Mahnke v. Washington Metropolitan Area Transit Authority , 821 F. Supp. 2d 125 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMANDA MAHNKE,
Plaintiff,
v. Civil Action No. 10-0021 (BAH)
Judge Beryl A. Howell
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,
Defendant.
MEMORANDUM OPINION
On September 3, 2009, plaintiff Amanda Mahnke suffered serious injuries when she was
hit by a Washington Metropolitan Area Transit Authority (hereinafter “WMATA”) bus in
Washington, D.C. The plaintiff filed a Complaint against WMATA, alleging, inter alia, that the
bus driver, a WMATA employee, negligently operated the bus. Pending before the Court is
WMATA’s motion for summary judgment on grounds that the plaintiff was contributorily
negligent and that precludes a judgment in her favor. The plaintiff denies that she was
contributorily negligent, and has filed a motion in limine to prevent the defendant from raising a
contributory negligence defense at trial, which is scheduled to commence on October 31, 2011.
In addition to these motions, the parties have also filed eleven additional motions in limine to
preclude the admission of certain evidence at trial. For the reasons discussed below, the
defendant’s motion for summary judgment and the plaintiff’s motion in limine to preclude the
defendant from raising a contributory negligence defense are denied. The parties’ additional
motions in limine, as well as their objections to proposed exhibits, are addressed seriatim below.
1
I. BACKGROUND
On September 3, 2009, plaintiff Amanda Mahnke was standing at the southeast corner of
the intersection of Connecticut Avenue and Florida Avenue in Northwest, Washington, D.C.
waiting to cross the street. Pl.’s Opp’n Mot. Summ. J., Statement of Material Facts In Dispute
(“Statement of Material Facts”), ECF No. 30, ¶¶ 1, 3. Standing to the plaintiff’s left was
Gabriela Salazar, another pedestrian who was also waiting to cross the street. Id. at ¶ 3. When
the pedestrian “walk” signal became illuminated, both Ms. Salazar and the plaintiff proceeded to
cross the street. Def.’s Mot. Summ. J, ECF No. 27, Ex. 3, Salazar Dep. Tr. (“Salazar Dep.”) 13,
lines 4-14, Mar. 15, 2011. After stepping into the intersection, Ms. Salazar noticed that a
WMATA bus was approaching on her left, and immediately stepped back on the curb. Id. at
lines 5-14. The plaintiff, however, did not notice the approaching bus, and was struck after she
stepped into the crosswalk. See Def.’s Mot. Summ. J., ECF No. 27, Ex. 1, David Stopper Report
dated Feb. 8, 2011 (“Stopper Report”), at 2. As a result of the accident, the plaintiff alleges that
she suffered numerous injuries, including a fractured skull, epidural hematoma, broken clavicle,
fractured ribs, collapsed lung, pelvis fracture, and traumatic brain injuries. Compl. ¶ 13.
Prior to the accident, the WMATA bus that collided with the plaintiff was heading east
on Florida Avenue towards Connecticut Avenue. Statement of Material Facts ¶ 4. The posted
speed limit for that section of Florida Avenue was 25 miles per hour. Id. at ¶ 5. The parties
dispute the speed of the metro bus prior to the accident. The plaintiff’s expert claims that the bus
was traveling as fast as 30 miles per hour, while the defendant’s expert contends that the bus was
traveling at a speed of approximately 26 miles per hour. Def.’s Reply Opp’n Mot. Summ. J.
(“Def.’s Reply”), ECF No. 32, at 4. A witness stated that the bus was going 15 miles per hour.
Id. Another witness described the WMATA bus as “just a streak” prior to the accident. Pl.’s
2
Opp’n Mot. Summ. J., ECF No. 30, Ex. B, Det. Michael Miller Report (“Miller Report”), at
00054.
As the WMATA bus neared the intersection of Florida Avenue and Connecticut Avenue,
the bus’s driver, Carla Proctor, saw the traffic signal change from green to yellow. Id. at 00052.
According to a D.C. Metropolitan Police Department accident reconstruction report, Ms. Proctor
admits that she accelerated in an effort to clear the intersection, which spans across eight traffic
lanes, before the traffic light turned red. Id. The defendant claims that the bus had entered the
intersection while the light was still yellow, and concedes that the light turned red before the bus
exited the intersection. Statement of Material Facts ¶ 8-9. The plaintiff contends that the traffic
light turned red before the bus fully entered the intersection. Id.
According to a video of the accident captured by a District of Columbia Department of
Transportation traffic camera, the front of the bus was halfway through the intersection, meaning
it had crossed four lanes of traffic, when the plaintiff entered the crosswalk. Pl.’s Mot. Limine,
Ex. A, Dep’t of Transportation Video Footage of Sept. 3, 2009 Collision, frame 42:08:27. The
parties dispute what the video shows about the plaintiff’s actions immediately prior to the
accident: WMATA contends the video establishes that the plaintiff did not look for any
oncoming traffic before entering the crosswalk, Def.’s Mem. Supp. Mot. Summ. J., ECF No. 27,
at 7, while the plaintiff argues that she did. Pl.’s Opp’n Mot. Summ. J., ECF No. 30, at 14. The
plaintiff herself cannot remember the details of the accident prior to being struck. Def.’s Mot.
Summ. J., ECF No. 27, Amanda Mahnke Dep. Tr. (“Mahnke Dep.”) 27, lines 8-12, Sept. 7,
2010.
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On January 7, 2010, the plaintiff filed a Complaint against WMATA, 1 alleging that the
defendant’s bus driver, Ms. Proctor, was negligent in her operation of the WMATA bus that hit
the plaintiff. 2 Compl. ¶¶ 17-29. The plaintiff seeks $10,000,000 in compensatory damages for
the injuries she sustained as a result of the accident. Id. at 10.
On August 5, 2011, following approximately thirteen months of discovery, WMATA
moved for summary judgment, arguing that the plaintiff is barred from recovery because she was
contributorily negligent for her injuries. 3 Def.’s Mem. Supp. Mot. Summ. J., ECF No. 27, at 14.
On August 12, 2011, before filing an opposition to the defendant’s motion for summary
judgment, the plaintiff filed a motion in limine, asserting that the WMATA bus driver’s violation
of applicable traffic regulations renders the defendant negligent per se, and the defendant should
therefore be precluded from raising a contributory negligence defense. 4 Pl.’s Mem. Supp. Mot.
Limine to Strike Defense of Contributory Negligence (“Pl.’s Mot. Limine”), ECF No. 28, at 19.
On October 4, 2011, the plaintiff filed four additional motions in limine. Pl.’s Omnibus
Mot. Limine, ECF No. 37. Two days later, on October 6, 2011, the parties filed their Joint Pre-
1
The Court has jurisdiction over this matter pursuant to the WMATA Compact, D.C. CODE § 9-1107.01, which
states that “[t]he United States district courts shall have original jurisdiction . . . of all actions brought by or against
[WMATA].” D.C. CODE § 9-1107.01; see also Barksdale v. Washington Metro. Area Transit Auth., 512 F.3d 713,
714 (D.C. Cir. 2008).
2
The plaintiff initially asserted three counts of negligence against the defendant: (1) Negligence and Negligence Per
Se on the part of the defendant’s bus driver (Count I), (2) Negligent Hiring, Training and Supervision (Count II); and
(3) Wanton and Willful Misconduct, Gross Negligence, and Punitive Damages (Count III). Compl., ¶ 17-43. On
January 28, 2010, shortly after filing her Complaint, the plaintiff voluntarily dismissed Count II, her negligent
hiring, training and supervision claim, and Count III, her claim asserting gross negligence and for punitive damages.
Pl.’s Jan. 28, 2010 Stipulation, ECF No. 4, at 1; Minute Order dated Jan. 28, 2010 (Sullivan, J.).
3
The plaintiff states that prior to filing its motion for summary judgment, the defendant “did not request plaintiff’s
consent.” Pl.’s Mot. Limine, ECF No. 28, at 2. Although Local Civil Rule 7(m) requires parties to confer before
filing motions with the Court, this rule applies only to “nondispositive motions.” The defendant was therefore under
no duty to seek plaintiff’s consent prior to filing its motion.
4
The defendant contends that the plaintiff’s motion in limine is “in effect[] a motion for partial summary judgment”
and therefore should be denied as untimely because it was filed on August 12, 2011, seven days past the Court’s
August 5, 2011 deadline for dispositive motions. Def.’s Reply Mot. Limine, ECF No. 32, at 1 n.1. The plaintiff’s
motion, however, is not framed as a dispositive motion, nor does she request that the Court grant judgment in her
favor. The plaintiff’s motion in limine was timely filed, and the Court will consider its merits.
4
Trial Statement in which they raised objections to certain exhibits proposed by the opposite
party. Joint Pre-Trial Statement, ECF No. 38. On October 6, 2011, WMATA also filed seven
motions in limine. Def.’s Omnibus Mot. Limine, ECF No. 39. The Court held a pretrial
conference on October 17, 2011, at which it heard argument on the pending motions, and
allowed the parties to file supplemental briefs regarding the defendant’s motions in limine to
exclude the evidence of the defendant’s internal investigation and termination proceedings
against Carla Proctor, the driver of the WMATA bus involved in the accident. 5
As explained below, the defendant’s motion for summary judgment is denied because
numerous material facts remain disputed. Specifically, the parties dispute whether the plaintiff
checked for oncoming traffic before crossing the street, whether the plaintiff would have been
able to see the WMATA bus if she had looked for oncoming traffic, and whether the WMATA
bus driver had the last clear chance to avoid the accident. Additionally, the plaintiff’s motion in
limine to preclude a contributory negligence defense is denied because the determination of
whether the defendant was negligent per se rests on factual determinations that are properly
reserved for the jury, and a defendant’s violations of traffic regulations do not bar a contributory
negligence defense. The parties’ additional motions in limine, as well as their objections to
proposed exhibits, are addressed below.
II. WMATA’S MOTION FOR SUMMARY JUDGMENT
The defendant moves for summary judgment on grounds that undisputed facts
conclusively demonstrate that the plaintiff was contributorily negligent, which bars her from
5
At the pretrial conference, the Court specifically authorized the parties to submit supplemental briefs regarding
whether the defendant had waived any self-evaluative privilege it could claim regarding its internal proceedings
against Ms. Proctor by issuing a press release on the disciplinary action taken against Ms. Proctor and the reasons
for this action. In its supplemental memorandum, the defendant briefly addressed that issue, but also argued that the
internal proceedings are inadmissible pursuant to Federal Rule of Evidence 407, an argument that was not raised in
its initial papers. The plaintiff filed her supplemental brief on October 18, 2011, and also requested additional time
to respond to the defendant’s newly presented argument. The Court granted this request, and instructed the plaintiff
to file any supplemental response by October 19, 2011. Minute Order dated Oct. 18, 2011 (Howell, J.).
5
recovery in this case. As explained below, facts essential to a finding of the plaintiff’s
contributory negligence remain in dispute. The defendant’s motion for summary judgment is
therefore denied.
A. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for
summary judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law” based upon the pleadings, depositions,
and affidavits and other factual materials in the record. FED. R. CIV. P. 56(a), (c); Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The
Court “need consider only the cited materials, but it may consider other materials in the record.”
