The Tort Law Section exists to facilitate your practice, and the steering
committee invites your feedback and input. Contact a steering committee
member with questions, concerns, issues, or topics you’d like
to see addressed, or if you are interested in helping with any activities.
If you want to join the Steering Committee, which meets monthly, let
us know soon so your name can be added to the ballot for the Spring
2008 election.
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January 25 Luncheon Program
12-2 p.m.
D.C. Bar Conference Center
1250 H Street NW
Level B-1
The New D.C. Jury – Practice Pointers for Tort Trials
Lunch will be served for you at this seminar addressing how recent changes in District of Columbia juries affect trying a tort case today. Get the perspectives of D.C. Superior Court Judge Melvin Wright and Susan Bailey-Jones of the Superior Court Jury Commissioner’s office. Hear opposing practitioners before D.C. juries discuss strategy in their specialty fields: Bob Michael and Nicholas McConnell on medical negligence cases, and Patrick Senftle and Giancarlo Ghiardi on vehicular negligence and other tort casess. Topics will include jury panel composition, voir dire, note-taking, and modern "do’s and don’t’s" from the bench and bar. Cost is $20 for Tort Law Section members. Mark you calendar to attend!
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Tort Law Section Announces Creation of
Insurance Coverage Law Committee
The Tort Law Section is pleased to announce the creation of
the Insurance Coverage Law Committee. The Insurance Coverage Law Committee
will provide a forum for communication, education, exchange of ideas
and development of professional relationships among all members of the
D.C. Bar as well as members of the insurance industry-at-large interested
in insurance coverage law.
The Insurance Coverage Law Committee will provide educational seminars
and forums to address various areas of insurance coverage law, sponsor
events that will focus on developing relationships and interaction between
members of the D.C. Bar and insurance industry practitioners, and provide
other opportunities for insurance law professionals to interact and
discuss developments in the law. The Chair and Vice Chair of the Insurance
Coverage Law Commitee are Maria
A. Hall and Christopher
P. Ferragamo, both of Jackson & Campbell in Washington, D.C.
Membership in the Insurance Coverage Law Committee is open to all members
of the Tort Law Section of the D.C. Bar. To join click
here or contact the Sections Office at 202-626-3463 or at sections@dcbar.org.
The Insurance Coverage Law Committee expects to schedule its first “kick-off” event in the winter of 2008. Details concerning the first event will be circulated to D.C. Bar members via email in December and will be posted on the Tort Law Section’s webpage.
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Tort Law Section Volunteers Needed!
by Kelly Fisher
1. Advice and Referral Clinic
Volunteer lawyers from the Tort Law Section are needed to staff
the D.C. Bar Pro Bono Program’s free legal Advice & Referral Clinic.
Once a month, volunteer attorneys provide D.C. area residents with basic
legal information, advice, brief services, and referrals to legal and
social services providers.
Because questions may cover a variety of issues, Section volunteers
assist in answering basic questions from other volunteers about tort
law, with the help of the numerous resources available on-site. Section
volunteers also directly serve Clinic clients, alongside volunteers
from local law firms, government agencies, and other organizations.
Lawyers
experienced in other substantive areas are on hand for the volunteer
lawyers to consult with if necessary.
Volunteering just one time is easy, direct, and rewarding. No volunteer
attorney is expected to take on any case for representation.
The clinic is held on the 2nd Saturday of each month at Bread for the
City, 1525 Seventh Street, N.W. Volunteers should arrive by 9:30 a.m.
for an orientation and be prepared to stay until the last client is
seen at about 1:00 p.m. If you are interested in volunteering, please
contact Kelly Fisher, 202-822-1892
and indicate the date(s) from the list below on which you will be able
to volunteer, along with your name, work and cell phone numbers, and
e-mail address.
2008 dates for volunteering: January 12, February 9,
March 8, April 12, May 10, June 14, July 12, August 9, September 13,
October 11, November 8, and December 13….please join us –
you will be glad you did!
2. City Year DC
The Tort Law Section is continuing its commitment to City Year DC. City
Year is a member of the AmeriCorps network and provides critically
needed services to some of D.C.’s most underserved children and youth.
City Year delivers substance abuse and HIV/AIDS prevention education,
provides literacy tutoring and academic support, organizes and
implements leadership development opportunities for middle school
students, and engages children and adults in transformative community
service projects to renovate schools, community centers, and homeless
shelters. We will be assisting City Year on Saturday, April 26, 2008 in their community outreach project, and we need your help. If you can donate a few hours of your time to this effort please contact Kelly Fisher, 202-822-1892.
