Personal Jurisdiction: Nexus between Defendant's Conduct in D.C. and Plaintiff's Claim Need Not Be Tight

Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C. 2000). Opinion for en banc court by Reid, joined by Terry, Farrell and Ruiz; Wagner, Schwelb and Steadman dissenting. Trial judges: Duncan-Peters and Hamilton.

FACTS: D.C. resident slipped and fell on okra in a Takoma Park, Md., Shoppers Food Warehouse. Plaintiff sued Shoppers in D.C., arguing for personal jurisdiction, despite its lack of any stores in the District, based on its extensive advertising in the Washington Post and the D.C. Yellow Pages. Newspaper ads solicited D.C. residents with slogans such as, "No matter where you live ... it's worth the drive!" Plaintiff conceded that none of the advertising in D.C. caused her to shop at the Maryland store, which was about two miles from her D.C. residence. Trial court found personal jurisdiction over Shoppers under section 1 of the D.C. "specific jurisdiction" (long-arm) statute, D.C. Code § 13-423, which provides for personal jurisdiction over any person "who acts directly or by an agent, as to a claim for relief arising from the person's - (1) transacting any business in the District of Columbia." D.C. Code § 13-423(a)(1). Major legal fight in the case centered on whether the plaintiff had met the "nexus" requirement in the "arising from" language in section 13-423(a) and also section 13-423(b), which states: "When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him."

OUTCOME: Judgment for plaintiff AFFIRMED.

HOLDING: The "arising from" requirement of the statute does not mean that the defendant's forum-based conduct must be a proximate cause of the plaintiff's injury, but means only that the plaintiff must show that the forum-based conduct was "related to or had a discernible relationship to" the injury. Here, it was enough that Shoppers deliberately solicited D.C. residents to come to its Maryland stores and thus could reasonably anticipate being sued by a D.C. resident for an injury. Fact that plaintiff did not see the ads is not dispositive because the jurisdictional focus should be on the defendant's conduct, plus the long-arm statute's purpose is "to afford District residents broad access to our courts limited only by due process considerations."

Personal Jurisdiction: Virginia Doctors May Be Sued in D.C. if Conduct Meets "Flexible Nexus" Test

Etchebarne-Bourdin v. Radice, 754 A.2d 322 (D.C. 2000). Opinion by Ruiz, joined by Reid; Steadman concurs in the result. Trial judge: Kramer.

FACTS: D.C. residents sued Virginia obstetricians over baby's still birth one month before due date. Allegations focused on plaintiff mother - having been injured in a car accident in D.C. - receiving negligent advice by telephone from the doctors' Virginia office that she did not need an immediate examination, and then subsequent failure at two regular pre-natal exams at Virginia office to conduct proper testing that would have allegedly showed need to immediately deliver baby. Doctors resided in Virginia and did all examinations at their Virginia office. Both had licenses in both Virginia and D.C. (where they practiced until moving to Virginia in 1988). Court found "persistent course of conduct" in D.C. by the doctors based on their attending grand rounds and Washington Gynecological Society meetings a total of one to three times per month. Doctors also advertised in D.C. Yellow Pages and at the health center where plaintiff worked (although plaintiff went to these doctors based not on the ads but on a personal referral).

OUTCOME: Dismissal for lack of jurisdiction REVERSED and REMANDED to trial court for consideration in light of Shoppers Food Warehouse v. Moreno.

HOLDING:

(1) Fact that plaintiff did not rely on doctors' advertising to become their patient is not necessarily dispositive of "flexible nexus" test of relationship between defendants' forum-related conduct and plaintiffs' injury, since the doctors had other contacts with the District besides their advertising (licensing and attending professional meetings).

(2) Plaintiff also might meet test of section 4 of D.C. Code § 13-423(a) (providing jurisdiction over a person "causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if the person reglarly does or solicits business, or engages in any other persistent course of conduct ... in the District." This will depend on court's analysis of whether initial tortious injury may have occurred in telephone contact when plaintiff was in D.C., even though tortious conduct later impacted on the plaintiff in doctors' Virginia office.

New Trial Granted for Newly Discovered Evidence Where New Doctor After Trial Finds Objective Evidence for Plaintiff's Pain

Madison v. Superior Iron Works, 746 A.2d 343 (D.C. 2000). Opinion by Terry, joined by Ruiz and Reid. Trial judge: Gardner.

FACTS: Madison suffered a neck injury at a construction site which caused pain in his neck and right shoulder and occasional numbness in his right hand. He stopped working three years later after visits to numerous doctors at the University of Virginia Hospital for pain relief never helped. A new treating doctor opined that he was permanently disabled from work, but plaintiff was denied leave to add other new damages experts based on that because the new doctor's opinion was not given until a year after expert disclosures had been due. The new doctor was allowed to give limited testimony at trial about his treatment of the plaintiff and the relationship between the job injury and his current pain. The defense at trial presented the testimony of the prior doctor from UVA, who opined that the plaintiff had never suffered any serious injury. Just before trial, the patient began treatment with an anesthesiologist specializing in pain management, who performed new tests shortly before and then shortly after trial (a nerve block and a discography) which he said proved objectively that a disc herniation at C6-C7 was causing the plaintiff's chronic pain. In the meantime, the jury, which did not hear this new evidence, found for the plaintiff on negligence but for the defense on causation. Trial judge denied a motion for new trial based on newly discovered evidence and based on failure to grant pretrial motion for continuance.

OUTCOME: Judgment for defendant REVERSED and case remanded for new trial on causation and damages.

