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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-1177
CRAIG L. RUSSELL, APPELLANT,
V.
CALL/D, LLC, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-5151-12)
(Hon. Natalia Combs Greene, Motions Judge)
(Argued October 21, 2014 Decided April 15. 2016)
Peter T. Enslein, with whom Kenneth D. Bynum was on the brief, for
appellant.
Susan E. Smith, with whom Thomas P. Bernier, was on the brief, for
appellee.
Before FISHER, THOMPSON, and EASTERLY, Associate Judges.
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.
2
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
1
―This court reviews a summary judgment decision de novo, construing the
facts independently in the light most favorable to the nonmoving party.‖ Ivey v.
District of Columbia, 949 A.2d 607, 611 (D.C. 2008).
3
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.
4
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.
5
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
2
Dr. Zimmet estimated that, in his clinical practice, he had each year
evaluated ―one or more‖ patients who had Legionnaires‘ disease.
6
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.
3
In preparation for his deposition, Dr. Zimmet consulted only an online
service called UpToDate, which he agreed was a ―quick way for a physician to
make sure . . . he hasn‘t missed anything current[.]‖
7
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
8
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,
4
Russell thereafter filed a motion to the same effect.
9
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 Greene (and he
has provided this court) with no explanation for the delay; quite the contrary, his
counsel asserted that Dr. Zimmet‘s deposition was ―very clear[,]‖ never mentioned
a need to supplement the expert witness statement, and did not request leave to do
so.
Nor do we discern that the information provided by the supplemental
statement was important for appellant‘s case. The supplemental statement slightly
modified the description of Dr. Zimmet‘s anticipated trial testimony: the earlier
statement said that he would testify about how Russell contracted Legionnaires‘
disease ―due to his exposure to fumes and smells at his apartment building[,]‖
while the supplemental statement said that Dr. Zimmet would testify about how
10
Russell contracted Legionnaires‘ disease ―due to his exposure to stagnant water
and their [sic] associated fumes and smells at his apartment building‖ (emphasis
added). The supplemental statement‘s references to ―stagnant water‖ and
―longstanding stagnant water‖ were new, but Judge Combs Greene could see, from
Dr. Zimmet‘s deposition, that his opinion was that ―sewage water was the most
likely source of [Russell‘s] exposure[,]‖ meaning that Russell cannot establish
prejudice from the court‘s not having read the revised text.5
The publications attached to the supplemental statement and the citations to
some of them in the text of the statement did add something new, because some of
them pertain to investigations of the presence of Legionella bacteria in sewage
5
Russell‘s Reply Brief draws a distinction between ―stagnant water‖ and
―sewer water,‖ apparently to suggest that the revised language in the supplemental
statement did add something different that Judge Combs Greene needed to
consider. Remarkably, the brief asserts that from the very beginning, ―this case
has been about [Russell‘s] ‗exposure to standing water in his apartment
building[,]‘‖ and that ―[w]hether sewer water is a hospitable breeding ground for
Legionella is simply not at issue in this litigation and amounts to a straw man
argument.‖ That assertion cannot be squared with Russell‘s Complaint, which
avers that his Legionnaires‘ disease was proximately caused by his exposure to raw
sewage, or with his opposition to Call/D‘s motion for summary judgment, which
repeats that claim. Moreover, Dr. Zimmet opined at his deposition that the
apartment building was the most likely source of Russell‘s exposure to Legionella
bacteria because of the ―contaminated sewer water‖ there. Therefore, if the
references to ―stagnant water‖ in the supplemental statement were meant to be
substantively different from the prior claims about sewage-contaminated water,
that change, in itself, was reason for Judge Combs Greene to decline to consider
the post-discovery-period supplemental statement.
