*1 FINKELSTEIN, Esquire, Jay Personal Harry
Representative of the Estate of
Barman, Appellant, v. COLUMBIA, Appellee. OF
DISTRICT
No. 88-648. Appeals.
District of Columbia Court
Argued Sept. En Banc 1990.
Decided June 1991. Shaughnessy, Rich-
Brian W. with whom Sternberg Philip Gagner A. ard S. D.C., brief, Washington, were on the appellant. Counsel, McDonald, Corp.
Susan Asst. S. Cooke, Jr., Corp. with whom Frederick D. filed, and Counsel at the time the brief was Counsel, Reischel, Corp. Deputy Charles L. D.C., brief, Washington, were on the appellee. D.C., Karasik, Washington,
Elizabeth A. curiae on behalf filed a brief as amicus appellant. ROGERS, Judge, Chief
Before STEADMAN, TERRY, FERREN, FARRELL, WAGNER, SCHWELB, BELSON, Associate Judges, Associate Retired,* Judge, and NEWM AN, ** * ** Judge Judge Judge of this Judge Belson was an Associate was an Associate Newman argument. argument. court at changed the time of His status His status time of court at Retired, Judge, to Associate on June Judge changed on March 1991. to Senior *2 assistant, EN BANC three of the in-
ON REHEARING dan’s observed in the 3 en- mates shower area of South FARRELL, Judge: Associate in sexual gaged activity with Barman. A of this the division court reversed trial then left Stroman to check on the female grant of a judge’s judgment notwithstand- in the Re- upper residents cell block. alternative, and, ing verdict the a later, turning twenty fifteen to minutes by new trial. After reconsideration the activity observed that the was still Stroman banc, we court en also conclude the going jail personnel on. None of had the granting judgment in judge erred notwith- intervened. standing verdict, the but we sustain her A second incident in the shower occurred grant ground of a new trial on the area while Barman was on work detail. verdict was excessive.1 sprayed inmates in face Two Barman I. compounds one of the used with chemical prisoners Af- by clean the showers. Finkelstein, Jay personal representa- ter these two incidents Barman returned Harry Barman, tive of estate of cell, inmate, remarking his to a fellow brought suit under the District of Columbia Tyrone Lucky, going tired he was Act, Wrongful Death 16-2701 D.C.Code § to lie down. He cell be- returned to his (1989), seq. et and the District of Columbia p.m. tween 3:00 and 3:30 Act, 12-101 et seq. Survival D.C.Code § (1989),against the District of Columbia for p.m. Joyce At 3:45 Correctional Officer negligence alleged causing the death of con- slumped Webb noticed Barman on the Harry Barman. The evidence at trial was crete floor of his one arm on cell. He had division, by adopt summarized and we his and his head rested on his other bed slight its account with modifications. arm; although the temperature of the cell sixty-five degrees, he was was about charge Barman was arrested a of passed Barman’s cell at 4:05 naked. Webb A simple January assault on 1985. for- again p.m. p.m.; at 4:15 both times ty-three-year-old history male with a of exactly position same as when schizophrenia, he was committed him. Barman’s passed she first saw Webb custody Department of the D.C. Correc- p.m. a fourth time 6:00 Al- cell around pretrial January tions for evaluation. On though during hours she observed that two 10, psychiatrist jail evaluated Bar- at the changed fifteen minutes he had man and ordered him to South the men- position, attempted she at no time to deter- unit of tal health the D.C. Jail. Ser- mine whether he attention. needed 28, 1985, January At about 10:00 a.m. on geant also he had ob- Eiland testified that clean- Barman was of several inmates 3:45 served Barman his cell at despite showers South 3 fact p.m., as well times between 6:05 as two that, because he had refused his medi- unchanged questioning without Barman’s cations, he had not cleared for work been Tyrone Shortly p.m., condition. after 6:00 closely detail. shower areas were that he Lucky reported to Webb Officer guard from a station staffed monitored thought Barman was dead. time guard, a minimum of one at this Cor- Cowan-Dudrow, as- physician’s Trotter. At Gaynel rectional Officer Gloria about a.m., Stroman, Raymond physi- sistant, technician’s responded a medical granting depositions This court of the of Dr. Smia- reporter review the new court for the conjunction Gaynel trial motion since was made in taken lek Cowan-Dudrow judgment notwithstanding diligence with the motion for plaintiffs defendant because lack Stores, Inc., Kessler, Safeway verdict. Hines v. by Judge preparing his case. Order Super.Ct.Civ.R. 3, 1987). See (Oct. at 1 Within the four corners 50(d) (1990). At cannot review its conclusion. this order we time, appealing appropriate trial court shall con- Besides from both of these orders court, merits, appeals hearing providing both appellant trial duct a ordering plaintiff pay opportunity judge’s parties the issue decision to brief depositions Super.Ct.Civ.R. 26 and 37. the costs of the and the fees accordance cell, precisely not state whát Mr. Bar- approached she Barman’s alert. As strong precipitated noticed a odor of vomitus and man’s attack because she type spontane- excrement. Barman was naked and attacks of can occur partly on slumped partly ously agent trigger- on the floor and with no identifiable *3 pool- ing they typically pre- his There was obvious venous them. bunk. But can be fixed, legs, pupils in and his were cipitated by his and can be emotional stress dilated, and hazed over. He had abrasions precipitated by offending agent in some lip as eye over his and on his as well the environment. sup- Certified in advanced life contusions. upon the had Based evidence that Barman surgery, immedi- port and Cowan-Dudrow sprayed in the face been with a substance beyond ately determined that Barman was “deep gloss,” opined Dr. called Smialek resuscitation; he had opinion her been possibly that “this substance could very long dead “a time.” She observed of or the factor been one that led to mouth, that he had vomitus around his gradual symptoms onset of the that were legs, fecal matter and on his vomitus part bronchospasm....” of the attack of The fecal matter around the rectal area. “certainly possible It was also that a sexual him floor area around was streaked with precipitate attack would be sufficient to vomitus, though fecal matter and as he had type episode.” of acute Dr. particular “[dragged]
been to the bed with excre- typical Smialek testified that a asthma at- tion on the floor.” severity eight tack reaches its full testimony at trial was inconsistent. Other and estimated that Barman’s attack hours reported the Stroman testified that he had to three hours. It lasted at least two incident in the shower Correctional Offi- accompanied typically by would have been Trotter, cer who in turn denied that Stro- gasping wheezing, or with the result that reported any During man had incident. his pri- he “was considerable distress deposition Stroman had indicated that the opinion, or to his death.” Dr. Smialek’s Barman,2 sodomizing three inmates were intervention and medical had there been but at trial he testified that his reference to treatment, that Bar- even the severe attack “screwpng] boy inmates to death” reversed.3 man suffered could have been jest, really had and that he had been expert penologist was E. Eu- Plaintiff’s meant that the three inmates and Barman Miller, gene qualifications were not whose engaged in mutual masturbation. dispute. He referred to Standards time, acknowledged, Stroman at the same (Stan- Facilities for Adult Local Detention testify truthfully that he had tried to at his dards) promulgated by the American Cor- deposition Lucky Tyrone and had done so. Association, explaining rectional Trotter Mur- Correctional Officers mandatory but are used Standards are ray testified that Barman never appeared voluntary as the basis for a accreditation cell, nude in his but Officers Webb According program country. around they Eiland stated that did not observe testimony, officers Miller’s correctional anything day unusual about Barman that inmates at least ev- should observe normal they praying because had seen him and, ery thirty minutes if the inmates are prior nude cell on his floor on occasions. disordered, mentally frequently. more Smialek, officers should also maintain
Dr. John
Chief Medical Examin- Custodial
pertinent
Maryland
plaintiff’s
complete
record of
information
er for the State
inmates,
regarding
should
expert,
medical
testified that the cause of
individual
such
bronchospasm
acute
include evidence of abnormal
death was an
attack
behavior
testi-
kneeling
in the cell
Miller
or asthma. Dr. Smialek concluded that
nude.