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3. Community Outreach Co-Coordinator Sought
Anyone interested in helping to plan community outreach events for the Tort Law Section, please contact Kelly Fisher, 202-822-1892.
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Recent D.C. Tort Law Decisions
by Scott Perry and Denis Mitchell
1. Defendant Can Agree to Assign Equitable Indemnification Rights to Plaintiff.
Caglioti v. District Hospital Partners, LP, 2007 D.C. App. LEXIS 560, Case No. 05-CV-1245 (D.C. Aug. 30, 2007). In this case of first impression, the D.C. Court of Appeals held that a settling defendant can agree to assign his equitable indemnification rights to a plaintiff.
Facts: Plaintiff alleged permanent injuries from a wheelchair malfunction, and additional injuries from negligent medical treatment provided after the malfunction. Plaintiff sued the wheelchair manufacturer and healthcare providers in separate actions, then settled with the wheelchair manufacturer. In that settlement agreement the manufacturer assigned to plaintiff its right to pursue the healthcare providers for equitable indemnification. Plaintiff then amended his suit against the healthcare providers by substituting an equitable indemnification claim for the medical negligence claim. The trial court held as a matter of law that the settling parties could not agree to assign the equitable indemnification claim.
Outcome/Reasoning: The Court of Appeals reversed, holding that an equitable indemnification claim is assignable, and that the two essential elements for equitable indemnification – (1) release from liability of the party against whom plaintiff is seeking indemnification, and (2) full satisfaction for the plaintiff’s injuries – were accomplished in the settlement agreement. The Court also rejected the healthcare providers’ argument that such an assignment should not be permitted, recognizing that the D.C.’s strong public policy favoring settlements trumped any other concerns. Moreover, the Court noted that the healthcare providers were in the same situation they would have been in had the wheelchair manufacturer chosen to pursue them for equitable indemnification.
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2. Plaintiff’s Psychiatric History Is Protected Where He Is Not Pursuing Damages For Emotional Distress.
Koch v. Cox, 489 F.3d 384 (D.C. Cir. 2007). D.C. Circuit reversed trial court’s decision that defendant could obtain plaintiff’s psychiatric records.
Facts: Plaintiff sued his employer, the Securities and Exchange Commission, under the Civil Rights Act of 1964, the Americans With Disabilities Act, the Rehabilitation Act, and the Age Discrimination Act. He claimed that the SEC discriminated and retaliated against him, and failed to accommodate his medical conditions. Plaintiff sought, inter alia, compensatory and punitive damages, but did not include a specific claim for emotional distress. At deposition plaintiff admitted suffering from depression and referred to “stress” and “humiliation” as a result of the SEC’s actions. Trial court ruled that because plaintiff had put his mental state in issue, he waived any privilege.
Outcome/Reasoning: On interlocutory appeal, the D.C. Circuit reversed. After reviewing Supreme Court authority and federal authority across the country, the Court held that “a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression, for which he is not seeking recompense; nor may a defendant overcome the privilege by putting the plaintiff’s mental state in issue.”
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3. National Standard of Care: Medical Malpractice Plaintiff Must Elicit Testimony on the Expert’s Basis for His or Her Testimony about National Standard of Care.
Nwaneri v. Sandidge, 2005-CV-001202, 931 A.2d 466 (D.C. App., September 6, 2007). Opinion by Blackburne-Rigsby, joined by Glickman and Schwelb. Trial judge: Weisberg.
Facts: Plaintiff sued surgeon, alleging that negligent performance of surgery on blood vessels in the leg caused significant pain and necessitated future surgeries. At trial, plaintiff called a well-qualified surgeon to opine about proper treatment for plaintiff’s leg condition and defendant’s failure to provide that treatment. Defendant objected that inadequate foundation was laid for such standard-of-care testimony, but the trial court overruled the objection and the jury found for the plaintiff, awarding $300,000. On appeal, defendant argued that plaintiff’s trial counsel “simply assumed the existence of a national standard of care” and failed to provide “a reference point or basis for that standard.” Defense counsel argued that the expert was required, before giving his opinion on the national standard of care, to supply the basis for that opinion.
