simply unwilling to grant Defendants a new trial. To do so would not serve the interests of justice.
Amount of Damages
In assessing whether an award is excessive, the Court should determine if the size of the verdict is beyond reason, if it "shocks the conscience" of the court, or if it represents a "miscarriage of justice." Frank v. Atlantic Greyhound Corp., 172 F. Supp. 190, 191 (D.D.C. 1959). The Court should determine if the verdict is beyond that which a reasonable jury could have properly awarded and not simply whether the judge would have awarded less. Graling v. Reilly, 214 F. Supp. 234 (D.D.C. 1963).
The Court finds that the verdict was excessive. Although the Court does not want to minimize the pain and suffering and mental anguish Plaintiff endured, a verdict of $ 4.1 million is beyond reason, especially when Plaintiff had no lost wages and proved special damages of less than $ 30,000. In this case, the jury award totaled more than 136 times the amount of special damages in the case, or $ 1,600 in damages for each day that he was misdiagnosed. Even allowing a generous award for pain and suffering, such an award is excessive.
If the court determines that the award is excessive, a remittitur may be used instead of ordering new trial. Datskow v. Teledyne Continental Motors, 826 F. Supp. 677 (W.D.N.Y. 1993). Generally, a remittitur is used when an excessive award cannot be attributed to a particular, quantifiable error; in contrast, when "prejudicial error has infected the jury's entire consideration of plaintiff's pecuniary loss," a new trial is the appropriate remedy. Id. (citations omitted). Applying this standard, the Court believes that remittitur is appropriate.
Accordingly, the motion for a new trial on grounds of excessive damages is denied. However, should the Plaintiff refuse to accept remittitur, the motion for a new trial on damages will be granted.
1. Defendant Bruni
Defendant Bruni claims that the Court erred in the following ways: 1) the Court gave multiple, "non-standard" instructions to the jury on damages, resulting in a disproportionate emphasis on the issue of Plaintiff's alleged damages; 2) the Court inappropriately dismissed several potential jurors because of alleged work conflicts; 3) the Court, by requesting that Defendant put on his principal "standard of care" and "causation" witness out of turn, adversely affected the presentation of his case; 4) the Court "rushed" the jury to verdict, thus preventing its careful deliberation of the issues in the case; and 5) the Court allowed Plaintiff's counsel to mischaracterize the "standard of care" required of Defendant.
As to Bruni's first argument, there was no error committed by the Court in the Court's instructions to the jury on damages. A goal of all jury instructions is clarity and precision. The jury is certainly entitled to understand what is meant by the various items of damages which they are asked to consider. It would defeat the purposes of jury instructions if the instructions were obtuse and incomprehensible. It is certainly within this Court's discretion to give instructions which are understandable and precise. Here, the instructions on damages were direct and clear.
Regarding Bruni's second argument, it is also well within the Court's discretion to dismiss potential jurors who would suffer undue hardship by sitting on the jury due to "work conflicts." It is also worth pointing out that it is not in the best interests of the parties to have "unwilling" and "unhappy" jurors. What is more, the court recalls few, if any, "real" objections to the dismissal of potential jurors.
With respect to Bruni's third argument, Defendant requested that he be able to put his main "standard of care" and "causation" witness on the stand prior to the start of Plaintiff's case due to scheduling conflicts based on his expert's travel plans. The granting of Defendant's request by this Court was a privilege to which the Defendant was certainly not entitled and to which Plaintiff objected. Defendant cannot now be heard to say that the Court erred by granting his request. It was up to the Defendant to ensure the availability of his own experts (either in person or through deposition testimony) given the uncertainty which necessarily accompanies the timing of events during a trial. If his witness was "rushed" it was due to the witness' travel plans.
As to Bruni's fourth argument, just as the Court did not rush the Defendant's witness, the Court did not "rush" the jury's verdict. The jury sat through testimony in this case for two and one half weeks. Once the issue of liability was decided, the amount of damages did not require complicated calculations. There was no issue of back pay or lost wages; the case only involved non-special damages. There is no requirement that a jury must deliberate for a certain period of time. Indeed, the fact that the jury rendered its verdict in so short a period of time indicates that the case was forcefully and understandably presented and shows that there was little disagreement among the members of the jury.
