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06/05/91 JAY FINKELSTEIN v. DISTRICT COLUMBIA

June 5, 1991

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

Rogers, Chief Judge, Ferren, Terry, Steadman, Schwelb, Farrell, and Wagner, Associate Judges, Belson, Associate Judge, Retired,* and Newman,** Senior Judge. Opinion by Associate Judge Farrell. Opinion Concurring in part and Dissenting in part by Associate Judge Ferren, with whom Senior Judge Newman joins. Opinion Concurring in part and Dissenting in part by Associate Judge Wagner.

The opinion of the court was delivered by: Farrell

ON REHEARING EN BANC

A division of this court reversed the trial Judge's grant of a judgment notwithstanding the verdict and, in the alternative, a new trial. After reconsideration by the court en banc, we also conclude that the Judge erred in granting judgment notwithstanding the verdict, but we sustain her grant of a new trial on the ground that the verdict was excessive. *fn1

I.

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), and the District of Columbia Survival Act, D.C. Code § 12-101 (1989), against the District of Columbia for alleged negligence in causing the death of Harry Barman. The evidence at trial was summarized by the division, and we adopt its account with slight modifications.

Barman was arrested on a charge of simple assault on January 8, 1985. A forty-three-year-old male with a history of schizophrenia, he was committed to the custody of 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 mental health unit of the D.C. Jail.

At about 10:00 a.m. on January 28, 1985, Barman was one of several inmates 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. Returning 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 going to lie down. He returned to his cell between 3:00 and 3:30 p.m.

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, he was naked. 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. Webb passed Barman's cell a fourth time around 6:00 p.m. Although she observed that during two hours and fifteen minutes he 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 partly on the floor and partly on his bunk. There was obvious venous pooling in his legs, and 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; in her opinion he had been dead "a very long time." She observed that he had vomitus around his mouth, fecal matter and vomitus on his legs, and fecal matter around the rectal area. The floor area around him was streaked with fecal matter and vomitus, as though he had been " to the bed with the excretion on the floor."

Other testimony at trial was inconsistent. Stroman testified that he had reported the incident in the shower to Correctional Officer Trotter, who in turn denied that Stroman had reported any incident. During his deposition Stroman had indicated that the three inmates were sodomizing Barman, *fn2 but at trial he testified that his reference to the inmates "screw the boy to death" had been in jest, and that he had really meant that the three inmates and Barman were engaged in mutual masturbation. Stroman acknowledged, at the same time, that he had tried to testify truthfully at his deposition and had done so. Tyrone Lucky and Correctional Officers Trotter and Murray testified that Barman never appeared nude in his cell, but Officers Webb and Eiland stated 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 Smialek, 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 or asthma. Dr. Smialek concluded that he

could not state precisely what Mr. Barman's attack was precipitated by because attacks of this type can occur spontaneously with no identifiable agent triggering them. But they typically can be precipitated by emotional stress and can be precipitated by some offending agent in the environment.

Based upon the evidence that Barman had been sprayed in the face with a substance called "deep gloss," Dr. Smialek opined that "this substance could possibly have been one of or the factor that led to the gradual onset of the symptoms that were part of the attack of bronchospasm . . . ." It was also "certainly possible that a sexual attack would be sufficient to precipitate this particular type of acute episode." Dr. Smialek 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. It would have been accompanied typically by gasping or wheezing, with the result that he "was suffering considerable distress prior to his death." In Dr. Smialek's opinion, had there been intervention and medical treatment, even the severe attack that Barman suffered could have been reversed. *fn3

Plaintiff's expert penologist was E. Eugene Miller, whose qualifications were not in dispute. He referred to the Standards for Adult Local Detention Facilities (Standards) promulgated by the American Correctional Association, explaining 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 frequently. Custodial officers should also maintain a complete record of pertinent information regarding individual inmates, which should include evidence of abnormal behavior such as kneeling in the cell nude. Miller testified that any group sexual activity among the inmates, either voluntary or not, would require intervention. *fn4 Moreover, in his opinion it generally 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 District of Columbia 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 thus totaled $1,030,002.

