On January 15, 2009, the D.C. Court of Appeals upheld a $1.65 million jury verdict in favor of the plaintiff, a former UDC faculty member, who proved at trial that while he was attempting to negotiate a settlement of his employment situation with UDC's General Counsel, the UDC Provost (contrary to the General Counsel's recommendation) ordered that the contents of his office and research laboratory be evicted in order to make way for another program. Indeed, the General Counsel had written to plaintiff's attorney to advise him that the eviction would be stayed while they were doing the negotiations, upon which the plaintiff left town to attend a scientific meeting. Instead, during his absence, his office contents were trashed in the "eviction." The plaintiff presented his own testimony, and that of two professional colleagues as expert witness, as to the valuation of the destroyed equipment, his detailed lecture notes, unpublished manuscripts and research in progress. The Court of Appeals squarely rejected all of UDC's challenges to the sufficiency of the evidence, including the expert witnesses, and to the jury instructions. This decision is useful in that it allows professional colleagues of a plaintiff to serve as expert witnesses in their common area of expertise, so that a plaintiff can put a value on the economic losses caused by defendant's interference with his future earning opportunities. Some excerpts follow:
TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, APPELLANTS, v.
JAFAR VOSSOUGHI, APPELLEE.
Appeal from the Superior Court of the District of Columbia (No. CAB-3280-03)
(Hon. Geoffrey M. Alprin, Trial Judge)
(Argued May 23, 2007 Decided January 15, 2009)
Mary T. Connelly, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia at the time the brief was filed, Linda Singer, Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, and Edward E. Schwab, Deputy Solicitor General at the time, were on the briefs, for appellants.
Jonathan C. Dailey, with whom Robert C. Kostecka was on the brief, for appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and FARRELL, Associate Judge, Retired.*
GLICKMAN, Associate Judge:
Dr. Jafar Vossoughi sued the University of the District of Columbia ("UDC") for destroying his personal property - unique scientific instruments and other equipment, voluminous teaching materials, unpublished research data, and other items - when it cleaned out his biomechanical research laboratory without his knowledge in order to devote the space to other uses. The case was tried to a jury, which found UDC liable to Dr. Vossoughi for trespass to chattel, conversion, and negligence, and awarded him compensatory damages in the amount of $1,650,000. The trial court entered judgment on that verdict and denied UDC's post-judgment motion for partial judgment as a matter of law, a new trial, and/or a remittitur.
On appeal, UDC takes no issue with the jury's finding of liability and seeks a new trial only on the question of Dr. Vossoughi's damages. To prove the value of his lost property at trial, Dr. Vossoughi relied on his own testimony and that of two expert witnesses. UDC, which introduced no contrary valuation evidence, challenges both the admissibility of the experts' testimony and the overall sufficiency of Dr. Vossoughi's proof of value. In addition, UDC claims that the trial court improperly refused to instruct the jury on mitigation of damages and erroneously allowed the jury to award damages to Dr. Vossoughi for property that belonged not to him, but to UDC.
UDC's contentions do not persuade us to grant it relief. We conclude that the valuation testimony of Dr. Vossoughi and his two expert witnesses was admissible and sufficient to support the jury's award. We further conclude that UDC was not entitled to an instruction on mitigation. Finally, we reject UDC's charge that the trial court erroneously allowed the jury to compensate Dr. Vossoughi for the loss of property he did not own.
Dr. Vossoughi is an expert in applied mechanics and experimental biomechanics - an area of study that encompasses the testing of mechanical theories and the creation and development of novel experimental devices for biomechanical research. Over the course of his career, Dr. Vossoughi has written or edited 17 books and over 150 other publications. According to the undisputed testimony of two fellow scientists, Dr. Vossoughi has made significant discoveries and contributions and is well-known and respected in his academic field. . . .
. . . In 1999, Dr. Vossoughi filed a lawsuit against UDC for breach of contract, in which he claimed that university officials had reneged on a promise to give him tenure. In the summer of 1999, while settlement negotiations were taking place, acting UDC provost Beverly Anderson directed Dr. Vossoughi in writing to vacate his laboratory, because the space was needed for other university programs. In early September, however, UDC counsel Robin Alexander advised Dr. Vossoughi's attorney that Dr. Vossoughi's eviction had been stayed in view of the on-going efforts to resolve the employment litigation. Provost Anderson testified at trial that Alexander had asked her not to evict Dr. Vossoughi. Nonetheless, in November 1999, Provost Anderson wrote another letter demanding that Dr. Vossoughi vacate his laboratory.
In January 2000, unbeknownst to Dr. Vossoughi, a decision was made to clear out the contents of his laboratory to make room for a practical nursing program. . . .
