Appeal from the Superior Court of the District of Columbia; (Hon. Rufus G. King, III, Trial Judge)
Before Farrell and King, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge King. Concurring opinion by Associate Judge Farrell. Dissenting opinion by Senior Judge Mack.
The opinion of the court was delivered by: King
KING, Associate Judge: In this medical malpractice action, trial court plaintiff Johnnie Mae Robinson ("Robinson"), daughter and administratrix of the estate of Lela Jones ("Jones"), seeks reversal of a judgment in favor of appellees Washington Internal Medicine Associates, P.C. and Dr. Merril Stock (collectively "Dr. Stock"). Robinson contends the trial Judge erred in instructing the jury on contributory negligence, maintaining there was insufficient evidence to support that defense. Further, Robinson contends the trial Judge, in giving the instruction, erred in not also instructing that the only acts of the decedent which could be considered contributorily negligent were those acts contemporaneous to the alleged negligent acts attributed to Dr. Stock.
Among his other arguments in support of the judgment, Dr. Stock contends that appellant was obligated to request a special verdict in order to preserve the issues presented in this appeal. In short, Dr. Stock contends that because no special verdict was sought, Robinson cannot demonstrate that the verdict rested on the assertedly erroneous contributory negligence instructions. For the reasons stated in Part II. A. and Part III. of this opinion, and in the Concurring opinion of Judge Farrell, we hold that where is no basis for reversal in this case.
Robinson brought survival and wrongful death actions, alleging negligent follow-up care by Dr. Stock, after he performed a lower endoscopic examination of the colon of 82-year-old Lela Jones. On the morning of January 24, 1991, Dr. Stock performed the endoscopy to determine whether Mrs. Jones was suffering from gastrointestinal bleeding. Shortly after recovering from the procedure, some two hours later, Jones was given written instructions by Dr. Stock to "promptly" report to him any "unusual bleeding, vomiting, pain, fever or other reactions" to the examination. In addition, Dr. Stock told Jones that she would probably experience some gas discomfort. Dr. Stock instructed Jones to call him the following morning to report how she was feeling. Thereafter, Jones was discharged and she returned home.
Later that day, Jones telephoned Robinson, her daughter, complaining that she was not feeling well. In response, Robinson directed Jones's great-granddaughter, who was approximately 23 years old at the time, to attend to Jones until Robinson could do so herself later in the day. When the great-granddaughter arrived, Jones told her that she was suffering from abdominal cramps. Thereafter, Robinson and Jones's granddaughter arrived, finding that Jones was still experiencing stomach cramps, which persisted throughout the evening and night. At no time that day or evening, or during the night, or early morning hours of the next day, did Jones, or anyone on her behalf, inform Dr. Stock, or any other medical personnel, of Jones's condition.
At approximately 9:00 a.m. the following morning, Robinson telephoned Dr. Stock as he had directed. Dr. Stock testified that Robinson reported only that Jones was experiencing gas discomfort and he recommended that decedent take some over-the-counter remedies to provide relief. On the other hand, Robinson testified that she informed Dr. Stock that her mother had been experiencing abdominal pain and had been "spitting up."
At approximately 3:00 p.m., Robinson again called Dr. Stock and informed him that Jones had a fever, had been vomiting and experiencing severe abdominal cramps, and had not urinated that day. Dr. Stock directed that Jones be immediately taken to an emergency room. Robinson then began to assist Jones in getting dressed, during the course of which Jones experienced a heart attack; she was pronounced dead at approximately 5:00 p.m. The cause of death was later determined to have been acute peritonitis as a result of a perforation of Jones's large bowel that occurred during the endoscopy.
At trial, Robinson's expert witnesses conceded that the perforation itself was not the result of negligent treatment, but was a known risk of the examination. The only negligence attributed to Dr. Stock was his asserted failure to properly respond during the course of the 9:00 a.m. telephone call. In his defense, Dr. Stock contended that Jones herself was negligent in not following the post-endoscopy instructions. Specifically, he argued that Jones failed to inform him of the severity of her symptoms. Dr. Stock's expert also testified that even if the decedent has been immediately treated as a result of the 9:00 a.m. conversation, she could not have been saved. On the other hand, Robinson's experts testified that at that stage Jones's condition was reversible with corrective surgery.
