Villarini Garcia v. Tomasini

• Court: Court of Appeals for the First Circuit
• Decided: April 24, 1997
• Docket: 96-2024
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-2024



                               AWILDA VILLARINI-GARCIA,



                                 Plaintiff, Appellee,



                                          v.



                            HOSPITAL DEL MAESTRO, ET AL.,



                                Defendants, Appellees.

                                      __________



                               MARIO J. TOMASINI, DR.,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                        [Hon. James L. Watson,* Senior Judge]
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                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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                                 ____________________



            Raul  Davila-Rivera and  Alberto O.  Jimenez  with whom  Bauza and
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        Davila were on briefs for appellant.
        ______

            Kevin G. Little with whom Law Offices of David Efron was on  brief
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        for appellee.


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                                    April 24, 1997

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        *Of the Court of International Trade, sitting by designation.



BOUDIN, Circuit  Judge.   Dr. Mario J.  Tomasini appeals
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            from an adverse judgment against him for medical malpractice.



            Dr. Tomasini makes several claims of error, only one of which



            requires extended discussion.   On that claim, which presents



            a difficult question concerning  offsets to damage awards, we



            conclude that a deduction is required in this case to account



            for payment already received  in settlement by the plaintiff,



            Awilda  Villarini-Garcia,  from  the  hospital for  the  same



            injury.



                 This  case  began with  an  operation  performed by  Dr.



            Tomasini  in September 1986 at Hospital del Maestro in Puerto



            Rico.  During the operation, Dr. Tomasini removed a birthmark



            or  mole from Villarini's back, and a piece of muscle tissue.



            In her later complaint against Dr. Tomasini and the hospital,



            Villarini charged the doctor  with negligence in removing the



            muscle  tissue,  causing  her  continuing  pain and  severely



            impairing her career as a concert pianist.



                 Villarini did not file  her complaint against the doctor



            and hospital until June 1990, well after Puerto Rico's normal



            one year  statute  of  limitations.    31  L.P.R.A.     5298.



            Villarini  argued that  the statute  was tolled  under Puerto



            Rico's discovery rule until she acquired sufficient knowledge



            of the basis of her claim.  The district  court dismissed the



            case on summary judgment  for failure to meet the  statute of



            limitations, and Villarini appealed.


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This  court  affirmed  the  dismissal  as  to  three  of



            Villarini's  four claims of negligence but reversed as to one



            claim.  Villarini  v. Hospital  del Maestro, 8  F.3d 81  (1st
                    _________     _____________________



            Cir.  1993).    On that  last  claim,  we  said that  summary



            judgment was  improper and  that it was  likely to be  a jury



            question  whether  Villarini  had  exercised  sufficient  due



            diligence  to give her the  protection of the discovery rule.



            Following  remand,  the hospital  settled with  Villarini for



            $50,000,  and  the  case   proceeded  to  trial  against  Dr.



            Tomasini.



                 At  the end  of the  trial,  the jury  awarded Villarini



            $100,000 for physical and mental damage and $500,000 for loss



            of earnings.   Among other post-trial  requests, Dr. Tomasini



            sought a deduction from the judgment of $50,000, representing



            the amount that  the hospital  had paid in  settlement.   The



            district court refused.   This appeal  followed.  On  appeal,



            Dr.  Tomasini makes six claims  of error, the  last one being



            the denial of the deduction.



                 Four  of  the  claims   relate  to  sufficiency  of  the



            evidence:     Dr.  Tomasini   says  that  the   evidence  was



            insufficient  to allow  Villarini  to escape  the statute  of



            limitations,  or  to   establish  malpractice,  or  to   show



            causation, or to support  the amount awarded.  A  fifth claim



            is  directed  at  testimony   of  an  agent,  who  represents



            musicians, offered  by Villarini to support  her claimed loss


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of  income;  Dr.  Tomasini  says  that the  witness  was  not



            qualified and lacked an adequate basis for his testimony. 



                 The  challenges  to   the  evidence--as  to  timeliness,



            negligence,  causation,  and damages--are  legitimate issues;



            but having  considered the  evidence described in  the briefs



            and set forth in the record, we think that the jury's verdict



            is  not  irrational  on any  of  these  issues  and that  the



            district  court acted  within its  discretion in  holding the



            expert to  be qualified and his  opinion adequately grounded.



            There is nothing about  these fact-bound issues that warrants



            discussion in a published opinion.



                 The  one  issue  that  does require  discussion  is  Dr.



