The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff Matthew M. Hsieh brings this suit on behalf of himself and his minor daughter, Natalie T. Hsieh, against Defendants the United States of America and the General Services Administration ("GSA") (collectively the "Federal Defendants") and Consolidated Engineering Services, Inc. ("CESI") (together with the Federal Defendants, "Defendants"), a contractor that contracted with GSA to perform maintenance and repairs on the Heating Operation and Transmission District ("HOTD") Steam Distribution Complex ("SDC") located in Washington, D.C. and owned by the United States. Plaintiffs allege that they sustained severe burns when they were struck by a vapor emitted from a sidewalk grate as Mr. Hsieh pushed his daughter over the grate in a stroller and that their injuries were caused by Defendants' joint and several negligence.
Defendant CESI has brought a cross-claim against the Federal Defendants seeking indemnification and/or contribution in the event that any damages are imposed upon CESI based on Plaintiffs' claims. CESI has also asserted a counterclaim against Mr. Hsieh, alleging contributory negligence and seeking contribution from Mr. Hsieh in the event that damages are imposed upon CESI. The Federal Defendants have likewise asserted a cross-claim against CESI, seeking contractual and/or common law indemnity and/or contribution from CESI in the event that any damages are imposed upon the Federal Defendants.
Presently pending before the Court is the Federal Defendants'  Supplemental Motion for Summary Judgment, which focuses on the applicability of the discretionary function exception to the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 2671, et seq. The Federal Defendants argue that Plaintiffs' and CESI's remaining claims against the United States and GSA are barred by the discretionary function exception to the FTCA. CESI and Plaintiffs both oppose the Federal Defendants' motion. In addition, Plaintiffs have filed a  Motion to Strike Exhibits 7, 8 and 9 attached to the Federal Defendants' Supplemental Motion for Summary Judgment, which is opposed by the Federal Defendants. Plaintiffs contend that the exhibits should be stricken from the record because they contain new, previously undisclosed information that is beyond the scope of discovery in this case.
The Court has thoroughly reviewed the pending motions, the parties' responsive briefing as well as the attachments thereto, the relevant statutes and case law, and the entire record herein. For the reasons set forth below, Plaintiffs'  Motion to Strike Exhibits 7, 8 and 9 is DENIED. The Court, however, shall provide Plaintiffs and CESI an opportunity to conduct discovery with respect to the newly submitted exhibits to the extent the material contained therein is relevant to the Court's determination of whether the discretionary function exception applies.
In addition, with respect to the Federal Defendants'  Supplemental Motion for Summary Judgment, the Court finds that the Federal Defendants' decisions regarding the frequency of inspections and whether to warn the public of a hazardous condition at Manhole 42 are not exempt under the FTCA's discretionary function exception, and the Court therefore has jurisdiction to entertain Plaintiffs' claims and CESI's cross-claim to the extent both are based on such allegations. Accordingly, the Federal Defendants'  Supplemental Motion for Summary Judgment is DENIED with prejudice to the extent they argue that decisions regarding the frequency of inspections and whether to warn of a specific hazard present at Manhole 42 are subject to the discretionary function exception. The Court is inclined on the present record, however, to find that the Federal Defendants' decisions regarding the design of the SDC - including both decisions relating to physical alterations and the addition of new equipment - are exempt under the FTCA's discretionary function exception as well as decisions regarding the use of non-destructive examinations. Nevertheless, because this determination rests, at least in part, on the newly-submitted material objected to by Plaintiffs, the Court shall withhold making a final determination until Plaintiffs and CESI have had an opportunity to take discovery on the new material. Accordingly, the Federal Defendants'  Supplemental Motion for Summary Judgment is DENIED WITHOUT PREJUDICE to the extent they argue that the discretionary function exception applies to decisions relating to the SDC design and whether to use nondestructive examinations. The Federal Defendants may file a renewed motion on only this issue once the parties have had an opportunity to conduct discovery on the newly-submitted declarations.
The Court assumes familiarity with, and shall not repeat herein, the entire factual and procedural background of this case, which has been extensively discussed by this Court in its prior decision issued on August 7, 2008, see Hsieh v. Consolidated Eng'g Servs., Inc., 569 F. Supp. 2d 159 (D.D.C. 2008). The Court shall instead briefly summarize only those key facts necessary to provide the proper context for resolution of the parties' present motions. As the parties themselves have largely relied on the Court's previous factual findings in setting forth the general background facts relevant to this case, the Court shall do the same and shall cite to its August 7, 2008 Memorandum Opinion where appropriate.
In addition, the Court notes once again that it strictly adheres to the text of Local Civil Rule 7(h)(1). As such, in resolving the pending summary judgment motion, this Court "assumes 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)(1). In the instant case, the Federal Defendants have submitted a statement of material facts in support of their Supplemental Motion for Summary Judgment, and both Plaintiffs and CESI have responded with an opposing statement of material facts. Given the nature of the present inquiry, the parties' statements focus almost exclusively on the various conclusions reached by the parties' respective experts as to the likely causes of Plaintiffs' alleged injuries. Accordingly, while the parties continue to dispute the underlying merits of the various expert opinions regarding the potential cause(s) of the system failure that led to Plaintiffs' injuries, the Federal Defendants have - for the purposes of their present motion - refrained from challenging the validity of the conclusions reached by the Plaintiffs' and CESI's experts. As required, the Federal Defendants instead focus on the alleged causes and remedies identified by Plaintiffs' and CESI's experts and address whether the alleged theories of recovery in this case are barred by the discretionary function exception to the FTCA. As such, while the Court has relied on the parties' statements to identify the relevant portions of the experts' deposition testimony and reports, for clarity's sake, the Court shall cite directly to the record rather than to the parties' statements when setting forth the relevant expert opinions.