Over appellant's objection, the trial Judge instructed the jury on contributory negligence. Robinson contended that such an instruction was improper because there was no evidence that Jones, as opposed to Robinson who placed the call, had been negligent during the course of the 9:00 a.m. telephone call. Further, Robinson, although preserving her objection to the giving of the contributory negligence instruction, requested that the trial Judge instruct the jury that the only conduct that could be considered as being contributorily negligent was the asserted failure to inform Dr. Stock, during the 9:00 a.m. telephone call, of the true nature of Jones's condition -- not any antecedent failure of Jones to follow instructions. The trial Judge denied that request but advised that Robinson was free to make the point during closing argument. *fn1
During deliberations, the jury sent two separate notes to the court, the second of which stated: "some of our concern is equal negligence by majority vote. Where do we go from here?" In response, the trial Judge reinstructed the jury on the theories of negligence, contributory negligence, and causation, directing the jury to resume deliberation. Soon thereafter, the jury returned a general verdict in favor of Dr. Stock. This appeal followed.
This appeal raises a question that has never been expressly decided by this court: whether a plaintiff who failed to request a special verdict (or a general verdict accompanied by interrogatories) in a negligence action, where the defense denies negligence and also asserts the affirmative defense of contributory negligence, is estopped from challenging an adverse verdict on the ground that there was error in the giving of the affirmative defense instruction. In resolving that question, we look for guidance in our cases considering analogous issues.
In District of Columbia v. White, 442 A.2d 159, 164-66 (D.C. 1982), we reversed a judgment entered after a plaintiff's verdict in a negligence action where the jury was instructed on alternative theories of liability, and one of the theories was held by the court to be based on insufficient evidence. We reasoned that it was impossible to determine whether the verdict was based on a permissible or impermissible theory because the jury did not specify which theory or theories formed the basis for its verdict. Id. at 165. We concluded under those circumstances there was a possibility that the jury may have relied on the impermissible theory in reaching its verdict. Id. at 165-66 (citations omitted); see also District of Columbia v. Jackson, 451 A.2d 867, 873-75 (D.C. 1982) (remanding for new trial on damages).
Nine years later, this court narrowed the White rule in Nimetz v. Cappadona, 596 A.2d 603 (D.C. 1991). In Nimetz, as in White, there were several possible theories of negligence that the jury considered, at least one of which was hotly contested on sufficiency of evidence grounds. Id. at 605-06. To guard against the problem presented in White, plaintiff requested that the jury be given a special verdict form that would require it to specify which theory or theories formed the basis for any verdict reached. Id. at 604. The defendant objected, the trial Judge denied the request, and the jury thereafter returned a general verdict in favor of the plaintiff. Id.
On appeal, defendant conceded that there was sufficient evidence to support the verdict with respect to five of the six theories of liability; however, we held that the trial court erred in its instructions with respect to the sixth theory. Id. at 605-06. Under White, that determination would seemingly have called for a reversal of the judgment. Declining to reverse, however, we "adopted the rule that a defendant who fails to request a special verdict form in a civil case will be barred on appeal from complaining that the jury may have relied on a factual theory unsupported by the evidence when there was sufficient evidence to support another theory properly before the jury." Id. at 608. The court reasoned that "from the perspective of the most efficient use of the judicial system, it would clearly have been preferable for [defendant's] counsel to have acquiesced in (and the trial Judge to have granted even over objection) [plaintiff's] counsel's request for a special verdict form . . . . Our courts are overburdened, and a plaintiff should not have to endure a second trial when the rules of procedure provide a remedy . . . . The litigants bear the responsibility to request or submit special verdict forms." Id. at 607-08 (emphasis added; citations and internal quotation omitted). Also holding that the rule announced would apply to that case, we affirmed the judgment that had been entered in favor of the plaintiff. Id. at 608-10.
