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March 3, 2004.

JUDITH COTTON, individually and as Personal Representative of the Estate of Ralph Cotton, Plaintiff

The opinion of the court was delivered by: DEBORAH ROBINSON, Magistrate Judge


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. Page 2


  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 Page 3 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. Page 4

  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 began").*fn5

  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. Page 5 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 Page 6 competency that I could not imagine him getting back anywhere close to that threshold." Id. at 18. Plaintiffs offered no evidence at the hearing.

  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). Page 7

  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) Page 8 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. Id


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