United States District Court for the District of Columbia
March 3, 2004.
JUDITH COTTON, individually and as Personal Representative of the Estate of Ralph Cotton, Plaintiff
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant
The opinion of the court was delivered by: DEBORAH ROBINSON, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Judith Cotton brings this action individually and as the
personal representative of the Estate of Ralph Cotton, her late husband,
for damages stemming from injuries Mr. Cotton sustained while riding an
escalator at Defendant Washington Metropolitan Area Transit Authority
("WMATA") Reagan National Airport Metrorail station.*fn1 Second Amended
Complaint ¶ 1. Pending for consideration by the undersigned United
States Magistrate Judge is Defendant WMATA's Motion for Summary Judgment
(Docket No. 122). For the reasons discussed herein, the undersigned will
recommend that Defendant's motion be granted.
On April 25, 1999, Plaintiff Judith Cotton and her husband, Ralph
Cotton, rode Metrorail to the Reagan National Airport Metrorail station,
intending to depart National on a return flight to their home in New
York.*fn2 Plaintiff and Mr. Cotton boarded escalator number three, a
descending escalator at the north end of the Metrorail station.*fn3
While riding the escalator, Mr. Cotton fell and sustained injuries.
Plaintiff asserts that while on the escalator, Mr. Cotton "was exposed to
the risk of serious bodily injury by reason of a dangerous, defective
condition which existed in the Defendant's escalator system which
required Defendant [sic] properly care for, maintain and monitor the
escalator to prevent injury to users, and to adequately warn of the
danger inherent in said escalator." Second Amended Complaint ¶ 3.
Plaintiff contends that Defendant was aware of the defect but
"negligently failed to remedy this condition and/or to properly maintain
and monitor the condition, and negligently failed to warn the plaintiff
of the hazard." Id. ¶ 4. In Count One of the two-count Second
Amended Complaint, Plaintiff asserts a survival action on behalf of Mr.
Cotton who, at the time of his death, had pursued a "claim for damages
for failure of the Defendant to properly maintain and monitor its
metrorail escalator system of which the escalator which injured him was a
part." Id ¶ 8. In Count Two, Plaintiff asserts a claim for loss
of consortium. Id. ¶ 10.*fn4
On August 20, 2001, the undersigned entered an Initial Scheduling Order
which provided, inter alia, for a period of discovery of eight months,
and granted each side up to ten non-expert depositions and 40
interrogatories (Docket No. 10).
One month later, Plaintiffs moved for a protective order to bar the
deposition of Plaintiff Ralph Cotton on the ground that "Mr. Cotton [was]
very confused about his whereabouts and his memory [was] overtly
compromised." Points and Authorities in Support of Plaintiffs' Motion for
Protective Order (Docket No. 20) at 1. In the memorandum in support of
their motion, Plaintiffs asked that the deposition of Mr. Cotton be
"delay[ed] . . . until such time as an appropriate assessment of this
plaintiffs competency to give testimony has been determined." Id at 2.
Defendant opposed the motion for protective order, moved to compel the
deposition and requested entry of order directing the sequence of other
depositions; in the alternative, Defendant moved for an independent
medical examination of Plaintiff Ralph Cotton's competency (Docket Nos.
18, 19). On October 11, 2001, the undersigned granted both Plaintiffs'
motion for a protective order and Defendant's motion for an independent
medical examination of Plaintiff Ralph Cotton for the limited purpose of
an evaluation of his competency (Docket No. 21). The undersigned further
ordered that discovery by both sides be stayed pending the determination
of Mr. Cotton's competency.
In the two-month period from the entry of the Initial Scheduling Order
until the entry of the order staying discovery pending the determination
of Plaintiff Ralph Cotton's competency, the only discovery taken by
Plaintiffs was a single deposition. Certificate Regarding Discovery
(regarding notice of the deposition of T. L. Royce) (filed September 12,
2001). During that two-month period, Plaintiffs' counsel failed to
propound any written discovery requests. Indeed, at no time since this
action was commenced has Plaintiffs' counsel served interrogatories,
requests for production of documents, or requests for admissions.
