*1
631
(1984);
2501,
Wоmack,”
L.Ed.2d 377
104 S.Ct.
81
handcuff
does not establish
590,
Illinois, 422 U.S.
95 S.Ct.
use of hand-
v.
particular factual basis for the
Brown
(1975);
2254,
York v.
Terry
L.Ed.2d 416
New
in
case.
believe that
45
cuffs
this
18-20, 110
standard,
Harris,
at
495
at
S.Ct.
requiring
government
supra,
state
U.S.
1643-44; Wong
use of
particular
necessitating
facts
hand-
Sun v. United
cuffs,
407,
As
471,
met in this case.
Justice
Amendment that we balance
investigative police means used provided by
against protections the Constitu- police
tion to an individual do not whom probable cause to arrest. HUMMER, Appellant, Ann Judith v.
III. LEVIN, D.M.D., Martin D. sum, majority opin- I dissent from the reasons. this
ion several Because investi- gative place “stop” took in Womack’s home Levin, Cohen, Goodman & Drs. underlying several after the hours crime Siegel, P.A., Appellees. completed, scope been seizure circumscribed, carefully should have been No. 93-CV-721. entry if initial even into the home was Appeals. of Columbia Court of District government ease consensual. this demonstrating failed to meet its burden of Argued Oct. 1994. necessary, that the level intrusiveness Decided March justifying it did not state facts because the use of handcuffs. illegally
A finding that Womack was seized view, not, my In
does demand reversal.
stead, this case should have been remanded sought to finding
for a whether the evidence suppressed illegality. “fruit” Crews, 463, 100 United 445 U.S.
See
States
(consider
(1980)
1244,
S.Ct. illegality). as a identification fruit show-up sought suppress
Womack victim, clothing
identification and foot scene, and statements
wear seized evening.
made to an later that Much officer might spite be admissible government could illegality, inevitably dis
prove it would have been
covered, or if it were free of taint of Williams,
illegality. See Nix v. U.S. *2 reinstated, original verdict
seeks dis- hold the trial court abused its We ordering a new trial reverse cretion original for reinstatement of the and remand verdict.
I. 9, 1987, Ms. Hummer went On November endodontist, Levin, a root to Dr. an to have VA, Buscemi, Arlington, Leonard P. for performed. procedure the is canal Since appellant. the quite painful, Dr. Levin anesthetized area a by using technique a called with lidocaine Kastantin, DC, Washington, Matthew J. mandibular block.1 When the effect appellees. for off, worn Ms. Hummer discov- lidocaine had jaw injured tongue and were ered that her WAGNER, Judge, Before and Chief severely. injection, As a result of the Ms. KING, GALLAGHER, Judge, and Associatе Hummer, years who was old Judge. Senior damage to her sustained extensive nerve WAGNER, Judge: tongue tongue Chief which her mouth caused improperly per- muscle to function and which This case a of arises out of claim dental manently speech.2 Ms. impaired her Hum- malpractice appellant, filed Ann Judith University to now mer attends Gallaudet Hummer, Levin, appellees, against Drs. Co- Sign Language. American She com- learn P.A., hen, Siegel, professional Goodman & a through writing, municates note electronic inju- corporation, damages resulting for devices, interpreters. She drools un- during procedure performed ries sustained a swallowing, controllably difficulty and has by Dr. Martin D. in the course of his Levin tasting, chewing sipping. She cannot employment corporation. the case perform hygiene, undergo or simple dental jury. was tried twice a The first trial general general full dental care without anes- resulted a for Hummer in verdict the severe, hospital. in a has chronic thesia She $4,000,000. However, of amount the trial pain, her facial face and mouth which distorts granted appellees’ court motion new trial frequent episodes of expressions. She has ground ruling excluding on the that its cer- severe, stabbing pain tongue brought in her proffered by preju- tain by swallowing, coughing, laughing. or on trial, rights. their diced the second the Dr. jury returned a verdict for Hummer in the Hummer testified that when Levin Ms. $3,290,000, $710,000 block, performed rapidly of amount less than the mandibular judgment long into the tissue on appeal, the in the first trial. On the needle inserted jaw joint, right the of her challenges Ms. Hummer order the the inner side which setting pain cоurt her intense that she invol- aside the first verdict and caused such trial, untarily upright posi- into an judgment granting lunged a new and she forward According 2. Ms. Hummer sus- injuries many to as as four cranial nerves: tained taste; 7th, (1) which serves the function