Sometimes The Law Takes A Twisted Path

Kevin Bravo Rodriguez was born severely injured on June 11, 2003 after a series of  screw-ups  by his obstetrician and other personnel at Naval Hospital Jacksonville.    Following an eleven-day bench trial in 2005, the United States District Court for the Southern District of Florida ordered that the government pay Kevin and his family some $60.5 million, in what was at the time the largest award ever made under the Federal Tort Claims Act.  This order, which describes what happened to Kevin and his mother in agonizing detail, should have ended the matter.

Unwilling to stop victimizing Kevin’s family and let them live in relative peace, however, government lawyers petitioned the judge for a reduction of the verdict.  Somewhat surprisingly, the same judge who ordered the $60.5 million verdict reduced the award to $40.5 million, of which $20 million was for the parents’ pain and suffering.  But, a mere five months after the amended judgment, three-year-old Kevin had a seizure and died, completely mooting the award.  The government had also appealed to the United States Court of Appeals for the Eleventh Circuit, which  handed the trial judge instructions for assessing the alleged excessiveness of the award.     Earlier this week, after another two-day hearing, the same judge handed down a heart-wrenching order that details the pain the parents have endured and continue to suffer.  But this time the award will be $10.2 million.

The way damages are calculated under the law, it was expected that the judge would eliminate any award for Kevin’s future loss of earnings, medical care and pain.  On the other hand, I question the morality of a law that moots a judgment just because the innocent party dies.  Why should the innocent’s death benefit the tortfeasor?  Shouldn’t the money go to the victim’s estate?  In any case, the judge’s new verdict, which had to conform to the Eleventh Circuit’s findings, remains troubling for another reason.

You see, the Court of Appeals for the Eleventh Circuit had ruled in a split decision that damages could not exceed the highest affirmed wrongful death verdict in the Florida appellate district where the death took place, which turned out to be $10 million. In a scathing dissent, Judge Charles R. Wilson, to his enduring credit, observed that nothing in Florida or Federal law required that comparison be restricted to looking only at awards from a limited geographic area of the Florida courts.  There had been other wrongful death awards in Florida that had vastly exceeded $20 million.  Besides, the original award did not come from some runaway jury, but rather from the sober opinion of a judge after a bench trial.

The worst part of this whole mess is that, given its prior success, everyone now expects the government to appeal the case again.  Frankly, I fear for this family.

Article first published as Sometimes The Law Takes A Twisted Path on Technorati.

Glenn L. Goodhart, M.D., J.D.

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