Before Wagner, Chief Judge, and Steadman and Farrell, Associate
The opinion of the court was delivered by: Farrell, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Linda Turner Hamilton, Trial Judge)
Opinion for the court by Associate Judge Farrell.
Opinion of Chief Judge Wagner, Concurring, at p. ____.
Plaintiff-appellant Foster (hereafter "Foster") sued defendant-appellee George Washington University Medical Center ("the Hospital") for injuries she allegedly suffered as a result of negligence related to the birth of her child in February 1993. The complaint asserted that the Hospital had breached the standard of care with respect both to pre-delivery evaluations and, in several ways, to the delivery process itself, as well as in failing to obtain Foster's informed consent to a labor-induced birth. After a trial, the jury returned a verdict in favor of the Hospital. The trial Judge denied Foster's motion for judgment notwithstanding the verdict and/or new trial. On appeal, Foster argues primarily that the Judge erred in responding (or inadequately responding) to notes which the jury sent out during deliberations revealing its confusion about the relationship between a defendant's negligence and the plaintiff's duty to mitigate damages, which it seemingly took to be a form of contributory negligence.
We agree with Foster that there were serious deficiencies in the manner by which the Judge responded to a jury that had signaled its confusion on an important issue dividing the parties, namely, whether or to what extent Foster's failure to mitigate her damages should limit her recovery for any damages caused by the Hospital's negligence. At a key juncture the Judge accepted the deputy courtroom clerk's interpretation of a jury note as "somewhat suggestive" of (but not "reveal[ing]") a numerical division, and so neither read the note nor consulted with counsel and the parties about its contents or the proper response, thus depriving the jury of requested guidance. Since the Judge's response to the note at this sensitive stage of the proceedings creates an unacceptable risk that the verdict stemmed from a mistaken understanding of the law, we must reverse and remand for a new trial.
At trial, each side put on expert testimony regarding whether or not physicians employed by the Hospital had been negligent in the prenatal care administrated to Foster, the decision to induce labor, and the process of delivering her child, as well as in the failure to obtain her informed consent. Along with its other defenses, the Hospital contended through witnesses that Foster, although an excellent candidate for "biofeedback" that would have ameliorated any injuries she suffered, had spurned recommendations to seek such treatment. So, at the close of the evidence, the defense requested an instruction on mitigation of damages. Over Foster's objection that "there is no evidence to support it," the Judge instructed the jury:
[t]he plaintiff is required to use ordinary care to avoid loss or lessen the damages resulting from a physician's negligence by following the expert recommendations of her physicians. In other words, a person who has suffered injury from reason of a defendant's negligence is bound to use reasonable efforts to make the damages as small as practical, and to act in good faith to adopt reasonable methods and follow reasonable programs of medical care and treatment.
After almost two days of deliberations, the jury sent a note to the Judge late in the day, stating: "We have been instructed to determine whether the plaintiff used reasonable efforts to make damages small and act in good faith, etc. . . . If we determine that the plaintiff did not do these things, is recovery precluded by her actions?" The next morning, Friday, the Judge summoned counsel to the courtroom, and Foster's attorney suggested that this was "a wonderful opportunity for the Court to cure the error in giving the [mitigation] instruction" by telling the jury to disregard it. Alternatively, he suggested that the Judge "could answer simply no, or . . . answer . . . that the failure to minimize or mitigate damages does not preclude recovery, but only precludes those damages as might have been avoided by reasonable efforts of the plaintiff." After counsel again proposed "a simple `no,'" to which the Hospital's attorney objected, the Judge wrote out an instruction which Foster's counsel unsuccessfully criticized as "too amorphous to provide special guidance in light of their note." The instruction, which the Judge directed the courtroom clerk to take back to the jury, stated simply: "You are instructed that you are to determine the [e]ffect, if any, your findings have on the plaintiff's claim for damages."
Shortly before noon that day, the jury sent another note to the Judge stating, "Your Honor, we have, it seems, reached an impasse and are unable to reach a unanimous decision in this matter." Foster asked for a mistrial on the ground that the jury had been deliberating for two and a half days, was "hopelessly at an impasse," and was still "confus[ed] about the mitigation of damages issue." But the Judge viewed a mistrial to be premature given the length of the trial and the complexity of the (largely expert) testimony. Opining from the note on mitigation that the jury might have been seeking "an easy way out" so far, the Judge resolved to answer the second note by instructing simply: "Please keep deliberating."
At 4:30 p.m. that day, the parties were summoned to the courtroom and told that the jury had reached a verdict. Before revealing the verdict, however, the Judge declared, "Let me put the two issues on the record this afternoon that we kind of dealt with." The first was that the deputy courtroom clerk, Ms. Frances, had "receive[d] a note a while ago[;] it is now 20 minutes to five." (Counsel for the Hospital interrupted to say that the note had been received "[a]bout 4:00 p.m. by my record, Your Honor.") The Judge continued:
She brought the note to chambers, but indicated to me she did not think it was an appropriate note for the Court to review. She said it did not reveal a split, but in her view it was somewhat suggestive. I told her to seal it in the record, sign it, put it in the jacket and inform you all that I had indicated to her to do so and have them ...