Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C., June 30, 2011) (en banc).
Whitman–Walker Clinic had informed Plaintiff that he was HIV–positive, based upon a false result of an HIV test; the false positive was only discovered years later. Although Plaintiff underwent no further medical treatment for the HIV diagnosis itself, he alleged that the misdiagnosis had caused severe depression, the loss of his job, and other major setbacks in his personal and professional life. He sought damages for emotional distress, but the trial court granted defendants summary judgment under the “zone of physical danger” and “physical impact” rules.
An en banc Court of Appeals reversed, creating a new rule for negligent infliction of emotional distress. While the established rule—requiring that the plaintiff suffer either actual physical harm or be placed in the “zone of danger”— still applied in the majority of cases, recovery for emotional distress in the absence of these elements would still be allowed where defendant “has an obligation to care for the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking,” and where serious emotional distress is “especially likely to be caused by the defendant’s negligence.” The stimulus must also be sufficiently extreme to trigger severe emotional distress in a reasonable person, and the damage must be “acute, enduring, or life–altering.”Potomac Development Corp. v. District of Columbia, 28 A.3d 531 (D.C., September 15, 2011).
The Court of Appeals adopted the “plausibility” standard set forth in the companion Supreme Court cases, Ashcraft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell–Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). D.C. Code § 11-946 requires D.C. courts to apply the Federal Rules of Civil Procedure unless alternate rules are adopted; as such, the court felt constrained to “construe Rule 8(a) of the Superior Court Rules of Civil Procedure consistently with Federal Rule 8(a), as interpreted by the U.S. Supreme Court.”
Burke v. Groover Christie & Merritt, P.C., 26 A.3d 292 (D.C., July 21, 2011).
Plaintiff received a large medical malpractice verdict, which was affirmed on appeal (see 917 A.2d 1110 (D.C. 2007)). Following that affirmance, plaintiff sought an award of post-judgment interest, the amount of which was in dispute. Defendant argued—and the trial court agreed—that the applicable statutory rate was fixed as of the date of judgment and did not vary with the market interest rates; (2) that the “good cause” exception found in D.C. Code § 28–3302(c) was applicable to reduce the amount of interest payable on account of the three–year delay between the judgment and decision on appeal; and, (3) that the trial court lacked authority to award additional interest on the undisputed portion of post–judgment interest that was unpaid between the date the judgment was satisfied after the first appeal and the date that proper amount of post-judgment interest was ordered by the court.
The Court of Appeals reversed, finding first that the interest rate was variable, and “continues to fluctuate with the market during the period between entry of judgment and satisfaction of judgment.” Second, in order for the “good cause” exception to apply, the delay must have been exceptional, and the three years here between judgment and the decision on appeal did not fit that characterization. Third, the Court held that the plaintiff was entitled to the functional equivalent of pre–judgment interest on the portion of the interest award that was not disputed.
Estate of Ronald Kurstin v. Lordan, 25 A.3d 54 (D.C. App., July 21, 2011
In this medical malpractice case, the plaintiff sued both his surgeon and anesthesiologist for allegedly negligent administration of a blood–thinning agent, which caused bleeding on her spinal cord and paralysis. The anesthesiologist settled for $2 million and assigned his contribution claim against the non–settling physician to the plaintiff. Plaintiff then released both defendants, proceeding to trial solely on the contribution claim.
The Court of Appeals held that the anesthesiologist could assign his contribution claim to the plaintiff, and that the language of the settlement agreement expressly preserved the contribution claim. Moreover, the evidence at trial was sufficient to establish that the settling anesthesiologist was a joint tortfeasor, that the surgeon had breached the national standard of care, and that the settlement amount was reasonable.
Payne v. Clark, 25 A.3d 918 (D.C., August 4, 2011).
Plaintiff was an elevator inspector employed by the D.C. Government. After he had cited the defendant for numerous violations, the defendant attested to the government that plaintiff was promoting his private business in the course of his government service. As a result, plaintiff was fired, only to be reinstated later. He sued the defendant for defamation. The trial court dismissed plaintiff’s defamation claim on the basis of the “common interest” privilege.
The Court of Appeals reversed, holding that one of defendant’s company’s internal e–mails (which read “We need to take steps to make sure that [plaintiff] never returns,”) created a factual issue as to actual malice, which was sufficient to overcome the “common interest” privilege.
