with whom NEWMAN, Senior Judge, joins, concurring in part and dissenting in part:
I agree with the majority in reversing the judgment notwithstanding the verdict, but I respectfully dissent from affirming the order granting a new trial. I would reinstate the verdict.
The majority sustains the new trial order because of agreement with the trial court’s ruling that the “ ‘key issue at trial was what happened to Mr. Barman between the hours of 3:45 p.m. and 6:05 p.m.’ — the ‘approximately two hours and fifteen minutes from the last time that he was seen alive and not in distress to the time that his death was discovered.’ ” Ante at 596. The majority accordingly agrees with the trial court’s post-trial ruling that the jury could not have properly considered, for purposes of compensatory damages, the “sodomous assault and spraying [with a cleaning chemical] earlier that day.” Ante at 597. The majority’s only justification for doing so is that “counsel for appellant, in his summation to the jury, limited his plea for damages for pain and suffering to the distress Barman suffered as he struggled and died in his cell unattended.” Ante at 597. And again: “Nowhere in his summation did counsel ask for damages for the pain and degradation associated with a sexual assault or the distress caused by being sprayed in the face with a chemical compound.” Ante at 597. I believe this rationale for rejecting the jury’s verdict is altogether unjustified.
First, the majority slights the facts: plaintiff-appellant, supported by the trial court’s instructions, did present to the jury the damage claims for Barman’s pain and suffering not only from his death throes in the cell but also from the earlier sodomous assault and chemical spraying — including references to both in closing argument. Accordingly, the jury properly considered compensatory damages for pain and suffering not merely for 2VÍ hours but for up to 7V2 hours, or over five hours more than the trial court, in its post-trial ruling, allowed. Second, there is no basis in law for holding that, when a claim for damages is tried before a jury with evidence sufficient for a plaintiff’s verdict, the trial court may deem a claimed element of damages waived unless plaintiff’s counsel expressly reaffirms it in closing argument. Indeed, this waiver argument fails very simply because a party is not even required to make a closing argument. An election to make one, emphasizing certain points, cannot serve to scuttle an aspect of the case not stressed at that time. Finally, without an announced waiver of damages for the sodomous and chemical assaults, limiting the period of injury to 2V4 hours, there is no discernible reason for concluding the jury based its award, in part, on passion or prejudice.
*603I.
One can easily demonstrate from record references in the Appendix to this dissent that plaintiff-appellant sought compensatory damages for pain and suffering from the chemical spraying with Johnson’s Deep Gloss (complaint) and from the sodomous assault (amended complaint). The sodo-mous assault was emphasized again in the pretrial statement and in the pretrial order.
In opening statement to the jury, plaintiff’s counsel told the jury it would hear evidence that Barman was “sexually attacked” in the morning, was also “sprayed with some sort of an industrial cleaner[,] probably deep gloss material made by Johnson’s,” and died from a bronchospasm that “could have had its origin in the traumatic experience of the sodomization, or in the spraying with the deep gloss_”
At trial, a jail resident, Tyrone Lucky, testified that he had seen “another resident spray the can — spray the can in [Barman’s] face” when they were cleaning a shower. The jury also heard one of the defendants, Physician Assistant Raymond Stroman, testify that he had seen Barman on shower-cleaning detail when Stroman “came on the unit about 10:30 in the morning,” and that he had twice observed three inmates engaging in sexual acts with Barman in the shower over a period of at least 15 to 20 minutes. (Stroman’s deposition testimony, with which plaintiff’s counsel confronted him before the jury, referred to acts of sodomy. After this reminder, Stroman acknowledged he had chided the inmates for “screwpng] the white boy to death” and that he had testified truthfully on deposition.) The jury then heard Dr. John Smia-lek, Chief Medical Examiner for the state of Maryland, testify that Barman “had died of an acute attack of bronchospasm” that could possibly have been caused by the Deep Gloss or by a sexual attack. E. Eugene Miller, plaintiff’s expert penologist, testified that under the appropriate standard of care correctional officers should observe inmates every thirty minutes and, for mentally disordered inmates, even more frequently. Miller added that correctional officers should intervene when any incident of sodomy, voluntary or involuntary, is observed.
In discussing jury instructions with counsel, the trial court referred to Dr. Smialek’s testimony: “there is certainly enough testimony in this record from Dr. Smialek to indicate that on his theory at least, if the jury accepts it, that Mr. Barman went through a great deal of pain and suffering before he died.” The court then gave the jury very broad instructions on damages from pain and suffering, including:
If you find for the plaintiff, then you shall award to the plaintiff a sum of money which will fairly and reasonably compensate for all the damage suffered which was caused by the defendant.
* * * * * *
You may consider the extent and duration of any bodily injury which was sustained. You may consider the effect that such injuries had on the overall physical and mental health and wellbeing of the plaintiff. You may consider any physical pain and mental anguish that the plaintiff did suffer. You may consider any inconvenience or discomfort that the plaintiff suffered....
******
If you find for the plaintiff on liability, you must make an award for any pain and suffering suffered by the deceased, Mr. Harry Barman, between the time of injury and the date of this death.... Your award should include reasonable compensation for any bodily injury, disability, mental anguish, disfigurement and/or deformity, and inconvenience and discomfort suffered by the deceased between the time of the injury to the time of his death.
