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August 27, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Henry F. Greene, Trial Judge

Terry and Schwelb, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Schwelb

In October 1985, the right leg of plaintiff's decedent, Blondell Brown, who was suffering from diabetes, was amputated below the knee. Subsequently, Ms. Brown sought redress for her injury by filing an action for negligence *fn1 against appellant R. & G. Orthopedic Appliances and Prosthetics, Inc. (R. & G.), a supplier of orthopedic shoes, and Howard University (Howard), which operates Howard University Hospital. The essence of Ms. Brown's claim against R. & G. was that, in fitting her with a pair of orthopedic shoes prescribed by a Howard podiatrist, this defendant had failed to follow the directions of the podiatrist with respect to the material to be used. Ms. Brown contended that R. & G.'s negligence had caused blistering on her right foot and that gangrene had developed, so that amputation was the only recourse. Ms. Brown further claimed *fn2 that Howard committed malpractice by negligently failing to detect the seriousness of the condition allegedly caused by R. & G.'s negligence and by not directing that she be hospitalized after she reported the blistering. R. & G. and Howard filed cross-claims against one another.

The case proceeded to a jury trial on November 29, 1988. On December 13, 1988, at the Conclusion of the plaintiff's case, Ms. Brown reached a settlement with Howard. Under the terms of that settlement, Howard was to pay Ms. Brown $200,000 in return for the dismissal of the action against Howard. Howard also dismissed its cross-claim against R. & G. and participated in the trial no further. At the Conclusion of the trial, the jury returned a verdict of $750,000 against R. & G..

On February 8, 1989, the trial Judge, sitting without a jury, held a hearing on R. & G.'s cross-claim against Howard for indemnity or, in the alternative, equitable apportionment or contribution. In conformity with the terms of the settlement agreement between Ms. Brown and Howard, which provided that Ms. Brown should be responsible for the defense and resolution of any remaining claims which R. & G. might have against Howard, Howard was represented in this phase of the case by Ms. Brown's counsel. On May 27, 1989, the trial Judge issued a written order in which he denied R. & G.'s claim for indemnity but granted R. & G. contribution in the amount of $375,000, or one half of the jury's award.

On appeal, R. & G. contends that it is entitled to a new trial on the basis of two unfavorable evidentiary rulings. First, R. & G. maintains that the Judge improperly declined to permit it to call Dr. Mark Berman as an impeachment witness, and thus prevented it from completing the impeachment of Dr. Patricia Schultz, a Howard University podiatrist who testified on behalf of Ms. Brown. Second, R. & G. argues that the Judge abused his discretion when he denied its motion to amend its witness list to add a different Howard University expert, Dr. E. Dalton McGlamry, who had given certain testimony favorable to it in a videotaped "de bene esse" deposition which was taken for use at trial. R. & G. also contends that the trial Judge erred in refusing to sustain its claim for indemnity.

We agree with R. & G. that the Judge should have permitted Dr. Berman to testify and that, under all of the circumstances, the error in excluding his testimony was not harmless. A new trial is therefore required. In the event that R. & G. is held to be liable at a new trial and R. & G.'s claim for indemnity is reached, the trial Judge is directed to clarify certain of his findings and then, if necessary, modify his decision in conformity with this opinion.



As a result of her diabetic condition, which was compounded by cigarette smoking, Ms. Brown suffered from circulatory problems which caused recurring ulcers on her feet. In 1980 or 1981, Ms. Brown came under the care of Dr. Schultz at the Howard University Podiatric Clinic. In 1983, Ms. Brown was hospitalized for gangrenous changes on four of her toes, one of which had to be amputated. She developed osteomyelitis *fn3 in the three remaining affected toes, a condition which put her entire leg at risk. For the time being, however, Ms. Brown was successfully treated with antibiotics. *fn4

In February 1984, Dr. Schultz recommended to Ms. Brown that she obtain custom-molded shoes. *fn5 Ms. Brown received an appropriate referral form and voucher, and was directed to Charlotte Gottlieb, a supplier of such shoes. Ms. Brown declined to obtain these shoes at this time, however, because she considered them "ugly." On June 14, 1984, she suffered a fracture of one of the bones in her feet. On July 19, 1984, Ms. Brown's feet were found to have new ulcerations and infections which were apparently caused by pressure points from the shoes which she was wearing. It was suggested once again that Ms. Brown obtain molded shoes, but at this time she did not do so.

