USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

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.

_________________________
No. 95-2199

GLORIA BLINZLER, ETC.,

Plaintiff, Appellee,

v.

MARRIOTT INTERNATIONAL, INC.,

Defendant, Appellant.
_________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________
_________________________

Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
_________________________

John P. Barylick, with whom

_________________

Wistow & Barylick Inc. was on

_______________________

brief, for plaintiff.

Stephen B. Lang, with whom Patrick B. Landers and Higgins,

________________
___________________
________
Cavanagh & Cooney were on brief, for defendant.
_________________

_________________________

April 12, 1996

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

These cross-appeals

require us

to

wend

our way

through a

nuanced legal issues.

of

tort

law, we

judgment

award

maze

the

reverse

plaintiff's

emotional distress.

facts

and subtly

After exploring a little-charted frontier

the

notwithstanding the

on

of unusual

district

verdict

claim for

court's

direction

and reinstate

negligent

of

the jury's

infliction

of

In all other respects, we affirm the rulings

of the lower court.

I.
I.

BACKGROUND
BACKGROUND

This

litigation arises

James Blinzler,

course

husband of the

of events

leading

November 13, 1992,

New

Jersey,

hotel

out

tragic demise

plaintiff Gloria Blinzler.

to James

when the Blinzlers

operated

of the

by

Blinzler's

death began

checked into a

the

defendant

of

The

on

Somerset,

Marriott

International,

decedent,

relaxing

breathing.

PBX operator

duty

about

his

Shortly after

room,

danger, he

than 8:35 p.m.

the hotel's security

the

medical

then and there, the

8:30 p.m.

the

difficulty

in

ingested nitroglycerin

his wife called

and requested an ambulance.

(he had

the hotel

The operator received

and agreed

to honor it.

officer and

emergency.

steadfastly maintains that the

the manager

Though

the

She

on

defendant

operator also called an ambulance

record, read hospitably to the

Cumpiano v. Banco Santander P.R.,

________
_____________________

1990),

experienced

attacks before) while

no later

promptly told

in

Sensing

suffered heart

the SOS

Inc. (Marriott).

902 F.2d 148,

verdict, see
___

151 (1st

Cir.

indicates that she did not place this critical call until

some fourteen

minutes after receiving the

The ambulance arrived at 9:02 p.m.

plaintiff's entreaty.

In the meantime the plaintiff

watched her husband's condition deteriorate:

he collapsed on the

bed, vomited

stopped

During

while

supine, and

apparently

hiatus,

the plaintiff

this horrific

personnel

whether

an

emergency first arose.

ambulance

She was

had

been

breathing.

twice asked

summoned

when

hotel

the

twice falsely reassured (whether

in honest error is not clear) that one had been called.

When the

not

paramedics arrived

they could

locate a pulse and discovered that the decedent's airway was

blocked.

Resuscitative efforts

a normal rhythm and

hospital.

restored the decedent's heart to

he was transported celeritously to

Doctors diagnosed the

myocardial infarction."

from

on the scene,

prolonged

heart attack as

a nearby

a "very small

Nevertheless, the brain damage resulting

period of

asystole

without

cardiopulmonary

resuscitation led to James Blinzler's death three days later.

II.
II.

PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION

PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION

Invoking

(1994),

diversity

the plaintiff

district court for

jurisdiction,

sued Marriott

in Rhode

wrongful death (count 1),

(count 2), and negligent

28

U.S.C.

1332

Island's federal

loss of consortium

infliction of emotional distress (count

3).

She alleged in substance that the hotel failed

ambulance

in

proximately caused

The jury

for

timely

and

that

this

carelessness

both her own damages and her husband's death.

agreed, awarding

loss of

fashion

to summon an

consortium,

$200,000 for wrongful

and $200,000

death, $50,000

for emotional

distress.

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.

forefront.

The

centerpiece of

assertion that the evidence

the

failure

death.

In

promptly to

contrast,

Two are in the

the defendant's

appeal is

did not forge a causal

summon

the

an ambulance

plaintiff's

appeal

and

the

link between

the ensuing

hinges

on

the

district court's extirpation of the jury verdict on her claim for

negligent

infliction

of

defendant's contention that

law to prove causation

the jury verdict as

then

mull

the

emotional

distress.

Because

the plaintiff failed as

the

a matter of

involves an across-the-board challenge to

a whole, we deal first with

plaintiff's

contention

that

that issue.

the

lower

We

court

erroneously

forecast

emergent

liability and therefore

count

3.

Finally,

New

erred in

we

Jersey

law

setting aside

address

the

on

bystander

the verdict

defendant's

on

remaining

assignments of error.

Under the principles of Erie R.R. Co. v. Tompkins,

_____________
________

U.S. 64,

78 (1938),

supplies

the substantive

case.

Since

state

law (here,

rules

New Jersey law

the law

of decision

is less

in this

than explicit

issue that concerns

us, we pause to comment

of a

in adjudicating controversies

federal court

of New

304

Jersey)

diversity

on one key

briefly on the role

controlled by

state law.

In

its barest

essence,

borrowing state

law

demands

nothing

more

substantive

than

law

authority, or,

interpreting

enunciated

on

by

questions

to

and

the

applying

state's

which that

the

highest

tribunal

rules

of

judicial

has

not

responded, making an informed prophecy of what the court would do

in the same situation.1

1112

(1st Cir. 1987).

in analogous state court

See
___

In

Moores v. Greenberg, 834 F.2d 1105,

______
_________

the latter instance, we seek guidance

decisions, persuasive adjudications

by

courts

of sister

states, learned

considerations identified in

Royal Ins. Co.,

______________

treatises, and

public policy

state decisional law.