nerve, (2) hypoglossal, or 12th cranial which (3) tongue; the movement of the controls nerve, lingual which involved with nerve Schiff, According Dr. Basil (4) gives tongue; which sensation to needle, a a mandibular block is executed with nerve, glossopharyngeal, or cranial which 9th syringe caipule containing attached a in the back of the controls muscle coordination partic- slowly anesthetic which is inserted into a tongue posteria-third taste area. When the needle reached the ular has tongue. depth, slowly deposited desired the anesthetic by pushing syringe into the tissue down on handle. Hummer, tion. According Dr. Levin mer had reacted to the as she de- pushed chair, using into scribed, back he would have remembered be- holding syringe. hand that She said cause it been so unusual. immediately that Dr. plunged sy- Levin Dr. Levin testified that he had no recollec- ringe injected handle down and first car- room, anyone tion of whether else was pule jaw. of lidocaine into her While the usually present an but that assistant is dur- implanted mouth, needle was still in her ac- procedure, although such one is not Hummer, cording to Ms. Dr. Levin removed required present. to be Levin Dr. testified spent carpule, inserted a into him, assisting they that when assistants are syringe, injection. and administered another must watch because him the in- hand According experts, to Ms. Hummer’s it was struments. He denied that assistant gave manner in which Dr. Levin *4 during procedure would her back turn the to injection malpractice. which constituted calls, prepare trays, phone take or make Specifically, experts the testified that Dr. patient’s the only entries on chart. He said (1) Levin the breached standard of care pres- one of three have been assistants would injecting rapidly the needle too risk at the ent, Gabri, Prabhjot Strong, or Renee Mar- (2) causing injury, failing traumatic to with- garet Mothersole.4 draw the when needle Ms. Hummer reacted to burning the shock and the sensation on Appellees sought to call all three assistants (3) tongue,3 her changing carpule and the (1) testify provide to to first with still patient’s the needle in inserted the evidence,” ie., “negative that who- evidence experts neg- tissue. The testified that these рresent injection ever was the time the ligent proximate acts or omissions were the enough would have been close to Dr. Levin injuries cause of the which Ms. Hummer and Hummer Ms. to have heard or seen the sustained. incident, alleged but did not hear or see it (2)
Ms. testified Hummer that a dental assis- and “habit the evidence”—that present injec- tant was before during and the general injec- were familiar with Dr. Levin’s tion. specifically She that remembered practices. (Judge tion The trial court Salz- dental assistant was on her that man) left and objection Ms. sustained Hummer’s to injection, after she reacted to the Dr. Levin testimony concerning Ms. Gabri’s how Dr. was on right. her She also that remembered injections generally Levin administered or after injection, she to the reacted the assis- permitted testify habit.5 The court Gabri to Levin, passed carpule tant second to Dr. response lengthy, ques- to a hypothetical right in front of her. Dr. that Levin testified “negative tion on knowledge” the inci- administering he had no recollection of question posed dent. The as was follows: injection However, to Ms. Hummer. he tes- By MR. KASTANTIN: “L2,” tified that his records have the notation Q: you you’re I want to assume which indicates that he two car- administered assisting during the room Dr. Levin pules of lidocaine. He testified that he never injection of a mandibular course block to injection would an patient’s continue over a Ms. Hummer. protests pain. He further stated that he you change I to carpule never would a want assume that Dr. with the needle injection, still in Levin is about to start patient’s contrary, mouth. Ms. On the always stop he raisеs him syringe stated that he extracts her arms to inserting carpule gives proceeds story prior before a to about a new relate a injection only problem second after the first has taken she had a week with Dr. before effect. Dr. Levin testified that if Hum- Savoia. apparently thought only slight
