Verdict Affirmed for $1.5 Million in Low-Impact Rear-End Collision

Bushong v. Park, , __ A.2d __ (D.C. 2003). Opinion by Terry, joined by Schwelb and Reid. Trial court: Bush.

FACTS: Park's car rear-ended a stopped car and then was rear-ended itself. Park fell over paralyzed on the car seat. His neurosurgeon testified that a cervical disk had ruptured and pushed against his spinal cord, causing the paralysis. Surgeon said this was likely from the second impact, since he was still sitting up (according to Park and the driver of the car in front of him) after the first impact but fell over immediately after the second. Defendant Bushong, who hit Park, disputed this and claimed entire accident happened when Park's car hit the front car twice. Bushong also claimed his liability for Park's damages should be limited because Park's pre-existing spinal stenosis made the injury more severe than it would have been in a normal person. Bushong also complained trial court should have let him bring out that Park's life care planner had written a much more modest plan when she was employed by Park's workers' compensation carrier. Jury returned verdict for $1.5 million.

OUTCOME: Verdict AFFIRMED.

HOLDING:

Jury could reasonably find that paralysis was due to second impact, not first, because it was free to accept testimony of Park and first driver and reject Bushong's.

"Thin skull" doctrine bars defendant from limiting his liability because of pre-existing condition of plaintiff, which made injury worse.

Trial court didn't abuse discretion in barring defendant from bringing out life care planner's former connection to worker's comp carrier in her first, limited care plan. Defendant was allowed to inquire into factual reasons why plans differed in scope and amount but it would have been prejudicial to interject the collateral source of worker's compensation payments into this issue.

Plaintiff Wins New Trial for Damages Where Jury Agreed He Was Hurt but Awarded Nothing

Worjloh v. Stephens, __ A.2d __ (D.C. 2003). Opinion by Wagner, joined by Washington and Nebeker. Trial judge: Bayly.

FACTS: Rear-end collision case was tried on damages only after striking driver admitted fault. Only testimony was from plaintiff and his wife. Plaintiff said he had back and neck pain after the accident but didn't get treatment until he called his lawyer the next day and was referred to a chiropractor. He was treated for about a month but stopped going to the doctor because he said he could not afford it. Medical bills totaling $2,485 were admitted without objection. Plaintiff claimed that up to the time of trial he still had pain, discomfort and diminished athletic ability. Evidence showed he also had two subsequent accidents. Jury returned special interrogatory verdict agreeing that plaintiff was injured but awarded him zero damages. Trial court refused to grant new trial on grounds of the lack of missed time from work, the delay in medical treatment and the subsequent accidents all gave the jury grounds to view the damages with skepticism.

OUTCOME: REVERSED and remanded for new trial on extent of injury and damages

HOLDING: Because jury made express finding that plaintiff was injured, it could not reduce his damages to zero, particularly because plaintiff had undisputed medical bills that appear to have been for treatment occurring before the subsequent accidents.

Missing Witness Instruction Affirmed in Malpractice Trial; Defendant Failed to Reveal Identity of Assistant Who Watched Disputed Examination

McPherson-Corder v. Chinkhota, __ A.2d __ (D.C. 2003). Opinion by Glickman, joined by Ruiz and Pryor. Trial court: Braman.

FACTS: Fourteen-year-old boy slipped on ice and suffered a groin injury. He saw his pediatrician the next day, who examined him and found only a muscle strain. One day later the boy went to the emergency room was discovered to have testicular torsion; because of the delay in recognition, the testicle had to be removed. Boy sued pediatrician for not finding the problem. At trial, boy testified that pediatrician's examination was rushed and cursory. Pediatrician testified that she had done a thorough examination, and one reason she knew it was careful was because she was demonstrating physical examination that day to a physician's assistant student. She had not identified the student in discovery and declined to do so at trial, although she said it had to be one of two individuals. Plaintiff asked for "missing witness" instruction that the jury could infer that the testimony of the missing witness likely would have been unfavorable to the doctor. Doctor's lawyer revealed in court that he had found the witness the night before argument on jury instructions, and the witness had told him he had no recollection of the examination. Court then granted instruction. Jury returned $200,000 verdict for plaintiff. Defendant appealed mainly on this instruction.

OUTCOME: Verdict for plaintiff AFFIRMED.

HOLDING: Prerequisites for missing witness instruction were met here: (1) Witness was "peculiarly available" to defendant inasmuch as she was only person who could identify the witness, yet had failed to do so, and (2) witness was "likely to elucidate the transaction," inasmuch as this witness could provide unique evidence superior to that from any other witness since he was the only other witness to the disputed examination. Fact that defense counsel reported to court that witness no longer remembered the event does not cut against the instruction, because plaintiff and the court were not given the opportunity to test the witness's recall for themselves and the lack of memory could be due to defendant's failure to have contacted the witness until the last minute.

COMMENT: Same test applies to whether counsel should be permitted to argue to the jury that an uncalled witness would have been unfavorable to the other side. Lawyers should be alert to both sides of this dangerous argument.

Settling Tortfeasor Can Sue Non-Settling Tortfeasor for Share of Reasonable Settlement Value

M. Pierre Equipment Co. v. Griffith Consumers Co., __ A.2d __ (D.C. 2003). Opinion by Reid, joined by Farrell and Newman. Trial court: Graae.

FACTS: Oil delivery company (Griffith) brought heating oil to wrong house and pumped it into basement through a pipe that another company (Pierre), which had converted house from oil to natural gas, had failed to cap off properly. House suffered extensive damage and owners had to move out during remediation. Home owners settled entire claim with delivery company for $850,000 and assigned all rights to the settling tortfeasor. Settler then sued non-settling tortfeasor, the conversion company, for one-half contribution, using amount of settlement as basis of claim. Conversion company claimed delivery company should not have used settlement amount but should have had to prove the damages homeowner could have recovered from conversion company. Trial court allowed settlement to be used as basis for damages but required jury to find whether settlement amount was reasonable. Jury then found reasonable settlement would have been $600,000 and that conversion company was also at fault for injury. Non-settler was then required to pay half of the amount determined to be a reasonable settlement.

OUTCOME: Verdict for settling tortfeasor delivery company AFFIRMED.

HOLDING: On case of first impression: Settling tortfeasor who brings contribution action against non-settling tortfeasor must establish that non-settler was liable for the injury and that settlement paid was reasonable.

COMMENT: Case provides model for how such settlements can be done but shows risk to settling tortfeasor, who in this case wound up being reimbursed for less than half of its settlement.