21-548-cv
`Gonzalez v. United States
`
`
`
`
`United States Court of Appeals
`for the Second Circuit
`_____________________________________
`
`August Term 2021
`
`(Argued: March 9, 2022 Decided: August 24, 2023)
`
`No. 21-548-cv
`
`_____________________________________
`
`MIRIAM GONZALEZ, individually and
`as Executrix of the Estate of Robert R. Salazar, deceased,
`
`Plaintiff-Appellant,
`
`— v. —
`
`UNITED STATES OF AMERICA,
`
`Defendant-Appellee.∗
`
`_____________________________________
`
`Before:
`
`
`
`CHIN, SULLIVAN, and BIANCO, Circuit Judges.
`
`Plaintiff-Appellant Miriam Gonzalez, on behalf of herself and as Executrix
`of the Estate of Robert R. Salazar, her deceased husband, brought claims under the
`Federal Tort Claims Act against the United States alleging that, between October
`2015 and August 2016, a U.S. Department of Veterans Affairs hospital negligently
`failed to diagnose Salazar with lung cancer. Prior to trial, the government
`
`∗ The Clerk of Court is respectfully directed to amend the caption as set forth above.
`
`

`

`conceded that the hospital’s ten-month failure to diagnose Salazar was a departure
`from the standard of care. Following a two-day bench trial, the district court
`(Daniels, J.) entered judgment and awarded $975,233.75 in damages to Gonzalez,
`including $850,000 for pain and suffering and $50,000 for loss of consortium.
`
`On appeal, Gonzalez argues: (1) the district court erred in failing to
`adequately explain its factual findings and methodology for arriving at its awards
`for both pain and suffering and loss of consortium, as required under Federal Rule
`of Civil Procedure 52(a); and (2) the district court’s awards for pain and suffering
`and loss of consortium were based on legal errors, including that the awards were
`inadequate in light of comparable New York cases.
`
`As a threshold matter, we clarify that the appropriate standard of review for
`assessing a district court’s FTCA damages award governed by New York law is
`whether the award “deviates materially from what would be reasonable
`compensation,” as articulated under New York Civil Practice Law and Rules
`§ 5501(c), not whether the award “shocks the conscience,” as is the standard under
`federal law. We nonetheless find Gonzalez’s challenges to the district court’s
`damages awards to be unpersuasive. The district court’s explanation for the
`awards in its factual findings and conclusions of law, as well as in its denial of the
`motion to amend or alter the judgment as to these awards, satisfied the
`requirements of Rule 52. Moreover, we discern no legal error in the district court’s
`explanation of its determination of the awards and hold that the awards did not
`deviate materially from what would be reasonable compensation under New York
`law.
`
`
`Accordingly, we AFFIRM the judgment of the district court. Judge Sullivan
`concurs in part and dissents in part in a separate opinion.
`
`
`GARY A. BARBANEL, Law Office of Gary
`A. Barbanel, New York, NY (Peter
`Wessel, Law Office of Peter Wessel,
`PLLC, New York, NY, on the briefs), for
`Plaintiff-Appellant.
`
`
`
`
`2
`
`

`

`RACHAEL L. DOUD (Anthony J. Sun,
`Benjamin H. Torrance, on the brief),
`Assistant United States Attorneys, for
`Damian Williams, United States
`Attorney for the Southern District of
`for
`New York, New York, NY,
`Defendant-Appellee.
`
`
`JOSEPH F. BIANCO, Circuit Judge:
`
`Plaintiff-Appellant Miriam Gonzalez (“Gonzalez”), on behalf of herself and
`
`as Executrix of the Estate of Robert R. Salazar (“Salazar”), her deceased husband,
`
`brought claims under the Federal Tort Claims Act (“FTCA”) against the United
`
`States alleging that, between October 2015 and August 2016, a U.S. Department of
`
`Veterans Affairs (“VA”) hospital negligently failed to diagnose Salazar with lung
`
`cancer. Prior to trial, the government conceded that the VA hospital’s ten-month
`
`failure to diagnose Salazar was a departure from the standard of care. Following
`
`a two-day bench trial, the district court (Daniels, J.) entered judgment and
`
`awarded $975,233.75 in damages to Gonzalez, including $850,000 for pain and
`
`suffering and $50,000 for loss of consortium.
`
`On appeal, Gonzalez argues: (1) the district court erred in failing to
`
`adequately explain its factual findings and methodology for arriving at its awards
`
`for both pain and suffering and loss of consortium, as required under Federal Rule
`
`
`
`3
`
`