Ba-
expert,
deposition
“The
District’s medical
Dr. Michael
In his
Stroman had stated:
3. The
den,
analysis
him”;
disagreed
with Dr. Smialek’s
boys
black
had dicks in
"I ...
told
autopsy
was little
that there
data. He stated
residents[,]
[jail]
say yeah.
they
Then
screwed
suggest
was the
that asthma
no evidence to
boy
got
to death when I
back.”
death,
not determine
cause of
but could
evidence.
death from the
exact cause of
among
party.”
reach
in favor
group
activity
fied that
sexual
a verdict
inmates,
not,
voluntary or
would
either
Oxendine v. Merrell Dow Pharmaceuti-
Moreover,
cals,
require
Inc.,
intervention.4
opinion generally
would be violation
Viewing
light,
the evidence
offi-
the national standard
correctional
fairly
have found
Barman re-
unchanged
cers
observe Barman’s
turned to his cell in the
of Janu-
afternoon
position
unusual
from 3:30
and,
ary
within the
half
next two and a
type
attempting
without
some
of interven-
hours, displayed visible
of dis-
symptoms
tion.
required
guards
tress that
to intervene
The
with assistance.
of care
standard
negligence
returned a verdict of
*4
obliged
guards to
the
check on Barman
against
the
of
District
Columbia
frequently
every thirty
more
than
minutes
Wrongful
awarded
under the
Death Act
$1
appropriate.
and to intervene where
Ei-
$30,000
claim and
under the Survival Act
guards
ther
breached
the
the standard
They
claim.
also returned
verdict of
checking on Barman
as
frequently
as
distress,
negligent
of emotional
infliction
they
they ignored
claimed or
his obvious
awarding
Wrongful
the
Death
$1 under
provide
refused to
medical
distress and
$1,000,000
claim and
under
Act
the Surviv-
prevented
that would
his
intervention
have
Damages against
Act claim.
al
the District
$1,030,002.
death. The
could also have noted that
of Columbia thus totaled
despite
of
the excuse
Officers Webb and
judge granted
The trial
the District of
they frequently
Eiland that
saw Barman
judgment
Columbia’s motion
notwith-
position,
nude in
cell in a
no
praying
his
and,
alternative,
standing the
verdict
entry in the record book mentioned that
judge
trial.
found
a new
The
that
prayed
in his cell.
Barman had ever
nude
plaintiff had failed to establish either a
reasonably
The
could
find that
causation,
care or
breach
standard of
failure of the officers to attend to Barman
so the
District could
be found
negligent
in the
cell was
and contributed
In
negligent
death.
Barman’s
the event
his
death.
judgment notwithstanding
the verdict
judge
appeal,
granted
reversed
also evidence
the District
There was
grounds:
new trial on
three
excessive-
to be
negligent
permitting
was
Barman
award, improper
damage
ness of the
admis- out of
cell on work
without hav-
detail
expert testimony,
of
im-
sion
economic
ing
activity,
been cleared for that
as well
proper
of Barman’s
exclusion
medical
engage
him to
in sexual
permitting
records.
activity
other
in the shower
with
inmates
intervening.
evi-
without
And there was
II.
of
dence in the form Stroman’s statements
appellant
deposition,
reinterpreted
We
which he
agree with
but
trial,
jury had
sufficient
did
before it
evidence from
not disavow
the sexual
negligence by
activity sodomy—was involuntary
to find
District of
—
injury
Barman,
ar-
injury.
that caused
caused Barman
District
Columbia
The
grant
judg
gues
we
there
no
and hence
reverse
of a
medical
spray-
notwithstanding the
A
judg
activity
ment
verdict.
either the sexual
proxi-
notwithstanding
proper
ing
cleaning
the verdict
ment
with a
chemical was
per mate
and hence
only in cases “in which no reasonable
cause of the asthma attack
son, viewing
of
inclined to
light
the evidence
most
Barman’s death. We are
agree.5
appellant,
prevailing party,
agree
could
also
favorable
We
Smialek,
allowing
expert,
opinion
appellant’s
5. Dr.
4. Miller
on whether
medical
offered no
opinion
provide
cause of
unable to
about the
position
Barman to be
where he could be
in a
degree
“to
attack
a reasonable
Barman’s asthma
of
sprayed with
was a
a cleaner
deviation
certainty."
Good-
Baltimore v. B.F.
medical
care, stating, "I don’t
reasonable
know if in this
Co.,
rich
1231-32
545
reasonably
prevent-
instance it
could have been
"typically”
Although
the onset of
he stated
ed."
brought
stress
emotional
asthma can
Taylor
the former.
however,
point
is not decisive.
strictness
Co.,
Washington
attack,
Terminal
U.S.App.
asthma
Whatever caused Barman’s
denied,
cert.
Dis-
properly
find that
F.2d
D.C.
negli-
(1969),
trict
committed
distinct
acts
L.Ed.2d 85
U.S.
S.Ct.
gence
allowing Barman to be out of his
Appeals
Court
the United States
—
activity,
engage
group
cell and to
sexual
Circuit stated:
Columbia
will,
possibly against his
and to be chemi-
particularly, Dis-
jurisdiction
In this
cally sprayed;
allowing him to die
given great
judges
trict Court
from the asthma attack without
interven-
weight
They have stat-
verdicts.
in-
compensable
tion —that each resulted in
will not be
ed that a new trial motion
juries.
grant-
trial court thus erred in
grounds of excessive
granted
verdict]
[on
for the
judgment
as a matter
law
unreasonably
the “verdict
is so
unless
District.6
miscarriage
high as to result
or,
justice,”
recently,
most
unless
III.
inordinately large as obvi-
verdict
is “so
result, however,
reach a different
We
ously to exceed the maximum limit of a
judge’s
grant
reviewing the trial
decision to
*5
jury
range
reasonable
within which the
ground
new trial on the
the verdict
a
may properly operate.”
was excessive.7 Our
Id. 113-14,
U.S.App.D.C.
at
409 F.2d at
implicates
review of that decision
both the
(footnotes
omitted).
148-49
and citations
by the trial
substantive
standard followed
decisions,
the conduct
Our own
and hence
judge
ruling
on such motions and the
Court,
Superior
reflect a
judges
of
considering
appellate
standard of
review in
unwillingness
to interfere with the
similar
ruling.
previous
the trial court’s
As our
damages.
of
As we stat-
jury’s calculation
clear,
made
are not
decisions have
two
Crockett,
Louison v.
[T]rial
verdicts,
great weight
granting
today
rule—and we do so
“we will
—that
only
new
are
grant
trial
where there
unusual
trial
reverse
of a new
for exces
quantum
circumstances which convince the trial
sive
where the
verdict
has
judge, who
also heard
evidence damages
found
clearly
witnesses,
and seen the
had
‘the
limit of a
within
maximum
reasonable
”
improperly
by non-ger-
been
influenced
range.’
Taylor,
U.S.App.D.C.
is clearly
mane factors or that its verdict
original);
(emphasis
599
struggled
damage
jury’s de
supplemental oxygen
en
and
award reflected the
off
forty-five
punish
to
for toler
to
for
minutes before
termination
the District
breathe
ating
squalid
at D.C. Jail of
In
of the
conditions
dying from cardiac arrest.
view
it had heard much evidence. The
“his at- which
so
particularly by
shown
authority
therefore
her
court
exercised
oxygen
resort to a
mask
tempts to
useless
“improp
set aside a verdict that had been
period
oxy-
during the 45-minute
after the
factors,”
by nongermane
erly influenced
off,”
gen
trial
was turned
we sustained the
Vassiliades,
595;
492 A.2d at
Smith v.
judge’s refusal
an- award of
disturb
(D.C.
Club,
32,
Ltd.,
A.2d
Executive
$100,000
suffering,
and
but ob-
1983) (“considerations
improper
ele
of
“in
cases
served that
the context of the
justify setting
as ex
ment”
aside verdict
us,
may
this verdict
at
cited to
have been
cessive),
punitive
inasmuch as
spec-
high
permissible
end of the
the
trum_”
may
against
not be awarded
the District of
Lacy,
at 92-98.
Columbia,
Columbia. Smith v. District
judge’s
sustained
find-
of
supra, we
the trial
831,
(D.C.1975). Appellant
336 A.2d
$640,000
ing
of
excessive
that verdict
was
essentially
responses to
makes
three
compensate
psychological
trauma
finding
judge’s
improper motiva
of
by
sexually
a child who
suffered
had been
First,
argues
upon
tion.
that it rests
many
by
assaulted as
as three times
premise
compen
the false
that an
award
janitor
elementary
Although
at her
school.
may
satory damages
properly
serve a
(Belson, J.)
judge
the trial
was sensitive
punitive purpose,
when
deterrent
normally
“the
the fact that
must
See, e.g.,
truth is otherwise.
Carter v.
upon
relied
to arrive
a fair assessment
Columbia,
U.S.App.D.C.
such injuries
n.
93 & n.
795 F.2d
138-39 & 18
distress,
suffering,
anguish
mental
(1986) (compensatory damages are intend
psychological damage,” 408 A.2d at
we
ed,
partly,
least
to serve
deterrent
that,
agreed
him
circum-
under the
function,
plaintiffs may point
this out
stances,
$640,000
the verdict of
“be-
was
jury).
punish
But an intent to
the defen
yond the maximum limit of a reasonable
tolerating
dant for
conditions that have not
range
may
which the jury
properly
within
injury
plaintiff
caused
individual
is
operate.” Id. at 989. See also District of
proper
compensatory dam
not a
basis for
Gandy,
Columbia v.
