Appeal from the Superior Court of the District of Columbia (CA-6450-99) (Hon. Linda D. Turner, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge.
Before WAGNER,*fn2 REID, and GLICKMAN, Associate Judges.
Concurring opinion by Associate Judge GLICKMAN at page 28.
Appellant Jesse D. Smith filed a lawsuit against the District of Columbia and Metropolitan Police Department Officer Stephen Franchak alleging assault and battery, false arrest, negligence, infliction of emotional distress, and violation of his civil rights under 42 U.S.C. § 1983. At the end of testimony presented by Mr. Smith as plaintiff, the trial court granted the defendants' motion for judgment as a matter of law, primarily because Mr. Smith failed to present expert testimony relating to the reasonableness of Officer Franchak's use of force to break up a fight between Mr. Smith and another man. Mr. Smith filed a timely appeal. He mainly argues that the trial court improperly granted the defendants' motion for judgment as a matter of law, and asserts that expert testimony was not necessary. We affirm the trial court's judgment with respect to the negligence and infliction of emotional distress claims. However, we reverse the judgment regarding the assault and battery and 42 U.S.C. § 1983 claims, and remand the case to the trial court for a new trial on those claims.*fn3
The record shows that on September 9, 1999, Mr. Smith filed his complaint against appellees in the trial court seeking compensatory and punitive damages. The basis of his complaint was an incident that occurred on September 10, 1998, in front of a residential building in the 1700 block of Seventh Street, in the Northwest quadrant of the District of Columbia.*fn4 The incident began with a fight between Mr. Smith and David Petty in front of the residential building, to which the police were called to break up the fight. Mr. Smith alleged in paragraphs 9 through 12 of his complaint that "Officer Franchak . . . applied a choke hold to [his] throat, temporarily cutting off his air supply and causing him extreme alarm"; that the officer "applied more pressure around the plaintiff's throat and raised his arm and fractured plaintiff's jaw bilaterally"; that Mr. Smith "began to bleed profusely from the mouth and appeared to be in distress and in need of medical attention"; and that "[i]nstead of ensuring that plaintiff received medical attention, defendant Officer Franchak placed handcuffs on plaintiff, threw him on the ground face down and then dragged him over the pavement by pulling on the handcuffs."
The trial court's April 6, 2001 pretrial order, designed to guide the conduct of the trial, incorporated "the parties' Joint Pretrial Statement." The Joint Pretrial Statement, which was filed on March 28, 2001, set forth the parties' view of the trial. It summarized the "nature of the case." Mr. Smith described the nature of the case, in part, as follows: "This is a lawsuit for negligence, assault and battery, excessive use of police force, infliction of emotional distress, and violations of Plaintiff's civil rights under 42 U.S.C. § 1983." Mr. Smith asserted, in addition: "Officer Stephen Franchak . . . applied an illegal choke hold to plaintiff's throat and then fractured plaintiff's jaw bilaterally. Plaintiff was neither arrested
[n]or provided with medical care." Plaintiff's statement also described Mr. Smith's permaent injuries and the pain associated with those injuries. The defense attributed Mr. Smith's injuries to his fighting and the punches of Mr. Petty. Under the "claims and defenses" section of the Joint Pretrial statement, Mr. Smith primarily "claim[ed] that he was injured because defendant officer used excessive force while stopping a physical altercation." The defense maintained, in primary part, that Officer Franchak "used reasonable force to prevent plaintiff from fighting" and "did not use an illegal choke hold in violation of D.C. Code § 4-188."
At trial, an oral and maxillofacial surgeon, Dr. Karen Mygil, who was Mr. Smith's treating physician, described the fractures to Mr. Smith's jaw - - one on each side of the jaw.*fn5 On cross-examination, Dr. Mygil was asked whether Mr. Smith had any "bruising to the neck area . . . [a]side from swelling." The doctor responded that photographs taken of Mr. Smith "showed bruising to the neck and sternum."*fn6 Dr. Mygil, a dental surgeon who was not called as an expert witness, had no knowledge or experience with injuries resulting from choke holds. On cross-examination Dr. Mygil stated that Mr. Smith's injuries were consistent with "blunt force trauma" such as a punch or a fall to the ground, but that choking someone was not consistent with such trauma. She was asked on redirect examination whether she had read or seen "any textbooks or studies that talk about injuries that result from choke holds." She responded: "I have not."
