The opinion of the court was delivered by: JOHN H. PRATT
This matter is before the Court pursuant to defendant Children's Hospital's post-trial Rule 50(b) motion for entry of judgment as a matter of law. After considering defendant's motion, plaintiff's opposition, and defendant's reply, we hold that plaintiff failed to present sufficient evidence to support a reasonable finding of negligence and causation and, therefore, grant defendant's motion.
This action arose out of a medical malpractice suit brought by plaintiff Anthony Stokes. On July 27, 1978, when Plaintiff was thirteen years old, he experienced seizures and fainting and was taken to Group Health Association, Inc. ("GHA"). While in GHA's offices, plaintiff had two further seizures. The GHA treating physicians referred plaintiff to the Children's Hospital for further neurological tests, including a computer assisted tomoscope ("CAT scan") and a cerebrospinal fluid tap.
At Children's Hospital, Mr. Stokes was evaluated by several doctors, including Dr. Myriam Davis, a consulting neurologist called in to perform a follow-up neurological evaluation. Dr. Davis noted a heart murmur and an orbital bruit, a murmur over the carotid and ophthalmic arteries, and ordered a CAT scan, an EEG, and a cardiac evaluation. Dr. David Brallier, a radiologist at Children's Hospital, performed the CAT scan and reported the results as normal. Mr. Stokes was discharged the following day from Children's Hospital with a diagnosis of unknown etiology.
Following his discharge from the hospital, plaintiff was treated by GHA for a period of five years with daily dosages of dilantin, an anti-convulsive drug. Plaintiff had five seizures during that time. In 1988, after another four seizures, plaintiff underwent another CAT scan at Howard University Hospital, which revealed a large arteriovenous malformation ("AVM")
of approximately six centimeters. Because of its size, the AVM was deemed inoperable and plaintiff was put on proton beam radiation therapy. The results of that therapy are still undetermined.
Plaintiff filed suit, alleging that defendant Children's Hospital was negligent in failing to diagnose and treat the AVM in 1978. Plaintiff also named GHA as a defendant, and GHA joined the GHA treating physicians Dr. Morris Osborne and Dr. Judith Hogg as third-party defendants.
Plaintiff's theory, with respect to Children's Hospital, was two-fold. First, plaintiff alleged the CAT scan revealed an AVM of two centimeters and that Dr. Brallier, the hospital radiologist, had violated the standard of care in interpreting the scan as normal. Second, plaintiff maintained that Dr. Davis, the consulting neurologist, had violated the standard of care in failing to order a follow-up CAT Scan and arteriogram. This failure, according to plaintiff, prevented an early detection of the AVM and possible surgery to obliterate the AVM.
The case went to trial before a jury on June 22, 1992, which resulted in a deadlock on July 6, 1992, at which time the Court declared a mistrial. Before the case was submitted to the jury, we granted the directed verdict motions to dismiss defendants GHA and the GHA doctors, but denied defendant Children's Hospital's motion for a directed verdict. Defendant Children's Hospital timely filed this motion for entry of judgment as a matter of law following the trial. This Court held a hearing on the motion on October 16, 1992.
Judgment as a matter of law is appropriate when, at the close of all evidence, the court finds the evidence is so one-sided that the moving party must prevail as a matter of law. Fed. R. Civ. P. 50(b); Richardson v. Richardson-Merrell, Inc., 273 U.S. App. D.C. 32, 857 F.2d 823, 827 (D.C. Cir. 1988), cert. denied, 493 U.S. 882, 107 L. Ed. 2d 171, 110 S. Ct. 218 (1989). A court must order a new trial, however, "if reasonable minds could differ about the facts." 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2537 (1971 & Supp. 1992).
Plaintiff argues that entry of judgment as a matter of law is procedurally inappropriate for three reasons. First, plaintiff contends that the former denial of defendant's motion for a directed verdict stands as the law of the case, preventing this Court from considering defendant's subsequent motion for entry of judgment as a matter of law. We find plaintiff's argument to be groundless. The Court is not bound by its denial of a motion for directed verdict in considering the post-trial motion. "The court may expressly reserve decision on the motion for directed verdict but it will be deemed to have reserved decision even if it has denied the motion." Id.
Plaintiff argues, secondly, that the Court may not grant defendant's motion after remarking to the jury, in response to a question from the jury, that there was some evidence on both sides regarding the standard of care. Again, plaintiff's argument that such comment serves as the law of the case is without any support. This comment is far short of a finding that a standard of care has been shown by sufficient evidence.
Finally, plaintiff has suggested that the Court lacks jurisdiction to consider defendant's motion after a mistrial was declared. Rule 50(b), however, clearly states that "if a verdict was not returned [the party who has moved for a directed verdict], within 10 days after the jury has been discharged, may move for judgment in accordance with the party's motion for a directed verdict." Fed. R. Civ. P. 50(b) (emphasis added). See also Noonan v. Midland Capital Corp., 453 F.2d 459, 462 (2d Cir. 1972), cert. denied, 406 U.S. 945, 32 L. Ed. 2d 333, 92 S. Ct. 2044 (1972) (ruling for defendant as a matter of law after the jury twice reported itself deadlocked); Gonzalez v. Avon Prods., Inc., 648 F. Supp. 1404, 1407 (D. Del. 1986), aff'd, 822 F.2d 53 (3d Cir. 1987) (ruling that jury's failure to reach a verdict in this ...