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Harvey v. Mohammed

United States District Court, District of Columbia

April 24, 2013

DAVID HARVEY, et al., Plaintiffs,
MOHAMMED, et al., Defendants

Page 94

For DAVID HARVEY, Individually and as Personal Representative of the Estate of Curtis Suggs, Plaintiff: Harvey S. Williams, LEAD ATTORNEY, HARVEY S. WILLIAMS, Washington, DC; Jeffrey P. Matthews, PRO HAC VICE, JEFFREY P. MATTHEWS, Denver, CO.


For DONALD C. EGBUONU, M.D., Defendant: Veronica S. Ascarrunz, WILSON SONSINI GOODRICH & ROSATI, PC, Washington, DC.

For DISTRICT OF COLUMBIA, Defendant: Elizabeth Sarah Gere, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA, Civil Litigation Division, Washington, DC; Steven J. Anderson, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL FOR DC, Washington, DC; Dwayne C. Jefferson, D.C. ATTORNEY GENERAL'S OFFICE, Washington, DC; Joseph Alphonso Gonzalez, OFFICE OF THE ATTORNEY GENERAL, Civil Litigation, Section 2, Washington, DC.

For DISTRICT OF COLUMBIA, Cross Claimant: Steven J. Anderson, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL FOR DC, Washington, DC; Dwayne C. Jefferson, D.C. ATTORNEY GENERAL'S OFFICE, Washington, DC; Joseph Alphonso Gonzalez, OFFICE OF THE ATTORNEY GENERAL, Civil Litigation, Section 2, Washington, DC Nicholas Coates, OFFICE OF THE ATTORNEY GENERAL, Washington, DC; Holly Michelle Johnson, DISTRICT OF COLUMBIA ATTORNEY GENERAL, Washington, DC.



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Royce C. Lamberth, Chief United States District Judge.

Before the Court is the defendant District of Columbia's Motion [252] for a New Trial on Damages or, in the Alternative, for Remittitur. Upon consideration of the Motion, plaintiff's Opposition [260] thereto, the District's Reply [265], the entire record of this case, and the applicable law, the Court will DENY the Motion.


Plaintiff David Harvey, as personal representative of the Estate of Curtis Suggs, brought this suit against Leon and Yvonne Mohammed, Symbral Foundation for Community Services, Inc., Donald C. Egbuonu, M.D., and the District of Columbia under 42 U.S.C. § 1983, D.C. Code § 7-1301.02, et seq., federal and District of Columbia statutes regulating community residential facilities, and District of Columbia common law.

Mr. Suggs was born in 1932 with severe physical and mental disabilities, including cerebral palsy, and was committed to the District's custody in 1967. From October 1984 until his death in 2000, Mr. Suggs lived in a group home operated by Symbral under annual contracts with the District. Yvonne and Leon Mohammed founded Symbral and, at the time of the relevant events, served as CEO and CFO, respectively. Dr. Egbuonu rendered medical care to Mr. Suggs at the group home. The District, specifically the Mental Retardation and Developmental Disabilities Administration (MRDDA), remained legally responsible for Mr. Suggs and was to oversee his individual habilitation plan (IHP) which was developed by an Inter-Disciplinary Team (IDT) of clinicians, the MRDDA case manager, and the Symbral " qualified mental retardation professional."

Beginning in 1995, Mr. Suggs's health started to deteriorate; he lost strength in his upper extremities and became incontinent. In September 1995, a physical therapist with the United Cerebral Palsy (UCP) day program in which Suggs was enrolled recommended a neurology consult to evaluate the decline in his upper body strength. This examination was not scheduled

