Smith v. Botsford General Hosp.
| Decision Date | 08 March 2004 |
| Docket Number | No. 00-71459.,00-71459. |
| Citation | 309 F.Supp.2d 927 |
| Parties | Andrea SMITH, Personal Representative of the Estate of Kelly Snider Smith, Plaintiff, v. BOTSFORD GENERAL HOSPITAL, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Geoffrey N. Fieger, Fieger, Fieger, Jody Lipton, Marc E. Lipton, Lipton Law Center, Southfield, MI, for Plaintiff.
Ernest R. Bazzana, Plunkett & Cooney (Mount Clemens), Mount Clemens, MI, Jeffrey Feikens, Linda M. Galbraith, Feikens, Stevens, Detroit, MI, Robert G. Kamenec, Bloomfield Hills, MI, Steven B. Galbraith, Galbraith & Booms, Southfield, MI, for Defendant.
DECISION AND ORDER ON DEFENDANT'S MOTION FOR REMITTITUR AND/OR NEW TRIAL
This is an action under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (EMTALA), tried to a jury under Michigan's Wrongful Death Act, M.C.L. § 600.2922. Plaintiff Andrea Smith (Smith), the Executor of the Estate of Kelly Snider Smith, claims that defendant Botsford General Hospital (Botsford) transferred Kelly Smith to the University of Michigan Medical Center before stabilizing his medical condition, in violation of EMTALA.
At the conclusion of fifteen days of trial in April 2003, the jury agreed with Smith and returned a verdict for thirty-five thousand dollars ($35,000.00) in economic damages and five million dollars ($5,000,000.00) in non-economic damages for the pain and suffering to Kelly Smith and for the loss of love an companionship to his next of kin; now deceased father and grandmother and surviving sister and grandmother. The background and issues of the case are described in the Decision on Order Denying Defendant's Motion to Alter or Amend the Judgment, entered February 9, 2004, the Decision on Order Denying Defendant's Motion for Judgment as a Matter of Law, entered February 11, 2004, and the Memorandum on Order Denying Motion for New Trial, entered February 17, 2004, and will not be repeated here.
Now before the Court is Botsford's Motion For Remittitur and/or New Trial on the grounds that
[t]he lump sum award of Five Million ($5,000,000.00) Dollars to be paid without any reduction to present value for an undifferentiated a loss of society and companionship and conscience pain and suffering as a result of the death of a 33 year old, unmarried male survived only by his now deceased father and grandmother, sister and grandmother is beyond the range supported by the proofs and, alternatively, so excessive as it should shock the conscience.
Consideration of the motion first requires a decision on whether or not the $5,000,000.00 award for non-economic damages is so excessive as to require a new trial. Second, the Court must decide whether or not the excessive portion can be eliminated by a remittitur. Third, it requires a decision on the amount of the excessiveness if a remittitur is in order. Given this open-ended and indeterminate standard for an award of non-economic loss (conscious pain and suffering coupled with loss of society and companionship), this decision does not come easy, as commentators have recognized. See e.g. Randall R. Bovbjerg, Frank A. Sloan, James F. Blumstein, Valuing Life and Limb in Tort: Scheduling "Pain and Suffering ", 83 Nw. U.L.Rev. 908 (Summer 1989).
While the precedents say the Court is not to substitute its judgment for that of the jury, inevitably a good deal of subjective decision-making is involved; there are simply no bright lines to which to look. That said, for the reasons which follow, the motion is DENIED.
The parties agree that Michigan law on remittitur applies; the parties disagree on the standards to be applied. While there may be some verbal differences between the way the standards are expressed in the Michigan precedents and the way they are expressed in Sixth Circuit precedents, the Court prefers to look to the federal standard. What it said in Edwards v. Flagstar Bank, 109 F.Supp.2d 691 (E.D.Mich.2000) is appropriate to its decision on Botsford's motion. There the Court said:
Wright and Miller is also instructive as to the size of a verdict, stating as follows:
A motion under Rule 59 is an appropriate means to challenge the size of the verdict. The Court always may grant relief if the verdict is excessive or inadequate as a matter of law, but this is not to limit the Court's power. It may also grant a new trial if the size of the verdict is against the weight of the evidence.
