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Reilly v. United States

United States Court of Appeals for the First Circuit

December 14, 1988

No. 88-1442

Opinion

 [*152]  SELYA, Circuit Judge.

Peter Reilly and Donna Reilly, husband and wife, and their minor daughter, Heather, appellees before us, brought this medical malpractice action against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. Following a bench trial, the United States District Court for the District of Rhode Island awarded plaintiffs $ 11,037,964 in damages and entered a judgment in that amount.  Reilly v. United States, 665 F. Supp. 976 (D.R.I. 1987)  [**2]  (Reilly I). The defendant moved to set aside the judgment; the district court denied the motion.  Reilly v. United States, 682 F. Supp. 150 (D.R.I. 1988) (Reilly II). The United States appeals.

Appellant recites an alphabet of error: it claims, among other things, that the court below erred in -

A ppointing a technical advisor;

B rushing aside a state collateral source statute;

C alculating lost earning capacity;

D eclining to order staggered payments in lieu of a lump sum award (or in the alternative, refusing to consider the cost of a periodic-payment annuity in determining damages);

E xceeding the amount of plaintiffs' administrative claim without just cause; and

F ashioning an award which allowed duplicative recovery.

Given the range and reach of appellant's contentions, this futhark should be read as more limning than limitary. Yet the appeal is a mixed bag. The government has raised some close questions which deserve careful attention and analysis; we address those in the alphabetical order listed above, except that we merge the third and sixth assignments of error. On the other hand, appellant has also attempted to capitalize on avowals which are patently meritless,  [**3]  or procedurally defaulted, or both; those need not be mentioned specifically, but are rejected out of hand. When everything is said and done, we find that the judgment is  [*153]  consonant with the letter of the law in all particulars save one.

I. BACKGROUND

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863 F.2d 149 *; 1988 U.S. App. LEXIS 17018 **; 27 Fed. R. Evid. Serv. (Callaghan) 90

DONNA REILLY, ETC., ET AL., Plaintiffs, Appellees, v. UNITED STATES OF AMERICA, Defendant, Appellant

Subsequent History:  As Amended.

Prior History:  [**1]  Appeal from the United States District Court for the District of Rhode Island, Hon. Raymond J. Pettine, Senior U.S. District Judge.

CORE TERMS

advisor, district court, damages, appointment, lost earnings, administrative claim, expert witness, expenses, duplicative, parties, cases, calculation, future-care, economist, plaintiffs', benefits, collateral source, discounting, safeguards, injuries, annuity, grounds, notice, offset, award damages, present value, circumstances, instructions, disability, waived

Administrative Law, Sovereign Immunity, Torts, Liability, Federal Tort Claims Act, Procedural Matters, Governments, Federal Government, Claims By & Against, Claim Presentation, General Overview, Time Limitations, Evidence, Expert Witnesses, Court Appointed Experts, Types of Evidence, Testimony, Civil Procedure, Costs, Costs Recoverable, Witnesses, Judicial Officers, Judges, Courts, Judges, Masters, Appointment of Masters, References, Federal & State Interrelationships, Choice of Law, Forum & Place, Procedural Matters, Conflict of Law, Preliminary Considerations, Erie Doctrine, Damages, Collateral Source Rule, Healthcare Law, Healthcare Litigation, Actions Against Healthcare Workers, Doctors & Physicians, Elements, Public Entity Liability, Pensions & Benefits Law, Equal Protection, Veteran Discrimination, Appeals, Standards of Review, Clearly Erroneous Review, Education Law, Students, Disabled Students, Burdens of Proof, Remedies