supra, 50.08, at 50-89 The

district court echoed this sentiment when it granted the motion
to reopen, stating: "I allow the plaintiff to reopen because I
want the truth. I want the facts. I want to achieve a just
result in this case . . . ."

29

disappointment rather than cognizable prejudice. The evidence

taken after reopening consisted of only two witnesses and created

no unfair surprise. The added testimony simply fleshed out the

plaintiff's basic theory of liability that the time saved by a

prompt call might well have led to James Blinzler's survival.

Moreover, allowing the plaintiff to reopen did not perceptibly

delay the trial and did not occasion any interruption of the

defense case. In any event, the district court prudently offered

the defendant a continuance so that it might regroup and better

rebut the additional evidence. By declining the court's offer,

the defendant confirmed the absence of unfair prejudice. See

United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.),

cert. denied, 493 U.S. 862 (1989). Under these circumstances,

the granting of the plaintiff's motion to reopen comes well

within the heartland of the trial court's discretion. See

Rivera-Flores, 64 F.3d at 749.

C. The Emotional Distress Award.
C. The Emotional Distress Award.

Where, as here, a federal court sets aside a jury's

verdict and directs the entry of judgment as a matter of law, the

court must also rule conditionally on any concomitant motion for

a new trial. See Fed. R. Civ. P. 50(c). In this instance the

district court held that, if it had erred in granting judgment as

a matter of law on count 3, then the jury's award of damages for

emotional distress should stand. The defendant assails this

contingent ruling and argues for either a new trial or a

remittitur on count 3. In its most cogent aspect, the argument

30

is based on the premise that the scanty physical symptoms

exhibited by the plaintiff simply do not justify an award of

$200,000 in damages.

Federal law governs the question of whether the trial

court should order a remittitur in a diversity case. See Donovan

v. Penn Shipping Co., 429 U.S. 648, 649 (1977). Under applicable

federal standards, appellate review is limited to whether the

district court abused its discretion in deciding to endorse the

jury award rather than trim it or set it aside as excessive.

See, e.g., Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir.

1991); Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987).

An award of damages will not be deemed unreasonably

high or low as long as it comports with some "rational appraisal

or estimate of the damages that could be based on the evidence

before the jury." Milone, 847 F.2d at 37 (citation omitted). On

the high side, a damage determination will withstand scrutiny

unless it is "grossly excessive, inordinate, shocking to the

conscience of the court, or so high that it would be a denial of

justice to permit it to stand." Correa v. Hospital San

Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995) (quoting Grunenthal

v. Long Island R.R. Co., 393 U.S. 156, 159 & n.4 (1968)),

petition for cert. filed, 64 U.S.L.W. 3605 (Feb. 26, 1996).

Moreover, "an appellate court's normal disinclination to second-

guess a jury's evaluation of the proper amount of damages is

magnified where . . . the damages entail a monetary valuation of

intangible losses, and the trial judge, having seen and heard the

31

witnesses at first hand, accepts the jury's appraisal." Id.

Here, viewing the evidence of damages in the light most

amiable to the plaintiff, see Toucet v. Maritime Overseas Corp.,

991 F.2d 5, 11 (1st Cir. 1993); Ruiz, 929 F.2d at 34, we think

that the award, though perhaps generous, passes muster. Under

New Jersey law, no particular level of physical symptomatology is

necessary to support damages for emotional distress. See

Strachan v. John F. Kennedy Mem. Hosp., 538 A.2d 346, 353 (N.J.

1988).8 The testimony in this record indicates that the

plaintiff watched helplessly as her husband collapsed, vomited,

passed out, and became cyanotic. She was still in the room

nearly fifteen minutes later when an oxygen mask was being placed

over her unconscious husband's mouth and nose. In the aftermath

of her husband's death, she experienced daily flashbacks to that

time of torment. She still suffers from insomnia, cardiac

palpitations, and shortness of breath. Coupled with proof of

negligent infliction of emotional distress, this evidence

justifies substantial compensation under New Jersey law.

Of course, the task of valuing noneconomic losses in

tort cases is an imprecise exercise. There is no one "correct"

8At one time New Jersey courts did require proof of
"substantial bodily injury or sickness" in all emotional distress
cases. See, e.g., Caputzal v. The Lindsay Co., 222 A.2d 513, 515

(N.J. 1966); Falzone v. Busch, 214 A.2d 12, 17 (N.J. 1965).

Portee changed this rule in respect to bystander liability,

permitting recovery in the absence of physical symptoms if the
circumstances are such that severe emotional distress can easily
be inferred. See Portee, 417 A.3d at 527-28.

32

sum, but, rather, a range of acceptable awards. In many

instances the spread between the high and low ends of the range

will be great. The choice within the range which by its nature

requires the decisionmaker to translate intangibles (such as pain

and suffering) into quantifiable dollars and cents is a choice

largely within the jury's ken. See Correa, 69 F.3d at 1197.

Since we are unable to conclude on this record that $200,000 is a

figure beyond the wide universe of acceptable awards, we must

uphold the district court's finding that the figure is not

excessive. See Ruiz, 929 F.2d at 34 (explaining that the court

of appeals "cannot, and will not, without substantial cause,

overrule a trial judge's considered refusal to tamper with the

damages assessed by a jury").

VI. CONCLUSION
VI. CONCLUSION

We need go no further. The record adequately supports

the jury's conclusion that the defendant's inexplicable delay in

calling an ambulance constituted a proximate cause of James

Blinzler's death and negligently inflicted both emotional

distress and a loss of consortium on his wife (now his widow).

Finding, as we do, that the law of New Jersey permits this

multifaceted conclusion to remain fully intact, that the

defendant's several challenges to evidentiary and case-management

rulings are meritless, and that the damages awarded are not

grossly excessive, we reinstate the jury verdict in its entirety.

As a necessary corollary, we vacate the district court's entry of

judgment for the defendant on count 3.

33

Affirmed in part and reversed in part. Costs in favor of the
Affirmed in part and reversed in part. Costs in favor of the

plaintiff.
plaintiff.

34