
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1691                            JESSIE MEJIAS-QUIROS, ET AL.,                               Plaintiffs, Appellants,                                          v.                                MAXXAM PROPERTY CORP.,                                 Defendant, Appellee.                                 ____________________        No. 96-1759                            JESSIE MEJIAS-QUIROS, ET AL.,                                Plaintiffs, Appellees,                                          v.                                MAXXAM PROPERTY CORP.,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The  opinion of this Court,  issued on March  13, 1997, is amended        as follows:   On cover page, replace  "[Hon. Hector M.  Laffitte, U.S.                                                                          ____        District Judge]" with "[Hon. Justo Arenas, U.S. Magistrate Judge]".        ______________                             _____________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1691                            JESSIE MEJIAS-QUIROS, ET AL.,                               Plaintiffs, Appellants,                                          v.                                MAXXAM PROPERTY CORP.,                                 Defendant, Appellee.                                 ____________________        No. 96-1759                            JESSIE MEJIAS-QUIROS, ET AL.,                                Plaintiffs, Appellees,                                          v.                                MAXXAM PROPERTY CORP.,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [[Hon. Justo Arenas, U.S. Magistrate Judge]                                          _____________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Hector  F.  Oliveras-Delgado with  whom Dario  Rivera Carrasquillo            ____________________________            __________________________        and Pinto-Lugo & Rivera were on brief for defendant.            ___________________            Eric M.  Quetglas Jordan  with whom  Quetglas Law  Offices was  on            ________________________             _____________________        brief for plaintiffs.                                  ____________________                                    March 13, 1997                                 ____________________                 BOUDIN,  Circuit  Judge.    In  this  diversity  action,                          ______________            brought in the  district court, Jessie Mej as Quiros  and his            wife   sued  Maxxam   Property  Corporation   ("Maxxam")  for            negligence.   Mej as charged  that injuries that  he suffered            during  a  fight on  Maxxam's  resort  property were  due  to            Maxxam's failure  to provide adequate  security to  him as  a            guest.  The jury awarded Mej as and his wife separate damages            for  pain  and  suffering  and,  in  his  case,  for  medical            expenses.  Both sides have appealed.                 A  summary  of the  background  events,  largely not  in            dispute, is as follows.  At the time of the incident, Mej as,            then 24 years old, was vacationing at Maxxam's Palmas del Mar            resort, located in  Humacao, Puerto  Rico.  He  and his  wife            planned to stay for a week with several friends and relatives            at a villa in the Club  Cala pool complex area of the resort.            Around 11 p.m.,  on July 31, 1993,  Mej as went for  a stroll            around the  resort premises with  his wife's  brother-in-law,            Francis Cardona, and his teenage neighbor, Jorge Gonz lez.                 The  three men walked from the Club Cala area, across an            adjacent parking lot, to  a lawn located near the  Palmas Inn            Hotel and  Casino.  As  many as 150  youths were gathered  in            smaller groups on the  grass in front of the  hotel, drinking            and  talking.    There  were  apparently  no  hotel  security            officers in the immediate area.  Mej as, Cardona and Gonz lez            joined the  youths, sitting  on the grass  together, talking,                                         -2-                                         -2-            and looking around to see if they knew anyone  there.  Later,            Mej as noticed a young woman in a group nearby and encouraged            Gonz lez  to go over and  talk to her,  saying something like            "hecha, Jorge Tito," or "go for it, Jorge."              _____                 A  young  man sitting  with  the  girl whom  Mej as  had            noticed  heard his remark and challenged  it, standing up and            loudly  asking Mej as what was going on.  In response, Mej as            also got up, and  a scuffle ensued.   Mej as was hit  several            times  on  his head  and back  while  seeking only  to defend            himself.   Then,  the fight  was broken  up by  several other            youths,  and Mej as,  Cardona  and Gonz lez  left the  scene.            After  they  departed,  a  hotel security  guard  arrived  to            investigate,  but since  Mej as was gone,  the guard  took no            action beyond questioning the youths still on the lawn.                 Mej as and  his companions  walked back across  the Club            Cala parking  lot to  the pool complex  and sat down  on some            outdoor  stairs, about one  or two  minutes' walk  from their            villa.   The  time was  almost  1:00 a.m.   About  20 minutes            later,  eight to ten of the youths  from the group Mej as had            encountered  earlier approached from the parking lot.  One of            them kicked Cardona in the chest; he fell into the bushes and            then ran  in search of  help.   Then, the youths  beat Mej as            about his head, face and body, using a hard  blunt object for            at least one blow and ultimately knocking him unconscious.                                           -3-                                         -3-                 Mej as sustained  several cuts  and bruises on  his head            and  face, as  well as abrasions  on his knees.   He required            stitches for  cuts over his right  eye and in his  left upper            lip,  and has  been  left with  scars.   According  to  trial            testimony by Mej as and  medical experts, Mej as has suffered            continuing headaches,  mild depression, low  self-esteem, and            post-traumatic stress--all  as a result of  the encounter and            injuries  inflicted upon him.   Surgery would  be required to            minimize the scarring.                 Mej as  and  his  wife,  Zoribel  D az,  brought   suit,            charging  that  Maxxam  had  negligently  failed  to  provide            adequate  security.  The jury agreed.  It awarded Mej as pain            and  suffering damages  of $200,000  and medical  expenses of            $25,000, and awarded his wife $50,000 for pain and suffering.            Maxxam  moved for a new trial, asserting that the verdict was            contrary  to  the  evidence,  that  a  requested  comparative            negligence instruction  should have been given,  and that the            damages were excessive.  The trial court denied the motion.                 On appeal, Maxxam no  longer disputes the jury's finding            that  it was negligent, so the facts pertaining to this issue            have  not been developed.  It argues instead that a new trial            is  warranted  because  the   jury  should  have  received  a            comparative  negligence instruction and  because the award of            $25,000  for medical  expenses  was excessive.   By  a cross-            appeal,  Mej as asserts  that  under local  law the  district                                         -4-                                         -4-            court should have awarded  him attorney fees and pre-judgment            interest due to Maxxam's  alleged obstinacy in contesting the            complaint.                   We review  de novo the district court's  decision not to                            _______            give a comparative negligence  instruction.  Tatro v. Kervin,                                                         _____    ______            41 F.3d  9, 14  (1st Cir.  1994).  The  issue is  whether the            evidence--viewed in  the light most favorable  to Maxxam, the            party  requesting  the  instruction--would  have   allowed  a            rational  jury   to  find  Mej as   comparatively  negligent.            Sullivan v.  National Football League, 34  F.3d 1091, 1107-09            ________     ________________________            (1st  Cir.  1994), cert.  denied,  115  S.  Ct. 1252  (1995).                               _____________            Negligence,  comparative or  otherwise,  is  usually  a  jury            issue,  but  only  if  there  exists  evidence  from  which a            rational jury could find negligence in the case at hand.                   Maxxam  argues that  Mej as was  comparatively negligent            because  he should have foreseen  that his remark to Gonz lez            about the young  woman sitting  near them on  the lawn  would            provoke  a   violent  reaction   from   whatever  young   man            accompanied her.   Maxxam also points  to Mej as' failure  to            report  the first incident  to hotel security,  and it argues            that he invited further trouble by moving to the outdoor Club            Cala stairs instead of returning to his family's villa.                 Puerto Rico holds hotels to a stringent standard of care            with  respect to their guests; it  requires hotels to respond            to  various risks of harm with security measures, and it thus                                         -5-                                         -5-            effectively exposes the  hotels in  certain circumstances  to            liability for injuries inflicted  on guests by third parties.            See Coyne  v. Taber Partners  I, 53  F.3d 454, 458  (1st Cir.            ___ _____     _________________            1995).     But   Puerto  Rico   law  reduces   liability  for            "[c]oncurrent  imprudence   of  the  party  aggrieved."    31            L.P.R.A.   5141.  See Torrent v. Continental Ins. Co., 314 F.                              ___ _______    ____________________            Supp. 323, 325 (D.P.R. 1970).  Against this legal background,            we agree that the evidence of comparative  negligence was too            thin to require that the issue be submitted to a jury in this            case.                   Although  Mej as' comment may have been in bad taste, it            was a single  comment  to a friend, and not to a third party,            made  in  a  casual and  festive  atmosphere.    There is  no            indication  that  Mej as was  belligerent.    As for  Mej as'            decision not  to report the incident but  to move away to the            Club  Cala stairs,  one witness  testified that  these stairs            were  as much  as  one hundred  meters  away from  the  first            incident's location, and no  evidence suggests that they were            visible from the grass outside the hotel and casino.                 We  can  find  no  case,  and  Maxxam  has  cited  none,            suggesting  that Mej as'  behavior constitutes  negligence or            could be viewed in that light by a reasonable jury.  It might            not take  much more to  create a  jury issue:   an  offensive            remark directed  to the young  lady whom  Mej as had  noticed            could easily do;  and, depending on circumstances, so might a                                         -6-                                         -6-            refusal to leave the  immediate area after the scuffle.   But            what  occurred here  is just  too little  to impute  fault to            Mej as.  Compare Torrent, 314 F.  