Defendant's Opposition to the Plaintiff's Motion to Compel Discovery
(Docket No. 53) at 3 ("plaintiffs have never propounded any discovery
request to WMATA under F.R.Civ.P. Rule 33 and 34 since this case
On December 18, 2001, the undersigned, having received the report of
the independent medical examination, ordered that the parties meet and
confer regarding the application of Rule 17(c) of the Federal Rules of
Civil Procedure (Docket No. 31). The parties were unable to agree, and on
January 7, 2002, Defendant filed a Motion to Dismiss Claims of Ralph
Cotton, or, Alternatively, for the Appointment of an Attorney at Law as
Guardian [ad] Litem (Docket No.
34). The undersigned again ordered counsel to meet and confer regarding
the status of discovery and Plaintiff Ralph Cotton's competence (Docket
No. 52). While Plaintiffs' counsel did not intend to contest a finding
that Plaintiff Ralph Cotton was incompetent, the parties disagreed
regarding the appropriate person to represent Mr. Cotton's interests in
the litigation.*fn6 On September 16, 2002, the undersigned determined
"that notwithstanding the apparent stipulation regarding the incompetence
of plaintiff Ralph Cotton, a competency hearing will be conducted so that
the Court may make a more informed determination regarding the course of
further proceedings." September 16, 2002 Order (Docket No. 58). The
assigned district judge denied as moot Plaintiffs' motion for
reconsideration of the undersigned's September 16, 2002 Order (Docket
No. 63). August 21, 2003 Order (Docket No. 125).
During the competency hearing, held on September 20, 2002, Defendant
called one witness, Dr. Lanning E. Moldauer. Dr. Moldauer testified that
Plaintiff Ralph Cotton lacked the competency to provide truthful
testimony either in a deposition or at trial, or to respond to any
discovery requests. See Transcript of Competency Hearing Before the
Honorable Deborah A. Robinson United States Magistrate Judge (Docket No.
69) at 15. Among Dr. Moldauer's conclusions was that Plaintiff Ralph
Cotton's short-term and long-term memory were "both extremely poor . . .
bottom one percent or less." Id. at 14. Dr. Moldauer further testified
that Plaintiff Ralph Cotton's "[cognitive deficits] [are] so far below
even a disputable threshold of
competency that I could not imagine him getting back anywhere close to
that threshold." Id. at 18. Plaintiffs offered no evidence at the
On September 25, 2002, the undersigned granted Defendant's motion for
the appointment of an attorney at law to serve as guardian ad litem
(Docket No. 60). The undersigned also scheduled a status hearing and
scheduling conference for October 24, 2002, and required Plaintiffs'
counsel of record, counsel for Defendant, and the appointed guardian to
appear. In addition, the undersigned ordered counsel and the guardian to
meet and confer in advance of the hearing. Id. In order to allow the
appointed guardian the opportunity to meet with Plaintiff Ralph Cotton and
confer with counsel, the undersigned continued the scheduling conference
until January 9, 2003 (Docket Nos. 73, 74, 75, 76, 77).
At the October 24, 2002 conference, the undersigned vacated the stay of
discovery, bifurcated discovery into liability and damages phases, and
ordered that the liability phase proceed first. The undersigned permitted
each side seven non-expert depositions, and set dates for the parties'
Rule 26(a)(2) disclosures. The undersigned set July 1, 2003 as the date
for the close of discovery. The undersigned further ordered that
"plaintiffs . . . serve their answers to defendant's interrogatories by
February 14, 2003, and that further discovery is stayed pending service
of those answers."*fn7 January 13, 2003 Order (Docket No. 79).
