United States Court of Appeals
For the First Circuit
No. 04-2494
MARÍA YOLANDA MARCANO RIVERA; JORGE RODRÍGUEZ MATOS;
FABIOLA RODRÍGUEZ MARCANO,
Plaintiffs, Appellees,
v.
TURABO MEDICAL CENTER PARTNERSHIP d/b/a
HOSPITAL INTERAMERICANO DE MEDECINA AVANZADA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Orlando H. Martínez-Echeverría, with whom Fernando E. Agrait
was on brief, for appellant.
Jorge M. Suro Ballester, with whom Carlos A. Ruiz was on
brief, for appellees.
July 15, 2005
LIPEZ, Circuit Judge. Defendant Hospital Interamericano
de Medicina Avanzada ("HIMA") appeals from a jury verdict finding
that it was negligent in monitoring the birth of Fabiola Rodríguez
Marcano and that its negligence caused Fabiola severe and permanent
neurological damage. HIMA argues that there was insufficient
evidence to establish its liability and that the evidence showed
instead that Dr. Pedro Roldán Millan ("Dr. Roldán"), the non-
employee obstetrician who delivered Fabiola, was solely responsible
for Fabiola's injuries. HIMA further claims that the district
court erred in allowing testimony by one of the plaintiffs' experts
and in not remitting the damages award or awarding a new trial on
apportionment of liability. We affirm.
I.
A. Factual background
We take the facts from the trial record, reciting them in
the light most favorable to the verdict. See Grajales-Romero v.
Am. Airlines, 194 F.3d 288, 292 (1st Cir. 1999).
On the morning of September 14, 2000, plaintiff María
Marcano Rivera ("Marcano") was admitted to HIMA, a hospital in
Caguas, Puerto Rico, pursuant to her obstetrician's decision to
induce labor. The obstetrician, Dr. Roldán, was not an employee of
HIMA but had privileges there.
At 10 a.m., HIMA nurses attached Marcano to a fetal
monitor, which monitors both the fetus's heart rate and the
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mother's uterine contractions. A fetal monitor provides a digital
display of the fetal heart rate and prints out a paper record,
known as a tracing, of the heart rate and the contractions. HIMA
protocol dictates that nurses check the fetal monitor and record
the fetal heart rate every 15 minutes during high-risk deliveries,
including induced labor. HIMA protocol also provides that the
nurse monitoring the delivery is responsible for notifying the
physician of any abnormal fetal heart rate or uterine contraction
findings.
At 11:45 a.m., Dr. Roldán induced labor by simultaneously
administering Oxytocin through an intravenous drip and inserting in
Marcano's vagina a 100 mcg tablet of Cytotec from his personal
supply. Dr. Roldán's simultaneous administration of the two drugs
was contrary to HIMA protocol and medical standards established by
the American College of Obstetricians and Gynecologists ("ACOG").
Both Oxytocin and Cytotec stimulate uterine contractions; together
they have a multiplier effect and can produce contractions that are
too intense or too close together, thereby decreasing the flow of
oxygen to the fetus. ACOG thus recommends a four-hour waiting
period between administering Oxytocin and Cytotec. Moreover, the
recommended dose of Cytotec -- when taken alone -- is only 25 mcg.
The higher 100 mcg dose administered by Dr. Roldán also risks
producing contractions which are too intense or too close together.
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Shortly after Dr. Roldán administered the drugs, he left
Marcano's room. Marcano soon began to feel intense contractions.
Although she rang the nurse call button repeatedly, the nurse
monitoring the delivery, Brenda Marrero, did not respond.
When Marcano's husband, Jorge Rodríguez Matos
("Rodríguez"), joined her at approximately 2:30 p.m., he found her
in a desperate state because of frequent contractions. She told
him that the contractions were not like the ones she experienced
with the delivery of her first child and that she could not stand
the pain. Rodríguez went to the nurses' station and asked them to
summon Dr. Roldán. At approximately 2:45, Dr. Roldán returned to
Marcano's room and administered Demerol, a pain killer. He
remained in the room throughout the rest of the delivery.
