Hunter attorneys respond to city's posttrial motion to dismiss
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IN THE
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA
Civil Division

Civil Action No. 96-1338
Calendar 2
The Honorable Wendell P. Gardner, Jr.

MARGIE HUNTER,
Plaintiff,

v.

DISTRICT OF COLUMBIA, et al.,
Defendants.

PLAINTIFF'S OPPOSITION TO
DEFENDANTS' POSTTRIAL MOTION

Defendants victimized Tyrone Hunter twice: first, at the accident site, by ridiculing him with derogatory remarks and by suspending emergency medical treatment; and second, at D.C. General Hospital, by failing to provide the medical care required to save his life. Upon his death, his mother, Margie Hunter, brought this action seeking compensatory damages for the wrongs that Defendants visited upon him. After a lengthy trial, the jury found that Defendants had violated Mr. Hunter's civil rights and had committed medical negligence that proximately caused his death. The jury also awarded damages to Mrs. Hunter for the injuries she and her son suffered at the hands of the Defendants.

Now, in their posttrial motion, Defendants challenge the verdict on no fewer than fourteen separate grounds. As is explained more fully in the accompanying statement of points and authorities, none of Defendants' arguments withstands scrutiny. To summarize:

1. This Court properly exercised jurisdiction over Mrs. Hunter's D.C. Human Rights Act claim. The D.C. Court of Appeals, the D.C. Commission on Human Rights, and the D.C. Council all have adopted the view that the statute's administrative-exhaustion requirement applies only to claimants who are government employees, while non-government employees may elect to exercise a private right of action. Furthermore, the administrative procedures that have been promulgated apply only to claims of discrimination in connection with District government employment; since Mrs. Hunter's claim is not of this type, there are no administrative remedies for her to exhaust.

2. Probative evidence supports the Human Rights Act damages award. Because bystanders standing several feet away heard the Fire Department employee's derogatory remark, it is reasonable to infer that Mr. Hunter heard it too. Additionally, the combativeness Mr. Hunter exhibited after the employees stopped treating him and started laughing and joking about him creates the plausible inference that he not only was aware of their malfeasance but also was deeply offended by it.

3. The Human Rights Act damages award was not excessive. Although Mr. Hunter was bleeding, gagging, physically distressed, emotionally vulnerable, and in immediate need of medical care, the Fire Department's employees ceased providing treatment and derided him in front of a large crowd of bystanders. In light of this and the evidence of his combativeness, a jury could reasonably infer that he was frightened for his safety and mortified at being the subject of the employees' public ridicule. In its sound discretion, the jury awarded damages in an amount that, while substantial, was not so large as to exceed all reason or shock the conscience.

4. The Court properly admitted evidence of the Fire Department's termination of its investigation. A party's suppression of relevant evidence is itself relevant as indicative of the party's consciousness that his case is weak. A party's internal investigation of the circumstances surrounding an incident at issue constitutes relevant evidence. Therefore, Defendants' suppression of evidence by terminating the Fire Department's internal investigation was relevant and admissible.

5. The Court properly excluded evidence related to the car accident. Evidence of the vehicular-homicide conviction of the driver of one of the vehicles was irrelevant because, under the law of concurring negligence, it had no tendency to make it less likely that Defendants were negligent or that their negligence proximately caused Mr. Hunter's death. Photographs of the damage sustained by the vehicles and the investigating police officer's testimony about the damage could not be admitted without an expert's explanation of the probability that the crash so depicted and described would result in a fatality.

6. The Court properly limited the admission of evidence and presentation of argument about the cosmetology-licensing law. The fact that one is unlicensed to practice one's calling does not bar recovery of damages in a tort action that is totally unrelated to one's employment. Furthermore, Defendants failed to prove that because Mr. Hunter was unlicensed he would probably be prosecuted and convicted, thereby substantially diminishing his future earnings.

7. The Court properly rejected Defendants' argument that, because Mr. Hunter failed to file tax returns, evidence of his unreported income and his projected future earnings should have been excluded. Under prevailing precedents, a party's failure to file tax returns does not preclude his recovery of lost earnings.

8. Probative evidence supports the survival-action damage award for pain and suffering. The testimony of the medical expert, Dr. Frank Baker, established that, were it not for Defendants' malpractice, Mr. Hunter probably would have survived, that he was conscious and sensitive to pain in the emergency room, that none of the drugs he received were analgesic, and that as a result of the oxygen deprivation to his brain caused by Defendants' negligence, Mr. Hunter would have experienced extreme anxiety, panic, and uncontrollable terror. The jury's verdict was well within the range of damage awards in comparable cases and was not so disproportionate to the damages proven here as to be excessive as a matter of law.

9. Probative evidence supports the wrongful-death-action damage award. In estimating the pecuniary loss to Mrs. Hunter as a result of her son's death, her expert economist properly relied on government-published statistical data as well as evidence that Mr. Hunter would have lived with and financially supported his mother for the rest of her life. The jury was free to give the expert's opinion as much weight as it deserved.

10. Probative evidence supports the survival-act damage award for loss of prospective economic benefit. Mrs. Hunter's vocational expert, who was qualified by virtue of his extensive knowledge of and experience in cosmetology and the economics of hair styling, estimated Mr. Hunter's annual earnings principally by reviewing not only applicable national standards but also the statements of hair-stylists who worked with Mr. Hunter and who knew how busy and successful he was and how much he charged. The salon manager described him as "one of the best." In light of the hair-stylists' testimony, the vocational expert's income estimates, and statistical data, the expert economist properly projected Mr. Hunter's probable net future earnings. Here again, the jurors were entitled to give the experts' testimony as much weight as it deserved, and they actually awarded considerably less than projected by the economist.

11. The Court did not abuse its discretion in allowing Mrs. Hunter to recall the expert economist to testify. Defendants' extensive cross-examination of the recalled witness was an adequate cure for any possible prejudice that might have arisen.

12. The Court did not abuse its discretion in refusing Defendants' requested Survival Act jury instruction. Defendants have offered no legal authority, either at trial or now, in support of their requested instruction. The charge as given fully and fairly informed the jury as to the applicable law.

13. The trial court properly exercised its discretion in refusing to dismiss a juror. When the juror's medical problem was brought to the Court's attention, it conducted a careful voir dire examination. The juror assured the Court and counsel that she was able to render a fair and impartial verdict. Defendants merely speculate but have not proved that the juror was actually biased or incompetent.

14. The Court properly exercised its discretion in refusing to continue the trial or bifurcate the claims. Defendants have failed to show that, as a result of adverse publicity, the jurors had such fixed opinions that they could not judge impartially. By conducting an extensive voir dire and repeatedly admonishing the jurors to ignore publicity pertaining to this case, the Court took appropriate precautions to ensure that the jurors were fair and unbiased.

* * *

For these reasons, Mrs. Hunter requests that the Court deny Defendants' Motion for Judgment as a Matter of Law, or, in the Alternative, for a New Trial, or, in the Alternative, for Remittitur.

Respectfully submitted,

RICHARD F. SILBER, P.C.

 

 

By:

Richard F. Silber #395407

3221 M Street, N.W.

Washington, D.C. 20007-3616

(202) 338-0687

 

KOONZ, McKENNEY, JOHNSON,

DePAOLIS & LIGHTFOOT, L.L.P.

 

 

By:

Marc Fiedler #413316

2020 K Street, N.W., Suite 500

Washington, D.C. 20006

(202) 659-5500

Counsel for Plaintiff Margie Hunter

IN THE

SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA

Civil Division

Civil Action No. 96-1338
Calendar 2
The Honorable Wendell P. Gardner, Jr.

MARGIE HUNTER,
Plaintiff,

v.

DISTRICT OF COLUMBIA, et al.,
Defendants.

 

STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF'S OPPOSITION TO

DEFENDANTS' POSTTRIAL MOTION

 

 

Preliminary Statement

Plaintiff, Margie Hunter, as personal representative of the estate of Tyrone Hunter, brought this action against multiple defendants. She sued Defendants, the District of Columbia and Adrian Williams, under the D.C. Human Rights Act, D.C. Code '' 1-2501 to -2557, for unlawfully discriminating against her son during the provision of emergency medical care following an automobile accident in the District of Columbia. She also sued Defendants the District of Columbia and Joseph A. Bastien, M.D., under the D.C. Wrongful Death Act, D.C. Code ' 16-2701, and the D.C. Survival Act, D.C. Code ' 12-101, for medical malpractice that caused her son's death.

Following a trial that spanned nearly five weeks, the jury, on December 11, 1998, returned a verdict in favor of Mrs. Hunter and against Defendants on all counts. The jury's determination, based on specific interrogatories presented by the Court, was as follows:

1. A D.C. Government employee made an unlawful remark about Tyrone Hunter's personal appearance, sex, or sexual orientation, and Mr. Hunter heard and was emotionally affected by the remark. The jury awarded Mrs. Hunter $100,000.00 to compensate Mr. Hunter's estate for the humiliation, embarrassment, and indignity he experienced as a result of the comment.

2. Adrian Williams and another D.C. Government employee unlawfully withdrew emergency medical care from Mr. Hunter, and Mr. Hunter was aware that medical care was withdrawn. The jury awarded Mrs. Hunter $500,000.00 to compensate Mr. Hunter's estate for the mental and emotional suffering, humiliation, embarrassment, and indignity he experienced as a result of the unlawful withdrawal of treatment.

3. Dr. Bastien's treatment of Mr. Hunter at D.C. General was negligent, and that negligence was the proximate cause of both Mr. Hunter's conscious pain and suffering and his death. The jury awarded Mr. Hunter's estate $1,500,000.00 in damages.

4. Under the wrongful-death statute, the jury determined that had Mr. Hunter lived he would have provided his mother over her lifetime monetary support of $400,087.00.

5. Under the survival statute, the jury determined that had Mr. Hunter lived his estate would be worth the sum of $373,379.00 and awarded that sum.

Statement of Facts

A. Discrimination in the delivery of emergency medical care

The jury heard testimony from competent eye-witnesses at the accident scene that, after discovering that Mr. Hunter was a man dressed as a woman, D.C. Government Fire and Emergency Services Department employees made crude, derogatory remarks and laughed about him in his presence. The jury also heard from eye-witnesses that emergency medical care was then withdrawn for a period of between five and seven minutes. The jury had the opportunity to compare the emergency medical care Mr. Hunter received with that provided to Tedessa Rankin, the driver of the vehicle in which Mr. Hunter was a passenger. While Rankin was quickly assessed and readied for emergency transport, Mr. Hunter was left sitting on the grass struggling for air while an oxygen mask dangled uselessly from his neck when care was withdrawn. Care was resumed only after Fire Department supervisors arrived at the scene. At that point, according to Fire Department employee David Driggers, Mr. Hunter became combative and started throwing punches at the Fire Department EMTs. He was then strapped to a backboard, given oxygen, and transported to D.C. General Hospital.

B. Medical negligence by Joseph A. Bastien, M.D.

At D.C. General, Tyrone Hunter needed two things: (1) rapid fluid resuscitation with Ringers Lactate followed by compatible blood when available; and (2) a chest tube to evacuate the blood and air building up in his left chest cavity. He received neither.

The medical record demonstrated that when Mr. Hunter arrived in the emergency room he presented with a tension hemo-pneumothorax, in other words, blood and air in his chest which was putting pressure on his lungs and heart and compromising the function of both organs. The standard of care for this condition requires the immediate placement of a chest tube. The record also demonstrated that cross-matched and typed blood was available to transfuse at 4:40 p.m. He was never provided with this life-saving blood.

