that Dixon ingested cocaine some time within a week or so before the accident, they do not indicate at what point within that week he did so. Thus, while Dixon could have been impaired by cocaine use at the time of the accident, he equally could have ingested the cocaine the weekend before the accident and been unimpaired at the time of the accident. As a consequence, WMATA contends, the drug test results have limited probative value.
While WMATA's assessment of the probative value of drug test results in isolation is undoubtedly correct, its argument suffers from the same flaw as its relevancy argument. Simply put, there is no reason to consider the drug tests results in isolation. Indeed, it would be deceptive to do so: "Few categories of evidence indeed could ever be ruled admissible if each category had to stand on its own, unaided by the process of cumulating information that characterizes the way any rational person uses evidence to reach conclusions." Tribe, Trial by Mathematics, 84 Harv. L. Rev. 1329, 1350. It is especially important to look to other information when, as here, multiple inferences can be drawn from a single piece of evidence. When such evidence is considered in isolation, there are many potential inferences, each equally possible. Other evidence can, however, exclude some of the possible inferences, increase the probability of others, and thereby show how probative a piece of evidence is in context. "In short, the balancing test of Rule 403 requires that the judge consider the proffered evidence against the background of all of the evidence in the case." 22 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5214, at 272 (1978).
When considered in the context of the other evidence presented by the Johnsons -- and when, for purposes of this motion, that evidence is viewed in the light most favorable to the Johnsons -- the drug test results become quite probative of Dixon's impairment at the time of the accident. Viewed in isolation, the drug test results suggest that Dixon may have used cocaine at any time during the previous week without rendering any of those potential inferences more probable than any other inference. The evidence presented by the Johnsons, however, increases the probability of one of those inference. The fact (at least according to the Johnsons) that Dixon had more than ten seconds in which to stop the train yet failed to do so is consistent with cocaine use or cocaine-induced impairment. Similarly, a reasonable jury might find the fact that before the accident Dixon was singing and whistling as well as the fact that after the accident he acted hysterically to be consistent with cocaine-induced impairment. Indeed, a reasonable jury might find in Dixon's denial that he used drugs in the first three months of 1986 to be corroborating evidence. If the drug test results are assumed to be correct, Dixon lied and a reasonable jury might infer that Dixon did so in order to protect himself from potential liability from, or even prosecution for, operating the train while impaired by cocaine. Thus, the corroborating facts supplied by the Johnsons, when viewed in the light most favorable to them, make the inference that Dixon was impaired at the time of the accident more plausible. By contrast, WMATA has failed to present any evidence corroborating any of the other possible inferences. In sum, while the inference that Dixon was impaired at the time of the accident is only one possible inference from the drug test results, the alleged evidence of Dixon's negligence, his behavior before and after the accident, his apparent prevarication, and the lack of any more probable inference strengthens that inference and might, in a reasonable juror's eyes, make it more likely than not that Davis was impaired at the time of the accident.
WMATA argues that the Johnsons' corroborating evidence is contradicted by more credible evidence that Dixon was not impaired. Be that as it may, it would not be appropriate at this stage to consider the credibility of the Johnsons' evidence vis-a-vis WMATA's evidence. "Weighing probative value against unfair prejudice under Fed. R. Evid. 403 means probative value with respect to a material fact if the evidence is believed not the degree the court finds it believable." Bowden v. McKenna, 600 F.2d 282, 284 - 85 (1st Cir.), cert. denied., 444 U.S. 899, 62 L. Ed. 2d 135, 100 S. Ct. 208 (1979) (footnote and citation omitted); accord Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1202 (7th Cir. 1984). If a judge were "to exclude evidence on the ground that he thinks it incredible," he would not only be invading the jury's function of assessing the credibility of witnesses; he would be doing so without the benefit of viewing either the demeanor of the witnesses or cross-examination by opposing counsel. 22 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5214, at 265 - 66. In other words, because it is the jury's duty to resolve genuine issues of fact, the probativeness of a particular piece of evidence must be judged in terms of the Johnsons' reading of the disputed facts, not the opposition's.