`

`of Civil Procedure 52(a); and (2) the district court’s awards for pain and suffering
`
`and loss of consortium were based on legal errors, including that the awards were
`
`inadequate in light of comparable New York cases.
`
`As a threshold matter, we clarify that the appropriate standard of review for
`
`assessing a district court’s FTCA damages award governed by New York law is
`
`whether the award “deviates materially from what would be reasonable
`
`compensation,” as articulated under New York Civil Practice Law and Rules
`
`(“CPLR”) § 5501(c), not whether the award “shocks the conscience,” as is the
`
`standard under federal law. We nonetheless find Gonzalez’s challenges to the
`
`district court’s damages awards to be unpersuasive. The district court’s
`
`explanation for the awards in its factual findings and conclusions of law, as well
`
`as in its denial of the motion to amend or alter the judgment as to these awards,
`
`satisfied the requirements of Rule 52. Moreover, we discern no legal error in the
`
`district court’s explanation of its determination of the awards and hold that the
`
`awards did not deviate materially from what would be reasonable compensation
`
`under New York law.
`
`Accordingly, we AFFIRM the judgment of the district court.
`
`
`
`4
`
`

`

`BACKGROUND
`
`I.
`
`The Trial Evidence
`
`Salazar and Gonzalez met in 1962 and were married for nearly fifty-seven
`
`years before Salazar died in August of 2018. On October 7, 2015, at seventy-five
`
`years old, Salazar was an emergency room patient at a hospital owned and
`
`operated by the VA’s New York Harbor Healthcare System (the “VA Hospital”).
`
`Dr. Robert Hessler conducted an examination of Salazar and ordered chest x-rays.
`
`Dr. Kwang Myung reviewed the x-ray results, which showed an abnormality in
`
`Salazar’s lung, and recommended a CT scan be taken for further investigation.
`
`However, Dr. Hessler did not make any notation in Salazar’s medical chart
`
`concerning the x-ray results, did not order any follow-up testing as recommended
`
`by Dr. Myung, and did not inform Salazar’s primary care provider of the follow-
`
`up recommendation.
`
`Following the October 7, 2015 emergency-room visit, Nurse Practitioner
`
`Catherine Glasser conducted Salazar’s primary care visits at the VA Hospital.
`
`When Glasser first treated Salazar on October 13, 2015, Salazar was not
`
`experiencing chest pain, shortness of breath, or other medical problems, aside
`
`from his diabetes, and, according to Glasser, was in “pretty good shape for a 75-
`
`
`
`5
`
`

`

`year-old man.” Gonzalez v. United States, 612 F. Supp. 3d 336, 341 (S.D.N.Y. 2020)
`
`(internal quotation marks and citation omitted). Indeed, Gonzalez testified at trial
`
`that, up until the summer of 2016, Salazar “ran two to three miles several times a
`
`week, went to the gym, danced, socialized, traveled, and had an intimate
`
`relationship with her.” Id. at 343 (citation omitted).
`
`On August 17, 2016, approximately ten months after the initial x-rays,
`
`Salazar was admitted to the VA Hospital “with chief complaints of difficulty
`
`breathing, sore throat, and weight loss,” and was ultimately diagnosed with Stage
`
`IIIA lung cancer. Id. at 342 (internal quotation marks and citation omitted).
`
`Salazar’s health subsequently deteriorated: He felt exhausted, lost his appetite,
`
`experienced continual shortness of breath, and began to lose his voice. About a
`
`month later, in September 2016, Salazar was diagnosed with paraneoplastic
`
`necrotizing autoimmune myositis, a disease that weakened his muscles, caused
`
`him to develop a heart condition, and forced him to rely on a feeding tube for the
`
`final twenty-three months of his life.
`
`Salazar began radiation therapy in November 2016 and received thirty
`
`radiation treatments. During a three-month period of treatment at a rehabilitation
`
`center, he lost his ability to speak and had to be retrained to walk. Salazar began
`
`
`
`6
`
`

