Harvey v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 24, 2015 Decided August 18, 2015

No. 13-7082

DAVID HARVEY, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF CURTIS SUGGS,
APPELLEE

v.

DISTRICT OF COLUMBIA,
APPELLANT

Consolidated with 13-7090, 13-7101, 13-7111

Appeals from the United States District Court
for the District of Columbia
(No. 1:02-cv-02476)

Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellant. With him on the briefs were Irvin B.
Nathan, Attorney General at the time the brief was filed, Todd
S. Kim, Solicitor General, and Loren L. Alikhan, Deputy
 2
Solicitor General. Mary L. Wilson, Assistant Attorney
General, entered an appearance.

Marc Fielder argued the cause for appellee. With him on
the brief was Harvey S. Williams.

Before: GRIFFITH and SRINIVASAN, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

SENTELLE, Senior Circuit Judge: Curtis Suggs died
while residing in a group home operated by District of
Columbia contractor, Symbral Foundation for Community
Services, Inc. David Harvey, as personal representative of the
estate of Suggs, brought suit against the District, Symbral, and
Symbral’s owners, Leon and Yvonne Mohammed, asserting
violations under 42 U.S.C. § 1983, federal law regulating
community residential facilities, and the common law. The
district court granted summary judgment to Harvey against
the District on the § 1983 claim and negligence claims, and
against Symbral and the Mohammeds for negligence. Harvey
v. Mohammed (“Harvey I”), 841 F. Supp. 2d 164, 177, 186–
89 (D.D.C. 2012). The district court also held as a matter of
law that the District was liable under D.C. Code § 7-
1305.05(g). Symbral and the Mohammeds settled before a
jury trial on damages against the District. After verdict, the
court entered judgment against the District for $2.65 million.
The District moved for a new trial. The court denied the
motion. Harvey v. Mohammed (“Harvey II”), 941 F. Supp. 2d
93, 99–100 (D.D.C. 2013). The District appeals, assigning as
error the grant of summary judgment and the denial of its
post-trial motion. We affirm the judgment as to liability. As
to damages, because the district court erred in excluding
 3
causation evidence, we vacate and remand for
reconsideration.
I. BACKGROUND
Curtis Suggs was severely disabled. He was diagnosed
with profound cognitive and adaptive intellectual disabilities,
cerebral palsy, controlled seizure disorder, scoliosis,
presbyopia, hearing loss, and urinary incontinence. As an
adult, he had approximately the functional capacity of a two-
year-old child. While he could feed himself, use the
bathroom, and walk, he was unable to wash or dress himself,
and required constant care and supervision.

After the death of his parents, Suggs lived with his sister,
Carrie Weaver. In 1967, Weaver petitioned the district court
to have Suggs committed to the District’s custody because his
family could no longer care for him. Under a 1925 Act
governing commitment of intellectually disabled individuals,
the district court found Suggs to be “feeble-minded,”
“incapable of managing his affairs,” and a “fit subject for
commitment to and treatment at the District Training School,”
and ordered him committed to the District’s custody. Harvey
I, 841 F. Supp. 2d at 171; see An Act to provide for
commitments to, maintenance in, and discharges from the
District Training School, and for other purposes, Pub. L. No.
68-578, 43 Stat. 1135 (1925).

Following his commitment, Suggs resided at Forest
Haven, a District institution for the mentally disabled. In
1976, Suggs was part of a class action lawsuit alleging
various constitutional violations arising from poor conditions
at the facility. The District agreed via consent judgment to
close Forest Haven and place all of its residents in
“community living arrangements.” Evans v. Williams, 206
F.3d 1292, 1293 (D.C. Cir. 2000). The District also enacted
 4
the Mentally Retarded Citizens Constitutional Rights and
Dignity Act of 1978, establishing the Mental Retardation and
Developmental Disabilities Administration (“MRDDA”) as
the District agency responsible for the care and habilitation of
persons legally committed to its custody. Harvey I, 841 F.
Supp. 2d at 171. In 1984, the District placed Suggs at a group
home operated by Symbral, where he resided until his death
in 2000.

As the district court explained, “[a]lthough MRDDA
contractually delegated the day-to-day responsibility for the
care and habilitation” of Suggs to Symbral, “MRDDA
remained the agency legally responsible for Mr. Suggs.” Id.

. . . Mr. Suggs’s MRDDA case manager was
responsible for overseeing all of the components of
Mr. Suggs’s individual habilitation plan (“IHP”), a
written plan which detailed his strengths, weaknesses,
and goals based on assessments by therapists,
clinicians, and other health care professionals. The
IHP is developed by the Inter–Disciplinary Team
(“IDT”) comprised of clinicians such as a nurse, a
speech and language pathologist, physical and
occupational therapists, the MRDDA case manager,
and the Symbral [qualified mental retardation
professional]. Mr. Suggs’s MRDDA case manager
was required to coordinate and monitor the IHP and
was responsible for approving the IHP document.
Additionally, the case manager was responsible for
following up on medical recommendations made in
the IHP to ensure that Mr. Suggs received those
services. If Mr. Suggs was not receiving services in
accordance with his IHP, the case manager was
expected to inform Symbral and the case manager’s
supervisor. Mr. Suggs’s MRDDA case manager was
 5
required to visit him at least four times per year to
carry out these responsibilities.

Id.

