Rufino v. U.S.

• Citation: 829 F.2d 354
• Decision Date: 24 September 1987
• Docket Number: D,No. 517,517
• Parties: Anna RUFINO, As Guardian Ad Litem of Neil Rufino, and Anna Rufino, Plaintiffs- Appellants, v. UNITED STATES of America, Defendant-Appellee. ocket 86-6175.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 354

829 F.2d 354

Anna RUFINO, As Guardian Ad Litem of Neil Rufino, and Anna Rufino, Plaintiffs- Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 517, Docket 86-6175.

United States Court of Appeals Second Circuit.

Argued Dec. 11, 1986.

Decided Sept. 24, 1987.

Charles Kramer, New York City (Kramer, Dillof, Tessel, Duffy & Moore, of counsel, Charles F. McGuire, on brief), for plaintiffs-appellants.

Alan Nisselson, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Steven E. Obus, Asst. U.S. Atty., of counsel), for defendant-appellee.

Before KAUFMAN and MAHONEY, Circuit Judges. ^*

MAHONEY, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York (Charles E. Stewart, Judge ) ¹ rendered in an action brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 2671-2680 (1982) ² to redress injuries caused by defendant. Plaintiffs contend that two damage awards rendered by the district court are grossly inadequate, and that the trial court should have awarded damages for Neil Rufino's loss of the normal pursuits and pleasures of life. We find that the latter contention has merit, and accordingly reverse in part and remand for a reassessment of Neil Rufino's damages.

I. BACKGROUND

On April 12, 1981, Neil Rufino--complaining of chest pain--was taken to the Bronx Veterans Administration Medical Center. While there, he suffered a massive heart attack. He was treated, and placed on a respirator. By the next day, Rufino's condition had stabilized; one of his treating cardiologists concluded that he had recovered from the heart attack. There were plans to take him off the respirator by April 14. Early in the morning of April 14, due to the conceded negligence of defendant, ³ see 642 F.Supp. at 85, Rufino went into cardiac and respiratory failure; he was deprived of oxygen, and lapsed into a permanent comatose state. ⁴

Liability under the FTCA having been admitted, a bench trial on the issue of damages was held before Judge Stewart for three trial days in January 1986. Plaintiff Anna Rufino, as guardian ad litem of her husband Neil Rufino, sought damages for medical expenses and pain and suffering. ⁵ Anna Rufino sought damages for loss of consortium in her own right.

An issue sharply contested at trial was the extent, if any, of Neil Rufino's conscious awareness following the accident. There is evidence of record indicating that there were several occasions on which he appeared to respond to outside stimuli, indicating some level of awareness. On the other hand, defendant presented testimony to the effect that Mr. Rufino was in a chronic vegetative state with no conscious awareness of his surroundings.

In his original memorandum decision dated March 18, 1986, Judge Stewart noted that Mr. Rufino received (and would continue to receive throughout his life) $3,302 in Veteran's disability benefits per month, of which roughly $1,928 represented additional benefits paid due to defendant's negligence. He further noted that as a disabled veteran (even prior to April, 1981), Mr. Rufino was entitled to free medical care provided by the Veterans' Administration ("V.A."), had availed himself of that care, and had expressed no dissatisfaction with it. Accordingly, no award was made for past or future medical expense, and no contention was made on appeal that this ruling was erroneous.

Based on the lay and medical testimony adduced at trial, Judge Stewart awarded $75,000 to Mr. Rufino for his past and future pain and suffering, and $75,000 to Anna Rufino for past and future loss of consortium. The district court took into account $71,114.67 in additional disability benefits paid to Mr. Rufino from the time of the accident up to December 1, 1985 (the result of the monthly increase noted above).

Plaintiffs thereafter moved "for revision of the [district court's] memorandum decision and order and for a new trial on certain of the issues." 642 F.Supp. at 87. In a decision dated June 23, 1986, Judge Stewart supplemented his earlier decision by (1) rejecting Mr. Rufino's claim that damages should have been awarded for his loss of normal pursuits and pleasures of life, principally on the ground that he was "in a comatose condition with no cognitive awareness," id.; and (2) increasing Anna Rufino's award for loss of consortium to $100,000.