The trial Judge granted the District of Columbia's motion for judgment notwithstanding the verdict and, in the alternative, a new trial. The Judge found that the plaintiff had failed to establish either a breach of the standard of care or causation, and so the District could not be found negligent in Barman's death. In the event the judgment notwithstanding the verdict were reversed on appeal, the 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.

We agree with appellant that the jury had before it sufficient evidence from which to find negligence by the District of Columbia that caused injury to Barman, and hence we reverse the grant of a judgment notwithstanding the verdict. 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). Viewing the evidence in that light, the jury could fairly have found that Barman returned to his cell in the afternoon of January 28 and, within the next two and a half hours, displayed visible symptoms of distress that required the guards to intervene with assistance. The standard of care obliged the guards to check on Barman more frequently than every thirty minutes and to intervene where appropriate. Either the guards breached the standard 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 could also have noted that despite the excuse of Officers Webb and Eiland that they frequently saw Barman nude in his cell in a praying position, no entry in the record book mentioned that Barman had ever prayed nude in his cell. The jury could reasonably find that the failure of the officers to attend to Barman in the cell was negligent and contributed to his suffering and death.

There was also evidence that the District was negligent for permitting Barman to be out of his cell on work detail without having been cleared for that activity, as well as for permitting him to engage in sexual activity with other inmates in the shower without intervening. And there was evidence in the form of Stroman's statements in deposition, which he reinterpreted but did not disavow at trial, that the sexual activity - sodomy - was involuntary and caused Barman injury. The District argues that there was no medical evidence that either the sexual activity or the spraying with a cleaning chemical was the proximate cause of the asthma attack and hence of Barman's death. We are inclined to agree. *fn5 We also agree with appellant, however, that this point is not decisive. Whatever caused Barman's asthma attack, the jury could properly find that the District committed distinct acts of negligence - allowing Barman to be out of his cell and to engage in group sexual activity, possibly against his will, and to be chemically sprayed; and allowing him to die from the asthma attack without intervention - that each resulted in compensable injuries. The trial court thus erred in granting judgment as a matter of law for the District. *fn6

III.

We reach a different result, however, in reviewing the trial Judge's decision to grant a new trial on the ground that the verdict for pain and suffering was excessive. *fn7 Our review of that decision implicates both the substantive standard followed by the trial Judge in ruling on such motions and the standard of appellate review in considering the trial court's ruling. As our previous decisions have made clear, the two are not the same and, indeed, the deferential nature of the latter stems directly from the strictness of the former. In Taylor v. Washington Terminal Co., 133 U.S. App. D.C. 110, 409 F.2d 145, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969), the United States Court of Appeals for the District of Columbia Circuit stated:

In this jurisdiction particularly, District Court Judges have given great weight to jury verdicts. They have stated that a new trial motion will not be granted [on grounds of excessive verdict] unless the "verdict is so unreasonably high as to result in a miscarriage of Justice," or, most recently, unless the verdict is "so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate."

Id. at 113-14, 409 F.2d at 148-49 (footnotes and citations omitted). Our own decisions, and hence the conduct of Judges in the Superior Court, reflects a similar unwillingness to interfere with the jury's calculation of damages. As we stated in Louison v. Crockett, 546 A.2d 400 (D.C. 1988):

Trial courts have historically given great weight to jury verdicts, granting a new trial only where there are unusual circumstances which convince the trial Judge, who has also heard the evidence and seen the witnesses, that the jury had been improperly influenced by non-germane factors or that its verdict is clearly unreasonable. When a party moves to strike a verdict as excessive, the trial court must consider whether that verdict resulted from passion, prejudice, mistake, oversight, or consideration of improper elements. The trial court must ask whether the verdict is beyond all reason, or . . . so great as to shock the conscience.

Id. at 403 (citations and internal quotation marks omitted); Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 594 (D.C. 1985).

