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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.
                                          2

                                          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.
                                        4

                                       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
                                         5

“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
                                            6

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).
                                          7

                                         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
                                             8

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
                                          9

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).
                                        10

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
                                           11

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
                                           12

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
                                         13

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.