Testimony by Plaintiff's medical experts, Dr. Frank Baker and Dr. James Diehl, demonstrated that had Mr. Hunter been properly resuscitated with fluid and blood and a chest tube placed, he would have had an 84-86 percent chance of surviving his injuries. The jury also heard competent evidence that during his treatment at D.C. General, Mr. Hunter, as a result of his hypoxia, would have experienced anxiety and terror as he slowly bled to death. Competent medical testimony showed that his conscious pain and suffering was caused by the lack of oxygen to his brain which in turn was caused by his untreated internal bleeding and lack of a transfusion.

Standards Applicable to Posttrial Motions

A. Judgment as a Matter of Law

"Because a judgment as a matter of law intrudes upon the rightful province of the jury, it is highly disfavored." Boodoo v. Cary, 305 U.S. App. D.C. 409, 413, 21 F.3d 1157, 1161 (1994). A motion for judgment as a matter of law (formerly known as a directed verdict), see Super. Ct. Civ. R. 50(a), and a renewed motion for judgment as a matter of law (formerly known as a judgment notwithstanding the verdict, or JNOV), see Super. Ct. Civ. R. 50(b), are governed by the same standard. See Consumers United Ins. Co. v. Smith, 644 A.2d 1328, 1339 (D.C. 1994); District of Columbia v. Cassidy, 465 A.2d 395, 397 (D.C. 1983). As the D.C. Court of Appeals has repeatedly emphasized:

"Only in extreme instances where no reasonable person could reach a verdict in favor of the plaintiff on the evidence presented should directed verdict be granted and only in such cases is a judgment non obstante verdicto proper. For jurors are the triers of fact, and where there is evidence upon which reasonable persons might differ as to negligence and other elements of liability, those questions must be decided by the jury."

Levy v. Schnabel Found. Co., 584 A.2d 1251, 1255 (D.C. 1991) (quoting District of Columbia v. Cooper, 445 A.2d 652, 655 (D.C. 1982) (en banc)).

On a defendant's motion and renewed motion for judgment as a matter of law, "[t]he evidence must be viewed in the light most favorable to the plaintiff," who is also entitled to "the advantage of every fair and reasonable inference that the evidence can justify." Etheredge v. District of Columbia, 635 A.2d 908, 915 (D.C. 1993) (citations omitted); Levy, 584 A.2d at 1254 (citation and internal quotation marks omitted). In ruling on these motions, ">the judge is not the trier of fact.'" Jimenez v. Hawk, 683 A.2d 457, 459 (D.C. 1996) (quoting Abebe v. Benitez, 667 A.2d 834, 836 (D.C. 1995)). Therefore "the court must take care to avoid weighing the evidence, passing on the credibility of witnesses, or substituting its judgment for that of the jury." Id. (quoting Abebe, 667 A.2d at 836); Etheredge, 635 A.2d at 916.

"[A]s long as there is some evidence from which jurors could find the necessary elements of a prima facie case," a trial judge must not grant a motion or renewed motion for judgment as a matter of law. Uckele v. Jewett, 642 A.2d 119, 122 (D.C. 1994) (citations, internal quotation marks, and brackets omitted); see also id. at 123; Jimenez, 683 A.2d at 459 (citation omitted); Lyons v. Barrazotto, 667 A.2d 314, 320 (D.C. 1995) (citations omitted). The trial court should allow the jury to decide the matter "[i]f it is possible to derive conflicting inferences from the evidence." Pazmino v. Washington Metro. Area Transit Auth., 638 A.2d 677, 678 (D.C. 1994) (citation and internal quotation marks omitted).

Because these motions "deprive the plaintiff of a determination of the facts by a jury, they should be granted >sparingly.'" Jimenez, 683 A.2d at 459 (quoting Corley v. BP Oil Corp., 402 A.2d 1258, 1263 (D.C. 1979)). "It is only in the unusual case, in which only one conclusion could reasonably be drawn from the evidence, that the court may properly grant such a motion." District of Columbia v. Banks, 646 A.2d 972, 979 (D.C. 1994) (citing Etheredge, 635 A.2d at 915); United Mine Workers v. Moore, 717 A.2d 332, 337 (D.C. 1998) (motion is granted "only in >extreme' cases") (citations omitted).

B. New Trial

"A party has a right to a new trial only if an error at trial denied the party substantial justice." Johnson v. District of Columbia, 655 A.2d 316, 319 (D.C. 1995) (citing Super. Ct. Civ. R. 59). The trial court's discretion in ruling on a new-trial motion is broad. Fisher v. Best, 661 A.2d 1095, 1098 (D.C. 1995); Queen v. D.C. Transit Sys., Inc., 364 A.2d 145, 148 (D.C. 1976). But to protect the jury's function in our judicial system, "a trial court should exercise great restraint in setting aside the verdict of a jury." Fisher, 661 A.2d at 1098.

Argument

I. This Court properly exercised jurisdiction over Mrs. Hunter's Human Rights Act claim.

Defendants argue that the Court lacked jurisdiction over Mrs. Hunter's claim under the District of Columbia Human Rights Act, D.C. Code '' 1-2501 to -2557 (1992 & Supp. 1998) ("HRA"), because she allegedly failed to exhaust her administrative remedies. Defendants read the statute to require anyone with an HRA claim against the District to exhaust administrative remedies before resorting to court. But Defendants cite no legal authority expressly so holding. Indeed, the judicial, executive, and legislative branches of the District of Columbia government all have adopted the contrary view, namely, that the HRA's administrative-exhaustion requirement applies only to claimants who are government employees, while non-government employees may elect to exercise a private right of action. Because Mrs. Hunter was not a government employee, she was not required to exhaust any administrative remedies and was entitled to pursue her HRA claim in this Court.

A. Courts construe the HRA's administrative-exhaustion requirement as applying only to claimants who are D.C. government employees.

The District of Columbia Court of Appeals has consistently reconciled the HRA's provision for a private cause of action under D.C. Code ' 1-2556 with the statute's administrative-remedy provision under D.C. Code ' 1-2543 by concluding that a non-government employee may file a private cause of action but that a government employee must seek administrative relief. The first case to address this issue was Williams v. District of Columbia, 467 A.2d 140 (D.C. 1983). There, the court

h[e]ld that the administrative remedies provided by D.C. Code ' 1-2543 (1981) . . . are the exclusive remedies available to a District of Columbia government employee claiming discrimination in employment, and that the private right of action established by D.C. Code ' 1-2556 (1981) . . . is available only to non-government employees.

Id. at 142 (emphasis added); accord Dougherty v. Barry, 604 F. Supp. 1424, 1442 (D.D.C. 1985) ("The District of Columbia Court of Appeals has held that >the private right of action established by D.C. Code ' 1-2556 (1981) and its predecessor . . . is available only to non-government employees.'") (quoting Williams, 467 A.2d at 142).

Next, in Newman v. District of Columbia, 518 A.2d 698 (D.C. 1986), the D.C. Court of Appeals described its holding in Williams as follows: "For District of Columbia government employees only we concluded that the Human Rights Act requires the exhaustion of the available administrative remedies." Id. at 701 (citing Williams, 467 A.2d at 142) (emphasis added). The court went on to state:

In Williams, we identified the administrative exhaustion requirement for government employees in D.C. Code ' 1-2543 (1981). That section requires the Mayor to establish procedural rules to govern Human Rights Act claims submitted by public employees and also provides that the agency shall make a final determination in such cases. . . . Although generally recognizing the Council's express rejection of an administrative exhaustion requirement under the Human Rights Act, D.C. Code ' 1-2556 (1981), our reading of ' 1-2543 led us to conclude that this rejection did not extend to claims made by government employees.

Id. (emphases added).

Most recently, in Kennedy v. District of Columbia, 654 A.2d 847 (D.C. 1994), the D.C. Court of Appeals once again confirmed its prior holding, stating:

In Williams v. District of Columbia, 467 A.2d 140 (D.C. 1983), we clearly stated that D.C. government employees, unlike non-government employees, are required to exhaust the administrative remedies available to them under the D.C. Human Rights Act.

Id. at 863 (on petition for reh'g) (emphasis added).

In short, the D.C. Court of Appeals has expressly and unambiguously established that the administrative-exhaustion requirement of the HRA applies only to D.C. government employees, but not to non-government employees.

Defendants criticize these rulings and, in effect, urge this Court to second-guess them. These precedents, however, are binding on this Court. As "[t]he highest court of the District of Columbia," D.C. Code ' 11-102, the District of Columbia Court of Appeals is the "final arbiter" in interpreting a D.C. enactment. Meiggs v. Associated Builders, Inc., 545 A.2d 631, 633 (D.C. 1988); see also Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 660 (D.C. 1987) ("The proper interpretation of the D.C. [Workers' Compensation] Act is a question of local law of which this court is the final expositer."). The holdings of Williams, Newman, and Kennedy are binding even on a three-judge panel of the D.C. Court of Appeals. See Newman, 518 A.2d at 702 ("Only the en banc court, not a division, can overrule a prior division of this court.") (citing M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), and D.C. App. Internal Operating Procedures ' VIII(h)). Therefore, on this issue of statutory construction, this Court is not free, as Defendants appear to suggest, to adopt an interpretation of the HRA contrary to that established by the D.C. Court of Appeals.

B. The District of Columbia Commission on Human Rights construes the HRA's administrative-exhaustion requirement as applying only to claimants who are D.C. government employees.

In 1984, the District of Columbia Commission on Human Rights ("Commission") promulgated as Chapter 1 of Title 4 of the District of Columbia Municipal Regulations the administrative procedures authorized by D.C. Code ' 1-2543. See 4 DCMR ' 100.1 note (1995) ("AUTHORITY: Unless otherwise noted, the authority for this chapter is ' 303 of the District of Columbia Human Rights Act of 1977, D.C. Law 2-38 (D.C. Code ' 1-2543).") Entitled "Complaints of Discrimination in the District of Columbia Government," the regulation makes abundantly clear that it applies only to HRA complaints by D.C. government employees or applicants for employment. For example, the section entitled "Coverage" states in relevant part: "The provisions of this chapter shall govern the processing of any matter involving discrimination . . . in connection with any aspect of District government employment." Id. ' 101.1 (emphasis added). Similarly, the section entitled "Policy" states in relevant part:

It shall be the policy of the Government of the District of Columbia in connection with any aspect of District government employment to do the following:

(a) To prohibit sexual harassment;

(b) To prohibit retaliation for filing Equal Employment Opportunity (EEO) complaints;

(c) To provide equal employment opportunity for all persons; and

(d) To prohibit discrimination in employment . . . .

Id. ' 102.1 (emphasis added). Numerous other sections of the regulation demonstrate that it applies only to claims of discrimination "in connection with any aspect of District government employment." See, e.g., id. '' 102.3, 103.7, 103.8, 105.1. Yet other sections of the regulation show that it is focused on D.C. government employment discrimination exclusively. See, e.g., id. ' 119 (prescribing remedial action for applicants for employment by the involved agency (defined as "any office, department, division, board, commission or other agency of the government of the District of Columbia with respect to which the Mayor or the Council are [sic] authorized by law to establish administrative procedures," id. ' 199.1)); 120 (prescribing remedial actions for an agency employee (defined as "any individual employed by or seeking employment from an agency of the District of Columbia Government," id. ' 199.1)); 121 (prescribing procedures applicable to third-party allegations of discrimination "in personnel matters within a department of the District government").

The regulation demonstrates that the Commission construes the HRA administrative-remedies provision the same way as has the D.C. Court of Appeals. Both agree that the procedures prescribed by D.C. Code ' 1-2543 apply only to claims of discrimination by D.C. government employees. Mrs. Hunter was not a D.C. government employee and therefore these procedures do not apply to her claim.