See Ryan v.
___ ____

916 F.2d 731, 734-35 (1st Cir. 1990); Kathios v.

_______

General Motors Corp., 862 F.2d 944, 949 (1st Cir. 1988).
____________________

As long

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.

___ ______

III.
III.

CAUSATION
CAUSATION

The

basis that

which a

the

defendant

challenges the

plaintiff provided

reasonable jury

could

entire

verdict

insufficient

conclude that

on the

evidence

from

the belated

call

constituted

a proximate cause of

Jersey law the

plaintiff bears

the burden of

defendant's conduct comprised "a

the

harm" of which the

the ensuing death.

Under New

proving that

the

substantial factor in producing

plaintiff complains.

Francis v. United
_______
______

____________________

1Indeed,

this

kind of

conceptions of law itself.

of the Law, 10 Harv. L.
__________
what

predictive

approach

is among

See Oliver Wendell Holmes,

___

our

The Path
________

Rev. 457, 461 (1897) ("The prophecies of

the courts will do

in fact, and

are what I mean by law.").

nothing more pretentious,

Jersey Bank, 432 A.2d 814, 829 (N.J. 1981).

___________

conduct

is an omission

the defendant's failure

than the defendant's maladroit

this

rule is

When the

easier to

questioned

to act rather

performance of an affirmative act

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

involves the

particular

generic charge

act,

In

that, had

the plaintiff

decedent) would have had

harm.

omission that occurs from time

(or,

the defendant

as

here, the

a better chance to ward

these so-called "loss of chance"

to time

done some

plaintiff's

off threatened

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

in a

manner.

the

defendant acted

non-negligent

Hake v.
____

Manchester Township, 486 A.2d 836, 839 (N.J. 1985); see also Olah
___________________
___ ____ ____

v.

Slobodian,
_________

Hake).2
____

574

A.2d

Transposed to the

defendant's omission

the omission

rescue

"negated

411, 417-19

1990)

rescue context, this

actionable if

(N.J.

rule renders a

the plaintiff can

substantial

efforts would have been

(discussing

possibility

successful."

Hake,
____

show that

that

prompt

486 A.2d at

839.

____________________

2It is commonly

thought that the "substantial

possibility"

standard

is

more

lenient

than

standard

plaintiff to prove it is more likely than

that

requires

not that a defendant's

failure to act constituted a substantial factor in bringing about

the victim's injury or death.
& Keeton on Torts
_________________

See W. Page Keeton et al., Prosser

___
_______

41, at 44 (Supp. 1988).

Under these

authorities, the question here

whether the evidence, viewed

plaintiff,

supports

reduces to

in the light most congenial

finding

that

the

defendant's

to the

failure

promptly to

that

call an ambulance negated

James Blinzler

would have

a substantial possibility

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

defendant agreed to place the call

The

and

that

the

but then neglected to do

so.

ambulance reached the scene at

elapsed time of thirteen

evidence from

(and,

time;

defendant actually made the call at 8:49 p.m. (some fourteen

minutes later) and the

(an

that

hence,

minutes).

The

a renowned cardiologist that

death)

paramedics reached the

would

have

premises ten

been

9:02 p.m.

jury heard opinion

serious brain damage

forestalled

minutes earlier.

had

the

On

this

record, we believe that a reasonable jury could conclude that the

defendant's

rescue

omission negated a

efforts

would

have

substantial possibility that the

succeeded.

Put

another

way,

reasonable jury could find (as this jury apparently did) that the

ambulance likely would have

it been summoned

arrived fourteen minutes earlier had

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

One initiative involves

parry this thrust in

assembling a string of cases

two ways.

(mostly of

hoary origin) in which courts have rejected plaintiffs' claims of

negligence for failure

Tel. & Tel. Co.,

________________

to rescue.

173 P.2d 144,

Carolina Tel. & Tel. Co.,

___________________________

Volquardsen
___________

129

v. Iowa Tel. Co.,

______________

See, e.g.,
___ ____

149 (Wash.

S.E.

602,

126 N.W.

Foss v.
____

Pacific
_______

1946); Whitehead v.
_________

605

928, 930

(N.C.

1925);

(Iowa 1910);

Lebanon, L. & L. Tel. Co. v. Lanham Lumber Co., 115 S.W. 824, 826
_________________________
_________________

(Ky.

1909).

These cases

coupled with some alleged

company in

all

of

which involve

fire damage

negligence on the part of

a telephone

respect to a telephone call

meant to summon the fire

department

here,

provide

reached

the rescuers (there, the

the scene in time to prevent

P.2d at 149;

more importantly, each

from

cases, unlike

firefighters) could have

the harm (there, the rapid

of a conflagration that had already started).

Foss, 173
____

legal

In those

the plaintiffs did not proffer evidence that, had the call

gone through,

spread

little guidance.

Lebanon, 115 S.W.

_______

of those

standard of causation

New

Jersey's

at 826.

cases draw on

See, e.g.,
___ ____

And perhaps

Lebanon for
_______

the

a standard that differs materially

standard.

See
___

Lebanon,
_______

115

S.W. at

826

(stating that "it must be established with certainty that but for
______________

their

negligence

the fire

would

have

plaintiff contends) (emphasis supplied).

been confined"

as

the

This second point is aptly illustrated by the one entry

in

Marriott's string citation

building:

Hardy
_____

(Okla. 1996).

in McKellips v.
_________

that does

not involve

v. Southwestern Bell Tel. Co.,

___________________________

a burning

910 P.2d

1024

To understand Hardy, it is necessary to note that,

_____

St. Francis Hosp., Inc., 741

________________________

P.2d 467,

475-77

(Okla. 1987), the Oklahoma Supreme Court held that the

standard

of the Restatement (Second) of Torts

plaintiff may prove

showing that

the

a loss

323 (under which

of chance

the defendant's omission "increase[d]

harm), applied in

which

negligence in

medical malpractice cases.

plaintiff

alleged

that

the

causation

case by

the risk" of

Hardy
_____

a case in

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

considered extending the causation

Oklahoma

Supreme

Court

standard of Restatement

there

323

to loss of chance claims outside the medical malpractice context.

