Voir Dire: Reversible Error Not to Strike Juror with Strong Hint of Bias and Ambiguous Assertion of Impartiality

Lewis v. Voss, __ A.2d __ (D.C. 2001). Opinion by Reid, joined by Wagner; Schwelb dissenting. Trial judge: Keary.

FACTS: Defendant admitted liability for rear-ending plaintiff at stopped light. Case was tried on damages. Treating orthopedist, Dr. Robert Smith, testified that plaintiff's left knee was injured, including tear of medial meniscus, due to accident and that it worsened her pre-existing arthritis in knee. Plaintiff also called DME examiner, Dr. Kevin Hanley, who testified auto accident caused the knee problem. Defense called no witnesses. Jury returned verdict of $10,000, which was below plaintiff's special damages of $13,000. Plaintiff moved for new trial for, among other things, trial judge's failure to strike for cause a juror who said she had "negative feelings" about the tort system based on her involvement as a defendant in a suit against a school board she chaired, plus she had just read a book about frivolous lawsuits called The Death of Common Sense. Plaintiff argued that she could not use a peremptory strike against this juror because counsel had already used all three by the time this juror came to the panel, including one strike of another potential juror who had worked on tort reform issues for the D.C. Corporation Counsel. Plaintiff also contended trial court should have stricken defense counsel's closing argument that asked jury whether fact that plaintiff had filed two prior personal injury claims might have given her a motive to bring this one.

OUTCOME: Denial of new trial REVERSED and case REMANDED for new trial on damages.

HOLDING:

(1) Juror who signaled doubts about her ability to be fair and impartial should have been stricken for cause. Failure to strike was not harmless error where jury's verdict was high enough to show that it accepted causal link between accident and knee injury but was inexplicably below plaintiff's special damages. Juror's ambiguous claim that she could be impartial was not enough to overcome indications of bias, especially where trial judge asked no followup questions to resolve ambiguity.

(2) Defense counsel's argument about prior claims should have been stricken because it suggested that plaintiff may have filed frivolous or fraudulent claims in the past where there was no factual predicate to suggest anything bogus about prior claims.

Medical Negligence: National Standard of Care

Hawes v. Chua, 769 A.2d 797 (D.C. 2001). Opinion by Reid, joined by Schwelb and Farrell. Trial judge: Winfield

FACTS: In medical malpractice trial concerning management of high-risk twin pregnancy, defense expert testified that defendants had complied with the "national standard of care" without articulating specific basis for his knowledge of what the national standard was. Trial court refused plaintiff's motion to strike expert's testimony and rejected motion for new trial after defense verdict, holding that it was sufficient that the expert used the words "national standard of care."

OUTCOME: Judgment for defendant AFFIRMED.

HOLDING: Although case is "close," trial court did not commit "manifest error" in allowing expert's testimony, since the expert testified generally to his attendance at "national meetings" and awareness of standards as published in textbooks and by national bodies such as ACOG.

QUOTE:

Appellate court rejects trial judge's basis for refusing to strike and identifies three factors that must be used to assess admissibility of "national standard of care" testimony:

"(1) It is insufficient for an expert's standard of care testimony to merely recite the words ënational standard of care;'

"(2) such testimony may not be based upon the expert's personal opinion, nor mere speculation or conjecture; and

"(3) such testimony must reflect some evidence of a national standard, such as attendance at national seminars or meetings or conventions, or reference to published materials, when evaluating a medical course of action or treatment."

FOOTNOTE: Court also finds no abuse of discretion in trial court's refusal to allow cross-examination of same defense expert concerning his being insured by the same malpractice insurance carrier as the defendants. Court says there must be some "substantial connection" between the witness and the insurance carrier beyond just the commonality of coverage.

Expert Witnesses: "Frye/Daubert" Rule Only Applies to Novel Scientific Areas

Drevenak v. Abendschein, __ A.2d __ (D.C. 2001). Opinion by Reid, joined by Ruiz and Glickman. Trial judge: Gardner.

