Inadequate Verdict: Reversal for New Trial on Medical Expenses Only

Anthony v. Allstate Ins. Co.,__ A.2d __ (D.C. 2002). Opinion by Farrell, joined by Terry and Ruiz. Trial judge: Zeldon.

FACTS: Uninsured driver went through stop sign and hit plaintiff's car in the side. Photos showed only mild impact. Plaintiff drove away from the scene without reporting any injuries or pain to police. Two days later, he began treatment at a clinic for back strain. Treatment included hot packs, electrical stimulation, and traction, and it lasted about six weeks with a cost of $2,800. Plaintiff testified at trial that he lost about three to six days of work but presented no documentation. Jury returned verdict finding uninsured driver was negligent and that such negligence proximately caused injury to the plaintiff, but jury awarded zero damages. Plaintiff moved for new trial on ground that the zero damages verdict contradicted the jury's finding that the negligence had caused him injury. Trial judge denied motion.

OUTCOME: REVERSED in part and new trial awarded on medical expense damages only.

HOLDING: The jury could properly find that plaintiff had not met his burden of proof on lost wages and pain and suffering. However, "having found that [plaintiff] was injured by the collision ... the jury could not reasonably discount his damages to zero in the face of medical bills reflecting treatment for the injury caused. Some recovery for those expenses, and the related inconvenience, was dictated by the jury's own conclusion as to causation."

COMMENT: Court distinguishes medical bills from pain and suffering on ground that the medical treatment was not such as to compel an award for pain and suffering, as contrasted to Bernard v. Calkins, 624 A.2d 1217 (D.C. 1993), where evidence of pain was objective and undisputed.

NOTE: Court assumes without deciding that photographs of only mild car damage are relevant to extent of injury. Delaware Supreme Court held to contrary in Davis v. Maute, 770 A.2d 36 (Del. 2001), on grounds that the inference (that low impact meant little injury) was not established without credible expert testimony.

Continuing Torts: Statute of Limitations

Beard v. Edmonson and Gallagher,__ A.2d __ (D.C. 2002). Opinion by Glickman, joined by Ruiz and Reed. Trial court: Kennedy; motions court: Levie.

FACTS: Real estate developer was blocked in its effort to get financing to buy and develop a building called Alban Towers, due to a prolonged "quiet title" action brought by a tenants' association that wanted to buy the building for the tenants. Three years after that action ended in developer's favor, the developer sued the tenants' association and the tenants' lawyers for tortiously interfering with its contract to buy the building by pursuing the prior quiet title action in bad faith. Motions court denied SOL motion on ground that even though plaintiff knew of the tortious interference more than three years before suing, the interference was a "continuing tort" that ended only when the bad faith litigation ended. Jury then returned verdict in favor of developer against the lawyers (but not the tenants). Lawyers appealed on ground that suit against them was filed too late.

OUTCOME: Judgment for plaintiff REVERSED on statute of limitations.

HOLDING:

Once the plaintiff is on notice of the continuing tort, the statute of limitations begins to run, and claims based on conduct that occurred more than three years before suit was filed are barred. Here, the tortious litigation that formed the basis of the tortious interference claim may have continued until less than three years before suit was filed, but the plaintiff could prove no additional injury from the tortious conduct that was within the limitations period.

(2) Under Maryland law, if settler is not established to be a joint tortfeasor, non-settler has no right of credit whatsoever.

QUOTE: The court says that a "continuing tort" for SOL purposes can be established by showing (1) continuous and repetitious wrong, (2) with damages flowing from the act as a whole rather than from each individual act, and (3) at least one injurious act within the limitations period. It summarizes this by noting, "It makes sense to say that the running of the limitations period is tolled until the continuation of the wrongful conduct renders the existence of the cause of action sufficiently manifest to permit the victim to seek recovery. ... When the plaintiff is or should be aware that he or she is being injured by a continuing tort, the statute of limitations begins to run."

Joint Tortfeasors: Trial Court May Not Render Fact Findings on Claim for Contribution or Indemnification that Contradict Jury's Verdict

Hubbard v. Chidel, __ A.2d __ (D.C. 2002). Opinion by Reid, joined by Wagner and Steadman. Trial judge: Wolf.

FACTS: Woman sued her primary care doctor (Dr. King), his clinic (operated by the District of Columbia) and a radiology group for negligently failing to tell her about a suspicious result on her mammogram. This caused a one-year delay in finding her breast cancer. Primary care doctor and clinic settled with plaintiff, who went to trial against radiologists. Radiologist testified that he did report the suspicious mass to the primary doctor by telephone and showed that he had documented this oral report in his computer, following up with a written report put in the mail. He also said primary doctor should have called him if he didn't get the report. Patient's expert said that radiologist should have followed up about a month after the written report to see what action the primary doctor had taken. Jury returned verdict for plaintiff for $1 million. Her settlement with primary doctor and clinic was for $500,000. Trial judge made post-trial fact findings on equitable claim of radiologists for contribution/indemnification that primary doctor was not credible in denying that he ever received the mammogram findings and that the clinic had poor record-keeping for failing to realize that the report hadn't come in. Trial judge then issued "take-nothing" judgment on grounds that any negligence by radiologist was passive compared to primary doctor's active negligence and thus radiologist deserved to be indemnified by primary doctor.

OUTCOME: Take-nothing judgment REVERSED.

HOLDING: Trial court on equitable claim may not make fact findings inconsistent with the jury's verdict unless in response to a post-trial motion to set aside the jury's verdict. Non-contractual indemnification is inappropriate here where the jury found implicitly that the radiologists were active tortfeasors and not merely passive. Radiologists also failed to preserve claim that any negligence by them was passive by failing to ask for a special verdict on the various plaintiff theories of liability.

Pat's Tip of the Month

Here is a source for finding the home of defendants, witnesses, etc., in the metropolitan area. As long as they own a home, it should pop up in this web site search. You have to register at the Washington Post web site, but registration is free. You can also search neighborhoods for owners' names.

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