"Sham Affidavit:" Error to Ignore Expert's Affidavit that Didn't Directly Contradict Deposition

Hinch v. Lucy Webb Hayes Nat'l Training School, __ A.2d __ (D.C. 2003). Opinion by Steadman, joined by Schwelb and Washington. Trial judge: Zeldon.

FACTS: While a central line was being removed from her heart, plaintiff had extensive seizures, required CPR, and then suffered brain damage. She sued Sibley Hospital. Her theory was that her injuries were caused by her seizures, which were caused by not receiving enough of her previously prescribed anticonvulsant drug (Dilantin) while in the hospital. Blood test showed Dilantin level was "sub-therapeutic." At deposition, plaintiff's expert was asked if her injuries were caused by sub-therapeutic levels of Dilantin, and testified: "I can't tell you that it was the code and having to be administered CPR over a period of time or prolonged seizures... It's the cluster of those events that caused that, and I cannot tease that apart for you." Defense moved for summary judgment on ground that expert hadn't established that the low levels of Dilantin caused the injury. Plaintiff submitted new affidavit from expert with opposition brief. Affidavit said the prolonged seizures were precipitated by the failure to administer Dilantin "and are more likely than anything else to have been the cause" of plaintiff's injuries. Judge disregarded the affidavit and granted summary judgment to hospital.

OUTCOME: Summary judgment for defendant REVERSED.

HOLDING: Trial judge should not have disregarded expert's affidavit under the "sham affidavit" doctrine, which is limited to affidavits that directly contradict prior deposition testimony. Here, expert was never asked at deposition whether any of the several causes was more likely than the others. Affidavit merely supplemented, and did not contradict, deposition.

QUOTE: "[A]t a minimum, for the sham affidavit doctrine to apply, there must be a clear and explicit contradiction between what is said at the deposition and what is said in the affidavit. This is particularly the case where, as here, it is not a party to the litigation or a closely related witness who is changing sworn testimony, but is instead a medical professional and expert witness with no apparent direct interest in the litigation."

Limitations Clock Doesn't Start Until Plaintiff's Suspicions of Wrongdoing Gel

Doe v. Medlantic Health Care Group, Inc., __ A.2d __ (D.C. 2003). Opinion by Ruiz, joined by Reid; Belson dissenting. Trial judge: Braman.

FACTS: Doe, a night janitor at the State Department, had AIDS but hadn't told any of his co-workers. One of those co-workers, Goldring, had a second job as a receptionist at Washington Hospital Center, where Doe was receiving treatment. Doe, knowing that Goldring worked at WHC, stopped by to chat one day after a clinic visit. Goldring asked him how to spell his last name so she could send him a get-well card (which she never sent). Shortly after that, another co-worker told Doe that Goldring was "going around telling everybody you got AIDS." Doe confronted Goldring, who denied it. Doe concluded that the informant was joking. Meantime other co-workers started shunning Doe and making snide remarks. About a month later, a co-worker started teasing Doe in front of Goldring, and by Goldring's mannerisms, Doe concluded that she was the source of the rumors and he suspected she may have seen his medical records at the hospital. He complained the next day to the WHC personnel office, and exactly a year later, he sued Medlantic, owner of WHC, for breach of confidential relationship, for letting his confidential records be disclosed to Goldring. Jury awarded $250,000. Trial judge granted judgment to Medlantic on the grounds that the one-year statute of limitations had begun to run when Doe first was told that Goldring was the source of the AIDS rumors

OUTCOME: Judgment for defendant REVERSED and jury verdict for plaintiff REINSTATED.

HOLDING: A cause of action accrues when a plaintiff is deemed to be on "inquiry notice" of a cause of action, i.e., "that notice which a plaintiff would have possessed after due investigation." Quoting Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (emphasis by Doe court). Jury could have concluded here that Doe did make a reasonable inquiry after the first rumor and that he reasonably concluded that Goldring was telling the truth in her denial. Therefore limitations period did not start to run until he realized after the subsequent event with Goldring, exactly one year before he filed suit, that she was the probable source. As to the hospital, "If Doe reasonably believed that Goldring was not the source of the rumors until [one year before suing], the jury could have found that he was not required to investigate the hospital's involvement before then." Trial court erred in making credibility judgments against plaintiff and in substituting its judgment for the jury's on what constituted reasonable investigation.

Jury Issue Can Be Created on Whether Driver Had Owner's Implied Consent to Use Car, Even If Owner and Driver Both Deny Consent

Athridge v. Rivas, __ F.3d __ (D.C. Cir. 2002). Opinion by Edwards, joined by Ginsburg and Garland.

