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Trustees of the University of the District of Columbia v. Vossoughi

January 15, 2009

TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, APPELLANTS,
v.
JAFAR VOSSOUGHI, APPELLEE.



Appeal from the Superior Court of the District of Columbia, (No. CAB-3280-03), (Hon. Geoffrey M. Alprin, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued May 23, 2007

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and FARRELL, Associate Judge, Retired.*fn1

Dr. Jafar Vossoughi sued the University of the District of Columbia ("UDC") for destroying his personal property--unique scientific instruments and other equipment, voluminous teaching materials, unpublished research data, and other items--when it cleaned out his biomechanical research laboratory without his knowledge in order to devote the space to other uses. The case was tried to a jury, which found UDC liable to Dr. Vossoughi for trespass to chattel, conversion, and negligence, and awarded him compensatory damages in the amount of $1,650,000. The trial court entered judgment on that verdict and denied UDC's post-judgment motion for partial judgment as a matter of law, a new trial, and/or a remittitur.

On appeal, UDC takes no issue with the jury's finding of liability and seeks a new trial only on the question of Dr. Vossoughi's damages. To prove the value of his lost property at trial, Dr. Vossoughi relied on his own testimony and that of two expert witnesses. UDC, which introduced no contrary valuation evidence, challenges both the admissibility of the experts' testimony and the overall sufficiency of Dr. Vossoughi's proof of value. In addition, UDC claims that the trial court improperly refused to instruct the jury on mitigation of damages and erroneously allowed the jury to award damages to Dr. Vossoughi for property that belonged not to him, but to UDC.

UDC's contentions do not persuade us to grant it relief. We conclude that the valuation testimony of Dr. Vossoughi and his two expert witnesses was admissible and sufficient to support the jury's award. We further conclude that UDC was not entitled to an instruction on mitigation. Finally, we reject UDC's charge that the trial court erroneously allowed the jury to compensate Dr. Vossoughi for the loss of property he did not own.

I.

Dr. Vossoughi is an expert in applied mechanics and experimental biomechanics--an area of study that encompasses the testing of mechanical theories and the creation and development of novel experimental devices for biomechanical research. Over the course of his career, Dr. Vossoughi has written or edited 17 books and over 150 other publications. According to the undisputed testimony of two fellow scientists, Dr. Vossoughi has made significant discoveries and contributions and is well-known and respected in his academic field.

Dr. Vossoughi received his professional training at Catholic University in the District of Columbia. After earning his bachelor's degree in mechanical engineering, and then a master's degree in civil engineering in 1976, Dr. Vossoughi remained at Catholic University until 1989, when he received his Ph.D. in applied mechanics. Dr. Vossoughi began teaching engineering courses at Catholic University while he was still an undergraduate, and he continued teaching as a graduate student. In the process, he created comprehensive materials and notes for a total of twenty courses in engineering or architectural subjects. He also conducted independent, grant-funded research at Catholic University in addition to the research for his doctoral thesis.

In 1989, UDC hired Dr. Vossoughi as an adjunct associate professor, and he established a laboratory there. When he left Catholic University, Dr. Vossoughi brought with him to UDC his ongoing research and course materials and the equipment he utilized in his laboratory work. Much of this material belonged to Catholic University, but the university allowed Dr. Vossoughi to take it with him. Uncontradicted testimony at trial established that universities normally (if not invariably) permit researchers who move to other academic institutions to take their laboratories and equipment with them, because specialized scientific devices and other research or teaching materials may be of most value in the hands of the principal investigator utilizing them. It is undisputed that Catholic University disclaimed the equipment and intellectual property Dr. Vossoughi brought with him to UDC in 1989, and that Dr. Vossoughi thereafter was the rightful and sole owner of that property.

