Scholarly sources relate that the first English usage of the word “twin” as an adjective meaning “born at the same birth” appeared in Shakespeare’s Comedy of Errors (1590). See, e.g., XVIII Oxford English Dictionary 753 (2d ed. 1989); Barnhart Dictionary of Etymology 1178 (1988). The litigation pending before us, seeking damages for emotional distress suffered as a result of a hospital’s negligence in confusing one of the plaintiff’s identical twin granddaughters with another twin baby born at around the same time, is a poignant reminder of the origins of the term.
I. BACKGROUND
The topsy-turvy tale of the traded twins began, in a biological sense, with the marriage of Juan Ramon De Leon Flores, son of plaintiff-appellee Pablo De Leon Lоpez (De Leon), to Dulce M. Hernandez Ramos (Dulce). The marriage proved fruitful; on September 3, 1985, Dulce gave birth to identical twin daughters at University Hospital (the Hospital), an adjunct of the Puer-to Rico Medical Center. The novice parents named their newborn twins Mari Tairi and Tairi Mari. The next day, Rosaura Hernandez Morales (Mrs. Hernandez), also a maternity patient, gave birth to fraternal twin daughters.
Dulce, while in the Hospital, presumably became familiar with her newborns during breast-feedings and by spending other time with them. She went home on September 5. The following day, she and her husband returned to retrieve their progeny. When the two girls were givеn to her, Dulce noticed that they did not seem identical in appearance. She asked the nurse why the babies did not “look alike.” The nurse explained that infants change from one day to the next, and assured the anxious mother that the babies were indeed her twin daughters. The nurse also remarked disparagingly that Dulce must be a “primeri-za,” that is, a first-time mother. Their concerns assuaged, the parents took the babies home.
Over the next year and a half, the plaintiff, who lived on St. Croix, would visit the children roughly twice a month. He became particularly attached to Tairi (who was nicknamed “La Canita” because she, unlike her sister, wаs blond). On April 10, 1987, fate intervened. Dulce’s sister, Gloria, was at a physician’s office with one of her other nieces (neither Mari nor Tairi). The niece said that she saw her cousin across the room. Gloria glanced over and saw a young girl identical in appearance to one of the De Leon twins. Gloria then approached the child’s mother, Mrs. Hernandez, and told her of the coincidence. When she found out that Mrs. Hernandez had given birth to twins at the same hospital as Dulce, and in the same time frame, Gloria’s suspicions blossomed.
We skip over painful details not relevant to the issues on appeal. When the two sets of twins were brought together, it became crystal clear that two of the babies had been switched. Subsequent testing determined that the identical twins belonged to Dulce and the fraternal twins, including La Canita, belonged to Mrs. Hernandez. After much agonizing, the families decided to restore each set of twins to its genetic parents. The realignment was finalized in the fall of 1987.
On April 29, 1988, De Leon filed this diversity action in the United States District Court for the District of Puerto Rico,' seeking damages for his emotional distress. 1 Initially, he sued three parties, but soon dropped two of the original defendants, training his sights on Corporación Insular de Seguros (CIS), the Hospital’s malpractice insurer. CIS was named as a defendant pursuant to Puerto Rico’s direct action statute, P.R.Laws Ann. tit. 26, §§ 2001-2004 (1976). In turn, CIS filed a third-party complaint against Universal Insurance Company (Universal), 2 claiming *120 that, if the Hospital were liable for the baby-switching, primary coverage lay under the Hospital’s general liability insurance policy rather than under its medical malpractice insurance policy. The plaintiff amended his complaint to include Universal as a direct defendant.
Trial began on February 26, 1990. The plaintiffs case consisted mainly of testimony by family members regarding the trauma of the discovery and their consequent suffering. To establish liability, the plaintiff reliеd on a res ipsa loquitur theory. In their respective defense cases, the insurers concentrated on adducing evidence anent the coverage issue. Indeed, Universal’s counsel, in his opening statement, conceded that the Hospital was negligent. And while CIS did not make so explicit an admission, it did not elicit any proof tending to exculpate its insured. When all parties rested, the district judge ruled as a matter of law that the baby-switching, if negligently occasioned, fell within the Hospital’s medical malpractice coverage. Accordingly, he dismissed Universal from the case. (On appeal, neither CIS nor the plaintiff contests this ruling.)
