Before Reid, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Reggie Walton, Trial Judge)
In this personal injury action, brought by appellant/cross-appellee John D. Croley against appellees/cross-appellants the Republican National Committee ("the RNC") and others, the jury returned a $1,200,000.00 verdict in favor of Mr. Croley for assault, battery and negligence, including $600,000.00 for lost future earnings.*fn1 In response to a post-trial motion by the RNC and Mr. Jasper Mills, the trial court vacated the award of $600,000.00 for lost future earnings. On appeal, Mr. Croley challenges the decision of the trial court to vacate the award for lost future earnings. In addition, he claims that the trial court erred by: (1) not allowing the jury to consider his claim for punitive damages; and (2) excluding his head or brain injury claim. In their cross-appeal, the RNC and Mr. Mills contend that the trial court erred by not granting their post-trial motion for judgment on the assault, battery and negligence claims. They also argue that the trial court abused its discretion by failing to grant their post-trial motion for a new trial and remittitur.
We affirm the trial court's judgment in No. 99-CV-398, denying the appellees/cross-appellants' post-trial motions for judgment on Mr. Croley's assault, battery and negligence claims, and for a new trial or remittitur. In No. 99-CV-482, we affirm the trial court's judgment regarding punitive damages, and the exclusion of evidence concerning Mr. Croley's head or brain injury claim; but vacate its judgment pertaining to the award of lost future earnings and remand this matter with instructions to reinstate the $600,000.00 award for lost future earnings.
The record before us shows that on the evening of March 26, 1984, Mr. Croley exited his home located on Ramsey Court, in the District of Columbia, to take photographs of an overflowing trash dumpster belonging to the Capitol Hill Club which is located immediately adjacent to Ramsey Court, a public street, and the RNC office building. Due to ongoing health concerns on the part of Ramsey Court residents because of the poor maintenance of the dumpster, and its attraction of rodents, Mr. Croley decided to document its condition, and its immediate surrounding area, by taking photographs. He planned to present the photographs at an upcoming zoning hearing.
As Mr. Croley was taking photographs of the dumpster, he was approached by two RNC security guards, Mr. Mills and James E. Lyons. The two RNC security guards informed Mr. Croley that he was not permitted to engage in night time activities on Ramsey Court. Since Ramsey Court was a public street, Mr. Croley ignored the RNC security guards and continued to take photographs. At trial, Mr. Croley described the actions taken by the guards:
As I was turning around to take another picture, Mr. Mills grabbed me and pulled me toward him. And then I - - I don't remember anything, until I was on the pavement, with Mr. Mills standing over me. I was sort of on my side, curled up a little bit, and my left side. And Mr. Mills was standing over me, with one foot - - I guess it would have been his left foot at my back, and his right foot at my chest. And then . . . I started calling for the police . .
After the police arrived and assisted him, Mr. Croley chose not to go to the hospital because he was "confused about being groggy, and  just wanted to go home." However, a few days following the attack, Mr. Croley was taken to the Georgetown University Hospital ("the GUH") by a friend because of chest pains. As he stated at trial:
I remember I was sitting at a table in my house, and I remember reaching across for a phone, to make a phone call, and having excruciating pain right here in my chest. And it was very intense; it hurt a lot, and I didn't know why.
Mr. Croley was examined in an emergency room for possible chest trauma, and was released.*fn2 Several days later, he returned to the GUH for a follow-up visit relating to his chest pain. He was examined and released that same day.*fn3
Approximately one year later, on April 25, 1985, after filing his personal injury lawsuit on March 26, 1985, Mr. Croley sought treatment at the Medical University of South Carolina due to his persistent chest pains.*fn4 Following his observation and examination of Mr. Croley, Dr. Hendrix noted that:
The chest pain, I'm sure, is muscular skeletal. He did suffer trauma to that area in April, 1984. And I believe the pain is certainly muscular skeletal in origin.
Five years later, on October 30, 1990, Dr. Gerald I. Shugoll, a cardiovascular specialist engaged by the RNC, examined Mr. Croley's chest area and concluded that:
[Mr. Croley's] chest pain is typically chest wall in origin, and seems to be localized to the costochondral cartilage at the fourth, left junction, and can be reasonably attributed to the [March 26, 1984] assault that he suffered. Thus, there is no  cardiovascular impairment sustained as a result of the March 26, 1984 incident, but his persistent chest wall pain can be reasonably related back to that [March 26, 1984] incident.
On March 8, 1994, Mr. Croley went to the Johns Hopkins University Medical School, again complaining of chest pains. Dr. Srinivasa Raja, a professor at the Medical School, examined Mr. Croley and stated that:
Based on our examination as well as interviewing the patient, we felt that his systematology, at least relating to the anterior chest wall of pain, which was the main symptom that the patient complained or presented to us, could be explained by a chronic - - a syndrome called chronic costochondritis. . . . We indicated to him that this appeared to be more of a problem related to the chest wall than the heart.
In his report, Dr. Raja concluded, to a reasonable degree of medical certainty, that Mr. Croley's chest injury was the result of his March 26, 1984 assault.*fn5
In addition to his physical injuries, in 1993 Mr. Croley was also diagnosed with Post Traumatic Stress Disorder ("PTSD"). As a result of this condition, he began to receive Social Security Disability Insurance payments. An affidavit from Dr. Mary Beth Williams, a licensed clinical social worker, explained that:
One of the most significant parts of this is that [Mr. Croley] feels as if [the attack is] recurring again, whenever he's had the physiological pain associated with the chest injury. And this chronic pain is a constant, constant reminder that he's had of the events that's happened. And when he has that pain - - and I've seen this happen in my office as well - - that you can see him almost, what I would call, "zone out," and I have to bring him back into the room . . . He also has reported to me that after it happened he would do anything he could to stay out of the way of the alley, and would walk blocks out of his way just so he didn't have to go through that area, because it was reminiscent of [the attack].