On March 3, 2003, Defendant filed a motion to compel (Docket No. 81),
and maintained that the "answers to interrogatories and responses to
requests for production provided by both plaintiffs were evasive and
non-responsive, rather than good faith responses following a due
diligence investigation[.]" Defendant's Motion [to] Compel Discovery and
for Sanctions at 2. The undersigned granted Defendant's motion to compel
on April 9, 2003, and ordered Plaintiffs to "serve complete, responsive
answers to Defendant's interrogatories . . . no later than Wednesday,
April 16, 2003[.]" Docket No. 88.*fn8 As of at least October 7, 2003,
Plaintiff had not done so. Defendant's Reply to Plaintiff's Opposition to
Motion for Summary Judgment ("Defendant's Reply") (Docket No. 136) at 8.
On April 9, 2003, the undersigned also ordered counsel to meet and
confer regarding the scheduling of depositions. April 9, 2003 Order
(Docket No. 88) at 2. Thereafter, Plaintiffs counsel, without
explanation, walked out of a meet-and-confer session with counsel for
Defendant, refusing to continue their discussion regarding the scheduling
of depositions. Defendant's Opposition, Transcript of the Conference of
Parties to Schedule Depositions (Exhibit B) at 16. Next, Plaintiff's
counsel again failed to consent to a protective order which would have
allowed Defendant to produce the proprietary documents of Schindler
Elevator Corporation, which Defendant identified in its initial
disclosures. Id. at 8. On June 20, 2003, the undersigned granted
Defendant's motion for the protective order. June 20, 2003 Order (Docket
No. 108). On June 24, 2003, the undersigned denied Plaintiff's motion to
amend the scheduling order to allow an additional three weeks to serve
Plaintiff's liability experts' Rule 26(a)(2)
reports, having found that the "proffered grounds fall far short of
a showing of `excusable neglect[.]'" June 24, 2003 Order (Docket No.
114). The undersigned granted Defendant's motion to preclude Plaintiff
from calling any expert witness with respect to the issue of liability.
CONTENTIONS OF THE PARTIES
Defendant moves for summary judgment in its favor on three grounds: (1)
Plaintiff is unable to establish a prima facie case of Defendant's
negligence; (2) there is no evidence that WMATA had prior notice of any
defect or malfunction on the escalator; and (3) Plaintiff's description
of the acceleration of the right handrail prior to Mr. Cotton's fall is
"impossible."*fn9 More specifically, Defendant submits that "[n]o one,
including [Plaintiff], is able to state why Ralph Cotton fell on
escalator no. 3 at National Airport Metrorail station on April 25,
1999[,]" and that "[w]ithout evidence of why Ralph Cotton fell,
[Plaintiff] cannot prove a malfunction or defect which caused Mr.
Cotton's fall." Defendant's Memorandum of Points and Authorities in
Support of its Motion for Summary Judgment ("Defendant's Memorandum") at
3-4; see also id at 5. Defendant further submits that Plaintiff cannot
show that Defendant had prior notice of a malfunction or defect, and "[is
unable] to rebut the testimony of James Winn, WMATA's escalator
engineering expert, that the escalator was in good condition, in
compliance with all applicable safety codes, and that all maintenance on
the escalator before the accident was timely,
appropriate and non-negligent." Id. at 4; see also id at 9-10. Finally,
Defendant submits that the unrebutted testimony of its expert witness is
that "the very design of the escalator does not permit the right handrail
event which Judith Cotton now claims occurred on the escalator." Id. at
Plaintiff opposes Defendant's motion on two grounds. First, Plaintiff
suggests that a factual dispute exists with respect to (1) whether Mr.
Cotton "was caused to be catapulted down the descending escalator path by
a malfunction in the mechanism of the machine";*fn10 and (2) the design
of the escalator, "since industry standards belie Mr. Winn's testimony."