Oddly, the tracing from the fetal heart rate monitor is
missing for the period between 10 a.m. and 3:27 p.m., meaning there
is no way to evaluate the fetus's heart rate and oxygen supply
while Marcano was alone in her hospital room.1 The tracing between
1
The record does include a form that purports to be Nurse
Marrero's recording of the fetal heart rate every 30 minutes based
on the monitor's digital display. However, the plaintiffs' expert
questioned the accuracy of the entries on the form, testifying at
trial that
the frequency of the registered fetal heart rates was
inadequate because it was every 30 minutes [instead of
every 15 minutes as dictated by HIMA protocol], but the
fetal heart rates which are registered in this form . . .
are totally out of context with regards not only to the
part of the fetal heart rate tracing which we did get an
opportunity to evaluate, but [also] of the catastrophic
condition of the baby when she was born. This is like
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3:27 p.m. and 3:45 p.m. appears normal, but that reading does not
preclude the possibility that the fetus was deprived of oxygen
during the period for which the tracing is missing. Between 3:45
p.m. and 5 p.m., the tracing reveals a continuing pattern of
contractions that were too intense and too close together,
accompanied by a low fetal heart rate. These factors suggest that
the fetus was not receiving sufficient oxygen. The tracing ends at
approximately 5 p.m., when Marcano was transferred to the delivery
room and the monitor was disconnected.
Baby Fabiola was born at 6:19 p.m. She was taken
immediately to the neonatal intensive care unit, where she was
diagnosed with neonatal asphyxia and seizures secondary to neonatal
asphyxia, and where she spent approximately two weeks before being
discharged to her parents. Marcano and Rodríguez did not learn
until four months later that Fabiola had permanent neurological
damage as a result of neonatal asphyxia. Fabiola continues to
suffer from daily seizures, and her prognosis is grim. Although
she has an anticipated life span of 45 years, she will never see,
walk, or communicate, and will require a caregiver for the rest of
her life.
another patient, another labor and delivery. This
registers perfectly normal fetal heart tones . . . [that]
are totally out of context with the clinical picture.
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B. Procedural history
On January 16, 2002, the plaintiffs sued Dr. Roldán and
HIMA2 in federal district court for medical malpractice resulting
in severe neurological damage to Fabiola. Early in the litigation,
the plaintiffs reached a settlement with Dr. Roldán, who is no
longer in practice. Their malpractice claims against HIMA
proceeded to trial in October 2003, principally on the theory that
HIMA employees failed to adequately monitor the labor and
childbirth process and that HIMA's failure contributed to Fabiola's
injuries.3 Specifically, the plaintiffs suggested that the
neurological damage occurred during the period for which the
tracing is missing, and that regular monitoring would have alerted
Dr. Roldán to Fabiola's distress in enough time to avert permanent
damage.
Following a five-day trial, the jury returned a verdict
in favor of the plaintiffs. The jury found that both HIMA and Dr.
Roldán had been negligent and that their negligence was the
proximate cause of the plaintiffs' damages. It awarded
$5.5 million in damages, apportioning 47% of the liability to HIMA
and 53% of the liability to Dr. Roldán. Accordingly, the court
2
HIMA is also known as Centro Médico del Turabo, Inc.
3
Because Dr. Roldán was not an employee of HIMA, the hospital
is not vicariously liable for his negligence during the delivery
process. Its liability is limited to the acts and omissions of its
own employees –- here, the nursing staff.
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entered judgment against HIMA for $2.585 million (i.e., 47% of $5.5
million). The court subsequently denied HIMA's post-verdict motion
for judgment as a matter of law, a new trial on apportionment of
liability, or remittitur.
II.
HIMA raises several arguments on appeal. First, it
asserts that the district court erred in denying its motion for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50. Second, it assigns error to the district court's
decision to admit testimony by one of the plaintiffs' expert
witnesses. Finally, HIMA contends that the district court abused
its discretion in failing to grant its motion for a new trial or
remittitur under Federal Rule of Civil Procedure 59. We consider
these claims in turn.
A. Motion for Judgment as a Matter of Law
While conceding that Fabiola suffered permanent
neurological damage during birth, HIMA argues that the evidence at
trial was insufficient to allow a reasonable jury to conclude that
the damage was causally linked to negligent monitoring. The
district court rejected this argument in denying a post-verdict
motion for judgment as a matter of law, concluding that
there was ample evidence presented to the jury, which if
believed, could sustain a finding that HIMA was indeed
negligent in monitoring plaintiff's labor and that said
negligence proximately caused the alleged injuries. . . .
