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Case 3:11-cv-02092-FAB-BJM Document 138 Filed 03/04/14 Page 1 of 9





et al.,


Civil No. 11-2092 (FAB)


BESOSA, District Judge.

Between August 19 and August 27, 2013, a trial alleging
medical malpractice pursuant to article 1802 of the Puerto Rico
Civil Code was held. Now before the Court are defendants’ motion
for judgment as a matter of law, (Docket No. 129), and plaintiffs’
motion for a new trial on damages, (Docket No. 128). For the
reasons discussed below, both motions are DENIED.

Defendants’ Motion for Judgment as a Matter of Law
At the close of plaintiffs’ evidence at trial, defendants
argued a motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(a). (Docket No. 107.) The Court
granted the motion in part, dismissing the cause of action as to
the matter of informed consent, but denied the motion regarding
defendants’ request to dismiss the medical malpractice cause of
action. (Docket Nos. 107 & 110.) Defendants renewed their motion
for judgment as a matter of law on August 26, 2013 before the case

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Civil No. 11-2092 (FAB)
was submitted to the jury. (Docket No. 113.) The Court denied
their motion, id., and on August 27, 2013, the jury returned a
verdict for plaintiffs. (Docket No. 119.) The jury found that
defendant Dr. Edgar Cardona-Traverzo was negligent in the
laceration of Mrs. Rosa Sanchez (“Mrs. Sanchez”)’s right portal
vein and awarded plaintiffs damages in the amount of $79,000.00.
Id. On September 26, 2013, defendants renewed their motion for
judgment as a matter of law pursuant to Rule 50(b), (Docket
No. 129), and plaintiffs responded on October 14, 2013, (Docket
No. 134).

In considering a Rule 50 motion, the Court must scrutinize the
evidence in the light most favorable to the nonmoving party.
Martinez-Serrano v. Quality Health Servs., 568 F.3d 278, 284 (1st
Cir. 2009). “[A] party seeking to overturn a jury verdict faces an
uphill battle, [and a court’s] review is weighted toward
preservation of the jury verdict . . . .” Monteagudo v. Asociacion
de Empleados del Estado Libre Asociado, 554 F.3d 164, 170 (1st Cir.
2009) (quotations citation omitted). “Courts may only grant a
judgment contravening a jury’s determination when the evidence
points so strongly and overwhelmingly in favor of the moving party
that no reasonable jury could have returned a verdict adverse to
that party.” Marcano Rivera v. Turabo Med. Ctr. P’ship., 415 F.3d
162, 167 (1st Cir. 2005) (citation omitted).

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Civil No. 11-2092 (FAB)

Defendants base their Rule 50(b) motion on plaintiffs’ alleged
failure to meet their burden of proof in the medical malpractice
claim. They aver that plaintiffs’ expert, Dr. Tomas Torres-
Delgado, did not testify as to the proper standard of care that
applied to Dr. Cardona in treating Mrs. Sanchez, and that instead
he merely presented testimony that he would have chosen to treat
the patient in a different manner. (Docket No. 129.) The Court
finds defendants’ arguments to be conclusory, however, because they
neither cite to nor submit any evidence in support of their motion.
In the spirit of United States v. Zannino, 895 F.2d 1 (1st Cir.
1990), the Court reminds parties that they have the obligation to
spell out and support their arguments, or forever hold their peace.
Defendants’ motion for judgment of law, (Docket No. 129), is DENIED
without prejudice. If defendants wish to resubmit the original
Rule 50 argument with proper support, including the transcript of
the expert’s testimony, they must do so by March 31, 2014.
II. Plaintiffs’ Motion for a New Trial on Damages

Plaintiffs classify the jury’s awards to each plaintiff, which
add up to $79,000, as “shocking awards that are against the clear
weight of the uncontroverted evidence, and fail to even begin to
compensate each plaintiff for their proven past, present, and
future suffering.” (Docket No. 128 at p. 2.) They claim that the
verdict should be set aside and that a new trial limited to the
issue of damages is warranted because there has been a “profound

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Civil No. 11-2092 (FAB)
miscarriage of justice.” Id. Unsurprisingly, defendants oppose
plaintiffs’ motion. (Docket No. 135.)

