Carter v. U.S., 02-3355.

• Decision Date: 24 June 2003
• Docket Number: No. 02-3355.,02-3355.
• Parties: Davita CARTER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

333 F.3d 791

Davita CARTER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 02-3355.

United States Court of Appeals, Seventh Circuit.

Argued February 20, 2003.

Decided June 24, 2003.

Donald C. CLark, Jr. (argued), Chicago, IL, for plaintiff-appellant.

William G. Cole (argued), Department of Justice, Civil Division, Appellate Section, Washington, DC, for defendant-appellee.

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

Surgery at Bethesda Naval Hospital in Maryland to correct 11-year-old Davita Carter's severe scoliosis (curvature) of the spine left her a paraplegic and precipitated this suit for medical malpractice. Her father is a Marine veteran, and his veterans' benefits entitled his daughter to treatment at the government's expense. Bethesda Naval Hospital is of course a federal hospital, and so the suit is under the Federal Tort Claims Act.

The Act authorizes suit in the judicial district where the plaintiff lives or the alleged tort occurred. 28 U.S.C. § 1402(b). The plaintiff lives in the Central District of Illinois, and that is where the suit was filed, the alternative venue being of course the District of Maryland. The district judge granted summary judgment for the plaintiff on liability and then conducted a bench trial on damages that resulted in his finding that the plaintiff had sustained $3.4 million in economic damages (past and future medical expenses plus lost future earnings) and another $15.5 million in noneconomic damages (permanent disability, disfigurement, physical and emotional pain and suffering, and loss of enjoyment of life). But the judge reduced the award for noneconomic damages to $530,000, the maximum allowed under Maryland law. The plaintiff appeals that ruling. Neither she nor the government challenges the award of $3.4 million in economic damages and upon the request of both parties we entered a partial final judgment in the plaintiff's favor for that amount. Barnes v. United States, 678 F.2d 10, 11-13 (3d Cir.1982); Dempsey v. United States, 32 F.3d 1490, 1497-98 (11th Cir.1994) (per curiam) (concurring opinion).

It is curious, though, that a judgment by any court should be thought necessary when the government not only acknowledges that it owes the plaintiff the $3.4 million in economic damages that the district court awarded but wants to pay the money promptly. For mysterious bureaucratic reasons, however, the government would not pay this amount that it acknowledges owing without our affirming the part of the district court's judgment that covers that amount. The reasons are especially mysterious because the filing of an appeal by the prevailing party does not stay the judgment in his favor unless he is seeking to change the form of the relief that he obtained in the district court (for example, from damages to specific performance) rather than, as in this case, merely seeking more of the same. BASF Corp. v. Old World Trading Co., 979 F.2d 615, 616-17 (7th Cir.1992); Trustmark Ins. Co. v. Gallucci, 193 F.3d 558, 558-59 (1st Cir.1999) (per curiam); Enserch Corp. v. Shand Morahan & Co., 918 F.2d 462, 464 n. 3 (5th Cir.1990); contra, Tennessee Valley Authority v. Atlas Machine & Iron Works, Inc., 803 F.2d 794, 797 (4th Cir.1986). But having entered the requested judgment we need not pursue the issue of its necessity further.

The Federal Tort Claims Act authorizes the imposition of tort liability on the federal government "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). That place was Maryland, and a statute of Maryland imposes a cap on non-economic damages of $530,000. Md.Code, Cts. & Jud. Proc. § 11-108(b)(2). The Supreme Court has held, however, that the reference in the Tort Claims Act to "the law of the place where the act or omission occurred" is a reference to the entire law of the place, including its conflict of laws principles, Richards v. United States, 369 U.S. 1, 10-13, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), and the plaintiff in our case argues that Maryland conflict of laws principles would look to Illinois law to supply the rule of decision on damages-related issues — and Illinois does not have a cap on noneconomic damages.