[T]he jury heard evidence that the monitoring was done
every thirty minutes as opposed to every 15 minutes, as
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was standard in induced labors. Most importantly, the
jury was allowed to make reasonable inferences from the
fact that a significant portion of the tracing of the
fetal heart rate and uterine contractions monitoring
machine was missing, and HIMA was unable to give any
explanation therefor.
A party seeking to overturn a jury verdict faces an
uphill battle. "Courts may only grant a judgment contravening a
jury's determination when the evidence points so strongly and
overwhelmingly in favor of the moving party that no reasonable jury
could have returned a verdict adverse to that party." Rivera
Castillo v. AutoKirey, Inc., 379 F.3d 4, 9 (1st Cir. 2004)
(internal quotation marks omitted). We review de novo the district
court's denial of a motion for judgment as a matter of law, viewing
the evidence in the light most favorable to the nonmoving party.
Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004).
The substantive law of Puerto Rico governs this diversity
suit. See Rojas-Ithier v. Sociedad Española de Auxilio Mutuo y
Beneficiencia de P.R., 394 F.3d 40, 43 (1st Cir. 2005). To prevail
on a medical malpractice claim under Puerto Rico law, "a party must
establish (1) the duty owed; (2) an act or omission transgressing
that duty; and (3) a sufficient causal nexus between the breach and
the harm." Id. HIMA cites deficiencies in the plaintiffs’
evidence as to both the first and third prongs of this test.
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1. Duty
Puerto Rico courts have explained the standard of care
owed to patients as "[t]hat [level of care] which, recognizing the
modern means of communication and education, . . . meets the
professional requirements generally acknowledged by the medical
profession." Lama v. Borras, 16 F.3d 473, 478 (1st Cir. 1994)
(quoting Oliveros v. Abreu, 101 P.R. Dec. 209, 226 (1973)). The
standard is a national one, and ordinarily must be demonstrated
through expert testimony. Id.
Here, the plaintiffs’ expert, Dr. Jose Juan Gorrín
Peralta (“Dr. Gorrín”), explained that the standard of care
requires monitoring high-risk deliveries, including induced labor,
every 15 minutes. Monitoring includes evaluating both the fetal
heart rate and uterine contraction information provided by the
fetal monitor’s paper tracings and the fetal heart rate information
provided by the fetal monitor’s digital display. Monitoring is a
shared responsibility of the doctor and the nurse; when the doctor
is not present, the nurse is in charge of the monitoring. Dr.
Gorrín’s testimony on this point was corroborated by HIMA's expert,
Dr. José Vargas Cordero, who testified that when the doctor is not
present, the nurse is in charge of checking both the tracing and
the digital monitor, and that if the nurse notices an abnormal
reading, she must call the doctor.
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There was sufficient evidence for the jury to find that
HIMA failed to monitor Marcano's labor in accordance with the
national standard of care. It is undisputed that Nurse Marrero
checked the fetal monitor’s digital heart rate display at most
every 30 minutes, instead of every 15 minutes as Dr. Gorrín
testified was standard. Indeed, the jury may have concluded that
Nurse Marrero did not even check the fetal heart rate monitor every
30 minutes. Dr. Gorrín testified that the fetal heart rates
recorded by Marrero “are totally out of context not only to the
part of the fetal heart rate tracing which we did get an
opportunity to evaluate, but of the catastrophic condition of the
baby when she was born," implying that Marrero may have falsified
the record. Moreover, Marcano testified that she was alone in the
hospital room between 11:45 a.m. and 2:30 p.m. –- a period of
nearly three hours –- and that nurses failed to respond when she
repeatedly attempted to summon them during that time. Based on
this testimony, the jury could reasonably have concluded that
Marrero failed to adequately monitor the labor.
2. Causation
To establish causation under Puerto Rico law, "[a]
plaintiff must prove, by a preponderance of the evidence, that the
physician’s negligent conduct was the factor that ‘most probably’
caused harm to the plaintiff." Lama, 16 F.3d at 478 (quoting
Sierra Perez v. United States, 779 F. Supp. 637, 643 (D.P.R.