On appeal, this court "'must accord great deference to the trial court's decision to grant or deny a motion for new trial based on excessiveness of the verdict and may reverse that decision only for an abuse of discretion.'" Louison, 546 A.2d at 403 (quoting International Sec. Corp. of Va. v. McQueen, 497 A.2d 1076, 1081 (D.C. 1985)). *fn8 In Vassiliades, the court pointed out that this deference stems directly from the historical reluctance of trial Judges to grant new trials on that ground except in unusual circumstances, 492 A.2d at 595, and that, as a result, "when the question of excessiveness is close, appellate courts give the benefit of every doubt to the trial court's judgment." Id. Of course, our role "is not merely to rubber-stamp the trial court's decision," Lacy v. District of Columbia, 408 A.2d 985, 988 (D.C. 1979), aff'd on reh'g, 424 A.2d 317 (D.C. 1980), and there must be "firm support in the record" for a finding of excessive verdict, id. But given both the traditional self-restraint exercised by trial courts in this area and the trial Judge's "'unique opportunity to consider the evidence in the living court-room context,'" id. at 988-89, *fn9 we have followed the rule - and we do so today - that "we will reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within 'the maximum limit of a reasonable range.'" Taylor, 133 U.S. App. D.C. at 114, 409 F.2d at 149 (emphasis in original); Vassiliades, 492 A.2d at 594. Every doubt on that score will be resolved in the trial court's favor. Vassiliades, supra, 492 A.2d at 595.

In the present case, the trial Judge concluded that "the jury's verdict of $1,030,002.00 was so excessive as to reflect sympathy, passion, prejudice, and a desire to punish the District of Columbia for maintenance of the prison conditions about which it heard such graphic testimony." The Judge noted that plaintiff's expert economist had set the pecuniary loss to Barman's family at between approximately $50,000 and $62,000. The Judge further determined that the "key issue at trial was what happened to Mr. Barman between the hours of 3:45 p.m. and 6:05 p.m." - the "approximately two hours and fifteen minutes from the last time that he was seen alive and not in distress to the time that his death was discovered." Therefore, based upon the economist's projections, the Judge found that the jury awarded damages of between roughly $967,000 and $980,000 "for less than two and one-quarter hours of pain and suffering," and found no support in the record for a compensatory award of that magnitude for suffering of that duration.

Rather, the Judge concluded that the reason for the excessive award lay elsewhere. She noted that "the picture of conditions at the D.C. Jail presented to the jury was a deeply distressing . . . one" that caused "palpable" shock and disgust in the jury "as it heard testimony about frequent masturbation, nudity, sodomy, failure to clean up human wastes, and other bizarre behavior."

Given "the squalid conditions described to the jury," the Judge found, the award of nearly $1 million, though avowedly for pain and suffering, was intended "to 'send a message,' and a punitive message at that, telling the District of Columbia government that its citizens would not tolerate maintenance of such abominable conditions for its citizens, even those charged with violations of the ."

We sustain the trial Judge's ruling as we find firm support in the record for her determination that the award of damages was out of all proportion to the pain and suffering proven. Appellant assails the Judge's finding at the outset by pointing out that she focused entirely upon the pain and suffering that accompanied the attack of bronchospasm during the three hours or less in the afternoon, ignoring the independent suffering caused by the sodomous assault and spraying earlier that day. The record supports the trial Judge's view, however, that for purposes of measuring Barman's pain and suffering, the critical period the jury considered was the time after he returned to his cell and suffered the acute asthma attack from which he died. The primary support for this view is that counsel for appellant, in his summation to the jury, limited his plea for damages for pain and suffering to the distress Barman suffered as he struggled and died in his cell unattended.

Counsel began his summation by arguing that "something happened to Harry Barman in the morning or early afternoon hours of January 28th": "he either got gang raped, sodomized either voluntarily or involuntarily . . .; he was sprayed with some deep gloss[;] or he may have suffered some other sort of trauma, something that perhaps arose out of his condition." Counsel proceeded to state that around 3:00 p.m. Barman was locked in his cell, where,

between 3 o'clock and 6:05 p.m., he went through a lot of distress. He must have traveled around the cell several times, and there came a time when he died. . . . But, he died in such a way that he did not die quickly. He must have flopped around for twenty minutes or a half hour at a minimum, no matter who you believe, based on the physical evidence.

