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03/27/90 JAY FINKELSTEIN v. DISTRICT COLUMBIA

COURT OF APPEALS OF THE DISTRICT OF COLUMBIA


March 27, 1990

IN RE: JAY FINKELSTEIN, ESQUIRE, PERSONAL REPRESENTATIVE OF THE ESTATE OF HARRY BARMAN, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE

Appeal from the Superior Court of the District of Columbia; Hon. Gladys Kessler, Trial Judge

Rehearing Denied June 29, 1990, Rehearing En Banc Granted June 29, 1990. Vacated by Order of the Court June 29, 1990,

Before Newman and Ferren, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: Jay Finkelstein, as personal representative of the estate of Harry Barman, brought suit under the District of Columbia Wrongful Death Act, D.C. Code § 16-2701 (1989 Repl.), and the District of Columbia Survival Act, D.C. Code § 12-101 (1989 Repl.), against the District of Columbia, whose alleged negligence caused the death of Harry Barman. At the time of his death, Harry Barman was in the custody of the District of Columbia Department of Corrections and incarcerated at the Washington Asylum and Jail (D.C. Jail) for mental observation and forensic screening.

The jury returned a verdict for plaintiff under both the Wrongful Death statute and the Survival statute and awarded the estate a total of $1,030,002. The District of Columbia moved for a judgment notwithstanding the verdict or a new trial. The trial court granted a judgment notwithstanding the verdict on the grounds that the plaintiff failed to establish that there was a deviation from the relevant standard of care, and that such deviation was the proximate cause of Harry Barman's death. The trial court also granted, in the alternative, a new trial because the verdict was so excessive as to reflect sympathy, passion, prejudice, and punitive aims. *fn1 Plaintiff appeals. *fn2 We reverse and remand.

I.

The uncontested evidence shows that Harry Barman was arrested on a charge of simple assault on January 8, 1985. A highly educated, forty-three-year-old male with a history of schizophrenia, he was committed to the D.C. Department of Corrections for pretrial evaluation. On January 10, a psychiatrist at the jail evaluated Barman and ordered him to South 3, the jail's mental health unit.

At about 10:00 am. on January 28, 1985, Barman was one of several inmates who were cleaning the showers of South 3 despite the fact that, because he had refused his medications, he had not been cleared for work detail. The shower areas were closely monitored from a guard station staffed by a minimum of one guard, at this time Correctional Officer Gloria Trotter. At about 10:30 a.m., Raymond Stroman, a physician's assistant, observed three of the inmates in the shower area of South 3 engaged in sexual activity with Barman. Stroman then left to check on the female residents in the upper cell block. Upon his return fifteen to twenty minutes later, Stroman observed that the activity was still going on. None of the jail personnel had intervened.

A second incident occurred in the shower area while Barman was on work detail. Two inmates sprayed Barman in the face with one of the chemical compounds used by the prisoners to clean the showers. After these two incidents Barman returned to his cell, remarking to a fellow inmate, Tyrone Lucky, that he was tired and was going to lie down.

At 3:45 p.m., Correctional Officer Joyce Webb noticed Barman slumped on the concrete floor of his cell. He had one arm on his bed and his head rested on his other arm. Although the temperature of the cell was about sixty-five degrees, Barman was naked. Officer Webb passed Barman's cell at 4:05 p.m. and again at 4:15 p.m. Both times he was in exactly the same position as when she first saw him. Officer Webb passed Barman's cell a fourth time around 6:00 p.m. Although she observed that during two hours and fifteen minutes Barman had not changed his position, she at no time attempted to determine whether he needed attention. Sergeant Eiland also testified that he had observed Barman in his cell at 3:45 p.m. and 6:05 p.m., as well as two times in between without questioning Barman's unchanged condition. Shortly after 6:00 p.m., Tyrone Lucky reported to Officer Webb that he thought Barman was dead.

Gaynel Cowan-Dudrow, a physician's assistant, responded to a medical technician's alert. As she approached Barman's cell, she noticed a strong odor of vomitus and excrement. Barman was naked and slumped partially on the floor and partially on his bunk. There was obvious venous pooling in his legs. His pupils were fixed, dilated, and hazed over. He had abrasions over his eye and on his lip, as well as contusions. Certified in advanced life support and surgery, Cowan-Dudrow immediately determined that Barman was beyond resuscitation. She observed that Barman had vomitus around his mouth, fecal matter and vomitus on his legs, and fecal matter around the rectal area. She also noticed that the floor area around Barman was streaked with fecal matter and vomitus.