Finally, in closing argument, plaintiff’s counsel did not ignore the chemical spraying and sexual assault:
[Something happened to Harry Barman in the morning or early afternoon hours of January 28th, when he was incarcerated at South 3, the mental health unit, the maximum care type facility in the District Jail. Something happened to him. He either got gang *604raped, sodomized either voluntarily or involuntarily, if you believe Mr. Stro-man one way or the other. He was sprayed with some deep gloss, or he may have suffered some other sort of trauma, something perhaps that arose out of his condition. But, something happened to the man.
At around 3 o’clock, he was locked down in his cell, Cell 29 at the D.C. Jail, where between 3 o’clock and 6:05 p.m., he went through a lot of distress. He must have traveled around the cell several times, and there came a point when he died, and he died of one or two things, perhaps, depending on who you believe. But, he died in such a way that he did not die quickly.
He must have flopped around for twenty minutes or a half hour at a minimum, no matter who you believe, based on the physical evidence. And then he died and he stayed in this kneeling position for some period of time until finally he was discovered at 6:05 p.m. by the correctional officers who were there to take care of him. [Emphasis added.]
******
If you will recall, Dr. Smilac [Smialek], who is the chief medical examiner of Baltimore, and a very experienced person, testified. He testified in a clear and uncontradicted, unshaken by cross examination, in a clear, uncontradicted manner, that Mr. Barman, through his observations of the scene and, importantly, the slides which he had reflected on, had died of an acute bronchospasm.
And what is this acute bronchospasm? It is an onset — an acute onset of this underlying condition, albeit unreported, of asthma that Mr. Barman suffered from. And, that it was triggered by one of the causes I suggested to you earlier. [Emphasis added.]
******
But, you must assess the impact on Mr. Barman and the extreme distress and discomfort that was caused by his thrashing around for a period of time in that cell while these people were supposed to be taking care of him.
And, I would submit to you that there is a significant compensation due Mr. Barman’s estate because of this pain and suffering suffered by Mr. Barman during his death struggle at the D.C. Jail.
Government counsel, in reply, conceded:
If the District of Columbia did anything — anything at all, or failed to do something that killed Mr. Barman, the District, like anybody else, must pay. That’s the law. That’s the law.
Viewing the evidence in light most favorable to the plaintiff (see Appendix), I believe the jury reasonably could have found that Barman, a healthy pre-trial detainee, was sodomized in the shower beginning no later than 10:30 a.m. and continuing over a period of at least 20 minutes; that another inmate assaulted Barman with a chemical spray sometime during the late morning or, possibly, in the early afternoon while Barman was in the shower area on cleaning detail; that because Barman had refused his medications he had not been cleared for cleaning detail; that the guards were, at the very least, negligent in allowing Barman to be in the shower area on cleaning detail at a time when Deep Gloss was used; that Barman suffered degradation and physical asthmatic symptoms from the time of the sodomy or the spraying; that between 3:00 p.m. and 6:00 p.m. Barman— possibly aware of impending death — died of a bronchospasm caused by the sexual attack or the chemical spraying; that whether or not Barman had asked for help during the day, no one had responded until a fellow inmate, Tyrone Lucky, finally brought Barman’s condition to a guard’s attention shortly after 6:00 p.m.; that according to the applicable standard of care correctional officers should have observed normal inmates every thirty minutes and mentally impaired inmates more frequently; that Barman’s pain, suffering, and death were preventable; that all the guards had failed to observe or to intervene during Barman’s sodomy, chemical spraying, and death struggle; that the District, therefore, had failed to provide reasonable care under the circumstances; and that plaintiff was entitled to damages for Barman’s pain and *605suffering over a period of l}k hours beginning with the sexual assault and the chemical spraying as early as 10:30 in the morning.
Given this record, I can find no basis for the trial court, and for a majority of this court, to say that damages for pain and suffering must be limited to a period of 2% hours once Barman had returned to his cell in the afternoon — unless plaintiff can be found to have waived the claim for an element of damages attributable to pain and suffering from the chemical spraying and the sexual assault. I turn now to that issue.
II.
The majority does not dispute that the complaint/amended complaint alleged chemical and sexual attacks and that the evidence supports findings that they occurred. See ante at 592-593. Nor does the majority dispute that plaintiff could have been compensated for Barman’s pain and suffering from the sexual assault and the chemical spraying if, in fact, those claimed elements of damage were still before the jury when it retired to deliberate.1 See ante Part II. Although the trial court granted the District’s motion for a directed verdict on count V of the complaint — aiding and abetting the sexual assault and the spraying with Deep Gloss — this ruling did not remove that evidence from the case for purposes of damages under the theories of other counts, such as the negligent infliction of emotional distress the jury found under the Survival Act.2 Thus, the majority analysis has to stand for the proposition that a plaintiff waives a claim for all damages not specifically mentioned in counsel’s closing argument to the jury. This is an incredibly radical, and I believe insupportable, proposition — especially because counsel may waive closing argument altogether without being deemed to nonsuit the case.3
The majority necessarily implies that if Barman’s counsel, in closing, had more than merely mentioned the sodomous assault and the chemical spraying, the trial court likely would have abused its discretion in granting a new trial. The fact that counsel chose instead to emphasize Barman’s death struggle surely cannot, without a more explicit concession, amount to a partial waiver of damages for pain and suffering from the two earlier assaults. The majority cites no authority for that proposition, and I can find none.