In 1994, Suggs’s IHP reported that he was in good health
and could feed himself, stand with support, and respond to
communication from his peers. Beginning in 1995, he
experienced a decline in motor function. The 1995 and 1996
IHPs for Suggs stated that he lost strength in his upper
extremities, depended on staff to feed him, and became
incontinent. In September 1995, his physical therapist noted
this deterioration and recommended a neurology consultation
to explore the cause. Id. On March 5, 1996, Suggs’s
MRDDA case manager, Sarah Jenkins, met with the Inter-
Disciplinary Team for Suggs at Symbral and noted the
recommendation by the physical therapist for a neurology
consultation. Neither Jenkins nor the Team included the
recommendation for the neurology consultation in Suggs’s
1996 IHP, despite acknowledging his loss of motor function
and his inability to feed himself. Id.

On February 20, 1997, the Healthcare Finance
Administration issued a deficiency notice to Symbral for
failing to promptly schedule the consult in 1995. The
surveyor issued the Deficiency Notice to Yvonne
Mohammed, who signed a Plan of Correction stating that
Symbral would “make all medical appointments within one
month of the recommendation.” Id. That same day,
Mohammed scheduled a neurology appointment for Suggs.

On March 7, 1997, Georgetown Neurologist Kenneth
Plotkin examined Suggs. Dr. Plotkin thought that cervical
stenosis (compression of the cervical spine) could be the
cause of Suggs’s decreased ability to use his upper
 6
extremities, and recommended that an MRI be taken of
Suggs’s cervical spine as soon as possible. Dr. Plotkin
reiterated this warning again on April 1, 1997. On April 18,
1997, Georgetown Hospital conducted the requested MRI.
The MRI showed severe spinal stenosis at the C-2 level of
Suggs’s spine.

Dr. Plotkin ordered a follow-up appointment for May 1,
1997, but Symbral did not schedule an appointment until June
27, 1997. At that follow-up visit, Dr. Plotkin recommended
that Suggs be examined by a neurosurgeon to determine
whether surgery could prevent further loss of function. As of
September 1997, Symbral had yet to schedule the
recommended consultation.

Finally, in November 1997, neurosurgeon Dr. Fraser
Henderson examined Suggs and recommended that he receive
a laminectomy “in the next few weeks” to relieve pressure on
the spinal cord. On December 16, 1997, Dr. Plotkin wrote
Symbral and “recommended proceeding with the C-1-3
laminectomy as per Dr. Henderson to be scheduled ASAP.”
Instead of proceeding with the laminectomy, Suggs’s Inter-
Disciplinary Team waited four months, then decided on
March 19, 1998, to take Suggs in for a second opinion.
Suggs’s team did not seek the second opinion regarding the
neck surgery until April 1999, despite taking Suggs to two
separate neurology visits at Howard University Hospital. Not
surprisingly, Dr. Mills at Howard University recommended
the surgery at the April appointment. Still, Suggs never
received the laminectomy. In December 1999, a
neurosurgeon at Providence Hospital concluded that surgery
was unlikely to meaningfully improve Suggs’s motor function
or neurological status.
 7
Suggs’s cervical compression gradually caused him to
experience a decline in motor function until he could no
longer feed himself, chew his food, or walk. He suffered
from frequent incontinence, dehydration, and decubitus
ulcers. Eventually, his diaphragm became paralyzed, which
led to his inability to breathe and his death on June 20, 2000.

Following Suggs’s death, Harvey brought a suit for
damages on behalf of Suggs’s estate against Symbral, Leon
and Yvonne Mohammed, and the District. The complaint
alleged numerous counts against the various defendants on
various theories of negligence and breach of fiduciary duty.
The other defendants no longer being party to the lawsuit,
only those claims asserted against the District are before us.
As remains relevant to this appeal, the complaint alleged and
the district court entered judgment on claims against the
District for violation of Suggs’s constitutional rights,
specifically, his right to due process under the Fifth
Amendment; common law negligence against the District;
and a statutory claim against the District under D.C. Code
§ 7-1305.14(c). The district court granted summary judgment
to Harvey on his Fifth Amendment claim against the District;
his negligence claims against the District, Symbral, and the
Mohammeds; and his statutory claim against the District
under D.C. Code § 7-1305.14(c). Harvey I, 841 F. Supp. 2d
at 177–79, 186–90; Harvey v. Mohammed (“Harvey III”), 951
F. Supp. 2d 47, 53 (D.D.C. 2013). Symbral and the
Mohammeds settled with Harvey before trial on damages.
The jury entered a verdict awarding Harvey $2.9 million, of
which $500,000 was for the amount of suffering Suggs
experienced between December 23, 1999 and June 30, 2000.
The district court, finding that the $500,000 amount
represented the money to which Harvey was entitled under his
negligence and statutory claims, allowed for contribution on
that element of damages and entered judgment against the
 8
District for $2.65 million. The court then awarded Harvey
roughly $1.2 million in attorney fees and costs under 42
U.S.C. § 1988. Harvey III, 951 F. Supp. 2d at 52.1

II. ANALYSIS
On appeal, the District raises multiple assignments of
error. First, the District argues that the district court erred in
granting summary judgment to Harvey on his § 1983 claim.
Second, the District asserts it is entitled to summary judgment
on Harvey’s negligence and statutory claims because Harvey
failed to give the District adequate notice of his claims under
D.C. Code § 12-309. Lastly, the District contends that the
court abused its discretion in excluding evidence that the
District’s actions did not proximately cause Suggs’s health
decline. After reviewing the record of the case and
considering the arguments of the parties, we conclude that the
district court did not err in entering summary judgment
against the District on Harvey’s § 1983 claim, and we affirm
that portion of the decision on review. We reverse the district
court’s grant of summary judgment to Harvey on his
negligence and statutory claims, concluding that those claims
are barred under D.C. Code § 12-309. Because the district
court abused its discretion by excluding causation evidence,
we vacate the damages and remand for reconsideration.

