Unpublished Disposition, 914 F.2d 263 (9th Cir. 1988)

No. 88-6261.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and NELSON, Circuit Judges, and CARROLL, District Judge^* .

MEMORANDUM^** 

This is an appeal by the United States of pain and suffering and loss of consortium damage awards under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. Plaintiff-Appellees in their cross-appeal claim that the district court erred in its interpretation under California law of the effect of a spouse's comparative negligence on the other spouse's claim for loss of consortium.

BACKGROUND

Plaintiff-appellee Gary Spitzke sustained a severe injury in an accident on February 8, 1984. The accident occurred while Mr. Spitzke, a truck driver for Contractors Cargo Company ("CCC"), was helping National Aeronautics and Space Administration ("NASA") employees load a cargo lift trailer onto a truck at the NASA Ames Research Center near San Jose, California.

Gary Spitzke and his wife Susan brought this personal injury action against the United States under the FTCA seeking damages for Mr. Spitzke's personal injuries and Mrs. Spitzke's loss of consortium. State Compensation Insurance Fund ("State Fund"), the workers' compensation insurance carrier for and subrogee of CCC, intervened in the action, seeking indemnity for workers' compensation benefits paid by State Fund on behalf of Mr. Spitzke.

The district court tried the action in two stages. After the liability trial, the court concluded that NASA employees' negligence contributed 75 percent and Mr. Spitzke's negligence contributed 25 percent to his injury. The court further found that CCC did not cause or contribute to Mr. Spitzke's injuries. The parties are not appealing the district court's liability findings and conclusions.

The district court found, after a damages trial, that at the time of the accident Mr. Spitzke was 53 years old, in excellent health, and had a life expectancy of approximately 22.7 years with a work life expectancy of approximately 12 years. The court found that, as a result of the accident, he suffered "a severe, permanent and disabling brain injury, resulting in quadriplegia, aphasia and severe brain damage," and that "He is in a persistent vegetative state with incontinent bladder and bowel," permanently disabled, incapable of gainful employment, unable to care for himself, and requires 24-hour attendant care. The court found that Mr. Spitzke had incurred or would incur $495,461 in damages for lost earnings, $1,712,313.83 in damages for medical and related expenses, and $2,500,000 in damages for pain and suffering. The court reduced Mr. Spitzke's compensatory award to account for his 25 percent comparative negligence and the $442,091.83 awarded to State Fund for the medical and disability payments made by it on Mr. Spitzke's behalf, and awarded him $3,199,263 in damages.

The court further found that Mrs. Spitzke, who was 55 years old, in excellent health, had a life expectancy of 26.5 years at the time of the accident and had suffered and would continue to suffer damages for loss of consortium in the amount of $750,000. The court reduced her damages by the 25 percent comparative negligence attributed to Mr. Spitzke, and awarded her $562,500 in damages.

THe United States did not present any evidence at the damage trial.

The United States appeals the $2,500,000 pain and suffering award and the $750,000 loss of consortium award as excessive. On cross-appeal, the Spitzkes challenge the district court's reduction of Mrs. Spitzke's loss of consortium damages by the percentage of comparative negligence attributable to her husband. The parties are not appealing the district court's lost earnings and medical expenses determinations.

The parties have not designated any portion of the Reporter's Transcript of the damages trial. Therefore, the scant record on appeal is the district court's Findings of Fact and Conclusions of Law filed April 21, 1988.

ISSUES

1. Was the district court's award of $2,500,000 pain and suffering damages for Gary Spitzke excessive?

2. Was the district court's award of $750,000 loss of consortium damages for Susan Spitzke excessive?

3. Did the district court err in reducing Mrs. Spitzke's loss of consortium damage award by 25 percent to account for her husband's comparative negligence.

JURISDICTION

The district court had jurisdiction over this FTCA case pursuant to 28 U.S.C. § 1346(b). This court has jurisdiction over this appeal under 28 U.S.C. § 1291, the United States having timely appealed from the district court's final judgment and Gary and Susan Spitzke timely cross-appealed thereafter. Fed. R. App. P. 4(a).

STANDARD OF REVIEW

We review factual determinations in FTCA cases, including damages, under the clearly erroneous standard. Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984); Felder v. United States, 543 F.2d 657, 664 (9th Cir. 1976) An award is clearly erroneous if, after a review of the record, the reviewing court is "left with the definite and firm conviction that a mistake has been committed." Shaw, 741 F.2d at 1205 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948)).

