Anthony v. G.M.D. Airline Services, Inc., 93-1646

• Decision Date: 02 November 1993
• Docket Number: No. 93-1646,93-1646
• Parties: Dana ANTHONY, Plaintiff, Appellee, v. G.M.D. AIRLINE SERVICES, INC., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 490

17 F.3d 490

Dana ANTHONY, Plaintiff, Appellee, v. G.M.D. AIRLINE SERVICES, INC., Defendant, Appellant.

No. 93-1646.

United States Court of Appeals, First Circuit.

Heard Nov. 2, 1993.

Decided March 3, 1994.

Holly S. Harvey, with whom Kathleen M. O'Connor, Thornton, David, Murray, Richard & Davis, P.A., Juan Marina, Maria Emilia Pico and Bufete Rexach & Pico, were on brief for appellant.

Philip E. Roberts, with whom Harry A. Ezratty, was on brief for appellee.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

When confronted with the difficult task of determining how much in damages is too much, appellate courts inevitably hesitate to second-guess a jury's calculation of an appropriate amount. The facts of this case, however, compel us to overcome our usual reluctance. Plaintiff-appellee, Dana Anthony, was awarded $571,100 as compensation for an injury to his leg despite a dearth of evidence that the injury prevented Anthony from working as a cargo pilot or from engaging in any other activities he might otherwise enjoy. Even the most generous interpretation of the record cannot support the amount granted for Anthony's pain and suffering, which accounts for over 99% of the total award. We therefore set aside the verdict as excessive and remand for a remittitur of damages in an amount to be determined by the district court.

I. BACKGROUND

On November 7, 1991, Anthony was struck from behind by a pallet on a loaded forklift driven by an employee of the defendant-appellant, G.M.D. Airline Services, Inc. ("GMD"). The pallet hit Anthony in the calf of his left leg and then pushed him forward, on both feet, for a short distance. Anthony suffered an abrasion on his left calf from the accident. Nurses at an airport first aid facility bandaged the wound and treated it with hydrogen peroxide, antibiotic ointment, and an ice pack. Anthony then went to a hospital where doctors took X-rays of Anthony's leg and determined that it was not fractured.

After the accident, Anthony returned home to Florida and briefly took himself off flight duty. He resumed his regular flight schedule one week later on November 15, 1991. Anthony then continued flying for nearly five months until the cargo company he worked for ceased all operations in April of 1992. With the exception of one brief trip in October of that year, ¹ Anthony has not flown or worked since. At the time of the accident, Anthony was 56 years old and had worked as a pilot for thirty years.

On January 2, 1992, almost two months after the accident, Anthony went to see his regular federal aviation doctor, Doctor Perraud, because he felt pain behind his left knee. Doctor Perraud examined Anthony's leg and referred him to a cardiovascular specialist, Dr. Anthony Revilla. Anthony did not see doctor Revilla until one year later at which time doctor Revilla ran some tests and told Anthony to wear special elastic stockings, to rest, and to elevate his leg. Anthony neither sought nor received any other medical treatment. ²

Anthony brought this suit against GMD in the United States District Court for the District of Puerto Rico on June 22, 1992. In his amended complaint, Anthony claimed that because of his injury, he had sustained $3,572.98 in medical expenses and lost earnings as well as additional damages "in excess of $75,000." The amount claimed for special damages (medical related expenses and lost earnings) was adjusted to $3,433.98 in a pretrial order. During the trial, Anthony testified that he incurred a total of $1,335 in medical expenses and $47,952 in lost wages. Unlike the complaint and pretrial order, Anthony's testimony included lost wages from April 10, 1992 (when Anthony stopped flying) until the date of the trial.

Anthony testified at trial that since the accident he has experienced constant pain in his left leg for which he takes aspirin and Tylenol. Anthony also stated that he spends most of the day lying down and that he elevates his leg two or three times a day. According to Anthony, he is "totally disabled" from the accident and cannot work because of the injury to his leg. Specifically, Anthony stated that "I had to take myself off [flight] duty by the rules and regulations of the Federal Aviation Administration" ("FAA").