In April 1985, Ms. Brown used a hot water bottle against medical advice in order to warm her feet. After examining Ms. Brown, Dr. Schultz repeated her recommendation that she obtain molded shoes. Dr. Schultz gave Ms. Brown a voucher which would enable her to secure them. Dr. Schultz testified that she suggested two alternative suppliers of such shoes, one being Charlotte Gottlieb and the other being R. & G. Dr. Schultz had used Charlotte Gottlieb's services for four years, but had not previously ordered orthopedic shoes from R. & G. She prepared prescriptions for Ms. Brown to present to each of these suppliers.

There was considerable and conflicting expert testimony regarding the proper composition of the molded inserts for the shoes prescribed for Ms. Brown. Dr. Schultz and the experts called by Ms. Brown *fn6 testified that the only appropriate insole material for a diabetic person was "plastizote," a very soft, spongy material. On the other hand, Dr. John Senatore, an expert in podiatry called by R. & G., testified that use of plastizote was not required by the applicable standard of care, and that a more rigid material was appropriate for the insole, provided that it was properly molded. Dr. McGlamry, an expert witness for Howard, also stated in his deposition that the use of plastizote was not required. According to Dr. McGlamry, plastizote is softer and more yielding than other materials and initially molds better to the contours of the foot, but it also has a tendency to "bottom out" after a few months and provides "less protection than if you had something more substantial." *fn7

Dr. Schultz testified that it was always her intention that Ms. Brown's insole would be constructed of plastizote. Although, she did not so specify on the Charlotte Gottlieb prescription, she asserted that "most' likely" she wrote plastizote on the prescription directed to R. & G.. She also stated that she telephoned R. & G. and orally specified that the insoles should be made of plastizote. She was unable to recall, however, to which of two R. & G. representatives she conveyed this direction.

After some delay, the custom-molded shoes were furnished to Ms. Brown on July 3, 1985. Ms. Brown testified that she complained to Jeannette Flynt, the orthotist *fn8 assisting her at R. & G., that the shoes were uncomfortable. Ms. Flynt testified, to the contrary, that Ms. Brown made no such complaint. It is undisputed that Ms. Flynt advised Ms. Brown to wear the shoes for progressively longer periods each day. Ms. Brown testified that she wore the shoes for approximately an hour and one half on the first day she had them, and for approximately forty-five minutes on the following day. She then noticed blisters on her right foot and stopped wearing the shoes.

On July 9, 1985, on a regularly scheduled visit to the Howard University Podiatry Clinic, Ms. Brown told Dr. Schultz about the blistering which had apparently been caused by the molded shoes. Dr. Schultz renewed an antibiotic medication which Ms. Brown had been taking, surgically removed some dead tissue, drained Ms. Brown's abscesses and, according to the entry on the clinical records, "referred [the patient] back to the shoe lab."

Ms. Brown next returned to the clinic on July 16, at which time Dr. Schultz found some healing, but also noted "persistent ulcerations" in several of Ms. Brown's toes. Dr. Schultz testified that she first saw the molded shoes on the occasion of Ms. Brown's July 16 visit to the clinic, and realized then that the "orthosis" portion of the shoes was made of a hard rubber substance, rather than of plastizote. She stated that she had "a very sharp visceral reaction," that she was "stunned," and that she "could feel body clinch up." She attributed these reactions to her realization that the shoes were made of a substance which she had not anticipated and which, in her view, was harmful to Ms. Brown.

Dr. Schultz did not direct, during July, that Ms. Brown be admitted to the hospital as an inpatient. *fn9 She testified that on July 16, 1985, she directed Ms. Brown to return to R. & G. to have her shoes adjusted or replaced. Ms. Brown made no further visit to R. & G., however, and no adjustment was made to the shoes. Meanwhile, on July 17, 1985, Dr. Schultz left for her vacation.

On August 6, 1985 Ms. Brown was admitted to Howard University Hospital for antibiotic therapy and bed rest. She was discharged on August 19th after she refused to continue the prescribed treatment. Outpatient treatment, consisting of cleaning and dressing Ms. Brown's foot, was continued during the remainder of August and early September, when she was readmitted to the hospital for exploratory surgery. After that surgery was performed, Ms. Brown again left the hospital against medical advice. By the time that she returned on October 16th, her right foot had become gangrenous. Her right leg was amputated below the knee on October 17th.

