MacLeod v. GEORGETOWN UNIVERSITY MED. C., 97-CV-1678.

• Decision Date: 19 August 1999
• Docket Number: No. 97-CV-1678.,97-CV-1678.
• Citation: 736 A.2d 977
• Parties: Albert G. MACLEOD, Appellant, v. GEORGETOWN UNIVERSITY MEDICAL CENTER, et al., Appellees.
• Court: D.C. Court of Appeals

736 A.2d 977

Albert G. MACLEOD, Appellant, v. GEORGETOWN UNIVERSITY MEDICAL CENTER, et al., Appellees.

No. 97-CV-1678.

District of Columbia Court of Appeals.

Argued March 30, 1999.

Decided August 19, 1999.

Stephen M. Trattner, Washington, DC, for appellant.

Christopher E. Hassell, with whom Eric A. Spacek was on the brief, Washington, DC, for appellees.

Before STEADMAN, SCHWELB and FARRELL, Associate Judges.

STEADMAN, Associate Judge:

In this medical malpractice case, appellant sued for ten million dollars for permanent damage to his left ear allegedly resulting from negligent wax removal by physicians at Georgetown University Medical Center. Appellant proceeded pro se in this matter throughout the trial court proceedings. The trial judge granted the defendants' motion for summary judgment. Appellant now appeals with counsel to this court. The essence of his appeal is that because he was a pro se litigant, the court had the duty to apprise him of the defects in his opposition to the defendants' summary judgment motion and, in particular, of the importance of filing controverting affidavits. We conclude that in the circumstances here the court had no such mandatory obligation. We affirm the summary judgment.

I. Facts

Appellant filed his complaint in June 1996. An initial status conference took place in October 1996. Appellant was granted numerous extensions by the court to effect service of process and to respond to defendants' discovery requests. A scheduling order, signed January 24, 1997, allowed a discovery period ending July 24, 1997. Defendants submitted their witness list on April 24, 1997, the same day appellant served his interrogatories and requests for admissions. Appellant's 26(b)(4) statement was timely filed on May 8, 1997. It listed four physicians, including the two defendant-physicians, as "expert witnesses." Appellant's statement did not otherwise comply with the rule as to the substance of the expected testimony.¹

On July 23, 1997, defendants filed a straightforward motion for summary judgment, specifically citing to Super. Ct. Civ. R. 56(c). The motion gave a clear explanation of what the case lacked. In the motion papers, the defendants noted that contrary to the requirements of Rules 16 and 26(b)(4), plaintiff had failed to identify the substance of the expert testimony. They argued that to make out a case of medical malpractice, the plaintiff had to produce expert testimony which established the applicable standard of care, a breach thereof, and resulting injuries. Affidavits were attached from each of the four experts named by plaintiff. Each affidavit stated that no breach of any standard of care had occurred or caused appellant's injuries. Thus, the motion asserted, there simply was no competent evidence to support the naked allegation that the defendants' care was negligent and incompetent, nor that the alleged injuries were causally related to the treatment rendered by defendants.

In his response, appellant displayed his awareness of the required elements of proof for a medical malpractice claim.² Appellant further recognized the need for expert testimony. He asserted in his response that he would prove his case generally through cross-examination of the four doctors who had submitted affidavits, and that he would also make use of his treating physicians, whom he had previously designated as fact witnesses. The appellant stated in his reply that he "believes that he has shown sufficient evidence supporting the claimed factual dispute." Nowhere, however, did he set forth with any specificity, even in his own words, the subject matter on which these expert witnesses were expected to testify or the substance of the facts they would relate or of the opinions that they would express to prove his case, much less attach any affidavits or other statements from the experts themselves.³ In a surreply submission,⁴ he stated that "it seems that Defendants wish to hold the entire trial right now and forcefully compel me to divulge every ounce of evidence and strategy I intend on using at trial. I will not do that. Nor do I believe I am obligated to do that in order to oppose a motion for summary judgment."

In a careful six-page order, the trial court addressed all of these arguments by appellant, but concluded that the defendants were entitled to summary judgment. The court quoted the Rule 56(e) requirement that "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing there is a genuine issue for trial." It noted that plaintiff had simply stated, without documentation or other support, that his experts would testify on the necessary elements; the plaintiff had offered no evidence on how his claims were supported, but instead made only conclusory allegations, insufficient as a matter of law.

