Wakefield v. U.S.

• Decision Date: 05 July 1985
• Docket Number: No. 84-2313,84-2313
• Parties: Jules WAKEFIELD, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 55

765 F.2d 55

Jules WAKEFIELD, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 84-2313.

United States Court of Appeals Fifth Circuit.

July 5, 1985.

Henry K. Oncken, U.S. Atty., Pete Sandoval, James R. Gough, C.J. (Neil) Calnan, Asst. U.S. Attys., Houston, Tex., for defendant-appellant.

Browning & Associates, Dennis M. Beck, Christopher Bradshaw-Hull, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RANDALL, JOHNSON, and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

The United States appeals from the damages award of the district court in this Federal Tort Claims Act suit brought by Jules Wakefield for injuries he suffered due to treatment he received at the Veterans Administration Medical Center in Houston, Texas. The district court found that the physicians who treated Wakefield were negligent in failing to monitor the level of amikacin, an antibiotic, in Wakefield's blood. Amikacin has ototoxic effects, and Wakefield suffered total loss of hearing as a result of toxic levels of the drug. The district court awarded Wakefield $735,000 for past mental anguish, future mental anguish, and physical impairment. On appeal, the Government concedes its liability, but it asserts first that the district court's factual findings regarding Wakefield's damages are clearly erroneous, and second, that the $735,000 award is excessive. Finding no error, the judgment of the district court is affirmed.

I. BACKGROUND

This case arises from the treatment provided Jules Wakefield at the Veterans Administration Medical Center (VAMC) in Houston, Texas, in April and May of 1981. Wakefield, an armed service veteran, suffered from chronic renal failure. In April 1981 Wakefield was admitted to the VAMC with a severe abdominal infection due to dialysis complications. Wakefield's physicians decided to treat the infection with the antibiotic amikacin. Amikacin has known ototoxic side effects, particularly for patients with impaired renal function. ¹

The district court found that the VAMC physicians failed to exercise due care in administering the antibiotic amikacin for treatment of Wakefield's infection because they allowed the drug to reach toxic levels which caused Wakefield's hearing loss. Tests indicate that Wakefield suffers from permanent and irreversible profound bilateral sensory-neural hearing loss. In addition Wakefield suffers from tinnitus--a constant ringing or buzzing sound in his ears. Testimony at trial also indicated that Wakefield suffered mental and pyschological changes as a result of his hearing loss.

The district court awarded Wakefield the following damages: (1) $135,000 for physical impairment, (2) $150,000 for past mental anguish, and (3) $450,000 for future mental anguish. The Government moved to amend the judgment asserting that the award was excessive. The district court denied that motion, and the Government filed a notice of appeal contesting only the amount awarded by the trial court.

The Government makes two arguments on appeal. First, the Government asserts that the factual findings of the district court regarding Wakefield's damages are clearly erroneous. Second, the Government asserts that the award is excessive and that this Court should reduce the award to a proper amount. This Court concludes that the district court's findings are not clearly erroneous and that the award, while plentiful, is not excessive.

II. THE DISTRICT COURT'S FINDINGS

In Ferrero v. United States, this Court stated the standard for review of factual determinations, including damages, in Federal Tort Claims Act cases:

In FTCA cases the clearly erroneous standard governs our review of factual determinations, including damages. Williams v. United States, 405 F.2d 234, 239 (5th Cir.1968); Fed.R.Civ.P. 52(a).... We judge a trial court's finding to be clearly erroneous when, after reviewing the entire evidence, we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 29 L.Ed. 746 (1948).

603 F.2d 510, 512 (5th Cir.1979). See Williams v. K & B Equipment Co., 724 F.2d 508, 510 (5th Cir.1984). After our review of the entire record in this case, this Court concludes that the district court's findings are not clearly erroneous.

The district court found that (1) the plaintiff's deafness is permanent and irreversible, (2) the plaintiff did not have any hearing impairment prior to entering the VAMC in April 1981, (3) plaintiff's hearing loss has affected his mental condition and caused physical impairment and pain and suffering, and (4) since his hearing loss, plaintiff has suffered from tinnitus. Record Vol. 1 at 35-36. In addition, the district court concluded that the plaintiff's life expectancy was ten years from the date of judgment. Id.