For several years, UDC renewed Dr. Vossoughi's employment contract annually. In 1995, however, UDC informed Dr. Vossoughi that his position would need to be supported entirely by grant or contract funds from external sources. After Dr. Vossoughi's final employment contract with UDC ended in 1997, he was allowed to remain on campus and support his research laboratory there through public or private grants. Under federal regulations and National Science Foundation policy, which were introduced in evidence at trial, such research grants are awarded to a recipient institution, and title to grant-funded property vests in the institutional grantee. As UDC grant administrator Joan Levermore explained, property that Dr. Vossoughi acquired or developed with grant funds during his tenure at UDC therefore belonged to UDC, not to Dr. Vossoughi. While UDC might have allowed Dr. Vossoughi to keep some or all of this property upon his departure from the institution, it was under no obligation to do so.

In 1999, Dr. Vossoughi filed a lawsuit against UDC for breach of contract, in which he claimed that university officials had reneged on a promise to give him tenure. In the summer of 1999, while settlement negotiations were taking place, acting UDC provost Beverly Anderson directed Dr. Vossoughi in writing to vacate his laboratory, because the space was needed for other university programs. In early September, however, UDC counsel Robin Alexander advised Dr. Vossoughi's attorney that Dr. Vossoughi's eviction had been stayed in view of the on-going efforts to resolve the employment litigation. Provost Anderson testified at trial that Alexander had asked her not to evict Dr. Vossoughi. Nonetheless, in November 1999, Provost Anderson wrote another letter demanding that Dr. Vossoughi vacate his laboratory.

In January 2000, unbeknownst to Dr. Vossoughi, a decision was made to clear out the contents of his laboratory to make room for a practical nursing program. Lucius Anderson, the acting director of UDC's Division of Continuing Education, supervised the eviction, which was completed in early February while Dr. Vossoughi was attending a conference out of town. Mr. Anderson hired a contractor and a helper to move the contents of the laboratory, which were supposed to be transferred to a secure storage space in the basement of the building. As Anderson testified at trial, he did not prepare a written inventory of the items in the laboratory before they were removed; he "visibly monitored" the eviction but was not present the entire time the contractor and helper were in the laboratory; and he had no "personal knowledge as to whether or not they may have thrown stuff out." He did not check whether all the contents of the laboratory were stored properly, because "the things we took out of the area... were already in boxes by the time they arrived in the storage area."

On February 11, 2000, Dr. Vossoughi returned to his laboratory, found the door open, and discovered that "[m]ost of the lab was empty except some big pieces there." He testified at trial that he saw "a lot of [his] stuff in the trash dumpsters" around the building, but approximately "80, 90 percent of [his] things were gone." Dr. Vossoughi immediately telephoned his attorney, who instructed him to take photographs to document the condition of his laboratory. The photographs, which were in evidence at trial, show a laboratory stripped of virtually all its contents, surrounded by piles of trash and stacked boxes. Dr. Vossoughi testified that a trash bin in one photograph contained "mostly [his] experiments, which were broken, dismantled." When asked at trial whether he did anything to try to retrieve property from the trash, Dr. Vossoughi responded that "if 80, 90 percent of your belongings are gone, you don't care at that time about 10 percent trash left over." Later, Dr. Vossoughi did seek to retrieve or inventory his stored belongings, but UDC initially did not permit him to do so. Eventually, Dr. Vossoughi was allowed to inventory the property and take what was his. He testified at trial that he did not include any recovered property in his claim for damages.

II.

Dr. Vossoughi sought compensation from UDC for the destruction of four main types of personal property: (1) course materials; (2) unpublished research data; (3) scientific instruments that he had fabricated; and (4) equipment and other items that he had purchased from commercial vendors. The value of this property was a principal, though not the sole, component of Dr. Vossoughi's damages claim.*fn2 Because most of the lost property was unique or had no fair market value, Dr. Vossoughi asked the jury to award him its replacement value. In order to establish the value of his lost property, Dr. Vossoughi relied on his own testimony and, with respect to all but the commercially available items, the testimony of two expert witnesses, Dr. Ted Conway and Dr. Subrata Saha. Dr. Conway, a biomedical engineering researcher at the University of Central Florida, was "on loan" at the time of trial to the National Science Foundation, where he was in charge of its funding program for research and disabilities education. In connection with that assignment, Dr. Conway had earned a "master's certificate" in project management at George Washington University. Dr. Saha was a professor at Alfred University, where he taught courses in bioengineering, biomechanics and related fields, as well as a course in engineering economic analysis. Both Dr. Conway and Dr. Saha had collaborated with Dr. Vossoughi on research projects, and they were generally familiar with his work, the courses he taught, and his publications and scientific reputation.*fn3

