### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 3071

Y ONG J UAN Z HAO

, on behalf of her minor son,

Plaintiff

‐ Appellee

,

v.

U NITED S TATES OF A MERICA

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:17

‐ cv

‐ 00454

‐ NJR

‐ GCS

— Nancy J. Rosenstengel

, Chief Judge

.

____________________

A RGUED J UNE 5, 2020

— D ECIDED J UNE 29, 2020

____________________

Before E ASTERBROOK

, H AMILTON

, and S CUDDER

, Circuit

Judges

.

H AMILTON

, Circuit Judge

. This is an appeal from a Federal

Tort Claims Act judgment in favor of the plainti ff

. When

plainti ff Yong Juan “Maggie” Zhao gave birth to her son “S.,”

he su ff ered an avoidable brachial plexus injury. The injury

has severely and permanently impaired the function of his

right arm. During her pregnancy and S.’s birth, Mrs. Zhao2 No. 19

‐ 3071

was a tt ended by an obstetrician employed by a federally sup

‐ ported grant clinic in southern Illinois. Because he is consid

‐

ered an employee of the United States Public Health Service

under 42 U.S.C. § 233(g), Mrs. Zhao sued the United States for

medical malpractice under the Federal Tort Claims Act. The

court found after trial that the obstetrician had been negligent

and awarded Mrs. Zhao, on behalf of S., $8.3 million. That

sum included $2.6 million in lost earnings and $5.5 million in

noneconomic damages.

On appeal, the United States does not contest liability or

damages awarded for past and future medical expenses. The

government appeals only the portions of the damages award

that are inherently di ffi cult to quantify. S. was not quite fi ve

years old at the time of trial. The United States argues fi rst that

the district court’s calculation of S.’s future lost earnings was

improperly speculative

, given the uncertainties inherent in

projecting a fi ve

‐ year

‐ old’s career opportunities. The question

may have been di ffi cult to answer, but we fi nd no reversible

error. The district court took a reasonable approach to esti

‐

mate the lost earnings award based on data provided in ex

‐

pert testimony. The United States also challenges the award

of noneconomic damages as arbitrary and excessive in com

‐ parison to similar cases. The district court could have pro

‐

vided a more detailed explanation of its comparative process,

but we can follow the court’s reasoning and fi nd no reversible

error in this portion of the judgment. We a ffi rm the judgment

of the district court.

I. Factual and Procedural Background

Because the United States’ liability for its physician

‐ em

‐ ployee’s malpractice is not disputed on appeal, we summa

‐

rize the facts pertaining to Mrs. Zhao’s pregnancy and S.’sNo. 19

‐ 3071 3

birth. S. is Mr. and Mrs. Zhao’s fourth son. Mrs. Zhao’s three

deliveries prior to S. were uncomplicated, but her second son,

A., was macrosomic (above the average weight range), weigh

‐ ing eleven pounds, twelve ounces at birth. During her labor

with A., Mrs. Zhao had to give birth in an unusual position,

with several doctors and nurses performing elaborate maneu

‐

vers to deliver the baby safely.

Mrs. Zhao’s obstetrician for her pregnancy with S. was Dr.

Paul Cruz. He had not been involved in the prenatal care or

delivery of Mrs. Zhao’s fi rst three children, but the record

shows that at her fi rst prenatal visit, Dr. Cruz was aware of

A.’s high birth weight and of Mrs. Zhao’s desire for a Cesar

‐

ean section. Mrs. Zhao testi fi ed that she described the maneu

‐

vers necessary during A.’s delivery, but that neither Dr. Cruz

nor his sta ff asked follow

‐ up questions, either about A.’s de

‐ livery or about any particulars of any of Mrs. Zhao’s prior

pregnancies and deliveries. Dr. Cruz did not request or re

‐

view any of Mrs. Zhao’s medical records from other providers

or facilities. This information was of particular importance be

‐

cause macrosomia tends to recur. And women who have had

prior di ffi cult labors due to macrosomia are more likely to

have complications in subsequent deliveries.