3.Dr. Paladino testified that Dr. Levin 4. Dr. Levin that there was nerve, possibility present that Ms. impaled lingual Mothersole be- touched or which he performing assisting” was not cause she "dental happen stated can because the nerve cannot point. at that However, seen. he testified that Dr. Levin’s re- sponse patient's to the reaction breached ruling propriety 5. The of the court's on habit standard of care. appeal. not raised as an issue on That one did you during I sion and havе an accident. want to assume driving negli- person injection, not see another course of the Dr. Levin adminis- gently] past, not evidence quickly, rapidly ters objec- one do it in this case and didn’t straight jumps that Ms. Hummer or sits tion is well taken. up pain. in her chair in you I to that Dr. Levin want assume that whenever she Strong had testified block, does not withdraw the needle but instead Dr. Levin a mandibular assisted with her back down into the throughout forces chair and that her she would remain injection. placing finishes capsule included the anesthetic duties Dr. syringe passing into the it to Levin. you did not want to assume However, Strong there also testified from her remove needle mouth when Dr. Levin loaded the were occasions tissue, you with needle still want Although syringe himself. she recalled Ms. you him a assume then handed recall, patient, Hummer as a she could earpule of anesthetic which he then Dr. Hum- whether she assisted Levin when syringe changed still needle Appellees proffered mer treated. patient’s proceeded mouth. He then Strong respond been allowed perform a root canal. hypothetical question, given she you an Would remember such event *5 i.e., Gabri, as that she same occurred? incident, if recalled no such and she had been Objection, MR. Your BUSCEMI: Honor. occurred, present actually and the had event Yes, I WITNESS: would. Appellees have it. she would remembered it, permit THE COURT: I I will will allow proffered Margaret also that Mothersole say it. question, If that’s the I will way. responded in the would have same she an if it would remember such event granted appellees’ The court trial motion occurred. a that it new trial because concluded you MR. KASTANTIN: Do recall excluding proffered erred testimo- such event? ny of have the dentist’s assistants who would WITNESS: No. provided negative Appellant Hum- evidence. Appellees sought to elicit similar argues mer the trial court erred Strong by asking virtually from Renee her on granting a new trial the basis of hypothetical question.6 the same The court initial legal claimed error because its eviden- objection stating Ms. Hummer’s sustained tiary ruling excluding the cor- evidence was grounds: its rect. negligence. [T]he issue one To here is II. analogy, driving use simply an it’s one is normally, a car one have acci- doesn’t an This court’s review may negligent granting a trial is limited dent. One be one oeca- court’s order new question Strong point posed you 6. to at to Ms. was аs fol- I want assume the Plain- up straight chair lows: tiff then sits pushes with- Dr. Levin her back down without you you Q: want to assume that are mouth, drawing the from her finishes needle operatoiy with Dr. dental assistant room injection. give Levin tiff, time he about to the Plain- you you assume that then hand want to Hummer, injec- a Ms. mandibular block face, earpule him across the front of her a tion. earpule nee- takes the and with the doctor you just he I want to assume that before mouth, proceeds syringe dle still in her injections, puts up her starts earpule, put change, take the old out stop, then hands and tells the doctor to injec- complete then new one back in and an where she has some relates him incident tion. lingual from trauma nerve Dr. Savoia you its I want to further assume when a week about before. over, proceeds performs a root you he then relat- I want to assume that after that is ed, proceeds with the canal. Dr. Levin then occurred, fast, you injects rapid, If events such as the needle in a harsh them? fashion. remembered ruling whether the amounted to creating an abuse whereby a condition giving of discretion. Oxendine v. Merrell Dow a verdict was rendered difficult or Pharms., Inc., (D.C.1989) 563 A.2d impossible. (citations omitted) (Oxendine II). Where instance, court, Id. In that the trial the court denies the motion and sustains the trial, granting may jury new “deliver[ ] the jury’s verdict, scope of review is a narrow possibly from a arising erroneous verdict Pharms., one. Oxendine v. Merrell Dow circumstances over which the has Inc., (D.C.1986) (Oxen- 506 A.2d control[,]” no and the court has broad discre- I). dine scrutiny required Greater where tion in determining grant whether to a new court, the trial in granting a motion for new trial in order to do so. Id. That is not the trial, jury’s sets aside a Lyons verdict. v. situation in this case where the trial court Barrazotto, (D.C.1995); 667 A.2d no committed error of evidentiary law the I, 1111; Oxendine 506 A.2d at Bell West ruling at the first trial which would result A,2d inghouse Comp., Elec. 327 n. 2 Therefore, an judgment. erroneous (D.C.1984). Bell, we observed court’s exercise of upon discretion was based