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and on February 20, 1997, Symbral was cited with a Deficiency Notice for failing to promptly schedule it. Pursuant to a March 7, 1997 Plan of Correction, Ms. Mohammed agreed that Symbral would " make all medical appointments within one month of the recommendation" and she scheduled a neurology appointment that day. The examining neurologist believed that cervical stenosis (compression of the cervical spine) could be the cause of Mr. Suggs's decline and recommended an MRI. The MRI was not performed until April 18, 1997; it revealed severe spinal stenosis at the C-2 level of Mr. Suggs' spine. Although Symbral was instructed to schedule a follow-up appointment, this appointment did not occur until June 27, 1997. The same neurologist then recommended a surgery consult. This consultation too was delayed and did not occur until November 11, 1997, when the examining neurosurgeon recommended that Mr. Suggs undergo a laminectomy in the following " weeks" to relieve pressure on his spinal cord. Mr. Suggs's IDT waited four months, until March 19, 1998, and then decided to get a second opinion. The IDT then waited over a year to get the second opinion. The physician who saw Mr. Suggs also recommended a cervical laminectomy. Symbral waited until mid-1999 to seek consent for the surgery from Mr. Suggs's sister, Carrie Weaver, and she declined to consent in August 1999. However, the District could have signed the consent for surgery on Mr. Suggs's behalf. Mr. Suggs was again evaluated in December 1999 and another neurosurgeon concluded that, at that time, surgery was unlikely to have any meaningful impact on Mr. Suggs's motor function or neurological status. Mr. Suggs never received the surgery. On June 30, 2000, Mr. Suggs died from complications related to the cervical stenosis.

This Court granted partial summary judgment for plaintiff in January 2012. Mem. Op., ECF No. 165. The Court held for the plaintiff with regard to his § 1983 claim against the District and his negligence claims against the District, Symbral, and the Mohammeds. Id. at 7- 17. The Court denied summary judgment with respect to plaintiff's claim under D.C. Code § 7-1305.14 (Count VIII), though it later held for plaintiff as a matter of law on this count. Id. at 35- 36; Pretrial Order 13, ECF No. 196. With respect to the negligence and § 7-1305.14 claims, District of Columbia statute barred recovery for injuries occurring before December 23, 1999 such that recovery was limited from that date to June 30, 2000. Id. at 36-39 (citing D.C. Code § 12-309). [2] Defendants Symbral and the Mohammeds settled before trial. See Order, ECF No. 221. The case against Dr. Egbuonu was dismissed for failure to prosecute. Pretrial Order 17.

A trial on damages was held in April 2012 to determine the amount of compensatory damages owed to plaintiff for the District's negligence and violation of § 1983. The jury awarded $2.9 million in compensatory damages, of which $500,000 was for the period December 23, 1999 to June 30, 2000. The District subsequently sought 50% contribution from Symbral and the Court held that the District was entitled to a $250,000 contribution, thus entering judgment against the district in the amount of $2.65 million. The District now

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moves for a New Trial on Damages or, in the Alternative, for Remittitur.


The District argues that it is entitled to a new trial on damages, alleging various grounds, including: that the jury verdict was " tainted by improper exclusion of highly relevant evidence" ; that plaintiff was allowed to introduce hearsay testimony and reports containing expert opinions; that the jury instructions improperly notified the jury of a potential " set-off" claim by the District; and that plaintiff's closing argument was improper in several ways. Def.'s Mem. in Supp. of Def.'s Mot. for New Trial on Damages or, in the Alternative, for Remittitur, ECF No. 252 [hereinafter Def's. Mem.].

A. Legal Standard

Federal Rule of Civil Procedure 59(a) allows courts to " grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a). " [T]he general grounds for a new trial are that the verdict is against the weight of the evidence, that the damages are excessive, . . . that for other reasons the trial was not fair, . . . [or that there were] substantial errors in the admission or rejection of evidence or the giving or refusal of instructions. The court has the power and duty to order a new trial whenever, in its judgment, this action is required in order to prevent injustice." 11 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2805 (3d ed.). However, " a new trial will not be granted on grounds not called to the court's attention during the trial unless the error was so fundamental that gross injustice would result." Id.

The Federal Rules further provide that, " [u]nless justice requires otherwise, no error in admitting or excluding evidence--or any other error by the court or a party--is ground for granting a new trial . . . . [T]he court must disregard all errors and defects that do not affect any party's substantial rights. " Fed.R.Civ.P. 61 (emphasis added). " Thus it is only those errors that have caused substantial harm to the losing party that justify a new trial. Those errors that are not prejudicial do not call for relief under Rule 59." Wright & Miller, supra. Finally, whether to grant a new trial is " entrusted to the sound discretion of the trial court." Grogan v. Gen. Maint. Serv. Co., 763 F.2d 444, 447, 246 U.S.App. D.C. 154 (D.C. Cir. 1985) (citation omitted).

The District argues that, even if an error individually would not warrant a new trial, the collective weight of the errors may have a substantial and injurious effect on the jury's verdict. Def.'s Mem. 15 (citing United States v. Sepulveda, 15 F.3d 1161, 1196-96 (1st Cir. 1993)).

