Reilly v. U.S., 88-1442

Citation863 F.2d 149
Decision Date16 September 1988
Docket NumberNo. 88-1442,88-1442
Parties27 Fed. R. Evid. Serv. 90 Donna REILLY, etc., et al., Plaintiffs, Appellees, v. UNITED STATES of America, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Howard S. Scher, Appellate Staff, Civil Div., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Washington, D.C., Lincoln C. Almond, U.S. Atty., Providence, R.I., and Robert S. Greenspan, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., were on brief for defendant, appellant.

Mark S. Mandell with whom Susan M. Carlin and Mandell, Goodman, Famiglietti & Schwartz, Ltd., Providence, R.I., were on brief for plaintiff, appellees.

Before BOWNES and SELYA, Circuit Judges, and CAFFREY, * Senior District Judge.

SELYA, Circuit Judge.

Peter Reilly and Donna Reilly, husband and wife, and their minor daughter, Heather, appellees before us, brought this medical malpractice action against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671 et seq. Following a bench trial, the United States District Court for the District of Rhode Island awarded plaintiffs $11,037,964 in damages and entered a judgment in that amount. Reilly v. United States, 665 F.Supp. 976 (D.R.I.1987) (Reilly I ). The defendant moved to set aside the judgment; the district court denied the motion. Reilly v. United States, 682 F.Supp. 150 (D.R.I.1988) (Reilly II ). The United States appeals.

Appellant recites an alphabet of error: it claims, among other things, that the court below erred in--

A ppointing a technical advisor;

B rushing aside a state collateral source statute;

C alculating lost earning capacity;

D eclining to order staggered payments in lieu of a lumpsum award (or in the alternative, refusing to consider the cost of a periodic-payment annuity in determining damages);

E xceeding the amount of plaintiffs' administrative claim without just cause; and

F ashioning an award which allowed duplicative recovery.

Given the range and reach of appellant's contentions, this futhark should be read as more limning than limitary. Yet the appeal is a mixed bag. The government has raised some close questions which deserve careful attention and analysis; we address those in the alphabetical order listed above, except that we merge the third and sixth assignments of error. On the other hand, appellant has also attempted to capitalize on avowals which are patently meritless, or procedurally defaulted, or both; those need not be mentioned specifically, but are rejected out of hand. When everything is said and done, we find that the judgment is consonant with the letter of the law in all particulars save one.

I. BACKGROUND

Liability is conceded, as is the nature and extent of Heather Reilly's injuries. See Reilly I, 665 F.Supp. at 980. Nevertheless, we deem it useful to summarize succinctly the underlying facts (borrowing heavily from the district court's opinions) and delineate the travel of the case.

A. What Transpired. On December 11, 1984, Peter Reilly was on active duty with the Navy. On that date, a gravid Donna Reilly was admitted to Newport Naval Hospital. After some six hours in labor, the electronic monitor indicated a dramatic deceleration in fetal heart rate. The district court found, supportably, that this development should have signalled the obstetrician to perform a caesarean section immediately because the baby was in danger of asphyxiation. Id. at 979. The physician instead removed the monitor and insisted on undertaking a vaginal delivery, thereby delaying the birth. When the delivery was eventually performed, it required the application of a vacuum/suction instrument to the baby's head. The departure from prudent professional standards was palpable.

As a result of the doctor's manifest negligence, Heather Reilly was born with severe, apparently irremediable, brain damage. The district court determined, sadly but accurately, that she was left "a helpless individual, 'significantly delayed developmentally' and unable to see; she will never be able to walk, talk, feed or take care of herself in any way." Id.

B. Travel of the Case. Heather's parents filed an administrative claim with the Navy on May 7, 1985 in the amount of $10,000,000. When the matter was not definitively resolved within six months next following, suit was brought under the FTCA. 1 The administrative claim was never amended.

