Correa-Carrillo v. Grupo HIMA San Pablo, Inc. et al
Filing
173
OPINION AND ORDER: For the reasons set forth in this Opinion and Order, 152 Defendant's Motion for Judgment as a Matter of Law is DENIED, 153 Defendant's Motion for New Trial as per FRCP 59 and/or Remittitur is GRANTED IN P ART AND DENIED IN PART, and 154 Defendant's Motion Requesting Amendment of Judgment Entered is DISMISSED AS MOOT. By April 26, 2022, Plaintiff shall inform the Court of its decision whether it would like to proceed to a new trial in lieu of a $3,000,000 award. Signed by Judge Raul M. Arias-Marxuach on 3/29/2022. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LINNOSKA
CORREA-CARRILLO,
in
representation
of
her
minor
daughter JPC,
Plaintiff,
CIVIL NO. 17-2253 (RAM)
v.
GRUPO HIMA SAN PABLO-FAJARDO INC
ET AL.,
Defendants.
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, United States District Judge
Pending before the Court are Defendant CMT HIMA San Pablo
(Fajardo), Inc’s (“Defendant” or “HIMA”) Motion for Judgment as a
Matter of Law as per FRCP 50(B) (Docket No. 152); Motion for New
Trial as per FRCP 59 and/or Remittitur (Docket No. 153); and Motion
Requesting
Amendment
(jointly,
“the
Carrillo,
in
(“Plaintiff”),
of
Motions”).
Judgment
Plaintiff’s
representation
filed
an
of
(Docket
Entered
mother
her
opposition
to
No.
Linnoska
minor
Correa-
daughter
Defendant’s
154)
JPC
Motions
(“Opposition”). (Docket No. 159). Defendant subsequently replied
to Plaintiff’s Opposition (“Reply”). (Docket No. 168). For the
reasons discussed below, Defendant’s Motion for Judgment as a
Matter of Law is DENIED, Defendant’s Motion for New Trial and/or
Remittitur is GRANTED IN PART AND DENIED IN PART, and Defendant’s
CIVIL NO. 17-2253 (RAM)
2
Motion Requesting Amendment of Judgment Entered is DISMISSED AS
MOOT.
I.
BACKGROUND
On July 9, 2021, a jury determined that HIMA and Dr. Luis E.
Pardo-Toro (“Dr. Pardo”) 1 committed negligent acts prior to and
during Plaintiff’s birth that proximately caused her cerebral
palsy and other serious medical problems. (Docket No. 147). The
jury apportioned forty (40%) percent of the negligence to HIMA and
the remaining sixty percent to Dr. Pardo. Id. at 3. The jury then
awarded
$8,000,000
for
Plaintiff’s
physical
damages
and
an
additional $8,000,000 for her past and future mental anguish and
suffering. Id. 2 Defendant now asks this Court to set aside the
jury’s finding of negligence and its damages award.
On August 6, 2021, Defendant filed its posttrial Motions.
(Docket Nos. 152 and 153). 3 In those Motions, Defendant asks the
Court
to
dismiss
Plaintiff’s
claims
in
their
entirety
or,
alternatively, grant a new trial or remit the “shocking” and
Dr. Pardo was Plaintiff’s mother’s OB-GYN. He was no longer a defendant in
this case at the time of trial.
1
2
Thus, Defendant is responsible for a combined $6,400,000.
Defendant initially made an oral motion for judgment as a matter of law
following Plaintiff’s case in chief. (Docket No. 152-2 at 142-45). The Court
granted that motion as to the claims for (1) future expenses for medical care
and treatment; (2) loss of potential to generate future income; and (3)
vicarious liability against HIMA with respect to Dr. Pardo. Id. at 147-49. The
Court denied Defendant’s motion as to HIMA’s potential liability for its nurses’
breach of their standard of care. Id. Defendant then renewed its motion for
judgment as a matter of law after the defense rested, which this Court denied
in full. (Docket No. 152-3 at 83).
3
CIVIL NO. 17-2253 (RAM)
3
“excessive” award of damages. Id. On September 24, 2021, Plaintiff
filed her combined Opposition to the Motions, arguing the jury
verdict should be upheld. (Docket No. 159). And on October 20,
2021, Defendant filed its Reply, addressing each of the contentions
made in the Opposition. (Docket No. 168). On August 9, 2021,
Defendant also filed a Motion Requesting Amendment of Judgment
Entered, which is addressed below in section II.D. (Docket No.
154).
II.
ANALYSIS
A. Judgment as a Matter of Law Under Rule 50
Pursuant to Fed. R. Civ. P. 50 (“Rule 50”), a party may renew
a motion for judgment as a matter of law “[n]o later than 28 days
after the entry of judgment—or if the motion addresses a jury issue
not decided by a verdict, no later than 28 days after the jury was
discharged[.]” Fed. R. Civ. P. 50(b). In ruling on the renewed
motion, the court may: “(1) allow judgment on the verdict, if the
jury returned a verdict; (2) order a new trial; or (3) direct the
entry of judgment as a matter of law.” Id. “Courts may only grant
a judgment contravening a jury’s determination when the evidence
points so strongly and overwhelmingly in favor of the moving party
that no reasonable jury could have returned a verdict adverse to
that party.” Rivera Castillo v. Autokirey, Inc., 379 F.3d 4, 9
(1st Cir. 2004) (internal quotation marks and citation omitted).
In
conducting
this
analysis,
“courts
may
not
consider
the
CIVIL NO. 17-2253 (RAM)
credibility
of
4
witnesses,
resolve
conflicts
in
testimony,
or
evaluate the weight of the evidence.” Annoni Mesias v. Hosp. HIMA
San Pablo, 2021 WL 1125019 at *1 (D.P.R. 2021) (internal quotation
marks and citation omitted).
The substantive law of Puerto Rico governs this medical
malpractice diversity suit. See Marcano Rivera v. Turabo Med. Ctr.
P’ship, 415 F.3d 162, 167 (1st Cir. 2005). “To prevail on a medical
malpractice claim under Puerto Rico law, a party must establish
(1) the duty owed; (2) an act or omission transgressing that duty;
and (3) a sufficient causal nexus between the breach and the harm.”
Id.
(internal
quotation
marks
and
citation
omitted).
Here,
Defendant challenges the sufficiency of the evidence as to the
duty owed and causation (i.e., prongs one and three). (Docket No.
152).
1. Standard of Care
Defendant argues Plaintiff failed to establish the standard
of care applicable to nurses in Puerto Rico. Id. at 49-50. In
discussing the standard of care owed specifically by nurses, the
Supreme Court of Puerto Rico has held that “‘[a] nurse should
exercise a certain standard of reasonable care to see that no
unnecessary harm comes to the patient, and said standard of care
must be the same as the standard of care exercised by other nurses
in the locality or similar localities.’” Morales v. Monagas, 723
F.
Supp.
2d
416,
422
(D.P.R.
2010)
(quoting
Blas
v.
Hosp.
CIVIL NO. 17-2253 (RAM)
5
Guadalupe, 146 D.P.R. 267, 307 (1998)). Additionally, “[n]urses
have the unavoidable duty to fulfill medical orders with the
required urgency and in accordance with each patient’s particular
circumstances.”
Id.
(internal
quotation
marks
and
citation
omitted).
The standard of care ordinarily must be established through
expert testimony. See Lama v. Borras, 16 F.3d 473, 478 (1st Cir.
1994) (“[I]n the case of duty . . . expert testimony is generally
essential.”). In the case at bar, Plaintiff relied solely on the
testimony
of
her
expert
witness,
Dr.
Barry
Schifrin
(“Dr.
Schifrin”), to establish the standard of care applicable to the
HIMA nursing staff. At trial, Dr. Schifrin answered many questions
about
the
applicable
standard
of
care,
and
explained
that,
generally, nurses “have a duty to report things that are abnormal
and if they are sufficiently abnormal, not only to alert the doctor
but to insist upon the presence of the doctor at the patient’s
bedside.” (Docket No. 152-2 at 46). He also testified about the
specific duties the nurses in the emergency room and delivery room
had here. Most notably, according to Dr. Schifrin, the nurses had
a
duty
to
monitoring
continually
strips,
monitor
particularly
Plaintiff’s
when
the
mother’s
physician
fetal
was
not
present. Id. at 54, 67.
While he provided helpful testimony to the jury regarding the
duty owed by the HIMA nurses to Plaintiff and her mother, Dr.
CIVIL NO. 17-2253 (RAM)
6
Schifrin was unable to articulate a professional standard of care
for nurses that is specific to Puerto Rico. Id. at 21. Defendant
primarily challenges Dr. Schifrin’s testimony on this ground,
arguing that his inability to articulate a Puerto-Rico-specific
standard of care rendered his testimony too general, and thus
Plaintiff failed to provide sufficient evidence to establish the
duty owed by the HIMA nurses (prong one of Plaintiff’s cause of
action). (Docket No. 152 at 51-52). However, while the Court notes
Dr. Schifrin’s admitted limitations, 4 Defendant failed to establish
how the local standard of care is different in any material respect
from the standard of care that Dr. Schifrin testified to at trial.
In fact, just last month, the First Circuit held that the jury in
a very similar case was entitled to credit the plaintiff’s expert’s
opinion “that the applicable standards of care in Puerto Rico and
the rest of the United States are the same.” Rodriguez-Valentin v.
Doctors’ Ctr. Hosp. (Manati), Inc., 2022 WL 556194, at *5 (1st
Cir. 2022). 5 Similarly, here, the jury properly credited Dr.
Schifrin’s opinion as to the applicable standard of care. Dr.
Schifrin’s testimony provided the jury with sufficient evidence
from which to discern the duty owed by the HIMA nurses to Plaintiff
4 Dr. Schifrin readily admitted he did “not have an understanding of those
specific nursing standards of care that are unique to Puerto Rico.” (Docket No.
152-2 at 21).
However, the First Circuit did not rule on whether the district court correctly
interpreted Puerto Rico law. Id. at *5 n.7.
5
CIVIL NO. 17-2253 (RAM)
7
and her mother in this case.
2. Causation
Defendant also contends that Plaintiff failed to submit any
evidence to establish a causal link between HIMA’s negligence and
Plaintiff’s cerebral palsy (prong three of Plaintiff’s cause of
action). (Docket No. 152 at 38-49). Defendant raises three specific
causation arguments. First, HIMA contends that Plaintiff fatally
relied solely on Dr. Schifrin’s testimony to establish causation,
while Dr. Schifrin, by his own admission, was not a causation
expert. Id. at 38-40. Second, Defendant argues that the medical
record objectively shows that there was no hypoxic event in this
case, and thus it was impossible for a hypoxic event to have caused
Plaintiff’s harm. Id. at 40-43. Finally, Defendant claims that Dr.
Schifrin’s medical opinions and testimony were improperly based on
the incorrect premise that Dr. Pardo was not at the hospital during
key moments in this case, and thus his testimony as to causation
should be disregarded. Id. at 43-49. Each argument is addressed in
turn below.
i.
Dr. Schifrin’s Testimony on Causation
First, Defendant posits that Dr. Schifrin’s testimony was
insufficient to establish causation because Dr. Schifrin, by his
own
admission,
was
not
able
to
conclusively
tie
Plaintiff’s
cerebral palsy to Defendant’s alleged negligence. Id. at 38-40.
Further, Defendant contends that Plaintiff failed to meet her
CIVIL NO. 17-2253 (RAM)
8
burden of proof on causation because Dr. Schifrin was not able to
rule out other potential causes of Plaintiff’s cerebral palsy.
(Docket No. 152 at 39-40). In his Daubert hearing, Dr. Schifrin
testified that he was only qualified to “contribute to causation”
but could not “be the expert who assigns the injury to the
patient.” (Docket No. 152-1 at 28). And on cross examination at
trial, he testified he would not make a specific statement that
Plaintiff’s cerebral palsy was exclusively caused by the hypoxic
event that occurred during delivery. (Docket No. 152-2 at 115).
While the Court agrees that Dr. Schifrin, as Plaintiff’s sole
expert witness, never conclusively tied the alleged hypoxic event
to
Defendant’s
negligence,
Defendant
incorrectly
argues
that
Plaintiff had the burden to do so. It is well settled that, to
establish causality in a medical malpractice action under Puerto
Rico law, a plaintiff must prove by a preponderance of the evidence 6
that the defendant’s negligent conduct was the factor that “most
probably” caused the harm to the plaintiff. Lama, 16 F.3d at 478
(emphasis
added).
Causation
“need
not
be
established
with
mathematical accuracy; neither must all other cause of damage be
eliminated.” Id. (citation omitted). Here, Dr. Schifrin walked the
jury through the data in the medical record and explained how and
why he believes Dr. Pardo and the HIMA staff failed to adequately
“Preponderance of the evidence” only means “more likely true than not.” DiazAlarcon v. Flandez-Marcel, 944 F.3d 303, 305 n.2 (1st Cir. 2019) (internal
quotation marks and citation omitted).
6
CIVIL NO. 17-2253 (RAM)
9
care for Plaintiff. Dr. Schifrin also addressed the other potential
causes of Plaintiff’s cerebral palsy, clarifying that they are not
causes of cerebral palsy, but instead risk factors that increase
the likelihood of developing cerebral palsy. (Docket No. 152-2 at
117).
Therefore,
despite
never
conclusively
tying
Defendant’s
actions to Plaintiff’s cerebral palsy, Dr. Schifrin’s testimony
was sufficient to allow the jury to rationally determine that
Defendant’s negligence was the factor that “most probably” caused
the harm to Plaintiff. See Lama, 16 F.3d at 478.
ii.
Evidence of a Hypoxic Event in the Medical
Record
Defendant also contends that Plaintiff failed to establish
causality at trial because, “[a]s a factual and legal matter, there
is no clinical evidence from the plaintiff’s medical records which
supports the opinion that a hypoxic event or injury occurred.”
(Docket
No.
152
at
40).
Therefore,
according
to
Defendant,
Plaintiff’s theory that a hypoxic event caused her cerebral palsy
cannot be true and warrants judgment as a matter of law in
Defendant’s favor. Id. at 40-43.
This challenge to causation fails for largely the same reasons
as the first. As noted above, Dr. Schifrin explained what he saw
in the medical data and how that informed his professional opinion
in
this
case.
When
asked
his
ultimate
professional
opinion
regarding the cause of Plaintiff’s cerebral palsy based on the
CIVIL NO. 17-2253 (RAM)
10
data he reviewed, Dr. Schifrin said, “I believe the cerebral palsy
is related to the hypoxic ischemic episode in turn related to the
abruption of the placenta. That is the most obvious and that is
clearly what is going on essentially from the outset.” (Docket No.
152-2 at 133). While Defendant unsurprisingly believes that the
jury should have credited the medical conclusions of Dr. Pardo,
“credibility determinations are for the jury,” and contradictory
expert testimony “does nothing to vitiate the sufficiency of the
plaintiff’s proof.” Muniz v. Rovira, 373 F.3d 1, 5 (1st Cir. 2004)
(internal quotation marks and citation omitted). The jury heard
the informed opinions of both Dr. Schifrin and Dr. Pardo and
apparently gave more weight to Dr. Schifrin’s medical analysis.
The Court sees nothing in the record that would warrant judgment
as a matter of law on this point. The testimony, viewed in the
light
most
favorable
to
the
verdict,
supports
the
jury’s
determination. See Lama, 16 F.3d at 475.
iii.
Dr. Pardo’s Presence at the Hospital
Third, Defendant challenges Dr. Schifrin’s testimony to the
extent
that
it
inferred
and
was
premised
on
the
incorrect
assumption that Dr. Pardo was not present and actively monitoring
the fetal strips throughout Plaintiff’s mother’s stay at HIMA.
(Docket No. 152 at 43-49). According to Defendant, Dr. Schifrin’s
testimony
was
impermissibly
speculative
and
insufficient
to
establish causation. Id. at 49. This argument fails for at least
CIVIL NO. 17-2253 (RAM)
11
three reasons.
First, Defendant’s contention once again boils down to an
improper challenge of the jury’s credibility determination. As
noted above, the First Circuit has clearly stated that “credibility
determinations are for the jury.” Muniz, 373 F.3d at 5. At trial,
Dr. Schifrin admitted that he did not know precisely when Dr. Pardo
was present at the hospital. (Docket No. 152-2 at 54). And defense
counsel spent a significant portion of his direct examination of
Dr. Pardo establishing the precise times he was and was not at the
hospital. (Docket No. 152-3 at 20-25). Further, during his closing
argument, defense counsel urged the jury to credit Dr. Pardo’s
testimony over Dr. Schifrin’s, in part because Dr. Schifrin was
only able to testify about the events after the fact while Dr.
Pardo was the physician in the room who testified about his
personal
presented
observations.
with
that
(Docket
testimony
No.
and
152-4
at
those
26).
arguments,
Even
when
the
jury
ostensibly found that Dr. Schifrin was more credible and thus chose
to believe his analysis. The jury had a right to do so, and the
Court will not overturn that judgment on a Rule 50 motion.
Second,
Defendant’s
argument
omits
a
key
piece
of
the
timeline. The theme of Dr. Schifrin’s testimony was “time was of
the essence.” Dr. Schifrin testified that both Dr. Pardo and the
HIMA nurses failed to adequately care for Plaintiff when they chose
not to immediately conduct a C-section shortly after the mother’s
CIVIL NO. 17-2253 (RAM)
12
arrival at the hospital. (See Docket No. 152-2 at 34-35). Dr.
Schifrin stated that “the mother had to be transferred immediately
into the obstetrical facility at the hospital when she comes there
presenting with pain of significant duration.” Id. at 34. He later
explained that “[t]he baby should have been delivered shortly after
admission with examination[.]” Id. at 58. Meanwhile, the jury heard
the mother explain how she spent three hours in the emergency room
before the nurses moved her to the delivery room. (Docket No. 1521 at 95). She also testified that, during that time, she only saw
the nurses once — when they placed the fetal heart monitoring belts
on her. Id. at 97-99. Therefore, even if Dr. Pardo arrived at the
hospital
shortly
after
Plaintiff’s
mother’s
arrival,
it
is
plausible that the HIMA nurses negligently cared for her before
moving her to the delivery room.
Third, Dr. Pardo’s testimony allows for a finding that he was
not with and constantly monitoring Plaintiff’s mother throughout
her stay at the hospital. Dr. Pardo testified he went home for the
night sometime after 11:00pm on July 30. (Docket No. 152-3 at 2122). And, although he stated that he was at his office, which is
“right next to the hospital,” on July 31, that is different than
explaining he was at the patient’s bedside during the entirety of
the day monitoring her status. Id. at 25.
Simply put, when the trial testimony is viewed in the light
most favorable to the verdict, Defendant’s argument fails. Dr.
CIVIL NO. 17-2253 (RAM)
13
Schifrin’s testimony was not fatally reliant on the incorrect
premise
that
Dr.
Pardo
was
not
at
the
hospital
continuously
monitoring Plaintiff’s mother’s status during the entire duration
of the relevant time period in this case.
3. Future Damages
Finally, Defendant argues that it is entitled to judgment as
a matter of law because Plaintiff failed to present any evidence
of future damages. (Docket No. 152 at 58-61). The Court recognized
the dearth of evidence concerning future damages when ruling on
Defendant’s original Rule 50 motion. (Docket No. 152-2 at 147-49).
That is why the Court limited Plaintiff’s claim for future damages
to solely future mental anguish and suffering. Id. at 148. The
jury verdict form reflected that ruling. (Docket No. 147 at 3).
While
limited,
Plaintiff
presented
enough
evidence
of
future
mental anguish and suffering damages to preclude a finding of
judgment as a matter of law.
Defendant primarily contends that Plaintiff was required to
present expert testimony to establish future mental anguish and
suffering damages. (See Docket No. 152 at 59). However, such expert
testimony
is
sufficient
not
necessary
non-expert
when
testimony.
the
jury
See
is
presented
Rodriguez-Valentin
with
v.
Doctors’ Ctr. Hosp. (Manati), Inc., 2020 WL 6273760, at *5, aff’d,
2022
WL
556194
Plaintiff’s
(1st
mother,
Cir.
who
2022).
detailed
Here,
the
Plaintiff’s
jury
daily
heard
from
struggles.
CIVIL NO. 17-2253 (RAM)
14
According to the mother, Plaintiff suffers from cerebral palsy,
quadriplegia, asthma, developmental delay, and septicity. (Docket
No. 152-1 at 91-92). She hits herself, bites herself, tears at her
hair, has frequent seizures, cannot speak, cannot eat on her own,
has a hard time using the bathroom on her own, and cannot focus.
Id. at 91, 106. As the mother put it, “[e]verything [Plaintiff]
does, she does with a lot of difficulty.” Id. at 91. While
undoubtedly the best course of action in this case would have been
for Plaintiff to present expert testimony on life expectancy, after
reviewing the record, the Court finds that the jury was entitled
to award future mental anguish and suffering damages based on the
evidence presented at trial.
4. Conclusion
For
the
reasons
outlined
above,
Defendant’s
Motion
for
Judgment as a Matter of Law as per FRCP 50(B) at Docket No. 152 is
DENIED.
B. New Trial Under Rule 59
In the alternative, Defendant contends that this Court should
order a new trial pursuant to Fed. R. Civ. P. 59 (“Rule 59”). Rule
59 states that “[t]he court may, on motion, grant a new trial on
all or some of the issues—and to any party— . . . after a jury
trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court[.]” Fed. R. Civ. P.
59(a)(1). “A district court’s power to grant a motion for new trial
CIVIL NO. 17-2253 (RAM)
15
is much broader than its power to grant a Rule 50 motion.”
Rodriguez-Valentin, 2022 WL 556194, at *5 (quoting Jennings v.
Jones, 587 F.3d 430, 436 (1st Cir. 2009)). On a Rule 59 motion,
“the court need not take the evidence in the light most favorable
to the nonmoving party.” Id. However, trial judges do not sit as
thirteenth jurors. Id. Therefore, the First Circuit has stated
that, “when reviewing a denial of a motion for new trial that was,
at bottom, based on sufficiency of the evidence, the standards
under
Rule
50
and
Rule
59
effectively
merge.”
Id.
(internal
quotation marks and citations omitted).
Defendant asks the Court to grant a new trial for four
reasons: (1) the verdict is against the weight of the evidence;
(2)
the
Court
wrongly
denied
Defendant’s
pretrial
Daubert
challenge; (3) the Court erred in including a particular jury
instruction and a question on the verdict form; and (4) the Court
allowed Plaintiff’s counsel to make improper statements during his
closing argument. (Docket No. 153). Each argument is addressed
below.
1. Weight of the Evidence
First, Defendant posits that, for the same reasons outlined
in its Rule 50 motion, this Court should grant a new trial because
the verdict is against the weight of the evidence. Id. at 5.
Specifically, Defendant rehashes the arguments discussed above
concerning
Plaintiff’s
inability
to
establish
causation,
the
CIVIL NO. 17-2253 (RAM)
16
nurses’ standard of care, and future damages. Id. at 5-11. As
discussed in the previous section, supra part II.A., the verdict
as to liability is not against the weight of the trial evidence.
Thus, Defendant has failed to show that a new trial is warranted
for the reasons discussed above.
2. Daubert Challenge
Next, Defendant contends that it is entitled to a new trial
because this Court erred in denying Defendant’s pretrial Daubert
challenge to Dr. Schifrin’s testimony. Id. at 11-24. On July 6,
2021, this Court conducted a pretrial Daubert hearing outside the
presence of the jury. (Docket No. 152-1 at 4-58). The Court heard
testimony ranging from Dr. Schifrin’s background and experience to
how he prepared his expert report and came to his professional
conclusions. Id. On July 7, 2021, the Court issued an Opinion and
Order denying Defendant’s Daubert challenge and explaining why Dr.
Schifrin’s testimony was sufficiently reliable. (Docket No. 139).
The Court addressed Defendant’s concerns regarding Dr. Schifrin’s
ability to satisfy causation and to establish the relevant standard
of care applicable to nurses in Puerto Rico. Id. at 10-13.
In its Rule 59 motion, Defendant largely seeks to relitigate
this Court’s prior ruling. Defendant argues that Dr. Schifrin’s
testimony was not reliable because he: (1) failed to conclusively
establish causation; (2) failed to testify as to the correct
standard of care; and (3) his testimony was wrongly premised on
CIVIL NO. 17-2253 (RAM)
17
the fact that Dr. Pardo was absent from the hospital during key
moments in this case. (Docket No. 153 at 15-24). However, as the
Court explained in the aforementioned Opinion and Order at Docket
No. 139 and above, Dr. Schifrin was well-qualified to opine on
whether earlier intervention with Plaintiff was warranted, and his
testimony was thus proper. While Defendant clearly believes Dr.