At trial, R. & G. vigorously contested not only Ms. Brown's allegation that it was negligent, but also her contention that its conduct was a proximate cause of the loss of Ms. Brown's foot and lower leg. On the issue of negligence, R. & G. challenged Dr. Schultz's claim that she had directed that plastizote be used for Ms. Brown's orthopedic shoes. R. & G. relied on the testimony of Dr. Senatore (and also attempted to use the deposition of Dr. McGlamry) to counter the views of Dr. Schultz, Dr. Cavanaugh, and Dr. Miller that its failure to use plastizote was inappropriate in treating a diabetic patient. On the question of causation, R. & G. offered the testimony of Dr. Barbara Douglas, a physician specializing in internal medicine, who testified inter alia that there were a number of factors which may have contributed to Ms. Brown's loss of her leg, including the patient's smoking and her use of a hot water bottle. According to Dr. Douglas, the need for amputation could not be attributed with a reasonable degree of medical certainty to R. & G.'s conduct, or even to the ulceration of her toes, and Ms. Brown's leg would ultimately have been amputated even if she had not worn the shoes provided to her by R. & G. R. & G. also relied on parts of the testimony of two of Ms. Brown's experts, Dr. Miller and Dr. David Morowitz, each of whom indicated that the applicable standard of care required Ms. Brown's hospitalization in light of her condition on July 9 and 16, 1985, and that if Howard had exercised due care, amputation could have been avoided.

R. & G.'s motion for a directed verdict, which was largely based on an allegedly deficient showing of proximate cause, was denied by the trial Judge. The trial ended with the jury's award of $750,000 to the plaintiff.



A. The ruling and its context.

Section VII (3) of the trial Judge's "Standing Memorandum and Order" in Civil I cases provided as follows:

Exhibits to be introduced, and witnesses who are to testify, at trial shall be limited to those identified in the pre-trial statements of the parties, except as to exhibits that might be introduced, or witnesses who might testify, for purposes of impeachment.

(Emphasis added). The first evidentiary issue presented to us by R. & G. relates to the proper construction of this limitation on the eligibility of witnesses, and especially of the italicized phrase.

Dr. Patricia Schultz, although employed by Howard, was called as Ms. Brown's first witness. Her testimony, as we have noted, see pages 533 to 535 (supra) , provided Ms. Brown with her heaviest artillery against R. & G.. She testified that she had directed R. & G. to use plastizote in Ms. Brown's orthopedic shoes, and she claimed to have been horrified when R. & G. failed to do so. Dr. Schultz's testimony, if credited, could be devastating to R. & G., and counsel for that defendant devoted a considerable amount of effort to impeaching Dr. Schultz.

When the time came for R. & G.'s counsel to present its defense, she requested leave of court to examine Dr. Schultz as an adverse witness. There was no objection from the attorneys for either of the other parties, and the Judge granted R. & G.'s request. Under these circumstances, R. & G. had the right to call Dr. Schultz in its own case, but nevertheless to attempt to impeach her with a prior inconsistent statement. Super. Ct. Civ. R. 43 (b); Cooper v. Saunders-Hunt, 365 A.2d 626, 629 (D.C. 1976); III A. J. WIGMORE, EVIDENCE, § 916, at 709 (Chadbourn Ed. 1970 & 1991 Supp.).

R. & G.'s counsel embarked on this strategy by confronting Dr. Schultz with her failure to write "plastizote" on the prescription blank issued to the other proposed supplier, Charlotte Gottlieb. After thus attempting to cast doubt on Dr. Schultz's assertions that she had insisted on plastizote, R. & G.'s attorney continued her examination as follows:

Q: Doctor do you know a by the name of Mark Berman?

A: Yes, I do.

Q: Do you recall having a conversation about this case with Mark Berman?


Q: Do you recall telling him that -- about the prescription that you wrote to R. & G. for Mrs. Brown's custom molded shoes?

A: No.

Q: You don't recall that?

A: I don't remember the details.

Q: Do you recall telling him you did not specify plastizote on ...

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