Damages

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7^th Circuit Court of Appeals

Case Name: Yong Juan Zhao v. United States of America

Case No.: 19-3071

Officials: EASTERBROOK, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Damages

This is an appeal from a Federal Tort Claims Act judgment in favor of the plaintiff. When plaintiff Yong Juan “Maggie” Zhao gave birth to her son “S.,” he suffered an avoidable brachial plexus injury. The injury has severely and permanently impaired the function of his right arm. During her pregnancy and S.’s birth, Mrs. Zhao was attended by an obstetrician employed by a federally supported grant clinic in southern Illinois. Because he is considered an employee of the United States Public Health Service under 42 U.S.C. § 233(g), Mrs. Zhao sued the United States for medical malpractice under the Federal Tort Claims Act. The court found after trial that the obstetrician had been negligent and awarded Mrs. Zhao, on behalf of S., $8.3 million. That sum included $2.6 million in lost earnings and $5.5 million in noneconomic damages.

On appeal, the United States does not contest liability or damages awarded for past and future medical expenses. The government appeals only the portions of the damages award that are inherently difficult to quantify. S. was not quite five years old at the time of trial. The United States argues first that the district court’s calculation of S.’s future lost earnings was improperly speculative, given the uncertainties inherent in projecting a five‐year‐old’s career opportunities. The question may have been difficult to answer, but we find no reversible error. The district court took a reasonable approach to estimate the lost earnings award based on data provided in expert testimony. The United States also challenges the award of noneconomic damages as arbitrary and excessive in comparison to similar cases. The district court could have provided a more detailed explanation of its comparative process, but we can follow the court’s reasoning and find no reversible error in this portion of the judgment. We affirm the judgment of the district court.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.