Opposition to Defendant WMATA's Motion for Summary Judgment ("Plaintiff's
Opposition") (Docket No. 130) at 1-2; see also Points and Authorities in
Support of Plaintiffs Opposition to WMATA's Motion for Summary Judgment
("Plaintiff's Memorandum") at 1-5. Plaintiff includes a separate
"Statement of Material Facts Which Raise Disputed Issues Requiring Jury
Resolution" ("Plaintiff's Statement"). Plaintiff's Statement is a
ten-page, 52-paragraph narrative of Plaintiff's contentions. In an effort
to support these contentions, Plaintiff cites, and offers as exhibits,
the transcripts of her deposition and the deposition of Terry L. Royce, a
Metrorail station attendant; Mr. Cotton's medical records; articles
published in trade journals; a Washington Times article; two affidavits
filed by Defendant in support of its motion for summary judgment; two
graphs; and copies of docket sheets, memoranda, orders and transcripts
with respect to proceedings in this action.
Second, Plaintiff requests that discovery be reopened, and that
Defendant be ordered to "fully comply with Rule 26(a)(1) and the
previously vacated Rule 30(b)(6) Notices of Depositions seeking
documents, [sic] basic escalator information[.]" Plaintiff's Opposition
at 2. Plaintiff submits that "Federal Rule 56(f) should prompt this court
to reopen discovery to depose, [sic] My [sic] Young, Mr. Velesquez, Mr.
Pope, Mr. Watson and Mr. Winn, since meaningful discovery into WMATA's
basic escalator procedures was never allowed to occur in this
litigation." Plaintiff's Memorandum at 5; see also Plaintiff's Statement
Defendant, in its reply, maintains that there is no evidence in the
record of any escalator malfunction at the time Mr. Cotton sustained his
injuries, and that the newspaper and trade journal articles regarding the
operation of escalators other than the one on which Mr. Cotton rode are
immaterial. Defendant's Reply at 12-18. Defendant also maintains that
Plaintiff relies largely upon the account of events she offered when she
was deposed during the course of this litigation, and that her account is
not credible. Id. at 22-23.
Defendant suggests that Plaintiff's claim that she and Mr. Cotton were
denied the opportunity to take discovery is unfounded, and that the
incomplete discovery about which Plaintiff complains was caused by
Plaintiff's counsel's conduct. Id. at 1-12.
Summary judgment shall be granted "if 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 Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Diamond v. Atwood. 43 F.3d 1538, 1540
(D.C. Cir. 1995). The nonmoving party cannot merely rest upon the
allegations contained in the complaint, and instead, must identify the
specific facts which demonstrate that there is a genuine issue for trial.
Anderson, 477 U.S. at 248. The burden is upon the nonmoving party to
demonstrate that there are material facts in dispute. Celotex Corp. v.
Catrett, 477 U.S. 317. 322-323 (1986). There is a genuine issue of
material fact "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Material facts are in dispute if they are capable of affecting the
outcome of the suit under governing law. Id.
In the determination of a motion for summary judgment, all evidence and
inferences to be drawn from the underlying facts must be viewed in the
light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 587 (1986); United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962). The "evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in [her] favor." Anderson, 477 U.S. at 255; see also Bayer v.
United States Dept. of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992).
However, the nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita, 475 U.S.
at 586. Rather, "the nonmoving party must come forward with `specific
facts showing that there is a genuine issue for trial.'" Matsushita, 475
U.S. at 587 (quoting FED. R. CIV. P. 56(e)).
Moreover, Rule 56(e) of the Federal Rules of Civil Procedure provides,
in relevant part:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations or
denials of the adverse party's pleading, but
the adverse party's response, by affidavits or
otherwise provided in this rule, must set forth
specific facts showing that there is a genuine
issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall
be entered against the adverse party.
FED. R. CIV. P. 56(e). The nonmoving party must therefore
go beyond the pleadings and by her own affidavits, or
by the "depositions, answers to interrogatories, and
admissions on file," designate "specific facts showing
that there is a genuine ___ issue for trial." . . .
