Law Offices of Dawn V. Martin :Personal Injury Destefano v. Children's Natiolnal Medical Center
The Law Offices of Dawn V. Martin handles personal injury, or "tort" cases as well as accident and negligence cases, assault, battery, false imprisonment, defamation, intentional infliction of emotional distress, wrongful termination and even medical malpractice. Some of these claims are related to employment claims (see Gantt v. Security USA), but others involve the use of public accommodations, hotels, hospitals and other situations.
Destefano v. Children's National Medical Center and Colonial Parking, Inc.
On January 27, 2015, we argued the Appeal of the Destefano case before a Panel of three judges on the Court of Appeals, Judges Fisher, McClease and Reid. On July 23, 2015, the Panel issued an Opinion denying the appeals of both Defendants, Children's National Medical Center and Colonial Parking, Inc. The Opinion also reinstated Ms. Destefano's individual claim of negligent infliction of emotional distress, setting precedent for D.C. by adopting the "danger invites rescue" rule. This means that a person who is places himself/herself in the "zone of danger" in order to try to rescue a person endangered by someone else's negligence is entitled to compensatory from the negligent person for emotional distress stemming from the accident. Ms. Destefano's claim has been remanded to the trial court for trial, since it was never tried with the rest of the case. Unfortunately, the Opinion affirmed the trial court's denial of punitive damages, future damages for G.I.'s continuing post concussive syndrome and the trial judge's denial of nearly $200,000 of the $250,000 in costs that Plaintiffs have had to pay, or will pay from their award, for expert witnesses, depositions and other out of pocket costs. All parties have until August 6, 2015, to file a Motion for Rehearing, En Banc, to ask the entire Court to reconsider the Panel's decision.
Media Coverage of the Destefano Case, Due to Public Safety Issues
The hole in the wall opened into an air shaft with a 30 foot, two story drop to the concrete bottom. There was substantial media coverage of the case when the accident occurred in 2009 and again, in 2010, when the lawsuit was filed, including both NBC, Channel 4 (Derrick Ward, highlighted by anchors Jim Vance, Doreen Gentzler and Wendy Reiger) and CNS, Channel 9 (Lindsey Mastis), news aired stories on this case in 2009 and when the lawsuit was filed in 2010.
The day after the article appeared, Judge Jose-Herring issued a "gag" order, prohibiting the attorneys or the parties from speaking to the press for the duration of the trial, so there was no further coverage and no further contact with the press until the verdict; however, the gag order was lifted after the trial ended. The parties can now discuss the case in the press and the public.
The Facts Creating the Injuries
On March 11, 2009, then 6 year old Giovanni had just left an appointment with his doctor at the hospital. He and his then 4 year old sister, Valery, were standing with their mother, next to their parked car in the garage. The car was parked in a designated parking space bordered by a wall. The children stepped back a few inches to allow room for their mother to open the car door, but there was a hole in the wall measuring 2 feet in height and 3 feet in width, 14 inches from the ground. The boy fell backwards into that hole – with his sister and mother standing next to him. The next shock was the fall two stories down in this multi-level concrete parking garage.
Ms. Destefano's screams brought a rescue crew, including the police and fire departments. Giovanni was rushed to Intensive Care for surgery and other care. His scalp was split open in several places, which his doctor described in a deposition as "de-scalped."
The D.C. Regulatory Authority (DCRA) issued the hospital a Notice of Violation on the same day as the accident. DCRA found that numerous grilles on air shafts in the garage were loose, missing screws and rusted. DCRA required the hospital to correct this hazard within 24 hours. Two parking attendants provided sworn statements that they had seen the hole in the wall open for months, and even reported it to their supervisor, but were told not to worry about it. They did not realize that there was an air shaft, or a 2 story drop behind the wall because neither Colonial nor the hospital provided them with any training on the structure of the garage or the air shafts.
