United States District Court, District of Columbia
Charles C. Parsons, Charles Krikawa, IV, Charles C. Parsons & Associates, Chtd., Washington, DC, for Plaintiffs.
Heather D. Graham-Oliver, Addy R. Schmitt, U.S. Attorney's Office, Washington, DC, for Defendant.
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
BERYL A. HOWELL, District Judge.
The plaintiffs, Beatrice Girdler and her spouse, Ronald Girdler, brought this action
pursuant to the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. §§ 1346(b) and 2671, et seq., seeking damages for injuries sustained by Mrs. Girdler on October 3, 2008, when she fell on the sidewalk next to the defendant Smithsonian Institution's (" Smithsonian" ) National Air & Space Museum (" NASM" ). The plaintiffs claim that the Smithsonian was negligent in maintaining, inspecting, remediating and forewarning pedestrians about a defect in the sidewalk. Following a bench trial, the Court concludes that the plaintiffs have failed to sustain their burden of proof and that judgment must be entered for the defendant.
I. PROCEDURAL BACKGROUND
On October 26, 2010, the plaintiffs filed their two-count complaint against the United States of America asserting, in Count 1, negligence and, in Count 2, loss of consortium. Compl., ECF No. 1. The plaintiffs allege that the defendant failed properly to inspect, maintain, remedy defects in, and warn of unsafe conditions in the " public sidewalk adjacent to the [NASM] on the North side of the 400 block of Independence Avenue SW," id. ¶¶ 4-9, and that breaches of those duties proximately caused permanent injuries to Mrs. Girdler's " mind, body and nervous system," id. ¶ 13. The Complaint seeks $2,000,000 in compensatory damages, plus costs and attorney's fees, under the FTCA. Id. at 4.
This Court conducted a bench trial from July 9 through July 11, 2012.  The following six witnesses were called by the plaintiffs to testify: Beatrice Girdler, Ronald Girdler, Craig T. Arntz, M.D., Lawrence Dinoff, Richard Lurito, Ph.D., and Mark Proctor. The testimony of Dr. Arntz was presented through a de bene esse videotaped deposition taken on June 18, 2012, shortly before trial began. See Pls.' Ex. 66. The defendant called the following five witnesses to testify: Richard W. Barth, M.D., Anthony M. Dolhon, P.E., Gloria J. Hurdle, Ph.D., Rahmat Muhammad, Ph.D., and Nancy Bechtol. Prior to trial, pursuant to the Pretrial Order, the parties submitted affidavits from their expert witnesses, which were to serve in lieu of direct testimony during the bench trial. See Pretrial Order, June 22, 2012, ECF No. 33.
Following the conclusion of the bench trial, the parties submitted proposed findings of fact and conclusions of law. See Def.'s Proposed Findings of Fact and Conclusions of Law (" Def.'s Findings & Conclusions" ), July 18, 2012, ECF No. 48;
Pls.' Proposed Findings of Fact and Conclusions of Law (" Pls.' Findings & Conclusions" ), July 16, 2012, ECF No. 47. The Court has considered these filings along with the evidence admitted at trial and the arguments of counsel.
Based upon the testimony presented and exhibits admitted at the bench trial, the Court makes the findings of fact set forth below and further states its conclusions of law. See FED. R. CIV. P. 52(a)(1) (" In an action tried on the facts without a jury ..., the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court." ).
II. FINDINGS OF FACT
A. Overview of Witnesses' Backgrounds and Testimony
1. Plaintiffs' Witnesses
a. Plaintiff Beatrice Girdler.
Mrs. Girdler, who was 70 years old at the time of the accident at issue, Trial Tr. 41:22-23, July 11, 2012 A.M. (Ronald Girdler), ECF No. 52, testified about her physical condition before her fall on October 3, 2008, her actions just before and after she tripped and fell, her physical condition upon her return home to Washington State, her medical condition requiring surgery, her pre-surgical pain and limitations, her post-surgical pain and limitations and the effects of her injury upon her overall health and well-being.
b. Plaintiff Ronald Girdler.
Mr. Girdler testified about his wife's physical condition before and after her fall on October 3, 2008, the post-incident events in the District of Columbia and upon their return home to Washington State, his wife's pre-surgical pain and limitations, her post-surgical pain and limitations, and the effects of her injury upon her overall health and well-being and her ability to perform household services.
c. Craig T. Arntz, M.D.