FED. R. CIV. P. 56(c)(3). “The evidence is to be viewed in the light most favorable to the
nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving
party.” Talavera, 638 F.3d at 308 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)); Tao, 27 F.3d at 638. However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Talavera, 638 F.3d at 308 (citing Anderson, 477 U.S. at
252). The burden is on the moving party to demonstrate that there is an “absence of a genuine
issue of material fact” in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B. Discussion
The defendant asserts that the plaintiff was contributorily negligent when she sustained
her injuries and therefore should be barred from recovery because she entered the intersection
without looking to her left and, as a result, failed to see the oncoming WMATA bus. As a
general matter, “[i]ssues of contributory negligence, like issues of negligence, present factual
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questions for the trier of fact [u]nless the evidence is so clear and undisputed that fair-minded
men can draw only one conclusion.” Lyons v. Barrazotto, 667 A.2d 314, 322 (D.C. 1995)
(internal citations omitted). “Only in the exceptional case is evidence so clear and unambiguous
that contributory negligence should be found as a matter of law.” Id. (quoting Washington v. A.
& H. Garcias Trash Hauling, 584 A.2d 544, 547 (D.C. 1990)); see also Paraskevaides v. Four
Seasons Wash., 292 F.3d 886, 893 (D.C. Cir. 2002) (“Only in exceptional cases will questions of
negligence [and] contributory negligence . . . pass from the realm of fact to one of law,” quoting
Shu v. Basinger, 57 A.2d 295, 295-96 (D.C. 1948)); Hsieh v. Consol. Eng’g Servs., 569 F. Supp.
2d 159, 182-83 (D.D.C. 2008) (“Contributory negligence is virtually always a question of fact
for the jury,” quoting Andrews v. Wilkins, 934 F.2d 1267, 1272 (D.C. Cir. 1991)). In cases
involving intersection collisions, “the issues of negligence and proximate cause will almost
always be questions of fact to be decided by the jury.” Washington Metro. Area Transit Auth. v.
Jones, 443 A.2d 45, 49-50 (D.C. 1982) (en banc); see also Aqui v. Isaac, 342 A.2d 370, 372
(D.C. 1975) (court reversed judgment notwithstanding the verdict finding that “[a]utomobile
collisions at street intersections nearly always present questions of fact. . . . Only in exceptional
cases will questions of negligence, contributory negligence and proximate cause pass from the
realm of fact to one of law.”). Thus, in order to grant summary judgment, the defendant must
demonstrate that undisputed evidence conclusively establishes that the plaintiff was negligent
when entering the crosswalk. The Court concludes, however, that it does not. Moreover, even if
evidence did establish the plaintiff’s contributory negligence as a matter of law, summary
judgment in favor of the defendant is not warranted because the plaintiff may recover, despite
her own negligence, if a jury determines that the WMATA bus driver had the last clear chance of
avoiding the accident.
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1. Undisputed Facts Do Not Establish That the Plaintiff Was Contributorily
Negligent
In the District of Columbia, “contributory negligence . . . is an affirmative defense in
negligence cases and may operate as a complete bar to liability.” Dennis v. Jones, 928 A.2d 672,
676 (D.C. 2007); see Burton v. United States, 668 F. Supp. 2d 86, 107 (D.D.C. 2009); Lee v.
United States, 570 F. Supp. 2d 142, 155 (D.D.C. 1999) (citing Lynne v. District of Columbia,
734 A.2d 168, 172 (D.C. 1999). In the present case, the defendant argues that the plaintiff is
contributorily negligent for her injuries because she “entered the intersection without looking and
failed to exercise reasonable care by leaving the sidewalk without ascertaining whether traffic
moving through the intersection was approaching.” Def.’s Mem. Supp. Mot. Summ. J., ECF No.
27, at 11-12.
The law imposes a duty on pedestrians to exercise reasonable care for the protection of
his or her own safety. Lyons, 667 A.2d at 322; see also O’Connor v. District of Columbia, 921
F. Supp. 5, 7 (D.D.C. 1996); Shonka v. Washington Metro. Area Transit Auth., No. 1:08-cv-47,
slip. op. at 4 (E.D. Va. May 5, 2008). “In an intersectional collision case, a plaintiff may be held
to be contributorily negligent as a matter of law if he purportedly looks, but fails to see what the
evidence conclusively shows was there to be seen.” Spain v. McNeal, 337 A.2d 507, 510 (D.C.
1975) (involving collision between two vehicles at an intersection); Aguehounde v. District of
Columbia, No. 91-cv-9365, slip. op. at 36 (D.C. Super. Ct. Apr. 13, 1993) (citing Spain v.
McNeal and finding plaintiff contributorily negligent as a matter of law because he did not stop
or look before entering the street). 6 As the court in Spain explained, however, in order to
6
The duty of care required of pedestrians in summarized in District of Columbia Standardized Civil Jury
Instructions. Instruction 7.03, the “Duty to Maintain Proper Lookout,” provides:
When a person is using, or is about to use, a roadway either as a driver or a pedestrian, [he] [she] has a duty
to keep a proper lookout. That means [he] [she] must reasonably observe traffic and other conditions
which confront [him] [her] to protect [himself] [herself] and others while using the roadway. A person
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“invoke [contributory negligence as a matter of law], it must appear as an uncontroverted fact
that the other vehicle was within [the motorist’s] range of vision at the time he claims to have
looked.” Spain, 337 A.2d at 510.
Based upon the record before the Court, it is far from uncontroverted that the WMATA
bus was within the plaintiff’s field of vision at the time when she could have looked to her left to
check for traffic before entering the crosswalk. Specifically, at least two unresolved facts
prevent a finding that the plaintiff’s failure to look left makes her contributorily negligent as a
matter of law. First, the record indicates that Ms. Salazar was standing to the plaintiff’s left, the
direction from which the WMATA bus was approaching, while the plaintiff was standing on
curb and when they both stepped into the intersection. See Statement of Material Facts ¶ 3. It is
therefore possible, as the plaintiff argues, that Ms. Salazar obstructed the plaintiff’s view of
oncoming traffic and of the bus. Pl.’s Opp’n Mot. Summ. J., ECF No. 30, at 13. The evidence
in the record therefore does not conclusively establish that the oncoming WMATA bus was
within the plaintiff’s “field of vision.” Second, one witness described the bus as “just a streak.”
Miller Report, at 00054. If the plaintiff looked to her left, the plaintiff may not have seen the
approaching bus because of its speed, may have proceeded onto the crosswalk before the bus
entered her field of vision, or may not have had an opportunity to step back to the safety of the
curb given the speed at which the bus was travelling. See Pl.’s Opp’n Mot. Summ. J., ECF No.
30, at 13. All of these possibilities may properly be considered by a jury.
must always use ordinary care to avoid an accident. The law does not try to regulate in detail what
particular observations a person should make or what a person specifically should do for [his] [her] own
safety. The law does require, however, that a person look effectively. One who looks and does not see
what is plainly there to be seen is as negligent as one who never looked at all.”
See also Instruction 7.13, “Pedestrian’s Duty When Crossing Streets” (“Before attempting to cross a street, it is a
pedestrian’s duty to make reasonable observations to learn the traffic conditions confronting him or her, and try to
make a sensible decision whether it is reasonably safe to attempt the crossing.”).
9
In support of its argument that summary judgment is warranted, the defendant relies
primarily upon O’Connor v. District of Columbia, 921 F. Supp. 5 (D.D.C. 1996), and
Aguehounde v. District of Columbia, No. 91-cv-9365, slip. op. (D.C. Super. Ct. Apr. 13, 1993).
Both cases, however, are distinguishable from the one before the Court.
In O’Connor, the plaintiff sued the District of Columbia for negligent maintenance of a
roadway after she stepped into an intersection to sidestep a puddle and fell attempting to avoid an
oncoming vehicle. 921 F. Supp. at 6. The court held that the plaintiff’s “failure even to make
one glance to see whether traffic was coming before stepping out into a traffic lane, coupled with
plaintiff’s failure to observe whether the traffic light had turned red to stop [oncoming] traffic”
rendered her contributorily negligent for her injuries. Id. at 7. Unlike the case before the Court,
the plaintiff in O’Connor admitted that she did not know whether the traffic signal had changed
from red to green before she proceeded into the street. Id. at 6. Indeed, “the pedestrian was only
‘hoping’ that the light would change.” Pl.’s Opp’n Mot. Summ. J., ECF No. 30, at 14. Here, the
plaintiff waited for the ‘walk’ signal before proceeding across the intersection in the crosswalk,
and evidence does not conclusively establish that the plaintiff failed to look for an oncoming
vehicle or, if she had looked, would have been able to see the bus or had sufficient time to step
back to the safety of the curb. A reasonable juror could therefore conclude that the plaintiff
exercised due car prior to the accident.
The defendant’s reliance on Aguehounde is similarly inapposite. In that case, the plaintiff
was struck by a car immediately upon stepping into a crosswalk. Aguehounde, No. 91-cv-9365,
slip. op. at 27. The court found the plaintiff contributorily negligent for his injuries, stating that
“[g]iven [plaintiff’s] unobstructed view, there exists no doubt that had [the plaintiff] looked to
his left just before he stepped, he would have seen the [] car coming at him at a speed of 20 or 25
10
miles and [sic] hour.” Id. at 28-29. In the present case, as explained above, it is not clear that the
plaintiff had an unobstructed view of the intersection and could have seen the oncoming
WMATA bus, or if she saw the bus, whether the plaintiff had time to step back to the safety of
the curb, due to the speed at which the bus was travelling.
In sum, the record in this case does not conclusively establish that the plaintiff failed to
exercise reasonable care when crossing the street. The parties dispute whether the plaintiff
looked in the direction of the approaching WMATA bus before deciding to enter the crosswalk.
Moreover, they dispute whether the plaintiff’s view of the intersection was obstructed by Ms.
Salazar, who was standing to the plaintiff’s left and conceivably could have blocked the
WMATA bus from the plaintiff’s view. Finally, the parties dispute the speed at which the bus
was traveling, and the bus’ speed may have made it impossible for the plaintiff to return to the
safety of the curb even if she had seen the bus approaching. These disputed factual questions,
among others, must be resolved by a jury.
2. The Last Clear Chance Doctrine Precludes Summary Judgment
Even if the plaintiff were contributorily negligent, the plaintiff argues that summary
judgment in the defendant’s favor should be denied because she may still be able to recover
pursuant to the last clear chance doctrine. Pl.’s Reply Opp’n Mot. Limine, ECF No. 35, at 12.
“Under the doctrine of last clear chance, a plaintiff may recover, despite his own
contributory negligence, if he can demonstrate that ‘the defendant had a superior opportunity to
avoid the accident.’” Washington Metro. Area Transit Auth. v. Young, 731 A.2d 389, 394 (D.C.
