United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3753

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Jose Luis Gonzalez, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas. 

United States of America, *

*

Appellant. *

___________

Submitted: September 22, 2011

Filed: June 18, 2012

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Before RILEY, Chief Judge, COLLOTON, and GRUENDER, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Jose Luis Gonzalez filed suit under the Federal Tort Claims Act, 28 U.S.C.

§§ 2671-2680, alleging that employees of the United States negligently caused

significant delay in the proper treatment of leg injuries that he suffered while an

inmate at the Federal Correctional Institution in Forrest City, Arkansas. After a twoday bench trial, the district court found the government liable and awarded 1

compensatory damages of $813,000. On appeal, the government argues that the

The Honorable Susan Webber Wright, United States District Judge for the

1

Eastern District of Arkansas. 
amount of damages is excessive. Under the deferential standard of review that

applies to an award of damages in a bench trial, we affirm.

I. 

On July 28, 2004, Gonzalez suffered an injury to his left leg and ankle in a

prison-sanctioned softball game when another player slid into second base and struck

Gonzalez. The next morning, Gonzalez self-reported to the prison’s Health Services

Department for medical treatment of his ankle and leg. Nurse G. Toliver told

Gonzalez that “walk-ins” were not allowed and instructed him to return the next day. 

When Gonzalez returned on the morning of July 30, Nurse Toliver told him that he

could not be treated and that he must make an appointment for August 2, 2004.

Gonzalez returned to the Health Services Department on August 3, 2004, and

Physician’s Assistant Yvette Toro examined him. According to Toro’s notes,

Gonzalez complained of pain in his left ankle “due to [a] sports injury” and assessed

his pain level at a “6,” noting that the pain is “worse at night.” Toro requested x-rays

of Gonzalez’s left knee and ankle and gave him Motrin or Ibuprofen. Gonzalez

requested crutches or a wheelchair, but the department did not provide them. 

Gonzalez also saw Dr. J. Edna Prince, the department’s Clinical Director. While

Gonzalez and Dr. Prince offered differing accounts of this meeting, Dr. Prince did not

give Gonzalez a wheelchair or crutches or additional pain medication.

On August 17, 2004, Gonzalez returned to the Health Services Department for

x-rays. A technician, however, attempted to perform an x-ray of Gonzalez’s chest,

because Toro’s treatment order mistook Gonzalez for a similarly-named former

inmate with a malady of the chest. Upon discovering the error, the technician told

Gonzalez that he would have to reschedule the x-ray of his leg.

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On August 26, 2004, the Health Services Department performed an x-ray of

Gonzalez’s leg, which revealed fractures of his fibula and ankle. After discovering

the seriousness of Gonzalez’s injury, Dr. Prince sent him to a local hospital where he

was fitted with a supportive walking boot.

The next morning, Dr. Prince ordered Gonzalez to a hospital in Memphis,

Tennessee, where a doctor performed surgery on Gonzalez’s left leg and ankle. The

operation—an “open reduction and internalfixation ofmedial malleolar fracture with

closed treatment of proximalfibular fracture”—required the placement oftwo screws

in Gonzalez’s left ankle. With his ankle in a cast, Gonzalez returned to the prison that

night. Upon his return, prison officials placed Gonzalez in a Special Holding Unit. 

Gonzalez referred to this unit as the “hole” or “punishment cell,” and claimed that he

suffered serious pain without adequate medical care. Dr. Prince, however, stated that

the SHU was the appropriate place for Gonzalez until he was mobile.

After three to four weeks in a cast, and another four in a walking boot,

Gonzalez was able to place weight on his ankle. The Bureau of Prisons later

transferred Gonzalez to another institution and released him from custody on

November 14, 2008. Gonzalez was then repatriated to Mexico.

