Hechinger Co. v. Johnson
761 A.2d 15
D.C.,2000.
October 26, 2000 (Approx. 18 pages)
FACTS:
On February 12, 1994, plaintiff James W. Johnson was assaulted by an employee of Hechinger Company, while patronizing its Langley Park, Maryland store. The assault occurred during a dispute between the employee and plaintiff over payment for wood scraps he got from another patron who was giving the scraps away, while having wood cut in the store. The Hechinger employee, identifiable by his blue smock uniform with company logo, struck plaintiff, causing him to fall backward and slam his head on the counter. At the time of the incident, William Beims, an acquaintance of plaintiff's, was walking past the front of the store and witnessed the assault.
Medical tests showed that plaintiff suffered a subdural hematoma and his brain was permanently knocked out of alignment. A neurosurgeon performed a life-saving craniotomy to relieve the swelling and pressure on plaintiff's brain. Treating neurologist, Dr. Michael Batipps, and neurosurgeon, Dr. Joel Falik, testified that the injuries were caused by the head trauma from the assault and were very likely permanent. Tests showed that the damage to the left hemisphere of plaintiff's brain caused impairment to his memory, speech, mathematical and mechanical skills, writing, and most daily thought processes, and reduced his IQ. As a result of his injury, plaintiff experienced anxiety, depression, insomnia, and severe headaches and incontinence, greatly affecting his personal life and lengthy career as an attorney.
The Washington DC trial court denied Defendant's motion to dismiss on the grounds of forum non conveniens, as plaintiff's permanent residence and the location of the incident were in Maryland.Defendant argued that the court based its ruling on misunderstood facts regarding plaintiff's residency, so the court amended its order to make it without prejudice to defendant who could then resubmit the motion regarding plaintiff's address, following discovery. Defendant did not file a motion in response, which prevented him from appealing based on forum non conveniens. Defendant's argument is based solely on the residency issue. Plaintiff provided evidence that he resided in DC at the time of the assault through pre-trial proceedings and argued that the trial court did not abuse its discretion in denying the motion. Plaintiff further contended that dismissal at that stage in the proceedings was unjustified under the doctrine.
The trial court denied defendant's motion and renewed motion forjudgment as a matter of law. Defendant contended that plaintiff did not provide sufficient evidence proving its liability for the actions of its employee.Plaintiff argued that he presented sufficient evidence to prove that defendant was vicariously liable for the assault (based on the doctrine of respondeat superior), as the assault grew directly out of a work-related dispute by the uniformed employee.
The court allowed plaintiff's witness, William Beims, to testify even though he was not identified as a witness until ten days before trial. Defendant contended that plaintiff knew that Beims was a possible witness months after the incident, but did not identify him in any manner, to the prejudice of defendant. Defendant argued that plaintiff was required to identify the witness by Super. Ct. Civ. R. 16(b)(2) or the witness could not be called. The court found that neither the plaintiff nor his counsel acted in bad faith in delaying identifying the witness, and attributed it to plaintiff's mental deficiencies. The court also took into account that defendant deposed the witness about a week before trial and that neither side requested a continuance.
The court allowed the admission of plaintiff's statement to his treating physician, Dr. Joel Falik, that was recorded in a medical report. The statement involved Johnson telling his doctor that he had been hit in the head at a Hechinger store. Defendant challenged the admissibility of the statement because it should not have been admitted in the liability phase of this bifurcated trial because treatment issues were not then before the jury.
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Defendant makes numerous arguments on appeal.
Employee:judgment as a matter of law.
WITNESS: At its discretion, the rules allow the trial court to amend a pre-trial order, if good cause is shown. "The decision whether to allow a lay witness to testify who has not been identified as a witness in a pretrial order is within the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion," referring to Taylor, 407 A.2d at 592. The court weighed potential prejudice to both sides, but decided that the testimony be allowed.
Mention of Dollar Amount: Appeal Issues
In asking the jury to consider damages, plaintiff's counsel advised the trial court that he intended to make an argument consistent with that in Colston which was determined not to violate the rule that prohibits mentioning a dollar amount. Plaintiff's attorney mentioned several possible dollar amounts the jury may consider, in a carefully-crafted closing statement. He advised the jury that he couldn't tell them what to award, and emphasized that it was their job to decide, based on the court's instructions. He then pointed out one of the instructions in how they were to appropriately measure damages, which was "to look to the extent and duration of any bodily injuries sustained," then stated that the extent of the injuries was "permanent."
Defendant contended that plaintiff's closing argument was improper because it swayed the jury to come up with a two million dollar award, which was at the midpoint of the figures suggested by Johnson.
Defendant sought a new trial or amended judgement because it contended that the closing argument should not have been admissible because it subverted the court ruling that precluded the jury from awarding damages on future loss of income and medical expense.
