Before Wagner, Chief Judge, Farrell, Associate Judge, and Pryor,
The opinion of the court was delivered by: Farrell, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Judith Retchin, Trial Judge)
In this personal injury action, we hold that the trial Judge granted summary judgment to the defendants prematurely, because an affidavit provided by the plaintiff's expert arguably demonstrated a genuine issue of material fact on the cause of the accident injuring the plaintiff. However, because that affidavit was offered in the form of newly discovered evidence after the judgment was entered, the defendants have not had the opportunity to take the deposition of the expert. Our reversal is therefore without prejudice to a renewed motion for summary judgment should further discovery reveal that - as the defendants argue on appeal - there is less to the expert's opinion than meets the eye. I. Kim Wilson (hereafter "the plaintiff") sued her landlord, Halley Garden Associates, and its managing agent, RCG D.C. Realty, Inc., both of whom in turn filed a third-party complaint against Universal Appliance Co. *fn1 We refer to these entities collectively as "the defendants." Wilson sought damages for injuries to her children resulting from an explosion and fire in the gas kitchen stove in her apartment unit. In the parties' joint pre-trial statement, the plaintiff designated as her expert witness Michael Hazel, a former Fire Department Investigator who had filed an Incident Report pertaining to the fire.
She relied on the following Conclusion in the Incident Report:
Based on available information to date, it is the opinion of the undersigned investigator that the most likely cause of this fire was design, installation or operational deficiency.
The plaintiff was unable to locate Hazel before trial, and on the Friday before the scheduled Monday trial date, the Judge informed the parties in a tele-conference that she would likely entertain an oral motion for summary judgment on Monday, because in her view the Incident Report would be inadmissible without testimony by Hazel. *fn2 Over the weekend the plaintiff succeeded in contacting Hazel, although apparently too late to interview him. Hazel agreed to be "on call" for the trial on Monday.
On Monday morning Hazel was not in court. When the defendants pointed out that they had been unable to depose him, the Judge continued the case for several hours so he could be located to enable the plaintiff to proffer his expected testimony. When the matter resumed that afternoon, the plaintiff informed the court that she had been unable to reach Hazel. The defendants requested summary judgment on the ground that the plaintiff was unable to proffer expert testimony "beyond the four corners of the fire investigation report," which stated three different "most likely" causes of the accident, only two of which ("design, installation") provided a basis for their liability. Since the Report did not say that either of these causes rather than "operational deficiency" by the plaintiff had more likely than not caused the accident, the defendants argued that there were no genuine triable issues of fact on negligence and cause of injury. The plaintiff replied that this matter should be clarified by a further continuance and opportunity for the defendants to depose Hazel. *fn3 The Judge nevertheless agreed with the defendants and granted summary judgment on the ground that "even if the witness was here and testified consistent with the report, the substance of the report would not be enough for counsel to make his prima facie case."
Five days later, the plaintiff filed a motion to alter or amend judgment under Super. Ct. Civ. R. 59 (e), arguing, inter alia, that the Judge erred in not allowing her the ten days required by Rule 56 (c) in which to respond to the defendants' trial-day motion for summary judgment. Attached to the Rule 59 (e) motion was an affidavit of Hazel, stating:
Based upon my collective years of experience, and a careful inspection of the scene of the fire . . . on January 28, 1993, I determined that the most likely cause of the fire was design, installation or operational deficiency. Of the three aforementioned probabilities, the greatest probability was that the fire was caused by faulty installation of the stove in unit #1. [Emphasis added.]
The Judge denied the plaintiff's motion, stating, inter alia:
Mr. Hazel's opinion that one cause was the "greatest probability" does not assist the plaintiff because there are three possible causes stated for the fire. Plaintiff must demonstrate that installation was more likely than not the cause of the fire, a higher burden than plaintiff's "greatest probability" test. Even Mr. Hazel's expanded opinion would require the jury to speculate as to the cause of the fire, and thus plaintiff would not be able to carry her burden on a renewed motion for summary judgment.
On appeal, the plaintiff again argues that the trial Judge violated Rule 56 (c) by ruling on the oral motion for summary judgment without giving her ten days in which to respond. Prejudice resulted, she implicitly contends, when just five days after judgment she furnished Hazel's affidavit which (in her view) filled the evidentiary gap that had caused entry of judgment in the first place. This court, to be sure, has stressed the importance of Rule 56 (c)'s ten day requirement. *fn4 Because it "is not an unimportant technicality, but safeguards the substantial interests of litigants[,] . . . [t]he ten-day notice provision is mandatory, not discretionary, and trial Judges are obliged to enforce the provision strictly unless it is waived." Tompkins v. Washington Hosp. Ctr., 433 A.2d 1093, 1099 (D.C. 1981). But, in denying the plaintiff's Rule 59 (e) motion, the trial Judge explained that she had "heard and considered [plaintiff's] counsel's arguments regarding the entry of summary judgment on the day of trial" and that counsel had "not advance[d] new arguments to support the request for reconsideration." In effect, she ruled that the plaintiff had waived the notice requirement. We find it ...