1999) (citing Phillips v. D.C. Transit System, Inc., 198 A.2d 740, 741-42 (D.C. 1964)); see also
Hall v. Carter, 825 A.2d 954, 958 (D.C. 2003) (“[T]he ‘last clear chance’ instruction means that,
after both plaintiff and defendant negligently have created a situation dangerous to plaintiff, the
11
defendant can be held liable nonetheless, after plaintiff no longer can save the situation, if the
defendant still could have protected plaintiff from harm . . . but -- in a second negligent act or
omission -- failed to do so.”) (emphasis in original).
To prevail under this doctrine, the plaintiff must show that: “(1) the plaintiff was in a
position of danger caused by the negligence of both plaintiff and defendant; (2) the plaintiff was
oblivious to the danger, or unable to extricate [herself] from the position of danger; (3) the
defendant was aware, or by the exercise of reasonable care should have been aware, of the
plaintiff’s danger and of [her] obliviousness to it, or [her] inability to extricate [herself] from it;
and (4) the defendant, with means available to [the defendant], could have avoided injuring the
plaintiff after becoming aware of the danger and [the plaintiff’s] inability to extricate [herself]
from it, but failed to do so.” Juvenalis v. District of Columbia, 955 A.2d 187, 191 n. 2 (D.C.
2008) (citing Hall v. Carter, 825 A.2d at 958); Evans v. Wash. Metro. Area Transit Auth., 674 F.
Supp. 2d 175, 182 n.2 (D.D.C. 2009) (citing Queen v. Wash. Metro. Area Transit Auth., 842 F.2d
476, 481 (D.C. Cir. 1988)); Felton v. Wagner, 512 A.2d 291, 296 (D.C. 1986).
Here, as the plaintiff argues, a reasonable juror could conclude that the WMATA bus
should have been aware of the danger of pedestrians in the crosswalk and should have stopped
after seeing the plaintiff enter the intersection, particularly since it is undisputed that the plaintiff
had a “walk” signal. See Miller Report, at 00053-54. Indeed, plaintiff’s accident reconstruction
expert stated during his deposition that if the WMATA bus were proceeding within the speed
limit, the bus driver “more likely than not could have stopped at 25 miles an hour.” Pl.’s Reply
Opp’n Mot. Limine, Ex. C, ECF No. 35, David Stopper Dep. Tr. (“Stopper Dep.”) 72, lines 2-7,
July 8, 2011. This opinion is not refuted since WMATA’s expert apparently could not render an
opinion on whether the bus could have stopped if the bus were traveling within the speed limit.
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Pl.’s Reply Opp’n Mot. Limine, Ex. D, ECF No. 35, David Plant Dep. Tr. (“Plant Dep.”) 110,
lines 4-9, Sept. 1, 2010. A reasonable juror could conclude, based on this testimony, that the
WMATA bus driver could have stopped after seeing the plaintiff enter the intersection and
therefore had the last clear chance to avoid the accident. See Washington Metro. Area Transit
Auth. v. Jones, 443 A.2d 45, 50 (D.C. 1981) (“The jury must be allowed to weigh the credibility
of the witnesses and resolve disputes as to speed and distances.”) (en banc). If the jury
determines that the defendant had the last clear chance to avoid the accident, the plaintiff’s
contributory negligence would not bar a judgment in her favor. The defendant’s motion for
summary judgment is therefore denied.
III. PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE A CONTRIBUTORY
NEGLIGENCE DEFENSE
The plaintiff has moved in limine to preclude the defendant from asserting at trial that the
plaintiff was contributorily negligent. Pl.’s Mot. Limine, ECF No. 28. Specifically, the plaintiff
contends that a contributory negligence defense is unavailable when the defendant is negligent
per se for violating traffic regulations. Id. at 11. The defendant counters that violations of traffic
regulations do not constitute negligence per se. The plaintiff further contends that the
defendant’s gross negligence overcomes the defense of contributory negligence, Pl.’s Opp’n
Mot. Summ. J., ECF No. 30, at 21, a theory that the defendant contends is without any support in
this jurisdiction. Def.’s Reply Mot. Summ. J., ECF No. 32, at 8-10.
The Court concludes that the defendant’s alleged violations of traffic regulations may
constitute negligence per se, but whether the defendant violated applicable traffic regulations is a
matter for the jury to decide. Further, the Court holds that the defendant is not precluded from
raising a contributory negligence defense where the defendant’s negligence per se is triggered by
violations of traffic regulations. Finally, the Court finds that plaintiff may not assert now a claim
13
of gross negligence, which was contained in a count voluntarily dismissed by the plaintiff. Even
if a claim of gross negligence were before the Court, however, there is scant support in this
jurisdiction for the proposition that gross negligence precludes a contributory negligence
defense.
A. Negligence Per Se Based on Violations of D.C. Traffic Regulations
In the District of Columbia, “where a particular statutory or regulatory standard is
enacted to protect persons in the plaintiff’s position or to prevent the type of accident that
occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of
that standard renders the defendant negligent as a matter of law.” Childs v. Purll, 882 A.2d 227,
235 (D.C. 2005) (internal citation and quotation marks omitted); Richardson v. Gregory, 281
F.2d 626, 629 (D.C. Cir. 1960); see Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 557 (D.C.
Cir. 1993) (quoting Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C. 1982)); Iacangelo v.
Georgetown Univ., 595 F. Supp. 2d 87, 91 (D.D.C. 2009) (same). Although the defendant
contends otherwise, D.C. courts have repeatedly held that “the unexplained violation of a traffic
regulation enacted . . . to . . . prevent the type of accident that occurred constitutes negligence per
se.” Burns v. Washington Metro. Area Transit Auth., 114 F.3d 219, 223 (D.C. Cir. 1997)
(internal citations and quotation marks omitted); see also Stevens v. Hall, 391 A.2d 792, 796 n.2
(D.C. 1978) (“Our Court of Appeals has consistently held in personal injury cases involving
vehicles that if an applicable traffic regulation is violated negligence has been established as a
matter of law, thus leaving only the question of proximate cause to be decided,” quoting Herrell
v. Pimsler, 307 F. Supp. 1166, 1168 (D.D.C. 1969)); Bauman v. Sragow, 308 A.2d 243, 244
(D.C. 1973) (per curiam) (“Violation of traffic regulations may, of course, constitute negligence
per se.”); Herrell, 307 F. Supp. at 1168 (“It is firmly established in this jurisdiction that violation
14
of traffic regulations designed to promote safety is negligence as a matter of law where actions of
adults are involved.”); see also Abel v. First Sec. Ins. Co. of Am., 120 A.2d 586, 587 (D.C. App.
1956) (“[A]lthough violation of traffic regulations may be negligence per se, it is still a question
of fact whether or not the regulations were actually violated, and if so whether their violation
was the proximate cause of the collision.”).
The plaintiff claims that the defendant is negligent per se for, inter alia, failing to slow
and stop for a yellow traffic signal, failing to adhere to the posted speed limit, and failing to give
the plaintiff the right-of-way when she was in the crosswalk. 7 Pl.’s Mot. Limine, ECF No. 28, at
17-19. The regulations the WMATA bus driver allegedly violated were enacted for the safety of
pedestrians. Id. at 17. Thus, if the plaintiff can establish that the WMATA bus failed to adhere
to these regulations, and that these violations were a proximate cause of her injury, she would
establish that the defendant’s bus driver was negligent per se.
As explained previously, however, whether the WMATA bus violated traffic regulations
prior to colliding with the plaintiff is a disputed factual matter that precludes a finding of
negligence per se. The parties dispute the speed of the WMATA bus, 8 whether the light was
yellow or red when the bus approached the intersection, whether the bus could and should have
stopped at the red light instead of proceeding through the intersection, 9 and whether the
7
The plaintiff contends that the defendant’s bus driver was in “direct violation of multiple traffic safety laws found
under D.C. Code Section 50-2201.28 and Title 18 of the District of Columbia Municipal Regulations, including but
not limited to the following Sections: 2103.5, 2200.2, 2200.3, 2200.4, 2200.5, 2207.2, 2208.6, and 2208.11.” Pl.’s
Opp’n Mot. Summ. J., ECF No. 30, at 6.
8
The defendant argues that although “[t]he speed limit through the intersection is 25 MPH . . ., the record as it
currently exists places the bus’ speed from 26 MPH (findings by WMATA investigation) to 27.28 (Stopper Report
dated February 8, 2011 item #10) to close to 30 MPH (Miller Report Item #8). One eyewitness account placed the
bus’ speed at approximately 15 MPH. (Andrew Fasoli) (Plaintiff’s Exhibit B at p. Miller00053).” Def.’s Reply
Mot. Summ. J., ECF No. 32, at 4.
9
The defendant contends that the WMATA bus could lawfully proceed through the intersection “if the driver had
either entered it on a green light or if after seeing the signal change to amber he was unable to stop with safety,
15
WMATA bus could have yielded to the plaintiff in the crosswalk and consequently avoided the
accident. Def.’s Reply Mot. Summ. J., ECF No. 32, at 2-4. These factual issues must be
resolved by a jury prior to a finding that the defendant was negligent per se. See Bauman v.
Sragow, 308 A.2d at 244 (“Whether the applicable regulations were violated, however, and
whether their violation was the proximate cause of the collision, are questions of fact for the jury
unless reasonable persons could draw but one conclusion from the evidence.”).
B. Negligence Per Se Does Not Bar A Contributory Negligence Defense In This Case
The plaintiff argues that once negligence per se is established, the defendant may not
raise a contributory negligence defense to excuse its violations of traffic regulations and bar the
plaintiff’s recovery. The Court disagrees.
In Martin v. George Hyman Constr. Co., 395 A.2d 63 (D.C. 1978), the D.C. Court of
Appeals stated that “where the judicially-developed defenses of contributory negligence and
assumption of risk conflict with the purposes of the statutes and regulations, such defenses
should not bar recovery.” Id. at 69. The court explained, however, that a contributory
negligence defense “may not conflict with the benefit intended by the statute or regulation” in all
circumstances, and its availability “depends upon analysis not only of the policies of the
[regulation’s] enactment but also the relation of those policies to each of the defenses
individually.” Id.In Martin, a construction worker sought recovery for injuries sustained on a construction
site and alleged that his employer was negligent per se because it failed to adhere to certain
workplace safety regulations. Id. at 66. The court concluded that a contributory negligence
defense was not available to the defendant because some statutes, such as the workplace safety
whereupon [s]he would be permitted to continue ‘cautiously’ through the intersection.” Baltimore Transit Co. v.
Putnam, 241 A.2d 586, 588 (Md. 1968).
16
regulations at issue in Martin, “envision that certain classes of persons likely to be careless
require greater protection.” Id. at 69. These regulations seek to protect individuals from their
own negligence and therefore impose obligations on another party in order to prevent injury. See
id. at 69-70. A contributory negligence defense is not available for violation of such statutes
because the defense would undermine the purpose of the statutory scheme to protect certain
individuals from their own negligence. See id. at 69; see also Jarrett v. Woodward Bros., Inc.,
751 A.2d 972 (D.C. 2000) (contributory negligence defense not available to overcome a
violation of D.C. Code § 25-121(b), which prohibits the sale of alcohol to minors); 10 Scoggins v.
Jude, 419 A.2d 999, 1005 (D.C. 1980) (“contributory negligence … will be unavailable as a
defense if the effect of a statute ‘is to place the entire responsibility for such harm as has
occurred upon the defendant,’” quoting Restatement (Second) Torts § 483).