FACTS: Mr. and Mrs. Rivas went on a long vacation in 1987. First they arranged to have their lawn moved by Jorge Iglesias, the 17-year-old son of Mrs. Rivas' first cousin. Iglesias, who was not licensed to drive, went into the house one day, found some car keys, and went for a drive. Iglesias accidentally hit and seriously injured his friend Tommy Athridge. A long lawsuit began. The Athridges won a $5.5 million judgment against Iglesias but saw their case against Mr. and Mrs. Rivas thrown out on summary judgment. After remand, 141 F.3d 357 (D.C. Cir. 1998), trial court reconsidered issue of whether the Rivases had consented that Iglesias could drive their car. Both the Rivases and Iglesias testified that no permission was given to drive the car. Plaintiff rebutted evidence of non-consent by noting that Iglesias had claimed to have driven the car before, that the credibility of the Rivases and Iglesias was in question because they are relatives, that the Rivases had not pressed charges against Iglesias for unauthorized use of the car after the accident, and that the Rivases left the house open for Iglesias' entry with the car keys available inside. Trial court again granted summary judgment, holding that the owners had rebutted the presumption of permission in D.C. Motor Vehicle Safety Responsibility Act, D.C. Code § 50-1301.08.

OUTCOME: Summary judgment for defendants REVERSED and case REMANDED for jury trial.

HOLDING: Plaintiff's evidence was enough to create a genuine issue of material fact on consent, requiring the jury to resolve the issue. For owner to overcome presumption of consent, evidence must be "conclusive" and "uncontradicted" concerning non-consent, and the evidence here was inconclusive and required weighing the credibility of the owners and the driver. At the same time, court rejects plaintiffs' argument that they were entitled to judgment based on the statutory presumption of consent. Jury will have to decide if owners had overcome statutory presumption.

WMATA Is Immune from Suit Over Adequacy of Subway Car Warning Signs

Abdulwali v. WMATA, __ F.3d __ (D.C. Cir. 2003). Opinion by Randolph, joined by Rogers and Williams.

FACTS: Six-year-old boy boarded Metro train, but the doors closed before his mother could get on, and the train pulled out of the station. Upset, the boy tried to exit the car through the bulkhead doors at the rear. The train at that moment passed over a switch that caused a large gap between the two cars, and the boy fell to his death. Mother sued Metro, alleging among other things that the warning sign on the bulkhead door was inadequate to warn passengers of the dangers of traveling between cars on a moving train. The sign said: "No Passage ñ Except in Emergency." Trial judge threw out all other claims except this one for failure to warn. Metro appealed.

OUTCOME: Denial of summary judgment REVERSED and judgment entered for Metro.

HOLDING: Wording on signs in Metro cars is a discretionary function based on policy judgments, which are part of Metro's sovereign immunity from tort actions for its governmental functions. D.C. Code § 9-1107.01(80). Distinguishing Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995), where the National Park Service was held liable for failing to post warning signs on a dangerous curve of Rock Creek Parkway, the court held that the Park Service's decision was governed solely by engineering standards rather than policy judgment.

QUOTE: "Designing the bulkhead signs, or any feature of the Metro system, required judgments that were by their nature susceptible to a policy analysis. ... The Transit Authority doubtless considered matters such as safety, aesthetics, cost, and a desire to alert passengers to the danger of moving between cars without discouraging them from so moving during emergencies." (Emphasis added.)

NOTE: Plaintiff faced with "discretionary function" immunity defense must obtain discovery to defeat presumption that policy judgments formed basis of defendant's conduct.

BRIEFS

Rear-ending a stationary vehicle ordinarily creates a presumption of negligence unless unusual circumstances exist. Here, the stationary vehicle was lawfully stopped at a red light in broad daylight on a mostly dry roadway. Trial court should not have granted directed verdict to defendant at the end of the plaintiffs' case. Warrick v. Walker, __ A.2d __ (D.C. 2003). Opinion by Washington, joined by Farrell and Belson. Trial judge: Winston.

Plaintiff has no case against Amtrak for train traveling too fast where train was going within posted speed limit, despite some evidence that the stretch of track was known to be rough. FELA claim of conductor injured when train lurched was barred by CSX Transp. Inc. v. Easterwood, 507 U.S. 658 (1993), which held such claims pre-empted by Federal Railroad Safety Act (FRSA) and its speed regulations. Easterwood exception for injury caused when train failed to slow for "specific, individual hazard" didn't apply here because evidence showed the location didn't have "a particularized immediate defect or hazard" but just had some long-term problems deemed to be reflected in the speed limit under the FRSA. Herndon v. Nat'l RR Passenger Corp., __ A.2d __ (D.C. 2003). Opinion by Steadman, joined by Farrell and Newman. Trial judge: Bayly.

Nieces and nephews of terror victim can't recover for their own emotional distress from foreign state that sponsored terrorism. District court upheld claims of Father Lawrence Jenco's estate and his six siblings for his 564-day captivity by an Islamic terrorist organization in Lebanon. Claims were against the Islamic Republic of Iran for encouraging the terrorist group. But court rejected claims of priest's 22 nephews and nieces. Court of Appeals affirms, holding that section 46 of the Restatement (Second) of Torts grants recovery for intentional infliction of emotional distress only to the direct victim and members of the victim's immediate family, which is defined as parents, spouse, siblings and children. Court rejects idea that family members were also direct victims of the terrorists because under that argument, anyone could recover. Relatives' position also contradicted Foreign Sovereign Immunities Act, which states that a "foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1606. Bettis v. Islamic Republic of Iran, __ F.3d __ (D.C. Cir. 2003). Opinion by Edwards, joined by Rogers and Garland.