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.