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Wild v. Alster

July 20, 2005

SUSAN WILD, PLAINTIFF,
v.
TINA S. ALSTER, M.D., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Currently before the Court is the Plaintiff's Motion for New Trial ("Pl.'s Mot."). The plaintiff, Susan Wild, alleged in this action that the defendant, Tina Alster, a medical doctor and employee of the defendant Washington Institute of Dermatologic Laser Surgery, committed malpractice during and after performing laser surgery on the plaintiff's face. The trial of this matter commenced on September 7, 2004, and the jury rendered a verdict in favor of the defendants on September 15, 2004. The plaintiff now seeks a new trial, alleging an error in the Court's jury instructions and prejudice resulting from the Court's discovery and evidentiary rulings. Pl.'s Mot. at 1-2. For the reasons stated herein, the Plaintiff's Motion for a New Trial is denied.

I. Background

The plaintiff requests that this Court order a new trial on two grounds: (1) that submitting to the jury Standardized Civil Jury Instruction for the District of Columbia, § 9.06 (rev. ed. 2003), entitled "Bad Result," confused the jury because the instruction purportedly indicated that the plaintiff's expert was not entitled to rely on the plaintiff's unsuccessful result in forming his opinion that negligence occurred in this case; and (2) that the plaintiff was prejudiced by the Court's denial of her requests to have a handwriting expert testify at trial and to have the hard drive of the defendants' computer examined by an expert to explore whether it contained photographs of the plaintiff with dates indicating when the photographs were taken. Pl.'s Mot. ¶¶ 1-2. With regard to her second argument, the plaintiff contends that without these experts she was unable to establish that the medical chart and photographs used by the defendants to assert a "self-excoriation" defense had been altered. Id.*fn1

II. Analysis

A. Standard of Review

Under Rule 59 of the Federal Rules of Civil Procedure "[a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States[.]" Warren v. Thompson, 224 F.R.D. 236, 239 (D.D.C. 2004) (citing Fed. R. Civ. P. 59(a)). This Court has specifically found that "[a] new trial should be granted 'only where the court is convinced the jury verdict was a seriously erroneous result and where denial of the motion will result in a clear miscarriage of justice.'" Lloyd v. Ashcroft, 208 F. Supp. 2d 8, 13 (D.D.C. 2002) (quoting Nyman v. FDIC, 967 F. Supp. 1562, 1569 (D.D.C. 1997) (internal citations omitted)). Therefore, to be entitled to relief, motions for a new trial "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." Nyman, 967 F. Supp. at 1569 (quoting FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986) (internal citations omitted)). However, "[motions for new trial] cannot be used to raise arguments which could, and should, have been made before the judgment [was] issued." Id. In addition, when deciding whether to grant a new trial, "the court should be mindful of the jury's special function in our legal system and hesitate to disturb its finding." Id. (citations omitted). "Accordingly, 'the standard for granting a new trial is not whether minor evidentiary errors were made in the course of a long trial, but rather whether there was a clear miscarriage of justice.'" Warren, 224 F.R.D. at 239 (citation omitted). Additionally, "[t]he decision whether to grant a motion for a new trial is ordinarily 'entrusted to the sound discretion of the trial court.'" McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C. Cir. 1988) (citation omitted).

B. The "Bad Result" Jury Instruction

The plaintiff's first argument in support of her motion for a new trial is that giving the "Bad Result" instruction, Standardized Civil Jury Instruction for the District of Columbia, § 9.06 (rev. ed. 2003) (also referred to as the "mere happenings" instruction), was confusing and misled jurors as to District of Columbia law. Pl.'s Mem. at 1. The portion of the instruction at issue reads as follows: "A doctor is not negligent simply because her efforts are not successful. Unsatisfactory results from treatment or care alone do not determine whether Dr. Alster was negligent in treating Ms. Wild." Standardized Civil Jury Instruction, § 9.06 (emphasis added). Rather than instructing the jury as the Court did, the plaintiff had requested the following instruction: "An unsuccessful result may be considered as some evidence of negligence, and an expert witness may consider it in formulating the opinion that the defendants failed to treat the plaintiff with the same degree of skill, care, and knowledge required of a doctor acting in the same or similar circumstances." Pl.'s Mem. at 3.

The plaintiff argues that a plain reading of the instruction given by the Court indicated to jurors that the "mere happenings" of an unsuccessful result may not be considered as evidence of a breach of the standard of care. Id. at 2-3 (emphasis added). The plaintiff then asserts that "there is nothing in the rest of the jury instructions to clarify for jurors that experts may rely on the unsuccessful result as evidence of a breach in the standard of care." Id. at 2. The plaintiff contends that "what the instruction fails to mention is that expert witnesses may infer negligence from unsatisfactory results." Id. at 3. The plaintiff argues that the effect of this instruction was to confuse jurors and diminish the power of plaintiff's expert testimony. Id.