A. Harvey’s § 1983 Claim
Summary judgment is appropriate when the moving party
demonstrates that “there is no genuine issue as to any material

1
Harvey cross appealed the district court’s award of attorney fees,
arguing that the district court made several computational errors
and that he was entitled to an additional $67,965.13 in fees. When
asked about this claim at oral argument, Harvey informed the Court
that he was withdrawing the appeal. See Oral Arg. Recording
28:56–29:10.
 9
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In determining whether a
genuine issue of material fact exists, the court must view all
facts, and draw all reasonable inferences, in the light most
favorable to the non-moving party. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). We review
the district court’s grant of summary judgment de novo. Ark
Initiative v. Tidwell, 749 F.3d 1071, 1074 (D.C. Cir. 2014).

In this case, the district court entered summary judgment
against the District on Harvey’s claim that the District
violated Suggs’s substantive due process rights by acting with
deliberate indifference towards Suggs’s serious medical
needs.

To sustain a claim against a municipality under § 1983, a
plaintiff must show that the policy or custom of the
municipality caused a violation of the plaintiff’s constitutional
rights. Monell v. Department of Social Srvs. of New York,
436 U.S. 658, 694–95 (1978); Baker v. District of Columbia,
326 F.3d 1302, 1306 (D.C. Cir. 2003). More specifically, in
this case, Harvey must establish: (1) “a predicate claim of
deliberate indifference by [District] officials to [Suggs’s]
serious medical needs” in violation of his Due Process rights;
and (2) “that a policy or custom of the District of Columbia
caused” that constitutional violation. Baker, 326 F.3d at
1306.

The Supreme Court has historically been “reluctant to
expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended.” Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 125 (1992). To constitute a
substantive due process violation, the defendant official’s
behavior must be “so egregious, so outrageous, that it may
 10
fairly be said to shock the contemporary conscience.” Estate
of Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C.
Cir. 2006) (quoting Cnty. of Sacramento v. Lewis, 523 U.S.
833, 847 n.8 (1998)). As the Supreme Court has frequently
reminded us, the due process right “does not transform every
tort committed by a state actor into a constitutional violation.”
DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489
U.S. 189, 202 (1989). We must first determine precisely what
constitutional right has allegedly been violated. See, e.g.,
Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Estate
of Phillips, 455 F.3d at 403 (“It is therefore important . . . to
focus on the allegations in the complaint to determine how
petitioner describes the constitutional right at stake . . . .”
(internal quotations omitted)). Harvey asserts that Suggs had
a right as an involuntarily committed mental patient to all
necessary medical treatment.

“[T]he Due Process Clauses generally confer no
affirmative right to governmental aid, even where such aid
may be necessary to secure life, liberty, or protect property
interests of which the government itself may not deprive the
individual.” DeShaney, 489 U.S. at 196. However, “when
the State by the affirmative exercise of its power so restrains
an individual’s liberty that it renders him unable to care for
himself,” “the Constitution imposes upon the State affirmative
duties of care and protection with respect to” that individual.
Id. at 198, 200. In other words, when the State “enter[s] into
‘certain special relationships’ with the person,” the
government has a “due process obligation to attend to his
medical needs.” Harris v. District of Columbia, 932 F.2d 10,
13–14 (D.C. Cir. 1991) (quoting DeShaney, 489 U.S. at 197).
“The affirmative duty to protect arises not from the State’s
knowledge of the individual’s predicament or from its
expressions of intent to help him, but from the limitation
 11
which it has imposed on his freedom to act on his own
behalf.” DeShaney, 489 U.S. at 200.

When the state has a heightened obligation toward an
individual, “governmental ‘deliberate indifference’ will shock
the conscience sufficiently” to establish a substantive due
process violation. Smith, 413 F.3d at 93. Therefore, to
prevail on the due process claim, Harvey was required to
show that the District had such a “special relationship” with
Suggs and that while in that special relationship, the District
acted with deliberate indifference to his medical needs. He
was then required to show, under Monell, that the violation of
Suggs’s rights was the result of a governmental policy or
custom of the District. We affirm the district court’s
conclusion in granting summary judgment that Harvey has in
fact established those elements.

1. The District Owed a Duty to Suggs

In Youngberg v. Romeo, 457 U.S. 307 (1982), the
Supreme Court held that the State has an affirmative duty to
ensure the safety and general well-being of an involuntarily
committed mental patient. Id. at 315–16. This affirmative
duty includes the duty to provide necessary medical care. See
Harris, 932 F.2d at 14. The District involuntarily committed
Suggs to its care, and thus, under Youngberg, entered into a
special relationship with Suggs. Under the District’s revised
statutory scheme governing the commitment of intellectually
disabled individuals, a parent or guardian of an intellectually
disabled individual may file a petition with the superior court
to have the individual “committed to a facility.” D.C. Code
§ 6-1924 (1978). Under that statute, “commitment” means
the “placement in a facility, pursuant to a court order, of an
individual who is at least moderately mentally retarded at the
request of the individual’s parent or guardian without the
 12
consent of the individual.” D.C. Code § 6-1902(4) (1978)
(emphasis added).

The District does not dispute that Suggs was
involuntarily committed to its care, or that it owed an
affirmative duty to Suggs while he resided at Forest Haven.
See District’s Br. 32–33 (acknowledging mental patients are
entitled to substantive due process rights when confined to a
“state institution”); Evans v. Washington, 459 F. Supp. 483,
484 (D.D.C. 1978) (entering into consent order stipulating
that the “residents of Forest Haven . . . have a federal
constitutional right to habilitative care and treatment based
upon the Due Process Clause of the Fifth Amendment”).
Rather, the District argues that once Suggs left Forest Haven
and moved into a private home, it was no longer in a special
relationship with him. It argues that while living in the group
home operated by Symbral, Suggs was in the “least restrictive
conditions necessary to achieve the purposes of habilitation,”
D.C. Code § 7-1305.03, such that it no longer deprived Suggs
of his liberty in a manner giving rise to a special relationship.
We disagree.

