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             DISTRICT OF COLUMBIA COURT OF APPEALS

                         Nos. 13-CV-920 & 13-CV-921

            PROVIDENCE HOSPITAL, INC., APPELLANT/CROSS APPELLEE,

                                         v.

                   JOHN WILLIS, APPELLEE/CROSS-APPELLANT.

                      Appeals from the Superior Court of the
                               District of Columbia
                                 (CAM-8643-11)

                        (Hon. Neal E. Kravitz, Trial Judge)

(Argued October 23, 2014                            Decided November 20, 2014)

      Donald L. DeVries, Jr., with whom Craig S. Brodsky and Erin Christen
Miller were on the brief, for appellant/cross-appellee. Janet A. Forero also entered
an appearance for appellant/cross-appellee.

      Sandra H. Robinson, with whom Jack H. Olender was on the brief, for
appellee/cross appellant.

     D. Lee Rutland filed a Statement in lieu of a brief for defendant William
Brownlee, III, M.D.

     Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and
FARRELL, Senior Judge.

      PER CURIAM: A jury awarded plaintiff/cross-appellant John Willis $650,000

in damages for an injury arising from negligence by nurses employed by
                                           2

defendant/appellant Providence Hospital (the Hospital) when, after a surgery, they

failed to place on his legs sequential compression devices (SCDs) ordered by the

surgeon. The Hospital moved to set aside the verdict, arguing that Willis had not

proven a causal link between the negligence and his injuries, ultimately the below-

knee amputation of both of his legs at another hospital. Willis, in turn, moved for a

new trial on damages asserting that the jury‟s award was inadequate under the

circumstances and was likely influenced by the trial court‟s refusal to give an

instruction on “special susceptibility.”



      The trial judge denied both motions, leading to this appeal and cross-appeal

in which the parties renew their objections to the verdict. We affirm the judgment

essentially for the reasons stated by Judge Kravitz in his comprehensive,

painstaking opinion, which we append hereto. The following discussion, which

assumes familiarity with the judge‟s analysis, supplements it in two respects.



      1. As the trial judge explained, the principal dispute between Willis and the

Hospital at trial1 was whether deep venous thrombosis (DVT) became “well-


      1
       The surgeon who operated on Willis, Dr. William Brownlee, III, was also
named as a defendant, but the jury found no negligence on his part and Willis does
                                                                    (continued…)
                                         3

established” in Willis‟s legs before, or instead after, a second surgery performed to

ameliorate an abscess on his right buttock. If the latter was the case, then expert

testimony supported the jury‟s finding that negligence by nurses in not placing

SCDs on Willis‟s legs after the second surgery, despite instructions from the

surgeon to do so, contributed causally to the below-knee amputation of his legs ten

days later at Prince George‟s Hospital Center. The trial judge, applying the correct

test of causation,2 arrayed the pertinent evidence and concluded that the jury,

“without engaging in impermissible speculation,” had reasonably found that “the

plaintiff‟s DVT did not become well-established until after the second surgery, and

that the application of SCDs beginning on [the date of that surgery,] September 10,

2008, would have prevented the formation of a well-established DVT . . . .”



      On appeal, the Hospital disputes this conclusion but does so, in our view,

chiefly by overstating the plaintiff‟s burden of proof. It contends that the judge



(…continued)
not contest that decision on appeal.
      2
           To establish proximate cause, “the expert need only state an opinion,
based on a reasonable degree of medical certainty, that the defendant‟s negligence
is more likely than anything else to have been the cause (or a cause) of the
plaintiff‟s injuries.” Travers v. District of Columbia, 672 A.2d 566, 573 (D.C.
1996); see also Perkins v. Hansen, 79 A.3d 342, 344 (D.C. 2013).
                                         4

wrongly “shifted the burden of proof on the issue of causation” to the defense (Br.

for Appellant at 16) by not recognizing that “[i]t was incumbent on Mr. Willis to

prove that the DVT had not yet become „well-established‟ by September 10th

when [the surgeon] entered the order for SCDs” (id. at 6; italics added). See id. at

