Butera Appeal: $97 Million Vacated, $1 Million Affirmed

Butera v. District of Columbia, __ F.3d __ (D.C. Cir. 2001). Opinion by Rogers, joined by Edwards and Garland.

FACTS: Eric Butera, age 31, went into a crack house in Southwest Washington in 1997 on an undercover drug buy for Metropolitan Police Department detectives who thought Butera might have a lead on the Starbucks triple murder. Detectives dropped off Butera near the house but did nothing to monitor his safety while on the premises and violated standard practices for conducting such an operation. Butera was beaten to death by unknown assailants outside the house. His body was discovered 40 minutes later by uniformed police called to the scene by a 911 call. Butera's mother sued the District and the four police officers who set up the undercover operation. She alleged that the defendants had recklessly failed to provide adequate protection for her son and in the process violated her son's and her own civil rights under 42 U.S.C. § 1983. Jury awarded $98.1 million in damages.

OUTCOME: Judgment for compensatory and punitive damages (against individuals only) on common-law claims AFFIRMED; judgment for all civil rights violations and punitive damages against the District REVERSED.

HOLDING:

(1) Eric Butera's civil rights claim ($36 million verdict): Trial court erred in too broadly defining the alleged due process constitutional right as one to "life." Proper definition of alleged constitutional right was to protection by the government from third-party violence, the risk of which the government had created or enhanced. This right, also known as the "state endangerment" rule, may or may not have existed in D.C. in 1997; however, this right was not so clearly established that a reasonable police officer should have known that his conduct violated that right. Therefore the police officers had qualified immunity.

(2) Mother's civil rights claim ($34 million): Mother's claim of constitutional due process right to companionship of an adult son living independently fails because there is no such right. Cases relied on by plaintiff all concerned the rights of parents to raise their minor children.

(3) Punitive damages against D.C. ($27 million): Municipality is liable for punitive damages only on showing of "extraordinary circumstances," which was defined in Daskalea v. D.C., 227 F.3d 433 (D.C. Cir. 2000), to mean circumstances where taxpayers are directly responsible for perpetrating the policies that caused CHECK CHECKCCssssplaintiff's injuries or where government policy makers intentionally adopted an unconstitutional policy that caused the injury. No such showing was made here. Fact that police department failed to discipline officers doesn't prove official policy.

(4) Survival act/wrongful death damages ($530,000): Verdict affirmed. Plaintiff's expert had ample evidence in written manuals and otherwise of the national standard of care for such operations. Judge's refusal to let the District substitute another expert for the perjurious Johnny St. Valentine Brown was not abuse of discretion, especially in light of District's multiple admissions of the negligence of its officers.

(5) Punitive damages against officers ($570,000): Verdict affirmed under common-law principles for personal liability for punitive damages. Reasonable jury could find that police officers acted recklessly toward Eric Butera's safety. They failed even to analyze if they needed to use a civilian and failed to take obvious minimal steps to assure his safety. They also failed to warn him fully of the risk and gave him false assurances that they would watch and protect him. Jury could reasonably infer that officers were motivated by effort to solve the high-profile Starbucks case and thereby advance their own careers.

NOTE: Reversal on all civil rights theories likely will destroy plaintiff's claim for several million dollars in attorney fees under federal statute allowing for fees to winning plaintiffs in civil rights cases. Only surviving verdicts were under common-law negligence and reckless conduct theories.

Closing Argument: Not Improper to Mention Dollar Amounts as Hypothetical Questions to Jury

Hechinger Co. v. Johnson, __ A.2d __ (D.C. 2000). Opinion by Wagner, joined by Steadman and Ruiz. Trial judge: Huvelle.

FACTS: Plaintiff, a lawyer, was buying lumber at a Maryland Hechinger's. Some other customers gave him some scrap pieces that they had cut off their own purchased lumber. Cashier told him he would have to pay for these scraps and then summoned a supervisor. A man wearing a Hechinger shirt then came over, argued with plaintiff, and pushed him in the chest, knocking him down. Plaintiff hit his head and suffered subdural hematoma that resulted in permanent brain damage. Plaintiff contended it ruined his career as a lawyer. (Assailant was never identified in discovery.) In final argument, plaintiff's counsel told the jury that he couldn't tell them what the injuries were worth. "I can't tell you if it is a million dollars, if it is two million dollars, or if it is three million dollars. That is for you to decide." Lawyer then walked jury through the standard instruction on personal injury damages. Jury awarded plaintiff $2 million.

OUTCOME: Verdict AFFIRMED.

HOLDING:

Plaintiff's argument carefully tracked one that the court had found not improper in District of Columbia v. Colston, 468 A.2d 954 (D.C. 1983). Since counsel did not directly violate the rule against asking for a specific dollar amount, and since counsel referred the jury to the instructions on damages, and since the jury was properly instructed that their verdict must be based on the evidence and statements of counsel are not evidence, argument was not improper.

COMMENT: Panel states in footnote 2 of opinion: "As long as the rule prohibiting a specified dollar amount argument obtains in this jurisdiction, parties seeking to walk a fine line between the permissible and the impermissible in argument place their verdicts at risk with the potential for costly retrials. Rather than continue these risks as skillful counsel continue to find new ways to suggest figures to the jury without violating the rule, the en banc court may have to consider the continued validity of the prohibition."

Experts: Failure to Articulate a Standard of Care

Derzavis v. Bepko, __ A.2d __ (D.C. 2000). Opinion by Terry, joined by Richter (sitting by designation); Wagner dissenting. Trial judge: Alprin.

FACTS: Plaintiff contended that defendant gynecologist injured her when he used a "Cytobrush" to take a Pap smear. Cytobrush is a bottle-brush-like device inserted into the cervix. Plaintiff contended that when defendant took the smear, she felt sharp pain and noticed blood all over the Pap slide and on defendant's hand. Later review of slide found no blood. Plaintiff's expert said that defendant was obligated to either follow manufacturer's directions for using the brush or learn how to use it from an experienced gynecologist, and that from plaintiff's description, he had evidently been too rough in use of the brush. Plaintiff went to a number of doctors afterward who found nothing wrong other than some mild tenderness in her cervix. All told she sought treatment from 20-some doctors, several of whom testified at trial for the defense that she yelled and screamed at them and behaved bizarrely. Defense psychiatrist said she had a "somatoform disorder," that converted psychological injuries into physical ones, plus a histrionic personality disorder. At trial some six years later, plaintiff contended she still had daily pain that severely limited her daily activities. Jury awarded $500,000. Trial court then granted judgment as a matter of law to defendant, observing among other things that plaintiff's alleged injury was unique among the hundreds of millions of women exposed to the Cytobrush.

OUTCOME: Judgment as a matter of law for defendant AFFIRMED.

HOLDING:

(1) Expert failed to articulate standard of care because expert said that manufacturer's written instructions "comported with" standard of care but failed to define what that standard was.

(2) Expert failed to show that defendant violated standard of care by inserting the Cytobrush one bristle further than package insert suggested.

(3) Causation cannot be proven based solely on the temporal relationship between the medical procedure and the injury, citing Lasley v. Georgetown Univ., 688 A.2d 1381, 1387 (D.C. 1997).