Dе Leon then moved for a directed verdict on negligence, arguing that CIS had presented no evidence regarding the Hospital’s freedom from fault, thus leaving the jury no choice but to accept the res ipsa inference. The court indicated that it was inclined to agree. To CIS’s attorney, however, the glass looked half empty rather than half full. He responded to the court’s rumination by moving for a directed verdict in CIS’s favor “because nothing has been established.” The court granted plaintiff’s motion and denied CIS’s motion. The jury, given the case on the remaining issues, returned a verdict for $800,000 in compensatory damages.
A flurry of activity fоllowed. The plaintiff moved for attorneys’ fees and prejudgment interest pursuant to Rules 44.1(d) and 44.3(b) of the Puerto Rico Rules of Civil Procedure. CIS moved, in the alternative, for judgment n.o.v., a new trial, or a remit-titur. While these motions were pending, CIS launched a new offensive. It moved to dismiss the complaint on jurisdictional grounds, arguing that it could not be sued in federal court because it was entitled to eleventh amendment immunity.
On June 12, 1990, the district court filed an opinion which tied up all the loose ends.
De Leon Lopez v. Corporacion Insular de Seguros,
A considerable amount of procedural skirmishing then took place. Ultimately, the judge ruled that De Leon had seasonably accepted the remittitur and entered judgment accordingly. 3 This appeal ensued.
II. THE ELEVENTH AMENDMENT
CIS’s primary issue on appeal invokes its professed immunity under the eleventh amendment to the federal Constitution.
4
We begin this portion of our
*121
analysis by acknowledging certain verities. The eleventh amendment, despite the absence of any express reference, pertains to Puerto Rico in the same manner, and to the same extent, as if Puerto Rico were a State.
See Ramirez v. Puerto Rico Fire Serv.,
While these truths are held to be self-evident and certain, questions nevertheless remain. Often, the pivotal issue in eleventh amendment cases involves whether a particular person or entity is to be considered “the State.” Where state agencies and institutions are concerned, the applicability of the amendment “depends upon whether the entity ‘is to be treated as an arm [or alter ego] of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend.’ ”
Ainsworth Aristocrat Int’l Pty. Ltd. v. Tourism Co. of Puerto Rico,
In this instance, CIS would have us believe that the eleventh amendment redounds to the benefit of the insurer (CIS) of a state agency (the Hospital) which is itself entitled to the immunity. 5 Appellant argues, in substance, that Pennhurst had a wedge-like effect, widening the scope of eleventh amendment immunity sufficiently to include suits against a private actor whenever the State is the real party in interest. We cannot agree. The appellant has cited no authority (and our independent researсh has disclosed none) carrying Pennhurst to such an extreme. To be sure, the Pennhurst Court recognized that state officials, though not themselves “the State,” act for the State when operating in their official capacities, and thus, should be entitled to immunity because their actions are in reality the State’s actions. The same cannot by any stretch of the imagination be said for a private company that insures the State, any more than it could be said for any other provider of goods or services to the State. In the absence of any principled basis for treating a private insurer like a state official in this context, Pennhurst is of no consolation to the appellant.
Moreover, this case is not even a suitable vehicle for an exploration of
*122
whether
Pennhurst
can be read to signal a more general expansion of immunity doctrine: the appellant’s self-serving characterization of itself as a nominal defendant standing in for the real party in interest (the State, or more precisely, the Commonwealth) is gravely flawed. The direct action statute under which CIS was sued provides a plaintiff with a substantive claim against an insurer separate and distinct from any claim which the plaintiff may have against the insured.
