Deborah Rutledge v. United States , 417 F. App'x 635 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEBORAH K. RUTLEDGE and No. 09-15198
THOMAS R. RUTLEDGE,
DC CV No. 06-008
Plaintiffs - Appellees,
v. MEMORANDUM *
UNITED STATES OF AMERICA,
Defendant - Appellant.
Appeal from the District Court of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Argued and Submitted February 15, 2011
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
The United States appeals from the district court’s judgment awarding
damages, after a bench trial, to plaintiffs on their personal injury/medical
malpractice claim under the Federal Tort Claims Act (“FTCA”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Guam law governs this
FTCA action. 28 U.S.C. §§ 1346(b)(1), 2674.
We review for clear error the district court’s factual findings, including its
findings on causation. Oberson v. U.S. Dep’t of Agric., 514 F.3d 989, 1000 (9th
Cir. 2008). We also review for clear error the district court’s damages
determination. Trevino v. United States, 804 F.2d 1512, 1514-15 (9th Cir. 1986).
1. The district court did not clearly err in finding causation. One of
plaintiffs’ experts, Dr. Steele, testified that Mrs. Rutledge would not have sustained
severe neurological injury but for the negligence of Air Force medical personnel.
Although government experts testified to the contrary, it was not clear error for the
district court to credit Dr. Steele’s testimony. See Prescod v. AMR, Inc., 383 F.3d
861, 869 (9th Cir. 2004). The government’s argument that no “reliable evidence”
showed that Mrs. Rutledge had Cauda Equina Syndrome (“CES”) at the time of her
visits to the Air Force clinic is semantic. Whether or not she had CES or a pre-
CES condition, the evidence supported the district court’s ultimate finding that
Mrs. Rutledge would not have sustained her severe injuries if Air Force medical
personnel had met the applicable standard of care.
2. Nor did the district court clearly err in its damages award. In light of
Mrs. Rutledge’s severe injuries, the award is not so excessive as to shock the sense
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of justice under Guam law. 20 Guam Code Ann. § 2281 (“Damages must, in all
cases, be reasonable . . . .”); see Yako v. United States, 891 F.2d 738, 745 (9th Cir.
1989) (“To determine whether an [FTCA] award is excessive, this court looks to
the relevant state’s [or territory’s] case law on excessive awards.”); Porter v.
Tupaz, 1984 WL 48854, at *5 (D. Guam App. Div. June 12, 1984) (“[A]n appellate
court may interpose its judgment as to the proper amount of damages for personal
injuries only when it appears that the recovery in the lower court was so excessive
as to shock the sense of justice and raise a presumption that the amount awarded
was arrived at as a result of passion and prejudice, rather than upon a fair and
honest consideration of the facts.”).
Although we might come to different conclusion had we been sitting in the
trial court, we cannot say that the award shocks the sense of justice. And there is
no indication on this record, nor does the government argue, that the amount of the
award was influenced by passion or prejudice.
AFFIRMED.
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