Dr. Arntz is Mrs. Girdler's treating orthopedic surgeon in Washington State. He appeared via videotaped deposition to testify about his physical examination of Mrs. Girdler, the surgery he identified as necessary to address her shoulder injury, the surgical procedure he performed, Mrs. Girdler's response to the surgery, his on-going treatment of Mrs. Girdler and her prognosis.
d. Lawrence Dinoff.
Mr. Dinoff is an architect registered in multiple states, including Maryland, the District of Columbia and Virginia. He has served as an American Institute of Architects Liaison Member to the American National Standards Institute and on a committee of the American Society of Testing and Materials. From 1989 to the present, he has consulted for Robson Forensic, Inc., and provided reports and testimony concerning resolution of commercial and personal injury litigation. Mr. Dinoff testified as an expert witness about the standard of care for safe walking surfaces, including sidewalks. Based upon his review of deposition testimony, photographs of the sidewalk where Mrs. Girdler fell, and a visit to the site of the fall on December 8, 2010, he opined, within a reasonable degree of architectural certainty, that the defendant failed reasonably to maintain and warn of the tripping hazard on the sidewalk, in violation " of applicable standards for safe walkways and safe maintenance" and these failures were the " proximate cause of the sidewalk
conditions that caused Mrs. Girdler's fall and injury." Dinoff Aff. ¶ 13(4).
e. Richard J. Lurito, Ph.D.
Dr. Lurito has served as President and Senior Economist at Commonwealth Consulting Group since 1972. He has over thirty years of professional experience in the field of economics and has offered expert opinions on economic loss as a result of death, injury or discrimination in about eight hundred cases. Lurito Aff. Ex. 1 (Curriculum Vitae). Dr. Lurito testified, within a reasonable degree of economic certainty, that prior to her fall, Mrs. Girdler performed 30 to 32 hours per week of household services, which amount was reduced after her injury to 8 to 10 hours per week, resulting in a present value loss of $391,690 for the plaintiffs' loss of household services and replacement cost for those services. Id. ¶¶ 6, 9, 12.
f. Mark Proctor.
At the time of Mrs. Girdler's fall in October, 2008, Mr. Proctor was the NASM Building Manager in charge of supervising the employees who maintain and inspect the sidewalks. Trial Tr. 61:2-21, July 9, 2012 P.M. (Proctor), ECF No. 49. He was called by the plaintiffs as an adverse witness, id. 62:2-6, and testified about the maintenance of the sidewalks surrounding the NASM, including the frequency, regularity and standards for inspections for defects, at the premises of the NASM, and about his personal knowledge about the condition of the sidewalk at the time of Mrs. Girdler's fall.
2. Defendant's Witnesses
a. Richard W. Barth, M.D.
Dr. Barth is a board certified orthopedic surgeon with a certificate of added qualification in surgery of the hand. Dr. Barth currently serves as Chief of Orthopedic Surgery at Sibley Memorial Hospital in Washington, D.C., as Director of the Orthopedic Surgery residency program for the George Washington University Orthopedic Residents at Sibley, and as Assistant Clinical Instructor in Orthopedic Surgery at George Washington University. His practice is almost exclusively devoted to the upper extremities, which includes the shoulder to the hand. Based upon his independent examination of Mrs. Girdler on December 14, 2011, Dr. Barth opined, to a reasonable degree of medical certainty and based on his experience, training and expertise, that " while Mrs. Girdler sustained permanent disability with limited motion and weakness in her right shoulder, that injury is not to a degree and extent that would prevent her from performing routine household tasks such as vacuuming, cooking and laundry." Barth Aff. ¶ 1. He would " expect Mrs. Girdler to have difficulty with activities that require lifting above shoulder level and/or heavy lifting with the right arm, [but] would not expect her to have difficulty with activities that do not require lifting above the shoulder or heavy lifting with the right arm." Id.
b. Anthony M. Dolhon, P.E.
Mr. Dolhon is a Managing Engineer in the Buildings and Structures Practice at Exponent, Inc. He trained as a structural engineer and has more than 28 years of experience, the last 22 years of which have focused on performance evaluations and diagnostics of buildings, civil engineered structures, structural components, and building materials. He has been the lead investigator in a number of investigations regarding the determination of cause and origin of performance problems, extent of damage, identification of the mechanism of distress, standard of practice, compliance with applicable building codes, design of repairs, retrofits and code upgrades. Based upon his review of deposition testimony, the plaintiffs' expert reports and other documents, photographs of the site, and a site visit on December 16, 2011, he testified, to a reasonable degree of engineering certainty, that " the subject sidewalk was not
dangerously deteriorated and uneven at the time of Mrs. Girdler's fall; that there is no way of accurately opining how long the alleged defect was there; the subject sidewalk was not dangerous and need not have been repaired by the Smithsonian Institution before Mrs. Girdler fell; and that the Smithsonian properly maintained the subject sidewalk in accordance with the applicable International Property Maintenance Code. " Dolhon Aff. ¶¶ 1, 20, 21, 23.
c. Gloria J. Hurdle, Ph.D.