11
treatment plants. However, nothing in the supplemental statement indicated that
Dr. Zimmet had approved the statement or had ever read the articles and
publications attached to it.6 Dr. Zimmet testified at his deposition that he arrived at
his opinion about the source of Russell‘s exposure without relying on journal
articles,7 and, as Judge Combs Greene recognized, Call/D could rightly claim
prejudice from a late supplemental statement that ―would potentially subject them
6
Call/D may be correct that the court‘s disregard of the publications did
not prejudice Russell even if Dr. Zimmet had read them. We say that because
Judge Combs Greene could reasonably have found that the publications provided
no support for Dr. Zimmet‘s opinion. One of the publications reports that ―the risk
of legionellosis to sewage workers was considered low.‖ Another of the articles
explains that L. pneumophila is ―the organism responsible for the majority (80%)
of legionellosis outbreaks‖ and that the Legionella bacteria found in sewage
samples were ―predominantly non-L. pneumophila species[.]‖ The article further
states that using one method, Legionella pneumophila was recovered ―in only 10%
of primary effluent samples and 5% of secondary effluent samples.‖ Under a
different method, Legionella pneumophila was detected ―with much greater
frequency[,]‖ although whether that method ―actually detected L. pneumophila [is
unclear] since the PCR and plate culture methods did not support the DFA method
findings.‖ The authors explain that the test results could have been a false reading
explained by antibodies having ―cross-reacted with other organisms in the
sewage.‖
7
Regarding the publications Russell‘s counsel handed to Judge Combs
Greene in open court during the September 26 hearing, counsel incorrectly told the
judge that Dr. Zimmet said at his deposition that he ―was going to rely upon‖ the
publications. In fact, Dr. Zimmet testified at his deposition that the publications
would not ―play[] any role in the opinions [he was] going to render in this case[.]‖
He further agreed that there was ―no peer-reviewed published literature that [he
was] citing in support of [his] opinions‖ and that he was not relying on any specific
literature ―to indicate that sewer water is a vector for distributing Legionnaire‘s
[sic] disease or Legionella bacteria.‖
12
to different allegations . . . at a late stage of the litigation.‖8 French v. Levitt, 997
A.2d 701, 704 (D.C. 2010).
As for the court‘s not hearing testimony from Dr. Zimmet before ruling on
the motion in limine, Russell highlights Judge Combs Greene‘s statement (in the
order setting the hearing) that the description of Dr. Zimmet‘s testimony in
Russell‘s Rule 26 (b)(4) statement was ―very vague.‖ But Judge Combs Greene
told the parties at the outset of the hearing that she had probably been ―overly
8
Judge Combs Greene explained at the September 26 hearing that Russell
had to ―put [the literature he was relying on] out there so the other side knows, can
question it, can contest that at the deposition and say [‗]did you know that this
source that you relied on has been discredited by every major author, peer
review,[‘] so on and so forth . . . and let the person say what they have to say about
it.‖
An impetus for Russell‘s submitting the publications attached to the
supplemental statement was no doubt that in May 2013, Call/D had filed affidavits
from its experts stating, inter alia, that ―conditions favorable to Legionella are not
normally found in sewage.‖ Thus, analogous to the situation in Ferrell, a case on
which Russell relies, in which this court held that the plaintiff‘s supplemental Rule
26 (b)(4) statement should have been considered by the trial court, ―the need for
supplementation was caused by new information from‖ Call/D‘s experts. Ferrell,
691 A.2d at 647. However, in Ferrell, the plaintiff‘s counsel advised defense
counsel of the proposed expanded testimony of plaintiff‘s expert five days after
learning certain factual information during defendant‘s deposition and served
plaintiff‘s formal supplemental Rule 26 (b)(4) submission a few weeks later. Id. at
645, 645 n.6. Here, by contrast, Russell‘s supplemental statement was served and
filed over four months after Call/D had filed its experts‘ affidavits and its motions
in limine and for summary judgment, and after the September 26 hearing on the
motion in limine.
13
cautious‖ in scheduling the hearing and thought she could rule on the motion after
rereading Dr. Zimmet‘s deposition, without hearing from him. 9 We discern no
reason to question Judge Combs Greene‘s assessment, especially since we, too,
think that Dr. Zimmet‘s deposition furnished a sufficiently clear basis for the court
to rule on the motion in limine.10 Thus, we cannot agree with Russell‘s claim that
Judge Combs Greene abused her discretion by ruling ―when she lacked the very
information . . . she needed to make an informed decision[.]‖
III. The Ruling on Call/D’s Motion In Limine
Russell contends that Judge Combs Greene also abused her discretion in
excluding Dr. Zimmet‘s testimony, arguing that Dr. Zimmet‘s ―training and
experience provided a sufficient foundation to permit his expert opinion testimony
9
Judge Combs Greene also told counsel at the outset of the hearing that her
reason for not calling counsel and saying ―don‘t come in‖ was that she thought that
one or both of the parties had ―wanted to make [her] aware of something‖ and thus
would have objected to a postponement.
