Russell v. Call/D, LLC, 2015
D.C. App. LEXIS 145 (2015).
In
Russell v. Call/D, LLC, the District
of Columbia Court of Appeals affirmed the trial court’s entry of summary
judgment in favor of the owner of an apartment building in an action filed by a
resident who had recently contracted Legionaries’ disease. The Court’s holding focused on the trial
court’s decision to exclude the testimony of the Plaintiff’s expert witness
because part of it was speculative.
In
Russell, resident Plaintiff Craig
Russell (“Russell”) sued apartment owner Defendant Call/D, LLC (“Call/D”),
alleging that sewage back-ups and standing sewage-contaminated water in the
apartment building caused him to contract the disease. Symptoms of Legionaries’ disease show within
two to fourteen days after exposure to Legionella
bacteria. As such, Call/D’s defense was
premised on the fact that Russell had traveled to various places during the
two weeks before he exhibited the symptoms, and therefore his exposure could
have been elsewhere.
At
trial, Russell designated Dr. Steven Zimmet, his treating pulmonologist, as an expert who would testify how the disease is
contracted, and how Russell contracted it because of his exposure to fumes and
smells in the apartment. Russell did not
include a timely expert report or scholarly literature in his designation of
Dr. Zimmet. Consequently, Call/D filed a
motion in limine to exclude Dr.
Zimmet’s testimony on the ground that his training and experience in treating
those with the disease did not mean he was qualified to determine the source of
Russell’s exposure. The trial court
granted the motion after finding part of Dr. Zimmet’s testimony to be
speculative, and subsequently granted Call/D’s motion for summary judgment.
The
Court noted that an expert witness is able to rely solely upon experience when
providing an opinion; however, the Court determined that:
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 Legionaries’ 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 Legionella bacteria were present in the [.
. .] apartment building.
Russell, 2015 D.C. App. LEXIS *19.
Furthermore, the Court
found that Dr. Zimmet’s basis for his opinion, “[y]ou know it when you see it,”
was the classic ipse dixit
explanation, which can be properly excluded by a trial court. Id. at
*21.
The Court reasoned
that the trial court would have allowed Dr. Zimmet to testify if his opinion
was based on scientific literature. In
contrast to Dr. Zimmet, the Court had no problem with the opinions offered by
John David Krause, Call/D’s environmental health expert. Krause’s experience included participation in
at least ten investigations involving the disease, and he was able to cite to applicable
peer-reviewed scientific literature.
In affirming the entry
of summary judgment, the Court determined that a jury would have no basis other
than Dr. Zimmet’s speculation to conclude that the apartment building was the
source of Russell’s exposure. This case is
another in a slow trend of moving away from a “let the jury sort it out”
mentality by the Court and signals to the parties and potential litigants continued
steps toward DC’s adoption of the Federal Daubert-Kumho
standard. In sum, the Court will not allow
shorts cuts in expert testimony: there must be a sufficient foundation for each
expert opinion to reach a jury.
