USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-2108
GLORIA BLINZLER, Individually and
in her capacity as Wrongful Death
Beneficiary of James A. Blinzler,
Plaintiff, Appellant,
v.
MARRIOTT INTERNATIONAL, INC.,
Defendant, Appellee.
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No. 95-2199
GLORIA BLINZLER, ETC.,
Plaintiff, Appellee,
v.
MARRIOTT INTERNATIONAL, INC.,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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John P. Barylick, with whom Wistow & Barylick Inc. was on
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brief, for plaintiff.
Stephen B. Lang, with whom Patrick B. Landers and Higgins,
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Cavanagh & Cooney were on brief, for defendant.
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April 12, 1996
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SELYA, Circuit Judge. These cross-appeals require us
SELYA, Circuit Judge.
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to wend our way through a maze of unusual facts and subtly
nuanced legal issues. After exploring a little-charted frontier
of tort law, we reverse the district court's direction of
judgment notwithstanding the verdict and reinstate the jury's
award on the plaintiff's claim for negligent infliction of
emotional distress. In all other respects, we affirm the rulings
of the lower court.
I. BACKGROUND
I. BACKGROUND
This litigation arises out of the tragic demise of
James Blinzler, husband of the plaintiff Gloria Blinzler. The
course of events leading to James Blinzler's death began on
November 13, 1992, when the Blinzlers checked into a Somerset,
New Jersey, hotel operated by the defendant Marriott
International, Inc. (Marriott). Shortly after 8:30 p.m. the
decedent, relaxing in his room, experienced difficulty in
breathing. Sensing danger, he ingested nitroglycerin (he had
suffered heart attacks before) while his wife called the hotel
PBX operator and requested an ambulance. The operator received
the SOS no later than 8:35 p.m. and agreed to honor it. She
promptly told the hotel's security officer and the manager on
duty about the medical emergency. Though the defendant
steadfastly maintains that the operator also called an ambulance
then and there, the record, read hospitably to the verdict, see
___
Cumpiano v. Banco Santander P.R., 902 F.2d 148, 151 (1st Cir.
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1990), indicates that she did not place this critical call until
2
some fourteen minutes after receiving the plaintiff's entreaty.
The ambulance arrived at 9:02 p.m. In the meantime the plaintiff
watched her husband's condition deteriorate: he collapsed on the
bed, vomited while supine, and apparently stopped breathing.
During this horrific hiatus, the plaintiff twice asked hotel
personnel whether an ambulance had been summoned when the
emergency first arose. She was twice falsely reassured (whether
in honest error is not clear) that one had been called.
When the paramedics arrived on the scene, they could
not locate a pulse and discovered that the decedent's airway was
blocked. Resuscitative efforts restored the decedent's heart to
a normal rhythm and he was transported celeritously to a nearby
hospital. Doctors diagnosed the heart attack as a "very small
myocardial infarction." Nevertheless, the brain damage resulting
from a prolonged period of asystole without cardiopulmonary
resuscitation led to James Blinzler's death three days later.
II. PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION
II. PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION
Invoking diversity jurisdiction, 28 U.S.C. 1332
(1994), the plaintiff sued Marriott in Rhode Island's federal
district court for wrongful death (count 1), loss of consortium
(count 2), and negligent infliction of emotional distress (count
3). She alleged in substance that the hotel failed to summon an
ambulance in a timely fashion and that this carelessness
proximately caused both her own damages and her husband's death.
The jury agreed, awarding $200,000 for wrongful death, $50,000
for loss of consortium, and $200,000 for emotional distress.
3
Addressing a variety of post-trial motions, the district judge
upheld the verdict on the first two counts, but granted judgment
for the defendant on the third count. Both sides appeal.
The cross-appeals raise several issues. Two are in the
forefront. The centerpiece of the defendant's appeal is the
assertion that the evidence did not forge a causal link between
the failure promptly to summon an ambulance and the ensuing
death. In contrast, the plaintiff's appeal hinges on the
district court's extirpation of the jury verdict on her claim for
negligent infliction of emotional distress. Because the
defendant's contention that the plaintiff failed as a matter of
law to prove causation involves an across-the-board challenge to
the jury verdict as a whole, we deal first with that issue. We
then mull the plaintiff's contention that the lower court
erroneously forecast emergent New Jersey law on bystander
liability and therefore erred in setting aside the verdict on
count 3. Finally, we address the defendant's remaining
assignments of error.
Under the principles of Erie R.R. Co. v. Tompkins, 304
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U.S. 64, 78 (1938), state law (here, the law of New Jersey)
supplies the substantive rules of decision in this diversity
case. Since New Jersey law is less than explicit on one key
issue that concerns us, we pause to comment briefly on the role
of a federal court in adjudicating controversies controlled by
state law.
In its barest essence, borrowing state law demands
4
nothing more than interpreting and applying the rules of
substantive law enunciated by the state's highest judicial
authority, or, on questions to which that tribunal has not
responded, making an informed prophecy of what the court would do
in the same situation.1 See Moores v. Greenberg, 834 F.2d 1105,
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1112 (1st Cir. 1987). In the latter instance, we seek guidance
in analogous state court decisions, persuasive adjudications by
courts of sister states, learned treatises, and public policy
considerations identified in state decisional law. See Ryan v.
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Royal Ins. Co., 916 F.2d 731, 734-35 (1st Cir. 1990); Kathios v.
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General Motors Corp., 862 F.2d 944, 949 (1st Cir. 1988). As long
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as these signposts are legible, our task is to ascertain the rule
the state court would most likely follow under the circumstances,
even if our independent judgment on the question might differ.
See Moores, 834 F.2d at 1107 n.3.