FACTS: In bench trial of medical negligence case concerning alleged improper treatment of infection following knee joint replacement, court rendered judgment for defendant. Plaintiff appealed on grounds, in part, that defense experts should have been rejected because plaintiff's experts relied on published treatises and defense experts used only their personal experience. Plaintiff argued that the court in a bench trial should have applied the standards set out in Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow, 509 U.S. 579 (1993) to assess sufficiency of defendant's evidence.

OUTCOME: Judgment for defendant AFFIRMED.

HOLDING:Frye and Daubert rules on reliability of expert testimony: (1) apply only to the admissibility of expert evidence, not its sufficiency, and (2) apply only to "novel scientific evidence or a unique controversial methodology or technique." This case deals with exercise of clinical judgment based on specialized medical knowledge, and trial court was entitled to credit defense experts who had greater personal experience in knee infections than plaintiff's experts.

QUOTE: "[T]he following factors are all relevant to assessing the reliability of an expert's testimony in a medical malpractice action: the expert's training, board certification in the pertinent medical specialty, specialized medical experience, attendance at national seminars and meetings, familiarity with published specialized medical literature, and discussions with medical specialists from other geographical areas.

Forum Non Conveniens: Abuse of Discretion to Dismiss Where Some of Wrongful Conduct Occurred in D.C.

Blake v. Professional Travel Corp., 768 A.2d 568 (D.C. 2001). Opinion by Farrell, joined by Schwelb and Reid. Trial court: Winfield.

FACTS: Plaintiff, a Maryland resident, was hired by defendant travel agency to work in its Arlington, Va., office. According to plaintiff's complaint, her supervisor, who had also hired her, began demanding sexual favors. The two ultimately had sex at the supervisor's home in the District of Columbia. Plaintiff alleges that after that, the supervisor called her repeatedly from the supervisor's D.C. home and made in-person sexual advances at various sites in D.C. Plaintiff alleges that after she demanded that the supervisor stop all pressure for sex, she was then fired at a meeting at the company's Arlington office. She sued in D.C. for violation of the D.C. Human Rights Act, D.C. Code § 1-2501. Defendants moved to dismiss on grounds of lack of subject matter jurisdiction because discrminatory acts and firing had occurred in Virginia, and also on grounds of inconvenient forum, D.C. Code § 13-425. Trial court held that it had subject matter jurisdiction because of the numerous harassing acts alleged to have occurred in the District, but dismissed the case on grounds of forum non conveniens because "Virginia has the closer ties to this litigation" and because plaintiff's choice of forum was "not more convenient."

OUTCOME: Dismissal for forum non conveniens REVERSED.

HOLDING: Trial court abused discretion in dismissing for forum non conveniens where: (1) much of alleged wrongful conduct by plaintiff's supervisor originated in District of Columbia; (2) witnesses and evidence would be at least as available in the District as in Arlington; (3) it was doubtful that Virginia court would entertain plaintiff's D.C. HRA claims. Trial judge also applied wrong standard in holding that Virginia would be the "more convenient" forum. Correct standard is whether plaintiff's chosen forum is "seriously inconvenient." See Cresta v. Neurology Center, 557 A.2d 156, 161 (D.C. 1989).

Witness Impeachment with Prior Unconvicted Bad Acts

Wagner v. Georgetown Univ. Med. Center, 768 A.2d 546 (D.C. 2001). Opinion by Glickman, joined by Steadman and Farrell. Trial court: Rankin.

FACTS: Defense counsel sought to impeach plaintiff's main expert in medical malpractice trial, based on expert's admission that he had been recommended for censure by the executive committee of the American Association of Neurological Surgeons (AANS) for "unethical practices in the giving of testimony" as an expert in another case. Witness said he was appealing the recommendation to the full membership of the AANS. Plaintiff's counsel argued that the impeachment should not be allowed since the discipline wasn't final and the full membership might exonerate the witness. Trial judge allowed the impeachment. Witness was never asked about the nature of the alleged "unethical practices." Jury found for defense.

OUTCOME: Judgment for defendant AFFIRMED in relevant part.