PROCEDURAL HISTORY:
The trial court entered judgement for the plaintiff, and awarded $2,000,000 in damages.
The defendant appealed.
ISSUES:
***Is
1. Did the trial court err in the denying defendant's motion to dismiss on the grounds of forum non conveniens, since the trial took place in Washington DC and the assault and plaintiff's permanent residence was in the neighboring state of Maryland??
OR
Did having the trial in Washington DC violate the doctrine of forum non conviens since the assault and plaintiff's permanent residence was in the neighboring state of Maryland?
2. Did the trial court the trial court err in permitting Johnson's counsel to argue to the jury that Johnson's injuries were worth in excess of $1,000,000 and suggesting figures of $1,000,000, $2,000,000 and $3,000,000?
OR
Was the closing argument made by Johnson's counsel improper for stating that Johnson's injuries were worth more than $1,000,000, and for suggesting figures of $1,000,000, $2,000,000 and $3,000,000,based on XXXX (applicable law, doctrine)?
3. Did the trial court err in allowing Johnson's witness, William Beims, to testify because he was not identified as a corroborating witness until ten days prior to trial?
OR
Was the testimony of Johnson's witness, William Beims, improper because he was not identified until ten days prior to trial?
4. Did the trial court err in admitting Johnson's statement to his treating physician, Dr. Joel Falik, recorded in a medical report.
*Should Johnson's statement, recorded in a medical report, that he made to his treating physician, Dr. Joel Falik, have been admitted?
5. Did the trial court err in denying its motion and renewed motion for judgment as a matter of law because Johnson failed to provide sufficient evidence that the conduct of the Hechinger employee who struck him was a direct result of his job, based on the doctrine Respondeat superior?
???????
6. Did the trial court err in denying its motion for a new trial, or in the alternative, to alter or amend the judgment. Hechinger contends that it is entitled to a new trial because the jury ignored the court's instructions in reaching a verdict of $2,000,000.
OR
Should the court have granted a new trial or amend or alter its judgement because of Hechinger's contention that the jury ignored the court's instructions on reaching a $2,000,000 verdict?
HOLDING:
1. No. The trial court did not err in denying a motion to dismiss.
DISPOSITION:
Affirmed.
Reasoning:
The Court of Appeals held that defendant did not show compelling reasons affecting public or private interest factors to warrant disturbing plaintiff's choice of forum for trial under the doctrine of forum non conveniens.
The purpose of this doctrine is "to avoid litigation in a seriously inconvenient forum, rather than to ensure litigation in the most convenient forum."
In exercising its discretion in granting or denying a motion to dismiss under this doctrine, the trial court must apply both private and public interest factors. "'Private interest factors,' relate to the relative ease, expedition, and expense of the trial, including, relative ease of access to proof; availability and cost of compulsory process; the enforceability of a judgment once obtained; evidence of an attempt by the plaintiff to vex or harass the defendant by his choice of forum; and other obstacles to a fair trial.” "'Public interest factors,' include administrative difficulties caused by local court dockets congested with foreign litigation; the imposition of jury duty on a community having no relationship to the litigation; and the inappropriateness of requiring local courts to interpret the laws of another jurisdiction.”
The standard the court applied is that "the decision of the trial court granting or denying a motion to dismiss on the grounds of forum non conveniens will not be disturbed on appeal absent a clear showing that it abused its broad discretion."
The court did not find abuse of discretion in the trial court's ruling. Defendant did not show compelling reasons affecting public or private interest factors to show that plaintiff's choice of forum in the District of Columbia should be amended. Defendant did not contend that holding the trial in DC impeded a fair trial, or that plaintiff filed the case there to harass it. Defendant did acknowledge that it conducted substantial business in the District. A suit filed by a DC resident against a corporation that "maintains a significant presence in the District may be a matter of sufficient local interest to defeat dismissal on forum non conveniens grounds." Hechinger based it's whole argument on plaintiff's residency. Though the case arose from an incident in a neighboring state, plaintiff showed he lived in DC from at least the time of his assault through the pre-trial stage. During this time, months of pre-trial preparation had already occurred, where granting the motion would be significantly inconvenient, which is what the doctrine is meant to prevent.
(4) evidence was sufficient to prove that store was vicariously liable for its employee's assault on patron;
Court may enter judgment as a matter of law only where, viewing the evidence in the light most favorable to the non-moving party, the probative facts are undisputed and where reasonable minds can draw but one inference from them.
It is only when the evidence is so clear that reasonable men could reach but one conclusion that the motion for judgment as a matter of law should be granted.
Judgment notwithstanding the verdict is proper only in cases in which no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party.
Respondeat superior is a doctrine of vicarious liability which imposes liability on employers for the torts committed by their employees within the scope of their employment.