HOLDING:

(1) Anesthesiologist's findings of an objective basis for plaintiff's pain constitute newly discovered evidence warranting new trial. Evidence meets the legal standard of likely producing a different outcome. Court finds it "highly significant" that anesthesiologist was the first doctor to succeed in giving the plaintiff some pain relief and was able to provide objective basis both for plaintiff's pain and for incorrectness of his prior, unsuccessful treatment at UVA.

(2) Trial court should allow plaintiff at new trial to add other expert witnesses on his future wage loss and need for continuing treatment.

Voluntary Dismissal: No Third Chance Allowed for Plaintiff

Waters v. Castillo, 755 A.2d 478 (D.C. 2000). Opinion by Belson, joined by Steadman and Glickman. Trial judge: Zeldon.

FACTS: Three victims of auto accident in District of Columbia filed their suit by attorney's error in Montgomery County, Maryland. When error was noticed, they dismissed voluntarily before summons was served on defendant, and refiled in Prince George's County District Court. Then they filed another suit in Superior Court of D.C., and filed a voluntary notice of dismissal of the Prince George's action. Superior Court then dismissed because of rule that a second voluntary dismissal constitutes "an adjudication upon the merits." Md. Rule 3-506(c). Superior Court Civil Rule 41 is to the same effect, both jurisdictions applying the two dismissal rule of Fed. R. Civ. P. 41.

OUTCOME: Judgment for defendant AFFIRMED.

HOLDING: Plaintiff cannot get around the two-dismissal rule because the first suit was filed erroneously in the wrong jurisdiction, or because the first dismissal was entered before the defendant was served. Because the second dismissal constituted an adjudication on the merits in Maryland, that dismissal has res judicata effect barring subsequent suit in D.C.

COMMENT: Plaintiff could have avoided disaster by asking Prince George's court to stay the action until the conclusion of the Superior Court case, instead of dismissing it. If defendant opposed a stay, plaintiff could then have asked PG court to condition any dismissal on plaintiff's right to proceed with D.C. case.

Medical Malpractice: Plaintiff Should Not Have Been Allowed to Add New Liability Theory During Rebuttal

George Washington University v. Lawson, 745 A.2d 323 (D.C. 2000). Opinion by Farrell, joined by Steadman and Ruiz. Trial judge: Eilperin.

FACTS: Plaintiff sued plastic surgeon and surgeon's employer for amputating the upper part of her right ring finger without obtaining a definitive diagnosis that a growth on the fingertip was cancerous. In defense case, pathologist who examined tissue initially testified that she had thought that the growth was more likely than not malignant and had recommended it be completely removed. Claiming this was substantially different from pathologist's deposition testimony, the plaintiff called in rebuttal a forensic pathologist to opine that any such advice given to the surgeon by the original pathologist that the lesion was cancerous would itself have been negligent. Jury then found for plaintiff in a general verdict and awarded $2,950,000 in damages. (Damages testimony had been that amputation of part of finger caused loss of use of several adjoining fingers.) Trial court remitted verdict to $1,035,000. Both sides appealed.

OUTCOME: Judgment for plaintiffs for reduced amount of $1,035,000 AFFIRMED.

HOLDING:

(1) (A) To be proper rebuttal, testimony must meet (a) new evidence that (b) could not have been reasonably anticipated. Plaintiff's expert witness statement before trial anticipated the possibility of this second theory of liability, and fact that defense witness changed her testimony did not make it new enough and surprising enough to justify injecting additional liability theory into rebuttal.

(1)(B) However, defendant was not unfairly prejudiced by new liability theory inasmuch as new theory was not emphasized in closing argument and defendant failed to ask for a special verdict form isolating the new liability theory.

(2) Trial judge was within his discretion in remitting verdict on grounds of skepticism about special damages for inability to obtain a job and difficulty in doing household services and because even accepting all special damages, jury awarded nearly $2 million in pain and suffering damages to a plaintiff who was not in any current physical pain.

BRIEFS

Trial court erred in directing a verdict against a plaintiff who fell through a hole in plywood covering a trench dug through a sidewalk. Plaintiff had sued contractor who was relocating gas lines and had dug the trench. Directed verdict was based on plaintiff's failure to prove that the contractor had a duty, as opposed to the gas company, to cover the trench, and plaintiff's failure to call an expert on the standard of care and prove "notice" to the defendant. Rejecting all defense arguments, the Court of Appeals held that: (1) a contractor who creates a danger to pedestrians owes an independent duty to them regardless of its contract with the utility company; (2) plaintiff did not need an expert about how to fashion plywood sidewalks in a safe manner; (3) plaintiff could rely on his own evidence that the plywood had been in the same condition for months, plus the fact that the contractor's employees were regularly at the job site. Bostic v. Henkels and McCoy, Inc., 748 A.2d 421 (D.C. 2000).

Trial court erred in directing a verdict against a plaintiff whose expert failed to quantify difference between pre-injury and post-injury headaches. Because the expert was able to distinguish qualitatively between the plaintiff's pre-injury tension headaches and post-injury migraines, it wasn't necessary that the expert differentiate the two in a quantitative way. Court distinguishes Williams v. Patterson, 681 A.2d 1147 (D.C. 1996) and says the defendant overread that case to require a plaintiff to quantify the extent to which the negligent act has aggravated the previous injury. In any case, migraines are different enough from tension headaches that this case involved not an aggravation but a new and separate injury. McLeish v. Beachy, 746 A.2d 892 (D.C. 2000).