`

`receiving chemotherapy in early 2018, which included side effects such as loss of
`
`hair and appetite, and he eventually could not be left alone because he had fallen
`
`twice in his house when trying get out of bed. Thereafter, Salazar’s lung cancer
`
`progressed to Stage IV. He died from complications related to his cancer on
`
`August 28, 2018.
`
`Gonzalez’s expert witness in medical oncology, Dr. Edward Gelmann,
`
`testified at trial that, when Salazar’s chest x-rays showed an abnormality on
`
`October 7, 2015, Salazar’s cancer was at Stage I, and, if the cancer had been
`
`diagnosed at that time, Salazar “had a reasonable chance of cure.” Id. at 344
`
`(internal quotation marks and citation omitted). In particular, Dr. Gelmann
`
`testified that Salazar had a survival rate of forty-eight percent in October 2015. Dr.
`
`Gelmann also testified that Salazar “more likely than not [would have] avoided
`
`developing paraneoplastic autoimmune syndrome” had he been diagnosed with
`
`cancer in October 2015 and treated sooner. Id. at 348 (internal quotation marks
`
`and citation omitted).
`
`The government’s expert in medical oncology, Dr. Ashish Saxena, also
`
`testified at trial about causation. Although Dr. Saxena testified that he was unable
`
`to determine the exact stage of Salazar’s cancer on October 7, 2015 based solely on
`
`
`
`7
`
`

`

`the x-rays, he stated that “there was a good chance that it was less than Stage III”
`
`and, if the cancer was at Stage I, the standard treatment would have been surgery,
`
`not chemotherapy. Id. at 344 (internal quotation marks and citation omitted). Dr.
`
`Saxena further “testified that Salazar’s cancer was Stage III in August 2016, and
`
`that if the stage had been lower [than Stage III] in October 2015, then Salazar’s
`
`prognosis . . . would have been better.” Id. at 345 (citation omitted). Dr. Saxena
`
`explained, however, that “for those patients who are treated for clinical stage [I]
`
`whose cancer has not upstaged to a higher stage, the rate of recurrence of their
`
`cancer can be as high as 40 percent.” Id. at 347 (alterations adopted) (internal
`
`quotation marks and citation omitted).
`
`II.
`
`Procedural History
`
`Following Salazar’s August 2016 lung cancer diagnosis and September 2016
`
`myositis diagnosis, Salazar and Gonzalez filed a complaint against the United
`
`States, the VA Hospital, and various medical professionals in their individual
`
`capacities, alleging a series of claims under the FTCA. See 28 U.S.C. § 1346(b)(1).
`
`Plaintiffs then filed an amended complaint solely against the United States on June
`
`26, 2017, and the district court scheduled a trial for September 4, 2018. Salazar died
`
`in August 2018, and the court adjourned the trial. On February 22, 2019, Gonzalez
`
`
`
`8
`
`