See Hardy, 910

___ _____

1030.

P.2d at 1025.

It declined to

do so.

See id. at
___ ___

Hardy,
_____

proof

fairly read,

confirms the

distinction between

of causation in loss of chance cases under the traditional

test (to which

Oklahoma adheres in

malpractice) and

on whether

particular

"substantial

cases

under more modern standards

defendant's conduct

risks.

As

possibility"

in general,3

"increased

Restatement.

risk"

cases not involving

and it

standard

we

has

have

is at

explained,

to

a minimum

endorsed

that focus instead

significantly

standard applies

by

medical

increased

New

Jersey's

loss of

chance

as liberal

as the

section

323

of

the

See Olah, 574 A.2d at 419 (suggesting that whether

___ ____

____________________

3Like

has explicitly

adopted section

323 of the Restatement for use in loss of chance

cases involving

medical

Oklahoma, New Jersey

malpractice.

See Scafidi
___ _______

v. Seiler, 574
______

A.2d 398, 405

(N.J. 1990); Evers v. Dollinger, 471 A.2d 405, 415 (N.J. 1984).
_____
_________

the

plaintiff "has

a substantial

would ordinarily be subsumed

a defendant's

avoiding harm

in the jury's determination whether

deviation increased

quotations omitted).

possibility of

the risk of

harm") (internal

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

___ _____

case actually supports

a finding of

causation under New

Jersey

law.

Marriott's

causation features its

that the same traffic

8:49 p.m.

can

second attempt

to scuttle

lament that the

the finding

plaintiff did not

conditions which were extant at

were also extant at

and after 8:35 p.m.

scarcely be taken seriously.

Juries

prove

and after

This lament

have the power to draw

reasonable inferences from established facts.

a jury's ordinary competence

of

It

is well within

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

plaintiff's

evidence,

some

the

8:49

p.m.

is

equally

burden to prove her

to suspect

here

have arrived

10

the

in

It

is

the

preponderance of the

doubt.

changed conditions

of any actual change

ambulance would

jejune.

case by a

not beyond all conceivable

reason

evidence

at

In

the absence of

and there

is no

jury's inference that

roughly the

same elapsed

portal-to-portal time

is unimpugnable.

Motor Freight, Inc.,

_____________________

(explaining

that

832

See Levesque
___ ________

F.2d

702,

704

the "perhapses"

that

dot

(1st

v. Anchor
______

Cir.

1987)

a factbound

trial

record typically "are for factfinders to resolve

not for judges

imperiously to dictate"); see also W. Page Keeton et al., Prosser

___ ____
_______

& Keeton on Torts

__________________

41, at

plaintiff does not have

the defendant's

conduct

269 (5th ed.

1984) (noting

to negate entirely the

was not

that a

possibility that

contributing cause

of

the

harm).

Silhouetted against this

of

record,

visualized

most

legal backdrop, the

favorably to

the

evidence

plaintiff,

see
___

Cumpiano, 902 F.2d at 151, suffices to ground a finding that, had

________

the defendant hailed an ambulance immediately upon request, there

was

death

at least

significant possibility

could have

liberty under New

been prevented.

Jersey law

that Marriott's negligence

that James

Accordingly,

to disturb

constituted a

Blinzler's

we are

the jury's

not at

conclusion

substantial factor

in

the ensuing death.

IV.
IV.

BYSTANDER LIABILITY
BYSTANDER LIABILITY

The

most

plaintiff's claim

This

claim is

vexing

issue

in

this

case

involves

the

of negligent infliction of emotional distress.

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

and,

finally,

the district court

apply the

doctrine as

found to be

we

dispositive,

understand it

idiosyncratic facts of this case.

A.
A.

General Principles of Bystander Liability.

General Principles of Bystander Liability.

to the

_________________________________________

American courts first recognized bystander liability in

the landmark

Drawing

ruled

case of Dillon
______

v. Legg, 441 P.2d

____

in part on precedents from English common law, the court

that a

mother could

recover

injuries suffered "from witnessing

death

912 (Cal. 1968).

or injury to her

child."

for emotional

and physical

the [negligent] infliction of

Id.
___

at 914.

The Dillon court

______

implicitly suggested that any bystander should be able to recover

for all objectively foreseeable injuries.

See id. at 920-21.

___ ___

To

help jurists navigate the reefs and shoals of foreseeability, the

court attempted to elucidate guidelines based on Dillon's factual

______

scenario.

See id. at 920.

___ ___

Twelve

years

later,

New

Jersey

embraced

bystander

liability in

state

Portee v. Jaffee,
______
______

supreme court

bosom,

but,

rather,

foreseeability,

emotional

did not

417 A.2d 521

clasp Dillon
______

abjured

(N.J. 1980).

The

uncritically to

its

tunnel-vision

focus

on

fearing that it would open the door to claims of

distress advanced

negligently caused event.4

on

behalf of

See id.
___ ___

any onlooker

at 527 (cautioning

to any

against

____________________

4New Jersey is not alone in its reluctance blindly to follow

Dillon's lead.
______

See, e.g.,
___ ____

524, 528

1975) (rejecting

(R.I.

Indeed, even
thoughts.

the

progenitor

See Thing v.
___ _____

D'Ambra v. United States, 338

_______
______________

of

rigid

foreseeability

the doctrine

has

La Chusa, 771 P.2d 814, 826

________

(retreating from Dillon on this point).