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1991)). While this causation standard does not require all other
causes of damage to be eliminated, "a jury normally cannot find
causation based on mere speculation and conjecture; expert
testimony is generally essential." Id.; see also Rojas-Ithier, 394
F.3d at 43 ("[A] factfinder normally cannot find causation without
the assistance of expert testimony to clarify complex medical and
scientific issues that are more prevalent in medical malpractice
cases than in standard negligence cases.").
HIMA argues that there was insufficient evidence for a
reasonable jury to find that its negligent monitoring was "most
probably" the factor that caused Fabiola to be injured during her
delivery. It contends that the evidence demonstrated instead that
Fabiola's injuries were mostly likely the result of Dr. Roldán's
negligence.
The issue of causation is complicated in this case by the
disappearance of the fetal monitor tracing for the period between
10 a.m. and 3:27 p.m. Experts for both parties agree that
Fabiola's heart rate was in the normal range for a short time after
3:27, when the tracing begins, and that it dropped perilously low
at approximately 5 p.m., shortly before the tracing ends. The
experts also agree that the low heart rate reading at 5 p.m.
indicates that Fabiola was in distress and that Dr. Roldán, who was
present at the time, should have taken steps immediately to
ameliorate the situation. Such steps would have included turning
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off the Oxytocin drip to reduce the strength and frequency of
contractions, turning Marcano on her side to increase the flow of
oxygen to the fetus, administering oxygen to Marcano, and, if those
measures failed, performing a cesarean section. It is undisputed
that Dr. Roldán took none of these steps; by the time Fabiola was
born at 6:19 p.m., she was suffering from neonatal asphyxia.
HIMA's medical experts testified that because the fetal
monitor indicated a normal heart rate at 3:27 p.m. and an ominously
low heart rate at 5 p.m., Fabiola’s injuries must have occurred
sometime between 3:27 p.m. and 6:19 p.m. Emphasizing that Dr.
Roldán was present throughout that period and failed to act, HIMA
argues that Fabiola's injuries are directly attributable to the
doctor's failure to intervene and that any failure of monitoring
before 3:27 p.m. did not cause the asphyxia. HIMA further contends
that without the tracing for the period before 3:27 p.m., any
conclusion that the injury occurred during that period would be
based on impermissible speculation.
HIMA is correct that, without the missing tracing, it is
impossible to know with certainty whether the fetus was in distress
before 3:27 p.m. –- or, more particularly, between 11:45 a.m., when
Dr. Roldán induced the labor and left a nurse in charge of the
monitoring, and 2:45 p.m., when Dr. Roldán returned to Marcano's
bedside to supervise the delivery. It does not follow, however,
that no reasonable jury could find that negligent monitoring during
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that period most probably caused or contributed to Fabiola’s
injuries. Although HIMA's experts testified that the normal fetal
heart rate at 3:27 p.m. indicated a smooth process up to that
point, the plaintiffs' expert, Dr. Gorrín, took a different
position. He testified that a normal fetal heart rate at 3:27 p.m.
does not rule out the possibility that the fetus was in distress
earlier:
The baby could have had an hypoxic episode producing
asphyxia, and mother nature will try to preserve life,
and the baby's heart will not necessarily stay at [the
below-normal rate of] 60 beats per minute or the baby
might not even die if he was severely asphyxiated during
a window of time when he or she was subjected not to one,
but to two medications, one of which at a very excessive
dose and another one at a dose we'll never know about,
without monitoring. I cannot say just because there was
an 18-minute window [between 3:27 p.m. and 3:45 p.m.]
with an adequate baseline fetal heart rate that nothing
else happened before [the beginning of the tracing at
3:27 p.m.].
Dr. Gorrín’s testimony that the fetus may have been
deprived of oxygen between 11:45 a.m. and 3:27 p.m. is consistent
with the evidence presented about the effects of Oxytocin and
Cytotec, the drugs Dr. Roldán used to induce labor. Experts for
both parties testified that it is contraindicated to administer
Oxytocin and Cytotec simultaneously because, in the words of Dr.
Gorrín,
the synergistic effect of one drug, which acts to produce
uterine contractions on top of another, which also acts
to produce uterine contractions, will cause something
like adding two plus two and getting five instead of
four. . . One thing works with the other, and the lump
effect is a lot more than just the sum of each one.