Plaintiffs appeal, arguing that (1) the $75,000 award to Mr. Rufino was grossly inadequate and was based on the district court's "clearly erroneous" findings that Rufino had no cognitive awareness and very limited conscious pain and suffering following the accident; (2) the award of $100,000 to Anna Rufino for past and future loss of consortium was grossly inadequate; and (3) Judge Stewart's rulings that cognitive awareness is a prerequisite to a recovery for loss of normal pursuits and pleasures of life and that Mr. Rufino should not be compensated therefor were in error.

II. DISCUSSION

A. The Pain and Suffering Award

We will accept arguendo plaintiffs' contention that Judge Stewart's award to Mr. Rufino for the latter's pain and suffering was the "direct result" of his findings that Rufino had no cognitive awareness and very limited conscious pain and suffering. See Brief for Plaintiffs-Appellants at 9. Plaintiffs assail those findings as clearly erroneous.

Plaintiffs candidly acknowledge our limited power to review the factual findings made below. "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Fed.R.Civ.P. 52(a). They nonetheless contend that in view of the "totality of the evidence," Judge Stewart's findings are clearly erroneous.

In this regard, there is evidence of record indicating that Mr. Rufino was capable of responding to outside stimuli. For example, one of his attending nurses testified on direct examination that he turned away from noxious odors such as ammonia, that he turned to and from sound, and that he responded to painful stimuli such as pin pricks. Members of Mr. Rufino's family indicated that over time, he became more aware of his surroundings. Dr. Mihai Dimanescu, a diplomate in neurosurgery who testified for plaintiffs, examined Mr. Rufino during the latter's two stays at South Nassau Communities Hospital. During the first stay, from February 10 to March 1, 1982, Dr. Dimanescu noted that Mr. Rufino opened his eyes on his own, and in response to painful stimulation; that he could, on occasion, track with his eyes; that he displayed a good cough reflex and an ability to swallow; that he grimaced in response to noxious stimuli; and that on occasion, he would spontaneously move his left foot. During the second stay, from June 10 to June 14, 1983, Dr. Dimanescu noted that Mr. Rufino appeared alert; that he tracked well with his eyes; that he displayed some movement in his extremities; and that, on command, he was capable of squeezing with his left hand. On the basis of this second examination, Dr. Dimanescu concluded that Mr. Rufino "was clearly better than before. He obviously ... showed some definite improvement."

Dr. Eric Stern, the assistant chief of cardiology at the Bronx V.A. Hospital and one of Mr. Rufino's treating cardiologists, testified for the defendant. From April, 1981 to the time of trial, at three to four month intervals, Dr. Stern visited Mr. Rufino once or twice per week for one month periods. On direct examination, Dr. Stern testified that there were times when Mr. Rufino appeared alert, but he did not believe "that significant cognition accompanies this alertness." On redirect, Dr. Stern described Mr. Rufino's situation as one in which "[c]ommands are not obeyed as commands, they show a general awareness at some lower level, in my view, of the nervous system to input from the outside, but do not by any means imply integration or understanding of what is occurring in the outside world...."

Defendant also called Dr. Richard Schoenfeldt, a neurologist, to testify as an expert witness. Dr. Schoenfeldt had not treated Mr. Rufino, but had examined him on one occasion in February, 1985. Dr. Schoenfeldt testified that in his opinion, "Mr. Rufino is in a chronic or persistent vegetative state.... [T]here's every indication that he does not experience pain.... I could elicit no response to auditory, visual or limb stimulation.... [T]here did not seem to be a conscious awareness of what was going on around him."

Based in part on the foregoing evidence, the district court decided

to accept as more reliable the testimony of the defendant's witnesses, one of whom has had frequent opportunities over the past several years to observe Rufino. We accept, however, the testimony of plaintiffs' experts to the extent that they have found some evidence of very limited conscious pain and suffering. Accordingly, we find that under all the circumstances, plaintiff is entitled to recovery on the claims for past and future pain and suffering and for loss of consortium.

642 F.Supp. at 86.

We cannot gainsay these findings. It is not the function of an appellate court to reconsider ab initio the evidence of record, reversing factual findings made below where they strike us as less plausible than others which might have been made. Rather, our task is to examine the facts found below against the background of the record, reversing a finding as "clearly erroneous" only when our examination leaves us " 'with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). On this record, we cannot say that a mistake was made.

Nor can we say that Judge Stewart's...