Before Terry, Ruiz, and Reid, Associate Judges.
Appeal from the Superior Court of the District of Columbia
(Hon. Wendell P. Gardner, Jr., Trial Judge)
Terry, Associate Judge: Appellant, Bobby Madison, filed this personal injury action against appellees, Superior Iron Works and the Hyman/Clark Construction Group, Inc., seeking damages for an injury he suffered while working at the World Bank building in downtown Washington. After a five-day trial, the jury found that the defendants were negligent but that their negligence was not the proximate cause of Madison's injury. Because of its finding on proximate cause, the jury did not reach the question of damages. Madison filed a motion for new trial, arguing that the court erred in denying his pre-trial motions to add expert witnesses and for a continuance, and also asserting that he should have a new trial because of newly discovered evidence. The trial court denied the motion, and Madison noted this appeal. We hold that Madison's newly discovered evidence warrants a new trial on the issue of proximate cause as well as damages. We therefore reverse the judgment and remand the case for a new trial.
A. Factual and Procedural Background
Bobby Madison was a supervisor for the Atlantic Plate Glass Company, working on a jobsite at the World Bank building. On June 23, 1993, Madison tripped over a loosely stretched welding lead on the bottom step of a staircase at the job site and fell on his back. The fall caused his hard hat to come off and his neck to "pop." The Hyman/Clark Construction Group was the general contractor of the project; Superior Iron Works was the subcontractor responsible for placing the welding lead.
Madison reported his fall to the shop steward and to the office of Atlantic Plate Glass in Harrisonburg, Virginia, but he did not immediately seek medical attention because he did not think he was seriously injured. Soon after the accident, however, Madison began to experience pain in his neck and right shoulder and occasional numbness in the fingers of his right hand. By August the pain had progressed to the point that he was having difficulty sleeping at night, so he finally decided to see a doctor.
On August 24, 1993, Madison began a course of treatment supervised by several doctors in the neurology department of the University of Virginia Hospital ("UVA") in Charlottesville, Virginia, under the direction of Dr. John Jane. Over the course of the next three years, Madison saw a number of doctors at UVA, but he was treated by Dr. Jane personally on only one occasion. Though his pain never subsided, Madison continued to work until June of 1996, when he stopped working on the advice of Dr. Donald Manning, one of his treating physicians at UVA.
In May of 1997 Madison was referred to a pain specialist, Dr. Jimmy Adams. Initially, Dr. Adams diagnosed Madison with myofascial pain with paresthesia, *fn1 decreased grip strength, limited range of motion and numbness in his right hand, and limited range of motion, pain, and intense muscle spasms in his right shoulder and neck area. At a pre-trial conference on September 9, 1997, Madison requested permission to call Dr. Adams as his treating physician, even though the court's scheduling order provided that expert witnesses had to be named by October 1, 1996, and discovery was to close on February 1, 1997. The motions judge permitted the parties to depose Dr. Adams but reserved ruling on the admissibility of his testimony.
A report written by Dr. Adams on October 8, 1997, concluded that Madison was permanently disabled and would not be able to return to his prior employment. Madison's counsel told the court at a later hearing that this report, written more than a month after the pre-trial conference, was the first time that Dr. Adams, or any other doctor for that matter, had ever expressed the opinion that Madison was permanently disabled so that he could not return to his previous job as an iron worker. On the basis of Dr. Adams' report, Madison moved on November 19 for leave to present two additional expert witnesses at trial, a vocational rehabilitation specialist and an economist. The motions judge denied the motion but ruled that Dr. Adams could testify at trial as Madison's treating physician. On January 12, 1998, Madison moved for reconsideration of that ruling and also moved for a continuance so that "discovery could be completed concerning the vocational rehabilitation expert and economist as well as the addition of Dr. Robert L. Muller," a clinical psychiatrist. *fn2 This motion was denied by the same motions judge on February 2. Madison renewed the motion a few weeks later, just before the trial began, but the trial judge also denied it.
Testifying at trial, Dr. Adams opined with a reasonable degree of medical certainty that Madison's symptoms were related to his fall at the jobsite on June 23, 1993. This conclusion was based on Madison's twenty-six visits to Dr. Adams, his description of the fall, and his representation that he had experienced no pain before he fell. Dr. Adams also stated that a magnetic resonance imaging (MRI) examination had revealed a herniated disc in Madison's back, but the judge instructed the jury to disregard this testimony because Dr. Adams had testified differently in his deposition, and Madison's counsel had failed to notify the defendants of the change.
Dr. John Jane, testifying by de bene esse deposition on behalf of the defendants, expressed the opinion that Madison did not have a significant injury. When asked whether the accident was the cause of Madison's current pain, Dr. Jane responded, "Well, since I don't think that he sustained an injury at that time, I therefore also don't think that that was related to the injury, to the supposed injury." Dr. Jane was unable, however, to explain why Madison continued to experience severe pain. He stated that despite his best efforts and those of his team of doctors, they could not come up with any medical reason for Madison's continued symptoms. Dr. Jane did say, however, ...