USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-2024
AWILDA VILLARINI-GARCIA,
Plaintiff, Appellee,
v.
HOSPITAL DEL MAESTRO, ET AL.,
Defendants, Appellees.
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MARIO J. TOMASINI, DR.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. James L. Watson,* Senior Judge]
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Before
Boudin, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Raul Davila-Rivera and Alberto O. Jimenez with whom Bauza and
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Davila were on briefs for appellant.
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Kevin G. Little with whom Law Offices of David Efron was on brief
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for appellee.
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April 24, 1997
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*Of the Court of International Trade, sitting by designation.
BOUDIN, Circuit Judge. Dr. Mario J. Tomasini appeals
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from an adverse judgment against him for medical malpractice.
Dr. Tomasini makes several claims of error, only one of which
requires extended discussion. On that claim, which presents
a difficult question concerning offsets to damage awards, we
conclude that a deduction is required in this case to account
for payment already received in settlement by the plaintiff,
Awilda Villarini-Garcia, from the hospital for the same
injury.
This case began with an operation performed by Dr.
Tomasini in September 1986 at Hospital del Maestro in Puerto
Rico. During the operation, Dr. Tomasini removed a birthmark
or mole from Villarini's back, and a piece of muscle tissue.
In her later complaint against Dr. Tomasini and the hospital,
Villarini charged the doctor with negligence in removing the
muscle tissue, causing her continuing pain and severely
impairing her career as a concert pianist.
Villarini did not file her complaint against the doctor
and hospital until June 1990, well after Puerto Rico's normal
one year statute of limitations. 31 L.P.R.A. 5298.
Villarini argued that the statute was tolled under Puerto
Rico's discovery rule until she acquired sufficient knowledge
of the basis of her claim. The district court dismissed the
case on summary judgment for failure to meet the statute of
limitations, and Villarini appealed.
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This court affirmed the dismissal as to three of
Villarini's four claims of negligence but reversed as to one
claim. Villarini v. Hospital del Maestro, 8 F.3d 81 (1st
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Cir. 1993). On that last claim, we said that summary
judgment was improper and that it was likely to be a jury
question whether Villarini had exercised sufficient due
diligence to give her the protection of the discovery rule.
Following remand, the hospital settled with Villarini for
$50,000, and the case proceeded to trial against Dr.
Tomasini.
At the end of the trial, the jury awarded Villarini
$100,000 for physical and mental damage and $500,000 for loss
of earnings. Among other post-trial requests, Dr. Tomasini
sought a deduction from the judgment of $50,000, representing
the amount that the hospital had paid in settlement. The
district court refused. This appeal followed. On appeal,
Dr. Tomasini makes six claims of error, the last one being
the denial of the deduction.
Four of the claims relate to sufficiency of the
evidence: Dr. Tomasini says that the evidence was
insufficient to allow Villarini to escape the statute of
limitations, or to establish malpractice, or to show
causation, or to support the amount awarded. A fifth claim
is directed at testimony of an agent, who represents
musicians, offered by Villarini to support her claimed loss
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of income; Dr. Tomasini says that the witness was not
qualified and lacked an adequate basis for his testimony.
The challenges to the evidence--as to timeliness,
negligence, causation, and damages--are legitimate issues;
but having considered the evidence described in the briefs
and set forth in the record, we think that the jury's verdict
is not irrational on any of these issues and that the
district court acted within its discretion in holding the
expert to be qualified and his opinion adequately grounded.
There is nothing about these fact-bound issues that warrants
discussion in a published opinion.
The one issue that does require discussion is Dr.
Tomasini's final argument that the $600,000 jury verdict
should be reduced by $50,000 to reflect the amount Villarini
received in settlement from his former co-defendant, the
Hospital del Maestro. After the jury rendered its verdict,
Dr. Tomasini filed a timely motion under Fed. R. Civ. P.
59(e) to amend the judgment to deduct the $50,000 settlement,
and the district court denied the motion.
The court based its denial on the fact that the hospital
was not "jointly" liable for the injury along with Dr.
Tomasini; rather it was sued only on vicarious liability
grounds. See 31 L.P.R.A. 5142. Villarini presses the same
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objection on appeal. Implicit in the district court's
ruling, and explicit in Villarini's argument, is the notion
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that there is no right to offset an earlier settlement made
by a co-defendant where the remaining co-defendant did not
have a right of contribution against the settling co-
defendant.1 This presents a legal issue that we consider de
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novo, and conclude that the linkage of contribution and
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offset has no sound basis.
In almost all jurisdictions, settlement payments to the
plaintiff from one of several joint tortfeasors--those who
actively contributed to the same injury--reduce any judgment
later secured against the nonsettling tortfeasor(s).
McDermott v. AmClyde, 511 U.S. 202, 208 (1994). The only
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debate is whether this reduction is to be made by a simple
dollar-for-dollar offset or through a more complicated
proportional liability formula. Id. at 208-17. See 6 Minzer
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et al., Damages in Tort Actions 51.25[1] (1966).
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Conversely, the usual rule is that a plaintiff's award
will not be reduced for payments or benefits received from
sources independent of those who wronged him. See
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Restatement (Second) of Torts 920A(2) (1991); Robertson v.
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White, 81 F.3d 752, 758 (8th Cir. 1996). This "collateral
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source" rule allows a plaintiff to receive payments such as
charitable donations and payments from his own insurer
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1For obvious reasons, under Puerto Rico law, as
elsewhere, the active tortfeasor has no right of contribution
against another whose liability to the victim is at best
vicarious. See FDIC v. Consolidated Mortgage, 805 F.2d 14,
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19 (1st Cir. 1986).
