Russell v. Call/D, LLC

122 A.3d 860

Craig L. RUSSELL, Appellant

v.CALL/D, LLC, Appellee.

No. 13–CV–1177.

District of Columbia Court of Appeals.

Argued Oct. 21, 2014.

Decided April 15, 2015.

Peter T. Enslein, Washington, DC, with whom Kenneth D. Bynum, Alexandria, VA, was on the brief, for appellant.

Susan E. Smith, with whom Thomas P. Bernier, Baltimore, MD, was on the brief, for appellee.

Before FISHER, THOMPSON, and EASTERLY, Associate Judges.

Opinion

THOMPSON, Associate Judge:

In June 2012, appellant Craig Russell brought a lawsuit asserting “negligence—premises liability” and “strict liability/negligent failure to warn” claims against appellee Call/D, LLC (“Call/D”), the owner of the apartment building where appellant was residing when he began to suffer the symptoms of Legionnaires' disease, with which he was diagnosed in May 2011. Russell alleged in his Complaint and subsequent deposition that sewage back-ups in the apartment building and sewage-contaminated water that was allowed to stand in a vacant basement apartment caused him to contract the disease. The Superior Court (the Honorable Natalia Combs Greene) granted Call/D's motion in limine to exclude the testimony of Russell's designated causation expert and then granted Call/D's motion for summary judgment. Russell argues on appeal that Judge Combs Greene abused her discretion by ruling without considering his supplemental Super. Ct. Civ. R. 26(b)(4) statement and also that she erred in granting Call/D's motions in limine and for summary judgment. We disagree and therefore affirm.

I. Factual and Procedural Background

The following background facts, which we consider in the light most favorable to Russell,¹ are undisputed. In 2004, Russell leased an apartment on the second floor of 5218 Fitch Street, S.E. (Apartment 6), and lived there until May 2011. Sometime during the fall of 2010, the tenants living in the basement-level Apartment 1 vacated the premises, leaving behind their cats. The windows to Apartment 1 were left open, allowing the cats (and perhaps other animals) to enter and exit the vacant apartment. As a result, feces and dead animals were on the floor of the abandoned apartment, and the apartment had a horrible stench. The deposition testimony also establishes that in November 2010, a pipe burst in Apartment 1, causing flooding in the apartment. Additionally, sometime during or before May 2011, sewage and sewage-contaminated water backed up and overflowed into Apartment 1, covering its floor with a half-inch to inch of water that, at one point, also overflowed into the adjacent hallway. A video recording made on May 28, 2011—after Russell had fallen ill with Legionnaires' disease —shows that the apartment was still filthy at that time, with standing pools of water on the floor.

Around May 8, 2011, Russell noticed that the water coming out of the faucets in his apartment smelled bad and was discolored for several moments before running clean. Sewage or sewage-like water would also bubble up out of his drains after use. During early May 2011, the entire apartment building also began to smell, prompting residents to make calls to management starting around May 9, 2011.

On May 10, 2011, Russell began to feel fatigued. Over the next few days, he felt increasingly worse. On May 21, 2011, when he was barely able to stand, he went to the hospital and was diagnosed with Legionnaires' disease, a serious form of pneumonia. Before the illness, Russell was a very healthy 39–year–old who routinely engaged in vigorous exercise.

The parties' designated experts agree that Legionella bacteria, the cause of Legionnaires' disease, infect humans through the inhalation of contaminated airborne water droplets; that is, the water source containing the bacteria must be aerosolized and inhaled. Legionnaires' disease has an incubation period of 2–14 days, meaning that “symptoms typically manifest within 2 to 14 days after the exposure.”

During the two weeks before he became symptomatic, Russell went to many different places. He worked five days a week for ADT Security Systems as a service technician, a job that required him to go to an average of seven different locations every day. From May 6–8, 2011, Russell and his girlfriend were on a weekend trip to Bryce Resort, a ski resort in Mount Jackson, Virginia, where, according to the girlfriend's deposition testimony, he took at least one shower.

No samples were taken of the stagnant water in Apartment 1 before the apartment was professionally cleaned. Testing performed in September 2011 on water from taps and drain traps in Apartment 6 (to which Russell never returned after he was stricken in May 2011) uncovered no Legionella bacteria. As far as the record reveals, no one else living in the Fitch Street apartment building and no one else who visited Bryce Resort during the same time period when Russell was there contracted Legionnaires' disease.