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III. CAUSATION
III. CAUSATION
The defendant challenges the entire verdict on the
basis that the plaintiff provided insufficient evidence from
which a reasonable jury could conclude that the belated call
constituted a proximate cause of the ensuing death. Under New
Jersey law the plaintiff bears the burden of proving that the
defendant's conduct comprised "a substantial factor in producing
the harm" of which the plaintiff complains. Francis v. United
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1Indeed, this kind of predictive approach is among our
conceptions of law itself. See Oliver Wendell Holmes, The Path
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of the Law, 10 Harv. L. Rev. 457, 461 (1897) ("The prophecies of
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what the courts will do in fact, and nothing more pretentious,
are what I mean by law.").
5
Jersey Bank, 432 A.2d 814, 829 (N.J. 1981). When the questioned
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conduct is an omission the defendant's failure to act rather
than the defendant's maladroit performance of an affirmative act
this rule is easier to state than to apply. In the last
analysis, it can rarely (if ever) be said with absolute certainty
that harm would not have befallen the victim if the omitted
action had been taken.
One species of omission that occurs from time to time
involves the generic charge that, had the defendant done some
particular act, the plaintiff (or, as here, the plaintiff's
decedent) would have had a better chance to ward off threatened
harm. In these so-called "loss of chance" cases New Jersey law
instructs that the plaintiff can carry her burden by showing a
"substantial possibility" that the harm would have been averted
had the defendant acted in a non-negligent manner. Hake v.
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Manchester Township, 486 A.2d 836, 839 (N.J. 1985); see also Olah
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v. Slobodian, 574 A.2d 411, 417-19 (N.J. 1990) (discussing
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Hake).2 Transposed to the rescue context, this rule renders a
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defendant's omission actionable if the plaintiff can show that
the omission "negated a substantial possibility that prompt
rescue efforts would have been successful." Hake, 486 A.2d at
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839.
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2It is commonly thought that the "substantial possibility"
standard is more lenient than a standard that requires a
plaintiff to prove it is more likely than not that a defendant's
failure to act constituted a substantial factor in bringing about
the victim's injury or death. See W. Page Keeton et al., Prosser
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& Keeton on Torts 41, at 44 (Supp. 1988).
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6
Under these authorities, the question here reduces to
whether the evidence, viewed in the light most congenial to the
plaintiff, supports a finding that the defendant's failure
promptly to call an ambulance negated a substantial possibility
that James Blinzler would have survived. We think that this
question warrants an affirmative answer.
The plaintiff submitted evidence that she beseeched the
defendant to summon help at 8:35 p.m.; that an ambulance crew was
available and free to respond at that time; and that the
defendant agreed to place the call but then neglected to do so.
The defendant actually made the call at 8:49 p.m. (some fourteen
minutes later) and the ambulance reached the scene at 9:02 p.m.
(an elapsed time of thirteen minutes). The jury heard opinion
evidence from a renowned cardiologist that serious brain damage
(and, hence, death) would have been forestalled had the
paramedics reached the premises ten minutes earlier. On this
record, we believe that a reasonable jury could conclude that the
defendant's omission negated a substantial possibility that the
rescue efforts would have succeeded. Put another way, a
reasonable jury could find (as this jury apparently did) that the
ambulance likely would have arrived fourteen minutes earlier had
it been summoned immediately; that the course of treatment would
have been accelerated by a like amount of time; and that, but for
Marriott's negligence James Blinzler would have survived.
The defendant tries to parry this thrust in two ways.
One initiative involves assembling a string of cases (mostly of
7
hoary origin) in which courts have rejected plaintiffs' claims of
negligence for failure to rescue. See, e.g., Foss v. Pacific
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Tel. & Tel. Co., 173 P.2d 144, 149 (Wash. 1946); Whitehead v.
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Carolina Tel. & Tel. Co., 129 S.E. 602, 605 (N.C. 1925);
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Volquardsen v. Iowa Tel. Co., 126 N.W. 928, 930 (Iowa 1910);
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Lebanon, L. & L. Tel. Co. v. Lanham Lumber Co., 115 S.W. 824, 826
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(Ky. 1909). These cases all of which involve fire damage
coupled with some alleged negligence on the part of a telephone
company in respect to a telephone call meant to summon the fire
department provide little guidance. In those cases, unlike
here, the plaintiffs did not proffer evidence that, had the call
gone through, the rescuers (there, the firefighters) could have
reached the scene in time to prevent the harm (there, the rapid
spread of a conflagration that had already started). See, e.g.,
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Foss, 173 P.2d at 149; Lebanon, 115 S.W. at 826. And perhaps
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more importantly, each of those cases draw on Lebanon for the
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legal standard of causation a standard that differs materially
from New Jersey's standard. See Lebanon, 115 S.W. at 826
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(stating that "it must be established with certainty that but for
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their negligence the fire would have been confined" as the
plaintiff contends) (emphasis supplied).
This second point is aptly illustrated by the one entry
in Marriott's string citation that does not involve a burning
building: Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024
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(Okla. 1996). To understand Hardy, it is necessary to note that,
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in McKellips v. St. Francis Hosp., Inc., 741 P.2d 467, 475-77
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8
(Okla. 1987), the Oklahoma Supreme Court held that the causation
standard of the Restatement (Second) of Torts 323 (under which
a plaintiff may prove negligence in a loss of chance case by
showing that the defendant's omission "increase[d] the risk" of
harm), applied in medical malpractice cases. Hardy a case in
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which the plaintiff alleged that the telephone company's
negligent operation of a 911 service prevented him from summoning
rescue assistance and thereby proximately caused his wife's death
postdated McKellips. The Oklahoma Supreme Court there
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considered extending the causation standard of Restatement 323
to loss of chance claims outside the medical malpractice context.
See Hardy, 910 P.2d at 1025. It declined to do so. See id. at
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1030.
Hardy, fairly read, confirms the distinction between
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proof of causation in loss of chance cases under the traditional
test (to which Oklahoma adheres in cases not involving medical
malpractice) and under more modern standards that focus instead
on whether a defendant's conduct has significantly increased
particular risks. As we have explained, New Jersey's
"substantial possibility" standard applies to loss of chance
cases in general,3 and it is at a minimum as liberal as the
"increased risk" standard endorsed by section 323 of the
Restatement. See Olah, 574 A.2d at 419 (suggesting that whether
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3Like Oklahoma, New Jersey has explicitly adopted section
323 of the Restatement for use in loss of chance cases involving
medical malpractice. See Scafidi v. Seiler, 574 A.2d 398, 405
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(N.J. 1990); Evers v. Dollinger, 471 A.2d 405, 415 (N.J. 1984).
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9
the plaintiff "has a substantial possibility of avoiding harm
would ordinarily be subsumed in the jury's determination whether
a defendant's deviation increased the risk of harm") (internal
quotations omitted). Since Hardy apparently would have stated a
claim had the Oklahoma court applied the more lenient "increased
risk" standard, see Hardy, 910 P.2d at 1030, Marriott's flagship
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case actually supports a finding of causation under New Jersey
law.
Marriott's second attempt to scuttle the finding of
causation features its lament that the plaintiff did not prove
that the same traffic conditions which were extant at and after
8:49 p.m. were also extant at and after 8:35 p.m. This lament
can scarcely be taken seriously. Juries have the power to draw
reasonable inferences from established facts. It is well within
a jury's ordinary competence to conclude that traffic conditions
for an emergency vehicle do not change dramatically in a fourteen
minute period that is well outside rush hour.
The defendant's suggestion that a highway accident, or
a diluvian tempest, or some other freak occurrence, later abated,
might have delayed the ambulance if it began its run at 8:35 p.m.
rather than at 8:49 p.m. is equally jejune. It is the
plaintiff's burden to prove her case by a preponderance of the
evidence, not beyond all conceivable doubt. In the absence of
some reason to suspect changed conditions and there is no
evidence of any actual change here the jury's inference that
the ambulance would have arrived in roughly the same elapsed
10
portal-to-portal time is unimpugnable. See Levesque v. Anchor
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Motor Freight, Inc., 832 F.2d 702, 704 (1st Cir. 1987)
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(explaining that the "perhapses" that dot a factbound trial
record typically "are for factfinders to resolve not for judges
imperiously to dictate"); see also W. Page Keeton et al., Prosser
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& Keeton on Torts 41, at 269 (5th ed. 1984) (noting that a
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plaintiff does not have to negate entirely the possibility that
the defendant's conduct was not a contributing cause of the
harm).
Silhouetted against this legal backdrop, the evidence
of record, visualized most favorably to the plaintiff, see
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Cumpiano, 902 F.2d at 151, suffices to ground a finding that, had
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the defendant hailed an ambulance immediately upon request, there
was at least a significant possibility that James Blinzler's
death could have been prevented. Accordingly, we are not at
liberty under New Jersey law to disturb the jury's conclusion
that Marriott's negligence constituted a substantial factor in
the ensuing death.
IV. BYSTANDER LIABILITY
IV. BYSTANDER LIABILITY
The most vexing issue in this case involves the
plaintiff's claim of negligent infliction of emotional distress.
This claim is based on the injury that she experienced while
watching her husband suffer as the beleaguered couple awaited the
ambulance's overdue arrival. We start this segment of our
analysis with a discussion of the doctrine of bystander liability
as it has evolved in New Jersey, then shift our attention to an
11
open question that the district court found to be dispositive,
and, finally, apply the doctrine as we understand it to the
idiosyncratic facts of this case.
A. General Principles of Bystander Liability.
A. General Principles of Bystander Liability.
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American courts first recognized bystander liability in
the landmark case of Dillon v. Legg, 441 P.2d 912 (Cal. 1968).
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Drawing in part on precedents from English common law, the court
ruled that a mother could recover for emotional and physical
injuries suffered "from witnessing the [negligent] infliction of
death or injury to her child." Id. at 914. The Dillon court
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implicitly suggested that any bystander should be able to recover
for all objectively foreseeable injuries. See id. at 920-21. To
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help jurists navigate the reefs and shoals of foreseeability, the
court attempted to elucidate guidelines based on Dillon's factual
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scenario. See id. at 920.
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Twelve years later, New Jersey embraced bystander
liability in Portee v. Jaffee, 417 A.2d 521 (N.J. 1980). The
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state supreme court did not clasp Dillon uncritically to its
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bosom, but, rather, abjured a tunnel-vision focus on
foreseeability, fearing that it would open the door to claims of
emotional distress advanced on behalf of any onlooker to any
negligently caused event.4 See id. at 527 (cautioning against
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4New Jersey is not alone in its reluctance blindly to follow
Dillon's lead. See, e.g., D'Ambra v. United States, 338 A.2d
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524, 528 (R.I. 1975) (rejecting rigid foreseeability focus).
Indeed, even the progenitor of the doctrine has had second
thoughts. See Thing v. La Chusa, 771 P.2d 814, 826 (Cal. 1989)
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(retreating from Dillon on this point).
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12
institutionalizing "an unreasonably excessive measure of
liability"); see also Carey v. Lovett, 622 A.2d 1279, 1286 (N.J.
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1993) (suggesting that treating foreseeability as a sole talisman
would render it difficult to differentiate between legitimate and
fraudulent claims); Prosser & Keeton, supra, 54, at 366
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(warning that forcing defendants to pay for the "lacerated
feelings" of every bystander would be "an entirely unreasonable
burden on human activity").
