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Cormier v. District of Columbia Water and Sewer Authority

Court of Appeals of Columbia District

July 3, 2013

David R. CORMIER, et al., Appellants,

Argued Dec. 19, 2012.

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[Copyrighted Material Omitted]

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Peter T. Enslein, Washington, DC, with whom Kenneth D. Bynum, Alexandria, VA, was on the brief, for appellants.

James B. Slaughter, with whom Nadira Clarke, Katherine E. Wesley, and Nat N. Polito, Washington, DC, were on the brief, for appellee.

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Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER, Senior Judge.

GLICKMAN, Associate Judge.

David R. Cormier and certain limited liability entities in which he is a principal (collectively, " appellants" ), own five residential apartment buildings in Northwest, Washington, D. C.: Florida House (located at 19th Street); Taylor Apartments (4027 13th Street); Ontario Apartments (2920 Ontario Road); and the Emerson Gardens Apartments (comprising two buildings located at 1325 and 1327 Emerson Street). Appellants brought this damages action against the District of Columbia Water and Sewer Authority (" WASA" ), alleging that WASA delivered excessively corrosive water that caused " pinhole" leaks to develop in the buildings' aging copper piping, necessitating replacement of the piping in its entirety. The case eventually proceeded to trial before the court without a jury on three causes of action: negligence, strict liability, and breach of the Uniform Commercial Code's implied warranty of merchantability.[1] The present appeals are from the court's judgment on the merits in favor of WASA and its post-judgment allowance of costs. Essentially for reasons stated by the trial court, we now affirm.

I. Background

WASA buys treated Potomac River water from the Washington Aqueduct and delivers this water to the District's residents through a 1,300-mile network of transmission lines, water mains, pumping stations, storage tanks, and service lines it operates and maintains. Appellants' central claim, disputed by WASA at trial, was that elevated aluminum and pH levels in the water " resulting from deficiencies in [WASA's] distribution system," [2] in combination with high levels of chlorine (added to the water periodically to reduce bacteria), rendered the water excessively corrosive and thereby caused extensive leaks in the plumbing of appellants' apartment buildings. Each side presented a duly qualified expert to testify about the prevalence and cause of the leaks.

Appellants' expert, Dr. Marc Edwards, previously had investigated plumbing leaks reported by Maryland customers of the Washington Suburban Sanitary Commission (" WSSC" ). After examining water and pipe samples and conducting research, Dr. Edwards had concluded that the customers' pipes had developed " pinhole leaks" [3] due to the combination of three factors: (1) high chlorine levels in the water, (2) high aluminum levels, and (3) high water pH. [4]

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In 2003, Dr. Edwards visited four of the five buildings at issue in this case,[5] observed pinhole leaks in the piping, and measured high levels of chlorine, aluminum, and pH in the water samples he collected. Dr. Edwards attributed the high aluminum and pH levels, in part, to seepage of aluminum and lime from pipes that were " cleaned and lined" decades ago with concrete to reduce corrosion. He posited that the seepage occurred because the concrete had not been allowed to set fully before water began coursing through the pipes. Based on his findings, Dr. Edwards concluded that the synergistic combination of the elevated chlorine, aluminum and pH levels was responsible for the vast majority of the pinhole leaks in Cormier's buildings, just as in the case of the buildings owned by WSSC's customers. Dr. Edwards testified that he confirmed this conclusion in 2004 by performing a " pipe loop test" of water supplied by WASA to Florida House. After running this water through a sample of copper pipe at his laboratory continuously for four months, he found that a pinhole leak had developed.

Five years later in 2008, Dr. Edwards revisited Florida House, Taylor Apartments, and Ontario Apartments.[6] He again found pinhole leaks and took samples of the leaking pipes. After studying the samples, Dr. Edwards concluded that the buildings' copper plumbing had been irreversibly compromised and needed to be replaced in the near future.[7] Cormier testified that leaks have continued to develop since Dr. Edwards's 2008 visit.