902-03
Second,
ages.
appellant argues that much
(D.C.1982) (upholding $275,000 award for
testimony
rampant masturba
about
battery
arrest and assault
false
where
tion, nudity,
throwing
excrement
plaintiff
jailed overnight,
racially
adduced
District of Columbia
police,
taunted and beaten
and suffered
cross-examination
to bolster
witnesses
month;
physical injuries
for one
not-
guards
its defense that the
had not been
court will not
reverse absent abuse
inmates,
negligent
supervising
including
though
may
discretion
we
con-
“[e]ven
Barman, in the mental health unit who
compensatory
dam-
sider
verdict
regularly
unpreventably
largely
—and
—en
ages
been,
larger than
to be
it should have
gaged
con
aberrant
We
behavior.
might
that it
reduced
and think
have been
so,
cede that
the District
and that
court”),
vacated,
600
plaintiff
unprincipled notion that
“waived”
provide
it incited in the
the revulsion
—
damages by restricting his
right
to full
compensation
for a
award that
the basis
closing argument
plea
compensation
judge reasonably found incommen-
the trial
jail
in his
Barman endured
pain and suf-
surate with Barman’s actual
misun-
cell in the afternoon.15
dissent
fering.
nothing
analysis,
our
which has
derstands
Finally,
suggested
it
since
inquires
to do with waiver but
instead
much of this
apparently
District
considered
supports
record
whether
important
to its
of sordid behavior
evidence
finding
jury’s
award of
judge’s
defense,
point
little
a new trial would have
damages
proportion
lacked all
conditions will be de-
because
the same
suffering plaintiff
and ar-
established
may
similar-
to the next
scribed
jury.
purports
The dissent
gued to the
per-
it.
are not
ly be inflamed
We
finding
this
defer-
agree that we review
suaded, however,
judge
the trial
erred
only
jury’s
if the
entially
disturb it
concluding
jury, perhaps
that another
“clearly within ‘the maximum
award was
instructions,
by augmented
will ad-
aided
”
range,’ Taylor,
133
of a reasonable
limit
faithfully to the correct
stan-
here more
(em-
U.S.App.D.C. at
mind Learned Hand’s observation: damage for Barman’s claims place “As is true of most takes in a not from his death throes trial, right degree, result is a matter the cell but also from the earlier sodomous depends upon the sense of measure of spraying including assault and chemical — Freundlich, United States judge.” closing argument. references to both (2d Cir.1938). F.2d Accordingly, jury properly considered reasons, foregoing the order For suffer- compensatory damages for notwithstanding granting judgment up merely for 2VÍ hours but granting is reversed and the order verdict hours, hours more than the or over five 7V2 affirmed. new trial court, ruling, allowed. post-trial in its ordered. So Second, holding no in law for there is basis that, is tried a claim for when FERREN, Judge, Associate with whom for a before a with evidence sufficient NEWMAN, Judge, joins, Senior verdict, court deem plaintiff’s concurring part dissenting part: un- waived a claimed element agree majority reversing I with the expressly counsel reaffirms plaintiff’s less verdict, notwithstanding judgment Indeed, argument. this waiver closing it in affirming respectfully but dissent party argument very simply because fails granting a new trial. I would the order required closing to make a is not even reinstate verdict. one, em- argument. An election to make points, cannot serve to phasizing trial order certain majority sustains the new aspect scuttle an of the case not stressed agreement with the trial court’s because “ Finally, announced time. without an ruling ‘key issue at trial was for the sodomous and the waiver of happened what to Mr. Barman between assaults, limiting period of p.m.’ ‘ap- chemical hours of 3:45 —the hours, is no discernible injury to 2V4 there proximately two hours and fifteen minutes its concluding based seen alive reason for from the last time that prejudice. award, passion or part, in distress to the time that his *12 involuntary, ob- voluntary or is sodomy, I. served. from record easily can demonstrate One coun- discussing jury dissent instructions with Appendix in the to this In
references sought compensato- sel, referred to Dr. Smialek’s plaintiff-appellant the trial court suffering enough from testi- certainly ry testimony: “there Deep spraying with Johnson’s from Dr. Smialek mony the chemical in this record least, sodomous (complaint) and from the if the theory Gloss indicate that on (amended complaint). The sodo- it, assault Mr. Barman went jury accepts emphasized again in the mous assault great through a deal order. pretrial and in the pretrial statement gave the The court then before he died.” jury very instructions broad plain- jury, to the opening statement suffering, including: pain and hear jury it counsel told the would tiff’s plaintiff, you then you If find for the “sexually at- that Barman was sum of plaintiff to the a shall award morning, “sprayed in the was also tacked” reasonably fairly and money will which cleaner[,] some sort of an industrial damage suffered compensate for all gloss made probably deep material by the defendant. which was caused Johnson’s,” bronchospasm and died from with which that “could have face” when Physician Assistant tify cleaning detail when Stroman “came on testified that unit about 10:30 gaging in sexual acts with Barman shower over knowledged he had chided him minutes. The lek, tion.) sodomy. After this gene of an Deep matic spray “screwpng] At Maryland, testify that Barman had twice observed spraying that he Chief before the he had testified trial, Gloss Miller, experience acute attack of possibly also can— (Stroman’s Medical Examiner for the state or they were the white plaintiff’s counsel confronted had seen Barman on shower- he plaintiff’s expert with the jail heard one of the spray period then had seen jury, had resident, a sexual Raymond reminder, heard Dr. the can in its been caused deposition truthfully of at least 15 to 20 bronchospasm” that referred to acts of deep boy to death” and morning,” cleaning sodomization, three inmates en- origin “another resident the inmates for attack. E. Eu- Tyrone Lucky, gloss_” Stroman, Stroman defendants, in the trau- John [Barman’s] penologist, testimony, a shower. “had died and that by the deposi- Smia- or tes- ac- ing and sexual counsel did Your plaintiff suffered.... you must make injury and the date of Mr. tween the time tiff did suffer. Finally, in ability, mental inconvenience tion tained. You pain and mental plaintiff. You and/or discomfort of his death. compensation for such [Something If You [*] [******] Harry suffering suffered you mental health and injuries had on the overall award may deformity, and inconvenience any find for the [*] Barman, suffered closing argument, consider bodily injury may consider the effect that should include assault: ignore the may happened or discomfort [*] anguish, You anguish any bodily consider between the the extent and award by the plaintiff on injury [*] wellbeing of the chemical this death.... disfigurement consider deceased any Harry Bar- [*] injury, dis- reasonable plaintiff’s deceased, any pain was sus- physical physical liability, time of spray- plain- dura- [*] time any be- early afternoon morning or appropriate stan- man in the testified that under 28th, he was January when should dard of care correctional officers hours of mental and, at South every thirty minutes incarcerated observe inmates type facil- unit, care maximum inmates, even more health mentally disordered Something hap- Jail. ity in the frequently. Miller added that correctional got gang He either him. pened when incident officers should intervene And, you there voluntarily either would submit raped, sodomized you significant compensation Mr. due involuntarily, believe Stro- is a Mr. if *13 way man one or the other. He was Barman’s estate because this he sprayed deep gloss, with some suffering by suffered Mr. Barman dur- vations ination, who is the chief medical examiner of physical ner, uncontradicted, take care of him. son, testified. He testified in a clear and Baltimore, he was discovered tion for some where between 3 o’clock and 6:05 of asthma It slides underlying from. he went [Emphasis added.] twenty minutes or a half hour at a mini- mum, died and he correctional officers who were there to must have traveled around on the down of an acute happened to the man. al out of his condition. But, not die died, perhaps, depending may trauma, And what is this acute If He must have At times, the causes is an [******] ****** that Mr. you he died which he had reflected in around no matter who And, of the scene physical quickly. in a his will and there came a through onset—an acute onset of this something perhaps that arose and a suffered condition, that Mr. Barman suffered cell, stayed that it bronchospasm. recall, Barman, through clear, died I period suggested unshaken such a evidence. And then he o’clock, Cell a lot of distress. very experienced per- of one or two Dr. Smilac [Emphasis flopped and, importantly, uncontradicted man- on who some other sort of time until 29 at the you this albeit triggered by way But, something he was locked bronchospasm? believe, point kneeling posi- the cell sever- p.m. by you you on, cross around for unreported, [Smialek], his obser- added.] D.C. had died when earlier. believe. things, finally he did exam- based p.m., Jail, He he preventable; that officers should have observed normal that Barman suffered Barman’s possibly, possibly Barman’s mates impaired inmates more tween 3:00 tack or the chemical low man his medications he had not been cleared for period of at least 20 detail; man to detail at a time when cleaning er or not Barman had asked shortly after 6:00 was sodomized in the shower later than 10:30a.m. and spray inmate assaulted Barman with a chemical lieve the able Government That’s the thing anything at Viewing bronchospasm District, something that killed Mr. applicable day, very inmate, If Barman, was sometime his every thirty — the District of Columbia sodomy that because aware of asthmatic no one had detail; jury reasonably least, negligent pain, suffering, and death were in the shower area on death condition to a in the shower area on like Tyrone plaintiff counsel, law. standard of care correctional during early or the anybody struggle that the healthy pre-trial caused and 6:00 impending all the symptoms p.m.; That’s the law. Lucky, finally brought minutes and minutes; spraying; that responded until a fel- Deep (see Barman had refused afternoon while Bar- in all, the late in spraying; reply, guards guard’s continuing frequently; degradation could have found at the light guards Appendix), else, or failed to do Gloss was p.m. Barman— the sexual at- death—died of allowing from the time beginning Barman, according to that another morning help during most favor- conceded: must had failed D.C. Jail. attention mentally detainee, were, did cleaning that be- cleaning wheth- over used; I be- Bar- pay. any- or, in- no during
But,
intervene
Barman’s
impact
on to observe or to
you must assess
death
sodomy,
spraying, and
the extreme distress
chemical
Mr. Barman and
therefore,
District,
had
struggle;
discomfort that was caused
under the
provide
reasonable care
thrashing
period
for a
of time
failed to
around
circumstances;
plaintiff
enti-
sup-
and that
people
these
that cell while
pain and
for Barman’s
taking care of him.