14 (“[N]one of the [plaintiff‟s] experts could establish with reasonable medical

probability that the DVT had not already formed before the order for SCDs was

placed” (italics added)). The Hospital thus argues that Willis had to prove a

negative: It was not enough for him to show that the DVT more likely than not

became well-established in the ten days after the negligence; he also had to

disprove – to rule out – that it did so in the five-day interval between the two

surgeries. But while the Hospital cites unassailable legal principles such as that a

medical expert‟s opinion must be formed “with sufficient certainty so as to make a

medical judgment,” Lasley v. Georgetown Univ., 688 A.2d 1381, 1388 (D.C.

1997), and that more than a temporal relationship – “contemporaneity” – between a

medical procedure and an injury must have existed to prove causation, Derzavis v.

Bepko, 766 A.2d 514, 522 (D.C. 2000), it points to no case law or other authority

requiring Willis to negate a possibility (i.e., that the DVT became established too

early for the ordered prophylaxis to be effective) and show by a preponderance of

the evidence, as he did, that timely placement of the SCDs would have kept the
                                         5

DVT from becoming well-established.3         Requiring Willis to do both, in our

judgment, would amount to increasing his burden of proof to something akin to the

standard in criminal cases. Cf. Chapman v. California, 386 U.S. 18, 24 (1967) (in

criminal case, disproving prejudice “beyond a reasonable doubt” from

constitutional error tantamount to dispelling any “reasonable possibility” of such

prejudice).



      Altogether, then, we agree with Judge Kravitz that, while “[t]his was a very

close case on the issue of causation,” Dr. Hall (Willis‟s chief medical expert)

“never withdrew or even backed away from his opinion that the nurses‟ negligence

proximately caused the plaintiff‟s amputations, and the evidence, although hotly

contested, was sufficient to support his opinion.”4 Willis, required only to meet the


      3
         To state the point in the language of Travers, supra note 2, the Hospital
cites no authority holding that Willis‟s burden to show that negligence “more
likely than anything else” contributed to his injury demanded that he rule out the
“anything else.”

      4
         The Hospital asserts that the following testimony by Dr. Hall undermined
his opinion on causation:

              Q. [on cross-examination:] So we can agree that it‟s not
              likely that SCDs would have retarded the growth of the
              clot once it had started. Is that correct?
                                                                     (continued…)
                                           6

standard of causation stated in Travers, supra note 2, met his burden of proof.



      2. Willis‟s argument, as cross-appellant, that the jury‟s award of $650,000

in damages was inadequate requires discussion mainly of his claim that the judge‟s

refusal to give the “special susceptibility” instruction was error5 and may have



(…continued)

             A. Well, I don‟t know about once it had started,
             but if it was a well-established deep venous
             thrombosis, then I think most people believe that
             SCDs have not much of a role from that point
             forward.

From this the Hospital argues that Dr. Hall held no opinion whether SCDs could be
effective once the DVT process had even “started.” But that reading ignores Hall‟s
testimony as a whole (as summarized by Judge Kravitz), which may be why the
Hospital‟s counsel asked no follow-up question of Hall to remove any ambiguity
on the point.
      5
        Instruction 13.08, Standard Civil Jury Instructions for the District of
Columbia (2014 ed. rev.), states:

             If the plaintiff, because of a prior injury, disability
             or other condition, was more likely to suffer injury
             because of the defendant‟s negligence than a
             normal person would, then the defendant is
             responsible for that injury. A defendant may not
             avoid responsibility for his or her negligent actions
             by showing that the injury would have been less
             serious if it had happened to someone else.
                                          7

caused the jury to minimize (relatively speaking) his damages. Like the trial judge,

we conclude that as the case was actually tried, that instruction had no relevance to

the assessment of damages the jury was called on to make.