Dr. Hurdle has been an economist for over 35 years and currently serves as a Vice President at Economists, Incorporated, an economic consulting firm, where she specializes in econometrics and industrial organization. She has provided expert economic analysis in a number of cases. Prior to her current position, Dr. Hurdle was an economist in the Antitrust Division of the United States Department of Justice for thirteen years; before that, she served on the staff of the Subcommittee on Antitrust and Monopoly of the United States Senate Committee on the Judiciary. She testified regarding her criticism of Dr. Lurito's calculation of economic damages and, based upon her own analysis, concluded that the present value of the loss of household services to the plaintiffs derived from Mrs. Girdler's fall on October 3, 2008 would range, depending upon various factors, from $46,530 to $168,485. Hurdle Aff. ¶ 38, Table 1.
d. Rahmat Muhammad, Ph.D.
Dr. Muhammad is a Senior Scientist in the Human Factors practices at Exponent, Inc., where she specializes in systems neuroscience, which is a subdivision within the field of neuroscience concerned with the relationship between the brain structure/function and cognitive and motor behaviors, such as learning and memory, object perception, decision making and movement execution. Muhammad Aff. ¶¶ 3, 4. Dr. Muhammad analyzes the frequency and patterns of accidents associated with a variety of products using large-scale databases available through the Food and Drug Administration and the Consumer Product Safety Commission. Id. ¶ 4. Additionally, she has published papers and presented at conferences on topics related to human factors issues, including sensory and perceptual information processing and cognitive contribution toward maintaining balance to avoid falling. Id. ¶ 5. Dr. Muhammad testified that, in her opinion to a reasonable degree of scientific certainty, no additional mark or warning on the sidewalk where Mrs. Girdler fell would have made a difference because Mrs. Girdler was neither looking at nor attending to her path of travel. Id. ¶ 1. She further opined that had Mrs. Girdler been looking at and attending to her path of travel, instead of the vendors along the side of the sidewalk, Mrs. Girdler would have detected the presence of the alleged irregular terrain as she approached it and she could have taken action to avoid it. Id.
e. Nancy Bechtol.
Ms. Bechtol has worked at the Smithsonian for twenty years and is currently the Director of the Office of Facilities Engineering and Operations. Trial Tr. 147:14-25, July 11, 2012 A.M. (Bechtol), ECF No. 52. In 2008, she served as the Director of the Office of Facilities Management and Reliability for the Smithsonian, a position that she held for eight years. Id. 148:6-10. She testified that Mrs. Girdler was the only person of whom she was aware who fell in 2008 on the 400 block of Independence Avenue. She also testified about the systems in
place at the Smithsonian for documenting visitor falls. Id. 149:18-20.
3. Credibility Assessment
a. The majority of the witnesses who provided testimony during the bench trial were treating physicians of Mrs. Girdler and expert witnesses, and each generally testified credibly. The only non-party fact witnesses to testify were Mr. Proctor and Ms. Bechtol and they, too, presented the limited facts of which they were aware in a straightforward and careful manner.
b. The plaintiffs appeared to be dissembling on certain points during their testimony both to counter the defense of contributory negligence and to support their damages claim by exacerbating Mrs. Girdler's physical limitations due to her shoulder condition and minimizing the effects of her other serious medical conditions. For example, Mrs. Girdler admitted that she was distracted by and looking at merchandise being hawked by vendors parked along Independence Avenue adjacent to the NASM, but also emphasized how carefully she was watching her step. Trial Tr. 16:20-21, July 10, 2012 P.M., ECF No. 50 (Mrs. Girdler testified: " I was just looking around, being a typical tourist, watching where I was going. I was very careful." ); id. 48:21-24 (Mrs. Girdler testified: " I used my peripheral vision. I was aware of the people coming toward me, beside me. I was a tourist. I was carefully walking down the walk." ). Furthermore, Mrs. Girdler clearly understood the import of notations in her personal physician's records regarding her history of falling and deflected questions about this history by stating that she did not recall the details of past falls or re-characterizing a past fall as merely an instance where she " slipped." Id. 60, 63-68 ...