Proximate Cause: "Loss of a Chance" Doctrine Rejected -- for Now

Grant v. American Nat'l Red Cross, __ A.2d __ (D.C. 2000). Opinion by Farrell, joined by Schwelb and Washington. Motions judge: Braman.

FACTS: Plaintiff received a blood transfusion at Children's Hospital in 1982 which infected him with the Hepatitis C virus. Source of the virus was ultimately traced to a unit of blood provided to the hospital by the Red Cross. At the time the blood was obtained, existence of the Hepatitis C virus was suspected, but virus itself had not yet been identified, and so there was no way to screen blood for it. However, it was known that up to 30 percent of blood donors carrying the virus would have elevated levels of the liver enzyme ALT in their blood, so some authorities advocated ALT testing as a "surrogate marker" for viral infection. Plaintiff conceded that because only 30 percent of the donors with Hepatitis C would have been rejected if the ALT testing had been used, he could not prove it was "more likely than not" that the infected unit of blood that he received would have been rejected by such testing. He advocated a legal test based on "loss of a substantial chance" of avoiding the injury. Trial court granted summary judgment for Red Cross.

OUTCOME: Summary judgment for defendant AFFIRMED.

HOLDING: District of Columbia still applies the "more likely than not" test of proximate cause. Only the en banc Court of Appeals can change that test. Plaintiff reads too much into the holding in Ferrell v. Rosenbaum, 691 A.2d 641 (D.C. 1997), which properly understood did not ease the burden of proof across the board. Court relies on, among others, Fennell v. Southern Md. Hosp. Center, 580 A.2d 206 (Md. 1990) (rejecting "loss of chance" doctrine in Maryland).

COMMENT: Court leaves open the door for "loss of a chance" in a case where plaintiff alleges that the negligence caused a curable condition to become incurable. In that situation, the harm has come about from the confluence of a pre-existing condition and the actor's negligence. Grant court: "In such a case, the lost chance doctrine may well make sense because of the difficulty of differentiating between the consequences of a pre-existing condition and those flowing from the negligent failure to ameliorate it." But in this case, Grant received a new injury from the transfusion unrelated to the condition for which he was being treated.

Damages: Fear of Cancer Recurrence Justified $1.5 Million Award

Bond v. Ivanjack, __ A.2d __ (D.C. 1999). Opinion by Reid, joined by Steadman and Schwelb. Trial court: Braman.

FACTS: Plaintiff Ivanjack was referred to defendant ear-nose-throat specialist Bond for persistent ear infection and pain that spread to neck and throat. After several visits with increasing pain, plaintiff ultimately went to another ENT doctor who found a nasopharyngeal cancer. Plaintiff sued, alleging that three-month delay caused cancer to spread to adjacent bone. At trial, she had been in remission for six years, but her experts testified she would need close monitoring for five to ten more years because of a substantially higher risk of relapse than if the cancer had been diagnosed earlier. Damages were claimed for past and future emotional distress and physical pain. Jury awarded $2.2 million in general damages, neither party having requested a categorization of damages. Trial judge remitted to $1.5 million.

OUTCOME: Judgment for plaintiff in reduced amount AFFIRMED.

HOLDING: Plaintiff had adequate evidence to support remitted judgment of $1.5 million, inasmuch as plaintiff had testified to intense physical pain during the three months when discovery of cancer was delayed, and her fear of cancer recurrence was grounded in proof that physical condition had worsened and risk of recurrence had increased due to delay. Case was not comparable to other "fear of cancer" cases where courts are more concerned about jury speculation, because those cases usually involve a toxic exposure where the plaintiff does not yet have any cancer. Fact that trial judge acknowledged that verdict was in part based on "passion and bias" against the defendant was not a reason to interfere with the trial judge's decision that reduction of verdict by $750,000 would adequately cure the improper part of the verdict.

COMMENT: Plaintiff also had invited court to extend its holding in Nimetz v. Cappadona, 596 A.2d 603 (D.C. 1991), which held that a party who complains that a theory of liability -- or defense, see Robinson v. Washington Internal Med. Assocs, 647 A.2d 1140 (D.C. 1994) -- was improperly submitted to the jury, must preserve the error by asking for a special interrogatory to determine if the jury in fact relied on the improper liability theory or defense. Court in Bond refuses to extend this doctrine to a case where the defendant was asserting insufficient evidence on some of the categories of damages sought by the plaintiff.

Professional Rescuers' Doctrine Doesn't Immunize Independent Tortfeasors

Melton v. Crane Rental Co., __ A.2d __ (D.C. 1999). Opinion by Washington, joined by Steadman and Newman. Motions court: Lopez.

FACTS: Melton was an emergency medical technician riding in the back of an ambulance taking a pregnant woman to the hospital with sirens and lights activated. Ambulance was struck at an intersection by a truck crane owned by the defendant. Trial court granted summary judgment to defendant on grounds that the "professional rescuers' doctrine" barred recovery for an emergency medical technician who was injured while acting in the scope of his employment.

OUTCOME: Summary judgment for defendant REVERSED.

HOLDING: Professional rescuers' doctrine (also called "fireman's rule"), which grows out of assumption of risk doctrine, only bars the rescuer from recovering damages from persons whose negligent acts occasioned the rescuer's presence at the scene. A third party's negligence remote from the scene of the rescue and unrelated to the cause of the emergency is an exception to the doctrine. Court follows case law of Maryland, Virginia and all other jurisdictions to consider the issue. See Tucker v. Rio Vista Plaza, 713 A.2d 884 (Md. 1999); Benefiel v. Overstreet, 422 S.E.2d 773 (Va. 1992).

Damages: Remittitur Reversed Where Original Verdict Was Within Range of Lost Profit Projection

Tri County Industries, Inc. v. District of Columbia, __ F.3d __ (D.C. Cir. 2000). Opinion by Henderson, joined by Edwards and Silberman.

FACTS: Plaintiff obtained building permit from District to convert empty warehouse into facility to decontaminate soil tainted with oil and other hazardous substances. District subsequently revoked building permit after community opposition to facility. Plaintiff then abandoned plans for facility and sued District for violating its Fifth Amendment due process rights. Court of Appeals previously held that District did violate due process and remanded for trial on damages. Jury then awarded $5 million at first trial after Tri County put on estimates of $11 million in lost profits from its operations that never had gotten underway. Trial court remitted award to $1 million, which plaintiff refused, and then on second trial jury awarded damages of $100 after District was allowed to put on evidence of community opposition that was not allowed in first trial.

OUTCOME: Order granting new trial REVERSED and original jury verdict of $5 million reinstated.

HOLDING:

(1) Trial court erred in holding post-trial that plaintiff's failure to mitigate damages by challenging suspension of building permit was per se unreasonable. Court holds that mitigation of damages is jury issue.

(2) Trial court erred in finding that lost profits award of $5 million "shocked the conscience" where plaintiff's experts estimated lost profits at $11 million. Where party proves fact of injury, proof of amount of injury may be based on reasonable estimate.

COMMENT: Court quotes with approval Supreme Court antitrust case on proof of lost profits: "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.... 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 the damages as a matter of just and reasonable inference, although the result be only approximate." Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931).