Standard of Conduct: Regulations Can be Evidence Even If Not Promulgated for Safety Purpose

Theatre Management Group Inc. v. Dalgliesh, __ A.2d __ (D.C. 2001). Opinion by Farrell, joined by Ruiz and Reid. Trial judge: Walton.

FACTS: Plaintiff had a neuromuscular disorder called Charcot-Marie Tooth Syndrome, causing gradual loss of use of his arms and legs. He went to Warner Theater one night with friends, wearing braces on his legs and using a cane. He told usher he would need support on both sides as he walked down aisle to get to his seat. Usher offered to help but then walked ahead and beckoned his group to follow. Plaintiff stepped onto ramp and immediately fell, breaking a leg and resulting in his being permanently confined to a wheelchair. Plaintiff's expert architect testified that aisle ramp had a vertical slope of a 1:4 ratio (one unit of vertical drop to every four units of horizontal run), whereas accessibility guidelines under the Americans with Disabilities Act specified a maximum slope for ramps of 1:12. He further testified that while ramp could not easily be altered, theater could have put in handrails at top of ramp or alternative entry routes for disabled persons. Defendants objected that ADA accessibility standards were not a "public safety" measure. Trial judge instructed jury that ADA standards could provide evidence of a standard of conduct. Jury awarded damages of $983,000.

OUTCOME: Judgment for plaintiff AFFIRMED.

HOLDING:

(1) Plaintiff properly used the ADA standards as evidence of negligence, not as proof of negligence per se. A regulation does not need to be strictly safety in nature to provide evidence of an appropriate standard of conduct. In any case, however, the ADA standard governing ramps does embody a public safety objective even if its primary goal may be to avoid discrimination.

(2) Nurse who testified as "life care planner" for plaintiff could give opinions about the type and duration of his future medical needs (as opposed to the mere price of such services) as long as she showed specific familiarity with those needs and her opinions were corroborated by fact that projections were all for items he was already receiving by doctors' orders.

COMMENT: Court cites five factors laid out in Dada v. Children's National Medical Center, 715 A.2d 904, 909 (D.C. 1998) in deciding appropriateness of limiting discovery as a sanction.

Discovery: Counsel's Failure to Interview Own Experts Justifies Trial Court’s Refusal to Give More Time to Name New Experts

Dada v. Children’s National Med. Center, __ A.2d __ (D.C. 2000). PER CURIAM (Farrell, Glickman and Gallagher). Trial judge: Huvelle.

FACTS: In medical malpractice action on behalf of a child, plaintiff's counsel Nwadike filed a Rule 26(b)(4) statement one month late, naming three experts but failing to describe any substance of their testimony. Hospital then moved for summary judgment, using affidavits from two of the plaintiff's experts and a report from a third showing that they had no opinions on causation or standard of care. Court granted summary judgment and denied motion to extend discovery to find new expert. Plaintiff's counsel moved to reconsider but failed to appear at hearing on motion. Plaintiff appealed and won a remand, Dada I, 715 A.2d 904 (D.C. 1998), but after evidentiary hearing, trial court concluded that plaintiff's counsel had failed to interview her own experts and had been disingenuous and misleading with the court about her surprise at the alleged turn-about of her experts. Court again refused to reopen discovery. Plaintiff again appealed.

OUTCOME: Judgment for defendant AFFIRMED.

HOLDING:

(1) Trial court did not abuse discretion in refusing to reopen discovery where plaintiff's counsel neglected scheduling order deadlines, violated Rule 26(B)(4)'s substantive requirements, and failed to communicate with and obtain specific opinions from her own experts. Plaintiff failed to meet burden of showing excusable neglect by counsel.

(2) Court's reluctance to impute negligence of counsel to a minor plaintiff has its limits. Trial court appropriately and explicitly acknowledged prior case law on the courts' special duty to protect litigants who are minors and found that ruling in plaintiff's favor would in effect mean that plaintiff had no obligation to show any excusable neglect.

COMMENT: Import of holding is that a plaintiff can effectively counter a defendant's "uncontradicted" defense with testimony that undercuts the defendant's general credibility, even if plaintiff cannot contradict the specifics of the defense.

Section 12-309 Notice Doesn't Apply to D.C. Water and Sewer Authority

Dingwall v. District of Columbia Water and Sewer Authority, __ A.2d __ (D.C. 2001). Oppinion by Schwelb, joined by Steadman and Glickman. Trial judge: Hedge.

FACTS: Plaintiff was tenant in a house who got involved in a water billing dispute with the D.C. Water and Sewer Authority (WASA). Because of alleged negligence of WASA in investigating the dispute, plaintiff lost water service temporarily. She filed pro se suit against WASA for consequential damages to the business she was trying to start at the time. Trial court granted motion to dismiss on grounds of failure to provide six-month notice under D.C. Code § 12-309.

OUTCOME: Dismissal REVERSED.

HOLDING: Section 12-309 notice requirement only applies to the District government itself. WASA was established by Congress as a separate entity with power to sue and be sued in its own name and power to enter into contracts with, among others, the District government. Thus suit against WASA is not the same as suit against the District of Columbia, and notice doesn't apply.