Federal Rule of Civil Procedure 59 allows the Court to grant
a new trial “on all or some of the issues” to any party. The First
Circuit Court of Appeals has explained:

[w]here, as here, an appellant contests the insufficiency
or excessiveness of a jury’s award of damages in a
personal injury case, he bears a particularly heavy
burden. As we have said: “Translating legal damage into
money damages — especially in cases which involve few
significant items of measurable economic loss — is a
matter peculiarly within a jury’s ken.” [Wagenmann v.
Adams, 829 F.2d 196, 215 (1st Cir. 1987).] For just this
reason, “we rarely will override the jury’s judgment on
the appropriate amount of damages to be awarded.” Brown
v. Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987).
The jury, as we see it, is free to run the whole gamut of
euphonious notes — to harmonize the verdict at the
highest or lowest points for which there is a sound
evidentiary predicate, or anywhere in between — so long
as the end result does not violate the conscience of the
court or strike such a dissonant chord that justice would
be denied were the judgment permitted to stand. See
Wagenmann, 829 F.2d at 215; Segal v. Gilbert Color Sys.,
746 F.2d 78, 80-81 (1st Cir. 1984); McDonald v. Fed.
Labs., 724 F.2d 243, 246 (1st Cir. 1984). In other
words, if — after scanning the evidence in the light most
congenial to the nonmovant, Wagenmann, 829 F.2d at 215
— the verdict does not exceed or fall below “any rational
appraisal or estimate of the damages that could be based
on the evidence before the jury,” Segal, 746 F.2d at 81
(citation omitted), it should be validated.

Milone v. Moceri Family, Inc., 847 F.2d 35, 37-38 (1st Cir. 1988).
Because “the paramount focus in reviewing a damage award must be
the evidence presented at trial,” Gutierrez-Rodriguez v. Cartagena,
882 F.2d 553, 579 (1st Cir. 1989), the Court turns to the record in
this case.

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Civil No. 11-2092 (FAB)

At trial, plaintiffs Juanita Casillas-Sanchez, Cleto Casillas-
Sanchez, Peter Casillas-Sanchez, Rosa Maria Casillas-Sanchez,
Roberto Richardson-Casillas, Rosa Esther Casillas-Sanchez, John
Casillas-Sanchez, and Paul Casillas-Sanchez testified as to their
own experiences and emotional states regarding the loss of their
mother and grandmother, Mrs. Sanchez, in 2009. (See Docket
Nos. 128-1 & 128-2.) Collectively, their testimony lasted for two
days, and described a “very close-knit family.” Id. Each heir
reminisced about his or her relationship with Mrs. Sanchez growing
up, testified as to the amount of time he or she had spent in
contact with Mrs. Sanchez from childhood up until her death in
2009, and described his or her feelings regarding the premature
loss of Mrs. Sanchez’s life. Id. Plaintiffs also admitted 24
photographs of themselves with Mrs. Sanchez to provide the jury
with evidence regarding their family dynamics. (See Docket
No. 104.)

Before the jury retired to the deliberation room, the Court
read the jury instructions, three of which focused on damages. The
Court first instructed the jury to consider damages only if
necessary: “If the plaintiffs have proven their claim against the
defendants by a preponderance of the evidence, you must determine
the damages to which the plaintiffs are entitled.” (Docket No. 114
at p. 24.) It then explained the concept of compensatory damages
at length:

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Civil No. 11-2092 (FAB)


If you find that the defendants are liable to the
plaintiffs, then you must determine an amount that is
fair compensation for all of the plaintiffs’ damages.
The purpose of compensatory damages is to make the
plaintiffs whole — that is, to compensate the plaintiffs
for the damage that they may have suffered or may suffer
in the future.
You may award compensatory damages only for the injuries
that the plaintiffs prove that were proximately caused by
the allegedly wrongful conduct of the defendants. The
damages that you award must be fair compensation for all
of the plaintiffs’ damages. You should not award
compensatory damages for speculative injuries, but only
for those injuries which the plaintiffs may have actually
suffered or may suffer in the future.
If you decide to award compensatory damages, you should
be guided by dispassionate common sense. Computing
damages may be difficult, but you must not let that
difficulty lead you to engage in arbitrary guesswork. On
the other hand, the law does not require that the
plaintiffs prove the amount of their losses with
mathematical precision, but only with as much
definiteness and accuracy as the circumstances permit.
You must use sound discretion in fixing an award of
damages, drawing reasonable inferences where you find
them appropriate in light of the evidence.