Plaintiffs' complaint sought damages for Heather's grievous injuries and losses consequent thereto (including future-care expenses and deprivation of earning capacity). Mr. & Mrs. Reilly also sued for emotional distress and loss of love, society, and affection. See Reilly I, 665 F.Supp. at 983. After discovery was completed, a 7-day bench trial ensued. Both sides introduced expert testimony as to the calculation of damages for lost earning capacity. Appellees also supplied expert testimony regarding expenses for Heather's future care, but "the government presented almost no factual argument against the necessity for and pecuniary valuation of the[se] itemized damages." Id. at 1000. The trial came to a halt on November 26, 1986--but, as matters turned out, more evidence was to be taken at supplementary hearings.

During the interval between the trial and the resumed hearings, the district judge attempted to enlist an economist to assist him in respect to certain technical aspects pertinent to the calculation of a damage award. Reilly II, 682 F.Supp. at 152. He approached several potential candidates. Id. at 152-53. Professor Feldman, an economist at Brown University, disqualified himself because he had previously discussed the case with the plaintiffs' lawyer; others were contacted and one agreed to serve. Id. The judge did not inform counsel of his search. By happenstance, the government learned of it when an assistant United States Attorney (AUSA), in an apparent effort to prepare for the supplementary hearings, called Professor Feldman. The academician forthrightly informed the AUSA that he had already worked on the case at the behest of plaintiffs' lawyer, and mentioned in passing that he had also been contacted by the judge.

The AUSA immediately requested a chambers conference. The session was held on April 10, 1987. The district judge recounted his conversations with the economists and made no bones about his intent to hire one as a technical advisor. He informed all counsel that he had already contacted the Administrative Office of the United States Courts (AO) to this end, and that he was awaiting approval from the Chief Judge of the First Circuit. 2 The government voiced no contemporaneous objection to the procedure, did not ask the name of the economist whom the court intended to retain, did not ask that either the court's instructions to the expert or the expert's advice be reduced to writing, and did not request an opportunity to question him.

To make a tedious tale tolerably terse, the approvals were forthcoming, see Reilly II, 682 F.Supp. at 154-55 & n. 1, and the judge appointed Dr. Arthur Mead of the University of Rhode Island to act as a technical assistant to the court. The judge had two short conferences with Dr. Mead in the spring of 1987. During the same time frame, the court conducted supplemental evidentiary hearings on April 16 and May 5, 1987. On July 28, an opinion and order was issued awarding Heather Reilly $1,000,000 for pain and suffering, $1,104,641 for lost earning capacity, and $8,933,323 in respect to anticipated future care. Reilly I, 665 F.Supp. at 1008. The judge reserved the claims concerning the Reillys' emotional distress and loss of spousal and parental consortium, and certified the underlying state-law questions to the Rhode Island Supreme Court. 3

The government moved for a new trial, amending its motion in December 1987 to add Dr. Mead's service as a further basis for relief. The motion was denied by the district court in an erudite opinion concerned exclusively with the court's engagement of a technical advisor. Reilly II, 682 F.Supp. 150. The court regarded all of the other grounds asserted in the motion as a rehash of arguments previously made and rebuffed. Id. at 151.

It is against this backdrop that we proceed to ponder the orthography of appellant's alphabet of error.

II. APPOINTING A TECHNICAL ADVISOR

The United States concedes that a district court has inherent authority to appoint an expert as a technical advisor. 4 See, e.g., Appellant's Brief at 22-23 n. 17; Reply Brief at 1. It maintains, notwithstanding, that (1) such power is strictly circumscribed by Fed.R.Evid. 706(a), 5 a rule whose protocol the district court saw no need to obey; (2) the court abused its discretion in appointing an advisor at all in this case; (3) the court's appointee far exceeded the limited role of a technical advisor; and (4) the absence of meaningful procedural safeguards rendered utilization of the advisor fundamentally unfair. We examine these points seriatim.