Rule 56(e) permits a proper summary judgment motion to
be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere
pleadings themselves, and it is from this list that
one would normally expect the nonmoving party to make
Celotex, 477 U.S. at 324 (emphasis added).
The moving party is "entitled to judgment as a matter of law" against
"a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Waterhouse v. District of
Columbia. 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex, 477 U.S.
at 322). The evidence that the party offers to make the requisite showing
must be evidence of the character which would be admissible. Simpkins v.
Washington Metro. Area Transit Auth., 2 F. Supp.2d 52, 56-57 (D.D.C.
1998); see also Stuart v. General Motors Corp. 217 F.3d 621, 635 n.20
(8th Cir. 2000) ("To be considered on summary judgment, documents must be
authenticated by and attached to an affidavit made on personal knowledge
setting forth such facts as would be admissible in evidence or a
deposition that meets the requirements of FED. R. CIV. P. 56(e).
Documents which do not meet those requirements cannot be considered.");
Carmona v. Toledo. 215 F.3d 124, 131 (1st Cir. 2000) (finding that the
"failure to authenticate precludes
consideration of their supporting documents" where instead of filing an
"authenticating affidavit complying with Rule 56(e) to support [the]
summary judgment motion[,]" the movant "simply appended a purported copy
of the investigation file-unsworn, uncertified, and, at first,
untranslated-to the motion.").
In addition, Local Civil Rule 7(h) provides:
Each motion for summary judgment shall be accompanied
by a statement of material facts as to which the
moving party contends there is no genuine issue, which
shall include references to the parts of the record
relied on to support the statement. An opposition to
such a motion shall be accompanied by a separate
concise statement of genuine issues setting forth all
material facts as to which it is contended there
exists a genuine issue necessary to be litigated,
which shall include references to the parts of the
record relied on to support the statement. . . . In
determining a motion for summary judgment, the court
may assume that facts identified by the moving party
in its statement of material facts are admitted,
unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion.
LCvR 7(h) (emphasis supplied); see also LCvR 56.1. The District of
Columbia Circuit has held that "[i]f the party opposing the motion fails
to comply with this local rule, then `the district court is under no
obligation to sift through the record' and should `[i]nstead . . . deem
as admitted the moving party's facts that are uncontroverted by the
nonmoving party's Rule [LCvR 7(h)] statement.'" Securities and Exch.
Comm'n v. Banner Fund Int'l. 211 F.3d 602
, 616 (D.C. Cir. 2000) (citation
omitted). The District of Columbia Circuit "[has] explained . . . that
the `the procedure contemplated by the [local] rule . . . isolates the
facts that the parties assert are material, distinguishes disputed from
undisputed facts, and identifies the pertinent parts of the record."
Burke v. Gould. 286 F.3d 513
, 517 (D.D.C. 2002) (quoting Gardels v.
Cent. Intelligence Agency. 637 F.2d 770, 773 (D.C. Cir. 1980)). This
circuit has affirmed the grant of
summary judgment where the nonmoving party failed to cite any evidence in
the record, and in the statement of genuine factual issues, "did not set
forth specific, material facts, but simply asserted, without citing
evidence in the record, that there was a disputed issue[.]" Burke. 286
F.3d at 518 (quoting Tarpley v. Greene. 684 F.2d 1, 7 (D.C. Cir. 1982)).
Finally, Rule 56(f) of the Federal Rules of Civil Procedure provides
[s]hould it appear from the affidavits of a party
opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to justify
the party's opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other
order as is just.
FED. R. CIV. P. 56(f).
