Destefano v. Children's Nat'l Med. Ctr.

• Citation: 121 A.3d 59
• Decision Date: 23 July 2015
• Docket Number: 13–CV–694.,Nos. 13–CV–679,13–CV–693,s. 13–CV–679
• Parties: Wendy Paola DESTEFANO, et al., Appellants, v. CHILDREN'S NATIONAL MEDICAL CENTER, et al., Appellees. Children's National Medical Center, Appellant, v. Wendy Paola Destefano, et al., Appellees. Colonial Parking, Inc., Appellant, v. Wendy Paola Destefano, et al., Appellees.
• Court: Court of Appeals of Columbia District

121 A.3d 59

Wendy Paola DESTEFANO, et al., Appellants

v.CHILDREN'S NATIONAL MEDICAL CENTER, et al., Appellees.

Children's National Medical Center, Appellant

v.Wendy Paola Destefano, et al., Appellees.

Colonial Parking, Inc., Appellant

v.Wendy Paola Destefano, et al., Appellees.

Nos. 13–CV–679

13–CV–693

13–CV–694.

District of Columbia Court of Appeals.

Argued Jan. 27, 2015.

Decided July 23, 2015.

Dawn V. Martin, Washington, DC, for appellants/cross-appellees.

Christopher E. Hassell, with whom Andrew Butz, Dawn Singleton, and Megan Kinsey–Smith, Washington, DC, were on the brief, for appellee/cross-appellant Colonial Parking, Inc.

Adam W. Smith, with whom Gary W. Brown, Fairfax, VA, was on the brief, for appellee/cross-appellant Children's National Medical Center.

Before FISHER and McLEESE, Associate Judges, and REID, Senior Judge.

Opinion

FISHER, Associate Judge:

Wendy Paola Destefano and Enrique Ibanez sued Children's National Medical Center and Colonial Parking, Inc., for injuries caused when their son fell down an air shaft in a parking garage.¹ A jury awarded plaintiffs a total of $1,586,000, and all parties appealed. We reverse the trial court's decision granting summary judgment to the defendants on Ms. Destefano's claim of negligent infliction of emotional distress, but otherwise affirm.

I. Background

Children's National Medical Center (“CNMC”) operates a hospital which specializes in medical care for children; its main building includes an underground parking garage. Colonial Parking, Inc., a private parking company, operates and manages that garage.

On March 11, 2009, Ms. Destefano brought her six-year-old son, G.I., to CNMC to see a neurologist. Her four-year-old daughter, V.I., accompanied them. G.I. had regular appointments at CNMC because he had a lifelong seizure disorder stemming from a brain hemorrhage

that occurred when he was thirteen days old.

Ms. Destefano parked her car in a designated parking space near the wall of the garage. When the family returned after G.I.'s appointment, Ms. Destefano asked her children to back up in the space between the car and the wall so she could open the car door. When the children did so, G.I. fell backwards through a vent in the wall that opened into a twenty-five-foot air shaft. The metal cover for the hole was leaning against the wall nearby.

V.I. had been holding G.I.'s hand, and she screamed her brother's name when he fell. When Ms. Destefano bent over and reached into the hole for G.I., the momentum caused her to drop her keys down the air shaft. She moved back so she would not fall down the shaft herself. G.I. was rescued from the bottom of the air shaft and taken to the emergency room. He suffered numerous injuries from the fall, including fractured wrists, a split scalp, various cuts and bruises, post-traumatic stress disorder

, and post-concussive syndrome.

On March 25, 2010, plaintiffs sued CNMC and Colonial for negligence. After a month-long trial, a jury awarded G.I. $1,560,000 and V.I. $26,000, finding both defendants jointly and severally liable.

II. No Damages for Permanent Post–Concussive Syndrome

The trial court instructed the jurors that they could award damages for “any emotional distress that G.I. may suffer in the future, except you may not award future damages due to permanent Post–Concussive Syndrome

”; they also could award damages for “any inconvenience G.I. may experience in the future, except you may not award future damages due to permanent Post–Concussive Syndrome.” Plaintiffs contend that it was error for the judge to preclude the jury from awarding G.I. future damages for permanent post-concussive syndrome. They argue that the following instruction, based on Standardized Civil Jury Instruction for the District of Columbia No. 13–2, should have been given instead:

G.I. has offered evidence that the Defendants' negligence caused him to suffer personal injury and that the effects of that injury still exist today, more than four years after the incident. Although no physician or other expert testified about how long the effects of the injury might last, you may still conclude from the facts and circumstances of the case and from the nature and duration of the injury, that G.I. has suffered a permanent injury and award damages accordingly.