tled to
posed to be
l}k
radical,
begin-
incredibly
insupporta-
I
suffering
period
over a
hours
and believe
ble, proposition especially because coun-
ning with the sexual assault and the chemi-
—
argument
closing
altogether
sel
waive
early as 10:30 the morn-
spraying
cal
being deemed to nonsuit the case.3
without
ing.
implies
record,
majority necessarily
that if
can find no
Given
basis
counsel,
closing,
more
court,
Barman’s
had
majority
trial
and for a
of this
merely
than
mentioned the sodomous as-
court,
say
spraying,
sault and the chemical
period
must be limited to a
of 2%
*14
likely
court
have abused its discre-
would
Barman had
hours once
returned to his cell
granting
in
a new trial. The fact that
tion
plaintiff
in the afternoon —unless
can be
emphasize
counsel chose instead to
Bar-
found to have waived the claim for an
cannot,
struggle surely
man’s death
with-
pain
element of
attributable to
concession,
to a
explicit
out a more
amount
suffering
spraying
and
from the chemical
partial
pain
and
waiver of
and the sexual assault.
I turn now to that
suffering from the two earlier assaults.
issue.
majority
authority
cites no
for that
The
II.
proposition, and I can find none.
majority
dispute
The
does not
that the
majority’s only
approach
The
for its
basis
complaint/amended
complaint
alleged
analogy
Judge
is an
that does not work.
chemical and sexual attacks and that the
case,
cites a criminal
United
Farrell
supports findings
they
oc-
Park,
658,
421 U.S.
674-75 & n.
States v.
curred.
at
Nor
See ante
592-593.
does
95 S.Ct.
1912-13 & n.
majority dispute
plaintiff
(1975),
could
Supreme
L.Ed.2d
in which the
compensated
pain
have been
for Barman’s
against
sustained a conviction
an ar-
Court
suffering
from the sexual assault and
gument
jury
that one of the
instructions
fact,
if,
spraying
the chemical
in
those
agreed
was erroneous. The Court
damage
claimed elements of
were still be-
parts”
jury
“isolated
instruction
jury
fore the
read,
when it retired to deliberate.1
erroneously,
intimating
could be
“as
Although
ante Part II.
See
court
finding
guilt
predicated
could
granted the District’s motion for a directed
solely
respondent’s corporate position.”
complaint aiding
verdict on count V of the
at
aware” of sel, opening near the end of his summation prosecutor’s evidentiary summation jury, “there is a emphasized to the jury. to the 421 U.S. S.Ct. significant Mr. Barman’s therefore, compensation due Court, concluded that estate because of arguably instruction was erroneous during Barman his death suffered Mr. charge to by reference to the entire saved struggle at Jail.” But this matter the D.C. trial, and jury, to the evidence at emphasis properly be seen as a cannot argument prosecutor’s closing that focused waiver, did especially because counsel refer which the attention details morning two assaults earlier clos- erroneously itself did disputed instruction argument. require to consider. Second, plaintiff’s was careful in counsel thing say, Supreme It is one argument closing inflame the Park, Court did that a criminal convic- by indicting the District of Columbia cor- by showing jury, tion can be saved system find rectional as a whole. *15 help closing argument, with the of must government counsel that objection by no case, ground- of theory relied on a have plaintiff’s rhetoric was inflamma- counsel’s evidence, ed in the which the court’s in- Conceivablyplaintiff’s counsel down- tory. adequately not have may structions cover- sodomy Deep inci- played the Gloss quite thing say is to ed. It a different objection; per- an or dents to avoid such plaintiff’s jury, simply by listening to simply the evidence haps counsel believed closing argument aspects in which certain it- spoke powerfully of these assaults no highlighted of case but claim reemphasize he to Bar- self and wished waived, expressly should nonetheless suffering in quieter substantial man’s but ignore been led to evidence which the is, however, The point his cell. instructions, and the complaint, court’s plaintiffs closing argu- forcing a counsel in permitted to consid- trial every highlight else ment to waive— —or saying to er. Park comes nowhere close damages, majority of takes a element plaintiff’s a implicitly that counsel waives argument to the step compelling toward simply a case claim civil may jury that become excessive. Better reference, during omitting downplaying or counsel, court, this decide how the closing argument, to certain trial evidence. argued to the evidence should be event, implied theory waiver plaintiff’s interest. First, in makes no sense for three reasons: Finally, procedure the rules of civil make closing argument jury plaintiff’s to the relatively easy should be clear that claims counsel did refer to the sexual and chemi- to dismiss. For ex- to assert difficult specifically pointed cal assaults. He out opposing party if an moves to dis- ample, Barman 12(b)(6) Super.Ct.Civ.R. for fail- miss under raped, got gang sodomized either either claim, given is plaintiff state a ure to you voluntarily involuntarily, if or be- amend the man- opportunity an under way or the lieve Mr. Stroman other. 8(f) Super.Ct.Civ.R. pleadings of date gloss, deep or sprayed He was with some liberally to do substan- should be construed other may have suffered some sort of Wright A. 5 C. & Miller, justice. tial See trauma, something perhaps arose 1215 § and Procedure Federal Practice of condition.... died of an out [He] 15(b) (1990). Super.Ct.Civ.R. Similarly, bronchospasm an acute acute ... onset permits pleadings of the after amendment condition, underlying albeit unre- of this evidence if the judgment to conform the ported, of asthma that Mr. Barman suf- implied by express or con- tried issue was And, triggered from. that it was fered Moore, parties. v. sent See Moore I suggested you causes by one 762, (D.C.1978). It is true 391 A.2d 768 earlier. 12(b)(6) that, a Rule once claim survives designed pro- motions Accordingly, perception of or other this court’s motion is, involuntary judgment or closing say dismissal argument duce waiver based on
607
defendant,
requires
scrutiny
dis-
than a decision de
the action
later be
closer
(or
nying
granting
a new trial
a new trial
voluntarily
Super.Ct.Civ.R.
under
missed
error).
legal
Rich
41(a).
based
See
v. District
requires
stipulation
But
Columbia,
528,
(D.C.
535-36
unequivocal statement that dis-
parties
—an
1979)(citing Taylor Washington
Wright
Termi
missal is intended.
9 C.
& A.
See
Co.,
110, 113,
U.S.App.D.C.
133
409
nal
(1971).
requirement,
2363
This
§
Miller
148, cert.
