DocketNumber: Nos. 05-CV-38, 05-CV-39
Citation Numbers: 915 A.2d 370
Judges: Reid, Thompson, Washington
Filed Date: 1/25/2007
Status: Precedential
Modified Date: 1/12/2023
Marshall Coyne, the owner and president of closely-held Madison Management Corporation (“Madison”), was the insured under a $1 million accidental death policy that Madison purchased from AIG Life Insurance Company (“AIG”) through Madison’s broker, Aon Risk Services (“Aon”). On August 24, 1999, Mr. Coyne, who was 88 years old at the time, fell while walking across a street and broke his hip. On March 16, 2000, 205 days after his fall, Mr. Coyne died. Madison filed an accidental death claim with AIG.
AIG investigated the cause of Mr. Coyne’s death but, on February 26, 2001, ultimately denied Madison’s claim on the ground that, under the accidental death policy, benefits could be paid only if the death resulting from an accident occurred within 180 days after the accident, ie., within a 180-day “incurral period.” Thereafter, Madison and the Coyne estate (which hereafter we refer to together as “Madison”) sued, claiming that Aon, whose insurance brokerage business entailed procuring appropriate insurance policies on
Aon argues that it was prejudiced by a number of evidentiary rulings by the trial court and by certain comments that the trial court made to or in the presence of the jury. It asks this court to vacate the verdict and judgment, and to order that it be afforded a new trial. Madison argues that the trial court erred in denying its request for prejudgment interest. We deal with each of the arguments in turn and, for the reasons set out below, affirm.
I. The Court’s Evidentiary Rulings and Instructions
Aon argues that Dr. James Lewis should not have been permitted to testify for Madison and that Aon was unfairly prejudiced by Dr. Lewis’s testimony, by statements that the trial court made about Dr. Lewis, and by the trial court’s ruling precluding Aon from reading into evidence certain deposition testimony by an AIG department head. The pertinent factual background is as follows.
Dr. Lewis is an osteopath/forensic pathologist whom AIG retained to review Mr. Coyne’s medical records and to advise AIG as to whether Mr. Coyne’s death was caused by his fall and hip injury. In the course of his work, Dr. Lewis consulted with Dr. R. Bruce Heppenstall, an orthopedic surgeon. Dr. Lewis issued a report to AIG stating that the cause of Mr. Coyne’s death was “complication of hip fracture” and that the manner of death was “accidental.”
AIG also consulted with its attorneys, who advised it that the Employee Retirement Income Security Act of 1974 (“ERISA”) applied to Madison’s employee accidental death plan; that, under ERISA, AIG was required to adhere to the plan documents; and that because Mr. Coyne survived 25 days longer than the policy’s 180-day incurral period, his death was not an eligible loss and AIG therefore should deny Madison’s claim. In a letter to Madison dated February 26, 2001, AIG did deny the claim on that basis.
During the pre-trial discovery period, when Madison disclosed its witness list to counsel for Aon, it included Drs. Lewis and Heppenstall (and counsel for Aon subsequently deposed them). After Madison again listed them (as “fact witnesses who happen to be experts”) in its portion of the parties’ Joint Pretrial Statement, Aon filed a motion in limine seeking to preclude the two doctors from testifying. Aon argued that their testimony would be irrelevant because AIG did not rely on their opinions in denying Madison’s claim. Aon also argued that permitting the two doctors to testify would be prejudicial to Aon because their testimony would leave the jury with the erroneous impression that AIG agreed with the two doctors’ reports as to the cause of Mr. Coyne’s death and considered the death to be accidental (whereas in fact, Aon contends, upon resolving Madison’s claim on the basis that Mr. Coyne’s death occurred outside the policy incuri’al period, AIG did not complete its investigation into the cause of Mr. Coyne’s death and never decided the issue of causation). Aon argued in addition that the doctors’ testimony would amount to expert testimony that should be precluded because the doctors’ opinions as to the cause of Mr. Coyne’s
The court denied Aon’s motion in li-mine, and Madison called Dr. Lewis to testify at trial. As he was about to testify, the court made the following remarks to the jury: “Just so the jury understands, Dr. Lewis is going to be permitted to testify about his review of medical records in this case and to testify also about whatever opinions he reached in making his report to the insurance company, but he’s not been hired as an expert witness by one side or the other.” Dr. Lewis testified about the findings he made for AIG. He also testified that AIG had retained him to render opinions on cause of death “hundreds of times” and had never rejected any of his opinions. Dr. Heppenstall did not testify, but, during re-direct examination, Dr. Lewis read a portion of Dr. Hep-penstall’s deposition testimony into the record including Dr. Heppenstall’s statement that “it appears that the fall that this patient experienced and the injury to his hip resulted in gradual deterioration and eventual demise.”
