United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2007 Decided July 3, 2007

No. 05-7169

SONYA MULDROW,

INDIVIDUALLY, AND ON BEHALF OF THE ESTATE AND NEXT OF

KIN OF KENNETH N. MULDROW, JR., DECEASED,

APPELLEE

v.

RE-DIRECT, INC.,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cv02537)

David F. Grimaldi argued the cause and filed the brief for

appellant.

Andrew D. Roth argued the cause for appellee. With him on

the brief was Laurence Gold. W. Gary Kohlman entered an

appearance.

Before: GINSBURG, Chief Judge, and HENDERSON and

GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.
2

1

Because Re-Direct appeals from the denial of its motion for

judgment as a matter of law, we view the evidence in the light most

GARLAND, Circuit Judge: Defendant Re-Direct, Inc. began

providing residential programs for juvenile delinquents in the

District of Columbia in 1998. By the end of 1999, four youths

had been murdered while in the defendant’s care. In 2000, the

plaintiff’s son, Kenneth, became the fifth. Thereafter, the

plaintiff filed this civil suit, alleging violations of Kenneth’s

constitutional rights under 42 U.S.C. § 1983 and negligence

under District of Columbia law. A jury found for the plaintiff

on both claims, and awarded her compensatory and punitive

damages.

The defendant now appeals from the district court’s denial

of its post-trial motion for judgment as a matter of law or, in the

alternative, for a new trial. Re-Direct insists that it was entitled

to the former because Kenneth’s conduct “constituted

contributory negligence and proximate cause as a matter of

law.” Appellant’s Br. 13. Re-Direct asserts that it was entitled

to a new trial because the district court committed three trial

errors. According to Re-Direct, the court: (1) improperly

excluded testimony by a police witness regarding the motive

behind Kenneth’s murder; (2) improperly admitted expert

testimony that was not contained in the expert’s pretrial report;

and (3) improperly instructed the jury regarding the standard for

contributory negligence. We reject all of Re-Direct’s arguments

and affirm the judgment of the district court.

I

In 1999, the Superior Court of the District of Columbia

adjudged Kenneth Muldrow, Jr. a delinquent and committed him

to the custody of the Youth Services Administration, a division

of the District of Columbia’s Department of Human Services.1
3

favorable to the plaintiff. See, e.g., Borgo v. Goldin, 204 F.3d 251,

254 (D.C. Cir. 2000); United States ex rel. Yesudian v. Howard Univ.,

153 F.3d 731, 734 n.1 (D.C. Cir. 1998).

2

The defendant was originally named “Educational Solutions

Academy,” but changed its name in 2000. See Pl.’s Ex. 28, at 1-2.

Pursuant to the court’s order, he was placed in a psychiatric

hospital. In June 2000, just before Kenneth’s nineteenth

birthday, the court modified the conditions of his commitment,

ordering him placed in a “transitional living program” operated

by Re-Direct.2

Re-Direct’s transitional living program offered “specialized

residential treatment services” to juvenile delinquents, under a

contract with the Youth Services Administration. Muldrow v.

Re-Direct, Inc., No. 01-2537, Mem. Op. at 2 (D.D.C. May 3,

2005) (denying defendant’s motion for summary judgment).

The program was essentially a halfway house, intended to

provide a structured and supervised environment where youths

could receive various rehabilitative services. The company also

operated a separate “independent living program,” where

youngsters received some supervision, but lived in apartments

by themselves.

Re-Direct’s relatively brief contractual relationship with the

District was marred by a series of violent assaults on the youths

who were committed to its care. In February 1999, a youth

enrolled in Re-Direct’s independent living program was

“murdered while visiting his family during a home visit made in

violation of [Re-Direct’s] rules.” Smith v. District of Columbia,

413 F.3d 86, 92 (D.C. Cir. 2005). In April 1999, two more

youths in the same program were shot in the head and killed by
4

3

In Smith, we affirmed a jury verdict finding the District of

Columbia liable for violating the substantive due process rights of one

of those youths by “virtue of its deliberate indifference in selecting

and monitoring” Re-Direct. 413 F.3d at 89.

a visitor to their apartment. Id.3 Another minor in Re-Direct’s

care was murdered later that year. Id.

Kenneth’s “discharge information” sheet from the

psychiatric hospital instructed that he was to continue taking

three different medications, and was to participate in several

treatment programs related to his psychiatric and substance

abuse problems. Pl.’s Ex. 5. This treatment plan, however, was

not fully implemented during Kenneth’s time in the Re-Direct

program. He did not participate in many of the treatment

programs, and he frequently missed his appointments for

individual therapy. Re-Direct also failed to maintain records

regarding whether Kenneth consistently received his prescribed

course of medications.

In October 2000, another youth at the Re-Direct residence

made verbal threats against Kenneth. In response, the Re-Direct

staff gave Kenneth a “pass,” permitting him to leave the facility

and stay at his mother’s house “until further notice.” Muldrow,

Mem. Op. at 3. The following day, he was brutally assaulted by

several unidentified attackers in southeast Washington.

Kenneth’s injuries required him to spend three full days in

intensive care, and approximately three weeks in the hospital.

After his release from the hospital, the Superior Court returned

him to the Re-Direct residence.

At trial, Kenneth’s mother testified that her understanding

with Re-Direct was that Kenneth would “only be allowed to

leave [the residence] with me, my daughter, or his father. . . . [I]f

he was to leave that house other than to go to school by school
5

4

Section 1983 provides a cause of action for monetary damages

against “[e]very person who, under color of [state or District of

Columbia law,] . . . subjects, or causes to be subjected, any . . . person

. . . to the deprivation of any rights, privileges, or immunities secured

by the Constitution . . . .” 42 U.S.C. § 1983. See generally Smith, 413

F.3d at 93-97.

transportation, . . . one of us [was] supposed to be with him to

sign out.” Trial Tr. 139. Nonetheless, Re-Direct’s log book

indicates that, on December 8, 2000, Kenneth was permitted to

leave the residence unaccompanied at 5:20 p.m. He did not

return for the rest of the evening. Later that night, Kenneth was

again assaulted in the same neighborhood where he had been

attacked in October. His assailants beat him for twenty to thirty

minutes with bottles, trash cans, buckets, and a metal pole. He

died shortly thereafter.

Kenneth’s mother, Sonya Muldrow, filed suit against ReDirect in the United States District Court for the District of

Columbia, individually and on behalf of Kenneth’s estate and

next of kin. Relying on 42 U.S.C. § 1983 for her cause of

action, she alleged that, having been “charged by Court Order

with sole legal custody and responsibility for” Kenneth, ReDirect “acted with deliberate indifference” to his “right to safe

conditions and security from physical harm, a right guaranteed

by the due process clause of the U.S. Constitution.” Compl. ¶

68. (The parties later stipulated that “Re-Direct was acting

under color of state law or as a state actor with respect to its

actions towards Kenneth N. Muldrow, Jr.” Pl.’s Ex. 28, at 1.)4

The complaint also alleged that Re-Direct was liable for the

District of Columbia common law tort of negligence.

A jury returned a verdict for the plaintiff. On the § 1983

claim, the jury found that Re-Direct violated Kenneth’s

constitutional rights and that this violation proximately caused
6

his death. Verdict Form at II.A. On the tort claim, it found that

Re-Direct was negligent and that its negligence also proximately

caused Kenneth’s death. Id. at I.A.1-2. The jury rejected ReDirect’s defense of contributory negligence with respect to this

claim because, although it found that Kenneth was himself

negligent, it concluded that his negligence was not the proximate

cause of his death. Id. at I.A.3-4. The jury awarded the plaintiff

compensatory damages of $200,000 and punitive damages of

$797,160. Id. at III.

After the verdict, Re-Direct moved for judgment as a matter

of law under Federal Rule of Civil Procedure 50 or, in the

alternative, for a new trial under Rule 59. The district court

denied both motions. See Muldrow v. Re-Direct, Inc., 397 F.

Supp. 2d 6 (D.D.C. 2005). Re-Direct now appeals. It raises one

challenge to the denial of its motion for judgment as a matter of

law, which we address in Part II, and contends that the district

court committed three errors requiring a new trial, which we

address in Part III.

II

This court reviews “de novo a trial court’s denial of a

motion for judgment as a matter of law. We do not, however,

lightly disturb a jury verdict. Judgment as a matter of law is

appropriate only if the evidence and all reasonable inferences

that can be drawn therefrom are so one-sided that reasonable

men and women could not have reached a verdict in plaintiff’s

favor.” McGill v. Muñoz, 203 F.3d 843, 845 (D.C. Cir. 2000)

(internal quotation marks and citation omitted). 

Re-Direct’s sole argument for judgment as a matter of law

focuses on the jury’s rejection of its contributory negligence

defense. Although the jury concluded that Kenneth was

negligent, it also found that his negligence was not the
7

proximate cause of his death. Verdict Form at I.A.3-4. We

must overturn the latter finding, Re-Direct insists, because

“reasonable [j]urors could not differ concerning the actions of

the minor plaintiff being a proximate cause of his death.”

Appellant’s Br. 21.

But even if we were to assume that Kenneth’s negligent

conduct did proximately cause his death, such contributory

negligence would not warrant overturning the jury’s verdict if

Re-Direct acted with reckless disregard for Kenneth’s safety.

Under District of Columbia law, “in cases of reckless conduct

by the defendant[,] . . . the plaintiff’s contributory negligence

will not bar his action.” Sinai v. Polinger Co., 498 A.2d 520,

525 n.7 (D.C. 1985); see also Santiago v. Lane, 894 F.2d 218,

224 (7th Cir. 1990); RESTATEMENT (SECOND) OF TORTS § 482

(1965); W. PAGE KEETON ET AL., PROSSER & KEETON ON THE

LAW OF TORTS 462 (5th ed. 1984). Without objection from ReDirect, the district court so charged the jury, instructing it that:

A defendant is not liable for a plaintiff’s injuries if the

plaintiff’s own negligence is a proximate cause of the

injuries. However, if you find that the plaintiff has

proven that defendant acted with reckless disregard for

Kenneth Muldrow’s safety, as opposed to mere

negligence, then Kenneth’s own negligence is not

relevant, unless you find that Kenneth also recklessly

disregarded his own safety.

Trial Tr. 745-46 (emphasis added). 

In returning a verdict for the plaintiff on her § 1983 claim,

and in further awarding her punitive damages, the jury

effectively found that Re-Direct’s behavior was at least reckless.

On the issue of § 1983 liability, the district court instructed the

jury that the plaintiff could not prevail unless it found that Re-
8

Direct acted with “deliberate indifference” to Kenneth’s “right

under the Fifth Amendment of the United States Constitution[,

as] an individual who is in state custody[, ] to safe conditions

and security from physical harm,” and that such indifference

was the proximate cause of his death. Trial Tr. 747-48. The

court went on to define “deliberate indifference” as “the

conscious or reckless disregard of the consequences of one’s

acts or omissions. Deliberate indifference requires more than

negligence or ordinary lack of care.” Id. at 749. On the issue of

punitive damages, the court informed the jury that it could

award such damages only if it found that “the conduct of ReDirect . . . was maliciously, or wantonly, or oppressively done.”

Id. at 754. In short, to arrive at these verdicts, the jury

necessarily found that Re-Direct was (at the very least) reckless.

