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Diana L. Himes, Individually and As Administrator of the Estate of v. Medstar-Georgetown University

December 1, 2010


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Diana Himes ("Mrs. Himes") filed the above-captioned action against Defendants Medstar-Georgetown University Medical Center, Dr. Patrick Jackson, and Dr. Tina Rosenbaum (collectively, "Defendants"), alleging that Defendants' medical negligence caused the death of her husband, David Himes ("Mr. Himes"). Mrs. Himes asserts claims pursuant to the District of Columbia's Survival Statute, D.C. Code § 12-101 (Count I), and Wrongful Death Act, D.C. Code § 16-2701 (Count II). Currently before the Court are Defendants' [60] Motion for Partial Summary Judgment, in which Defendants argue that Mrs. Himes may not recover the value of certain services Mr. Himes provided his adult children under her Wrongful Death Act claim, and Plaintiff's [63] Motion for Leave to File a Surreply. The parties have filed their respective oppositions and replies to these pending motions. For the reasons set forth below, the Court shall DENY Plaintiff's motion for leave to file a surreply. Additionally, the Court shall DENY Defendants' motion for partial summary judgment as (1) Mrs. Himes is not barred as a matter of law from recovering the value of Mr. Himes' services to his adult children; and (2) a genuine issue exists as to whether Mr. Himes in fact provided services to his adult children.


A. Factual Background

In August 2007, Mr. Himes was referred to Dr. Patrick Jackson at Medstar-Georgetown University Medical Center ("Hospital"), in the District of Columbia, for a consultation regarding a cyst on his pancreas. See Defs.' Mot. for Partial Summ. J. ("Defs.' Mot."), Docket No. [60], Ex. 2 (Plaintiff's Supplemental Answers to Interrogatories (hereinafter "Pl.'s Suppl. Answers to Interrogs.")) at 6.*fn1 As a result of this consultation, Mr. Himes was informed that there was a 95% chance that his cyst was malignant or premalignant. See id. at 5. Consequently, in September 2007, Mr. Himes underwent surgery to remove the cyst. See id.; Pl.'s Opp'n to Defs.' Mot. for Partial Summ. J. ("Pl.'s Opp'n"), Docket No. [61], Ex. 2 (Excerpts from June 9, 2009 Deposition of Patrick Jackson, M.D. (hereinafter "Jackson Dep.")) at 379:11-380:15.

The morning of October 23, 2007, Mr. Himes returned to the Hospital due to bleeding related to his earlier surgery. See Pl.'s Suppl. Answers to Interrogs. at 7. Sometime later that day, Mr. Himes left the Hospital, only to return that evening with similar complaints of bleeding. See id.; Jackson Dep. at 381:1-20. Mr. Himes' bleeding continued to worsen overnight, and he died in the Hospital the following day, October 24, 2007. See Defs.' Stmt. ¶ 12; Jackson Dep. at 381:1-20. Mr. Himes was forty-nine years old. See Defs.' Stmt. ¶ 15; Pl.'s Suppl. Answers to Interrogs. at 2; Pl.'s Opp'n, Ex. 1 (Excerpts from May 8, 2009 Deposition of Diana Himes (hereinafter "Diana Himes Dep.")), at 13:2-4.

Prior to undergoing surgery, from 1995 to 2007, Mr. Himes was employed by Cardinal Concrete in Lorton, Virginia. Pl.'s Suppl. Answers to Interrogs. at 2. In 2003, Mr. Himes suffered a work-related injury that caused him constant pain for the rest of his life and forced him to undergo cervical spinal fusion surgery. Id. at 2-3; Defs.' Stmt. ¶¶ 6-7. As a result of this injury, Mr. Himes could only engage in sedentary, light-duty work and could not return to his position at Cardinal Concrete as an assistant plant manager. See Defs.' Stmt. ¶ 6; Pl.'s Suppl. Answers to Interrogs. at 3.

Accordingly, Mr. Himes spent the majority of his time in 2007 at his home, where he lived with his wife, Diana Himes; his three adultchildren, David Samuel Kidd, Nicole Diane Kidd, and Daniel Allen Roberts (collectively, "Adult Children"); and Nicole's two minor children----his grandchildren. See Defs.' Stmt. ¶ 1; Diana Himes Dep. at 64:3-65:5. While at home, Mr. Himes cared for his grandchildren, including feeding them and watching them when his daughter Nicole could not. Defs.' Stmt. ¶¶ 9, 11; Diana Himes Dep. at 64:10-16, 66:5-8, 66:18-19; Pl.'s Opp'n, Ex. 4 (Excerpts from June 16, 2009 Deposition of Nicole Diane Kidd (hereinafter "Nicole Kidd Dep.")), at 27:2-8. Mr. Himes also performed various household chores for his family, including yard work, laundry, cooking, and grocery shopping. Defs.' Stmt.

¶¶ 8-9; Diana Himes Dep. at 64:16-65:2, 66:9-67:2, 67:15-21; Nicole Kidd Dep. at 27:17-28:13. Finally, the Adult Children relied on Mr. Himes to be available for advice or if they needed to talk. See Diana Himes Dep. at 66:15-17; Defs. Mot., Ex. 5 (Excerpts from June 16, 2009 Deposition of David Samuel Kidd), at 20:12-15.

B. Procedural History

On October 22, 2008, Mrs. Himes filed the Complaint in this case, alleging that, inter alia, Defendants' negligent diagnosis, treatment, and care of Mr. Himes' pancreatic cyst and postoperative bleeding caused his death. Compl., Docket No. [1], ¶ 23.*fn2 In both her individual capacity and as the administrator of Mr. Himes' estate, Mrs. Himes asserts claims under the District of Columbia's Survival Statute (Count I) and Wrongful Death Act (Count II). Id. ¶¶ 2, 21-28. Relevant to the pending motions, Mrs. Himes seeks damages for the loss of both Mr. Himes' financial support and services that she and Mr. Himes' heirs allegedly suffered as a result of his death. Id. ¶ 28. According to an expert report that Mrs. Himes has produced, the present value of all of Mr. Himes' services that Mrs. Himes and Mr. Himes' heirs lost is estimated at $220,793. See Defs.' Mot., Ex. 8 (October 23, 2009 Supplemental Report of Economic Loss of David Himes), at 6.

Defendants filed their [6] Answer on December 1, 2008. After the parties conducted discovery, Defendants filed a [60] Motion for Partial Summary Judgment ("Defs.' Mot.") on April 2, 2010. Subsequently, Mrs. Himes filed her [61] opposition ("Pl.'s Opp'n") and Defendants filed their [62] reply ("Defs.' Reply"). Two days after Defendants filed their reply, Mrs. Himes filed a [63] Motion for Leave to File a Surreply ("Pl.'s Mot. for Leave"), to which Defendants filed an [64] opposition, and Mrs. Himes filed a [65] reply thereto. The parties' briefing on the pending motions is now complete, and the matter is therefore ripe for review and resolution by this Court.


Defendants have filed a motion for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is proper when "the pleadings, the discovery [if any] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In response, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). All underlying facts and inferences are analyzed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See id. at 248. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987); see also Liberty Lobby, 477 U.S. at 251-52 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, ...

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