Before Wagner, Chief Judge, and Schwelb and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia
Hon. Ann O'Regan Keary, Trial Judge
In this personal injury case, appellant Hattie Lewis contends on appeal that the trial court abused its discretion by denying her post-judgment motion for a new trial; she asserts that the jury returned an inadequate verdict of $10,000.00 in her favor. *fn1 Specifically, she argues that the trial court erred or abused its discretion by: (1) refusing to pose specific voir dire questions to the jury panel relating to tort reform; (2) failing to strike certain prospective jurors for cause; and (3) allowing defense counsel to "misuse prior claims evidence prejudicially." We reverse and remand this matter to the trial court for a new damages trial.
The trial transcripts and record in this case reveal the following events and testimony. While driving home from work on September 21, 1995, Ms. Lewis stopped her car to wait for a traffic light signal before proceeding. Mr. Voss, who was driving the car behind Ms. Lewis, rear-ended her vehicle. Ms. Lewis testified that she "was pushed forward and back and hit [her] knee on the steering column of [her] car." *fn2 She remained at the scene of the accident about "forty-five minutes to an hour" but did not call for the police or an ambulance. She was "shaken up." Nonetheless, she drove herself home. When she arrived at her home she "was still shaken up and . . . wasn't feeling too well." Therefore, she "took two Advil and went to bed." Even though she "was in a lot of pain around [her] shoulders and mid area," she went to work the day after the accident because she was the "accounts payable manager" at her place of employment and had to get checks out. As her pain worsened, Ms. Lewis called an orthopedic specialist who had treated her previously for a fractured finger. She was unable to get an immediate appointment and decided to return to her home.
The day after calling the orthopedic specialist, Ms. Lewis woke up with a stiff neck and "was feeling really bad." Consequently, she sought emergency room treatment at Prince George's County Hospital. Four days later, she saw Dr. Robert Allen Smith, an orthopedic specialist. At that time, Ms. Lewis "complain[ed] of pain in her neck that radiated into her left upper extremity, also pain in her left shoulder joint, pain in her upper back, and headaches." *fn3 She was treated for back spasms and neck strain or "a pinched nerve in the upper left extremity." About a week later, Ms. Lewis returned to Dr. Smith. In addition to the pain in her neck, shoulder and back, she revealed that she had pain and swelling in her left knee. According to Ms. Lewis, she had no problem with swelling or pain in her knee prior to the accident. The doctor found fluid or effusion in Ms. Lewis' knee and "mild degenerative changes" or arthritis, but no fracture. A few weeks later, Ms. Lewis returned to Dr. Smith. Her knee continued to bother her and was still swollen, but Dr. Smith determined that there was gradual improvement of her neck and shoulder. He recommended that Ms. Lewis schedule a magnetic resonance image test ("MRI"). The MRI confirmed Dr. Smith's diagnosis of arthritis, and "fluid, effusion within the joint and tenderness," but also revealed "a tear of the structure of the medial meniscus." Dr. Smith opined that "within a reasonable degree of medical probability . . . the tear rose from the accident" of September 21, 1995. *fn4 When asked, "[w]hat effect if any does superimposing trauma and tear on an already arthritic condition have," Dr. Smith responded: "In my experience trauma to an arthritic joint accelerates the arthritic problem because [the] arthritic joint is already compromised. So it's more susceptible to injury." To relieve Ms. Lewis' symptoms, Dr. Smith performed arthroscopic surgery on Ms. Lewis' knee in December 1995, and prescribed physical therapy. He discharged her in March 1996 after concluding that "there was not much more [he] could do for her at that point." At trial, Dr. Smith was asked whether he could "express [an opinion] to a reasonable degree of medical certainty as to whether or not [Ms. Lewis] has suffered a permanent injury?" He replied, "[S]he has [suffered a permanent injury], and . . . she doesn't have the entire normal tissue that was in her knee originally."
On cross-examination of Dr. Smith, counsel for Mr. Voss sought to establish that Ms. Lewis did not have the symptoms of a medial meniscus tear when Dr. Smith first treated her. Dr. Smith acknowledged that the emergency room records of Prince George's County Hospital did not mention symptoms indicating a tear. However, when asked, "If someone had a complete tear as Ms. Lewis had[,] do you believe it would be reasonable that they would be able to walk without problem," Dr. Smith answered, "Yes." As counsel for Mr. Voss continued in her effort to show that the tear did not result from the accident of September 21, she had the following exchange with Dr. Smith:
Q: Degenerative arthritis in the knee can result in a tear, correct?
A: It can result in what is called a degenerative tear which has a fairly specific appearance on orthoscopy procedure.
Q: And you did not see that here? You believed it was an acute tear?
A: Right, . . . degenerative tears . . . they look like laminated plywood basically. You know, plywood is made in layers and things are kind of laminated so it looks like a solid piece of plywood. This had one specific geometry to it.
Q: You did say degenerative problems could have predisposed her to a tear, correct?
Q: And that tear could have occurred in the motor vehicle accident, right?
Q: The tear could have occurred if she was stepping down a stair and turned her knee, correct?