Id. at pp. 25–26. Finally, it addressed mental and moral
suffering: “Under Puerto Rico law, mental and moral suffering can
be compensated only if plaintiffs show that their emotional
condition has been substantially affected. A passing sadness or
affliction is not a sufficient basis on which to award damages for
mental or moral suffering. There is no exact standard for fixing
the compensation to be awarded on account of emotional and mental
suffering. Any such award should be fair and just in light of the

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Civil No. 11-2092 (FAB)
evidence presented.” Id. at p. 27. Neither the plaintiffs nor
defendants objected to those damages instructions.

A jury is at liberty to assess the testimony of each plaintiff
and determine his or her corresponding damages, and the verdict
form awarding different sums to different heirs in this case has a
foundation in the record. Paul, John, Cleto, Rosa Maria, Juanita,
and Peter Casillas-Sanchez, all of whom were children of
Mrs. Sanchez, received $9,000. (Docket No. 119 at p. 2.) The only
child who received a larger sum — $20,000 — was Rosa Esther
Casillas-Sanchez, and the only heir to receive less — $5,000 — was
Mrs. Sanchez’s grandson, Robert Richardson-Casillas. Id.
Construing the plaintiffs’ testimony in favor of the verdict, it is
reasonable to conclude that Rosa Esther received more than her
fellow siblings because she spoke to her mother every other day,
and she was the only child who flew to Puerto Rico to be with
Mrs. Sanchez for the entire gallbladder surgery and its aftermath
in 2009. (Docket No. 128-2 at pp. 10–14.) Similarly, one may
reasonably infer that Robert received less than Mrs. Sanchez’s
children because he was a grandchild who moved to Florida when he
was 8 years old and had only occasionally spoken to and/or visited
Mrs. Sanchez since he was young. (Docket No. 128-1 at pp. 50–52.)
It is clear that the jury considered each plaintiff’s damages
individually, awarded a distinct sum to each heir, and thus
rationally grounded its award on the record presented at trial.

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Civil No. 11-2092 (FAB)

That plaintiffs are unhappy with the jury’s numerical
calculation of damages does not mean that they are entitled to a
new trial on damages. “[C]onverting feelings such as pain,
suffering, and mental anguish into dollars is not an exact
science,” Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 29 (1st
Cir. 2010), and the jury enjoys significant freedom to assess those
non-economic damages based on the evidence presented at trial. A
Court need not set aside the verdict simply because the jury’s
award in this case is significantly less than awards issued in
other personal injury cases in this district. See Havinga v.
Crowley Towing & Transp. Co., 24 F.3d 1480, 1488 (1st Cir. 1994)
(citation omitted). The First Circuit Court of Appeals “cannot
imagine overturning a jury award that has substantial basis in the
evidence presented at trial merely because the amount of the award
is somewhat out of line with other cases of similar nature,”1
Gutierrez-Rodriguez, 882 F.2d at 579, and neither can this Court.
In light of the evidence presented at trial, the jury’s award does
not “cross the outer limit of the wide universe of acceptable


The Court does not find the cases cited by plaintiffs to be
persuasive, however, because they do not involve similar injuries,
similar trial dates and locations, or similar evidence. See
Gutierrez-Rodriguez, 882 F.2d at 579 (“Where there are a series of
similar cases arising out of the same context that are tried in the
same locale, such an examination may be of some use. The value of
any comparison will depend upon the similarities of the injuries,
the locations and dates of the trials, and of the evidence
presented therein.”) (citations omitted).

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Civil No. 12-2024 (FAB)
awards.” Mercado-Berrios, 611 F.3d at 29. Accordingly,
plaintiffs’ motion for a new trial, (Docket No. 128), is DENIED.
III. Conclusion

Defendants’ motion for judgment as a matter of law, (Docket
No. 129), is DENIED WITHOUT PREJUDICE. Plaintiffs’ motion for a
new trial on damages, (Docket No. 128), is DENIED.

San Juan, Puerto Rico, March 4, 2014.

s/ Francisco A. Besosa