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The experts also testified that contractions that are too intense
or too frequent can deprive the fetus of oxygen and lead to a
depressed heart rate. Shockingly, Dr. Roldán administered both
Oxytocin and Cytotec simultaneously, and he administered four times
the appropriate dose of Cytotec.
According to Marcano's testimony, the intense
contractions began almost immediately after Dr. Roldán administered
the drugs at 11:45 a.m., and continued until at least 2:45 p.m.,
when her husband summoned Dr. Roldán to return to the room. That
timing is consistent with Dr. Gorrín's testimony that Oxytocin
would exert its effect within ten minutes of being administered and
that Cytotec, if placed in the vagina as it was here, would also
exert its effect in a short while. That timing is also consistent
with ACOG’s recommendation that doctors wait four hours between
administering Oxytocin and Cytotec; the waiting period suggests
that either drug exerts its strongest effects in the hours
immediately after it is administered. A reasonable jury could
therefore have concluded that Marcano suffered the most intense and
frequent contractions beginning shortly after 11:45 a.m., that the
missing tracing would reveal that Fabiola was deprived of oxygen
during this period, and that negligent monitoring between 11:45
a.m. and Dr. Roldán's return at 2:45 p.m. caused or contributed to
Fabiola's injuries. Although HIMA's experts testified that the
damage occurred later, such contradictory expert testimony "does
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nothing to vitiate the sufficiency of the plaintiff’s proof."
Muñiz v. Rovira, 373 F.3d 1, 5 (1st Cir. 2004).
The plaintiffs introduced sufficient evidence to support
a finding that negligent monitoring on the part of HIMA caused
Fabiola's injuries. The district court therefore did not err in
denying HIMA’s Rule 50 motion for judgment as a matter of law.
B. Admission of Expert Testimony
The plaintiffs offered testimony at trial by life-care
planner Frank Woodrich regarding the projected cost of Fabiola's
future care. HIMA objected to Woodrich's testimony, both through
a motion in limine and at trial, arguing that Woodrich's
methodology, the foundation for his testimony, was not reliable.
The court denied the motion in limine without explanation. In
response to the renewed objection at the outset of Woodrich's
testimony, the court allowed HIMA to conduct a brief voir dire of
Woodrich. After a series of questions focusing on Woodrich's
failure to have a physician review his projections regarding
Fabiola's future medical needs, HIMA moved again to strike Woodrich
as an expert. The district court overruled the motion, commenting
that "what you're doing is going to the weight, not to the
expertise." HIMA argues that the district court’s ruling was
erroneous.
The admission of expert testimony is governed by Federal
Rule of Evidence 702, which requires that "(1) the testimony is
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based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the
case." Rule 702 "imposes a gate-keeping function on the trial
judge to ensure that an expert's testimony 'both rests on a
reliable foundation and is relevant to the task at hand.'" United
States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (quoting Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). We review
the district court's decision to admit expert testimony for abuse
of discretion. Id.
The district court considered Woodrich's professional
credentials and ascertained that he had been admitted as an expert
on rehabilitation and life-care planning in numerous state and
federal courts before accepting him as an expert in this case.
Woodrich also testified that his proposed care plan for Fabiola was
based on a review of records from the agency providing her with
skilled nursing care, a letter from her physician, and an interview
of Fabiola's family and caregiver. Although Woodrich's report
might have benefitted from a physician's review of the projections
regarding Fabiola's future needs, the court did not abuse its
discretion in determining that Woodrich's methodology was
sufficiently reliable for admissibility.
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C. Motion for a New Trial or Remittitur
Finally, HIMA claims that the district court erred in
denying its motion for new trial or remittitur under Federal Rule
of Civil Procedure 59. "A district court should only grant such
motions if the outcome is against the clear weight of the evidence
such that upholding the verdict will result in a miscarriage of
justice." Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 375
(1st Cir. 2004) (internal quotation marks omitted). Our review is
for an abuse of discretion. Id.
1. Apportionment of Liability
HIMA contends that even if its negligent monitoring
played a role in Fabiola’s injuries, its negligence was far
outweighed by Dr. Roldán’s negligence in inducing and handling the
labor. As such, HIMA maintains, there was insufficient evidence to
support a jury finding that it was liable for 47% of the damage and
it is entitled to a new trial on apportionment of liability. The
district court rejected this argument, ruling that "the plaintiff's
expert witness and several documents admitted into evidence"
supported a finding that HIMA's negligence caused 47% of the
plaintiffs' damages. We agree.
