443 F.2d 715 (D.C. Cir. 1970), 23963, Spann v. Commissioners of District of Columbia

Docket Nº:23963.
Citation:443 F.2d 715
Party Name:John H. SPANN et al., Appellants, v. The COMMISSIONERS OF the DISTRICT OF COLUMBIA et al.
Case Date:November 17, 1970
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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443 F.2d 715 (D.C. Cir. 1970)

John H. SPANN et al., Appellants,

v.

The COMMISSIONERS OF the DISTRICT OF COLUMBIA et al.

No. 23963.

United States Court of Appeals, District of Columbia Circuit.

November 17, 1970

Argued Sept. 28, 1970.

Mr. King David, Washington, D.C., for appellants.

Mr. Leo N. Gorman, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Hubert B. Pair, Acting Corporation Counsel at the time the brief was filed, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellees. Mr. Charles T. Duncan, Corporation Counsel at the time the record was filed, also entered an appearance for appellees.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WILKEY, Circuit Judge.

PER CURIAM:

This case comes before us in a tangle of procedural and substantive questions left unanswered in the District Court and not further illuminated on appeal. Since no definitive disposition should be made here, we find it necessary to remand to the District Court for reconsideration in accordance with the guidelines herein set forth.

Appellants brought this tort action originally against 'The Commissioners of the District of Columbia, ' 'The Public Health Department of the District of Columbia, ' and 'Dr. Irwin Pese, ' in reality Dr. Irwin H. Peiser, Jr., a Health Department employee. The amended complaint alleged that on 19 November 1965, while undergoing a test for glaucoma at a mobile health unit operated by the District of Columbia Health Department, both corneas of appellant John H. Spann's eyes were burned when a technician, under the supervision of Dr. Peiser, placed a chemical substance in appellant's eyes. As a consequence, the complaint continued,

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appellant suffered 'pain and blurred vision which required extensive hospital and medical treatment.' In Count two of the complaint the co-appellant wife asserted a claim for loss of consortium resulting from the injury to her husband's eyes. In a conference in chambers with the trial judge on 22 October 1969, the day the case was set for trial, appellants' former counsel attempted to settle the alleged $35, 000-plus lawsuit for $250. A praecipe of settlement and dismissal was drawn up, signed by both counsel, approved by the trial judge, the praecipe reciting 'the above entitled case as settled and dismissed, with prejudice and without cost, as to all parties, including the District of Columbia, a corporation.'

Eight days later the same attorney for appellants filed a 'Motion to Set aside Dismissal as to Defendant Pese and for Leave to Withdraw as Counsel, ' which stated as grounds 'That plaintiff is aggrieved and * * * challenges the right of counsel to dispose of the case as was entered. * * * That counsel's conduct and judgment have been challenged although she...

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