
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2024                               AWILDA VILLARINI-GARCIA,                                 Plaintiff, Appellee,                                          v.                            HOSPITAL DEL MAESTRO, ET AL.,                                Defendants, Appellees.                                      __________                               MARIO J. TOMASINI, DR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                        [Hon. James L. Watson,* Senior Judge]                                                ____________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Raul  Davila-Rivera and  Alberto O.  Jimenez  with whom  Bauza and            ___________________      ___________________             _________        Davila were on briefs for appellant.        ______            Kevin G. Little with whom Law Offices of David Efron was on  brief            _______________           __________________________        for appellee.                                 ____________________                                    April 24, 1997                                 ____________________                                    ____________________        *Of the Court of International Trade, sitting by designation.                 BOUDIN, Circuit  Judge.   Dr. Mario J.  Tomasini appeals                         ______________            from an adverse judgment against him for medical malpractice.            Dr. Tomasini makes several claims of error, only one of which            requires extended discussion.   On that claim, which presents            a difficult question concerning  offsets to damage awards, we            conclude that a deduction is required in this case to account            for payment already received  in settlement by the plaintiff,            Awilda  Villarini-Garcia,  from  the  hospital for  the  same            injury.                 This  case  began with  an  operation  performed by  Dr.            Tomasini  in September 1986 at Hospital del Maestro in Puerto            Rico.  During the operation, Dr. Tomasini removed a birthmark            or  mole from Villarini's back, and a piece of muscle tissue.            In her later complaint against Dr. Tomasini and the hospital,            Villarini charged the doctor  with negligence in removing the            muscle  tissue,  causing  her  continuing  pain and  severely            impairing her career as a concert pianist.                 Villarini did not file  her complaint against the doctor            and hospital until June 1990, well after Puerto Rico's normal            one year  statute  of  limitations.    31  L.P.R.A.     5298.            Villarini  argued that  the statute  was tolled  under Puerto            Rico's discovery rule until she acquired sufficient knowledge            of the basis of her claim.  The district  court dismissed the            case on summary judgment  for failure to meet the  statute of            limitations, and Villarini appealed.                                         -2-                                         -2-                 This  court  affirmed  the  dismissal  as  to  three  of            Villarini's  four claims of negligence but reversed as to one            claim.  Villarini  v. Hospital  del Maestro, 8  F.3d 81  (1st                    _________     _____________________            Cir.  1993).    On that  last  claim,  we  said that  summary            judgment was  improper and  that it was  likely to be  a jury            question  whether  Villarini  had  exercised  sufficient  due            diligence  to give her the  protection of the discovery rule.            Following  remand,  the hospital  settled with  Villarini for            $50,000,  and  the  case   proceeded  to  trial  against  Dr.            Tomasini.                 At  the end  of the  trial,  the jury  awarded Villarini            $100,000 for physical and mental damage and $500,000 for loss            of earnings.   Among other post-trial  requests, Dr. Tomasini            sought a deduction from the judgment of $50,000, representing            the amount that  the hospital  had paid in  settlement.   The            district court refused.   This appeal  followed.  On  appeal,            Dr.  Tomasini makes six claims  of error, the  last one being            the denial of the deduction.                 Four  of  the  claims   relate  to  sufficiency  of  the            evidence:     Dr.  Tomasini   says  that  the   evidence  was            insufficient  to allow  Villarini  to escape  the statute  of            limitations,  or  to   establish  malpractice,  or  to   show            causation, or to support  the amount awarded.  A  fifth claim            is  directed  at  testimony   of  an  agent,  who  represents            musicians, offered  by Villarini to support  her claimed loss                                         -3-                                         -3-            of  income;  Dr.  Tomasini  says  that the  witness  was  not            qualified and lacked an adequate basis for his testimony.                  The  challenges  to   the  evidence--as  to  timeliness,            negligence,  causation,  and damages--are  legitimate issues;            but having  considered the  evidence described in  the briefs            and set forth in the record, we think that the jury's verdict            is  not  irrational  on any  of  these  issues  and that  the            district  court acted  within its  discretion in  holding the            expert to  be qualified and his  opinion adequately grounded.            There is nothing about  these fact-bound issues that warrants            discussion in a published opinion.                 The  one  issue  that  does require  discussion  is  Dr.            Tomasini's  final argument  that  the  $600,000 jury  verdict            should be reduced by $50,000  to reflect the amount Villarini            received  in  settlement from  his  former  co-defendant, the            Hospital  del Maestro.  