A. Rule 706.

Throughout its text, Fed.R.Evid. 706 refers not to "experts" generally, but to a more exclusive class: "expert witnesses." Because the plain language of a Civil Rule is the most reliable indicator of its meaning, we are constrained to conclude that the grasp of Rule 706 is confined to court-appointed expert witnesses; the rule does not embrace expert advisors or consultants. Accord Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 746 (6th Cir.1979); cf. National Organization for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 545-46 n. 7 (9th Cir.1987) (phrase "court-appointed experts" in 28 U.S.C. Sec. 1920(6), like the counterpart language in Fed.R.Evid. 706, refers only to expert witnesses, not to masters).

This conclusion is buttressed by the text of the advisory committee notes (Notes) accompanying Rule 706. As we read them, the Notes seem geared exclusively to expert witnesses as opposed to...

To continue reading

Request your trial
357 cases
  • Putnam Resources v. Pateman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 6, 1991
    ...action, must forever hold its tongue. See, e.g., United States v. DiPietro, 936 F.2d 6, 11- 12 (1st Cir.1991); Reilly v. United States, 863 F.2d 149, 160-61 (1st Cir.1988). To recapitulate, we deem the district court to have made a hybrid submission here, submitting the primary complaint an......
  • Cargill, Inc., In re
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 12, 1995
    ...toe, and if found to his liking, decides to take a plunge.") (citation and internal quotation marks omitted); cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir.1988) (explaining that "when a trial judge announces a proposed course of action which litigants believe to be erroneous, the......
  • U.S. v. Martinez-Torres, MARTINEZ-TORRE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 4, 1990
    ...fair and the jury unbesmirched. I come last to the fourth prong: what I term the court's discretion. See, e.g., Reilly v. United States, 863 F.2d 149, 161 (1st Cir.1988); United States v. Krynicki, 689 F.2d 289, 291 (1st Cir.1982). The pivotal inquiry here is whether counsel can be excused ......
  • Campbell v. US
    • United States
    • U.S. District Court — Northern District of Georgia
    • April 5, 1990
    ...process. This case is especially like Reilly v. United States, 665 F.Supp. 976 (D.R.I.1987), rev'd in part on other grounds, 863 F.2d 149 (1st Cir.1988). In that case, parents and their child were seeking damages for negligent delivery of the child. The court found that the three were joint......
  • Request a trial to view additional results
17 books & journal articles
  • Selecting Your Expert
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2018 Contents
    • August 4, 2018
    ...malpractice case involving a child who suffered severe permanent injuries in a birth defect case, the court in Reiley v. United States , 863 F.2d 149 (1st Cir. 1988) set forth extensive guidelines to the utilization of a technical advisor. The court concluded that Federal Rule of Evidence 7......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2015 Contents
    • August 4, 2015
    ...224, 230 (Iowa 1992), §561.1 Reg’l Airport Auth. of Louisville v. LFG, LLC , 460 F.3d 697 (6th Cir. 2006), §242 Reiley v. United States , 863 F.2d 149 (1st Cir. 1988), §180.1 Reilly v. Natwest Mkt. Group, Inc. 181 F.3d 253m 267 (2d Cir. 2000), §201 Republic of Ecuador v. For Issuance of a S......
  • Pre-trial preparation
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • March 31, 2022
    ...authority to support that the purpose of Rule 706 is to provide the court with one to one technical advice. See Reilly v. United States , 863 F.2d 149 (1st Cir. 1988) (appointed expert may function as a technical advisor to the judge even though the appointment is as an expert under Rule 70......
  • Selecting Your Expert
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2021 Contents
    • August 4, 2021
    ...malpractice case involving a child who suffered severe permanent injuries in a birth defect case, the court in Reiley v. United States , 863 F.2d 149 (1st Cir. 1988) set forth extensive guidelines to the utilization of a technical advisor. The court concluded that Federal Rule of Evidence 7......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT