Document Nos. 15, 22, 24, 25, 28, 30, 31
The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT; ALLOWING THE PLAINTIFF TO FILE HIS FIRST SURREPLY; STRIKING ALL SUBSEQUENT BRIEFS
This matter comes before the court on the defendant's motion for partial summary judgment regarding the plaintiff's claim for economic damages. David Groobert ("the plaintiff" or "Mr. Groobert") brings this action for alleged negligence, wrongful death, and survival. The defendant is Georgetown College, doing business as the Georgetown University Medical Center ("GUMC"). The plaintiff alleges that the defendant's negligent acts and/or omissions in failing to properly diagnose or treat his wife, Myra Groobert ("Mrs. Groobert"), resulted in her death at GUMC. The plaintiff states that his family incurred expenses and lost any and all damages recoverable under the District of Columbia Wrongful Death Statute, D.C. Code § 12-101 et seq. Additionally, the plaintiff alleges that the decedent's estate lost the probable future earnings and any other economic and non-economic damages recoverable under the applicable District of Columbia law, and that her minor child lost "the care, comfort, education, guidance and support" and all other damages recoverable under the District of Columbia Survival Act.
The defendant filed a motion for partial summary judgment regarding the plaintiff's claim for economic damages, arguing that the plaintiff's expert witnesses are unreliable and that their testimony is inadmissible pursuant to Federal Rule of Evidence 702. After reviewing the submissions of both parties, the court concludes that the plaintiff's experts are reliable and that the plaintiff's claim for lost earnings survives the defendant's motion. Accordingly, the court denies the defendant's motion for partial summary judgment.
On March 31, 2000, Mrs. Groobert entered the emergency room of GUMC with complaints of shoulder pain, neck pain, and crusty lesions on her right arm. Compl. at 2. GUMC diagnosed her with "musculoskeletal strain" and released her after three hours. Id. Mrs. Groobert returned to GUMC the following day with complaints of "prominent, raised, ulcerated areas over the length of her right extremity, severe pain and soft tissue swelling." Id. Mrs. Groobert's condition progressively deteriorated and she was transferred to the intensive care unit with evidence of renal failure with anuria, metabolic acidosis, and respiratory insufficiency. Id. at 3. Mrs. Groobert went into refractory shock on April 2, 2000 at around 3:00 p.m., and she was pronounced dead at 3:15 p.m. that same day. Id.
On January 30, 2001, Mr. Groobert filed this lawsuit on his wife's behalf. He brings claims for medical negligence, wrongful death, and survival, seeking both compensatory damages and lost future earnings. Id. at 3-5. Before her death, Mrs. Groobert worked as a part-time freelance photographer. Def.'s Statement of Material Facts Not in Dispute ("Def.'s Statement") at 1. She was the owner and operator of Myra Miller Photography and specialized in various forms of photography such as portraits, assignments, and stock photography. Mot. for Partial Summ. J. at 2. Stock photography "involves the marketing and sales of photographs taken by the photographer to entities in need of images for uses such as advertising." Id. Stock photographers often join an agency, which compiles images from individual photographers and maintains a library from which potential purchasers select their photographs. Id.
In 1993, Mrs. Groobert earned gross profits of $29,452 and net profits of $19,018 from her photography business. Def.'s Statement at 1. Her profits dropped in 1994 after she became pregnant with her son Steven and decreased her workload. Pl.'s Opp'n to Mot. for Partial Summ. J. ("Pl.'s Opp'n") at 4. That year, she earned gross profits of $17,482 and net profits of $7,104. Def.'s Statement at 2. She continued her professional photography business after the birth of her son, but only on a limited, part-time basis. Pl.'s Opp'n at 4.
In 1998, Mrs. Groobert's gross profits had dropped to $5,504 with net profits of $2,083, but had increased in 1999 to $14,794 in gross profits and $5,740 in net profits. Def.'s Statement at 2.
The plaintiff alleges that Mrs. Groobert planned to return to work full-time in the fall of 2000, specializing in stock photography. Pl.'s Opp'n at 4. The plaintiff offers expert testimony to support his claim that Mrs. Groobert would have earned $250,000 a year within three to four years, ultimately earning between $250,000 and $400,000 a year in annual gross income from stock photography. Id. at 11, Ex. E (Feingersh Dep.) at 175. The plaintiff's experts also offer opinions regarding Mrs. Groobert's stock photography-related expenses. Id. at 16.
Jonathen Feingersh ("Mr. Feingersh"), the plaintiff's first expert, is the president and owner of his own production company, Jon Feingersh Photography. Id. Ex. E (Feingersh Dep.) at 5. He works with at least six agencies and has earned 100 percent of his income for the last 12 years from stock photography. Pl.'s Opp'n at 10. He attended the Illinois Institute of Technology, Syracuse University, and the Art Center College of Design. Id. Mr. Feingersh gives lectures across the country on the subject of stock photography and studies industry trends through current advertising and visuals from at least 60 different publications each month. Id. He watches stock agency websites, reads the Wall Street Journal and stock agency catalogues, and talks to other photographers on a regular basis. Id. Mrs. Groobert worked as Mr. Feingersh's photography assistant from 1987 to 1990 and she maintained a "mentor/mentoring relationship" with Mr. Feingersh until her death. Pl.'s Opp'n Ex. G (Feingersh Aff.) at 2; Mot. for Partial Summ. J. at 7.
James Pickerell, the plaintiff's second expert, is a stock photographer with more than 40 years of experience in the industry. Pl.'s Opp'n at 15. He is a partial owner of a stock photography agency named Stock Connection, which represents 250 to 300 photographers. Id. He published a book about the stock photography business called Negotiating Stock Photo Prices and he publishes a newsletter called Selling Stock. Pl.'s Opp'n Ex. L (Pickerell Aff.) at 2. He has conducted a survey for the last few years to calculate the average expenses of stock photographers. Pl.'s Opp'n at 16. Mr. Pickerell's 2001 survey, based on photographers' year 2000 income, estimated that the average expenses of a stock photographer are 43 percent of gross income or revenue. Mot. for Partial Summ. J. at 15. This number is based on responses from 97 stock photographers, 89 of whom provided figures relating to their expenses. Id.
The plaintiff's third expert is Richard Lurito, Ph.D. ("Dr. Lurito"), an economist who has testified at about 500 trials as an economic consultant. Mot. for Partial Summ. J. Ex. G (Lurito Dep.) at 3-4. Dr. Lurito relies solely on the testimony of Mr. Feingersh and Mr. Pickerell to calculate Mrs. Groobert's future net income. Mot. for Partial Summ. J. at 17.
On March 20, 2002, the defendant filed a motion for partial summary judgment seeking to prevent the plaintiff from collecting damages for Mrs. Groobert's lost future earnings. Id. at 1. The defendant contends that the plaintiff's experts are unreliable and that their testimony is therefore inadmissible at trial, thus leaving the plaintiff with insufficient evidence to support his claim for economic damages. Id. at 3. The court now turns to that motion.
1. Legal Standard for Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose ...