* Of the District of Puerto Rico, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 99-2143

JOSE ALICEA PONCE, ET AL.,

Plaintiffs, Appellants,

v.

ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,

and García-Gregory,* District Judge.

José Luis Ubarri-García, with whom Herbert W. Brown III and

Brown & Ubarri were on brief, for appellants.

José A. Iguina de la Rosa, with whom Martinez-Texidor &

Fuster were on brief, for appellee.
January 17, 2001
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LYNCH, Circuit Judge. On September 4, 1993, plaintiff

Wanda Sánchez gave birth to her daughter Natalie at defendant

Ashford Presbyterian Community Hospital. The delivery was

difficult; after the attending physician applied considerable

traction, Natalie emerged, but with an injury resulting in

partial paralysis of her left arm. This medical malpractice

suit followed, brought under diversity jurisdiction by Ms.

Sánchez, Natalie, and Ms. Sánchez's husband, José Alicea Ponce.

The suit was originally brought against the physicians who had

cared for Ms. Sánchez during her pregnancy, including the one

who delivered Natalie. Subsequently, Ashford was joined as a

defendant. Plaintiffs settled with the physicians for $400,000,

but continued their case against Ashford. After trial by jury,

Ashford was found to be fifty-percent liable for plaintiffs'

damages, which were assessed at, again, $400,000 (although the

jury had not been informed of the settlement). The trial judge

threw out the verdict for want of sufficient evidence. This

appeal ensued. We hold that, even if the verdict against

Ashford were supported by sufficient evidence, it constitutes an

impermissible double-recovery given plaintiff's prior settlement

with the physicians. We therefore affirm without having to

reach the issue of sufficiency of the evidence or related issues

plaintiffs raise.
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I.

We summarize the facts in the light most favorable

to the plaintiff. Andrade v. Jamestown Hous. Auth., 82 F.3d

1179, 1186 (1st Cir. 1996).

Ms. Sánchez became pregnant in 1993. Having

delivered a previous child by Caesarian section, she sought

pre-natal care at Centro Gineco-Obstétrico; the center

specialized in natural childbirth after a Caesarian section. 

Her treating physicians there included Dr. Héctor Rosario, Dr.

María Román, Dr. Carlos Roure, and Dr. José Santiago.

On September 3, 1993, a week before her due date,

Ms. Sánchez was examined by Dr. Roure, who determined that Ms.

Sánchez's pregnancy was causing her to suffer hypertension and

that she should be hospitalized. Since Ms. Sánchez was so

close to her due date, her doctors decided to induce labor the

next day.

Labor was induced the morning of September 4, 1993. 

Dr. Rosario was the attending physician; also present at

various times were several nurses, including Nurse Elsie

Oliveras. After several hours of contractions, the baby's

head emerged, but then retracted -- an indication (called the
2 This condition is termed "shoulder dystocia."

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"turtle sign") that the baby's shoulder was stuck.2 In

response, Dr. Rosario instructed Nurse Oliveras to push Ms.

Sánchez's legs toward her head (putting her in the "McRoberts

position") and then to apply suprapubic pressure, so as to

rotate and free the baby's shoulder.

Nurse Oliveras seemed confused over how to execute

these maneuvers. After she attempted to put Ms. Sánchez in

the McRoberts position, Dr. Rosario told her in an urgent tone

that she was performing the maneuver incorrectly and directed

her to do it the right way. Then, after being told to apply

suprapubic pressure, Nurse Oliveras repeatedly asked "How, how

do I do this?"

At this point, Dr. Rosario sought outside help. He

left the room for a minute or so and returned with another

doctor. The other doctor applied suprapubic pressure, and

soon after baby Natalie was delivered. It later became

apparent that as a result of the traumatic delivery, Natalie

had suffered an injury to her "brachial plexus" -- a net of

nerves connecting the spinal cord with the arm; due to the

injury, she is unable to lift her left arm past 30 degrees. 

The specific cause of the injury, crediting plaintiffs'

evidence, was probably excessive traction by Dr. Rosario
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during delivery, i.e., excessive pulling that overly strained

the nerves near the baby's neck.

On May 18, 1995, plaintiffs brought suit against

Drs. Rosario, Román, Roure, and Santiago of the Centro GinecoObstétrico. The crux of the claim was that the doctors were

negligent in providing care to Ms. Sánchez by failing to

advise her that, due to her having diabetes, she bore a high

risk of a complicated natural childbirth, and that a Caesarian

section was the safer alternative.

Subsequently, plaintiffs amended their complaint to

include Ashford as a defendant. Plaintiffs claimed that

Ashford was negligent in failing to provide qualified nursing

staff during the delivery, as evidenced by Nurse Oliveras's

confusion over how to perform the maneuvers ordered by Dr.

Rosario. As developed at trial, plaintiffs' theory was that

because of Nurse Oliveras's confusion, Dr. Rosario was forced

to seek outside help, using up precious time. (After a doctor

sees the turtle sign, he or she has less than ten minutes to

deliver the baby; any longer risks brain damage or death by

suffocation.) Due to the resulting time pressure, plaintiffs

claimed, Dr. Rosario hurried the remainder of the delivery

and, in his rush, applied the excessive traction that caused

Natalie's injury.
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On September 28, 1998, plaintiffs settled with the

physician defendants for $400,000. The physicians remained

parties in the case, however, as the subjects of a cross-claim

by Ashford. After trial, by way of a special verdict form,

the jury found both Ashford and the physicians negligent,

attributing half the liability for Natalie's injury to Ashford

and half to the physicians. The jury assessed plaintiffs'

total damages to be $400,000; Ashford's resulting liability

was $200,000.

Subsequently Ashford moved to set aside the verdict

for insufficient evidence. The trial judge granted the

motion, finding there was no evidence that Ashford's nurses

were undertrained, nor evidence that the nurses in any way

contributed to Natalie's injury. See Ponce v. Ashford

Presbyterian Community Hosp., 189 F.R.D. 31 (D. P.R. 1999). 

Plaintiffs now appeal. 

II.

Plaintiffs' appeal is essentially three-pronged. 

They argue: first, that there was sufficient evidence to

support the jury's finding that Ashford was negligent; second,

that there was not sufficient evidence to support the jury's

finding that the physicians were negligent; and third, that

the trial judge committed various errors that led the jury to
3 Other arguments raised by plaintiffs we ignore because

they were premised on the case being remanded.

1 Ashford timely raised the double recovery issue at trial,

although the district court did not address it in its written

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underestimate plaintiffs' damages.3 They ask this court to

reverse the trial court's decision to vacate the verdict

against Ashford, to enter judgment as a matter of law on

Ashford's cross-claim against the physicians, and to remand

for a partial new trial limited to the question of damages.

The third prong of plaintiffs' appeal is crucial to

their case. Even if plaintiffs were correct that there was

sufficient evidence to find Ashford negligent but insufficient

evidence to find the physicians negligent -- leaving Ashford

100% liable for plaintiffs' damages -- plaintiffs' victory

would be a hollow one. The resulting award against Ashford

would be $400,000; yet plaintiffs have already recovered

precisely this amount in settlement from the physicians. 

Since Puerto Rico (like most jurisdictions) prohibits double

recovery in this context, plaintiffs would net exactly zero. 

Villarini-Garcia v. Hospital Del Maestro, 112 F.3d 5, 7 (1st

Cir. 1997). Thus, in order to prevail, plaintiffs must show

that the jury was erroneously led to underestimate damages, so

as to reopen the possibility of winning an award on remand

exceeding their settlement.1
opinion. Ashford also properly preserved the double recovery

issue on appeal.

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We see no prejudicial error underlying the jury's

damages assessment, however. Plaintiffs allege three such

errors, which we address seriatim. First, they take issue

with the following jury instruction: 

Ashford may not be found liable for any damages

which may have been caused by the negligent acts or

omissions of the treating physicians. Plaintiffs

may only recover damages against Ashford if they

establish . . . that the injury suffered by baby

Natalie Alicea Sánchez was proximately caused by

Ashford's negligent acts or omissions.

Plaintiffs argue that the instruction misled the jury to

believe that it was supposed to assess only that portion of

plaintiffs' damages attributable to Ashford, rather than

plaintiffs' total damages; had the jury properly understood

the latter as its task, it would have reached a figure of

$800,000, rather than fifty percent of that.

However, plaintiffs did not object to the

instruction on this ground at trial; to the contrary,

plaintiffs suggested the very language used in the instruction

and agreed that the instruction "should be clear that Ashford

is liable for its own negligence exclusively." Having waived

the claim, Ashford is entitled to review only for plain error,
2 Plaintiffs did object to the special verdict form, but

only to the portion addressing liability, not the portion

addressing damages. Specifically, plaintiffs objected that

there was insufficient evidence to find the physicians

negligent, so the verdict form should not ask the jury to

apportion liability among the doctors and the hospital.

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Drohan v. Vaughn, 176 F.3d 17, 21 (1st Cir. 1999), and we find

none. 

The gist of the instruction was simply that Ashford

could not be held vicariously liable for the acts of the

defendant physicians. Unlike in the case plaintiffs rely on,

Murray v. Ross-Dove Co., 72 F.3d 1 (1st Cir. 1995), the

instruction here did not specifically state -- or even suggest

-- that in measuring damages (as opposed to determining

liability) the jury was to consider only damages attributable

to Ashford. Cf. id. at 2. Moreover, the special verdict form

-- which most immediately guided the jury's deliberations --

gave no indication that the jury was to apportion damages on

its own. The form did ask the jury to apportion liability as

between the defendants; but as to damages, the form simply

asked the jury to determine "what amount of damages"

plaintiffs had suffered, without limiting the question to

those damages attributable to Ashford.2 We thus see no error

-- plain or otherwise -- in the guidance given the jury on

this point.
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Plaintiffs next allege error in a separate

instruction directing that the jury "should consider the

economic realities of Puerto Rico" in calculating Natalie's

lost earning capacity. At trial, the question of what the

basis for that calculation should be was controverted. 