In a repeat of their argument that there was insufficient
evidence that the hospital caused or contributed to Fabiola's
injuries, HIMA argues that without the missing tracing, any
evidence that Fabiola was deprived of oxygen while the nurse was
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responsible for monitoring in Dr. Roldán's absence (i.e., between
11:45 a.m. and 2:45 p.m.) is impermissible speculation. That
reasoning would have the effect of punishing the plaintiffs for
HIMA's failure to produce the tracing, and we reject it again.
Although there is no way to know for certain what happened between
11:45 a.m. and 2:45 p.m. without the tracing, the circumstantial
evidence, together with Dr. Gorrín's expert testimony, would allow
a reasonable jury to find that Marcano's strong contractions
between 11:45 a.m. and 2:45 p.m. deprived Fabiola of oxygen and
that HIMA's negligent monitoring during that period deprived Dr.
Roldán of an opportunity to intervene before Fabiola suffered
permanent damage. While Dr. Roldán was unquestionably negligent as
well, the 47-53 apportionment of liability was not contrary to the
clear weight of the evidence.
2. Excessiveness
Under the Supreme Court's holding in Gasperini v. Center
for Humanities, Inc., 518 U.S. 415 (1996), federal courts sitting
in diversity must apply state substantive law standards in
reviewing jury awards if the state law departs from the federal
standards for judging excessiveness. See id. at 431 ("Erie [R.R.
Co. v. Tompkins, 304 U.S. 64 (1938),] precludes a recovery in
federal court significantly larger than the recovery that would
have been tolerated in state court."). Emphasizing that the Puerto
Rico Supreme Court has reduced damages awards to victims of medical
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malpractice to conform to its own precedent, HIMA maintains that
the district court was obligated under Gasperini to reduce the
plaintiffs' award to conform with Puerto Rico precedent. The
district court rejected this argument in a post-verdict ruling.
We have previously rejected the argument that Gasperini
requires federal district courts to review damages awards for
consistency with awards approved by the Supreme Court of Puerto
Rico in similar cases. As we have explained, Gasperini would
control if state law departed from the ordinary practice of
reviewing awards under the federal standards for judging
excessiveness, but Puerto Rico law "suggests no such departure."
Grajales-Romero, 194 F.3d at 300 (internal quotation marks
omitted); see also Mejias Quiros v. Maxxam Prop. Corp., 108 F.3d
425, 427 n.1 (1st Cir. 1997) (same); cf. Stewart v. Tupperware
Corp., 356 F.3d 335, 339 (1st Cir. 2004) (applying Grajales-Romero
to the amount-in-controversy determination for purposes of
diversity jurisdiction).
Emphasizing that none of the cases in which we have
rejected Gasperini arguments involved medical malpractice claims,
HIMA asserts that Gasperini requires a remittitur of damages here
despite our extant case law. HIMA's argument is based primarily
on Nieves Cruz v. Universidad de Puerto Rico, 151 P.R. Dec. 150
(2000), a case in which the Puerto Rico Supreme Court remitted a
$3.9 million award to a minor plaintiff who, like Fabiola, suffered
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from severe hypoxia during childbirth. In reducing the original
judgment by approximately 50%, the Puerto Rico Supreme Court
explained that it was "[f]ollowing the parameters of . . .
precedent." Id. (certified translation). The precedent on which
the Nieves court relied was Riley v. Rodríguez de Pacheco, 119 P.R.
Dec. 762 (1987), in which the court reduced a damages award in a
medical malpractice case because "[w]ithout certain reasonable
limits, the compensation would cease to have the characteristic of
compensation [and would] become punitive" (quoted in Nieves, 151
P.R. Dec. 150 (certified translation)). HIMA contends that Nieves
reflects a Puerto Rico standard for reviewing damages awards in
medical malpractice cases that differs from the federal standard of
reviewing to determine whether an award is "grossly excessive," and
that Gasperini requires us to adopt the Puerto Rico standard in
this case.