      The instruction reflects the “firmly established principle of tort law that a

tortfeasor takes his victim as he finds him,” Bushong v. Park, 837 A.2d 49, 55

(D.C. 2003), so that “[a] negligent actor must bear the risk that his liability will be

increased by reason of the actual physical condition of the other toward whom his

act is negligent.” Gubbins v. Hurson, 987 A.2d 466, 469 (D.C. 2010) (quoting

RESTATEMENT (SECOND) OF TORTS § 461 (1965) (italics deleted)).6 In the present

case, there was conceded evidence that Willis came to the Hospital with pre-

existing medical conditions (or “risk factors”) including diabetics, obesity,

hypertension, and a history of smoking. He thus argues that, without the special

susceptibility instruction, the jury may have unfairly reduced or discounted his

damages to the extent it saw these risk factors – all beyond the Hospital‟s control –

as combining with the negligence to cause the need for the amputations.



      6
        Instruction 13.08 relates to “the issue of (augmented) damages” and also,
as we implied in Gubbins, supra, 987 A.2d at 469-70, to the issue of proximate
causation.
                                          8

       What Willis ignores, however, is that the Hospital tried the case on the

theory that an independent cause, not its alleged negligence, combined with his

prior conditions to necessitate the amputation. It presented evidence through two

medical experts that “sepsis or a syndrome related to infection in his buttock

abscess,” developing only after his release from the Hospital, combined with his

pre-existing debilities (as “a diabetic and former smoker”) to cause a blockage of

arteries, eventual gangrene, and the need for amputation. This progression that

began with wound contamination, those experts maintained, was unrelated to the

DVT and any attendant negligence, and the Hospital thus did not imply, in

questioning of witnesses or closing argument, any mitigating link between the

DVT and Willis‟s pre-existing conditions.



       The jury was free, of course, to reject the Hospital‟s causal theory wholly or

in part and find, as it did, that the DVT and its sequelae were a substantial

contributor to the loss of Willis‟s legs.     But in assessing the damages to be

awarded, the jury would have received no guidance from an instruction designed to

forestall a mitigation (or minimization) argument that was not part of the case

actually tried.
                                          9

      It is true, as Willis argues relatedly, that the jury‟s award of $50,000 for past

medical expenses – chiefly associated with the amputation of his legs – seems

quite small when the actual medical expenses he incurred were some $275,000.

But, as Judge Kravitz pointed out, the issue of causation was “hotly contested” in

the manner we have described, with the Hospital contending that the amputation

stemmed causally from something unrelated to the deep venous thrombosis and

antecedent negligence. Thus the jury, while finding that the negligence was indeed

a contributing cause, may have been unwilling to attribute more than a modest

portion of the amputation-linked expenses to something it did not believe had

predominantly necessitated the amputation. Any skepticism this court may have

about that conclusion is beside the point. Our standard of review, see Posner v.

Holmes, 739 A.2d 358, 360-61 (D.C. 1999), and the substantive impediments the

law erects to overturning a jury‟s award of damages as inadequate, id. at 361;

Prins-Stairs v. Anden Grp., 655 A.2d 842, 843 (D.C. 1995), make it impossible for

us to substitute our judgment for the jury‟s on any component of the damages it

awarded.



                                              Affirmed.
                                 APPENDIX
                                                       Filed
                                                       D.C. Superior Court
                                                       07/22/2013 17:01PM
                                                       Clerk of the Court


            SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
                       CIVIL DIVISION

JOHN WILLIS,                         )     Case No. 11 CA 8643
     Plaintiff                       )
                                     )
      v.                             )     Calendar 13 - Judge Kravitz
                                     )
WILLIAM JAMES BROWNLEE,
                     et al., )
     Defendants              )