After  the jury rendered its verdict,            Dr.  Tomasini filed  a timely  motion under  Fed. R.  Civ. P.            59(e) to amend the judgment to deduct the $50,000 settlement,            and the district court denied the motion.                   The court based its denial on the fact that the hospital            was  not  "jointly" liable  for  the  injury along  with  Dr.            Tomasini;  rather it  was  sued only  on vicarious  liability            grounds.  See 31 L.P.R.A.   5142.  Villarini presses the same                      ___            objection  on  appeal.    Implicit in  the  district  court's            ruling, and  explicit in Villarini's argument,  is the notion                                         -4-                                         -4-            that there is no  right to offset an earlier  settlement made            by a  co-defendant where  the remaining co-defendant  did not            have  a  right  of  contribution  against  the  settling  co-            defendant.1   This presents a legal issue that we consider de                                                                       __            novo,  and  conclude that  the  linkage  of contribution  and            ____            offset has no sound basis.                 In almost all jurisdictions,  settlement payments to the            plaintiff from one  of several  joint tortfeasors--those  who            actively  contributed to the same injury--reduce any judgment            later   secured   against   the  nonsettling   tortfeasor(s).            McDermott v. AmClyde,  511 U.S.  202, 208 (1994).   The  only            _________    _______            debate is  whether this reduction  is to be made  by a simple            dollar-for-dollar   offset  or  through  a  more  complicated            proportional liability formula.  Id. at 208-17.  See 6 Minzer                                             ___             ___            et al., Damages in Tort Actions   51.25[1] (1966).            ______  _______________________                 Conversely, the  usual rule is that  a plaintiff's award            will  not be reduced  for payments or  benefits received from            sources  independent   of  those   who  wronged  him.     See                                                                      ___            Restatement (Second) of Torts    920A(2) (1991); Robertson v.            _____________________________                    _________            White,  81 F.3d 752, 758  (8th Cir. 1996).   This "collateral            _____            source" rule allows  a plaintiff to receive  payments such as            charitable  donations  and  payments  from  his  own  insurer                                            ____________________                 1For  obvious  reasons,  under   Puerto  Rico  law,   as            elsewhere, the active tortfeasor has no right of contribution            against  another whose  liability  to the  victim is  at best            vicarious.  See  FDIC v. Consolidated Mortgage, 805  F.2d 14,                        ___  ____    _____________________            19 (1st Cir. 1986).                                         -5-                                         -5-            without  losing the ability to recover the full amount of his            loss from the wrongdoer or wrongdoers.                 A few courts have  refused to offset payments made  by a            settling co-defendant  who turned out later not  to be liable            as a joint tortfeasor with  the nonsettling defendant.  E.g.,                                                                    ____            Medical Center of Delaware v. Mullins, 637 A.2d 6, 9-10 (Del.            __________________________    _______            1994); Collier  v. Eagle-Picher  Indus., Inc., 585  A.2d 256,                   _______     __________________________            265-67 (Md. App. 1991).   The rationale of these  holdings is            that  since the  primarily liable  defendant would  have been            obligated to pay  the entire  damage amount  if the  settling            party had never  been sued  (or did not  settle), the  former            should not reap the benefit of a fortuitous settlement by the            latter.  Mullins, 637 A.2d at 10.                       _______                 The so-called "modern rule" expressed in the Restatement                                                              ___________            (Second) of Torts is very much to the contrary:  it says that            _________________            any payment "made in compensation of a claim for a harm" will            reduce the liability of the remaining defendants, "whether or            not  the person making the  payment is liable  to the injured            person."  Id.   885(3) and comment (f).  See also Restatement                      ___                            ________ ___________            (Second) of Judgments   50(2) (1982).  Many cases express the            _____________________            right  of  offset  in  the  same  unqualified  terms  as  the            Restatement (although  not all  happen to involve  a settling            ___________            co-defendant who  is vicariously liable).2   So, too,  does a                                            ____________________                 2See Husky  Refining Co. v.  Barnes, 119  F.2d 715,  716                  ___ ___________________     ______            (9th Cir. 1941); Lafayette v. County of Los Angeles, 208 Cal.                             _________    _____________________            Rptr.  668, 672-73 (Cal. Ct.  App. 1984); Harriss v. Elliott,                                                      _______    _______                                         -6-                                         -6-            lucid discussion  in the leading text,  together with reasons            for  the Restatement rule.  