On February 11, 2000, Dr. Vossoughi returned to his laboratory, found the door open, and discovered that "[m]ost of the lab was empty except some big pieces there." He testified at trial that he saw "a lot of [his] stuff in the trash dumpsters" around the building, but approximately "80, 90 percent of [his] things were gone." Dr. Vossoughi immediately telephoned his attorney, who instructed him to take photographs to document the condition of his laboratory. The photographs, which were in evidence at trial, show a laboratory stripped of virtually all its contents, surrounded by piles of trash and stacked boxes. Dr. Vossoughi testified that a trash bin in one photograph contained "mostly [his] experiments, which were broken, dismantled." When asked at trial whether he did anything to try to retrieve property from the trash, Dr. Vossoughi responded that "if 80, 90 percent of your belongings are gone, you don't care at that time about 10 percent trash left over." Later, Dr. Vossoughi did seek to retrieve or inventory his stored belongings, but UDC initially did not permit him to do so. Eventually, Dr. Vossoughi was allowed to inventory the property and take what was his. He testified at trial that he did not include any recovered property in his claim for damages. . . .
Dr. Vossoughi sought compensation from UDC for the destruction of four main types of personal property: (1) course materials; (2) unpublished research data; (3) scientific instruments that he had fabricated; and (4) equipment and other items that he had purchased from commercial vendors. The value of this property was a principal, though not the sole, component of Dr. Vossoughi's damages claim. Because most of the lost property was unique or had no fair market value, Dr. Vossoughi asked the jury to award him its replacement value. In order to establish the value of his lost property, Dr. Vossoughi relied on his own testimony and, with respect to all but the commercially available items, the testimony of two expert witnesses, Dr. Ted Conway and Dr. Subrata Saha. Dr. Conway, a biomedical engineering researcher at the University of Central Florida, was "on loan" at the time of trial to the National Science Foundation, where he was in charge of its funding program for research and disabilities education. In connection with that assignment, Dr. Conway had earned a "master's certificate" in project management at George Washington University. Dr. Saha was a professor at Alfred University, where he taught courses in bioengineering, biomechanics and related fields, as well as a course in engineering economic analysis. Both Dr. Conway and Dr. Saha had collaborated with Dr. Vossoughi on research projects, and they were generally familiar with his work, the courses he taught, and his publications and scientific reputation. . . .
III. Admissibility of the Experts' Valuation Testimony
UDC contends that the trial court erred in permitting Dr. Conway and Dr. Saha to testify as to the value of Dr. Vossoughi's course materials, unpublished research, and fabricated devices. UDC asserts that the witnesses lacked the qualifications necessary to testify as experts on valuation and "merely rubber-stamped Vossoughi's speculative and erroneous valuations without providing any reasonable basis for their opinions." We disagree.
. . . "The trial court has broad discretion in determining whether to admit expert testimony, and its ruling admitting or excluding such evidence will not be disturbed unless manifestly erroneous." Similarly, "[w]hether a witness possesses the requisite qualifications to express an opinion on a particular subject is within the trial court's discretion, and its decision in that regard will only be reversed for an abuse." [quoting Jung v. George Washington Univ., 875 A.2d 95, 104-05 (D.C. 2005)].
It is undisputed that the valuation of Dr. Vossoughi's specialized property was a proper subject for expert opinion testimony; it is certainly a subject "distinctly related" to Dr. Vossoughi's occupation and "beyond the ken" of the average lay juror. As to the experts' qualifications, the issue is not whether Dr. Conway and Dr. Saha had formal training in property appraisal, market valuations or financial analysis, nor whether they previously had been qualified as experts on the valuation of property. The witnesses had extensive experience as experimenters, researchers and academics in Dr. Vossoughi's field, and they had considerable familiarity with Dr. Vossoughi's laboratory, research and achievements. Each witness had worked with Dr. Vossoughi, fabricated similar equipment, created and taught similar courses, performed similar research, and funded or budgeted similar projects. The trial court readily could find that the witnesses' knowledge and experience prepared them to offer informed opinions regarding the time and resources necessary to replicate Dr. Vossoughi's lost course materials, unpublished research, and specially fabricated devices. . . .
VII. Conclusion
This was an unusual case. The jury reasonably could find that UDC tortiously destroyed much of Dr. Vossoughi's life's work - intellectual property created and accumulated over decades - and ruined his professional career. While Dr. Vossoughi's lost course materials, unpublished research, and fabricated devices were difficult to value, the evidence allowed the jury to make a fair estimate of their worth. The jury's award may seem high to some (and clearly it does to UDC), but it is supported by admissible evidence and untainted by legal error. We have no grounds to overturn the verdict. The judgment of the trial court is hereby affirmed.
[Alan R. Kabat, Bernabei & Wachtel, PLLC]
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