Dr. Smith also testified that the medial meniscus tear could have resulted from "a blow or twisting injury to the knee." When asked about "a subchondral cyst" that appeared in the MRI, Dr. Smith said: "That's consistent with degenerative change," which he explained "mean[t] the tissue is becoming weaker and frayed through [the] normal aging process or some previous trauma." Moreover, he agreed that the cyst did not result from the accident of September 21. Similarly, he acknowledged that the "tricompartment osteophites" or bone spurs, which also were revealed in the MRI test of the knee, were not caused by the accident. After the inquiry as to the possible sources of the tear, counsel for Mr. Voss again established that Ms. Lewis did not mention hitting her knee on the steering wheel column, or twisting it at the time of the accident. Furthermore, the following exchange took place between Mr. Voss' counsel and Dr. Smith regarding the signs of a medial meniscus tear and the absence of any mention or observation of certain symptoms right after the accident or when Ms. Lewis first consulted with Dr. Smith:
Q: But do you believe you would need either an impact of the knee or a twisting of the knee to cause a tear?
Q: If there was an impact of the knee you would expect bruising or swelling or some type of observable signs to - - it would be more likely than not that you would see something after such an impact, correct?
A: I would agree with you.
The videotape deposition of Dr. Kevin Francis Hanley, who conducted an independent medical evaluation of Ms. Lewis on March 25, 1997, at the request of the defense, was introduced at the trial. Upon examination of Ms. Lewis, Dr. Hanley found "that [Ms. Lewis'] knee was very swollen." The knee contained fluid, was tender, and motion was limited. Furthermore, he stated:
She does have some arthritic change within the knee, as noted in Dr. Smith's evaluation. But apparently, as best we can tell and in asking Ms. Lewis, she had not had any symptoms from the knee prior to that. So as a consequence of this injury, this auto accident, she has aggravated this underlying degenerative process. Unfortunately, it appears that this aggravation is persistent, has become a permanent aggravation, so to speak, because she's still symptomatic when I saw her.
Now Dr. Smith had released her previously and she hadn't been back to him, but it's clear that her knee is not as good as it was when she was released by Dr. Smith. It was still symptomatic. So it's my belief that these residuals that we see, this progression of the degenerative change, is related to the auto accident in the sense that it was set off, flared up, incited, whatever you want to say.
On cross-examination by defense counsel, Dr. Hanley was asked about the Prince George's County Hospital emergency room records for Ms. Lewis. He agreed that nothing in the records reflected "any complaints of pain in the left knee," nor stated that Ms. Lewis "jammed her knee under the dashboard," nor was there any "indication of any swelling or bruising or problems with her left knee." Dr. Hanley and defense counsel had the following exchange regarding the source of Ms. Lewis' knee problem:
Q: Just by looking at the records, without a history from the patient in regards to motor vehicle accident[s], you could not tell just by the records or an examination as to the cause of the injury to distinguish between the degenerative process and the motor vehicle accident?
A: In other words, if you had no history . . . ?
A: Probably not, not in this particular situation.
Q: They'd look about the same?
A: Correct, she presented with effusion and discomfort which could be from an accident or it could be from a degenerative process.
Although Ms. Lewis' MRI showed degenerative changes in her meniscus, Dr. Hanley said: "But that doesn't necessarily mean she also didn't have an acute tear on top of that." He acknowledged, however, that "the degenerative process could result in a tear without trauma," and that Ms. Lewis' MRI showed, on the side of the knee that she had not hit against the steering column, "degenerative changes in the lateral meniscus, without a tear."
Both Dr. Smith and Dr. Hanley based their conclusions, in part, on what Ms. Lewis told them about her accident and her medical history. For example, Dr. Smith agreed that, "other than what [Ms. Lewis] told [him]," he had "no idea what her knee was like before [he] first saw her on September 27th"; and Dr. Hanley relied on Ms. Lewis' declaration that she "jammed" her knee.
Mr. Voss presented no witnesses. Following closing arguments, the jury returned a verdict in Ms. Lewis' favor in the amount of $10,000.00. Ms. Lewis filed a motion for a new trial, contending that: (1) "[t]he jury verdict was contrary to the evidence and the weight of the evidence"; and (2) "[t]he Plaintiff was denied a fair trial by reason of the presence of jurors who should have been removed for cause and an unrepresentative demographic composition of jurors." *fn5 After considering the grounds presented by Ms. Lewis in her motion for a new trial, the trial judge concluded that the jury's verdict was not against the weight of the evidence presented regarding her alleged knee injury:
[T]here was evidence in the trial record that plaintiff had had no complaint of injury or pain in her knee, either at the scene of the accident, or during her visit to the hospital emergency room two days after the accident. Further, there was evidence that she had not complained of knee problems to her treating orthopedist, Dr. Smith, until October 4, 1995, about two weeks later. Moreover, the strongest evidence offered by plaintiff to connect the knee injury causally to the accident in question was the testimony, via videotape deposition, of Dr. Hanley, who had seen the plaintiff only once, for about 15-20 minutes, over a year after the accident. The weight of such testimony, already weak in view of these limitations, was further diminished by the fact that the doctor hadn't had the benefit of plaintiff's emergency room records, or the records of the orthopedist who had treated her, when he had written his report and rendered his opinions. Moreover, this doctor's opinion connecting the knee injury to the accident in question was also undermined by evidence of plaintiff having had degenerative changes shown in her MRI, and having had two prior injury claims, which had required prior medical treatment by plaintiff's treating orthopedist.
The trial court did not specifically address one argument made by Ms. Lewis, that one of the jurors should have been struck for cause because she had just read a book that discussed "the overwhelming number of silly laws and lawsuits filed in the courts of this country," and because as "a former member of the Montgomery County School Board[, she] had also been a[n] individual defendant in a lawsuit, which litigation had caused her much distress and unhappiness." In a footnote, the trial judge observed that ...