Because the Commission is the agency authorized to administer and enforce the HRA, see D.C. Code '' 1-2541, -2551, -2553, -2555, its interpretation of the statute is entitled to considerable weight. It is well-settled that courts must give special deference to an agency's interpretation of a statute that it is empowered to administer and enforce. See Williams v. District of Columbia Bd. of Dentistry, 647 A.2d 389, 392 (D.C. 1994) (citing cases); Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567, 570 (D.C. 1985) (judicial deference owed "whether the agency construes and refines the statute through rule making or adjudication"). A particular species of that general rule is that courts "accord great weight to any reasonable construction by an agency of its own authority." Spring Valley Wesley Heights Citizens Ass'n v. District of Columbia Bd. of Zoning Adjustment, 644 A.2d 434, 436 (D.C. 1994). ">Indeed, the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.'" Id. (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 (1969)). That the D.C. Court of Appeals construed D.C. Code ' 1-2543 the same as did the Commission C to apply to discrimination claims of D.C. government employees exclusively C shows that the Commission's construction of the statute was not "clearly wrong." Id. Accordingly, that construction "is binding on this court." Smith v. District of Columbia Dep't of Employment Servs., 548 A.2d 95, 97 (D.C. 1988).

C. The Council has impliedly adopted the judicial and administrative construction of the HRA administrative-exhaustion requirement as applying only to claimants who are D.C. government employees.

Although many years have passed since the D.C. Court of Appeals and the Commission have construed D.C. Code ' 1-2543 to apply only to discrimination claims of District government employees, the Council of the District of Columbia has never amended the statute to require a different result even though it presumably knew of that construction and even though it has amended the HRA several times in other respects. In these circumstances, the Council must be deemed to have adopted that construction.

Where a statutory provision receives a settled judicial or administrative construction and the legislature does not reject the construction by amending the provision, the legislature is presumed to be satisfied with the construction and to have adopted it. See United States v. Elgin, Joliet & Eastern Ry., 298 U.S. 492, 500 (1936); Blitz v. Donovan, 239 U.S. App. D.C. 138, 142, 740 F.2d 1241, 1245 (1984) ("Congress is deemed to know the . . . judicial gloss given to certain language and thus adopts the existing interpretation unless it affirmatively acts to change the meaning.") (citation and internal quotation marks omitted); Davis v. Devine, 736 F.2d 1108, 1113 (6th Cir. 1984). This rule applies with particular force where the legislature has amended the statute in ways unrelated to the construction. See Electric Storage Battery Co. v. Shimadzu, 307 U.S. 5, 14 (1939) (where patent statute had been revised and amended from time to time after judicial decisions construing a particular section, and where "Congress has not seen fit to amend the statute in this respect[,] we must assume that it has been satisfied with, and adopted, the construction given to its enactment by the courts"); Missouri v. Ross, 299 U.S. 72, 75 (1936) (where Congress, in face of judicial decisions construing bankruptcy-statute provision, permitted clause to stand for many years without change in its phraseology, although amending that portion of bankruptcy statute in other particulars, "[t]his is persuasive evidence of the adoption by that body of the judicial construction").

Here, the D.C. Court of Appeals' construction of D.C. Code ' 1-2543, to the effect that it applies only to discrimination complaints by D.C. government employees, was on the books as far back as 1983, see Williams, 467 A.2d at 140, and the Commission's similar construction dates back to 1984, see 4 DCMR ' 100.1 note (1995) (stating that Final Rulemaking was published at 31 D.C. Reg. 56 (Jan. 6, 1984)). The Council presumably was aware of the judicial and administrative construction of its enactment because ">[i]t is always appropriate to assume that our elected representatives, like other citizens, know the law.'" Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379 (1982) (quoting Cannon v. University of Chicago, 441 U.S. 677, 696-97 (1979)).

The Council did amend the HRA several times since D.C. Code ' 1-2543 was first construed by the D.C. Court of Appeals and the Commission. See 32 D.C. Reg. 2959 (1985) (amending D.C. Code ' 1-2505); 41 D.C. Reg. 2583 (1994) (amending D.C. Code '' 1-2501, -2502, -2512, -2515, -2519, -2520); 42 D.C. Reg. 4322 (1995) (amending D.C. Code '' 1-2533, -2534). Indeed, the Council has recently amended the HRA private-right-of-action provision. See 44 D.C. Reg. 4856 (1997) (amending D.C. Code '' 1-2544, -2546, -2553, -2556). None of these amendments, however, are germane to the question whether one who wishes to pursue an HRA claim against the District and who is not a D.C. government employee may maintain a private cause of action or must exhaust administrative remedies. Surely, if the Council believed that the D.C. Court of Appeals or the Commission had misconstrued the scope of the administrative-exhaustion requirement, it would have either amended D.C. Code ' 1-2543 to state that administrative exhaustion is required not only of D.C. government employees but of non-government employees as well, or it would have amended D.C. Code ' 1-2556 to state that no claimant against the District of Columbia has a private right of action. But this the Council has conspicuously failed to do. Rather, it has acquiesced in the long-standing judicial and administrative construction of the administrative-exhaustion provision, creating a strong inference that it is satisfied with that construction. Hence it must be assumed that the Council has approved of and has adopted the prevailing construction.

D. Mrs. Hunter was not required to exhaust administrative remedies because any attempt on her part to do so would have been futile.

Even a cursory analysis of the law reveals that the administrative remedies that Defendants insist Mrs. Hunter must exhaust before pursuing an HRA action in court are utterly illusory. As previously noted, the administrative procedures established by the Commission under the authority of D.C. Code ' 1-2543 govern the adjudication only of complaints of discrimination "in connection with any aspect of District government employment." 4 DCMR ' 101.1 (1995) (emphasis added). Mrs. Hunter's HRA complaint, however, has nothing to do with discrimination in connection with District government employment. In effect, Defendants would have her pursue administrative remedies that, for her, are nonexistent. The law does not require a ritualism so hollow.

"[I]t is elementary that >the exhaustion [doctrine] contemplates an efficacious administrative remedy.'" Humana of South Carolina, Inc. v. Califano, 191 U.S. App. D.C. 368, 379, 590 F.2d 1070, 1081 (1978) (quoting Wallace v. Lynn, 165 U.S. App. 363, 367, 507 F.2d 1186, 1190 (1974) (citation omitted)). "[E]xhaustion of remedies is a flexible doctrine, subject to a number of interrelated exceptions, including inadequate remedy, unavailable remedy, and futility." District of Columbia v. Group Ins. Admin., 633 A.2d 2, 20 (D.C. 1993) (citations and internal quotation marks omitted). "It is settled that no requirement of exhaustion of administrative remedies exists if the attempt to exhaust would be futile." Apartment and Office Bldg. Ass'n v. Washington, 343 A.2d 323, 332 (D.C. 1975) (citations omitted). Here, "there is no meaningful remedy to exhaust," id., because the Commission's regulations do not cover complaints of discrimination, such as Mrs. Hunter's, that are unrelated to D.C. government employment. Thus, Mrs. Hunter's HRA claim falls well within at least one of the exhaustion-requirement exceptions for inadequate or unavailable remedy or futility.

Furthermore, statutes must not be construed in a way that produces absurd results or obvious injustice. In re M.M.D., 662 A.2d 837, 845 (D.C. 1995) (quoting Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983) (en banc)). "Courts do not wallow in literalism where the plain language of a statute would lead to absurd consequences which the legislature could not have intended." J. Parreco & Son v. District of Columbia Rental Housing Comm'n, 567 A.2d 43, 46 (D.C. 1989) (citations omitted). The Council's express intent in enacting the HRA was to "secure an end in the District of Columbia to discrimination for any reason other than that of individual merit," D.C. Code ' 1-2501; see also Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 33-34 (D.C. 1987) (en banc), and to establish viable means by which the right to be free from such discrimination could be justly enforced, see id. '' 1-2541 to -2557; see also Arthur Young & Co. v. Sutherland, 631 A.2d 354, 371 (D.C. 1993). By depriving Mrs. Hunter of any remedy at all under the HRA, Defendants' interpretation of the statute would frustrate rather than fulfill the Council's intent. Defendants' reading of the statute would produce absurd results and obvious injustice, and therefore must be rejected.

II Probative evidence supports the HRA damages award.

Defendants contend that the jury's damage award under the HRA lacks proper evidential support because, they claim, there was no factual basis for an inference that Tyrone Hunter either heard the derogatory remark of one of the D.C. Fire Department and Emergency Medical Services ("DCFDEMS") employees or was aware that medical treatment was withdrawn. But the evidence adduced at trial, viewed most favorably to Mrs. Hunter, adequately supports these inferences.

According to the trial testimony, Mr. Hunter was conscious throughout the period at the accident scene. Katherine Poole testified that "[h]e was conscious" when the DCFDEMS personnel began treating him. (See App. A: Poole Trial Test. at 9.) He "was still conscious" when they finally prepared to transport him to the hospital. (See App. A: Poole Trial Test. at 24.)

Mr. Hunter was not combative before the derogatory remark and withdrawal of treatment. Ms. Poole testified that he "was gagging because he couldn't breathe," and "because his teeth were missing . . . he was gagging off of blood or his teeth . . . ." (App. A: Poole Trial Test. at 9, 36.) She testified that "he was turning his head back and forth because I guess he couldn't breathe." (App. A: Poole Trial Test. at 35.) Although Ms. Poole observed Mr. Hunter "moving around," she stated that "his hands or anything weren't moving." (App. A: Poole Trial Test. at 9, 36.)

Ms. Poole was standing to Mr. Hunter's left, near his feet, and was behind the DCFDEMS employees who were treating him. (See App. A: Poole Trial Test. at 10, 37.) She observed one of them on Mr. Hunter's left side, "directly in front of him." (App. A: Poole Trial Test. at 10.) As this employee cut Mr. Hunter's pants leg up to the groin area, "[h]e jumped back, along with the other two paramedics, and the remark he made was, this ain't no C excuse me, Your Honor C bitch, this is a nigger." (App. A: Poole Trial Test. at 9; see also id. at 47 ("When the statement was made, they all three jumped back.").) Not only Ms. Poole, who was standing directly behind the DCFDEMS employee, (see App. A: Poole Trial Test. at 10), but also the crowd of bystanders who were standing eight to ten feet away, (App. B: Roulhac Memo. (Pl.'s Ex. 1) at 3), heard the insulting remark. Ms. Poole testified that the employee "said it loud enough because all the neighbors started complaining" immediately after the remark was made. (App. A: Poole Trial Test. at 10, 15.) EMT Herbert Roulhac, Jr., who was at the scene, heard the remark and described it not only as "shocking and call[o]us," but also as "inflammatory, inappropriate, unprofessional, a form of homo-phobia, and sexist remark[]." (App. B: Roulhac Memo. (Pl.'s Ex. 1) at 2, 3.) Ms. Poole testified that upon the utterance of the derogatory statement the DCFDEMS employees "stopped and they w[ere] just standing around laughing and joking about what, you know, the paramedic had said about him not being a female." (App. A: Poole Trial Test. at 11.) She added that they "stopped working on" Mr. Hunter and continued to stand around, laughing and joking, for "about five to seven minutes." (App. A: Poole Trial Test. at 12, 24.) Rayshaun Holmes corroborated this testimony.