The majority’s only basis for its approach is an analogy that does not work. Judge Farrell cites a criminal case, United States v. Park, 421 U.S. 658, 674-75 & n. 16, 95 S.Ct. 1903, 1912-13 & n. 16, 44 L.Ed.2d 489 (1975), in which the Supreme Court sustained a conviction against an argument that one of the jury instructions was erroneous. The Court agreed that “isolated parts” of the jury instruction could be read, erroneously, “as intimating that a finding of guilt could be predicated solely on respondent’s corporate position.” 421 U.S. at 674, 95 S.Ct. at 1912. But the Court ruled that the entire charge to the jury “[vjiewed as a whole ... fairly advised” what the applicable law was. The Court added that “ ‘[ojften isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial.’ ” 421 U.S. at 674-75, 95 S.Ct. at 1912-13 (citation omitted) (emphasis in original). The Court then noted that “the jury could not have failed to be *606aware” of the main issue, in part, because of the prosecutor’s evidentiary summation to the jury. 421 U.S. at 675, 95 S.Ct. at 1913. The Court, therefore, concluded that an arguably erroneous jury instruction was saved by reference to the entire charge to the jury, to the evidence at trial, and to the prosecutor’s closing argument that focused the jury’s attention on details which the disputed instruction itself erroneously did not require the jury to consider.
It is one thing to say, as the Supreme Court did in Park, that a criminal conviction can be saved by showing that the jury, with the help of closing argument, must have relied on a theory of the case, grounded in the evidence, which the court’s instructions may not have adequately covered. It is quite a different thing to say that the jury, simply by listening to plaintiff’s closing argument in which certain aspects of the case were highlighted but no claim was expressly waived, should nonetheless have been led to ignore evidence which the complaint, the court’s instructions, and the trial evidence permitted the jury to consider. Park comes nowhere close to saying that counsel implicitly waives a plaintiff’s claim for damages in a civil case simply by omitting or downplaying reference, during closing argument, to certain trial evidence.
In any event, the implied waiver theory makes no sense for three reasons: First, in closing argument to the jury plaintiff’s counsel did refer to the sexual and chemical assaults. He specifically pointed out that Barman
either got gang raped, sodomized either voluntarily or involuntarily, if you believe Mr. Stroman one way or the other. He was sprayed with some deep gloss, or he may have suffered some other sort of trauma, something that perhaps arose out of his condition.... [He] died of an acute bronchospasm ... an acute onset of this underlying condition, albeit unreported, of asthma that Mr. Barman suffered from. And, that it was triggered by one of the causes I suggested to you earlier.
Accordingly, this court’s perception of waiver based on closing argument is, to say the least, surprising. It is true that counsel, near the end of his opening summation to the jury, emphasized that “there is a significant compensation due Mr. Barman’s estate because of this pain and suffering suffered by Mr. Barman during his death struggle at the D.C. Jail.” But this matter of emphasis cannot properly be seen as a waiver, especially because counsel did refer to the two morning assaults earlier in closing argument.
Second, plaintiff’s counsel was careful in closing argument not to inflame the jury by indicting the District of Columbia correctional system as a whole. I could find no objection by government counsel that plaintiff’s counsel’s rhetoric was inflammatory. Conceivably plaintiff’s counsel downplayed the sodomy and Deep Gloss incidents to avoid such an objection; or perhaps counsel simply believed the evidence of these assaults spoke powerfully for itself and he wished to reemphasize Barman’s quieter but substantial suffering in his cell. The point is, however, that by forcing a plaintiffs counsel in closing argument to highlight — or else waive — every element of damages, the majority takes a step toward compelling argument to the jury that may become excessive. Better that counsel, not this court, decide how the evidence should be argued to the jury in plaintiff’s interest.
Finally, the rules of civil procedure make clear that claims should be relatively easy to assert and difficult to dismiss. For example, if an opposing party moves to dismiss under Super.Ct.Civ.R. 12(b)(6) for failure to state a claim, the plaintiff is given an opportunity to amend under the mandate of Super.Ct.Civ.R. 8(f) that pleadings should be construed liberally to do substantial justice. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1215 (1990). Similarly, Super.Ct.Civ.R. 15(b) permits amendment of the pleadings after judgment to conform to the evidence if the issue was tried by express or implied consent of the parties. See Moore v. Moore, 391 A.2d 762, 768 (D.C.1978). It is true that, once a claim survives a Rule 12(b)(6) motion or other motions designed to produce an involuntary dismissal or judgment *607for defendant, the action may later be dismissed voluntarily under Super.Ct.Civ.R. 41(a). But this requires a stipulation of the parties — an unequivocal statement that dismissal is intended. See 9 C. Wright & A. Miller § 2363 (1971). This requirement, of course, is directed at an entire count or claim, not necessarily to an element of damages. But the principle is informative and is altogether at odds with the notion that a plaintiff’s counsel shall be deemed unilaterally to waive a particular item or quantum of damages upon a complaint or count properly before the jury simply by omitting reference to those particular damages during closing argument. The majority’s approach is jurisprudentially unique — and unprincipled.
III.