In an effort to furnish a condign remedy for deserving
injuries while at the same time avoiding "speculative results or
punitive liability," Portee, 417 A.2d at 526, New Jersey
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transmogrified the Dillon guidelines into prerequisites of a
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cause of action for bystander liability, see id. at 528. The
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Portee court concluded that a bystander plaintiff should be
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permitted to recover under New Jersey law only if she could prove
(1) the death or serious injury of another (caused by the
defendant's negligence); (2) an intimate familial relationship
with the victim; (3) her observation of the victim at the time of
the injury or immediately thereafter; and (4) severe emotional
distress resulting from the observation. See id. Subsequent
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decisions have cut plaintiffs some slack (but not very much) in
their efforts to fulfill this quadrat of requirements. See,
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e.g., Dunphy v. Gregor, 642 A.2d 372, 377-78 (N.J. 1994) (holding
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that unmarried cohabitants may enjoy an intimate familial
relationship); Frame v. Kothari, 560 A.2d 675, 678 (N.J. 1989)
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(explaining that a plaintiff may recover without actually seeing
13
the injury so long as it is "susceptible to immediate sensory
perception" and the plaintiff observes the victim immediately
after the injury is inflicted).
These four elements serve a critical function in
keeping bystander liability within reasonable bounds. First,
they furnish a set of guideposts that help to identify and define
a range of claims that are presumptively valid while excluding
other claims that society simply cannot afford to honor. See
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Dunphy, 642 A.2d at 377 (noting that the elements of bystander
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liability "structure the kind of `particularized foreseeability'
that ensures that the class is winnowed . . . and that limitless
liability is avoided"). Second and relatedly they combine to
define narrowly the emotional interest that the law protects.
See Carey, 622 A.2d at 1286; accord Thing v. La Chusa, 771 P.2d
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814, 829 (Cal. 1989). While "[t]he law should find more than
pity for one who is stricken by seeing that a loved one has been
critically injured or killed," Portee, 417 A.2d at 526, the
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elements of the bystander liability tort frankly recognize that
it is not the law's province to shield people from all anxieties.
Since the ordinary slings and arrows of human existence
inevitably produce stress and strain, "only the most profound
emotional interests should receive vindication for their
negligent injury." Id.
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The common thread that runs through these cases is that
emotional anguish is a natural, perhaps omnipresent, reaction
whenever one is forced to watch a loved one suffer, and therefore
14
should not be compensable in the absence of special
circumstances. In an effort to hold the line, New Jersey law
decrees that bystanders may recover in tort only for the
particularly exquisite anguish that occurs when they personally
observe trauma strike a loved one like a bolt from the blue. See
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Frame, 560 A.2d at 679 (explaining that bystander liability is
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supposed to remedy the "harm of seeing a healthy victim one
moment and a severely injured one the next"); Portee, 417 A.2d at
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527 ("Discovering the death or serious injury of an intimate
family member will always be expected to threaten one's emotional
welfare. Ordinarily, however, only a witness at the scene of the
accident causing death or serious injury will suffer a traumatic
sense of loss that may destroy his sense of security and cause
severe emotional distress."). Thus, there can be no recovery
unless the close relation's helpless watching arises in the
context of a sudden, unexpected, and accidental injury.
B. The Fork in the Road.
B. The Fork in the Road.
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The issue before us is whether the plaintiff's asserted
injury falls within the narrow range of bystander liability
claims that are actionable under New Jersey law. The district
court decided that it did not. The court relied primarily on a
series of bystander liability/medical malpractice cases in which
the New Jersey Supreme Court placed a gloss on its earlier
decisions and indicated that a plaintiff must witness the actual
act of malpractice and appreciate its effect on the patient in
order to bring herself within the class of persons entitled to
15
recover. See Carey, 622 A.2d at 1288 (declaring that a plaintiff
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must "contemporaneously observe the malpractice and its effects
on the victim"); Frame, 560 A.2d at 681 ("In an appropriate case,
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if a family member witnesses the physician's malpractice,
observes the effect of the malpractice on the patient, and
immediately connects the malpractice with the injury, that may be
sufficient to allow recovery for the family member's emotional
distress."); see also Gendek v. Poblete, 654 A.2d 970, 975 (N.J.
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1995) (rejecting a claim on the ground that the bystander did not
"immediately connect[] any act of malpractice" with the victim's
death).
Here, concededly, Mrs. Blinzler cannot satisfy this
added requirement; she neither "witnessed" the negligence (which
comprised the hotel operator's failure immediately to call an
ambulance and which occurred six floors beneath the Blinzlers'
room) nor fully appreciated at the time that the negligence was
hindering needed assistance (indeed, the defendant's
misrepresentations, if believed, concealed the very fact of the
negligence). Thus, to decide this case we must determine whether
the Gendek-Carey-Frame gloss applies only to bystander
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liability/medical malpractice claims (as the plaintiff contends)
or whether it applies to all bystander liability claims (as the
defendant contends and as the lower court concluded). Although
the answer to the question is by no means free from doubt, we
think that the district court took the wrong fork in the road.
As an initial matter, the New Jersey Supreme Court has
16
never imposed the added requirement that a plaintiff witness the
negligent act and contemporaneously connect it to the injury of a
loved one in any case outside the medical malpractice context,
and the malpractice cases in which the requirement has been
imposed strongly suggest that it is restricted to that milieu.
See Gendek, 654 A.2d at 974 (describing the requirement as
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"added" and "special" in that it is "imposed to establish an
indirect claim for emotional distress arising from medical
malpractice"); Carey, 622 A.2d at 1286 ("With medical-malpractice
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claims, we have required that claimants observe contemporaneously
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the act of malpractice and the resultant injury.") (emphasis
supplied). What is more, crafting a special set of rules for
bystander liability/medical malpractice cases is not in any way
an unprecedented flight of fancy; other courts that recognize
bystander liability claims in general sometimes treat such claims
more restrictively in the medical malpractice setting, even, on
occasion, barring them outright. See, e.g., Maloney v. Conroy,
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545 A.2d 1059, 1063-64 (Conn. 1988); Wilson v. Galt, 668 P.2d
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1104, 1110 (N.M. 1983).