So outrageous was the DCFDEMS employees' conduct that Ms. Poole grew "furious at what was going on," and yelled at them, "what the hell difference did it make whether he was a male or female, they had a job to do." (App. A: Poole Trial Test. at 22, 41.) Likewise, the crowd of bystanders became angry "because [the DCFDEMS employees] weren't doing anything with Tyrone," and they too yelled at the employees. (App. A: Poole Trial Test. at 12, 13, 15.)

At that point, according to Firefighter David Driggers, Mr. Hunter "became what we call combative. And when C he like pushing C pushing the help, starting to fight the personnel there to help." (App. C: Driggers Trial Test. at 21.) Driggers observed Mr. Hunter "[m]ore or less trying to push the people that were around him away." (App. C: Driggers Trial Test. at 23.) On cross-examination, Driggers testified that Mr. Hunter was "physically combative," and in response to the question, "He wasn't really fighting the fire fighters per se[,] was he?", Driggers responded, "Yes, he was." (App. C: Driggers Trial Test. at 27.) Ms. Poole confirmed that, in contrast to the earlier moments when "his hands or anything weren't moving," (App. A: Poole Trial Test. at 36), after the derogatory remark and withdrawal of treatment Mr. Hunter had grown so combative that "he broke the tapes lo[o]se that [the DCFDEMS employees] had taped him down with," (App. A: Poole Trial Test. at 24).

In light of this evidence, a jury reasonably could find that, if Ms. Poole, who was standing behind the offending employee, and the crowd of bystanders, who were standing eight to ten feet away, could hear the derogatory remark, then so could Mr. Hunter because he was undoubtedly nearest to the offending employee who was "directly in front of him" while cutting his pants leg. (App. A: Poole Trial Test. at 10.) The jury could also logically infer from the combativeness Mr. Hunter exhibited after the derogatory remark and the treatment withdrawal, but not before, that he was deeply distressed by the employees' offensive statement and derisive laughter. It would be fair to conclude that Mr. Hunter lashed out at the DCFDEMS employees and pushed them away because their abhorrent conduct caused him to realize that they were not the professional, caregiving rescuers that they purported to be and that he so desperately needed but rather were a bunch of unprofessional, bigoted tormentors. The evidence also creates a fair inference that, lying there helpless, gagging, bleeding, with broken teeth and broken bones, urgently needing swift medical care, Mr. Hunter was acutely aware that the employees had withdrawn emergency medical treatment for several precious minutes that probably felt to him like excruciating hours.

To be sure, this evidence is circumstantial rather than direct, but that does not disqualify or diminish the proof. "No distinction is made between direct and circumstantial evidence." Mills v. United States, 599 A.2d 775, 780 (D.C. 1991) (citation omitted). "A party may satisfy its burden of production by offering circumstantial evidence." Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C. 1989) (citation omitted). Indeed, this Court issued an instruction to the jury consistent with these principles. Direct evidence of what Mr. Hunter perceived, felt, and thought is, of course, unavailable because he died as a result of Defendants' malpractice. The evidence presented, circumstantial though it may be, was sufficient to warrant a deduction that Mr. Hunter was aware that he was being subjected to invidious conduct by the DCFDEMS employees.

III The HRA damages award is not so enormous as to be beyond all reason or to shock the conscience, and therefore is not excessive as a matter of law.

The amount to be awarded for damages in a civil action is a question of fact quintessentially within the province of the jury. See Doe v. Binker, 492 A.2d 857, 860 (D.C. 1985). As the constitutionally prescribed factfinder in our judicial system, see U.S. CONST. amend. VII, the jury is empowered to determine, among other things, "the extent of the injury by an assessment of damages." Dimick v. Schiedt, 293 U.S. 474, 486 (1935); see also Feltner v. Columbia Pictures Television, Inc., 118 S.Ct. 1279, 1287 (1998) ("It has long been recognized that >by the law the jury are judges of the damages.'") (citation omitted). For this reason, "the Court may not substitute its own judgment as to the amount of damages for the judgment of the jury." Graling v. Reilly, 214 F. Supp. 234, 235 (D.D.C. 1963) (Holtzoff, J.). Given "the constitutional allocation to the jury of questions of fact," the courts of this jurisdiction acknowledge ">the deference properly given to the jury's determination of such matters of fact as the weight of the evidence and the quantum of damages.'" Hughes v. Pender, 391 A.2d 259, 263 (D.C. 1978) (quoting Taylor v. Washington Terminal Co., 133 U.S. App. D.C. 110, 113, 409 F.2d 145, 148 (1969)).

This judicial deference to the jury's factfinding prerogative underlies the standard for determining whether a verdict is so excessive as a matter of law that it must be set aside. A verdict is considered to be excessive when it is "so large that it is beyond all reason," or is "so great as to shock the conscience." Daka, Inc. v. Breiner, 711 A.2d 86, 100 (D.C. 1998) (citations and internal quotation marks omitted); Otis Elevator Co. v. Tuerr, 616 A.2d 1254, 1261 (D.C. 1992). "Alternatively, the test has been stated to be whether the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate." United Mine Workers v. Moore, 717 A.2d 332, 340 (D.C. 1998); Tuerr, 616 A.2d at 1261.

Deference to the jury's damage determination is particularly appropriate in actions, such as this one, involving civil-rights violations in which the damages are necessarily unliquidated. Compensatory damages for psychological harm and mental suffering, including fright, shame and mortification, embarrassment and humiliation, anxiety, discomfort, and distress, cannot be determined mathematically or calculated on the basis of any formula. The damages award, therefore, "need not be susceptible of computation with exactitude. The amount of recovery is fixed in the sound discretion of the trier of fact . . . ." District of Columbia v. Gandy, 450 A.2d 896, 901 (D.C. 1982) (citations omitted), op. vacated, 454 A.2d 328, op. reinstated in relevant part, 458 A.2d 414 (D.C. 1983). And although there is usually little objective evidence available to prove these intangible injuries, the jury "may make reasonable inferences from the evidence." Id. (citation omitted). The good judgment and common sense of the jury must be relied upon to arrive at a fair assessment of damages for these injuries. See id. at 901-03 (holding that award of $275,000.00 in compensatory damages for false arrest and battery against District of Columbia and two metropolitan police officers was not excessive).

In this case, the evidence presented at trial fully justified the jury's HRA damage award. At the accident scene, Mr. Hunter not only was suffering from life-threatening physical injuries, but also undoubtedly was emotionally distraught over his condition. This left him in a position of extreme vulnerability, desperately needing quick, effective medical treatment as well as emotional support. What he got from the DCFDEMS employees, however, was just the opposite. Although he was bleeding, gagging, and in obvious physical distress, all the employees, upon discovering his sex, ceased providing medical treatment. To add insult to injury, one of the employees declared in a voice loud enough for dozens of people to hear, "This ain't no bitch, this is a nigger." (App. A: Poole Trial Test. at 9-10, 41; see also App. B: Roulhac Memo. (Pl.'s Ex. 1) at 2 ("[T]hat ain't no woman, that's a man. The bitch got a dick and balls.").) The DCFDEMS employees then stood around laughing and joking about Mr. Hunter's sexual orientation and physical appearance. (See App. A: Poole Trial Test. at 10-12, 22.) So sordid was the employees' conduct that offended bystanders immediately became angry and yelled at them to disregard Mr. Hunter's sexual orientation and resume medical treatment. (See App. A: Poole Trial Test. at 10, 12, 13, 15, 22.) But even then the employees did not respond. (App. A: Poole Trial Test. at 22.) Perhaps most telling of all was the reaction of Mr. Hunter himself. Unable to speak because his mouth was full of blood and broken teeth, he instead lashed out at the employees, fighting them and pushing them away as if they were assailants rather than saviors. (See App. C: Driggers Trial Test. at 21, 23, 27.)

In light of this evidence, the jury could well infer that as a result of the DCFDEMS employees' deplorable conduct, Mr. Hunter was:

! distressed that his serious physical injuries were not being treated;

! anxious that the employees were not preparing his expeditious transportation to a hospital;

! frightened that he might die at the accident scene;

! embarrassed and humiliated at having his transgender status exposed in front of dozens of strangers;

! mortified at being the object of the employees' disparagement and ridicule; and

! alarmed at discovering that the DCFDEMS employees who supposedly were there to help him had turned on him and might do him harm.

No expert, no document, no mathematical computation could establish just how much should be awarded in damages to compensate for these intangible injuries. Rather, that is an issue entrusted to the jury. In its sound discretion, the jury here awarded a substantial sum. On the facts of this case, it cannot be said that the amount of the estate's recovery for the DCFDEMS employees' intentional, invidious, and malevolent conduct is so monstrously high as to be excessive as a matter of law. The HRA verdict does find evidential support and therefore ought not be disturbed.

Grasping at straws, Defendants theorize that the verdict was a product of "plaintiff's encouragement for [the jury] to send the District a message." But this accusation is blatantly false. Neither Mrs. Hunter, her counsel, nor any witness made such a statement. The accusation reflects less on Mrs. Hunter or her case than on the lengths to which Defendants will go to escape responsibility for their HRA violations.

IV The Court properly admitted evidence of the termination of the Fire Department's investigation.

Defendants contend that this Court erred in allowing Mrs. Hunter to introduce evidence that they stopped the DCFDEMS's investigation of the employees' derogatory remark and withdrawal of emergency treatment to Mr. Hunter. But Defendants' termination of the investigation was admissible because it created an inference that had the investigation been completed, it would have been unfavorable to Defendants. Furthermore, even if admission of the evidence were error, it was harmless.

A party's suppression of relevant evidence gives rise to an inference of consciousness of a weak case. The D.C. Court of Appeals has recently emphasized:

It has always been understood C the inference, indeed, is one of the simplest in human experience C that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.

District of Columbia v. Perez, 694 A.2d 882, 885 n.8 (D.C. 1997) (quoting II J. WIGMORE, EVIDENCE ' 278 at 133 (Chadbourn ed. 1979) (emphases omitted). The courts of this jurisdiction have long held that a party's suppression of relevant evidence is itself relevant because a jury reasonably could infer that had the evidence been introduced at trial it would have been unfavorable to the party's case. See Washington Gas Light Co. v. Biancaniello, 87 U.S. App. D.C. 164, 167, 183 F.2d 982, 985 (1950); Hartman v. Lubar, 49 A.2d 553, 556 (D.C. 1946); see also Tendler v. Jaffe, 92 U.S. App. D.C. 2, 7, 203 F.2d 14, 19 (1953) (presumption); Georgia Cas. Co. v. Hoage, 61 U.S. App. D.C. 195, 198, 59 F.2d 870, 873 (1932) (same). A party's internal, post-incident investigation of the circumstances surrounding an incident at issue constitutes relevant, admissible evidence. See, e.g., In re Air Crash in Bali, 871 F.2d 812, 816 (9th Cir. 1989); Westmoreland v. CBS Inc., 601 F. Supp. 66, 67-68 (S.D.N.Y. 1984). Hence, in this case, the termination of the Fire Department's internal investigation was tantamount to suppression of evidence, which was admissible. By receiving into evidence Chief Latin's testimony about the investigation termination, the Court properly exercised the broad discretion it enjoys in matters of admitting relevant evidence. See United States v. Kearney, 136 U.S. App. D.C. 328, 329 n.1, 420 F.2d 170, 171 n.1 (1969).

In any event, Defendants have not shown that the admission of the evidence, if error at all, changed the outcome of the trial or impaired their substantial rights. See Super. Ct. Civ. R. 61. Other than Chief Latin's videotaped deposition testimony, Mrs. Hunter presented no evidence of the investigation termination, and was precluded from mentioning the point in closing argument. Defendants were free to offer evidence and arguments explaining why the investigation was stopped. The Court refused Mrs. Hunter's request to give an adverse-inference jury instruction in connection with the investigation termination. On this record, any error in admitting the evidence was harmless.

