United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2007 Decided July 3, 2007
No. 05-7169
SONYA MULDROW,
INDIVIDUALLY, AND ON BEHALF OF THE ESTATE AND NEXT OF
KIN OF KENNETH N. MULDROW, JR., DECEASED,
APPELLEE
v.
RE-DIRECT, INC.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02537)
David F. Grimaldi argued the cause and filed the brief for
appellant.
Andrew D. Roth argued the cause for appellee. With him on
the brief was Laurence Gold. W. Gary Kohlman entered an
appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: Defendant Re-Direct, Inc. began
providing residential programs for juvenile delinquents in the
District of Columbia in 1998. By the end of 1999, four youths
had been murdered while in the defendant’s care. In 2000, the
plaintiff’s son, Kenneth, became the fifth. Thereafter, the
plaintiff filed this civil suit, alleging violations of Kenneth’s
constitutional rights under 42 U.S.C. § 1983 and negligence
under District of Columbia law. A jury found for the plaintiff
on both claims, and awarded her compensatory and punitive
damages.
The defendant now appeals from the district court’s denial
of its post-trial motion for judgment as a matter of law or, in the
alternative, for a new trial. Re-Direct insists that it was entitled
to the former because Kenneth’s conduct “constituted
contributory negligence and proximate cause as a matter of
law.” Appellant’s Br. 13. Re-Direct asserts that it was entitled
to a new trial because the district court committed three trial
errors. According to Re-Direct, the court: (1) improperly
excluded testimony by a police witness regarding the motive
behind Kenneth’s murder; (2) improperly admitted expert
testimony that was not contained in the expert’s pretrial report;
and (3) improperly instructed the jury regarding the standard for
contributory negligence. We reject all of Re-Direct’s arguments
and affirm the judgment of the district court.
I
In 1999, the Superior Court of the District of Columbia
adjudged Kenneth Muldrow, Jr. a delinquent and committed him
to the custody of the Youth Services Administration, a division
of the District of Columbia’s Department of Human Services.1
1
Because Re-Direct appeals from the denial of its motion for
judgment as a matter of law, we view the evidence in the light most
3
Pursuant to the court’s order, he was placed in a psychiatric
hospital. In June 2000, just before Kenneth’s nineteenth
birthday, the court modified the conditions of his commitment,
ordering him placed in a “transitional living program” operated
by Re-Direct.2
Re-Direct’s transitional living program offered “specialized
residential treatment services” to juvenile delinquents, under a
contract with the Youth Services Administration. Muldrow v.
Re-Direct, Inc., No. 01-2537, Mem. Op. at 2 (D.D.C. May 3,
2005) (denying defendant’s motion for summary judgment).
The program was essentially a halfway house, intended to
provide a structured and supervised environment where youths
could receive various rehabilitative services. The company also
operated a separate “independent living program,” where
youngsters received some supervision, but lived in apartments
by themselves.
Re-Direct’s relatively brief contractual relationship with the
District was marred by a series of violent assaults on the youths
who were committed to its care. In February 1999, a youth
enrolled in Re-Direct’s independent living program was
“murdered while visiting his family during a home visit made in
violation of [Re-Direct’s] rules.” Smith v. District of Columbia,
413 F.3d 86, 92 (D.C. Cir. 2005). In April 1999, two more
youths in the same program were shot in the head and killed by
favorable to the plaintiff. See, e.g., Borgo v. Goldin, 204 F.3d 251,
254 (D.C. Cir. 2000); United States ex rel. Yesudian v. Howard Univ.,
153 F.3d 731, 734 n.1 (D.C. Cir. 1998).
2
The defendant was originally named “Educational Solutions
Academy,” but changed its name in 2000. See Pl.’s Ex. 28, at 1-2.
4
a visitor to their apartment. Id.3 Another minor in Re-Direct’s
care was murdered later that year. Id.