We note, too, that the added requirement designed by
the New Jersey Supreme Court for use in connection with bystander
liability/medical malpractice claims is grounded in a set of
policy considerations that do not seem to apply to other
bystander liability claims. For one thing, the unique emotional
interest that fuels the doctrine of bystander liability is
unaffected in most cases of medical malpractice for the harm
17
caused by, say, misdiagnosis usually does not manifest itself
until days, weeks, months, or years have elapsed, and even then,
the misdiagnosis rarely culminates in a single spontaneous and
shocking event. See Frame, 560 A.2d at 678-79 (explaining that
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in the typical malpractice case "[g]rief over the gradual
deterioration of a loved one, as profound as that grief may be,
often does not arise from a sudden injury," but, rather, under
circumstances in which the family members have had the "time to
make an emotional adjustment"). It is largely for this reason
that bystander liability must be even more "narrowly
circumscribed in the context of a medical misdiagnosis or failure
to act." Gendek, 654 A.2d at 975-76. New Jersey chose to
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accomplish this circumscription by limiting bystander liability
in the medical malpractice arena to those situations in which the
putative plaintiff observes both the act of malpractice and its
immediate effects, and appreciates the interrelationship. See,
___
e.g., Frame, 560 A.2d at 681. That rationale loses force outside
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the medical malpractice context.
For another thing, the added requirement applicable to
bystander liability in the medical malpractice context reflects
societal concerns about the impact of expanded liability on the
delivery of health care. See Gendek, 654 A.2d at 975 ("In
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considering the standards that govern an appropriate duty of care
and limitations of liability in [the health care] setting, we
must be especially mindful of the principles of sound public
policy that are informed by perceptions of fairness and
18
balance."); Carey, 622 A.2d at 1286 (voicing uneasiness about the
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"effects of the expansion of liability on the medical profession
and society," and specifically noting sharp increases in
malpractice insurance premiums); Frame, 560 A.2d at 681
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(emphasizing that the special refinement of bystander liability
for medical malpractice cases is at least partly driven by a
desire to avoid "unreasonably burdening the practice of
medicine"). This group of situation-specific policy concerns is
best addressed by "narrowly circumscrib[ing]" bystander liability
in the medical malpractice setting so as to minimize any "adverse
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effect on the practice of medicine or on the availability of
medical services." Frame, 560 A.2d at 681. Once again, this
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reasoning loses force outside the medical malpractice context.
The language of the New Jersey cases and the
distinctive nature of the policy considerations that underlie the
added requirement mark the genesis of our belief that, when the
opportunity arises, the New Jersey Supreme Court will not engraft
this health-care-specific requirement upon the body of cases that
lie beyond the medical malpractice arena. New Jersey has already
expressed its view of general public policy concerns with respect
to expanded liability for run-of-the-mine accidents by conferring
a right of recovery on bystanders and defining the elements of
the tort. See Dunphy, 642 A.2d at 377; Portee, 417 A.2d at 528.
___ ______ ______
We think it is no accident that in superimposing the added
requirement on bystander liability/medical malpractice cases, the
state supreme court has been scrupulously careful not to imply a
19
broader sweep. Because we believe that this specificity is
purposeful rather than serendipitous, we hold that the added
requirement imposed by the Gendek-Carey-Frame line of cases is
__________________
applicable only to causes of action that, at bottom, charge
health-care providers with malpractice. The district court,
therefore, took the wrong fork in the road.
C. Applying the Principles.
C. Applying the Principles.
_______________________
Once we put the added requirement to one side, the only
question that remains open under this rubric is whether the jury
lacked evidence satisfactory to support a finding that the
plaintiff's injury fell within the standard parameters of
bystander liability that obtain in New Jersey vis-a-vis suits
arising outside the medical malpractice context. We think the
evidence sufficed. Intimate relationship and third-party injury
(i.e., a spouse's death) are not in dispute, and the record
contains adequate proof of severe emotional distress. The
seminal New Jersey case suggests that, in addition to these three
elements, a plaintiff need only show that she "observ[ed] the
death . . . while it occur[red]." Portee, 417 A.2d at 527; see
______ ___
also supra p. 13 (recounting the four elements of the tort under
____ _____
New Jersey law). This last element firsthand observation
corresponds to the distinct emotional interest that is infringed
when an individual witnesses a "shocking event" and "see[s] a
healthy [family member] one moment and a severely injured one the
next." Frame, 560 A.2d at 679.
_____
We appreciate that things are not always what they seem
20
and that it may be overly simplistic to say that in New Jersey
firsthand observation of a suddenly inflicted injury to a loved
one invariably gives rise to the unique emotional interest that
underlies bystander liability. Arguably, it is not merely the
observation of the injury but the perception that it is
accidental or otherwise unwarranted that threatens a "plaintiff's
basic emotional security," Portee, 417 A.2d at 521, and thus
______
paves the way for bystander liability. See id. at 528 (noting
___ ___
that it is the "shock and fright" attendant to observing the
"accidental death" of an intimate relation that infringes the
narrowly defined interest in emotional security). Frame makes
_____
this point most clearly, albeit in dictum:
Everyone is subject to injury, disease, and
death. Common experience teaches that the
injury or death of one member of a family
often produces severe emotional distress in
another family member. A threshold problem
is separating the grief that attends that
distress when no one is at fault from the
added stress attributable to the fact that
the injury or death was produced by the
negligent act of another.
Id. at 677. And while the Portee elements have not yet been
___ ______
formally modified in this respect,5 we think it is not unlikely
that New Jersey will move in this direction. Cf. Thing, 771 P.2d
___ _____
at 829 (tightening the elements of a bystander liability action
____________________
5In Portee, the question was not raised squarely. There the
______
plaintiff (the victim's mother) arrived at the scene after her
_____
son became trapped in an elevator. She did not witness either
the initial entrapment or the act of negligence (faulty
maintenance) that caused the accident. It was quite clear,
however, that the mother knew immediately that her child's
injuries had an unnatural cause and stemmed from the elevator's
accidental collapse.
21
under California law to require that the plaintiff be "present at
the scene of the injury-causing event" and be "then aware that it
is causing the injury to the victim"). But there are two reasons
why we need not cross this bridge today.
