BELSON, Senior Judge:
This is an appeal by a hospital and a physician from a large judgment against them in a medical malpractice case. Appellee Crystal Wheeler suffered various medical complications as the result of a Rathke's cleft cyst behind her left eye, which went undetected for nearly ten years despite its appearance on a 1996 MRI report. Wheeler brought a medical-malpractice suit against the appellants, Marilyn McPherson-Corder, M.D., and the President and Directors of Georgetown College ("Georgetown"), claiming that their negligence caused the cyst to go undiscovered. Following a lengthy trial in Superior Court, a jury awarded Wheeler more than $2.5 million in damages. Dr. McPherson-Corder and Georgetown now appeal, making four arguments: (1) the jury's verdict was irreconcilably inconsistent, in that it found that the appellants' negligent failure to detect the cyst was a proximate cause of Wheeler's injuries, but also found that Wheeler's own failure to follow up on the 1996 MRI report, while negligent, was not a proximate cause; (2) the trial court erred by admitting Wheeler's proffered expert testimony, as her experts' conclusion that her cyst caused certain gastrointestinal problems has not been generally accepted in the medical scientific community; (3) Wheeler's counsel made improper and prejudicial statements during her closing argument; and (4) the jury's verdict was against the weight of the evidence.
We reject the appellants' first argument because they waived their objection to any alleged inconsistency by failing to raise the issue before the jury's dismissal. We find their second argument lacking, as it misstates our standard for the admission of expert testimony. We likewise find their third argument unpersuasive, as we see no impropriety in Wheeler's counsel's remarks. We do, however, find merit in one aspect of appellant's argument on the weight of the evidence, i.e., insofar as it relates to the jury's award of greater future medical costs than the evidence established. Because the jury awarded $19,450
Wheeler has long suffered from a litany of health problems, including serious gastrointestinal difficulties. At several times in her youth, she was hospitalized due to extreme nausea and vomiting. These problems persisted throughout her adolescence, and have lasted well into her adult life.
In 1996, Wheeler began attending college in southern Virginia. When she returned home to Washington, D.C., the following summer, she complained of severe headaches to her then-pediatrician, Dr. Marilyn McPherson-Corder. Accordingly, Dr. McPherson-Corder referred her to a Georgetown University Hospital pediatric neurologist, Dr. Yuval Shafrir.
Dr. Shafrir saw Wheeler twice that summer, once on July 8, and again on August 5. During the first visit, Wheeler was also experiencing leg and ear pain. Because of these other maladies, Dr. Shafrir was unable to fully diagnose her headaches. He prescribed medication for her ear pain, which he concluded was the result of an ear infection, and asked her to come back in a few weeks when her symptoms cleared. When she returned, Dr. Shafrir diagnosed her headaches as migraines. Accordingly, he instructed her on migraine management, prescribed medication, and asked her to keep a headache diary. He also noticed "a new complete blurring of [Wheeler's] right optic disk," which prompted him to give her a prescription and tell her to arrange an EKG and an MRI through her primary-care physician.
The parties dispute exactly what Dr. Shafrir told Wheeler about these tests. At trial, Wheeler testified that Dr. Shafrir told her that both procedures were merely "precautionary," and that he would contact her if there were "any concerns with the MRI." Dr. Shafrir, however, testified that while he does not have any independent memory of Wheeler's visits, he "always" told patients to contact him within three days of having an MRI if they did not hear from him. He also testified that whenever he ordered an MRI he would instruct the patient to come back for a follow-up visit. He said that this system, which placed the onus on the patient to follow up on test results, had "never" failed him. He testified that it would be "impossible" for him to track down every result independently, in light of the system he used for having patients get an MRI.
After Wheeler's second visit, Dr. Shafrir wrote to Dr. McPherson-Corder, informing her that he asked Wheeler to undergo an MRI and EKG. Although he indicated that he had already received the EKG results, which came back "normal," he did not mention any MRI results. He also wrote that he would "like to see [Wheeler] again in my office during her next college vacation."