`

`filed a second amended complaint after being appointed executrix of Salazar’s
`
`estate.
`
`Prior to trial, the government conceded that the VA Hospital’s ten-month
`
`failure to diagnose Salazar with lung cancer beginning around October 2015 was
`
`a departure from the standard of care. The district court held a two-day bench
`
`trial on June 17, 2019 and July 10, 2019, solely on the issues of whether the delay
`
`in diagnosis proximately caused Salazar’s injuries and death and, if so, the
`
`damages to be awarded, including pain and suffering, loss of services, loss of
`
`consortium, medical expenses, and funeral expenses.1 Both parties called medical
`
`
`1 Courts have not consistently distinguished loss of services and loss of consortium.
`Sometimes, courts have regarded a loss-of-consortium claim to extend beyond the loss of
`“love, companionship, affection, society, sexual relations, solace and more” to include the
`loss of a spouse’s economically quantifiable services. Millington v. Se. Elevator Co., 22
`N.Y.2d 498, 502 (1968). In other instances, courts have used the phrase “loss of services”
`interchangeably with “loss of consortium.” See, e.g., In re Joint E. & S. Dist. Asbestos Litig.,
`964 F.2d 92, 96 (2d Cir. 1992) (describing a single “loss of services and consortium claim”);
`Briggs v. Julia L. Butterfield Mem’l Hosp., 479 N.Y.S.2d 758, 758 (2d Dep’t 1984) (using “loss
`of services” to describe features of the marital relationship traditionally associated with
`loss of consortium). Here, the district court did distinguish between Gonzalez’s loss of
`“the pecuniary value of the services that [Salazar] formerly performed” and the loss of
`their marital relationship. Gonzalez, 612 F. Supp. 3d at 349–50 (quoting Zavaglia v. Sarah
`Neuman Ctr. for Healthcare & Rehab., 883 N.Y.S.2d 889, 892 (N.Y. Sup. Ct. 2009) (internal
`quotation marks omitted)). The parties seem to have made a similar distinction: They
`stipulated to an amount of damages for the loss of Salazar’s services, but Gonzalez’s
`counsel stated in a letter to the court that her separate “claim for loss of consortium . . .
`includes the loss of the love, affection and society of her husband.” J. App’x at 174
`(internal quotation marks and citation omitted).
`9
`
`
`
`

`

`expert witnesses to testify as to the impact of the VA’s delay in diagnosis and
`
`resulting damages. The parties stipulated to $55,000 in loss-of-services damages
`
`in the event Gonzalez proved causation.
`
`As to loss of consortium, Gonzalez’s counsel filed a pre-trial letter noting
`
`that “the Court should award the sum of at least $6 million dollars for the Plaintiff
`
`Salazar and $2million [sic] for his wife’s losses,” but did not specify how much of
`
`the amount for Gonzalez was for loss of services versus loss of consortium. J.
`
`App’x at 58. On June 25, 2019, following Gonzalez’s testimony during the first day
`
`of trial, Gonzalez’s counsel submitted a letter to the court acknowledging that,
`
`although she was seeking an award for loss of consortium, counsel “didn’t ask her
`
`specifics, nor did [counsel] ask if [their intimate] relationship changed in the two
`
`years prior to [Salazar’s] passing” during her trial testimony. Id. at 59. The letter,
`
`however, suggested that “Gonzalez testified in her deposition that her husband
`
`could not physically and emotionally provide the kind of care that she was
`
`accustomed to having with him,” including that “[h]e couldn’t perform sexually
`
`since the time he was hospitalized in August of 2016.” Id. The letter also enclosed
`
`the pages from Gonzalez’s deposition transcript containing that testimony.
`
`During the second day of the bench trial, when the district court questioned why
`
`
`
`10
`
`

`

`it should accept the deposition testimony of Gonzalez when she had the
`
`opportunity to provide live testimony, Gonzalez’s counsel withdrew the request
`
`to have the district court consider Gonzalez’s deposition testimony.
`
`On March 31, 2020, the district court
`
`issued a twenty-one-page
`
`memorandum decision and order, containing nine pages of detailed findings of
`
`fact as well as conclusions of law based on the bench trial. With respect to
`
`causation, the district court engaged in a comprehensive analysis, concluding that
`
`“it [was] very likely that Salazar’s cancer was Stage I at the time” of his visit to the
`
`VA Hospital in October 2015, and “Salazar would have faced a better prognosis
`
`had he been diagnosed at that time.” Gonzalez, 612 F. Supp. 3d at 347. The district
`
`court determined that “[t]he evidence at trial also established that Salazar would
`
`have undergone different treatment had he been diagnosed in October 2015”—
`
`namely, “rather than being subjected to chemotherapy and radiation, he very
`
`likely would have only had surgery.” Id. at 348. Based on that evidence, the
`
`district court concluded that Gonzalez had “proven by a preponderance of the
`
`evidence that the [g]overnment’s ten-month delay in diagnosing Salazar’s lung
`
`cancer was a substantial factor in causing Salazar’s injuries and death and that
`
`absent this delay, Salazar would have had a chance at a better outcome.” Id. Thus,
`
`
`
`11
`
`