145,
denied,
835,
F.2d
U.S.
course,
or
is directed at an entire count
(1969),
spraying” Ante at 600 n. 15. jority relies on deference to the trial court’s suffering.” man’s result while Thus, every agrees substituting altogether court new member of the heard, closing, the at least principle of its own to carve down the com- argument sexual and chemical some on the period damages of to 2% hours: putable argu- to substantial assaults addition during imputed waiver trial counsel cell. on Barman’s death throes in his ment closing argument. 15; supra See ante at 600 at 603. For n. I (although I understand would how reason I do not understand alone from) holding in majority a dissent plaintiff’s majority the can conclude manner, straightforward a matter of as counsel, argument, the closing withdrew fiat, $1,000,000 large is simply too morning assaults consideration. suffering and of the kind recovery for event, is majority analysis period. endured over a hour Barman 7V2 The majority reason. flawed another majority unwilling But is to be that law, hold, not a matter of does instead, defer to the Purporting, direct. to are court, majority trial sustains result period sodomy of awardable court’s view agreeing with the trial Rather, spraying. majority chemical by announcing a new but deference, concludes, as a matter never rule of trial court law sustain the trial court’s limitation of will consider). (nor was asked to considered 2'A Bar- to the last hours of such believe this mischievous. Cf. presents question: life. man’s That Bethel, Columbia limit why did trial court $1,000,000 (D.C.1990) (in judg sustaining happened Mr. Barman between “what prisoner injured upon ment a verdict p.m.”? the hours 6:05 Lorton, outside declined “to venture court because, Answer: it did so the court’s facts the trial record consider record, of the trial view contentions presented trial never period compensable pain and possible added). judge”) (emphasis post-trial ruling suffering.5 Nowhere its plaintiff’s did the trial court refer coun- APPENDIX failure mention sexual sel’s closing argument. chemical incidents Court Documents however, colleagues majority, My Complaint— Complaint; Amended evidentiary repudiate trial court’s original complaint, filed Janu- to “the Plaintiff’s premise. purporting While defer vantage point,” ante 17, 1986, ary charged that the District judge’s unique wilfully negligently left toxic they correctly reject judge’s view Columbia grant in the shower reversing cleaning of a fluid unsecured the record area, ingested force- court, or was n.o.v. that Barman judgment Unlike fluid, that “after poisonous finds evidence in this fed the majority properly *19 agony, many justifying compensation pain and hours record [Barman] [Original kneeling prayer.” as- died suffering for the sexual chemical while supra at 605 n. allege See ante at not 595; Complaint Plaintiff did at 6.] saults. until not known resting sodomy, was Rather than on deference to because 1. reasoning underlying pur- deposition, taken after Stroman’s court’s trial p.m. p.m. period granted judgment and 6:05 notwith- between The trial court had 5. therefore, court, standing proof apparently failure on assumed the the verdict for proximate $1,000,000 damage cause. For standard of care and have limited its must purposes tive, granting new trial the alterna- period as fallacious as- well—a award to that necessarily had to as- the trial court ruling sumption light majority's of the possible liability damages sume/find been awarda- liability would have lia- this record. The trial court concluded that period hour but for coun- ble entire for the 1'A bility pain and closing argument. sel’s all, justified, hour if for the at 2Va residents who are attacked other poses of of Columbia 1986. [Tr. 164-165] another, related case brief at Plaintiff then 6] on November [see filed an identified You will also [*] [*] of the D.C. Jail. find evidence that was sfs [*] [Tr. 17] [*] he [*] of an industrial some sort sprayed with record, complaint, not in the amended deep gloss material probably cleaner alleges parties agree forceful which should by Johnson’s made sodomy. people who available have been ter found unconscious tory death. leged that Barman was sodomized negligence, and extreme emotional [R. 50] 2. Pretrial Statement— In the [R. 49] pretrial Plaintiff $1.5 statement, plaintiff al- million on the claimed from day compensa- distress. assault, and la- of his ization, bronchospasm] could have in the gloss because had sprayed And it will be [*] lung ingested some of that. traumatic or him. tissue that show [*] in the there will be indications [Tr. 17] experience [*] shown to spraying [*] with that this man had its you [*] [Tr. 20-21] sodom- origin sic deep [the plaintiff contends saulted and $900,000. [R. 122] 118] The court’s 3. Pretrial Order— As settlement, plaintiff provided inadequate pretrial Barman order recites was sexually demanded care. [R. as- tress, tress both intentional is called the fliction. And Sic subjected to severe emotional And that is that stc final is to infliction of emotional two s(s say the counts are [*] Harry Barman negligent assault, [*] for what [*] dis- dis- in- inflicted dying and this was spraying, the depending on how intentionally either Brief— 4. Trial negligently, you read the evidence ... brief, plaintiff alleged In that Bar- a trial duty breaching a say their that is to man had assaulted and sodomized been of care. [Tr. 24] in full of correctional three inmates view officers Brief at and that decedent [Trial 5] at Trial Evidence gang rape and had died of trauma after the Spraying Incident— being force-fed John- poisoning Stroman, a Physician Raymond Assistant Deep Gloss. Claimed dam- son’s [Id. 8] defendant, “I on the unit testified: came ages suffering. included [Id. 9] morning. As most ... in the about 10:30 sticky say very I’m about of the officers Memorandum— 5. Post-trial fellow I the white is out and observed who Memorandum of Points and Plaintiff’s in the shower. dudes down and three black Opposition to Motion for Authorities the hell is the the officer what asked Trial, argued that plaintiff-appellant New said, He doing there? boy down white ... “[v]iewing light most the evidence me. I bullsh- Excuse he is on detail. s[aid] January he plaintiff, favorable re- hasn’t cleared and been because sodomized, Deep sprayed then 155; fused treatment [medication].” [Tr. jail Gloss, agony extreme and suffered Tr. see 156] becoming smeared with his own rapidly cell her Inci- Joyce read from Webb Officer during struggle.” excrement [R. 185] Tyr- Report that after 6 resident dent *20 by Coun- Opening Statement Plaintiffs “had Lucky stated that Barman sel cleanser some stainless steel snuffed Resident the unit. is used to clean with on that will hear evidence [Y]ou Harry Bar- resident Lucky also stated that early morning was hours while [Barman] not feel him that he did sexually told man ... incarcerated South he was on mission Accreditation for Corrections. [Tr. 303-304] good.” then testi- Officer Webb [Tr. 105] offi- Mr. Miller testified that correctional regularly locked fied that cleaner was ir- cers should observe normal inmates closet, utility given in a was to residents intervals, regular minute more detail, thirty cleaning for not and would frequent mentally for dis- observations he have been available to Barman unless inmates. These officers turbed cleaning duty. was on 304] [Tr. [/&] prepare keep shift re- complete should According Lucky, “In the to resident inci- ports emergency of all or unusual cleaning there shower was two dudes dents, including kneeling in nude for a cell shower, just resident seen another 309, 310, 2V2 If a over hours. 315] [Tr. spray spray the can in his face. can— a sodomiza- correctional officer observes shower, got he he came And so out of voluntary involuntary or she tion— —he upstairs me he felt and was told tired for immediately should intervene or call going lay to his room and down.” [Tr. 110] safety back-up if the appropriate officer’s jeopardized would be intervention. [Tr. 2. Sexual Encounter— Miller, According to there Mr. 318-319] beginning Stroman testified that at 10:30 of a of rea- would be violation standard “dry he had three fuck- a.m. observed men care an officer to intervene sonable rubbing up against” ... Barman verbally calling to an inmate “who is not period shower over a of at least 15 to 20 moving on a concrete in the nude cold floor minutes. counsel Plaintiffs [Tr. 155-58] doesn’t move for several hours” who [Tr. claiming deposition, read from Stroman’s and when an observable amount of 341] surprise testify, when did not Stroman matter on cell floor. fecal is visible deposition, he had on had Barman Miller noted the facts in Mr. 360] [Tr. forcefully. been sodomized 164-165] [Tr. question this case whether the raise acknowledged then had told Stroman he were, fact, making correctional officers they “on the unit” had inmates required. their rounds as 364] [Tr. boy “screwed white death.” [Tr. acknowledged, referring He also 165] Pain, Suffering, 4.Causes “superiors,” his that he a conversation with Death— activity had characterized the as “screw- Smialek, Dr. John Chief Medical Examin- ing.” He had added that he [Tr. 166] Maryland, er for the State of testified truthfully deposition. at his testified [Tr. opinion had arrived at an to a reasonable 185-186] Mr. “had certainty medical Barman bronchospasm.” died of an acute attack 3. Standard of Care— gene Plaintiff’s Miller, whose expert career included penologist was E. twenty- Eu- [Tr. 550] sft [*] [*] [*] [*] [*] Barman years prison operations supervi- “Mr. two Dr. Smialek also testified: sion, manage- process that was authorship jail of a book on had from been ment, sudden, minutes but familiarity say with the D.C. Jail not within for a working Department going been something for the D.C. of Cor- that had least or three years, period and active member- of hours two rections five becoming Associa- ship in American Correctional hours.” [Tr. 555] “[He] tion, (board increasingly point Jail Association distressed American having member), shortage of breath was Sheriff’s Associa- National [e]ffeet being During testimony system his reflected him tion. his 292-298] [R. nausea, vomiting, diar- having the severe mentally on the of care dis- standard inmates, administra- abled Mr. Miller referred to the rhea.” [Tr. 556-557] “[T]he oxygen in all local detention facilities tion of and adrenalin would standards adult American likelihood have been sufficient to reverse promulgated by the Correctional particular episode prevent Com- cooperation Association in with the *21 may tained. consider the effect that You death.” been by that a sexual attack would be sufficient part type ment_ gradual stance But emotional stress this no acute episode. 