V The Court properly excluded evidence related to the car accident.

Defendants contend that the Court erred by disallowing them from introducing three types of evidence about the car accident in which Mr. Hunter was involved: (1) evidence of the vehicular-homicide conviction of the driver of one of the vehicles; (2) photographs of the damage sustained by the vehicles; and (3) the testimony of the investigating police officer. But the driver's criminal conviction is irrelevant to Defendants' civil liability, and neither the photographs nor the investigating officer's testimony could be admitted without explication from a witness possessing appropriate expertise.

In support of its theory that Mr. Hunter died as a result of the car accident rather than their medical malpractice, Defendants sought to introduce evidence of the vehicular-homicide conviction of Gerald Johnson, the driver of the car that collided with the one in which Mr. Hunter was a passenger. Tort liability in the District of Columbia, however, is joint and several: each of several tortfeasors may be sued and held responsible for the entire damage caused, although other wrongdoers have contributed to it. See Leiken v. Wilson, 445 A.2d 993, 999 (D.C. 1982). That Johnson's driving may have been negligent or culpable and may have been a substantial factor in bringing about Mr. Hunter's death does not preclude Defendants' malpractice from being a proximate cause of the death. "The law does not recognize a single proximate cause of every injury. There may be several causes concurring to produce the harm." Hill v. McDonald, 442 A.2d 133, 137 (D.C. 1982). Thus, if injury is caused by the concurring negligence of the defendant and a third person, the defendant is liable to the same extent as though it had been caused by his negligence alone.

It is no defense for a wrongdoer that a third party shared the guilt of the same wrongful act, nor can he escape liability for the damages he has caused on the ground that the wrongful act of a third party contributed to the injury.

Danzansky v. Zimbolist, 70 App. D.C. 234, 236, 105 F.2d 457, 459 (1939) (quoting Miller v. Union P.R.R., 290 U.S. 227, 236 (1933)). Evidence of Johnson's conduct, therefore, had no tendency to make it more likely or less likely that Defendants were negligent or that their negligence proximately caused Mr. Hunter's death. Hence the evidence was irrelevant. See Jones v. Prudential Ins. Co., 388 A.2d 476, 482 (D.C. 1978) (relevance requires that proffered evidence tend to make the existence of a fact in issue more or less probable than would have been the case without benefit of the evidence). That Johnson's guilty plea may constitute a declaration against interest which is not excludable hearsay cannot compensate for its lack of relevance. Hence it was inadmissible. See Myers v. Blackman, 130 A.2d 590, 592 (D.C. 1957) (holding that evidence which is not relevant is not admissible).

Defendants also challenge the Court's exclusion of photographs showing damage to the vehicles involved in the collision. They claim the photographs show that Mr. Hunter sustained such severe injuries that he would have died notwithstanding Defendants' malpractice. But inferring fatality rates from photographs of vehicular damage is not sufficiently within the common experience of jurors to allow them to proceed without the aid of expert guidance. "[W]hen the subject dealt with is so distinctly related to some science, profession, business, or occupation as to be beyond the ken of the average layman, its clarification calls for the use of expert testimony. The test is whether such testimony would aid the trier of fact in the search for the truth." District of Columbia v. Davis, 386 A.2d 1195, 1200 (D.C. 1978) (citations omitted); see also District of Columbia v. Freeman, 477 A.2d 713, 719 (D.C. 1984) (expert required on question whether painted crosswalk renders intersection reasonably safe). The D.C. Court of Appeals has held that interpreting and drawing inferences from photographic evidence requires specialized expertise. See Street v. Hedgepath, 607 A.2d 1238, 1244-45 (D.C. 1992) (affirming exclusion of doctor's opinion that physician exercising ordinary care would have noticed lump in patient's thyroid visible in photograph of patient, where doctor had no expertise in drawing such inference from photograph). Likewise, expert testimony is required to interpret and draw inferences from evidence of the damage to cars involved in a collision. See Washington Metro. Area Transit Auth. v. Davis, 606 A.2d 165, 171 (D.C. 1992) ("Expert testimony was required to interpret . . . the crush pattern to the front of [the] car in order to determine the speed of [the] car."). Determining whether a car crash was fatal based on photographs of the car wreckage, or based on the investigating officer's description of the wreckage, is not a matter which lay persons are capable of intelligently evaluating without the assistance of expert testimony. Defendants, however, proffered no witness with the requisite expertise.

Absent expert guidance, the inference Defendants wished the jury to draw C that Mr. Hunter's injuries sustained in the collision must have been fatal because of the extent of damage to the cars depicted in the photographs or described by the investigating officer C would be highly and impermissibly speculative. That is especially so given the persuasive contrary evidence: both Gerald Johnson and Tedessa Rankin, the drivers of the two vehicles involved in the collision, survived. The photographs and the investigating officer's testimony, therefore, were properly excluded. Given Defendants' copious evidence, presented principally through the testimony of Drs. Collis, Blair, Penniston, and Germaniuk, that the injuries Mr. Hunter sustained in the car accident were fatal, the exclusion of the photographs and the officer's testimony did not cause Defendants substantial prejudice.

VI The Court properly limited the admission of evidence and presentation of argument about the cosmetology law.

Defendants complain that the Court erred by refusing to take judicial notice of D.C. laws which require a person engaged in cosmetology to be licensed and which impose sanctions on persons convicted of practicing cosmetology without a license. See D.C. Code '' 2-432, -453. Defendants sought this evidence as a basis for arguing that Mr. Hunter's alleged illegal activity of practicing cosmetology without a license should bar or limit recovery of future lost earnings. But this argument finds no foundation in law or fact.

Contrary to Defendants' unsupported supposition, the law does not preclude recovery of future lost earnings due to Mr. Hunter's lack of a cosmetology license. In Hullum v. Commonwealth, 487 N.E.2d 477 (Mass. 1986), the court held that a crime victim could recover compensation for earnings lost as a result of her injuries even though those earnings would have derived from her employment as an unlicensed hairdresser. The plaintiff in that case filed a claim for compensation under the state's law providing for compensation to victims injured by violent crimes. She had been working as a beautician and manicurist without a valid license. The trial judge awarded her compensation for lost earnings and ruled that the fact that she was not licensed to practice hairdressing did not bar her recovery. The Supreme Judicial Court of Massachusetts affirmed, stating:

It is uncontroverted that the plaintiff suffered a loss of earnings as a result of her injuries. Neither [the crime-victim's compensation statute] nor public policy mandates that she be denied recovery because she did not have a valid hairdressing license. While we do not condone the plaintiff's violation of the licensing statute and recognize that it serves an important function by protecting the public from inexperienced or unqualified beauticians, there are specified sanctions for license violations which serve to vindicate the policies embodied in that statute. As the Appellate Division stated, "It is one thing to punish the offender and quite another to deprive a victim of violent crime of the available benefits simply because of lack of a valid license, especially when the injuries suffered by the victim are totally unrelated to the victim's employment."

Id. at 477-78 (footnote omitted). For much the same reasons, Mr. Hunter's lack of a cosmetology license ought not bar recovery of his projected lost earnings as a matter of law. Cf. Landise v. Mauro, No. 94-CV-173, 1998 WL 830760, at *4 (D.C. Dec. 3, 1998) (holding that in context of claim for breach of law-partnership agreement brought by party claiming to be a partner, fact that claimant, because she was not admitted to practice in D.C., may have engaged in unauthorized practice of law in this jurisdiction does not bar claim against purported partner or firm).

Defendants further argue that, had Mr. Hunter lived, his income "might have been interrupted by civil or criminal proceedings against him." A similar argument is often raised and routinely rejected in the analogous context of personal-injury actions involving plaintiffs who are illegal aliens. These cases hold that, absent a showing that the plaintiff's deportation is imminent, the defendant may not present evidence indicating the plaintiff's immigration status because it would invite speculation about whether or when he might be deported, because it would be irrelevant to his future-wage-loss claim, and because its probative value, if any, would be substantially outweighed by the danger of unfair prejudice. See Hernandez v. M/V Rajaan, 848 F.2d 498, 500 (5th Cir. 1988) (on petition for reh'g and suggestion for reh'g en banc); Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779, 784 (E.D.Pa. 1975); Klapa v. O&Y Liberty Plaza Co., 645 N.Y.S.2d 281, 282-83 (N.Y.Sup.Ct. 1996); Gonzalez v. City of Franklin, 383 N.W.2d 907, 913 (Wis.Ct.App. 1986).

Likewise here, Defendants presented no evidence of the likelihood that the authorities would discover Mr. Hunter was unlicensed, that he would be prosecuted, that he would be convicted, or that he would receive a civil or criminal sanction. Indeed, during midtrial discovery dedicated to this very issue, the District failed to produce any documentary evidence of the actual imposition of fines or penalties on any salon owner or individual for violating the cosmetology-licensing law. Nor did the District produce evidence of any actual referrals that the D.C. Occupational and Professional Licensing Administration ever made to or received from the office of the D.C. Corporation Counsel relating to enforcement of any statute, rule, or regulation involving licensing of cosmetologists. The District's witnesses testified that one who practices cosmetology without a license could be subject to a $500 fine and then could apply for and, if qualified, be issued a license. (See App. D: Silber Ltr. to Gardner (Dec. 4, 1998); App. E: James, Edwards, Cooks & Wright Dep. Test. at 12-20.) In other words, Defendants failed to provide actual evidence that because Mr. Hunter was unlicensed his future earnings would be diminished appreciably. The Court, therefore, properly refused to take judicial notice of the cosmetology statute because, absent more probative evidence, it would have invited impermissible speculation, it would have been irrelevant to the damages claim, and it would have been unfairly prejudicial. The Court did allow Defendants to argue to the jury that Mr. Hunter was unlicensed; they were entitled to no more.

VII The issue of economic damages was properly submitted to the jury.

Defendants argue that because Mr. Hunter failed to file tax returns, the Court should have excluded evidence of his unreported income and his projected future earnings. They fail, however, to cite any supporting authority on point. Prevailing precedents suggest that a party's failure to file tax returns does not preclude recovery of lost past and future earnings. See Gigax v. Brugoto, 646 So.2d 1236, 1240-41 (La.Ct.App. 1994); Gonzalez v. City of Franklin, 383 N.W.2d 907, 913 (Wis.Ct.App. 1986).

The only case cited by Defendants is Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990), which involved a wife's action against her husband for injuries resulting from his infecting her with herpes before their marriage. The question presented was "whether participation in the crime of fornication, in violation of [state law], bars recovery in tort for injuries resulting from that criminal act." Id. (emphasis added). The court answered that question in the affirmative, applying "the general rule that >a party who consents to and participates in an immoral or illegal act cannot recover damages from other participants for the consequence of that act.'" Id. at 722 (emphasis added). The court explained, "[t]he very illegal act to which the plaintiff consented and in which she participated produced the injuries and damages of which she complains." Id. Zysk is inapposite because Mr. Hunter's allegedly illegal act of failing to file tax returns did not produce the injuries and damages complained of in this action.

In effect, Defendants urge this Court to second-guess the determination by Congress and the Council of the appropriate penalties for failure to file tax returns. But they offer no principled basis for concluding that the sanctions already established by law are inadequate to vindicate the policies embodied in those laws.

Defendants did present evidence and argument about Mr. Hunter's nonfiling of taxes. This was one among several factors that the jury presumably weighed in assessing damages. Defendants were entitled to no more.

VIII Probative evidence supports the survival-action damage award for pain and suffering.

