Denial of Forum Non Conveniens Dismissal Is No Longer Appealable by Right

Rolinski v. Lewis, 828 A.2d 739 (D.C. 2003). Opinion by Glickman, joined by Wagner, Terry, Steadman, Schwelb, Farrell, Ruiz, Reid and Washington. Trial court: Jackson.

FACTS: Former client sued lawyer for legal malpractice for filing his slip-and-fall case in the wrong court, which resulted in a transfer and ultimately caused a statute of limitations dismissal. Lawyer moved to dimiss for forum non conveniens, arguing that since both lawyer and client lived in Maryland and had their attorney-client relationship there, suit belonged there. Trial court denied motion. Lawyer appealed.

OUTCOME: Appeal DISMISSED for lack of jurisdiction.

HOLDING: (Overruling Frost v. Peoples Drug Store and Jenkins v. Smith) A forum non conveniens dismissal is not an appealable collateral order.

COMMENT: Court says it overrules its precedents based on the Supreme Court decision in Van Cauwenberghe v. Biard, 486 U.S. 517 (1988). However, court says in an exceptional case, it can still hear a discretionary appeal under D.C. Code § 11-721(d) if the trial court certifies, and the Court of Appeals agrees, that an order "involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal from the ruling or order may materially advance the ultimate termination of the litigation or case." Court stresses that this should only be for exceptional cases where, for example, decision turns on how to properly evaluate the public interest factors involved in the forum non conveniens decision.

NOTE: In its last FNC case before Rolinski, court in Jacobson v. Pannu, 822 A.2d 1080 (D.C. 2003), held that trial court had not abused discretion in refusing to dismiss a malpractice case. Although both plaintiff and doctor lived in Maryland and malpractice occurred at a hospital there, relationship had started in D.C. and doctor's practice was primarily centered in D.C.

Written-Off Medical Bills Are Recoverable by Plaintiff

Hardi v. Mezzanotte, 818 A.2d 974 (D.C. 2003). Opinion by Wagner, joined by Steadman and Glickman. Trial court: Graae.

FACTS: Plaintiff sued gastroenterologist for misdiagnosing her diverticulitis and doing contraindicated colonoscopies that caused her colon to rupture and required emergency surgery and several followup surgeries. After jury hung, parties submitted case to trial judge for decision as fact-finder. Judge ruled for plaintiff. Award included $209,000 for medical bills, of which $107,000 had been written off by health care providers and not paid by anyone.

OUTCOME: Judgment for plaintiff AFFIRMED.

HOLDING: Issue of first impression: D.C. collateral source rule does not allow defendant a credit for written-off medical expenses, since write-offs were a benefit of the plaintiff's health insurance. Court follows decision of Virginia Supreme Court in Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316 (Va. 2000).

COMMENT: Court notes, however, that an argument not made here might come up in the future: that the face amount of the bills does not represent their "reasonable value" and that the discounted amount paid by the insurer is actually the reasonable value. That would depend on evidence not in this record on how the discounts were determined and what the arrangements were between the insurer and the providers.

QUOTE: Court also holds that plaintiff was properly granted summary judgment on defendant's statute of limitations defense. Defendant argued that clock began to run on first visit because plaintiff suspected she had recurrence of diverticulitis and doctor misdiagnosed it as a gynecological problem. Court says when medical specialist has failed to make correct diagnosis, untrained plaintiff cannot be held to know enough to second-guess doctor. Here, plaintiff did not learn of misdiagnosis and evidence of doctor's wrongdoing until after she had emergency surgery less than three years before she sued.

Quantum of Proof for Economic Damages Is "Reasonable Estimate"

Hill v. Republic of Iraq, 328 F.3d 680 (D.C. Cir. 2003). Opinion by Rogers, joined by Randolph and Williams.

FACTS: Former hostages who were denied permission to leave Kuwait and Iraq by Iraqi army and police after Iraq invaded Kuwait later sued Iraq under Foreign Sovereign Immunities Act. Court held evidentiary hearing on damages. Four plaintiffs testified they were psychologically unable to return to the Middle East because of the hostage experience and that they lost career opportunities as a result. Another testified, with documentation from therapists, that he was unable to work at all because of post-traumatic stress, and another testified that his diabetes worsened substantially because of being deprived of medication during the captivity, also impacting on his career. Trial court awarded general damages but held that the evidence of economic loss was "too speculative, and without a basis to exclude unrelated factors as causative of adverse fortunes in their working lives" to award any economic damages.