Kenneth’s “discharge information” sheet from the
psychiatric hospital instructed that he was to continue taking
three different medications, and was to participate in several
treatment programs related to his psychiatric and substance
abuse problems. Pl.’s Ex. 5. This treatment plan, however, was
not fully implemented during Kenneth’s time in the Re-Direct
program. He did not participate in many of the treatment
programs, and he frequently missed his appointments for
individual therapy. Re-Direct also failed to maintain records
regarding whether Kenneth consistently received his prescribed
course of medications.
In October 2000, another youth at the Re-Direct residence
made verbal threats against Kenneth. In response, the Re-Direct
staff gave Kenneth a “pass,” permitting him to leave the facility
and stay at his mother’s house “until further notice.” Muldrow,
Mem. Op. at 3. The following day, he was brutally assaulted by
several unidentified attackers in southeast Washington.
Kenneth’s injuries required him to spend three full days in
intensive care, and approximately three weeks in the hospital.
After his release from the hospital, the Superior Court returned
him to the Re-Direct residence.
At trial, Kenneth’s mother testified that her understanding
with Re-Direct was that Kenneth would “only be allowed to
leave [the residence] with me, my daughter, or his father. . . . [I]f
he was to leave that house other than to go to school by school
3
In Smith, we affirmed a jury verdict finding the District of
Columbia liable for violating the substantive due process rights of one
of those youths by “virtue of its deliberate indifference in selecting
and monitoring” Re-Direct. 413 F.3d at 89.
5
transportation, . . . one of us [was] supposed to be with him to
sign out.” Trial Tr. 139. Nonetheless, Re-Direct’s log book
indicates that, on December 8, 2000, Kenneth was permitted to
leave the residence unaccompanied at 5:20 p.m. He did not
return for the rest of the evening. Later that night, Kenneth was
again assaulted in the same neighborhood where he had been
attacked in October. His assailants beat him for twenty to thirty
minutes with bottles, trash cans, buckets, and a metal pole. He
died shortly thereafter.
Kenneth’s mother, Sonya Muldrow, filed suit against Re-
Direct in the United States District Court for the District of
Columbia, individually and on behalf of Kenneth’s estate and
next of kin. Relying on 42 U.S.C. § 1983 for her cause of
action, she alleged that, having been “charged by Court Order
with sole legal custody and responsibility for” Kenneth, Re-
Direct “acted with deliberate indifference” to his “right to safe
conditions and security from physical harm, a right guaranteed
by the due process clause of the U.S. Constitution.” Compl. ¶
68. (The parties later stipulated that “Re-Direct was acting
under color of state law or as a state actor with respect to its
actions towards Kenneth N. Muldrow, Jr.” Pl.’s Ex. 28, at 1.)4
The complaint also alleged that Re-Direct was liable for the
District of Columbia common law tort of negligence.
A jury returned a verdict for the plaintiff. On the § 1983
claim, the jury found that Re-Direct violated Kenneth’s
constitutional rights and that this violation proximately caused
4
Section 1983 provides a cause of action for monetary damages
against “[e]very person who, under color of [state or District of
Columbia law,] . . . subjects, or causes to be subjected, any . . . person
. . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . .” 42 U.S.C. § 1983. See generally Smith, 413
F.3d at 93-97.
6
his death. Verdict Form at II.A. On the tort claim, it found that
Re-Direct was negligent and that its negligence also proximately
caused Kenneth’s death. Id. at I.A.1-2. The jury rejected Re-
Direct’s defense of contributory negligence with respect to this
claim because, although it found that Kenneth was himself
negligent, it concluded that his negligence was not the proximate
cause of his death. Id. at I.A.3-4. The jury awarded the plaintiff
compensatory damages of $200,000 and punitive damages of
$797,160. Id. at III.
After the verdict, Re-Direct moved for judgment as a matter
of law under Federal Rule of Civil Procedure 50 or, in the
alternative, for a new trial under Rule 59. The district court
denied both motions. See Muldrow v. Re-Direct, Inc., 397 F.