The question then becomes whether there is any valid basis to infer — irrespective of any waiver — that the jury to some extent awarded damages for a punitive, not merely a compensatory, purpose. We have said that our standard of review requires “close scrutiny” of the trial court’s order:
The decision whether to grant a new trial because damages are excessive is entrusted to the sound discretion of the trial judge. The trial judge must determine whether the award indicates prejudice, passion or partiality or was based on oversight, mistake or consideration of an improper element. This court will reverse the trial judge’s determination only for an abuse of discretion. This standard of review contemplates “close scrutiny” to determine whether “there is firm support in the record for a finding by the trial judge that the verdict is ‘so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate,’ given the respect accorded the judge’s ‘unique opportunity to consider the evidence in the living court-room context.’ ” [Citations omitted]
Weinberg v. Johnson, 518 A.2d 985, 994 (D.C.1986). We have stressed, moreover, that when the trial court grants a new trial because the verdict is excessive, that ruling requires closer scrutiny than a decision denying a new trial (or granting a new trial based on legal error). See Rich v. District of Columbia, 410 A.2d 528, 535-36 (D.C.1979) (citing Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 113, 409 F.2d 145, 148, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969), and Lind v. Schenley Industries, Inc., 278 F.2d 79, 90 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960)); see also Brun-Jacobo v. Pan Am. World Airways, Inc., 847 F.2d 242, 244 (5th Cir.1988) (“broader” scrutiny). When a judge denies a new trial, “[t]wo factors unite to favor very restricted review[:] ... the deference due the trial judge, who has had the opportunity to observe the witnesses ... [and] the deference properly given to the jury’s determination,” a factor “further weighted by the constitutional allocation to the jury of questions of fact.” Taylor, 133 U.S.App.D.C. at 113, 409 F.2d at 148. But when, as in this case, a judge grants a new trial because of excessive verdict, these “two factors oppose each other,” id., and thus the reviewing court must be especially careful not to accord undue deference to the trial court’s perception of the evidence, given the jury’s constitutional responsibility to find facts under proper instructions.
I agree with the majority, ante at 596, that we are obliged to follow the Taylor formula for resolving the judge/jury conflict here: in reviewing for abuse of discretion, “we will reverse the grant of a new trial for excessive verdict only where the question of damages found by the jury was clearly within ‘the maximum limit of a reasonable range.’ ” Taylor, 133 U.S.App.D.C. at 114, 409 F.2d at 149 (citation omitted) (emphasis in original); see Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 594 (D.C.1985) (citing Taylor and Lind and noting that “[c]lose scrutiny of the trial court’s grant of a new trial by the appellate court is required in order to protect the litigant’s right to a jury trial”). I therefore turn to this broad inquiry under Taylor.
In the first place, as elaborated above in Part I., the trial court’s instructions permitted the jury to award compensatory *608changes for at least a 7V2 hour period. More specifically, the trial court instructed the jury that it “must make an award [of damages] for any pain and suffering by the deceased, Mr. Harry Barman, between the time of injury and the date of his death” based on the evidence and consistent with the court’s instructions. Neither the trial court nor counsel told the jury that damages for pain and suffering before 3:45 p.m. had been waived. Thus, based on the evidence, the jury properly could have defined the “time of injury” as beginning at 10:30 a.m. and awarded compensatory damages for the Ilh hour period between 10:30 a.m. and 6:05 p.m.
It is important, next, to note that the trial court twice cautioned the jury against action based on prejudice: “You should determine the facts without prejudice, fear or favor, solely from fair consideration of all the evidence. * * * You must weigh[ ] and consider the case without regard to sympathy, prejudice or passion, for or against either party to the action.” The court also stressed that the jury must not award “the father, Mr. Barman, any sum for the sorrow, mental distress or grief that he may have suffered by reason of the death of the deceased, his son, Mr. Harry Barman.” Based on these and other instructions, therefore, the jury presumptively awarded damages based on the evidence, not on prejudice or sympathy, since the jury is presumed to follow the court’s instructions. See Jones v. Miller, 290 A.2d 587, 590 (D.C.1972).
The trial court’s order does not cite any record basis for concluding that the jury was prejudiced. The court simply generalizes: “given the squalid conditions described to the jury, it is perfectly clear that by its verdict it intended to ‘send a message,’ and a punitive message at that, telling the District of Columbia government that its citizens would not tolerate maintenance of such abominable conditions for its citizens, even those charged with violations of the criminal law.” Kessler, J., Order at 10-11 (May 19, 1988). The trial court’s only finding to support this perception of the jury’s punitive mentality was a footnote that “[t]he jury’s shock and disgust were palpable as it heard testimony about frequent masturbation, nudity, sodomy, failure to clean up human wastes, and other bizarre behavior. While that may be standard fare on the psychiatric ward of any jail in America, it was obviously troubling testimony for the jury sitting in this case.” Id. at 9 n. 3. Obviously, the trial court had the opportunity “to consider the evidence in the context of a living trial rather than upon a cold record.” Taylor, 133 U.S.App.D.C. at 113, 409 F.2d at 148. But I do not understand why, in light of the instructions (which the jury is presumed to follow), the jury’s “shock and disgust” should not be seen as an appropriate community reaction translated into substantial, though suitable, compensatory damages for the victim’s pain and suffering from assaultive conduct proximately caused by the District’s manifest official neglect over a long period of time.