Viewed in this light, the drug test results are quite probative. Without the drug test results, the evidence of Dixon's negligence, the singing and whistling, and of course Dixon's testimony about his drug use are scattered facts of little import. With the drug tests results, however, these scattered facts become important corroborating evidence in a cogent theory of Dixon's impairment. The evidence of the drug test results is, therefore, quite probative.
The Johnsons contend that the probativeness of the drug test results is enhanced by WMATA's presumption that any employee with a detectable level of cocaine in his or her urine or blood was working while impaired. The presumption is, however, a red herring. The only evidence of it is a single line in a transmittal memorandum stating that WMATA's Substance Abuse Policy "defines minimum levels of substances which, when detected, presume impairment." Memorandum from J. Potts to Officers, Office Directors, and Local 689, ATU, Represented Employees, January 8, 1985, at 1 (Plaintiff's Supplemental Memorandum, Exhibit 1). That memorandum was in turn written in response to several arbitration rulings holding that WMATA could not discipline employees for drug use without evidence of impairment on the job. See Kelley Deposition at 41, 43. WMATA adopted the presumption to comply with those rulings and to make disciplinary actions based upon drug testing more palatable to the unions. See id. at 51 - 52. The presumption was in no way based upon either scientific evidence or practical experience. See id. at 51 - 52. As a consequence, evidence of the presumption does not make it "more or less probable" that Dixon was impaired at the time of the accident and is therefore irrelevant and inadmissible. See Fed. R. Evid. 402; cf. Richardson v. Richardson-Merrell, Inc., 273 U.S. App. D.C. 32, 857 F.2d 823, 831 (D.C. Cir. 1988) (holding that epidemiological presumptions may not be admitted because they are based upon caution and prudence rather than a reasonable degree of medical certainty).
The Johnsons also argue that several adverse inferences should be drawn from WMATA's failure to collect or preserve relevant evidence. They make these arguments under the rubric of the District of Columbia's spoliation of evidence doctrine. However, even though District of Columbia law governs the Johnsons' tort claims, federal, not state, rules govern procedural matters such as what evidence may be admitted. Cf. Ricciardi v. Children's Hosp. Medical Center, 811 F.2d 18 (1st Cir. 1987) (holding that even though state substantive law controls in diversity actions, federal evidentiary rules must be applied in federal courts); see generally Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965). The appropriate federal doctrine is the so-called adverse inference rule which "provides that when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him." Int'l Union v. N.L.R.B., 459 F.2d 1329, 1336 (D.C. Cir. 1972). Normally, such inferences are not drawn unless there is evidence of "evil intent, bad faith or willfulness." See Vick v. Texas Employment Com., 514 F.2d 734, 737 (5th Cir. 1975); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 587 F. Supp. 180, 208 (D.D.C. 1984). In any event, it is clear that "whether to draw the inference is a matter of discretion for the fact finder," International Union v. N.L.R.B., 459 F.2d at 1339, and that the facts of this case do not support an exercise of that discretion. First, the Johnsons contend that an adverse inference should be drawn from the destruction of the blood samples drawn from Dixon on the day of the accident. Those samples were not, however, destroyed by WMATA. They were routinely disposed of by the Washington Hospital Center and the American Medical Laboratories, the custodians of the samples. See Kozikowski Deposition at 118; Second Affidavit of Stuart C. Bogema paras. 4 - 5. Moreover, even though such samples degenerate after a year, the Johnsons failed to request them until September, 1987, more than six months after this suit was filed and almost a year and six months after Dixon's blood specimen was taken in March, 1986. See WMATA's Reply para. 9. Therefore, it was plaintiffs' delay in requesting the samples, rather than any desire on the part of WMATA to cover up evidence, that led to the destruction of the blood samples. Accordingly, no adverse inference should be drawn.
Similarly, no adverse inference should be drawn from the fact that WMATA did not give Dixon a neurological examination. There is no evidence that such examinations are given as a matter of course. Moreover, the Johnsons have failed to point to any evidence at the time of the accident which would have suggested the need for such an examination. At the time the decision to conduct such an examination would have been made, the drug test results were not available, and neither the police officers interviewing Dixon nor the doctors examining him noted any signs of drug use or impairment. See Supplemental Statement para. 15; Second Motion for Summary Judgment at 15. Consequently, there is no reason to infer from WMATA's failure to conduct a neurological examination on the day of the accident that it intended to suppress relevant evidence.