Supp. at 325 (guest knew of                     _______ _______            dangerous condition).                 Maxxam also appeals from  the district court's denial of            its motion for  a new trial  on the  ground that the  $25,000            medical damages  award was  excessive.   The federal rule  is            that  a  jury  verdict may  be  set  aside, and  a  new trial            granted, if the award  is excessive or against the  weight of            the evidence.1   An appeals court  reviews the trial  judge's            denial  of a new trial  for abuse of  discretion.  Gasperini,                                                               _________            116 S. Ct. at 2225.   We will overturn such a denial only  if            the damages awarded lack "a rational basis in evidence."  Air                                                                      ___            Safety, Inc. v. Roman Catholic  Archbishop of Boston, 94 F.3d            ____________    ____________________________________            1, 4 (1st Cir. 1996).                 This  latter standard accords considerable latitude both            to the jury's award and the trial judge's decision not to set            it aside.  The  general language ("rational basis") is  given            content  by cases  declaring  that the  verdict should  stand            unless it is "'grossly excessive,' 'inordinate,' 'shocking to            the conscience of the court,' or  'so high that it would be a                                            ____________________                 1See 11 C. Wright, et al., Federal Practice &  Procedure                  ___               ______  _____________________________               2807, at  78-79 (2d  ed.  1995).   If local  law placed  a            substantive  cap   on  medical  damages,  it  would  control,            Gasperini v. Center  for Humanities, Inc.,  116 S. Ct.  2211,            _________    ____________________________            2220-21 (1996),  but Puerto Rico  case law  suggests no  such            departure  from  ordinary  practice,  see,   e.g.,  Rodr guez                                                  ___    ____   _________            Gonz lez v. Ponce Cement Corp., 98 P.R.R. 196, 213 (1969).            ________    __________________                                         -7-                                         -7-            denial of justice to permit it to stand.'"   Segal v. Gilbert                                                         _____    _______            Color  Sys.,  Inc.,  746  F.2d  78,  80-81  (1st  Cir.  1984)            __________________            (citations omitted).  Nevertheless, there is an outer limit.                 Certainly, the jury could  find that Mej as would likely            incur  future  medical  expenses   (no  past  expenses   were            claimed).   Dr. Angel  Chinea, a neurologist,  explained that            Mej as  suffered  from   chronic  headaches,  dizziness   and            insomnia,  which  he   had  treated   with  painkillers   and            relaxants.   Dr. Fernando  Cabrera, a psychiatrist, testified            that Mej as  had chronic mild  depression and  post-traumatic            stress disorder.   Cabrera prescribed medication  including a            mild tranquilizer, and recommended future therapy.                 But neither  Chinea nor Cabrera offered  any evidence as            to  the future  cost  of treating  the  conditions that  they            described.    Dr.  Carlos  Portocarrero   provided  the  only            evidence   regarding  the  actual   cost  of  future  medical            treatment.    He  testified  that  reconstructive  surgery to            minimize  Mej as'  facial  scars,  which  resulted  from  the            incident, would cost  between $3,000 and  $4,000.  Thus,  the            only specific figures offered to the jury supported, at most,            an award of $4,000.                 Given  the  symptoms, any  projection of  future medical            expenses  beyond this  figure could  be only  a fairly  loose            estimate.   But  without  some figures  from  the doctors  or            others with useful knowledge, the jury was poorly equipped to                                         -8-                                         -8-            determine what  the medicines or therapy  sessions would cost            and how much  or many of each  might be required.   And it is            only these concrete expenses that are at issue; the suffering            itself  (e.g.,  from headaches  and  depression) was  covered                     ____            under the jury instructions by the much larger award for pain            and suffering.                 Deciding whether enough evidence  has been presented can            depend not only  on what  is offered but  on what  reasonably            could  be expected.   On  pain and suffering,  courts readily            tolerate  estimates by the jury based on a description of the            injury.  E.g.,  Williams v. Missouri Pac. R.R. Co.  , 11 F.3d                     ____   ________    ______________________            132, 135 (10th Cir. 1993); McCormick on Damages    88, at 318                                       ____________________            (1935).   But  the cost of  individual medicines  and medical            visits  can  easily be  provided  by  experts able  to  offer            informed forecasts beyond the ken of jurors.                   Accordingly, the  courts  have been  very  reluctant  to            allow damages for future medical  expenses in the absence  of            medical testimony  that  goes  beyond  mere  assertions  that            office  visits or medicines might  be needed.   E.g., Wood v.                                                            ____  ____            Day, 859 F.2d 1490, 1494 (D.C. Cir. 1988); Simeon v. T. Smith            ___                                        ______    ________            & Son,  Inc., 852 F.2d  1421, 1427-28 (5th  Cir. 1988).   