Apparently the trial court used juror body language, to some extent, to conclude the verdict must have been excessive. I am troubled about equating juror winces with a violation of the oath to follow the trial court’s instructions. In any event, the central reason for the new trial ruling would appear to be the trial court’s limitation of compensable pain and suffering to the last 2lk hours of Barman’s life, coupled with the court’s references to what it believed were irrelevant incidents of “frequent masturbation, nudity, sodomy, failure to clean up human wastes, and other bizarre behavior.” I believe, accordingly, that the trial court found the verdict punitive, and thus excessive, primarily because the jury considered evidence of pain and suffering from morning incidents such as the sodomy and the chemical spraying — evidence which eight of nine judges hold today the trial court erroneously rejected in granting judgment notwithstanding the verdict. If I am correct in assessing what the trial court did, then that court erroneously ascribed a punitive purpose to jurors who had properly been instructed to compensate the plaintiff for damages attributable to that earlier, as well as the later, period. The evidence and the jury instruc*609tions clearly covered the sodomy and Deep Gloss incidents; Mr. Miller testified that correctional officers violate the required standard of care if they are casual observers, not intervenors, when such cruel inmate behavior occurs; and the majority of this court agrees, see ante at 595, that the evidence of the sexual and chemical assaults justified compensable injury, not a contrary judgment n.o.v. Finally, the jurors were not invited to award punitive damages. Based on the evidence and instructions, I see no demonstrable basis for the trial court’s perception that they did.
The words of the United States Court of Appeals for the Ninth Circuit, overturning a trial court order for a new trial based on perceived jury emotion and sympathy, are applicable by analogy here:
[Cjertainly a jury presented with a case like this one, involving horrible burn injuries to a child, will be likely to feel great sympathy. The question, however, is whether the jury was able to put aside its personal feeling during its deliberations and decide the case as the evidence and the law dictated. There is no evidence that the jury here did otherwise. The district court repeatedly instructed the jury that sympathy could play no role in its deliberations. Moreover, the damages awarded were consistent with the amount the experts estimated would be required to compensate [plaintiffs] for their injuries and treatment. Punitive damages were denied. In light of the conflicting evidence, the verdict for [plaintiff] does not necessarily indicate that the jury’s decision was born of sympathy.
Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1178-79 (9th Cir.1990) (upholding $3 million award to family for compensatory damages in products liability case after van overturned, caught fire, and badly burned child).
In sum, in this case, the jury could find that beginning as early as 10:30 a.m., Barman suffered from a sexual assault and an attack with a toxic chemical spray, either of which may have caused the bronchos-pasm that led to his eventual death as long as 7V2 hours later. Given our required close scrutiny with due deference to the jury’s, as well as the trial court’s, view of the evidence, I believe the jury’s $1,000,000 verdict for pain and suffering during that period under the Survival Act claim, see supra note 2, must stand because it “was clearly within ‘the maximum limit of a reasonable range.’ ” Taylor, 133 U.S.App.D.C. at 114, 409 F.2d at 149.4 I see nothing in the majority opinion that would reject this conclusion under the Taylor test if — as the record makes clear — plaintiff did not in closing argument waive damages as to the sexual and chemical assaults.
IV.
This court accordingly should reverse the judgment n.o.v. and the order for a new trial; on this record, we should reinstate the verdict. See Jones, 290 A.2d at 589 (where trial court ordered new trial because jury verdict awarding damages for pain and suffering was unwarranted by evidence, this court ordered reinstatement of verdict because evidence demonstrated “physical injury sufficient to support an inference that appellant experienced pain and suffering as a consequence of appel-lee’s negligence”).
* * * * * *
In the majority’s postscript responding to this dissent, Judge FARRELL acknowledges that plaintiff’s counsel, in closing argument to the jury, mentioned that the “asserted acts of sodomy and chemical *610spraying” were “possible causes of Barman’s suffering.” Ante at 600 n. 15. Thus, every member of the court agrees that the jury heard, in closing, at least some argument on the sexual and chemical assaults in addition to substantial argument on Barman’s death throes in his cell. See ante at 600 n. 15; supra at 603. For this reason alone I do not understand how the majority can conclude that plaintiff’s counsel, in closing argument, withdrew the morning assaults from jury consideration.
In any event, the majority analysis is flawed for another reason. The majority does not hold, as a matter of law, that damages for pain and suffering are not awardable for the period of the sodomy and chemical spraying. Rather, the majority concludes, as a matter of deference, that it will sustain the trial court’s limitation of such damages to the last 2'A hours of Barman’s life. That presents the question: why did the trial court limit damages to “what happened to Mr. Barman between the hours of 3:45 p.m. and 6:05 p.m.”? Answer: it did so because, in the court’s view of the trial record, that was the only possible period of compensable pain and suffering.5 Nowhere in its post-trial ruling did the trial court refer to plaintiff’s counsel’s failure to mention the sexual and chemical incidents in closing argument. My colleagues in the majority, however, repudiate the trial court’s evidentiary premise. While purporting to defer to “the trial judge’s unique vantage point,” ante at 600, they correctly reject the judge’s view of the record by reversing the grant of a judgment n.o.v. Unlike the trial court, the majority properly finds evidence in this record justifying compensation for pain and suffering for the sexual and chemical assaults. See ante at 595; supra at 605 n. 1. Rather than resting on deference to the trial court’s reasoning underlying the granting of a new trial, therefore, the majority relies on deference to the trial court’s result while substituting an altogether new principle of its own to carve down the computable period of damages to 2% hours: imputed waiver by trial counsel during closing argument.