            Tomasini's  final argument  that  the  $600,000 jury  verdict



            should be reduced by $50,000  to reflect the amount Villarini



            received  in  settlement from  his  former  co-defendant, the



            Hospital  del Maestro.  After  the jury rendered its verdict,



            Dr.  Tomasini filed  a timely  motion under  Fed. R.  Civ. P.



            59(e) to amend the judgment to deduct the $50,000 settlement,



            and the district court denied the motion.  



                 The court based its denial on the fact that the hospital



            was  not  "jointly" liable  for  the  injury along  with  Dr.



            Tomasini;  rather it  was  sued only  on vicarious  liability



            grounds.  See 31 L.P.R.A.   5142.  Villarini presses the same
                      ___



            objection  on  appeal.    Implicit in  the  district  court's



            ruling, and  explicit in Villarini's argument,  is the notion


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that there is no  right to offset an earlier  settlement made



            by a  co-defendant where  the remaining co-defendant  did not



            have  a  right  of  contribution  against  the  settling  co-



            defendant.1   This presents a legal issue that we consider de
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            novo,  and  conclude that  the  linkage  of contribution  and
            ____



            offset has no sound basis.



                 In almost all jurisdictions,  settlement payments to the



            plaintiff from one  of several  joint tortfeasors--those  who



            actively  contributed to the same injury--reduce any judgment



            later   secured   against   the  nonsettling   tortfeasor(s).



            McDermott v. AmClyde,  511 U.S.  202, 208 (1994).   The  only
            _________    _______



            debate is  whether this reduction  is to be made  by a simple



            dollar-for-dollar   offset  or  through  a  more  complicated



            proportional liability formula.  Id. at 208-17.  See 6 Minzer
                                             ___             ___



            et al., Damages in Tort Actions   51.25[1] (1966).
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                 Conversely, the  usual rule is that  a plaintiff's award



            will  not be reduced  for payments or  benefits received from



            sources  independent   of  those   who  wronged  him.     See
                                                                      ___



            Restatement (Second) of Torts    920A(2) (1991); Robertson v.
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            White,  81 F.3d 752, 758  (8th Cir. 1996).   This "collateral
            _____



            source" rule allows  a plaintiff to receive  payments such as



            charitable  donations  and  payments  from  his  own  insurer



                                
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                 1For  obvious  reasons,  under   Puerto  Rico  law,   as

            elsewhere, the active tortfeasor has no right of contribution

            against  another whose  liability  to the  victim is  at best

            vicarious.  See  FDIC v. Consolidated Mortgage, 805  F.2d 14,
                        ___  ____    _____________________

            19 (1st Cir. 1986).



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without  losing the ability to recover the full amount of his



            loss from the wrongdoer or wrongdoers.



                 A few courts have  refused to offset payments made  by a



            settling co-defendant  who turned out later not  to be liable



            as a joint tortfeasor with  the nonsettling defendant.  E.g.,
                                                                    ____



            Medical Center of Delaware v. Mullins, 637 A.2d 6, 9-10 (Del.
            __________________________    _______



            1994); Collier  v. Eagle-Picher  Indus., Inc., 585  A.2d 256,
                   _______     __________________________



            265-67 (Md. App. 1991).   The rationale of these  holdings is



            that  since the  primarily liable  defendant would  have been



            obligated to pay  the entire  damage amount  if the  settling



            party had never  been sued  (or did not  settle), the  former



            should not reap the benefit of a fortuitous settlement by the



            latter.  Mullins, 637 A.2d at 10.  
                     _______



                 The so-called "modern rule" expressed in the Restatement
                                                              ___________



            (Second) of Torts is very much to the contrary:  it says that
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            any payment "made in compensation of a claim for a harm" will



            reduce the liability of the remaining defendants, "whether or



            not  the person making the  payment is liable  to the injured



            person."  Id.   885(3) and comment (f).  See also Restatement
                      ___                            ________ ___________



            (Second) of Judgments   50(2) (1982).  Many cases express the
            _____________________



            right  of  offset  in  the  same  unqualified  terms  as  the



            Restatement (although  not all  happen to involve  a settling
            ___________



            co-defendant who  is vicariously liable).2   So, too,  does a



                                
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                 2See Husky  Refining Co. v.  Barnes, 119  F.2d 715,  716
                  ___ ___________________     ______

            (9th Cir. 1941); Lafayette v. County of Los Angeles, 208 Cal.
                             _________    _____________________

            Rptr.  668, 672-73 (Cal. Ct.  App. 1984); Harriss v. Elliott,
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lucid discussion  in the leading text,  together with reasons



            for  the Restatement rule.  Keeton et al., Prosser and Keeton
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            on Torts   49, at 335-36 (5th ed. 1984).  
            ________



                 Puerto Rico law is  controlling in this case and  if the



            Puerto Rico courts had spoken  to the precise question before



            us, their expressed view would be followed here.  But no such



            ruling has been cited to us, and we can find none on our own.