Suggs’s circumstance parallels the situation we addressed
in Smith v. District of Columbia, 413 F.3d 86 (D.C. Cir.
2005). In Smith, we considered whether the District owed a
heightened obligation toward a juvenile delinquent whom the
District had placed with a private company that operated
“independent living” programs for delinquent youth. Id. at
89–90. The District insisted it owed no obligation to the
juvenile because his “liberty was unconstricted”: subject to
program rules, he could “come and go” and “take [program-
approved] weekend home visits.” Id. at 94. We rejected this
argument, noting that “such flexibility hardly amounts to
freedom from state restraints.” Id. We held that, even if the
juvenile was subject only to the “lesser” of several restrictive
 13
options, he was still being held “against his will,” and the
District had a heightened duty to assume some responsibility
for his well-being. Id. at 94–95.

Similarly, the fact that Suggs was held in the least
restrictive setting does not negate the involuntary nature of his
commitment or the District’s duty under Youngberg to ensure
he received adequate medical care. See DeShaney, 489 U.S.
at 199–200 (“[W]hen the State takes a person into its custody
and holds him there against his will, the Constitution imposes
upon it a corresponding duty to assume some responsibility
for his safety and general well-being.”).

2. The District Was Deliberately Indifferent
to Suggs’s Needs
Harvey suggests the district court erred when it applied
the subjective indifference standard from Farmer v. Brennan,
511 U.S. 825 (1994), because that case involved a convicted
inmate. In his view, individuals like Suggs “‘who have been
involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish.’” Harvey’s
Br. 38 (quoting Youngberg, 457 U.S. at 321–22). When
considering whether the denial of treatment to an
involuntarily committed patient violated due process,
“liability may be imposed only when the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base
the decision on such judgment.” Youngberg, 457 U.S. at 323;
see also Patten v. Nichols, 274 F.3d 829, 842 (4th Cir. 2001)
(applying the Youngberg standard to an involuntarily
committed patient’s claim that his due process rights were
violated). But see Chapman v. Keltner, 241 F.3d 842, 845
 14
(7th Cir. 2001) (applying the deliberate indifference standard
to a denial-of-medical care claim asserted by a pretrial
detainee). We need not decide that issue as Harvey prevails
even under the deliberate indifference standard.

To establish a constitutional violation under that
standard, Harvey must show that the District was deliberately
indifferent to Suggs’s serious medical needs. An official is
deliberately indifferent when she has “subjective knowledge
of the [plaintiff’s] serious medical need and recklessly
disregard[s] the excessive risk to [his] health or safety from
that risk.” Baker, 326 F.3d at 1306. The District does not
dispute that Suggs’s MRDDA case manager, Jenkins, was a
District official. See District’s Reply Br. 1.

The evidence establishes that Jenkins knew of Suggs’s
medical needs and recklessly disregarded an excessive risk to
Suggs’s health. The record shows that, as of March 1996,
Jenkins was aware that Suggs was experiencing a rapid
decline in motor function, that he was no longer able to feed
himself, and that his physical therapist recommended he
receive a neurology consultation to determine the cause of the
deterioration. Yet she neither noted this recommendation in
Suggs’s IHP, nor took necessary steps to ensure that Suggs
visited a neurologist. It was only after the Healthcare Finance
Administration issued a deficiency notice to Symbral for
failing to promptly schedule the recommended appointment
that Suggs finally met with a neurologist in March 1997, at
least one year after Jenkins learned of the recommendation.

Jenkins’s failure to ensure that Suggs received all
necessary medical treatment continued. On March 7, 1997,
the neurologist recommended that Suggs get an MRI
“ASAP.” Suggs did not get an MRI until April 18, 1997, 43
days after the recommendation. The neurologist then
 15
requested that Suggs schedule a follow-up appointment for
May 1, 1997. Symbral did not bring Suggs back to the
neurologist until June 27, 1997, 58 days after the request. At
that meeting, the neurologist recommended that Suggs visit a
neurosurgeon to determine whether surgery was a viable
option. The appointment with the neurosurgeon did not occur
until November 11, 1997, 138 days after the request. At the
appointment, the neurosurgeon recommended that Suggs
receive a laminectomy “in the next few weeks.” The
neurologist reiterated that the surgery needed to “be scheduled
ASAP.” However, Suggs’s team, which included Jenkins,
waited four months and then decided to get a second opinion.
Suggs was not taken to the doctor for a second opinion until
April 30, 1999, 408 days after the team decided to seek a
second opinion and 536 days after the first neurosurgeon
recommended that surgery be performed in a few weeks.
Predictably, the second neurologist recommended that Suggs
get a laminectomy. Predictably, Suggs never received the
surgery.

In short, Jenkins repeatedly failed to monitor Suggs’s
care and ensure that he was receiving necessary medical
treatment. We conclude that under these facts Jenkins acted
with deliberate indifference toward Suggs’s medical needs in
violation of his substantive due process right to receive
necessary medical treatment.