Keeton et al., Prosser and Keeton                     ___________               ______  __________________            on Torts   49, at 335-36 (5th ed. 1984).              ________                 Puerto Rico law is  controlling in this case and  if the            Puerto Rico courts had spoken  to the precise question before            us, their expressed view would be followed here.  But no such            ruling has been cited to us, and we can find none on our own.            In  such  situations  we  may  refer  to  common  law  rules.            Fireman's Fund Am. Ins.  Co. v. Almacenes Miramar, Inc.,  649            ____________________________    _______________________            F.2d 21, 25 &  n.3 (1st Cir. 1981); Futurama  Import Corp. v.                                                ______________________            Trans Caribbean Airways, 104  D.P.R. 609, 4 O.T.S.C.P.R. 854,            _______________________            861-62 (1976).   Perhaps  more importantly,  we do  know that            Puerto Rico  has disallowed  double recoveries in  a somewhat            analogous context,  expressing a general hostility  to double            recovery.                 In a set of cases, the Supreme Court of Puerto Rico held            that  a  plaintiff's  tort  recovery  against  a non-employer            defendant  must  be  reduced  by  any  workers'  compensation            payments that the plaintiff had already  received from, or on            behalf  of, his employer.   See Robles v.  Superior Court, 85                                        ___ ______     ______________                                            ____________________            565  N.E.2d 1041, 1044-45  (Ill. App.  Ct. 1991);  Mulinix v.                                                               _______            Saydel Consol.  Sch. Dist., 376 N.W.2d 109,  110-11 (Iowa Ct.            __________________________            App. 1985); Steger v. Egyud, 149 A.2d 762, 767-68 (Md. 1959);                        ______    _____            Midway  Nat'l Bank v. Estate of Bollmeier, 504 N.W.2d 59, 65-            __________________    ___________________            66 (Minn. Ct. App.  1993); Kirby v. New Mexico  State Highway                                       _____    _________________________            Dep't,  643 P.2d 256, 259-260  (N.M. Ct. App.  1982); Mead v.            _____                                                 ____            Bloom,  464  N.Y.S.2d  904,  904-05 (N.Y.  App.  Div.  1983);            _____            Bellamy v. Prime, 270 N.Y.S.2d 93, 94 (N.Y. App. Div. 1966).                       _____                                         -7-                                         -7-            P.R.R. 640, 647 (1962);  Sanabria v. White Star Bus  Line, 50                                     ________    ____________________            P.R.R. 722, 725 (1936);  Machado v. The American R.R.  Co. of                                     _______    _________________________            P.R.,  49 P.R.R. 823, 831-32  (1936).  The  Robles court said            ____                                        ______            that  these cases were "inspired on the principle that no one            should  or may  unjustly enrich  himself by  receiving double            compensation for the same accident."  85 P.R.R. at 647.                 The  collateral source  rule,  also  followed in  Puerto            Rico,  Futurama,  4 O.T.S.C.P.R.  at  857-60,  obviously does                   ________            permit double  recovery in certain situations; but it does so            primarily where  the extra  benefit comes from  insurance for            which  the plaintiff could  easily have paid  or from private            generosity  aimed  at benefiting  the  victim  rather than  a            wrongdoer.   Payments from prospective co-defendants, whether            vicariously  or jointly  liable, are  clearly of  a different            character.    See Restatement  (Second)  of  Judgments    50,                          ___ ____________________________________            comment (e) (1982).                 Absent good reason--and none is suggested to  us--courts            are  loath  to  promote  double recoveries.    See  generally                                                           ______________            Torres-Troche v. Municipality of  Yauco, 873 F.2d 499, 501-02            _____________    ______________________            (1st  Cir. 1989).  Even more troubling, without an offset the            primary  tortfeasor  could  easily  be  made  to  pay  twice:            ordinarily,  a  vicariously liable  master who  settled would            have an  independent  claim for  indemnification against  the            careless  servant.    See  31 L.P.R.A.     5143;  Restatement                                  ___                         ___________            (Second) of Agency   401 and comment (d) (1958).            __________________                                         -8-                                         -8-                 Here,  we  are  told that  the  hospital  not only  paid            $50,000  to Villarini but purported to transfer its claim for            indemnification to  Villarini; and Villarini told  us at oral            argument that no further suit on the indemnification claim is            now  possible.    Even   so,  no  apparent  justification  is            suggested here for double  recovery by the victim.   The jury            assessed  total  injury at  $600,000  and  until Puerto  Rico            instructs otherwise,  we see  no reason why  Villarini should            enjoy compensation of $650,000 from the former co-defendants.                 Accordingly, we  remand the case to  the district court,            direct that  the judgment be reduced  by $50,000 representing            the amount paid in settlement  by the hospital, and otherwise            affirm the judgment.                 It is so ordered.                 _________________                                         -9-                                         -9-