10
Russell complains that Dr. Zimmet could have testified regarding his
experience with previous patients and his knowledge concerning the sources of
their infections. But Dr. Zimmet had an opportunity to do that at his deposition
(including during the questioning by Russell‘s counsel, when he simply agreed
with counsel‘s vague leading question that ―what [he] did in this case‖ was ―tr[y]
to figure out all of the possibilities that . . . might explain the illness . . . that [he is]
trying to treat the patient for‖), and did not do so.
14
on the issue of the source of [Russell‘s] exposure to Legionella bacteria.‖ We
review a trial court‘s decision about whether to admit expert testimony for abuse of
discretion. District of Columbia v. Anderson, 597 A.2d 1295, 1299 (D.C. 1991).
That means that our review is deferential, as ―deference . . . is the hallmark of
abuse of discretion review.‖ General Elec. Co. v. Joiner, 522 U.S. 136, 143
(1997); see also Girardot v. United States, 92 A.3d 1107, 1113 (D.C. 2014) (―The
concept of ‗exercise of discretion‘ is a review-restraining one.‖ (quoting Johnson v.
United States, 398 A.2d 354, 362 (D.C. 1979))). Accordingly, the trial court‘s
decision will be ―sustained unless it is manifestly erroneous.‖ Coates v. United
States, 558 A.2d 1148, 1152 (D.C. 1989).
To be permitted to testify as an expert, a witness ―must have sufficient skill,
knowledge, or experience in that field or calling as to make it appear that his
opinion or inference will probably aid the trier in his search for truth[.]‖ Dyas v.
United States, 376 A.2d 827, 832 (D.C. 1977) (citation omitted). ―Implicit in that
requirement is that the expert [must] have a reliable basis for [his] theory steeped
in fact or adequate data, as opposed to offering a mere guess or conjecture.‖
Perkins v. Hansen, 79 A.3d 342, 345 (D.C. 2013) (citation and internal quotation
marks omitted). ―The purpose of expert opinion testimony is to avoid jury findings
based on mere speculation or conjecture[,]‖ and thus the court must weigh the
15
―sufficiency of the foundation for those opinions . . . with this purpose in mind.‖
Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990). ―Without
more than credentials and a subjective opinion, an expert‘s testimony that ‗it is so‘
is not admissible.‖ Wilson Sporting Goods Co. v. Hickox, 59 A.3d 1267, 1273
(D.C. 2013) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir.
1987)). ―Expert testimony may be excluded when the expert is unable to show a
reliable basis for their theory.‖ Haidak v. Corso, 841 A.2d 316, 327 (D.C. 2004).