Finally, the Court did not err by allowing Plaintiff to present expert testimony regarding "package inserts." Such inserts contain the manufacturer's recommendations for prescribing the specific drug. Such evidence was properly admissible with respect to the "standard of care."
2. Defendant McCoy
Defendant McCoy also suggests that a host of procedural errors occurred, making the same arguments which this Court has already rejected. McCoy contends that the Court erred in the following ways: 1) by admitting the unqualified, unsupported opinion testimony of Dr. Resnick;
2) by allowing Plaintiff to read Massey's deposition to the jury;
and 3) by admitting exhibits 9 and 11 relating to the creation of Providence Laboratory Associates ("PLA"). The Court finds that its rulings on these issues during the trial were not in error.
As discussed supra, Defendant McCoy asserts that the verdicts as between McCoy and Providence are inconsistent and that this is a ground for a new trial. This was a highly complex case in which the Plaintiff asserted various theories of liability against each defendant. Based on the evidence presented, it was permissible for the jury to find liability against one defendant and not the other.
Even if the verdicts were inconsistent, Defendant McCoy has waived its right to raise this argument. Defendant specifically requested that the Court separately instruct the jury as to Plaintiff's theories of liability against Defendant McCoy and Defendant Providence and did not object when the verdict form was sent to the jury which did not tie the liability of Defendant McCoy and Defendant Providence together. Moreover, in Defendant McCoy's proposed jury instructions, Defendant McCoy did not ask for an instruction to the effect that it would be impermissible for the jury to find McCoy liable if the jury found in favor of Providence.
Both Defendant Bruni's counsel and Defendant McCoy's counsel state that they met with the jury foreperson after the verdict was rendered and that the foreperson indicated that the $ 10 million figure mentioned by Plaintiff's counsel during the opening arguments was not erased from the minds of several jurors despite the Court's instruction to the jury to strike the figure from its consideration.
They also state that the jury foreperson indicated that the jury employed an impermissible method to arrive at the damage figure - each juror submitted a figure representing his or her perspective of the value of the case and the numbers were averaged.
Both Defendant Bruni and Defendant McCoy move for a new trial on the basis of the foreperson's statements.
The general rule, as McCoy concedes, is that one or more individual jurors cannot impeach a verdict. A court generally cannot consider statements made by individual jurors after a verdict has been rendered in ruling on a motion for new trial. McDonald v. Pless, 238 U.S. 264, 59 L. Ed. 1300, 35 S. Ct. 783 (1915); Sellars v. United States, 401 A.2d 974 (D.C. App. 1979). The following reasons have been cited for the general rule: 1) to discourage harassment of jurors by losing parties eager to have the verdict set aside; 2) to encourage free and open discussion among jurors; 3) to reduce incentives for jury tampering; 4) to promote the finality of the verdict; and 5) to maintain the viability of the jury as a judicial decision-making body. Sellars at 981.
With respect to so-called compromise or "quotient verdicts," the Supreme Court held in McDonald that, although a jury should not render a "quotient verdict," the testimony of a juror could not be used to impeach the verdict on such grounds. McDonald at 268. As such, a new trial is not warranted on the grounds that the jury may have rendered a "quotient verdict."
The out of court statement of the foreperson regarding the $ 10 million figure similarly cannot be used to impeach the verdict. The exceptions to the general rule that a jury cannot impeach its verdict are limited. Courts have held that a juror's testimony can impeach the verdict with respect to matters of "extraneous influences." For example, a party may challenge the verdict through jurors' testimony when it is discovered that the jurors have "learned of publicity unfavorable to the defendant, that outside parties had contacted them, or that their verdict had been incorrectly reported." Sellars at 981 (citations omitted).
The general rule against impeachment applies where jurors may not have understood their instructions. Smallwood v. Pearl Brewing Co., 489 F.2d 579, 602 n.30 (5th Cir. 1974), cert. denied, 419 U.S. 873, 42 L. Ed. 2d 113, 95 S. Ct. 134 (1974) ("Whether or not the jury misunderstood the charge of the court is not a question to be reexamined after the verdict has been rendered."). Here, the Court issued an instruction that the jurors were to disregard the $ 10 million figure.