Both of Giovanni's wrists were fractured and he had to wear casts on both of his arms, through his hands, for months. He had soft muscle tissue damage and cuts and bruises throughout his body. He bears a permanent scar from the many stitches across his head. He suffered a concussion, which worsened his pre-existing condition of seizures. He continues to suffer from post concussive syndrome -- the same condition suffered by many football players and other who suffer concussions in contact sports. It has changed his behavior, so that he has violent outbursts, which caused him to be removed from his school and placed in a special school for children with uncontrollably violent behavior.
Both Giovanni and Valery also continue to suffer from post traumatic stress disorder (PTSD) as a result of the accident. The Defendant hospital's own doctors diagnosed both children with post- traumatic stress disorder (PTSD) resulting from the accident. Valery saw her brother fall into the wall as held his hand -- and was in danger of falling in herself.
The Appeal and the Parties' Briefs
Children's National Medical Center's Appeal
CNMC did not even argue that these minor evidentiary issues constituted "reversible error;" accordingly, as our firm argued in the family's Response and Reply Brief to CNMC, there never was any basis for CNMC arguing that it had no liability to G.I. or that the jury award was improper. Our firm repeatedly and consistently argued that CNMC should have been immediately required to pay the judgment and be assessed sanctions for its frivolous appeal of G.I.'s award.
During the oral argument, transcript, at 59:6-18, Judge Fisher directly asked the hospital's lawyer, Adam Smith, whether CNMC was challenging liability for G.I.'s injuries. Mr. Smith admitted that the hospital is liable.
JUDGE FISHER: -- just clarify something that I've tried to assimilate from all these papers. As I understand it, you're not fighting liability in this case with respect to the young man. You just want Colonial to help pay the judgment.
MR. SMITH: In terms of the appeal?
JUDGE FISHER: Yes.
MR. SMITH: Our Appeal as to G.I. is a protective cross appeal. In the case that the court grants any of the errors that might affect the judgment remand as to G.I., we want those issues addressed, but yes, in a sense you're correct in the way you've described it.
In oral argument, page 69:16-70:14, our firm again followed up on this admission by the hospital, asking that the Court order CNMC to immediately pay the judgment that it is not challenging, but refuses to pay.
MS. MARTIN: I want to follow up on the point that you made, Your Honor, Judge Fisher, a point that I've been making throughout the appeal, which is that the hospital has not raised any kind of appeal that constitutes reversible error. They're not challenging the award, and I ask, and we do have another motion pending, to lift the stay in collection of the judgment because there's no basis for withholding payment of the judgment for the hospital to pay G.I.'s award. We've waited almost two years since the appeal, and these children are now six years older. My firm is going under.
I mean, it's not fair and there's no basis for it, and this was frankly a subterfuge to continue withholding the money of the judgment that was already paid (into the Court) because we're not asking for a retrial for the money that was awarded to G.I. for his past pain and suffering. Anything that would happen on remand would be in addition to that award, and we ask that -- beg the court to make the hospital pay. It's a joint and several liability issue and they should pay it now.
The Court did not rule on the Destefano family's December 1, 2014 Motion to Lift the Stay on Collection of the Judgment until July 23, 2015, granting the motion. See G.I.'s Motion to Lift Stay on Collection of his Judgment against CNMC. This was the same day that the Panel decided the case on its merits. The stay would have expired at that point anyway, even without a decision on the motion.
CNMC also appealed the $26,000 award to G.I.'s sister, V.I., for the post traumatic stress disorder that CNMC's own doctors diagnosed in V.I., as a result of the accident. Colonial has made the same argument. Our firm argued, in the Destefano-Ibanez family's Response and Reply Brief, that this appeal is also frivolous and that CNMC and Colonial should be sanctioned for filing it.
Even though Children's Hospital filed a cross-suit against Colonial and argued that Colonial failed in its duty to inspect and report the safety hazard of the open air shaft in the parking garage, the hospital continued its contract with Colonial to manage its garage throughout this litigation and continues this partnership with Colonial to date.