1. The evidence here clearly satisfies the Portee
______
requirements simpliciter. The plaintiff witnessed a sudden and
shocking event when she watched her husband of forty-two years
undergo excruciating chest pain, vomit, struggle to catch his
breath, asphyxiate, lose consciousness, and ultimately die.
Because she "witness[ed] the victim when the injury [was]
inflicted," Frame, 560 A.2d at 678, recovery would seem
_____
appropriate under a formal incantation of the Portee elements.
______
2. The law of the case doctrine eliminates any
potential problem as to the precise dimensions of Portee. At
______
trial's end, the district court charged the jury that "the
plaintiff must be present at the scene of the event and be aware
that the victim is being injured." The defendant's counsel
objected generally to the court's decision to instruct the jury
at all on count 3 (asseverating that New Jersey law requires the
plaintiff actually to witness the negligent act) but he did not
object in any other, more specific respect to the district
court's formulation of the basic elements of the tort. Thus,
even if New Jersey might in an appropriate case impose some
intermediate limitation going beyond Portee but stopping short of
______
mandating that the plaintiff witness the negligent act, the
defense formulated no such intermediate position at the jury-
22
instruction stage. In other words, the content of the
instruction stands as the law of the case with respect to the
unembellished contours of a cause of action for bystander
liability. See Quinones-Pacheco v. American Airlines, Inc., 979
___ ________________ _______________________
F.2d 1, 4 n.3 (1st Cir. 1992); Milone v. Moceri Family, Inc., 847
______ ___________________
F.2d 35, 38-39 (1st Cir. 1988). And as we have already pointed
out, the plaintiff's proof, measured against the language of the
trial court's instruction, suffices to create a jury question.
Even if we assume arguendo that the New Jersey Supreme
________
Court would augment the elements of a non-medical-malpractice
cause of action for bystander liability along the lines
exemplified by Thing, the verdict might well be sustainable.
_____
From the evidence adduced at trial, the jury rationally could
find that during the incident proper the plaintiff twice asked
_____
the manager whether the ambulance had been called. Though she
was (erroneously) assured that the call had been made punctually,
she asked the manager yet again at the hospital (receiving the
same misinformation), and then checked with the hotel three days
later (after her husband had perished). This type of evidence
arguably could support an illation that the plaintiff suspected
all along that a delay attributable to the defendant was causing
injury to her husband. Watching the event while suspecting that
her husband's suffering was being unnecessarily prolonged and
worrying that prospects for his rescue were diminishing would
appear to be the kind of distinct emotional harm for which
bystander liability would lie under the premise of Thing. See,
_____ ___
23
e.g., Bloom v. Dubois Regional Med. Ctr., 597 A.2d 671, 683 (Pa.
____ _____ _________________________
Sup. Ct. 1991).
V. OTHER ISSUES
V. OTHER ISSUES
The defendant raises a salmagundi of other issues in
connection with its appeal. None of its asseverations is
persuasive. Only three warrant discussion.
A. The Evidentiary Rulings.
A. The Evidentiary Rulings.
_______________________
The defendant argues that it is entitled to a new trial
because the district court erred in certain evidentiary rulings.
Its chief complaint concerns the admission of evidence relating
to the destruction of the so-called Xeta report (a printout that
catalogues all outgoing calls from the hotel's PBX operator) for
November 13, 1992. The defendant destroyed this telephone log
approximately thirty days after the incident. Had the report
been preserved, it would have pinpointed the very moment that the
operator first placed the call for emergency assistance.
During the trial, the plaintiff sought to show that the
defendant had destroyed this evidence. The defendant objected,
contending that it discarded the Xeta report in the ordinary
course of business, pursuant to established practice, and not as
part of an effort to inter unfavorable evidence. The district
court overruled the objection and permitted the plaintiff to
introduce evidence at trial of the existence and subsequent
destruction of the Xeta report, leaving the defendant's
explanation to the jury. We review the district court's rulings
admitting or excluding evidence for abuse of discretion. See
___
24
Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d
___________________________________ ________________
1364, 1373 (1st Cir. 1991); United States v. Nazzaro, 889 F.2d
_____________ _______
1158, 1168 (1st Cir. 1989). We see none in this instance.
When a document relevant to an issue in a case is
destroyed, the trier of fact sometimes may infer that the party
who obliterated it did so out of a realization that the contents
were unfavorable. See Nation-Wide Check Corp. v. Forest Hills
___ ________________________ _____________
Distributors, Inc., 692 F.2d 214, 217 (1st Cir. 1982); see also 2
__________________ ___ ____
Wigmore on Evidence 285, at 192 (James H. Chadbourn rev. ed.
___________________
1979). Before such an inference may be drawn, there must be a
sufficient foundational showing that the party who destroyed the
document had notice both of the potential claim and of the
document's potential relevance. See Nation-Wide, 692 F.2d at
___ ___________
218. Even then, the adverse inference is permissive, not
mandatory. If, for example, the factfinder believes that the
documents were destroyed accidentally or for an innocent reason,
then the factfinder is free to reject the inference. See , e.g.,
___ ____
Jackson v. Harvard Univ., 900 F.2d 464, 469 (1st Cir.), cert.
_______ ______________ _____
denied, 498 U.S. 848 (1990); Anderson v. Cryovac, Inc., 862 F.2d
______ ________ _____________
910, 925-26 (1st Cir. 1988).
In this case, the defendant contends that there was no
direct evidence to show that it discarded the Xeta report for any
ulterior reason. This is true as far as it goes but it does
not go very far. The proponent of a "missing document" inference
need not offer direct evidence of a coverup to set the stage for
the adverse inference. Circumstantial evidence will suffice.
25
See, e.g., Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d
___ ____ ________________________________ ________
1119, 1134 (7th Cir. 1987), cert. denied, 485 U.S. 993 (1988).