                      ORDER ON POST- TRIAL MOTIONS

      This medical malpractice case was tried to a nine-person Superior Court

jury beginning on April 15, 2013. On May 1, 2013, after nine days of trial and

approximately five hours of deliberations over two days, the jury returned a

unanimous verdict finding (1) that defendant William Brownlee III, the surgeon

who performed two surgical procedures on the plaintiff at Providence Hospital in

September 2008, did not breach the standard of care by failing to prescribe

Heparin and sequential compression devices (SCDs) at the time of the plaintiff‟s

first surgery on September 5, 2008 or by failing to prescribe Heparin at the time
                                        11

of the plaintiff‟s second surgery on September 10, 2008; (2) that nurses employed

by defendant Providence Hospital did breach the standard of care by failing to

place SCDs on the plaintiff‟s legs in accordance with Dr. Brownlee‟s order to do

so dated September 10, 2008; (3) that the failure of the hospital nurses to apply

SCDs following the second surgery on September 10, 2013 was a proximate cause

of injury to the plaintiff; and (4) that damages to the plaintiff proximately caused

by the nurses‟ breach of the standard of care were in the amount of $50,000.00

for past expenses for medical and other care; $450,000.00 for future expenses for

medical and other care; and $150,000.00 for past and future non-economic

damages (including physical pain, emotional distress, disfigurement, and

inconvenience). In accordance with the jury‟s verdict, the court entered judgment

on May 1, 2013 in favor of the plaintiff and against Providence Hospital in the

amount of $650,000.00; the court also entered judgment for Dr. Brownlee on the

plaintiff‟s claims against him. The court stayed the judgment pending the outcome

of anticipated post-trial litigation.

       The case is now before the court on the hospital‟s renewed motion for

judgment as a matter of law, see Super. Ct. Civ. R. 50(b), and the plaintiff‟s

motion for a new trial on damages, see Super. Ct. Civ. R. 59(e). The hospital

contends in its motion – as it did at the end of the plaintiff‟s case-in-chief and
                                             12

again at the end of all of the evidence at trial – that the expert testimony and

other evidence presented by the plaintiff was legally insufficient to prove by a

preponderance of the evidence that the failure of the hospital‟s nurses to apply

the SCDs ordered by Dr. Brownlee on September 10, 2008 proximately caused

the plaintiff‟s deep venous thrombosis (DVT) and pulmonary embolus (PE) and,

ultimately, the plaintiff‟s bilateral below- the-knee amputations. In particular,

the hospital argues that the plaintiff‟s evidence of causation was fatally

speculative, as even the plaintiff‟s own experts conceded that SCDs are largely

ineffective once DVT has formed and that it is impossible to know whether the

plaintiff‟s DVT formed before or after the second surgery on September 10,

2008. The plaintiff argues in his motion for a new trial on damages that the court

erroneously denied his request for Standard Jury Instruction No. 18-8 on “special

susceptibility” and that the $650,000.00 in total damages awarded by the jury

was so inadequate as to warrant a new trial.

       The plaintiff and the hospital have filed oppositions to each other‟s

motions, and the hospital has filed a reply in support of its renewed motion for

judgment as a matter of law. Dr. Brownlee, whose defense verdict remains

unchallenged by either of the other parties, has not filed a response or otherwise

participated in the post-trial litigation.
                                          13

       The court has carefully considered the pending motions, oppositions, and

reply, as well as the transcripts and other materials appended to the parties‟ briefs

and the entire record of the case. For the reasons that follow, the court concludes,

as a matter of law, that the evidence of proximate causation presented in the

plaintiff‟s case-in-chief was sufficient to support the jury‟s verdict against the

hospital; the court also concludes, in its discretion, that the amount of damages

awarded by the jury was not so inadequate as to warrant a new trial. Both post-

trial motions therefore will be denied.

                                   DISCUSSION

      Hospital’s Renewed Motion for Judgment as a Matter of Law

      The plaintiff in a medical malpractice case has the burden of proving the

applicable standard of care, a deviation from that standard by the defendant, and a

causal relationship between the defendant‟s deviation and the plaintiff's injury.

Derzavis v. Bepko, 766 A.2d 514, 519 (D.C. 2000). Expert testimony is required

to prove all three of the required elements, including causation, except where the

proof is so obvious as to lie within the ken of the average lay juror. Washington v.

