Parrilla-Lopez v. U.S., PARRILLA-LOPE

• Decision Date: 04 February 1988
• Docket Number: No. 87-1375,PARRILLA-LOPE,P,87-1375
• Citation: 841 F.2d 16
• Parties: Juanlaintiff, Appellant. v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

841 F.2d 16

10 Fed.R.Serv.3d 1272

Juan PARRILLA-LOPEZ, Plaintiff, Appellant. v. UNITED STATES of America, Defendant, Appellee.

No. 87-1375.

United States Court of Appeals, First Circuit.

Heard Feb. 4, 1988.

Decided March 4, 1988.

Antonio Gonzalez Geigel, Hato Rey, P.R., for plaintiff, appellant.

Fidel A. Sevillano Del Rio, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and CAFFREY, ^* Senior District Judge.

CAFFREY, Senior District Judge.

The plaintiff, Juan Parrilla-Lopez, was injured when his vehicle was struck by a car driven by a U.S. Army Sergeant. The plaintiff brought suit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., seeking damages for physical injury, mental anguish, loss of earnings, and property damage. At trial, the court (Perez-Gimenez, D.J., presiding) refused to allow into evidence testimony regarding mental anguish and mental incapacitation. The plaintiff was found to be 70% at fault, and was awarded damages for physical injuries and for property damage. On appeal, this court held in Lopez v. United States, 758 F.2d 806 (1st Cir.1985), that the district court erred in excluding evidence on mental injuries, and remanded the case for a redetermination of damages. At the same time, we affirmed the court's findings as to liability. On remand, the district court (Fuste, D.J., presiding) awarded the plaintiff additional damages for mental anguish. The plaintiff also moved for a new trial. The court denied this motion. The plaintiff now appeals the award for mental anguish and the denial of the motion for a new trial. We affirm the decisions of the court below.

I. Background

In 1977, the plaintiff was using his pick-up truck to push a disabled car along a four lane highway in Rio Grande, Puerto Rico. A U.S. Army Sergeant, driving at excessive speed, crashed into the rear of the plaintiff's vehicle, injuring the plaintiff. The plaintiff then filed a suit in Federal District Court, seeking $850,000 for personal injuries, $2,000 for property damage, and $1.6 million for mental and physical incapacitation, mental anguish, and loss of future earnings.

The court, on the government's motion, reduced the amount of the demand so as to eliminate the $1.6 million on the grounds that the plaintiff had failed to present those claims to the government, as required by the F.T.C.A. Accordingly, the court refused to hear evidence regarding mental damages. At the end of the trial, the court found that the government was 30% liable, and the plaintiff was 70% liable. The court also found much of the appellant's testimony regarding his physical injuries unbelievable. The court found the appellant had suffered $5,000 in damages, and thus awarded him $1,500. ¹

On appeal, this court held that the appellant was entitled to seek damages for mental injuries. The court then remanded the case for determination of mental injuries. On remand, the appellant's evidence consisted of his own testimony, and that of his treating psychiatrist. The government's evidence consisted of the testimony of a clinical psychologist and a neurologist, both of whom examined the appellant. The appellant was described as a person with an intellectual function bordering on mentally retarded. At trial, however, the appellant's testimony was spontaneous and detailed. When asked to comment on the inconsistency between the appellant's lucid testimony and his alleged low IQ, the appellant's expert said that the appellant had good and bad days. The government's psychologist was unable to explain the discrepancy.

Based upon the testimony of the appellant and the experts, the court found that the appellant had avoided medical treatment for his initial depression and anxiety in order to seek additional compensation from the defendant. The court concluded, as a result, that not all of the appellant's mental incapacity was attributable to the accident. The court also noted that much of the appellant's apparent disability is the result of the appellant's conscious resistance to accurate diagnosis of his mental condition. Based on the testimony of the witnesses, the court determined that the appellant suffered $16,500 for mental injuries.

In August, 1985, the appellant also filed a motion for relief from the original judgment and a new trial under Fed.R.Civ.P. 60(b). The appellant claimed that a witness who would verify the appellant's version of the accident had been located, and that the whereabouts of this witness was unknown at the time of the trial. ² The court noted that the witness' name was known to the appellant prior to trial, and that the witness had lived at the same address since 1981. The court denied the appellant's motion on the grounds that the appellant did not state any reason of weight why he did not find the witness earlier.