In reaching this conclusion, the D.C. Court of Appeals explicitly stated that a
contributory negligence defense would be available for violation of traffic regulations, which
serve only “to clarify and define elements of due care.” Martin, 395 A.2d at 69 (quoting Bowman
v. Redding Co., Inc., 449 F.2d 956, 966 (D.C. Cir. 1971) 11); see also Perkinson, 821 F.2d at 692
10
The plaintiff’s reliance on Jarrett v. Woodward Bros., Inc., 751 A.2d 972 (D.C. 2000), to support its contention
that negligence per se bars a contributory negligence defense in this case is unavailing. In Jarrett, the court held
that a contributory negligence defense could not overcome a violation of D.C. Code. § 25-121(b), which prohibits
the sale of alcohol to minors. Id. After a lengthy discussion of the legislative history and underlying purpose of the
statute, the court stated that availability of a contributory negligence defense would contravene the statutory
mandate. Id. at 985. The court did not address the availability of contributory negligence outside the context of
D.C. Code. § 25-121(b), and did not comment on contributory negligence in the context of violations of traffic
regulations.
11
The defendant relies primarily on Bowman v. Redding Co., Inc., 449 F.2d 956 (D.C. Cir. 1971), which states that
[i]n the ordinary negligence case involving automobiles, the legislative policy underlying traffic
and kindred regulations is discernible as one that is intended to clarify and define the elements of
due care. But such regulations are not intended to affect legal doctrines holding that a vehicle
operator guilty of negligence – whether ascertained by a jury applying the broad common law
standard or by a particular legislative standard – is not liable to an individual whose own
negligence materially contributed to his injury. In such cases the defense of contributory
negligence stands unaffected.
17
(“[W]here a statutorily imposed duty of care does not increase the protection due the protected
class, but merely shifts a common law burden from one person to another, the defense of
contributory negligence is not affected.”). Traffic regulations are not enacted to protect
individuals from their own negligence. Indeed, under District of Columbia law a person using a
street “either a driver or a pedestrian” has a duty “to keep a proper lookout and make reasonable
observations as to traffic and other conditions which confront that person, in order to protect all
people using the roadways.” District of Columbia v. Robinson, 644 A.2d 1004, 1007 (D.C.
1994); see also Lyons v. Barrazotto, 667 A.2d 314, 321 (D.C. 1995) (same); Washington Metro.
Area Transit Auth. v. Davis, 606 A.2d 165, 180 (D.C. 1992) (“We can reasonably expect bus
drivers to maintain a proper lookout and exercise reasonable care in entering an intersection,
especially when they know or should know the thoroughfare has blind intersections, and it is not
enough for the driver to assert merely that he had the ‘right of way.’”) (internal citations and
quotation marks omitted); Frager v. Pecot, 327 A.2d 306 (D.C. 1974) (“The fact that the
operator of a motor vehicle has the right of way does not relieve him from the necessity of
looking for the approach of cars on an intersecting street.”).
Id. at 966 (emphasis added); Def.’s Reply Mot. Summ. J., ECF No. 32, at 10. The plaintiff contends that Bowman is
no longer good law because it was impliedly overruled by Belton v. Washington Metropolitan Area Transit
Authority, 20 F.3d 1197 (D.C. Cir. 1994). Belton overruled Bowman only with regard to the question of whether a
plaintiff must prove antecedent negligence as part of the last clear chance doctrine. Id. at 1200. Belton did not
comment on the applicability of the negligence per se doctrine, or its relationship to a contributory negligence
defense, when traffic regulations are violated. That said, Bowman is not controlling authority because it was issued
“after February 1, 1971, the date on which, by virtue of the District of Columbia Court Reorganization Act, Pub.L.
No. 91–358, 84 Stat. 475, 667, [the D.C. Circuit] ceased to be an authoritative expositor of District law.” Evans v.
Washington Metro. Area Transit Auth., No. 08-cv-1629, 2011 WL 4599788, at *4 (D.D.C. 2011) (quoting Belton,
20 F.3rd at 1200) (emphasis in original); Martin, 395 A.2d at 68 (Bowman does not serve as binding precedent since
the case “was decided after the effective date of the reorganization of the courts of the District of Columbia.”); see
also Foshee v. Consol. Rail Corp., 849 F.2d 657, 660 (D.C. Cir. 1988); Jeffries v. Potomac Dev. Corp., 822 F.2d 87,
96-97 (D.C. Cir. 1987) (Silberman, J., concurring and dissenting); Bly v. Tri-Continental Indus., 663 A.2d 1232(D.C. 1995). Nevertheless, the Court reaches the same conclusion as in Bowman that negligence demonstrated by
violation of traffic regulations does not bar a contributory negligence defense.
18
Given that traffic regulations are not enacted with the purpose to protect individuals from
their own negligence, a contributory negligence defense would not frustrate or conflict with the
underlying purpose of the regulations and remains available to the defendant. See Martin, 395
A.2d at 69 (contributory negligence defense available when it would not “conflict with the
purposes of the statutes and regulations”); see generally Weston v. Washington Metro. Area
Transit Auth., 78 F.3d 682, 687 n.10 (D.C. Cir. 1996) (contributory negligence defense available
because “the D.C. Court of Appeals has decided that the D.C. Elevator Code does not have the
purpose to ‘protect members of the public from their own negligence,’” quoting District of
Columbia v. Brown, 589 A.2d 384, 386 (D.C. 1991)); Valentine v. United States, 706 F. Supp.
77, 81-82 (D.D.C. 1989) (noting that while “District of Columbia law on negligence per se and
its relationship with contributory negligence is less than crystal clear,” the court concluded that
“defendant’s failure to provide heat to [plaintiff]’s apartment constituted a violation of a safety
regulation and thus was negligence per se” but contributory negligence “on the part of the
plaintiff may block her recovery”). Indeed, the D.C. Court of Appeals has explicitly stated that
there is “no merit” to the contention that a “violation of a traffic regulation precludes application
of a contributory negligence defense.” Massengale v. Pitts, 737 A.2d 1029, 1032 n.1 (D.C. 1999)
(citing Martin, 395 A.2d at 69).
The plaintiff urges the Court to look to Richardson v. Gregory, 281 F.2d 626 (D.C. Cir.
1960), and Burns v. Washington Metropolitan Area Transit Authority, 114 F.3d 219 (D.C. Cir.
1997), as support for the proposition that a contributory negligence defense should not be
available. Pl.’s Reply Mot. Limine, ECF No. 35, at 11. These cases only establish that
violations of traffic regulations may constitute negligence per se. As previously explained, the
Court agrees with and is bound by this precedent that violations of traffic regulations may
19
constitute negligence per se. Such violations, however, do not warrant “imposition of automatic
liability.” Leiken v. Wilson, 445 A.2d 993, 1002-03 (D.C. 1982) (stating that a violation of traffic
regulations creates “presumptive liability,” which “is established unless the jury also finds that
the violator has produced evidence demonstrating that he or she did everything a reasonably
prudent person would have done to comply with all applicable regulations.”). Pursuant to
Massengale and Martin, a contributory negligence defense is available to preclude automatic
liability for violations of traffic regulations. Therefore, the defendant may raise a contributory
negligence defense at trial.
C. A Gross Negligence Claim Is Not Properly Before The Court
As an alternative ground to bar the defendant from asserting a contributory negligence
defense, the plaintiff argues that gross negligence by the defendant’s bus driver “prohibits the
defense of contributory negligence.” Pl.’s Opp’n Mot. Summ. J., ECF No. 30, at 21. The
defendant, in response, argues that gross negligence does not preclude the defense of
contributory negligence in this jurisdiction.
Regardless of which party is correct on the law, the plaintiff voluntarily dismissed her
claim of gross negligence in Count III of the Complaint shortly after initiating this action. Pl.’s
Stipulation of Jan. 28, 2010, ECF No. 4; Minute Order dated Jan. 28, 2010. Indeed, the
defendant never answered this claim in the Complaint because it stated that the plaintiff had
“voluntarily dismissed Count III.” Def.’s Answer, ECF No. 5, at 4. The plaintiff may not now
revive this allegation on the eve of trial. For this reason, the plaintiff’s motion in limine to bar
the contributory negligence defense based upon a dismissed claim, which had alleged the
defendant’s gross negligence, is denied.
20
Even if the plaintiff’s gross negligence claim were properly before the Court, the plaintiff
is unable to point to support in this jurisdiction for the proposition that gross negligence bars a
contributory negligence defense. The plaintiff cites Hall v. Hague, 257 A.2d 221 (D.C. 1969), as
support for the proposition that a finding of gross negligence should bar a contributory
negligence defense, but the plaintiff mischaracterizes the court’s opinion in that case. Pl.’s
Opp’n Mot. Summ. J., ECF No. 30, at 21-22. In Hall, the plaintiff proposed that gross
negligence would bar a contributory negligence defense, but the court itself did not adopt or
condone this proposition. 257 A.2d. at 223.
The Court has also reviewed Andrews v. Wilkins, No. 88-cv-1326, 1990 WL 102777(D.D.C. 1990), which addressed the operation of a contributory negligence defense in a case
where both negligence and gross negligence claims were asserted. In this case, the plaintiffs
asserted that their son drowned in the Potomac River because the U.S. Park Police were
negligent in their rescue attempts. Id. at *1-2. Chief Judge Lamberth concluded that the
decedent was contributorily negligent for his death, and the plaintiffs therefore could not recover
for negligence. Id. at *5-6. Nonetheless, the court considered the plaintiff’s contention that U.S.
Park Police were willful and wantonly negligent, but found that facts did not support the
allegation. Id. at *8. On appeal, the D.C. Circuit affirmed the court’s ruling that contributory
negligence barred the plaintiff’s ordinary negligence claims, and also affirmed the court’s
conclusion that facts did not support the contention that the defendants were willfully or
wantonly negligent. 934 F.2d 1267, at 1272-73 (D.C. Cir. 1991) abrogated on other grounds
Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. Jan 19, 1996). Although implicit in
the district court and D.C. Circuit’s analysis was that the decedent’s contributory negligence did
21
not foreclose the plaintiff’s willful and wanton negligence claims, this was not an express
holding of either court since neither court had to reach the issue.
The plaintiff urges the Court to adopt the law of North Carolina, another jurisdiction, like
the District of Columbia, in which contributory negligence operates as a complete bar to
recovery. In Yancey v. Lea, 550 S.E.2d 155 (N.C. 2001), the North Carolina Supreme Court held
that “[c]ontributory negligence is not a bar to a plaintiff’s recovery when the defendant’s gross
negligence, or willful or wanton conduct, is a proximate cause of the plaintiff’s injuries.” Id. at
157. The North Carolina Supreme Court defined ‘gross negligence’ as “wanton conduct done
with conscious or reckless disregard for the rights and safety of others,” id., which the plaintiff
argues is “similar” to the definition of gross negligence in the District of Columbia. Pl.’s Opp’n
Mot. Summ. J., ECF No. 30, at 21-22; District of Columbia v. Walker, 689 A.2d 40, 44 (D.C.