`

`Gonzalez had proven that “the delay proximately caused [Salazar’s] injuries and
`
`death and that the [g]overnment [was] liable for the damages arising from such
`
`injuries and death.” Id. The district court then awarded $850,000 for Salazar’s pain
`
`and suffering, $55,000 for loss of services, $50,000 for loss of consortium, $10,000
`
`for medical expenses, and $10,233.75 for funeral expenses.
`
`With respect to the damages for pain and suffering, in addition to
`
`articulating the applicable legal standard under New York law, the district court
`
`explained:
`
`After being diagnosed with lung cancer in August 2016, Salazar lived
`for two years until his death in August 2018. Prior to his diagnosis,
`Salazar was social, physically active, and in good shape despite being
`in his mid-seventies. Following his diagnosis, however, he endured
`significant pain and suffering. He experienced shortness of breath,
`fatigue, loss of appetite, muscle aches and weakening, and voice loss.
`He underwent 30 rounds of radiation treatment, as well as
`chemotherapy, which resulted in him losing hair and his appetite. He
`developed paraneoplastic autoimmune syndrome, which forced him
`to rely on a feeding tube that was inserted in September 2016 and
`remained inserted until his death[.] Plaintiff testified that her
`husband ultimately could not be left alone, and that on two occasions,
`he fell while trying to get out of bed.
`
`
`Id. at 349. The district court further noted that “[d]etermining a monetary figure
`
`for an individual’s pain and suffering is an unenviable task, but awards issued in
`
`comparable New York cases involving failure to diagnos[e] lung cancer provide
`
`
`
`12
`
`

`

`some guidance.” Id. The district court then cited three comparable cases under
`
`New York law involving a delay in diagnosis, noting the relevant delay, injuries,
`
`and pain-and-suffering awards for each. Based upon that analysis, the district
`
`court concluded that “$850,000 [was] an appropriate award . . . for Salazar’s pain
`
`and suffering.” Id.
`
`With respect to Gonzalez’s loss of services and consortium, after describing
`
`the relevant legal standard under New York law, the district court explained:
`
`Here, the parties stipulated that the amount of any damages for loss
`of services would be $55,000. Plaintiff additionally seeks damages for
`“loss of consortium for 2 years.” Plaintiff does not indicate, however,
`what amount she is seeking for such loss. Moreover, Plaintiff’s
`counsel did not elicit testimony at trial on the issue of loss of
`consortium. Nonetheless, given that Plaintiff was married to Salazar
`for many decades, an award of $50,000 for loss of consortium, on top
`of $55,000 for loss of services, is appropriate.
`
`Id. at 350 (citations omitted). The judgment was entered on March 31, 2020.
`
`On May 29, 2020, Gonzalez filed a motion to alter or amend the judgment
`
`under Federal Rules of Civil Procedure 52(b) and 59(e), requesting, inter alia, that
`
`the district court amend the pain-and-suffering award to an amount between
`
`$1,562,017.20 and $3,220,686.24 and amend the loss-of-consortium award to
`
`
`
`13
`
`

