Pаtricia Ann HEMPHILL, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellee.
No. 91-7112.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 20, 1992. Decided Jan. 15, 1993. As Amended Jan. 15, 1993.
572
Before: RUTH BADER GINSBURG, SILBERMAN and WILLIAMS, Circuit Judges.
It is the judgment of this court, in which all three judges concur, that the judgment of the district court be vacated and the case remanded for a new trial. As explained in the оpinions of the three judges that follow, the “claims-minded-plaintiff” instruction given by the magistrate judge was improper.
RUTH BADER GINSBURG, Circuit Judge, concurring in the judgment:
Plaintiff-appellant in this vehicle accident case presents a sole issue for review by this court: whether the magistrate judge erred, reversibly, in submitting the case to the jury on a “claims-minded-plaintiff” instruction. Defendant-appellee, although requesting the instruction, did not contend that prior claims pursued by plaintiff were in any way fabricated. Absent proof of the falsity of prior claims, a “claims-minded-plaintiff” instruction is improper. Because a court should not indulge the assumption that the jury disrеgarded the charge in reaching its verdict, the judgment must be vacated and the case remanded for a new trial.
I.
The episode in suit occurred on the afternoon of July 14, 1989, as plaintiff Patricia Ann Hemphill drove her car out from the curb on the east side of 14th Street, just north of U Street, N.W., Washington, D.C. Struck by another vehicle, Hemphill next recalls rescuers attempting to remove her from her car. She was taken to Washington Hospital Center where she regained full consciousness. Hemphill alleged that her medical bills attributable to the July 14, 1989 accident exceeded $55,000.
Hemphill initially sued uninsured motorist Beverly Robinson, whose car struck Hemphill‘s, and Government Employees Insurance Company (GEICO), uninsured motorist carrier for Hemphill. Hemphill sued Robinson because Robinson‘s car was the only other vehicle mentioned in the police traffic accident report. The police report records Robinson‘s statement that her car struck Hemphill‘s “due to [a] gas spill in the street.”
Thomas Fortune Fay was on the brief, for appellant.
Bruce P. Heppen, Asst. Gen. Counsel, Washington Metropolitan Area Transit Authority, with whom Robert L. Polk, Gen. Counsel, and Gerard J. Stief, Associate Gen. Counsel, Washington Metropolitan Area Transit Authority were on the brief, for appellee.
Hemphill, having scant recollection of the collision itself, relied on the testimony of Robinson in her endeavor to show WMATA‘s responsibility for the accident. Hemphill‘s own testimony largely concerned the extent of her injuries and their relationship to the July 14, 1989 occurrence. In that connection, both sides canvassed prior injuries suffered by Hemphill. Those injuries, as summarized in Hemphill‘s brief, were:
- 1961—Leg injury when struck by a motor vehicle while crossing street as a pedestrian;
- 1966—Lower back injury when her motor vehicle was rear ended;
- 1967—Cervical strain, no permаnency, when her motor vehicle was struck from the front;
- 1969—Hit in the head by falling object at work, Dilantin prescribed for seizures;
- 1979—Criminally assaulted, fractured nose, perpetrator convicted;
- 1983—Cervical strain suffered in fall on Metrobus;
- 1983—Head injury in slip and fall in Giant Food store;
- 1988—Cervical strain when motor vehicle rear ended by drunk driver.
Brief of Appellant at 3. It also came out, though in considerably less detail, that Hemphill had pursued legal claims following some of these injuries.
Over Hemphill‘s objection, and in the portion of his charge concerning liability, the magistrate judge gave the “claims-minded-plaintiff” instruction WMATA requested:
There has been evidence and testimony in this case that Ms. Hemphill, the plaintiff, has had prior accidents and prior injury claims and had claims settled. The court instructs you that in deciding upon any claim that might be in this case you should consider whether the plaintiff was merely unlucky or whether or not she is claims minded. And you‘re entitled to take into consideration the fact that although a negligent injury is not unusual, it is unusual for a рerson not engaged in a hazardous activity to suffer negligent injuries repeatedly within a short period of time and at the hands of different persons.
Now, if you find that the plaintiff has proved by a preponderance of the evidence that the defendant was negligent, that they have carried the burden of proof on that issue, then you have to consider the issue of damages....
The jury returned a verdict for defendant.
II.
WMATA grounded its request for the contested instruction on this circuit‘s decision in Mintz v. Premier Cab Ass‘n, 127 F.2d 744 (D.C.Cir.1942) as “reaffirmed in Evans v. Greyhound Corp., 200 A.2d 194 (D.C.1964) and Manes v. Dowling, 375 A.2d 221 (D.C.1977).” Brief for WMATA at 4. Mintz was a case in which “defendant‘s counsel conceded ‘liability’ “; “the sole issue was [plaintiff‘s] injury, if any.” 127 F.2d at 744. Mintz upheld cross-examination and defense attorney comment on plaintiff‘s prior personal injury claims. No issue was raised in Mintz concerning the charge to the jury. The opinion does not indicate whether any “claims-minded” instruction was sought or given. We cannot know how the Mintz court would have evaluated the addition of a judicial voice in tune with the defense counsel‘s cross-examination.