This is not a case which falls within the exceptions to the general rule. This case is a perfect illustration for why the general rule is necessary. If each time the Court issued curative instructions a party receiving an unfavorable verdict could question whether the jury had followed its instructions, the finality of verdicts would be threatened. During the course of a lengthy and complex trial, it is not uncommon for many objections to be made that a certain comment was prejudicial and should be stricken. If the rule against impeachment were otherwise, there would be countless post-trial proceedings where each member of the jury would be required to justify his or her decision.
Based on the foregoing, the Court denies Defendants' motion for a new trial based on the foreperson's alleged statements.
McCOY'S AND BRUNI'S MOTIONS FOR REMITTITUR
The power of a court to remit is derived from its authority to order new trials when it determines that a jury has awarded the plaintiff excessive damages. Mooney v. Henderson Portion Pack Co., 339 F.2d 64 (6th Cir. 1964). As discussed above, the Court believes damages of $ 4.1 million in this case are excessive, and that remittitur is the appropriate remedy.
Accordingly, the court grants Defendants' motion for remittitur. In fixing the remittitur amount, the court is to reduce the damages to the maximum amount that the jury could have properly awarded. Dimick v. Schiedt, 293 U.S. 474, 486, 79 L. Ed. 603, 55 S. Ct. 296 (1935). Applying this standard, the Court believes remittitur in the amount of $ 2.1 million is appropriate. Unless Plaintiff stipulates to a remittitur of the amount awarded by the jury that exceeds $ 2 million, the Court will grant a new trial, limited to the issue of damages.
Defendants McCoy and Bruni filed cross-claims against one another and agreed that the court would resolve such cross-claims at the conclusion of the trial. Defendant McCoy requests that the Court dismiss Defendant Bruni's cross-claim and claims that McCoy is entitled to indemnification, or in the alternative, contribution from Bruni. Similarly, Defendant Bruni requests complete or partial indemnification from Defendant McCoy. Both Defendants claim that they are entitled to an apportionment of the verdict rather than being subject to joint and several liability. Plaintiff opposes Defendants' claims.
When a verdict is apportioned, each defendant found to be liable is only required to pay Plaintiff a certain portion of the verdict. The amount of the verdict remains the same, but each defendant is not jointly and severally liable to the Plaintiff for the total amount of the verdict. Apportionment deals solely with the rights of the defendants as against the Plaintiff rather than with the varying degrees of liability between the defendants. National Health Labs., Inc. v. Ahmadi, 596 A.2d 555, 562 n.18.
"Ordinarily, when two tortfeasors jointly contribute to harm to a plaintiff, both are potentially liable to the injured party for the entire harm." Ahmadi at 557. "Where the negligence of two defendants contributes to a single injury, both are jointly and severally liable, regardless of the degree of negligence on the part of each." R. & G. Orthopedic Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530, 544 (D.C. App. 1991), citing Hill v. McDonald, 442 A.2d 133, 137-38 (D.C. App. 1982).
Here, Plaintiff prayed in his amended complaint that Defendants be held jointly and severally liable for Plaintiff's injuries and the case was tried on that basis. The verdict form, which was not objected to by Defendants, requested that the jury find in favor of either the Plaintiff or the respective Defendants on the issue of liability for Plaintiff's injuries. Not until the post trial motions did Defendants suggest that the verdict should be apportioned between them.
The Restatement of Torts States,
Certain kinds of harm, by their very nature, are normally incapable of any logical, reasonable, or practical division. . . By far the greater number of personal injuries, and of harms to tangible property, are thus normally single and indivisible. Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.
Restatement (2nd) of Torts, section 433A, comment subsection (2). In this case, each defendant was a substantial factor in bringing about Plaintiff's harm.
Plaintiff suffered both physically and mentally as a result of McCoy's erroneous test results and Bruni's subsequent treatment. Plaintiff lived with the belief that he was dying of AIDS for seven years. The physical and emotional harm suffered by Plaintiff is simply incapable of division on any logical or reasonable basis and each is responsible to the Plaintiff for the entire harm.