Compliance with LCvR 7(h)
Defendant supports its motion for summary judgment with a statement of
material facts prepared in the manner prescribed by Local Civil Rule
7(h). The undersigned finds, however, that Plaintiff has failed to comply
with the Local Civil Rule 7(h) requirement that an opposition to a motion
for summary judgment "shall be accompanied by a separate concise
statement of genuine issues setting forth all material facts as to which
it is contended there exists a genuine issue necessary to be
litigated[.]" Indeed, Plaintiff makes no effort to identify any "genuine
issues," and instead, offers only a narrative account of Mr. Cotton's
fall, his injuries and course of treatment, and press and trade journal
accounts regarding escalator safety.*fn11 Plaintiff thereby
fails to "[isolate] the facts that [she asserts] are material, and
[distinguish disputed from undisputed facts.]" Burke. 286 F.3d at 517.
Comparable deficiencies have been deemed to warrant the exercise of
discretion to treat the movant's statement of material facts as
conceded. E.g. Jackson v. Finnegan. Henderson. Farabow. Garrett &
Dunner. 101 F.3d 145, 151 (D.C. Cir. 1996) (statement of a nonmovant
"[r]eplete with factual allegations not material to . . . substantive
claims and repeatedly blending factual assertions with legal argument"
does not satisfy the purposes of the local rule); Mack v. Strauss.
134 F. Supp.2d 103, 108 (D.D.C. 2001) (nonmovant's statement "is riddled
with self-serving, conclusory statements[,]" and for that and other
reasons, cannot serve to refute movant's specific factual assertions).
Should the court decline to exercise its discretion to treat the movant's
statement of facts as conceded, the undersigned recommends that
Defendant's motion for summary judgment be granted, and Plaintiff's
request to reopen discovery be denied for the further reasons discussed
Evaluation of the Merits of Defendant's Motion and Plaintiff's
The undersigned finds that Plaintiff has failed to point to any
evidence in the record of either (1) a defective condition on the
escalator Mr. Cotton was riding at the time of the accident, or (2)
Defendant's notice of any such defective condition. "The plaintiff in a
negligence action bears the burden of proof on three issues: the
applicable standard of care, a deviation from that standard by the
defendant, and a causal relationship between that deviation and the
injury." Washington Metropolitan Area Transit Authority v. Jeanty.
718 A.2d 172, 173 (quoting Toy v. District of Columbia. 549 A.2d 1. 6
(D.C. 1988)): see also Youssef v. 3636 Corp. 777 A.2d 787, 792 (D.C.
2001) (holding that "generally, in order to prevail on a claim of
negligence, the plaintiff must establish a duty of care, a deviation from
that duty, and a causal relationship between that deviation and an injury
sustained by the plaintiff). A court may properly grant summary judgment
where a plaintiff has failed to offer expert testimony establishing the
standard of care, a deviation from that standard of care by the defendant
or the cause of the escalator accident. Crenshaw v. Washington Metro.
Area Transit Auth. 731 A.2d 381 (D.C. 1999).
For the reasons offered by Defendant, the undersigned finds that there
is no evidence in the record of any defect or malfunction of escalator
number three at the Reagan National Airport Metrorail station on April
25, 1999, the day Mr. Cotton fell. Defendant relies principally upon the
affidavit of James B. Winn, an escalator technical consultant who was
employed as WMATA's Superintendent, Elevator/Escalator Office, from 1991
through 1995. Mr. Winn, based on his personal knowledge, asserts
7. Before April 25, 1999, the escalator had been
recently and properly maintained during inspections on
March 23, 1999 and April 12 through 13, 1999, and the
escalator was determined to be in good, sound
operating condition and performing in accordance with
its design requirements at the conclusion of each
inspection. The maintenance provided was not negligent
and was fully in compliance with applicable codes and
the manufacture's design and performance
requirements. On April 12 and 13, 1999, an annual
inspection was performed on the escalator which would
include every component of the escalator including the
handrails and steps drives, the handrail tension and
tracking, guide rails, motor chains and speed
monitors. That inspection was performed in compliance
with the applicable ASME A17.1 Code, as applicable in
1999, and as required by Schindler Elevator
Corporation's Preventative Maintenance Procedures.
