This is an obstetrical malpractice case. A caesarean section was delayed for several hours due to the negligence of both the treating physicians and the nurses, as result of which the baby sustained significant hypoxic brain damage during labor and was born with cerebral palsy. The plaintiff mother, suing on behalf of her child, settled with the physicians and proceeded to trial against the hospital that employed the nurses. Rodriguez-Valentin v. Doctors’ Center Hospital, No. 20-2093 (1st Cir. 2/24/22), http://media.ca1.uscourts.gov/pdf.opinions/20-2093P-01A.pdf. (For convenience, hereafter the word “plaintiff” means the child, even though technically his mother was the plaintiff.)
The defendant hospital filed a motion in limine, asking that the plaintiff’s life care planner be prohibited from opining on the plaintiff’s life expectancy (motion granted – she lacked the requisite expertise) and that her testimony be limited to one year of expenses (motion denied). She testified that the cost of adaptive equipment, doctor visits, testing, physical therapy, etc. would be $278,000 per year until age 18 and $379,200 per year thereafter.
Neither the plaintiff nor the defendant presented expert testimony on the plaintiff’s life expectancy. Nevertheless, that issue was unavoidably before the jury when it considered the issue of future damages. Amazingly, and crucially,
[the defendant] did not seek either a ruling from the judge that life expectancy must be proved by expert testimony or a suitable modification to the court's jury instruction on damages. Nor did [the defendant] request a special verdict form on [the plaintiff’s] life expectancy. In the end, [the defendant] permitted the case to go to the jury without making any argument about how the lack of expert testimony on life expectancy should impact the jury’s calculation of [the plaintiff’s] future life care costs.
The trial court instructed the jury that it could award damages the plaintiff was “reasonably likely to suffer in the future.” In determining such an award, the court instructed the jury to be “guided by common sense,” to avoid “arbitrary guesswork,” to use “sound discretion,” and to “draw reasonable inferences [from the] facts and circumstances in evidence.” The jury awarded $12,996,000 in future life care costs and $1,300,000 for pain and suffering. It apportioned 92 percent of that liability to the treating physicians (who had settled) and the remaining 8 percent, amounting to $1,143,680, to the defendant hospital.
Post-verdict, the defense moved for a new trial on damages or a remittitur, “arguing that the jury’s award for future life care costs was speculative because [the plaintiff] failed to submit expert testimony about [the plaintiff’s] life expectancy.” The district court denied the motion, for reasons the First Circuit summarized as follows:
[First], the district court stated that the jury could have determined that [the plaintiff’s] life expectancy was 46 years by dividing the award for future care costs by the amount that [the life care planner] testified…would [be required] for care each year….[Second], the district court concluded that the jury…could issue an award for future costs without expert testimony on life expectancy because damages in a negligence action need not be shown with mathematical certainty. The court also stated that other jurisdictions permit a jury to infer life expectancy from testimony about the injured person's medical condition and pain and suffering. While acknowledging that “the far better practice would have been for both parties to present competent expert testimony of plaintiff's life expectancy,” the district court found that the jurors could make a reasonable estimate of…life expectancy based on their common sense, personal knowledge, and experience. [Emphasis added.]
On appeal, the defendant renewed its contention that “an award for future care costs is speculative unless the plaintiff submits expert testimony about his or her life expectancy,” and that, consequently, the district court abused its discretion in denying the motion for a new trial on damages or a remittitur. The First Circuit held that the denial was neither an abuse of discretion nor plain error. However, it devoted very little space to that issue, whereas it devoted a lot of space to explaining that the defendant had waived the “expert witness required” argument by failing to timely raise it in the court below. The First Circuit’s extended critique of the many ways in which the defendant failed to preserve that issue for appeal, though moderate in tone, is nothing short of devastating (possibly because the author of the opinion was a district court judge sitting by designation, i.e., an active trial judge):
Doctors’ Center [the defendant hospital] did not timely argue to the district court that the jury could consider [the plaintiff’s] future care costs only by reference to expert testimony. Similarly, Doctors’ Center did not timely argue that the jury had to make an estimate of [the plaintiff’s] life expectancy….Doctors’ Center’s life expectancy argument…was neither reflected in any of [its] proposed jury instructions nor posed as an objection. Likewise, Doctors’ Center did not ask for a special verdict form that would have required the jury to decide or agree upon [the plaintiff’s] life expectancy. Instead, Doctors’ Center first argued that expert testimony on life expectancy was required after the jury delivered an adverse verdict, in the context of a motion for a new trial or remittitur….Because the district court had, without objection, already instructed the jury on how to calculate damages for future life care costs, Doctors’ Center’s argument that the jury could not, as a matter of law, return a damages award for future life care costs without expert testimony on life expectancy came much too late. [Emphasis added.]
In other words, Doctors’ Center knew before the jury was instructed that no expert testimony had been presented on life expectancy and that none would be. Nonetheless, Doctors' Center neither moved for judgment as a matter of law on that ground nor offered a jury instruction asking the jury to estimate and agree on [the plaintiff’s] life expectancy or to calculate that figure in any particular way….
With no pertinent argument made by Doctors’ Center before the case was submitted to the jury, the district court's jury instructions are the law of the case….The failure to object to the instructions at the time, and in the manner, designated by Rule 51 is treated as a procedural default, with the result that the jury instructions, even if erroneous, become the law of that particular case. [Citations and internal quotation marks omitted.]
And finally, while re-emphasizing its (arguably unnecessary, due to the defendant’s procedural defaults) holding that the district court had neither abused its discretion nor committed plain error, the court took a moment to “agree with the district court that presenting expert testimony about life expectancy is the best practice in a medical malpractice case involving an uncommon and severe medical condition and a request for future costs….” (Emphasis added.)
When I first read this opinion, I couldn’t understand why the plaintiff’s attorney hadn’t engaged an expert to testify about life expectancy. Then I realized that he thought his life care planner would be able to do it; but that avenue was blocked when the court granted the defendant’s motion in limine on that point, and it was too late to engage a qualified expert. So he had to roll the dice with the jury, which (fortunately for the plaintiff) came up with a substantial award for future life care costs. You might say that the plaintiff’s attorney gambled and won. Much harder to understand is defense counsel’s failure to address the lack of expert testimony in closing argument and urge the jury to be conservative in estimating future damages because there was no evidence whatsoever concerning the plaintiff’s life expectancy. Instead, the defense banked on the post-verdict argument that expert testimony on life expectancy was required as a matter of law. That was another gamble – a losing one, because the trial court disagreed and the defense failed to preserve the argument for appeal.
So there are two takeaways from this case. First, if you have a case in which life expectancy is an issue, contact Vident Partners, and we will provide a qualified expert to address the specific issue at hand, given the age, occupation, medical condition, social circumstances, etc. of the person whose life expectancy is under consideration. And second, if you object to a jury instruction or to the court’s failure to give an instruction you requested, do it right (see Fed. R. Civ. P. 51).