that different
apply
considerations
in our
premise
a false
which resulted in an abuse of
granting
review of the
of a new trial
II,
than
discretion. See
supra,
Oxendine
563 A.2d
where such a motion has been
denied.
see also Johnson v. United
scope
While the
of our review is still
(D.C.1979).
limit-
398 A.2d
principle
ed,
greater
here,
we
duty
have a
where the
appellate
that the
court should be more in-
trial court has to a certain extent substitut-
clined to affirm an order of a new trial based
judgment
ed its
for that
jury.
upon legal error,
than when based
weighing
referenced in the
637 witness, of perception of and conditions A.2d 931 Rogers v. 534 United LeCointe, evident that witness (D.C.1987). witnesses tes- becomes In two situated, testimony is negative they not so they present but tified that were damag- meaningless.” make the the defendant did hear complaining witness ing statements Prods., (quot- 260 at 806-07 S.E.2d Leisure trial court she heard. The testified that Sons, Inc. v. & Southern KB. Johnson jury that the evidence of instructed Co., S.E. Ry. 214 N.C. in law could not considered two witnesses be Wigmore (Chad- § (1938); ON Evidenoe contradicting complaining witness’ as Rev.1979)). party who seeks bourn no testimony. appeal, the court found On rely “must show upon negative witnesses, as to material error one pertaining to non-observ- circumstances Ransdell, interest in the had no becаuse ance, activities the witness’ and the conversation the defendant between acuity attention, or sensitivi- [h]is focus of his no to it: had complainant, paid attention involved, his ty geographi- to the occurrence However, it. as to the no recollection of faculties, location, of his cal the condition witness, accompanied who had short, and mental attrib- physical those all at re- complainant to see defendant or bearing upon alertness attentive- utes his else, nothing quest and focused time.” Dalton’s Estate v. Grand ness at the charge was erroneous. court held that Co., Ry. 350 Mich. Trunk Western ruling admissibility explaining its on the (1957); 145, 149 see also Leisure N.W.2d negative the court stated Kubica, Prods., at 260 S.E.2d Loftin position in a one [T]he (Fla.1953). Here, the foun- So.2d occurred, thing if hear or had see inadequate that the to establish dation was circumstances, all might, under who requisite opportunity or had the reason, degree the same impressions accurate vantage point to obtain event, it in is not so heard or seen at the critical moment. strong satisfactory as that one who so trial, sought to During first says hear it. that he did it or see Such employees, office testimony from three elicit however, negative testimony competent, Mothersole, Gabri, Strong and altogether without and cannot be said room, to which none of had a fact been positive weight tending to contradict attest, if the as de- them events could fact; least, the court is testimony to the occurred, each scribed Ms. *7 justified jury. in charging not so incident. Gabri remembered the would have LеCointe, App.D.C. at 21. provide testimony over permitted to was as Negative evidence “is admissible objection. Strong stated Hummer’s When only negative some inference evidence and knowledge of the event that had no she showing testifying upon a that witness so present dur- say was could not whether she see, in a or position was to hear or would not trial court did procedure, Prods., seen.” Inc. v. have heard or Leisure testify Appellees further. permit to her Clifton, N.C.App. 260 S.E.2d Strong to proffered been allowed that LeCointe, (1979); App.D.C. at supra, 7 see provided same respond, would have she Co., Likewise, see Fish v. Southern also they prof- testimony as Gabri. Pacific 917, 922 Or. 143 P.2d Given they asked Mothersole would have fered that in such courts inherent infirmities no recol- Mothersole had questiоn. the same incident, it to view Hummer or lection of Ms. testify presence to her not as mandatory to and she could absolutely for the witness or, that she would present, if been posi- she had that he or she was demonstrate proce- see, position in a to observe have been meaning or that the wit- tion hear However, had testified Dr. Levin ordinary dure. that in ness was “so situated being present possibility of Mothersole have heard or course events would performing If, was slight was because she it seen fact had