Wheeler obtained a referral for the MRI from Dr. McPherson-Corder's office. She then had the MRI performed at Georgetown Hospital on August 16. This MRI revealed a 3-5 mm supersellar cyst behind her left eye — likely a Rathke's pouch cyst. At the time, the cyst was not pressuring her pituitary gland, hypothalamus, or her optic chiasm. Neither Dr. McPherson-Corder nor Dr. Shafrir ever saw the results of this MRI during the time relevant to this proceeding.
Wheeler's gastrointestinal issues troubled her throughout college. She continued to struggle with nausea, vomiting, and low appetite. After her graduation in 2000,
Wheeler's physical decline correlated with her deteriorating mental health. In 2002, she reported increasing depression and stress, which she attributed to her physical maladies. In 2003, her depression worsened, and she began to suffer from panic attacks. She was diagnosed with depressive disorder in 2004 and major depression in 2005. She was also diagnosed with a mood disorder.
Her medical problems came to a head when, in December 2005, she checked into George Washington University Hospital ("GWU") complaining of vertigo and double vision. At that time, GWU doctors ordered an MRI. Like the 1996 MRI, this new test showed a cyst-like mass behind Wheeler's left eye. The cyst had visibly grown, now measuring approximately 11 × 8.5 × 10 mm, and was causing "mass effects" on Wheeler's optic chiasm. Also at this time, GWU doctors diagnosed Wheeler with thyroid and adrenal deficiencies, as well as abnormally low levels of human growth hormone.
After her discharge from GWU Hospital, Wheeler saw Dr. Walter Jean, a neurosurgeon at Georgetown University Hospital. Dr. Jean asked Wheeler to undergo another MRI. While examining the results of this MRI in March 2006, Dr. Jean discovered the 1996 MRI. Comparing the two MRIs, he noted that Wheeler's cyst had "progress[ed]" during the intervening decade, becoming "bigger." Dr. Jean then performed surgery to remove the cyst, without complication.
Wheeler brought suit against Georgetown
The jury ultimately returned a verdict in Wheeler's favor. It found that the doctors breached their respective standards of care and that their breaches proximately caused Wheeler's injuries. It also found that Wheeler was "contributorily negligent" for not "following Dr. Shafrir's instructions to follow up with him after obtaining the MRI." However, it concluded that her negligence was not a proximate cause of her injuries. It awarded her $505,450.37 in past medical expenses, $800,000 in future medical expenses, and $1,200,000 in noneconomic damages, for a
Following trial, Georgetown and Dr. McPherson-Corder moved jointly for judgment notwithstanding the verdict, or in the alternative for a new trial. In support of this motion, they presented four arguments. First, they claimed that the jury could not rationally have concluded that the negligence of each of the physicians was a proximate cause of Wheeler's injuries, but that her own negligent failure to follow up with Dr. Shafrir was not. Therefore, they argued, the jury's verdict was irreconcilably inconsistent. Second, they asserted that there was no general acceptance in the medical scientific community of a causal connection between Rathke's cleft cysts and gastroparesis. Accordingly, Wheeler's expert testimony on that point had been inadmissible under Dyas v. United States, 376 A.2d 827 (D.C.1977), and Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). Third, they claimed that the jury's verdict was against the weight of the evidence. Fourth and finally, they argued that Wheelers' attorney improperly appealed to the jury's passions during her closing argument.
The trial court denied their motion on April 27, 2012. This appeal followed.
On appeal, Georgetown and Dr. McPherson-Corder reiterate the arguments they presented in their post-trial motion. We address these arguments in turn, beginning with their claim that the verdict was irreconcilably inconsistent.
