Before Wagner, Chief Judge, and Steadman and Ruiz, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Ellen S. Huvelle, Trial Judge)
Appellant, Hechinger Company, appeals from a judgment entered following a jury verdict of $2,000,000 for appellee, James W. Johnson. The case arose out of Johnson's claim for damages for injuries he sustained as the result of an assault upon him by Hechinger's employee while Johnson was a patron at one of Hechinger's retail stores. Hechinger makes numerous arguments on appeal. Finding no error requiring reversal, we affirm.
Johnson testified that on Saturday, February 12, 1994, he went to a Hechinger store in Langley Park, Maryland to purchase lumber. While waiting to have the wood cut, he noticed a group of people who were having lumber cut place the scrap pieces in a nearby dumpster. Johnson and others asked the people for the unused scraps, and they gave Johnson about five pieces. When Johnson went to the cashier to pay for his own purchases, the cashier asked the price of the scraps of wood. Johnson responded that the other customers had given them to him, and the cashier stated that Hechinger did not give away wood. The cashier then telephoned a supervisor or someone in charge. According to Johnson, a man approached who was in his thirties and wearing a blue smock or shirt with Hechinger lettering on the pocket and a badge identifying himself as a Hechinger employee. The cashier explained the problem, and the man asked Johnson how he had obtained the wood. Johnson told him about the other customers giving him their scraps of wood, and the man informed Johnson that Hechinger did not give away wood. After the two had further discussion about how Johnson acquired the scraps, the employee struck Johnson in the chest. Johnson fell backward, and his head slammed into the counter. Johnson managed to pull himself up. He saw the store manager, John A. Brown, running and yelling to the man, to "get away from him." While Johnson and Brown were discussing what had transpired, the employee who had cut the wood and the customers who had given him the scraps arrived at the counter and confirmed Johnson's account about how he acquired the wood scraps. William Beims, an acquaintance of Johnson's, was walking past the front of the store. He testified that he saw the man push Johnson down and then saw another man run in between them.
Johnson testified that when he left the store, he felt a sharp pain near his left temple. He became dizzy and lightheaded, and he was trembling and sweating profusely. He pulled his car in front of the store to load the wood he had purchased and lost consciousness for some period of time. When he regained consciousness, Johnson finished loading the wood and drove away.
During the damages phase of this bifurcated trial, Dr. Michael Batipps, a neurologist, testified that upon admission to the hospital, Johnson was given a computerized axial tomography scan (CAT scan) which revealed a subdural hematoma in the left side of Johnson's head. *fn1 Dr. Joel Falik, a neurosurgeon, gave an opinion that the head trauma that Johnson experienced at the Hechinger store caused Johnson's condition.
There was medical evidence that Johnson's brain was effectively pushed out of alignment, which combined with swelling, compressed his brain structures enough to be life-threatening. A neurosurgeon performed an emergency craniotomy, which involved cutting a piece out of Johnson's skull and opening up the membrane covering his brain, draining off liquid, and removing the clotted portions by irrigating the brain's surface with a saline solution which was suctioned out. Johnson's brain did not fully shift back into its proper position. Dr. Batipps opined to a reasonable degree of medical certainty that Johnson's brain injury was permanent. The brain injury impaired Johnson's mental functioning to the left hemisphere of his brain, which controls speech, memory, writing, mathematical and mechanical skills and most daily thought processes. Johnson scored in the impaired range on tests of speech-sound perception, memory, auditory attention, and verbal information-learning as a result of his injuries. His IQ fell from over 130 to 109. He experienced severe headaches and incontinence, depression, anxiety, and insomnia, all attributed to the injury. His personal and professional life as a practicing attorney since 1975 also suffered. Other facts relevant to disposition of the appeal are set forth in the discussion of the issues which follows.
Hechinger argues that the trial court erred in the denying its motion to dismiss on the ground of forum non conveniens. It contends that Maryland is the more appropriate forum because the alleged incident occurred there, Maryland law applied, and Johnson resided in Maryland. Hechinger further contends that the trial court denied its motion under the mistaken belief that Johnson resided in the District of Columbia, a factor which, in any event, it contends is not controlling. Johnson argues that the record shows that he was a resident in the District at the time relevant to this issue and that the trial court did not abuse its discretion in denying the motion. Johnson contends that, in any event, dismissal at this stage of the proceedings is unjustified under the doctrine.