I could understand (although I would dissent from) a majority holding in a straightforward manner, as a matter of fiat, that $1,000,000 is simply too large a recovery for pain and suffering of the kind Barman endured over a 7V2 hour period. But the majority is unwilling to be that direct. Purporting, instead, to defer to the trial court, the majority sustains a result not by agreeing with the trial court’s view of the evidence but by announcing a new rule of law which the trial court never considered (nor was asked to consider). I believe this is mischievous. Cf. District of Columbia v. Bethel, 567 A.2d 1331, 1334 (D.C.1990) (in sustaining $1,000,000 judgment upon a verdict for prisoner injured at Lorton, court declined “to venture outside the trial record and consider facts and contentions never presented to the trial judge”) (emphasis added).
APPENDIX
Court Documents
1. Complaint; Amended Complaint—
Plaintiff’s original complaint, filed January 17, 1986, charged that the District of Columbia wilfully or negligently left toxic cleaning fluid unsecured in the shower area, that Barman ingested or was force-fed the poisonous fluid, and that “after many hours of pain and agony, [Barman] died while kneeling in prayer.” [Original Complaint at 6.] Plaintiff did not allege sodomy, because that was not known until after Stroman’s deposition, taken for pur*611poses of another, related case [see District of Columbia brief at 6] on November 7, 1986. [Tr. 164-165] Plaintiff then filed an amended complaint, not in the record, which the parties agree alleges forceful sodomy.
2. Pretrial Statement—
In the pretrial statement, plaintiff alleged that Barman was sodomized and later found unconscious on the day of his death. [R. 49] Plaintiff claimed compensatory damages of $1.5 million from assault, negligence, and extreme emotional distress. [R. 50]
3. Pretrial Order—
The court’s pretrial order recites that plaintiff contends Barman was sexually assaulted and provided inadequate care. [R. 118] As settlement, plaintiff demanded $900,000. [R. 122]
4. Trial Brief—
In a trial brief, plaintiff alleged that Barman had been assaulted and sodomized by three inmates in full view of correctional officers [Trial Brief at 5] and that decedent had died of trauma after the gang rape and the poisoning from being force-fed Johnson’s Deep Gloss. [Id. at 8] Claimed damages included pain and suffering. [Id. at 9]
5. Post-trial Memorandum—
In Plaintiff’s Memorandum of Points and Authorities in Opposition to Motion for New Trial, plaintiff-appellant argued that “[v]iewing the evidence in the light most favorable to plaintiff, on January 28, he was then sodomized, sprayed with Deep Gloss, and suffered extreme agony in a jail cell rapidly becoming smeared with his own excrement during his struggle.” [R. 185]
Opening Statement by Plaintiffs Counsel
[Y]ou will hear evidence that in the early morning hours while [Barman] was incarcerated in South 3, he was sexually attacked by other residents who are not identified of the D.C. Jail. [Tr. 17]
* * sfs * * *
You will also find evidence that he was sprayed with some sort of an industrial cleaner probably deep gloss material made by Johnson’s which should not have been available to the people who sprayed him. [Tr. 17]
* * * * * sic
And it will be shown to you that [the bronchospasm] could have had its origin in the traumatic experience of the sodom-ization, or in the spraying with the deep gloss because there will be indications in the lung tissue that show that this man had ingested some of that. [Tr. 20-21]
Sic stc s(s * * *
And the final two counts are for what is called the infliction of emotional distress both intentional and negligent infliction. And that is that Harry Barman was subjected to severe emotional distress, that is to say the assault, the spraying, the dying and this was inflicted either intentionally depending on how you read the evidence ... or negligently, that is to say by their breaching a duty of care. [Tr. 24]
Evidence at Trial
1. Spraying Incident—
Physician Assistant Raymond Stroman, a defendant, testified: “I came on the unit about 10:30 in the morning. As most ... of the officers say I’m very sticky about who is out and I observed the white fellow and three black dudes down in the shower. I asked the officer what the hell is the white ... boy doing down there? He said, he is on detail. Excuse me. I s[aid] bullshit because he hasn’t been cleared and refused treatment [medication].” [Tr. 155; see Tr. 156]
Officer Joyce Webb read from her Incident Report that after 6 p.m. resident Tyrone Lucky stated that Barman “had snuffed some stainless steel cleanser which is used to clean with on the unit. Resident Lucky also stated that resident Harry Barman ... told him that he did not feel *612good.” [Tr. 105] Officer Webb then testified that the cleaner was regularly locked in a utility closet, was given to residents only for cleaning detail, and would not have been available to Barman unless he was on cleaning duty. [/&]
According to resident Lucky, “In the shower there was two dudes cleaning the shower, and I just seen another resident spray the can — spray the can in his face. And so he got out of the shower, he came upstairs and told me he felt tired and was going to his room and lay down.” [Tr. 110]
2. Sexual Encounter—
Stroman testified that beginning at 10:30 a.m. he had observed three men “dry fucking ... rubbing up against” Barman in the shower over a period of at least 15 to 20 minutes. [Tr. 155-58] Plaintiffs counsel read from Stroman’s deposition, claiming surprise when Stroman did not testify, as he had on deposition, that Barman had been sodomized forcefully. [Tr. 164-165] Stroman then acknowledged he had told inmates “on the unit” that they had “screwed the white boy to death.” [Tr. 165] He also acknowledged, in referring to a conversation with his “superiors,” that he had characterized the activity as “screwing.” [Tr. 166] He added that he had testified truthfully at his deposition. [Tr. 185-186]
