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03/27/90 JAY FINKELSTEIN v. DISTRICT 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. ...


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