HOLDING: Impeachment of witness for prior bad acts that did not result in criminal conviction is allowed where (1) examiner has factual predicate for the question, and (2) the bad act "bears directly upon the veracity of the witness in respect to the issues involved in the trial" (quoting Portillo v. U.S., 609 A.2d 687, 690-91 (D.C. 1992)), as long as trial court finds that probative value of evidence is not substantially outweighed by danger of unfair prejudice. Here, plaintiff's failure to challenge factual predicate at trial disqualifies plaintiff from alleging on appeal that trial judge should have inquired and made specific findings about the factual predicate. Court presumes that since plaintiff's counsel knew about the impeachment in advance, counsel's failure to raise arguments about the lack of relevance was an informed decision.

PRACTICE NOTES: Don't overlook extrinsic ev idence rule to minimize damaging impeachments. In footnote 22 of opinion, court notes that defense counsel arguably violated the rule that no e xtrinsic evidence may be used to prove a prior bad act that did not result in criminal conviction. See Sherer v. U.S., 470 A.2d 732, 738 (D.C. 1983); Fed. R. Evid. 608(b). Counsel arguably should have been allowed to ask the witness only whether he had testified unethically in such-and-such trial, not whether the AANS had recommended his censure for such conduct. Court quotes U.S. v. Davis, 197 F.3d 662, 663 n.1 (3d Cir. 1999), which in turn quoted Professor Saltzburg: "ëCounsel should not be permitted to circumvent the no-extrinsic-evidence provision ... by tucking a third person's opinion about prior acts into a question asked of the witness who denied that act.'" Court says it won't address issue here since plaintiff did not challenge the impeachment on that ground.

IN BRIEF

Plaintiff Does Not Have to Give Statutory 6-month Claim Notice to District Government When Plaintiff Is Suing D.C. Employee Individually: George v. Dade, 769 A.2d 760 (D.C. 2001). Opinion by Reid, joined by Wagner and Glickman. Facts and Holding: Plaintiff sued D.C. General Hospital employee doctor for negligence. Doctor moved to dismiss on grounds that statutory notice under D.C. Code § 12-309 was not given. Appeals court affirms trial court's refusal to dismiss. Court holds that plain language of section 12-309 does not require notice be given to the District when an employee is being sued, even for acts within the employee's scope of employment, and even when the employee is entitled to be indemnified by the District under D.C. Code § 1-1215(b). Court notes that section 1-1215(b) expressly contemplates that medical employees of the District will be sued, since it requires D.C. to indemnify them if they are not covered by insurance purchased by the District. In contrast, section 1-1215(a) requires that suits against individual D.C. employees be dismissed and the District substituted as a defendant only where the claim arises from the employee's negligent operation of a vehicle.

Payment of Traffic Ticket Not Admissible against Payer in Civil Action for Personal Injuries:Johnson v. Leuthongchak, __ A.2d __ (D.C. 2001). Opinion by Steadman, joined by Glickman and Washington. Facts and Holding: In personal injury suit arising from two-car crash, defendant offered into evidence fact that plaintiff had paid by mail a traffic ticket given to him at the scene for failing to yield the right of way. Trial court rejected evidence and jury found for plaintiff. Appeals court affirms, holding that formal pleas of guilty to traffic offense are admissible, but mere payment of a fine by mail is not admissible, following the apparently unanimous rule around the country.

D.C. Inmates Have No Implied Cause of Action for Money Damages for Wrongful Administrative Segregation: Coates v. Elzie, 768 A.2d 997 (D.C. 2001). Opinion by Farrell, joined by Ruiz and Washington. Facts and holding: Plaintiff was a Lorton prisoner who was transferred to administrative segregation on grounds he had incited a work stoppage. Warden overruled adjustment board's decision that facts did not warrant removing plaintiff from general prison population. Plaintiff sued for violation of his rights under Lorton Regulations Approval Act of 1982. Superior Court judge agreed that warden had violated plaintiff's rights by removing him from general population without a finding, required by 28 DCMR 521.4, that he constituted a clear and present threat to the safety of himself or others or a definite escape risk. Plaintiff then amended his complaint to seek money damages for wrongful segregation. Trial judge dismissed, holding that LRAA gave no right of action for damages. Appeals court AFFIRMS but holds that plaintiff might have had a right to damages if violation had risen to the level of a 42 U.S.C. § 1983 violation.