affirming an award of “$1.3 million to [the deceased infant’s] parents for the loss of [their child’s] society and affection” (internal quotation marks omitted)
How later courts described this case
- affirming an award of “$1.3 million to [the deceased infant’s] parents for the loss of [their child’s] society and affection” (internal quotation marks omitted)
- FTCA medical malpractice case stemming from injuries to a newborn, required not only calculating an award for future medical expenses but also calculating a dollar value for the parent's "loss of society and affection of the child" and their loss of the child's services in the future
Written by the judges who cited it.
The opinion
CARNES, Circuit Judge,
concurring:
I concur in the majority opinion and judgment. I also write separately to discuss this Court’s entry of an immediate partial affir-mance of those components of the magistrate judge’s judgment that were uncontested on appeal. The published opinions of this Circuit do not otherwise reflect the possibility of such action, and it is an idea that I want to commend to my colleagues and to the attention of parties in future appeals.
On December 19, 1991, the magistrate judge entered a judgment in this case for Loren Dempsey and her parents that totaled $4,184,000.37. The government’s appeal did not contest liability, nor did it contest a number of components of the damage award. The uncontested part of the judgment amounted to $2,815,835.00. Because of the government’s appeal, none of the judgment, including the uncontested part, had been paid when the case was docketed for oral argument. The brief filed on behalf of Loren indicated that she was not receiving needed care because the government’s appeal from a *1498 portion of the judgment prevented payment of any of it.
On our own motion, this Court raised the question of whether we should enter an immediate affirmance of the uncontested part of the damages award. In asking for supplemental briefs on that question, we directed the parties’ attention to Barnes v. United States, 678 F.2d 10 (3d Cir.1982), which involved the motion of a plaintiff-appellee for partial summary affirmance in a Federal Tort Claims Act (FTCA) case. Even though the government did not contest some of the damage components of the judgment in that case, it nonetheless opposed the motion. The government argued that an appeals court lacked the power to enter a partial summary affirmance. It contended that such action was proscribed by the FTCA and amounted to the impermissible splitting of a cause of action. Id. at 12 . The Third Circuit correctly rejected those arguments and entered an immediate partial summary affirmance of the undisputed part of the judgment. Id. at 12-13 ; See also Parker v. Lewis, 670 F.2d 249 (D.C.Cir.1982) (granting a motion for summary affirmance of the uncontested part of an attorney’s fee and costs award).
In this case, the government, to its credit, eschewed the position it had taken in Barnes and stated that it did not object to entry of an immediate partial affirmance of the judgment to the extent of the uncontested part of the damages award. On January 26, 1993, we entered the following order:
The judgment of the district court in this cause is hereby affirmed only insofar as it awards the sum of $2,815,835, plus interest, to Pansy and Lonney Dempsey as natural guardians of the minor plaintiff Loren Dempsey, for the sole benefit of Loren Dempsey, against the United States of America.
The appeal in this cause remains pending in all other respects. See Barnes v. United States, 678 F.2d 10 (3d Cir.1982).
As a result of that order, Loren Dempsey received a substantial part of the damages she was due a year and one-half earlier than she would have otherwise had access to the funds.
Where there is a discrete, uncontested amount of damages included in a judgment from which an appeal is taken, there is no reason why an immediate partial summary affirmance should not be entered by this Court to the extent of the uneontested part of the judgment. That is so whether the defendant is the government or some other party, and it is true whether the appeal is filed by the plaintiff or the defendant. The notion that causes of action or judgments are indivisible is metaphysical mumbo-jumbo that courts should not allow to prevent them from seeing that justice is not only done but done promptly. The notion that Congress might have intended in the FTCA, or in any other statute, to prevent victims of government negligence from receiving immediately that portion of the judgment the government concedes they are due, is simply absurd.
Of course, there are practical ramifications to this matter. Providing the plaintiff with a way to obtain access to some part of the judgment while the appeal is pending may encourage appeals by plaintiffs, lessen the incentive for appeals by defendants, and alter the post-trial settlement calculus in such cases. So be it. No party is entitled to benefit from any leverage it might obtain from unnecessary delay in paying that part of a judgment that it indisputably owes.
In future appeals, plaintiffs should move for partial summary affirmance to the extent of any uncontested part of the judgment, and this Court should grant such motions.