Macrosomia is particularly dangerous because it greatly

increases the risk of shoulder dystocia, in which the baby’s

head has been delivered but the shoulders are stuck in the

birth canal. Shoulder dystocia is considered a medical emer

‐

gency during delivery. It can lead to severe nerve damage and

even cut o ff the oxygen supply to the baby’s brain. The risk of

shoulder dystocia increases as the macrosomic baby’s weight

increases. That makes it critical for an obstetrician to screen

for the condition and to manage it skillfully.4 No. 19

‐ 3071

Dr. Cruz knew that Mrs. Zhao was at high risk for macro

‐

somia and a complicated delivery, and the evidence con

‐

vinced the court that he bungled the management of her preg

‐

nancy and delivery. For example, he used a method of esti

‐ mating fetal weight that he had learned from his department

chairperson during his residency. That method is not recog

‐

nized in the medical profession and has never been published

or validated in any way. Using this method, Dr. Cruz esti

‐

mated that S.’s birth weight would be eight pounds, one

ounce, plus or minus one pound. That estimate turned out to

be wrong by more than three pounds. Dr. Cruz did not use

any other, accepted methods of estimating birth weight, nor

did he order any ultrasounds, as is indicated by medical au

‐

thorities for suspected macrosomia. Mrs. Zhao testi fi ed that

she repeatedly requested a Cesarean section, which would

prevent shoulder dystocia entirely. Dr. Cruz testi fi ed that he

did not recall—or chart—these conversations and that Mrs.

Zhao instead told him she wanted to avoid surgery so she

could return to work more quickly.

Mrs. Zhao had a prolonged and di ffi cult labor with S. She

testi fi ed that she again requested a Cesarean section after be

‐ coming too exhausted to continue, but Dr. Cruz told her it was

too late. Dr. Cruz, on the other hand, testi fi ed that he o ff ered

her a Cesarean section after she began struggling to push. Dr.

Cruz and Mrs. Zhao decided to go ahead with vacuum extrac

‐

tion instead. As a result of the vacuum extraction, S.’s head

was delivered, but his shoulders became stuck. Dr. Cruz and

the nursing sta ff performed a variety of maneuvers to a tt empt

to deliver S., but none of them worked. Dr. Cruz may have

used too much traction in his a tt empts to deliver S.’s shoul

‐

ders, contributing to the boy’s injury. Ultimately, another ob

‐

stetrician was able to deliver S. after nine minutes of dystocia.No. 19

‐ 3071 5

Even two or three minutes is cause for signi fi cant concern. S.

weighed eleven pounds, six ounces at birth. He was blue and

not breathing, and his heart was not beating. He spent several

weeks in a neonatal intensive care unit and has required sig

‐

ni fi cant follow

‐ up treatment ever since.

S.’s neurologist con fi rmed shortly after birth that he had

su ff ered a brachial plexus injury. In such injuries, the nerves

to the shoulder, arm, and hand are mechanically injured at the

point where they exit the spinal cord. In S.’s case, the nerves

of his right arm had been completely torn away from his spi

‐

nal cord. They had also been stretched and scarred. Several

surgeries have restored a degree of function, but S.’s physi

‐

cians expect those improvements to plateau in the near future.

Experts testi fi ed at trial that S.’s injuries are permanent

and will require further surgeries and ongoing occupational

and physical therapy for the rest of his life. He will be unable

to use his right arm and hand to engage normally in most of

the activities of daily living, including such mundane activi

‐

ties as scratching his head, twisting doorknobs, and typing.

All activities requiring the coordination of both hands will be

di ffi cult. S.’s right arm will always be visibly smaller, shorter,

and weaker than his left, and these discrepancies will only

grow as S. does. S. is already aware of his disability, and there

is evidence that he experiences signi fi cant emotional distress

in addition to his physical limitations.