            In  such  situations  we  may  refer  to  common  law  rules.



            Fireman's Fund Am. Ins.  Co. v. Almacenes Miramar, Inc.,  649
            ____________________________    _______________________



            F.2d 21, 25 &  n.3 (1st Cir. 1981); Futurama  Import Corp. v.
                                                ______________________



            Trans Caribbean Airways, 104  D.P.R. 609, 4 O.T.S.C.P.R. 854,
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            861-62 (1976).   Perhaps  more importantly,  we do  know that



            Puerto Rico  has disallowed  double recoveries in  a somewhat



            analogous context,  expressing a general hostility  to double



            recovery.



                 In a set of cases, the Supreme Court of Puerto Rico held



            that  a  plaintiff's  tort  recovery  against  a non-employer



            defendant  must  be  reduced  by  any  workers'  compensation



            payments that the plaintiff had already  received from, or on



            behalf  of, his employer.   See Robles v.  Superior Court, 85
                                        ___ ______     ______________


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            565  N.E.2d 1041, 1044-45  (Ill. App.  Ct. 1991);  Mulinix v.
                                                               _______

            Saydel Consol.  Sch. Dist., 376 N.W.2d 109,  110-11 (Iowa Ct.
            __________________________

            App. 1985); Steger v. Egyud, 149 A.2d 762, 767-68 (Md. 1959);
                        ______    _____

            Midway  Nat'l Bank v. Estate of Bollmeier, 504 N.W.2d 59, 65-
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            66 (Minn. Ct. App.  1993); Kirby v. New Mexico  State Highway
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            Dep't,  643 P.2d 256, 259-260  (N.M. Ct. App.  1982); Mead v.
            _____                                                 ____

            Bloom,  464  N.Y.S.2d  904,  904-05 (N.Y.  App.  Div.  1983);
            _____

            Bellamy v. Prime, 270 N.Y.S.2d 93, 94 (N.Y. App. Div. 1966).
                       _____



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P.R.R. 640, 647 (1962);  Sanabria v. White Star Bus  Line, 50
                                     ________    ____________________



            P.R.R. 722, 725 (1936);  Machado v. The American R.R.  Co. of
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            P.R.,  49 P.R.R. 823, 831-32  (1936).  The  Robles court said
            ____                                        ______



            that  these cases were "inspired on the principle that no one



            should  or may  unjustly enrich  himself by  receiving double



            compensation for the same accident."  85 P.R.R. at 647.



                 The  collateral source  rule,  also  followed in  Puerto



            Rico,  Futurama,  4 O.T.S.C.P.R.  at  857-60,  obviously does
                   ________



            permit double  recovery in certain situations; but it does so



            primarily where  the extra  benefit comes from  insurance for



            which  the plaintiff could  easily have paid  or from private



            generosity  aimed  at benefiting  the  victim  rather than  a



            wrongdoer.   Payments from prospective co-defendants, whether



            vicariously  or jointly  liable, are  clearly of  a different



            character.    See Restatement  (Second)  of  Judgments    50,
                          ___ ____________________________________



            comment (e) (1982).



                 Absent good reason--and none is suggested to  us--courts



            are  loath  to  promote  double recoveries.    See  generally
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            Torres-Troche v. Municipality of  Yauco, 873 F.2d 499, 501-02
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            (1st  Cir. 1989).  Even more troubling, without an offset the



            primary  tortfeasor  could  easily  be  made  to  pay  twice:



            ordinarily,  a  vicariously liable  master who  settled would



            have an  independent  claim for  indemnification against  the



            careless  servant.    See  31 L.P.R.A.     5143;  Restatement
                                  ___                         ___________



            (Second) of Agency   401 and comment (d) (1958).
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Here,  we  are  told that  the  hospital  not only  paid



            $50,000  to Villarini but purported to transfer its claim for



            indemnification to  Villarini; and Villarini told  us at oral



            argument that no further suit on the indemnification claim is



            now  possible.    Even   so,  no  apparent  justification  is



            suggested here for double  recovery by the victim.   The jury



            assessed  total  injury at  $600,000  and  until Puerto  Rico



            instructs otherwise,  we see  no reason why  Villarini should



            enjoy compensation of $650,000 from the former co-defendants.



                 Accordingly, we  remand the case to  the district court,



            direct that  the judgment be reduced  by $50,000 representing



            the amount paid in settlement  by the hospital, and otherwise



            affirm the judgment.



                 It is so ordered.
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