Georgetown and Dr. McPherson-Corder's first argument on appeal is essentially the same one they made to the trial court: that the jury could not rationally have concluded that their negligent conduct was a proximate cause of Wheeler's injuries, but that the contributory negligence it found Wheeler had committed was not a proximate cause. The trial court rejected this argument, finding that the verdict was not irreconcilable. We now affirm, but on alternate grounds. We do not reach the question of whether the verdict was irreconcilably
In general, a civil jury will return one of three types of verdicts. In many cases, this will be a standard general verdict. A general verdict is "`[a] verdict by which the jury finds in favor of one party or the other, as opposed to resolving specific fact questions.'" Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1201 (11th Cir.2004) (quoting Mason v. Ford Motor Co., 307 F.3d 1271, 1274 (11th Cir.2002)); accord BLACK'S LAW DICTIONARY 1696 (9th ed. 2009). The jury will also set damages, where appropriate. See Mason, supra, 307 F.3d at 1273. When the jury returns such a verdict, the basis for its decision is usually not stated explicitly; the jury simply announces a decision for one side or the other. See Robinson v. Washington Internal Med. Assocs., P.C., 647 A.2d 1140, 1144 (D.C.1994) ("Because the jury returned a general verdict in favor of the defendants, we do not know whether the jury found that the defendants were not negligent (or that proximate causation was not proven) or that the plaintiff was contributorily negligent."); see also Sinai v. Polinger Co., 498 A.2d 520, 523 n. 1 (D.C. 1985).
In addition, Superior Court Civil Rule 49
Second, subsection (b) authorizes the court to "submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon [one] or more issues of fact the decision of which is necessary to a verdict." Verdicts submitted under this section are "hybrid[s]" between standard general verdicts and special verdicts. Mason, supra, 307 F.3d at 1274; see also Portage II, supra, 899 F.2d at 1520 ("The general verdict with interrogatories may be viewed as a middle ground between the special verdict and the general verdict...."). They "permit[] a jury to make written findings of fact and to enter a general verdict," Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 53 (2d Cir.1992), and are useful when it is necessary to determine "specifically what the jury found." Sinai, supra, 498 A.2d at 533 (Nebeker, J., concurring).
The distinction between these verdict types is crucial in this case, because a party waives its objection to any alleged inconsistency in a general verdict, with or without interrogatories, if it fails to object before the jury's discharge. See District of Columbia Hous. Auth., v. Pinkney, 970 A.2d 854, 868 (D.C.2009) ("DCHA did not raise an objection based on inconsistent verdicts before the jury was excused, [after returning general verdict with special interrogatory,] and it therefore has waived this argument."); Estate of Underwood v. Nat'l Credit Union Admin., 665 A.2d 621, 645 (D.C.1995) (explaining that Rule 49, "particularly section (b), countenances a waiver of objections to inconsistencies in the verdict that are not pointed out before the jury is discharged").
In this case, the verdict form itself did not specify the type of verdict to be rendered. That form, labeled simply "Verdict," first directed the jurors to determine whether Dr. Shafrir or Dr. McPherson-Corder breached the applicable standards of care in his or her care of and treatment of Wheeler. If the jurors answered either question with a "yes," the form instructed them to determine whether the breach by either or both doctors was a proximate cause of injuries and damages to Wheeler. If the jurors answered "yes" again, the form instructed them to then determine whether Wheeler was "contributorily negligent in not following Dr. Shafrir's instructions to follow up with him after obtaining the MRI." Then, if the jurors found that she was, the form required them to determine whether Wheeler's "negligence [was] a proximate cause of her injuries and damages."
The verdict form used in this case did not call for a general verdict of the most basic type. In the past, however, we have at times referred to similar verdicts as general. See Nimetz v. Cappadona, 596 A.2d 603, 606 (D.C.1991) (describing as "general" a verdict form that "require[ed] the jury to make separate findings only on
But it is likewise unclear that the form called for a Rule 49(b) general verdict with interrogatories. True, one portion of the form suggests such a verdict, because, as noted above, the jury answered at least one question regarding a discrete factual issue (i.e., whether Wheeler failed to follow Dr. Shafrir's instructions), while still deciding the ultimate issue of liability. See Portage II, supra, 899 F.2d at 1521 (holding that verdict form that asked jury several factual questions, but also required it to determine ultimate liability, called for a general verdict with interrogatories). But the trial court here did not indicate that it was exercising its authority under Rule 49(b). Rather, it used a form simply labeled "Verdict." And that form did not pose any purely factual questions. Instead, each question required the jury to resolve both factual questions and legal issues. But cf. Lavoie, supra, 975 F.2d at 54 (finding verdict form was a general verdict with interrogatories despite the "unusual nature" of the form used).
The issues before us, however, do not require us to choose between labeling this verdict a general verdict or a Rule 49(b) general verdict with interrogatories, because we can clearly determine that it was not a special verdict — the only type of verdict to which a party might be permitted to raise an inconsistency objection after the jury's discharge. Special verdicts do not require the jury to determine ultimate liability, or indeed reach any legal conclusions whatsoever. Mason, supra, 307 F.3d at 1274 ("[A] Rule 49(a) special verdict is a verdict by which the jury finds the facts particularly, and then submits to the court the questions of law arising on them." (internal quotation marks omitted)). Indeed, when a trial court uses a special-verdict form, it generally will not instruct the jury on the law at all, because the jury will not be called upon to apply the law. See Bills v. Aseltine, 52 F.3d 596, 605 (6th Cir.1995) (holding that verdict was general where the jury instructions "discussed legal matters in detail"); Portage II, supra, 899 F.2d at 1521. In other words, when rendering a special verdict, the jury only finds specific facts. BLACK'S LAW DICTIONARY 1697 (9th ed. 2009) (defining "special verdict" as "[a] verdict in which the jury makes findings only on factual issues submitted to them by the judge" (emphasis added)).
But here, the jury did much more. Not only did the jury determine ultimate liability, it explicitly resolved several mixed legal and factual issues along the way, including negligence, proximate cause, and assumption of the risk. Cf. Jarvis v. Ford Motor Co., 283 F.3d 33, 56 (2d Cir.2002) (holding that Federal Rule 49(a), governing special verdicts, does not apply when "the jury is required to make determinations not only of issues of fact but of
Accordingly, because the verdict was not special, it was either a standard general verdict or a Rule 49(b) general verdict with interrogatories. To preserve an objection to an alleged inconsistency in either of these types, a party must raise the argument before the jury is discharged. Here, appellants failed to do so. Accordingly, they waived their objection to any inconsistency in the verdict. See, e.g., Underwood, supra, 665 A.2d at 645; Pinkney, supra, 970 A.2d at 868.
The appellants next argue that the trial court erred by permitting Wheeler's expert witnesses to testify that there was a causal link between her Rathke's cleft cyst and her gastroparesis. They assert that Wheeler failed to demonstrate that such a causal relationship is generally accepted in the medical scientific community.
In general, "[t]he trial court has broad discretion to admit or exclude expert testimony." Russell v. United States, 17 A.3d 581, 585 (D.C.2011). But this discretion is not unlimited. Before permitting expert testimony, the trial court must determine that the proffered testimony meets three threshold requirements:
Id. at 586 (quoting Dyas v. United States, 376 A.2d 827, 832 (D.C.1977)) (original emphasis omitted) (internal quotation marks omitted). Here, appellants acknowledge that Wheeler's experts satisfied the first two requirements. They argue only that the experts' testimony failed to meet the third requirement: that the "state of the pertinent art or scientific knowledge" permits the expert to state "a reasonable opinion." Specifically, they claim that "Wheeler's experts were required to demonstrate that the medical community recognizes and supports their conclusion that there is a causal link between a Rathke's cleft cyst and gastroparesis or hormonal insufficiency and gastroparesis."
This argument misstates our admissibility standard. The third Dyas requirement focuses not on "`the acceptance of a particular ... conclusion derived from [the] methodology,'" but rather on "the acceptance of the methodology itself." Minor v. United States, 57 A.3d 406, 420-21 (D.C.2012) (quoting United States v. Jenkins, 887 A.2d 1013, 1022 (D.C.2005)). In other words, "satisfaction of the third Dyas criterion begins — and ends — with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology." Burgess v. United States, 953 A.2d 1055, 1063 n. 12 (D.C.2008) (quoting
Here, the appellants challenge Wheeler's experts' "conclusion[s]," not their methodology. This challenge fails, because it "focuse[s] on the wrong question." Minor, supra, 57 A.3d at 420. At trial, Wheeler's experts testified that they based their conclusions on case studies and medical literature, which listed endocrine conditions like hypothyroidism as a cause of gastroparesis.