We view this issue as a close one. As HIMA emphasizes,
the Puerto Rico Supreme Court has remitted a damages award in at
least two medical malpractice cases to conform with the Riley
precedent. See Nieves, 151 P.R. Dec. 150; Blás Toledo v. Hospital
Nuestra Señora de la Guadalupe, 146 P.R. Dec. 267 (1998). On the
other hand, the Supreme Court of Puerto Rico has indicated that it
"will not intervene in the decision on the estimation of damages
issued by the lower courts, unless the amounts granted are
ridiculously low or exaggeratedly high." Nieves, 151 P.R. Dec. 150
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(certified translation). Puerto Rico's "exaggeratedly high"
standard echoes the federal "grossly excessive" standard. That
consonance distinguishes this case from Gasperini, which involved
a New York law that empowered state courts to reduce any damages
award that "deviates materially from what would be reasonable
compensation." 518 U.S. at 418. The Supreme Court emphasized that
New York's "deviates materially" rule entailed "[m]ore rigorous
comparative evaluations" than the federal standard and that it had
a "manifestly substantive" objective. Id. at 429. Unlike New
York's "deviates materially" standard, the Puerto Rico Supreme
Court's standard has been expressed in terms similar to the federal
standard.
In the end, therefore, we are unable to conclude that the
remittiturs in Blás-Toledo and Nieves mean that the Puerto Rico
Supreme Court has adopted a more rigorous standard of review for
medical malpractice damages that is tantamount to a substantive
rule of law that must be applied in diversity cases. That is, we
cannot say, on the basis of the available precedents, that Puerto
Rico case law suggests a "departure from [the] ordinary practice of
reviewing awards under the federal standards for judging
excessiveness." Grajales-Romero, 194 F.3d at 300 (internal
quotation marks omitted) (alteration in original). In the absence
of such a departure, Gasperini controls. See id.
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Therefore, the district court did not abuse its
discretion in rejecting HIMA's claim that the damages awarded to
the plaintiffs were excessive. "[A] party seeking remittitur bears
a heavy burden of showing that an award 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."
Currier v. United Techs. Corp., 393 F.3d 246, 256 (1st Cir. 2004)
(internal quotation marks omitted). As the district court
recognized, the plaintiffs presented ample evidence of the severe
physical and emotional toll that Fabiola's permanent injuries have
inflicted, and will continue to inflict, on both her and her
family. Woodrich testified that Fabiola's life-care plan alone had
a cost of approximately $1.9 million. The plaintiffs also
presented evidence that Fabiola's loss of potential income was
approximately $350,000, and that Fabiola and her parents suffered
severe pain and anguish as a result of her injuries. In light of
this evidence, the jury awarded $4 million to Fabiola, $1 million
to her mother, and $500,000 to her father.4 Moreover, HIMA
4
In summarizing the evidence supporting the $5.5 million
damages award, the court emphasized that
[b]aby Fabiola, who was only three years old at the time
of trial, has a long life expectancy. In fact, Dr.
Woodrich, an expert in rehabilitation counseling and life
care planning, prepared a life care plan for Fabiola
which was submitted to the jury . . . . There was also
testimony from Carlos Rodríguez, an economist, relative
to Fabiola's loss of potential income. The jury also
heard testimony regarding baby Fabiola's grim prognosis;
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conceded at trial that it had "presented no evidence to offset
Fabiola's and her family's damages. We agree that she has suffered
serious damages, both the baby and the family. Our sole issues
with the damages is not to negate [their] existence, but to make
clear that it was Dr. Pedro Roldán, and not HIMA, [who was] the
responsible party." In light of this concession, together with the
evidence offered at trial, an award of $5.5 million (of which HIMA
will pay $2.585 million) does not shock the conscience. See Muñiz,
373 F.3d at 6 (upholding a medical malpractice award of $2 million
to a minor who suffered nerve damage to his arm and shoulder at
birth).
Affirmed.
the fact that she has no chance for a normal development,
the fact that she will require a care giver for the rest
of her life; and the physical pain and anguish that she
endures as a result of her daily physical therapy
sessions. The jury also heard testimony of Haydée
Costas, an expert in psychiatry, who diagnosed Maria
Yolanda Marcano as suffering from a major depression.
The record in this case is replete with evidence of the
pain endured and yet to be endured by both Fabiola and
her parents, as a result of the injuries that she
sustained at childbirth.
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