OUTCOME: Judgment REVERSED and case remanded for application of proper standard of proof.

HOLDING: In a default case, plaintiff must prove that damages are "ëreasonably certain' (i.e., more likely than not) to occur, and must prove the amount of damages by a ëreasonable estimate.'" Trial court abused its discretion by going beyond the evidence and speculating that other unidentified factors may have contributed to the plaintiffs' economic losses.

COMMENT: Court says it follows the "seminal case" of Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931) and quotes this passage:
"Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of damages as a matter of just and reasonable inference, although the result be only approximate." Story Parchment, 282 U.S. at 563.

Consumer Protection Act Requires Trebling of Plaintiff's Actual Damages Even If Evidence Doesn't Support Punitive Damages

District Cablevision Ltd. Partnership v. Bassin, 828 A.2d 714 (D.C. 2003). Opinion by Glickman, joined by Wagner and Terry. Trial court: Braman.

FACTS: District Cablevision in 1990 increased its late fee to subscribers from $2 to $5; basic cable service cost $10 a month. Cable firm admitted in hearings before D.C. administrative agency that higher fee was not based on costs of recovering tardy payments but was just intended to motivate customers to pay on time. Agency allowed fee to take effect. Late charge was significantly higher than similar fees charged by other utilities. Soon company was collecting late fee revenues of $1.2 million a year from some one-fourth of its subscribers who paid late. Plaintiffs filed class-action suit in 1994 alleging that the late fee was an illegal penalty and not a valid liquidated damages provision since it bore no reasonable relationship to losses cable firm suffered from late payments. Economic testimony at trial from cable firm contended actual costs of collecting late fees were $11-12 per subscriber. Plaintiff contended true cost was less than $1 per subscriber. Jury rejected plaintiffs' claim that cable billing practices were misleading but agreed with plaintiffs that late fee didn't bear reasonable relationship to actual cost to company of late payments, which the jury said was $2.43 per late subscriber. Firm had to disgorge difference between $5 collected and $2.43 that was justified, which translated into $3.4 million for the class. After jury found conduct was malicious, court gave jury choice of awarding treble damages or punitive damages, and jury then awarded $3.3 million punitive damages. In post-trial rulings, court awarded $425,000 in attorney's fees but threw out punitive award as unjustified by the evidence.

OUTCOME: Judgment for plaintiffs AFFIRMED but court holds plaintiffs were entitled to prejudgment interest on their actual damages plus trebling of the damages-plus-interest sum.

HOLDING:
1) Fact that late fee violated common law proscription on disproportionate liquidated damages was sufficient to be actionable under D.C. Consumer Protection Procedures Act even though it didn't fit into any of the specifically banned trade practices under CPPA; CPPA's purpose is "to remedy all improper trade practices." (Quoting D.C. Code § 28-3901(b)(1).)
(2) Even though there was insufficient evidence of malice to entitle plaintiffs to punitive damages, CPPA required trebling of actual damages (the late fee minus cable firm's actual costs of collecting late payments) because purpose of treble damages in this statute is "remedial": to encourage consumers to act as private attorneys general.
(3) Since plaintiffs were suing for a "liquidated debt," a sum certain that the cable firm had wrongfully charged, they were entitled to prejudgment interest under D.C. Code § 15-108 despite the cable firm's having an offsetting amount for its actual damages, and the prejudgment interest would be added to the award before trebling because it was part of actual damages.

Medicare Patients Have Right to Force Government to Make Quality of Care Investigations and to Learn Results

Public Citizen, Inc. v. Department of Health and Human Services, 332 F.3d 654 (D.C. Cir. 2003). Opinion by Garland, joined by Edwards and Rogers.

FACTS: Under the Peer Review Improvement Act of 1982, the federal Medicare agency contracts with private organizations of doctors to review quality of care provided to Medicare beneficiaries. These entities are called Quality Improvement Organizations (QIOs) (formerly PROs: Peer Review Organizations). The statute was amended in 1986 to require QIOs to investigate all written complaints "about the quality of services ... not meeting professionally recognized standards of health care," when the complaint is made by a Medicare beneficiary or someone acting on the beneficiary's behalf. 42 U.S.C. § 1320c-3(a)(14). The statute requires the QIO to inform the patient "of the organization's final disposition of the complaint." HHS interpreted other confidentiality provisions of the Medicare act to allow QIOs to refuse to divulge the substantive results of their investigations unless the investigated health care provider consented. Public Citizen sued to require HHS and its QIO organizations to reveal the actual results of their investigations. Trial court granted summary judgment for Public Citizen.

OUTCOME: Judgment for plaintiff AFFIRMED.

HOLDING: Medicare statute requiring a Quality Improvement Organization to "inform the individual ... of the organization's final disposition of the complaint" means that the patient has a right to learn the results of the review. "At a minimum, this means that the [QIO] must disclose its determination as to whether the quality of the services that the recipient received met ëprofessionally recognized standards of health care.'"

PRACTICE TIP: Addresses of QIOs in this area.

Medicare D.C. Area Quality Improvement Organizations

Complaints concerning quality of care on behalf of Medicare patients in this area can be sent to:

District of Columbia:
Delmarva Foundation for Medical Care, www.dfmc.org, 202-293-9650.
1620 L Street, NW, Suite 1275
Washington, DC 20036

Maryland:
Delmarva Foundation for Medical Care, www.dfmc.org, 410-822-0697.
7240 Parkway Drive
Suite 400
Hanover, Maryland 21076
410-684-3362

Virginia:
Virginia Health Quality Center, www.vhqc.org, 804-289-5320.
4510 Cox Rd. Suite 400
Glen Allen, VA 23060

Should D.C. Adopt Comparative Fault? Two Court of Appeals Judges Say Yes

Hall v. Carter, 825 A.2d 954 (D.C. 2003). Opinion by Ferren, joined by Reid (dissenting in part) and Schwelb. Trial court: Bayly.

FACTS: In medical malpractice case for hernia and "tummy tuck" surgery, patient sued surgeon on two theories for different periods of time: informed consent for the pre-surgery conduct, and negligence for improper wound care after the surgery, requiring two more debridement surgeries. Evidence established that plaintiff had not told surgeon the extent to which she smoked, which could have affected her wound recovery, and that even though he urged her to cut down her smoking, she continued to smoke after the surgery. Judge gave "last clear chance" instruction. Jury, after expressing confusion on the last clear chance doctrine, eventually found against plaintiff on informed consent but in favor of plaintiff on post-surgical negligence and found that doctor had last clear chance despite plaintiff's contributory negligence. Jury awarded $465,000.

OUTCOME: Judgment for plaintiff REVERSED.

HOLDING: Last clear chance doctrine properly applied only to informed consent theory but verdict form improperly let jury apply last clear chance to the post-surgical care when the doctor's negligence and the plaintiff's negligence coincided in time.

COMMENT: Judges Ferren and Reid file "separate statement" arguing that this case is a good example of why the District of Columbia should adopt the "comparative negligence" doctrine. Judges characterize the combination of contributory negligence and last clear chance doctrines as "awkward" and "almost universally discarded." Judge Schwelb files statement criticizing Ferren and Reid for "volunteer[ing] their personal policy preferences on this controversial subject when the issues before the court are entirely different." He says judges should not announce their views until there has been "an adversarial crossing of swords" on the issue.

Court Properly Denied Motion to Reinstate Case Because Plaintiff Failed to Explain Why She Had Failed to Serve Complaint Properly

Dorsey v. District of Columbia, 827 A.2d 32 (D.C. 2003). Opinion by King, joined by Steadman and Pryor.

FACTS: Plaintiff filed a slip-and-fall complaint against the District of Columbia three days before the third anniversary of the injury. She served the suit papers on the Mayor but not on Corporation Counsel, as required by Civil Rule 4(j). After D.C. moved to dismiss, plaintiff moved pursuant to Civil Rule 41(b) for leave to serve Corporation Counsel and to have the case reinstated. Plaintiff argued that D.C. would suffer no prejudice but didn't explain why she didn't serve Corporation Counsel properly in the first place. Trial court dismissed case with prejudice.

OUTCOME: Dismissal AFFIRMED.

HOLDING:
(1) Service on Corporation Counsel plus Mayor is mandatory for starting lawsuit against D.C.
(2) Rule 41(b) allows a court to vacate a dismissal if the plaintiff has shown good cause for failing to comply with the rule, but here the plaintiff made no explanation at all for her failure to serve Corporation Counsel.