`

`$1,000,000.2 In particular, she argued to the district court that it: (1) “failed to
`
`articulate any intelligible methodology underlying its award for Mr. Salazar’s pain
`
`and suffering” or loss of consortium in violation of Rule 52(a), Dist. Ct. ECF Dkt.
`
`No. 139 at 7–9; (2) failed to account for inflation when considering the damages
`
`awards in the three relevant pain-and-suffering cases that were cited and that such
`
`an adjustment would justify an award within the range of $1,562,017.20 and
`
`$3,220,686.24, id. at 9–11; (3) erred in concluding that (a) Gonzalez did not indicate
`
`the amount she was seeking at trial for loss of consortium, and (b) she failed to
`
`elicit testimony regarding that claim, id. at 12–15; and (4) should amend the award
`
`for loss of consortium from $50,000 to $1,000,000 to reflect the awards for loss of
`
`consortium in analogous cases, id. at 15–16.
`
`
`
`On March 1, 2021, the district court issued a memorandum decision and
`
`order denying Gonzalez’s motion to amend the judgment as to the pain-and-
`
`suffering and loss-of-consortium awards. The district court emphasized, with
`
`respect to the award for pain and suffering, that it did not simply recite Salazar’s
`
`injuries, but rather took into account “Salazar’s age and condition prior to his
`
`
`2 Gonzalez also sought to have the district court alter the judgment to reflect that the
`award of $10,000 was not for medical expenses but rather was for out-of-pocket expenses
`not covered by insurance. The district court granted that portion of the motion and that
`award is not challenged on appeal.
`
`
`
`14
`
`

`

`diagnosis, his condition post-diagnosis, the severity of his radiation treatment and
`
`chemotherapy, and the length of time he suffered from the time of diagnosis to his
`
`death,” as well as “the fact that Salazar developed paraneoplastic autoimmune
`
`syndrome and was forced to rely on a feeding tube from September 2016 until his
`
`death in August 2018.” Gonzalez v. United States, No. 17-cv-3645, 2021 WL 1606182,
`
`at *2 (S.D.N.Y. Mar. 1, 2021). The district court further explained that it then
`
`“identified comparable New York cases involving a failure to diagnose lung
`
`cancer” and, “[a]fter considering the evidence presented at trial, in light of the
`
`damages awarded in the identified cases, this Court arrived at a reasonable figure
`
`that fell within the range of awards in such cases.” Id. The district court also
`
`rejected Gonzalez’s contention that its award was a substantial deviation from the
`
`amounts awarded in the comparable cases:
`
`Plaintiff . . . contends that this Court, without explanation, awarded a
`sum that amounts to a far lower pain and suffering award than those
`rendered in the cases on which it purportedly relied. Plaintiff’s
`calculations are based on
`the calculated average monthly
`compensation awarded for pain and suffering from the time of
`diagnosis until death. Plaintiff’s argument is unavailing. This Court
`appropriately considered more than the duration of Plaintiff’s pain
`and suffering in fixing fair and reasonable compensation. For
`example, this Court weighed the nature and extent of Salazar’s
`injuries, his treatment, and the [g]overnment’s delay in diagnosing
`his condition. Plaintiff’s challenge as to the sufficiency of this Court’s
`explanation amounts to a disagreement with this Court’s assessment.
`
`
`
`15
`
`

`

`A Rule 52(b) or 59(e) motion is not a vehicle for parties to seek a
`rehearing on the merits.
`
`
`Id. at *3 (internal quotation marks and citations omitted).
`
`
`As to the loss-of-consortium award, the district court reiterated that
`
`Gonzalez never explicitly asked for a specific monetary amount and her counsel
`
`failed to elicit testimony regarding changes in Salazar and Gonzalez’s sexual
`
`relationship at trial. Additionally, the district court noted that, even though
`
`Gonzalez herself had failed to raise her trial testimony regarding her transition
`
`from wife to caretaker in post-trial briefing, it had considered that testimony as
`
`“evidence of a deterioration of the marital relationship relevant to calculating
`
`damages for loss of consortium,” and “reasonably inferred injury to the marital
`
`relationship after considering the scope of the concept of consortium, Salazar’s
`
`injuries, and the length of [Gonzalez’s] marriage to Salazar.” Id. Therefore, as with
`
`the award for pain and suffering, the district court held that Gonzalez failed to
`
`identify a clear error or manifest injustice sufficient to amend or vacate the
`
`judgment under Rule 52(b) or 59(e).
`
`This appeal followed.
`
`
`
`16
`
`

