Steven Babitsky, Esq.
The United States District Court, D. Puerto Rico dealt with a motion to set aside or reduce a jury award of $12,966,000 for a child born with cerebral palsy due to medical negligence. The court upheld the verdict despite the lack of expert testimony on the issue of life expectancy.
The court stated:
With respect to the jury’s award for the cost of future care, plaintiff’s expert life care planner testified that the cost of plaintiff’s care would be $278,000 per year through age 18, and $379,000 per year thereafter for the remainder of the plaintiff’s life. If the jury accepted this testimony, then to arrive at its award of $12,996,000 for cost of future care, it must also have found that plaintiff, who was ten years old at trial, would live for approximately another 36 years.
Doctors argues such a finding as to life expectancy was overly speculative, noting that plaintiff presented no expert testimony as to life expectancy. While the life expectancy of a child with severe cerebral palsy likely would be a proper subject for expert testimony, see Arroyo v. United States, 2010 WL 1437925 at *2 (N.D. Ill Apr. 2, 2010), aff’d 656 F.3d 663 (7th Cir. 2011) (expert testified that plaintiff with cerebral palsy enjoyed a normal life expectancy given proper care and treatment), it is a separate question whether a jury may return a verdict without expert testimony as to life expectancy. Indeed, damages in a negligence action need not be shown with mathematical certainty. See Zambrana v. Hosp. Santo Asilo de Damas, 9 P.R. Offic. Trans. 687, 109 P.R. Dec. 517, 521 (1980); see also Suro v. E.L.A., 111 P.R. Dec. 456, 461 (1981) (“The determination of a person’s work-life expectancy is not subject to a rigid a priori formula.”). And courts in other jurisdictions have found that the jury or fact finder could properly determine life expectancy given evidence of plaintiff’s permanent medical condition and present pain and suffering. See Tabor v. Miller, 389 F.2d 645, 647 (3rd Cir. 1968); McKeown v. Woods Hole, 9 F. Supp. 2d 32, 49 (D. Mass. 1998). Here, while the far better practice would have been for both parties to present competent expert testimony of plaintiff’s life expectancy, the jury nevertheless heard substantial evidence as to plaintiff’s permanent medical condition and present sufferings. The jury heard testimony from D.A.L.R.’s mother that, because of his cerebral palsy, D.A.L.R. cannot walk, speak, sit by himself, feed himself, bathe himself, or dress himself. (Docket No. 129 at 124:6-10, 152:7-10). He suffers from convulsions two or three times a week, and he always wears diapers, requiring six to ten changes per day. Id. at 149:7-12, 151:15-21. He recognizes neither his mother nor his father, and he was dismissed from school because of lack of control and due to difficulties related to feeding. Id. at 124:6-10, 149:25-150:2. A life care planner, who consulted with D.A.L.R., his parents, and his doctors, testified that D.A.L.R. requires regular physical therapy, occupational therapy, speech therapy, and massage therapy, as well as routine appointments with a neurologist, pediatrician, and physiatrist. (Dkt. 142-3 at 17:19-25, 22:2-4). He also requires a wheelchair, bilateral ankle foot orthotics, a thoracic lumbar sacral orthotic, a power bed, lifts, slings, and a special mattress to avoid injury from immobility. Id. at 18:4-7, 19:1-4, 20:8-25. In other words, the jury heard testimony sufficient to inform, together with the jury’s “logic, common sense, personal knowledge, and experience,” a reasonable estimate as to life expectancy. Rios Ruiz v. Mark, 19 P.R. Offic. Trans. 862, 119 P.R. Dec. 816, 842 (1987). In addition to lack of expert testimony as to life expectancy, Doctors also points to other alleged inconsistencies and deficiencies in the life care planner’s testimony and methodology, most of which it argued to the jury, which apparently disagreed. As the finder of disputed facts in the case, the jury was within its bounds to do so.
I also do not find that the amounts awarded for both future care and pain and suffering were overly excessive or shock the conscience so as to warrant a new trial or remittitur. As mentioned above, the future care damages were supported by the testimony of plaintiff’s life care planner. As to pain and suffering, the jury heard testimony from the life care planner and plaintiff’s family regarding the extreme challenges and suffering plaintiff faces every day of his life and in nearly every aspect of his life. Though undoubtedly generous, neither award is “grossly excessive” or “exaggeratedly high.” See Suero-Algarin v. CMT Hospital HIMA San Pablo Caguas, 957 F.3d 30, 45 (1st Cir. 2020) (citing Santiago Montañez v. Fresenius Medical Care, 195 P.R. Dec. 476 (2016)).