3. The District’s Custom Caused the
Constitutional Violation
We next determine whether a District custom or policy
caused the violation of Suggs’s constitutional rights. Harvey
may establish such causation by showing that a District
policymaker’s ignoring of a practice was “consistent enough
to constitute custom.” Warren v. District of Columbia, 353
 16
F.3d 36, 39 (D.C. Cir. 2004). Or he may show that the
District responded to a need “in such a manner as to show
‘deliberate indifference’ to the risk that not addressing the
need will result in constitutional violations.” Id. (quoting
Baker, 326 F.3d at 1306). The “deliberate indifference”
standard for establishing a municipal policy is distinct from
that required to show an underlying constitutional violation.
It is an objective standard, “determined by analyzing whether
the municipality knew or should have known of the risk of
constitutional violations, but did not act.” Jones v. Horne,
634 F.3d 588, 601 (D.C. Cir. 2011) (internal quotation marks
omitted). Only if a municipal policy was “so likely to result
in the violation of constitutional rights,” and the need to
change the policy “so obvious,” could “policymakers of the
city . . . have been deliberately indifferent to the need.” City
of Canton v. Harris, 489 U.S. 378, 390 (1989).

The District maintains that the district court erred in
granting summary judgment to Harvey because he failed to
show that it is the District’s policy or custom to subject those
enrolled within its development disability programs to
constitutional violations. We disagree.

The District has a longstanding practice of deliberate
disregard of the medical needs of involuntarily committed
mental patients. In 2000, the District, in litigation stemming
from the 1976 class action by Forest Haven residents,
admitted that its “system of support for individuals with
developmental disabilities . . . represent[s] one of the most
serious breakdowns in the District government over the last
two decades.” Evans v. Williams, 139 F. Supp. 2d 79, 96
(D.D.C. 2001). It acknowledged that it “fundamentally failed
its obligation to disabled persons,” and that its programs were
“highly dysfunctional” and “seriously broken.” Id. at 97–98.
 17
The District was aware of these failures, but did not act.
In 1996, a federal district court found that the District had,
“for over two years, chronically and unapologetically
violated” its agreement to ensure that the needs of the
intellectually disabled are met. Evans v. Barry, No. 76-cv-
293, 1996 WL 451054, at *2 (D.D.C. Aug. 2, 1996). In 1997,
a court monitor found that Evans class members “are
frequently denied necessary health services and/or adaptive
equipment, sometimes resulting in physical injury.” Report to
the United States District Court for the District of Columbia,
Evans v. Barry, No. 76-0293 (Oct. 1, 1999), Joint Appendix
381. The District has acknowledged it was “aware of
problems of poor care provided at group homes” and its
“systemic failures.” Evans, 139 F. Supp. 2d at 97.

The District argues that the legislature’s enactment of the
intellectual disabilities rights statute in 1979 is sufficient to
rebut evidence that it had a policy of deliberate indifference.
The District’s statutory policy is of “little value,” where, as in
this case, “there is evidence . . . that the municipality was
deliberately indifferent to the policy’s violation.” Daskalea v.
District of Columbia, 227 F.3d 433, 442 (D.C. Cir. 2000). In
the absence of evidence of actual enforcement of its paper
policy, the District has failed to create an issue of triable fact.

The District also argues that while it was aware of
systemic failures in its care for the intellectually disabled, it
was not aware that these failures “could lead to threats to the
life and safety of disabled individuals.” Evans, 139 F. Supp.
2d at 97. Regardless of whether the District had actual
knowledge of constitutional violations, the evidence
establishes that the District should have known that its policy
of deliberate indifference was likely to result in the violation
of rights of the committed person. As noted above, in 1996, a
federal district court warned the District that intellectually
 18
disabled individuals are “ill-equipped” to “defend against the
city’s failure to assist their care providers in giving them the
care and treatment they desperately need.” Evans v. Barry,
1996 WL 451054, at *2. The District’s own compliance
monitor warned that class members are “physical[ly]
injur[ed]” because of the denial of health care services.

The evidence shows that the District knew that its “entire
mental retardation and developmental disabilities system was
fundamentally unable to deliver even the most basic
services,” Evans v. Williams, 139 F. Supp. 2d at 97, but did
not act to cure the problem. Under these facts, we conclude
that the District had a custom or policy of deliberate
indifference to the needs of the intellectually disabled, and
that this policy caused the violation of Suggs’s constitutional
rights.

***

Harvey has shown that Suggs’s substantive due process
rights were violated as a result of the District’s custom of
deliberate indifference. The District has failed to present
evidence creating a triable issue of fact regarding its § 1983
liability. We therefore affirm the district court’s grant of
summary judgment to Harvey on his § 1983 claim against the
District.

B. Harvey’s Negligence and Statutory Claims
The District argues that the district court erred in finding
it liable as a matter of law under a common law theory of
negligence as well as D.C. Code § 7-1305.05(g) because
Harvey’s failure to comply with D.C. Code § 12-309 bars
those claims. Specifically, the District claims that the notices
Harvey filed under § 12-309 were inadequate and untimely.
 19

D.C. Code Section 12-309 provides:

An action may not be maintained against the District
of Columbia for unliquidated damages to person or
property unless, within six months after the injury or
damage was sustained, the claimant, his agent, or
attorney has given notice in writing to the Mayor of
the District of Columbia of the approximate time,
place, cause, and circumstances of the injury or
damage. A report in writing by the Metropolitan
Police Department, in regular course of duty, is a
sufficient notice under this section.

Section 12-309 “imposes a notice requirement on everyone
with a tort claim against the District of Columbia.” District of
Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C. 1995).
Compliance with the statute is mandatory for filing suit
against the District. Brown v. District of Columbia, 853 A.2d
733, 736 (D.C. 2004). The § 12-309 clock starts “the instant
an injury or damage is sustained.” Id. at 737. The statute
does not allow for tolling. Dunmore, 662 A.2d at 1360–61.
Section 12-309 applies to District of Columbia statutory
causes of actions as well as common law claims. Giardino v.
District of Columbia, 505 F. Supp. 2d. 117, 120–21 (D.D.C.
2007). It does not apply to Harvey’s § 1983 claim. Brown v.
United States, 742 F.2d 1498, 1500 (D.C. Cir. 1984) (en
banc).