Mrs. Zhao fi led this medical malpractice suit after ex

‐ hausting her administrative remedies by submi tt ing an ad

‐

ministrative tort claim to the United States Department of

Health and Human Services. See Zurba v. United States

, 318

F.3d 736, 738 (7th Cir. 2003) (describing administrative ex

‐

haustion requirement of 28 U.S.C. § 2675). The district court’s6 No. 19

‐ 3071

jurisdiction was proper under the Federal Tort Claims Act, 28

U.S.C. §§ 1346(b)(1) and 2674.

The district court properly applied Illinois law under 28

U.S.C. § 1346(b)(1). United States v. Muniz

, 374 U.S. 150, 153

(1963). The Zhaos are residents of Marion, Illinois, and the

clinic and hospital where Mrs. Zhao received treatment were

both in southern Illinois. The court found that Dr. Cruz had

deviated from the standard of care in numerous respects both

during her pregnancy and during labor and delivery. The

court awarded Mrs. Zhao, on behalf of S., approximately $8.3

million in damages: $64,967.77 for past medical expenses,

$80,000 for future medical expenses, $2,653,000 in lost earn

‐ ings, $1,500,000 for the permanent dis fi gurement of his right

arm, $2,000,000 for the deprivation of a normal life, and

$2,000,000 for pain, su ff ering, and emotional distress.

The United States appealed, and we have jurisdiction un

‐

der 28 U.S.C. § 1291. The government challenges the award of

$2,653,000 in lost earnings and the aggregate of $5.5 million in

noneconomic damages (comprising the awards of $1.5 million

for dis fi gurement, $2 million for the deprivation of a normal

life, and $2 million for pain, su ff ering, and emotional dis

‐

tress).

II. Analysis

A. Standard of Review

Our review of damage awards under the Federal Tort

Claims Act is deferential. “We review a district court’s dam

‐

ages methodology de novo, but we review the application of

that methodology for abuse of discretion.” Clanton v. United

States

, 943 F.3d 319, 325 (7th Cir. 2019), citing Kreg Therapeu

‐

tics, Inc. v. VitalGo, Inc.

, 919 F.3d 405, 419 (7th Cir. 2019); seeNo. 19

‐ 3071 7

also Doe v. United States

, 976 F.2d 1071, 1083 (7th Cir. 1992)

(“We cannot overturn the district court’s damage award un

‐

less its factual basis is clearly erroneous. Our task is limited to

inquiring whether the trial court abused its discretion; it is not

to consider whether we personally would have made the

same award.”) (citations omi tt ed).

The government has not directly challenged the district

court’s choice of method. The government argues in e ff ect

that any method of calculating lost earnings damages would

be improper because S.’s future career path is inherently un

‐

certain. That argument challenges the district court’s choice

of method (insofar as it rejects the application of any method),

but the argument is contrary to Illinois law, which allows such

awards of lost future earnings if the permanence of the injury

a ff ecting the plainti ff ’s future earning capacity be proven to a

reasonable certainty. Brown v. Chicago & N.W. Transp. Co.

, 516

N.E.2d 320, 328–29 (Ill. App. 1987); accord, Doering v. Janssen

,

394 N.E.2d 721, 723 (Ill. App. 1979). The government also

more narrowly challenges the speci fi c fi gures that formed the

basis of the district court’s lost earnings calculation. On this

challenge, we review the district court’s fi ndings of fact un

‐ derlying the damage awards for clear error, and we review

the court’s application of its chosen method for abuse of dis

‐

cretion.

B

. Lost Earnings

In estimating future lost earnings for S. as a result of his

injury, the district court had to engage in the di ffi cult but un

‐

avoidable task of predicting a fi ve

‐ year

‐ old’s future. After

hearing testimony from both parties’ experts, the district

judge selected two salary fi gures from among those o ff ered

by the experts, reasonably representing S.’s earning potential8 No. 19

‐ 3071

with and without his injury. Using those fi gures, the court

awarded him the di ff erence, multiplied by the number of

years he is statistically expected to be in the workforce. The

district court did not abuse its discretion in choosing the fi g

‐

ures it did.