We review questions of law de novo. See Taylor v. United States, 821 F.2d 1428, 1430 (9th Cir. 1987) (whether California statute limiting non-economic damages recoverable against health care provider applies in FTCA case is a question of law reviewable de novo), cert. denied, 108 S. Ct. 1300, 99 L. Ed. 2d 510 (1988); Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984) (en banc) (interpretation of state law is reviewed de novo) ; San Francisco Bar Pilots v. Vessel Peacock, 733 F.2d 680, 681 (9th Cir. 1984) (attack on the basis of an award, rather than a challenge to the amount of the award, is a question of law subject to de novo review).

DISCUSSION

The elements and amount of compensatory damages recoverable in FTCA cases are governed by the law of the state where the tort occurred, in this case California. Shaw, 741 F.2d at 1205; Felder, 543 F.2d at 665; see 28 U.S.C. §§ 1346(b), 2674. California law entitles a negligently injured person to pain and suffering damages, in order to compensate for any pain, discomfort, fears, anxiety and other mental and emotional distress, as well as the loss of the capacity to enjoy life and share in its amenities. Capelouto v. Kaiser Found. Hosps., 7 Cal. 3d 889, 892-93, 500 P.2d 880, 103 Cal. Rptr. 856, 859 (1972) (en banc); Huff v. Tracy, 57 Cal. App. 3d 939, 943-44, 129 Cal. Rptr. 551, 553 (1976). There is no fixed standard for determining pain and suffering damages under California law; rather, the trier of fact is required to determine the amount of damages that are just and reasonable in light of the evidence. The detriment resulting from pain and suffering is difficult to translate into monetary loss, but it is a genuine one that must be compensated in order to avoid having the damage award found inadequate as a matter of law. Capelouto, 7 Cal. 3d at 893, 500 P.2d 880, 103 Cal. Rptr. at 859.

Under California law, the spouse of a negligently injured person may recover damages for loss of consortium, including such elements as security, comfort, affection and companionship, as may be established by the evidence. Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 409 n. 31, 525 P.2d 669, 687 n. 31 (1974). If the loss of consortium results in physical illness or consequences to the spouse suffering the loss, such illness or other consequences also may be an element of damage. United Services Auto. Ass'n v. Warner, 64 Cal. App. 3d 957, 964-65, 135 Cal. Rptr. 34, 38 (1976).

The district court found that Mr. Spitzke sustained pain and suffering and awarded damages in the amount of $2,500,000, and that Mrs. Spitzke had suffered a loss of consortium of $150,000 to date (February, 1984-April, 1989) and would "incur a future loss of consortium reduced to a present value in the amount of Six Hundred Thousand Dollars." The United States contends that these awards are excessive and should be reduced.

We look to the relevant state's case law on excessive damages in order to determine whether a given award is excessive. McCarthy v. United States, 870 F.2d 1499, 1500 (9th Cir. 1989); Trevino v. United States, 804 F.2d 1512, 1515 (9th Cir. 1986), cert. denied, 108 S. Ct. 70, 98 L. Ed. 2d 34 (1987); Shaw, 741 F.2d at 1208. Under California law, an award is considered excessive if it is "excessive as a matter of law," or the amount awarded "is so grossly disproportionate to the harm suffered as to raise the presumption that it resulted from passion or prejudice," Hasson v. Ford Motor Co., 32 Cal. 3d 388, 419, 650 P.2d 1171, 185 Cal. Rptr. 654, 673 (1982), cert. dismissed, 459 U.S. 1190, 103 S. Ct. 1167, 75 L. Ed. 2d 422 (1983). In addition, the award is excessive if it "is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion or prejudice." Seffert v. Los Angeles Transit Lines, 56 Cal. 2d 498, 364 P.2d 337, 15 Cal. Rptr. 161, 167 (1961) (en banc).

Because both pain and suffering, and loss of consortium awards are to be determined based on the evidence presented at trial, each case must stand on its own facts. See Shaw, 741 F.2d at 1209. However, in similar cases involving similar losses, courts should maintain some degree of uniformity. Id. To accomplish this objective, we compare the challenged award to awards in similar cases in the same jurisdiction. McCarthy, 870 F.2d at 1500; Trevino, 804 F.2d at 1515; Shaw, 741 F.2d at 1208.