Gonzalez filed suit under the Federal Tort Claims Act, alleging that the Health

Services Department and its staff breached duties of care owed to Gonzalez by

refusing medical treatment and causing unreasonable delay in the diagnosis and repair

of his injury. Gonzalez alleged that the delay in treatment caused him “undue and

unnecessary pain and suffering.” He demanded $3,000,000 in compensatory

damages. The demand for damages sought “at least $10,000 per day” for pain

experienced from July 28 through August 3, 2004, and “at least $5,000 per day” for

pain suffered from August 3 through August 26, 2004. For August 27 through

August 30, 2004, the period immediately after surgery, Gonzalez demanded $20,000

per day. He sought $2000 per month for the rest of his lifetime, due to permanent

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disability and arthritic pain. Gonzalez also demanded $2,170,000 to compensate for

“mental anguish” suffered between August 2, 2004, and the trial in 2010, a larger

proportion of which presumably occurred during the span in August 2004 when

Gonzalez was denied treatment and “despaired of ever being treated.” Pl.’s Demand

for Damages under the Federal Tort Claims Act, at 6.

At a bench trial, the district court heard testimony from Gonzalez’s expert

witness, Dr. James Keever, a licensed orthopedic surgeon. Dr. Keever gave his

opinion, based on a reasonable medical probability, that Gonzalez has developed

permanent post-traumatic arthritis of the ankle. According to Dr. Keever, this

condition was caused by the delay in treatment and will worsen with time.

The district court found that the government breached its duty of care by failing

to treat Gonzalez’s ankle in the four weeks prior to the taking of x-rays. The court, 2

relying on Dr. Keever’s testimony, also found that Gonzalez “suffered a continuing

injury following his surgery on August 27, 2004 that was proximately caused by the

[government’s] gross negligence.” Regarding Gonzalez’s pain and suffering, the

district court observed:

[Gonzalez] states that he experiences pain on a constant basis and that

his left ankle will not support his normal day-to-day activities. He states

he can’t perform his work as a mechanic or a contractor because both

jobs require prolonged standing, which he is unable to do. [Gonzalez]

states that he walks in pain and sleeps in pain, that he can no longer

Prior to trial, the government admitted that it breached the applicable standard 2

of care by failing to obtain an x-ray of Gonzalez’s ankle between August 3, 2004 and

August 26, 2004. The district court, however, found that the breach began on the

morning of July 29, 2004, when Gonzalez first reported to the Health Services

Department, and ended on the afternoon of August 26, 2004, when x-rays were taken. 

The court found that Gonzalez failed to prove that the government breached the

standard of care during his post-surgery care.

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participate in athletics, and that the left ankle doesn’t have the same

mobility asthe right ankle. For example, [Gonzalez] statesthat when he

stumbles he is unable to recover since the ankle doesn’t respond with the

same reflexes as his other ankle and he thus falls down, and he states

that while he can go up a ladder the problem is going down as the left

foot doesn’t support his body weight. [Gonzalez] states the ankle is

swollen and that he has to keep moving his foot forwards and backwards

so that something will release from the pain. He states he can’t walk

that much and that he cannot carry anything due to the pain, and that

when he kneels down he struggles to get up because of the ankle.

The district court awarded Gonzalez $813,000 in compensatory damages. The

award consisted of $285,000 for Gonzalez’s pain and suffering and mental anguish

suffered from the morning of July 29, 2004 until x-rays were taken on August 26,

2004, and $528,000 for the “pain and suffering and mental anguish reasonably certain

to be experienced” for the remainder of Gonzalez’s expected life, which the court

determined to be 22 years.

II.

The government’s sole argument on appeal is that the amount of damages is

excessive. The appeal does not challenge the sufficiency of the evidence to support

the district court’s finding of proximate causation, and the government does not

dispute the procedural adequacy of the district court’s findings of fact on liability or

damages. We are asked only to set aside the district court’s chosen award of

$813,000.

This court has recognized that while “the amount of damages entered in a nonjury case is a finding of fact and therefore subject to the ‘clearly erroneous’ standard

of review set forth in Fed. R. Civ. P. 52(a), any application of that general standard

must take account of the special circumstances in which that kind of factual finding

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is rendered.” Overton v. United States, 619 F.2d 1299, 1304 (8th Cir. 1980). This

court has “long subscribed to the view” that excessiveness of an award

is basically, and should be, a matter for the trial court which has had the

benefit of hearing the testimony and of observing the demeanor of the

witnesses and which knows the community and its standards; that this

is a responsibility which, for better working of the judicial process and

for other seemingly obvious reasons, is best placed upon its shoulders;

and that we shall continue to consider review, as we have said before,

not routinely and in every case, but only in those rare situations where

we are pressed to conclude that there is “plain injustice” or a

“monstrous” or “shocking” result. 