Schifrin’s methodology and conclusions were misguided and weak, it
was defense counsel’s job to convince the jury of that belief. As
the Supreme Court noted in Daubert, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence” rather than “wholesale
exclusion” of the evidence. Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 596 (1993). Defense counsel had the opportunity to
cross-examine Dr. Schifrin and present contrary evidence. His
client is not now entitled to a new trial simply because those
traditional methods of persuasion did not lead to a favorable
outcome.
3. Jury Instruction and Verdict Form
Defendant also argues it is entitled to a new trial because
the
Court
erred
when
it
gave
jury
instruction
number
26
(“Instruction 26”) and included question 6(b) on the verdict form
(“Question 6(b)”). (Docket No. 153 at 24-25). Instruction 26 read
in full:
CIVIL NO. 17-2253 (RAM)
JURY INSTRUCTION NO. 26: COMPENSATORY DAMAGES
Plaintiff seeks to recover damages for her
daughter JPC’s physical injuries and mental
and moral anguish. In this case, Plaintiff
alleges that JPC has suffered physical
injuries and moral anguish damages as a result
of HIMA’s staff’s alleged deviation from the
standard of care. HIMA denies that these
damages were caused by a deviation from the
standard of care.
The purpose of compensatory damages is to make
the plaintiff whole – that is to compensate
JPC for the damage that she has suffered.
These
damages
are
called
“compensatory
damages.”
You must determine what loss, if any, JPC
suffered that was caused by any negligence
that you find HIMA has committed. You may
award compensatory damages only for damages
that Plaintiff proves were proximately or
adequately caused by Dr. Pardo and/or HIMA’s
nurses’ allegedly wrongful conduct. Regarding
moral anguish damages in particular, it is
essential to prove deep moral suffering and
anguish. That means that a passing affliction
will not give rise to an action for damages.
Evidence of the monetary value of intangible
things like mental and moral anguish, or of
pain and suffering, physical injuries and
permanent injury and other noneconomic losses
cannot be introduced and there is no standard
for fixing any compensation to be awarded for
these injuries.
Even though it is obviously difficult to
establish a standard of measurement for these
damages, that difficulty is not grounds for
denying a recovery on these elements of
damages. You should be guided by dispassionate
common sense.
You must, therefore, make the best and most
reasonable estimate you can, not from a
18
CIVIL NO. 17-2253 (RAM)
19
personal point of view, but from a fair and
impartial one. You are not permitted to award
speculative damages. And you must place a
monetary value on this, attempting to come to
a conclusion that will be fair and just to all
the parties. In calculating the amount of any
compensatory damages that JPC has suffered for
emotional harm and other losses, if at all,
consider the severity of the harm and the
length of time that she suffered the harm. In
considering
future
mental
anguish
and
suffering damages, if at all, you should
estimate JPC’s life expectancy guided by your
logic, common sense, personal knowledge and
experience.
I recognize that this will be difficult for
you to measure in terms of dollars and cents,
but there is no other rule I can give you for
assessing this element of damages.
Lastly, if you find Defendant liable but find
that JPC’s emotional distress resulting from
Dr. Pardo’s and/or HIMA’s negligence has no
monetary value, you may award her nominal or
token damages such as one dollar or another
minimal amount.
(Docket No. 144 at 33-35) (emphasis added).
Question 6(b) asked the jury to determine “[w]hat sum of money
do you find, by a preponderance of the evidence, would compensate
Plaintiff JPC for . . . [h]er past and future mental anguish and
suffering[.]” (Docket No. 147 at 3).
Defendant
contends
that
Plaintiff’s
mother’s
testimony
regarding her daughter’s condition was insufficient to allow the
jury to reasonably determine whether and how Plaintiff suffers
from her condition, the extent and nature of the condition, or its
CIVIL NO. 17-2253 (RAM)
duration.
(Docket
No.
20
153
at
25). 7
Defendant
particularly
challenges the language regarding future life expectancy, which it
argues was never discussed at trial and therefore invited the jury
to speculate on matters outside the realm of their common knowledge
in determining a damages amount. Id. at 26-28.
As the Court explained when this objection was first raised,
Magistrate Judge McGiverin’s analysis in Rodriguez-Valentin is
instructive. (Docket No. 152-3 at 92). And, since this Court’s
initial ruling on this objection, the First Circuit has affirmed
that decision. See Rodriguez-Valentin, 2022 WL 556194. The district
court in Rodriguez-Valentin held that a jury’s verdict as to life
expectancy was not overly speculative despite the absence of expert
testimony on the subject. In that case, the jury heard from the
plaintiff’s mother and a life care planner concerning the hardships
the plaintiff faced due to his cerebral palsy. See RodriguezValentin, 2020 WL 6273760, at *4. The court explained that “[w]hile
the life expectancy of a child with severe cerebral palsy likely
would be a proper subject for expert testimony . . . it is a
separate question whether a jury may return a verdict without
expert testimony as to life expectancy.” Id. The court ultimately
Defendant originally challenged Instruction 26 and Question 6(b) before the
case was submitted to the jury, and thus properly preserved the objections.
(Docket No. 152-3 at 88-91, 96); Fed. R. Civ. P. 51(c). The Court agreed to
modify the language of Instruction 26 but denied the objection and instructed
the jury on future mental anguish and suffering damages. (Docket No. 152-3 at
92-95).
7
CIVIL NO. 17-2253 (RAM)
21
determined that “the jury heard testimony sufficient to inform,
together with the jury’s logic, common sense, personal knowledge,
and experience, a reasonable estimate as to life expectancy.” Id.
(internal quotation marks and citation omitted). The court also
held that the pain and suffering damages were supported by the
testimony from the life care planner and the plaintiff’s family
“regarding the extreme challenges and suffering plaintiff faces
every day of his life and in nearly every aspect of his life.” Id.
at *5. Reviewing this issue for plain error, the First Circuit
declined to “reach the legal question of whether Puerto Rico law
requires such expert testimony,” but found that the defendant
offered “no authority demonstrating that it is clearly the case
under
Puerto
Rico
law
that
a
plaintiff
must
present
expert
testimony about life expectancy to receive damages for future care
costs in a medical malpractice action.” Rodriguez-Valentin, 2022
WL 556194, at *6-8.
Similarly, in the case at bar, Defendant has not presented
any authority that mandates the presentation of expert testimony
in this scenario. The Court is not persuaded that it was improper
to instruct the jury to rely on both the testimony of Plaintiff’s
mother regarding Plaintiff’s conditions and hardships and the
jury’s own logic, common sense, personal knowledge and experience.