559] was state Dr. And It is some precipitate [*] identifiable they type precipitated Smialek: one of of attack. emotional stress can precisely [Tr. [Deep certainly, as I the attack of my onset of the offending typically * can occur It is 558] conclusion or the factor that Gloss] what Mr. Barman’s attack my opinion [Tr. 564] agent * and can be Furthermore, according It is by can be agent in symptoms bronchospasm. particular spontaneously because attacks mentioned before * certainly possible triggering precipitated by possibly that this sub- trigger the environ- precipitated [*] led could that were type of to the them. * this [Tr. you Mr. fered ty, and Mr. pecuniary loss suffered injury and the date of his should include reasonable inconvenience or any suffered. pain plaintiff tiff did plaintiff. anguish, disfigurement and/or deformi- sustained in this case. and mental health and such If [*] any bodily Harry Barman, you must make an loss injuries inconvenience injury to the suffer. suffered, find for the deceased between mental You [*] [Tr. Barman, earnings had on the overall as a result of the suffered may 1020] injury, [*] You anguish discomfort consider between award plaintiff and discomfort suf- time of his may you [*] disability, wellbeing of the by the death, compensation may Your consider any physical [*] deceased, deceased, consider plaintiff liability, physical and the injuries time of mental award death. plain- [*] time pain any Discussion and Counsel said: suffering. As The Binker case ... there has a lot of latitude on pain was And, Jury pain. suffering, what is Instructions by Court Well, indicates that the more, both referring there court As to instructed: fair consideration of [Tr. 1004] out [Tr. You prejudice, [******] prejudice 1024] should determine . fear or speculation, the favor, solely all the the facts evidence. court with- weigh[] You must and consider the certainly enough testimony in this record regard sympathy, preju- case without from Dr. Smilac to indicate [Smialek] passion, against par- either dice or for or least, theory on his if the ty to the action. accepts it, 1006] [Tr. that Mr. Barman went through before great he died. deal of [Tr. 984-85.] and suffer- You are not to award [******] plaintiff is, compensa- speculative damages; that Jury Instructions future loss present tion for or which damages, As the court instructed: guess- or although is remote possible If you plaintiff, you your find for the then are to base verdict not work. You plaintiff shall guesswork speculation, award to the a sum of or but money fairly reasonably by prepon- will upon which evidence which shows compensate damage, proba- for all the suffered is a reasonable derance that there bility which caused the defendant. of future losses. [Tr. 1019] [Tr. ****** 1018-19] [*] [*] [*] [*] [*] [*] [Y]ou must not award that beneficiary, Barman, father, any sum Mr. You consider the extent and dura- sorrow, grief that he any bodily injury tion sus- mental distress
Baltimore, per- very experienced and a son, in a clear and testified. He testified of the suffered reason may have uncontradicted, by cross exam- unshaken deceased, son, Harry his Mr. death of the clear, ination, uncontradicted man- in a Barman. 1022] [Tr. Barman, ner, through his obser- that Mr. and, importantly, vations of the scene Closing Argument Jury on, had died he had reflected slides which plaintiffs counsel closing argument, bronchospasm. of an acute said: bronchospasm? And what is this acute happened Harry Bar- [S]omething of this is an onset—an acute onset It morning early or afternoon man condition, unreported, underlying albeit 28th, he January when hours Barman suffered of asthma that Mr. the mental incarcerated at South And, triggered by that it from. unit, type facil- health the maximum care suggested you earlier. causes Something hap- ity the District Jail. 1034] [Tr. raped, got gang pened to him. He either tarily, way or sodomized happened to the man. out or he He was trauma, something perhaps that arose of his condition. if you sprayed with some have either other. believe suffered some other sort voluntarily Mr. Stroman one But, something or deep gloss, involun- that cell while posed to be thrashing and discomfort Mr. Barman and the extreme But, [******] you must assess the around for a taking care of him. that was caused these people period were impact on of time distress by his sup- And, you that there I would submit to o’clock, he was locked At around Mr. compensation due significant is a Jail, cell, 29 at the D.C. down his Cell pain and of this Barman’s estate because p.m., between 3 o’clock and where by Mr. Barman dur- suffering suffered through a lot of distress. He he went struggle the D.C. Jail. death at the cell sever- must have traveled around 1045] times, [Tr. he point there came a when al things, died, one or two and he died of argu- lawyer, closing government The depending you be- perhaps, who[m] ment, said: But, way died in such a that he lieve. he any- did If the District of Columbia quickly. did not die all, failed to do thing anything — flopped around for He must have Barman, the killed Mr. something that hour a mini- twenty minutes or a half else, pay. District, must anybody like believe, mum, you no matter who based That’s the law. That’s the law. [Tr. And then he physical evidence. 1051] kneeling stayed posi- in this died and he tion for some period of time until finally [******] p.m. by the at 6:05 he was discovered you Well, up you. If believe it’s who were there to correctional officers wrong to something did the District him. take care of 1026-27] [Tr. Barman, Bar- you if that Mr. believe Mr. ****** forty- his cell for man thrashed around is, they they had—had importance died, if five minutes to an hour before intervened, doing what they had been offi- you that these correctional believe during time supposed to do they Mr. Bar- letting negligent cers were they dying, Mr. Barman was die, find for you then should man intervened. [Tr. 1033] them a award plaintiff, you should * * * * * * adequately money that would sum of Mr. Barman. the loss of compensate for recall, [Smialek], Dr. Smilac you If will [Tr. 1055] examiner of chief medical who *23 procedures WAGNER, concurring governed by established Judge, well Associate jury’s cons narrow the issues for the part dissenting part: in which in by raised ideration.1 Unless the issues by in result the I concur reached pleadings been withdrawn affirming the order of the trial majority through or eliminated such mecha parties trial; however, new I cannot court for a nisms, plaintiff is entitled to have all doing I in all of its reasons for so. join recovery theories of and all elements of portion from that of the decision dissent jury. considered McDan made holds that the summation Cusimano, 303, (D.C. 148 A.2d 305 iel v. by appellant’s provides support counsel Moore, 1959); Railroad v. Metropolitan agree I with contrary, its decision. On the 568, 1334, 1339, 558, 30 121 7 S.Ct. U.S. dissenting opinion Judge Ferren that of end, (1887). the court L.Ed. 1022 To that rejecting jury’s such a rationale for the case instructs the on the law of improper legally unsupport- verdict is parties. v. and the theories of the Reese However, my dissenting col- able. unlike 899, (D.C.1950). Wells, 73 A.2d 902 Unless leagues, sup- firm conclude that there is presumed contrary appears, jurors are port sustaining record for and understand the instructions follow grant of a trial on all claims court’s new States, of the court. v. United German except the claim for intentional infliction of (D.C.1987); 596, Burkley 525 A.2d 609 Wrongful emotional distress under States, (D.C. 881 United Act, (1989). As Death D.C.Code 16-2701 § 1977). an instruction to do other Absent claim, contrary positions to that wise, regard it is assumed that the will colleagues, my all of I conclude that the damages as all evidence and elements of grant judgment trial court’s notwith- consideration, proper for rather than standing the verdict should be affirmed. Sutton, 190 A.2d contrary. Hayes v. reasons, compelled For these I am to state (D.C.1963). Thus, where one item of separately my the reasons for dissent from improper in evidence is damages submitted portions majority opinion my {e.g., proof where is insuf consideration joining majority’s rationale for af- causal connection be ficient to establish a firmance of the order for a new trial on all negligent tween the act and except concluding one claim claimed), instruct the it is error not so judgment notwithstanding the verdict principles against dictate jury. Id. These negli- should affirmed on the claim for any assumption that the overlooked an gent infliction of emotional distress under damages simply because omit element Wrongful Death Act. closing argument, emphasized ted or not Harmatz v. which is not evidence. See I. Corporation, 265 A.2d Zenith Radio My primary disagreement the ma- (D.C.1970).2 jority opinion upon is its reliance the clos- Although power ing argument appellant’s counsel in di- the court has measuring at the conclusion of coun- vining focus dam- direct a verdict statement, finding opening have cautioned ages testing the trial court’s sel’s we sparing- against power the elements of that the must be exercised of excessive verdict Stores, Inc., ly. Safeway 354 A.2d pinpointed. thus This method Cook v. reasons, view, For obvious analysis, my is inconsistent with never held that omissions from principles which determine the issues we have basic closing argument elements of a jury. The civil trial is of essential to be resolved Co., See, 12(b)(6) (failure May Department Stores e.g., Super.Ct.Civ.R. see also Gabrou v. (D.C. 1983) (directed granted) upon verdict which relief can be state claim juror 56(d) can summary judg- which no reasonable (partial for issues on Super.Ct.Civ.R. 16(c)(1) (e)(2) non-moving party). ment); (pre- Super.Ct.Civ.R. find for & simplification procedure or elimination Jury pretrial Civil Instructions or- 2. See also Standardized claims or defenses and of frivolous Columbia, (1985). modification); District of No. 2-5 for the controls action absent der which making composite its disregarded others in for the conclu may constitute a basis claim pursued. award. longer is no sion that the claim closing argument the focus of