Outcome/Reasoning: Judgment for plaintiff reversed, with remand for new trial. An expert must provide some basis for how he or she is familiar with the national standard of care. The court provided a list of possible ways to supply that basis. The expert may “link his national standard of care testimony to any certification process, current literature, conference, or discussion with other knowledgeable professionals, any of which would have been legally sufficient to establish a basis for his discussion of the national standard of care.” The court discussed its recent national standard of care opinions in medical malpractice cases, including Hawes (769 A.2d 797), Snyder (890 A.2d 237), and Strickland (899 A.2d 770). Here, the witness was never asked and never answered a question about the basis for his knowledge of the standard of care. The court emphasized that the national standard of care issue is distinct from the witness’ qualifications for testifying. The court remanded the case for a new trial to avoid any possible prejudice to plaintiff resulting from the belief, based on the trial court’s ruling, that plaintiff had adequately established the national standard of care.
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4. National Standard of Care: Once Again, Expert in Medical Malpractice Case Must Provide the Basis for His or Her Testimony Regarding National Standard of Care; Plaintiff’s Failure to so Resulted in Judgment for the Defense.
Hill v. Medlantic Health Care Group, 2005-CV-000776 and 2005-CV-000806, 2007 WL 2859940 (D.C. App., October 4, 2007). Opinion by Blackburne-Rigsby, joined by Reid and Wagner. Trial Judge: Combs-Greene.
Facts: A man with a badly fractured left leg sued his orthopedic surgeon for negligence. Prior to surgery, plaintiff told the surgeon he preferred internal fixation to external fixation and added a handwritten note to his informed consent sheet. After surgery, the plaintiff contracted osteomyelitis and required additional surgeries, and ended up with a deformed leg much shorter than the other one. Trial court granted defendant’s motion for judgment as a matter of law at the close of plaintiff’s case because plaintiff’s expert failed to “provide a basis for his knowledge of the applicable standard of care or a basis for his opinion that defendants breached the national standard of care.” Plaintiff appealed.
Outcome/Reasoning: Judgment for defendant affirmed. The court found plaintiff’s expert testimony was flawed because it (1) was limited to his personal opinion based on his personal experience, which is not alone sufficient to establish the national standard of care, and (2) never referenced the basis for (a) his knowledge of the national standard of care, (b) what that standard of care was, or (c) his opinion that defendant violated that standard. The court explained that the expert must “establish that a particular course of treatment is followed nationally, either through reference to a published standard, discussion of a described course of treatment with practitioners outside the District at seminars or conventions, or through presentation of relevant data.” It is not sufficient to rely on an expert’s background or professional experience, nor to rely on the expert’s “say so” as to the standard of care and the defendant’s deviation. This failure was fatal and required the entry of judgment for the defense. Because plaintiff did not make out a prima facie case of negligence, his claims for negligent infliction of emotional distress, loss of consortium, and abandonment were also dismissed. Plaintiff’s informed consent case was also flawed as a matter of law because the plaintiff had signed and made handwritten modifications to the informed consent form. The form stated: “I have explained to the patient the nature of his condition, the nature of the operation or procedure to be done, the nature and degree of risks and benefits associated with undergoing and abstaining from the operation or procedure, alternatives to the operation or procedure to be performed, and the nature and degree of risks and benefits associated with each of the alternatives.” The record also indicated that plaintiff was aware from a previous surgery of the risks involved with both the internal or external fixation procedures.
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5. Closing Argument: Plaintiff’s Counsel Arguing for Compensatory Damages May Not State or Imply That Jury Should “Send a Message” -- New Trial May be Ordered Even Absent Defendant’s Objection to Such Argument.
Scott v. Crestar Financial Corporation, 1999-CV-000694, 928 A.2d 680 (D.C. App., July 26, 2007). Opinion by Terry, joined by Washington and Ruiz. Trial Judges: Levie (first) and Burgess (second).
Facts: Plaintiff was a Crestar bank teller who had difficulty with her boss and allegedly disclosed information about a fellow employee in violation of the bank’s written policy. Plaintiff was terminated and later sued for employment discrimination and retaliation. Her counsel argued in closing that “Crestar is a big bank” and “really successful in the banking industry.” Plaintiff’s counsel suggested that a big bank is difficult to “get through to” and the jury is “the only one that can get through to them” to show that “this is not the way things are done.” Defense counsel did not object, and plaintiff’s counsel repeated in rebuttal that the verdict should “let Crestar know that they can’t have this kind of stuff, that this stuff has got to stop.” Jury awarded $1 million in compensatory damages, although plaintiff’s lost earnings and medical bills were quite modest. Defendant’s motion for new trial was granted as to liability and damages. Retrial brought defense verdict on liability. Plaintiff appealed trial judge’s decision to grant a new trial.