On appeal, the Government argues that the record does not contain sufficient evidence of Wakefield's condition before and after the injury so as to support a finding on damages. See Overton v. United States, 619 F.2d 1299, 1303 (8th Cir.1980). This Court disagrees. The evidence clearly establishes that Wakefield's hearing was not impaired before his treatment at the VAMC, but that he is presently totally and permanently deaf. The record also abundantly supports the district court's conclusion that Wakefield suffers from permanent tinnitus, a condition not present prior to his treatment with amikacin. The Government most strongly urges that the record is insufficient to support the finding that Wakefield's hearing loss has affected his mental condition and caused physical impairment, pain and suffering. However, the district court had before it the testimony of Wakefield, his wife, and a neighbor. This Court has carefully reviewed their testimony, and while it might not be said to be overwhelming, the evidence is fully sufficient to support the district court's findings. As such, the findings are not clearly erroneous.

The record also establishes that Wakefield is a different person mentally and emotionally than he was before his loss of hearing. Record Vol. 3 at 35, 37, 47. He is withdrawn, frightened, and avoids social activities. Record Vol. 3 at 36, 47; Plaintiff's Exhibit 1 at 5. Wakefield is "hard on his family." Significant indeed is the testimony that Wakefield appears to have lost his enjoyment of life. Record Vol. 3 at 35 37, 48. Importantly, Wakefield is completely and irreversibly deaf. Record Vol. 1 at 44. His hearing has been replaced by tinnitus, which is a constant ringing or buzzing noise in his ears. Wakefield's tinnitus is permanent and untreatable. It is worse when people attempt to talk to him, it gives him constant headaches, and it affects his sleep. Plaintiff's Exhibit 1 at 5-8. Consequently, the district court's finding that Wakefield's hearing loss has affected his mental condition, caused physical impairment, and pain and suffering is not clearly erroneous.

The Government attempts to point out contradictory testimony in the record that might tend to establish that Wakefield's condition is not as severe as the plaintiff's testimony would indicate. The presence of contradictory testimony in and of itself, however, does not render the district court's findings clearly erroneous. It is within the province of the district court, sitting without a jury, to make such credibility choices and weigh the evidence. Macpherson v. Texas Department of Water Resources, 734 F.2d 1103 (5th Cir.1984). This Court concludes that the record supports the district court's findings, and as such, those findings are not clearly erroneous. ²

III. EXCESSIVENESS OF THE AWARD

As noted, the district court awarded Wakefield $135,000 for physical impairment, $150,000 for past mental anguish, and $450,000 for future mental anguish. Given the district court's finding that Wakefield's life expectancy was ten years from the date of judgment, this award is plentiful indeed. While we note that the award is in the upper range that this Court might uphold in similar cases, we hold that the award was not excessive for the following reasons.

The components and measure of damages in FTCA cases are taken from the law of the state where the tort occurred. Ferrero, 603 F.2d at 512; Harden v. United States, 688 F.2d 1025, 1028-29 (5th Cir.1982). This case, therefore, is governed by Texas law. Under Texas law, damages in a case of this nature are limited to $735,000 by statute. See Tex.Rev.Civ.Stat.Ann. art. 4590i. It is somewhat unclear whether the rules governing the question of remittitur also should be those of the state involved or the federal law of remittitur. We need not decide this question at this time, however because the law of Texas regarding the excessiveness of awards is substantially the same as the law controlling in this Circuit. Compare Hansen v. Johns-Manville Products Corp., 734 F.2d 1036, 1046 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1749, 1750, 84 L.Ed.2d 814 (1985), with International Harvester Co. v. Zavala, 623 S.W.2d 699, 708 (Tex.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.).

Generally, "[w]e give a trial court great latitude in awarding damages," Hyde v. Chevron U.S.A., Inc., 697 F.2d 614, 632 (5th Cir.1983). Awards are reviewable, however, both for excessiveness and inadequacy. Id.; Hansen, 734 F.2d at 1046-47. In Caldarera v. Eastern Airlines, Inc., 705 F.2d 778 (5th Cir.1983), this Court stated this Circuit's test for the determination of whether an award is excessive:

The [trier of fact's] award is not to be disturbed unless it is entirely disproportionate to the injury sustained. We have expressed the extent of distortion that warrants intervention by requiring such awards to be so large as to "shock the judicial conscience," "so gross or inordinately large as to be contrary to right reason," so exaggerated as to indicate ...