Supp. 2d 6 (D.D.C. 2005). Re-Direct now appeals. It raises one
challenge to the denial of its motion for judgment as a matter of
law, which we address in Part II, and contends that the district
court committed three errors requiring a new trial, which we
address in Part III.
II
This court reviews “de novo a trial court’s denial of a
motion for judgment as a matter of law. We do not, however,
lightly disturb a jury verdict. Judgment as a matter of law is
appropriate only if the evidence and all reasonable inferences
that can be drawn therefrom are so one-sided that reasonable
men and women could not have reached a verdict in plaintiff’s
favor.” McGill v. Muñoz, 203 F.3d 843, 845 (D.C. Cir. 2000)
(internal quotation marks and citation omitted).
Re-Direct’s sole argument for judgment as a matter of law
focuses on the jury’s rejection of its contributory negligence
defense. Although the jury concluded that Kenneth was
negligent, it also found that his negligence was not the
7
proximate cause of his death. Verdict Form at I.A.3-4. We
must overturn the latter finding, Re-Direct insists, because
“reasonable [j]urors could not differ concerning the actions of
the minor plaintiff being a proximate cause of his death.”
Appellant’s Br. 21.
But even if we were to assume that Kenneth’s negligent
conduct did proximately cause his death, such contributory
negligence would not warrant overturning the jury’s verdict if
Re-Direct acted with reckless disregard for Kenneth’s safety.
Under District of Columbia law, “in cases of reckless conduct
by the defendant[,] . . . the plaintiff’s contributory negligence
will not bar his action.” Sinai v. Polinger Co., 498 A.2d 520,
525 n.7 (D.C. 1985); see also Santiago v. Lane, 894 F.2d 218,
224 (7th Cir. 1990); RESTATEMENT (SECOND) OF TORTS § 482
(1965); W. PAGE KEETON ET AL., PROSSER & KEETON ON THE
LAW OF TORTS 462 (5th ed. 1984). Without objection from Re-
Direct, the district court so charged the jury, instructing it that:
A defendant is not liable for a plaintiff’s injuries if the
plaintiff’s own negligence is a proximate cause of the
injuries. However, if you find that the plaintiff has
proven that defendant acted with reckless disregard for
Kenneth Muldrow’s safety, as opposed to mere
negligence, then Kenneth’s own negligence is not
relevant, unless you find that Kenneth also recklessly
disregarded his own safety.
Trial Tr. 745-46 (emphasis added).
In returning a verdict for the plaintiff on her § 1983 claim,
and in further awarding her punitive damages, the jury
effectively found that Re-Direct’s behavior was at least reckless.
On the issue of § 1983 liability, the district court instructed the
jury that the plaintiff could not prevail unless it found that Re-
8
Direct acted with “deliberate indifference” to Kenneth’s “right
under the Fifth Amendment of the United States Constitution[,
as] an individual who is in state custody[, ] to safe conditions
and security from physical harm,” and that such indifference
was the proximate cause of his death. Trial Tr. 747-48. The
court went on to define “deliberate indifference” as “the
conscious or reckless disregard of the consequences of one’s
acts or omissions. Deliberate indifference requires more than
negligence or ordinary lack of care.” Id. at 749. On the issue of
punitive damages, the court informed the jury that it could
award such damages only if it found that “the conduct of Re-
Direct . . . was maliciously, or wantonly, or oppressively done.”
Id. at 754. In short, to arrive at these verdicts, the jury
necessarily found that Re-Direct was (at the very least) reckless.
Re-Direct offers no grounds for concluding that it was
unreasonable for the jury to find that Re-Direct recklessly
disregarded Kenneth’s safety, and we therefore affirm that
finding. Nor does Re-Direct assert that Kenneth was himself
reckless, see Oral Arg. Recording at 5:55, which, if it were true,
would have permitted Re-Direct to rely on a contributory
negligence defense notwithstanding its own recklessness, see
RESTATEMENT (SECOND) OF TORTS § 482 (stating that “a
plaintiff’s contributory negligence does not bar recovery for
harm caused by the defendant’s reckless disregard for the
plaintiff’s safety,” except where the plaintiff’s conduct was “in
reckless disregard of his own safety”); Trial Tr. 745
(contributory negligence instruction) (same). Accordingly, even
if Kenneth were contributorily negligent and his negligence
proximately caused his death, Re-Direct’s reckless disregard for
his safety would render it liable for his death and ineligible for
judgment as a matter of law.
