Willie M. Folks v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-688
WILLIE M. FOLKS, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-3033-12)
(Hon. Natalia M. Combs Greene, Trial Judge)
(Argued March 6, 2014 Decided June 26, 2014)
Keith W. Watters for appellant.
John W. Donovan, Assistant Attorney General for the District of Columbia,
for appellee. Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Gregory M. Cumming, Assistant Attorney General, were on the brief for
appellee.
Before WASHINGTON, Chief Judge, MCLEESE, Associate Judge, and KING,
Senior Judge.
MCLEESE, Associate Judge: Appellant Willie M. Folks sued the District of
Columbia, alleging that he was injured by the negligent conduct of police officers
who arrested him. The trial court granted summary judgment to the District, and
Mr. Folks seeks review of that ruling. We reverse.
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I.
According to the amended complaint, officers of the Metropolitan Police
Department arrested Mr. Folks, handcuffed him, and negligently placed him in the
back of a police cruiser without using a seat belt or other safety restraint. The
officer driving the cruiser allegedly hit the brakes abruptly and negligently, causing
Mr. Folks to be thrown into the cruiser‟s safety screen. Mr. Folks allegedly
suffered serious head, neck, and back injuries as a result.1 He subsequently sought
medical treatment from three physicians: Doctors Salter, Batipps, and Margulies.
After the close of discovery, the District moved for summary judgment.
Among other things, the District argued that Mr. Folks had failed to produce
adequate expert evidence to support his claim that his injuries were caused by the
incident at issue rather than a prior work-related incident during which he had
sustained back injuries.
In response, Mr. Folks provided an affidavit stating that the police officers‟
conduct caused Mr. Folks‟s head and body to hit the cruiser‟s safety screen, and
1
Although Mr. Folks raised other theories of liability, the parties agree that
only Mr. Folks‟s negligence claim remains at issue.
3
that Mr. Folks experienced “immediate headache, neck pain and increased low[er]
back pain.” Mr. Folks also argued that medical records from his treating
physicians supported the conclusion that the incident at issue caused Mr. Folks‟s
injuries. Mr. Folks acknowledged that he might need an expert to “distinguish
between any preexisting and new injuries.”
The trial court granted summary judgment. The trial court noted that Mr.
Folks had failed to designate an expert to address the issue of causation and had
failed to present sworn testimony of his own on the issue of causation. The trial
court further reasoned that although the medical records relied upon by Mr. Folks
“provide „impressions‟ and summaries of tests p[er]formed and treatment
prescribed,” they were unsworn and did not constitute evidence that the police
officers‟ conduct caused or exacerbated Mr. Folks‟s injuries. Finally, the trial
court stated that the issue of causation was complex because of Mr. Folks‟s
preexisting back injury. The trial court concluded that Mr. Folks failed to provide
sufficient evidence of injury and causation to create a genuine issue of material
fact.
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II.
We review de novo orders granting summary judgment. Medhin v. Hailu,
26 A.3d 307, 310 (D.C. 2011). “[W]e independently analyze the record in the light
most favorable to the non-moving party, drawing all reasonable inferences from
the evidence in the non-moving party‟s favor.” Id. We will uphold the grant of
summary judgment if the record shows that “there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Id. (internal quotation marks omitted). The plaintiff in a negligence action
must establish among other things that the defendant‟s negligence caused injury to
the plaintiff. See, e.g., Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793
(D.C. 2011). We conclude that Mr. Folks provided sufficient evidence of injury
and causation to survive summary judgment.
A.
According to his affidavit, Mr. Folks had an immediate headache, neck pain,
and increased back pain after he was thrown into the cruiser‟s safety screen.
Moreover, the medical records from Mr. Folks‟s treating physicians provided
further evidence of causation. Dr. Salter diagnosed Mr. Folks as suffering from
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“1. Acute cervical spine strain, moderate. 2. Acute lumbosacral spine strain,
moderate. 3. Posttraumatic headaches.” Dr. Salter also opined that those
conditions were “[s]econdary to the injuries suffered” during the incident at issue,
and were a “direct result of the history” provided by Mr. Folks, which included a
description of the incident. Although Dr. Salter‟s records do not explain the term
“secondary,” we must view the evidence in the light most favorable to Mr. Folks.
Medhin, 26 A.3d at 310. So viewed, Dr. Salter‟s records provide significant
support for the claim that Mr. Folks suffered neck, back, and head injuries as result
of the police officers‟ conduct. See generally, e.g., Novak v. Lee, 600 N.E.2d 260,
264 (Ohio Ct. App. 1991) (medical testimony that injury was “secondary” to car
accident meant that injuries were “immediately derived from” car accident) (citing
Webster’s 9th New Collegiate Dictionary 1060 (1990)), abrogated on other
grounds by Pruszynski v. Reeves, 881 N.E.2d 1230 (Ohio 2008).
Medical records from the other treating physicians also supported Mr.
Folks‟s claim. Dr. Batipps‟s consultation report opines that Mr. Folks was
suffering from posttraumatic cervical strain, headaches, and lumbar strain, due to
the incident at issue. Dr. Batipps‟s report also indicates that the incident
aggravated Mr. Folks‟s prior lumbosacral pain. Finally, Dr. Margulies‟s letter
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expressed the “impression” that Mr. Folks was suffering “post traumatic migraine
and cervical strain as a result of” the incident at issue.
Taken together, this information created a reasonable dispute of material fact
on the question whether the police officers‟ alleged conduct caused injury to Mr.
Folks. The evidence that Mr. Folks‟s neck pain and headaches arose immediately
after the incident by itself created a jury question on the issue of causation. See,
e.g., International Sec. Corp. of Va. v. McQueen, 497 A.2d 1076, 1080 (D.C. 1985)
(“In the absence of complicated medical questions, the plaintiff‟s own testimony,
without need for supporting expert medical testimony, will suffice to prove
causation of injury. No complicated medical question arises when . . . the injury
develops coincidentally with, or within a reasonable time after, the negligent act
. . . .”) (citations and internal quotation marks omitted). Mr. Folks‟s claim was
further supported by medical records from three different treating physicians,
which reflected consistent diagnoses and attributed Mr. Folks‟s injuries to the
incident at issue. Cf., e.g., Safeway Stores, Inc. v. Buckmon, 652 A.2d 597, 606-07
(D.C. 1994) (plaintiff provided sufficient evidence on issue of causation by
introducing medical records describing diagnosis of lumbosacral strain and
subsequent recurrence, as well as testimony of treating physician).
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B.
We are not persuaded by the District‟s arguments to the contrary. It is true,
as the District points out, that Mr. Folks had a serious preexisting back condition.
In order to prove causation with respect to any back injury, the District argues, Mr.
Folks therefore would have to present testimony from a designated expert witness
differentiating between Mr. Folks‟s preexisting condition and his condition after
the incident at issue. See, e.g., Williams v. Patterson, 681 A.2d 1147, 1150-51
(D.C. 1996) (“In cases presenting medically complicated questions due to multiple
and/or preexisting causes, or questions as to the permanence of an injury, we have
held that expert testimony is required on the issue of causation.”) (internal
quotation marks and brackets omitted). Even if the District were correct, however,
this point would have at most provided a basis for precluding Mr. Folks from
relying on the injury to his back to establish his case. Whatever complexities Mr.
Folks‟s preexisting back condition created, those complexities provide no basis for
precluding Mr. Folks from relying on his alleged head and neck injuries, which did
not involve a preexisting condition.
The District responds that Mr. Folks forfeited this point, by failing to bring it
to the trial court‟s attention when opposing summary judgment. We conclude
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otherwise. In opposing summary judgment, Mr. Folks noted that he was alleging
three different injuries: head, neck, and back. Mr. Folks also pointed out the limits
of the District‟s argument that a designated expert witness would be necessary to
address issues raised by preexisting injuries, stating that: “an expert may be
needed to distinguish between any preexisting and new injuries.” These statements
sufficed to bring Mr. Folks‟s present point to the trial court‟s attention. See
generally, e.g., Dada v. Children’s Nat’l Med. Ctr., 715 A.2d 904, 907 (D.C. 1998)
(appellant preserved argument for purposes of appeal by bringing matter
“sufficiently to the trial court‟s attention”).
More fundamentally, we do not agree that Mr. Folks was required to
designate an expert witness pursuant to Superior Court Civil Procedure Rule
26 (b)(4), which governs discovery with respect to expert witnesses whose
opinions are “acquired or developed in anticipation of litigation or for trial.” As
the District acknowledges, in some circumstances a treating physician can testify at
trial without being formally designated as an expert witness subject to
Rule 26 (b)(4)‟s discovery requirements. See, e.g., Adkins v. Morton, 494 A.2d
652, 657 (D.C. 1985) (physician who treats patient and “obtains and develops his
information and opinions in the course of his treatment” should be treated as
ordinary witness rather than as expert witness subject to special discovery
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requirements of Rule 26 (b)(4)). The treating physicians Mr. Folks relies upon fit
comfortably within this principle.
The District speculates, however, that the treating physicians would not have
been able to testify at trial about causation without reviewing additional material in
order to prepare for their testimony and to formulate additional opinions. Thus, the
District contends, Mr. Folks was required to designate one or more of the treating
physicians as an expert witness. On the current record, however, we see no basis
for the District‟s speculation. Viewed in the light most favorable to Mr. Folks, the
medical records suggest that the treating physicians would be able to testify at trial
about their opinions on the issue of causation based on the information that they
had obtained in their treatment of Mr. Folks. Cf. Safeway Stores, 652 A.2d at 606
(rejecting argument that treating physician‟s trial testimony “must have been
developed specifically for purposes of litigation”).2 Although the District suggests
that treating physicians should not be permitted to testify at trial about causation
unless they have been formally designated as experts and subject to the special
2
On remand, the District will be free to file a motion seeking disclosure of
any opinions from any of the treating physicians that would be properly subject to
the pretrial-disclosure provisions of Rule 26 (b). In that context, Mr. Folks would
bear the burden of establishing that the opinions of his treating physicians were
exempt from such disclosure. See Gubbins v. Hurson, 885 A.2d 269, 278 (D.C.
2005).
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discovery rules applicable to experts, this court has already concluded otherwise.
Safeway Stores, 652 A.2d at 606 (where medical records of treating physician
indicated physician‟s opinion as to causation, counsel for defendant “could not
claim surprise” because records “should have alerted counsel to the need for
pretrial deposition of [physician]”).
The District also suggests that the medical records were insufficient because
they did not “state[] a conclusion within the legal and verbal framework of
proximate causation.” Williams, 681 A.2d at 1151. In particular, the District
emphasizes that all three physicians used the word “impression” in describing their
diagnoses and Mr. Folks‟s condition. As the District acknowledges, however, “an
expert need not say the magical phrase of „reasonable medical certainty[.]‟”
Carmichael v. Carmichael, 597 A.2d 1326, 1330 (D.C. 1991). The medical reports
must be considered as a whole and viewed in the light most favorable to Mr. Folks.
See, e.g., Ray v. Queen, 747 A.2d 1137, 1144 (D.C. 2000). So understood, we
view the medical reports as sufficient to raise a jury question on the issue of
causation. Although the forms used by Dr. Salter and Dr. Batipps included the
word “impression” as the heading for the section containing the doctor‟s
conclusions, both doctors stated clear and unqualified conclusions as to Mr.
Folks‟s condition and the causes of that condition. Dr. Margulies‟s report is
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worded more equivocally, but it still provides some support for the conclusions
reflected in the reports of the two other doctors. Taken together, the records, as
well as Mr. Folks‟s affidavit, suffice to raise a jury question on the general issue of
causation. See generally, e.g., Thompson v. Shoe World, 569 A.2d 187, 190-91
(D.C. 1990) (“Questions of causation are ordinarily issues of fact for the jury.
Only if there were absolutely no facts or circumstances from which a jury could
reasonably have found . . . proximate cause . . . would the question have been one
for the court. But if . . . the facts are such as to cause reasonable men to differ,
then the question is clearly one for the determination of the jury.”) (citation and
internal quotation marks omitted).
The closest question is whether Mr. Folks presented sufficient information to
avoid partial summary judgment with respect to the injury to his back. On this
issue, the District relies on our decisions in Williams and Carmichael. We view
both cases as distinguishable. In Williams, the “closest thing to a formal opinion in
the written reports” was a statement that “[i]t is difficult to say if this [the accident]
is exactly the cause of her injury, but it certainly is possible.” 681 A.2d at 1151
(brackets and emphasis in Williams). In Carmichael, the physician‟s testimony
about causation was expressed in terms of a common association between the
alleged incident and the patient‟s symptoms. 597 A.2d at 1329-30. In the present
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case, however, the medical records from Dr. Salter and Dr. Batipps clearly express
the conclusion that Mr. Folks‟s back symptoms were exacerbated by the incident at
issue. More importantly, Williams and Carmichael both involve post-trial
challenges to the sufficiency of the evidence to support a verdict. Williams, 681
A.2d at 1150-51; Carmichael, 597 A.2d at 1327. In that context, the verdict must
be set aside if the plaintiff failed to introduce adequate evidence indicating the
extent to which the plaintiff‟s injuries were attributable to the incident at issue as
opposed to a preexisting condition. Williams, 681 A.2d at 1150-51. The same is
not true at the summary-judgment stage. See, e.g., Cormier v. District of Columbia
Water & Sewer Auth., 959 A.2d 658, 667 (D.C. 2008) (“In the District of
Columbia (as elsewhere), in order to survive a motion for summary judgment
based on the asserted insufficiency of proof of damages, a plaintiff need not, at this
stage, show the amount of damages; he is obligated only to show that they exist
and are not entirely speculative.”) (internal quotation marks and brackets omitted).
Finally, the District argues that this court could affirm the grant of summary
judgment on the alternative ground that Mr. Folks failed to provide sufficient
evidence that the police officers acted negligently. The trial court did not
definitively resolve that issue. We exercise our discretion to leave that issue for
resolution by the trial court in the first instance. See, e.g., Crawford v. Katz, 32
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A.3d 418, 436 (D.C. 2011); Cosio v. District of Columbia, 940 A.2d 1009, 1014
(D.C. 2008). We therefore reverse the order granting summary judgment and
remand for further proceedings.
Reversed.