Officer Franchak also was called as a witness by Mr. Smith. At the time of the incident, he was assigned to the Seventh Street area where the altercation between Mr. Petty and Mr. Smith took place. When he arrived on the scene in a police car, Officer Franchak saw Mr. Smith moving toward Mr. Petty and Mr. Petty "kept backing up." Soon, however, Mr. Petty "struck Mr. Smith several times" in the "head and chest or body area." Officer Franchak and his partner, Officer Gregory Kirks, exited their vehicle. As he drew closer to Mr. Smith and Mr. Petty, Officer Franchak noticed that Mr. Petty was "on the ground" and Officer Kirks was on top of Mr. Petty. Mr. Smith "was on top or to the side of Officer Kirks, still trying to strike Mr. Petty."
Officer Franchak pulled Mr. Smith off of Mr. Petty. He described his actions as follows: "I . . . ended up grabbing one of [Mr. Smith's] arms and placing it across his face, which would have come across his nose or mouth or eyes area, just across, and pulled him off of [Mr. Petty] like that, still using commands, loud verbal commands to get him to stop." He denied using a choke hold. He testified that "Mr. Smith . . . stated he couldn't breathe. Now if someone's talking to you, then that person is breathing. If you're not breathing, then you're not talking." When asked whether he thought "lethal force was necessary" during the September 10, 1998 incident, Officer Franchak responded: "The way this particular situation unfolded, no, this particular situation." Officer Franchak acknowledged that he had placed handcuffs on Mr. Smith and noticed blood on Mr. Smith. He heard Mr. Smith say his jaw was broken. However, Officer Franchak said the comment was made after the ambulance had departed and Mr. Smith had emerged from the residential building "with his mother and said he was going to the hospital." Counsel for Mr. Smith inquired whether Officer Franchak, subsequent to the September 10, 1998 incident and upon seeing Mr. Smith, made a gesture to his jaw to indicate Mr. Smith's discomfort. The officer denied the gesture and asserted that Mr. Smith "curs[ed], rant[ed] and rav[ed] at him."
Mr. Smith called Officer Kirks as a witness. Upon exiting the police vehicle, Officer Kirks "grabbed . . . [Mr.] Petty to break up his fight" with Mr. Smith. He did not see how Officer Franchak restrained Mr. Smith. He acknowledged seeing a little blood coming from the area of Mr. Smith's mouth. He did not recall hearing Mr. Smith say "he thought Mr. Petty was going to get a gun from the trunk of his car." Nor did he hear Mr. Smith say his jaw was broken.*fn7 In response to a question about how many times he saw Mr. Petty hit Mr. Smith during the fight, Officer Kirks said "about five . . . [a]bout three to the face, a couple to the body." On the subject of whether Mr. Smith stated that Mr. Petty "has a gun," Officer Kirks stated: "Something about that came up, I believe, but I don't recall who said it or what." He thought the trunk of Mr Petty's car was searched, but no gun was found.
Mr. Petty testified about his fight with Mr. Smith; his wife's intervention which landed him on his buttocks, with Mr. Smith on top of him; and the separation of the two men by the police. Mr. Petty said that he had blood on the front and back of his shirt but could not say how the blood got there because he was not bleeding. He noticed the blood when he "got off the ground." He did not see how Officer Franchak restrained Mr. Smith. Mr. Petty admitted that he was aiming for Mr. Smith's face during the fight and "hit him." He agreed that he hit Mr. Smith hard, and stated that he weighed 182 pounds and reported his height as 5'8". Mr. Petty was asked whether Mr. Smith told him that his [Mr. Smith's] jaw was broken. He replied that when he entered the lobby of the residential building, Mr. Smith said "his jaw was hurting and he just kept spitting blood." Mr. Petty denied "go[ing] to [his] car to retrieve a gun," but stated that he heard Mr. Smith tell the police officers that he, Mr. Petty, had a gun.
Mr. Rahman R. Ali, a longtime friend of Mr. Smith, witnessed the incident that occurred on September 10, 1998. He testified that Officer Franchak "grabbed" Mr. Smith and was "in a yanking, pulling mood." Mr. Smith "put his hands up" and told the officer that he had let go of Mr. Petty "while Officer Franchak was still pulling him." He described how Officer Franchak held Mr. Smith and asserted that the officer had Mr. Smith "like in a choke lock actually."*fn8 He saw Mr. Smith "spit" blood "on the curb," and heard him tell Officer Franchak, "You broke my jaw." While Mr. Smith was handcuffed, Officer Franchak "grabbed him by the cuffs and kind of like drug him over to the curb. . . ."