Harvey filed notice letters with the Mayor’s office on
June 16, 2000, and June 23, 2000, alleging that District
employees negligently monitored Suggs causing him to suffer
from various medical complications. Therefore, if Suggs
sustained an injury on or after December 23, 1999, a date six
months prior to the first notice, the notice was timely. If he
 20
sustained an injury before December 23, 1999, the notice was
untimely, and we must dismiss his negligence and statutory
claims. Thus, to determine whether Harvey’s notices were
timely under § 12-309, we must first determine when Suggs
sustained an injury or damage. For guidance, we look to
District of Columbia Court of Appeals’s precedent, whose
interpretation of the substantive law of the District is binding
on us. Payne v. District of Columbia Gov’t, 722 F.3d 345,
353 (D.C. Cir. 2013).

In Brown v. District of Columbia, the District of
Columbia Court of Appeals addressed the question of when
the § 12-309 notice period begins to run where a claimant
sues the District for “failing to diagnose a medical condition.”
853 A.2d at 737. The Court reasoned that because “patients
in [failure to diagnose] cases generally suffer from an ailment
when they first seek treatment,” the injury, for § 12-309
purposes, “is the worsening or deterioration of the plaintiff’s
condition.” Id. at 739. Harvey’s negligent treatment claim is
similar to a failure to diagnose claim in that the patient suffers
from the ailment before the negligent conduct occurred. And
so, consistent with Brown, we conclude that Suggs sustained
an injury, and thus the § 12-309 clock began to run, when
Suggs’s condition worsened.

Based on our examination of the record, Suggs’s
condition worsened, and he therefore sustained an injury,
prior to December 23, 1999, and his statutory and negligence
claims are barred under § 12-309. Suggs’s 1994 IHP noted
that he “feeds himself independently with a spoon,” is able to
dress himself with physical assistance, and “is independent in
using an empty urinal.” By contrast, his 1996 IHP states that
he “depends on staff for feeding,” “for all functional
dressing,” and for “help with toileting.” He also wore
“depends due to incontinence.” His 1997 IHP notes that he
 21
“continues to regress physically.” By December 1998, he
suffered from “reduced oral motor skills” and a “lack of
chewing skills,” resulting in malnutrition and dehydration.
One year later, on December 2, 1999, Suggs had a skin flap
surgery to address the pressure ulcers that had developed on
his body as a result of his lack of mobility. We cannot state
with medical certainty the exact date on which Suggs’s
untreated condition worsened. At a minimum, Suggs’s
condition had worsened by December 2, 1999, the date of his
skin flap surgery and a date more than six months before
Harvey filed his first § 12-309 notice. We therefore conclude
that Harvey’s statutory and negligence claims are barred
under D.C. Code § 12-309.

Our conclusion regarding the statutory and negligence
claims ultimately makes no difference in the judgment. The
verdict form submitted to the jury posed two questions. First,
“[w]hat amount of money do you find would fairly and
adequately compensate Curtis Suggs for the injuries and
damages he suffered as a result of the District of Columbia’s
deliberate indifference to Mr. Suggs’s medical needs?” The
jury answered, “$2,900,000.” Second, “[o]ut of that total sum
for injuries and damages, what amount is for the suffering of
Curtis Suggs between December 23, 1999 and June 30,
2000.” The jury responded, “$500,000.” In its order granting
in part and denying in part the District’s motion for
contribution, the district court noted that the “$500,000
amount was found by the jury to arise from the District’s
common law negligence,” as well as Harvey’s statutory claim.
Memorandum and Order, Harvey v. Mohammed, No. 02-2476
(D.D.C. Aug. 16, 2012), Joint Appendix 1039. Elsewhere in
the order, the district court made clear that the damages for
the negligence claim “are a sub-part of the total damages to be
awarded to plaintiff under § 1983 because the District’s
negligence and the District’s deliberate indifference ran
 22
concurrently.” Id. at Joint Appendix 1038. That, of course, is
exactly what the jury verdict provided.

The total damages were $2.9 million. Five hundred
thousand of that figure represented the damages incurred
during a distinct period covered by the District’s common law
and statutory tort liability, as well as the constitutional tort.
Nonetheless, as the district court recognized, even absent the
common law and statutory claims, the District was still liable
for the total figure because of its § 1983 liability. The second
jury question was relevant only to whether the District would
receive contribution. That question, of course, has been
settled already. Setting aside the contribution question, the
second response on the jury verdict form is no longer
relevant. The District owes the full amount under question
one because of its constitutional torts. We can therefore
affirm the judgment as it stands. It is well established that “in
cases on appeal from the district court, we are to review
‘judgments, not opinions.’” People’s Mojahedin
Organization of Iran v. U.S. Dept. of State, 182 F.3d 17, 23
n.7 (D.C. Cir. 1999) (quoting Chevron U.S.A. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)).
The judgment entered by the district court is not dependent
upon the grounds to which it is assigned; therefore, as we
uphold one adequate ground, any error as to alternative
theories is immaterial.