Accordingly, the Court hereby denies Defendants' requests for apportionment. Both defendants are jointly and severally liable to Plaintiff for the entire amount of damages.
Indemnification and Contribution
Although a duty to indemnify often arises from contract, it can also be implied in law in order to achieve an equitable result and prevent injustice. R.& G. at 544. The concept of indemnity in the absence of a contractual relationship is a question of equities. The D.C. Court of Appeals noted with approval the articulation of the concept by Prosser and Keeton in their treatise, The Law of Torts:
Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnify has been recognized in cases where the equities have supported it. A court's view of the equities may have been based on the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct.
Id. at 544 (quoting W. Prosser & R. Keeton, The Law of Torts § 51 (1984)). Although the Court "approved" the Prosser definition which includes reference to "a significant difference in the kind or quality of their [the tortfeasors'] conduct" as a basis for indemnification, the Court was careful to point out the following "qualification" - "since we have not adopted any principle of comparative negligence, a considerable differential between the quantum of negligence cannot warrant indemnification." Ahmadi at 558, n.9.
Indemnity can be total or partial. See, e.g., R.&.G. at 547, (citing New Milford Bd. of Educ. v. Juliano, 219 N.J. Super. 182, 530 A.2d 43 (N.J. Super. 1987) (Court held that initial tortfeasor could receive indemnification from subsequent tortfeasors for portion of damages).
Contribution is likewise an equitable concept, which recognizes that each tortfeasor found to be liable should share the burden of making the Plaintiff whole. R.& G. at 544, citing Martello v. Hawley, 112 U.S. App. D.C. 129, 300 F.2d 721, 723 (D.C. Cir. 1962). Generally, joint tortfeasors shoulder the burden in equal shares and "the fact that the negligence of one may be greater than that of another does not give rise to a right of indemnity and does not change the method of equally apportioning contribution, as the law of this jurisdiction does not recognize degrees of negligence." Early Settlers Ins. Co. v. Schweid, 221 A.2d 920, 923 (D.C. App. 1966). As the D.C. Court of Appeals noted, the rule that each of two tortfeasors pays half is consistent with the fact that the District is not a comparative negligence jurisdiction. R.& G. at 544.
The Court finds, as did the trial court in Ahmadi, that this is a "classic case for contribution between joint tortfeasors."
Ahmadi at 561. The facts in Ahmadi are quite similar to the facts of this case. In Ahmadi, the plaintiff suffered permanent paralysis after a misdiagnosis of her ailment; the plaintiff sued both the laboratory that improperly conducted a blood test and the medical group that treated her after the erroneous blood test. The Court found that neither the lab, nor the medical group, were entitled to indemnity from the other under the principles of equity.
Principles of equity simply do not dictate that indemnity is warranted for either McCoy or Bruni. The negligence of both entities combined to cause Plaintiff's injury. Both had a duty to render Plaintiff competent medical services and the jury found both to have failed. Without the initial erroneous test results by McCoy, Plaintiff would not have received the treatment from Bruni which the jury found to be negligent. McCoy could have foreseen that a doctor would rely on its test results. Bruni was certainly in a position to allay many of Plaintiff's harms - he could have retested Plaintiff when he initiated treatment or could have retested Plaintiff when Plaintiff's T-cell count was not falling. The actions of the two tortfeasors were both substantial factors in causing Plaintiff to suffer harm. To require one tortfeasor to indemnify the other under the circumstances of this case would contravene the interests of justice.
Because both were negligent, the principles of equity are served by requiring that each Defendant share in the satisfaction of Plaintiff's judgment. Because the District does not recognize degrees of fault, both Defendant McCoy and Defendant Bruni will be ordered to contribute 50% of the award.
Plaintiff's Motion for Approval of Bill of Costs
Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and Rule 214 of the United States District Court Rules, Plaintiff moves the Court to approve its bill of costs submitted against Defendants Bruni and McCoy. Plaintiff requests reimbursement of $ 12,362.97 in costs.