_____ ______
We do not believe that the district court abused its
considerable discretion in deciding that the totality of the
circumstances here rendered such an inference plausible. A
reasonable factfinder could easily conclude that Marriott was on
notice all along that the Xeta report for November 13, 1992 was
relevant to likely litigation. Although no suit had yet been
begun when the defendant destroyed the document, it knew of both
James Blinzler's death and the plaintiff's persistent attempts
including at least one attempt after Blinzler died to discover
when the call for emergency aid had been placed. This knowledge
gave the defendant ample reason to preserve the report in
anticipation of a legal action. When the evidence indicates that
a party is aware of circumstances that are likely to give rise to
future litigation and yet destroys potentially relevant records
without particularized inquiry, a factfinder may reasonably infer
that the party probably did so because the records would harm its
case. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156
___ _______ ______________________
(4th Cir. 1995); Partington v. Broyhill Furn. Indus., Inc., 999
__________ ____________________________
F.2d 269, 272 (7th Cir. 1993); Nation-Wide, 692 F.2d at 219. In
___________
the circumstances at bar, the trial court acted within its
discretion in admitting the Xeta report.
The defendant also chastises the court for admitting
evidence of another missing record. The security officer's log
for November 13, 1992 could not be located, and the judge
26
permitted evidence of that fact to go to the jury. Once again,
the ruling cannot be faulted. The defendant had no good
explanation for the missing log, and the jury was entitled to
infer that the defendant destroyed it in bad faith.
To cinch matters, these two pieces of evidence had a
synergistic effect. We think it would be proper for a reasonable
factfinder to conclude that the unavailability of two important
___
documents, both of which bore upon the timing of the call for
emergency assistance, was something more than a coincidence. The
veteran district judge, after hearing all the evidence limning
these mysterious disappearances, put it bluntly in the course of
ruling on post-trial motions:
I will tell you now that the Xeta Report
raises a compelling inference in my mind that
personnel at the Marriott Hotel did destroy
that record willfully, along with the
security officer's daily log of that date.
The inference is compelling that the Marriott
Hotel was hiding the delay of the telephone
operator in making this telephone call.
This is a harsh assessment but it is based on a firsthand
appraisal of the testimony and it is one that a rational jury
easily could draw on the record.
B. The Motion to Reopen.
B. The Motion to Reopen.
____________________
After the plaintiff rested, the defendant moved for a
directed verdict under Fed. R. Civ. P. 50(a). After hearing
arguments, the district court permitted the plaintiff to reopen
her case in order to offer certain additional evidence on the
27
issue of causation.6 The defendant assigns error to this
ruling. There is none.
The Federal Rules of Evidence give the district court
broad discretion in ordering the proof. See Fed. R. Evid. 611.
___
This discretion extends to granting or denying motions to reopen,
see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
___ __________________ ________________________
331-32 (1971); Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d
_____________ ______________________
742, 746 (1st Cir. 1995); Lussier v. Runyon, 50 F.3d 1103, 1113
_______ ______
(1st Cir.), cert. denied, 116 S. Ct. 69 (1995), and such rulings
_____ ______
are reviewed principally for abuse of that discretion.
A trial court's decision to reopen is premised upon
criteria that are flexible and fact-specific, but fairness is the
key criterion. See Rivera-Flores, 64 F.3d at 746; Capital Marine
___ _____________ ______________
Supply, Inc. v. Thomas, 719 F.2d 104, 107 (5th Cir. 1983). The
____________ ______
specific factors to be assessed include the probative value of
the evidence sought to be introduced, the proponent's explanation
for failing to offer the evidence earlier, and the likelihood of
undue prejudice. See Rivera-Flores, 64 F.3d at 746; Joseph v.
___ _____________ ______
Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir. 1994); see also
__________________ ___ ____
6A James W. Moore, Moore's Federal Practice 59.04[13], at 59-33
________________________
(2d ed. 1993). The prospect of prolonging the trial is also
material. If the additional evidence is immediately available or
____________________
6The supplemental evidence consisted of testimony from two
witnesses. The first, plaintiff's medical expert, simply
clarified and confirmed his earlier testimony that James Blinzler
would have survived had the ambulance arrived ten minutes
earlier. The second witness (an employee of the ambulance
service) testified that the ambulance service had a unit ready,
available, and on call at 8:35 p.m. on November 13, 1992.
28
nearly so, the trial court will have a greater incentive to
permit the case to be reopened. Conversely, if gathering the
additional evidence portends a significant delay in the trial,
the court ordinarily will have a greater reluctance to grant the
motion. See Moore, supra, 59.04[13], at 59-33.
___ _____
Here, the additional evidence that the plaintiff sought
to introduce was non-cumulative. It had significant probative
value on an essential element in the plaintiff's case, helping to
connect the defendant's negligence to the injuries claimed. See
___
supra note 6. There is no sign that the plaintiff withheld the
_____
proof as a strategic matter. To the contrary, the record shows
quite clearly that she attempted to streamline her case in chief
and offered the incremental evidence only after the judge
expressed reservations about the state of the proof on the issue
of causation.7
Notwithstanding these circumstances, the defendant
insists that permitting the plaintiff to reopen worked
substantial prejudice because the defense hoped all along that
the plaintiff would fail to prove causation. This is
____________________
7This is consistent with the method of the Civil Rules.
Rule 50(a) exists in part to afford the responding party "an
opportunity to cure any deficiency in that party's proof that may
have been overlooked until called to the party's attention by a
late motion for judgment." Fed. R. Civ. P. 50, advisory
committee's note (1991 amendment). In other words, Rule 50(a)
should be construed "to avoid tactical victories at the expense
of substantive interests." Moore, supra, 50.08, at 50-89 The
_____
district court echoed this sentiment when it granted the motion
to reopen, stating: "I allow the plaintiff to reopen because I
want the truth. I want the facts. I want to achieve a just
result in this case . . . ."
29
disappointment rather than cognizable prejudice. The evidence
taken after reopening consisted of only two witnesses and created
no unfair surprise. The added testimony simply fleshed out the
plaintiff's basic theory of liability that the time saved by a
prompt call might well have led to James Blinzler's survival.