See
P.R. Laws Ann. tit. 26, § 2003;
see also Rodriguez Diaz v. Sierra Martinez,
Despite the clarity of the law, the paucity of authoritative support for its position, and the stark fact that it had previously lost an identical challenge in
Rodriguez Diaz,
CIS tries to rescue its cause by clinging to our recent decision in
In re San Juan Dupont Plaza Hotel Fire Litigation,
In ruling that a State, by arranging for insurance, did not thereby forfeit eleventh amendment immunity, we wrote in Du-pont: “If stаtes were deemed to waive immunity by obtaining insurance, they would be forced to pay higher premiums for their insurance. Such a result would contravene the purpose of the Eleventh Amendment.” Id. at 945. CIS wants us to stand this reasoning on its head. It exhorts that the State, via the Hospital, will bear the brunt of the judgment, even though the judgment runs exclusively against CIS, because the judgment will lead to increased malpractice premiums. Moreover, paying it will reduce the amount of coverage available for satisfaction of other claims against the Hospital arising out of the baby swap, thus leaving the *123 State at added risk. 7
While this description of the situational realities mаy be accurate, we do not see how
Dupont
enters the equation.
Dupont
confirmed that the eleventh amendment, if otherwise applicable, prevents suits in federal court against a State, even if the State is insured. There is simply no logical way to convert the case into authority for the much different proposition that the eleventh amendment shields a private (non-state) actor merely because, when the dominoes begin to fall, the entry of a judgment against the actor will potentially hurt the public fisc.
Cf. Ramirez,
For these reasons, we reject the appellant’s resupinate misreading of Dupont and decline its invitation radically to rewrite the eleventh amendment.
III. RES IPSA LOQUITUR
CIS argues that the district court erred in directing a verdict in plaintiff's favor on the issue of negligence. The yardstick by which we measure whether a directed verdict should have been granted is well known. “[W]e must examine the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to the nonmovant” in order to see if “reasonable persons could reach but one conclusion.”
Wagenmann v. Adams,
In Puerto Rico, as elsewhere, three requirements are necessary in order to bring res ipsa loquitur into play: the accident or occurrence must (1) be of a kind which does not ordinarily take place unless someone is negligent; (2) be caused by an agency or instrumentality within the defendant’s exclusive control; and (3) not be due to any voluntary action on the part of the plaintiff.
See Community Partnership v. Presbyterian Hosp.,
In the ordinary case the inference of negligence is
permissive;
there is no requirement that the inference be drawn, even if the defendant offers no evidence to show that it exercised due care.
See Matta v. Pueblo Super Mkt., Inc.,
We discuss the three prongs of the directed verdict test in the ensemble, considering the state of the evidence as tc each of the three res ipsa predicates, the proof offered by CIS, and whether, on the whole record, the res ipsa loquitur inference upon which the plaintiff relied was so compelling that no reasonable juror could fail to draw it.
The first element of res ipsa loquitur contemplates that the occurrence would normally not take place in the absence oí negligence. The case at bar unquestionably qualifies under this rubric. Maternity hospitals have a well-defined mission, carried out by professionals in a controlled environment. Common sense dictates that babies will not be switched unless due care is by the boards. Indeed, CIS has been totally unable to suggest how the mix-up could have happened without negligence attributable to the Hospital. In a videotape which was introduced into evidence, two physicians who, at the time of trial, held high-ranking positions at the Hospital, admitted that a mistake had occurred and that the Hospital was responsible for correcting it.
See De Leon Lopez,
The second requirement for res ipsa lo-quitur is exclusive control of the instrumentality. Here, the Hospital was solely in charge of safekeeping and tending the infants in its care. It dominated the environment, exercising pervasive control over what transpired in the wards, in the nursery, and elsewhere on the premises. Each mother was, of course, allowed to hold and feed her children, but neither Dulce nor Mrs. Hernandez had any access to the other’s babies. Moreover, the very fact that Dulce left the Hospital a day before the children were discharged reinforces the inescapable conclusion that, from the time the twins were born until the time they were delivered to their parents, the newborns were in the custodial care of the Hospital. In this case, there was exclusive control.
The third requirement for res ipsa loqui-tur—that the plaintiff be free of voluntary responsibility for the occurrence—was likewise satisfied. The grandfather is the plaintiff here. He could not have had anything to do with confusing the babies’ identities, as he was not even in Puerto Rico during the relevant period.