Defendants challenge the survival-action damage award on the grounds that Mrs. Hunter failed to prove proximate cause, conscious pain and suffering, and damages justifying the verdict. The record, however, contains abundant evidence on each of these points that fully substantiates the verdict.

First, Defendants contend that Mr. Hunter would have died from the injuries sustained in the car accident, notwithstanding any medical malpractice on their part. But Dr. Frank Baker, who was qualified as an expert in emergency medicine and resuscitation, testified unambiguously that "there is evidence from his postmortem exam that there is no fundamentally lethal injury, there is no injury that by itself appropriately treated must have caused his death." (App. F: Baker Trial Test. (Dir.) at 37; see also id. at 100.) Dr. Baker estimated that, were it not for Defendants' malpractice, Mr. Hunter's chances of surviving his injuries were on the order of 71% to 88%, or "probably even higher." (App. F: Baker Trial Test. (Dir.) at 101-102.) He opined that if Mr. Hunter had been properly resuscitated, given blood, and given a chest tube, he would have been stabilized so that his injuries could have been handled surgically. (App. F: Baker Trial Test. (Dir.) at 103-104.)

Second, Defendants contend there is an absence of evidence to prove that Mr. Hunter was conscious. The medical records, however, as explained by Dr. Baker, show otherwise. The D.C. General Hospital Trauma Center's Chronological Event Sheet noted "GCS-11," and stated: "Pt attempting to remove collar & blocks. Hands had to be restrained." (App. G: Chron. Event Sheet (Pl.'s Ex. 10) at 1, 2.) Interpreting these records, Dr. Baker testified that "GCS-11" refers to a Glasgow Coma Scale of 11, which "was based on the fact that he had spontaneous eye opening, he had incomprehensible words as his verbal response, and his motor response was that he was able to localize pain. [Localizing pain] means he was conscious enough to be able to respond to local pain, that is, he knew that it was his left arm or right arm, or whatever, that was hurting and you can tell by his motions that he was responding to local pain." (App. F: Baker Trial Test. (Dir.) at 44-45 (emphasis added).) Noting that Mr. Hunter "was trying to rip . . . off" his neck-immobilizing collar, Dr. Baker explained that "the fact that he is . . . purposely trying to tear off something that is causing him to have pain tells us that he is localizing pain. . . . It tells you that his level consciousness is enough for him to be able to appreciate pain and to know something about what to do to relieve the pain, so he is not unconscious." (App. F: Baker Trial Test. (Dir.) at 45-46 (emphasis added).)

Third, Defendants claim that two of the drugs administered to Mr. Hunter by Dr. Bastien would have prevented him from feeling pain. But Dr. Baker made clear that neither drug is an analgesic. He described Versad as "a minor tranquilizer" which "really is an amnesiac more than a sedative[;] it not only sedates you but you don't remember what happens after you get it, but it doesn't make you unconscious. They gave it to sedate him, don't forget he is fighting." (App. F: Baker Trial Test. (Dir.) at 52.) Dr. Baker further explained that patients on Versad "do feel pain but when they wake up, they don't remember it." (App. H: Baker Trial Test. (Cross) at 84 (emphasis added).) Dr. Baker described the other drug, Norcuron, as "a paralyzing agent," that is, a medication that impairs the ability to move, which is administered to properly manage a patient's airway. (App. F: Baker Trial Test. (Dir.) at 52-53.) "The Norcuron is going to paralyze him but he will still feel pain. . . . [Y]ou don't lose consciousness but it just paralyzes you." (App. H: Baker Trial Test. (Cross) at 84 (emphasis added).) Yet another drug administered to Mr. Hunter, Narcan, is a "narcotic antagonist" that is used to counteract the effects of certain drug overdoses, (App. F: Baker Trial Test. (Dir.) at 55); Defendants do not claim that it eliminates pain. In short, there is no evidence in the medical record that Mr. Hunter received any medications that would have alleviated his pain and mental suffering.

Fourth, Defendants assert that Dr. Baker offered no evidence about the pain Mr. Hunter incurred as a result of their malpractice. In fact, however, Dr. Baker testified directly to this point. He explained that Defendants' failure to transfuse Mr. Hunter with blood, even though it was available and they knew he was hemorrhaging, created an hypoxic condition causing deprivation of oxygen to Mr. Hunter's brain. (App. F: Baker Trial Test. (Dir.) at 72-73.) Dr. Baker presented a chilling description of the gruesome effect this had on Mr. Hunter's state of mind:

Patients who are hypoxic are anxious, they can be terrified. They can be panicked in situations where they know that C in fact they feel like they are suffocating, that's the best sort of explanation. They feel like they are suffocating and if they have their way of dealing with that, they will deal with it. . . . I mean if for instance C it happens in scuba divers. A scuba diver runs out of air and he's deep and he has a buddy there and he becomes panicked, and he will become aggressive and he knows his life is at stake, and he will literally tear the breathing apparatus off the other diver to be able to breathe. I mean you can't control your level of terror, she[e]r terror.

(App. F: Baker Trial Test. (Dir.) at 75.) The jury was certainly entitled to weigh this evidence in determining the Survival Act damages award. See Capitol Hill Hosp. v. Jones, 532 A.2d 89, 92 n.12 (D.C. 1987) ("an inferable conscious awareness of impending death could be considered in the pain and suffering calculus").

Fifth, Defendants argue that Mrs. Hunter failed to establish "a specific portion of conscious pain resulted from Bastien's claimed medical malpractice." But Dr. Baker's testimony established that the anxiety, panic, and sheer terror that Mr. Hunter suffered in his hypoxic state was caused by Dr. Bastien's negligent failure to properly replace Mr. Hunter's blood loss. (App. F: Baker Trial Test. (Dir.) at 37, 71-75.) In any event, intangible injuries of the sort Mr. Hunter suffered are necessarily not susceptible of proof with precision, and the law does not require it. See Spar v. Obwoya, 369 A.2d 173, 180 (D.C. 1977) ("Nor should a party who has proved his injury and its proximate cause be deprived of compensatory damages merely because they cannot be computed with exactitude.").

Sixth, Defendants contend that the jury's award of damages for Mr. Hunter's conscious pain and suffering was excessive. But the verdict, while high, was amply supported by probative evidence. The jury learned that Mr. Hunter died under circumstances that can fairly be characterized as unspeakably harrowing and torturous. He gradually hemorrhaged internally while lying in the Emergency Room surrounded by doctors and nurses who could have, but did not, save his life. Intubated and therefore unable to speak, paralyzed from the Norcuron and therefore unable to move, Mr. Hunter nevertheless was conscious as his life slowly, excruciatingly ebbed away. This calls to mind what one great writer poignantly described as "the uttermost agonies of living inhumation." Edgar Allan Poe, The Premature Burial, in THE COMPLETE TALES AND POEMS OF EDGAR ALLAN POE 266 (Modern Library ed. 1938); see also id. at 262-63 ("It may be asserted, without hesitation, that no event is so terribly well adapted to inspire the supremeness of bodily and of mental distress, as is burial before death. . . . We know of nothing so agonizing upon Earth C we can dream of nothing half so hideous in the realms of the nethermost Hell.").

Although "[e]ach case in this area necessarily rises or falls on its own facts," Capitol Hill Hosp. v. Jones, 532 A.2d 89, 93 (D.C. 1987) (quoting May Dep't Stores Co. v. Devercelli, 314 A.2d 767, 775 (D.C. 1973)), a comparison of this case to others may offer useful guidance in gauging the "reasonable range within which the jury may properly operate" in awarding Survival Act damages, Moore, 717 A.2d at 340; Tuerr, 616 A.2d at 1261. Many courts, including some in and around the District of Columbia, have upheld substantial damage awards in cases involving not only physical pain and suffering but also fear or apprehension of imminent death. See Doe v. Binker, 492 A.2d 857, 860-61 (D.C. 1985) (affirming jury award of $200,000.00 for conscious pain and suffering under survival statute where decedent's truck hit guardrail, travelled some distance, turned onto its side, skidded to a stop approximately ninety-eight feet from first point of impact, was struck by an automobile, and burst into flames causing almost immediate death); Beynon v. Montgomery Cablevision Ltd. Partnership, 718 A.2d 1161 (Md. 1998) (reinstating Montgomery County Circuit Court damages award of $1,000,000.00, reduced to $350,000.00 under statutory damages cap, for one and one-half to two and one-half seconds of fright and apprehension of death that motorist suffered before fatal collision); Bickel v. Korean Airlines Co., 96 F.3d 151, 156 (6th Cir. 1996) (upholding damages awards of $400,000.00, $1,350,000.00, and $1,000,000.00 for predeath pain and suffering passengers endured during twelve-minute descent of airplane that had been shot down); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986) (affirming damages award of $500,000.00 each for mental anguish suffered by four passengers of airplane that sustained mid-air breakup at about 10,000 feet and crashed to ground).

Unlike the decedents in these cases and in the one case Defendants cite, who succumbed within a matter of seconds or at most a few minutes, Mr. Hunter lingered at the threshold of death for one to two hours. He had time to realize that his circumstances were dire, time to contemplate the awful prospect of his impending demise, time for his frustration, anger, sadness, and dread to mount.

Although direct evidence of Mr. Hunter's thoughts and feelings in the horrendous last hours of his life is, by the very nature of the case, necessarily lacking, "the existence of conscious pain and suffering may be inferred from the nature of the decedent's injuries or the circumstances surrounding death." Doe, 492 A.2d at 861 (citations omitted); see also Capitol Hill Hosp., 532 A.2d at 92 n.12.

The verdict, while perhaps at the high end of the permissible spectrum, was not so disproportionate to the damages proven as to be excessive as a matter of law. Rather, the substantial award is commensurate with the inconceivably grievous pain and distress suffered by Mr. Hunter in the waning hours of his life. It represents a permissible exercise of the authority our system gives to jurors to arrive at an amount which, in their collective and unanimous judgment, will fairly and reasonably compensate a person who is fatally injured by another's negligence. As Judge Holtzoff once sagely observed: "It is a serious matter to set aside the verdict of a jury. It should not be done except under unusual or exceptional circumstances." Graling v. Reilly, 214 F. Supp. 234, 235 (D.D.C. 1963). This is not such a case.

IX Probative evidence supports the wrongful-death-action damage award.

Defendants argue that the damages awarded to Mrs. Hunter under the Wrongful Death Act lack a proper evidential basis. The record, however, shows that substantial evidence was presented on which the jury could reasonably have based its award.

First, Defendants claim there was inadequate evidence to show loss of services to Mrs. Hunter as a result of her son's death. But at trial, Mrs. Hunter did not seek recovery under the Wrongful Death Act for loss of services. The amount calculated by her expert economist, Jerome Staller, Ph.D, in wrongful-death benefits available to her was based exclusively on her pecuniary loss caused by Tyrone's death. He offered no testimony on loss of services, and no part of his loss projections including that element of damages.