Testimony at trial was inconsistent. Stroman testified that he had reported the incident in the shower to Correctional Officer Trotter who denied that he reported any incident. During his deposition Stroman had indicated that the three inmates were sodomizing Barman. At trial, however, he testified that he really meant the incident involved mutual masturbation among the three inmate's and Barman. He then intimated that his deposition testimony was correct. Tyrone Lucky and Correctional Officers Trotter and Murray testified that Barman never appeared nude in his cell. Officers Webb and Eiland testified that they did not observe anything unusual about Barman that day because they had seen him praying in the nude on his cell floor on prior occasions.

Dr. John Smilac, Chief Medical Examiner for the State of Maryland and plaintiff's medical expert, testified that the cause of death was an acute attack of bronchospasm. He stated that although in very rare cases such an attack occurred spontaneously, it was more likely in this case that the attack was caused by emotional stress from a sexual attack or was induced by the chemical cleanser sprayed in Barman's face. He testified that a typical asthma attack reaches its full severity in one to eight hours and estimated that Barman's attack lasted at least two to three hours. Dr. Smilac pointed out that typically symptoms of an asthma attack included gasping or wheezing. Dr. Smilac also stated that even a severe attack of bronchospasm need not be fatal if medical care were provided.

The District's medical expert was Dr. Michael Baden, Director of the Forensic Sciences Consultation Unit for the State of New York. Dr. Baden disagreed with Dr. Smilac's analysis of the" autopsy data. He stated that there was little or no evidence to suggest that asthma was the cause of death. However, he could not determine the exact cause of death from the evidence.

Plaintiff's expert penologist was E. Eugene Miller. His qualifications included a twenty-two-year career in the operation and supervision of penal facilities, authorship of a book on jail management, three educational degrees, and familiarity with the D.C. Jail as a result of working for the D.C. Department of Corrections for five years. He referred to the Standards for Adult Local Detention Facilities (Standards) promulgated by the American Correctional Association in cooperation with Commission on Accreditation for Corrections. He explained that the Standards are not mandatory but are used as the basis for a voluntary accreditation program around the country.

According to Miller's testimony, correctional officers should observe normal inmates at least every thirty minutes and if the inmates are mentally disordered, more frequent observations are required. He stated that custodial officers should maintain a complete record of pertinent information regarding individual inmates and that the record should include evidence of abnormal behavior, including kneeling in the cell nude. Miller testified that any group sexual activity among the inmates, either voluntary or not, would require intervention. Finally, he stated that, generally, it would be a violation of the national standard for correctional officers to observe Barman's unchanged and unusual position from 3:30 to 6:00 p.m. without attempting some type of intervention.

The jury returned a verdict of negligence against the the correctional officers and awarded $1 under the Wrongful Death Act claim and $30,000 under the Survival Act claim. They also returned a verdict of negligent infliction of emotional distress, awarding $1 under the Wrongful Death Act claim and $1,000,000 under the Survival Act claim. Damages against the District of Columbia totaled $1,030,002.

As noted, the trial Judge granted the District of Columbia's motion for judgment notwithstanding the verdict and, in the alternative, a new trial. The court found that the plaintiff had failed to establish either a breach of the standard of care or causation, and therefore the District of Columbia could not be found negligent in Barman's death. In the event that the judgment notwithstanding the verdict was not upheld on appeal, the trial Judge granted a new trial on three grounds: excessiveness of the damage award, improper admission of economic expert testimony, and improper exclusion of Barman's medical records.

II.

A judgment notwithstanding the verdict is proper only in cases "in which no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party." Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C. 1986).