The instant lawsuit arises from alleged injuries sustained by Mr. Hsieh and his then three-and-a-half year old daughter, Natalie, on September 11, 2004, when Plaintiffs were walking near 10th Street and Pennsylvania Avenue, NW, in downtown Washington, D.C. Plaintiff noticed a vapor emanating from a grate in the sidewalk near where he was standing, which grate was located over a manhole - specifically, Manhole 42 - but "didn't think much of it." He subsequently walked over the grate while pushing his daughter in her stroller. Plaintiffs allege that they both suffered severe burns when they were struck by vapors*fn1 emitted from the grate over Manhole 42. Hseih, 569 F. Supp. 2d at 165-66.
Manhole 42 is part of the Steam Distribution Complex, referred to herein as the SDC, which consists of approximately seven miles of tunnels and five miles of direct-buried pipelines that supply 250-psi saturated (406 degrees F) steam to approximately 100 government buildings and monuments in downtown Washington, D.C. Id. at 167. At the time of the incident in question, CESI had assumed contractual responsibility for maintenance and repair services for the SDC. Id. at 167-68. Specifically, the SDC Contract delegated to CESI the responsibility for inspecting the SDC and performing preventative maintenance and repairs under $1,000, but provided that GSA retained responsibility for capital improvements and repairs over $1,000. Id. at 163, 168-69.
As this Court previously explained in its August 7, 2008 Memorandum Opinion, the parties appear to agree that Plaintiffs' injuries were likely caused by water getting into the vault in Manhole 42, reaching the level of the steam pipes, boiling, and creating vapor that escaped through the grate above Manhole 42. Id. at 170. A significant factual dispute exists, however, as to what initially caused the water to get into the vault in Manhole 42. See id. In particular, a genuine issue exists as to whether that water came from (a) a leaking or malfunctioning valve, (b) a larger systemic problem of water leaking from an external source into the SDC, or (c) both. Id. at 163. As the Court observed, this factual question is fundamental because identifying and repairing a leaking valve weld was arguably within the scope of responsibility delegated to CESI under the SDC, which included inspection, preventative maintenance, and minor repairs for all portions of the SDC. In contrast, identifying the source of recurrent water leaks into the SDC and preventing future leaks would undoubtably have been within the scope GSA's retained responsibility for and discretion over capital improvements and major repairs.
Despite further briefing by the parties, it is clear that a material dispute remains as to this key causal inquiry. Plaintiffs have retained two expert witnesses, William H. Bishop and Larry D. Smith, to opine on the possible causes of Plaintiffs' injuries and the actions that, if taken, may have prevented the emission of hot vapor from Manhole 42. CESI has also retained an expert witness, Joseph R. Reynolds.*fn2 Although the exact cause of the system failure may ultimately prove impossible to confirm given the lack of physical evidence in this case,*fn3 the parties' experts have each provided their conclusions on the likely causes of Plaintiffs' injuries. The Court shall briefly summarize each expert's testimony in turn below.
Mr. Bishop opines that Plaintiffs were injured when a steam line in Manhole 42 failed - either from corrosion or from malfunction of a pressure valve - thereby causing hot water to issue forth and splash out of the grate. See Fed. Defs.' MSJ, Ex. 5 (Feb. 2, 2007 Bishop Report at p. 1).*fn4 He concludes that in order to prevent leaks, such as that at issue, that appear to have occurred as the result of corrosion and which are unpredictable in nature, the SDC system "should have been designed so that escaping steam or hot liquids would be vented or directed to a safe location where persons such as the Hsiehs . . . would not be harmed." Id. For example, he suggests that the manhole should have been designed so that excess water was piped to an outside source, such as a storm drain or, if an outside source was not readily available, into the corner of a manhole. Fed. Defs.' MSJ, Ex. 5 (Bishop Dep. at 35:17-36:2). At deposition, Mr. Bishop further opined that the system should have been designed to prevent possible pipe breaches by placing the smaller pipes underneath the larger pipes. Id. at 56:23-57:4. Finally, Mr. Bishop suggests that: (a) the water that accumulated in the manhole from the failed steam line should have been "drained," either by a "passive" or "active" drain, see id. (Bishop Dep. at 29:21-23); and (b) pressure sensors should have been installed inside each connection or building, although he acknowledges that he is not aware whether such sensors were or were not installed at the time of the incident, id. at 30:3-15.
Mr. Smith, Plaintiffs' second expert, concludes that the emissions from Manhole 42 were likely caused either: (a) when a steam line/drip line failed as a result of corrosion and/or a failed weld, see Fed. Defs.' MSJ, Ex. 6 (Feb. 2, 2007 Smith Rep. at p. 2, ¶ 2); id. (Mar. 29, 2007 Smith Rep. at p. 4, ¶ 7); or (b) when water entered the manhole from an outside source and came into contact with the steam pipes, causing steam to emit out of the manhole, see id. (Mar. 29, 2007 Smith Rep. at p. 4, ¶ 7); id. (Apr. 23, 2007 Smith Rep. at p. 11, ¶ 12). Mr. Smith opines that the "steam system should have been designed and constructed so that the potential failure of a weld or valve would not result in the release of steam through a grate." Id. (Feb. 2, 2007 Smith Rep. at p. 3, ¶ 4). Specifically, he suggests that steel plates could have been used to cover the manholes or steam enclosures should have been employed around areas that were deemed most susceptible to failure. See id. (Smith Dep. at 33:20-34:8). In addition, he suggests that the following measures, if taken, may have prevented the steam line/drip line from failing and/or the accumulation of outside water in the manhole: (a) requiring increased inspections on the affected valves and piping, see id. (Mar. 29, 2007 Smith Rep. at p.4, ¶ 9); (b) requiring non-destructive (NDE) ...