Finkelstein v. District of Columbia

• Decision Date: 05 June 1991
• Docket Number: No. 88-648.,88-648.
• Citation: 593 A.2d 591
• Parties: Jay FINKELSTEIN, Esquire, Personal Representative of the Estate of Harry Barman, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

593 A.2d 591

Jay FINKELSTEIN, Esquire, Personal Representative of the Estate of Harry Barman, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 88-648.

District of Columbia Court of Appeals.

Argued En Banc September 19, 1990.

Decided June 5, 1991.

Brian W. Shaughnessy, with whom Richard S. Sternberg and Philip A. Gagner were on the brief, Washington, D.C., for appellant.

Susan S. McDonald, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, Washington, D.C., for appellee.

Elizabeth A. Karasik, Washington, D.C., filed a brief as amicus curiae on behalf of appellant.

Before ROGERS, Chief Judge, FERREN, TERRY, STEADMAN, SCHWELB, FARRELL, and WAGNER, Associate Judges, BELSON, Associate Judge, Retired,^* and NEWMAN,^** Senior Judge.

ON REHEARING EN BANC

FARRELL, Associate Judge:

A division of this court reversed the trial judge's grant of a judgment notwithstanding the verdict and, in the alternative, a new trial. After reconsideration by the court en banc, we also conclude that the judge erred in granting judgment notwithstanding the verdict, but we sustain her grant of a new trial on the ground that the verdict was excessive.¹

I.

Jay Finkelstein, as personal representative of the estate of Harry Barman, brought suit under the District of Columbia Wrongful Death Act, D.C.Code § 16-2701 et seq. (1989), and the District of Columbia Survival Act, D.C.Code § 12-101 et seq. (1989), against the District of Columbia for alleged negligence in causing the death of Harry Barman. The evidence at trial was summarized by the division, and we adopt its account with slight modifications.

Barman was arrested on a charge of simple assault on January 8, 1985. A forty-three-year-old male with a history of schizophrenia, he was committed to the custody of the D.C. Department of Corrections for pretrial evaluation. On January 10, a psychiatrist at the jail evaluated Barman and ordered him to South 3, the mental health unit of the D.C. Jail.

At about 10:00 a.m. on January 28, 1985, Barman was one of several inmates cleaning the showers of South 3 despite the fact that, because he had refused his medications, he had not been cleared for work detail. The shower areas were closely monitored from a guard station staffed by a minimum of one guard, at this time Correctional Officer Gloria Trotter. At about 10:30 a.m., Raymond Stroman, a physician's assistant, observed three of the inmates in the shower area of South 3 engaged in sexual activity with Barman. Stroman then left to check on the female residents in the upper cell block. Returning fifteen to twenty minutes later, Stroman observed that the activity was still going on. None of the jail personnel had intervened.

A second incident occurred in the shower area while Barman was on work detail. Two inmates sprayed Barman in the face with one of the chemical compounds used by the prisoners to clean the showers. After these two incidents Barman returned to his cell, remarking to a fellow inmate, Tyrone Lucky, that he was tired and going to lie down. He returned to his cell between 3:00 and 3:30 p.m.

At 3:45 p.m. Correctional Officer Joyce Webb noticed Barman slumped on the concrete floor of his cell. He had one arm on his bed and his head rested on his other arm; although the temperature of the cell was about sixty-five degrees, he was naked. Webb passed Barman's cell at 4:05 p.m. and again at 4:15 p.m.; both times he was in exactly the same position as when she first saw him. Webb passed Barman's cell a fourth time around 6:00 p.m. Although she observed that during two hours and fifteen minutes he had not changed his position, she at no time attempted to determine whether he needed attention. Sergeant Eiland also testified that he had observed Barman in his cell at 3:45 p.m. and 6:05 p.m., as well as two times in between without questioning Barman's unchanged condition. Shortly after 6:00 p.m., Tyrone Lucky reported to Officer Webb that he thought Barman was dead.