California courts criticize the practice of measuring the validity of an award by mechanically comparing average awards for particular injuries to awards in other cases. See 6 B.E. Witkin, Summary of California Law Sec. 1478(b) (9th ed. 1988). Such a comparison by the reviewing court seriously invades the realm of the factfinder when it upsets a jury's award based on comparisons to other cases, Bertero v. National Gen. Corp., 13 Cal. 3d 43, 65 n. 12, 529 P.2d 608, 118 Cal. Rptr. 184, 200 n. 12 (1974); Fortman v. Hemco, Inc., 211 Cal. App. 3d 241, 259 Cal. Rptr. 311, 323 (1989); Rodriguez v. McDonnell Douglas Corp., 87 Cal. App. 3d 626, 655, 151 Cal. Rptr. 399, 415 (1979).

This court has followed a practice of comparing the challenged award in a FTCA case to similar awards within the relevant state in order to maintain some measure of uniformity among awards. McCarthy, 870 F.2d at 1500-01; Colleen v. United States, 843 F.2d 329, 332-33 (9th Cir. 1988); Trevino, 804 F.2d at 1515-16; Shaw, 741 F.2d at 1209. This type of comparison also aids us in determining whether a state court would find the particular award excessive. In addition, such comparisons are appropriate because this court's review of the trial judge's damage award is not as constrained as the appellate review of a jury verdict. See Shaw, 741 F.2d at 1205 (review of trial judge's factual determinations is "not restrained by the statutory and constitutional limitations applicable to our review of a jury's verdict"). Accordingly, we review the facts of this case in light of similar California cases to determine whether the district court's pain and suffering and loss of consortium awards are excessive under California law.

A. THE PAIN AND SUFFERING AWARD TO GARY SPITZKE

The Government urges us to rely heavily on the Shaw case, as a comparison case in deciding whether Gary Spitzke's pain and suffering damages of $2,500,000 are excessive. In that case, we applied Washington law. The Government argues that the Shaw case is a proper comparison case because both Washington and California apply the "passion and prejudice" test to determine whether damages are excessive. This argument is not persuasive. Because the law of the state where the tort occurred controls the measure of damages to be awarded, the comparison cases must be those that show the amounts of damages awarded in similar cases in that state.

In Hasson v. Ford Motor Co., 32 Cal. 3d 388, 419, 650 P.2d 1171, 185 Cal. Rptr. 654, 673 (1982), cert. dismissed, 459 U.S. 1190, 103 S. Ct. 1167, 75 L. Ed. 2d 422 (1983), the California Supreme Court held that a compensatory damage award of $5,850,000 to a 19 year old college freshman, who suffered a severely fractured skull, extensive brain damage, profound psychological problems and total, permanent physical disability in an automobile accident was not excessive. A jury had awarded plaintiff $7,500,000 in compensatory damages and $4,000,000 in punitive damages. The trial court found the compensatory damage award to be excessive and remitted $1,650,000 of that amount. Plaintiff's expert had projected special damages totalling $3,619,000 for lost earnings, medical expenses, and attendant care, but the amount actually awarded for each component of damages was not reported. Although noting that the claims for future economic damages might have been somewhat exaggerated, the court ruled that the trial court's remittitur brought "the total amount of damages within reasonable limits and rendered it non-excessive." Id. at 419, 650 P.2d 1171, 185 Cal. Rptr. at 673-74. In Fortman v. Hemco, Inc., 211 Cal. App. 3d 241, 259 Cal. Rptr. 311, 323 (1989), the court ruled that an award of $17,742,620 for economic losses and $6 million for non-economic losses to a 3 year old child, who was in a coma for four months and suffered loss of bowel and bladder function, scoliosis, seizures, perceptual problems, and significant brain and spinal cord injury, rendering her a paraplegic and unable to obtain more than the intellectual level of a 5 year old, was not excessive.

In Bigboy v. County of San Diego, 154 Cal. App. 3d 397, 201 Cal. Rptr. 226 (1984), the court refused to reduce a verdict of $2,500,000 for medical expenses, lost earnings, and pain and suffering awarded to an active 17 year old boy, who was rendered a paraplegic in an automobile accident, and reversed the trial court's order for a new trial or remittitur of $500,000. The court noted that plaintiff had sustained a broken back and loss of sensory and motor functioning below his rib cage, would suffer phantom pain, muscles spasms, and sterility for the rest of his life, was unemployable and in extreme pain, and would require $1,770,000 to provide minimum home care and medical expenses, not including psychological care costs.