Moreover, allowing the plaintiff to reopen did not perceptibly
delay the trial and did not occasion any interruption of the
defense case. In any event, the district court prudently offered
the defendant a continuance so that it might regroup and better
rebut the additional evidence. By declining the court's offer,
the defendant confirmed the absence of unfair prejudice. See
___
United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.),
______________ ______________
cert. denied, 493 U.S. 862 (1989). Under these circumstances,
_____ ______
the granting of the plaintiff's motion to reopen comes well
within the heartland of the trial court's discretion. See
___
Rivera-Flores, 64 F.3d at 749.
_____________
C. The Emotional Distress Award.
C. The Emotional Distress Award.
____________________________
Where, as here, a federal court sets aside a jury's
verdict and directs the entry of judgment as a matter of law, the
court must also rule conditionally on any concomitant motion for
a new trial. See Fed. R. Civ. P. 50(c). In this instance the
___
district court held that, if it had erred in granting judgment as
a matter of law on count 3, then the jury's award of damages for
emotional distress should stand. The defendant assails this
contingent ruling and argues for either a new trial or a
remittitur on count 3. In its most cogent aspect, the argument
30
is based on the premise that the scanty physical symptoms
exhibited by the plaintiff simply do not justify an award of
$200,000 in damages.
Federal law governs the question of whether the trial
court should order a remittitur in a diversity case. See Donovan
___ _______
v. Penn Shipping Co., 429 U.S. 648, 649 (1977). Under applicable
_________________
federal standards, appellate review is limited to whether the
district court abused its discretion in deciding to endorse the
jury award rather than trim it or set it aside as excessive.
See, e.g., Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir.
___ ____ ____ __________________
1991); Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987).
_________ _____
An award of damages will not be deemed unreasonably
high or low as long as it comports with some "rational appraisal
or estimate of the damages that could be based on the evidence
before the jury." Milone, 847 F.2d at 37 (citation omitted). On
______
the high side, a damage determination will withstand scrutiny
unless it 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." Correa v. Hospital San
______ _____________
Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995) (quoting Grunenthal
_________ __________
v. Long Island R.R. Co., 393 U.S. 156, 159 & n.4 (1968)),
______________________
petition for cert. filed, 64 U.S.L.W. 3605 (Feb. 26, 1996).
________ ___ _____ _____
Moreover, "an appellate court's normal disinclination to second-
guess a jury's evaluation of the proper amount of damages is
magnified where . . . the damages entail a monetary valuation of
intangible losses, and the trial judge, having seen and heard the
31
witnesses at first hand, accepts the jury's appraisal." Id.
___
Here, viewing the evidence of damages in the light most
amiable to the plaintiff, see Toucet v. Maritime Overseas Corp.,
___ ______ ________________________
991 F.2d 5, 11 (1st Cir. 1993); Ruiz, 929 F.2d at 34, we think
____
that the award, though perhaps generous, passes muster. Under
New Jersey law, no particular level of physical symptomatology is
necessary to support damages for emotional distress. See
___
Strachan v. John F. Kennedy Mem. Hosp., 538 A.2d 346, 353 (N.J.
________ ___________________________
1988).8 The testimony in this record indicates that the
plaintiff watched helplessly as her husband collapsed, vomited,
passed out, and became cyanotic. She was still in the room
nearly fifteen minutes later when an oxygen mask was being placed
over her unconscious husband's mouth and nose. In the aftermath
of her husband's death, she experienced daily flashbacks to that
time of torment. She still suffers from insomnia, cardiac
palpitations, and shortness of breath. Coupled with proof of
negligent infliction of emotional distress, this evidence
justifies substantial compensation under New Jersey law.
Of course, the task of valuing noneconomic losses in
tort cases is an imprecise exercise. There is no one "correct"
____________________
8At one time New Jersey courts did require proof of
"substantial bodily injury or sickness" in all emotional distress
cases. See, e.g., Caputzal v. The Lindsay Co., 222 A.2d 513, 515
___ ____ ________ _______________
(N.J. 1966); Falzone v. Busch, 214 A.2d 12, 17 (N.J. 1965).
_______ _____
Portee changed this rule in respect to bystander liability,
______
permitting recovery in the absence of physical symptoms if the
circumstances are such that severe emotional distress can easily
be inferred. See Portee, 417 A.3d at 527-28.
___ ______
32
sum, but, rather, a range of acceptable awards. In many
instances the spread between the high and low ends of the range
will be great. The choice within the range which by its nature
requires the decisionmaker to translate intangibles (such as pain
and suffering) into quantifiable dollars and cents is a choice
largely within the jury's ken. See Correa, 69 F.3d at 1197.
___ ______
Since we are unable to conclude on this record that $200,000 is a
figure beyond the wide universe of acceptable awards, we must
uphold the district court's finding that the figure is not
excessive. See Ruiz, 929 F.2d at 34 (explaining that the court
___ ____
of appeals "cannot, and will not, without substantial cause,
overrule a trial judge's considered refusal to tamper with the
damages assessed by a jury").
VI. CONCLUSION
VI. CONCLUSION
We need go no further. The record adequately supports
the jury's conclusion that the defendant's inexplicable delay in
calling an ambulance constituted a proximate cause of James
Blinzler's death and negligently inflicted both emotional
distress and a loss of consortium on his wife (now his widow).
Finding, as we do, that the law of New Jersey permits this
multifaceted conclusion to remain fully intact, that the
defendant's several challenges to evidentiary and case-management
rulings are meritless, and that the damages awarded are not
grossly excessive, we reinstate the jury verdict in its entirety.
As a necessary corollary, we vacate the district court's entry of
judgment for the defendant on count 3.
33
Affirmed in part and reversed in part. Costs in favor of the
Affirmed in part and reversed in part. Costs in favor of the
_______________________________________ _______________________
plaintiff.
plaintiff.
_________
34
