Unpublished Disposition, 931 F.2d 59 (9th Cir. 1991)

MEMORANDUM^* 

The district court's finding of negligence is not clearly erroneous. The court determined plaintiffs' expert witness was more credible than defendant's experts. Because plaintiffs' expert's testimony was "a coherent and facially plausible story" consistent with the evidence, we will not disturb the finding on appeal. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

The district court did not clearly err in specifically reducing the amounts requested for the handicapped-equipped van, the special adaptive toys, and the physical therapy. However, the court clearly erred in reducing to $56 the amount requested for leg surgeries that the court also found would "probably be required." The district judge was not bound to accept the plaintiffs' uncontroverted evidence about the costs of this surgery. See d'Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 897 (9th Cir. 1977) (factfinder not bound by uncontradicted opinion evidence). Yet the large and unexplained disparity between this evidence and the amount awarded leaves us with a " 'definite and firm conviction that a mistake has been committed.' " Anderson, 470 U.S. at 573 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). We therefore award plaintiffs their requested amount of $4,956 for the surgeries. See Felder v. United States, 543 F.2d 657, 671 (9th Cir. 1976) (court of appeals may adjust damage award when remand would waste judicial resources).

The court clearly erred in generally reducing the cost-of-care award by $350,495 after making specific reductions. The general reduction far exceeded the amount of the cost-of-care request that had not been specifically reduced. It had the effect of subjecting some cost-of-care components to unexplained double reductions.

The court's generalized statement that "some costs were either duplicative, excessive, speculative, or did not necessarily arise from [plaintiff's] injuries" can support only one set of reductions. The double reduction effect, the lack of an independent explanation for the general reduction and its role in paring the total cost-of-care request by exactly 25% indicate to us that the general reduction was clearly erroneous.

We are unable to determine whether the district court clearly erred in reducing its award of $1,000,000 in general damages to $500,000 pursuant to Colorado Revised Statute section 13-21-102.5(3) (a). The statutory cap applies only to damages awarded for noneconomic loss, defined to include pain and suffering, inconvenience, emotional stress, and impairment of quality of life; damages for physical impairment and disfigurement are specifically excluded from the statute. See Garcia v. United States, 697 F. Supp. 1570, 1576 n. 2 (D. Colo. 1988). Because the district court found Marie Christopher suffered both kinds of damage but failed to apportion the $1,000,000 award between the two, we cannot determine whether the court applied the statutory cap correctly. We therefore remand the award of general damages for the limited purpose of apportionment of the $1,000,000 award between the two types and application of the Colorado statute in accordance with this disposition. In the interest of justice, we ask the district court to expedite proceedings so plaintiffs may obtain the judgment to which they are entitled without further delay. We retain jurisdiction of this appeal to resolve any disputes resulting from the district court's actions on remand.

Plaintiffs' request to strike the portions of Williams' Obstetrics and an ACOG medical bulletin included in the appendix to the government's response brief is granted since the materials were not introduced at trial. See Fed.R.App.Proc. 10(a).

The district court's finding of liability is AFFIRMED. The specific reduction of $4,900 for muscle contracture surgeries and the general reduction of $350,495 are VACATED. The cost-of-care award is increased to a total of $2,689,382.¹  The tax-on-interest award is increased to a total of $2,249,762.²  The award of general damages is VACATED and REMANDED for apportionment of the $1,000,000 award between losses for physical impairment and disfigurement and losses for pain and suffering, inconvenience, emotional stress, and impairment of quality of life. Costs of this appeal are assessed against the government.