8. The condition of the escalator immediately
following the April 25, 1999, accident involving Ralph
Cotton's fall showed that Escalator No. 3 was properly
maintained, operating normally and in accordance with
all design and operating requirements established by
the manufacturer and WMATA, and did not require any
adjustment or repair to meet the A 17.1 Code
requirements. The escalator continued to operate
throughout the April 25, 1999 incident which indicates
no safety defects in the system, the post-accident
inspection showed no problems, and the escalator did
not require any significant repair for more than 4
months following April 25, 1999.
Defendant's Memorandum, Affidavit of James B. Winn ("Winn Affidavit")
Additionally, Mr. Winn reviewed the transcript of the deposition of
Plaintiff, and states
6. The operation of Escalator No. 3 described by
Judith Cotton during her deposition on September 18,
2001 could not have occurred in the manner described
by her, and could not have caused Mr. Cotton's fall on
the escalator. Mrs. Cotton's description of the rapid
acceleration of the right handrail in relation to the
step, as the escalator continued to operate, is
impossible, because the step and handrail drive
mechanisms are mechanically linked, and the movement
of the handrail in that manner is inconsistent with
the design of the escalator and its continuing
operation. The step and handrail drive mechanisms of
Escalator No. 3 are connected to a common motor and
gear system, which structurally connects the steps and
the handrail and, by design, that system requires that
the steps move at the same rate of speed as the
handrail. Any failure involving the handrail drive
could not result in the handrail rapidly accelerating
to a rate of speed faster than the speed of the
steps. Additionally, according to Mrs. Cotton, Ralph
Cotton was not holding the right-side handrail prior
to the time of his fall.
Winn Affidavit ¶¶ 5-6. In sum, Defendant has offered competent
evidence that the escalator in question was inspected and maintained in
accordance with all applicable standards; there is no evidence of any
defect or malfunction; and the escalator handrail could not have operated
in the manner described by Plaintiff.
Plaintiff does not, as Rule 56(e) of the Federal Rules of Civil
Procedure requires, "set forth specific facts showing that there is a
genuine issue for trial." Instead, Plaintiff offers a version of events
unsupported, and in some instances, contradicted, by the evidence in the
With respect to her account of the manner in which Mr. Cotton sustained
his injuries, Plaintiff offers (1) the transcript of her deposition, and
(2) the affidavit of Michael Dennis, M.D., one of Mr. Cotton's treating
physicians, who relies upon what "Mrs. Cotton told me[.]" Plaintiffs
Opposition, Affidavit of Michael W. Dennis, M.D. (Exhibit 3) ¶¶ 3, 4,
6. However, it is settled that such "self-serving" testimony, standing
alone, "will not protect the non-moving party from summary judgment."
Carter v. George Washington University. 180 F. Supp.2d 97, 111 (D.D.C.
2001): see also Haynes. 279 F. Supp.2d at 6 (citing Greene v. Dalton.
164 F.3d 671, 675 (D.C. Cir. 1999)) ("The District of Columbia Circuit
has stated that the non-moving party may not rely solely on mere
conclusory allegations."). Moreover, Dr. Dennis' affidavit is not based
on his personal knowledge, and accordingly, lacks probative value. FED.
R. CIV. P. 56(e)("[s]upporting and opposing affidavits shall be made on
personal knowledge"); see Benn v. Unisys Corp. 176 F.R.D. 2, 4-5 (D.D.C.
1997). In any event, Plaintiffs account of the manner in which Mr. Cotton
fell, even if credited, is not probative of the issue of whether there
was a defect or malfunction of the escalator of which WMATA had notice,
and which was the proximate cause of his unfortunate injuries. Crenshaw.
731 A.2d at 382.
With respect to her claim regarding a defect or malfunction of
escalator number three at the airport Metrorail station on April 25,
1999, Plaintiff fares no better. Plaintiff offers only newspaper trade
journal articles and graphs as evidence of a defect or malfunction. The
undersigned finds that the articles and graphs are not competent
evidence, and that Plaintiffs showing is insufficient to defeat summary
judgment. Plaintiff has made no effort to demonstrate that the articles
and graphs are relevant, material, authentic, and otherwise admissible.