C. Causation Evidence
The District claims that the district court erred in
excluding its evidence contesting whether Suggs’s health
decline was due to the District’s deliberate indifference. At
trial, the District sought to admit the expert testimony of
(1) Dr. Slvanus Ayeni, who planned to testify that, at the time
he examined Suggs, he would not have benefitted from a
 23
laminectomy; (2) the testimony of Kachen Alsopp, who
planned to testify to the causes of Suggs’s condition;
(3) Senora Simpson, who planned to testify that Suggs’s
physical deterioration was related to cerebral palsy and his
age; and (4) Dr. David Jackson, who planned to testify that,
due to Suggs’s health issues, he would have suffered more
had he had a laminectomy. Defendant District of Columbia’s
Supplement to Joint Pretrial Statement at 1–2, Harvey v.
Mohammed, No. 1:02-cv-2476 (D.D.C. Mar. 30, 2012), Joint
Appendix 753–54; Joint Pretrial Statement at 17, Harvey v.
Mohammed, No. 1:02-cv-2476 (D.D.C. Mar. 13, 2012), Joint
Appendix 713. The District also sought to admit the opinion
testimony of Dr. Gersh, Suggs’s treating physician, as well as
evidence that it contacted Suggs’s sister to obtain consent for
surgery and that Symbral’s negligence was an intervening
cause of Suggs’s pressure sores.

The district court excluded all the proffered evidence.
First, the district court excluded the testimony of Dr. Ayeni,
Alsopp, and Simpson for failure to comply with Federal Rule
of Civil Procedure 26(a)(2) (governing the disclosure of
expert testimony). Supplemental Pretrial Order, Harvey v.
Mohammed, No. 1:02-cv-2476 (D.D.C. Apr. 5, 2012). The
district court excluded the testimony of Dr. Jackson as
irrelevant. Id. It later explained that evidence supporting the
theory that the laminectomy would have caused Suggs more
harm than good had no bearing upon the “sole remaining
issue of damages.” Harvey II, 941 F. Supp. 2d at 98. The
district court reasoned that in its summary judgment order, it
concluded “that the District’s conduct had caused Mr. Suggs’s
injuries,” and the District “was not allowed to relitigate
liability at trial.” Id. at 99. The district court also excluded
the testimony of Dr. Gersh based on the District’s failure to
comply with Federal Rule of Civil Procedure 26(a)(2)(C). Id.
at 100. Before the 2010 Amendments to the Rules, Rule
 24
26(a)(2) allowed a party to name a treating physician as the
party would name any other witness, that is the party did not
need to provide the opposing side with the subject matter of
the testimony and a summary of the facts and opinions to
which the treating physician was expected to testify. Fed. R.
Civ. P. 26, Advisory Comm. nn. After the amendments,
however, the Rule required such disclosures. Fed. R. Civ. P.
26(a)(2)(C). Although Federal Rule of Civil Procedure
26(a)(2) was not in effect in its current form when the District
initially made its disclosures, the district court noted that “the
Rule went into effect before the close of discovery and the
District in fact complied with [the Rule] with respect to
another potential expert witness.” Harvey II, 941 F. Supp. 2d
at 100. Thus, the district court concluded that the District’s
failure to comply with Rule 26(a)(2) was not “substantially
justified” or “harmless,” and it excluded the evidence. Id.
Lastly, the district court excluded evidence that Symbral’s
negligence was an intervening cause of Suggs’s pressure sores
as irrelevant.

On appeal, the District challenges the district court’s
exclusion of the testimony of Dr. Jackson and Dr. Gersh, as
well as the court’s exclusion of evidence that (1) Suggs’s
health decline was attributable in part to his pre-existing
cerebral palsy and scoliosis; (2) Ms. Weaver, Suggs’s sister,
refused to consent to the laminectomy, thereby severing the
causal chain; and (3) Symbral’s negligence was an
intervening cause for Suggs’s pressure sores.

We review a district court’s evidentiary rulings for abuse
of discretion. Huthnance v. District of Columbia, 722 F.3d
371, 377 (D.C. Cir. 2013). We will reverse an erroneous
evidentiary ruling only if the effort affects a party’s
substantial rights. Id.
 25
The district court did not abuse its discretion in excluding
the testimony of Dr. Jackson. The District argues that Dr.
Jackson’s testimony that Suggs would have suffered had he
received the neck surgery is relevant because Suggs’s
recovery for pain and suffering should be offset by the
amount of pain he would have experienced had he gotten the
surgery. To support this proposition, the District cites
Hamilan Corp. v. O’Neill, 273 F.2d 89 (D.C. Cir. 1959).
Hamilan Corp. does not support the District’s argument. In
that case, we affirmed a jury instruction stating that a plaintiff
who suffers secondary injuries which proximately cause
emotional disabilities may recover damages for such
emotional disabilities as long as they “stem from the original
physical injury in an unbroken chain of causation.” Id. at 91.
In this case, the district court found that Harvey “submitted
substantial evidence on summary judgment demonstrating a
causal connection between the District’s failure to properly
supervise the provision of medical care to Mr. Suggs for his
cervical stenosis, the resulting precipitous decline in Mr.
Suggs’s health, and his ultimate death.” Pretrial Order,
Harvey v. Mohammed, No. 02-cv-2476 (D.D.C. Mar. 22,
2012). A plaintiff is entitled to “recover money damages for
any injuries [he] suffered as a result of the . . . violation.”
Halperin v. Kissinger, 606 F.2d 1192, 1207 (D.C. Cir. 1979)
(emphasis added). The District does not explain how Dr.
Jackson’s evidence negates the injuries Suggs suffered as a
result of the District’s deliberate indifference. That Suggs
might have suffered had he gotten the surgery is irrelevant to
the question of how much he suffered (and the amount of
damages to which he is entitled) because he did not get the
surgery. Dr. Jackson’s testimony was properly excluded.