WASA and its principal expert, Dr. Steven Reiber, disagreed with Dr. Edwards on almost every significant point. Among other things, WASA and Dr. Reiber disputed Dr. Edwards's theory that WASA's " clean and line" program had led to higher concentrations of aluminum in the water and a higher pH. In fact, Dr. Reiber testified, WASA had " relined [only] approximately 35 to 40 miles of major distribution mains ... out of a total of some 1300 miles of pipe" ; appellants' buildings were not served by those mains; and the cleaning and lining occurred so far in the past that any seepage from the concrete would have long since ceased. WASA also disputed Dr. Edwards's claim that the chlorine, aluminum,

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and pH levels were elevated in the water supplied to appellants' buildings. Its own measurements (the accuracy of which appellants denied) indicated they were not.

Dr. Reiber further testified that chlorine and aluminum, either alone or in combination, had not been shown to cause pitting or pinhole leaks in copper plumbing. He identified the principal causes of pitting in copper piping as including poor workmanship; erosion corrosion, which occurs when water flows at excessively high velocities; crevice corrosion, which occurs when joints are improperly soldered together; and concentration cell corrosion, which occurs when sediment and/or bacteria accumulate, leading to a non-uniform corrosion process that results in broad, shallow pitting that develops over decades. After examining pipe samples from three of appellants' buildings (Taylor Apartments, Ontario Apartments, and Florida House), Dr. Reiber concluded that there was only minimal pitting present and that this pitting was caused by concentration cell corrosion. Because the plumbing in the buildings was several decades old, Dr. Reiber explained, it was not unusual to find some leaks due to such corrosion.

In awarding judgment to WASA, the trial court found, among other things, that appellants had failed to prove the existence of any pinhole leaks at the Emerson Gardens Apartments or that WASA had caused the pinhole leaks at the other three properties.[8]

II. The Merits Appeal

Appellants seek reversal on multiple grounds.[9] They argue that the trial

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court erred (1) when it excluded expert testimony regarding the cause of pinhole leaks at a site two blocks from one of appellants' buildings; (2) in rejecting appellants' claims related to Emerson Gardens Apartments based on a lack of evidence of pinhole leaks at that property; and (3) in rejecting appellants' negligence, strict liability, and implied warranty of merchantability claims for lack of proof of causation and on other grounds. We address each of these claims below.

A. Exclusion of Evidence

To help prove that the pinhole leaks at appellants' buildings were caused by WASA's alleged provision of excessively corrosive water, appellants sought to show that another building, the DeBell residence located two blocks away from Florida House at 1702 19th Street, N.W., also had developed pinhole leaks in its copper plumbing. Appellants argued that this evidence would prove their theory of causation because, according to Dr. Edwards, " [t]he water that flows into Florida House comes from the same main that provides water to the DeBell home," and " [b]oth buildings have had pinhole leaks ... [and] new pinhole leaks continue to form." [10] In contrast, Dr. Reiber testified that he had examined numerous samples of copper pipe from the DeBell property and concluded that: (1) poor joint fabrication had caused some erosion corrosion in both the cold and hot water pipes; (2) " no corrosion related leakage (tubing perforation) could be identified on the cold water tubing" ; and (3) the erosion corrosion leaks that had developed on the hot water pipes resulted from poor joint fabrication and were unrelated to water quality. He also testified that the conditions he had observed were mild and would not substantially reduce the remaining service life of the pipes. After considering Dr. Edwards and Dr. Reiber's deposition testimony, the trial court granted WASA's motion in limine to exclude evidence of leaks at the DeBell residence, ruling that the evidence " certainly does not prove that the defendants [sic] delivered corrosive water to plaintiff's [sic] property."

" We review a trial court's decision about admissibility of evidence for abuse of discretion." [11] While " [t]he test for relevance is not a particularly stringent one," [12] the evidence of pinhole leaks at the DeBell residence was minimally probative at best. That another building in the vicinity happened to have had pinhole leaks may be consistent with appellant's theory of causation, but it does little to prove that theory— particularly inasmuch as the cause of the leaks at the DeBell property was itself in dispute and uncertain. As Dr. Reiber opined, the leaks there could have been caused by factors unique to that residence (namely, poor joint fabrication) and

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by other conditions unrelated to WASA's distribution system. Given the minimal probative value of the evidence, the trial court cannot be sad to have abused its discretion in excluding Dr. Edwards's testimony regarding the leaks at the DeBell residence and his opinion as to their cause. " The trial court ‘ has a duty to exclude confusing and distracting evidence on collateral issues.’ " [13] Even assuming Dr. Edwards's testimony should have been admitted, we are confident the error had no impact on the trial's outcome.

