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March 28, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Noel Anketell Kramer, Trial Judge

Rogers, Chief Judge. Ferren and Belson, Associate Judges.

The opinion of the court was delivered by: Rogers

The District of Columbia appeals from a judgment in favor of appellee, Bertha Howard, as the result of the alleged wrongful death of her husband following his fall down a flight of stairs. The District assigns numerous errors, including the failure of appellee to establish that the emergency medical technicians or the transporting police officers breached any standard of care in their treatment of Mr. Howard, that there was insufficient evidence the police officers assaulted and battered Mr. Howard when they put him in or took him out of the paddy wagon, and that appellee failed to establish that any omission or conduct by District employees proximately caused Mr. Howard's paralysis and death. Alternatively, the District contends that it is entitled to a new trial on the grounds that the verdict was against the weight of the evidence and rested on expert opinion based on factual assumptions unsupported by the evidence and beyond the scope of the expertise of the expert witnesses and on speculation. Finally, the District maintains that it is entitled to a new trial because the testimony of the treating physician not listed as an expert witness pursuant to Super. Ct. Civ. R. 26 (b)(4) was impermissibly restricted so that he was not permitted to testify about the connection between the initial injury and the subsequent paralysis and death. *fn1 We agree that there was insufficient evidence of assault and battery by the police and that the restriction of the treating physician's testimony so prejudiced the District that it is entitled to a new trial.


On April 30, 1983, Larry Howard visited Cecilia Crawford at her apartment. While there he consumed a few beers and possibly a half-pint of whiskey. After approximately an hour, Ms. Crawford asked him to leave. Moments after he left, she heard "a little boom, boom sound." Looking out her door, she discovered Mr. Howard lying face down on a cement patio at the bottom of a flight of stairs leading to her apartment. She helped him up, placed a pillow under his head, told him to sleep it off, and returned to her apartment. Several hours later when Ms. Crawford's daughter, Denice, returned home, Mr. Howard was lying in the middle of the stairs, as if he had been trying to move up the stairs. She told him to leave, but upon still finding him there minutes later, tugged on his arm and told him to leave. Mr. Howard told her that he "couldn't move" or didn't want to move because of pain in his arm and neck, as well as numbness in his neck. *fn2 The Crawfords called for an ambulance, and emergency medical technicians Ronald Gill and Violet Maddox responded within fifteen minutes.

To the emergency medical technicians (EMTs), Mr. Howard appeared intoxicated and his breath smelled of alcohol. EMT Gill agreed with Ms. Crawford that Mr. Howard was still able to move his arms. All parties agreed that Mr. Howard was coherent and answered questions appropriately. They disagree about what information was conveyed to the emergency medical technicians by Mr. Howard and the Crawfords.

The emergency medical technicians claimed that they asked Mr. Howard questions about the cause of his injury but received no answers that would have suggested that he had fallen or that a spinal injury was possible. EMT Gill testified that he did not learn of Mr. Howard's fall until after Mr. Howard had been removed from the scene by the police. He admitted, however, that people at the scene had indicated that they had heard a noise in the hall. Denice Crawford testified that she informed the emergency medical technicians that Mr. Howard had complained of pain and numbness in the neck and arms and her mother testified that she informed them that Mr. Howard had fallen down the stairs. The only tests that EMT Gill remembered performing, however, were a blood pressure check and a reaction test that involved shining a flashlight into Mr. Howard's eyes. He admitted that his training regarding examinations of conscious accident victims required him to ask questions to determine the cause of injury, the location of any pain, and whether the patient could move his or her extremities.

Although the emergency medical technicians detected no injury as a result of their tests, they nevertheless urged Mr. Howard over a period of twenty to forty minutes to go to the hospital. During this time, Officer Beverly Miller, a master patrol officer with the District of Columbia Police Department, arrived on the scene in response to a call for ammonia capsules. Finding that the capsules were not needed, she stayed and joined in efforts to persuade Mr. Howard to go to the hospital. Mr. Howard, however, continued to refuse to be transported to a hospital. Because the Crawfords insisted that he be removed from the stairs, Officer Miller called a paddy wagon to transport Mr. Howard to the District's Detox Center, and Metropolitan Police Officers Kaminsky and Young responded.

Officer Kaminsky testified that the emergency medical technicians advised him that Mr. Howard was intoxicated, but otherwise all right. Mr. Howard refused to be driven home by the police. The police therefore decided to transport him to the Detox Center. Officer Kaminsky testified that when they attempted to lift Mr. Howard he was "dead weight," and because carrying him upright was too difficult, they carried him by his arms and his belt. They placed him face down on the floor of the paddy wagon.