Id. (quoting Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir.

1961)). This has been the law for decades, yet neither Congress nor the State of

Arkansas has seen fit to establish guidelines or limits on awards for pain and

suffering in this context. 

The “special circumstances” and “obvious reasons” counseling in favor of this

deferential review include the fact that “[t]here is no precise or exact measuring stick

for calculating general damages for pain and suffering.” Taken Alive v. Litzau, 551

F.2d 196, 198 (8th Cir. 1977). “[A]wards for pain and suffering are highly

subjective,” Morrissey v. Welsh Co., 821 F.2d 1294, 1301 (8th Cir. 1987), and

“[d]epending upon the factsituation, the range between an inadequate award for pain

and suffering and an excessive award can be enormous.” Id. Only if an award is so

extreme asto fall outside this “enormous” range of discretion should appellate judges

substitute their “highly subjective” valuation of pain and suffering for the district

judge’s conclusion. And there is no special standard of review for cases involving

public funds. The government is treated the same as any other tortfeasor.

The award of $813,000 in this case is generous, but we cannot conclude that

the decision of the experienced district judge was “monstrous” or “shocking” or that

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it resulted in a “plain injustice.” The government’s appeal is based almost entirely

on an effort to compare the award in this case with awards in other published

decisions. We have observed that “comparisons to other jury verdicts are often not

particularly helpful in claims involving noneconomic damages,” and that a district

court may even abuse its discretion by relying on such comparisons where the facts

of the instant case “are not easily comparable to the facts of other cases.” McCabe

v. Parker, 608 F.3d 1068, 1080 (8th Cir. 2010) (internal quotations omitted). The

facts of this case are unusual and distinguishable from the cases cited by the

government. The proffered authorities do not provide us with an adequate foundation

to conclude that the district court’s award isso outside the mainstream that we should

substitute our subjective evaluation of pain and suffering for the district court’s

assessment.

The judgment of the district court is affirmed.

RILEY, Chief Judge, dissenting.

As the result of the panel majority’s decision, the United States will pay

Gonzalez $813,000 in damagesfor delayed treatment of a broken ankle. These public

funds will not reimburse Gonzalez for medical expenses, which the federal

government already paid, nor wages lost. The sole purpose of the $813,000 is to

compensate Gonzalez for the pain, suffering and mental anguish caused by the

government’s negligent delay in diagnosing his prison softball game injuries. 

Because I believe “the award [is] clearly erroneous and plainly unjust,” Hysell v.

Iowa Pub. Serv. Co., 534 F.2d 775, 787 (8th Cir. 1976), I respectfully dissent. 

The district court’s award consisted of two parts: (1) $285,000 to compensate

for the pain, suffering and mental anguish Gonzalez experienced during the twentyeight and one-half days his injury remained undiagnosed; and (2) $528,000 to

compensate for the post-traumatic arthritis pain, suffering and mental anguish

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Gonzalez is likely to experience for the remainder of his life. Both calculations

trouble me.

The $285,000 award for past pain and suffering is troublesome because it is

significantly more than the $170,000 Gonzalez indicated was just compensation for

this period of time. In his demand for damages, Gonzalez demanded “at least

3

$10,000 per day” in compensation for the five days from July 29 to August 2, and “at

least $5,000 per day” for the next twenty-four days. The district court noted this

variance in the amounts Gonzalez demanded, but decided $10,000 per day was

appropriate for the entire period “[g]iven the gross negligence of the United States 

. . . and its effect on [Gonzalez].” 

But the degree of the government’s negligence should not affect the amount of

the award because the FTCA does not permit punitive damages. See 28 U.S.C.

§ 2674. The actual effect the government’s negligence had on Gonzalez is thus the

sole justification for awarding any damages throughout the time period at issue.

Gonzalez admitted his pain was at its maximum during the five days immediately

after his injury and thereafter diminished. As Gonzalez recognized in his demand, the

daily award for pain, suffering and mental anguish likewise should diminish.