B. Sufficiency of Evidence

" In review of [a] bench trial, we may not set aside the judgment except for errors of law ‘ unless it appears that the judgment is plainly wrong or without evidence to support it.’ " [14] " Even where we find error, ‘ we may find that the fact of error in the trial court's determination caused no significant prejudice and hold, therefore, that reversal is not required.’ " [15]

1. Emerson Gardens Apartments

George Thibodeau, a general partner with Cormier and the property manager of Emerson Gardens Apartments, testified that since Cormier and he purchased the buildings in 1985, he could remember only one instance in which a leaking copper pipe had to be replaced there. That repair was necessary, he explained, because the copper pipe had been touching an iron pipe. Both Thibodeau and Solomon Dennis, the on-site property manager, denied that pipe leaks were a problem at Emerson Gardens or that the pipes needed to be replaced. The trial court relied on their testimony in concluding that appellants had not shown there were any pinhole leaks there and, hence, that appellants had not met their burden of proving damages at Emerson Gardens.

Appellants argue that the court overlooked testimony from Dr. Edwards and Cormier that they found pinhole leaks at 1325 Emerson Street in 2003 and that Dr. Edwards found a pinhole leak in one sample of copper pipe that Cormier had removed from the building at 1327 Emerson Street.[16] Even so, we cannot say that the court clearly erred in discounting that testimony and relying instead on the testimony of the property's co-owner and property managers [17] to find that appellants had not proved that the plumbing in Emerson Gardens had developed pinhole leaks. Moreover, even if we were to conclude that the court overstated the matter slightly in finding no proof of any pinhole leaks at Emerson Gardens, we would deem the error inconsequential and harmless. The mere finding of one or a few pinhole leaks

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in two buildings proves virtually nothing and certainly does not establish the extensive damage (or impending damage [18]) to the buildings' plumbing that appellants claimed. Nor does the evidence alter our conclusion regarding causation, to which we now turn.

2. Causation

The trial court found that appellants " produced sufficient evidence to show that there were indeed pinhole leaks found in copper pipes in each of the three remaining properties, Florida House, Taylor Apartments, and Ontario [Apartments]" (though the court noted that " only a minimal number" of such leaks had been shown). But to succeed on any of their causes of action— negligence, strict liability, or breach of implied warranty of merchantability— with respect to these buildings (as also with respect to Emerson Gardens), appellants needed to prove, inter alia, that WASA caused the pinholes by supplying excessively corrosive water.[19] The trial court was unpersuaded by appellants' evidence of causation. It held that appellants

failed to show, by a preponderance of the evidence that DC WASA's action caused the pinhole leaks at the properties. The undisputed evidence at trial was that the Washington Aqueduct cleans and treats the water so that it comports with federal regulations. The evidence also showed that there are a variety of things that can cause a pinhole leak to develop and that these alternatives cannot be solely attributed to DC WASA. Plaintiffs' expert posited that DC WASA's clean-and-line program could have contributed to the increased chlorine and aluminum levels in the water. However, in light of the other causes of pinhole leaks, the Court is not convinced that Plaintiffs have proven, by a preponderance of the evidence, that the DC WASA's practices caused the water to be excessively corrosive.[[20]]

Appellants contend the court erroneously based its ruling on a finding that WASA's conduct was not the sole cause of their injuries, whereas the correct test of legal causation is whether WASA's (putative) delivery of excessively corrosive water was " a substantial factor in bringing about the harm." [21] We think this argument