In this case, Judge Combs Greene articulated many reasons for her ruling
that Dr. Zimmet was ―not qualified to testify as to the source of [Russell‘s]
disease,‖ among them that Dr. Zimmet had never been trained in or ―involved with
the identification of the source of exposure‖ of Legionnaires‘ disease, was ―not
aware of any specific type of bacteria present in sewage water[,]‖ ―did not indicate
any literature to support his belief that Legionella bacteria could exist in sewage
water[,]‖ had ―never had responsibility for determining the source of a person‘s
Legionella bacterial exposure as part of his clinical practice[,]‖ did not know ―what
strains of Legionella bacteria are most commonly associated with Legionnaire‘s
[sic] Disease in humans[,]‖ was not familiar with the temperatures at which or the
conditions under which Legionella bacteria amplify, and had ―no data to support
his opinion that Legionella bacteria [were] at sufficient levels [in Apartment 1] to
16
cause [Russell‘s] Legionnaire‘s [sic] disease.‖ Dr. Zimmet‘s deposition answers
support these findings as well as Judge Combs Greene‘s finding that his opinion
testimony on causation was ―without factual basis.‖
It is true that, as Russell emphasizes, an expert witness may rely upon his
experience alone when providing an opinion, see Perkins, 79 A.3d at 345 (―[A]
physician‘s experience may provide a reliable basis for his or her expert opinion.‖),
and that an expert witness need not cite a peer-reviewed journal article as the basis
for every opinion he provides and need not use the ―data that will provide the
highest degree of certainty[.]‖ Id. at 346. In addition, ―[w]here an expert
otherwise reliably utilizes scientific methods to reach a conclusion, lack of textual
support may ‗go to the weight, not the admissibility‘ of the expert‘s testimony.‖
Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 354 (5th Cir. 2007). But, as
Judge Combs Greene recognized, Dr. Zimmet relied on neither experience in
investigating the source of a Legionella infection, nor knowledge about what had
been determined to be the source of his other Legionnaires‘ disease patients‘
exposures, nor peer-reviewed journal articles, nor data from testing at the
apartment building, and he did not utilize a scientific method to conclude that
17
Legionella bacteria were present in the Fitch Street apartment building.11 Instead,
as he acknowledged during his deposition, he ―essentially ma[de] the assumption
. . . that the water in the apartment [building] contained amplified levels of
Legionella bacteria.‖ He acknowledged that the same logic by which he
eliminated the environment at the Bryce Resort as a source of Russell‘s infection
— that ―[n]obody else got sick‖ there — was equally applicable to the Fitch Street
apartment building (since no one else living in the apartment building got sick),
and he offered only the ―belie[fs]‖ that ―taking a couple of showers‖ at Bryce
would not be enough to make the previously healthy Russell sick and that Russell
―really had no other source of Legionella disease.‖12
Further, Dr. Zimmet invoked ―common sense‖ and ―intuiti[on]‖ as his basis
for saying that the Bryce Resort was not a probable source of Russell‘s infection
11
―Scientific method‖ refers to ―[t]he process of generating hypotheses and
testing them through experimentation, publication, and replication.‖ BLACK‘S LAW
DICTIONARY 1547 (10th ed. 2014).
12
Dr. Zimmet did not need to rule out every possible alternative source of
exposure. See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir.
1999). But, to offer an opinion to a reasonable degree of medical certainty, he
needed — and, in Judge Combs Greene‘s reasonable estimation, he lacked — ―an
objectively well founded conviction that the likelihood of one cause [of Russell‘s
exposure was] greater than any other[.]‖ Robinson v. Group Health Ass’n, Inc.,
691 A.2d 1147, 1150 (D.C. 1997) (quoting Clifford v. United States, 532 A.2d 628,
640 n.10 (D.C.1987)).
18
and that Russell‘s ―walk[ing] through . . . sewer water‖ at the apartment building
was the likely culprit.13 And, when asked at his deposition about his ―training,
knowledge and experience with respect to being able to connect a diagnosis of
Legionnaire‘s [sic] disease to a suspected source[,]‖ Dr. Zimmet answered that the
basis of his opinion in this case was that ―[y]ou know it when you see it.‖ That
response — I know it when I see it — was the ―quintessential ipse dixit
justification.‖ TASER Int’l, Inc. v. Karbon Arms, LLC, No. 11–426, 2013 WL
6773663, at *1 (D. Del. Dec. 19, 2013). Judge Combs Greene was not required to
admit opinion evidence that was ―connected to existing data only by the ipse dixit
of the expert.‖ Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 157 (1999)
(quoting Joiner, 522 U.S. at 146); cf. Brown v. Bray & Gillespie III Mgmt., LLC,
No. 6:06-cv-661-Orl-22GJK, 2008 WL 2397601, at *6 (M.D. Fla. June 10, 2008)
(concluding that an internist‘s opinion that plaintiffs ―contract[ed] an acute
Legionella infection as a result of [their] hotel stay . . . at the Sea Garden Inn in
13
We note, too, that although Russell testified that he sometimes checked
on an elderly woman who was living on the basement level of the apartment
building, the deposition testimony contains no evidence that Russell actually
―crossed through‖ or ―walked through‖ any water or did so ―twice a day,‖ as
Dr. Zimmet assumed. Russell‘s testimony indicated that, upon entering the
apartment building on the ground floor, he needed to walk up to his apartment
rather than down to the basement level. He also testified that he at no time entered
Apartment 1. Judge Combs Greene could reasonably ―conclude that there [was]
simply too great an analytical gap between the data and the opinion [Dr. Zimmet]
proffered.‖ Joiner, 522 U.S. at 146.
