Low-Ball Verdict Vacated Where Plaintiff Couldn't Depose Defense Experts

Mizrahi v. Schwarzmann, __ A.2d __ (D.C. 1999). Opinion by Steadman, joined by Wagner and Schwelb. Motions judge: Abrecht; trial judge: Satterfield.

FACTS: Auto accident case focused on plaintiff's allegation that she had suffered mild closed head injury with post-concussion syndrome, post-traumatic stress disorder and other injuries as a result of rear-ender. Plaintiff had six medical experts testify at trial; defense had three. Defense experts -- Drs. Gordon (orthopedics), Mendelsohn (neurosurgery) and Henderson (psychiatry) -- maintained that plaintiff's injuries were only orthopedic and should have resolved within six weeks of collision. Defense demanded four, then six "IME" examinations; plaintiff offered to undergo two. Court ultimately ordered plaintiff to undergo two IMEs plus one already done for a total of three, but court refused to let plaintiff reopen discovery to depose the three experts. Court said instead that experts would be limited to the four corners of their reports. Parties went to trial with defense having deposed all of plaintiff's medical experts and plaintiff having deposed none of the defense experts. Jury found for plaintiff but awarded only $8,000 in damages.

OUTCOME: Judgment VACATED and new trial ordered.

HOLDING: Trial court abused its discretion in not giving plaintiff time to depose defense damages experts, where:

A. Depositions are a critical trial preparation tool, and the plaintiff was prejudiced by the imbalance of not getting a chance to depose any of the defense experts while the defendant deposed all of the plaintiff's experts;

B. Plaintiff was "within her rights" to try to limit IME examinations to what she thought was a reasonable number, and the fact that the trial court split the difference between the parties' positions on the number of IMEs to be allowed shows there was no clearly unreasonable intransigence on plaintiff's part;

C. There was plenty of time to depose the defense experts before mediation or trial;

D. The court has an "institutional preference for fully informed decisions based on the merits."

COMMENT: Court cites five factors laid out in Dada v. Children's National Medical Center, 715 A.2d 904, 909 (D.C. 1998) in deciding appropriateness of limiting discovery as a sanction.

Bus Accident: Jury Not Required to Believe Driver's "Phantom Car" Story Even Though Plaintiff Couldn't Specifically Contradict Driver

Cross v. WMATA, __ A.2d __ (D.C. 1999). PER CURIAM (Wagner, Steadman and Ruiz). Trial judge: Alprin.

FACTS: Bus passenger sued for injuries sustained after boarding her regular bus. Passenger testified the bus was about 15-20 minutes late, and the driver sped away from the stop before she had a chance to sit down, then stopped suddenly while she was still in the aisle with her back to the front of the bus. Driver testified that she was only a few minutes behind schedule, had come to a complete stop at another intersection some three to five minutes after the passenger boarded, and then was barely underway again before she stopped because an unknown car was running the light in front of her. Plaintiff impeached the bus driver with various contradictions between her trial and deposition testimony. Court granted WMATA's motion for directed verdict at close of plaintiff's case, on ground that the driver's story that she was cut off by an unknown driver was uncontradicted (since plaintiff's back was turned and so she couldn't see what caused the driver to stop), and therefore there was no liability because the driver had to stop for a sudden emergency.

OUTCOME: Directed verdict for defense REVERSED and remanded for new trial.

HOLDING: Reasonable jury could have rejected driver's claim that she was confronted by phantom vehicle, since there were material differences between the driver's story and passenger's story and the driver was impeached on significant parts of her testimony. Jury could have credited passenger's account about the speed of the bus and the passenger's contention that the bus made no interim stop before the sudden stop, especially in light of the testimony that the bus was behind schedule.

COMMENT: Import of holding is that a plaintiff can effectively counter a defendant's "uncontradicted" defense with testimony that undercuts the defendant's general credibility, even if plaintiff cannot contradict the specifics of the defense.

Special Verdict Form Must Be Requested to Preserve Error on a Specific Claim or Defense

Newell v. District of Columbia, __ A.2d __ (D.C. 1999). Opinion by Reid, joined by Steadman and Farrell. Trial judge: G. Mitchell.

FACTS: Pregnant school secretary slipped and fell on icy sidewalk in front of her school. Her son was later born prematurely and died. Plaintiff parents brought a survival and wrongful death action on premature baby's behalf. Plaintiffs presented testimony at trial that fall was direct cause of baby's prematurity and death. Defense, however, presented evidence that mother had history of miscarriages and other difficulties. Court refused to instruct jury in accordance with then standard instruction 5-15 (now 5-16) to the effect that the parent's contributory negligence could not be imputed to the child. A general verdict form then was used, and the jury found for the defendant.

OUTCOME: Verdict for defendant AFFIRMED.

HOLDING: Since jury could have properly found for defendant on another defense theory (proximate cause) whose sufficiency wasn't challenged by the plaintiff, the plaintiff failed to preserve appealable error on the failure to give the instruction limiting the contributory negligence defense.

QUOTE: "[W]e hold that not only is counsel in a civil case required to request a special verdict form to preserve a claim of error relating to fewer than all of the theories of liability (or defenses thereto) on which the jury permissibly could have based its verdict, but that in requesting a special verdict form, counsel must state the request with sufficient precision to indicate the specific interrogatories that should be included in the special verdict form, object to their noninclusion, and include the proposed special verdict form in the record on appeal."

COMMENT: Court follows Nimetz v. Cappadona, 596 A.2d 603 (D.C. 1991), and Robinson v. Washington Internal Med. Assocs., 647 A.2d 1140 (D.C. 1994).

BOTTOM LINE: To preserve for appeal a contention that other side is using an improper theory, the complaining party MUST propose a specific jury interrogatory addressing that claim or defense. Otherwise, appellate court can't know if the jury really relied on the impermissible theory.