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misapprehends the court's reasoning: We do not read the passage we have quoted as evincing a failure by the court to apply the " substantial factor" test of legal causation. Rather, " in light of the other causes of pinhole leaks" (not attributable to WASA), the court simply was not persuaded by a preponderance of the evidence that WASA had " caused the water to be excessively corrosive," i.e., that it bore any responsibility for the leaks. WASA's actions or inactions, therefore, could not have been a substantial factor— or even a factor at all— in causing the pinhole leaks in appellants' properties. The trial record provided ample support for the court's determination with respect to causation: Briefly put, (1) the expert witnesses agreed that water is a naturally corrosive substance and that pinhole leaks have numerous causes other than the quality of the water, and (2) Dr. Reiber disputed both appellants' contention that the water delivered by WASA contained elevated chlorine, aluminum, and pH levels and appellants' attribution of the leaks to this water. The trial court's finding that causation had not been proved was not clearly erroneous.

III. The Costs Appeal

After prevailing at trial, WASA filed a motion for allowance of costs pursuant to Civil Rule 54(d).[22] It requested an award of $76,434.40 for various litigation expenses it had incurred. The trial court cut the request substantially and ultimately awarded WASA a total of $23,714.25 in costs. Appellants challenge the award of $13,312.11 for deposition transcripts, $2,599.34 for copying costs, and $1,859.06 in travel costs (that were associated, mainly, with defense counsel's attendance at an out-of-state de bene esse deposition). Appellants also argue that the court erred in failing to penalize WASA for " overreaching" in its motion for allowance of costs (i.e., for asking for so much more than the court ultimately found to be allowable).

We are not persuaded that the court abused its discretion [23] with respect to the deposition transcripts and document copying expenses, which it found to be reasonable in light of the complexities of the litigation.[24] The court carefully scrutinized these costs, as shown by the fact that it refused to award the bulk of the $20,959.69 in copying costs that WASA requested on the ground that they either were not substantiated or were not shown to be reasonable or necessary.[25] Given the court's restraint in awarding costs and detailed explanation of why it awarded some

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costs but not others, appellants have not borne the considerable burden of demonstrating that discretion was abused in these areas. Appellants argue that the court erred by merely finding the expenditures reasonable in light of the complexities of the case without finding that they were necessary for case preparation, but that argument is little more than playing with words. We have no doubt that the court found the expenditures necessary for case preparation because the complexities of the case made them reasonable.

On the other hand, we conclude that the attorney travel expense was not an allowable " cost" within the meaning of Civil Rule 54(d). The Rule is substantially identical to its federal counterpart, and we look to federal decisions interpreting Federal Rule of Civil Procedure 54(d) for guidance.[26] Historically, we have said that " [t]he authority of a court to assess a particular item as costs is partly a matter of statute (or court rule), and partly a matter of custom, practice, and usage." [27] However, in Crawford Fitting Co. v. J.T. Gibbons, Inc., the Supreme Court held that " [t]he discretion granted by [Federal] Rule 54(d) ... is solely a power to decline to tax, as costs, the items enumerated in [28 U.S.C.] § 1920." [28] In light of Crawford, we have recognized that the Superior Court's discretion to award costs to the prevailing party under Civil Rule 54(d) is limited to items " specifically authorized by 28 U.S.C. § 1920 ... or by other statutes (or court rule)." [29] The attorney travel costs in question here are not among the taxable costs enumerated in § 1920,[30] and we are directed to no other statute or court rule authorizing the trial court to tax the losing party with them; accordingly, Rule 54(d) does not authorize the taxation of these costs. [31]

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Finally, asserting that WASA " overreached" by seeking over $76 thousand in costs (more than three times what the trial court found to be awardable), appellants ask us to create a new rule of law punishing prevailing parties who " overreach[ ] by either denying the motion [for taxation of costs] in toto or substantially reducing any award that it makes." [32] We have never penalized a prevailing party merely for requesting more costs than ultimately were awarded,[33] and absent a showing of misconduct that has not been made here, we see no justification for doing so now.[34] Consequently, we hold that the trial court did not abuse its discretion in failing to punish WASA by denying otherwise allowable costs.

IV. Conclusion

For the foregoing reasons, the judgment of the Superior Court is hereby affirmed. The award of costs is affirmed except insofar as we direct that the award be reduced by $1,859.06, representing WASA's attorney travel costs.

It is so ordered.

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