Second, Defendants contend that Dr. Staller's opinion that Tyrone Hunter would have provided his mother "$30,000.00 per month in support over her lifetime" was "without any factual basis." Dr. Staller's opinion, however, was that Tyrone would have provided his mother pecuniary support of approximately $30,000.00 per year, not per month as Defendants assert. Furthermore, that opinion had a proper factual basis. It is well settled that experts may testify on the basis of the kind of facts and data on which experts in their field reasonably rely, and the facts or data need not be admissible in evidence. See In re Melton, 597 A.2d 892, 900-06 (D.C. 1991) (en banc). The type of facts or data on which experts typically rely includes information from a party's relatives, see id., and the reports and analyses of other experts, see Jenkins v. United States, 113 U.S. App. D.C. 300, 304-05, 307 F.2d 637, 641-42 (1962) (en banc), quoted with approval in Melton, 597 A.2d at 901-02. And in wrongful-death actions, expert economists may offer projections about pecuniary losses based on statistics of a type upon which economists reasonably rely. See, e.g., Forman v. Korean Airlines Co. Ltd., 318 U.S. App. D.C. 6, 9-10, 84 F.3d 446, 449-50 (1996) (reversing trial court's determination that expert's calculation of decedent's future earnings based on average earnings of college-educated female of her age was impermissibly speculative); Elliott v. Michael James, Inc., 182 U.S. App. D.C. 138, 145, 559 F.2d 759, 766 (1977) (">mortality tables furnish some guide even though they are based entirely on averages'") (quoting Hord v. National Homeopathic Hosp., 102 F. Supp. 792, 794 (D.D.C. 1952), aff'd, 92 U.S. App. D.C. 204, 205, 204 F.2d 397, 398 (1953)). In formulating his opinion, Dr. Staller reviewed the transcript of Mrs. Hunter's deposition in which she testified that Tyrone bought all their food, paid most of the rent and phone bill, split the electric bill, bought all their household sundries, and gave his mother cash every week. (App. I: Hunter Dep. Test. at 16-18, 74-75.) She further testified, however, that she had no documents establishing Tyrone's expenditures. (App. I: Hunter Dep. Test. at 42.) Thus, to quantify the pecuniary loss to Mrs. Hunter caused by Tyrone's death, Dr. Staller sensibly relied on data from the Consumer Expenditure Survey published by the U.S. Department of Labor, Bureau of Labor Statistics. Of course, his reliance on this data was not binding on the jury. "[E]xpert economic testimony is only a guideline for the jury and not conclusive evidence." Doe, 492 A.2d at 864 (citation omitted). Defendants had an opportunity to challenge the basis for Dr. Staller's opinions and in fact did so vigorously in cross-examining him and in attacking his conclusions during closing argument. "The jury was then free to calculate its award based on all the facts and circumstances." Id.; see also Forman, 318 U.S. App. D.C. at 9-10, 84 F.3d at 449-50. Clearly the jury did not adopt Dr. Staller's estimate at its face value, for it awarded wrongful-death damages in the amount of $400,087.00, which is less than half of Dr. Staller's projection of $800,169.00.

Third, Defendants claim that the evidence shows Mrs. Hunter supported Tyrone rather than the reverse. But in Mrs. Hunter's deposition, she testified that Tyrone's earnings were several multiples of hers, that he paid the lion's share of their basic living expenses including rent, food, and utilities, that he gave her cash every week, and that she never contributed to his financial needs. (App. I: Hunter Dep. Test. at 16-18, 61, 65, 74-75.) Defendants simply ignore this evidence and point instead to Mrs. Hunter's tax returns for the tax years 1992-1995, in which she claimed Tyrone as a dependent. At trial, however, Mrs. Hunter explained the circumstances surrounding her tax returns. She testified that after her divorce, she relied on her tax preparer, H&R Block, to prepare and file her returns. H&R Block continued to list Tyrone as a dependent even though he was helping to support her. Without intending to do so, and in reliance on H&R Block's expertise, Mrs. Hunter mistakenly claimed Tyrone as a dependent for the tax years 1992-1995. When she learned of this mistake, she filed amended returns for both her federal and D.C. taxes and paid all back taxes, interest, and penalties. The total amount of her underpayment was less than $800.00 for all tax years involved. Defendants submitted into evidence both her original and amended returns and vigorously urged the jury to disregard all other testimony and to rely exclusively on Mrs. Hunter's erroneous tax returns. The jury was entitled to give this evidence the weight it deserved; by the same token, the jury was entitled to reject it as unconvincing.

Fourth, Defendants challenge the expenditure statistics used by Dr. Staller because they were based on financial information of two unmarried people living together and did not specifically apply to a mother-son relationship. But this complaint goes to the weight rather than the admissibility of the evidence. Statistics are admissible even where they are drawn from the experience of populations different from the one of which a party is a member. See Spar v. Obwoya, 369 A.2d 173, 180 (D.C. 1977) (holding that evidence introduced as to personal-injury plaintiff's life expectancy, which evidence consisted of information from government tables for nonwhite individuals residing in the United States, was properly admitted for consideration by jury even though plaintiff was a Ugandan national to whom the tables did not apply). Here again, Defendants cross-examined Dr. Staller on this point and argued it to the jury. In awarding Mrs. Hunter only half of what Dr. Staller projected, the jury evidently found merit in this point. It certainly furnishes no basis for disturbing the verdict.

Finally, Defendants charge that Dr. Staller "resorted to sheer speculation" in assuming that Tyrone would remain with his mother during her lifetime. But in making this assumption, he reasonably relied on Mrs. Hunter's sworn, unambiguous testimony that Tyrone planned to stay with her "forever." (App. I: Hunter Dep. Test. at 25.) Dr. Staller's assumption, therefore, was not, as Defendants assert, "without any factual basis." It was properly submitted for consideration by the jurors who were free to assess its credibility and to give it as much or as little weight as they felt it merited.

X Probative evidence supports the survival-action damage award for loss of prospective economic benefit.

Defendants contend that the damages awarded by the jury to Tyrone Hunter's estate for loss of prospective economic benefit compensable under the D.C. Survival Act are not properly grounded in evidence. The record, however, demonstrates that the verdict rests on a sound factual foundation.

First, Defendants perfunctorily claim that Mrs. Hunter's expert in cosmetology, Larry Oskin, "demonstrated no expertise." But under prevailing standards governing admissibility of expert testimony, Mr. Oskin possessed sufficient credentials. Expert testimony is admissible where "the witness has >sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.'" Street, 607 A.2d at 1244 (quoting Dyas v. United States, 376 A.2d 827, 831 (D.C. 1977)); see also Tuerr, 616 A.2d at 1256, 1257 (holding that witness was qualified to testify as expert in elevator maintenance, although he did not actually repair elevators, where he was self-employed elevator consultant, had bachelor's degree in electrical engineering, had previously worked on design and electrical systems for elevator manufacturer, and had directed and monitored maintenance contracts). ">The training and specialization of the witness goes to the weight rather than the admissibility of the evidence, generally speaking.'" Kling v. Peters, 564 A.2d 708, 716 (D.C. 1989) (quoting Baerman v. Reisinger, 124 U.S. App. D.C. 180, 181, 255363 F.2d 309, 310 (1966)). Here, Mr. Oskin was a former vice-president of the Hair Cuttery, and author of hundreds of articles in the cosmetology-trade press, including many on the economics of the profession. He demonstrated extensive knowledge of and experience in cosmetology and the economics of hair styling such that his opinions and inferences would likely aid the jury in the search for truth. The Court did not abuse its discretion in qualifying him as an expert.

Second, Defendants accuse Mr. Oskin of having "engaged in sheer speculation in determining decedent's annual income." In fact, however, his opinions were rooted in probative evidence. In formulating his opinions, Mr. Oskin not only invoked applicable national standards but also visited the Erotic Hair Gallery, where Mr. Hunter had been working, spoke with the stylists who worked with Tyrone, and evaluated the prices charged for various services that Tyrone had performed. In particular, Mr. Oskin interviewed Elizabeth Richardson, a stylist at the Erotic Hair Gallery, and reviewed the testimony of Yvette Garner, a client of Mr. Hunter's, and the videotaped-deposition testimony of Brian Kittrell, the salon manager. Kittrell described each type of hair service provided by Mr. Hunter to his clients and the price of those services. The testimony of these witnesses, based on first-hand knowledge of and experience with Mr. Hunter, showed that he was a very busy and much sought-after stylist, so much so that he often had more clients than he could handle and would pass them off to other stylists. He was not merely an average hair-stylist, rather "[h]e was one of the best." (App. J: Kittrell Dep. Test. at 17.) In light of this evidence, Mr. Oskin concluded that Mr. Hunter had established himself as a successful hair-stylist in the economically lucrative profession of styling African-American women's hair. Mr. Oskin estimated that Mr. Hunter probably earned $3,000.00 per week. Mr. Oskin opined that, deducting operating expenses and supplies from that sum, Mr. Hunter likely made $119,000.00 per year, excluding tips. This testimony, while not conclusive, provided a useful guideline for the jury in determining Mr. Hunter's future earnings. See Doe, 492 A.2d at 864. The Court properly admitted it.

Third, Defendants challenge Dr. Staller's testimony about the amount Mr. Hunter would likely not have spent each year had he survived. Here again, however, Defendants' argument goes to the weight rather than the admissibility of the evidence. In formulating his opinion, Dr. Staller extrapolated from statistical data about the amounts not spent by persons earning Mr. Hunter's level of income. This type of evidence, of course, is perfectly permissible and constitutes a proper basis for a jury's computation of damages. See Spar, 369 A.2d at 180. Defendants were free to argue, and did argue, that these statistical data did not accurately reflect Mr. Hunter's circumstances. It was for the jury to weigh the evidence and arguments on both sides and to decide where the truth lay. In its sound discretion, the jury awarded damages in an amount considerably less than estimated by Dr. Staller, reflecting its determination that the pecuniary loss to the estate was neither as high as claimed by Mrs. Hunter nor as low as urged by Defendants. That verdict was properly rooted in evidence and reason, and ought not be disturbed.

Fourth, Defendants contend that Dr. Staller's opinion about the estimated pecuniary loss to Mr. Hunter's estate "had no factual basis." But Defendants conveniently overlook the adequate evidentiary foundation that was laid for his testimony. In projecting Mr. Hunter's probable net future earnings, Dr. Staller relied not only upon Mr. Oskin's expert assessment of his yearly income as a successful cosmetologist, but also Dr. Staller's own review of the deposition testimony of Brian Kittrell, the manager of the shop in which Mr. Hunter worked, and his interview with Elizabeth Richardson, one of Mr. Hunter's coworkers. Dr. Staller's analysis, therefore, was ">grounded upon facts specific to the individual whose loss is being calculated.'" Washington Metro. Area Transit Auth. v. Davis, 606 A.2d 165, 178 (D.C. 1992) (citation omitted).

Fifth, Defendants dismiss as "subjective" the information upon which Mr. Oskin and Dr. Staller relied in formulating their opinions. But this is an altogether acceptable type of information upon which the experts could base their opinions. See Hughes v. Pender, 391 A.2d 259, 261-64 (D.C. 1978) (holding that in determining net future earnings of sixteen-year-old decedent, jury could rely on testimony of expert economist in light of mother's description of decedent). "The jury is entitled to exercise considerable judgment in determining the weight to be given to [expert] evidence [and is] free to reject any of the [expert's] assumptions." Id. at 264. If, as Defendants assert, the experts' opinions were based on information derived from persons with "a motive to supply biased information," that is simply a factor for the jury to consider in determining the weight to be given the experts' testimony. Evidently the jurors followed the Court's instruction to give the experts' testimony as much weight as they thought it deserved, see STANDARDIZED CIVIL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 3-3 (1998), for its award to compensate Mr. Hunter's estate for loss of pecuniary benefit was $373,379.00, which was far lower than the range of $595,089.00 to $746,753.00 projected by Dr. Staller.