II. Analysis

Plainly the trial court was correct in granting summary judgment on the basis of the record before it. The only issue is whether, before doing so, the court itself had an obligation to point out to appellant the deficiencies in his opposition. Appellant claims in particular that the trial court was obligated to advise the appellant that he must produce affidavits from his proposed expert witnesses.

Parties in litigation may of course represent themselves. We have, however, often reiterated the general principle that "such a litigant can expect no special treatment from the court." Abell v. Wang, 697 A.2d 796, 804 (D.C.1997). "[H]e must not expect or seek concessions because of [his] inexperience and lack of trial knowledge and training and must, when acting as [his] own lawyer, be bound by and conform to the rules of court procedure . . . equally binding upon members of the bar." Solomon v. Fairfax Village Condominium IV Unit Owner's Ass'n, 621 A.2d 378, 380 n. 2 (D.C.1993) (quoting Paton v. Rose, 191 A.2d 455 (D.C.1963)). Other courts have similarly articulated this general proposition. Our own federal appellate circuit court, in an opinion by then Judge Scalia, has explained that "[a]t least where a litigant is seeking a monetary award, we do not believe pro se status necessarily justifies special consideration (citation omitted). While such a pro se litigant must of course be given fair and equal treatment, he cannot generally be permitted to shift the burden of litigating his case to the courts, nor to avoid the risks of failure that attend his decision to forego expert assistance." Dozier v. Ford Motor Co., 227 U.S.App. D.C. 1, 6, 702 F.2d 1189, 1194 (1983). See also Moore v. Agency for Int'l Dev., 301 U.S.App. D.C. 327, 329, 994 F.2d 874, 876 (1993) (the court "do[es] not need to provide detailed guidance to pro se litigants," nor does liberal treatment "constitute a license for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure." (internal quotation omitted)); Mazique v. Mazique, 123 U.S.App. D.C. 48, 52, 356 F.2d 801, 805 (1966).

This is by no means to say that pro se litigants must be left to fend entirely for themselves. We need not recount here the numerous steps that our trial and appellate courts have taken to assist pro se litigants in dealing with the judicial system.⁵ And "[w]e do not doubt that a trial judge may, without compromising requisite judicial impartiality, provide reasonable technical assistance to a pro se plaintiff in presenting her case." Tyree v. Evans, 728 A.2d 101, 105 (D.C. 1999).⁶ But the line can be a delicate one for a trial court in the context of specific litigation. Appellant seeks to have trial court action, discretionary at best, hardened into a rule of law that would compel reversal. We think this goes too far in the circumstances here.

Appellant cites us to cases in which courts have recognized special circumstances involving pro se litigants that warrant special care by trial courts. In matters involving pleadings, service of process, and timeliness of filings, pro se litigants are not always held to the same standards as are applied to lawyers. Moore, supra, 994 F.2d at 876; Thomas v. United States, 586 A.2d 1228, 1230 (D.C.1991); Wright v. Wright, 386 A.2d 1191, 1192 n. 2 (D.C. 1978). What distinguishes this category of cases is the focus on the merely technical, rather than substantive, rules of procedure.

A second category of cases in which courts may grant leeway to pro se litigants are those in which litigants bring suit under remedial statutes, particularly those involving civil rights, which rely "largely on lay persons, operating without legal assistance, to initiate and litigate administrative and judicial proceedings." Goodman v. District of Columbia Rental Hous. Comm'n, 573 A.2d 1293, 1299 (D.C.1990). See also Karriem v. Gray, 623 A.2d 112, 114 (D.C.1993); Johnson-El v. District of Columbia, 579 A.2d 163, 166 (D.C.1990); Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)("Procedural technicalities are particularly inappropriate in such a statutory scheme"); Coles v. Penny, 174 U.S.App. D.C. 277, 283, 531 F.2d 609, 615 (1976); Rubin v. O'Koren, 621 F.2d 114, 117 (5th Cir.1980).

Further, in the case of incarcerated litigants,

we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, (internal citations omitted) and have held that some procedural rules must give way because of the unique circumstance of incarceration, see Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (pro se prisoner's notice of appeal deemed filed at time of delivery to prison authorities)

McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). McNeil involved an incarcerated litigant claiming damages resulting from alleged medical trials performed on prisoners. While acknowledging the procedural allowance historically given...