No evidence or testimony, however, corroborated Anthony's claim that his injury prevented him from flying or engaging in any other gainful employment. Anthony testified that the FAA refused to issue him a first class medical certificate in December of 1992 because of the injury to his leg. For each of the thirty-two years preceding the accident, Anthony had received his FAA health certification. To prove that the FAA refused to certify him because of the accident, Anthony presented a medical examination report by doctor Perraud, sent to the FAA on December 2, 1992, which mentioned Anthony's leg injury and also that Anthony suffered from hypertension, a condition unrelated to the injury. In response to Anthony's medical evaluation, the FAA sent Anthony a letter dated December 22, 1992, which expressed concern about Anthony's hypertension and requested that he undergo further evaluation of that condition and send the results to the FAA. The letter made no mention of Anthony's leg condition. The letter also said nothing about the denial of Anthony's certification. Anthony never complied with the FAA's request for additional information about his blood pressure nor did he make any subsequent attempt to obtain FAA certification.

Anthony's medical expert, Dr. Jose R. Perez-Anzalota ("doctor Perez"), a cardiovascular surgeon, testified that he examined Anthony and observed swelling and varicose veins in his left leg. In the opinion of doctor Perez, the accident had caused thrombophlebitis in the deep veins of Anthony's left leg (also known as deep venous thrombosis ("DVT"), which is basically a trauma induced blockage in the veins). This condition led to postphlebitic syndrome which is characterized by the formation of varicose veins, swelling, pigmentation of the skin, and an increased potential for ulceration. ³ Doctor Perez testified that the treatment for this condition was for Anthony to wear elastic stockings and to lay down for 30 minutes to one hour, four times a day, with his leg elevated. When asked how long Anthony would be able to sit or stand before having to lie down, doctor Perez responded, "[u]sually, maybe two hours, maybe less. It depends. Each individual is different. He may have to keep in contact with his physician to evaluate his case."

Doctor Perez concluded that Anthony's injury caused a 20% "whole body" disability. However, he did not testify as to what, if any, activities or functions Anthony's injury would prevent him from performing. Doctor Perez also did not say whether or not Anthony's injury was permanent.

Following a trial on liability and damages, a jury found GMD negligent and assessed $571,100 in damages. The jury also found that Anthony was 39% comparatively negligent for entering a restricted area at the time of the accident and consequently reduced the award by 39%, leaving Anthony with a $348,371 award. GMD moved for a new trial and, in the alternative, a remittitur on the ground that the verdict was excessive. The district court denied the motion. GMD then brought this appeal claiming that the district judge's denial of a new trial or remittitur was improper.

II. HOW MUCH IS TOO MUCH?

In review of GMD's challenge to the jury's damages award, our inquiry is limited to determining "whether the trial court abused its discretion in refusing to set aside the verdict as excessive." McDonald v. Federal Laboratories, Inc., 724 F.2d 243, 246 (1st Cir.1984); see also Toucet v. Maritime Overseas Corp., 991 F.2d 5, 11 (1st Cir.1993); Joia v. Jo-Ja Service Corp., 817 F.2d 908, 918 (1st Cir.1987), cert. denied, 484 U.S. 1008, 108 S.Ct. 703, 98 L.Ed.2d 654 (1988). We will find such an abuse of discretion only if the jury's verdict exceeds "any rational appraisal or estimate of the damages that could be based on the evidence before the jury." Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir.1988) (quoting Segal v. Gilbert Color Systems, Inc., 746 F.2d 78, 81 (1st Cir.1984) (citation omitted)); see also Toucet, 991 F.2d at 11. As stated in the oft-quoted Dagnello opinion: "We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law." Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir.1961). See, e.g., Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968); Laaperi v. Sears, Roebuck & Co., 787 F.2d 726, 734 (1st Cir.1986); McDonald, 724 F.2d at 246 n. 2. Our determination of excessiveness must be based upon the evidence of damages viewed in the light most favorable to the plaintiff. Toucet, 991 F.2d at 11; Joia, 817 F.2d at 918; McDonald, 724 F.2d at 246.

We have frequently characterized the type of verdict that an appellate court may vacate for excessiveness as one that is "grossly excessive," "inordinate," "shocking to the conscience" or "so high that it would be a denial of justice to permit it to stand." See, e.g., Toucet, 991 F.2d at 11; Doty v. Sewall, 908 F.2d 1053, 1062 (1st Cir.1990); McDonald, 724 F.2d at 246 (citing Grunenthal, 393 U.S. at 159, 89 S.Ct. at 333). All of these descriptions apply to the amount awarded in the present case. The only damages incurred by Anthony that the evidence can support are $1,335 in medical expenses, $3,000 in lost earnings for one missed week of flying, ⁴ and the amount attributable to Anthony's pain and suffering from a condition that requires him to take aspirin, wear special stockings, and to elevate his leg several times a day. No reasonable...