Howard University v. Wilkins, 22 A.3d 774 (D.C., June 30, 2011)
Plaintiff, a Howard University employee, had previously and unsuccessfully sued her employer for sex discrimination. She later took medical leave; while she was out on leave, she was accused of stealing grant money and terminated. She testified that when she asked for an explanation for the termination, she was told that Howard “didn’t like being sued.” She sued for retaliation and defamation. The trial court dismissed the defamation claim on the basis of the “common interest” privilege; the jury later awarded $1 in compensatory damages and $47,000 in punitive damages on the retaliation claim. Both sides appealed.
The Court of Appeals held that because the alleged defamation had not been published outside the University personnel, and since there was no showing of malice, the “common interest” privilege applied. Moreover, the ratio of $47,000 to $1 was appropriate because nominal punitive damages would defeat the deterrent and punitive purposes of such damages.
Grayson v. AT&T Corp., 15 A.3d 219 (D.C., January 20, 2011) (en banc)
This decision encompassed two consolidated cases. In the first, a former phone company executive alleged that his former employer had violated the DC Consumer Protection Practices Act (CPPA) by failing to alert customers that the unused balances on their phone cards would not be returned to the District of Columbia. In the second, the plaintiff sued, in a representative capacity, an internet service provider for failing to disclose to existing customers that their rates for dial–up service was greater than those paid by new customers.
The Court of Appeals affirmed the dismissal of both cases. Notwithstanding the 2000 amendments to the CPPA (which permitted an action to be brought by “[a]ny person, whether acting for the interest of itself, its members, or the general public .”), a traditional standing requirement continues to exist in D.C. CPPA cases. There was no evidence in the legislative history to the CPPA amendments that the City Council intended to eradicate the standing requirement. Thus, the suit against the internet service provider was properly dismissed because the plaintiff had never been a customer, and thus had no damages of his own. While the former employee of the phone company arguably had standing, the Court held that the failure to disclose what the phone companies would do with the unused portion of those phone cards was not actionable under the CPPA.
Himes v. MedStar–Georgetown University Medical Center, 753 F. Supp. 2d 89 (D.D.C., December 1, 2010)
In a wrongful death claim arising out of medical malpractice, the decedent had apparently provided child care for his grandchildren, and performed various household chores, including yard work, laundry, cooking and grocery shopping. The federal District Court held that decedent’s adult children could claim the market value of such services as part of their damages, and that summary judgment was an inappropriate vehicle for determining whether such damages were duplicative of the widow’s lost services claim. 718
Associates v. Banks, 21 A.3d 977 (D.C. App., June 23, 2011).
Defendant was a tenant in a particular property; at the time she entered into the lease, she was mentally incompetent. The property was later purchased in a tax sale, and the purchaser sought to void the lease. The trial court held that the matter was one of first impression in D.C., that the majority of jurisdictions held that contracts with the mentally incompetent were voidable, not void ab initio, and that the estate of the former owner had never disaffirmed the lease. Plaintiff appealed.
The Court of Appeals noted that an 1892 decision from the Supreme Court of the District of Columbia in General Term held that contracts with a mentally incompetent party are void, not merely voidable. Such decision was binding on the court, and could be overturned only by an en banc panel.Young v. U–Haul Company of D.C., 11 A.3d 247, (D.C., January 6, 2011)
Defendant rented a truck from U–Haul; at the time of the rental, Defendant did not know that his license had been suspended, and U–Haul took no steps to confirm the validity of the driver’s license. Defendant later struck a pedestrian while driving the truck. Plaintiff sued for negligent entrustment and for strict liability under 18 D.C.M.R. §1100.02, which states that “No person shall authorize or knowingly permit a motor vehicle owned by him or her … to be driven by any person who is not … licensed.”
The Court of Appeals affirmed the grant of summary judgment. There was no evidence that the driver’s “appearance or conduct should have alerted U–Haul of any risk of harm to others,” and thus U–Haul had no duty to inquire into the validity of the driver’s license. The court found that it would be an “absurd consequence” to hold that the culpable mental state in the DCMR provision was only applicable to the word “permit” and not “authorize.” The provision was properly read as “knowingly authorize or knowingly permit.” Since U–Haul was not shown to have known of any disability on the part of the renter, it could not be held liable.
Orientation to the Courts—July 2012
Bench/Bar Symposium—September 2012
Developments on Rule 30(b)(6)—Oct 2012 Pretrial
Independent Medical Examinations—Jan 2013
E–discovery for the injury case—Feb 2013