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January 5, 1990


Appeals from the Superior Court of the District of Columbia; Hon. Rufus G. King III, Trial Judge.

Before Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge:

The District of Columbia appeals on several grounds from a million dollar judgment entered upon a jury verdict in favor of Daniel Bethel, an inmate at the Central Facility at Lorton prison. Finding no error, we affirm.


Bethel was severely injured when he was stabbed by another inmate, Carter, with a "shank." *fn1 Bethel was asleep in his dormitory at the time of the stabbing, which apparently resulted from a relatively minor incident between Carter and Bethel two days earlier. On that occasion, Bethel had stood up for an older inmate who was working in the prison bathhouse with him and who had refused to give Carter an extra portion of soap. There was, at most, a minor skirmish between Bethel and Carter, and a correctional officer who was present took no action.

At trial, Bethel asserted that the District had negligently caused Bethel's injuries by failing to control inmate movement, by allowing inmates to have authority over other inmates, by failing to control inmates' access to weapons, by failing to provide proper supervision of inmates by officers, by unreasonably delaying its response to an emergency, and by operating an overcrowded facility. Both parties presented expert testimony. James Murphy, Bethel's expert penologist, testified that the District had failed to adhere to the applicable standard of care in each of these six respects. The District's expert, James Black, concurred in many but not all of Mr. Murphy's major Conclusions.


The District claims that Bethel did not establish the proper standard of care. It contends that Mr. Murphy based his testimony largely on the American Correctional Association's Standards for Adult Correctional Institutions (2d ed. 1981), and asserts that "ACA standards are not negligence standards." The District does not, however, challenge Mr. Murphy's expertise. Rather, it contends in effect that his testimony was legally insufficient because, according to the District, he relied on improper materials to guide his expert opinion. The District cites no authority in support of its contention that a qualified expert's opinion can be undermined in this way. In general, although an opinion rises no higher than the level of the evidence and the logic on which it is predicated, it is for the jury, with the assistance of vigorous cross-examination to measure the worth of the opinion. United States v. Hill, 62 F.2d 1022, 1025 (8th Cir. 1933); see also Singer Co. v. E. I. du Pont de Nemours & Co., 579 F.2d 433, 442-43 (8th Cir. 1978). *fn2

In any event, in reaching his Conclusion that the District had violated the applicable standard of care, Mr. Murphy relied not only on the ACA standards, but also on the District's policies and procedures and on his own considerable experience in the field of penology. Bethel never argued, nor did the Judge instruct the jury, that violation of an ACA standard was negligence per se, and there is no contention that the charge to the jury was improper.

In Rivers v. State, 142 Misc. 2d 563, 537 N.Y.S.2d 968, 970 (Ct. Cl. 1989), relied on by the District, the court described the ACA standards as "normative goals to be striven for, not the prevailing medical standards of any given community." The court held in Rivers that medical malpractice could not be established by simply introducing, in lieu of expert medical testimony, an ACA standard requiring the forwarding of medical records to a physician who operates on the inmate at a facility outside the prison. Rivers has no application to the present case, in which expert testimony was introduced and the plaintiff relied on far more than the bare ACA standards. We therefore find the District's argument based on Rivers unpersuasive.


The District contends that the ACA standards are inconsistent with the consent decree in Twelve John Does v. District of Columbia, No. 80-2136 (D.D.C. April 28, 1982). This was a settlement of constitutional and related claims brought in a class action against the District by a number of prisoners at the Lorton facility. Bethel was confined at Lorton when the suit was filed, and was thus a member of the plaintiff class.

No argument was made to the trial court about the Twelve John Does decree. Indeed, the decree was mentioned once by the District at trial, at which time Bethel's counsel interposed no objection, but argued that its use by the District would open the door to other evidence about it, a contention with which the Judge agreed. Apparently for tactical reasons, the District never again brought up the decree in the trial court. Nevertheless, on appeal, the District filed an appendix of materials from the Twelve John ...

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