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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,
v.
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee.

Argued Dec. 19, 2012.

Page 493

[Copyrighted Material Omitted]

Page 494

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.

Page 495

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]

Page 496

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 ...


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