Re-Direct offers no grounds for concluding that it was

unreasonable for the jury to find that Re-Direct recklessly

disregarded Kenneth’s safety, and we therefore affirm that

finding. Nor does Re-Direct assert that Kenneth was himself

reckless, see Oral Arg. Recording at 5:55, which, if it were true,

would have permitted Re-Direct to rely on a contributory

negligence defense notwithstanding its own recklessness, see

RESTATEMENT (SECOND) OF TORTS § 482 (stating that “a

plaintiff’s contributory negligence does not bar recovery for

harm caused by the defendant’s reckless disregard for the

plaintiff’s safety,” except where the plaintiff’s conduct was “in

reckless disregard of his own safety”); Trial Tr. 745

(contributory negligence instruction) (same). Accordingly, even

if Kenneth were contributorily negligent and his negligence

proximately caused his death, Re-Direct’s reckless disregard for

his safety would render it liable for his death and ineligible for

judgment as a matter of law.
9

III

Re-Direct also contends that the district court committed

three trial errors that warrant a new trial. The defendant raised

two of these alleged errors in its unsuccessful motion for a new

trial in the district court, and it raises the third for the first time

on this appeal.

A

We review the district court’s denial of Re-Direct’s motion

for a new trial “only for an abuse of discretion.” Daskalea v.

District of Columbia, 227 F.3d 433, 443 (D.C. Cir. 2000). We

review the court’s evidentiary rulings under an abuse of

discretion standard as well. Whitbeck v. Vital Signs, Inc., 159

F.3d 1369, 1372 (D.C. Cir. 1998). We find no merit in either of

the assertions of error that Re-Direct raised in the district court,

and therefore hold that the court did not abuse its discretion in

denying Re-Direct’s motion for a new trial.

Re-Direct asserts, first, that the district court erred when it

excluded the testimony of a Metropolitan Police Department

detective, Ray Crawford, regarding the motive of Kenneth’s

attackers, one of whom the detective had apparently

interviewed. Specifically, it complains that Crawford “was not

permitted to testify . . . that [Kenneth] had stolen drugs and

money from the assailants.” Appellant’s Br. 11. 

The district court excluded the proffered testimony as

inadmissible hearsay. See 397 F. Supp. 2d. at 10. At his pretrial

deposition, Crawford acknowledged that he did not have any

independent evidence regarding the motive for Kenneth’s

murder. See Crawford Dep. 18, 37 (Aug. 30, 2004). The only

thing that Crawford did have was the attacker’s statement that

“he beat [Kenneth] because [Kenneth] had stolen money from
10

his coat in September or October of last year.” Aff. in Supp. of

Arrest Warrant. This kind of out-of-court statement, “offered

in evidence to prove the truth of the matter asserted,” constitutes

hearsay, FED. R. EVID. 801(c), which is inadmissible at trial

unless it comes within an authorized exception, see FED. R.

EVID. 802. Because Re-Direct suggested no exception that

would have rendered the detective’s recitation of the assailant’s

interview statement admissible, the district court was plainly

correct in excluding such testimony. And because the detective

had no other information regarding the motive for the attack, the

court was correct to exclude his testimony on the general subject

as well. See FED. R. EVID. 602 (providing that a “witness may

not testify to a matter unless . . . the witness has personal

knowledge of the matter”); id. advisory committee’s notes to

1972 proposed rules (explaining that Rule 602 “prevent[s]” a

witness “from testifying to the subject matter of [a] hearsay

statement, as he has no personal knowledge of it”). Indeed, at

oral argument, Re-Direct essentially conceded that exclusion

was proper. See Oral Arg. Recording at 9:21.

Second, Re-Direct asserts that the district court erred in

permitting the plaintiff’s juvenile justice expert, Paul DeMuro,

“to testify to a pattern of ‘deliberate indifference’” on the part of

Re-Direct, because DeMuro “did not render an opinion” on that

point in the expert report the plaintiff filed pursuant to Federal

Rule of Civil Procedure 26. Appellant’s Br. 11. But DeMuro

never gave any such opinion testimony; in fact, he never used

the term “deliberate indifference” at all. Because Re-Direct

does not cite any transcript pages to support its argument, the

best we can do is guess that it is referring to DeMuro’s

descriptive (and somewhat ambiguous) testimony that, in ReDirect’s transitional living program, he “saw the same kinds of

issues, both with lack of staff training[ and] lack of

accountability,” that surrounded the murders of youths in ReDirect’s independent living program. Trial Tr. 388.
11

Under Rule 26(a)(2)(B), a party using an expert witness

must disclose a report containing, inter alia, “a complete

statement of all opinions to be expressed and the basis and

reasons therefor.” FED. R. CIV. P. 26(a)(2)(B). The purpose of

the rule is to eliminate “unfair surprise to the opposing party.”

Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284

(8th Cir. 1995). But it “does not limit an expert’s testimony

simply to reading his report. . . . The rule contemplates that the

expert will supplement, elaborate upon, [and] explain . . . his

report” in his oral testimony. Thompson v. Doane Pet Care Co.,

470 F.3d 1201, 1203 (6th Cir. 2006); see Minebea Co. v. Papst,

231 F.R.D. 3, 8 (D.D.C. 2005). Under Rule 37(c)(1), if a party

fails to disclose the information required by Rule 26(a), its

expert may not testify as to that information -- “unless such

failure is harmless.” FED. R. CIV. P. 37(c)(1). 

DeMuro’s testimony did not run afoul of Rules 26 or 37 --

or if it did, the testimony was nonetheless admissible because

any transgression was harmless under Rule 37. See FED.R.CIV.

P. 37(c)(1). The expert’s testimony could hardly have been an

unfair surprise to Re-Direct, as it was largely an elaboration of

DeMuro’s written report, which noted that he reviewed fatality

reports regarding two of the youths who had died while enrolled

in Re-Direct’s independent living program. Moreover, DeMuro

was deposed before trial, and during his deposition discussed his

testimony in an earlier case that involved one of those deaths.

See supra note 3. Hence, as the district court held, “defense

counsel had adequate warning that DeMuro had observed earlier

problems with the Re-Direct program and an adequate

opportunity to question whether those observations factored into

the conclusions expressed in his written report.” 397 F. Supp.

2d at 11.

We further agree with the district court that, even if it

should not have admitted DeMuro’s testimony, the testimony
12

was harmless within the meaning of Federal Rule of Civil

Procedure 61. That rule directs courts to disregard any error or

defect in the proceeding that does not “affect the substantial

rights” of the parties, FED. R. CIV. P. 61, which “means that the

error must have been prejudicial: It must have affected the

outcome of the district court proceedings,” United States v.

Olano, 507 U.S. 725, 734 (1993) (defining “affect[] substantial

rights” as used in FED. R. CRIM. P. 52(b)). As the district court

found, Re-Direct “has failed to show that DeMuro’s testimony,

even if surprising, was unfairly prejudicial.” 397 F. Supp.2d at

11. For one thing, before DeMuro even took the stand, the

former CEO of Re-Direct had already testified about the

murders that occurred at Re-Direct’s independent living

program. See Trial Tr. 261-62. Moreover, “the jury had ample

evidence” other than DeMuro’s challenged testimony “from

which to conclude that Re-Direct was ‘deliberately indifferent’

to Kenneth’s safety and that its failure to properly care for

Kenneth was part of a ‘custom’ or ‘practice.’” 397 F. Supp. 2d

at 11. Among other things, the jury heard testimony that ReDirect: failed to maintain proper records on whether Kenneth

had received his medications, Trial Tr. 181-82, 196; falsely

represented that it was providing services to Kenneth when it

was not, id. at 132-34; see also Pl.’s Ex. 7; and did not feel

obligated to monitor Kenneth’s attendance at court-ordered

treatment programs, Trial Tr. 287. “In light of these and the

many other examples of Re-Direct’s persistent failings,” we, like

the district court, “cannot assume that DeMuro’s testimony

regarding the prior deaths of youths in Re-Direct’s care was a

crucial element in the jury’s decisionmaking process.” 397 F.

Supp. 2d at 11.

B

The third alleged trial error asserted by Re-Direct is its

claim that the district court incorrectly instructed the jury
13

5

“[A]ctual application” of the provision, however, should “take[]

account of the differences” between civil litigation and criminal

prosecution. FED. R. CIV. P. 51 advisory committee’s notes to 2003

amendments; see Higbee v. Sentry Ins. Co., 440 F.3d 408, 409 (7th

Cir. 2006). 

regarding the standard for finding Kenneth contributorily

negligent. Because Re-Direct failed to object to the instruction

at trial, we may only consider this claim if the instruction

constitutes “a plain error . . . affecting substantial rights.” FED.