In
the
absence
of
any
binding
authority
to
the
contrary,
Instruction 26 and Question 6(b) were properly presented to the
CIVIL NO. 17-2253 (RAM)
22
jury.
Further, to the extent Defendant’s challenge on this issue
relates to the high damages award, that issue is addressed below
in the remittitur section. See Annoni Mesias, 2021 WL 1125019, at
*4 (“[T]he Court will not grant a new trial simply because the
award may be overly excessive; under such scenario, the remittitur
petition would be more appropriate.”).
4. Statements by Plaintiff’s
Closing Argument
Counsel
During
His
Finally, Defendant argues a new trial is warranted because
Plaintiff’s counsel made a number of improper comments in his
closing argument. (Docket No. 153 at 28-31). Defendant contends it
was “clearly erroneous” for the Court not to “instruct the jury as
to the impropriety of the comments and/or strike the same from the
record,” and thus a new trial must be conducted. Id. at 31.
In assessing the effect of allegedly improper statements made
by counsel during closing arguments, courts examine:
[T]he totality of the circumstances, including
(1) the nature of the comments; (2) their
frequency; (3) their possible relevance to the
real issues before the jury; (4) the manner in
which the parties and the court treated the
comments; (5) the strength of the case; and
(6) the verdict itself.
Granfield v. CSX Transp., Inc., 597 F.3d 474, 490 (1st Cir. 2010).
Generally,
“[p]roviding
the
jury
with
timely
and
appropriate
curative instructions to ignore the offending testimony is a common
CIVIL NO. 17-2253 (RAM)
23
way to obviate the need for ordering a mistrial.” Aguayo v.
Rodriguez, 2016 WL 3522259, at *3 (D.P.R. 2016), aff’d sub nom,
Mejias-Aguayo v. Doreste-Rodriguez, 863 F.3d 50 (1st Cir. 2017)
(quoting Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d
52, 63 (1st Cir. 2005)). Additionally, courts recognize that
“[t]rials are adversarial processes in which things may be said
which the other side regards as incorrect and sometimes offensive.”
Mitchell v. Weaver, 806 F.2d 300, 302 (1st Cir. 1986). Though
courts
should
impropriety,”
“intervene
such
in
instances
instances
are
usually
of
unfairness
dealt
with
and
“through
rebuttal by the opposing side[.]” Id.
Defense counsel objected multiple times on the record during
Plaintiff’s closing argument. (Docket No. 152-4 at 4-16, 28-31).
The Court reviewed each objection and finds that none warrant
ordering a new trial.
First, several objections were immediately followed by a
curative instruction. Id. at 6, 13. The unequivocal instructions
undoubtedly “obviate the need for ordering a mistrial” as to those
objections. Aguayo, 2016 WL 3522259, at *3.
Second,
Defendant
objected
to
Plaintiff’s
counsel’s
statements concerning how the jury should calculate pain and
suffering and mental anguish damages. (Docket No. 152-4 at 14).
The Court sustained that objection. Id. While Defendant did not
request,
and
the
Court
did
not
give,
a
specific
curative
CIVIL NO. 17-2253 (RAM)
24
instruction, the jury was explicitly instructed on how to calculate
pain and suffering and mental anguish damages in Instruction 26.
(Docket No. 152-3 at 118-19). The jury was also told “[s]tatements,
arguments, and questions by lawyers are not evidence.” Id. at 105.
When viewed in context, these statements by Plaintiff’s counsel
were not unduly prejudicial. See Portugues-Santana v. Rekomdiv
Int’l Inc., 725 F.3d 17, 27 (1st Cir. 2013) (finding similar
general instructions were sufficient to cure any possible adverse
effects
of
allegedly
improper
statements
made
by
plaintiff’s
counsel).
Further,
Defendant
raised
a
host
of
objections
during
Plaintiff’s rebuttal closing argument. (Docket No. 152-4 at 2831).
Plaintiff’s
apportionment
rebuttal
between
HIMA
focused
and
Dr.
primarily
Pardo.
Id.
on
In
damages
discussing
apportionment, Plaintiff’s counsel put words in Dr. Schifrin’s
mouth regarding the fault attributable to Dr. Pardo. Id. at 29.
Outside the presence of the jury, the Court instructed Plaintiff’s
counsel not to present any argument regarding damages premised on
Doctor Pardo’s absence from the lawsuit. Id. at 30. While the Court
did not admonish Plaintiff’s counsel in the presence of the jury
or give the jury a curative instruction, the failure to do so is
not grounds for a new trial in this instance. Examining the
“totality of the circumstances” surrounding Plaintiff’s rebuttal
closing argument, the Court finds that the potential prejudice
CIVIL NO. 17-2253 (RAM)
25
Defendant suffered was greatly reduced by Defendant’s own closing
argument.
Most
of
Defendant’s
closing
argument
discussed
Dr.
Pardo’s testimony, his rationale for taking the actions he did,
and confirming his ultimate responsibility for Plaintiff’s care.
Id. at 16-28; see also Mitchell, 806 F.2d at 302 (“The usual way
[incorrect statements by counsel during trial] are dealt with is
through rebuttal by the opposing side[.]”). Additionally, the
Court openly sustained three of Defendant’s objections during the
rebuttal closing argument and later instructed the jury on the
evidentiary effect of statements by lawyers and of objections
sustained during trial. (Docket Nos. 152-3 at 105-106; 152-4 at
28-30). Overall, Plaintiff’s counsel’s rebuttal closing argument
does not warrant a mistrial.
Finally, it is unclear if Defendant challenges any additional
statements
that
it
did
not
object
to
at
trial.
Defendant
inconsistently argues both that “Defense counsel objected to all
instances of impropriety” and that a new trial is warranted “even
if not all instances of the improper comments were not objected.”
(Docket No. 153 at 28, 31). To the extent Defendant does challenge
any additional statements in the closing argument, the arguments
which were not objected to will be reviewed only for plain error.
