District of Columbia v. Barriteau

• Decision Date: 16 March 1979
• Docket Number: No. 13110.,13110.
• Citation: 399 A.2d 563
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Agnes BARRITEAU and Thomas Barriteau, Appellees.
• Court: D.C. Court of Appeals

399 A.2d 563

DISTRICT OF COLUMBIA, Appellant, v. Agnes BARRITEAU and Thomas Barriteau, Appellees.

No. 13110.

District of Columbia Court of Appeals.

Argued October 17, 1978.

Decided March 16, 1979.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Washington, D. C., at the time the brief was filed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellant.

Jack H. Olender, Washington, D. C., with whom Daniel R. Kane, Washington, D. C., was on the brief, for appellees.

Before NEWMAN, Chief Judge, and NEBEKER and YEAGLEY, Associate Judges.

NEWMAN, Chief Judge:

This case arises from a negligence action in which the jury returned a verdict in favor of appellees and awarded damages totalling $225,000.¹ In this appeal, the District of Columbia concedes the issue of liability, but challenges the amount of the damage award. Two issues are presented for our determination: (1) whether the trial court erred in permitting the jury in a personal injury case to consider the impact of future inflation in arriving at a damage award representing appellee's loss of future earnings; and (2) whether the trial court erred in refusing to allow the District to cross-examine appellee's expert witness as to the future impact of income taxes on appellee's loss of future income. After setting forth the relevant facts in Part I, we discuss in Part II the issue of future inflation and conclude that it is a proper factor for the jury to consider in determining loss of future earnings. In Part III, we conclude that the District has not properly preserved the issue of income taxes for resolution on appeal. We affirm.

I.

On March 27, 1975, Mrs. Agnes Barriteau was treated at the Upshur Street Clinic, an agency of the District of Columbia. During the course of this treatment, a doctor, while attempting to perform a spinal tap, punctured her approximately thirteen times at a vertebral interspace substantially above the accepted situs for performing spinal taps. As a result, Mrs. Barriteau sustained traumatic injury to the conus medullaris, in the spinal cord, resulting in paralysis of the lower extremities and bodily function organs. These injuries necessitated emergency surgery and the performance of a decompressive laminectomy.² The conceded negligence of appellant left Mrs. Barriteau with a left leg smaller and weaker than the right through atrophy, inability to properly lift the left foot, a pronounced limp, trembling of the foot, back pain from a pelvic tilt from the leg and foot injury, and urological complications.³

At trial the evidence established that Mrs. Barriteau, who was a nursing assistant at the time of her injuries, cannot perform her work since it requires lifting and strenuous movement. She can do only "baby-sitting", or companion-type work for private patients and she can do this only on a limited basis. In addition, appellee's vocational expert witness testified that Mrs. Barriteau would be unlikely to "succeed at most sedentary factory jobs." The vocational expert concluded that Mrs. Barriteau would be virtually unemployable except in a limited capacity in her field of nursing assistance.

Evidence also established that Mrs. Barriteau was 39 years old at the time of her injury in March 1975. She was then employed as a full-time nursing assistant receiving wages at an annual rate of $6,422 which at the time of trial would have been $8,580. As a result of the injuries to her spinal cord and the restriction in her work activity to only part-time, light-duty nursing assistant's work, she has sustained a pay reduction to only $4,000 per year at the time of trial in October 1977.

To quantify Mrs. Barriteau's claim for lost earnings and future loss of earning capacity, appellees utilized the expert testimony of an economist, Dr. Richard J. Lurito.⁴ Dr. Lurito testified that his projections of Mrs. Barriteau's salary were based on her history of earnings and that he based her life expectancy on HEW tables. He stated that her work life/retirement date was based on relevant figures of the Department of Labor Statistics using the median age of 62. He also stated that her salary and benefits at the time of trial would have amounted to $8,580 per year.

Taking her salary of $8,580, Dr. Lurito then applied an escalation factor of six percent a year which was based on a study of the kind of occupations under discussion, nurses and nurses' assistants. He then calculated the number of dollars that Mrs. Barriteau would likely have earned from the time of her injury to the end of her expected work life at age 62, had she not been injured. That gross figure came to $331,384. Dr. Lurito testified that he chose the six percent escalation factor based on an analysis of workers' compensation that has been experienced in the economy over the past 30 years. He explained that the six percent escalation included a factor for productivity growth as well as an inflation factor. He noted that in recent years the rate of inflation alone has been substantially higher than six percent, but over the long term the six percent figure was a reasonable figure. Dr. Lurito also testified that recent increases for nurses and nurses' assistants have been substantially more than six percent per annum.