9
III
Re-Direct also contends that the district court committed
three trial errors that warrant a new trial. The defendant raised
two of these alleged errors in its unsuccessful motion for a new
trial in the district court, and it raises the third for the first time
on this appeal.
A
We review the district court’s denial of Re-Direct’s motion
for a new trial “only for an abuse of discretion.” Daskalea v.
District of Columbia, 227 F.3d 433, 443 (D.C. Cir. 2000). We
review the court’s evidentiary rulings under an abuse of
discretion standard as well. Whitbeck v. Vital Signs, Inc., 159
F.3d 1369, 1372 (D.C. Cir. 1998). We find no merit in either of
the assertions of error that Re-Direct raised in the district court,
and therefore hold that the court did not abuse its discretion in
denying Re-Direct’s motion for a new trial.
Re-Direct asserts, first, that the district court erred when it
excluded the testimony of a Metropolitan Police Department
detective, Ray Crawford, regarding the motive of Kenneth’s
attackers, one of whom the detective had apparently
interviewed. Specifically, it complains that Crawford “was not
permitted to testify . . . that [Kenneth] had stolen drugs and
money from the assailants.” Appellant’s Br. 11.
The district court excluded the proffered testimony as
inadmissible hearsay. See 397 F. Supp. 2d. at 10. At his pretrial
deposition, Crawford acknowledged that he did not have any
independent evidence regarding the motive for Kenneth’s
murder. See Crawford Dep. 18, 37 (Aug. 30, 2004). The only
thing that Crawford did have was the attacker’s statement that
“he beat [Kenneth] because [Kenneth] had stolen money from
10
his coat in September or October of last year.” Aff. in Supp. of
Arrest Warrant. This kind of out-of-court statement, “offered
in evidence to prove the truth of the matter asserted,” constitutes
hearsay, FED. R. EVID. 801(c), which is inadmissible at trial
unless it comes within an authorized exception, see FED. R.
EVID. 802. Because Re-Direct suggested no exception that
would have rendered the detective’s recitation of the assailant’s
interview statement admissible, the district court was plainly
correct in excluding such testimony. And because the detective
had no other information regarding the motive for the attack, the
court was correct to exclude his testimony on the general subject
as well. See FED. R. EVID. 602 (providing that a “witness may
not testify to a matter unless . . . the witness has personal
knowledge of the matter”); id. advisory committee’s notes to
1972 proposed rules (explaining that Rule 602 “prevent[s]” a
witness “from testifying to the subject matter of [a] hearsay
statement, as he has no personal knowledge of it”). Indeed, at
oral argument, Re-Direct essentially conceded that exclusion
was proper. See Oral Arg. Recording at 9:21.
Second, Re-Direct asserts that the district court erred in
permitting the plaintiff’s juvenile justice expert, Paul DeMuro,
“to testify to a pattern of ‘deliberate indifference’” on the part of
Re-Direct, because DeMuro “did not render an opinion” on that
point in the expert report the plaintiff filed pursuant to Federal
Rule of Civil Procedure 26. Appellant’s Br. 11. But DeMuro
never gave any such opinion testimony; in fact, he never used
the term “deliberate indifference” at all. Because Re-Direct
does not cite any transcript pages to support its argument, the
best we can do is guess that it is referring to DeMuro’s
descriptive (and somewhat ambiguous) testimony that, in Re-
Direct’s transitional living program, he “saw the same kinds of
issues, both with lack of staff training[ and] lack of
accountability,” that surrounded the murders of youths in Re-
Direct’s independent living program. Trial Tr. 388.