1997) (stating that gross negligence “requires such an extreme deviation from the ordinary
standard of care as to support a finding of wanton, willful and reckless disregard or conscious
indifference for the rights and safety of others.”). The plaintiff argues that the similarity
between the laws of the two jurisdictions warrants adoption of the Yancey holding in this
jurisdiction.
Given the paucity of legal authority from the District of Columbia courts that gross
negligence would bar a contributory negligence defense, the Court declines to adopt that rule
here, where the plaintiff over eighteen months ago voluntarily dismissed the gross negligence
claim in her Complaint. Accordingly, the plaintiff’s motion in limine to preclude the defendant
from raising a contributory negligence defense is denied.
22
IV. PLAINTIFF’S ADDITIONAL MOTIONS IN LIMINE
The plaintiff has filed additional motions in limine, seeking to (1) preclude any witness
from mentioning 18 DCMR § 2303.2; (2) preclude evidence or comment that Ms. Mahnke’s
parents are psychologists; and (3) preclude evidence concerning eyewitness Gabriela Salazar’s
“habit” when crossing an intersection. 12 These motions are discussed individually below.
A. Plaintiff’s Motion to Preclude Any Witness from Mentioning 18 DCMR § 2303.2
The plaintiff seeks to preclude at trial any reference to D.C. Municipal Regulation 18 §
2303.2, which provides that “[n]o pedestrian shall suddenly leave a curb, safety platform, safety
zone, loading platform, or other designated place of safety and walk or turn into the path of a
vehicle which is so close that it is impossible for the driver to yield.” The plaintiff argues that
this regulation is “not applicable to the facts and circumstances of this case” because the
regulation does not govern pedestrians’ conduct at a crosswalk regulated by traffic lights and
“walk” signals. Pl.’s Omnibus Mot. Limine, ECF No. 37, at 3.
To support its position, the plaintiff relies on Aguehounde v. District of Columbia, No.
91-cv-9365, slip. op. (D.C. Super. Ct. Apr. 13, 1993), in which the D.C. Superior Court stated
that 18 DCMR § 2303.2 applies “only to crosswalks not regulated by traffic lights.” Id. at *51.
While the court acknowledged that it was a “close question” whether the regulation applied when
a pedestrian cross signal is present, it ultimately concluded that in the context of other
regulations, 18 DCMR § 2303.2 controlled the conduct of pedestrians at places other than those
regulated by signals. Id. at *52.
12
The plaintiff has also moved for leave to amend her Complaint in order to increase her ad damnum demand for
judgment from $10 million to $20 million. Pl.’s Omnibus Mot. Limine, ECF No. 37, at 4. The defendant states that
it does not oppose this motion. Def.’s Opp’n Pl.’s Omnibus Mot. Limine, ECF No. 41, at 3. Accordingly, the
plaintiff’s motion for leave to amend the ad damnum clause in her Complaint to increase the requested
compensatory damages to $20 million is granted.
23
Upon the Court’s own review of these regulations, the Superior Court’s reasoning in
Aguehounde is sound and consistent with the manner in which the municipal regulations are
structured. 18 DCMR § 2300.1 states that “[p]edestrians shall be subject to traffic control
signals as provided in this chapter. At all other places, pedestrians shall be accorded the
privileges and shall be subject to the restrictions stated in this chapter.” (emphasis added). As the
D.C. Superior Court noted, this provision “appears plainly to state” that the restrictions and
privileges in the chapter apply to places “other” than those controlled by pedestrian crosswalk
signals. See Aguehounde, slip-op at *51.
Given the language of § 2300.1, as well as the local court’s interpretation of its own
municipal regulations, the Court concludes that § 2303.2 does not apply in the instant case. The
parties agree that the crosswalk at which the plaintiff stopped prior to the accident was regulated
by a pedestrian walk signal. Statement of Material Facts, ¶ 11. Consequently, the plaintiff is
correct that this regulation, 18 DCMR § 2303.2, is not applicable and therefore not relevant in
this case.
Nonetheless, the defendant argues in its brief that it seeks to question the plaintiff and
witnesses regarding their “knowledge” of this regulation because “evidence of an individual’s
lack of knowledge or appreciation for the law is clearly relevant to the court or a jury’s
determination of Plaintiff’s failure to exercise reasonable care and compliance with that law.”
Def.’s Opp’n Pl.’s Omnibus Mot. Limine, ECF No. 41, at 2. It is irrelevant, however, whether
witnesses are knowledgeable about a regulation without applicability to the facts at issue. 13
13
At oral argument, the Court stated that if the defendant were allowed to question witnesses regarding their
knowledge of 18 DCMR § 2303.2, the Court anticipates instructing the jury that the regulation was not applicable to
the plaintiff’s conduct. The defendant then represented that it would not seek to question witnesses regarding the
regulation. Thus, this motion may be moot.
24
Accordingly, the plaintiff’s motion in limine to preclude reference to 18 DCMR § 2303.2 is
granted.
B. Plaintiff’s Motion to Preclude Evidence of the Occupations of Ms. Mahnke’s
Parents
The plaintiff has moved to preclude mention of the fact that the plaintiff’s parents are
psychologists, arguing that this information is “not relevant for any purpose” and is inadmissible
under FED. R. EVID. 403 because any probative value of this employment information is
substantially outweighed by its prejudicial effect. Pl.’s Omnibus Mot. Limine, ECF No. 37, at 3.
The plaintiff is unclear about what prejudice would result from reference to the plaintiff’s
parents’ professions.
The defendant opposes the plaintiff’s motion primarily because it does not know what
plaintiff’s parents will say during their testimony and it does not want to be prevented from
mentioning that plaintiff’s parents are psychologists. According to the defendant, questioning
the plaintiff’s parents regarding their “observations, assessments of and/or treatment of plaintiff’s
injuries” is both relevant and proper. Def.’s Opp’n Pl.’s Omnibus Mot. Limine, ECF No. 41, at
3. Specifically, the defendant argues that “there is an obvious nexus between Plaintiff’s parents’
observations of and interactions with the Plaintiff as trained psychologists and the injuries
sustained by the Plaintiff.” Id. The plaintiff’s parents are not proffering expert testimony,
however, regarding the medical and mental condition of their daughter. Nevertheless, their
observations of the plaintiff and her cognitive abilities are indeed relevant to this case. The
parent’s professional backgrounds may be helpful to the jury in evaluating the weight to ascribe
to their observations. Consequently, the Court denies the plaintiff’s motion.
25
C. Plaintiff’s Motion to Preclude Evidence Concerning Eyewitness Gabriela
Salazar’s “Habit” When Crossing An Intersection
Both parties have stated an intention to call as a witness Gabriela Salazar, who was an
eyewitness to the accident and was standing to the plaintiff’s left on the sidewalk immediately
prior to the accident. Joint Pretrial Statement, ECF No. 38, at 8, 17. The plaintiff seeks to
preclude as irrelevant any testimony from Ms. Salazar about her “habit and/or prudence when
approaching an intersection.” Pl.’s Omnibus Mot. Limine, ECF No. 37, at 4. Specifically, the
plaintiff argues that Ms. Salazar should be prevented from “offering testimony that goes beyond
what she observed at the time Ms. Mahnke was injured” and should not be allowed to comment
that she typically looks both ways before crossing the street. Id. The defendant counters, in
reliance on Federal Rule of Evidence 406, that any comment Ms. Salazar may make regarding
her actions on that day should be “admissible evidence on the issues of the exercise of reasonable
care, where the bus was at the time Ms. Salazar stepped out and back, and Plaintiff’s
contributory negligence.” Def.’s Opp’n Pl.’s Omnibus Mot. Limine, ECF No. 41, at 3-4.
Rule 406 permits admission of evidence of a person’s habit to prove that the person acted
in accordance with that habit on a particular occasion. FED. R. EVID. 406. By its terms, this rule
applies whether the habit testimony elicited is about the actions of a party to the litigation or
about a fact witness. Id. (stating that “[e]vidence of the habit of a person . . . is relevant to prove
that the conduct of the person”) (emphasis added).
A habit “refers to the type of nonvolitional activity that occurs with invariable
regularity.” Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C. Cir. 1989). It is considered to be
probative because it is nonvolitional; it has “a reflexive, almost instinctive quality.” Id.; see also
United States v. Sampol, 636 F.2d 621, 656 n.21 (D.C. Cir. 1980) (“It is the ‘semi-automatic’
character of the behavior which renders habit evidence trustworthy.”); Babcock v. General
26
Motors Corp., 299 F.3d 60, 66 (1st Cir. 2002) (evidence that decedent “always wore his seat belt,
regardless of whether he was the driver or a passenger and regardless of the length of the trip”
was properly admitted as habit evidence to prove the decedent was wearing a seatbelt at the time
of the accident in question); Cf. United States ex rel. El-Amin v. George Washington Univ., No.
95-cv-2000, 2000 U.S. Dist. LEXIS 22937 (D.D.C. Sept. 13, 2000) (relators failed to establish
the existence of habit or routine practice when they indicated acts were “sometimes” or “usually”
done on some days).
At oral argument, defense counsel represented that no testimony regarding Ms. Salazar’s
habit of looking before crossing a street would be specifically elicited but that the witness may
volunteer such testimony as she did during her deposition. Thus, this issue may be moot since
Ms. Salazar may make no reference to her habitual actions before crossing a street. Should Ms.
Salazar testify, however, that she looked to her left before crossing the street in accordance with
her habit of doing so, this testimony would be admissible under Rule 406, and provide relevant
context and explanation for her actions just before the accident, in a manner that is not so
unfairly prejudicial as to outweigh its probative value.
V. THE DEFENDANT’S MOTIONS IN LIMINE
The defendant has filed multiple motions in limine, seeking to exclude at trial (1) the
findings and opinions of Detective Michael Miller of the D.C. Metropolitan Police Department
Major Crash Investigation Unit; as well as evidence or comment (2) that the WMATA bus
operator entered the intersection of Florida Avenue, N.W. and Connecticut Avenue, N.W. on a
red traffic signal; (3) regarding the driving record of the WMATA bus operator; (4) that
WMATA bus operators’ Standard Operating Procedures establish the standard of care governing
the issue of negligence; (5) regarding an internal WMATA investigation of the accident,
27
disciplinary proceedings and actions, and related arbitration proceedings against the bus driver;
and (6) regarding any “worst case scenario” of the plaintiff’s future medical care needs and costs.
These motions are addressed individually below.
A. The Defendant’s Motion to Exclude the Findings and Opinions of Detective
Michael Miller
The defendant seeks to preclude the plaintiff from discussing the findings and opinions of
Detective Michael Miller, a detective in the Major Crash Investigation Unit of the Metropolitan
Police Department. As part of a criminal investigation into the accident and the actions of
WMATA bus driver Carla Proctor, Detective Miller issued a report containing his findings and
opinions regarding the circumstances of the accident. The plaintiff intends to call Detective
Miller as a non-retained expert to testify about his conclusions.