Based upon her observations, Dr. Williams concluded that the cause of Mr. Croley's PTSD is the 1984 assault that he suffered on Ramsey Court.*fn6 Dr. Williams also opined that, due to his condition, "[Mr. Croley's] participat[ion] as a party and/or witness in the trial of his case would present a significant risk to [his] life."
On September 1, 1995, Mr. Croley was examined for a potential head injury by Dr. Kenneth Plotkin, a board certified neurologist at the Georgetown Medical Center. Dr. Plotkin ordered an MRI. After completing his study of Mr. Croley, Dr. Plotkin diagnosed him with a brain injury that he deemed to be consistent with a traumatic blow to the head. Appellees/cross-appellants requested an independent medical examination ("IME" or "examination") of Mr. Croley by Dr. Charles H. Epps, Jr. Mr. Croley sought a protective order on February 18, 1997, claiming that he had already agreed to an examination by Dr. Bruce Ammerman. On May 13, 1997, and October 6, 1997, the trial court ordered Mr. Croley to appear for the IME by Dr. Ammerman. After further delay, during which Mr. Croley asked for information relating to "the manner, conditions and scope" of the neurological exam, and after Dr. Williams submitted an affidavit on February 3, 1998, declaring that Mr. Croley was suffering from extreme anxiety about the IME, the trial court issued an order on February 20, 1998, granting appellees/cross-appellants' motion to preclude the presentation of evidence at trial, by Mr. Croley, pertaining to his alleged head or brain injury claim.*fn7 The order stated, in part:
Despite the clear instructions of the court, the plaintiff has not yet submitted to an IME, and only recently raised the purported reason why he has failed to do so. [footnote omitted].
Because the defendant is entitled to have the IME conducted to adequately defend against this action, and having the IME conducted as now proposed by the plaintiff would inevitably delay the commencement of the trial, [footnote omitted] the court is reluctantly compelled to preclude the introduction of any evidence regarding the plaintiff's alleged head injury during the trial of this case [footnote omitted].
During trial on his assault, battery, negligence, and intentional infliction of emotional distress claims, Mr. Croley offered extensive testimony concerning the negative impact that the assault by Mr. Mills and Mr. Lyons had on his overall future. As an undergraduate student at Oklahoma State University, Mr. Croley regularly made the "President's List of Distinguished Students," with the exception of his final semester when he made "one `B'." Immediately following his graduation from Oklahoma State, he entered the Harvard Business School, and graduated with an MBA in 1976. After his graduation, until the time of the assault in 1984, Mr. Croley held numerous consulting positions with various firms or corporations. He specialized in what was then a relatively new area, "business computerization." He was employed as a consultant with the "Management Analysis Center," a consulting firm. Upon leaving that position, Mr. Croley became a consultant for "1st Data Corporation," and began work for the United States Senate's "Computerized Automated Correspondence Management System." He developed "a prototype system . . . to move [the Senate] from answering their correspondence by typewriters and magnetic card typewriters to using computers to manage their correspondence." Following his work with the Senate, Mr. Croley served as a consultant to the H.J. Heinz Company to "determin[e] their fiscal distribution and logistics policies, corporate-wide, throughout North America."
In 1979, Mr. Croley began a "time-sharing" business in the District, the "Croley Computer Company"; and also became active in other endeavors. His computer company provided various membership organizations with interactive computerized assistance for the maintenance of current proprietary membership data. Later, he sold the time-sharing assets of the company*fn8 and began "consulting and leasing computers and commodities" to various entities, including the Environmental Protection Agency ("the EPA") and the George Washington University ("GWU"). His eighteen month contract with the EPA, for which he was awarded $360,000.00, began in 1982 and ended in 1983. For his forty-eight month contract with GWU, which commenced also in 1982, he was awarded $172,000.00.*fn9 Mr. Croley testified that although he was the sole shareholder of the company, he "didn't draw a salary" because he "always re-invested the earnings into the company." He relied upon real estate that he owned near Harvard Square in Massachusetts to "provide a positive income [to] pa[y] for [his] living expenses." The Massachusetts property was purchased with consulting fees that he received. Furthermore, his computer company paid his living expenses while he was in the District, and eventually purchased a house for him in the District. He acknowledged on cross-examination that for the years 1983 through 1985, his "personal earnings were not extensive," but he asserted that "some of the corporations did okay." In addition to his business pursuits in the District, Mr. Croley was involved with, or a member of the Capital Hill Restoration Society; the D.C. Zoning Commission; the D.C. Recreation Department; the D.C. Master's Swimming Team; and the Harvard Business School Alumni Club.
After a seven day trial in October 1998, the jury returned a verdict in favor of Mr. Croley in the amount of $1,200,000.00. In response to post-trial motions filed by the RNC and Mr. Mills, on February 25, 1999, the trial court issued an order vacating the $600,000.00 award for "future loss damages," but denied the request for remittitur and the motion for a new trial.
The Lost Future Earnings Issue
On appeal, Mr. Croley argues that the jury's $600,000.00 award for lost future earnings should be reinstated because he presented sufficient evidence at trial illustrating that "[p]rior to the assault, he was a successful entrepreneur in the field of business consulting." He relies, in part, on evidence pertaining to his contracts with EPA and GWU. He also asserts that: "The alternate model of earnings presented by Dr. [Thomas Charles] Borzilleri was appropriate." The RNC and Mr. Mills support the trial court's decision to vacate the ...