## Facts

- Heather Reilly suffered catastrophic hypoxic brain damage during labor and delivery at a Navy hospital due to negligent obstetrical care, leaving her permanently unable to see, walk, talk, feed, or care for herself and requiring lifelong intensive care.
- Heather’s parents sued the United States under the Federal Tort Claims Act (FTCA) for Heather’s injuries and for their own damages.
- After a bench trial, the district court found causation and awarded $11,037,964 in total damages, including a significant component for Heather’s lost future earning capacity.
- In calculating lost earning capacity, the district court credited expert testimony projecting a 48-year work-life expectancy for Heather rather than generalized labor statistics showing a shorter average work-life for women.
- The district court appointed a technical advisor to assist the court in understanding complex evidence; the advisor did not testify.
- The United States appealed, challenging the technical-advisor appointment, the handling of collateral-source offsets, the lost-earnings calculation, the lump-sum form of judgment (and refusal to use annuity cost as the measure), an award exceeding the administrative claim, and alleged duplication within the damages categories.

## Issues

1. Whether a district court in an FTCA bench trial may appoint a technical advisor, and whether doing so improperly circumvents Fed. R. Evid. 706 or prejudices the government.
2. Whether state collateral-source limitations required a reduction of the damages award under the FTCA’s incorporation of state substantive law.
3. Whether the court clearly erred in calculating lost earning capacity by rejecting generalized work-life tables and accepting individualized expert testimony.
4. Whether an FTCA court must order periodic payments or treat the cost of a structured-settlement annuity as the proper measure of future-loss damages.
5. Whether 28 U.S.C. § 2675(b) barred recovery above the amount stated in the administrative claim absent newly discovered evidence or intervening facts.
6. Whether the award contained impermissible double recovery requiring reduction.

## Decision

- The First Circuit largely affirmed the district court’s liability and damages determinations and upheld most challenged rulings.
- The court approved the use of a technical advisor as a non-testifying aid to the judge in a complex bench trial, where the decision was based on record evidence and no prejudice was shown.
- The court found no reversible error in the district court’s approach to collateral-source matters under applicable state law as applied through the FTCA.
- The court upheld the lost-earning-capacity award, concluding that reliance on individualized proof rather than generalized, gender-linked work-life tables was permissible and not clearly erroneous.
- The court rejected the government’s request for staggered payments or mandatory use of annuity-cost measures in place of a lump-sum present-value award.
- The court held that § 2675(b) did not bar an award exceeding the administrative claim to the extent later-developed medical information about the child’s condition qualified as newly discovered or intervening facts.
- The court identified one limited error affecting the damages computation and ordered a modification of the judgment on that discrete point.

## Legal Principles

- In a complex bench trial, a court may employ a technical advisor to assist understanding, so long as the advisor does not supply extra-record evidence, does not act as a clandestine expert witness, and the process does not prejudice the parties.
- Under the FTCA, liability and damages are governed by the substantive law of the state where the tort occurred, including state rules affecting recoverable damages, subject to proper interpretation and application.
- Lost-earning-capacity determinations are fact-intensive and reviewed for clear error; courts may credit individualized expert testimony over generalized statistical tables.
- Generalized work-life statistics, especially those reflecting historically gender-based labor patterns, are not conclusive measures of an individual plaintiff’s expected work life when record evidence supports a different projection.
- FTCA judgments typically award a lump-sum present value of reasonably certain future losses; absent statutory authorization, a court is not required to impose periodic payments or substitute annuity cost as the exclusive metric.
- Under 28 U.S.C. § 2675(b), recovery above the administrative claim amount is permitted upon proof of newly discovered evidence not reasonably discoverable at filing or intervening facts, including later-emerging information about the severity and prognosis of injuries.

## Conclusion

The First Circuit upheld nearly all aspects of a substantial FTCA damages award arising from catastrophic birth injury, validating the limited use of a technical advisor, permitting individualized proof to support a longer work-life expectancy than generalized gender-based tables, and allowing an award above the administrative claim based on later-developed medical information, while requiring only a narrow correction to avoid an identified damages error.


Reilly v. United States, 863 F.2d 149 (1st Cir. 1988)