Plaintiffs' damages expert based his calculation on national

statistics that did not include data from Puerto Rico, on the

ground that since Natalie was a child, one could not predict

where she would reside in her working adult life. Ashford

argued that this ground was purely speculative and that an

accurate assessment of Natalie's lost earning capacity had to

reflect the dramatic differences in economic prospects between

stateside residents and residents of Puerto Rico. The judge

agreed with Ashford, but declined to strike the expert's

testimony, as requested by Ashford; instead, as a curative

instruction, the judge told the jury to consider, in its

assessment of lost earning capacity, Puerto Rico's particular

economic circumstances -- its unemployment rate, the

participation of women in its work force, and so on.

Plaintiffs did object to this instruction at trial,

so we review de novo to determine if the instruction misled

the jury with respect to applicable law. Tatro v. Kervin, 41

F.3d 9, 14 (1st Cir. 1994). The instruction was not
3 There was no specific evidence to suggest that Natalie

would spend her working life somewhere else than Puerto Rico.

Natalie and her family did move to Massachusetts for a period

around 1995; but the stay was for the purpose of obtaining

better medical treatment for Natalie. After Natalie's treatment

concluded, the family returned to Puerto Rico where they

currently reside.

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misleading. While Puerto Rico has not ruled specifically on

whether a minor's lost earning potential is to be assessed

according to local economic statistics, it has ruled generally

that such assessment is to rest on the most concrete,

individualized data available; unbounded speculation is

frowned upon. Ruiz Santiago v. Puerto Rico, 116 P.R. Offic.

Trans. 376, 393-94 (P.R. 1985). The judge's instruction

aligned with this dictate; the instruction properly directed

the jury to look to the economic data most specifically

applicable to the case.3 Importantly, this directive was a

soft one: the judge did not instruct the jury that it had to

rely exclusively on Puerto Rico data, or that it was forbidden

from relying in any way on the national data provided by

plaintiffs' expert; he merely instructed the jury that it

"should consider" local economic conditions. So benign an

instruction leaves plaintiffs little ground for complaint.

Finally, plaintiffs allege prejudicial error in the

accidental submission of two exhibits to the jury. The

exhibits consisted of an extrajudicial claim letter sent by
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Ms. Sánchez to Dr. Rosario a year after Natalie's delivery and

a reply letter sent by Dr. Rosario's counsel. The letters

were marked as exhibits for the purpose of adjudicating a

statute of limitations issue. However, the judge specifically

directed the court clerk not to submit the letters to the

jury, in accordance with the court's prior ruling under

Federal Rule of Evidence 408 that the jury should not be made

aware that plaintiffs had already settled a claim against the

physicians. Notwithstanding, the court clerk by her own

admission accidentally sent the letters to the deliberation

room along with all other trial exhibits.

Obviously, sending the two letters to the jury room

was a mistake; but we do not think it rose to the level of a

prejudicial error. Ms. Sánchez's claim letter indicated

merely that plaintiffs' first move in this dispute was to seek

compensation from Dr. Rosario, whom, the letter said, was

entirely responsible for the injury; in response, the letter

from Dr. Rosario's counsel vehemently denied liability, urged

Ms. Sánchez to drop her claim, and threatened countersuit if

she did not. Taken together, the letters gave no indication

that the two parties ever arrived at a settlement; indeed, it

is not even clear from the letters whether plaintiffs

proceeded any further with their claim against Dr. Rosario. 
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Thus, while keeping the letters from the jury certainly would

have accorded with the trial court's general ruling not to

allow in evidence of a prior settlement, by themselves the

letters were uninformative on this point. For the letters to

have resulted in prejudice (assuming that the jury actually

viewed them), they would have to have led the jury to

hypothesize that a settlement had occurred, to speculate as to

its amount, and to subtract that amount from plaintiffs'

damages despite not having been instructed to do so. There is

no reason to believe that the jury digressed down this path --

especially given the considerable sum at which the jury

assessed plaintiffs' damages. Cf. Phav v. Trueblood, 915 F.2d

764, 768 (1st Cir. 1990) (considering parsimonious jury award

as one indicator of tainted deliberations).

For these reasons, we find no error in the jury's

computation of damages. Left as it stands, the jury's award

is redundant with plaintiffs' prior settlement and hence

constitutes an impermissible double-recovery. Accordingly, we

affirm the district court's decision to dismiss the case.

So ordered. Each side to bear its own costs.