Gaynel Cowan-Dudrow, a physician's assistant, responded to a medical technician's alert. As she approached Barman's cell, she noticed a strong odor of vomitus and excrement. Barman was naked and slumped partly on the floor and partly on his bunk. There was obvious venous pooling in his legs, and his pupils were fixed, dilated, and hazed over. He had abrasions over his eye and on his lip as well as contusions. Certified in advanced life support and surgery, Cowan-Dudrow immediately determined that Barman was beyond resuscitation; in her opinion he had been dead "a very long time." She observed that he had vomitus around his mouth, fecal matter and vomitus on his legs, and fecal matter around the rectal area. The floor area around him was streaked with fecal matter and vomitus, as though he had been "dragged to the bed with the excretion on the floor."

Other testimony at trial was inconsistent. Stroman testified that he had reported the incident in the shower to Correctional Officer Trotter, who in turn denied that Stroman had reported any incident. During his deposition Stroman had indicated that the three inmates were sodomizing Barman,² but at trial he testified that his reference to the inmates "screwing the boy to death" had been in jest, and that he had really meant that the three inmates and Barman were engaged in mutual masturbation. Stroman acknowledged, at the same time, that he had tried to testify truthfully at his deposition and had done so. Tyrone Lucky and Correctional Officers Trotter and Murray testified that Barman never appeared nude in his cell, but Officers Webb and Eiland stated that they did not observe anything unusual about Barman that day because they had seen him praying in the nude on his cell floor on prior occasions.

Dr. John Smialek, Chief Medical Examiner for the State of Maryland and plaintiff's medical expert, testified that the cause of death was an acute attack of bronchospasm or asthma. Dr. Smialek concluded that he

could not state precisely what Mr. Barman's attack was precipitated by because attacks of this type can occur spontaneously with no identifiable agent triggering them. But they typically can be precipitated by emotional stress and can be precipitated by some offending agent in the environment.

Based upon the evidence that Barman had been sprayed in the face with a substance called "deep gloss," Dr. Smialek opined that "this substance could possibly have been one of or the factor that led to the gradual onset of the symptoms that were part of the attack of bronchospasm...." It was also "certainly possible that a sexual attack would be sufficient to precipitate this particular type of acute episode." Dr. Smialek testified that a typical asthma attack reaches its full severity in one to eight hours and estimated that Barman's attack lasted at least two to three hours. It would have been accompanied typically by gasping or wheezing, with the result that he "was suffering considerable distress prior to his death." In Dr. Smialek's opinion, had there been intervention and medical treatment, even the severe attack that Barman suffered could have been reversed.³

Plaintiff's expert penologist was E. Eugene Miller, whose qualifications were not in dispute. He referred to the Standards for Adult Local Detention Facilities (Standards) promulgated by the American Correctional Association, explaining that the Standards are not mandatory but are used as the basis for a voluntary accreditation program around the country. According to Miller's testimony, correctional officers should observe normal inmates at least every thirty minutes and, if the inmates are mentally disordered, more frequently. Custodial officers should also maintain a complete record of pertinent information regarding individual inmates, which should include evidence of abnormal behavior such as kneeling in the cell nude. Miller testified that any group sexual activity among the inmates, either voluntary or not, would require intervention.⁴ Moreover, in his opinion it generally would be a violation of the national standard for correctional officers to observe Barman's unchanged and unusual position from 3:30 to 6:00 p.m. without attempting some type of intervention.

The jury returned a verdict of negligence against the District of Columbia and awarded $1 under the Wrongful Death Act claim and $30,000 under the Survival Act claim. They also returned a verdict of negligent infliction of emotional distress, awarding $1 under the Wrongful Death Act claim and $1,000,000 under the Survival Act claim. Damages against the District of Columbia thus totaled $1,030,002.

The trial judge granted the District of Columbia's motion for judgment notwithstanding the verdict and, in the alternative, a new trial. The judge found that the plaintiff had failed to establish either a breach of the standard of care or causation, and so the District could not be found negligent in Barman's death. In the event the judgment notwithstanding the verdict were reversed on appeal, the judge granted a new trial on three grounds: excessiveness of the damage award, improper admission of economic expert testimony, and improper exclusion of Barman's medical records.

II.

We agree with appellant that the jury had before it sufficient evidence from which to find negligence by the District of Columbia that caused injury to Barman, and hence we reverse the grant of a judgment notwithstanding the verdict. A 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." Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C.1986). Viewing the evidence in that light, the jury could fairly have found that Barman returned to his cell in the afternoon of January 28 and,...