occurred. time. dental assistant services surrounding circumstances examining the proffered present.7 Ms. Although The trial court excluded this tes- was Hummer’s testi- timony impression under it mony the mistaken assistant showed that an was was habit evidence. Hummer contends that during procedure posi- room and was properly the trial court excluded the testimo- tioned on time that her left at the the second ny any event because did not carpule passed, was there are critical omis- provide proper foundation for its admission placement concerning sions the assistant’s words, negative appel- other evidence. and, importantly, more her focus before the affirmatively lees failed to demonstrate carpule passed was at the time when Ms. and the attention of the witness was directed to injection Hummer first reacted to the testify. fact she about which pushed Dr. Levin her back the chair. Not only proffered were the Appellees although unable contend none of they presence, attest to their also un- being were pres- the dental assistants could recall provide concerning injected ent at Dr. able to the time that Levin Ms. lidocaine, surrounding presence, circumstances their with Hummer estab- including lished that one of their attention to the own them focus of 7. The but the whole front tense and then at uprighted two or me ward and his hand my ber me, into — mouth and one there pinch back went out had a in the chair at a—at a wide working until it was other hand and he A: I like we were awful assistant burning. feel ond—I talking, open my happened Q: BY and in a ing tongue Like an it was And Dr. Levin was on I don't My And He was And mouth, using MR. BUSCEMI: exactly. on end. And the Tell us what he was in following excerpts *8 heat, one hand and [and] remember that jammed it into pain body grip my preparing burning. immediately s¡s my and it was four seconds he was are electric behind me split was on mouth and I think he sаid something like both hands know, using and the chair was still leaned from the And it was and came that I’ve were still hot—-I could attention went completed. forth in front of me—he went—he starting pertinent. came forward. m going my standing and both zap, outside my things face—on your just mouth. He had one in and the [*] injected ever felt. of I remember in a beginning he had the needle where my jaw very sensation, left. He leaned me and somehow—he sort of an electrical shock. And hands. He was when the two of us it was in and I could where it was back in once or pain maybe like an give my my body begin like—it was like stand- recollection is of that. there was some noise of—he was point my body just [*] — immediately my my jaw, you needle were still in my right it and he thrust it angle It now or his assistant was electrical storm. then he moved feel hot attention to him just jerked I don't remem- Ms. Hummer’s it was were. [*] this hard. was the most and had it was for way up something you'll split touching touching injection [*] and his liquid, to so in- twice. back, what were back will, sec- for- feel my me two words. thought thing A: He pain?” to move it. So I think A: Yes. And then there and took the new the old more a little bit of a while the needle was had on her hand with attention was on pates. head was that and then my moving beration, wasn’t numb. ond felt like over, there. assistant across me. capsule. BYMR. BUSCEMI: hands and the needle funny Q: Q: and the needle. er. was And he And I didn’t feel And just His hand was still in He And then it all started sort of And he started to mouth and I felt a chair and his hand What did he Did he He finished the temporary. bone on sort of just then, pain goggles That’s what I pushed oh, like cap said, And I was where passing moved a little Like a said, he took his this time a little happened went back in okay. say anything maybe, you he off of the at that little—like moves said, and I quickly, your me back and I quickly gravity say? capsule of him my Then "My tongue.” elbow, pain at feeling still point, little tongue tugging. to “Where quote, something time, push me back with quote, hand out of while very quickly little bit—a litde needle my bit or capsule injected you itself and then it dissi- in the chair the chair. it’s over now and sort of starts know, and the needle were my tongue to only capsule slower than mouth and he feeling. how and I could anesthesia. And I it was like it in shock last week.” So I and you "That’s the same something. —so which was still Like tissue. flowing togeth- if so, with a that I didn’t at that time? you were still in in it come I I could see my maybe my changed and then I A little of it became feels, only one, was hit and was—it to take before. see his cap mouth it was rever- want your took said sеc- was —-a my his
