Appeal from the Superior Court of the District of Columbia (CAB 654-05) (Hon. Ronna Lee Beck, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Argued June 3, 2009, Re-argued May 11, 2010
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and FARRELL, Senior Judge.
Opinion for the court by Associate Judge THOMPSON.
Concurring opinion by Senior Judge FARRELLat p. 23.
After a five-day trial, a jury determined that defendant/appellee District of Columbia Housing Authority ("DCHA") was not responsible for injuries to five-year-old Sullivan Jackson (including burns to the child's hand and arm) caused by an electric shock she received after inserting a lamp plug into a wall outlet in the apartment she shared with her mother, Kendra Brooks. On appeal, Brooks and Jackson raise a number of claims of error with respect to the trial court's evidentiary rulings and jury instructions. As to those claims, which we shall discuss only briefly, we discern no error. Appellants also contend they are entitled to a new trial on the basis of documents that DCHA failed or refused to produce during discovery and trial-documents which DCHA acknowledged it possessed only in the course of post-trial Freedom of Information Act ("FOIA") proceedings, and which appellants acquired only after the trial court, upon a limited remand from this court, found that the documents were not protected from disclosure under the so-called "work product" doctrine.*fn1 We conclude that a remand is required so that the trial court may determine in the first instance whether a new trial is warranted in light of the newly produced documents.
Appellants' theory at trial was that DCHA was negligent and breached its contractual obligations as landlord in allowing the walls of appellants' apartment to become water-logged, causing the wall outlet in question to emit a powerful electric current when Jackson plugged a lamp into the outlet on September 27, 2002. Brooks testified that, prior to and following the September 27, 2002 incident, she had experienced problems with water leakage and damage in the apartment. On or about June 2, 2002, Brooks discovered that "when you ran the bathtub upstairs, water would leak through the light fixture in the kitchen," causing a "flood" in her living room. She testified that a DCHA maintenance employee investigated the problem and discovered that, in addition to the leaking electrical lights, a pump in the pantry was spraying water, creating puddles in the living room and a pool that rose to the level of the baseboards in the pantry. The maintenance employee informed Brooks that "water at that level on the baseboards" indicated "buildup in the walls," and that the only solution was to tear the walls down. Following up on instructions she received from the maintenance employee and the residential manager, Brooks submitted a work order for DCHA to perform repairs and to plaster her walls. However, when the plasterer arrived, he made no repairs, reiterating that "the walls . . . had to come down and there was nothing he could do." Brooks testified that, between June 2 and September 27, 2002, the living room walls-including the wall around the outlet that delivered the shock to Jackson-developed water damage to the point where they looked "soft" and "like silly putty." In early October 2002, about five days after Jackson was injured, there was a severe sewage backup in the apartment that required the family to evacuate pursuant to DCHA orders.
Appellants offered the expert testimony of Roger Boyell, an electrical engineer, who went to the apartment in August 2005 to inspect the outlet and the lamp plug involved in the electric shock. On the basis of his inspection, Boyell concluded that "water had been continually dripping in or standing in or around" the outlet box (which he also referred to as the "receptacle") in question. He determined that the "metal parts" of the receptacle had corroded; that there were ripple-marks within the receptacle, a condition that is "[n]ot at all" normal and indicates the presence of liquid; and that there were cavities, which could "fill up" with water, as well as mold- produced discoloration in the wall that housed the outlet. In contrast, Boyell found "nothing remarkable about the [lamp] plug" (which Brooks had saved even though the lamp itself had been lost after being placed in storage). He therefore concluded that the water in the receptacle, not a defective lamp, caused Jackson's injuries, explaining that when the child attempted to plug in the lamp, "water [that] had been sitting in the receptacle . . . or behind the receptacle . . . short circuited, shocked her, boiled out, spurted and burned her."
DCHA's electrical-engineering expert, Christoph Flaherty, was in the apartment on October 11, 2005, and November 9, 2005, and also inspected the wall, outlet, and plug. In addition to his other testimony, which we discuss infra, Flaherty testified that any water damage to the wall and outlet had resulted from vandals taking apart and stealing plumbing fixtures after Brooks and her family had vacated the apartment (vandalism that commenced well after the September 27, 2002 incident, but before Boyell conducted his inspection). Although Flaherty stated on direct examination that he could not opine as to whether the lamp cord or plug caused or contributed to the shock, he testified on cross-examination that the plug exhibited burn marks, which were "evidence of an electrical short circuit having taken place in the plug itself."
Appellants first complain that the trial judge refused to strike Flaherty's "surprise testimony" about the condition of the lamp plug-testimony suggesting that the plug might have caused or contributed to the shock-even though DCHA had not indicated in its Rule 26 (b)(4) statement or in the parties' joint pretrial statement that Flaherty would testify about the plug. However, a party need not "describe, in a Rule 26 (b)(4) statement, every possible direction his expert's testimony could take." Weiner v. Kneller, 557 A.2d 1306, 1310 (D.C. 1989). We "have generally allowed experts to state the natural concomitants of their arguments, including rebuttals of contrary expert testimony, when [we] have been satisfied that such testimony was of a piece with the original theory" stated in the 26 (b)(4) statement. Id. Flaherty's testimony about the damage to the plug rebutted Boyell's contrary assertions that the lamp plug was unremarkable and without marks or scars, and was "of a piece" with his testimony that the cause of Jackson's electrical shock was something other than water in the outlet.
More important, it was appellants' counsel who asked Flaherty about the plug (and did so repeatedly despite a defense objection that the questioning was beyond the scope of the direct examination), thereby eliciting the testimony about which appellants now complain.*fn2 Thus, appellants' own questioning invited Flaherty's response. Cf. Structural Pres. Sys., Inc. v. Petty, 927 A.2d 1069, 1080 (D.C. 2007) (per curiam) (even if appellee's witness should not "have testified as to her interpretation of the MRI," appellant "invited the error" by cross-examining her on "how the MRI . . . influenced her opinion," and thus could not be allowed to profit from the error on appeal). We discern no basis for disagreeing with the trial court's assessment that there was no evidence of "some strategic decision by the defense, to try to ambush" plaintiffs. We also agree with the trial court that, since appellants' own expert ...