Under District of Columbia law, "[a] trial court has broad discretion in fashioning appropriate jury instructions, and its refusal to grant a request for a particular instruction is not a ground for reversal if the court's charge, considered as a whole, fairly and accurately states the applicable law." Nelson v. McCreary, 694 A.2d 897, 901 (D.C. 1997) (quoting Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 625 (D.C. 1986) (citations omitted)). "[A]s long a district judge's instructions are legally correct . . . []he is not required to give them in any particular language." Rogers v. Ingersoll-Rand Co., 971 F. Supp. 4, 11 (D.D.C. 1997) (applying D.C. law) (quoting Miller v. Poretsky, 595 F.2d 780, 788 (D.C. Cir. 1978)). Thus, a court's "refusal to grant an instruction is not ground for [a new trial] when the charge as given, although in a more general form, fully informs the jury as to the law." George Washington Univ. v. Waas, 648 A.2d 178, 183 (D.C. 1994) (quoting Evans v. Capital Transit Co., 39 A.2d 869, 871 (D.C. 1944)); see also Hawthorne v. Canavan, 756 A.2d 397, 402 (D.C. 2000) (holding the "instructions as a whole were fair and accurate, and the judge did not abuse his discretion by refusing to give the specific instruction requested by the plaintiff"). Accordingly, consistent with District of Columbia law, the Circuit Court has noted that "jury instructions are not considered erroneous if, when viewed as a whole, 'they fairly present the applicable legal principles and standards.'" Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993) (quoting EEOC v. Atlantic Cmty. Sch. Dist., 879 F.2d 434, 436 (8th Cir.1989)).

The plaintiff cites several cases, including Kennelly v. Burgess, 654 A.2d 1335 (Md. 1995), in support of her proposition that a "mere happenings" instruction is confusing and misstates the law. Pl.'s Mem. at 2, 4-6. The Maryland Court of Appeals found that the "mere happenings" jury instruction given in Kennelly, also a medical malpractice case, was grounds for reversal because it misstated Maryland law. Kennelly, 654 A.2d 1341-42. The Kennelly Court also cautioned against giving the instruction because it was redundant and may have potentially confused the jurors. Id. However, as the Court addresses below, the language of the instructions in Kennelly and the other cases cited by the plaintiff are distinguishable from the language in the instruction here. Consequently, no confusion or misstatement of the law resulted from the "mere happening" instruction given in this case.

The first important distinction between Kennelly and this case is that the instructions in Kennelly misstated the law, id. at 1340, whereas the instructions here are a fair and accurate statement of the law in the District of Columbia. Under District of Columbia law, in a medical malpractice case "[t]he mere happening of an accident does not constitute proof of negligence." King v. Pagliaro Bros. Stone Co., 703 A.2d 1232, 1234 (D.C. 1997) (citations omitted); see also Sweeney v. Erving, 35 App. D.C. 57 (D.C. Cir. 1910) ("Generally speaking, no inference of negligence can be drawn from the result of the treatment of a physician or surgeon"). The language of the "mere happenings" instruction at issue here simply relates that under District of Columbia law the mere happening of a bad result alone will not constitute negligence in a medical malpractice case. See King, 703 A.2d at 1234; Sweeney, 35 App. D.C. 57. The reasoning behind this instruction is that "physicians are not expected to be perfect and 'do not and cannot guarantee results;' they are liable in negligence only when their behavior falls below that which would be undertaken by a reasonably prudent physician . . . ." Burke v. Scaggs, 867 A.2d 213, 217 (D.C. 2005) (quoting Meek v. Shepard, 484 A.2d 579, 581(D.C. 1984)). Unlike the situation in Kennelly, the Court's instruction here was legally correct, and the Court was not bound to give the plaintiff's requested instruction. See Rogers, 971 F. Supp. at 11 ("[a]s long a district judge's instructions are legally correct . . . []he is not required to give them in any particular language").

Moreover, no confusion resulted here because the substance and language of the instruction at issue also differs from the Kennelly instruction. In Kennelly, the instruction read: "an unsuccessful result following medical treatment is not evidence of negligence." Kennelly, 654 A.2d at 1336 (emphasis added). The court found that the problem with the instruction was that it "implied that the jury should give no consideration at all to the unsuccessful medical treatment of petitioner." Id. at 1341 (emphasis added). Here, the instruction stated, "[a] doctor is not negligent simply because her efforts are not successful. Unsatisfactory results from treatment or care alone do not determine whether Dr. Alster was negligent in treating Ms. Wild." Standardized Civil Jury Instruction, ยง 9.06 (emphasis added). The inclusion of the words "simply" and "alone" distinguish the instruction given here from the instruction given in Kennelly. Contrary to the plaintiff's position, a plain reading of the instruction given in this case did not indicate to the jurors that "no consideration" whatsoever could be given to the unsuccessful result. Instead, the instruction, when "viewed as a whole," see Joy, 999 F.2d at 556, indicated to the jurors that the unsuccessful ...


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