Mrs. Zhao’s vocational expert, David Gibson, provided a

number of estimates of S.’s lost earning capacity based on dif

‐

ferent levels of education he might a tt ain. The district court

focused most closely on the fi gures Gibson provided assum

‐ ing that S. would a tt ain a high school diploma. Without the

injury, Gibson estimated S.’s average annual earnings at

$40,761; with the injury, $35,839. Gibson concluded that S.’s

injury would cause him to lose $916,793 in lifetime earning

capacity with a high school diploma, $1,043,076 with an asso

‐

ciate’s degree, and $1,581,779 with a bachelor of arts or science

degree. Note that Gibson’s estimate of lost earnings from the

physical injury rose with higher levels of education.

The government’s vocational expert, Susan Entenberg,

took a di ff erent approach. Taking into account S.’s normal

cognitive functioning, she opined that he would likely be able

to perform many sedentary, light, or knowledge

‐ oriented jobs

without any impact on his earning capacity. Entenberg did

concede that certain occupations requiring manual labor or

physical strength and dexterity in both arms would be largely

unavailable to S. Assuming that S. obtains only a high school

diploma, she testi fi ed that without the injury, he could in the

‐

ory have made around $100,000 per year in a skilled union

operating or engineering trade, but with the injury, he would

likely be limited to unskilled occupations paying $20,000–

30,000 annually, such as a cashier or payroll clerk. Nonethe

‐No. 19

‐ 3071 9

less, Entenberg concluded that given the numerous non

‐ man

‐

ual jobs available in the labor market, S.’s overall earning ca

‐ pacity would not be a ff ected by the permanent injury to his

shoulder and arm.

The district court found by a preponderance of the evi

‐

dence that S.’s injury would a ff ect his earning capacity. The

court then had to fi nd a way of estimating those lost earnings.

The court chose to take the di ff erence between the two num

‐

bers Entenberg provided assuming that S. does not pursue

post

‐ secondary education—$100,000 for the skilled trade jobs

that are now unavailable to him, and $30,000 for the unskilled

jobs that remain available—and multiply it by the number of

years Gibson estimated that S. would be in the workforce,

37.9. (Entenberg did not provide an estimate of S.’s worklife

expectancy.) $70,000 per year, multiplied by 37.9 years, is

$2,653,000, the fi gure that the district court awarded in dam

‐

ages for lost earning capacity.

The government argues on appeal that the selection of any

two speci fi c numbers representing S.’s earning potential with

and without the injury is “inherently arbitrary,” saying that

the district court “could just as easily have selected any of the

multitude of other possible jobs and arrived at a radically dif

‐

ferent damages fi gure.” The point only highlights the prob

‐

lem of deciding once and for all, when the victim of the neg

‐ ligence is only fi ve years old, on a number to provide fair com

‐ pensation. That di ffi culty does not justify an award of zero,

which the government proposed to the district court. Based

on the expert testimony o ff ered by the parties, the district

judge chose two common job categories that S. reasonably

might be expected to a tt ain assuming an average level of ed

‐

ucation. The judge used salary fi gures for those job categories10 No. 19

‐ 3071

o ff ered by the experts themselves, rooted in statistical evi

‐

dence about typical wages for those types of jobs in the na

‐

tional economy.

In so doing, the district court properly applied Illinois law.

Like any other category of actual damages, lost earnings dam

‐

ages require “reasonably certain proof.” Brown

, 516 N.E.2d at

327–28. Illinois law requires primarily that the permanence of

the injury itself be proved to reasonable certainty, but it recog

‐

nizes the inherent but unavoidable uncertainty in any calcu

‐

lation of lost earnings, especially for such a young victim who

su ff ered injury at birth. See id. at 328–29; accord Doering

, 394

N.E.2d at 723. The district court’s fi nding that S.’s injury

would persist throughout his life, a question of fact, was well

supported by extensive expert medical testimony. And the

district court relied on reasonable fi gures to estimate the im

‐

pact of that permanent injury on his earnings. The govern

‐

ment has not o ff ered, and we cannot think of, a more reliable

and precise way to estimate the future earnings of a fi ve

‐ year

‐

old. And on this record, with substantial expert testimony ad

‐ dressing the problem, the alternative would itself have been

an abuse of discretion— fi nding that S.’s injury is permanent

and would reduce his earning capacity, but then refusing to

award any damages whatsoever because the district court

could not predict the future with greater certainty.