Upon arriving at the Detox Center, Mr. Howard was promptly examined by a doctor after being propped up against a wall in a sitting position by the police. The doctor testified that he immediately recognized the signs of a spinal injury, because of Mr. Howard's unusual "decerebrate" posture and outwardly flexed palms, as well as his inability to use either his arms or his legs. In addition, although he remained coherent, asking the nurse to call his wife and providing the correct telephone number, Mr. Howard was having great difficulty breathing, and the doctor testified that the irregular pattern of breathing was of a type associated with severe spinal injury. The doctor instructed the emergency medical technicians to immobilize Mr. Howard's neck, which the doctor believed was broken, and to transport him to D.C. General Hospital.

Upon arriving at the hospital, Mr. Howard went into cardiac arrest. He became comatose, and died thirteen days later. His treating physician, Dr. Jessie Barber, testified that Mr. Howard had suffered a severe fracture of two of the vertebrae of his neck. Further, he testified that the injury had occurred at the time of the initial impact. The death certificate, prepared by Dr. Barber, listed the cause of death as "fractured neck with spinal cord contusion" caused by a "blunt force impact of head."

At trial, Mr. Howard's widow presented the testimony of Dr. Jeffrey Goltz, who was qualified as an expert in orthopedics, orthopedic surgery and the standard of care for emergency medical technicians with respect to spinal immobilization and transportation of persons with spinal in juries. Dr. Goltz opined that properly trained emergency medical technicians would have recognized that Mr. Howard had a broken neck, and would have immobilized his head before moving him. He based his opinion on the type of training that emergency medical technicians were supposed to receive, as established by standards set by the American Academy of Orthopedic Surgeons and adopted by the U.S. Department of Transportation, and relied on two charts to indicate the physical symptoms that should have alerted the emergency medical technicians to suspect that Mr. Howard might have suffered a spinal injury. Dr. Goltz also testified in response to other hypothetical questions that, based on the evidence regarding Mr. Howard's ability to move his limbs when he was at the bottom of the stairs, he was still "neurologically intact" at that point. Consequently, in Dr. Goltz' opinion, proper treatment of Mr. Howard by the emergency medical technicians, specifically the immobilization of his spine before allowing him to be moved, would have prevented Mr. Howard's subsequent paralysis and death. *fn3

Mrs. Howard also called Robert J. DiGrazia as an expert witness on police practices and procedures and the standard of care for a reasonably competent police officer in transporting intoxicated persons. His testimony was offered to show that the police officers were negligent in the way that they transported Mr. Howard to the Detox Center. His testimony, however, did not differ in significant respects from expert testimony offered by the District that the officers acted properly in placing Mr. Howard face down in the paddy wagon.

The trial Judge denied the District's motion for a directed verdict at the close of appellee's case, and at the close of all the evidence the jury returned a verdict in favor of appellee, finding that the District was liable for assault and battery of Mr. Howard by the police and for negligence by the emergency medical technicians and the police. The jury awarded appellee $676,548.28 for the following damages: Mr. Howard's injuries, mental anguish, and discomfort between the time of the injury and his death; net future earnings; services to appellee; funeral expenses; and medical and hospital services. The trial Judge thereafter denied the District's motion for judgment notwithstanding the verdict, or alternatively for a new trial or a remittitur.


On appeal, the District's principal assignments of error relate to the expert testimony that was crucial to appellee's case and the limitation imposed on the testimony of the treating hospital physician. Specifically, the District contends that Dr. Goltz was not properly qualified as an expert to testify regarding the proper standard of care for emergency medical technicians, that he failed to establish the existence of a national standard of care, and that his opinion that the emergency medical technicians were negligent was not supported by the evidence and failed to demonstrate a causal link between the conduct of the emergency medical technicians and Mr. Howard's injuries. The District also contends that Mr. DiGrazia's testimony on the appropriate standard of care for transport of intoxicated persons by police officers was not based on nationally accepted standards and was self-contradictory regarding whether the officers breached the standard which Mr. DiGrazia described and if so, whether any link existed between the breach and Mr. Howard's injuries. In addition, the District contends that the trial Judge erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict on the assault and battery claim since there was no evidence upon which a reasonable juror could find that the transporting police officers had assaulted and battered Mr. Howard. Finally, in seeking a new trial, the District contends that the trial Judge erred by restricting the ...

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