Indeed, all the articles and graphs appear to be inadmissible hearsay.
Plaintiff fails to identify the source
of the graphs; the reports of testing of "WMATA escalators" are not
material to the operation of the escalator number three on April 25,
1999; and the claim of Mr. Winn's supposed bias is entirely speculative.
Even assuming, arguendo. that Plaintiff proffered competent evidence of
the existence of a defective condition on the escalator which caused Mr.
Cotton to fall, Defendant would nonetheless be entitled to summary
judgment, as there is no evidence in the record that Defendant breached
the applicable standard of care, or that Defendant had notice of the
defective condition. Crenshaw, 731 A.2d 381, 383 (D.C. 1999)(finding that
the court failed "to see how a jury, in the absence of expert testimony
or some other evidence of a violation of an established standard of
care, can conclude that the jerking motion in this case, as opposed to
any other jerking motion, is the result of negligence on the part of
[WMATA]."); Dickens v. Clyde McHenry, Inc. 762 F. Supp. 400, 402 (D.D.C.
1991) (stating that "[i]n order to make out a prima facie case of
liability based on the existence of a dangerous condition, the plaintiff
has the burden of showing that the party against whom negligence is
alleged had notice of that condition.").
Plaintiff's Rule 56(f) Request to Reopen Discovery
To the extent that Plaintiff, through her opposition to Defendant's
Motion for Summary Judgment, seeks to reopen discovery pursuant to
Federal Rule of Civil Procedure 56(f), said
request should be denied.*fn13 The course of discovery herein makes
evident that both sides have had to conduct discovery. In sum, the record
reflects that notwithstanding the stay of discovery occasioned by
proceedings with respect to Plaintiff Ralph Cotton's incompetency,
Plaintiffs' counsel has had the opportunity to propound interrogatories,
requests for production of documents and requests for admissions, but has
inexplicably refrained from doing so; to receive engineering documents
which were identified by Defendant in its initial disclosures, but
declined to agree to the protective order which would have allowed
Defendant to produce the documents; to take up to seven depositions, but
proceed with only one. Further, the record reflects that after the
undersigned denied without prejudice Plaintiff's motion to compel
Defendant's compliance with the initial disclosure requirements of Rule
26(a)(1), Plaintiff never renewed her requests. Significantly, Plaintiff
never propounded any discovery requests upon Defendant seeking the
documents she now complains were wrongly withheld. See Defendant's
Opposition to Plaintiff's Motion for a Protective Order (Docket No. 19) at
5; see also Defendant's Reply at 12; May 28, 2003 Memorandum Opinion and
Order at 10.
Moreover, Plaintiff has failed to establish any nexus between the
depositions Plaintiff wishes to take (see Plaintiff's Opposition at 5)
and the development of "facts essential to justify the party's
opposition[.]" FED. R. CIV. P. 56(f). Instead, Plaintiff appears to
discovery as a means to shift Plaintiff's burden of proof to Defendant.
See, e.g. Plaintiff's Opposition at 5 ("On its face, without any
ESCalibrator testing, there is no factual basis to conclude, as a matter
of law, that WMATA Escalator No. 3 performed without a speed deviation on
April 25, 1999."). An order allowing discovery pursuant to Rule 56(f)
would, in the context of this litigation, amount to little more than a
For the foregoing reasons, it is, this 3rd day of March, 2004,
RECOMMENDED that Defendant WMATA's Motion for Summary Judgment (Docket
No. 122) be GRANTED and that judgment be entered for Defendant with
respect to all claims asserted in the Second Amended Complaint.*fn14
Within ten days after being served with a copy, either party may file
written objections to this report and recommendation. The objections
shall specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for the
objection. In the absence of timely objections, further review of issues
decided by this report and recommendation may be deemed waived.