Washington Hospital Center, 579 A.2d 177, 181 (D.C. 1990). The purpose of

expert opinion testimony is to avoid jury findings that are based on mere

speculation or conjecture. Lasley v. Georgetown University, 688 A.2d 1381, 1385
                                        14

(D.C. 1997).

      As a general matter, to establish proximate cause “the expert need only

state an opinion, based on a reasonable degree of medical certainty, that the

defendant‟s negligence is more likely than anything else to have been the cause

(or a cause) of the plaintiff‟s injury.” Travers v. District of Columbia, 672 A.2d

566, 570 (D.C. 1996); see generally Talley v. Varma, 689 A.2d 547, 552 (D.C.

1997) (“To establish causation, the plaintiff must present evidence from which a

reasonable juror could find that there was a direct and substantial causal

relationship between the defendant‟s breach of the standard of care and the

plaintiff‟s injuries, and that the injuries were foreseeable.”). On the other hand,

although “conflicts in the testimony of witnesses, including expert witnesses,

called by a party are not necessarily fatal to his case,” Kosberg v. Washington

Hospital Center, 394 F.2d 947, 950 (D.C. Cir. 1968), “inconsistent testimony

on causation may render the whole testimony inconclusive, thus requiring the

entry of a directed verdict,” Talley, 689 A.2d at 553.

       It is this last point that is at the core of the question currently before

the court. Dr. Jesse Hall, a professor of anesthesiology and critical care

medicine at the University of Chicago and chief of the Department of

Pulmonary and Critical Medicine there, was accepted as an expert witness
                                       15

for the plaintiff without objection from the defendants. On direct

examination, Dr. Hall clearly stated his opinion, to a reasonable medical

certainty, that the nurses‟ failure to follow Dr. Brownlee‟s order to apply

SCDs following the second surgery on September 10, 2008 “was a cause and

a substantial factor in causing [the plaintiff] to lose his legs and to suffer the

injuries he did at Prince Georges Hospital.” On cross-examination, however,

Dr. Hall admitted that he could not say whether the plaintiff‟s DVT started to

develop before or after the second surgery – a point also conceded by

another of the plaintiff‟s experts, Dr. Paul Collier – and he agreed that SCDs

“have not much of a role” once DVT has become “well-established.” The

hospital argues, based on those admissions, that the jury must have engaged in

impermissible speculation about the timing of the formation of the plaintiff‟s

DVT to find that the nurses‟ failure to apply SCDs after the surgery on

September 10, 2008 was a proximate cause of the plaintiff‟s subsequent

injuries – i.e. the hospital contends that the jury necessarily speculated that

the DVT formed after the second surgery in determining that the application

of SCDs as ordered by Dr. Brownlee more likely than not would have

prevented the development of DVT and the subsequent amputations.

      Essential to the hospital‟s position is the notion that SCDs are
                                       16

ineffective in preventing DVT once it has begun to form. If that is true, then

the inability of the plaintiff‟s experts to say whether the plaintiff‟s DVT began

to form before or after the second surgery would mean that the jury must have

speculated in finding that the nurses‟ failure to apply SCDs at the time of the

second surgery made a difference in the outcome for the plaintiff.

      The evidence on this essential point, however, was not as clear as the

hospital suggests. Dr. Hall testified as follows on cross-examination:

            Q:    I guess to ask it maybe more succinctly:
                  You‟re not able to tell the ladies and
                  gentlemen of the jury whether you have an
                  opinion as to – that the – that the DVT started
                  to form before or after the second surgery, is
                  that correct?

            A:    It could have been either.

            Q:    And the jury heard testimony from Dr. Collier
                  the other day, one of the plaintiff‟s experts,
                  who said he couldn‟t say one way or another
                  when it developed – or started to develop, in
                  your vernacular. Is that correct?

            A:    I would agree with that.

            Q:    And let‟s talk a little bit about SCDs, if we
                  could. If the DVT was forming prior to the
                  second surgery – which is a question we can‟t
                  answer, correct?