While II. view of insight attorney’s into the provide case, to which provides no clue as determining the trial court whether jury found injuries damages the several concluding its discretion abused *24 Al rendering general verdict. proven limit of a the maximum verdict was outside expe though reasonably infer we can range, inquiry must be fo- reasonable improper influence evidentiary rience adverse firm cused on whether there is way no we have arguments upon jury, court’s support in the record for the trial argu fathoming finding. Johnson, supra, the absence 518 Weinberg whether v. jury’s in the support in ment on an issue resulted A.2d at 994. There is such firm claims, give it considera it or to the record of certain failure to decide this case. On however, argument multiple liability of an were Even the fairness theories tion. determined, except presented, permissible in extreme some and some im- cannot be claims, cases, As to such a new trial viewing light permissible. it in of the without proceedings. granted can be for reason alone. Dis- and other trial Hai White, 159, 108, 442 A.2d Co., trict Columbia v. 86 A.2d 109 gler Logan v. Motor (D.C.1982). (D.C.1952). too, im 165 except where some So injected may which infect proper element is sepa- and returned jury considered decision, elements of dam independent claims for rate verdicts judged ages comprising its verdict must be negligence negli- damages based on and the with reference to the evidence Ap- of emotional distress. gent infliction court’s instructions. pursued of the causes of ac- pellant each Act, Wrongful Death tion under both A new trial for excessive verdict will be (1989) seq. et and the D.C.Code 16-2701 damages § amount of reversed when the Act, seq. 12-101 et Survival D.C.Code § jury clearly exceeds the by awarded (1989). reviewing grant In the trial court’s range limit of a reasonable with maximum verdict, notwithstanding judgment of a jury operate. in which the Vassi supports and the-evidence which each claim Bros., 492 Garfinckel’s, Brooks liades v. separately to deter- it must be examined (D.C.1985) 580, v. (quoting Taylor A.2d 594 whether, viewing mine the evidence Co., U.S.App. 133 Washington Terminal appellant, no rea- light most favorable to 145, 149, 110, 114, 409 F.2d cert. de D.C. reached a verdict juror sonable could have 93, nied, 835, 24 90 S.Ct. L.Ed.2d 396 U.S. particular cause appellant’s favor on the (1969)). determining whether 85 returned. See which a verdict was met, must examine the ex standard is we Merrell Dow Pharmaceuti- v. Oxendine damages proved by tent and nature 1100, Inc., cals, A.2d 1103 506 Johnson, Weinberg v. the evidence. See (D.C.1986); Taylor v. complicated 518 A.2d 994 review is somewhat Our This evaluation can Washington, supra. more than appellant fact that advanced closing accomplished by reference to of the four theory liability not be for each foregoing rea argument. For all of the for which a verdict was causes of action rendered, sons, agree majority interrogatories were I cannot and written special find- argument of counsel can be to the closing not submitted utilized, theory or theories ings trial court or this court on which by the special Similarly, review, appellee con found liable.3 ascertain that the injuries findings not made on which damages and were certain elements of sidered issues, subsidiary); 49(b); multiple see also Allen Flynn Staples, Super.Ct.Civ.R. v. 34 See (1909) (special App.D.C. Corp., issues 97 151 Vt. v. Uni-First 961, negli- (1989) to determine which interrogatories submitted to the (special encour- 963 verdict); gent form basis for Nesmith acts multiple, overlapping of liabil- aged theories Cir.1963) (5th Alford, n. F.2d ity). urged complicated interrogatories (special Bass, (citing su- proxi- supra, were found have been 772-73). negligent pra, acts 646 S.W.2d at mately by appellant’s caused Nevertheless, it can be de- or omissions. negligent An action for infliction of emo- certain termined from the record that theo- personal injured tional distress negligence not established ries of cognizable party. While under the Surviv- evidence did not the evidence and that the Statute,4 preserves for the estate al injury re- show that or extensive rights of action a decedent would have had negligent or omissions sulted from all acts lived,5 if it is doubtful that such an proved. which were Wrongful under the action is ever viable Appellant proof failed to offer Death Act. Wrongful A. Death Act Claims certainty degree of medical a reasonable award of Appellant is not entitled to an proximate that emotional distress was Death Act on Wrongful under the Psychiat- cause of decedent’s death. See *25 emo- any theory negligent infliction of for Allen, 509 Washington ric Institute v. of Wrongful Death tional distress. Under the 619, (D.C.1986). A.2d there is 624 Where Act, liability wrongful upon act which proof no that decedent’s death was caused premised before is must result death by infliction of emotional distress or mental recovery may 16-2701 be had. D.C.Code § disturbance, no lie action will under (1989). any proof The of record is devoid Wrongful There- Death Act for the tort. that emotional distress caused decedent’s fore, granting court did not err death. judgment notwithstanding the verdict on Wrongful under the Death Act Claims wrongful negli- death claim based compensate are intended to decedent’s gent Ap- of distress. infliction emotional relatives for losses sustained them close pellee judgment is entitled to notwithstand- where decedent’s death results against it on this adverse verdict wrongful of Psy act another. Semler v. Oxendine, supra, 506 A.2d at claim. See D.C., Washington, chiatric Institute of 1103; Gandy, 450 Columbia v. of 41, 43-44, 922, U.S.App.D.C. 188 F.2d 575 896, (D.C.1982). A.2d 900 (1978); Runyon 924-25 v. District Co of support of Appellant offered evidence lumbia, 228, 230, U.S.App.D.C. 150 463 negli- possible theories of only one of the 1319, (1972). Damages F.2d 1321 in such thereby gence in death war- which resulted actions are measured from date of dece Wrongful recovery ranting under Binker, 857, dent’s death. Doe v. 492 A.2d view, liability negli- my Act. for Death (D.C.1985). negligent 864 The tort of in premised only can gence causing death plain fliction of emotional distress allows a of the correctional officers upon the failure distress, tiff to recover for emotional men condition from Mr. Barman’s to observe consequences tal or its disturbance where p.m.6 provide him p.m. until 6:05 and to negligently caused conduct which the necessary to save medical treatment tortfeasor knew or should have realized liability, ap- theory to this his life. As causing involved an unreasonable risk of applicable standard established the pellant such harm. Hosp. Asuncion v. Columbia care, stan- appellee’s deviation from that Women, 1187, (D.C. 514 A.2d 1188-89 for ap- relationship between and a causal dard 1986); Nooney Company, Bass v. 646 negligence and Barman’s death. pellee’s 765, (Mo.1983) (en banc). S.W.2d 772-73 Hosp. Washington v. Washington See rule, actionable, Under the modern to be Center, 177, 181 579 the emotional distress must be serious and “ remaining negligence, foreseeable, i.e., claims of ‘medically diagnosable’ The resulted a sex- Asuncion, appellant contends ‘medically significant’.” which death occurred evidence showed that 6.The § D.C.Code 16-2701. discovery of the to two hours before from one body. Therefore, appellee’s omis- Semler, U.S.App.D.C. supra, 5. See 188 575 p.m. and considered between 3:05 sions must be F.2d at 925. about 5:05 618 exposure upon theory jury actually
ual
on Mr. Barman and his
mine
which
attack
chemical,
verdict; therefore,
White,
to a
were not shown to be the
its
under
based
Therefore, any
death.
cause of decedent’s
new
is warranted.7 Id.
negligent acts or omissions which resulted
B.
Act Claims
Survival
provide
earlier incidents
no basis
these
recovery
Wrongful
for
Under the
Death
major portion
jury reserved
As the ma-
Act. See D.C.Code 16-2701.
§
damage
appellant’s
its
for
awards
claims
out, appellant’s
jority points
expert failed
negligence
negligent
for
infliction of
opinion
upon
to offer an
based
a reasonable
emotional
under the
distress
Survival Act:
certainty
degree medical
that decedent’s $30,000
$1,000,000
negligence
death,
likely
not, proximately
more
than
negligent infliction of emotional distress.
from a “sexual
or chemi-
resulted
attack”
Act,
rights
Under
of action
Testimony
upon
cal exposure.
based
decedent
if he had
would have had
lived are
possibility
relationship
of a causal
mere
Semler,
preserved.
supra,
U.S.App.
negligent
injury
act
between
Recovery
D.C.