11
Under Rule 26(a)(2)(B), a party using an expert witness
must disclose a report containing, inter alia, “a complete
statement of all opinions to be expressed and the basis and
reasons therefor.” FED. R. CIV. P. 26(a)(2)(B). The purpose of
the rule is to eliminate “unfair surprise to the opposing party.”
Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284
(8th Cir. 1995). But it “does not limit an expert’s testimony
simply to reading his report. . . . The rule contemplates that the
expert will supplement, elaborate upon, [and] explain . . . his
report” in his oral testimony. Thompson v. Doane Pet Care Co.,
470 F.3d 1201, 1203 (6th Cir. 2006); see Minebea Co. v. Papst,
231 F.R.D. 3, 8 (D.D.C. 2005). Under Rule 37(c)(1), if a party
fails to disclose the information required by Rule 26(a), its
expert may not testify as to that information -- “unless such
failure is harmless.” FED. R. CIV. P. 37(c)(1).
DeMuro’s testimony did not run afoul of Rules 26 or 37 --
or if it did, the testimony was nonetheless admissible because
any transgression was harmless under Rule 37. See FED. R. CIV.
P. 37(c)(1). The expert’s testimony could hardly have been an
unfair surprise to Re-Direct, as it was largely an elaboration of
DeMuro’s written report, which noted that he reviewed fatality
reports regarding two of the youths who had died while enrolled
in Re-Direct’s independent living program. Moreover, DeMuro
was deposed before trial, and during his deposition discussed his
testimony in an earlier case that involved one of those deaths.
See supra note 3. Hence, as the district court held, “defense
counsel had adequate warning that DeMuro had observed earlier
problems with the Re-Direct program and an adequate
opportunity to question whether those observations factored into
the conclusions expressed in his written report.” 397 F. Supp.
2d at 11.
We further agree with the district court that, even if it
should not have admitted DeMuro’s testimony, the testimony
12
was harmless within the meaning of Federal Rule of Civil
Procedure 61. That rule directs courts to disregard any error or
defect in the proceeding that does not “affect the substantial
rights” of the parties, FED. R. CIV. P. 61, which “means that the
error must have been prejudicial: It must have affected the
outcome of the district court proceedings,” United States v.
Olano, 507 U.S. 725, 734 (1993) (defining “affect[] substantial
rights” as used in FED. R. CRIM. P. 52(b)). As the district court
found, Re-Direct “has failed to show that DeMuro’s testimony,
even if surprising, was unfairly prejudicial.” 397 F. Supp.2d at
11. For one thing, before DeMuro even took the stand, the
former CEO of Re-Direct had already testified about the
murders that occurred at Re-Direct’s independent living
program. See Trial Tr. 261-62. Moreover, “the jury had ample
evidence” other than DeMuro’s challenged testimony “from
which to conclude that Re-Direct was ‘deliberately indifferent’
to Kenneth’s safety and that its failure to properly care for
Kenneth was part of a ‘custom’ or ‘practice.’” 397 F. Supp. 2d
at 11. Among other things, the jury heard testimony that Re-
Direct: failed to maintain proper records on whether Kenneth
had received his medications, Trial Tr. 181-82, 196; falsely
represented that it was providing services to Kenneth when it
was not, id. at 132-34; see also Pl.’s Ex. 7; and did not feel
obligated to monitor Kenneth’s attendance at court-ordered
treatment programs, Trial Tr. 287. “In light of these and the
many other examples of Re-Direct’s persistent failings,” we, like
the district court, “cannot assume that DeMuro’s testimony
regarding the prior deaths of youths in Re-Direct’s care was a
crucial element in the jury’s decisionmaking process.” 397 F.
Supp. 2d at 11.
B
The third alleged trial error asserted by Re-Direct is its
claim that the district court incorrectly instructed the jury
13
regarding the standard for finding Kenneth contributorily
negligent. Because Re-Direct failed to object to the instruction
at trial, we may only consider this claim if the instruction
constitutes “a plain error . . . affecting substantial rights.” FED.