Next, the appellants argue that the trial court should have ordered a new trial based on certain comments Wheeler's counsel made during closing arguments. Specifically, they point to counsel's statements regarding the applicable standard of care, which they characterize as an improper send-a-message argument:
This court will reverse on the basis of improper comments by counsel only when it is likely that the comments left "`the jurors with wrong or erroneous impressions, which were likely to mislead, improperly influence, or prejudice them to the disadvantage of the [defendant].'" Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 629 (D.C.1986) (quoting Simpson v. Stein, 52 App.D.C. 137, 139, 284 F. 731, 733 (1922)). Because it has the advantage of observing the arguments as they occurred, the trial court is in a better position than this court to determine whether counsel's statements were prejudicial. Scott v. Crestar Fin. Corp., 928 A.2d 680, 690 (D.C.2007). Accordingly, we afford the trial court's conclusions on that count broad deference, and will sustain its ruling so long as it is "rational." Id.
Here, the trial court concluded that counsel's statements "related to the determination the jury was being asked to make regarding the standard of care," and found "no impropriety in the closing argument."
Finally, the appellants argue that the verdict was against the weight of the evidence. Although their argument is multi-faceted,
In general, we do not require plaintiffs to prove their damages "`precisely'" or "`with mathematical certainty.'" District of Columbia v. Howell, 607 A.2d 501, 506 (D.C.1992) (quoting Garcia v. Llerena, 599 A.2d 1138, 1142 (D.C.1991)). Nevertheless, plaintiffs must provide "`some reasonable basis upon which to estimate damages.'" Id. The jury may not award damages based solely on speculation. Zoerb v. Barton Protective Servs., 851 A.2d 465, 470 (D.C.2004). Specifically in the context of future-medical-expenses awards, we have held that where there is "no basis upon which the jury could have reasonably calculated or inferred the cost of [the plaintiff's] future medical expenses," the trial court may not "allow the jury to speculate in this area of damages." Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C.1982).
Here, Wheeler's damages expert, economist Dr. Richard Lurito, testified that a lump-sum payment of $780,550 would fully compensate Wheeler for her future medical costs. He reached this figure by looking at historical trends, projected treatment costs, and estimated inflation in the general economy. He testified that he used a 3.75% after-tax discount rate, which he described as "reasonable and conservative." He adopted this rate based on current market conditions, accounting for current returns on short-and long-term government bonds, and adjusting for relatively low present interest rates. Then, during closing arguments, Wheeler's counsel urged the jury to award Wheeler $780,550 — the full amount Dr. Lurito recommended. But the jury was ultimately more generous, rounding Dr. Lurito's figure up and awarding Wheeler $800,000 for future medical expenses — a sum $19,450 in excess of the amount Dr. Lurito indicated was necessary.
Wheeler points us to no record evidence upon which the jury could have reasonably awarded this additional $19,450, nor can we discern any. Wheeler argues that the jury could have inferred that a larger sum would be necessary based on Dr. Lurito's
The jury is not permitted to award damages based on such speculation. See Romer, supra, 449 A.2d at 1100. Because the award of an additional $19,450 was not supported by the evidence, the trial court should have granted a remittitur in that amount. See Duff v. Werner Enters., Inc., 489 F.3d 727, 730-31 (5th Cir.2007) (ordering trial court to grant remittitur where future-medical-costs award exceeded "the `maximum amount calculable from the evidence'" (quoting Carlton v. H.C. Price Co., 640 F.2d 573, 578 (5th Cir.1981))). Accordingly, we remand with instructions for the trial court to amend its order, reducing the future-medical-expenses award by $19,450 to accord with the evidence.
So ordered.
Super. Ct. Civ. R. 49.
Appellants could have avoided any potential confusion on this point by simply phrasing the verdict form to ask only whether Wheeler had been negligent by failing to follow Dr. Shafrir's instructions (as opposed to contributorily negligent), and whether her negligence was a proximate cause of her injuries. Such phrasing would have tracked the language of the applicable Standardized Instructions. See Standardized Civil Jury Instructions for the District of Columbia, No. 5-15 (2013 rev. ed.) ("The defendant alleges that the plaintiff was negligent. The defendant is not liable for the plaintiff's injuries if the plaintiff's own negligence is a proximate cause of [his] [her] injuries.").