The record also reveals that the defense offered no evidence either to refute the inference of negligence or to suggest a possible cause of the accident apart from the Hospital’s negligence. 8 As the district court wrote in denying CIS’s motion for judgment n.o.v.: “[CIS] did not attempt in any way at trial to counter or rebut plaintiff’s evidence of the hospital’s negligence.... During trial, [CIS] presented no fact witnesses or expеrt witnesses regarding the alleged negligence of the hospital_” Id. at 46. In truth, per-scrutation of the trial transcript leaves the indelible impression—confirmed by the trial court, see id.—that, from the outset, the apparent strategy of each insurance company was aimed at convincing the court that the other carrier’s policy, rather than its own, afforded coverage. Tort liability was treated almost as a foregone conclusion.
*125
To sum up, exploration of the legal landscape leading to the directed verdict reveals no obstacles of any kind. This is one of the hen’s-teeth rare instances in which the res ipsа loquitur inference is both un-controverted and incontrovertible. In our estimation, no reasonable juror could find, on this record, that the babies were switched without negligence on someone’s part. By the same token, no reasonable jury, on these facts, could find any other cause for the switch,
see Community Partnership,
IV. EXCESSIVE DAMAGES
The appellant’s challenge to the amount of the damage award, pressed even after the verdict was substantially reduced by the judge, casts far more heat than light. Cutting through the mass of purple prose and perfervid rhetoric, the appellant’s core argument is that the jury was inflamed by passion and prejudice to such an extent that a court-ordered remittitur could not effect a cure. Given the posture of this case, such a thesis seems odd. We recognize, of course, that a remittitur may not be the proper anodyne if the “jury’s original overestimation of the damages indicated a passion or prejudice so virulent as to nullify the verdicts entirely.”
See Wagenmann,
Stripped of its veneer, CIS's argument reduces to the assertion that the jurors’ passion and prejudice infected the award of damages itself. This argument goes in a complete circle. To thе extent that the proposition may reflect the true facts (a topic on which we need not speculate), it overlooks that the very purpose of a remittitur is to neutralize passion and prejudice insofar as such attributes may have caused an inflated jury award. And when the trial judge performs verdict surgery of this kind, an appellate court must be slow to interfere with the operation’s outcome. The reason is apparent. We have remarked on earlier occasions that “it is surpassingly difficult on the basis of an algid appellate record to quantify money damages for intangible losses.”
Ruiz v. Gonzalez Caraballo,
To be sure, there may be instances where the damages are so speculative, and the information available to the judge so gauzy, that he cannot properly fix a remittitur amount.
See Betancourt v. J. C. Penney Co.,
In cases like this, juries and trial judges face an unenviаble task. It is agonizingly hard to place a monetary value on a grandparent’s misplaced affection, or on loss of contact with a descendant during her formative years, or on the emotional turmoil attendant to disruption of one’s nuclear family. To pretend that this translation of distress into dollars does not involve a certain amount of guesswork would be to ignore the obvious. Yet the jury system, which depends heavily on the common sense and collective human experience of jurors for a fair resolution of such quandaries, has rendered yeoman service. When, as in this case, the damages awarded by the jury have been subjected to thorough scrutiny by the nisi prius court and the sum that the defendant will ultimately have to pay does “not exceed the outermost total which, by a process of rational appraisal, could fairly be said to flow from the evidence adduced at trial,”
Ruiz,
V. INTEREST AND FEES
CIS’s final assignment of error relates to prejudgment interest and attorneys’ fees.
9
These embellishments were added to the verdict by the court pursuant to Rules 44.1(d) and 44.3(b) of the Puerto Rico Rules of Civil Procedure.
10
Under these provisions, a losing party who has been “obstinate” during the course of a lawsuit can be held liable for prejudgment interest (if a money judgment has eventuated) and for its adversary’s attorneys’ fees. In diversity cases where Puerto Rico law supplies the rule of decision, the federal court must utilize these provisions.