Outcome/Reasoning: Judgment for defendant affirmed.
(1) Trial judge has “broad latitude” in ruling on motions for new trial. Trial judge serves “as a 13th juror,” and may grant a new trial even where there is substantial evidence to sustain a verdict. The trial court has a duty to set aside a verdict to prevent “a miscarriage of justice.”
(2) Trial court was justified in ordering a new trial based on the excessive damages awarded by the jury. An excessive verdict is one that is “beyond all reason or is so great as to shock the conscience.” Excessiveness refers not only to the amount of the verdict, but also to whether the award of damages appears to have been the product of passion, prejudice, mistake, or consideration of improper factors. In this case, plaintiff earned only $24,000 per year at Crestar and suffered only mild physical symptoms as a result of her termination. As such, the verdict was likely motivated by the improper argument. Although plaintiff’s counsel never used the words “send a message,” trial court ruled that asking jury to “get through” to a “big bank” was improper as it called the jury’s attention to improper considerations. Court of Appeals affirmed the trial court’s ruling on this issue.
(3) The trial court was also justified in ordering a new trial on the issue of liability. While “a trial court should exercise great restraint in setting aside a jury verdict,” the trial judge reasonably believed that the improper closing argument instigated prejudice within the jury against Crestar. The trial judge’s decision that the improper closing argument deprived Crestar of its “substantial right to a fair trial” was not unreasonable nor an abuse of discretion.
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6. Exculpatory Clause/Prospective Waiver Held Enforceable in Injury Claim Against Health Club.
Moore v. Waller, 2005-CV-000695, 930 A.2d 176 (D.C. App., August 2, 2007). Opinion by Fisher, joined by Glickman and Kramer.
Facts: Plaintiff attended a kickboxing class at a local health club, and claimed severe injuries after being asked to hold the punching bag for his instructor. Plaintiff did not allege that the kickboxing instructor’s conduct was intentional or reckless. Before attending the class, he signed a prospective waiver of all claims against the instructor and the facilities, including a waiver of claims arising from negligence. The kickboxing instructor and the health club moved for summary judgment on the grounds that the exculpatory clause signed by the plaintiff was enforceable and precluded recovery for simple negligence. The trial court agreed and dismissed the case.
Outcome/Reasoning: Judgment for defendant affirmed. Under D.C. law, as in Maryland, exculpatory clauses are generally enforceable unless they attempt to limit liability for gross negligence, recklessness, or intentional torts. Such clauses must be “clear and unambiguous.” The language of this exculpatory clause met that standard, plainly stating that all claims of any variety would be waived, including claims for negligence. The form also stated prominently that it “is a waiver and release of liability.” The court observed that this contract (i.e., a health club agreement) was not for essential services and thus could not be a contract of adhesion, and therefore the parties’ disparate bargaining power did not render the prospective release unenforceable. Such a clause may be unenforceable as against public policy in certain transactions affecting the public good or involving essential services.
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7. Statute of Limitations: Failure to Raise SOL Defense Until Mid-Trial Resulted in Waiver of One-Year SOL in Gender Discrimination Case.
George Washington University v. Violand, 2004-CV-001237, 2007 WL 2725967 (D.C. App., September 20, 2007). Opinion by Reid, joined by Kramer and King. Trial judge: Dixon.
Facts: Plaintiff was a fundraiser for G.W.U.’s medical school. She alleged that her pay was approximately one-half that of a male fundraiser doing identical work, and sought damages for sex discrimination, intentional infliction of emotional distress, and violation of D.C.’s Human Rights Act. The case went to trial only on the question of disparate pay under Human Rights Act. At trial, defendant raised the one-year statute of limitations as an affirmative defense. Defendant had pleaded it generally, but had not sought to bar plaintiff’s claim for disparate pay in any pretrial motion, and had omitted the limitations argument from the joint pretrial statement. At trial, defendant argued that each paycheck to plaintiff was a separate event triggering the running of the one-year limitation. Trial court refused to entertain the mid-trial assertion of the statute-of-limitations defense. The case went to the jury, which found for plaintiff and awarded $280,000 for back pay to cover a period more than a year before suit was filed.
Outcome Reasoning: Judgment for plaintiff affirmed. Defendant’s failure to raise the limitations defense until mid-trial was fatal, as it could have been raised (and would have been entertained) in a motion for judgment on the pleadings, motion to dismiss, or motion for summary judgment. Failure to raise the defense until mid-trial clearly prejudiced the plaintiff, who was entitled to rely on the omission of that defense from the pretrial statement.
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