Finally, Defendants assert that the testimony of Mr. Oskin and Dr. Staller was improperly based on hearsay. Defendants offer no explanation or citation to authority, and their argument is far from clear. ">Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." Little v. United States, 613 A.2d 880, 882 (D.C. 1992) (quoting FED. R. EVID. 801(c)). If the declarants whose statements Defendants claim to be hearsay are Brian Kittrell, Elizabeth Richardson, and Yvette Garner, then their statements were not hearsay because Defendants cross-examined them. On the other hand, if the declarant whose statements Defendants claim were hearsay is Mr. Hunter, none of his statements were hearsay because they were not "offered to prove the truth of the matter asserted." Kittrell, Richardson, Garner, and Mrs. Hunter testified not about what Mr. Hunter said but rather about their observations of what he did and where, how, and when he did it. That is not hearsay. In any event, experts may formulate their opinions in reliance upon otherwise inadmissible information, including hearsay. Melton, 597 A.2d at 900-04.

XI The Court did not abuse its discretion in allowing Mrs. Hunter to recall the expert economist to testify.

Defendants contend that the Court erred by permitting Dr. Staller, after previously testifying, to be recalled to the stand in order to separate the Wrongful Death Act damages from the Survival Act damages. But Defendants do not claim that Dr. Staller violated a sequestration order, as was the case of the witnesses in the authorities on which they rely. Even those authorities recognize that "extensive defense cross-examination" of the recalled witness is "an adequate cure for any possible prejudice which might have arisen." Brown v. United States, 388 A.2d 451, 457 (D.C. 1978); see also Jett v. Jett, 221 A.2d 925, 927 (D.C. 1966) (holding that "it was error to strike the testimony of the witness [which] should have been allowed to remain and its credibility viewed in light of the circumstances"). Those authorities also recognize that "the trial judge has broad discretion concerning whether a witness may be recalled to the stand after testifying." Brown, 388 A.2d at 456 (citation omitted). Here, the Court properly exercised its discretion by allowing Dr. Staller to be recalled and to be subjected to cross-examination by Defendants.

XII. The Court did not abuse its discretion in refusing Defendants' requested Survival Act jury instruction.

Defendants complain that the Court erred by refusing their requested jury instruction about calculation of damages under the Survival Act. This argument, however, is without merit for at least two reasons. First, Defendants offered no legal authority in support of their requested instruction at trial, and cite none now. Second, "[a] trial court has broad discretion in fashioning appropriate jury instructions," Banks v. District of Columbia, 551 A.2d 1304, 1310 (D.C. 1988), and its ">refusal to grant an instruction is not grounds for reversal when the charge as given, although in a more general form, fully informs the jury as to the law,'" Wingfield v. Peoples Drug Store, Inc., 379 A.2d 685, 689 (D.C. 1977) (quoting Evans v. Capital Transit Co., 39 A.2d 869, 871 (D.C. 1944)). This Court instructed the jury that, after arriving at the amount of money Mr. Hunter would have accumulated over the course of his normally expected lifetime, "you should subtract the amounts the deceased would have spent on his . . . own living expenses, and for any living expenses of dependents, and whatever taxes it is reasonably certain he . . . would have been required to pay." STANDARDIZED CIVIL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 14-1 (1998) (brackets omitted). That instruction fully and fairly informed the jury as to the law. See Runyon v. District of Columbia, 150 U.S. App. D.C. 228, 231, 463 F.2d 1319, 1322 (1972) (stating that, in calculating Survival Act damages, from the decedent's gross probable future earnings "is subtracted probable income taxes, both state and federal, for the term of the probable work life, and the amount the deceased would have required to maintain himself and contribute to those entitled to recover under the Wrongful Death Act"). Therefore, the Court did not abuse its discretion in refusing to grant Defendants' proposed instruction.

XIII. The trial court properly exercised its discretion in refusing to dismiss a juror.

Defendants argue that a juror who suffered a miscarriage necessitating her undergoing a medical procedure during trial was "incompetent to render a fair and unbiased judgment" and therefore should have been excused from further service. But they have not met their heavy burden.

"Where . . . the impartiality of a juror has been plausibly called into question, it is the responsibility of the trial judge to hold a hearing to determine whether the allegation of bias has merit." Medrano-Quiroz v. United States, 705 A.2d 642, 649 (D.C. 1997) (citation omitted); Harris v. United States, 606 A.2d 763, 765 (D.C. 1992). It is the burden of the party challenging the juror's impartiality to "prove actual bias." Graham v. United States, 703 A.2d 825, 829-30 (D.C. 1997); Harris, 606 A.2d at 765 (internal quotation marks and citation omitted). Allegations of implied juror bias are not enough. See Smith v. Phillips, 455 U.S. 209, 215-16 (1982). ">Following a proper hearing, the determination of juror bias or prejudice lies particularly within the discretion of the trial court, reversible only for a clear abuse of discretion . . . .'" Medrano-Quiroz, 705 A.2d at 649 (citation and internal quotation marks omitted).

In this case, the Court with commendable circumspection conducted an additional voir-dire examination of the juror. She assured the Court and counsel that she was willing and fully able to carry out her responsibilities as a juror dispassionately and responsibly. In light of this, Defendants invoke mere conjecture. They have not come close to proving actual bias or inability to render a fair and impartial verdict. This Court, therefore, did not abuse its discretion in declining to dismiss the juror.

XIV. The Court properly exercised its discretion in refusing to continue the trial or bifurcate the claims.

Defendants contend that adverse pretrial publicity was so pervasive as to make a fair trial impossible. But unlike the cases they cite, they have failed to show that the verdict here was "obtained in a trial atmosphere that had been utterly corrupted by press coverage." Murphy v. Florida, 421 U.S. 794, 798 (1975). To establish such unfairness, it is not enough to show merely that jurors were exposed to some pretrial publicity. "Qualified jurors need not . . . be totally ignorant of the facts and issues involved. . . .>It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'" Id. (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). As observed in one of the cases cited by Defendants, "[t]he relevant question is . . . whether the jurors . . . had such fixed opinions that they could not judge impartially . . . ." Patton v. Yount, 467 U.S. 1025, 1035 (1984). Defendants cannot meet this standard. They fail to point to any specific evidence of juror partiality or actual prejudice. That is because the Court took appropriate precautions to ensure that the jurors were fair and unbiased. The Court carefully conducted an extensive voir dire and repeatedly admonished the jurors to ignore any publicity pertaining to this case. In these circumstances, the Court did not abuse its discretion in determining that the jury could disregard the publicity and render an impartial verdict.

For much the same reasons, the Court did not abuse its discretion in refusing to grant Defendants a continuance of the trial or a bifurcation of Mrs. Hunter's claims. Absent much more specific evidence of prejudice than Defendants have offered, continuing or bifurcating the trial would have been inappropriate. Either of these procedures would have greatly inconvenienced Mrs. Hunter, caused her to incur additional expense, and delayed the entry of judgment. See Moattar v. Foxhall Surgical Assocs., 694 A.2d 435, 440 (D.C. 1997). Any possible prejudice that Defendants may have encountered was cured by the Court's jury instructions and carefully crafted verdict form, which clearly separated the Human Rights Act claim from the medical-malpractice claim.

Defendants' unsupported assertions of partiality notwithstanding, surely if the likes of Rayful Edmond, H.R. Haldeman, John Ehrlichman, and Oliver North could receive a fair trial here, see United States v. Edmond, 311 U.S. App. D.C. 235, 249-54, 52 F.3d 1080, 1094-99 (1995); United States v. Haldeman, 181 U.S. App. D.C. 254, 282-85, 559 F.2d 31, 59-62 (1976); United States v. North, 713 F. Supp. 1444 (D.D.C. 1989), then so could Defendants in this case.

Conclusion

For these reasons, Mrs. Hunter requests that the Court deny Defendants' posttrial motion in its entirety.

Respectfully submitted,

RICHARD F. SILBER, P.C.

By:

Richard F. Silber #395407

3221 M Street, N.W.

Washington, D.C. 20007-3616

(202) 338-0687

KOONZ, McKENNEY, JOHNSON,

DePAOLIS & LIGHTFOOT, L.L.P.

By:

Marc Fiedler #413316

2020 K Street, N.W., Suite 500

Washington, D.C. 20006

(202) 659-5500

Counsel for Plaintiff Margie Hunter

Certificate of Service

This certifies that on this ____ day of March, 1999, I served on Defendants this Plaintiff's Opposition to Defendants' Posttrial Motion, the statement of points and authorities in support thereof, and a proposed order by sending them first-class through U.S. mail, postage prepaid, to:

Patricia A. Jones, Esquire

Steven J. Anderson, Esquire

Assistant Corporation Counsel, D.C.

441 - 4th Street, N.W., 6th Floor South

Washington, D.C. 20001

and by delivering a chambers copy to the depository designated by the Clerk of the Court for receipt of these papers by Judge Wendell P. Gardner, Jr.

 

Richard F. Silber #395407

IN THE

SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA

Civil Division

MARGIE HUNTER, :

:

Plaintiff, :

:

v. : Civil Action No. 96-1338

: Calendar 2

DISTRICT OF COLUMBIA, et al., : The Honorable Wendell P. Gardner, Jr.

:

Defendants. :

ORDER

Upon consideration of Defendants' Motion for Judgment as a Matter of Law, or, in the Alternative, for a New Trial, or, in the Alternative, for Remittitur, Plaintiff's opposition thereto, Defendants' reply, if any, and the entire record herein, and it appearing that there was sufficient, probative evidence upon which the jury reasonably could reach a verdict in favor of Plaintiff, and it further appearing that there were no trial errors that denied Defendants substantial justice, it is therefore this ______ day of ____________________, 1999,

ORDERED that Defendants' posttrial motion is DENIED in its entirety.

Date Wendell P. Gardner, Jr.

Judge, Superior Court of the District of Columbia

COPIES TO:

Richard F. Silber, Esquire

RICHARD F. SILBER, P.C.

3221 M Street, N.W.

Washington, D.C. 20007-3616

Marc Fiedler, Esquire

KOONZ, McKENNEY, JOHNSON,

DePAOLIS & LIGHTFOOT, L.L.P.

2020 K Street, N.W., Suite 500

Washington, D.C. 20006

 

Patricia A. Jones, Esquire

Steven J. Anderson, Esquire

Assistant Corporation Counsel, D.C.

441 - 4th Street, N.W., 6th Floor South

Washington, D.C. 20001

APPENDIX

 

 

Table of Contents

 

 

A. Transcript of trial testimony of Katherine Poole

(Nov. 17, 1998), pp. 1, 3, 9-13, 15, 22, 24, 35-37, 41, 47

B. Memorandum from Herbert Roulhac, Jr., to Wayne E. Moore, M.D.

(Aug. 9, 1995) (Plaintiff's Exhibit 1)

C. Transcript of trial testimony of David Driggers

(Nov. 17, 1998), pp. 1, 3, 21, 23, 27

D. Letter from Richard F. Silber to Judge Wendell P. Gardner, Jr.

(Dec. 4, 1998)

E. Transcript of deposition testimony of Gladston James, Karen Edwards,

Clifford Cooks, and Louis H. Wright, II (Dec. 4, 1998),

pp. 1, 2, 12-20

F. Transcript of trial testimony on direct examination of Dr. Frank Baker

(Nov. 12, 1998), pp. 1, 2, 37, 44-46, 52-53, 55, 71-75, 100-104

G. D.C. General Hospital, Chronological Event Sheet

(Aug. 7, 1995) (Plaintiff's Exhibit 10)

H. Transcript of trial testimony on cross examination of Dr. Frank Baker

(Nov. 12, 1998), pp. 1, 2, 84

I. Transcript of deposition testimony of Margie Hunter

(Nov. 12, 1996), pp. 1, 2, 16-18, 25, 42, 61, 65, 74-75

J. Transcript of videotaped deposition testimony of Brian Kittrell

(June 2, 1997), pp. 1, 2, 17


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