The District of Columbia Court of Appeals, after it became responsible for the binding declaration of District of Columbia law, relied on Mintz, as carried over precedent, in the 1977 Manes decision.2 In Manes, as in Mintz, “the accident‘s occurrence was conceded, and the only issue was the extent of plaintiff‘s injury.” 375 A.2d at 223. The plaintiff herself had testified to subsequent accidents and claims. Based on the subsequent accident evidence, the trial court gave a “claims-minded-plaintiff” instruction. The District of Columbia Court of Appeals upheld the charge, citing Mintz as establishing the law “[i]n this jurisdiction.” Id.
The Mintz decision is “of a сertain age,” and its broad reasoning has been undermined by later cases and commentary. Controlling current authority—as embodied, most notably, in
To comport with more recent authority, specifically, the balancing required by the Federal Rules of Evidence, see Outley, 837 F.2d at 592 (emphasizing
While the disposition ordered in the court‘s judgment is controlled by the reasoning codified in the Federal Rules of Evidence, the District of Columbia courts have not signaled that they would today embrace any different viеw.4 Those courts have elaborated no rule of their own, but have up to now endeavored to follow the precedent we set for them in Mintz. That decision, for the reasons just explained, is properly contained—when no charge of fabrication is made—to cover only cross-examination relevant to the cause and extent of a claimant‘s injuries.
III.
WMATA urges that, even if we hold, as we do, that the “claims-minded-plaintiff” instruction constituted error, “it was harmless error, which does not require a new trial.” Brief for WMATA at 11-12. The disputed instruction, WMATA now pleads, never came into play, for the jury rendered a defendant‘s verdict, which meant its members disbelieved Robinson‘s account of the accident and therefore found WMATA not liable. The “claims-minded-plaintiff” instruction thus became academic, WMATA maintains, because it “relate[d] solely to the amount of damages rather than to the question of liability.” Id. at 12.
The magistrate judge, however, did not so instruct the jury. He carefully constructed his charge first to cover liability, then to move on, clearly and discretely, to the issue of damages. See supra p. 573. He apparently thought the charge relevant to Hemphill‘s truthfulness in all respects, including the integrity of her claim of WMATA‘s negligence. We should not indulge the assumption thаt the jury failed to heed what the magistrate judge charged and either disregarded the “claims-minded-plaintiff” instruction or moved the instruction to a place where it would do no harm. WMATA itself recognized that the issue of liability in this case “was quintessentially a matter for jury resolution,” Brief for WMATA at 4, not one properly resolved by judgment as a matter of law (formerly, directed verdict or judgment n.o.v.). See
Because the “claims-minded-plaintiff” instruсtion should not have been given, the case must be remanded for a new trial.
SILBERMAN, Circuit Judge, concurring in the judgment:
Although I reach the same result as Judge Ginsburg (and agree with her that the error cannot be thought harmless), I think that Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), requires us to decide the case under the Federal Rules of Evidence. We there-
I agree with Judge Ginsburg that the claims-minded instruction can be nothing other than an evidentiary rule relating to “evidence of prior acts used to discredit а witness’ testimony.” Opinion of Judge Ginsburg at 6. As the District of Columbia Court of Appeals stated in Manes v. Dowling, 375 A.2d 221 (D.C.1977), “the purpose of a claim-minded-plaintiff instruction is to allow a jury to ‘discount or disregard testimony which runs counter to normal experience.‘” Id. at 223 (quoting Mintz v. Premier Cab Ass‘n, Inc., 127 F.2d 744 (D.C.Cir.1942)). The instruction certainly could not be thought of as an affirmative defense to liability (whatеver common sense such a rule might embody). We have previously made clear that an evidentiary rule such as this is part of the procedural, not substantive, law of the District of Columbia and that it is displaced in our court by the Federal Rules of Evidence. See Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159 (D.C.Cir.1990); Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988).
Under
STEPHEN F. WILLIAMS, Circuit Judge, concurring in the judgment:
I agree with Judge Silberman‘s view as to why it was error for the court to give the “claims-minded-plaintiff” instruction. Because the charge goes only to the credibility of witnesses and is procedural, the federal court should apply federal law—here the judgment implicit in
I hesitate to reverse, however, because the likelihood that the error affected the outcome seems remote. The sole witness identifying misconduct by a Metrobus was Beverly Robinson, the uninsured motorist whose car struck Hemphill‘s. As recorded in a police report of the accident, Robinson at the time made no mention of a bus, much less one lurching into her lane. Instead she had evidently chalked the collision up to a “gas spill in the street“. Once sued by Mrs. Hemphill, however, Mrs. Robinson contacted Hemphill‘s attorney and explained that a Metrobus forced her to hit Hemphill. Shortly after this new recollection, Hemphill named WMATA as a defendant and dropped Rоbinson from the suit. Rose Robinson, Beverly‘s sister and passenger at the time of the accident, corroborated the existence of the bus but not the testimony that it cut their car off or forced Beverly Robinson to slam on her brakes. On this evidence, I find it hard to believe that the presence of the erroneous сharge played the slightest causal role in producing in the jury verdict exonerating WMATA. In the interests of having the case yield a clear resolution of the Erie issue, however, I defer to my colleagues’ belief that the error in the charge was not harmless and join the judgment.