Next, the district court did not abuse its discretion in
excluding the testimony of Dr. Gersh. Discovery in this case
closed on June 30, 2011, six months after the 2010
 26
Amendments went into effect. Harvey II, 941 F. Supp. 2d at
100. The District offers no excuse for failing to comply with
the amended rules. Moreover, as late as March 30, 2012, one
week before trial, the District sought to add six late-named
witnesses and it still failed to designate Gersh as an expert.
Id. The District did not put forth any reason for this failure.
Under Federal Rule of Civil Procedure 37, “[i]f a party fails to
provide information or identify a witness required by Rule
26(a) . . . the party is not allowed to use that information or
witness . . . at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The
district court found that the District’s failure was not
“substantially justified” or “harmless.” Under these facts, the
district court did not abuse its discretion.

However, the district court abused its discretion in
excluding evidence that Suggs’s decline was at least partially
attributable to his pre-existing medical conditions. That
evidence is relevant to the question of damages, and the
District contends that it should have been allowed to cross-
examine Harvey’s experts about whether Suggs’s pre-existing
conditions were independent factors contributing to his
decline. We agree with the District because “the basic
purpose of a § 1983 damages award should be to compensate
persons for injuries caused by the deprivation of constitutional
rights.” Carey v. Piphus, 435 U.S. 247, 254 (1978). The
district court abused its discretion by not allowing the District
to contest damages by presenting evidence that Suggs’s
decline in health could at least partially be attributed to pre-
existing medical conditions.

Harvey points out that the district court nevertheless
allowed the District to cross-examine an expert on alternative
causes of Suggs’s health problems. Specifically, the District
elicited from Harvey’s expert Dr. Sandhu the admission that
 27
“it’s hard to know how much [of Suggs’s decline] is, you
know, from their cerebral palsy versus something new,” Tr.
Transcript 153:16–19 (Apr. 11, 2012), a fact that the District
emphasized at closing argument, Tr. Transcript 27:5–28:8
(Apr. 18, 2012) (“[T]here’s a lot of evidence in this case
which shows that things that Mr. Suggs had were actually
related to the cerebral palsy and were not related to the
cervical stenosis. For example, Dr. Sandhu, in cross-
examination, testified that curvature of the spine, scoliosis,
and he had kyphosis, which meant it was curved forward, and
scoliosis, which meant it was curved to the side, causes
problems breathing. That is what caused his respiratory
problems. That was part of his testimony.”). Yet the district
court did not allow the District to challenge Dr. Citrin on
cross examination with similar questions about Suggs’s pre-
existing medical conditions. We therefore reject Harvey’s
argument.

The district court abused its discretion in excluding
evidence that Suggs’s sister refused to consent to the
laminectomy. The District argued that the refusal to consent
broke the chain of causation for damages, but the district
court rejected that argument because “the District could have
consented and simply was indifferent to consenting and did
not consent.” Tr. Transcript 124:23–25 (Apr. 10, 2012).
Even though the administrator of MRDDA, as Suggs’s legal
guardian, could have consented to the surgery, it is at least
possible that Suggs’s sister, as an adult sibling, had the
authority to “refuse or withdraw consent.” D.C. Code § 21-
2210(a). If the District could show that Suggs’s sister had the
authority to refuse to consent to the surgery and did so here,
then any damages stemming from the failure to get the
surgery after that point might not be attributable to the
District. That evidence should be presented to the jury.
 28
Lastly, the district court did not err in excluding evidence
that Symbral’s negligence was an intervening cause of
Suggs’s pressure sores. Under District of Columbia law, “the
initial wrongdoer can be held liable to the injured party for the
whole loss, including aggravation of the injuries due to
subsequent medical negligence” because, under traditional
tort causation principles, “medical negligence aggravating the
original injury is foreseeable within the scope of the risk
created by the original tortious conduct.” District of
Columbia v. Washington Hosp. Center, 722 A.2d 332, 337 &
n.5 (D.C. 1998) (internal quotation marks omitted); see also
Rieser v. District of Columbia, 563 F.2d 462, 479 (D.C. Cir.
1977) (“If a negligent, intentional or even criminal
intervening act or end result was reasonably foreseeable to the
original actor, his liability will not ordinarily be superseded
by that intervening act.”). Given its history of care,
Symbral’s negligence was certainly foreseeable. The
District’s efforts to introduce an intervening cause fail.

***
The District also argues that the district court erred in
instructing the jury on the District’s probate lien against
Suggs’s estate. We agree. There was no evidence of that lien
before the jury, and “[t]he law is well settled that it is error to
instruct a jury on a state of facts not disclosed by the
evidence.” Moore & Hill, Inc. Breuninger, 34 App. D.C. 86,
89 (D.C. Cir. 1909). Harvey argues that the lien instruction
was nevertheless appropriate, analogizing the instruction to a
taxation instruction. But that analogy is inapposite. A
taxation instruction informs the jury that “any damage award
will not be subject to income taxation” in order to ameliorate
the possibility that a jury would erroneously assume that an
award would be subject to taxation and thus “‘should be
 29
increased substantially in order to be sure that the injured
party is fully compensated.’” Psychiatric Inst. of Washington
v. Allen, 509 A.2d 619, 626–27 (D.C. 1986) (quoting Norfolk
& W. Ry. Co. v. Liepelt, 444 U.S. 490, 496 (1980)). Here,
however, alerting the jury to the existence of the lien created
the very risk a taxation instruction is designed to ameliorate
by encouraging the jury to increase its award in order to “fully
compensate” Harvey. We therefore conclude that it was error
to instruct the jury on the District’s lien.

Finally, the District argues that the district court erred in
in denying the District’s motion for a 50% contribution
against the entire verdict. We have reviewed that ruling and
discern no error.

CONCLUSION

For the reasons stated above, the judgment of the district
court is affirmed in part and reversed in part. We vacate the
damages and remand for reconsideration.