The Judgment entered on June 28, 1995 provides that plaintiff "have and recover of and from the defendant(s) Larry M Bruni M.D., P.C., Larry M. Bruni, M.D., and K.L. McCoy, M.D. and Associates, P.C. the sum of 4.1 Million Dollars ($ ), together with costs." Plaintiff's counsel provided an affidavit in which he states that the items enumerated in Plaintiff's Bill of Costs were necessarily incurred and that the services for which the fees were charged were actually and necessarily performed.
Defendant Bruni has filed an opposition to Plaintiff's motion for approval of bill of costs. First, Defendant Bruni contends that Plaintiff's motion is premature because the judgment has not become final. Next, Bruni contends that the following costs are not allowed: 1) $ 6,263.16 for deposition transcripts; 2) $ 712 for trial transcripts; 3) filing fees of $ 60.00 in the bankruptcy court; and 4) other copy costs of $ 300.00.
Defendant McCoy has also filed an opposition to Plaintiff's motion, challenging many of the same costs as Defendant Bruni, and contends that Plaintiff can only recover costs of $ 3,528.41. McCoy challenges Plaintiff's requests for costs relating to service of summons/subpoenas; for costs relating to court transcripts; for costs relating to deposition transcripts; for costs relating to filing fees with the bankruptcy court; and for costs relating to copying.
The Clerk shall not tax the costs until "the judgment has become final or at such earlier time as the parties may agree or the Court may order." See Local Rule 214(c). Local Rule 214(c) further provides that,
A judgment is final when the time for appeal has expired and no appeal has been taken, or when the court of appeals issues its mandate.
The Court finds that the costs should not be taxed until the judgment becomes final. Accordingly, the motion for approval of bill of costs is premature. Nevertheless, the Court will discuss Bruni's objections and McCoy's primary objections
to the Plaintiff's bill of costs in the interests of efficiency and will give them appropriate consideration should the judgment become final in Plaintiff's favor.
With respect to the costs of deposition transcripts, a prevailing party is allowed to recover "the cost, at the reporter's standard rate, of the original and one copy of any deposition noticed by the prevailing party, and of one copy of any deposition noticed by any other party, if the deposition was used on the record, at a hearing or trial." Local Rule 214(d)(6). The comment to the rule states that "deposition transcript costs are allowed only for depositions actually used in the case, regardless of who noticed the deposition." The comment further states that "the costs of depositions used in support of motions or pleadings may be taxed as well as depositions used at trials or hearings." Defendant Bruni suggests that the depositions of 18 persons were never used "on the record, at a hearing or trial."
Should the judgment become final in the Plaintiff's favor, the Court requires that Plaintiff and Defendants McCoy and Bruni meet and confer on this issue and submit a joint statement listing the depositions which were used and the depositions which were not used "on the record, at a hearing or trial." If the parties cannot agree, then each party should file a separate list with detailed support regarding any deposition transcript on which a dispute has arisen.
As to Defendants' objection to Plaintiff's recovery of trial transcript costs, such costs are only taxable where the transcript was "necessarily obtained for use in the case." 28 U.S.C. § 1920. The Court believes that the recovery of such costs are appropriate. As a general rule, in complex litigation trial transcripts are necessary to ensure a well-presented case. Accordingly, should the judgment become final in Plaintiff's favor, the court will allow such costs unless further argument can be presented which would change the court's mind.
With respect to Defendants' objection that Plaintiff is not allowed to recover the Bankruptcy Court filing fee, the Court would like the Plaintiff and Defendants to provide further briefing should the judgment become final in Plaintiff's favor. Pursuant to Local Rule 214(d)(1), a prevailing party is entitled to "clerk's fees." The question is whether Plaintiff is entitled to recover the costs of the bankruptcy court filings in this case. Neither party has addressed this issue.
As to Defendant Bruni's opposition to Plaintiff's request for other copying costs of $ 300, such costs are specifically allowed under Rule 214(d)(9).
Defendant Providence's Motion for Approval of Bill of Costs
Defendant Providence Hospital moves the Court pursuant to Rule 54(d) of the Federal Rules of Civil Procedure for approval of its bill of costs. Defendant requests $ 12,343.05 in reimbursement for costs.
The Judgment entered for Defendant against Plaintiff on June 29, 1995 specifies that "Raymond Machesney take nothing on the complaint against defendant(s) Providence Hospital and that the said defendant(s) have and recover costs from the said plaintiff(s)."