The defendant argues that Detective Miller’s report and his findings should be excluded
at trial because (1) Detective Miller’s report was not released to the defendant’s until April 2011
and the plaintiff did not supplement her expert disclosures to include Detective Miller’s report;
(2) Detective Miller’s testimony will be redundant and confusing given the testimony of
plaintiff’s expert David Stopper; (3) the detective has no basis for his opinions, and therefore the
probative value of his statements is substantially outweighed by the risk of prejudice, in violation
of Federal Rule of Evidence 403; and (4) the report includes findings that the WMATA bus
driver failed to stop at three prior red traffic signals, which are inadmissible under Federal Rule
of Evidence 404(b) as prior bad acts.
First, the defendant’s procedural argument as to the inadmissibility of Detective Miller’s
report is unconvincing. The defendant complains that the plaintiff did not file “a supplemental
Rule 26(a)(2)(C) expert witness disclosure incident to the release of Detective Miller’s report
that formally notified Defendant WMATA that Plaintiff was actually calling Detective Miller as
28
an expert witness regarding his criminal investigation report.” Def.’s Mem. Supp. Omnibus Mot.
Limine, ECF No. 39, at 2. Due to this procedural failure, the defendant further complains that
“Detective Miller, therefore, was not deposed.” Id.The defendant’s suggestion of procedural unfairness because it was not forewarned of
Detective Miller’s testimony is disingenuous. The defendant was well-aware of Detective
Miller’s investigation and accident reconstruction report. Both parties listed Detective Miller as
a potential witness in their initial disclosures, pursuant to FED. R. CIV. P. 26(a)(1), in April 2010.
Def.’s Rule 26(a)(1) Statement dated Apr. 27, 2010, ECF No. 13, at 2. Indeed, the defendant
twice asked the Court to stay discovery in this case pending completion of Detective Miller’s
investigation, and the defendant specifically kept the Court apprised of Detective Miller’s
availability to testify. Joint Status Report dated Mar. 1, 2011, ECF No. 23 (“At the last status
conference before this Court, defense counsel related information to the court that had been
received from District of Columbia Metropolitan Police Department Det. Michael Miller, the
lead detective investigating the accident. At that time, Det. Miller anticipated that the
government would have a decision on whether to proceed to an indictment by the 3rd or 4th
week of February. Defense counsel has since learned from Det. Miller that a decision on whether
to pursue criminal charges is now anticipated by mid March, 2011.”); Def.’s Mot. Stay Pending
Completion of Criminal Investigation dated Mar. 24, 2010, ECF No. 8; Def.’s Second Motion to
Stay Pending Completion of Criminal Investigation dated Oct. 15, 2010, ECF No. 17. Moreover,
contrary to the defendant’s representation that the Detective “was not deposed,” Def.’s Mem.
Supp. Omnibus Mot. Limine, ECF No. 39, at 2, the defendant in fact deposed Detective Miller
on April 15, 2011, following release of his investigative file, and even called him to testify as a
29
witness on April 11, 2011 in arbitration proceedings against Carla Proctor, the WMATA bus
driver who operated the bus that struck the plaintiff.
The plaintiff does not dispute that she did not file a supplemental disclosure for Detective
Miller in conformity with FED. R. CIV. P. 26(a)(2)(C), which came into effect on December 1,
2010, after the filing of the plaintiff’s initial disclosures. This recent amendment to the
discovery rules requires a party to disclose the subject matter and summary of facts and opinions
to which an expert witness, who is not otherwise required to provide a written report, is expected
to testify. FED. R. CIV. P. 26(a)(2)(C). Although this amended rule became effective before the
close of discovery in this case on September 1, 2011, the defendant can show absolutely no
prejudice from the plaintiff’s failure to supplement her disclosures regarding Detective Miller’s
expected expert testimony because his report was made known almost simultaneously to both
parties. With the exception of filing a supplemental disclosure, the plaintiff has been diligent in
informing the defendant of its intention to call Detective Miller. The plaintiff listed Detective
Miller as the first non-retained expert in her preliminary expert witness disclosures on July 16,
2010; and, as evidenced by the parties’ status reports and motions, throughout the discovery
process the plaintiff has conferred with the defendant regarding Detective Miller’s investigation
and report. See e.g. Status Report dated Oct. 18, 2010, ECF No. 19; Status Report dated Mar. 1,
2011, ECF No. 23. With regard to the potential prejudice to the defendant, as explained above,
since the beginning of this case the defendant was aware of Detective Miller’s investigation. The
defendant was provided with Detective Miller’s report as soon as it was released, which was
“well over 6 months prior to trial and four months prior to the deadline of Defendant’s expert
witness disclosures.” Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF No. 40, at 3 n.2.
Moreover, defendant’s accident reconstruction expert David Plant expressly considers and rebuts
30
Detective Miller’s findings in his own report. Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF
No. 40, Ex. G, David Plant Report dated July 22, 2011. The procedural lapse cited by the
defendant is wholly insufficient to bar admission of Det. Miller’s expert testimony under these
circumstances.
Second, the defendant argues that Detective Miller’s testimony should not be admitted
because the plaintiff has also listed David Stopper as its expert accident reconstruction witness,
and two witnesses on this topic will be “cumulative, redundant, and prejudicial.” Def.’s Mem.
Supp. Omnibus Mot. Limine, ECF No. 39, at 2-3. The plaintiff counters that “Mr. Stopper will
be testifying concerning the standards of care applicable to commercial drivers and Carla
Proctor’s reckless and grossly negligent violation of the safety standards. Mr. Stopper will not
be proffered nor testifying as an accident reconstructionist.” Pl.’s Opp’n Def.’s Omnibus Mot.
Limine, ECF No. 40, at 6. Given that Detective Miller “will be the only witness providing
testimony concerning accident reconstruction,” id., Detective Miller’s testimony will not be
cumulative or redundant and will not be barred on this ground.
Third, the defendant argues that there is “no basis” for Detective Miller’s conclusion that
the WMATA bus ran red lights prior to entering the intersection at which the accident occurred,
and further that the Court should therefore preclude this evidence on the basis that its probative
value is outweighed by the risk of prejudice. To the extent that the defendant argues that
Detective Miller’s testimony and report is unreliable, the Court takes note that the defendant
itself called Detective Miller as a witness in arbitration proceedings against its former employee
Carla Proctor, and relied on his testimony concerning the sequence of traffic signals in the
intersections traversed by the bus prior to the accident. Pl.’s Opp’n Def.’s Omnibus Mot.
Limine, ECF No. 40, Ex. A, Transcript of Arbitration Proceedings In re Carla Proctor (Apr. 11,
31
2011). At that arbitration proceeding, Detective Miller testified that he has over nineteen years
of experience in the Major Crash Investigation Unit of the Metropolitan Police Department, and
the defendant proffered Detective Miller as its expert on accident reconstruction. Id. at 261-62.
The defendant’s ‘about-face’ contention in this Court that Detective Miller’s report and
conclusions are unreliable, when it previously urged an arbitration panel to rely on this
investigatory results, is without merit.
Finally, the defendant argues that Detective Miller’s conclusion that the WMATA bus
ran three red lights prior to the accident is inadmissible on grounds that this conclusion is
“irrelevant,” prejudicial, and barred under Federal Rule of Evidence 404(b). Def.’s Mem. Supp.
Omnibus Mot. Limine, ECF No. 39, at 7-8. Specifically, the defendant argues that “opinion
evidence that the bus operator failed to obey traffic signals before the accident location is not
admissible to show that the bus operator failed to obey the traffic signals at the intersection of
Florida Avenue, N.W. and Connecticut Avenue, N.W. at the time of the occurrence.” Id. at 5. 14
The plaintiff counters that the WMATA bus driver’s conduct at prior intersections “are
extremely close” to the intersection at which the accident occurred, and, according to Detective
Miller, the WMATA bus travelled through all of these intersections “in less than fifteen
seconds.” Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF No. 40, at 10.
Detective Miller concluded in his report that the WMATA bus ran red lights at three
intersections: Florida Avenue and Phelps Place; Florida Avenue and S Street; and Florida
Avenue and Connecticut Avenue. Miller Report, at 5-7. The traffic lights at these intersections
14
The defendant does not contend that Detective Miller’s report is inadmissible hearsay. Detective Miller’s report is
excluded from the hearsay rule under FED. R. EVID. 803(8)(C), which states that in “civil actions . . . factual findings
resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.” See also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988)
(“ . . . that portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely
because they state a conclusion or opinion.”).
32
are sequenced so that they are “all tied into one traffic light timing phase.” Pl.’s Opp’n Def.’s
Omnibus Mot. Limine, ECF No. 40, Ex. A, Transcript of Arbitration Proceedings In re Carla
Proctor (Apr. 11, 2011), at 280. It appears from the record that when the traffic signal at Florida
Avenue and Phelps Place turned red, the light at Florida Avenue and S Street turned yellow. Id.
at 296-97. Thus, if the WMATA bus driver ran a red light – or even proceeded through an
intersection on a yellow light – a jury may conclude that the WMATA bus driver should have
seen or anticipated that the next traffic light would soon turn red, and therefore should have been
prepared to stop. Indeed, the defendant itself made this argument in its arbitration proceedings
against Ms. Proctor, relying extensively on the fact that Ms. Proctor was aware of the sequenced
timing of the lights and should have been prepared to stop at the intersection at which the
accident occurred given that the two preceding lights were yellow. Pl.’s Opp’n Def.’s Suppl.
Mem. Supp. Def.’s Omnibus Mot. Limine, ECF No. 44, Ex. B., WMATA Post-Hearing Brief in
Arbitration Proceedings Against Carla Proctor dated Feb. 4, 2011, at 20-23.
Generally, Federal Rule of Evidence 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .” In this case, however, Rule 404(b) does not apply. The WMATA bus driver’s
conduct at the intersections immediately preceding the intersection of Florida and Connecticut
Avenues are not prior bad acts, but are rather part of a continuous series of events, which are
probative of and relevant to the reasonableness of the bus driver’s conduct when entering the
intersection at which the accident occurred. 15 Accordingly, given the close proximity of the
15
The defendant’s argument before this Court that Ms. Proctor’s actions at the two prior intersections is “irrelevant”
to this case is entirely disingenuous given that the defendant elicited testimony on the sequence and timing of the
33
intersections, and the fact that the timing of the traffic signals are sequenced, the WMATA bus
driver’s actions at the preceding intersections are intertwined with and relevant to the facts and
circumstances of her actions at the intersection at which the accident occurred. See Weinstein’s
Federal Evidence, § 404.12[3] (“If ‘other crimes, wrongs, or acts’ evidence constitutes direct
evidence relevant to the pending matter, Rule 404(b) does not prevent admission of the evidence.
Such acts are intrinsic to the charged crime and do not fall under Rule 404(b)'s limits on the use
of ‘other crimes, wrongs, or acts.’”) (emphasis in original); see also United States v. Akhigbe,
No. 09-cr-151, 2009 U.S. Dist. LEXIS 131082, at *4 (D.D.C. Dec. 2, 2009) (“[W]here testimony
is admitted as to acts intrinsic to the crime charged, and is not admitted solely to demonstrate bad
character, it is admissible. Evidence of uncharged conduct is not considered evidence of other
crimes where it is necessary to complete the story of the crime on trial. Such evidence is not
considered to fall under Rule 404(b) because it is offered as direct evidence of the crime
charged.”) (internal quotations and citations omitted).