As the result of the district court’s decision, Gonzalez received $115,000 more

than he suggested was reasonable, a 67% increase. If there exists a justification for

I recognize Gonzalez demanded an additional $2,170,000 for the ancillary 3

mental anguish he claimed he suffered. The district court presumably found little or

no merit in this aspect of Gonzalez’s request because the district court did not

mention this demand nor cite it when announcing the award. Instead, the district

court quoted and cited Gonzalez’s more specific demand for the physical pain,

suffering and mental anguish linked to the time period at issue. My focus is upon

these specific demands, in which Gonzalez identified amounts totaling $170,000 as

“just compensation.” 

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such a result, the district court did not articulate that justification as required by Fed.

R. Civ. P. 52(a)(1). See King v. United States, 553 F.3d 1156, 1161 (8th Cir. 2009)

(explaining Rule 52(a)(1) requires the district court to provide sufficient factual

findings for our court to engage in meaningful review); Arpin v. United States, 521

F.3d 769, 776 (7th Cir. 2008) (also explaining under Rule 52(a)(1), the district court

must indicate its reasoning process connecting the evidence to the amount awarded). 

I would not affirm this unjustified portion of the award.

Even more troubling is the award of $528,000 for Gonzalez’s future pain and

suffering, which purports to compensate Gonzalez $2,000 each month for the

remainder of his life, estimated at twenty-two years. The district court reasoned 4

$2,000 per month was justified “[c]onsidering the nature, extent, and permanency of

[Gonzalez’s] injury, and the pain and suffering and mental anguish reasonably certain

to be experienced in the future.” Other than this conclusory statement, the district

court provides no explanation or description of what pain and suffering and what

mental anguish Gonzalez is likely to experience or why $2,000 per month is an

appropriate amount. The figure,taken fromGonzalez’s demand for damages, appears

to be “plucked out of the air, and . . . cannot be squared with the duty of reasoned,

articulate adjudication imposed by Rule 52(a).” Arpin, 521 F.3d at 776. 

The district court also failed to distinguish the future pain, suffering and mental

anguish Gonzalez is likely to experience as the result of the government’s delay in

treatment from any pain, suffering and mental anguish caused by the fracture itself,

for which the government bears no responsibility. I cannot determine if the district

court distinguished between the two causes. Was all of Gonzalez’s future pain,

In all actuality, the lump-sum award will compensate Gonzalez more than 4

$2,000 per month given the increased value of the award over time if Gonzalez

prudently invests the money. 

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suffering and mental anguish related to post-traumatic arthritis caused by the delay

in treatment? Did the fracture itself cause any of this future suffering?

Finally, I do not believe the evidence supports a $528,000 award. Aside from

Gonzalez’s subjective complaints made for this litigation, the only evidence I have

found supporting the award are the affidavits and testimony of Dr. James Keever,

who never treated Gonzalez, or even met Gonzalez, and whose hypothetical

observations on the subject—formed before seeing Gonzalez’s deposition—were

general and non-specific to Gonzalez. 

It is questionable whether such sparse evidence can support such a generous

award under Arkansas law. See McGraw v. Jones, 238 S.W.3d 15, 21 (Ark. 2006)

(“Evidence of future pain and suffering and permanent disability must be established

with reasonable certainty and must not be left up to speculation or conjecture.”). I am

convinced $528,000 is unsupported on thisrecord and overcompensates Gonzalez for

any future pain, suffering or mental anguish he might experience asthe result of posttraumatic arthritis of his ankle. See generally Thompson v. Amerada Hess Corp., No.

96-3265, 1998 WL 274260, at *7-8 (E.D. La. May 26, 1998) (remitting a jury award

of $600,000 in non-economic damages to $300,000 for a plaintiff who suffered pain

and suffering caused by a fractured tibia shaft and a fractured knee joint with

subsequent surgery and complications related to the injuries, after not finding any

“similar injuries where the general damages even come close to $600,000”).

For these reasons, I would not affirm the $813,000 award, which I believe is

a “shocking” windfall to Gonzalez and results in a “plain injustice” to the United

States taxpayers. I would vacate Gonzalez’s damage award and remand the case to

the district court to enter a new judgment. See Hysell, 534 F.2d at 787-88.

________________________________

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