639 Generally, “if particular appears or their events alertness to the Estate, personal knowledge of the has no supra, situation. See Dalton’s 87 witness questions do not disclose 149; Prods., posed facts and the supra, at Leisure 260 N.W.2d them, no reliable [or she] he could have testimony at 806-07. of Ms. S.E.2d subject incompetent to opinion on the and is Hummer, upon rely which to fill testify Elec. Harvey’s thereon.” Inc. v. A.C. proffered gaps witnesses’ recollec- accord, Co., (D.C.1965); 661 207 A2d presence degree tions about their of (D.C. Bergan, 452 O’Neil v. A2d 344 attention, nothing of discloses about the focus 1982). Similarly, negative its evidence has as the assistant’s attention at the critical mo- admissibility for foundation relevance experienced ment when Ms. Hummer in position was to hear or that the witness injury pain. regard, and the events which contends did not see the he proffered is evidence more like witness LeCointe, supra, App.D.C. occur. See 7 at found Ransdell LeCointe where the court Prods., supra, Leisure S.E.2d charge error in to no material the court’s negative seeks to offer evi Where witness jury negative that Ransdell’s could evidence dence, does not she was but know whether testimony to not serve contradict the of present at the time or was in a whether she present. Although who was Rans- witness events, all position disputed to observe occurring, paid dell saw the conversation testimony not about those events does no attention to it and had no recollection nega requirements the foundational for meet LeCointe, supra, App.D.C. about it. at 20. has tive еvidence and no relevance for refut testimony present. one who was Thus, there is while evidence that an assis- LeCointe, Here, App.D.C. at 21. See tant the doctor carpule handed after essentially appellees seek to have all of injection, first there is no evidence about requirements “This foundational assumed. assistant’s where the attention was focused testimony and ... amounts no evidence Moreover, did so.8 before she there was negative point not even evidence on nothing in Ms. Hummer’s to indi- question. Disclaimers of recollection cate that she cried out or even how far she knowledge unsatisfactory unaccepta are up before Dr. sat Levin forced her back rel. ble substitutes evidence.” State ex into the chair. proffered down witness Chevrolet, and to Use Williams v. Feld speculate and the would have to “ (Mo.1966). Inc., ‘The S.W.2d sufficiently Hummer’s reaction loud ought rights persons things not and demonstrative that the assis- whatever rest, permit and the law will not them moment, might doing tant have been depend, upon of a uncertain anyone present would have heard it or seen [see],’ says he not when he witness who did negative proffered it. The claimed Prods., position in no see.” Leisure by appellees required each Therefore, at 807. S.E.2d speculate only witnesses to not about what ruling excluding “negative initial court’s seen she would have and heard if she had correct. evidence” was it, to see and about been there hear but also doing she would have at the criti- what been III. cal time and whether her attention was so to the focused on Ms. Hummer’s reaction jury’s The trial court aside the set injection that initial she would have seen of Ms. in the first verdict favor speculation permissi- it. heard Such trial based an error law in its deter *9 it had improperly ble. mination that excluded 975, (the (D.C.1990) seeking appears that 583 A.2d thresh- It also were 981 rely general on evidence of the habits general prac- assistants’ requirement for old admission of assisting explain when what doctor pattern habit tice evidence is of conduct or doing treating while Dr. were Hummer the Levin support systematic con- sufficient to inference of particular on this is not occasion. This response regular to a re- duct and to establish type admis- of habit evidence which would be situation). regular peated 1ype of v. United sible in this case. See Smith 640 circumstances, finding against
evidence.9 Under the
we find
court’s
that the verdict is
that the trial
weight
court abused its discretion in
of the evidence. We have said that
“[wjhere
II,
granting a new trial. See Oxendine
su
grants
the court
a new trial because
Bell,
pra,
supra,
A.2d
483 A.2d at
against
weight
the verdict is
the clear
significant
327. Ms. Hummer had a
interest
we will scrutinize to
assure
having
jury
her first
simply accept
verdict set aside.