19
Florida‖ ―lack[ed] a substantial basis,‖ and explaining that ―[t]he opinions of an
expert will not be accepted if based on merely the ipse dixit of the expert‖).14
Russell further contends that Judge Combs Greene ―impermissibly
demanded that [he] adduce direct (rather than circumstantial) evidence of the
presence of Legionella bacteria in the building before permitting Dr. Zimmet to
testify.‖ While we agree that the source of a plaintiff‘s Legionnaires‘ infection can
be proven by (and perhaps can be proven only by) circumstantial evidence,15 we
14
We also defer to Judge Combs Greene‘s reasoning that, in light of the
facts that the sewage-contaminated water in the apartment building had not been
tested for Legionella bacteria and that Dr. Zimmet had cited no basis in the
scientific literature for his conclusion that the sewage water was the most likely
source of exposure, to allow his speculative testimony to that effect would have
been more prejudicial than probative.
15
Epidemiological evidence, which typically is used to prove the source of
a Legionnaires‘ outbreak, see Brown v. Bray, 2008 WL 2695230 at *2
(―[E]pidemiologic data indicated that the source of the outbreak was the hotel.‖), is
circumstantial evidence. See In re Hanford Nuclear Reservation Litig., 1998 WL
775340, at *5 (E.D. Wash. Aug. 21, 1998) (―[P]laintiffs here are forced to rely on
experts who present circumstantial proof of causation, in particular,
epidemiological proof.‖); Land v. United States, 37 Fed. Cl. 231, 235 (Fed. Cl.
1997) (―[T]he two primary forms of circumstantial evidence in a toxic tort case are
etiological evidence and epidemiological evidence.‖) (citing Renaud v. Martin
Marietta Corp., 749 F. Supp. 1545, 1553 (D. Colo. 1990)); see also Silivanch v.
Celebrity Cruises, Inc., 171 F. Supp. 2d 241, 255 (S.D.N.Y. 2001) (describing
circumstantial evidence that sufficed to prove causation: the Legionella bacteria
recovered from the sand filters of a cruise ship spa system ―were indistinguishable
from organisms found in the respiratory system of one of the victims of the
outbreak‖).
20
reject Russell‘s claim of error, because we do not agree that Judge Combs Greene
excluded Dr. Zimmet‘s testimony on the ground that he had no direct evidence of
the presence of Legionella in the building. Judge Combs Greene found it
―significant[]‖ that Dr. Zimmet ―did not indicate any literature to support his belief
that Legionella bacteria could exist in sewage water.‖ She reasoned that
Dr. Zimmet‘s opinion that sewage water was the most likely source of Russell‘s
exposure was ―not supported by published scholarly data‖ and that Dr. Zimmet
was ―unfamiliar with several areas of scientific scholarship or clinical work that
might provide a substantive basis for the conclusion offered‖ (emphasis added).
She also cited portions of Dr. Zimmet‘s deposition in which he testified that he did
not regularly read ―published medical or scientific or hygiene literature with
respect to Legionnaire[s‘] disease‖; that he had formed his opinions in this case
before seeing, just prior to his deposition, an article Russell‘s counsel had given
him entitled ―Health Effects of Sewage Aerosols: Additional Serological Surveys
and Search for Legionella Pneumophila in Sewage‖; that the article would not play
a role in the opinions he would render in the case; and that he had not reviewed any
peer-reviewed and published literature discussing the prevalence of Legionella in
sewage-contaminated water. In addition, Judge Combs Greene explicitly
recognized that case law has held that ―it is not an abuse of discretion for courts to
allow expert testimony when the expert did not conduct independent testing‖ and
21
that ―[a]s long as the expert relied on published data generated by another expert in
the pertinent field, the opinion is admissible.‖ We read all these statements in the
Omnibus Order as indicating that even though Dr. Zimmet had no direct evidence
that Legionella bacteria were in water at the apartment building, Judge Combs
Greene would likely have permitted him to testify if he had had a basis in the
scientific literature to say that the sewage-contaminated water in the basement of
the apartment building was a more likely source of Russell‘s exposure than a
shower at Bryce Resort or any of the scores of locations Russell had visited
through his work and other activities during the incubation period.