______

12

had

A.2d

focus).

second

(Cal. 1989)

institutionalizing

liability");

"an

unreasonably

excessive

measure

of

see also Carey v. Lovett, 622 A.2d 1279, 1286 (N.J.

___ ____ _____
______

1993) (suggesting that treating foreseeability as a sole talisman

would render it difficult to differentiate between legitimate and

fraudulent

(warning

claims);

that

feelings" of

Prosser

forcing

&

Keeton,

defendants

to pay

every bystander would be

supra,
_____

for

54,

the

at

366

"lacerated

"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

punitive

liability,"

transmogrified

cause of action

Portee
______

court

Portee,
______

the Dillon
______

417

A.2d

guidelines

for bystander

concluded that

at

526,

Jersey

into prerequisites

liability, see id.

___ ___

New

bystander

or

of

at 528.

plaintiff should

The

be

permitted to recover under New Jersey law only if she could prove

(1)

the

death

defendant's

or serious

injury

negligence); (2)

of

another

an intimate

(caused by

the

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.

decisions have cut plaintiffs

their

efforts to

See id.
___ ___

some slack (but not very

fulfill this

quadrat of

Subsequent

much) in

requirements.

See,
___

e.g., Dunphy v. Gregor, 642 A.2d 372, 377-78 (N.J. 1994) (holding
____ ______
______

that

unmarried

cohabitants

relationship); Frame v.
_____

may

enjoy

Kothari, 560 A.2d

_______

(explaining that a plaintiff

an

intimate

familial

675, 678 (N.J.

1989)

may recover without actually seeing

13

the injury so

perception"

long as

and the

it is "susceptible

plaintiff observes

to immediate

the victim

sensory

immediately

after the injury is inflicted).

These

keeping

four

elements

bystander liability

serve

within

critical

function

reasonable bounds.

in

First,

they furnish a set of guideposts that help to identify and define

a range of

claims that are

other claims that

Dunphy,
______

liability

presumptively valid while

society simply

642 A.2d at 377

cannot afford to

(noting that the

excluding

honor.

See
___

elements of bystander

"structure the kind of `particularized foreseeability'

that ensures

that the class is winnowed . . . and that limitless

liability is avoided").

define

narrowly the

and relatedly

emotional interest

See Carey, 622 A.2d at

___ _____

814,

Second

they combine to

that the

law protects.

1286; accord Thing v. La Chusa,

______ _____
________

829 (Cal. 1989).

While "[t]he law should

find more than

pity for one who is stricken by seeing that a loved

critically injured

elements of

or

killed," Portee,
______

417

the bystander liability tort

771 P.2d

one has been

A.2d at

526,

the

frankly recognize that

it is not the law's province to shield people from all anxieties.

Since

the

ordinary

slings

inevitably

produce stress

emotional

interests

negligent injury."

and

arrows

and strain,

should

receive

of

human

"only the

vindication

existence

most profound

for

their

Id.
___

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

circumstances.

decrees

that

particularly

be

In

compensable

an effort

bystanders

may

in

the

absence

to hold the

recover

exquisite anguish that

in

of

special

line, New Jersey

tort

only

for

law

the

occurs when they personally

observe trauma strike a loved one like a bolt from the blue.

Frame, 560
_____

supposed

A.2d at 679

to

remedy the

(explaining that bystander

"harm of

seeing

See
___

liability is

a healthy

victim one

moment and a severely injured one the next"); Portee, 417 A.2d at
______

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

sense of loss that

may destroy his sense

severe

emotional distress.").

unless

the

close relation's

of security and

Thus, there

helpless

a traumatic

can be

watching

no recovery

arises in

context of a sudden, unexpected, and accidental injury.

B.
B.

The Fork in the Road.

The Fork in the Road.

cause

the

____________________

The issue before us is whether the plaintiff's asserted

injury

falls

within the

claims

that are actionable under

court decided that

narrow

it did not.

range

New Jersey law.

The court

series of bystander liability/medical

the

New Jersey

decisions and

act

order

Supreme

of bystander

Court placed

liability

The district

relied primarily on a

malpractice cases in which

gloss on

its

earlier

indicated that a plaintiff must witness the actual

of malpractice and appreciate

to bring herself within

its effect on

the class of

15

the patient in

persons entitled to

recover.

See Carey, 622 A.2d at 1288 (declaring that a plaintiff

___ _____

must "contemporaneously

observe the malpractice and

its effects

on the victim"); Frame, 560 A.2d at 681 ("In an appropriate case,

_____

if

family

observes

the

member

witnesses

effect

of

the

physician's

the malpractice

on

the

malpractice,

patient, and

immediately connects the malpractice with the injury, that may be

sufficient to

distress.");

allow recovery

for the family

member's emotional

see also Gendek v. Poblete, 654 A.2d 970, 975 (N.J.

___ ____ ______
_______

1995) (rejecting a claim on the ground that the bystander did not

"immediately connect[] any act

of malpractice" with the victim's

death).

