Freedmen's Hospital v. Heath, 7600.

• Decision Date: 12 April 1974
• Docket Number: No. 7600.,7600.
• Citation: 318 A.2d 593
• Parties: FREEDMEN'S HOSPITAL, Appellant, v. Luke HEATH, Appellee.
• Court: D.C. Court of Appeals

318 A.2d 593

FREEDMEN'S HOSPITAL, Appellant, v. Luke HEATH, Appellee.

No. 7600.

District of Columbia Court of Appeals.

Argued January 24, 1974.

Decided April 12, 1974.

James E. Brammer, Washington, D. C., with whom John L. Laskey, Washington,

D. C., was on the brief, for appellant. Charles H. Wilson, Jr., Washington, D.

C., with whom N. David Povich, Washington, D. C., was on the brief, for appellee.

Before KELLY, KERN and PAIR, Associate Judges.

PER CURIAM:

The trial court entered a judgment in the amount of $50,000 for appellee in his suit against appellant for damages incurred allegedly as the result of the negligence of appellant's employees in providing him post-operative care.¹ Prior to the entry of this judgment the jury had rendered a verdict for appellee in the amount of $150,000 but the trial judge concluded that the then-existing jurisdictional limitations upon civil actions in the Superior Court² required him to enter a judgment for $50,000. During the argument held on this jurisdictional issue he characterized the jury's verdict for $150,000 as "excessive" and "shocking" but opined that a verdict in the $50,000 to $100,000 "range" would be supportable.

Appellant first attacks the judgment on the ground that a verdict found to be excessive cannot be cured by reduction but must be set aside and a new trial ordered, citing Elliott v. Black River Elec. Cooperative, 233 S.C. 233, 104 S.E.2d 357 (1958). In this jurisdiction, however, reduction by remittitur or otherwise has long been an appropriate remedy for an excessive verdict. See Munsey v. Safeway Stores, D.C.Mun.App., 65 A.2d 598 (1949); Muldrow v. Daly, 117 U.S.App.D.C. 318, 329 F.2d 886 (1964); cf. Newman v. Coakley, D.C.App., 285 A.2d 690 (1972). Therefore, we are unable to conclude that the trial court abused its discretion in curing the excessiveness of the verdict by reducing the amount recovered to the maximum allowed by statute rather than ordering a new trial.

Appellant next attacks the judgment on the ground that the trial court failed to follow the remittitur procedure established in this jurisdiction. It says the trial judge erred in not specifically offering appellee the option of accepting either a reduction in the verdict or a new trial. We believe such a formal offer was unnecessary once the trial court found that the jurisdictional limit required that the verdict be set at $50,000.³ We are simply not persuaded that appellant was prejudiced in any way because the court proceeded to apply the statute's jurisdictional limit to reduce the judgment rather than to offer appellee the choice of a reduced verdict or a new trial. We note again that the court unequivocally stated that a judgment ranging up to $100,000 would have been supportable.⁴

Appellant argues that since a court must order a new trial when a party rejects an offer to remit part of an excessive verdict, the trial court here should have ordered a new trial in view of appellee's argument at trial against the court's invocation of the jurisdictional statute to substitute a $50,000 judgment for the $150,000 verdict. However, in view of the fact that the trial court reduced the verdict because of the jurisdictional limit of $50,000 rather than on the basis of the traditional remittitur process, the rule appellant now argues should have been followed simply has no application.

Appellant next contends that the trial court should have stricken the testimony of appellee's expert medical witness because notification that he would testify was not given until the eve of the trial, thus depriving appellant of the opportunity of discovery of expert opinion. See Super.Ct.Civ.R. 26(b) (4) (A) (i). While a trial judge certainly may strike testimony adduced not in accordance with the applicable rule, Hollins v. Sneed, D.C.App., 300 A.2d 447 (1973), we also recognized there that the judge has considerable discretion in whether or not to take this grave step. In the instant case, the trial court...