See Aguayo, 2016 WL 3522259, at *3 (citing Smith v. Kmart Corp.,
177 F.3d 19, 25-26 (1st Cir. 1999)). The Court will only consider
a forfeited objection under plain error review if: “(1) an error
CIVIL NO. 17-2253 (RAM)
26
was committed; (2) the error was ‘plain’ (i.e., obvious and clear
under current law); (3) the error was prejudicial (i.e., affected
substantial
rights);
and
(4)
review
is
needed
to
prevent
a
miscarriage of justice.” Id. After a careful review of the closing
argument transcript, no additional statements made by Plaintiff’s
counsel warrant discussion.
5. Conclusion
Pursuant to the analysis above, Defendant’s request for a new
trial at Docket No. 153 is DENIED.
C. Remittitur
In the alternative, Defendant petitions this Court for a
remittitur, arguing that the jury’s $16,000,000 damages award is
excessive in light of the evidence presented at trial. (Docket No.
153 at 31). “A party seeking remittitur bears a heavy burden of
showing that an award is grossly excessive, inordinate, shocking
to the conscience of the court, or so high that it would be a
denial of justice to permit it to stand.” Marcano Rivera, 415 F.3d
at 173 (quoting Currier v. United Techs. Corp., 393 F.3d 246, 256
(1st Cir. 2004)). “In reviewing an award of damages, the district
court is obliged to review the evidence in the light most favorable
to the prevailing party[.]” Wortley v. Camplin, 333 F.3d 284, 297
(1st Cir. 2003) (internal quotation marks and citation omitted).
“[T]he paramount focus” in this analysis is “the evidence presented
at trial.” Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 579
CIVIL NO. 17-2253 (RAM)
27
(1st Cir. 1989). The First Circuit adheres to the “maximum recovery
rule,” which allows the Court to “direct a remittitur geared to
the maximum recovery for which there is evidentiary support,”
subject to Plaintiff’s right to reject the remittitur and instead
proceed with a new trial on the disputed damages claim. See Trainor
v. HEI Hosp., LLC, 699 F.3d 19, 33 (1st Cir. 2012).
Here, though the trial evidence supports the jury’s liability
determination, the $16,000,000 award for physical damages and
mental anguish and suffering is “grossly disproportionate to any
injury established by the evidence[.]” Koster v. Trans World
Airlines,
Inc.,
181
F.3d
24,
34
(1st
Cir.
1999).
Therefore,
remittitur is warranted. Because the jury was asked to award
separate damages amounts for physical damages and for past and
future mental anguish and suffering, each is discussed separately
below.
1. Physical Damages
At
trial,
Plaintiff’s
mother
was
the
only
witness
who
testified regarding Plaintiff’s physical conditions. She explained
how Plaintiff suffers from cerebral palsy, quadriplegia, asthma,
and developmental delay and provided color as to the struggles of
Plaintiff’s daily life. (Docket No. 152-1 at 91-92, 103-106). These
struggles include uncontrollably hitting herself, biting herself,
and tearing at her own hair. Id. at 91, 106. The jury also heard
how Plaintiff cannot speak, eat on her own, use the bathroom on
CIVIL NO. 17-2253 (RAM)
28
her own, or focus. Id. Plaintiff’s mother added that “[e]verything
that [Plaintiff] does, she does with a lot of difficulty.” Id. at
91.
While
the
jury
undoubtedly
heard
and
saw
evidence
establishing the physical and debilitating pain Plaintiff suffers
from, the jury heard no testimony that would justify such a high
physical damages award. Most notably, Plaintiff failed to call a
single witness—expert or otherwise—who could provide a medical
assessment of the child’s limitations and help the jury place a
dollar figure on Plaintiff’s physical damages. The jury’s award
reflects
wild
speculation
based
on
the
minimal
evidence
and
testimony they were presented with at trial. While the Court
recognizes that a “jury’s assessment of the appropriate damages
award is entitled to great deference,” Guzman v. Boeing Co., 366
F. Supp. 3d 219, 228 (D. Mass. 2019) (citation omitted), the trial
evidence does not support an $8,000,000 award for physical damages.
To assist in determining the appropriate damages amount, the
Court looks to awards in comparable cases. See e.g., Aponte-Rivera
v. DHL Sols. (USA), Inc., 650 F.3d 803, 811 (1st Cir. 2011)
(“Awards
in
comparable
cases
are
instructive.”);
Nieves
v.
Municipality of Aguadilla, 2015 WL 3932461, at *9 (D.P.R. 2015)
(“Though the evidence presented at trial dictates the amount of
remittitur, examination of other cases is useful in reaching a
decision.”). The First Circuit has decided that, in diversity case,
CIVIL NO. 17-2253 (RAM)
29
federal courts should use other federal cases to review jury
awards. See Annoni Mesias, 2021 WL 1125019, at *6 (citing SueroAlgarin v. CMT Hosp. Hima San Pablo Caguas, 957 F.3d 30, 40-42
(1st Cir. 2020); Marcano Rivera, 415 F.3d at 172).
Following this directive, the Court examined physical damages
awards in similar cases from the First Circuit. This Court once
again finds Rodriguez-Valentin instructive given its recency and
factual similarity to the case at bar. See Rodriguez-Valentin,
2020 WL 6273760, aff’d, 2022 WL 556194. 8 There, after hearing
testimony concerning the minor plaintiff’s complications from his
mother and a life care planner, the jury awarded a combined
$1,300,000 in damages for both emotional and physical pain and
suffering. Id. at *1, 5. The district court upheld the jury award
because it was not “grossly excessive” or “exaggeratedly high,”
though Magistrate Judge McGiverin noted that the $1,300,000 award
was “undoubtedly generous” given the evidence presented. Id. at
*5. The First Circuit subsequently affirmed that decision. See
Rodriguez-Valentin, 2022 WL 556194, at *8.
This Court also reviewed the First Circuit’s decision in Muniz
v. Rovira. There, the court upheld a jury’s $2,000,000 compensatory
damages award to compensate the minor plaintiff for several birth
defects
allegedly
caused
by
the
negligence
of
her
mother’s
Both Plaintiff and Defendant relied on this case in support of their arguments
concerning remittitur. (Docket Nos. 153 at 35; 159 at 15, 23).
