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05/17/93 LAWRENCE BERNARD v. ROBERT CALKINS

May 17, 1993

LAWRENCE BERNARD, APPELLANT
v.
ROBERT CALKINS, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)

Before Terry, Wagner, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge : Appellant, Lawrence Bernard, sued appellee, Robert Calkins, for damages resulting from injuries sustained when appellant was struck by an automobile being operated by appellee. The jury found for appellant and awarded him damages in the amount of $11,756.93, a sum less than the medical expenses stipulated to by the parties. The record discloses that the jury did not include an award for pain and suffering or for lost wages, although the parties stipulated that lost wages amounted to $4434. Appellant argues that the trial court abused its discretion in denying his motion for a new trial based on the inadequacy of the verdict. Appellant also contends that the trial court erred in denying his request for a curative instruction to explain the consequences of a workers' compensation lien against any recovery after appellant inadvertently disclosed that he had received workers' compensation benefits. *fn1 We conclude that the verdict evidences partiality, mistake, or consideration of an improper element and reverse for a new trial on damages only.

I.

On January 27, 1989, appellant was kneeling while performing electrical work in a driveway at 5415 Connecticut Avenue, N.W. in the District of Columbia when he was struck by a vehicle which appellee was driving. Appellant, who was yelling for the driver to stop the car, was dragged under the vehicle and down the driveway for some distance before appellee brought the vehicle to a halt. According to appellant, appellee again started the car, at which time the front tire of the vehicle ran over appellant's right ankle as he tried to get out of the way. Appellant's resulting injury was diagnosed as a fractured dislocation of the ankle and ligament damage. During surgery the next day at George Washington University Hospital, appellant's doctor inserted a metal plate and screws into his ankle. Appellant spent five days in the hospital, and he wore a cast for three weeks and a brace for at least two or three months. Appellant testified that he also suffered a deep scrape of the right knee in which asphalt became embedded during the accident. According to appellant, it was only after months of soaking and bandaging the knee to remove the asphalt particles that his knee finally healed.

At the recommendation of his doctor and a second orthopedic surgeon, appellant underwent a procedure in 1992 to remove the plate and screws from his ankle. Unrelated to this procedure, two days later, appellant suffered a heart attack for which his doctors administered a thrombolitic agent, which breaks up blood clots. The medication prolonged the healing process for appellant's ankle because clotting is important to that process.

While the parties' respective medical experts disagreed as to the extent of the permanent injuries, both experts testified that appellant suffered some partial impairment as a result of the injury to his ankle. Dr. Mark Madden, appellant's treating physician for the second surgery, testified that appellant suffered a permanent twenty-one percent impairment to the ankle as a result of the accident, and a six percent overall impairment. Dr. Madden also testified that it was likely that appellant would develop arthritis in the ankle and that he would experience chronic stiffness, soreness and aching over the next many years. He further testified that appellant walked with a slight limp and that he had a limitation of motion of the ankle, although he had seen no indication in the medical records that appellant complained about pain. Appellee's expert, Dr. Richard Conant, rated appellant's overall functional impairment at about four percent and his ankle with a ten percent impairment. *fn2 Dr. Conant, who examined appellant in May 1992, described swelling around appellant's ankle and some irregularities in the joint.

Although appellant downplayed his pain during testimony, he provided some evidence that his ankle still caused him pain, or aches, as he chose to describe it. Appellant testified about physical limitations he experienced while performing his new job, including an inability to stand on a ladder for any period of time. He said that his ankle ached after his second or third trip walking around the grounds of his job site or during weather changes in winter. At the time of trial in June 1992, appellant testified he could play golf, although he said he could not walk the whole course and rode around it most of the time. He also said he played better with his brace on than off.

Appellant never returned to Kolb Electric where he was employed at the time of the accident. Six weeks thereafter, he took another job as the physical plant director of a college at an increase in salary. During questioning by his own attorney concerning his loss of earnings, appellant said that he did not work for about six or seven weeks after the accident. He testified that his initial loss of earnings was approximately $3500; however, he inadvertently volunteered that this was because the workers' compensation carrier paid sixty percent of his wages during the period of his disability. *fn3 During cross-examination, appellee's counsel pursued this line of inquiry, questioning whether the compensation carrier paid sixty percent of $3500 or whether that represented the total loss. Appellant objected and started to make an instructional request, but there was an interruption. Then, in an apparent effort to cure the problem, the trial court suggested that the parties stipulate to the amount of lost wages. *fn4 The trial court instructed the jury that such a stipulation would be made, deferring the exact stipulation of the total amount involved until later. Subsequently, appellant's counsel presented the parties' stipulation to the jury, specifying that appellant's total lost wages were $4434 and that the total medical expenses were $13,623.33. The trial court then instructed the jury that a stipulation is an agreed statement of facts between the parties which the jury can consider as undisputed evidence. The court also instructed the jury, without objection, that "if you return damages this much is not in dispute, which is to say if you find liability those amounts are not disputed."

On a special verdict form, the jury recorded its finding that appellee was negligent and that his negligence "caused injury to ." *fn5 The damages portion of the verdict form as completed by the jury's foreperson appears as follows:

a) medical expenses, pain and suffering: 100% - 11,756.93

b) loss earnings: 0

When the verdict was returned in open court, the foreperson stated "the equitable settlement that we came up with at 100 percent medical expenses is $11,756.93." In response to a question from the court, the foreperson stated that they awarded nothing more, "no loss wages." An individual poll confirmed the verdict as read, and the court discharged the jury.

Appellant filed a timely motion to set aside the verdict and for a new trial pursuant to Super. Ct. Civ. R. 59, to which appellee filed an opposition. *fn6 After a hearing, the trial court denied the motion, ...


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