We observe that the uncontroverted testimony at trial established that the decedent had not been cleared for work detail and should not have been out of his cell without close supervision. Under the appropriate standard, the jury may have credited the evidence that a physician's assistant witnessed three inmates involved in sexual activity with Barman in the shower area. The activity continued for over fifteen minutes even though the physician's assistant immediately reported the incident to the correctional officer and even though the shower area was closely monitored from the guard post where Correctional Officer Trotter was stationed. While in the shower area, Barman was sprayed in the face with a chemical cleanser. Within eight hours Barman was dead due to severe attack of bronchospasm that could have been caused by either the emotional distress from having been sexually assaulted for over fifteen minutes or from ingestion of the chemicals sprayed in his face. *fn3 In his cell Barman manifested evident distress, wheezing and wallowing around in his own vomitus and fecal matter for up to two and a half hours prior to his death.

The jury may have concluded it was a violation of the jail's own standard of care for Barman to be out of his cell, in the shower, and around chemical cleansers. The jury also may have concluded it was a violation of the standard of care for the guards not to stop sexual activity among the inmates. These violations resulted both in a prolonged sexual episode and in a chemical ingestion by Barman, either or both of which caused him to suffer an acute attack of bronchospasm.

After he returned to his cell and continuing approximately for two and a half hours, Barman exhibited noisy and odorous symptoms of distress such as would require the guards to intervene with assistance. The standard of care obliged the guards to check on Barman more frequently than every 30 minutes and intervene where appropriate. Either the guards breached the standard of care by not checking on Barman as frequently as they claimed or they ignored his obvious distress and refused to provide the medical intervention that would have prevented his death. The jury may also have noted that despite the excuse of Officers Webb and Eiland that they frequently saw Barman praying nude in his cell in a praying position, no entry in the record book mentioned that Barman had ever prayed nude in his cell. In sum, the trial Judge's grounds for entering a judgment notwithstanding the verdict--the failure to establish a breach of the standard of care and the necessary causation--when considered under the stated standard of review, are not supported by the record. We therefore conclude, under the circumstances, that the Judge erred in holding that no juror could have found for plaintiff.

III.

A ruling on a motion for a new trial will be reversed on appeal only if the trial court has abused its discretion. Oxendine, supra, 506 A.2d at 1110. Although under this standard the appellate court role is "supervisory in nature and deferential in attitude," Johnson v. United States, 398 A.2d 354, 362 (D.C. 1979), where no valid reason is given by the trial Judge or provided by the record, a decision will not be upheld under the abuse of discretion standard, id. at 364.

The trial Judge offered three reasons for her decision to grant a new trial. She stated that Barman's medical records were improperly excluded, that the economic testimony was improperly admitted, and that the amount of the award was a clear indication of impropriety. Order by Judge Kessler, at 14, May 19, 1988.

The record does not support the trial court's ruling. Medical records may not be admitted in a civil case without the permission of the appropriate person, in this case Finkelstein as representative of decedent's estate. D.C. Code § 14-307 (a) (1989 Repl.) See also Brown v. United States, 567 A.2d 426 (D.C. 1989). *fn4

The trial court allowed plaintiff's economic expert to testify over objection by the defense. Dr. Lureto testified that the present value of the economic loss of Barman's income was between $50,726 and $62,179 depending upon which set of assumptions the jury chose to believe. However, the jury rejected Dr. Lureto's statistics and awarded $1. Among the five components of the abuse of discretion standard is the requirement that the error was of sufficient magnitude to affect the rights of the parties. See Johnson, supra, 398 A.2d at 366; D.C. App. R. 5.65.1. Where, as here, the jury ignored the economic expert's testimony, that component is not satisfied and the standard is not met.

Finally, the award itself reflects considerable thought and restraint by the jury in parsing out the damages. The award structure of the economic losses reflects a careful balancing of the evidence and prudent consideration. For example, the jury awarded a nominal amount for the inheritance value of Barman's estate. It cannot be assumed that the jury meticulously weighed the evidence in determining one type of damages and produced another type as a result of emotional frenzy. We also note that the issue of damages in a wrongful death or survival action and the resolution of any evidentiary conflict are particularly within the province of the jury. See Doe v. Binker, 492 A.2d 857, 860 (D.C. 1985). The jury heard ample testimony as to the duration and agony suffered by Barman prior to his death. Such evidence provided more than the necessary scintilla, see id., to support the jury's assessment of Barman's experience in the D.C. Jail.

The reasons provided by the trial Judge for her decision to grant a new trial find little support in the record. We therefore conclude that the trial Judge erred in granting a new trial.


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