Recently, in the case of Harker v. Chan, the United States District Court for the Western District of Pennsylvania granted the defendants’ request for remittitur, lowering the jury verdict for past and future non-economic damages from $43,750,000 to $16,000,000, resulting in "the highest possible recovery that would not 'shock' the judicial conscience.”
GH was born prematurely and was admitted to Conemaugh’s neonatal intensive care unit under the care of Dr. Chan, who observed some swelling on GH's head, which can be a normal finding. Dr. Chan believed that the swelling was either a caput, a cephalohematoma, or a subgaleal hemorrhage. The standard treatment for these conditions is primarily observation; however, Dr. Chan directed his nurse to wrap GH's head with an ACE bandage, a treatment that Dr. Chan learned while in medical school in the Philippines in the 1980s. The wrap remained in place for 48-hours, and upon removal, GH's head was bruised and swollen, and had abrasions that were oozing blood and serum. Both sides of GH's head, "all the way around," were discolored due to eschar.
GH was transferred to Texas Children's Hospital and was treated by Dr. Laura Monson, a pediatric plastic and craniofacial surgeon. Dr. Monson noted "significant soft tissue loss" on GH's head and substantial hair loss. Fat oozed out of her scalp, and her skull bone was compromised. Dr. Monson peeled away the dead tissue from GH's scalp over the course of several days. GH began physical therapy for wound care, and underwent reconstructive surgery of her scalp, which entailed placing a tissue expander underneath her skin in an effort to grow new skin and recreate a hairline across GH's forehead. The tissue expanders limited GH's activities and require her head remain covered when GH goes outside in the sun. If no complications arise, GH will have tissue expanders in her head for three more years, however, Dr. Monson expected complications which could result in the expanders being in place for up to 10 years. Following this treatment, it was anticipated that GH would require additional surgeries, including a bone graft, multiple hospitalizations, and countless visits to the hospital. Despite her doctors' best efforts, GH will be permanently disfigured. GH has also suffered emotional distress; she is aware that she is "different" and has been teased by other children. She will require psychological counseling as she ages and becomes increasingly aware of her disfigurement.
Plaintiffs sued Dr. John 0. Chan and Conemaugh Memorial Medical Center, alleging that Dr. Chan negligently treated GH, their newly-born daughter, by wrapping her head tightly with an ACE bandage shortly after birth, causing her to suffer permanent disfigurement to her head and scalp. The case proceeded to trial, resulting in a jury verdict for Plaintiffs in the amount of $43,750,000 for past and future non-economic damages and $3,283,579 in future medical expenses.
On appeal, the defendants argued that the Court should remit the $43,750,000 compensatory damage award because it shocks the conscience. Defendants assert that comparing this compensatory damage award with awards rendered in similar cases establishes that the jury rendered an excessive verdict. Defendants also emphasize that GH did not suffer brain damage, cognitive impairments, or developmental delays. In response, plaintiffs argued that the jury rendered an appropriate verdict given the extent and severity of GH's injuries. Plaintiffs also argued that the Court should not compare verdicts when evaluating Defendants' Motion for Remittitur because GH's young age, unique injuries, and idiosyncratic individual characteristics defy any attempts to compare her to other plaintiffs.
The Court noted that remittitur is well established as a device employed when the trial judge finds that a decision of the jury is clearly unsupported and/or excessive; however, it may not vacate or reduce the award merely because it would have granted a lesser amount of damages. The district court may only disturb a jury verdict if the damages assessed by the jury are so unreasonable as to offend the conscience of the Court. A compensatory damage award must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence at trial. If the Court remits, the reduction may not be less than the maximum amount that does not “shock the judicial conscience.” Further, in accordance with the Seventh Amendment, a district judge that remits must offer the plaintiff the option of a new trial.
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