            A:    Correct.
                                        17

            Q:    But if it were, SCDs would not have been
                  helpful in preventing – further preventing the
                  DVT, is that correct?

            A:    In general it is viewed that once the clot
                  begins, all of the prophylactic measures are
                  going to be less effective.

            Q:    And as a matter of fact, you have some
                  concern as to whether SCDs might be – might
                  be bad for that situation, is that correct?

            A:    They could be if it were very advanced. They
                  could cause trouble.

             Q:    So we can agree that it’s not likely that SCDs
                   would have retarded the growth of the clot once
                   it had started. Is that correct?
             A:     Well, I don’t know about once it had started, but
                   it if was a well-established deep venous
                   thrombosis, then I think most people believe that
                   SCDs have not much of a role from that point
                   forward.

Hall transcript, 4/22/13, at 64-65 (emphasis added).

      This testimony on cross-examination certainly raised questions about the

credibility of Dr. Hall‟s testimony on direct examination that, to a reasonable

medical certainty, the nurses‟ failure to apply SCDs as ordered on September 10,

2008 was a proximate cause of the plaintiff‟s amputations and other injuries. But

the hospital‟s lawyer did not ask the follow-up question that might have entirely

undercut Dr. Hall‟s direct examination testimony and resolved the causation
                                         18

question once and for all (and as a matter of law) in favor of the hospital.

Specifically, counsel did not ask Dr. Hall if he could say with reasonable medical

certainty whether the plaintiff‟s DVT became well-established before or after the

second surgery; an admitted inability to answer that question likely would have

laid bare the speculative nature of the plaintiff‟s contention that the application of

SCDs beginning on September 10, 2008 would have prevented his DVT. The

hospital‟s lawyer, however, moved on to another subject and left unchallenged the

lingering inference from Dr. Hall‟s testimony on cross-examination – that SCDs

are effective in preventing DVT even after a clot has begun to form, as long as

they are applied before the clot has become well-established.

      This testimony from Dr. Hall on cross-examination – and the permissible

inference that arose from it – combined with other expert testimony presented at

trial to create a sufficient factual and evidentiary basis for Dr. Hall‟s direct

examination testimony and, ultimately, for a jury finding that the application of

SCDs beginning at the time of the second surgery more likely than not would have

prevented the plaintiff‟s DVT. In particular, Dr. Hall testified that the plaintiff‟s

risk factors for DVT accumulated over the course of his stay at Providence

Hospital and increased significantly with the second surgery on September 10,

2008, as the second surgery caused an even greater decrease in the plaintiff‟s
                                        19

mobility and the additional cutting of tissue associated with the second surgery

likely caused an even greater increase in the natural clotting reaction in the

plaintiff‟s body, Hall transcript, 4/22/13, at 30-31, 60; importantly, Dr. Hall also

testified that the development of DVT (and PE) is a gradual process that typically

stretches over a period of days:

             In addition, this process doesn‟t happen in minutes or
             hours. It‟s not the case that you develop a clot in the leg
             and then it immediately is huge and breaks loose and
             immediately gives you a pulmonary embolus. It‟s a
             gradual process. And, in fact, what happens first is the
             risk factors accumulate and you begin to get clot in very
             small veins. And then if the process isn‟t turned around,
             the clot begins to extend up the leg to deeper veins. In
             fact, that‟s the point at which we call it deep venous
             thrombosis. And by definition, that means it‟s at the level
             of the knee or higher, moving up your leg. And then from
             that point it grows further and eventually can break loose
             or parts of it could break loose. And then you have
             pulmonary emboli. . . . So that whole process taking days
             to evolve puts it back to Providence Hospital when it
             occurred.

Hall transcript, 4/22/13, at 32. See also id. at 65 (describing the development of

DVT and PE as “a days-long process in most cases”).