See Navarro de Cosme v. Hospital Pavia,
A finding of obstinacy requires that the court determine a litigant to have been unreasonably adamant or stubbornly litigious, beyond the acceptable demаnds of the litigation, thereby wasting time and causing the court and the other litigants unnecessary expense and delay.
See La Playa Santa Marina, Inc. v. Chris-Craft Corp.,
VI. CONCLUSION
We need go no further. The record shows, beyond any legitimate question, that thе Hospital was negligent and that its negligence set into motion a particularly unfortunate chain of events; thus, the court below did not err in directing a verdict on liability. The defendant must pay for the Hospital’s negligence (as a private actor, it cannot assert the defense of eleventh amendment immunity). The amount to be paid, as pared by the judge, does not shock our collective conscience. Nor are we troubled by the incremental imposition of prejudgment interest and attorneys’ fees, which, being in direct response to defendant’s intransigence and obduracy, was well within the lower court’s discretion. After all, tо close as we began, he that elects to sup with the devil “must have a long spoon.” Comedy of Errors, supra, act IV, sc. iii.
Affirmed.
Notes
. Appellant does not dispute that, under Puerto Rico law, a cause of action for negligent infliction of emotional distress may lie in favor of a grandparent under circumstances equivalent to those at bar.
. CIS also named Richport Insurance Company (Richport) as a third-party defendant. Richport was a predecessor-in-interest of Universal. Throughout the proceedings below, Universal represented Richport’s interests and was treated *120 as the sole general liability insurer. For simplicity, therefore, we treat the two as one and refer to them, collectively, as "Universal.”
. On appeal, CIS challenges the district court’s decision to allow the plaintiff to accept the remittitur, claiming that the deadline contained in the court's order had expired. We see no point in reciting the interstitial details of the litigants' maneuverings below. We are satisfied that the disputed ruling was within the court’s discretion. A district court, after all, is in the best position to determine whether a party’s filings are sufficient to comply with the court’s own order.
See United States v. Ayer,
. The amendment reads:
The Judicial power of the United States shall not be construed to extend to any suit in *121 law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const, amend. XI.
. The Hospital's entitlement to eleventh amendment immunity would depend, of course, on a variety of elements.
See, e.g., Ainsworth,
. We note in passing that the direct action statute itself denies insurance companies the right to hide behind the governmental immunity of their insureds.
See
P.R.Laws Ann. tit. 26, § 2004(2) (“All such insurance policies shall provide that the insurer shall not assert the defense of governmental immunity in any action brought against the insurer under or by virtue of such policy.”). CIS contends that this provision was intended to refer to municipal immunities rather than to eleventh amendment immunity.
Cf., e.g., Rodriguez v. Maryland Casualty Co.,
. Other suits arising out of this unhappy occurrence were filed in the Puerto Rico courts, including claims on behalf of both sets of parents. In those cases, both CIS and the Hospital were named as defendants.
. The only other causative factor that is even intimated in the record revolves around Dulce’s conduct. Appellant blames her for not vigorously challenging the nurse who handed over the two non-identical babies three days after birth. This is at best a makeweight. To the extent that the conduct of the mother can be seen as a contributory cause, or possibly a failure to mitigate damages, neither view оf the evidence would make res ipsa loquitur inapplicable vis-a-vis the Hospital, as the doctrine's reach is not restricted to cases where only one actor could be responsible.
See Colmenares Vivas,
. The rate and period of prejudgment interest were tabulated in accordance with local laws.
See De Leon Lopez,
. The Puerto Rico Rules provide in pertinent part:
In the event any party or its lawyer has acted obstinately or frivolously, the court shall, in its judgment, impose on such person the payment of a sum for attorney’s fees which the court decides corresponds to such conduct.
P.R.Laws Ann. tit. 32, App. Ill, Rule 44.1(d) (1988 Supp.).
The court shall also impose on the party who has acted imprudently the payment of interest at the rate of twelve (12) percent per annum ... from the filing of the suit in all suits for damages, and up to the date [of judgment]....
Id., Rule 44.3(b).