trial court did not
one version
Bell,
Therefore,
See
9. At the the trial court Richt- 1. See Rich District 410 A.2d doctrine, er), following (D.C.1979); Karabatsos, the law of the case admit- Vander Zee v. Strong's hypothetical question ted answer to the 200, 206, (1978), U.S.App.D.C. 589 F.2d Nevertheless, excluded in the first trial. denied, cert. 441 U.S. 99 S.Ct. Hummer, reached a verdict for and the trial L.Ed.2d 1066 appellees’ court denied motion for new trial or remittitur. *10 Therefore, the present. sole must have been that Dr. Levin Dr. Paladino testified den- that each sought to demonstrate when he: dentist the standard care breached an incident (1) have recalled tal assistant would injected rapidly one, as the (2) if it had occurrеd in such as this harshly; pushed Ms. Hummer back (3) did, the forward; in an effort to convince lunged patient after she said the chair To that not in fact occur. spent carpule and immediate- did removed the hypo- waiting end, attorney posited ly injected again without dentist’s (4) effect; asking that she assume anesthetic to take the first thetical Gabri carpule still and as sum- changed patient, with the needle facts as recited mouth_ plaintiffs testimony Ms. Hummer’s marized in the above, which conclud- expert noted similarly that Dr. Levin Dr. stated Schiff you remember question: ed this “Would care when he: the standard of breached objec- if it occurred?” Over such an event (2) (1) tissue; did rapidly penetrated the tion, responded that she would have Gabri reaction, respond to Ms. Hummer’s incident, did not such an but remembered ie., neеdle after he did not withdraw the court, happening. The trial howev- recall it (3) experienced pain; and Ms. Hummer er, opportunity later denied the defense changed carpule the needle re- while inquiry of the other two to make an identical in the tissue.... mained assistants, Strong and Mothersole. dental Thus, according patient’s experts, to the asked, wit- proffered that both Counsel dentist the standard of care violated in the same responded nesses would have injected patient in which he the manner ruling that the way did. It was this Gabri sitting in the dentist chair. On while she was judge erroneous when he held was anyone question whether other than granted for a new trial. the motion patient present or the dentist was unequivo- patient’s was legal principle is not The fundamental was there dur- cal: a female dental assistant admissibility this general, dispute. incident, supporting the entire the den- evidence,” “negative called kind of day, people, tist. On that three different failure to hear is “founded on witness’s Gabri, Mothersole, Strong, named were supposedly have a fact he would see which employed by assis- the dentists dental WigmoRE or seen.” John H. heard Evi- tants, pres- but no one remembers who was (Chadbom § Rev.1979 & dence day, and none of the dental assis- ent long ago adopted Supp.). principle This was patient.2 tants remembered this visit of this jurisdiction. LeCointe v. United in this See assis- The dentist testified that when dental sticking The App.D.C. 16 present they must watch him be- tants are case, question that point in this and the they hand him instruments. He also cause separates this parties and which divides the that a assistant would not turn stаted dental limitation: majority, is this judge and the calls, trays, prepare phone take her back only requirement is that witness patients’ Fi- or make entries on the charts. have been so situated should nally, specifically that the patient recalled he would have ordinary course of events assistant, present, handed who was dental had it occurred. heard or seen the fact “capsule” while the the dentist given.3 being majority con supra, at 907. Wigmore, not meet the dentist did providing cludes Because a dental assistant dentist, none of the witnesses according pa- requirement because support to the present Gabri, say that were tient, Strong, could themselves or Mother- then either question complete hypothetical is set out nearly years 4.The filed until three 2. Hie suit was not opinion, after incident and the trial occurred more majority ante at 634-35. years than two later. point patient’s on this is set out 3. Hie majority opinion, ante at 638-39 in detail in the n. 7. *11 “position disput-