R. CIV. P. 51(d)(2). As the notes of the Advisory Committee

indicate, review under this provision -- which was added to the

Federal Rules of Civil Procedure in 2003 -- is reserved for

“exceptional circumstances.” FED. R. CIV. P. 51 advisory

committee’s notes to 2003 amendments. The language of the

provision “is borrowed from [Federal Rule of Criminal

Procedure] 52.” Id.5

 And as “[t]he Supreme Court has

summarized[,] application of” that rule “involve[s] four

elements: (1) there must be an error; (2) the error must be plain;

(3) the error must affect substantial rights; and (4) the error must

seriously affect the fairness, integrity, or public reputation of

judicial proceedings.” Id. (citing Johnson v. United States, 520

U.S. 461, 466-67, 469-70 (1997)).

Re-Direct contends that the district court erred when it

instructed the jury regarding contributory negligence as follows:

You should use the same basic rules that you used to

decide whether Re-Direct was negligent to decide

whether Kenneth was negligent. In considering

whether Kenneth exercised “ordinary care,” you should

consider whether Kenneth’s actions were those of a

reasonable person . . . with similar mental health

problems.
14

Trial Tr. 746 (emphasis added). According to Re-Direct,

“[t]here was no justification for the [j]ury being instructed that

the plaintiff had ‘mental health problems’” because there was

“no evidence of ‘mental health problems.’” Appellant’s Br. 23.

We need not belabor the plain error test to resolve this

contention, as Re-Direct plainly cannot satisfy it. First, we

reject Re-Direct’s claim of error -- and, a fortiori, of plain error.

Re-Direct’s assertion that there was “no evidence” that Kenneth

had “mental health problems,” Appellant’s Br. 23, is simply

wrong. In fact, the record is replete with such evidence:

DeMuro testified that Kenneth had “mental health problems,”

Trial Tr. 383, and had spent “two or three periods of time in a

psychiatric hospital,” id. at 382; a psychiatrist who reviewed

Kenneth’s medical records testified that he was diagnosed with

both conduct disorder and depression, id. at 185; the psychiatrist

further testified that Kenneth was being treated with an

antidepressant and an “atypical antipsychotic,” id. at 186; and a

progress report filed with the Superior Court during Kenneth’s

inpatient stay at the psychiatric hospital showed that he had

received treatment for a “history of mental, emotional, and

behavioral issues” that manifested themselves in “suicidal and

homicidal ideations,” “auditory hallucinations and unstable

mood,” and “depress[ion],” Pl.’s Ex. 2, at 5.

Second, even if the instruction were erroneous, we do not

understand why Re-Direct thinks it was injurious. The court’s

command to “consider whether Kenneth’s actions were those of

a reasonable person . . . with similar mental health problems”

may have made it harder for the jury to conclude that Kenneth

was negligent. But in the end, the jury did conclude that he was

negligent. Verdict Form at I.A.3. The third element of the plain

error test requires that the alleged error “‘affect[] substantial

rights,’” Johnson, 520 U.S. at 467 (quoting Olano, 507 U.S. at

732), which, as we have noted above, “means that the error must
15

6

As noted in Part II, although the jury concluded that Kenneth

was negligent, it also found that his negligence was not the proximate

cause of his death. Re-Direct does not contend that the asserted error

in the negligence instruction affected the jury’s finding regarding

proximate cause.

have been prejudicial,” Olano, 507 U.S. at 734. Since the jury

found Kenneth negligent notwithstanding the instruction, ReDirect could not have been prejudiced by the error it assertedly

contained.6

IV

Because Re-Direct’s challenges -- both to the jury’s verdict

and to the district court’s rulings -- are wholly without merit, the

judgment of the district court is

Affirmed.