Dr. Vossoughi's Lost Course Materials

Dr. Vossoughi testified that when UDC emptied his laboratory, it destroyed class notes and other materials he had developed to teach a total of twenty-one different courses. Most of the courses were in engineering subjects, though two were architecture courses. Dr. Vossoughi created all but one of these courses while he was at Catholic University; the exception was created at UDC. He testified that creating new course materials involves not just getting [a] few text book[s], reading, learning, and teaching.

For specialized courses, you have to do a lot of research.... And then for each course you come up with solution[s] of the examples, exams. And then for laboratory courses, a lot more time, of course.

Dr. Vossoughi estimated that the typical course took one quarter of a year, or half of one semester, to create, and that it represented an investment of time worth $25,000--a figure he justified by explaining that the average tenured engineering professor is paid a salary of $100,000 for a full year, or two semesters. Thus, Dr. Vossoughi placed a total value of $525,000 on the twenty-one sets of course materials destroyed by UDC. On cross-examination, Dr. Vossoughi acknowledged that he had not based this valuation on his own compensation, which had been considerably less than $100,000; when he was an adjunct professor at UDC, his salary was about $62,000 per year. Dr. Vossoughi also stated that he had never tried to sell his course materials, because "[n]obody would buy somebody else's notes. It's useless [sic] only for that particular class."

Both Dr. Conway and Dr. Saha supported the reasonableness of Dr. Vossoughi's valuation. In the opinion of Dr. Conway, who was personally acquainted with many of Dr. Vossoughi's course materials,*fn4 $25,000 per course was a "good,... conservative estimate" of their value. Dr. Conway explained that Dr. Vossoughi had created advanced courses based on his own expertise and experimental background, and his lecture notes for a given course could be up to 450 pages long. Dr. Conway and Dr. Saha agreed that it would take half a semester to develop such materials for a new course. They also agreed that it was reasonable to assume an average salary of $100,000 a year for a professor of Dr. Vossoughi's standing in valuing such a time investment. Dr. Conway noted that a junior professor would earn that amount "at most universities across the country." He added that Dr. Vossoughi had been "considered for a position at my university but unfortunately he wasn't able to have any lab equipment to bring with him and he wasn't offered the position. It would have been $130,000 a year."

Dr. Vossoughi's Unpublished Research

Dr. Vossoughi also sought damages for the loss of his unfinished and unpublished research. Over his long career, he testified, he had worked intermittently on "hundreds" of discrete research projects. ("If I get bored or something doesn't work for few weeks, I quit that, go to something else, come back the next month.") Although he could not describe the research with specificity, Dr. Vossoughi claimed that "at least ten" such on-going projects were lost when UDC evicted him. He testified that he had performed most of his work on eight of these research projects when he was at Catholic University (though he continued to work on them, on and off, at UDC), and that he had started and worked on the other two projects after he came to UDC. Dr. Vossoughi did not have a "specific recollection" of how much time he had invested in these research activities "over the years." However, based on his "prior time commitment to this unpublished data," and his judgment (in light of his past experience applying for and receiving grants) that a typical scientific project would be supported by a research grant of around $200,000, Dr. Vossoughi sought $50,000 in damages for each lost project, or $500,000 in total. Dr. Vossoughi insisted that $50,000 per project was a "very, very low estimate."

Dr. Conway testified that he had some familiarity with the unpublished research that had been in Dr. Vossoughi's laboratory, because [h]e and I actually were getting ready to publish a couple of papers based on the research that he was doing. And unfortunately we lost that data, so we weren't able [to] publish that research. And in not doing so--it's irreplaceable data. It's just irreplaceable data. It's just--well, it's very difficult to deal with someone destroying irreplaceable data. ...


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