Counsel then argued that either not enough guard patrols had been carried out between 3:00 and 6:05 or there was lax observation during the patrols, and that the correctional officers' explanations were an effort "to justify leaving that man nude, in a position, kneeling in front of his bunk[,] for three hours in a high-care facility, . . . nude in his cell for three hours in fecal matter and vomit. . . ." Counsel reviewed the expert testimony concerning the cause of death, but concluded that "it doesn't make that much difference [what caused the death] because it took a while for Barman to die, he suffered while he was dying, and there was a opportunity to intervene and do something about it. . . ." Turning to the issue of damages and specifically pain and suffering, counsel explained that the jury

must assess the impact on Mr. Barman and the extreme distress and discomfort that was caused by his thrashing around for a period of time in that cell while these people were supposed to be taking care of him. And, I would submit to you, that there is a significant compensation due Mr. Barman's estate because of his pain and suffering suffered by Mr. Barman during his death struggle at the D.C. Jail.

Nowhere in his summation did counsel ask for damages for the pain and degradation associated with a sexual assault or the distress caused by being sprayed in the face with a chemical compound.

Although appellant points to the complaint which sought damages for a sexual assault and the evidence from which the jury could find that Barman had been sodomized (rather than merely engaging in group masturbation), we cannot fault the trial court's determination that the jury considered the issue of pain and suffering on the terms in which it was argued to them - limited to Barman's suffering as he died slowly in his cell. The arguments of counsel are, of course, not evidence and the jury was so instructed here. But courts routinely assess the impact of instructional formulations, for example, on the jury in the context of a party's theory of the case as argued to the jury, see, e.g., United States v. Park, 421 U.S. 658, 674-75, 95 S. Ct. 1903, 44 L. Ed. 2d 489 & n.16 (1975), and we see no reason why the precise damages urged in summation are not similar indication of the injury on which the jury focused in making its award. Here, counsel's strategy in ultimately requesting damages was to concentrate on Barman's death and the events immediately preceding it, perhaps regarding the evidence of his death throes as more forceful and unambiguous than the evidence that he had been "raped." *fn10 It was therefore reasonable for the trial Judge to conclude that, by the time the case reached the jury, the "key issue" had become "what happened to Mr. Barman" - what suffering he had endured - during the three hours in his jail cell between 3:00 and 6:00 p.m.

Moreover, there was evidence permitting the Judge to infer that this suffering had been substantially shorter in duration than the full three hours. *fn11 Gaynel Cowan-Dudrow, the physician's assistant who responded to the medical technician's alert and found Barman dead, testified that when she first saw him he had been dead "for a very long time[,] . . . 45 minutes to an hour[,] maybe even longer." *fn12 Appellant's medical expert, Dr. Smialek, acknowledged that Barman could have died as much as two hours before his discovery at around 6:00 p.m. Although evidence of fecal smearing on Barman's body and the floor supported Dr. Smialek's opinion that he had been "suffering considerable distress prior to his death," there was also testimony that throughout most of the three hour period, he remained stationary in the same position in which he was found dead.

Under these circumstances, we cannot conclude that the award for pain and suffering was clearly within the maximum limit of a reasonable range, Taylor, supra, and hence that the trial Judge abused her discretion. Concededly pain and suffering "is not susceptible to any sort of precise calculation," Lacy v. District of Columbia, 408 A.2d at 989, and the physical and emotional pain that occurs in the minutes or hours before death is unquestionably unique in intensity. See Capitol Hill Hosp. v. Jones, 532 A.2d 89, 92 n.12 (D.C. 1987) (patient's "inferable conscious awareness of impending death could be considered in the pain and suffering calculus"). Our cases have also cautioned against facile comparison of verdicts in deciding the issue of excessive damages, pointing out that "each case in this area necessarily rises or falls on its own facts. . . ." May Dep't Stores Co. v. Devercelli, 314 A.2d 767, 775 (D.C. 1973); Capitol Hill Hosp., 532 A.2d at 93. Nevertheless, our decisions point to the Conclusion that an award of approximately $1,000,000 for pain and suffering of a duration the trial Judge could reasonably find did not exceed two and a quarter hours is, at the very least, "at the outer limits of the maximum range of a reasonable verdict," Vassiliades, 492 A.2d at 595 - which is all we need decide.

In Capitol Hill Hospital, for example, a terminally ill diabetic admitted to the hospital with complications was negligently taken off supplemental oxygen and struggled to breathe for forty-five minutes before dying from cardiac arrest. In view of the suffering shown particularly by "his attempts to resort to a useless oxygen mask during the 45-minute period after the oxygen was turned off," we sustained the trial Judge's refusal to disturb an award of $100,000 for pain and suffering, but observed that "in the context of the cases cited to us, this verdict may have been at the high end of the permissible spectrum . . . ." 532 A.2d at 92-93. In Lacy, supra, we sustained the trial Judge's finding that a verdict of $640,000 was excessive to compensate for the psychological trauma suffered by a child who had been sexually assaulted as many as three times by the janitor at her elementary school. Although the trial Judge (Belson, J.) was sensitive to the fact that "the jury must normally be relied upon to arrive at a fair assessment of damages for such injuries as pain and suffering, mental anguish and distress, and psychological damage," 408 A.2d at 987, we agreed with him that, under the circumstances, the verdict of $640,000 was "beyond the maximum limit of a reasonable range within which the jury may properly operate." Id. at 989. See also District of Columbia v. Gandy, 450 A.2d 896, 902-03 (D.C. 1982) (upholding $275,000 award for false arrest and assault and battery where plaintiff was jailed overnight, racially taunted and beaten by police, and suffered from physical injuries for one month; noting that court will not reverse absent abuse of discretion "even though we may consider the verdict for compensatory damages to be larger than it should have been, and think that it might have been reduced by the trial court"), vacated, 454 A.2d 328 (D.C.), reinstated in pertinent part, 458 A.2d 414 (D.C. 1983). *fn13

The trial Judge was convinced that the gross disproportion between Barman's proven pain and suffering and the size of the damage award reflected the jury's determination to punish the District for tolerating the squalid conditions at D.C. Jail of which it had heard so much evidence. The court therefore exercised her authority to set aside a verdict that had been "improperly influenced by nongermane factors," Vassiliades, 492 A.2d at 595; Smith v. Executive Club, Ltd., 458 A.2d 32, 37 (D.C. 1983) ("considerations of an improper element" justify setting aside verdict as excessive), inasmuch as punitive damages may not be awarded against the District of Columbia. Smith v. District of Columbia, 336 A.2d 831, 832 (D.C. 1975). Appellant makes essentially three responses to the trial Judge's finding of improper motivation. First, he argues that it rests upon the false premise that an award of compensatory damages may not properly serve a deterrent or punitive purpose, when the truth is otherwise. See, e.g., Carter v. District of Columbia, 254 U.S. App. D.C. 71, 93 & n.18, 795 F.2d 116, 138-39 & n.18 (1986) (compensatory damages are intended, at least partly, to serve a deterrent function, and plaintiffs may point this out to jury). But an intent to punish the defendant for tolerating conditions that have not caused injury to the individual plaintiff is not a proper basis for compensatory damages. Second, appellant argues that much of the testimony about rampant masturbation, nudity, and throwing of excrement was adduced by the District of Columbia on cross-examination of witnesses to bolster its defense that the guards had not been negligent in supervising inmates, including Barman, in the mental health unit who regularly - and largely unpreventably - engaged in aberrant behavior. We may concede that this is so, and that the District assumed the risk that this testimony would backfire and contribute to the jury's finding of negligence in the District's failure to monitor Barman (and others) and intervene to prevent his death. But we are unwilling to go further and let that evidence - and the revulsion it incited in the jury - provide the basis for a compensation award that the trial Judge reasonably found incommensurate with Barman's actual pain and suffering.