Here,

added

concededly, Mrs.

cannot satisfy

this

requirement; she neither "witnessed" the negligence (which

comprised

the hotel

ambulance and

operator's failure

which occurred

room) nor fully appreciated

hindering

needed

negligence).

immediately to

call an

six floors beneath

the Blinzlers'

at the time that the

negligence was

assistance

misrepresentations, if

the

Blinzler

(indeed,

the

defendant's

believed, concealed the very

fact of the

Thus, to decide this case we must determine whether

Gendek-Carey-Frame
__________________

gloss

applies

liability/medical malpractice claims

or whether it applies

only

to

bystander

(as the plaintiff contends)

to all bystander liability claims

(as the

defendant contends and as the

the answer

to the question

lower court concluded).

is by no

means free from

Although

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

and

the

imposed

See
___

in any case

malpractice cases

in

strongly suggest that

Gendek,
______

"added"

outside the medical

654

A.2d at

and "special"

indirect

claim

for

malpractice context,

which the

requirement

it is restricted

974

in that

emotional

(describing

it is

to that milieu.

the

requirement as

"imposed to

distress

arising

has been

establish an

from

medical

malpractice"); Carey, 622 A.2d at 1286 ("With medical-malpractice

_____
________________________

claims, we have required that claimants observe contemporaneously

______

the

act of

supplied).

malpractice

What is

and the

more, crafting a

bystander liability/medical

an

resultant injury.")

unprecedented flight

special set of

malpractice cases is not

of fancy;

other courts

(emphasis

rules for

in any way

that recognize

bystander liability claims in general sometimes treat such claims

more restrictively

in the medical malpractice

occasion, barring them

545 A.2d 1059,

outright.

1063-64 (Conn.

setting, even, on

See, e.g., Maloney

___ ____ _______

1988); Wilson v.
______

v. Conroy,
______

Galt, 668
____

P.2d

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

policy

malpractice claims

considerations

bystander liability

interest

unaffected

that

fuels

in most

that

do

claims.

the

not

is

grounded in

seem

to

apply

a set

to

of

other

For one thing, the unique emotional

doctrine of

cases of

medical

17

bystander

liability

malpractice for

is

the harm

caused

until

by, say,

shocking event.

the

rarely culminates

See
___

typical

deterioration

often

does not

manifest itself

days, weeks, months, or years have elapsed, and even then,

the misdiagnosis

in

misdiagnosis usually

in a single

Frame, 560 A.2d at 678-79

_____

malpractice

case

of a loved one, as

does not arise from

circumstances in which the

"[g]rief

spontaneous and

(explaining that

over

the

gradual

profound as that grief may be,

a sudden injury,"

but, rather, under

family members have had the

"time to

make

that

an emotional adjustment").

bystander

liability

It is largely

must

be

even

for this reason

more

"narrowly

circumscribed in the context of a medical misdiagnosis or failure

to

act."

Gendek, 654
______

A.2d

at 975-76.

accomplish this circumscription

New

Jersey chose

by limiting bystander

to

liability

in the medical malpractice arena to those situations in which the

putative plaintiff observes both

immediate effects,

the act of malpractice and

and appreciates the interrelationship.

e.g., Frame, 560 A.2d at 681.

____ _____

its

See,
___

That rationale loses force outside

the medical malpractice context.

For another thing, the added requirement applicable

bystander liability in

societal

the medical malpractice

concerns about the impact of

to

context reflects

expanded liability on the

delivery

of

health care.

See Gendek,
___ ______

654 A.2d

at

975 ("In

considering the standards that govern an appropriate duty of care

and

limitations of

must

policy

be

liability in

especially mindful

that

are

informed

[the health care]

of the

by

principles of

perceptions

18

of

setting, we

sound public

fairness

and

balance."); Carey, 622 A.2d at 1286 (voicing uneasiness about the

_____

"effects of the expansion of

and

society,"

malpractice

and

for

specifically

insurance

(emphasizing that

to

medicine").

avoid

premiums);

noting

cases is

"unreasonably

This group

sharp

Frame,
_____

the special refinement

medical malpractice

desire

liability on the medical profession

560

increases

A.2d

in

at

681

of bystander liability

at least

burdening

partly driven

the

by a

practice

of

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

__________________________________

effect

medical

on the

practice of

services."

Frame,
_____

medicine or

on the

560 A.2d at

681.

availability of

Once

again, this

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

right of recovery on

the tort.

We

think it

bystanders and defining

the elements of

See Dunphy, 642 A.2d at 377; Portee, 417 A.2d at 528.

___ ______
______

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.

purposeful

Because

rather than

requirement imposed

applicable

health-care

only

we

believe that

serendipitous,

by the

to causes

providers with

this

we hold

specificity is

that the

Gendek-Carey-Frame line of
__________________

of

action that,

malpractice.

therefore, took the wrong fork in the road.

The

at

added

cases is

bottom, charge

district

court,

C.
C.

Applying the Principles.

Applying the Principles.
_______________________

Once we put the added requirement to one side, the only

question

lacked

that remains open under this rubric is whether the jury

evidence

plaintiff's

bystander

satisfactory

injury

fell

liability that

to

within

support a

the

obtain in

finding

standard

New Jersey

that

parameters

the

of

vis-a-vis suits

arising outside the

medical malpractice context.

evidence sufficed.

Intimate relationship and third-party injury

(i.e.,

contains

spouse's death)

adequate

proof

are not

of

in

We think

dispute, and

severe emotional

the

the record

distress.

The

seminal New Jersey case suggests that, in addition to these three

elements, a

plaintiff need

death . . . while

only show

it occur[red]."

that she

"observ[ed] the

Portee, 417 A.2d at

______

527; see
___

also supra p. 13 (recounting the four elements of the

____ _____

New Jersey law).

This

last element

corresponds to the distinct

when

tort under

firsthand observation

emotional interest that is infringed

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

firsthand observation of

one

simplistic to say that

a suddenly inflicted injury

invariably gives rise to the

underlies bystander liability.

observation

of

the

in New Jersey

injury

to a loved

unique emotional interest that

Arguably, it

but

the

is not merely

perception

that

it

the

is

accidental or otherwise unwarranted that threatens a "plaintiff's

basic

emotional

paves the

that

it is

"accidental

security," Portee,
______

417 A.2d

way for bystander liability.

the "shock

death" of

narrowly defined

and fright"

an intimate

interest in

at 521,

See id. at
___ ___

and thus

528 (noting

attendant to

observing the

relation that

infringes the

emotional security).