In sum, the defendant was well aware of Detective Miller’s report and potential testimony
and on notice of the plaintiff’s intention to call him as an expert witness in a timely fashion and
in accordance with applicable discovery rules and the scheduling order of this Court. The
defendant’s motion to preclude Detective Miller’s testimony and report is denied since his
testimony will not be redundant and is relevant.
traffic lights not only at the intersection at which the accident occurred, but also at the two preceding intersections to
show that “based on [Ms. Proctor’s] professional experience operating a bus at this intersection, she had enough
information to know that when entering it when she did, she would not successfully clear the intersection including
the crosswalk.” Pl.’s Opp’n Def.’s Suppl. Mem. Supp. Def.’s Omnibus Mot. Limine, ECF No. 44, Ex. B., WMATA
Post-Hearing Brief in Arbitration Proceedings Against Carla Proctor dated Feb. 4, 2011, at 22.
34
B. The Defendant’s Motion to Exclude Evidence that the WMATA Bus Entered the
Intersection of Florida Avenue, N.W. and Connecticut Avenue, N.W. on a Red
Traffic Signal.
The defendant argues that the plaintiff should be precluded from arguing that the
WMATA bus entered the intersection at which the accident occurred on a red traffic signal
because there is “no evidence” to that effect. Def.’s Omnibus Mot. Limine, ECF No. 39, at 5.
The defendant’s motion is denied. There is evidence in the record from Detective Miller’s report
to support the conclusion that the WMATA bus ran red lights at intersections. Miller Report, at
5-7. To the extent that the defendant believes that Detective Miller does not have a good faith
basis for his findings and opinions, it may question Detective Miller on that point and make its
arguments before a jury. The defendant’s motion to preclude this argument is denied.
C. The Defendant’s Motion to Preclude Evidence Related to the Driving Record of
WMATA Bus Driver Carla Proctor
The defendant moves to exclude “any evidence, comment and/or argument about the bus
driver’s driving record [because it] is not relevant to the issue of her alleged negligence at the
time of the occurrence.” Def.’s Omnibus Mot. Limine, ECF No. 39, at 6. The plaintiff states
that she “does not intend to introduce any such evidence, unless the Defendant, or Ms. Proctor,
opens the door to the relevancy of such evidence.” Pl.’s Opp’n Def.’s Omnibus Mot. Limine,
ECF No. 40, at 10. The defendant’s motion is therefore granted as conceded. If at trial the
plaintiff argues that the defendant has “opened the door” to such evidence, the Court will address
that matter when raised by the parties.
D. The Defendant’s Motion to Preclude Evidence and Comment that WMATA’s
Standard Operating Procedures Establish the Standard of Care Governing the
Issue of Negligence
The defendant argues that the plaintiff should be not be able to comment or present
evidence that WMATA’s Standard Operating Procedures (“SOPs”) constitute the applicable
35
standard of care. Def.’s Omnibus Mot. Limine, ECF No. 39, at 6-8. Relying on Briggs v.
Washington Metropolitan Area Transit Authority, 481 F.3d 839, 848 (D.C. Cir. 2007), the
defendant states that violations of WMATA SOPs do not, standing alone, establish a breach of
duty of care. Furthermore, the defendant argues that “[p]laintiff’s expert accident
reconstructionist has not identified any of WMATA’s internal guidelines as constituting a
national standard of care in the transportation industry and Plaintiff has not sued the Defendant
on the basis of the bus operator’s alleged breach of a national standard of care. Without expert
testimony, WMATA’s SOPs are inadmissible.” Def.’s Omnibus Mot. Limine, ECF No. 39, at 7.
In Briggs, the D.C. Circuit stated “[w]hile internal regulations may be admissible as
bearing on the standard of care, admission at trial of the WMATA manuals alone would be
insufficient, because expert testimony would still be required to establish that the manuals
embody the national standard of care and not a higher, more demanding one.” 481 F.3d at 848(internal quotations and alterations omitted) (emphasis in original).
The plaintiff states that, as required by Briggs, she will present expert David Stopper to
discussion the standards of care applicable to commercial drivers, who will testify that WMATA
SOPs “embody the national standard of care and do not constitute a higher standard of care.”
Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF No. 40, at 10-11. Moreover, the defendant
specifically discussed its SOPs with Mr. Stopper at his deposition and Mr. Stopper will speak to
those issues at trial. Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF No. 40, Ex. J, Dep. of David
Stopper, at 12-22. Accordingly, the defendant’s motion to preclude discussion of its SOPs is
denied. If, in accordance with Briggs, Mr. Stopper fails to provide the proper foundation for his
testimony regarding WMATA SOPs, the Court will consider, if requested, striking those portions
of his testimony.
36
E. The Defendant’s Motion to Preclude Evidence and Comment of Any WMATA
Internal Investigation, and Disciplinary and Arbitration Proceedings
The defendant seeks to prevent the plaintiff from introducing evidence or commenting on
the “conduct and results” of WMATA’s internal investigation, including WMATA’s Final
Investigation Report which is plaintiff’s proposed exhibit 44, as well as disciplinary and
arbitration proceedings regarding Carla Proctor, the WMATA bus driver, and her termination.
Def.’s Omnibus Mot. Limine, ECF No. 39, at 8-10. The defendant argues that its internal
disciplinary proceedings are “quick” and “summary” and only determine whether an employee
violated standard operating procedure, which does not establish breach of a duty of reasonable
care negligence. Id. The defendant also argues that its internal investigation and disciplinary
proceedings, as well as the disciplinary actions taken, are governed by the self-evaluative
privilege, 16 and introduction of such internal investigatory steps in litigation arising from the
same facts under investigation would “chill WMATA from conducting post-accident
investigations based on its internal, more rigorous standards for fear that the results could be later
used to expose itself to liability in civil proceedings.” Id. at 9.
The plaintiff responds that the defendant should be prohibited from relying on any
privilege because shortly after the accident the defendant “made the conscious decision to advise
the public of the fact that Ms. Proctor was terminated” in a press release, which stated that Ms.
16
“Self-evaluative privilege generally applies to a critique submitted as part of a mandatory government report, and
prepared retrospectively as a component of a post-accident evaluation.” Wainwright v. Washington Metro. Area
Transit Auth., 163 F.R.D. 391, 396 (D.D.C. 1995) (citing Bredice v. Doctors Hospital, 50 F.R.D. 249, 251 (D.D.C.
1970)) (additional citations omitted). The purpose of the privilege is to encourage “confidential self-analysis and
self-criticism.” First Eastern Corp. v. Mainwaring, 21 F.3d 465, 467 (D.C. Cir. 1994). Courts are “reluctant to
expand [the privilege] beyond cases involving public health or safety.” Wade v. Washington Metro. Area Transit
Auth., No. 01-cv-334, 2006 WL 890679, at *5 (D.D.C. 2006) (citing First Eastern Corp., 21 F.3d at 467 n.1).
Although “[t]he self-evaluative privilege is rarely recognized,” id. (citing FTC v. TRW, Inc., 628 F.2d 207, 210 (D.
C. Cir. 1980) (“[C]ourts have appeared reluctant to enforce even a qualified ‘self-evaluative’ privilege.”)), the
privilege has been held “applicable to WMATA safety evaluations.” Wainwright v. Washington Metro. Area
Transit Auth., 163 F.R.D. 391, 396 (D.D.C. 1995) (citing Gilbert v. Washington Metro. Area Transit Auth., No. 85-
535 (D.C. Cir. Sept. 3, 1986) (unpublished decision)). The Court does not need to address the scope or applicability
of this privilege since this motion will be decided pursuant to Rule 407 of the Federal Rules of Evidence.
37
Proctor “was dismissed for failing to follow standard operating procedure.” Pl.’s Opp’n Def.’s
Omnibus Mot. Limine, ECF No. 40, at 12; Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF No.
40, Ex. L, WMATA Press Release dated Sept. 24, 2009. The plaintiff argues that the defendant
made a public admission regarding its investigation, and “cannot now contend that Plaintiff
should be prohibited from introducing it as evidence.” Pl.’s Opp’n WMATA Omnibus Mot.
Limine, ECF No. 40, at 13. Moreover, the plaintiff states that if the defendant seeks to take a
position contrary to the one it took in its 2009 press release and during internal arbitration
proceedings, the defendant “opens the door to its own prior statements and internal
investigations” and the plaintiff should be allowed to use the defendant’s prior statements for
impeachment purposes. Id.At the Pre-Trial Conference, the Court heard argument on the parties’ positions regarding
this motion and authorized them to file supplemental briefs on whether the defendant had waived
any privilege that may apply due to its public comments regarding Ms. Proctor’s termination. In
its supplemental filing, the defendant argued for the first time that evidence regarding its
investigation, internal disciplinary proceedings, and its disciplinary action against the bus driver
should be inadmissible under Federal Rule of Evidence 407, which states, in relevant part, that
“evidence of the subsequent [remedial] measures is not admissible to prove negligence, culpable
conduct.” FED. R. EVID. 407. The plaintiff requested additional time to file an opposition to the
defendant’s newly raised Rule 407 argument, which the Court granted. Pl.’s Opp’n to Def.’s
Suppl. Mem. Supp. Def.’s Omnibus Mot. Limine, ECF No. 44, at 3; Minute Order dated Oct. 18,
2011 (Howell, J.). Following review of the parties’ additional briefs on this issue, the Court
concludes that Federal Rule of Evidence 407 applies to evidence of WMATA’s internal
investigation and disciplinary proceedings, and the termination of the bus driver.
38
The grounds for exclusion of evidence of subsequent remedial measures under Federal
Rule of Evidence rests in large part “on a social policy of encouraging people to take, or at least
not discouraging them from taking, steps in furtherance of added safety.” Advisory Committee’s
Notes, FED. R. CIV. P. 407. As the Advisory Committee explains, “courts have applied this
principle to exclude evidence of . . . changes in company rules, and discharge of employees, and
the language of the present rule is broad enough to encompass all of them.” Id. Thus, pursuant
to Rule 407, courts have excluded “evidence that an employer subsequently discharged an
employee accused of causing a plaintiff’s injury.” Nolan v. Memphis City Schools, 589 F.3d
257, 274 (6th Cir. 2009); Jumper v. Yellow Corp., 176 F.R.D. 282, 285 (N.D. Ill. 1997) (same);
Wanke v. Lynn’s Transp. Co., 836 F. Supp. 587, 595 (N.D. Ind. 1993) (same).
The plaintiff concedes “that under most circumstances the fact that WMATA terminated
Ms. Proctor would be inadmissible as a subsequent remedial measure under Federal Rule of
Evidence 407.” Pl.’s Suppl. Mem. Regarding Fed. R. Evid. 407, ECF No. 45, at 1. The plaintiff
contends, however, that after “terminating Ms. Proctor, Defendant WMATA made the decision
as a governmental agency to file a Press Release.” Id. According to the plaintiff, the defendant’s
issuance of a press release containing an express public admission about the conclusions of the
investigation and termination of the employee push these events outside of the protection of Rule
407.