We next address Russell‘s contention that Judge Combs Greene applied a
legally erroneous standard in ruling on the motion in limine. He argues that the
judge held Dr. Zimmet ―to a burden of proof greater than the preponderance of
evidence (more likely than not) standard[.]‖16 The evidence of this error, he
asserts, is the following statement on page 9 of Combs Greene‘s Omibus Order:
―Dr. Zimmet concludes that he ‗believes‘ that the sewage water was the most
likely source of exposure as compared to the other possible sources because it
looked like a ‗cesspool‘‖ (bold font in the original). We note that Judge Combs
16
A trial court erroneously exercises its discretion if it applies an incorrect
legal standard. See Herbin v. United States, 683 A.2d 437, 443 (D.C. 1996).
22
Greene made a similar statement in footnote 6 of the Omnibus Order: ―Dr.
Zimmet does not, in his deposition, states [sic] that he believes the sewage was the
actual source of the Legionella bacteria. Rather, . . . he ‗believes‘ the apartment
complex was the most likely source‖ (bold font in the original).
Russell is correct that his burden was to prove the ―most likely‖ source of
his exposure. See Snyder v. George Washington Univ., 890 A.2d 237, 248 (D.C.
2006) (―We require only that a causation expert state an opinion, based on a
reasonable degree of medical certainty, that the defendant‘s conduct was a likely
cause of the plaintiff‘s injuries.‖). Because it is not clear to us what Judge Combs
Greene intended to convey through her emphasis on the words ―believes,‖
―actual,‖ and ―most likely,‖17 we are skeptical of Russell‘s claim that she
misapprehended the legal standard or incorrectly applied it. We are, however,
satisfied that even if Judge Combs Greene erroneously held Russell to a heightened
standard of proof, the basis for her ruling that Dr. Zimmet was not qualified to
17
At one point, Judge Combs Greene appeared to be distinguishing
between Dr. Zimmet‘s opinion that the apartment building ―was the actual and
only source of [Russell‘s] Legionnaire‘s [sic] Disease‖ and his not opining that the
sewage ―was the actual source of the Legionella bacteria‖ (emphasis in original).
At another point, however, she characterized Dr. Zimmet‘s view as an opinion that
the building ―was the most likely source of exposure as compared to other possible
sources ([Russell‘s] job and Bryce Resort)‖ because of the contaminated sewer
water.
23
testify as an expert on causation was that Dr. Zimmet did not provide ―any real
basis (based on facts or science) for his opinions.‖ That was a sufficient basis for
precluding him from testifying as a causation expert regardless of the degree of
certainty that was required. For that and all the foregoing reasons, we will not
disturb Judge Combs Greene‘s ruling on the motion in limine.
Russell argues in the alternative that Dr. Zimmet was entitled to testify about
the source of Russell‘s exposure to Legionella as a fact witness rather than as an
expert witness. It is true that ―[i]nsofar as a physician obtains and develops his
information and opinions in the course of his treatment of a patient, he becomes an
‗actor or viewer‘ who should be treated as an ordinary witness rather than as an
expert covered under Rule 26 (b) (4).‖ Adkins v. Morton, 494 A.2d 652, 657 (D.C.