White and Nimetz involved multiple theories of liability with general verdicts in cases where it was determined that at least one of the theories could not be sustained. This case, however, involves a single theory of liability with two separate defenses: either there was no negligence (or no proximate causation) or, if there was negligence, the plaintiff was contributorily negligent. Because the jury returned a general verdict in favor of the defendants, we do not know whether the jury found that the defendants were not negligent (or that proximate causation was not proven) or that the plaintiff was contributorily negligent. The identical circumstances were present in Sinai v. Polinger Co., 498 A.2d 520, 523 (D.C. 1985), where the plaintiffs contended that the trial Judge erred, inter alia, by instructing the jury on affirmative defenses of assumption of risk and contributory negligence. In Sinai, we observed that because a general verdict was returned, "we do not know whether [the jury] even reached the question of contributory negligence or assumption of risk." Id. at 523 n.1. Nevertheless, the court reached the merits but warned that:
we do not rule out the possibility, in future cases, of requiring that a plaintiff make some showing of special prejudice before he [or she] will be permitted to challenge the verdict based on issues the jury may well never have reached, where the plaintiff, as in this case, failed to request that special interrogatories be submitted to the jury.
Judge Nebeker, Concurring separately, declined to reach the merits, urging that the court adopt the rule that a plaintiff who wishes to challenge an adverse verdict because of asserted defects with respect to an affirmative defense must demonstrate, either through a special verdict form or interrogatories, that the verdict rested on that defense. Id. at 533-34 (Nebeker, J., Concurring in result). He reasoned that because a general verdict was returned, appellants could not establish prejudice requiring a new trial: "The general verdict shrouded the decision of the jury in darkness. Appellants might have dissipated that darkness by asking pursuant to Super. Ct. Civ. R. 49 (b), for a general verdict accompanied by the jury's answers to interrogatories." Id. at 533 (Nebeker, J., Concurring in result) (citation, internal quotation, and alteration omitted). Further, he noted that such a requirement is necessary "where, as here, there was a genuine question regarding primary negligence, it is entirely possible that the jury never even reached the issues presented by the instructions." Id. Finally, remarking that every appellant bears the burden of persuading the court that the trial Judge committed error, Judge Nebeker observed that had interrogatories been requested by trial counsel, "we would know specifically what the jury found and whether they even considered the defenses asserted by appellees." Id. (citation omitted).
As foreshadowed by Sinai, we now hold that a plaintiff who objects to the giving of affirmative defense instructions, but who does not request either a special verdict or a general verdict with interrogatories, is estopped from raising any claim of error with respect to the affirmative defense on appeal. In so holding, we reiterate that it is well established that a party challenging an adverse judgment bears the heavy burden of persuading this court that the trial Judge committed error. Cobb v. Standard Drug Co., 453 A.2d 110, 111-12 (D.C. 1982); see also Sinai, supra, 498 A.2d at 533 (Nebeker, J., Concurring in result) (citation omitted); D.C. Code § 11-721 (e) (1989). An appellant satisfies that burden by presenting the court with a record sufficiently demonstrating entitlement to the relief sought. See Cobb, supra, 453 A.2d at 111-12. Requiring a special verdict in these circumstances is entirely reasonable "where, as here, there was a genuine question regarding primary negligence, it is entirely possible that the jury never even reached the issues presented by the instructions. Instead, the jury may simply have found that the defendants were not negligent." Sinai, supra, 498 A.2d at 533 (Nebeker, J., Concurring in result). Further, "while it is true that the trial court might have rejected counsel's proposed queries, appellants would have been able to preserve an objection to the failure to direct answer to specific questions." Id. (citation omitted). Thus, a plaintiff who challenges an affirmative defense instruction, but fails to take steps to preserve the point raised before the trial court, cannot demonstrate prejudice attributable to the assertedly erroneous instruction.
We are satisfied that White does not compel a contrary result, and we are persuaded that the holding in that case should be limited to its facts. *fn2 White is very much a minority rule, *fn3 and most state courts follow the so-called general verdict rule, which provides that if a jury renders a general verdict, and no party requests a special verdict or interrogatories, the appellate court will affirm the judgment based on that verdict if substantial evidence supports any one of the other theories upon which the jury was instructed. *fn4 In sum, we extend the estoppel rule we announced in Nimetz to the circumstances presented here and, therefore, hold that a plaintiff who fails to request either a special verdict or a general verdict with interrogatories, in a negligence action where the defense both denies negligence (or, relatedly, proximate causation) and asserts an affirmative defense, is estopped from contending on appeal that the jury may have relied on an impermissible affirmative defense theory if the evidence supports an alternative rejection of primary negligence by the jury.
Ordinarily we would next determine, as we did in Nimetz, whether to apply the new estoppel rule to the litigants actually before the court. As noted in his Concurring opinion, however, Judge Farrell would not reach that issue, but would affirm on other grounds. For the reasons stated below, I am of the view that the estoppel rule we have announced in Part II. A. should apply in this case.
In Nimetz, we held that, although retroactive application was not automatic, the estoppel rule announced should apply in that case, based on the factors set forth by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). The continued vitality of Chevron Oil has been placed in doubt, however, by two recent decisions of the Supreme Court. Specifically, in James B. Beam Distillery Co. v. Georgia, 501 U.S. 529, 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991), and more recently in Harper v. Virginia Dep't of Taxation, U.S. , 113 S. Ct. 2510 (1993), the Court held that, where it had applied a new rule of federal law in a civil case, the new rule "must be given full retroactive effect in all cases still open on direct review." Harper, supra, 113 S. Ct. at 2517. In both James B. Beam and Harper, however, the Court was implementing federal law and neither case purports to apply to the circumstances presented here. It is not necessary to decide, however, whether the automatic retroactivity rule of James B. Beam and Harper or the more flexible principles set forth in Chevron Oil should govern because, as pointed out below, application of the Chevron Oil factors nonetheless compels the Conclusion that the estoppel rule announced today should apply to the litigants in this case.
In Nimetz, the court resolved the question of the applicability of a new rule there announced to the litigants in the case before it by applying the factors set forth in Chevron Oil, supra. Chevron Oil, however, dealt with the retroactivity of a new rule, which had been announced in a completely different case, to cases that were pending when the new rule was announced. *fn5 In short, Nimetz dealt with same-case retroactivity, while Chevron Oil dealt with the retroactivity of another case previously decided, i.e., other-case retroactivity. Analysis under Chevron Oil requires an examination of the previous rule, the reliance upon that rule by litigants, and the potential hardship, if any, that would result from retroactive application of the new rule. See Chevron Oil, supra, 404 U.S. at 106-07.
More closely on point on same-case retroactivity is this court's decision in Mendes v. Johnson, 389 A.2d 781 (D.C. 1978) (en banc), where we analyzed the factors to be considered in determining whether to apply a new rule of law to the litigants in the case in which the new rule was announced. Most of the Mendes factors are essentially the same as those applicable in other-case retroactivity analysis, i.e., considerations relating to the significance of the litigant's reliance on the old rule. The court recognized, however, that there is a distinction between same-case retroactivity and other-case retroactivity when the majority held that the new rule announced in Mendes would apply in that case, but it would not otherwise operate retroactively. *fn6 See id. at 789 (same-case retroactivity, but other-case non-retroactivity). In reaching that result, the court acknowledged that rewarding a party who seeks to change the law, by applying the new rule to that party, a consideration not included within the Chevron Oil analysis, is a significant factor in determining same-case retroactivity. *fn7 See id. at 791. Giving similar weight to that factor in this case provides further support for the Conclusion below, applying the Chevron Oil factors, that the new rule should be applied in this case.
In Nimetz, in deciding whether to impose a rule retroactively, we looked to factors set forth in Chevron Oil:
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Finally, we have weighed the inequity imposed by retroactive application, for where a decision of this Court could produce ...