`

`DISCUSSION
`
`
`
`On appeal, Gonzalez does not argue that the district court clearly erred in
`
`its findings of fact, but rather contends that: (1) the district court failed to provide
`
`sufficient explanation and analysis under Rule 52 for its pain-and-suffering and
`
`loss-of-consortium awards; (2) the district court made certain legal errors in
`
`calculating the awards; and (3) the awards deviate materially from what would be
`
`reasonable compensation under New York law. Gonzalez thus requests that we
`
`vacate the district court’s judgment and remand with instructions to increase the
`
`$850,000 award for pain and suffering and $50,000 for loss of consortium to “such
`
`amounts as are consistent with awards in comparable cases.” Appellant’s Br. at
`
`31.
`
`I.
`
`Standard of Review Under the FTCA
`
`“We review a district court’s finding of facts in support of its FTCA damages
`
`award for clear error, but we review the nature and measure of its FTCA damages
`
`award according to the law of the state in which the tort occurred.” Malmberg v.
`
`United States, 816 F.3d 185, 197 (2d Cir. 2016) (citations omitted). The parties here
`
`dispute—and we have yet to clarify—“the appropriate standard of review
`
`
`
`17
`
`

`

`applicable for a district court’s FTCA damages award where the nature and
`
`measure of damages is governed by New York law.” Id. at 199.
`
`Under CPLR § 5501(c), New York’s appellate courts “shall determine that
`
`an award is excessive or inadequate if it deviates materially from what would be
`
`reasonable compensation.” See also Serrano v. State, 117 N.Y.S.3d 748, 750 (3d Dep’t
`
`2020) (applying standard to review of a damages award following a nonjury trial);
`
`Martin v. Fitzpatrick, 799 N.Y.S.2d 285, 289 (3d Dep’t 2005) (same).3 Gonzalez
`
`asserts that we should apply this “deviates materially” standard in reviewing the
`
`adequacy of the damages award under the FTCA. The government contends,
`
`however, that we can only overturn a damages award under the FTCA using the
`
`federal standard—that is, if it is “so grossly and palpably inadequate as to shock
`
`the court’s conscience.” Gov.’s Br. at 24 (citing Korek v. United States, 734 F.2d 923,
`
`929 (2d Cir. 1984)); see also Gibbs v. United States, 599 F.2d 36, 39 (2d Cir. 1979)
`
`(noting that a court’s award of damages for pain and suffering under the FTCA is
`
`reviewed for whether it is “so high as to shock the judicial conscience” or serves
`
`as “a denial of justice”).
`
`
`3 Although phrased as a direction for appellate review of jury verdicts, the “deviates
`materially” standard applies to both appellate and trial court review of jury awards, see
`Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 425 (1996), as well as to the appellate
`review of awards following a bench trial, see Serrano, 117 N.Y.S.3d at 750.
`18
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`As an initial matter, we note that both Korek and Gibbs were decided prior
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`to the enactment of Section 5501(c) in 1986, see Gasperini v. Ctr. for Humans., Inc.,
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`518 U.S. 415, 423 (1996), and thus we did not have occasion to consider that New
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`York statute’s potential impact on the review of damage awards under the FTCA.
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`We now conclude that, not only do “we review the nature and measure of [a
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`district court’s] FTCA damages award according to the law of the state in which
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`the tort occurred,” Malmberg, 816 F.3d at 197, but we must also apply state law
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`regarding the standard of review for assessing the sufficiency of such damages
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`awards.
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`In Corley v. United States, 11 F.4th 79 (2d Cir. 2021), we articulated the
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`framework, as a matter of statutory interpretation under the FTCA, for analyzing
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`whether a particular state law should apply in such a case:
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`[S]tate law is the “source of substantive liability under the FTCA.”
`Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019) (internal
`quotation marks omitted). The FTCA’s jurisdictional grant provides
`district courts with jurisdiction over tort suits against the United
`States “if a private person, would be liable to the claimant in
`accordance with the law of the place where the act or omission
`occurred.” 28 U.S.C. § 1346(b)(1). The Supreme Court has
`“consistently held that [the FTCA’s] reference to the ‘law of the place’
`means law of the State—the source of substantive liability under the
`FTCA.” F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994). Therefore, state
`law will apply only if it is substantive, rather than procedural, and
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`district courts applying state law in FTCA suits must determine as a
`threshold matter whether that law is substantive.
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`Id. at 85.
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`In determining whether a state law is procedural or substantive in this
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`statutory context, we have drawn from diversity cases decided under Erie R. Co. v.
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`Tompkins, 304 U.S. 64 (1938), which establish that “procedural law is ‘the judicial
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`process for enforcing rights and duties recognized by substantive law,’ while