The destruction of audio tapes poses a closer question. Those tapes recorded the communication between WMATA's Central Control and its train operators. Unlike the blood sample which probably could not have provided plaintiffs with any helpful evidence, the audio tape could have provided evidence of Dixon's conduct, possibly confirming that he was singing and whistling as well as recording any manner of speech evidencing impairment. Moreover, unlike the decision to conduct a neurological examination which was made before there was any hint of a lawsuit, the audio tapes were apparently destroyed after thirty days, which would have placed the destruction some time after WMATA knew the results of Dixon's drug tests. See Miller Deposition at 24 - 29. It was, however, by no means clear at that point that a suit would be filed: The investigation of the accident suggested that Devora Johnson's death was an unavoidable suicide, and witnesses had testified that Dixon depressed the emergency brake as soon as possible. Moreover, WMATA had only a limited amount to gain by destroying the tape: The plaintiffs could still obtain evidence of Dixon's behavior by interviewing persons on the train or at WMATA's Central Control. In light of these considerations, there is little reason to think that WMATA destroyed, or acquiesced in the destruction of, the tapes because it thought the tapes contained damaging evidence.
Accordingly, no adverse inference will be drawn from the destruction of the audio tape and the blood samples or from WMATA's failure to conduct a neurological examination.
Rule 403 requires courts to consider "the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403. As WMATA argues, there is considerable such danger here.
As WMATA notes, "evidence of drug use is, by its very nature, prejudicial." Simonson v. White, 220 Mont. at 23, 713 P.2d at 988. Such evidence is "likely to stimulate an excessive emotion or to awaken a fixed prejudice as to a particular subject or person involved in the issues." J. Wigmore, Code of Evidence 355 (3d ed. 1942). Jurors, especially in the District of Columbia, have strong opinions and emotions about drug use and drug users that might obscure their careful consideration of the evidence. Furthermore, jurors can easily envision themselves at the mercy of a drug-impaired train operator. It is therefore possible that a jury would decide to "send a message" to WMATA to eradicate drug use by its employees by holding WMATA liable regardless of whether Dixon's drug use was the proximate cause of Devora Johnson's death.
In addition to the dangers of unfair prejudice, there is also considerable danger of confusion. As the previous analysis has shown, the drug test results standing alone have little probative value. They become probative only in connection with the other available evidence. However, some of that evidence -- such as whether the subway car could have stopped in time to avoid hitting the decedent and whether Dixon acted as if he was impaired by drugs at the time of the accident -- is disputed. As a consequence, in order to assess the drug test results rationally, the jury will first have to resolve the conflicts in the rest of the testimony. Some jurors will be tempted to omit this careful analysis of the facts and jump to the conclusion that the drug tests results show that Dixon was impaired at the time of the accident. Thus, above and beyond the danger of unfair prejudice, there is a considerable danger of confusion.
Despite the danger of prejudice and confusion, the drug test results must be admitted. Under the Federal Rules, relevant evidence may only be excluded if the danger of prejudice and confusion from that evidence "substantially outweigh[s]" its probative value. See Fed. R. Evid. 403. As the keystone of a cogent theory that Dixon acted wantonly, the drug test results are extremely probative and should be admitted.
It is, however, possible to reduce the potential for prejudice. The drug test results only become relevant if the jury determines Dixon's conduct could have caused decedent's death. As a consequence, the potentially prejudical effect of the drug test results on the issue of proximate cause could be minimized by bifurcating trial so that the issue of proximate cause is resolved before the introduction of any evidence about the drug test. Under this procedure, if the jury finds in the first phase that Dixon could have stopped the train in time to avoid the accident but failed to do so, the jury would be reconvened to hear evidence about drug use. Alternatively, some other device such as special instructions and a special verdict form could be used in a unitary trial to guide the jury's decision making.