We start with the familiar standard applicable here that the decision of the trial court granting or denying a motion to dismiss on the grounds of forum non conveniens will not be disturbed on appeal absent a clear showing that it abused its broad discretion. Cresta v. Neurology Ctr., P.A., 557 A.2d 156, 159 (D.C. 1989); Carr v. Bio-Medical Applications of Wash., Inc., 366 A.2d 1089, 1091-92 (D.C. 1989) (citations omitted). In exercising its discretion, the trial court must apply the doctrine in light of well-established criteria against which this court will review its action. Id. at 1092. Specifically, the court must consider both private and public interest factors. Id. As to the former, these relate to the relative ease, expedition, and expense of the trial, including, for example: "relative ease of access to proof; availability and cost of compulsory process; the enforceability of a judgment once obtained; evidence of an attempt by the plaintiff to vex or harass the defendant by his choice of forum; and other obstacles to a fair trial." Id. (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Public interest factors include "administrative difficulties caused by local court dockets congested with foreign litigation; the imposition of jury duty on a community having no relationship to the litigation; and the inappropriateness of requiring local courts to interpret the laws of another jurisdiction." Id. (citing Gulf Oil, 330 U.S. at 508-09). Upon review, this court will make an independent evaluation of the issue in light of these public and private interest factors. Cresta, 557 A.2d at 159 (citations omitted).
Against these factors, we find no clear abuse of discretion in the trial court's ruling. Observing that a plaintiff's choice of forum is entitled to some deference, the trial court denied the motion because Johnson "is a District resident and [Hechinger] maintains a significant presence in this jurisdiction." Although the events out of which this case arose occurred in nearby Maryland, Hechinger does not dispute that it conducted a substantial business within the District, as the trial court determined. Indeed, Hechinger does not contend that trial in this neighboring jurisdiction created impediments to a fair trial or that Johnson filed the case in the District to harass it. See Carr, supra, 366 A.2d at 1092. Thus, Hechinger has failed to identify any significant factors which support weighing in its favor the private interest concerns which guide our analysis. See id.
Hechinger relies exclusively upon its claim that Johnson is not a resident of the District, a claim it made in its motion in the trial court. Johnson responded then, and contends now, that at the time relevant to the forum non conveniens issue, he resided in the District with his aunt on Meade Street, N.E. After denying the motion to dismiss, the trial court received Hechinger's reply "rais[ing] a substantial question regarding [Johnson's] residence," and therefore, amended its initial order denying the motion to dismiss to make it without prejudice to Hechinger resubmitting the motion after discovery concerning Johnson's address. In its order, the court stated, "[s]hould it be determined that the Court's prior Order was based on a misunderstanding of the facts regarding plaintiff's residency, the Court would be willing to reconsider its Order date[d] April 7, 1995." The record on appeal does not show that Hechinger ever filed a motion in response to this order. Hechinger's failure to pursue the issue consistent with the trial court's ruling precludes it from raising the issue now. In any event, in spite of Hechinger's claim that Johnson was a non-resident, there is evidence of record that he resided in the District at least from the time of the assault through the pre-trial proceedings. A suit filed in this jurisdiction by a resident against a corporation which maintains a significant presence in the District may be a matter of sufficient local interest to defeat dismissal on forum non conveniens grounds. See Washington v. May Dep't Stores, 388 A.2d 484, 487 (D.C. 1978). Relying on appeal only upon the residency issue, which fails, Hechinger has not shown compelling reasons affecting public or private interest considerations which suggest that Johnson's choice of forum should be disturbed. See Gulf Oil, supra, 330 U.S. at 508 (unless the balance of concerns strongly favor the defendant, "the plaintiff's choice of forum should rarely be disturbed.")
Another reason compels rejection of Hechinger's argument. "The `purpose of the doctrine of forum non conveniens . . . is to avoid litigation in a seriously inconvenient forum, rather than to ensure litigation in the most convenient forum.'" Cresta, supra, 557 A.2d at 161 (quoting Casad, Robert C., Jurisdiction In Civil Actions, ¶1.04 at 1-20). After months of pre-trial preparation and full trial, the inconvenience which the doctrine seeks to avoid has already occurred. At this stage, the parties have incurred the expenses and inconvenience of trial, and the burdens on the court's docket have already been imposed. Hechinger could have filed an interlocutory appeal of the denial of its motion but chose not to. See Frost v. Peoples Drug Store, Inc., 327 A.2d 810, 811 (D.C. 1974). ...