The press release issued by the defendant does not alter the salient fact that the Final
Report of the internal investigation, the discipline proceeding before the panel of arbitrators, and
the termination of the bus driver were all steps taken internally by the defendant in response to
the accident. Other courts confronting similar facts have concluded that Rule 407 applies to bar
admissibility of remedial measures, even when these measures have been publicly touted. For
39
example, in Specht v. Jensen, 863 F.2d 700 (10th Cir. 1988), the Tenth Circuit affirmed the
district court’s exclusion of a press release that “summarize[d] the results of the City’s
investigation of the incidents giving rise to the lawsuit . . . [and] state[d] that the officers
involved [in the civil rights case] exercised poor judgment . . . and that appropriate disciplinary
action would be taken.” Id. at 701. The Tenth Circuit reasoned that the press release fell within
the ambit of Federal Rule of Evidence 407 because “[t]he release thus sets out remedial measures
taken by the City to prevent the recurrence of the poor judgment the investigation revealed.” Id.In this case, the defendant similarly stated in its press release that it was taking remedial steps in
response to the accident by terminating Ms. Proctor from her employment because she had
violated WMATA’s standard operating procedures. This press release, along with WMATA’s
internal investigation and arbitration proceedings, are within the purview of Federal Rule of
Evidence 407 and are thus inadmissible to prove negligence and culpable conduct. See also
Reynolds v. Univ. of Pennsylvania, No. 06-1237, 2010 WL 2253732, at *5 (E.D. Pa. 2010)
(excluding statements made at a town hall meeting pursuant to FED. R. EVID. 407). The
defendant’s motion to exclude evidence and comment of its Final Report, internal disciplinary
proceedings, labor-union arbitration proceedings, and termination of the bus driver is granted.
The Court cautions, however, that Rule 407 “does not require the exclusion of evidence
of subsequent measures when offered for another purpose, such as . . . impeachment.” FED. R.
EVID. 407. The purpose of Rule 407 is to encourage remedial measures, but it is not to be used
by a party to disavow its own findings or take positions inconsistent with its past representations.
See Cunningham v. D.C. Sports & Entm’t Comm’n, No. 03-cv-839, 2005 U.S. Dist. LEXIS
29698, at *19-20 (D.D.C. Nov. 29, 2005) (defendants’ motion in limine to exclude references to
remedial measures denied because “it is deemed fundamentally unfair for a defendant to insist
40
that the danger was so obvious that plaintiff had to know of it and understand its full scope and
magnitude and then deny plaintiff the right to show that, after the accident, the defendant took
measures that gave others the warning that the defendant claimed was completely
unnecessary.”); Pinard v. Safeway Stores, Inc., No. 90-cv-3066, 1991 U.S. Dist. LEXIS 12552,
at *7 (D.D.C. Sept. 10, 1991) (defendant’s motion in limine to exclude evidence of subsequent
remedial measures denied since such evidence would be admissible for “proving ownership,
control, or feasibility of precautionary measures” and the defendant “intends to argue at trial that
it took all reasonable precautionary measures.”). Thus, if at trial, a defense witness asserts a
position in conflict with statements made by the defendant in its press release, or in its internal
investigatory and arbitration proceedings, the plaintiff may use that evidence for impeachment
purposes.
F. The Defendant’s Motion to Preclude Evidence and Comment on Future Medical
Costs Projected by Dr. Craig Lichtblau, MD, and Dr. Anthony Gamboa, PhD.
The defendant has moved to preclude reference of the future medical costs projected by
plaintiff’s experts Craig Lichtblau, M.D., a physiatrist, and Anthony Gamboa, Ph.D., a
vocational economist. According to the defendant, Dr. Lichtblau’s projection of a “worst case
scenario” for medical costs was not provided to the defendant prior to Dr. Lichtblau’s deposition
and “is wholly without support in the record” because no treating or expert neurosurgeon or
neurologist has provided any opinion that plaintiff will need that level of care. Def.’s Omnibus
Mot. Limine, ECF No. 39, at 10-11. Moreover, the defendant asserts that Dr. Gamboa’s cost
projections relied on Dr. Lichtblau’s conclusions and should therefore be excluded. Id. at 11.
The plaintiff responds that if the defendant seeks to challenge Dr. Lichtblau’s qualifications and
the reliability of his projections, it should have requested a Daubert hearing. Pl.’s Opp’n Def.’s
Omnibus Mot. Limine, ECF No. 40, at 18.
41
Under Rule 702, the court may only admit expert testimony that is relevant and reliable.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); see also Harris v. Koenig, No. 02-cv-618,
2011 WL 2531257, at *1 (D.D.C. June 27, 2011). The court “assumes only a ‘limited gate-
keep[ing] role’ directed at excluding expert testimony that is based upon ‘subjective belief’ or
‘unsupported speculation.’” Harris, 2011 WL 2531257, at *1 (quoting Ambrosini v.
Labarraque, 101 F.3d 129, 135-36 (D.C. Cir. 1996)). In evaluating challenges brought under
Rule 702, the court takes a “flexible approach”, id. (citing Daubert, 509 U.S. at 594), and has
“broad discretion in determining whether to admit or exclude expert testimony.” U.S. ex rel.
Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 895 (D.C. Cir. 2010) (internal quotations
and citation omitted).
In this case, the defendant has not formally challenged Dr. Lichtblau’s qualifications
or his expertise. Moreover, the plaintiff states that she will present at trial her expert neurologist,
Dr. Michael Batipps, and neurosurgeon, Dr. Kevin McGrail, who will testify that plaintiff’s
injuries are permanent and will not improve. Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF No.
40, at 15-17. Dr. McGrail will specifically testify that the plaintiff will need the level of care
detailed in Dr. Lichtblau’s “worst case scenario.” Id. at 17 n.5. 17 Dr. Lichtblau’s projected
worst case scenario therefore appears to have sufficient indices of reliability to be presented to
the jury for whatever weight the jury may accord to this potential scenario. The defendant’s
motion to preclude Dr. Lichtblau and Dr. Gamboa’s projections of future medical costs is
therefore denied.
17
The defendant does not dispute that the plaintiff provided Dr. Lichtblau’s recent projections on May 26, 2011, the
same day that the plaintiff received it. Pl.’s Opp’n Def.’s Omnibus Mot. Limine, ECF No. 40, at 16.
42
VI. THE DEFENDANT’S OBJECTIONS TO THE MEDICAL REPORTS AND
CIRRICULA VITAE OF PLAINTIFF’S EXPERTS
The defendant has objected to the proposed admission of plaintiff’s exhibits 28 through
34, and 36 through 40, which are the medical reports and curricula vitae (“CVs”) of Anthony
Gamboa, Ph.D.; Craig Lichtblau, M.D.; Michael Batipps, M.D.; Joseph Bleiberg, Ph.D.; Kevin
McGrail, M.D; and Melissa A. Carswell, Psy.D. The defendant argues that these documents are
hearsay and are thus inadmissible. Joint Pretrial Statement, ECF No. 38, at 20-21.
Technically, medical reports prepared by experts and the CVs of expert witnesses are
hearsay and are not admissible into evidence pursuant to FED. R. EVID. 802. See Wilson v.
Hartford Ins. Co. of the Midwest, No. 10-993, 2011 WL 2670199, at *2-3 (W.D. Wash. 2011)
(granting motion to exclude expert reports as hearsay); Grand Acadian, Inc. v. United States, No.
07-849, 2011 WL 4684276 (Fed. Cl. Oct. 6, 2011) (“The court has previously sustained an
objection that expert reports are inadmissible hearsay.”); Alexie v. United States, No. 3:05-cv-
002997, 2009 WL 160354 (D. Alaska Jan. 21, 2009) (“Application of the hearsay rule to exclude
both parties’ experts reports is quite straightforward. The reports are out-of-court statements by
witnesses offered for their truth and so fall within the definition of hearsay in FED. R. EVID.
801.”); see generally Presley v. Commercial Moving & Rigging, Inc., 25 A.3d 873, 893 (D.C.
2011) (“However, while experts may rely on hearsay to form their opinions, their testimony is
not a vehicle by which evidence that is otherwise inadmissible may be introduced. The trial court
properly applied this rule because the report upon which the expert relied constituted
inadmissible hearsay, and thus we can see no abuse of discretion in the trial court's decision to
preclude the admission of the accident report.”). That said, parties may stipulate to admission of
43
certain reports and CVs. See Wilson, 2011 WL 2670199, at *3 (“The court notes that parties
often, for ease of presentation of evidence, mutually agree that expert reports are admissible.
The court will not, however, force parties to reach such an agreement.”); Alexie, 2009 WL
160354 at *1 (“[T]he court entertains the hope that at trial the parties will stipulate to the
admission of the c.v.’s. Of course, such a stipulation need not constitute a stipulation that the
expert is in fact qualified to offer expert opinion testimony.”). The parties in this case may
similarly find a mutually agreeable solution; otherwise both the expert reports and CVs are
inadmissible as hearsay.
VII. PLAINTIFF’S OBJECTIONS TO WMATA’S EXHIBITS DEPICTING
VIDEOTAPE ANALYSIS
The plaintiff has objected to the admission into evidence of the defendant’s proposed
exhibit 6, a videotape re-creation of testing done by the D.C. Metropolitan Police Department,
and exhibit 7, a videotape analysis of bus movement and the accident by David Plant. Joint
Pretrial Statement, ECF No. 38, at 22. The plaintiff argues that these exhibits are cumulative and
not properly supported by the evidence in this case. The Court reserves judgment on this
objection pending further clarification of the issues relating to those exhibits during trial.
VIII. CONCLUSION
For the foregoing reasons, the Court denies the defendant’s motion for summary
judgment and motions in limine to exclude at trial (1) the findings and opinions of Detective
Michael Miller of the D.C. Metropolitan Police Department Major Crash Investigation Unit; (2)
evidence or comment that the WMATA bus operator entered the intersection of Florida Avenue,
N.W. and Connecticut Avenue, N.W. on a red traffic signal; (3) evidence or comment that
WMATA bus operators’ Standard Operating Procedures establish the standard of care governing
the issue of negligence; and (4) evidence or comment regarding any “worst case scenario” of the
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plaintiff’s future medical care needs and costs. The Court grants the defendant’s motion in
limine to exclude evidence or comment of its internal investigations, including its Final Report
which is plaintiff’s proposed exhibit 44, internal disciplinary proceedings, labor-union arbitration
proceedings, and the termination of the bus driver. The defendant’s motion in limine to preclude
mention of the driving record of Carla Proctor, the WMATA bus operator, is granted as
conceded. The Court denies the plaintiff’s motions in limine to preclude (1) the defendant from
raising a contributory negligence defense; (2) evidence or comment that Ms. Mahnke’s parents
are psychologists; and (3) evidence concerning eyewitness Gabriela Salazar’s “habit” when
crossing an intersection. The Court grants the plaintiff’s motions in limine to preclude any
discussion of D.C. Municipal Regulation 2303.2. The plaintiff’s motion to amend her
Complaint in order to increase her ad damnum demand for judgment from $10 million to $20
million is granted as conceded.
An Order consistent with this Memorandum Opinion will be entered.
DATED: OCTOBER 20, 2011
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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