In Rodriguez v. McDonnell Douglas Corp., 87 Cal. App. 3d 626, 151 Cal. Rptr. 399 (1979), the court held that an award of $4,235,996, which the trial court had reduced to a net judgment of $4,113,122.25 by deducting $122,873.75 for workers' compensation benefits paid, was reasonable. Prior to the accident Mr. Rodriguez had been a happy, healthy 22 year old man engaged in an active life with his friends, family and wife of sixteen months. As a result of the accident, Mr. Rodriguez suffered severe brain injury, a fractured spine with irreparable damage to his spinal cord, paralysis from the middle of the chest down, significant impairment of his left arm, loss of all bladder, bowel and sexual function, and complications therefrom, and was rendered a triplegic. Mr. Rodriguez's mind gradually became clear. The decision does not specify how the award was allocated between economic damages and damages for pain and suffering. The Spitzkes attempt to estimate what the pain and suffering damages would have been based on the economic damages discussed in Rodriguez. Their efforts are unavailing, however, because the Rodriguez case does not discuss the cost of Mr. Rodriguez's past and future medical expenses, over and above the cost of his 24-hour-a-day at home attendant care, and, given that Mr. Rodriguez had been hospitalized fourteen times from the date of the accident to the time of trial, id. at 654, 151 Cal. Rptr. at 414, his past and future medical expenses likely were a substantial portion of the award.

In Niles v. City of San Rafael, 42 Cal. App. 3d 230, 116 Cal. Rptr. 733 (1974), the court ruled that an award of $4,025,000 to an 11 year old boy rendered a quadriplegic and mute as a result of head injuries was not excessive. Although plaintiff's mental capacities were unaffected by the accident and he could hear and see well, communicate by eye movements, and respond to special education, he had remained in a coma for 46 days, and thereafter was paralyzed from the neck down and mute. While the verdict did not specifically allocate economic and non-economic damages, the court noted that there was evidence that $1,604,371 was awarded for pain and suffering and $2,420,629 for economic loss. The court concluded that the award for pain and suffering was not excessive given that the plaintiff would suffer dire grief and anxiety due to his mental and emotional capacities being intact while his body was useless.

As the United States points out, Mr. Spitzke is substantially older than any of the plaintiffs in the comparison cases, and, thus, can be expected to endure pain and suffering for a shorter period of time. On the other hand, his injuries are arguably more severe than those described in the comparison cases. It is reasonable to infer from the district court's finding that Mr. Spitzke is in a persistent vegetative state, that he has no ability to enjoy life, unlike the plaintiffs in the comparison cases who had recovered some or all of their mental capabilities.

Considering the facts of this case within the general framework established by these comparison cases, this court concludes that the size of Gary Spitzke's pain and suffering award is not excessive under California law. Although Spitzke is substantially older than any of the plaintiffs in the comparison cases, and, thus, can be expected to endure pain and suffering for a shorter period of time, his injuries are more severe. The district court's finding that Mr. Spitzke is in a persistent vegetative state confirms that he has no ability to enjoy life.

Given that the injuries are not identical in any of the cases discussed, the United States' contention that we can determine an appropriate pain and suffering award by multiplying awards in other cases by the ratio of the current plaintiff's life expectancy over the comparison case's plaintiff's life expectancy is overly simplistic and violates the rule that each case must stand on its own facts. Substantial awards have been held not to be excessive by California courts in the past, and damage awards have risen dramatically in the last few years. Accordingly, based upon a review of the record, under the constraint of California law, this court concludes that Gary Spitzke's pain and suffering award is not so grossly disproportionate to the harm suffered that it raises the presumption that it resulted from passion or prejudice or shocks this court's conscience.

THE LOSS OF CONSORTIUM AWARD TO SUSAN SPITZKE

The district court found that Susan Spitzke had suffered a loss of consortium in the amount of $150,000 in the past and would suffer a future loss of consortium "reduced to present value" in the amount of $600,000. The United States contends that these awards are excessive.