A.2d at 165. Since earlier acts of of man, (D.C.1984)(inju- 477 A.2d 715-16 negligence (prior provide to the failure to ry or a direct or damage must be result of medical care between and time reasonably consequence negli- of death, probable death) not cause these theories did gent recovery); act to allow or omission improper of considera- recovery were Morrissette, Boiseau v. conjunction with the theo- tion in one viable (D.C.1951). case, every theory not Although In this ry recovery. verdict proved, every theory negligence properly on the three could be based one of fully support total negligence, we deter- advanced would not theories of cannot Nevertheless, ages. a review of each claim as- Appellant in his brief he does not states demonstrating wrongful propriety of sists in a new trial on the death claims seek remaining only ruling claims. awarded dam- court’s on the for which the nominal Therefore, duty link the breach of damages claimed. it is neces- causal between injury. Free injuries Columbia v. sary separate to consider (D.C.1984). man, 477 A.2d Gener proven negli- damages traceable to a act recovery injuries nature is ally, of this evaluating ruling gence in the trial court’s nature, upon showing of the inten based Again, that the verdict was excessive. we See, injuries. sity and duration of such hampered, totally are but not restricted Sons, v. Sam Bevard e.g., Garner S. & review, by special ver- our the absence (D.C.1975). injuries A.2d findings dict for each claim. damages flowing from each elements of exposure and chemical 1. Assault in this case must viewed negligent act negligent or omis- Appellee’s only acts they triggered separately because result- proximately sions which could event.8 by the same negli- its ed in the “sexual assault” were Appellant failed to establish that Mr. gence allowing decedent in an area forcibly assaulted or suffered Barman was exposed inmates where he could be to other anguish pain, mental distress emotional prevent failure to intercede con- its appellee’s negligent omission as a result of activity tinuation of the sexual observed opportunity provided the for the sex- employee. Similarly, expo- its the chemical by Raymond recounted ual activities Stro- only appellee’s sure can be traced failure man, witness to the event who keep danger. decedent from area of testified at trial. The witness described recover, plaintiff prove In order to must graphically Mr. Barman’s reaction to the the causal connection between the tort- detailed acts of mutual masturbation negligence feasor’s injuries and all Assuming pleasure, pain. one of Dowling, claimed. Manes v. 375 sufficiency deposition testimony Stroman to establish that sodomous acts pecuniary It was not shown that losses in- between decedent and other occurred *27 any resulted from either incident. Since mates,9 testimony provides no clue injuries traceable to two events did not involuntary the acts were nor that death, result in future income losses cannot experienced pain, suffering, decedent men- predicated on these claims. Additional- anguish tal or distress. No matter how ly, appellant’s damages pain, suffering, for acts, disdainfully may view such absent anguish by mental and the like endured Mr. these acts non-consen- evidence that Barman as a result of the “sexual assault” injury, sual or otherwise resulted we exposure, and chemical cannot be amassed impute cannot that revulsion to decedent part as any suffering act, of he endured as a speculate involuntary sex nor result of the asthma attack which went injury, anguish occurred. On untreated. claim, No nexus was shown appellant between failed to sustain this inju- these events and establishing decedent’s death for the the fact of the burden of act) (i.e., previously Liability ry reasons stated. for a non-consensual sex traceable negligence.10 appellee’s will not attach a direct to absent (D.C.1976) (en banc) Although mandatory, special 8. use 711-12 n. 11 United States the of Borelli, (2d Cir.1964). interrogatories guides only F.2d in such cases not the However, jury, post-verdict unequivocal prior affirmance of the but also assists with review. here, 49(b). Super.Ct.Civ.R. by questionable See statement the witness is given acknowledged having tried to tell that he premised 9. This conclusion is on a statement in elaborated, deposition and ex- the truth at impeach deposition which was used to the having plained and denied at trial seen the sodo- testimony. witness’ The was instructed deposition. act mentioned in the mous prior inconsistent statements could be used person credibility establishing recognize that sexual contact with to evaluate and not for 10.I consenting any incapable to be who is is deemed the truth of fact contained in the statement. However, involuntary. appellant recognize failed to es- that where a witness affirms the I statement, prior nature of mental illness truth of a inconsistent tablish that incapa- only impeachment pur- by Barman rendered him be considered not suffered Mr. consenting Presumably, not poses, in the ble to such acts. but also substantive evidence States, incapa- everyone illness is Watts v. United who suffers mental case. See extent, Here, duration of the ob- portion deposition the nature and servable, consequences. reported limited the event. read at trial does elucidate deposition in the The statement Stroman provide to Negligent failure say I was that he "... told residents assistance medical yeah. they boy screwed the to death Then got excerpt This from the when back.” appel- to Any substantial which deposition provide cannot necessarily lant is entitled resulted in the obvi- consequences literal described liability, remaining theory appellee’s death) (i.e., hyperbole ous decedent’s negligent to monitor Mr. Barman failure Indeed, flowed acts. from the sodomous him medical provide his cell and to what does not even recount statement have his life. assistance which would saved only report- The witness witness saw. Therefore, I agree with conclusions In ac- ed what he remarked others. majority trial court that the and the knowledging that he made an effort significant period measuring decedent’s wit- testify truthfully deposition, at the resulting negligence from this acknowledged he did ness at best time from the he entered his cell at about inmates. fact make the statement to other (which until 3:05 his death occurred Moreover, light on the statement sheds no p.m.). At least as the claim about about dece- what the witness observed negligent infliction of dis- emotional Act, There- dent’s reactions to incident.11 under tress the Survival award fore, trial testi- period, major- we are left with Stroman’s damages for this brief as the mony concludes, acts saw were vol- proportion that whatever ity was out re- untary. To conclude otherwise would crit- suffering proven during impermissible speculation. quire Accordingly, I period. ical concur affirming majority result reached suf- There no evidence decedent granting new trial the order because expo- fered a result of chemical injury as verdict was excessive. proven sure. incident was not The separate negligence death nor claims proximately caused decedent’s negligent infliction of emotional distress injury did it result in observable on the recovery for the Act were based independent to base an under Survival Moreover, liability. I no need to any damages recoverable same theories of find tort. court subjected separately whether the trial solely because the victim was address *28 re- concluding the verdict would not so substan- erred this offensive act be negligence under rendered in this turned on the claim justify tial as verdict incident, issues indi- excessive. The case. Mr. Barman the Survival Act was After feel are related. Where cated that he was tired and did not for both claims distinct, a re- separate only speculate about issues are well. We can Weinberg fatigue and Even on all issues is warranted. cause of his illness.12 trial Johnson, 993; Lacy A.2d supra, 518 assuming causal connection between v. Columbia, 408 feel- A.2d exposure and decedent’s v. District chemical Therefore, (D.C.1979). a new trial is re- illness, ing fatigue no more than given quired. modest would be warranted Therefore, Moreover, ap- functioning probative value. in all and lacked
ble of pellant areas. proceeded theory purpose forcible sod- allowed for should not been Hackes, omy 396, Hackes v. trial. See Apparently, impeachment. the trial other than ("Parties (D.C.1982) assert one purpose. court allowed it theory appeal.”) at trial and another on suf- are where 12. There circumstances expert required in this 11. Cause of death case physical fering may from fact of inferred Considering testimony. that cause of death expert testimony. injury the aid of without case, evi- into a central issue in admission Miller, v. Jones "lay expressed opinion” dence of Stroman's injury physical Here there was no obvious through about the he made to others comments exposure. highly prejudicial the chemical cause of death was decedent’s III.
Conclusions
For the reasons stated Part II. A. of that, separate opinion, I conclude view light most favorable appellant, juror no reasonable could have appellant negli
found for claim for
gent infliction of emotional distress under Therefore, Wrongful Death Act. grant
would affirm the trial court’s order
ing judgment notwithstanding the verdict that claim.13
as to See Oxendine v. Mer Pharmaceuticals, Inc., supra,
rell Dow negligence
under the Death Act
new because several theories of liabili ones,
ty, including impermissible were sub jury,
mitted to the theory and the on which ultimately
the verdict was based cannot be
determined.
See
Columbia
White, supra,
reason, grant I would a new trial on the Therefore,
claim. I concur in the result majority affirming
reached
order for a new trial on the claim. I also
join majority affirming
court’s order for a new trial of the claims
under the Survival Act for the reasons
stated herein.
DISTRICT OF COLUMBIA Maury, Appellants,
Alfred *29 THOMPSON, Appellee.
Patricia Joan 86-1051,
Nos. 86-1681. Appeals.
District of Columbia Court of
Argued Dec. 1990.
Decided June 1990) (a grounds of the trial court must 13. The affirmance would be based correct decision wrong rea be son). even if reached for the different from those relied on the trial court. affirmed O.L., (D.C. See In re 1232 n. 6