The            ____________            Tenth Circuit  put the matter more generally  in Williams, by                                                             ________            saying:   "Unlike  general  damages for  pain and  suffering,            which are  not  susceptible  to  proof by  a  dollar  amount,            medical  expenses  and loss  of  earnings must  be  proved by                                         -9-                                         -9-            evidence demonstrating the reasonable value of those losses."            11 F.3d at 135.                 We think that the medical expense award in this case, to            the extent  it exceeded the $4,000 figure  given for surgery,            lacked  any rational basis.  There may be simple cases where,            out  of common experience, the jury  can make such estimates,            but  hardly here and in so large  an amount.  The doctors who            testified  here,  providing the  groundwork for  the handsome            award  for  pain  and suffering,  could  have  been  asked to            quantify  the future  costs  of medicine  and office  visits.            Doubtless, the jury  did the best it could  without evidence;            but the evidence should have been supplied.                  Although  the award  of medical  costs is  excessive, we            cannot  order  a  reduction  to  the  maximum  $4,000  figure            permitted by  the evidence.   This might appear  odd, because            trial judges  and  appellate courts  often  "decide"  factual            issues  otherwise left to  juries where the  evidence is such            that a reasonable jury  could decide the issue only  one way.            That  is what happens when  a judge directs  a verdict or--as            here--refuses to  instruct on  a defense for  which there  is            insufficient evidence.  But damages are different.                 The reason is the Supreme Court's reading of the Seventh            Amendment  provision that "no fact  tried by a  jury shall be            re-examined [in a federal court], than according to the rules            of the common  law."  Construing  this language, the  Supreme                                         -10-                                         -10-            Court has  held that a  jury verdict may  be set  aside where            "palpably and grossly inadequate or excessive" but that "both            parties  remain  entitled"  to  a jury  determination  as  to            damages by means of a new trial.  Dimick v. Schiedt, 293 U.S.                                              ______    _______            474,  486 (1935).   The  Court  then went  on  to temper  the            holding by reluctantly approving remittitur practice.  Id. at                                                                   ___            484-88.                 Remittitur  practice,  perhaps  not  altogether  easy to            square  with Dimick's literal  language about the entitlement                         ______            of "both parties," is also well established.  See Air Safety,                                                          ___ __________            94 F.3d  at 6; Wright, supra,    2820, at 216-17.   Here, the                                   _____            practice permits  us to  order the  district court  to afford            Mej as  a  reasonable  time  in  which  to  file  a   written            acceptance of a reduced award of $4,000 for medical expenses;            to deny a  new trial  if Mej as accepts  the remittitur;  and            otherwise  to vacate that portion of the judgment and order a            new trial thereon.                 Finally, Mej as claims that Maxxam acted obstinately and            that  he is therefore entitled  to an award  of attorney fees            and pre-judgment  interest under  P.R.R. Civ. P.  44.1(d) and            44.3(b).  Such an  award is allowed if the  trial court finds            that a litigant has  been "unreasonably adamant or stubbornly            litigious,  beyond the acceptable  demands of the litigation,            thereby  wasting time  and  causing the  court and  the other            litigants  unnecessary expense and delay."   De Leon Lopez v.                                                         _____________                                         -11-                                         -11-            Corporacion Insular de Seguros,  931 F.2d 116, 126  (1st Cir.            ______________________________            1991).                 For  obvious reasons,  a  trial court's  denial of  such            damages  is  rarely  upset.    Qui ones-Pacheco  v.  American                                           ________________      ________            Airlines, Inc., 979  F.2d 1, 7-8 (1st Cir. 1992).  Mej as has            ______________            offered  three   specific  instances  of   alleged  obstinate            conduct.  We have  examined each with some care  and conclude            that the conduct, largely  refusals to concede certain facts,            were either trivial (in  one case) or defensible (in  several            others).  Mej as' most far-reaching claim--that the hotel was            obstinate in denying its own negligence and in litigating the            issue--cannot have been seriously intended.                 The judgment of the district court is vacated insofar as                                                       _______            it awards $25,000  to Mej as for medical  costs and otherwise            affirmed, and  the matter is  remanded to the  district court            ________                      ________            for  a new  trial on  medical costs  unless Mej as  accepts a            remittitur reducing damages to $4,000 on this  element of his            damage claims.                 It is so ordered.                 ________________                                         -12-                                         -12-
