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10/28/88 Anna May Wood v. Rocky Alan Day and Giant

October 28, 1988

ANNA MAY WOOD

v.

ROCKY ALAN DAY AND GIANT FOOD, INC., APPELLANTS 1988.CDC.415 DATE DECIDED: OCTOBER 28, 1988



Before trial, appellants stipulated that as of September 1986, Ms. Wood had accumulated $1,459.90 in lost wages, and medical bills totaling $6,199.13 as a result of the accident. By way of a general verdict, the jury awarded appellee $100,000. After appellants' motions for a new trial and for remittitur were denied, this appeal followed.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, Civil Action No. CA85-03539.

APPELLATE PANEL:

Williams, D.H. Ginsburg, and Sentelle, Circuit Judges.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SENTELLE

This appeal is from a judgment entered on a jury's verdict in a case of negligence arising from a rear-end collision. Because liability was admitted by defendants, Rocky Alan Day and Giant Food, Inc. (collectively "appellants"), the sole issue at trial was damages. The jury awarded plaintiff Anna May Wood ("Wood" or "appellee") damages of $100,000 via a general verdict. Appellants argue that the verdict was based on erroneous instructions allowing recovery for elements of damages not supported by the evidence. We agree, vacate the award, and remand for further proceedings.

FACTUAL BACKGROUND

The facts, considered in the light most favorable to the appellee, are as follows:

Appellee, a woman of approximately fifty-two years of age, had been living asymptomatically with a degenerative spinal condition known as spondylolisthesis, the breaking down or slipping of the vertebral column. On November 17, 1983, a taxi cab occupied by Ms. Wood was struck from behind by a tractor-trailer driven by appellant Day, an employee of the trailer's owner, appellant Giant Food, Inc. Ms. Wood was taken from the scene to Prince George's General Hospital, where she was examined, x-rayed, and released shortly thereafter.

Beginning on November 28, 1983, and over the next three years, Ms. Wood made 22 visits to an orthopedist, Dr. Rida Azer. Dr. Azer initially recommended physical therapy and prescribed medication, opining that further testing would be required if her condition did not improve. For approximately three years, Ms. Wood underwent numerous tests and treatments, including regular participation in physical therapy. Over the years, the frequency of her consultations and treatment tapered off, so that by May 1987, Ms. Wood had seen Dr. Azer only twice in the preceding eleven months, and had been advised by him to cease therapy.

At trial Ms. Wood testified that prior to the accident she had been a cashier at a department store for more than twenty years, and that, though limited to "light duties" after the accident, she remained employed by the company in an associated store. Ms. Wood testified that she was in constant pain and that her range of activities was considerably diminished. Although appellee introduced no evidence as to her pre-accident earnings, she testified that her new position paid $6.80 per hour.

The evidence at trial established that Ms. Wood had sustained permanent injury to the lumbosacral spine and a narrowing of the intervertebral disc space as a result of the accident, causing further spinal degeneration. Though Dr. Azer testified that Ms. Wood's condition worsened from a grade one to a grade two spondylolisthesis within two weeks of the accident, appellants' expert witness, Dr. Edward Anthony Rankin, testified that Ms. Wood's pre-existing vertebral condition eventually would have become symptomatic had the accident not occurred.

Dr. Azer testified that in his opinion Ms. Wood's injury was permanent, would result in continued spinal deterioration, and would permanently restrict her ability to engage in a range of endeavors, including strenuous activity and prolonged sitting or standing, limitations "that she will have to abide by for the rest of her life." Dr. Azer also testified that while surgery would normally be the optimal course of action, he did not believe it was appropriate for Ms. Wood because of her significant heart and weight problems. For these reasons, Dr. Azer was "very reluctant" to recommend surgery, as Ms. Wood could "end up by having a blood clot or a heart attack, or something." In his opinion, surgery should be "avoid[ed] as long as possible, until it becomes almost an emergency. Though Dr. Azer stated that Ms. Wood would need further medical attention, upon appellants' objection the District Court ruled that Dr. Azer was not able to render an opinion as to the likelihood of surgery with the requisite degree of certainty. Though the Court indicated its willingness to permit the introduction of evidence pertaining to prospective non-surgical medical attention, none was offered.

In its original charge, the Court instructed the jury over appellants' objection that "you should award such a sum as will reasonably and adequately compensate the plaintiff for any loss of earnings which you find that the plaintiff will probably suffer in the future." Appellants took exception to the instruction, arguing that the only evidence tending to show a loss of future earnings--that relating to a convalescence period following ...


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