MedStar claimed that the plaintiff’s counsel’s closing improperly “encouraged the jury to abandon the appropriate standard of care analysis and instead decide whether [MedStar] kept Mr. Kaplan ‘safe’ and ‘protected’” and necessitated a curative instruction. Although the trial court seemed persuaded by MedStar’s argument that Mr. Kaplan’s counsel had gone “outside the bounds” of permissible argument, the District of Columbia Court of Appeals stated in its November 5, 2025 Memorandum Opinion and Judgment: “we question whether Mr. Kaplan’s “safety” and “protection” references actually invited the jury to disregard the national standard of care, particularly when examined in the context of the whole of his closing. To begin with, Mr. Kaplan’s counsel mentioned the standard of care seventeen times in his closing, and pointedly reminded the jury, “the question is: [d]id the MedStar defendants breach the national standard of care in terms of caring for David Kaplan?” More specifically, Mr. Kaplan’s counsel reminded the jury that under the national standard of care there was only a three-month window of time within which Mr. Kaplan could safely take steroids, and his “safety” and “protection” references were seemingly callbacks to this standard of care evidence.”
Safety and Protection Arguments
“In any event, even if we agreed that Mr. Kaplan’s counsel should not have made these “safety” and “protection” references, any prejudice from this argument was cured by the instruction that MedStar requested and the court delivered to the jury. After objecting to Mr. Kaplan’s “safety” arguments, MedStar asked the court to instruct the jurors “that they are to rely on the jury instructions for what is the actual national standard of care.” As noted above, the court seemed persuaded that Mr. Kaplan’s argument was “inconsistent with the rules” and although it stated it “d[id]n’t think [it] need[ed] to give a curative instruction,” it determined that it did “need . . . to remind the jury that the standard of care is found in the jury instructions that I provided to them, and they . . . are bound by those instructions, particularly 9.02, 9.04,” which was exactly what MedStar had asked it to do. The court subsequently instructed the jurors just as it had told counsel it would, informing them “[y]ou are only to consider the standard of care and the duty of care and how it’s described in 9.02, 9.04, and the jury instructions as I instruct you.” In fact, the court went one step further and added “so any argument that you hear that doesn’t use those words, you are not to consider that as the law that I’ve instructed you on.” MedStar never argued that this instruction was inadequate. In light of this record, we are unpersuaded that the trial court abused its discretion in addressing Mr. Kaplan’s “safety” and “protection” arguments.”
Anchoring Argument
The D.C. appellate court further stated: “MedStar also claims that Mr. Kaplan’s closing improperly “anchored” the
jury to a specific figure, $4 million (the jury’s aggregate damages award), justifying a curative instruction. MedStar points to Mr. Kaplan’s counsel’s argument, “[s]ome of you might think that [Mr. Kaplan’s damages are] worth four million. Some of you might think [they’re] worth three. Some might think [they’re] worth six. It’s completely up to you . . . .” On its face, this argument did not suggest that the jury make a specific damages award; rather it suggested a range of possible awards. The trial court concluded that offering the jury such a range is permissible under District of Columbia v. Colston, 468 A.2d 954, 957 (D.C. 1983), and we agree … Counsel for Mr. Kaplan did not ask the jury to award a specific amount and told the jurors that determining the amount of damages to award was “completely up to [them].” Thus the trial court did not abuse its discretion when it denied MedStar’s request to give a curative instruction.”
Remittitur
MedStar argued that the jury’s award of four million in damages to Mr. Kaplan was excessive and that the trial court should have granted its post-trial motion to reduce the damages award. The D.C. appellate court responded: “the trial court correctly noted that “[t]he jury is afforded great weight in determining the appropriate measure of damages” and explained that a jury’s verdict should only be overturned by the court if it “resulted from passion, prejudice, mistake, oversight, or consideration of improper elements or [is] beyond all reason or . . . so great as to shock the conscience.” District of Columbia v. Watkins, 684 A.2d 396, 404 (D.C. 1996) (citation modified). The trial court also detailed the extensive testimony introduced at trial from Mr. Kaplan and his sister that shed light on “the impact [Mr. Kaplan’s] injuries had on his physical capabilities and the emotional turmoil he suffered.” Accordingly, we cannot say that the trial court’s assessment that “the jury’s award was []reasonable in light of the evidence and testimony presented” constituted an abuse of discretion.”
MedStar Georgetown Medical Center, Inc. v. Kaplan, No. 24-CV-0942.
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