1985) (explaining that ―the crucial inquiry is whether the facts and opinions
possessed by the expert were obtained for the specific purpose of preparing for the
litigation in question‖); Gubbins v. Hurson, 885 A.2d 269, 277 (D.C. 2005)
(quoting Adkins and reasoning that ―Dr. Kelly‘s opinion, which he expressed to
Gubbins while she still was under his care, that her nerves were injured by the
medication she received during her surgery‖ ―clearly fell within this ‗exempt-from-
24
Rule 26 (b) (4)‘ category‖).18 However, ―a witness may be an ‗expert‘ as to some
matters and an ‗actor‘ as to others.‖ Id. (internal quotation marks omitted). The
question here is one of timing: When did Dr. Zimmet reach the opinions about
which Russell sought to have him opine? If he reached them only ―while
preparing for his trial appearance[,]‖ id. at 278, he needed to be qualified as an
expert to be permitted to testify.
What the record reveals is the following: Dr. Zimmet testified that he had
formulated his opinions as of February 5, 2013 (the date of Russell‘s previous Rule
26 (b)(4) statement). There was evidence that, as recently as September 2012,
Dr. Zimmet or (much more frequently) his staff had provided care to Russell in
connection with a blood clot in his leg that stemmed from his being bedridden for
weeks while recovering from Legionnaires‘ disease. However, Russell testified
that the last time he went to any doctor for anything relating to the Legionnaires‘
disease itself was in June 2011. In addition, Dr. Zimmet testified that Russell‘s
diagnosis of Legionnaires‘ disease was made by other doctors prior to
Dr. Zimmet‘s involvement in Russell‘s treatment, and one of those doctors (―the
18
See also Folks v. District of Columbia, 93 A.3d 681, 685 (D.C. 2014)
(―[T]he medical records suggest that the treating physicians would be able to
testify at trial about their opinions on the issue of causation based on the
information that they had obtained in their treatment of Mr. Folks.‖).
25
infectious disease doctor‖) wrote in the medical records (apparently incorrectly)
that Russell reported that he had water leakage in his apartment from a ventilation
system and attributed the Legionella exposure to that.19 Dr. Zimmet described the
―grilling‖ about ―[w]hat‘s your exposure‖ that ―we‖ doctors conduct when
encountering a patient who has Legionnaires‘ disease, but also explained that
Russell was asked about exposures ―at the time he came in the hospital in his May
admission,‖ clarified that Russell did not answer such questions to Zimmet
specifically, and acknowledged he had never ―had the responsibility for
determining the source of an individual‘s Legionella bacterial exposure as part of
[his] clinical practice.‖ Further, Dr. Zimmett had never visited the Fitch Street
apartment building. He relied on what he read in Russell‘s deposition transcript
and other depositions and on what he saw in the video of Apartment 1 for his
knowledge of the conditions that existed in the building, and, importantly, he did
not see the video or any photos of Apartment 1 until the day of his deposition,
which was April 19, 2013.20 In short, the record provides no foundation for a
19
Russell stated during his deposition that there were no ventilation ducts
in his apartment and that he had never ―spent any time in a residence where a
ventilation system leaks,‖ and one of Call/D‘s experts also stated in his expert
report that ―[t]here is no vent system, no central air system and no air ducting
system that could have dripped water into [Russell‘s] apartment.‖
20
Russell‘s girlfriend, who made the video of the standing water in
Apartment 1, testified that she decided to do this on her own after hearing Russell‘s
(continued…)
26
conclusion that Dr. Zimmet ―formulated the opinions in question while he was
treating‖ Russell, Gubbins, 885 A.2d at 278, rather than in preparation for his
deposition and for trial, such that it was error not to permit him to present the
opinions as a fact witness.
IV. Summary Judgment
Russell‘s final contention is that he presented sufficient circumstantial
evidence for a reasonable jury to fairly infer that Legionella bacteria were present
in his apartment building and that he was exposed to the bacteria there. He argues
that whether sewer water is a hospitable breeding ground for Legionella is a
disputed issue that could not be resolved on summary judgment. We can agree
with the latter contention, but the problem for Russell, who bore the burden of
proof, was that, upon the court‘s ruling on the motion in limine, he was left without
an expert to testify that sewage-contaminated water likely contains a strain or
strains of Legionella associated with Legionnaires‘ disease and that Russell‘s
(…continued)
doctors say ―that his illness was a result of some sort of bacteria in water.‖ Her
thinking was that ―maybe this [i.e., the conditions in Apartment 1] contributed to
[Russell‘s illness].‖ Explaining why he did not go back to Apartment 6 after he
was discharged from the hospital, Russell testified non-specifically that ―[d]octors‖
(he had ―seven doctors‖) told him not to breathe the air in his apartment. He did
not attribute that advice to Dr. Zimmet.