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without losing the ability to recover the full amount of his
loss from the wrongdoer or wrongdoers.
A few courts have refused to offset payments made by a
settling co-defendant who turned out later not to be liable
as a joint tortfeasor with the nonsettling defendant. E.g.,
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Medical Center of Delaware v. Mullins, 637 A.2d 6, 9-10 (Del.
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1994); Collier v. Eagle-Picher Indus., Inc., 585 A.2d 256,
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265-67 (Md. App. 1991). The rationale of these holdings is
that since the primarily liable defendant would have been
obligated to pay the entire damage amount if the settling
party had never been sued (or did not settle), the former
should not reap the benefit of a fortuitous settlement by the
latter. Mullins, 637 A.2d at 10.
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The so-called "modern rule" expressed in the Restatement
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(Second) of Torts is very much to the contrary: it says that
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any payment "made in compensation of a claim for a harm" will
reduce the liability of the remaining defendants, "whether or
not the person making the payment is liable to the injured
person." Id. 885(3) and comment (f). See also Restatement
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(Second) of Judgments 50(2) (1982). Many cases express the
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right of offset in the same unqualified terms as the
Restatement (although not all happen to involve a settling
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co-defendant who is vicariously liable).2 So, too, does a
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2See Husky Refining Co. v. Barnes, 119 F.2d 715, 716
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(9th Cir. 1941); Lafayette v. County of Los Angeles, 208 Cal.
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Rptr. 668, 672-73 (Cal. Ct. App. 1984); Harriss v. Elliott,
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lucid discussion in the leading text, together with reasons
for the Restatement rule. Keeton et al., Prosser and Keeton
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on Torts 49, at 335-36 (5th ed. 1984).
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Puerto Rico law is controlling in this case and if the
Puerto Rico courts had spoken to the precise question before
us, their expressed view would be followed here. But no such
ruling has been cited to us, and we can find none on our own.
In such situations we may refer to common law rules.
Fireman's Fund Am. Ins. Co. v. Almacenes Miramar, Inc., 649
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F.2d 21, 25 & n.3 (1st Cir. 1981); Futurama Import Corp. v.
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Trans Caribbean Airways, 104 D.P.R. 609, 4 O.T.S.C.P.R. 854,
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861-62 (1976). Perhaps more importantly, we do know that
Puerto Rico has disallowed double recoveries in a somewhat
analogous context, expressing a general hostility to double
recovery.
In a set of cases, the Supreme Court of Puerto Rico held
that a plaintiff's tort recovery against a non-employer
defendant must be reduced by any workers' compensation
payments that the plaintiff had already received from, or on
behalf of, his employer. See Robles v. Superior Court, 85
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565 N.E.2d 1041, 1044-45 (Ill. App. Ct. 1991); Mulinix v.
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Saydel Consol. Sch. Dist., 376 N.W.2d 109, 110-11 (Iowa Ct.
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App. 1985); Steger v. Egyud, 149 A.2d 762, 767-68 (Md. 1959);
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Midway Nat'l Bank v. Estate of Bollmeier, 504 N.W.2d 59, 65-
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66 (Minn. Ct. App. 1993); Kirby v. New Mexico State Highway
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Dep't, 643 P.2d 256, 259-260 (N.M. Ct. App. 1982); Mead v.
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Bloom, 464 N.Y.S.2d 904, 904-05 (N.Y. App. Div. 1983);
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Bellamy v. Prime, 270 N.Y.S.2d 93, 94 (N.Y. App. Div. 1966).
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P.R.R. 640, 647 (1962); Sanabria v. White Star Bus Line, 50
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P.R.R. 722, 725 (1936); Machado v. The American R.R. Co. of
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P.R., 49 P.R.R. 823, 831-32 (1936). The Robles court said
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that these cases were "inspired on the principle that no one
should or may unjustly enrich himself by receiving double
compensation for the same accident." 85 P.R.R. at 647.
The collateral source rule, also followed in Puerto
Rico, Futurama, 4 O.T.S.C.P.R. at 857-60, obviously does
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permit double recovery in certain situations; but it does so
primarily where the extra benefit comes from insurance for
which the plaintiff could easily have paid or from private
generosity aimed at benefiting the victim rather than a
wrongdoer. Payments from prospective co-defendants, whether
vicariously or jointly liable, are clearly of a different
character. See Restatement (Second) of Judgments 50,
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comment (e) (1982).
Absent good reason--and none is suggested to us--courts
are loath to promote double recoveries. See generally
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Torres-Troche v. Municipality of Yauco, 873 F.2d 499, 501-02
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(1st Cir. 1989). Even more troubling, without an offset the
primary tortfeasor could easily be made to pay twice:
ordinarily, a vicariously liable master who settled would
have an independent claim for indemnification against the
careless servant. See 31 L.P.R.A. 5143; Restatement
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(Second) of Agency 401 and comment (d) (1958).
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Here, we are told that the hospital not only paid
$50,000 to Villarini but purported to transfer its claim for
indemnification to Villarini; and Villarini told us at oral
argument that no further suit on the indemnification claim is
now possible. Even so, no apparent justification is
suggested here for double recovery by the victim. The jury
assessed total injury at $600,000 and until Puerto Rico
instructs otherwise, we see no reason why Villarini should
enjoy compensation of $650,000 from the former co-defendants.
Accordingly, we remand the case to the district court,
direct that the judgment be reduced by $50,000 representing
the amount paid in settlement by the hospital, and otherwise
affirm the judgment.
It is so ordered.
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