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Upton v. Henderer

April 9, 2009


Appeals from the Superior Court of the District of Columbia (CA-3699-04) (Hon. Ronna Lee Beck, Trial Judge).

The opinion of the court was delivered by: Farrell, Senior Judge

Argued March 5, 2009

Before RUIZ and FISHER, Associate Judges, and FARRELL, Senior Judge.

In this lawsuit for damages resulting from an automobile accident, plaintiff-appellant Upton challenges the pretrial order of the trial judge excluding evidence of claimed lost wages, and seeks a new trial after the jury denied him damages for personal injury.*fn1 Defendant (and cross-appellant) Henderer in turn contests the judge's refusal to award him expert witness fees as costs under Superior Court Rule of Civil Procedure 68. We affirm in all respects, publishing this opinion only to explain our agreement with the trial judge that witness fees beyond those provided in 28 U.S.C. § 1821 may not be awarded under Rule 68.


Upton and Henderer were involved in a car accident on Connecticut Avenue, N.W. After Upton sued for negligence, Henderer offered him a judgment of $10,000 under Rule 68, which Upton rejected. At trial Henderer admitted negligence and the only issues put to the jury were whether his conduct had proximately caused injuries to Upton, and if so, the amount of damages to be awarded. Since the parties stipulated to $2,000 worth of damage to Upton's car, the judge directed a verdict for Upton to that extent. The judge further treated as unopposed, and granted, Henderer's in limine motion to exclude evidence of purported wage losses by Upton. Following a trial in which competing medical experts opined on whether the accident had aggravated Upton's pre-existing back malady, the jury found that Upton had not met his burden of proof on causation and awarded him nothing. Henderer then moved for costs including fees paid to his expert witnesses, in light of his earlier offer of judgment exceeding Upton's recovery. The judge denied him witness fees except to the extent provided by 28 U.S.C. § 1821 (b), relying chiefly on this court's decision in Talley v. Varma, 689 A.2d 547 (D.C. 1997), which had imposed the same limit on witness fees sought as costs under Super. Ct. R. Civ. P. 54. Henderer thus received witness fees of $40 per day and travel expenses for each of his expert witnesses.


Upton's twin challenges to the exclusion of wage-loss evidence and the jury's refusal to award him damages may be dealt with briefly, beginning with the latter. When, as here, a party seeks a new trial because the damage award is against the weight of the evidence, we will reverse only (a) if the amount - or absence - of an award "evidences prejudice, passion, or partiality on the part of the jury[,]" (b) "where the verdict appears to be an oversight [or] mistake, or [to rest on] consideration of an improper element," or (c) where "the award is contrary to all reason." Barron v. District of Columbia, 494 A.2d 663, 665 (D.C. 1985) (quoting Romer v. District of Columbia, 449 A.2d 1097, 1099 (D.C. 1982)). Upton, however, confronts a threshold hurdle because he did not move for a new trial challenging the jury's verdict. "This court will not review a verdict for inadequate or excessive damages unless such arguments were made to the trial court in post-trial motions." Oliver v. Mustafa, 929 A.2d 873, 879 (D.C. 2007). In Keener v. Karr, 528 A.2d 1236 (D.C. 1987), we explained why:

[T]he trial judge has the chief responsibility for passing on the question as to whether a new trial is to be granted on the ground of excessive or inadequate damages, subject to only the most limited review . . . . The trial judge must, as a result, be given an opportunity to exercise his discretion.

Id. at 1237 (quoting with approval Ryen v. Owens, 144 U.S. App. D.C. 332, 333, 446 F.2d 1333, 1334 (1971) (emphasis added)). Thus, we would only speculate by asking whether the judge abused discretion Upton never invoked in not granting a new trial here. Moreover, the weighty expert medical testimony Henderer presented disputing any causal link between the car accident and personal injury to Upton, even by way of aggravation, makes it impossible for us to say that the verdict was "contrary to all reason." Barron, supra, 494 A.2d at 665 (quoting Romer, supra, 449 A.2d at 1099).*fn2

Because the jury's finding of no causation is unassailable on appeal, we do not reach Upton's challenge to the exclusion of evidence of lost wages. At oral argument, he suggested that the jury might have been more receptive to his evidence of causation had it learned that he earned no wages in the aftermath of the accident, but we do not see how this can be so. As he concedes, the jury heard - and implicitly discounted - the evidence he provided that he had worked strenuously to build his security and safe-repair business in the years just before the accident (though taking no salary), but was sidelined entirely and could earn nothing after the accident. Merely learning the price-tag Upton put on his post-accident inability to work could not reasonably have affected the jury's unwillingness to find the necessary causal connection.*fn3

On this record, in sum, there is no reason to disturb the jury's verdict and the antecedent ruling on lost wages.


In his cross-appeal, Henderer urges us to hold that compensation for the time and work of expert witnesses is an awardable "cost" under Super. Ct. R. Civ. P. 68.*fn4 He maintains that, if all a defendant who has offered judgment may recover in witness fees is the nominal amount set forth in 28 U.S.C.ยง 1821 (b) (i.e., $40 per day per witness and travel expenses), then Rule 68 is effectively a dead letter, contrary to its avowed purpose "to penalize prevailing plaintiffs who had rejected reasonable settlement offers." Nichols v. First Union Nat'l Bank, 905 A.2d 268, 275 (D.C. 2006) (quoting Delta Air ...

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