Frame makes
_____

this point most clearly, albeit in dictum:

Everyone is subject
death.

Common

injury

or death

to injury, disease,

experience teaches
of one

often produces severe

another family
is separating
distress
added
the

the

when no

or

one is

in

threshold problem

grief that

death

a family

emotional distress

stress attributable
injury

that the

member of

member.

and

attends

that

at fault

from the

to the

fact that

was produced

by

the

negligent act of another.

Id. at
___

677.

And

while the

formally modified in this

Portee elements have

______

respect,5 we think it is

that New Jersey will move in this direction.

at 829 (tightening

not yet

been

not unlikely

Cf. Thing, 771 P.2d

___ _____

the elements of a bystander

liability action

____________________

5In Portee, the question was not raised squarely.

______
plaintiff (the victim's

mother) arrived at

There the

the scene after

_____

her

son became trapped in

the

initial

maintenance)
however,

an elevator.

entrapment
that

that

injuries had an

the

or

the

caused the
mother

She

did not witness

act

of

accident.

negligence
It

knew immediately

was
that

unnatural cause and stemmed from

either

(faulty

quite clear,
her

child's

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

requirements simpliciter.

shocking event when

she watched her

excruciating chest

breath,

asphyxiate,

Because

she

lose

560

A.2d

victim

at

a sudden and

struggle to

consciousness,

the

Portee
______

husband of forty-two

pain, vomit,

"witness[ed]

Frame,
_____

satisfies the

The plaintiff witnessed

undergo

inflicted,"

here clearly

and

when

678,

catch his

ultimately

the

injury

recovery

years

would

die.

[was]

seem

appropriate under a formal incantation of the Portee elements.

______

2.

The law

potential problem as

trial's

end,

the

of

to the

the

case

doctrine

eliminates

precise dimensions of

district court

charged

the

Portee.
______

jury

plaintiff must be present at the scene of the event

any

At

that "the

and be aware

that the

victim

is being

objected generally to

injured."

plaintiff actually to witness

any

other,

court's formulation of

even

if

New Jersey

defendant's

the court's decision to

at all on count 3 (asseverating

object in

The

more

instruct the jury

that New Jersey law requires the

the negligent act) but he

specific respect

the basic

might in

counsel

an

to

elements of the

did not

the

district

tort.

appropriate case

Thus,

impose some

intermediate limitation going beyond Portee but stopping short of

______

mandating

defense

that

the plaintiff

formulated no

witness

such intermediate

22

the

negligent act,

position at

the

the jury-

instruction

stage.

instruction stands as

unembellished

liability.

contours

In

other

the law

of

See Quinones-Pacheco
___ ________________

words,

the

of the case

cause

of

content

of

the

with respect to

the

action

for

bystander

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

________

Court

would

cause

of

action

exemplified

From the

find

the

augment the

for

by Thing,
_____

elements of

bystander

the

evidence adduced

that during the

that the New Jersey Supreme

a non-medical-malpractice

liability

verdict might

at trial,

well be

the

lines

sustainable.

the jury rationally

incident proper the

manager whether the ambulance

along

could

plaintiff twice asked

_____

had been called.

Though she

was (erroneously) assured that the call had been made punctually,

she

asked the manager yet

again at the

same misinformation), and then checked

later

(after her husband had

arguably could

all

hospital (receiving the

with the hotel three days

perished).

support an illation that

This

type of evidence

the plaintiff suspected

along that a delay attributable to the defendant was causing

injury

her

to her husband.

husband's suffering

worrying

appear

that prospects

to be

the

Watching the event while suspecting that

was being

for his

kind of

bystander liability would lie

unnecessarily prolonged

rescue were

distinct

and

diminishing would

emotional harm

for

which

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.
V.

OTHER ISSUES
OTHER ISSUES

The defendant

connection

with

persuasive.

its

raises a

appeal.

salmagundi of other

None

of its

issues in

asseverations

is

Only three warrant discussion.

A.
A.

The Evidentiary Rulings.

The Evidentiary Rulings.
_______________________

The defendant argues that it is entitled to a new trial

because the district court

Its chief

to

erred in certain evidentiary rulings.

complaint concerns the admission

of evidence relating

the destruction of the so-called Xeta report (a printout that

catalogues all outgoing calls from the hotel's PBX

November 13, 1992.

The defendant

operator) for

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.

contending that

it discarded

the

course of business, pursuant to

part

of an effort to

court

overruled the

introduce

evidence

Xeta report

in the

objection

and permitted

at trial

of

Xeta

report,

of

explanation

to the jury.

ordinary

established practice, and not as

inter unfavorable evidence.

destruction

admitting or

the

The defendant objected,

the

the plaintiff

existence and

leaving

The district

the

to

subsequent

defendant's

We review the district court's rulings

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);

1158, 1168 (1st Cir. 1989).

When

United States v.
_____________

We see none in this instance.

document relevant

destroyed, the trier of

Nazzaro, 889 F.2d

_______

to an

issue

in a

fact sometimes may infer that

who obliterated it did so out of a realization

case is

the party

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
___________________

1979).

285, at

192 (James H. Chadbourn

Before such an inference

may be drawn, there

sufficient foundational showing that

document

had notice

document's

218.

Even

mandatory.

both

of the

potential relevance.

then,

If,

the

for example,

potential

claim and

of

Nation-Wide, 692
___________

inference is

the

F.2d at

permissive,

the factfinder believes

documents were destroyed accidentally

not

that the

or for an innocent reason,

then the factfinder is free to reject the inference.

Jackson v. Harvard Univ., 900

_______
______________

must be a

the party who destroyed the

See
___

adverse

rev. ed.

F.2d 464, 469

See , e.g.,
___
____

(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.

not go very far.

