Before Steadman, Farrell, and Ruiz, Associate Judges.
Appeals from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)
Farrell, Associate Judge: This appeal and cross-appeal present two primary issues: Did the trial court commit error in allowing the plaintiffs to call an expert witness in rebuttal to testify about a theory of negligence not raised in their case in chief; and did the court abuse its discretion in ordering a new trial unless the plaintiffs accepted a substantially remitted damage amount? We conclude that the trial court did err in allowing the plaintiffs to raise a theory of liability for the first time in rebuttal, but that the defendants were not sufficiently prejudiced by that ruling to warrant reversal. We also conclude that the remittitur fell within the trial court's broad discretion in that area. Accordingly, we affirm the judgment of the trial court.
The plaintiffs, Patricia Y. Lawson and her husband, sued Dr. Michael J. Olding and his employer, George Washington University (hereafter "GWU"), for negligence in making the decision to amputate a portion of Mrs. Lawson's right ring finger. The complaint alleged that Dr. Olding, a GWU plastic and reconstructive surgeon, had negligently amputated the distal phalanx (or upper portion) of Mrs. Lawson's finger unnecessarily without obtaining a definitive diagnosis that it was cancerous. Pathology tests performed during and after the surgery revealed no cancer in the amputated portion of the finger. During their case-in-chief, the Lawsons adduced testimony that Dr. Olding should have had additional tissue tests conducted before deciding to amputate. In particular, they presented testimony that "frozen section" tests could have been utilized during the surgery process itself to determine whether tissue removed so far was cancerous, and thus whether bone amputation was necessary. Indeed, Dr. Olding had sent "frozen section" specimens for analysis during the surgery, but after doing the amputation.
By contrast, defense witnesses testified that Dr. Olding exercised reasonable medical care in amputating the finger portion based upon the accumulated tests and reports before him (the "building blocks" of his diagnosis) showing an aggressively abnormal growth in Mrs. Lawson's fingertip that was more likely cancerous than not and had "tunneled" into a portion of the bone. The frozen section tests, according to Dr. Olding, had been intended merely to confirm whether the malignancy had been removed entirely by the amputation. With the case in this posture, the trial judge was able to comment during GWU's case that "the only question . . . essentially for the jury is whether or not Dr. Olding deviated from the standard of care in performing an amputation rather than taking some additional tissue[;] . . . it's a . . . very straightforward question."
Unfortunately, things proved not to be so straightforward. Dr. Carmen M. Williams, a dermatopathologist employed by GWU who analyzed the biopsy specimens originally taken from the growth (or lesion) on Mrs. Lawson's finger,*fn1 testified for the defense that she had found the lesion to be "abnormal" and had given it "a differential diagnosis," meaning that it could have been (a) a squamous cell carcinoma (a skin cancer of the upper layer of the epithelium); (b) a keratoacanthoma (a "term [used] interchangeably with squamous cell carcinoma"), or (c) a human papillomavirus (HPV), a non-malignant wart. Asked whether her review of the tissue slides indicated "that it is more likely that the tissue . . . is a malignant tissue versus a nonmalignant tissue," she replied "yes," and that her recommendation had been that the lesion "should be completely removed." Dr. Olding relied on her opinion as one of the "building blocks" of his diagnosis.
Near the end of the defense case, the Lawsons' counsel told the court that he would be calling in rebuttal Dr. Walter Hoffman, a forensic pathologist, to counteract Dr. Williams' testimony that the lesion was more likely than not cancerous. Specifically, counsel represented that in her deposition Dr. Williams had expressed no opinion on probable cancer or not, "basically never [drawing] a conclusion [as] between one of the three" possible causes of the lesion, but that "[n]ow she has [done so] on the stand." Counsel for GWU disputed whether this would be proper rebuttal, pointing out that Dr. Williams had simply not been asked in deposition "which one is more likely so," and that at most any disparity between her deposition and trial testimony was a matter for impeachment, not a proper basis for rebuttal testimony. The trial judge, noting that Dr. Williams "did at least arguably give a more definitive diagnosis with respect to the pathological sample being squamous cell carcinoma at trial as opposed to [at] deposition," ruled that the rebuttal would be proper.
Later, during the discussion of jury instructions, the Lawsons' counsel further explained his position, stating that Dr. Hoffman's testimony in rebuttal would address the "new issue" of whether Dr. Williams' diagnosis of cancer was itself "within the standards of [reasonable] care" or instead negligent. The trial court and GWU's counsel expressed surprise, both indicating that they had "thought the only issue to be decided was whether or not the amputation under [Dr. Olding's] decisionary process [constituted the exercise of reasonable care]." The Lawsons' counsel again cited Dr. Olding's reliance on Dr. Williams' diagnosis and asserted that if that diagnosis "was incorrect, meaning that [Dr. Olding] was given . . . incorrect information below the standards of care," the jury should be allowed to find GWU liable "independent[ly] of Dr. Olding" for the negligence of Dr. Williams. When the court asked if GWU's counsel had "anything further [to say] as to that," counsel answered, "No, sir." The court concluded that Lawson would be permitted to "pursue that theory."
Dr. Hoffman testified that if the pathology diagnosis given Dr. Olding was that the tissue specimen was more likely than not cancerous, that diagnosis itself was a breach of the standard of due care. At the close of the case, the trial court instructed the jury that GWU would be liable either if it found Dr. Olding liable or if, "independently of anything that Dr. Olding may have done," it found that Dr. Williams had negligently "misinformed Dr. Olding." The court gave the jury a verdict form differentiating liability in this manner, though Dr. Williams' name (without objection) did not appear on the form. In returning a verdict, the jury expressly stated that Dr. Olding and GWU were each liable.
The jury awarded Mrs. Lawson $2,750,000 and Mr. Lawson $200,000 for loss of consortium. The defendants then moved for a new trial primarily on the ground that the damage award was excessive. No challenge was made to the rebuttal testimony of Dr. Hoffman or the jury's having been allowed to predicate GWU's liability on a finding of negligence by Dr. Williams. In a written memorandum order, the trial court granted the motion "unless plaintiffs accept a remittitur to reduce the awards to $1 million and $35,000 respectively," concluding that any damage award beyond those amounts would be "beyond all reason" and "shock the court's conscience."
In its primary contention on appeal, GWU argues that the jury's "runaway" verdict stemmed from the trial court's erroneous decision to let Dr. Hoffman advance the theory of Dr. Williams' negligence for the first time on rebuttal. GWU does not dispute that the complaint alleged, as an alternative ground for its liability, the "negligent evaluation and recording of the pathology specimen of November 16, 1993 [by Dr. Triana] as demonstrating squamous cell carcinoma." Nor does it dispute that the Lawsons' expert witness statement filed under Super. Ct. Civ. R. 26 (b)(4) named Dr. Hoffman and stated that he was expected to "render the opinion that any communication by a pathologist or another employee [of GWU] with the surgeon leading the surgeon to believe that there was cancer or a high likelihood of cancer in Mrs. Lawson's finger would have been a violation of the standard of care." Dr. Hoffman was even named to the jury panel at voir dire as a potential witness for the Lawsons. GWU contends, nevertheless, that from the Lawsons' opening statement through nearly the entire defense case, the Lawsons maintained only that Dr. Olding was negligent in amputating without a definitive determination - including by in-surgery frozen section analyses - that the finger was cancerous. No expert called by the Lawsons in their case in chief made mention of any wrongdoing by Dr. Williams. GWU argues that if the Lawsons intended to assert the alternative theory of a misdiagnosis by Dr. Williams, they should have presented Dr. Hoffman in their own case instead of waiting until rebuttal and ...