Mrs. Spitzke sought damages for her own physical and emotional injuries and past and future medical care resulting from her loss of consortium, as well as for the nonpecuniary components of consortium. The district court did not make a finding that any part of Mrs. Spitzke's award was for her pecuniary losses. The record presented to this court is meager at best and accordingly the award to Mrs. Spitzke must be viewed as one for non-pecuniary loss of consortium.

Relying on Rodriguez v. McDonnell Douglas Corp., Id., in which the court found an award of $500,000 for loss of consortium to the wife of the 22 year old plaintiff reasonable, the United States argues that the award of $750,000 to Mrs. Spitzke is excessive, because her period of loss will be much shorter than that of Mrs. Rodriguez. While it is true that Mr. Spitzke's life expectancy is much shorter than Mr. Rodriguez's life expectancy, Mrs. Rodriguez will be able to enjoy her husband's consortium to a greater extent than Mrs. Spitzke will be able to do. Mr. Rodriguez's mind cleared; whereas, Mr. Spitzke is in a persistent vegetative state. In addition, factors such as the couples previous relationship and likelihood of the non-injured spouse's remarriage, weigh in favor of higher awards for loss of consortium in more longstanding relationships. Based upon the limited record before this court, under the constraint of California law, the award of $750,000 to Susan Spitzke for loss of consortium is not so grossly disproportionate to the harm suffered, that it raises the presumption that it resulted from passion or prejudice or would shock a court's conscience.

We, however, perceive a different problem not addressed by the parties in light of Finding No. 28 (ER 19) of the trial court that reads:

28. As a result of the subject incident plaintiff Susan Spitzke will incur a future loss of consortium reduced to a present value in the amount of Six Hundred Thousand Dollars ($600,000). (Emphasis supplied).

The judge failed to determine the actual amount of the future loss of consortium award, before reducing that award to a present value of $600,000. The consortium award should be remanded for further findings with respect to amount and the discount factors involved unless the parties stipulate to the $750,000 figure awarded.

Under California law, a loss of consortium award is not subject to reduction by the other spouse's proportion of negligence. Lantis v. Condon, 95 Cal. App. 3d 152, 157 Cal. Rptr. 22 (1979). Accordingly, the district court erred when it reduced Mrs. Spitzke's loss of consortium damages by the 25 percent comparative negligence attributable to Mr. Spitzke.

The United States is entitled to indemnity from Mr. Spitzke for 25 percent of the loss of consortium award to his wife. See E.L. White, Inc. v. City of Huntington Beach, 21 Cal. 3d 497, 506, 579 P.2d 505, 146 Cal. Rptr. 614, 619 (1978); Klemme v. Hoag Memorial Hosp. Presbyterian, 103 Cal. App. 3d 640, 644-45, 163 Cal. Rptr. 109, 111 (1980); Lantis, 95 Cal. App. 3d at 159, 157 Cal. Rptr. at 26. In the interests of judicial economy, the parties urge us to affect the United States' indemnity automatically by deducting 25 percent of Mrs. Spitzke's loss of consortium award from Mr. Spitzke's award. It is appropriate that we do so, in order that final resolution of this matter is not further delayed

CONCLUSION

We affirm the district court's award of $2,500,000 for pain and suffering to Gary Spitzke.

We remand the district court's award of $750,000 for loss of consortium to Susan Spitzke for further findings and determination of amount unless the parties stipulate to the $750,000 figure.

We reverse the district court's reduction of Susan Spitzke's loss of consortium award by her husband's percentage of negligence, and remand the matter to the district court to award Susan Spitzke the full amount of the loss of consortium award, and reduce Gary Spitzke's award for loss of earnings by 25 percent of his wife's award for loss of consortium.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

CARROLL, District Judge dissenting.

I respectively dissent. I believe that both of these awards are excessive when compared with awards in "similar" California cases and accordingly shock my judicial conscience. I note particularly that $500,000 is the largest reported award for loss of consortium in California, Rodriguez v. McDonnell Douglas Corp., 151 Cal. Rptr. 399, and that in a most perfunctory manner.

I do not find support for the award of the loss of consortium award of $750,000 when looking at decisions from other jurisdictions. See generally, 61 A.L.R. 314, 330, "Damages, Spouse Death or Injury."

The actual loss of consortium award (unknown discount factor and length of discount period) is actually well in excess of $750,000. I concur with the majority's conclusion that the case must be remanded for further findings with respect to the discount factors involved.