Finally, it is suggested that since the District apparently considered much of this evidence of sordid behavior important to its defense, a new trial would have little point because the same conditions will be described to the next jury which may similarly be inflamed by it. We are not persuaded, however, that the trial Judge erred in concluding that another jury, perhaps aided by augmented instructions, will adhere more faithfully to the correct standards in computing compensatory damages. Moreover, the District will be on notice that the trial Judge may not be so willing a second time to find in evidence the District itself substantially introduced the cause of an excessive verdict. *fn14

Judge Ferren's Dissent charges that our holding rests on a "incredibly radical," unprincipled notion that plaintiff "waived" his right to full damages by restricting his plea for compensation in closing argument to the suffering Barman endured in his jail cell in the afternoon. *fn15 The Dissent misunderstands our analysis, which has nothing to do with waiver but instead inquires whether the record supports the trial Judge's finding that the jury's award of damages lacked all proportion to the pain and suffering plaintiff established and argued to the jury. The Dissent purports to agree that we review this finding deferentially and may disturb it only if the jury's award was "clearly within 'the maximum limit of a reasonable range,'" Taylor, 133 U.S. App. D.C. at 114, 409 F.2d at 149 (emphasis in original). But the Dissent does not come to grips with a key reason for that deference - the Judge's unique vantage point and "opportunity to consider the evidence in the living courtroom context," Lacy, 408 A.2d at 988-89. *fn16 Even when this court reviews de novo a trial court ruling, as on the issue of constitutional harmless error, we have acknowledged the Judge's "operational advantage . . . in making a determination requiring intimate acquaintance with the facts of the particular case as they evolved at trial." Davis v. United States, 564 A.2d 31, 34 (D.C. 1989) (en banc). Even more so then must our review of the Judge's decision to grant or deny a new trial, one intimately committed to her discretion and on which she may weigh the evidence independently, *fn17 entail a careful effort to replicate the Judge's perspective and resolve any reasonable uncertainty in favor of her ruling.

Here the Judge concluded that "the key issue" in respect to damages "was what happened to Mr. Barman between the hours of 3:45 p.m. and 6:05 p.m." Having watched the evidence unfold, the Judge saw that plaintiff himself then narrowed the issue of damages for pain and suffering to this critical afternoon period in closing argument. *fn18 Judge Ferren's Dissent asserts that our emphasizing closing argument ignores the fact that "a party is not even required to make a closing argument," but this latter point, while true, is irrelevant: we deal here not with a hypothetical case but a real one in which plaintiff did argue to the jury, forcefully, and limited his appeal for damages to Barman's suffering in the cell. The Dissent speculates that plaintiff's counsel, preferring to let the evidence of the morning assaults speak "powerfully for itself" on damages, intentionally downplayed that evidence to avoid inflaming the jury and inviting objection. But that motivation would be plausible, and more importantly relevant, only if appellant were correct - and the Judge clearly wrong - in evaluating the harm Barman suffered from the District's negligence in the morning. We know the Judge viewed as weak the evidence of injury traceable to the sexual activity and spraying which the District failed to prevent; she granted a motion for judgment notwithstanding the verdict partly on grounds of causation. We have reversed that judgment because the evidence was legally sufficient on both negligence and causation. But especially given the ambiguity in Stroman's testimony as to what took place in the shower, see note 10, (supra) , we are unwilling to second-guess the Judge's appraisal of the evidence and Conclusion that, in the jury's mind (assisted by plaintiff's argument), the issue of fault and damages came down to "what happened to Mr. Barman between the hours of 3:45 p.m. and 6:05 p.m." *fn19

Despite her instructions to the jury to avoid a judgment based on prejudice, the Judge concluded that something had gone awry in the jury's award of damages greatly out of proportion to the suffering shown and for which plaintiff ultimately sought relief. The issue on appeal is not whether this court, or any member of it, would have made the same determination. Pain and suffering are difficult in any circumstances to quantify, and there is undeniable truth in the comments of the trial Judge in Duren v. Suburban Community Hosp., supra note 13 (who nonetheless reduced a $1 million verdict for pain and suffering by half):

Surely, almost any person would say he could endure great pain in exchange for one million dollars, but what amount can compensate a person who may know that such pain would result in death? A court cannot remove itself into the confines of a sterile setting and abstractly use legal standards that have withstood the assault of time to reduce a verdict solely because of its size.

24 Ohio Misc. 2d at , 495 N.E.2d at 59. But this court does not sit in the role of trial Judge, and in reviewing the Judge's action in this case on a matter committed closely to her discretion, it is well to bear in mind Judge Learned Hand's observation: "As is true of most that takes place in a trial, the right result is a matter of degree, and depends upon the sense of measure of the Judge." United States v. Freundlich, 95 F.2d 376, 379 (2d Cir. 1938).