27
exposure to sewage-contaminated water was the likely source of his illness.
Russell needed to prove more than the ―bare possibility‖ that the contaminated
water in the apartment building was the exposure source. Ferrell, 691 A.2d at 650.
Meanwhile, Call/D‘s environmental health expert John David Krause, whose
affidavit describes his involvement in ―at least 10 investigations involving
Legionnaires‘ disease‖ and cites his consideration of the ―relevant peer-reviewed
scientific literature,‖ was poised to testify that ―Legionella are not normally found
in sewage‖; that Legionella generally ―compete[] poorly with other bacteria in the
environment[,]‖ which ―typically out compete and may even prey upon
Legionella‖; and that ―aerosols of water droplets, such as those created by
showering, are capable of carrying Legionella bacteria[.]‖21 Call/D‘s expert Tim
Keane, a water treatment consulting engineer who runs a company called
Legionella Risk Management, Inc., and whose expert report describes his ―lead
role in [Legionella] outbreak investigations‖ for state and county health
departments, was prepared to testify that 24% of Legionnaires‘ outbreaks are
21
To be sure, Russell filed a motion in limine (on which the court never
ruled) to strike Krause‘s testimony. However, Russell‘s argument was that Krause
should not be allowed to testify that Legionnaires‘ disease ―cannot be contracted
through the respiration of fumes . . . or . . . odors‖ or that ―a specific determination
of source and exposure pathway is required in order to establish causation with
regard to Legionella exposure.‖ We cite only other opinions by Krause.
28
associated with travel and that travel-related outbreaks are difficult to detect
because of the dispersal of persons from the source of the outbreak; and that
samples of stagnant water taken from Apartment 6, which Russell had vacated, in
September 2011 were negative for Legionella.22 In addition, Call/D‘s expert
Dr. Hung Cheung, a specialist in environmental medicine who had testified as an
expert in epidemiology and toxicology, was poised to testify, inter alia, that
Russell‘s visit to Bryce Resort was consistent with the incubation period for
Legionnaires‘ disease.23 Reviewing the matter de novo, we conclude that,
presented with the foregoing and other testimony by Call/D‘s experts and no expert
causation testimony to the contrary,24 a jury would have had no basis other than
speculation for finding that sewage-contaminated water or sewage vapors at the
22
Russell filed a motion in limine (on which the court never ruled) to strike
Keane‘s testimony, but the specific opinions he asked the court to strike were as to
other points.
23
Again, Russell filed a motion in limine (on which the court never ruled)
to strike Dr. Cheung‘s testimony, but the specific opinions he asked the court to
strike were as to other points.
24
In his motion in the trial court to strike Keane‘s testimony, Russell
suggested that this is a case ―where the jury can make the decision on medical
causation without expert testimony[,]‖ but in his briefs on appeal he does not
appear to take issue with Judge Combs Greene‘s finding that ―determining the
source of contracting Legionnaire[s‘] Disease is beyond the ‗ken of the average
layman.‘‖
29
apartment building were the source of Russell‘s Legionella exposure.25
Accordingly, Judge Combs Greene did not err in granting summary judgment in
favor of Call/D.
For the foregoing reasons, the judgment of the trial court is
Affirmed.
25
Cf. Sudbeck v. Sunstone Hotel Props., Inc., No. 2:04-cv-1535, 2006 WL
2728624, *8 (D. Ariz. July 26, 2006) (reasoning that even where the evidence
established that plaintiff contracted Legionnaires‘ disease sometime prior to July 8,
2002, and stayed at the defendant‘s resort between June 25 and 27, 2002, i.e.,
within the incubation period of the Legionella pneumophila bacteria, and even
where there was evidence that Legionella bacteria were found in water samples
collected at the resort in May 2003, ―it would be sheer speculation to say that it is
more likely than not that the bacteria was present at the resort in June 2002 when
[plaintiff] was a guest‖).