      Given the brief period between the two surgeries (five days), Dr. Hall‟s

testimony that that the plaintiff‟s risk of developing DVT increased significantly

with the second surgery, and the permissible inference from his testimony – that
                                       20

SCDs are effective in preventing DVT as long as they are applied before the DVT

is well-established – the jury could have put all of this together and reasonably

concluded, without engaging in impermissible speculation or conjecture, that the

plaintiff‟s DVT did not become well-established until after the second

surgery, and that the application of SCDs beginning on September 10, 2008

would have prevented the formation of a well-established DVT and all that

followed. The jury thus could have determined, without speculating, that the

nurses‟ failure to apply the SCDs in accordance with Dr. Brownlee‟s order

proximately caused the plaintiff‟s DVT and subsequent bilateral below-the-

knee amputations.

      The weakest aspects of the plaintiff‟s evidence of causation were that

Dr. Hall said the formation of DVT and PE (not the formation of DVT alone)

was a days-long process, and that neither Dr. Hall nor any other expert ever

said the plaintiff‟s DVT probably became well- established only after the

second surgery. These weaknesses provided the bases for the strongest

arguments on causation available to the hospital at trial. However, no one ever

asked Dr. Hall how long it usually takes for DVT alone to become well-

established, nor did anyone ever ask him if he could say with reasonable

medical certainty whether the plaintiff‟s DVT became well- established before
                                        21

or after the second surgery. These omissions are important, because the court,

in judging the legal sufficiency of the plaintiff‟s evidence, must view the

testimony in the light most favorable to the plaintiff and must draw all

reasonable inferences in support of the plaintiff‟s claim. Having done so, the

court is satisfied that the expert testimony and other evidence gave rise to a

reasonable inference that the plaintiff‟s DVT was not yet well-established

when the nurses breached the standard of care by failing to implement Dr.

Brownlee‟s order for SCDs beginning on September 10, 2008 (and that Dr.

Hall believed this to be the case). Put another way, the court concludes that

the jury reasonably found, based on legally sufficient evidence, that more

likely than not there was a direct and substantial causal relationship between

the nurses‟ breach and the plaintiff‟s injuries.

      This was a very close case on the issue of causation. But in the final

analysis, it was not a case in which the expert testimony was so inconsistent as to

“render the whole testimony inconclusive, thus requiring the entry of a directed

verdict.” Talley, 689 A.2d at 553. Dr. Hall never withdrew or even backed away

from his opinion that the nurses‟ negligence proximately caused the plaintiff‟s

amputations, and the evidence, although hotly contested, was sufficient to support
                                         22

his opinion.

      The hospital argues that the Court of Appeals decision in Travers, 672 A.2d

566, requires a different result.   This court disagrees.    Travers is difficult to

analyze, as the majority opinion contains very little information about the expert

testimony found legally insufficient to prove proximate cause. Yet it appears that

the plaintiff in that case presented no expert testimony analogous to Dr. Hall‟s

testimony here suggesting that SCDs would have been effective had the plaintiff‟s

DVT begun to form but not yet become well-established at the time of the

medical negligence at issue.

      The hospital also suggests that the causation testimony of the plaintiff‟s

experts should have been excluded at trial as internally inconsistent and lacking a

sufficient factual basis. This suggestion has no merit. The causation opinions of

the plaintiff‟s experts were admitted at trial without objection by the hospital, and

the hospital is thus foreclosed from raising the question of admissibility for the

first time in a post-trial motion. The appropriate question at this stage of the

proceedings is not whether the testimony of the plaintiff‟s experts was properly

admitted, but whether the testimony, in combination with the other evidence

presented in the plaintiff‟s case- in-chief, was legally sufficient to prove a causal

link between the nurses‟ failure to apply SCDs as directed beginning on
                                          23

September 10, 2008 and the plaintiff‟s development of DVT and subsequent

bilateral below-the-knee amputations. For the reasons already stated, the court

concludes that the evidence, viewed in the light most favorable to the plaintiff, was

legally sufficient to support the jury‟s finding of proximate causation by a

preponderance of the evidence. The hospital‟s renewed motion for judgment as a

matter of law therefore must be denied.

