his memory of the events that occurred is somewhat hazy. In light of all of these things, the Court must agree with defendant that plaintiff's otherwise unsupported story about this wheelchair accident is incredible, and find that this accident did not occur.
To be sure, even if the Court were to find that the accident did occur (which it does not), the Court has no expert evidence from plaintiff establishing that the accident could or did cause the type of neck fracture plaintiff incurred. Plaintiff proposed to put on an expert witness to this effect prior to the close of his case, but failed to do so at the time scheduled for this testimony. Instead, plaintiff merely introduced several written articles on the subject of neck fractures, which defendant had already rebutted prior to trial with an affidavit from Dr. Bruce Ammerman. Also critical for plaintiff on the question of causation was his own testimony as to the point of impact on his head. Plaintiff's trial testimony on this was, like his testimony about the entire wheelchair incident, at variance with prior statements he had made. Without proof of the critical element of causation, there can be no liability for negligence. Logsdon v. Baker, 170 U.S. App. D.C. 360, 517 F.2d 174 (D.C. Cir. 1975) (per curiam); Hicks v. United States, 167 U.S. App. D.C. 169, 511 F.2d 407 (D.C. Cir. 1975). Thus, the Court finds that plaintiff has not shown by a preponderance of the evidence that the accident he alleges to have occurred was the cause of the fracture to his neck.
IV. PLAINTIFF CANNOT RECOVER FOR HIS NECK FRACTURE UNDER THE DOCTRINE OF RES IPSA LOQUITUR.
Plaintiff has also attempted to demonstrate defendant's responsibility for his neck fracture through the doctrine of res ipsa loquitur. Under this doctrine, plaintiff must show that his injury (1) ordinarily would not have occurred in the absence of some negligence, (2) was caused by an agency or instrumentality within the exclusive control of defendant, and (3) is not due to any voluntary action or contribution on his part. Quin v. George Washington University, 407 A.2d 580 (D.C. App. 1979). Plaintiff contends that his neck fracture ordinarily would not have occurred in the absence of some negligence, that he was within the exclusive control of defendant at the time it occurred, and that there is no evidence it was caused by his own voluntary action. In support of his contention that the injury occurred while he was at St. Elizabeth's, plaintiff relies on his Hospital records, which reflect none of the symptoms of a neck fracture prior to the morning of June 16, 1980, yet repeated complaints of those symptoms at all times thereafter.
Defendant retorts that plaintiff has not persuasively established the time and place of the injury. It notes that plaintiff offered to present expert testimony that the injury occurred at St. Elizabeth's, but then never produced the expert. If the time and place of the injury are not established, however, plaintiff cannot show that the injury occurred while he was in defendant's exclusive control. It may have occurred before he came to the Hospital, perhaps as much as two months before, when he rammed his head into a door and was then beaten by police. Defendant also correctly notes that plaintiff needs expert testimony to establish that his fracture would not have occurred in the absence of negligence, since the fracture was of a somewhat rare kind, not clearly within lay ken. See Quin, supra. Third, it is not completely clear that plaintiff did not contribute to the injury, inasmuch as he stated at one time that he incurred the injury while doing exercises at St. Elizabeth's. Accordingly, the Court finds that plaintiff has not shown that he is entitled to relief under the doctrine of res ipsa loquitur.
V. PLAINTIFF HAS NOT ESTABLISHED A NEGLIGENT FAILURE TO DIAGNOSE BY DEFENDANT.
Finally, plaintiff alleges that defendant negligently failed to diagnose his neck fracture during the course of his confinement at St. Elizabeth's, thus compounding the injury to his neck. He alleges that he repeatedly complained of all the symptoms of such a fracture starting on the afternoon of June 16, 1980 and continuing until he was discharged from the Hospital. Nonetheless, his fracture was not properly diagnosed until he went to the Washington Hospital Center on June 30, 1980.
Once again, defendant counters that plaintiff has not established the applicable standard of care for negligent diagnosis through the necessary expert testimony. See Haven, supra. Plaintiff offered to do so, but then did not. Defendant also reiterates that the time of the injury has not been persuasively established. Moreover, there was testimony that the symptoms plaintiff exhibited at St. Elizabeth's were explainable as side effects from the drug Haldol, rather than simply and unequivocably suggesting neck fracture. Accordingly, the Court finds that plaintiff has failed to show by a preponderance of the evidence that defendant negligently failed to diagnose a neck fracture.
For all of the foregoing reasons, the Court shall enter an Order, of even date herewith, granting defendant's motion to dismiss under Fed. R. Civ. P. 41(b).
For the reasons stated in the accompanying Memorandum Opinion, it is, by the Court, this 28 day of April, 1983,
ORDERED, that defendant's motion under Fed. R. Civ. P. 41(b) is granted, and it is
FURTHER ORDERED, that this case is hereby dismissed.
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