Aon sought to read into the record certain deposition testimony by Myra Zimmerman, the manager of AIG’s Accidental Death & Dismemberment department, to show that AIG did not rely on Dr. Lewis’s and Dr. Heppenstall’s opinions. Ms. Zimmerman testified in her deposition that she “was not comfortable that the fracture played a causative role in [Mr. Coyne’s] death,” that from her “review of the claim, [she] would have gotten more medical opinions ... [f]rom a cardiologist or geriatrics specialist,” and that AIG could have denied the Madison claim on medical causation grounds notwithstanding the opinions of Drs. Lewis and Heppenstall. The court precluded Aon from reading the testimony into evidence, observing that Ms. Zimmerman testified as to her hindsight views, and reasoning that her testimony was irrelevant in any event because, under the court’s rulings, Madison was not required to prove that AIG would have paid the Madison claim but for the 180-day incurral period.
II. The Standard of Review
“The evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court,” to which we owe a “great degree of deference,” Jung v. George Washington Univ., 875 A.2d 95, 109 (D.C.2005) (citation omitted), because the trial judge is in the “best position ... to weigh probative value against potential prejudice.” Irick v. United States, 565 A.2d 26, 39-40 (D.C.1989). We do not ask what judgment would have been most wise under the circumstances, but instead limit our inquiry to whether the trial court’s rulings were fair and rational. Taylor v. United States, 661 A.2d 636, 643 (D.C.1995) (internal citations and quotations omitted). We will overturn the trial court’s rulings only upon a showing of “grave abuse.” Jung, 875 A.2d at 109.
III. Analysis of Aon’s Arguments
The trial court ruled that, to prevail, Madison would need to prove not only negligence or breach by Aon, but also that Mr. Coyne’s accident and resulting hip fracture were the primary or predominant cause of his death (such that coverage would have been available under the accidental death policy but for the 180-day incurral period). In ruling on Aon’s motion in limine to preclude testimony by Drs. Lewis and Heppenstall, the trial court explained that it was “persuaded that the testimony of Dr. Lewis and the testimony of Dr. Heppenstall was evidence that was probative of the causation issue, without regard to its relationship to the investigation that AIG conducted.” The court
Aon next complains that “Dr. Lewis voiced opinions that were nowhere to be found in [Dr. Heppenstall’s] report or in [Dr. Lewis’s] own report for AIG.”
Citing Gregory v. Greater Southeast Comm. Hosp. Corp., 697 A.2d 1221 (D.C.1997) (holding that the trial court erred when it did not direct a verdict in defendant’s favor when the plaintiffs medical expert admitted that his opinion on cause of death was made without the benefit of the decedent’s complete medical records), Aon further argued in its brief that the jury should not have been permitted to hear the expert opinions of Drs. Lewis and Heppenstall because the two doctors failed to review Mr. Coyne’s complete medical records and did not consult with his cardiologist. The analogy to Gregory is weak, because, unlike the expert witness in Gregory, Dr. Lewis stated that he believed he had all the records he needed to opine with medical certainty.
We also reject Aon’s argument that it was unfairly prejudiced by Dr. Lewis’ testimony and by the trial court’s comments about Dr. Lewis. Aon was not prejudiced procedurally because, as the trial court explained, whether or not Dr. Lewis testified as an expert and despite his non-inclusion in Madison’s Rule 26(b)(4) statement, Aon had been fully on notice for months that Madison intended to call Dr. Lewis, had copies of his and Dr. Heppenstall’s reports, deposed both doctors, and knew what Dr. Lewis would say at trial. As to the potential prejudice to Aon from the court’s comment that Dr. Lewis had “not been hired as an expert witness by one side or the other” — which Aon argues amounted to the court’s vouching for Dr. Lewis’ credibility as an independent expert — we think that the statement by Madison’s counsel during closing argument was sufficient to counteract any unfair prejudicial effect. Referring to Dr. Lewis, Madison’s counsel told the jury, “[w]e paid for his travel expenses to come down here and we paid for his time on the stand. I just want to make sure you understand that.”
Although Aon complains of the prejudicial effect of Dr. Lewis’s testimony that AIG had sought his medical opinions “hundreds of times” and never rejected his opinions, we think the real prejudice to Aon was from the succinct and graphic testimony by Dr. Lewis (incorporating the opinion of Dr. Heppenstall), supported by the testimony of Madison’s other medical expert, Dr. Conant — which testimony, it appears to us, was not sufficiently counterbalanced by the testimony of Aon’s expert, cardiologist Dr. Nicholas Fortuin. Dr. Lewis provided an explanation that connected the injury from a broken hip to the condition known as “failure to thrive” (a condition listed on Mr. Coyne’s death certificate as a “significant contributing condition”).
As the trial court implied, an imbalance in the evidence existed in part because Aon “never made- any request of me to— for leave to name another expert so that the numbers would be even.”
Aon did seek to counterbalance the opinions of Drs. Lewis and Heppenstall with testimony by AIG department manager Zimmerman, testimony that Aon argued would establish that AIG did not view the medical inquiry as complete and would have sought further medical opinions if it had not relied on the incurral period to deny Madison’s claim. Aon feared that, in the absence of Ms. Zimmerman’s testimony, Dr. Lewis’s testimony would leave the jury with the impression that AIG would have paid Madison’s claim but for the 180-day incurral period, and would lead the jury to rule in Madison’s favor on that basis alone. We agree with the trial judge, however, that hindsight testimony from Ms. Zimmerman about what AIG might have done differently was not really relevant.
In sum, we are satisfied that the trial court did not abuse its discretion in making the evidentiary rulings of which Aon complains.
IV. Prejudgment Interest
In filing its post-verdict motion for pre-judgment interest, Madison relied on D.C.Code § 15-108. Section 15-108 provides, in pertinent part, that “[i]n an action ... to recover a liquidated debt on which interest is payable by contract or by law or usage the judgment for the plaintiff shall include interest on the principal debt from the time when it was due and payable, at the rate fixed by the contract, if any, until paid.” Thus, one requirement that must be met to trigger the statutory mandate for an award of prejudgment interest under § 15-108 is that the action be one to recover a “liquidated debt.”
“A liquidated debt is one which at the time it arose ... was an easily ascertainable sum certain.” District of Columbia v. Pierce Assoc., Inc., 527 A.2d 306, 311 (D.C.1987) (citation and internal quotations omitted). Madison argues that a liquidated debt was involved here because its claim was for the face amount of the accidental death policy, $1 million. From the outset, however, one of Aon’s defenses was that “[h]ad Aon insisted on [purchasing a policy with] a 365-day incurral period, as plaintiffs assert should have happened, it is virtually certain that AIG would have sought to reduce its exposure by reducing the policy limits as they applied to Mr. Coyne.” Aon also presented trial testimony to that effect by an insurance brokerage expert (and Madison’s counsel argued
So ordered.
. Aon pursued this point on cross-examination, asking Dr. Lewis whether it was “fair to say” that his report to AIG contained none of the analysis that he presented during his testimony on direct examination and pointing out that the report to AIG did not contain “any of the detail other than the conclusion that you have given us here today."
. Rule 26(b)(4) provides in pertinent part:
(4) Trial preparations: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
.We agree with Aon, and with the conclusion that the trial court eventually reached, that Dr. Lewis did testify as an expert. The court
. Dr. Lewis testified repeatedly to the effect that, "I don’t think we needed any additional records.”
. We note that, during the cross-examination, Aon’s counsel did not confront Dr. Lewis with Dr. Heppenstall's agreement, during his deposition, that a cardiologist would be “the more appropriate doctor to comment on” whether Mr. Coyne’s pre-fall heart condition and other conditions contributed to his death.
. Dr. Lewis said:
"I believe [Mr. Coyne] showed almost the exact pathology of a person who fractures their hip and once you fracture your hip, the bone marrow is exposed and some of the bone marrow and the substances in the bone marrow can go into your bloodstream. That's called fatty emboli and when that goes into your bloodstream it goes to three places, your lung, so you develop a pneumonia type situation. It goes to your kidneys, so your kidneys start to kind of fail, but most important it goes to your brain. When it goes to your brain, you start to have things like confusion. You start to not be able to — lethargy, not to be able to take care for yourself, inanition, the whole process as seen in this case. It happens so many times before I have observed. So that’s what I think happened to Mr. Coyne.”
. The court also commented that "it is unimaginable to me that I would have denied such a request had it been made.” We, too, note that even though Aon argues strenuously that the opinion of a geriatrics expert (which opinion Aon presumes would have supported its position) might have been obtained had AIG not denied Madison’s claim on the basis of the 180-day incurral period, Aon did not seek to add a geriatrics expert of its own to its witness list.
. The trial court characterized the testimony by Ms. Zimmerman that Aon sought to introduce as follows:
"Three years later, she says now looking back, reviewing the file in preparation for my deposition, I think we should have ... denied the claim on every ground available to us.... [T]here is no evidence that she directed the claims representative to obtain more opinions or to do anything other than the claims representative recommended, which was that the claim be denied on the one ground alone, which was the 180 incur-ral period.... But now what she is saying is, ... If I got the legal opinion now, three years later in a case like this, what I would do is, I would say, okay, great, that's one way to deny this claim. Now let’s look for a second way. And that’s what she is saying. But she clearly didn’t do that three years ago, because if she had, we would know about it.”
Aon complains that, by contrast, Madison was permitted to read into evidence a portion of the deposition testimony by an AIG underwriter, Lloyd Young, who responded to questions about whether AIG would have agreed .to revise Mr. Coyne’s accidental death policy to include a 365-day incurral period if it had been asked by Aon to do so when the policy was up for renewal. Mr. Lloyd’s testimony, too, arguably was speculative (though partially supported by testimony that AIG did in fact issue policies with 365-day incurral periods). It appears, however, that Aon did not seek to exclude Mr. Lloyd's testimony on that basis.
.The court instructed the jury that
"[t]o prove their damages under either or both of these two causes of action, the plaintiffs must prove by a preponderance of the evidence that they would have been legally entitled to benefits under Madison's accidental death insurance policy were it not for Aon’s breach of contract and/or professional negligence.... To prove that they would have been legally entitled to benefits under the insurance policy, the plaintiffs must prove that the accidental injury suffered by Mr. Coyne was the proximate cause of his death.... Finally, you must understand that the issue before you for decision is not whether AIG would or would not have paid the claim had the policy contained a 365-day incurral period. The plaintiffs must prove that they would have been legally entitled to benefits under the policy, regardless of AIG’s position on the matter ” (emphasis added).
. Madison explicitly does not rely on D.C.Code § 15-109, which leaves a jury or court free to include interest "as an element in the damages awarded, if necessary to fully compensate the plaintiff,” and does not specify a "liquidated debt” requirement.
. Because our resolution of the "liquidated debt” question disposes of the pre-judgment interest issue, we do not reach the issue of whether the type of debt involved in this case is one on which interest was "payable by contract or by law or usage.” D.C.Code § 15-108.