Wood v. Day

Citation273 U.S.App.D.C. 343,859 F.2d 1490
Decision Date28 October 1988
Docket NumberNo. 87-7231,87-7231
PartiesAnna May WOOD v. Rocky Alan DAY and Giant Food, Inc., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Jayson L. Spiegel, with whom Dwight D. Murray and David P. Durbin, Washington, D.C., were on the brief, for appellants. Mary Ann Snow, Washington, D.C., also entered an appearance for appellants.

H. Vincent McKnight, Jr., Washington, D.C., with whom James M. Hanny, Landover, Md., was on the brief, for appellee.

Before WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

This appeal is from a judgment entered on a jury's verdict in a case of negligence arising from a rear-end collision. Because liability was admitted by defendants, Rocky Alan Day and Giant Food, Inc. (collectively "appellants"), the sole issue at trial was damages. The jury awarded plaintiff Anna May Wood ("Wood" or "appellee") damages of $100,000 via a general verdict. Appellants argue that the verdict was based on erroneous instructions allowing recovery for elements of damages not supported by the evidence. We agree, vacate the award, and remand for further proceedings.

FACTUAL BACKGROUND

The facts, considered in the light most favorable to the appellee, are as follows:

Appellee, a woman of approximately fifty-two years of age, had been living asymptomatically with a degenerative spinal condition known as spondylolisthesis, the breaking down or slipping of the vertebral column. On November 17, 1983, a taxi cab occupied by Ms. Wood was struck from behind by a tractor-trailer driven by appellant Day, an employee of the trailer's owner, appellant Giant Food, Inc. Ms. Wood was taken from the scene to Prince George's General Hospital, where she was examined, x-rayed, and released shortly thereafter.

Beginning on November 28, 1983, and over the next three years, Ms. Wood made 22 visits to an orthopedist, Dr. Rida Azer. Dr. Azer initially recommended physical therapy and prescribed medication, opining that further testing would be required if her condition did not improve. For approximately three years, Ms. Wood underwent numerous tests and treatments, including regular participation in physical therapy. Over the years, the frequency of her consultations and treatment tapered off, so that by May 1987, Ms. Wood had seen Dr. Azer only twice in the preceding eleven months, and had been advised by him to cease therapy.

At trial Ms. Wood testified that prior to the accident she had been a cashier at a department store for more than twenty years, and that, though limited to "light duties" after the accident, she remained employed by the company in an associated store. Ms. Wood testified that she was in The evidence at trial established that Ms. Wood had sustained permanent injury to the lumbosacral spine and a narrowing of the intervertebral disc space as a result of the accident, causing further spinal degeneration. Though Dr. Azer testified that Ms. Wood's condition worsened from a grade one to a grade two spondylolisthesis within two weeks of the accident, appellants' expert witness, Dr. Edward Anthony Rankin, testified that Ms. Wood's preexisting vertebral condition eventually would have become symptomatic had the accident not occurred.

constant pain and that her range of activities was considerably diminished. Although appellee introduced no evidence as to her pre-accident earnings, she testified that her new position paid $6.80 per hour.

Dr. Azer testified that in his opinion Ms. Wood's injury was permanent, would result in continued spinal deterioration, and would permanently restrict her ability to engage in a range of endeavors, including strenuous activity and prolonged sitting or standing, limitations "that she will have to abide by for the rest of her life." Dr. Azer also testified that while surgery would normally be the optimal course of action, he did not believe it was appropriate for Ms. Wood because of her significant heart and weight problems. For these reasons, Dr. Azer was "very reluctant" to recommend surgery, as Ms. Wood could "end up by having a blood clot or a heart attack, or something." In his opinion, surgery should be "avoid[ed] as long as possible, until it becomes almost an emergency." Though Dr. Azer stated that Ms. Wood would need further medical attention, upon appellants' objection the District Court ruled that Dr. Azer was not able to render an opinion as to the likelihood of surgery with the requisite degree of certainty. Though the Court indicated its willingness to permit the introduction of evidence pertaining to prospective non-surgical medical attention, none was offered.

In its original charge, the Court instructed the jury over appellants' objection that "you should award such a sum as will reasonably and adequately compensate the plaintiff for any loss of earnings which you find that the plaintiff will probably suffer in the future." Appellants took exception to the instruction, arguing that the only evidence tending to show a loss of future earnings--that relating to a convalescence period following surgery--had been stricken. The Court disagreed, stating that "I heard something about having to go to the doctor."

During its deliberations, the jury inquired of the Court as follows: "Can we consider probable future medical costs related to Miss Wood's condition if we determine defendant is at fault?" Despite a previous statement by appellee's counsel that such expenses were no longer sought, and over appellants' objection, the District Court instructed the jury that "you may consider probable future medical expenses, if any, except that you may not consider the cost of surgery." The Court did so because, in its opinion, the jury (1) could "extrapolate" the number of visits Ms. Wood would make for treatment based on the frequency of her visits in the past; and (2) it could "infer" from the evidence regarding Ms. Wood's pain that a doctor "will be giving her aspirin or valium, or whatever."

Before trial, appellants stipulated that as of September 1986, Ms. Wood had accumulated $1,459.90 in lost wages, and medical bills totalling $6,199.13 as a result of the accident. By way of a general verdict, the jury awarded appellee $100,000. After appellants' motions for a new trial and for remittitur were denied, this appeal followed.

ANALYSIS

The primary purpose of compensatory damages in personal injury cases "is to make the plaintiff whole." Kassman v. American University, 546 F.2d 1029, 1033 (D.C.Cir.1976). Accordingly, if properly proved at trial, both future medical expenses and loss of future earnings are recoverable. Cf. District of Columbia v. Barriteau, 399 A.2d 563, 567 (D.C.1979).

It is well established that notwithstanding the jury's broad discretion in awarding And despite the jury's discretion, "[i]t is elementary that an instruction should not be given if there is no evidence to support it." Ceco Corp. v. Coleman, 441 A.2d 940, 949 (D.C.1982); Kasmer v. Sternal, 165 F.2d 624, 626 (D.C.Cir.1948). The evidence presented must be more than a "scintilla," Doe, 492 A.2d at 860, and, indeed, when recovery is sought for future consequences of a tort, damages are "available only if such consequences are reasonably certain. Unless there is nonspeculative evidence demonstrating that future suffering, additional medical expense, and loss of income will occur, the question should not be submitted to the jury." Curry v. Giant Food Co., 522 A.2d 1283, 1291 (D.C.1987) (citing American Marietta Co. v. Griffin, 203 A.2d 710, 712 (D.C.1964); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir.1982)). This Circuit has previously stated that...

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