If Maryland followed the maddeningly indefinite "interest-balancing" approach to conflicts issues, it conceivably might decide that Illinois, as the place of residence of the plaintiff (not as the forum state — for a reason that will become apparent shortly), should furnish the rule of decision with respect to issues of damages as distinct from issues of liability. See, e.g., Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877, 878-80 (1968). But Maryland does not follow such an approach; it adheres to the old-fashioned conflicts principle of "lex loci delicti," whereby the law of the place where the tort occurred (the English translation of the Latin phrase), Maryland in this case, supplies the rule of decision on all substantive issues. Philip Morris Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200, 230-31 (2000); Hauch v. Connor, 295 Md. 120, 453 A.2d 1207, 1209 (1983). But is a damages cap procedural or substantive for this purpose? It is the latter, according to Maryland's intermediate appellate court. Black v. Leatherwood Motor Coach Corp., 92 Md.App. 27, 606 A.2d 295, 300-01 (1992); Naughton v. Bankier, 114 Md.App. 641, 691 A.2d 712, 716 (1997); see also Houben v. Telular Corp., 309 F.3d 1028, 1035 (7th Cir.2002); Bush v. O'Connor, 58 Wash.App. 138, 791 P.2d 915, 919 (1990). This is sensible, because a cap on damages reflects a judgment about the severity of the sanction appropriate to regulate the activity of potential injurers.

But even if Maryland's highest court, which has not yet addressed the issue, would disagree and hold that a damages cap was procedural, the plaintiff could not prevail. Her argument is that since Illinois is the forum state, Illinois' procedural law should govern under Maryland conflicts principles, which make the law of the forum controlling on procedural issues. E.g., Black v. Leatherwood Motor Coach Corp., supra, 606 A.2d at 300; see also Shaps v. Provident Life & Accident Ins. Co., 826 So.2d 250, 254 n. 3 (Fla.2002); Nebraska Nutrients, Inc. v. Shepherd, 261 Neb. 723, 626 N.W.2d 472, 517 (2001). The argument founders on the fact that Illinois, though it is the state in which the federal district court that the plaintiff sued in is located, is not a forum state for purposes of conflicts analysis under the Tort Claims Act. And on the further fact that the reference in 28 U.S.C. § 1346(b) to "the law of the place where the act or omission occurred" is to the substantive law (broadly understood to include remedial law, such as the damages cap, as well as, of course, the conflict of laws rules) of the state where the act or omission occurred, see Jackson v. United States, 881 F.2d 707, 711-12 (9th Cir.1989), since the court one sues in will apply its usual procedures even if it is required by conflicts principles to apply the substantive law of a foreign state. The court that the plaintiff sued in was a federal court, not an Illinois state court, and the procedures it applies are federal, not state, procedures, regardless of the source of the substantive rules in the case. This has been the law since 1938, when the Federal Rules of Civil Procedure superseded the Conformity Act, under which federal courts had conformed their procedures to those of the state in which the court was located. See, e.g., Houben v. Telular Corp., supra, 309 F.3d at 1032; Odekirk v. Sears Roebuck & Co., 274 F.2d 441, 445 (7th Cir.1960).

So even if Maryland would regard a damages cap as a procedural rule (the federal courts certainly would not, Houben v. Telular Corp., supra, 309 F.3d at 1035), it is not a federal procedural rule and so it did not bind the federal district court in this case. E.g., Jastremski v. United States, 737 F.2d 666, 672 (7th Cir.1984); Jackson v. United States, supra, 881 F.2d at 712. Maryland could not require a federal district court to jettison federal in favor of state procedural law if it wanted to, and there is no evidence it wants to.

But like most states Maryland has a "public policy" exception to its usual conflicts rules, whereby a court in the forum state will decline to enforce a foreign state's rule of law if that rule would offend the public policy of the forum state. Black v. Leatherwood Motor Coach Corp., supra, 606 A.2d at 302-03; Harford Mutual Ins. Co. v. Bruchey, 248 Md. 669, 238 A.2d 115, 117-18 (1968). The plaintiff argues that Maryland would defer to Illinois law in regard to damages caps, not because Illinois lacks such caps but because the Illinois constitution has been interpreted by the Illinois courts to forbid such caps, Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057, 1069-81 (1997), thus indicating that they are indeed offensive to the public policy of Illinois — that their omission from Illinois law is not merely an accident. This argument does not depend on the implausible classification of a damages cap as a procedural rule, and so is less vulnerable to the counter argument that Illinois is not the forum state in a federal tort claims suit. Illinois is the place where the suit was brought, and if Maryland thinks that the public policy of the place where a suit is brought is a trump, we would be bound because Maryland conflicts principles are controlling in this case.

But Maryland does not think this. The plaintiff has got Maryland law backwards. When a suit brought in Maryland arises out of a tort in another state, the court will decline to enforce a provision of the law of that other state that offends Maryland public policy. In this way Maryland protects its own policies. If the suit is brought in another state but...