8
CIVIL NO. 17-2253 (RAM)
30
obstetrician. See Muniz, 373 F.3d at 1-9. The plaintiff’s physical
impairments included a brachial plexus injury, Erb’s palsy, and a
shoulder dystocia. Id. at 4. Unlike in the case at bar, the Muniz
jury
heard
expert
testimony
concerning
the
effect
of
the
plaintiff’s injuries on her physical wellbeing and the future pain
to be endured by the plaintiff. Id. at 9. The First Circuit held
that,
though
“large,”
conscience-shocking
the
plainly
damages
award
erroneous,
or
“cannot
a
be
deemed
miscarriage
of
justice.” Id. 9
Having reviewed the record and analogous cases, the Court
finds that $2,000,000 is the maximum physical damages award that
can be justified based on the facts of this case. The jury’s award
in the case at bar was well above similar awards that were deemed
“large” and “undoubtedly generous,” and which were based on more
evidence and testimony than the jury was presented with here. See
Muniz, 373 F.3d at 9; Rodriguez-Valentin, 2020 WL 6273760, at *5.
2. Past and Future Mental Anguish and Suffering
While trial evidence of Plaintiff’s physical damages was
limited, evidence of Plaintiff’s past and future mental anguish
and suffering can only be described as severely limited. Plaintiff
failed to provide any medical testimony concerning her mental
While Muniz differs from this case procedurally, in that the defendant failed
to seek a remittitur in the lower court and the First Circuit thus reviewed the
claims only for plain error, see id., the case still provides a helpful benchmark
to compare the trial evidence and ultimate jury award with the case at bar.
9
CIVIL NO. 17-2253 (RAM)
31
anguish and suffering. And Plaintiff simply made no attempt to
establish future suffering with any certainty or to confirm her
capacity to suffer in the first instance. While Plaintiff’s mother
did reference certain mental impairments that Plaintiff suffers
from as a result of her conditions, such as an inability to define
her feelings and an inability to focus (Docket No. 152-1 at 91,
106),
that
evidence
was
scant.
The
Court
appreciates
that
“converting feelings such as pain, suffering, and mental anguish
into dollars is not an exact science,” but the jury’s damages award
here shocks the conscience when reviewed in light of the sparse
evidence in the record. Correa v. Hosp. San Francisco, 69 F.3d
1184, 1198 (1st Cir. 1995).
A
comparison
with
the
Rodriguez-Valentin
verdict
further
highlights the inordinate magnitude of this damages award. 10 Again,
In addition to Rodriguez-Valentin, both parties cited Arroyo Picart v.
Fundacion Dr. Pila Iglesias, Inc., No. 15-1523 (MEL) and Santos Arrieta v. Hosp.
Del Maestro, Inc., 2019 WL 4060466 (D.P.R. 2019) in their briefs. (Docket Nos.
153 at 35; 159 at 15, 23). In Arroyo Picart, the plaintiff was born with
disabilities due to the alleged negligence of hospital personnel and the
mother’s obstetrician. Following a one-day jury trial solely on the issue of
damages, the jury awarded $2,000,000 for emotional pain and suffering. However,
neither party provided this Court with a full transcript of the trial, and none
exists on the docket. Therefore, while the Court notes the ultimate jury award,
it cannot adequately compare the facts and circumstances of that trial to the
case at bar. Additionally, while the district court in Santos Arrieta upheld
the jury’s award of $1,209,000 for emotional pain and suffering for a child who
allegedly sustained brain injuries during birth, the First Circuit recently
vacated that decision based largely on the district court’s failure to follow
the procedural mechanisms outlined in Rule 50. See Santos-Arrieta v. Hosp. Del
Maestro, 14 F.4th 1, 12 (1st Cir. 2021). Given these deficiencies in other
recent and similar cases from this district, the Court primarily relies on the
Rodriguez-Valentine decision for its comparison.
10
The Court also notes that while Plaintiff’s counsel cited the multi-milliondollar damages awards in his last three malpractice jury verdicts, he cited the
total awards in those cases and failed to state that the physical and mental
CIVIL NO. 17-2253 (RAM)
the
Rodriguez-Valentin
32
jury
awarded
$1,300,000
in
combined
physical and emotional pain and suffering damages despite hearing
the testimony of both the plaintiff’s mother and a life care
planner. See Rodriguez-Valentin, 2020 WL 6273760, at *5. There,
the court noted that the jury “heard substantial evidence as to
plaintiff’s permanent medical condition and present sufferings.”
Id. at *4. Such evidence included testimony about the plaintiff’s
regular therapy sessions, as well as his routine appointments with
a neurologist, pediatrician, and physiatrist. Id. Simply put, the
jury in Rodriguez-Valentin awarded significantly less damages for
mental anguish and suffering after hearing more detailed testimony
on the subject.
After reviewing the record and conducting a comparison with
similar cases from this district, the Court finds that $1,000,000
is the maximum award that can be justified for past and future
mental anguish and suffering in this case.
3. Conclusion
For
the
foregoing
reasons,
Defendant’s
petition
for
remittitur is GRANTED. The jury award is reduced to $2,000,000 for
physical damages and $1,000,000 for past and future mental anguish
and suffering. Because the jury attributed 40% of the negligence
to Defendant, Defendant is liable for $1,200,000 of this total
suffering damages in each case was far less than $16,000,000. (See Docket No.
159 at 15).
CIVIL NO. 17-2253 (RAM)
33
award. Should Plaintiff choose to forego this remittance, a new
trial will be held solely on the issue of damages. Plaintiff shall
inform the Court of its decision whether it would like to proceed
to a new trial in lieu of a $3,000,000 award within twenty-eight
(28) days of entry of this Order.
D. Amendment of Judgment Entered
Finally, Defendant filed a Motion requesting that the Court
amend the judgment to reflect only the amount of the damages award
apportioned to Defendant. (Docket No. 154). Given the Court’s
decision to grant Defendant’s petition for remittitur, this motion
is DISMISSED AS MOOT. However, any subsequent judgment that is
entered
in
this
case
shall
specify
the
amount
of
damages
apportioned to Defendant.
III.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Judgment as
a Matter of Law is DENIED, Defendant’s Motion for New Trial as per
FRCP 59 and/or Remittitur is GRANTED IN PART AND DENIED IN PART,
and Defendant’s Motion Requesting Amendment of Judgment Entered is
DISMISSED AS MOOT. Plaintiff shall inform the Court of its decision
whether it would like to proceed to a new trial in lieu of a
$3,000,000 award within twenty-eight (28) days of entry of this
Order.
CIVIL NO. 17-2253 (RAM)
34
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of March 2022.
S/RAÚL M. ARIAS-MARXUACH_________
UNITED STATES DISTRICT JUDGE
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