Appeal from the Superior Court of the District of Columbia (CA-10733-02) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Belson, Senior Judge
Before FARRELL and RUIZ, Associate Judges, and BELSON, Senior Judge.
Appellant Christopher T. Young appeals the trial court's order granting summary judgment in favor of appellee Interstate Hotels & Resorts as a result of the trial court's granting of appellee's motion to strike the testimony of appellant's expert witness. We agree with the trial court that the proffered witness did not have the requisite knowledge to testify about the standard of care for effective hotel operations in support of appellant's theory that appellee was negligent because it did not have in effect a policy or procedure for using the freight elevator to extract injured persons from the hotel. Moreover, appellant did not act diligently to designate another witness with the needed expertise in a timely manner. Appellant's expert witness was qualified, however, as an expert in elevator operation, maintenance and design and thus possessed sufficient knowledge to opine on appellant's alternative theory that appellee was negligent, inter alia, because it failed to provide instructions for the safe operation of a freight elevator. Therefore, we reverse and remand for further proceedings consistent with this opinion.
The procedural history of this case dates from December 30, 2002, when appellant filed a complaint against appellee for negligence. The complaint, subsequently amended on February 5, 2003, alleged that on August 17, 2002, appellant, an emergency medical technician ("EMT"), responded to a call at appellee's Embassy Row Hotel located at 2015 Massachusetts Avenue, N.W. Upon appellant's arrival at the hotel, a hotel employee escorted him to the freight elevator, operated the elevator and took appellant down to an unconscious employee in the kitchen area. After evaluating the injured employee, appellant determined that he needed to return to the ambulance to obtain additional equipment to treat the employee. Appellant could not locate any hotel employee to assist him and, believing that the injured employee required immediate treatment, reentered the freight elevator and attempted to operate it himself. The freight elevator, which was not accessible to the general public, had two manually operated doors. The outside door was comprised of two parts: one that came down from the top, and the other that came up from the bottom. The inside door had to be pulled across in a horizontal direction. Appellant, unfamiliar with the operation of the elevator, was injured when the elevator door slammed shut on his finger.
Appellant asserted two theories of liability in his amended complaint. Count One alleged that appellee failed to provide safe elevator equipment; warn of the danger of operating the elevator; provide instructions for the operation of the elevator; and assist appellant with the operation of the elevator. Count Two alleged that appellee failed to train and supervise hotel employees in the operation of the elevator.
On April 11, 2003, an initial scheduling conference was held. The resulting scheduling order required appellant to designate expert witnesses by June 11, 2003. Appellant filed his Super. Ct. Civ. R. 26 (b)(4) statement on June 12, 2003, one day late, in which he identified Harold Rose as an expert witness. The scheduling order was subsequently amended on October 30, 2003, to extend the deadline for close of discovery to December 11, 2003, but the deadline for filing appellant's Rule 26 (b)(4) statement had already expired on June 11, 2003. On October 28, 2003, appellee filed its first motion to strike appellant's expert, Harold Rose. The trial judge initially assigned to this matter denied this motion due to appellee's failure to provide the hotel's elevator records prior to appellant's physical inspection of the elevator. The judge granted appellant leave to amend his Rule 26 (b)(4) statement once appellee provided the records and his expert had an opportunity to inspect the elevator.
On February 11, 2004, appellee filed its second motion to strike Mr. Rose's expert opinion on the basis that appellant had not supplemented Mr. Rose's expert designation after the discovery period had concluded. After initially granting appellee's second motion to strike Mr. Rose as an expert on March 1, 2004, the trial judge next assigned to this matter granted appellant's motion to reconsider his order on April 22, 2004, noting that the remedy was harsh, as it would most likely dispose of the entire litigation.
On September 14, 2004, approximately nine months after the close of discovery, appellee filed a third motion to strike Mr. Rose "for substantive reasons." The trial court issued an order on December 8, 2004, striking Mr. Rose's proffered testimony. In the interim, a September 28, 2004, pretrial conference had set the trial date for March 21, 2005. Appellant filed a motion on December 23, 2004, over one year after discovery ended, to modify the pretrial order to allow the naming of another expert witness, still unidentified at the time, and for reconsideration of the trial court's order striking Mr. Rose. This motion was denied by the trial court on February 8, 2005.
On March 15, 2005, the trial court granted appellee's third motion for summary judgment, which had been filed on January 7, 2005. The trial court concluded that without the benefit of an expert witness to testify about "the operation and maintenance of a non-public freight elevator, as well as a hotel's training of employees with regard to that elevator," appellant could not prove his case.
A timely appeal of the trial court's order granting summary judgment followed. Appellant contends that the trial court erred in its pretrial rulings by denying his motion to modify the pretrial order to allow the addition of an expert witness, as yet unnamed, to his Super. Ct. Civ. R. 26 (b)(4) statement that was incorporated into the pretrial statement, and granting appellee's motion to strike the proffered testimony of appellant's expert witness in its entirety.
"Summary judgment is appropriate only when the record, viewed in the light most favorable to the non-moving party, establishes that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Taylor v. Akin, Gump, Strauss, Hauer & Feld, 859 A.2d 142, 146 (D.C. 2004) (internal quotations and citations omitted). This court applies "the same substantive ...