Appeal from the Superior Court of the District of Columbia (CA-5412-97) (Hon. John H. Bayly, Jr., Trial Judge)
Before Steadman, Schwelb and Washington, Associate Judges.
Dissenting opinion by Associate Judge SCHWELB at p. 19.
At the first trial of this survival action for medical malpractice, the jury found that the defendant, David J. Fischer, M.D., negligently administered excessive amounts of anti-psychotic medication to Frederick Moten, the twenty-seven-year-old son of the plaintiff, Julia Faggins, thus causing Moten's death from *fn2 neuroleptic malignant syndrome (NMS). The jury awarded Ms. Faggins $1,600,000 in compensatory damages for Moten's alleged pain and suffering. Counsel for Dr. Fischer filed a post-trial motion for a new trial pursuant to Super. Ct. Civ. R. 59. The trial judge granted the motion and ordered a new trial. A second trial resulted in a verdict and judgment in Dr. Fischer's favor.
Ms. Faggins has appealed from the judgment, contending that the second trial should never have taken place. She argues, as she did in the trial court, that the *fn3 Rule 59 motion was untimely. In the alternative, she asserts that even if the motion was timely, the trial court abused its discretion in granting a new trial. We agree with the trial court that the Rule 59 motion was timely and hold that the trial court did not abuse its discretion. Accordingly, we affirm the ultimate judgment in favor of Dr. Fischer.
We initially address the issue of the timeliness of the new trial motion, which could be dispositive of this appeal. If it was untimely, the trial court lacked jurisdiction to order a new trial, and the original judgment in favor of Ms. Faggins must be reinstated. See Circle Liquors, Inc. v. Cohen, 670 A.2d 381, 385 (D.C. 1996) (holding that the trial court lacks authority to extend the ten-day period). Thus, if Ms. Faggins is correct on the timeliness issue, we would not reach the "merits" issue whether the trial court abused its discretion in granting a new trial.
The verdict of the first jury was returned in open court on Monday, August 23, 1999. Judgment was entered on the docket and mailed to the parties by the clerk three days later, on Thursday, August 26. By the terms of Super. Ct. Civ. R. 59(b), *fn4 the defendant had ten days thereafter within which to file the motion. In calculating the ten days from the entry of judgment, the three days prior to docketing are not counted, and intervening Saturdays, Sundays, and legal holidays (here Labor Day, September 6, 1999) are excluded. See Rule 6(a); Affordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d 320, 331 (D.C. 2001). As reflected on the calendar *fn5 for August and September 1999, set forth below, the tenth day after the judgment was entered, if determined as described above, was on Friday, September 10. *fn6
Defendant's motion was not filed until September 15. Thus, the timeliness of defendant's motion depends upon the applicability and interpretation of the mailing provision contained in Rule 6(e). That rule in 1999 read as follows:
(e) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.
If the extra period for mailing provided in Rule 6(e) was applicable here, as the defendant contends, he was allowed three additional mailing days (beyond the ten-day period specified in Rule 59 (b)) to file his motion. The defendant further contends that the three additional days for mailing permitted by Rule 6(e) are business days, with Saturdays and Sundays excluded. If the defendant is right, then the three-day mailing period excluded September 11 and 12, the third mailing day was September 15, and the motion (which was filed on that day) was therefore timely. According to the plaintiff, on the other hand, the three additional mailing days (if applicable at all) are calendar days, and the motion was required to be filed on Monday, September 13, and was therefore two days late.
In his order granting the defendant a new trial, the trial court held that the motion was timely. The court wrote that "because the three days afforded by Rule 6(e) constitute a discrete 'period of time,' Rule 6(a), they too exclude any intervening holiday, Saturday, or Sunday." This entire case - i.e., the viability of a jury award of $1,600,000 - ...