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`substantive law is ‘the law that governs the rights and obligations of individuals
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`within a given jurisdiction.’” Corley, 11 F. 4th at 85 (quoting Pappas v. Philip Morris,
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`Inc., 915 F.3d 889, 894 (2d Cir. 2019)); cf. Jackson v. United States, 881 F.2d 707, 712
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`(9th Cir. 1989) (“[The FTCA] specifically makes state law controlling to the extent
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`needed to fix the government’s substantive liability.”).
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`Here, there is no question that the standard of review for damages
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`mandated by Section 5501(c) is not a mere procedural enforcement mechanism,
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`but rather a substantive rule that impacts the “rights and obligations of individuals
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`within a given jurisdiction” by affecting the measure of damages a plaintiff may
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`recover. Corley, 11 F. 4th at 85; see also Arpin v. United States, 521 F.3d 769, 776 (7th
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`Cir. 2008) (“It is also true, though denied by the United States, that in a suit under
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`the [FTCA], as in a diversity suit, the damages rules of the state whose law governs
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`the substantive issues in the case bind the federal court; damages law is
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`substantive law.”); Carter v. United States, 333 F.3d 791, 794 (7th Cir. 2003)
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`(applying a state-law damages cap in FTCA case “because a cap on damages
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`reflects a judgment about the severity of the sanction appropriate to regulate the
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`activity of potential injurers”); Jackson, 881 F.2d at 712 (noting that, for FTCA
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`purposes, a state law is substantive where it “affect[s] the amount the government
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`ultimately pays”).
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`In Gasperini, in holding that Section 5501(c) is substantive rather than
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`procedural for Erie purposes, the Supreme Court emphasized the impact that the
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`standard of review under Section 5501(c) can have on the amount of a damages
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`award. See 518 U.S. at 431. In particular, the Supreme Court explained that the
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`“deviates materially” standard under Section 5501(c) “requires closer court review
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`than the common-law ‘shock the conscience’ test.” Id. at 429; see also Donlon v. City
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`of New York, 727 N.Y.S.2d 94, 96–97 (1st Dep’t 2001) (noting that Section 5501(c)
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`“was adopted as a reform to the former ‘shock the conscience’” standard for
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`appellate review and it, “in design and operation, influences outcomes by
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`tightening the range of tolerable awards” (alteration adopted) (quoting Gasperini,
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`518 U.S. at 425)). The effect of this “closer court review” would function somewhat
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`like a cap on damages. See Gasperini, 518 U.S. at 429–30; see also Arpin, 521 F.3d at
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`776 (observing that Gasperini found New York’s heightened review of damages to
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`be substantive because of its tendency to decrease the average damages award and
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`suggesting that thus such a heightened review would also be substantive for FTCA
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`purposes). The Supreme Court thus concluded that, despite Section 5501(c)’s
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`partially procedural instruction, its objective was “manifestly substantive,” and
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`noted that if federal courts were to apply the federal “shock the conscience”
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`standard to damages awards on New York state law claims, “substantial
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`variations between state and federal money judgments may be expected.”
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`Gasperini, 518 U.S. at 429–30 (alterations adopted) (internal quotation marks and
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`citation omitted).
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`We recognize that Gasperini was decided in the context of Erie. See id. at 428.4
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`However, the Supreme Court’s analysis in Gasperini regarding the substantive
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`impact of Section 5501(c) on damages awards provides helpful guidance in
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`4 Cf. Cibula v. United States, 551 F.3d 316, 321 (4th Cir. 2009) (“[B]ecause the FTCA contains
`an explicit in