R. CIV. P. 51(d)(2). As the notes of the Advisory Committee
indicate, review under this provision -- which was added to the
Federal Rules of Civil Procedure in 2003 -- is reserved for
“exceptional circumstances.” FED. R. CIV. P. 51 advisory
committee’s notes to 2003 amendments. The language of the
provision “is borrowed from [Federal Rule of Criminal
Procedure] 52.” Id.5 And as “[t]he Supreme Court has
summarized[,] application of” that rule “involve[s] four
elements: (1) there must be an error; (2) the error must be plain;
(3) the error must affect substantial rights; and (4) the error must
seriously affect the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citing Johnson v. United States, 520
U.S. 461, 466-67, 469-70 (1997)).
Re-Direct contends that the district court erred when it
instructed the jury regarding contributory negligence as follows:
You should use the same basic rules that you used to
decide whether Re-Direct was negligent to decide
whether Kenneth was negligent. In considering
whether Kenneth exercised “ordinary care,” you should
consider whether Kenneth’s actions were those of a
reasonable person . . . with similar mental health
problems.
5
“[A]ctual application” of the provision, however, should “take[]
account of the differences” between civil litigation and criminal
prosecution. FED. R. CIV. P. 51 advisory committee’s notes to 2003
amendments; see Higbee v. Sentry Ins. Co., 440 F.3d 408, 409 (7th
Cir. 2006).
14
Trial Tr. 746 (emphasis added). According to Re-Direct,
“[t]here was no justification for the [j]ury being instructed that
the plaintiff had ‘mental health problems’” because there was
“no evidence of ‘mental health problems.’” Appellant’s Br. 23.
We need not belabor the plain error test to resolve this
contention, as Re-Direct plainly cannot satisfy it. First, we
reject Re-Direct’s claim of error -- and, a fortiori, of plain error.
Re-Direct’s assertion that there was “no evidence” that Kenneth
had “mental health problems,” Appellant’s Br. 23, is simply
wrong. In fact, the record is replete with such evidence:
DeMuro testified that Kenneth had “mental health problems,”
Trial Tr. 383, and had spent “two or three periods of time in a
psychiatric hospital,” id. at 382; a psychiatrist who reviewed
Kenneth’s medical records testified that he was diagnosed with
both conduct disorder and depression, id. at 185; the psychiatrist
further testified that Kenneth was being treated with an
antidepressant and an “atypical antipsychotic,” id. at 186; and a
progress report filed with the Superior Court during Kenneth’s
inpatient stay at the psychiatric hospital showed that he had
received treatment for a “history of mental, emotional, and
behavioral issues” that manifested themselves in “suicidal and
homicidal ideations,” “auditory hallucinations and unstable
mood,” and “depress[ion],” Pl.’s Ex. 2, at 5.
Second, even if the instruction were erroneous, we do not
understand why Re-Direct thinks it was injurious. The court’s
command to “consider whether Kenneth’s actions were those of
a reasonable person . . . with similar mental health problems”
may have made it harder for the jury to conclude that Kenneth
was negligent. But in the end, the jury did conclude that he was
negligent. Verdict Form at I.A.3. The third element of the plain
error test requires that the alleged error “‘affect[] substantial
rights,’” Johnson, 520 U.S. at 467 (quoting Olano, 507 U.S. at
732), which, as we have noted above, “means that the error must
15
have been prejudicial,” Olano, 507 U.S. at 734. Since the jury
found Kenneth negligent notwithstanding the instruction, Re-
Direct could not have been prejudiced by the error it assertedly
contained.6
IV
Because Re-Direct’s challenges -- both to the jury’s verdict
and to the district court’s rulings -- are wholly without merit, the
judgment of the district court is
Affirmed.
6
As noted in Part II, although the jury concluded that Kenneth
was negligent, it also found that his negligence was not the proximate
cause of his death. Re-Direct does not contend that the asserted error
in the negligence instruction affected the jury’s finding regarding
proximate cause.