3. Standard of Care—
Plaintiff’s expert penologist was E. Eugene Miller, whose career included twenty-two years in prison operations and supervision, authorship of a book on jail management, familiarity with the D.C. Jail from working for the D.C. Department of Corrections for five years, and active membership in the American Correctional Association, American Jail Association (board member), and National Sheriff’s Association. [R. 292-298] During his testimony on the standard of care for mentally disabled inmates, Mr. Miller referred to the standards for adult local detention facilities promulgated by the American Correctional Association in cooperation with the Commission on Accreditation for Corrections. [Tr. 303-304]
Mr. Miller testified that correctional officers should observe normal inmates at irregular thirty minute intervals, with more frequent observations for mentally disturbed inmates. [Tr. 304] These officers should prepare and keep complete shift reports of all emergency or unusual incidents, including kneeling in a cell nude for over 2V2 hours. [Tr. 309, 310, 315] If a correctional officer observes a sodomization — voluntary or involuntary — he or she should immediately intervene or call for appropriate back-up if the officer’s safety would be jeopardized by intervention. [Tr. 318-319] According to Mr. Miller, there would be a violation of a standard of reasonable care for an officer not to intervene by verbally calling to an inmate “who is not moving on a cold concrete floor in the nude who doesn’t move for several hours” [Tr. 341] and when an observable amount of fecal matter is visible on the cell floor. [Tr. 360] Mr. Miller noted that the facts in this case raise the question whether the correctional officers were, in fact, making their rounds as required. [Tr. 364]
4.Causes of Pain, Suffering, and Death—
Dr. John Smialek, Chief Medical Examiner for the State of Maryland, testified he had arrived at an opinion to a reasonable medical certainty that Mr. Barman “had died of an acute attack of bronchospasm.” [Tr. 550]
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Dr. Smialek also testified: “Mr. Barman had been suffering from a process that was not sudden, not within say minutes but something that had been going on for a period of hours at least two or three hours.” [Tr. 555] “[He] was becoming increasingly distressed to the point that the [e]ffeet that shortage of breath was having on his system was being reflected by him having nausea, vomiting, the severe diarrhea.” [Tr. 556-557] “[T]he administration of oxygen and adrenalin would in all likelihood have been sufficient to reverse that particular episode and prevent his *613death.” [Tr. 558] Furthermore, according to Dr. Smialek:
It is my conclusion that I could not state precisely what Mr. Barman’s attack was precipitated by because attacks of this type can occur spontaneously with no identifiable agent triggering them. But they typically can be precipitated by emotional stress and can be precipitated by some offending agent in the environ-ment_ It is my opinion that this substance [Deep Gloss] could possibly have been one of or the factor that led to the gradual onset of the symptoms that were part of the attack of bronchospasm. [Tr. 559]
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And certainly, as I mentioned before that emotional stress can trigger this type of attack. It is certainly possible that a sexual attack would be sufficient to precipitate this particular type of acute episode. [Tr. 564]
Discussion of Jury Instructions by Court and Counsel
As to pain and suffering, the trial court said:
The Binker case ... indicates that the jury has a lot of latitude on referring that there was pain. Well, both pain and suffering. And, what is more, there is certainly enough testimony in this record from Dr. Smilac [Smialek] to indicate that on his theory at least, if the jury accepts it, that Mr. Barman went through a great deal of pain and suffering before he died. [Tr. 984-85.]
Jury Instructions
As to damages, the court instructed:
If you find for the plaintiff, then you shall award to the plaintiff a sum of money which will fairly and reasonably compensate for all the damage, suffered which was caused by the defendant. [Tr. 1018-19]
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You may consider the extent and duration of any bodily injury which was sustained. You may consider the effect that such injuries had on the overall physical and mental health and wellbeing of the plaintiff. You may consider any physical pain and mental anguish that the plaintiff did suffer. You may consider any inconvenience or discomfort that the plaintiff suffered, and you may consider any loss of earnings that the plaintiff suffered. [Tr. 1020]
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If you find for the plaintiff on liability, you must make an award for any pain and suffering suffered by the deceased, Mr. Harry Barman, between the time of injury and the date of his death, and the pecuniary loss suffered by the deceased, Mr. Barman, as a result of the injuries sustained in this case. Your award should include reasonable compensation for any bodily injury, disability, mental anguish, disfigurement and/or deformity, and inconvenience and discomfort suffered by the deceased between the time of the injury to the time of his death. [Tr. 1024]
As to prejudice and speculation, the court instructed:
You should determine the facts without prejudice, fear or favor, solely from a fair consideration of all the evidence. [Tr. 1004] .