This is true as

far as it goes

but it does

The proponent of a "missing document" inference

need not offer direct evidence of a coverup to set

the stage for

the

will suffice.

adverse inference.

Circumstantial evidence

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

considerable

circumstances

not believe that

discretion in

here

deciding

rendered such

reasonable factfinder could easily

notice all along that the

relevant to likely

begun

the district court

an

that the

abused its

totality of

inference

plausible.

conclude that Marriott was on

Xeta report for November 13,

litigation.

the

Although no suit

1992 was

had yet

been

when the defendant destroyed the document, it knew of both

James Blinzler's death and

including

the plaintiff's persistent attempts

at least one attempt after Blinzler died

to discover

when the call for emergency aid had been placed.

This

gave

the

the

defendant ample

reason

anticipation of a legal action.

to

preserve

knowledge

report

in

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.
___ _______

(4th Cir. 1995);

Bayliner Marine Corp., 71 F.3d

______________________

Partington v. Broyhill Furn. Indus., Inc., 999

__________
____________________________

F.2d 269, 272 (7th Cir. 1993);

the circumstances

148, 156

at

bar,

Nation-Wide, 692 F.2d at 219.

___________

the trial

court

acted

within

In

its

discretion in admitting the Xeta report.

The defendant also

chastises the

court for

admitting

evidence of another missing

for

November

13,

record.

1992 could

not

The security

be

located,

officer's log

and the

judge

26

permitted

the

evidence of that fact to go

ruling cannot

explanation for the

be

faulted.

missing log,

The

to the jury.

defendant

and the jury

Once again,

had

no

was entitled

infer that the defendant destroyed it in bad faith.

good

to

To

cinch matters, these

synergistic effect.

factfinder to

two pieces of

We think it would be proper for a reasonable

conclude that the unavailability

documents, both

evidence had a

of which bore

upon the

of two important
___

timing of the

call for

emergency assistance, was something more than a coincidence.

veteran district

judge, after

hearing all the

these mysterious disappearances, put it

evidence limning

bluntly in the course of

ruling on post-trial motions:

will tell

you

now that

the Xeta

Report

raises a compelling inference in my mind that

personnel
that

at the Marriott

record

security

willfully,

officer's daily

Hotel did destroy

along
log of

with

the

that date.

The inference is compelling that the Marriott

Hotel was

The

hiding the delay of

the telephone

operator in making this telephone call.

This

is a

harsh assessment

appraisal of the

testimony and

but

it is

based on

it is one

a firsthand

that a rational

jury

easily could draw on the record.

B.
B.

After the

directed

plaintiff rested, the defendant

verdict under

arguments, the

her case in

The Motion to Reopen.

The Motion to Reopen.
____________________

Fed. R.

Civ. P.

50(a).

district court permitted the

order to

After hearing

plaintiff to reopen

offer certain additional

27

moved for a

evidence on

the

issue

ruling.

of

causation.6

The

defendant

assigns

error

to this

There is none.

The Federal

Rules of Evidence give

broad discretion in ordering

the proof.

the district court

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

_____________

742, 746 (1st

v. Puerto Rico Tel. Co., 64

______________________

Cir. 1995); Lussier v. Runyon, 50

_______
______

F.3d

F.3d 1103, 1113

(1st Cir.), cert. denied, 116 S. Ct. 69 (1995), and

_____ ______

such rulings

are reviewed principally for abuse of that discretion.

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

____________
______

specific factors

F.2d 104, 107 (5th Cir. 1983).

to be assessed

include the probative

The

value of

the evidence sought to be introduced, the proponent's explanation

for

undue

failing to offer the evidence earlier, and the likelihood of

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

________________________

(2d

ed. 1993).

The

prospect of

59.04[13], at 59-33

prolonging the trial

is also

material.

If the additional evidence is immediately available or

____________________

6The supplemental evidence

witnesses.

The

first,

consisted of testimony

plaintiff's

medical

from two

expert,

simply

clarified and confirmed his earlier testimony that James Blinzler

would

have

earlier.

survived
The

second

service) testified that

had

the

witness

ambulance

arrived

(an employee

of

ten
the

the ambulance service had a

minutes

ambulance

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

additional evidence

the

reopened.

portends a

Conversely,

if gathering

significant delay in

the

the trial,

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

supra
_____

note 6.

There is no

proof as a strategic

quite

and

the injuries claimed.

See
___

sign that the plaintiff withheld the

matter.

To the contrary, the

record shows

clearly that she attempted to streamline her case in chief

offered

the

incremental

evidence

only

after

the

judge

expressed

reservations about the state of the proof on the issue

of causation.7

Notwithstanding

insists

that

permitting

substantial prejudice

the

plaintiff

these

the

circumstances,

the

plaintiff

reopen

because the

would

fail

to

to

defense hoped all

prove

defendant

worked

along that

causation.

This

is

____________________

7This
Rule

is consistent

50(a) exists

with

in part

the method

to afford

of the

Civil Rules.

the responding

party "an

opportunity to cure any deficiency in that party's proof that may

have been overlooked until
late

motion for

called to the party's attention

judgment."

committee's note (1991

Fed.

R.

amendment).

should be construed "to

Civ.

In

P.

50,

avoid tactical victories at the

Moore, supra,
_____

district court echoed this

sentiment when it granted

to reopen,
want

stating:

the truth.

"I allow the

I want

advisory

other words, Rule

of substantive interests."

50(a)

expense

50.08, at 50-89

The

the motion

plaintiff to reopen because I

the facts.

result in this case . . . ."

by a

I want to

achieve a just

29

disappointment rather

than cognizable

prejudice.

