Moreover, in the welter of evidence sorted out by the jury, admission of this item, even if erroneous, affected no substantial right of defendant and was therefore harmless. See Fed. R. Evid. 103(a); Fed. R. Civ. P. 61.
9. The Roger Wood Deposition
Defendant seeks a new trial because of a colloquy read to the jury from the deposition of Roger Wood, formerly WMATA's Manager of Safety and Fire Protection; specifically, one question and answer that could be construed as an opinion that WMATA had an affirmative duty to prevent decedent from attempting suicide. See Defendant's Motion for Judgment as a Matter of Law or for a New Trial at 39-40.
Defendant confuses what transpired during the January 1995 trial with what transpired during the December 1992 trial. At the earlier trial in 1992, plaintiff's counsel did indeed read to the jury that portion of Mr. Wood's deposition in which Mr. Wood stated, "It is our duty to try to prevent injury toward anyone, either accidental or self-induced, if possible." Trial Transcript, vol. 3, Dec. 10, 1992, at 282. At the January 1995 trial, however, when plaintiff's counsel again read aloud the Wood deposition, plaintiff's counsel did not recite this question-and-answer exchange concerning WMATA's duty to prevent suicides. See Trial Transcript, Jan. 20, 1995 at 96; compare Trial Transcript, Dec. 10, 1992 at 282. This is because two days earlier, on January 18, counsel for both parties approached the bench and discussed the admissibility of this particular question-and-answer in the Wood deposition. I sustained defendant's objection to the reading of this passage. See Trial Transcript, Jan. 18, 1995 at 126.
Therefore, defendant's argument on this point is moot. I had already ruled in defendant's favor on this question and the complained-of portion in the Wood deposition was not admitted at trial and was not read aloud at trial.
10. Expert Witness Dr. McMahon
A collateral issue was whether decedent was struck in mid-air so that it would have been demonstrably impossible to stop the train between the time she jumped and the time she was struck. Dr. McMahon, a pathologist engaged by WMATA as an expert witness, was the subject of a discovery deposition and testified at the first trial. She was out of the jurisdiction and unavailable to testify live at the second trial.
Over defendant's objection, plaintiffs read into the record McMahon's deposition testimony confirming statements in a leading question by plaintiffs' counsel that decedent's injuries "are not consistent with the finding that [decedent) was hit in mid-air . . . no contrecoup lesions . . . [no] multiple compound fractures in the lower legs . . . no evidence that [she] was thrown to the ground. . . . no evidence of bruises on the knees . . . or the hips." In effect, Dr. McMahon testified that on the basis of the reports she had seen, there was no "evidence that she was hit in midair based on where she might have been struck, as in the limbs." See Trial Transcript, Jan. 20, 1995 at 79.
At the first trial I sustained defendant's objection because the doctor could state only that counsel's "scenario" is consistent with the injuries and did not render an opinion to a reasonable degree of medical certainty. At the second trial I overruled the objection because, like a treating physician, the doctor was essentially describing what she had observed from the autopsy reports. See Trial Transcript, Jan. 20, 1995 at 13-14. Whatever may have been the dispute about the lapse of time between the jump and the train impact, there was no credible evidence of an almost simultaneous, mid-air jump and hit. It was well within the function of the trier of fact to find in Dr. McMahon's deposition a confirmation of the site of plaintiff's injuries, as observed by the doctor in the autopsy report, and a confirmation of the lack of any evidence in the autopsy reports of a mid-air strike. That is marginally but materially different from an opinion that there was no mid-air strike. In the total context, if admission of the deposition observations was erroneous, it did not affect substantial rights of the defendant.
11. Damages and the Collateral Source Rule
At trial, defendant proffered the testimony of the decedent's husband that he was responsible for providing a replacement homemaker and the testimony of an economist to value those services. I sustained plaintiffs' objection to this proffered testimony in deference to the collateral source rule. Defendant contends that this principle does not apply where the "source" has a legal obligation to support a child. Defendant cites no authority for this proposition, and independent research has disclosed none.
The collateral source rule is a common law doctrine providing that an "injured person may usually recover in full from a wrongdoer regardless of anything he may get from a 'collateral source' unconnected with the wrongdoer." See District of Columbia v. Jackson, 451 A.2d 867, 870 (D.C. 1982). The reason for this rule has been that "'it is more just that the windfall should inure to the benefit of the injured party than that it should accrue to the tort feasor.'" Id. (quoting Adams v. Turner, 238 F. Supp. 643, 644 (D.D.C. 1965)).
Defendant argues that because Eric Smith is now being taken care of by his father and his stepmother, the damages calculated because of the loss of services resulting from the death of his mother, Devora, should be mitigated. This argument is untenable. Following its premises to its logical conclusion, defendant's argument would mean that no child who lost a parent would ever recover wrongful death benefits in full because the surviving parent would always have a legal obligation to take care of that child -- surely, this is a perversion of the rationale of this doctrine, that it is more just that the windfall should inure to the benefit of the injured party than that it should accrue to the tortfeasor.
* * *
Accordingly, an accompanying order denies defendant's motions in all respects.
Date: Sept. 29, 1995
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
For the reasons stated in the accompanying Memorandum, it is this 29th day of September, 1995 hereby
ORDERED: that defendant's motion for judgment as a matter of law, or in the alternative, for a new trial should be, and is hereby, DENIED.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
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