“A ‘party is entitled to a jury instruction upon [a] theory of the case if there is sufficient evidence to support it.’ ” Washington Inv. Partners of Del., LLC v. Sec. House, K.S.C.C., 28 A.3d 566, 577 (D.C.2011) (quoting George Washington Univ. v. Waas, 648 A.2d 178, 183 (D.C.1994) ). “In deciding whether a proposed instruction on a party's theory of the case was properly denied, we review the record in the light most favorable to that party.” Id. However, “[a] trial court has broad discretion in fashioning appropriate jury instructions,” and we will not reverse “if the court's charge, ‘considered as a whole, fairly and accurately states the applicable law.’ ” Id. (quoting Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 625 (D.C.1986) ).

Plaintiffs rest their argument on the opinion of Dr. Brian Woodruff, a pediatric neurologist, who testified that G.I.'s post-concussive syndrome

was caused by the concussion he suffered during his fall and not by his preexisting condition. When asked how long he thought G.I.'s post-concussive syndrome would last, Dr. Woodruff said it was “still ongoing.” He also testified that “the majority of people” have their post-concussive syndrome resolve in “a couple of weeks to a couple months,” but it is “really hard to predict” how long it might last.

Defendants emphasize the testimony of other experts. Dr. Nathan Dean, the doctor who treated G.I. immediately after he fell in the parking garage, testified that a single concussion is a self-limiting injury, or one that does not get worse, and “after a period of weeks, the symptoms go away and you are fine.” Dr. David Franz, a pediatric neurologist, likewise testified that a concussion does not get worse and resolves itself over time barring further trauma. Finally, Dr. William Gaillard, another pediatric neurologist, testified that when he last saw G.I. on April 20, 2009, he believed that G.I. could experience post-concussive syndrome

for up to a year, but that permanent injury from his concussion would be “remote” or “extraordinarily rare.” At the time of trial, a year had already elapsed.

The trial court did not err in precluding the jury from considering damages for permanent post-concussive syndrome

. This court has previously recognized that “when the bad effects of an injury have continued for years, laymen may reasonably infer permanence even in the absence of medical testimony, if there is no contrary testimony that the injuries are temporary. ” Estate of Underwood v. Nat'l Credit Union Admin., 665 A.2d 621, 643 (D.C.1995) (quoting Int'l Sec. Corp. of Va. v. McQueen, 497 A.2d 1076, 1081 (D.C.1985) ) (emphasis added) (internal quotation marks omitted). In this case, Dr. Gaillard testified that G.I.'s post-concussive syndrome was temporary. To receive the instruction they requested, plaintiffs were therefore required to offer expert testimony that G.I.'s post-concussive syndrome was permanent.

Dr. Woodruff's opinion was not sufficient; the jury could only speculate that the condition would be permanent because he could not predict how long it would last. See Davis v. Abbuhl, 461 A.2d 473, 476 n. 5 (D.C.1983) (stating that additional expert medical testimony would be required for an instruction on permanent-injury damages where a physician testified that the plaintiff required medical treatment but “could not say how long such treatment would be needed”). Thus, the trial court properly instructed the jury that G.I. could not be awarded damages for permanent post-concussive syndrome

.²

III. Punitive Damages

Plaintiffs also contend that the trial court should have submitted the issue of punitive damages to the jury. Before punitive damages may be assessed against a corporation for the acts of its employees, a plaintiff must show “by clear-and-convincing evidence that the [employee's] tortious acts were ‘accompanied by conduct and a state of mind evincing malice or its equivalent.’ ” District of Columbia v. Bamidele, 103 A.3d 516, 522 (D.C.2014) (quoting District of Columbia v. Jackson, 810 A.2d 388, 396 (D.C.2002) ). In addition, the plaintiff must show that the corporation, through its officers, directors, or managing agents, “participated in the doing of the wrongful act or authorized or subsequently ratified the offending conduct with full knowledge of the facts.” Snow v. Capitol Terrace, Inc., 602 A.2d 121, 127 (D.C.1992). We view the evidence in the light most favorable to the plaintiffs' cause, asking only whether there was evidence from which a jury reasonably could find the required elements. Bamidele, 103 A.3d at 522.³

To establish “malice or its equivalent,” the plaintiff must prove two things: (1) that the employee “acted with evil motive, actual malice, deliberate violence or oppression, or with intent to injure, or in willful disregard for the rights of the plaintiff,” and (2) that the employee's conduct “was outrageous, grossly fraudulent, or reckless toward the safety of the plaintiff.” Id. (quoting Jackson, 810 A.2d at 396 ) (internal quotation marks omitted). In this case, the only possible basis for finding “malice or its equivalent” is willful or reckless disregard.

Plaintiffs concede that there is no evidence that a CNMC employee knew about the open vent or intentionally left it uncovered. Instead, they contend that CNMC's officers recklessly disregarded their safety. An individual evinces willful or reckless disregard when he or she “knows, or has reason to know of facts which create a high degree of risk of harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk,” or “has such knowledge, or reason to know, of the facts, but does not realize or...