This is merely a special application of the general power of the trial court to set aside a verdict that is against the weight of the evidence, and the general principles developed in the preceding section are applicable to a motion on this ground. The court is not free to set aside the verdict merely because the judge might have awarded a different amount of damages, but it may do so if the proceedings have been tainted by appeals to prejudice or if the verdict in the light of the evidence is so unreasonable that it would be unconscionable to permit it to stand. The phrase "shocks the conscious of the court," among others, is much used in the cases but adds very little by way of guidance. The power exists from the trial judge whether the verdict is unreasonably high or unreasonably low.
There is a difference, however, that must be noted. If the Court finds that the verdict is unreasonably high, it may condition denial of a motion for a new trial on plaintiff's consent to a remittitur. If the verdict is too low, it may not provide for an additur as an alternative to a new trial.
3. Remittitur
In Strickland v. Owens Corning, 142 F.3d 353 (6th Cir.1998), the Sixth Circuit set forth the following standard for remittitur:
A motion for new trial seeking a remittitur of a jury's verdict ... should be granted only if the award clearly exceeds the amounts which, under the evidence in the case, was the maximum that a jury could reasonably find,
Id. at 357 (citing Roush v. KFC Nat'l. Management Co., 10 F.3d 392, 397 (6th Cir.1993) (citations and internal quotation marks omitted)).
In addition, in Farber v. Massillon Board of Education, 917 F.2d 1391 (6th Cir.1990), the Sixth Circuit stated:
As a general rule, this Court has held that "a jury verdict will not be set aside or reduced as excessive unless it is beyond the maximum damages that the jury reasonably could find to be compensatory for a party's loss".
Id. at 1395 (citations omitted). The Sixth Circuit also made clear that a remittitur, when appropriate, must offer a new trial as an alternative: "Moreover, even if remittitur had been appropriate here, a forced remittitur without the offer of the option of a new trial on the issue of damages constitutes error, requiring this court to reverse and reinstate the verdict."
4. Determination of Excessiveness
As to the determination of excessiveness, the court in Darby v. Heather Ridge, 827 F.Supp. 1296 (E.D.Mich.1993), a housing discrimination case, said:
One factor to be considered in determining whether to set aside an award of damages is whether the award is out of line with awards in similar cases. The court is fully aware that "the assessment of damages, especially for intangible harms, such as humiliation and distress, is inescapably judgmental and subjective to a large degree, and to that degree therefore discretionary." The Court is also mindful of the Sixth Circuit's admonition to appellate courts that they "should not attempt to reconcile widely varied past awards for analogous injuries `which in the abbreviated appellate decisions of them seem somewhat similar.'" Id. at 1299-1300 (internal citations omitted).
Also instructive is what the Sixth Circuit said in Slayton v. Ohio Dept. of Youth Serv., 206 F.3d 669, 679-80 (6th Cir.2000):
Even if one might consider the award generous, see Koster v. Trans World Airlines, Inc., 181 F.3d 24, 34 (1st Cir.1999) (), DYS has not demonstrated that the award and underlying facts are so incongruous to shock the conscience, fall outside the bounds supportable by proof, or suggest mistake. Accordingly, we hold that the district court did not abuse its discretion in denying DYS' remittitur motion.
(emphasis added).
Kelly Smith was at Botsford for approximately three hours. After about an hour, the decision was made to transfer him to University Hospital in Ann Arbor. It took another two hours to implement the decision until he left Botsford. Kelly Smith was in the ambulance for about forty minutes before he lost consciousness. He was pronounced dead about an hour later. Therefore, once the decision to transfer was made, he suffered "pain and suffering, mental anguish, fright, shock, embarrassment, humiliation and mortification" for at approximately two hours and forty minutes.
The persons who suffered compensable "loss of society and companionship, etc." were: Rosa Smith, his paternal grandmother, who died on January 16, 2003, Willie Smith, his father, who died on October 24, 2001, Constance...
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