Under the doctrine of respondeat superior, an employer is subjected to liability for acts of his employee because of his employment and in furtherance of the employer's interests; if the employee's actions are only done to further his own interests, the employer will not be held responsible under doctrine.
Under doctrine of respondeat superior, if an employee acts in part to serve his employer's interest, the employer will be held liable for the intentional torts of his employee even if prompted partially by personal motives, such as revenge.
Evidence was sufficient to find that store employee's assault on patron grew out of a job-related controversy, or that employee acted on employer's behalf to resolve job-related dispute, so as to make store vicariously liable for employee's actions, where man approached wearing a blue smock with store's name on it after cashier informed patron that she was going to call supervisor concerning patron's claim that scraps of wood were given to him by another customer, and man argued and struck or pushed patron, who fell backward and slammed head into counter.
(3) medical report noting that patron had been hit in the head at retail store was admissible as out-of-court statement;
In civil assault action arising out of store employee's assault on patron, reference in treating physician's medical report that patron said that he had been hit in the head at specific retail store was admissible as being out-of-court statement for purposes of medical diagnosis or treatment.
Evidence from medical report that witness reported assault at retail store to his doctor was cumulative, and thus, any error in its admission, as containing impermissible statement of fault, was harmless, given that assault victim testified at trial concerning where and how assault occurred, and his testimony was corroborated by eye witness.
*WITNESS?
Superior Court Rules permit the trial court to modify a pre-trial order at its discretion, for good cause shown.
Trial court was not precluded from allowing witness to testify in assault action against retail store because he was not identified as a corroborating witness until ten days prior to trial, where witness was essential to corroborating assault, victim's mental deficiencies contributed to delay in disclosing witness, victim did not act in bad faith in delaying identification of witness, and store had opportunity to depose witness a week prior to trial.
Decision whether to allow a lay witness to testify who has not been identified as a witness in a pretrial order is within the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion.
The trial court properly balanced considerations relevant to its discretionary ruling. See, e.g., Weiner v. Kneller, 557 A.2d 1306, 1311-12 (D.C.1989).4 They concluded that the trial court did not abuse its discretion in allowing Beims, an essential corroborating witness to the assault, to testify.
(2) closing jury argument by patron's attorney was not improper;
It is improper for counsel to suggest to the jury that it award a specific dollar amount.
Assessment of the amount of damages is a matter exclusively within the jury's province.
Counsel is permitted to stress to jury those aspects of a case which make the client's claim substantial or serious.
Closing jury argument in action against retail store for assault by its employee was not improper, where counsel did not ask jury to award specific dollar amount, but rather told jury that it was for them to decide proper measure of damages, and referred jury to instructions on damages which trial court would give; trial court instructed jury to base its decision on evidence, without sympathy, prejudice or passion, and that statements of counsel were not evidence.
Jury is presumed to follow the trial court's instruction.
and
(5) evidence was sufficient to support jury award of damages in amount of $2,000,000 on basis of patron's significant brain damage.
Generally, a juror may not impeach his or her verdict as to matters which inhere in the verdict itself, as opposed to extraneous influences.
Rationale underlying the rule that juror may not impeach his or her verdict as to matters which inhere in the verdict itself is aimed at: (1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussions among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; (5) maintaining the viability of the jury as a judicial decision-making body.
Whether jury considered improperly admitted evidence relating to calculation of future losses and medical costs was essentially argument that it failed to follow the court's instructions with respect to damages, which, as matter that inhered in verdict itself, did not provide valid basis for impeachment of verdict.
Whether to grant a new trial based on excessiveness of a jury verdict is entrusted to the sound discretion of the trial court, and that decision will not be disturbed absent a showing of abuse of discretion.
Evidence was sufficient to support jury award of damages in amount of $2,000,000 to store patron, who was assaulted by store employee, who struck or pushed patron, causing patron to slam head into counter, where patron sustained severe and permanent brain injury, including loss of intelligence, memory, and patron had seizures, incontinence, bizarre behavior and loss of self esteem from assault, resulting in loss of confidence in ability to practice law again.
CITATIONS TO SUPPORT JUDGEMENT
1 Forum Non Conveniens
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), Cresta v. Neurology Ctr., P.A., 557 A.2d 156, 159 (D.C.1989); Carr v. Bio–Medical Applications of Wash., Inc., 366 A.2d 1089, 1091–92 (D.C.1976).
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APPEAL Issues:
I. forum non conveniens
II. Mention of Dollar Figure in Closing Argument
III. Evidentiary Challenges
A. Denial of Motion to Exclude Witness' Testimony
B. Admissibility of Statement for Medical Diagnosis and Treatment
IV. Sufficiency of Scope of Employment Evidence
V. Denial of Motion for New Trial or Remittitur
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