Colonial Argued that Colonial has no Duty to its Customers to Maintain a Reasonably Safe Parking Environment for People -- but only to Keep Cars Safe
Colonial appealed the judgment against it, arguing that it has no duty to its customers to maintain a reasonably safe parking environment in the garage at Children's National Medical Center. See Colonial's Opening Brief. On this issue, CNMC joins the Destefano-Ibanez family in arguing that Colonial has this duty to its customers, based on long-standing premises liability law involving managers of premises. CNMC adds that, based on its own contract with Colonial, Colonial had a duty to inspect the premises three times per day for safety hazards and to report any hazards to CNMC for repair. See CNMC's Supplemental Brief regarding Colonial's Duty and the Destefano-Ibanez family's Response and Reply Brief.
Mr. Blair is also the Chair of the Board for the Children's National Medical Center Foundation. Mr. Blair testified that, in his view, Colonial had no legal duty to provide a safe parking environment for its customers to walk through when parking their cars.
The Court described Colonial's argument as a "scary proposition," during Oral Argument. See transcript at 43:11-18:
JUDGE FISHER: That's kind of a scary proposition, frankly -- MR. HASSELL: Okay.
JUDGE FISHER: -- to have somebody in charge of a facility like this with lots of people and lots of machines going through and the person who is in day-to-day, hour-to-hour charge of running that facility has no duty to me as an agent?
The Panel's Opinion ensures that parking garages and other commercial businesses in D.C. are clearly obligated to take reasonable steps to keep their business premises safe for their customers. (The recent garage collapse at the Watergate is a reminder of the types of tragedies that can occur when garages are not properly maintained or inspected for safety hazards.)
The Destefano-Ibanez Family's Appeal
On April 29, 2013, our firm filed an appeal on behalf of the Ibanez-Destefano family with respect to certain claims and relief that the trial court precluded the jury from hearing or considering, including a claim by Ms. Destefano, in her own right, for negligent infliction of emotional distress, future damages for G.I.'s ongoing post concussive syndrome and punitive damages. The hospital and Colonial Parking filed their own appeals -- which allowed them to obtain a stay on collection of the judgment so that the Plaintiffs and our firm could not be paid on the judgment rendered until the appeal is over.
The family appealed: 1) Judge Edelman's dismissal of Ms. Destefano's individual claim of negligent infliction of emotional distress, as a bystander to her son's accident and injuries; 2) Judge Josey- Herring's instruction to the jury not to award Giovanni any damages for his future pain and suffering from post-concussive syndrome, although the condition is "ongoing;" 3) Judge Josey-Herring's refusal to allow the jury to consider punitive damages against either Defendant; 4) Judge Josey- Herring's unequal allocation of witnesses and time at trial, affecting V.I.'s ability to present all of her witnesses regarding her post traumatic stress disorder; and 5) other evidentiary matters that would be relevant if the case is remanded and any dismissed issue is tried.
Judge Edelman, one of three trial judges consecutively assigned to this case, dismissed Ms. Destefano's claim of negligent infliction of emotional distress because, he held, such a claim can only be maintained if the plaintiff is a "bystander" to the accident who was also at risk of being harmed, and that it was not clear that Ms. Destefano could not fit through the 3 feet wide by 2 feet tall hole in the wall, even if she tried to "squeeze" herself through it. The photos of the scene before Judge Edelman at the time clearly showed that the hole was big enough for even two adults to fall into it together. Ms. Destefano had taken photos of the scene, on the day of the accident, that included two women kneeling on the ground and peering into the hole together, at waist level and one woman kneeling while the other stood next to her. (The photos also included a photo of Giovanni as he was taken to the Emergency Room, but Judge Josey-Herring excluded this photo from evidence at trial, as "inflammatory," due to the blood and cuts on his face, as well as his clear expression of physical pain -- although it was undisputed that the photo accurately reflected how he appeared at the time.) Photos taken after Judge Edelman's decision highlighted the fact that the hospital, Colonial and their attorneys were well aware that Ms. Destefano could have easily fit through the hole in the wall. These photos, taken on August 12, 2013, by our firm, include photos showing the hospital's own attorney, Adam Smith, who is well over six feet tall and "husky," easily going in and out of the hole in the wall, once protective grates were placed between the floors to prevent anyone else from falling to floors below, as Giovanni did. The photos also show Ms. Martin bending and reaching into the hole, as Ms. Destefano did when she tried to rescue her son. It is clear from these photos that Ms. Destefano, who is much smaller than both Mr. Smith and Ms. Martin, could have easily fit through the hole int he wall. The photos also demonstrate that the Defendants representations to the trial court, that Ms. Destefano could not have fit through the hole, could not have been made in good faith, by an attorney who is much larger than Ms. Destefano and personally moved easily in and out of the hole.