As noted above, Russell filed his lawsuit in June 2012. On February 5, 2013, he served Call/D with a Rule 26(b)(4) statement in which he designated Dr. Steven Zimmet, a pulmonologist who treated Russell when he had Legionnaires' disease, as an expert who would testify as to “how Legionnaires' disease is contracted in general and specifically how Plaintiff contracted it due to his exposure to fumes and smells at his apartment building.”² No expert report or academic articles were attached to the Rule 26(b)(4) statement. Call/D's attorneys deposed Dr. Zimmet on April 19, 2013. Although Russell's counsel provided Dr. Zimmet with two academic articles regarding Legionella bacteria immediately before the deposition, Dr. Zimmet testified that he did not rely on these articles in coming to the opinion about which he planned to testify at trial.³ Dr. Zimmet assumed that Russell had regularly walked through sewage water when entering the apartment building, and he opined that Russell thereby came into contact with a sufficient number of aerosolized Legionella bacteria so as to become infected.

After the April 30, 2013, close of discovery, Call/D filed a motion in limine to exclude Dr. Zimmet's testimony, arguing that his training and experience as a clinician in treating patients diagnosed with Legionnaires' disease did not render him qualified to pinpoint the source of Russell's exposure to Legionella bacteria. On October 15, 2013, Judge Combs Greene issued an Omnibus Order in which she granted Call/D's motion in limine to exclude Dr. Zimmet's testimony, reasoning in part that his testimony regarding the source of Russell's illness was “entirely speculative.” That ruling was the premise for Judge Combs Greene's additional ruling that there was “no genuine issue of material fact ... as to [the] proximate cause” of Russell's illness and her granting of Call/D's motion for summary judgment.

II. Disregard of the Supplemental Rule 26(b)(4) Statement and the Decision Not to Hear Testimony from Dr. Zimmet

On September 18, 2013, Judge Combs Greene issued an order setting September 26, 2013, as the date for a hearing on Call/D's motion in limine. She asked the parties to be prepared to address “[t]he basis for Dr. Zimm[e]t's opinion that sewage is a possible source for Legionella bacteria,” the extent of Dr. Zimmet's “knowledge concerning the sources of [the] infections” of his previous patients who had been diagnosed with Legionnaires' disease, and “[a]ny and all scholarly literature Dr. Zimm[e]t used to guide or assist him in reaching his conclusion that sewage can be a source of the Legionella bacteria.” Judge Combs Greene also stated that, while she found Dr. Zimmet's attendance “essential,” his attendance would be excused if the scheduled hearing was inconvenient and if Russell could provide sufficient answers and documentation to address the court's concerns. Alternatively, Judge Combs Greene would “consider Dr. Zimm[e]t's appearance by telephone” if the parties agreed. Two days before the scheduled hearing, apparently while Judge Combs Greene was on leave, Russell's counsel advised the judge's staff that Dr. Zimmet would be unable to attend a hearing on September 26 and requested a continuance until September 27.⁴ Staff instructed the parties to appear at the scheduled time. During the September 26 hearing, Russell's counsel gave the court the two academic articles counsel had shown Dr. Zimmet prior to his deposition.

On September 30, 2013, four days after the hearing, Russell filed a supplemental Rule 26(b)(4) statement (“the supplemental statement”). The supplemental statement slightly amended the earlier description of Dr. Zimmet's expected testimony, and attached to it were a number of journal articles and other publications. In her October 15, 2013, order granting Call/D's motion in limine, Judge Combs Greene stated that she “did not view or consider” the supplemental statement in ruling on the motion. Russell now contends that Judge Combs Greene abused her discretion in ruling on the motion in limine without reading the supplemental statement and without hearing testimony from Dr. Zimmet.

This court reviews a trial judge's decision whether to accept a supplemental Rule 26(b)(4) statement for abuse of discretion. See Ferrell v. Rosenbaum, 691 A.2d 641, 646 (D.C.1997). We “take into account the reason for the supplement, the importance of the proffered testimony and any prejudice to the opposing party.” Id. at 647. In this case, we can find no abuse of discretion in Judge Combs Greene's decision not to consider Russell's supplemental statement. Russell was made aware by (1) the questioning at Dr. Zimmet's deposition on April 19, 2013, (2) Call/D's May 15, 2013, motion in limine, and (3) the affidavits of Call/D's experts attached to Call/D's May 15, 2013, motion for summary judgment (to which Russell filed an opposition on May 24, 2013), that Call/D was challenging Dr. Zimmet's qualifications to testify, but Russell waited until September 30, 2013, to file the supplemental statement. Russell provided Judge Combs...