The evidence

taken after reopening consisted of only two witnesses and created

no unfair surprise.

plaintiff's

prompt

The added testimony simply fleshed

basic theory of liability

call might well

Moreover, allowing

have led

the plaintiff

out the

that the time saved by a

to James

Blinzler's survival.

to reopen did

not perceptibly

delay

the trial

defense case.

and did

not occasion

so that it might regroup

additional evidence.

the defendant

confirmed the

By declining

absence of

United States v.
______________

Diaz-Villafane,
______________

cert. denied, 493

_____ ______

U.S. 862 (1989).

the granting

within

the

of the

In any event, the district court prudently offered

the defendant a continuance

rebut the

any interruption

of

the plaintiff's

heartland

of the

the court's offer,

unfair prejudice.

874 F.2d

43, 47

Under these

motion

trial

and better

(1st Cir.),

circumstances,

to reopen

court's

See
___

comes

well

discretion.

See
___

Rivera-Flores, 64 F.3d at 749.

_____________

C.
C.

Where, as

The Emotional Distress Award.

The Emotional Distress Award.
____________________________

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

new trial.

See
___

on any concomitant motion for

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

emotional

contingent

law on count 3, then the jury's award of damages for

distress should

ruling and

remittitur on count 3.

stand.

argues

for

The

defendant assails

either

In its most cogent

30

new

trial

this

or

aspect, the argument

is

based

exhibited

on

the

by the

premise

that

the

plaintiff simply

scanty

do not

physical symptoms

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.

v. Penn Shipping Co., 429 U.S. 648, 649 (1977).

_________________

federal

standards, appellate

district court abused

jury

award rather

See, e.g., Ruiz

___ ____ ____

review is

See Donovan
___ _______

Under applicable

limited to

whether the

its discretion in deciding to

endorse the

than trim it

or set

it aside

as excessive.

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

high or low as

or

_____

estimate of the

high side,

unless

it is

not be

deemed unreasonably

long as it comports with some "rational appraisal

before the jury."

the

damages will

damages that could be

based on the evidence

Milone, 847 F.2d at 37 (citation omitted).

______

a damage

"grossly

determination will

On

withstand scrutiny

excessive, inordinate,

shocking to

the

conscience of the court, or

so high that it would be a denial of

justice

stand."

to

permit

it

to

Correa
______

v.

Hospital San
_____________

Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995) (quoting Grunenthal

_________
__________

v.

Long Island R.R. Co.,

______________________

petition
________

for
___

cert. filed,
_____ _____

393

64

Moreover, "an appellate court's

U.S. 156,

159

U.S.L.W. 3605

& n.4

(Feb.

(1968)),

26, 1996).

normal disinclination to second-

guess

a jury's

evaluation of

the proper

magnified where . . . the damages entail

amount of

damages is

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

that

(1st Cir. 1993); Ruiz,

____

the award, though

929 F.2d at 34,

perhaps generous, passes

we think

muster.

Under

New Jersey law, no particular level of physical symptomatology is

necessary

to

support

damages

for

emotional

distress.

Strachan v. John F. Kennedy Mem. Hosp., 538 A.2d

________
___________________________

1988).8

The

testimony

in

plaintiff watched helplessly

passed

out,

and became

this

record

346, 353 (N.J.

indicates

as her husband collapsed,

cyanotic.

She was

See
___

still in

that

the

vomited,

the room

nearly fifteen minutes later when an oxygen mask was being placed

over

her unconscious husband's mouth and nose.

of her husband's death, she experienced daily

time

of

torment.

She

still

suffers

from

In the aftermath

flashbacks to that

insomnia, cardiac

palpitations, and shortness

negligent

infliction

of

of breath.

Coupled

emotional

distress,

with proof

this

of

evidence

justifies substantial compensation under New Jersey law.

Of course,

the task

of valuing noneconomic

tort cases is an imprecise exercise.

There is no one

losses in

"correct"

____________________

8At

one

time

New

Jersey

courts

did

require

proof

of

"substantial bodily injury or sickness" in all emotional distress

cases.
(N.J.
Portee
______

See, e.g., Caputzal v. The Lindsay Co., 222 A.2d 513, 515
___ ____ ________
_______________
1966);

Falzone v.
_______

changed

this rule

permitting recovery

in

A.2d

respect

in the absence

circumstances are such that

be inferred.

Busch, 214
_____

12, 17

to bystander

(N.J. 1965).

liability,

of physical symptoms

if the

severe emotional distress can easily

See Portee, 417 A.3d at 527-28.

___ ______

32

sum,

but, rather,

instances

range

of

acceptable

the spread between the high and

will be great.

The choice within the range

awards.

In

many

low ends of the range

which by its nature

requires the decisionmaker to translate intangibles (such as pain

and

suffering) into quantifiable dollars and cents

largely within

the jury's ken.

See
___

Correa, 69
______

is a choice

F.3d at

1197.

Since we are unable to conclude on this record that $200,000 is a

figure beyond

uphold

the

excessive.

of

the wide

universe of acceptable

district court's

See Ruiz, 929 F.2d

___ ____

appeals "cannot,

overrule a

and

finding

that

awards, we

the figure

is

at 34 (explaining that the

will not,

without substantial

trial judge's considered

refusal to tamper

must

not

court

cause,

with the

damages assessed by a jury").

VI.
VI.

CONCLUSION
CONCLUSION

We need

go no further.

the jury's conclusion that

calling

an

Blinzler's

the defendant's inexplicable delay in

ambulance constituted

death

and

negligently

distress and

a loss of consortium

Finding,

we do,

as

The record adequately supports

that

the law

proximate

inflicted

cause of

both

on his wife (now

of

New Jersey

James

emotional

his widow).

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.

Affirmed in part and reversed in part.
_______________________________________

plaintiff.
plaintiff.
_________

Costs in favor of the

Costs in favor of the
_______________________

34