B. District's Challenge to Pre-Trial Orders

The District argues that the Court erred in precluding the District " from introducing evidence to show 'alternative causes of Mr. Suggs's deterioration" or [to support] 'the theory that neck surgery would have caused Mr. Suggs more harm' [than foregoing the surgery]." Def.'s Mem. 3, 16 (citing Supplemental Pretrial Order 8-9, ECF No. 220). The Court's Pretrial Order precluded the District from offering the testimony of Dr. David L. Jackson, who would have testified that Mr. Suggs would likely have suffered more had he had a laminectomy, that the District's oversight of Symbral's care met the standard of care, that the decision of Mr. Suggs's sister not to allow the surgery was reasonable under the circumstances. Supplemental

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Pretrial Order 7-8. The Court noted that liability had already been determined and that that this testimony was irrelevant to the question of the amount of damages to which Mr. Suggs was entitled. Id. at 8. The Court also held that the District was precluded from commenting during opening statement or introducing any witness, testimony, or evidence about matters regarding: decisions of the IDT regarding Mr. Suggs; efforts to contact Mr. Suggs's sister; efforts of the District to monitor Symbral; alternate causes of Mr. Suggs' deterioration; the theory that neck surgery would have caused Mr. Suggs more harm; and other matters. Id. at 8-9. Again, the Court concluded that liability had already been decided and that these issues were irrelevant to the sole remaining issue of damages.

The District argues that " a defendant always should be permitted to show that the plaintiff's damages were caused by something other than the defendant's actions, even where the defendant's liability is [already] established." Def.'s Mem. 16. The District asserts that " much, if not all, of the decline in Mr. Suggs's health was attributable to his" existing health conditions rather than the District's conduct, id. at 16-17, and that the Court's Order prevented it from introducing evidence to support that theory. Def.'s Mem. 17-21. [3]

Plaintiff responds that, in order to prove that Mr. Suggs's harm was caused by a preexisting condition or that a laminectomy would not have been helpful, the District would have had to have designated an expert to provide testimony on medical causation and they failed to do so. Pl.'s Opp'n to Def.'s Mot. for New Trial 4, ECF No. 260 [hereinafter Pl.'s Opp'n]. Plaintiff also states that the District failed to present evidence in opposition to plaintiff's earlier motion for summary judgment to refute evidence that the District's conduct caused Mr. Suggs to experience a decline in health, motor function, and strength as well as dehydration, ulcers, incontinence, paralysis of the diaphragm, and death. Id. at 5-6. The plaintiff argues that the Court properly " disallowed late named 'experts' whose purported opinions had never been supplied to Plaintiff in accordance with" Federal Rule of Civil Procedure 26(a)(2)(C). Id. at 6.

This Court granted summary judgment to plaintiff on his negligence claim because it held that the District breached a duty to Mr. Suggs and that no reasonable juror could find that its monitoring of Symbral's care for Mr. Suggs was anything but negligent. It also noted that Mr. Suggs's condition had caused him to suffer paralysis and die. The Court also granted summary judgment to plaintiff on his § 1983 claim, holding that the District had a policy of deliberate indifference with respect to protection from harm and provision of medical care to Mr. Suggs.

At the summary judgment stage, the District had an opportunity to present the evidence that they complain was later excluded at trial. Specifically, they could have shown that Mr. Suggs had not suffered damages as a result of their alleged negligence or deliberate indifference and that they thus should not have been held liable. Instead, the District merely opined, without support, that " [g]iven Mr. Suggs' increasing infirmity as he approached the end of his 68 years of life, it was reasonable to conclude that spinal surgery including the pain and the recuperation period involved was more torture than therapy . . . ." Def.'s Opp'n 25-26. The

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only evidence presented in support of this theory was (1) a comment by a physical therapist in January 1998 that " [t]he functional changes that are present are not remarkable to this examiner--age is playing a role[,]" id. at 19 (citing Symbral Ex. 4, ΒΆ 13, Symbral Ex. 9), and (2) a reference to deposition testimony by Dr. Joel L. Falik, in which he speculated that a laminectomy would not have benefited Mr. Suggs if performed in April 1997, but that it might have if it had been performed in 1995 or 1996, Dep. of Joel L. Falik 24, 27, Def.'s Opp'n to Pl.'s MSJ, Ex. 2. The Court based its decision at the summary judgment stage on the evidence actually presented ...

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