II. Discussion

A. The Damage Award

The appellant argues that the district court erred in disbelieving the testimony of the appellant's psychiatrist, who categorized the appellant as suffering from severe post traumatic stress disorder. The appellant seems to contend that the District Judge, as a lay person, was not qualified to disbelieve the appellant's expert and to form his own opinion on the mental condition of the appellant.

In challenging a finding of fact, such as the determination of damages, the appellant bears the burden of showing that the finding is clearly erroneous. Fed.R.Civ.P. 52(a); Santana v. United States, 572 F.2d 331, 335 (1st Cir.1977). A finding is clearly erroneous when, upon consideration of all the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1984); Barbe v. Drummond, 507 F.2d 794, 796 (1st Cir.1974). If the district court's finding is plausible in light of the record as a whole, the court of appeals must affirm that finding even though it might have made a different determination. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. Moreover, when the finding is based on determinations of the credibility of witnesses, as here, the trial court's findings must be accorded even greater deference, since credibility determinations depend, to a great extent, upon personal observation of the witness at trial. Id. at 575, 105 S.Ct. at 1512.

Based on the somewhat skimpy record provided by the parties, we cannot say that the district court's finding regarding the amount of appellant's damages is clearly erroneous. ³ The evidence on the plaintiff's injury was conflicting. Contrary to the appellant's claim of severe mental incapacitation, the appellant's recitation of the accident was extremely lucid and detailed. The appellee's expert noted that this apparent lucidity was inconsistent with the appellant's alleged degree of mental impairment. There was evidence that the appellant was uncooperative during the psychological evaluations by appellee's experts. Moreover, some of the psychological tests indicated that the appellant's mental capacity was relatively normal. Faced with such conflicting evidence, the court reasonably concluded that the appellant was exaggerating the extent of his mental impairment in order to receive greater damages. Therefore, it was not clearly erroneous to reject the testimony of the appellant's expert stating that the appellant suffered from chronic post traumatic stress disorder.

Even if the testimony of the appellant's expert was uncontradicted, the court was not required to accept this testimony. Santana v. United States, 572 F.2d 331, 335 (1st Cir.1977); Ramos v. Matson Navigation Co., 316 F.2d 128, 132 (9th Cir.1963). Since the burden of proving damages rested on the appellant, the court could have determined that the appellant's evidence was not credible and thus did not satisfy that burden. Santana, 572 F.2d at 335. For these reasons, we hold that the district court did not err in determining the amount of the appellant's damages.

B. The Motion for New Trial

The appellant also urges that the district court erred in not granting his motion for new trial under Fed.R.Civ.P. 60(b)(2) or (6). The appellant argues that the policeman who observed the scene of the accident shortly before and after the accident occurred was only recently located. The witness moved in 1981 from Puerto Rico to New York, where he currently resides. The appellant argues that this witness' testimony will support his version of the accident, which the district court found incredible at trial. In light of this witness' affidavit, the appellant contends, the court should have granted a new trial.

In analyzing this issue, we must bear in mind that the decision to grant a new trial under Rule 60(b) is left to the broad discretion of the trial judge. United States v. Indelicato, 611 F.2d 376, 387 (1st Cir.1979); Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.1986). Moreover, a new trial is extraordinary relief, and as such should only be granted under extraordinary circumstances. Lepore, 792 F.2d at 274.

The appellant's apparent reliance on Rule 60(b)(2) as grounds for a new trial is misplaced. That section requires newly discovered evidence, as opposed to evidence that is merely new. Id. In order for evidence to be newly discovered, the party seeking a new trial must be unaware of the existence of the evidence before or during the trial. United States v. 72.71 Acres of Land, 23 F.R.D. 635, 638 (D.Md.1959), aff'd 273 F.2d 416 (4th Cir.1960), cert. denied 364 U.S. 818, 79 S.Ct. 319, 3 L.Ed.2d 304; 11 C. Wright and A. Miller, Federal Practice and Procedure Sec. 2859 (1973). In this case, the appellant himself admits that he was aware, before trial, of the policeman's identity and knowledge concerning the accident. In preparing for trial,...