Plaintiff does not challenge Defendant's right to recover costs and does not suggest that the motion is premature.
plaintiff, however, does challenge several of the costs which Providence seeks to recover. Specifically, Plaintiff contends that Defendant is not entitled to recover the following: 1) fees of $ 5,021.25 for its expert witness costs; 2) costs of $ 1405.25 for depositions not used in this case; and 3) costs of $ 1386 for the daily copy of Dr. Resnick's testimony. In total, Plaintiff argues that $ 7812.50 should be deducted from Defendant Providence's bill of costs, which would leave Defendant with reimbursement for costs of $ 4530.55.
With respect to its request for $ 5,021.25 for its expert witness fees, Defendant fails to cite any authority for the taxation of expert witness fees in cases where the expert is not court-appointed. Title 28 U.S.C. § 1920 and Local Rule 214, both of which specifically define what the Clerk may tax as costs, only provide for the taxation of fees for court-appointed experts. This jurisdiction cites with approval the Supreme Court holding in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987) that § 1920 and other statutes "define the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further." Sexcius v. District of Columbia, 839 F. Supp. 919, 927, n. 25 (D.D.C. 1993), aff'd., sub. nom., Covington v. District of Columbia, 313 U.S. App. D.C. 16, 57 F.3d 1101 (D.C. Cir. 1995). Accordingly, the Court finds that Defendant is not entitled to have its expert witness fees taxed as costs.
Providence is also not entitled to recovery of its costs for deposition transcripts noticed by other parties to the case that were not used "on the record, at a hearing or trial." See Local Rule 214(d)(6) and discussion, supra. The Court, however, is unclear as to which depositions were used "on the record, at a hearing or trial." With respect to the deposition transcript costs to which the Plaintiff has objected, the Court requires that the Plaintiff and Providence submit further support detailing the factual and legal basis of their respective positions.
As to Defendant's request for reimbursement for its portion of the costs of a daily transcript of Dr. Resnick's testimony, such costs are only taxable where the transcript was "necessarily obtained for use in the case." 28 U.S.C. § 1920. Plaintiff contends that ordering the transcript was not a necessity, but a "luxury." The Court believes that Defendant is entitled to these costs.
Obtaining copies of the trial transcript in a case such as this is a virtual necessity in order to ensure a "well-tried" case in which the lawyers are fully informed.
Accordingly, the Court finds that Defendant's bill of costs should be reduced by $ 5,021.25 to reflect the fact that the non-court-appointed expert witness fees are not recoverable. The Court retains jurisdiction to rule on whether Defendant is entitled to deposition transcript costs of $ 1405.25. The other costs specified by Defendant Providence are recoverable.
An appropriate order accompanies this memorandum opinion.
United States District Judge
This matter comes before the Court on the following post-trial motions: 1) Defendant K.L. McCoy, M.D. & Associates, P.C.'s ("McCoy") motion for judgment as a matter of law; 2) Defendants Larry M. Bruni, M.D. and Larry M. Bruni, M.D., P.C.'s (collectively referred to as "Bruni") motion for judgment as a matter of law; 3) Defendant Bruni's renewed motion for a mistrial; 4) Defendant McCoy's motion for a new trial; 5) Defendant Bruni's motion for a new trial, or in the alternative, remittitur; 6) Defendant McCoy's motion for remittitur; 7) Defendant McCoy's motion to dismiss Bruni's cross-claim, or in the alternative, motion for summary judgment on Bruni's cross-claim; 8) Defendant Bruni's motion for implied or equitable indemnification from McCoy, or in the alternative, for apportionment of damages; and 9) Defendant McCoy's motion for indemnity, or in the alternative, for apportionment of damages; 10) Plaintiff Raymond Machesney's ("Machesney") motion for approval of bill of costs; and 11) Defendant Providence Hospital's motion for approval of bill of costs.
Based on the papers and oral argument in support of and in opposition to the motions, the Court hereby ORDERS as follows:
1. Defendant McCoy's motion for judgment as a matter of law be DENIED.
2. Defendant Bruni's motion for judgment as a matter of law be DENIED.