and in a permitted question to observe all of the to ask the same events_” reaching ed Ante at 639. In In other two witnesses. these circumstances conclusion, majority relies jury only wondering could have been left making “absolutely North Carolina it case why the dentist did not also elicit the same mandatory for the witness to demonstrate Strong denial from and Mothersole. position he or she was to hear or complete story The dentist needed to his Products, Clifton, see....” Leisure Inc. v. by showing possible that all of the 803, N.C.App. 260 S.E.2d would have remembered the incident case, prospective none of the wit- patient occurred as the claimed it did. The However, nesses could meet that test. we was, course, jury disregard free to testi- capacity have never held that of the mony setting out the dentist’s version of witness to observe the can events be estab- events, certainly pres- but he was entitled to only by particular ques- lished witness entirety. ent it in its Because he was not reason, example, why tion. see no so, allowed to do could well have supplied foundation could not be some present concluded that the dentist did not view, my other witness or witnesses. And in they the other two witnesses because patient placing a dental did, testify contrary as Gabri a conclusion participating assistant the room reality. view, point From the dentist’s procedure, coupled with the dentist’s testimo- providе either all of the witnesses should ny present dental assistant must testimony sought or none of them should necessity watch him because of the that she testify point. Any on that other result (a hand instruments to him circumstance that necessarily prejudicial and a sufficient basis here) patient testified occurred does grant for the of a For new trial. all these Therefore, say that. I cannot it would have reasons, I conclude that the trial court did been error for the trial court to have admit- setting not abuse discretion.in aside ver- testimony. ted the dict, ground, on this after the first trial. majority holds that the trial court’s ruling excluding initial the evidence was cor-
rect. Ante at 639. IWhile would hold oth-
erwise, stated, for the reasons I think it is question fairly
fair to characterize that as a that,
close one. Given seems to me that question that needs to be answered is not evidentiary correct, ruling
whether the judge but rather we should ask: Did the trial PARTLOW, Appellant, Robert A. in granting abuse discretion the new trial upon concluding motion depriving defense of this evidence was harmful? It STATES, Appellee. UNITED question seems to me that the answer to that No. 93-CO-1547. “no,” First, must be for two reasons. above, evidentiary ruling stated awas Appeals. District of Columbia Court of one, judge close and where a trial makes Argued findings determining Feb. 1995. factual the threshold question admissibility gen- we Decided March 1996. erally give findings.5 deference to those Sec- ond, having admitted the evidence with re- witnesses,
spect to one of the the harm to the
defendant was manifest when he was not See, Smith, neous”); (D.C. e.g., Laumer v. United 409 A.2d Watts v. 226 A.2d (D.C.1979) (in reviewing 1967) (same the trial court’s reviewing standard when ruling admissibility on the of a declaration judge’s ruling admissibility spontaneous of a interest, against penal "we will not disturb utterance). findings clearly trial court’s unless are erro-