WMATA also moves for summary judgment on the ground that the Johnsons have not provided sufficient evidence of impairment to send the question of wantonness to the jury. WMATA's argument is similar to its arguments on relevancy and probativeness. According to WMATA, because the drug test results only demonstrate that he was impaired sometime in the week before the tests were given, to conclude under these circumstances that Dixon was impaired at the time of the accident would be to "engage in sheer speculation." Siegel v. Mazda Motor Corp., 278 U.S. App. D.C. 333, 878 F.2d 435, 439 (D.C. Cir. 1989). It should be clear from the foregoing analysis that this contention must be rejected because the drug test results combined with the corroborating evidence presented by the Johnsons raise a genuine issue as to whether Dixon was impaired by cocaine at the time of the accident, and that genuine issue in turn raises a genuine issue of material fact as to whether Dixon acted wantonly and breached his duty of care toward the decedent.
One final issue remains. Because Devora Johnson was contributorily negligent, her parents can only recover under the doctrine of last clear chance. See D.C. Transit System, Inc. v. Garman, 112 U.S. App. D.C. 244, 301 F.2d 568, 570 (D.C. Cir. 1962).
Under that doctrine, a plaintiff may recover despite his or her own negligence if four conditions are met:
(1) that the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) that the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) that the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of her oblivion to it or her inability to extricate herself from it; and (4) that the defendant, with means available to him, 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.
Felton v. Wagner, 512 A.2d 291, 296 (D.C. 1986) (citations omitted). WMATA contends that the Johnsons have failed to satisfy their burden of proving the second element: "that the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger." It is clear that Devora Johnson was not "oblivious to the danger" of the oncoming subway car. Railroad tracks are so inherently dangerous that even young children are deemed to understand their danger. See Foshee v. Consolidated R. Corp., 270 U.S. App. D.C. 326, 849 F.2d 657, 658 (D.C. Cir. 1988). The Johnsons' claim must, therefore, rise or fall upon whether the decedent was able to extricate herself from the danger of the oncoming subway car.
WMATA argues that the undisputed evidence shows that she was. The decedent was apparently able to move once she reached the tracks, and under plaintiffs' theory of the facts she had at least ten seconds in which to do so. WMATA contends that in that time she could have rolled into the refuge area located underneath the platform about five feet from the center of the tracks. See Supplemental Response para. 24. That area is a space approximately two and one-half feet wide and nearly three feet high that runs underneath the platform at all WMATA subway stations, and, as the photographs supplied by WMATA amply demonstrate, a fair-sized man could fit underneath it. See Supplemental Statement para. 24; Second Supplemental Response para. 10. WMATA therefore contends that Devora Johnson, who was only five feet, six inches and between 125 and 146 pounds, could easily have fit under the refuge area and thereby extricated herself from danger. See Supplemental Statement para. 23; Supplemental Response para. 23.
The Johnsons, however, contend that their daughter did not see the refuge area. Its existence was certainly not something about which the ordinary WMATA patron would know. In the lower level of Metro Center, a person standing on the platform would be unaware of the refuge area below them. See Second Wood Deposition at 13. Nor were there any signs or arrows indicating the location of the refuge area. See id. at 11 - 12. Indeed, even WMATA office employees would be unaware of the refuge area. See Shaeffer Deposition at 8. More fundamentally, even if Johnson had been aware of the refuge area, it is not clear that she would have understood that she would be safe there. WMATA subway cars have "collector shoes" which extend beyond the track. See Krempasky Deposition at 8. An individual might therefore not realize that the refuge area was big enough for them to hide inside. Accordingly, the plaintiffs have raised a genuine issue as to whether Johnson was aware that she could extricate herself from danger by rolling into the refuge area. It must be resolved by the jury.
Because there are genuine issues as to whether the train operator's conduct proximately caused the accident, and, if so, whether he acted wantonly and whether, in any event, the decedent had the last clear chance to avoid the accident, an accompanying order will deny WMATA's second motion for summary judgment and schedule further proceedings in this matter.
ORDER - May 22, 1991, Filed
For the reasons stated in the accompanying memorandum, it is this 21st day of May, 1991 hereby
ORDERED: that Defendant Washington Metropolitan Area Transit Authority's Motion for Summary Judgment, filed April 20, 1990, should be, and is hereby, denied; and it is further
ORDERED: that counsel shall attend a status conference on June 18, 1991 at 1:45 p.m.