Judge Josey-Herring instructed the jury not to award Giovanni anything for his "ongoing" post- concussive syndrome, which has affected his behavior since the accident, making him erupt into violent episodes, without warning. Judge Josey-Herring also prohibited the jury from considering punitive damages against either Colonial Parking or Children's National Medical Center. She held that, in order to obtain punitive damages against a corporation, the Plaintiff would have to prove that a director or officer of the corporation committed an intentional act or omission to cause the injury to the Plaintiff.
Our firm has consistently argued that each defendant acted with reckless disregard for the safety of others, and that managers of both of these corporations willfully disregarded safety measures, such as inspections that were supposed to be conducted three times per day, but were not done, and that they both took measures to cover up the cause(s) of the accident nd their own negligence. The undisputed evidence presented at trial was that, two hours after the accident, Colonial managers attempted to force a parking attendant, Belete Belete, to falsify and backdate the facility inspection records for the previous several months, but he refused to do it and found another job.
The standard for punitive damages applied by Judge Josey-Herring would result leave few, if any, corporations subject to punitive damages. Punitive damages are intended to deter wrongful, and in this case, dangerous conduct, in the future. From the bench, on April 22, 2013, Judge Josey-Herring said:
While caution may dictate permitting the claim of punitive damages to go to the jury and then address it in post-judgment motions or on appeal, the court, I acknowledge, as counsel for Children's National medical Center has indicated, that punitive damages carry a stigma, even when they are later addressed by the Court of Appeals or the Court after the fact of sending the matter to the jury.
Judge Josey-Herring thereby deemed the "stigma" that might be attached to Children's Hospital and Colonial by allowing the jury to consider imposing punitive damages on them, to outweigh the financial and emotional and burden on Plaintiffs and their counsel, as well as the taxpayers, the court, and jurors in a second trial, if the Court of Appeals reinstates the claim of punitive damages. Apparently, the Defendants are not concerned about the stigma of children being injured on their business premises, due to a D.C. Building Maintenance Code violation, in a children's hospital, and arguing that they bear no responsibility for it. Our firm seeks a reversal by the D.C. Court of Appeals, on behalf of the Ibanez-Destefano family, as well as the public interest in customer safety while on business premises in D.C., particularly parking garages and hospitals.
Court Filings, Trial Transcript and Appellate Argument Transcript
The Briefs refer to the record by using "JA" and a page number. The "JA," or Joint Appendix, must be filed with the Opening Brief. It includes documents in the trial court record that each party wants before the Court when it considers their respective Briefs. This Joint Appendix is nearly 3,000 pages long, so if you would like to see the exhibits cited in the Briefs, you can download it, from http: //www.sendspace.com/pro/dl/8eoch1 or just read it on line. The Joint Appendix includes the full transcript of the month-long trial at pages 607-1359. The full trial transcript record is uploaded separately, as Trial Transcripts. It is 753 pages long.
This excerpt from Andrew Blair's deposition includes some of his statements of Colonial's contractual obligations to Children's National Medical Center to patrol the garage and inspect it for safety hazards at least three times per day. He also claimed that safety inspections are performed for employee safety and not for Colonial's paying customers. See also http://www.youtube.com/watch?v=KcHHKQhBSG0