For the foregoing reasons, the order granting judgment notwithstanding the verdict is reversed and the order granting a new trial is affirmed.

So ordered.

FERREN, Associate Judge, with whom NEWMAN, Senior Judge, joins, Concurring in part and Dissenting in part: I agree with the majority in reversing the judgment notwithstanding the verdict, but I respectfully Dissent from affirming the order granting a new trial. I would reinstate the verdict.

The majority sustains the new trial order because of agreement with the trial court's ruling that the "'key issue at trial was what happened to Mr. Barman between the hours of 3:45 p.m. and 6:05 p.m.' - the 'approximately two hours and fifteen minutes from the last time that he was seen alive and not in distress to the time that his death was discovered.'" Ante at 14. The majority accordingly agrees with the trial court's post-trial ruling that the jury could not have properly considered, for purposes of compensatory damages, the "sodomous assault and spraying [with a cleaning chemical] earlier that day." Ante at 15. The majority's only justification for doing so is that "counsel for appellant, in his summation to the jury, limited his plea for damages for pain and suffering to the distress Barman suffered as he struggled and died in his cell unattended." Ante at 15. And again: "Nowhere in his summation did counsel ask for damages for the pain and degradation associated with a sexual assault or the distress caused by being sprayed in the face with a chemical compound." Ante at 16. I believe this rationale for rejecting the jury's verdict is altogether unjustified.

First, the majority slights the facts: plaintiff-appellant, supported by the trial court's instructions, did present to the jury the damage claims for Barman's pain and suffering not only from his death throes in the cell but also from the earlier sodomous assault and chemical spraying - including references to both in closing argument. Accordingly, the jury properly considered compensatory damages for pain and suffering not merely for 2 1/4 hours but for up to 7 1/2 hours, or over five hours more than the trial court, in its post-trial ruling, allowed. Second, there is no basis in law for holding that, when a claim for damages is tried before a jury with evidence sufficient for a plaintiff's verdict, the trial court may deem a claimed element of damages waived unless plaintiff's counsel expressly reaffirms it in closing argument. Indeed, this waiver argument fails very simply because a party is not even required to make a closing argument. An election to make one, emphasizing certain points, cannot serve to scuttle an aspect of the case not stressed at that time. Finally, without an announced waiver of damages for the sodomous and chemical assaults, limiting the period of injury to 2 1/4 hours, there is no discernible reason for concluding the jury based its award, in part, on passion or prejudice.

I.

One can easily demonstrate from record references in the Appendix to this Dissent that plaintiff-appellant sought compensatory damages for pain and suffering from the chemical spraying with Johnson's Deep Gloss (complaint) and from the sodomous assault (amended complaint). The sodomous assault was emphasized again in the pretrial statement and in the pretrial order.

In opening statement to the jury, plaintiff's counsel told the jury it would hear evidence that Barman was "sexually attacked" in the morning, was also "sprayed with some sort of an industrial cleaner[,] probably deep gloss material made by Johnson's," and died from a bronchospasm that "could have had its origin in the traumatic experience of the sodomization, or in the spraying with the deep gloss. . . ."

At trial, a jail resident, Tyrone Lucky, testified that he had seen "another resident spray the can - spray the can in [Barman's] face" when they were cleaning a shower. The jury also heard one of the defendants, Physician Assistant Raymond Stroman, testify that he had seen Barman on shower-cleaning detail when Stroman "came on the unit about 10:30 in the morning," and that he had twice observed three inmates engaging in sexual acts with Barman in the shower over a period of at least 15 to 20 minutes. (Stroman's deposition testimony, with which plaintiff's counsel confronted him before the jury, referred to acts of sodomy. After this reminder, Stroman acknowledged he had chided the inmates for "screw the white boy to death" and that he had testified truthfully on deposition.) The jury then heard Dr. John Smialek, Chief Medical Examiner for the state of Maryland, testify that Barman "had died of an acute attack of bronchospasm" that could possibly have been caused by the Deep Gloss or by a sexual attack. E. Eugene Miller, plaintiff's expert penologist, testified that under the ...


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