Mr. Smith gave testimony. He and Mr. Petty argued about expensive "new shoes" that his, Mr. Smith's, mother had bought for him. While the argument was in progress and Mr. Petty mentioned a gun, Mr. Smith recalled that in the past, Mr. Petty "pulled [a] gun out on [him], [his] mother and [his] brother and [they were] . . . scared." The argument escalated into a fight during which Mr. Petty asked his "girlfriend Monique . . . [to] [p]op the trunk" so that he could "get [a] gun." Mr. Smith grabbed Mr. Petty when he saw him"digging in the trunk . . . looking for his gun." Mr. Petty's "girlfriend" tried "to break [the men] apart." In the process, Mr. Petty and Mr. Smith "fell" and "tussl[ed] on the ground for like probably 30 seconds and the police officers pulled up." Mr. Smith denied having Mr. Petty in a choke hold. When the two men fell to the ground, one of Mr. Smith's arms was under Mr. Petty and the other arm "was over [Mr. Petty] holding his arms together. . . ." Officer Franchak "grabbed" Mr. Smith and instructed him to let Mr. Petty go. He demonstrated how Officer Franchak restrained him.*fn9 Mr. Smith "started panicking because [he] couldn't breathe." He told the officer that he had released Mr. Petty. Mr. Smith stated: "My jaw popped and blood started gushing out my mouth onto his arm . . . ." He said to Officer Franchak: "You just broke my jaw. You just broke my jaw." He was then handcuffed. His mother took him to the hospital to be treated for his injuries because Mr. Smith did not "think [he] could afford [an] ambulance ride."
Mr. Smith detailed his permanent injuries and the screws that were put in his jaw, his symptoms, and the impact of his injuries. For example, he stated that his chin is still and permanently will be numb and that "the bone is pinching the nerve." It feels "like needles." His mouth remained wired for "two-and-a-half to three months." He could only "drink water and . . . the broth from soup." It was a painful experience for him. He can't "play with kids" because of a fear that he will be hit accidentally and his jaw will break again. He "jump[s] in his sleep." He "can't play football, basketball, no contact sports." With respect to his post-incident encounters with Officer Franchak, Mr. Smith maintained that the officer would rub his hand over his jaw "trying to be cute or something, being funny about [Mr. Smith's] jaw." In addition, on one occasion, Officer Franchak told him: "I already broke your jaw, so I know you don't want no more." Mr. Smith declared: "If I say something back to him or react a certain way, he's going to lock me up because that's what he wants, . . . to make me mad and he'll get to lock me up. So I can't say nothing." Mr. Smith denied cursing Officer Franchak.
In addition to the Howard University Hospital bill for treatment of his injuries, Mr. Smith asked the trial court to admit into evidence the pictures showing his injuries, and a Special Order of the Metropolitan Police Department concerning "Use of Carotid Artery." He also requested the court to take judicial notice of various regulations and statutory provisions.
After the completion of Mr. Smith's case, defendants moved for "judgment as a matter of law."*fn10 Following rather extensive discussion with counsel, during which counsel for Mr. Smith voiced disagreement repeatedly with the trial court's analysis, the court granted judgment as a matter of law for all appellees on all counts, stating in principal part:
[T]he Court believes that the plaintiff in order to survive the claim of 1983 against [Officer] Franchak as well as the excessive force claim, really did need to sponsor some expert testimony on the point here.
Given that there was no per se ban against the type of hold that was used in this case, it is the Court's opinion that the jury would be called upon to speculate that the circumstances here would not be permissible.
They very well would have been permissible and the Court believes that the Plaintiff needed some expert testimony with respect to those two counts.
I am saying that the evidence is lacking in supplying this jury with enough information of why it was an illegal hold and that they would be called upon to speculate on that because it's not a per se ban.
The Officer is permitted to use this type of a hold under certain circumstances.
I am saying that Plaintiff has failed to demonstrate to this jury through competent expert testimony of why the Officer's conduct is impermissible ...