Dr. Lurito next reduced the $331,384 gross figure to its present value by applying a 5.25 percent discount rate. In computing the discount factor he worked from a prior 20-year average because he was projecting a 20-year average. He testified that the 5.25 percent discount rate was composed of government bond averages and corporate bond averages over a period of years. Dr. Lurito then applied the six percent escalation factor to the $4,000 annual income Mrs. Barriteau is now capable of earning because of her injuries and projected it to age 62. That figure came to $160,971. Applying a 5.25 percent discount factor to that yielded a present value of $91,318. The difference between the two present value figures is $103,399, the amount of the loss, as projected by Dr. Lurito.

Counsel for the District cross-examined Dr. Lurito on his projections and the assumptions which formed the basis for his figures. The District had Dr. Lurito prepare a list of his assumptions and used the list in cross-examination and closing argument to the jury. The District also requested rulings from the trial court that they be allowed to cross-examine Dr. Lurito regarding the impact of federal and District of Columbia income taxation on Mrs. Barriteau's projected loss of future income. The trial court denied the request. The District made no proffer of what it expected Dr. Lurito's testimony on income taxation would be. Nor did the District present any expert witnesses of its own or proffer of such witnesses' testimony on the issue of income taxes.

The jury returned a verdict for Mrs. Barriteau of $200,000 and verdict for Mr. Barriteau of $25,000 for loss of consortium. The District filed a motion for a new trial or in the alternative for a remittitur. The trial court denied appellant's motion and this appeal followed.

II.

The District of Columbia contends that the trial court erred in permitting the jury to consider the impact of future inflationary trends in arriving at a damage award representing appellee's projected loss of future earnings. This issue is one of first impression in this jurisdiction.⁵

In the District of Columbia, the primary purpose of compensatory damages in personal injury cases "is to make the plaintiff whole." Kassman v. American University, 178 U.S.App.D.C. 263, 267, 546 F.2d 1029, 1033 (1976). See Snowden v. District of Columbia Transit System, Inc., 147 U.S.App.D.C. 204, 205, 454 F.2d 1047 1048 (1971); Hudson v. Lazarus, 95 U.S. App.D.C. 16, 18, 217 F.2d 344, 346 (1954). "[D]amages awarded in personal injury actions are aimed at compensating the victim or making good his losses." D. Dobbs, Handbook of the Law of Remedies § 8.1 at 540 (1973). For this reason, loss of future earnings is a distinct item of damages, which if properly proved at trial, may result in recovery for the plaintiff. See McDermott v. Severe, 25 App.D.C. 276, 290 (1905), aff'd, 202 U.S. 600, 26 S.Ct. 709, 50 L.Ed. 1162 (1906); Washington and Georgetown Railroad v. Patterson, 9 App.D.C. 423, 436 (1896). See generally C. McCormick, McCormick on Damages § 86 at 299-309 (1935).⁶

There exists a trend among a number of courts to allow the jury to consider the impact of future inflation in arriving at damage awards representing loss of future income in personal injury cases. See Willmore v. Hertz Corp., 437 F.2d 357, 359-60 (6th Cir. 1974); Lumber Terminals, Inc. v. Nowakowski, 36 Md.App. 82, 373 A.2d 282, 290-91 (1977); Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 683-84 (Minn. 1977); Markham v. Cross Transportation, Inc., 376 A.2d 1359, 1364 (R.I. 1977); Schnebly v. Baker, 217 N.W.2d 708, 727-28 (Iowa 1974); Plourd v. Southern Pacific Transportation Corp., 266 Or. 666, 677-79, 513 P.2d 1140, 1146-47 (1973). Cf. Cords v. Anderson, 80 Wis.2d 525, 549-52, 259 N.W.2d 672, 683-84 (1977) (jury may consider effect of inflation on future medical expenses). Recognizing that plaintiffs might not be adequately compensated if juries were not allowed to consider inflation, these courts have observed that "[i]nflation has become a fact of life within the experience of everyone. It has continued to a greater or lesser extent throughout most of our lifetimes. Most people have found it necessary to reckon with this in their own financial planning for the future." Seaboard Coast Line Railroad v. Garrison, 336 So.2d 423, 424 (Fla.App. 1976).⁷

Other courts maintaining that consideration of the future effects of inflation is merely a speculative enterprise have refused to allow juries to consider such evidence in arriving at damage awards. See Williams v. United States, 435 F.2d 804, 807 (1st...