C

. Noneconomic Damages

The district court awarded Mrs. Zhao, on behalf of S., sev

‐

eral di ff erent types of noneconomic damages: $1.5 million for

dis fi gurement, $2 million for the deprivation of a normal life,

and $2 million for pain, su ff ering, and emotional distress. The

government challenges these portions of the award, arguing

that they are out of proportion to the comparator cases theNo. 19

‐ 3071 11

court considered and to additional comparator cases the court

did not consider. To be sure, the district court’s reasoning

could have been more precisely articulated. Even so, we do

not think the award was an abuse of discretion. Category by

category, it was comparable to similar cases.

The district court structured its analysis by fi rst summa

‐ rizing the factual basis for granting damages in each category.

The court described S.’s dis fi gurement, the ways in which he

has been and will be deprived of a normal life, and the evi

‐

dence showing his present and anticipated future pain, suf

‐ fering, and emotional distress. The court referred to expert

testimony, record evidence, testimony o ff ered by the Zhaos,

and its own observations of S.’s arm and demeanor. We fi nd

no clear error in the district court’s careful fi ndings of fact

supporting each category of damage award.

To our astonishment, the government argued before the

district court that S. was not dis fi gured, would not need fur

‐

ther medical care, and su ff ered no pain or emotional distress

from his injury. The government even argued that S. would

not experience the loss of a normal life because his injury oc

‐

curred at birth so that he would know no alternative. On our

review of the record, the government’s argument is unrealis

‐

tic and entirely unsupported, further increasing our con fi

‐

dence that the district court did not err. The record shows that

even at his young age, S. already understands to some degree

what his life might have been like if he had not been injured:

Mrs. Zhao testi fi ed that on several occasions, S. has become

distressed when he sees other children engaging in physical

activities that he cannot join. He has told his mother that he

wants an arm like his brother’s.12 No. 19

‐ 3071

Both juries and judges face challenges in pu tt ing dollar fi g

‐

ures on categories of noneconomic—but real—damages. We

have encouraged district judges awarding noneconomic dam

‐

ages under the Federal Tort Claims Act to compare the cases

they are deciding to other similar cases. Arpin v. United States

,

521 F.3d 769, 776 (7th Cir. 2008). The district court summa

‐

rized the comparator cases it considered. The court correctly

declined to use as comparators cases that were resolved by

agreed se tt lements. A se tt lement is a compromise in which

both sides reduce the risk that the fi nal outcome will not be in

their favor. Se tt lements cannot be usefully compared to cases

tried to verdict, at least without factoring in the risk that the

plainti ff in the comparator case would have lost entirely,

which is likely to be a di ffi cult estimate based on publicly

available information. See, e.g., E.E.O.C. v. Hiram Walker &

Sons, Inc.

, 768 F.2d 884, 889 (7th Cir. 1985) (“The essence of

se tt lement is compromise. Each side gains the bene fi t of im

‐

mediate resolution of the litigation and some measure of vin

‐

dication for its position while forgoing the opportunity to

achieve an unmitigated victory.”). The district court also did

not rely heavily on verdicts that did not provide much detail

on the nature and implications of the plainti ff ’s brachial

plexus injury.

The district court focused its analysis on Skonieczny v.

Gardner

, No. 98L4578, 2001 WL 36512978 (Ill. Cir. May 29,

2001), describing the case as “remarkably similar” to this one.