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You must weigh[] and consider the case without regard to sympathy, prejudice or passion, for or against either party to the action. [Tr. 1006]
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You are not to award to the plaintiff speculative damages; that is, compensation for present or future loss which although possible is remote or guesswork. You are to base your verdict not on guesswork or speculation, but only upon evidence which shows by a preponderance that there is a reasonable probability of future losses. [Tr. 1019]
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[Y]ou must not award that beneficiary, the father, Mr. Barman, any sum for sorrow, mental distress or grief that he *614may have suffered by reason of the death of the deceased, his son, Mr. Harry Barman. [Tr. 1022]
Closing Argument to the Jury
In closing argument, plaintiffs counsel said:
[S]omething happened to Harry Barman in the morning or early afternoon hours of January 28th, when he was incarcerated at South 3, the mental health unit, the maximum care type facility in the District Jail. Something happened to him. He either got gang raped, sodomized either voluntarily or involuntarily, if you believe Mr. Stroman one way or the other.
He was sprayed with some deep gloss, or he may have suffered some other sort of trauma, something perhaps that arose out of his condition. But, something happened to the man.
At around 3 o’clock, he was locked down in his cell, Cell 29 at the D.C. Jail, where between 3 o’clock and 6:05 p.m., he went through a lot of distress. He must have traveled around the cell several times, and there came a point when he died, and he died of one or two things, perhaps, depending on who[m] you believe. But, he died in such a way that he did not die quickly.
He must have flopped around for twenty minutes or a half hour at a minimum, no matter who you believe, based on the physical evidence. And then he died and he stayed in this kneeling position for some period of time until finally he was discovered at 6:05 p.m. by the correctional officers who were there to take care of him. [Tr. 1026-27]
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The importance is, they had — had they intervened, had they been doing what they were supposed to do during the time Mr. Barman was dying, they could have intervened. [Tr. 1033]
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If you will recall, Dr. Smilac [Smialek], who is the chief medical examiner of Baltimore, and a very experienced person, testified. He testified in a clear and uncontradicted, unshaken by cross examination, in a clear, uncontradicted manner, that Mr. Barman, through his observations of the scene and, importantly, the slides which he had reflected on, had died of an acute bronchospasm.
And what is this acute bronchospasm? It is an onset — an acute onset of this underlying condition, albeit unreported, of asthma that Mr. Barman suffered from. And, that it was triggered by one of the causes I suggested to you earlier. [Tr. 1034]
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But, you must assess the impact on Mr. Barman and the extreme distress and discomfort that was caused by his thrashing around for a period of time in that cell while these people were supposed to be taking care of him.
And, I would submit to you that there is a significant compensation due Mr. Barman’s estate because of this pain and suffering suffered by Mr. Barman during his death struggle at the D.C. Jail. [Tr. 1045]
The government lawyer, in closing argument, said:
If the District of Columbia did anything — anything at all, or failed to do something that killed Mr. Barman, the District, like anybody else, must pay. That’s the law. That’s the law. [Tr. 1051]
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Well, it’s up to you. If you believe that the District did something wrong to Mr. Barman, if you believe that Mr. Barman thrashed around his cell for forty-five minutes to an hour before he died, if you believe that these correctional officers were negligent in letting Mr. Barman die, then you should find for the plaintiff, and you should award them a sum of money that would adequately compensate for the loss of Mr. Barman. [Tr. 1055]
. The majority concludes: “Whatever caused Barman’s asthma attack, the jury could properly find that the District committed distinct acts of negligence — allowing Barman to be out of his cell and to engage in group sexual activity, possibly against his will, and to be chemically sprayed; and allowing him to die from the asthma attack without intervention — that each resulted in compensable injuries.” Ante at 594-595.
. D.C.Code §§ 12-101 et seq. (1989); see Doe v. Binker, 492 A.2d 857 (D.C.1985) (damages for pain and suffering under Survival Act).
. According to R. Haydock & J. Sonsteng, Trial: Theories, Tactics, Techniques § 11.2 G (1990), "The attorney is not required to summarize or comment upon all the facts, opinions, inferences, and law involved in the case. A failure to comment on and refute a credible position or defense developed by opposing counsel, however, may be a mistake.”
. See, e.g., Capitol Hill Hospital v. Jones, 532 A.2d 89 (D.C.1987) (sustained $100,000 verdict as not excessive under District of Columbia Survival Act for 45 minutes of conscious pain and suffering caused by hospital personnel turning off oxygen supply); Ingram v. Howard-Needles-Tammen, 234 Kan. 289, 672 P.2d 1083 (1983) (sustained, against claim of jury passion or prejudice, verdict of $350,000 for one to two minutes of conscious pain and suffering by deceased driver consumed by fire in cab of truck); Levinge Corp. v. Ledezma, 752 S.W.2d 641 (Tex.App.1988) (sustained $650,000 jury verdict for 40 minutes of pain and suffering and mental anguish incurred by young man before death from skull fracture after fall from flatbed truck).
. The trial court had granted judgment notwithstanding the verdict for failure of proof on standard of care and proximate cause. For purposes of granting a new trial in the alternative, the trial court necessarily had to assume/find possible liability and damages on this record. The trial court concluded that liability and damages for pain and suffering could be justified, if at all, only for the 2Va hour period between 3:45 p.m. and 6:05 p.m. The trial court, therefore, apparently assumed the jury must have limited its $1,000,000 damage award to that period as well — a fallacious assumption in light of the majority's ruling that liability and damages would have been awarda-ble for the entire 1'A hour period but for counsel’s closing argument.