Tuesday, July 14, 2015

D.C. Court moves toward Federal Expert Witness Standard

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.