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Derzavis v. Bepko12/29/2000
ke the present case, there was a complicated pre-existing condition, an AVM, which had the potential for rupture even without the medical procedure. Since it was determined to be necessary for the jury to understand how or why the procedure, rather than the AVM, caused the harm, the lack of expert testimony was fatal to Lasley's claim. Id. at 1385. The present case is much less complicated. Derzavis presented to the physician with no pre-existing medical condition related to her injury here. According to the evidence, appellee breached the standard of care in using the cytobrush during an examination, and the patient immediately experienced excruciating pain and bleeding which the expert testified would not have occurred but for the improper use of the instrument. Even assuming that the injury was not of the type which by its nature reflected its cause, there was expert opinion testimony explaining its cause and the basis for that opinion.
"In reviewing the trial court's grant of a judgment notwithstanding the verdict, we apply the same standard as the trial court." Durphy v. Kaiser Found. Health Plan, 698 A.2d 459, 465 (D.C. 1997) (citation omitted); Washington, supra, 579 A.2d at 181 (citations omitted). A judgment notwithstanding the verdict may be entered " `only when, viewing the evidence and reasonable inferences in the light most favorable to the party who secured the jury verdict, no juror could reasonably reach a verdict for the opponent of the motion.' " Id. (citing District of Columbia v. White, 442 A.2d 159, 163 n.9 (D.C. 1982)). It appears that the majority may not be applying that standard, particularly with respect to the deference it appears to accord the trial court's review of the issue of causation. It is not appropriate to set aside a jury verdict because other evidence, some of which is outlined in the majority opinion, might have allowed the jury to reach a different result. " `It is the responsibility of the jury (and not the judge) to weigh the evidence and to pass upon the credibility of the witnesses.' " Homan v. Goyal, 711 A.2d 812, 817-18 (D.C. 1998) (quoting Etheredge v. District of Columbia, 635 A.2d 908, 915-16 (D.C. 1993) (other citations omitted)). It is only in rare cases, "in which only one conclusion could reasonably be drawn from the evidence, that the court may properly grant judgment notwithstanding the verdict." Homan, 711 A.2d at 817 (quoting Etheredge, 635 A.2d at 915-16 (quoting Levy v. Schnabel Found. Co., 584 A.2d 1251, 1254-55 (D.C. 1991) (other citation omitted)). This is not one of those rare cases, in my view. Viewing the evidence and reasonable inferences in the light most favorable to Derzavis, as we must, it cannot be said that no reasonable juror could reach a verdict in her favor. See Washington, 579 A.2d at 181. Therefore, I respectfully dissent.
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