Like S. in this case, the Skonieczny plainti ff had an older sibling

who had a di ffi cult delivery; the doctor did not take proper

measures to estimate the baby’s size; the doctor unwisely pur

‐

sued a vacuum extraction during labor; and the plainti ff suf

‐

fered four nerve root avulsions leading to a horri fi c brachialNo. 19

‐ 3071 13

plexus injury. (An avulsion is where the nerve root is com

‐ pletely torn away from the spine.) The jury in Skonieczny

awarded the plainti ff $13.298 million, including approxi

‐ mately $225,000 for lost future earnings, $4,000,000 for dis fi g

‐

urement, $5,000,000 for disability, and $3,000,000 for pain and

su ff ering.

The government argues on appeal that Skonieczny is so dis

‐ tinguishable as to be irrelevant: that plainti ff had four nerve

root avulsions, rather than S.’s one, and his resulting brachial

plexus injury was considered “severe” rather than “moder

‐

ate.” But we see no issue with using Skonieczny as the primary

comparator given that the damages the district court awarded

to S. were proportionately reduced. S. received $1.5 million

for dis fi gurement compared to $4 million in Skonieczny ; $2

million for the deprivation of a normal life compared to $5

million for disability; and $2 million rather than $3 million for

pain, su ff ering, and emotional distress. For S.’s injury, which

is similar but somewhat less severe, these adjustments seem

reasonable, particularly given our deferential review and the

di ffi culty of fi nding exact dollar amounts for such aspects of

the injury.

The district court also considered a number of other re

‐ ported cases with brachial plexus injuries, with verdicts rang

‐ ing from $1.28 million to $61 million. (The district court rea

‐ sonably declined to view the la tt er case as truly comparable

because that plainti ff also su ff ered permanent cognitive im

‐ pairment as a result of the dystocia.) Many of the cases with

lower total awards did not provide enough information about

the nature of the injury and its e ff ects for the district court

here to draw much guidance from the other courts’ conclu

‐

sions. We do not view a $5.5 million noneconomic damages14 No. 19

‐ 3071

award as obviously out of line with the numerous compara

‐

tors the district court considered. Nor has the government put

forth other cases that are more relevant comparators.

We have observed that “when the trier of fact is a judge,

[she] should be required as part of [her] Rule 52(a) obligation

to set forth in [her] opinion the damages awards that [she]

considered comparable.” Ju tz i

‐ Johnson v. United States

, 263

F.3d 753, 759 (7th Cir. 2001). The district court did that here.

The total damages award is supported by the record and in

line with the court’s fi ndings of fact. We have explained that

“the judge must indicate the reasoning process that connects

the evidence to the conclusion.” Id. at 758; see also Arpin

, 521

F.3d at 776. That process could have been explained more

fully here, but we fi nd no abuse of discretion or error. The dis

‐

trict judge laid out the information that provided the founda

‐

tion for her award, and we can follow her reasoning su ffi‐

ciently to say the damage award was within reasonable

bounds.

As we explained above, our standard of review in Federal

Tort Claims Act damages appeals is deferential. Applying

such deferential review, we have upheld some seemingly low

damages awards against the government. See, e.g., Davis v.

United States

, 375 F.3d 590 (7th Cir. 2004); Doe v. United States

,

976 F.2d 1071 (7th Cir. 1992). In this case, it is clear that S. will

su ff er lifelong e ff ects from this serious and entirely avoidable

injury. The award here may have been toward the upper

bounds of a reasonable award, but our job on appeal is not to

decide the amount we would award if we had presided over

the trial. The district court reached a reasonable decision

given the unavoidable di ffi culty of deciding at one momentNo. 19

‐ 3071 15

in time an amount to provide fair compensation over a life

‐

time for a now

‐ fi ve

‐ year

‐ old boy’s permanent and life

‐ alter

‐ ing birth injury. The government’s arguments that he should

receive no compensation beyond medical expenses were dis

‐ appointing and not persuasive.

The judgment of the district court is AFFIRMED.