COMMENT: Appeals court suggests that dismissal without prejudice might have been more proper, but observes that it would have been futile since the statute of limitations had run. Case is another good example of the peril of filing suit just before a limitations period expires, when correctable procedural errors can easily become fatal.

Plaintiff Answering Interrogatories Cannot Merely Refer to Unspecified Documents, but Violation of Discovery Rule Does Not Justify Dismissal

Zuckerman v. Vane, 812 A.2d 942 (D.C. 2002). Opinion by Farrell, joined by Steadman and Ruiz. Trial court: Winfield.

FACTS: Pro se plaintiff in automobile accident case answered interrogatories on nature of his injuries and amount of his economic damages by offering to make available for inspection by defendant his medical records, x-ray films and photographs. Defendant, which had already moved to compel this information, moved to dismiss the case as a sanction. Plaintiff responded that he had offered to make all the documents available for inspection and defendant had taken no steps to do so. Trial court dismissed the case.

OUTCOME: Dismissal REVERSED.

HOLDING:
(1) (1) Plaintiff's offer to make documents available for inspection ignored the "specification" requirement of Rule 33(d), which requires the answering party to specify which documents respond to which interrogatory "in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained." Specification requirement is meant to deter "document dumping," whereby party seeking to avoid answering hard questions dumps large volumes of unindexed documents on the requesting party.
(2) Plaintiff's failure to comply with specification rule wasn't egregious enough to warrant dismissal as a discovery sanction. Case was simple, and plaintiff was not entirely unjustified in believing defendant could identify the pertinent documents readily from an inspection. In addition, discovery was still open and defendant had taken no steps to depose the witnesses whom plaintiff did identify. "Outright dismissal was disproportionate both to the level of fault [plaintiff] had shown and to the prejudice his conduct caused [defendant] or the judicial process."

COMMENT: Cases on a responding party's duty to specify which documents are responsive to an interrogatory include: Saleh v. Moore, 95 F. Supp. 2d 555, 561 (E.D. Va. 2000); Pulsecard Inc. v. Discover Card Servs., 168 F.R.D. 295, 305 (D. Kan. 1996).

BRIEFS

Trial court may not dismiss case with prejudice for plaintiff's failure to attend second scheduling conference without considering plaintiff's claim that she never received notice. In this circumstance, trial court is obligated to explicitly consider the factors in a Rule 60(b) motion and the factors set out in Reid v. D.C., 634 A.2d 423 (D.C. 1993), including whether the movant had actual notice, acted in good faith, and took prompt action, and whether there was any prejudice to the non-moving party. Mourning v. APCOA Standard Parking Inc., 828 A.2d 165 (D.C. 2003).

Security decisions for U.S. embassy in foreign country are discretionary in nature and not subject to attack by a Federal Tort Claims Act suit. Case was brought on behalf of Kenyan citizens injured in 1998 bombing of U.S. Embassy in Nairobi. Trial court dismissed on discretionary function, foreign country and independent contractor exceptions to FTCA's waiver of sovereign immunity. Appeals court affirms in all respects. Macharia v. United States, 334 F.3d 61 (D.C. Cir. 2003).

Filing of post-judgment motion to supplement record does not toll time for filing appeal. In this case, legal malpractice plaintiff who lost summary judgment had styled its post-judgment motion as one for relief under Rule 59(e), but because it sought no relief available under that rule, the motion didn't stop the 30 days for filing a notice of appeal. Untimely appeal was then dismissed. Words, Inc. v. Singer, 810 A.2d 910 (D.C. 2002).

Whether stop sign missing from intersection was proximate cause of accident was question of fact for jury. Plaintiff drove into an intersection where stop sign controlling her travel had been missing for some months, and her car was broadsided by Metro bus. Plaintiff had no memory of the event but testified she would have stopped for a stop sign. Reversing the trial court's grant of judgment as a matter of law to District of Columbia for alleged lack of proof that absence of sign caused accident, court says: "A reasonable jury could indulge the presumption that the absence of a traffic signal at an intersection would render it less likely that a driver would stop before entering the intersection." Question of plaintiff's contributory negligence was also for the jury because jury could reasonably find that plaintiff had approached or entered the intersection before the bus. Majeska v. District of Columbia, 812 A.2d 948 (D.C. 2002).