      Plaintiff’s Motion for New Trial on Damages

      The court concludes, in its discretion, that the plaintiff‟s motion for a new

trial on damages also should be denied. First, the court, which presided over the

trial and has a clear memory of the proceedings, remains of the view that a jury

instruction on special susceptibility was not appropriate in the circumstances. The

evidence at trial relating to the plaintiff‟s pre-existing medical conditions

(diabetes, hypertension, obesity, and infection) had only limited points of

relevance – the effect of those conditions on the applicable standard of care

concerning the use of Heparin and/or SCDs to prevent the formation of DVT, and

the likelihood that the plaintiff‟s DVT and resulting PE (as opposed to one or

more of the pre-existing conditions) proximately caused the below-the-knee

amputations of the plaintiff‟s legs. Neither defendant argued at trial that the

plaintiff‟s injuries resulting from the nurses‟ failure to apply SCDs in accordance
                                         24

with Dr. Brownlee‟s order of September 10, 2008 would have been less severe

had the plaintiff not already been afflicted with diabetes, hypertension, obesity,

and infection.

      Second, the court is not persuaded that the $650,000.00 verdict returned by

the jury was so inadequate as to warrant a new trial on damages. The verdict

resulted from the jury‟s consideration of hotly contested and contradictory

evidence on the issues of liability, causation, and damages. Supported by expert

testimony, the hospital presented a spirited defense on the question whether there

was a causal link between the nurses‟ failure to apply SCDs after the second

surgery and the amputation of the plaintiff‟s legs, as well as on the question

whether the damages claimed by the plaintiff and his experts – and in particular,

the damages sought for future medical and other expenses – were reasonable in

light of the circumstances and the evidence. Although the court is not surprised to

learn that the plaintiff hoped or even expected to receive a larger damages award

from the jury, the court does not find that the verdict was the product of prejudice,

passion, or partiality on the part of the jury or that it was the result of the jury‟s

oversight, mistake, or consideration of irrelevant or improper information. Nor,

in the court‟s view, was the verdict beyond or contrary to all reason. See Romer v.

District of Columbia, 449 A.2d 1 0 9 7 , 1 0 9 9 (D.C. 1982) (“[I]n reviewing the
                                          25

denial of a motion for a new trial based on a claimed inadequate verdict, this court

will reverse only when the amount of the award evidences prejudice, passion or

partiality on the part of the jury or where the verdict appears to be an oversight,

mistake, or consideration of an improper element.”); see also Prins- Stairs v. The

Anden Group, 655 A.2d 842, 843 (D.C. 1995) (stating that “the court should order

a new trial only when the award is contrary to all reason”) (quoting Barron v.

District of Columbia, 494 A.2d 663, 665 (D.C. 1985)). The jury, which appeared

to the court throughout the trial to be paying very close attention to the evidence,

arguments, and instructions, awarded the plaintiff more money for his future

medical and other expenses than the hospital‟s experts testified was reasonably

necessary.    The    jury also reasonably may have considered the plaintiff‟s

demeanor during the trial, and his apparent acceptance of his diminished physical

condition, in deciding to award less in non-economic damages than the plaintiff

anticipated. In the end, the court is satisfied, given the jury‟s prerogative to accept

or reject the expert and lay evidence presented, that the verdict was within the

range of rational findings and conclusions based on the evidence in the record.

The court therefore concludes that it should defer to the jury‟s judgment and leave

the verdict undisturbed.
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                                    CONCLUSION

      For the foregoing reasons, it is this 22nd day of July 2013

      ORDERED that the hospital‟s renewed motion for judgment as matter of

law is denied. It is further

      ORDERED that the plaintiff‟s motion for a new trial on damages is

denied. It is further

       ORDERED that the stay on the judgment entered on May 1, 2013 is lifted

 and that the judgment is now in full force and effect.




                                      /s/ Neal E. Kravitz
                                      ________________________
                                      Neal E. Kravitz, Associate Judge
                                      (Signed in Chambers)



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