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Russell v. Call/D, LLC

Court of Appeals of Columbia District

April 15, 2015


Argued October 21, 2014

Page 861

Appeal from the Superior Court of the District of Columbia. (CAB-5151-12). (Hon. Natalia Combs Greene, Motions Judge).

Peter T. Enslein, with whom Kenneth D. Bynum was on the brief, for appellant.

Susan E. Smith, with whom Thomas P. Bernier, was on the brief, for appellee.

Before FISHER, THOMPSON, and EASTERLY, Associate Judges.


Page 862

Thompson, Associate Judge :

In June 2012, appellant Craig Russell brought a lawsuit asserting " negligence -- premises liability" and " strict liability/negligent failure to warn" claims against appellee Call/D, LLC (" Call/D" ), the owner of the apartment building where appellant was residing when he began to suffer the symptoms of Legionnaires' disease, with which he was diagnosed in May 2011. Russell alleged in his Complaint and subsequent deposition that sewage back-ups in the apartment building and sewage-contaminated water that was allowed to stand in a vacant basement apartment caused him to contract the disease. The Superior Court (the Honorable Natalia Combs Greene) granted Call/D's motion in limine to exclude the testimony of Russell's designated causation expert and then granted Call/D's motion for summary judgment. Russell argues on appeal that Judge Combs Greene abused her discretion by ruling without considering his supplemental Super. Ct. Civ. R. 26 (b)(4) statement and also that she erred in granting Call/D's motions in limine and for summary judgment. We disagree and therefore affirm.

I. Factual and Procedural Background

The following background facts, which we consider in the light most favorable to Russell,[1] are undisputed. In 2004, Russell leased an apartment on the second floor of 5218 Fitch Street, S.E. (Apartment 6), and lived there until May 2011. Sometime during the fall of 2010, the tenants living in the basement-level Apartment 1 vacated the premises, leaving behind their cats. The windows to Apartment 1 were left open, allowing the cats (and perhaps other animals) to enter and exit the vacant apartment. As a result, feces and dead animals were on the floor of the abandoned apartment, and the apartment had a horrible stench. The deposition testimony also establishes that in November 2010, a pipe burst in Apartment 1, causing flooding in the apartment. Additionally, sometime during or before May 2011, sewage and sewage-contaminated water backed up and overflowed into Apartment 1, covering its floor with a half-inch to inch of water that, at one point, also overflowed into the adjacent hallway. A video recording made on

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May 28, 2011 -- after Russell had fallen ill with Legionnaires' disease -- shows that the apartment was still filthy at that time, with standing pools of water on the floor.

Around May 8, 2011, Russell noticed that the water coming out of the faucets in his apartment smelled bad and was discolored for several moments before running clean. Sewage or sewage-like water would also bubble up out of his drains after use. During early May 2011, the entire apartment building also began to smell, prompting residents to make calls to management starting around May 9, 2011.

On May 10, 2011, Russell began to feel fatigued. Over the next few days, he felt increasingly worse. On May 21, 2011, when he was barely able to stand, he went to the hospital and was diagnosed with Legionnaires' disease, a serious form of pneumonia. Before the illness, Russell was a very healthy 39-year-old who routinely engaged in vigorous exercise.

The parties' designated experts agree that Legionella bacteria, the cause of Legionnaires' disease, infect humans through the inhalation of contaminated airborne water droplets; that is, the water source containing the bacteria must be aerosolized and inhaled. Legionnaires' disease has an incubation period of 2-14 days, meaning that " symptoms typically manifest within 2 to 14 days after the exposure."

During the two weeks before he became symptomatic, Russell went to many different places. He worked five days a week for ADT Security Systems as a service technician, a job that required him to go to an average of seven different locations every day. From May 6-8, 2011, Russell and his girlfriend were on a weekend trip to Bryce Resort, a ski resort in Mount Jackson, Virginia, where, according to the girlfriend's deposition testimony, he took at least one shower.

No samples were taken of the stagnant water in Apartment 1 before the apartment was professionally cleaned. Testing performed in September 2011 on water from taps and drain traps in Apartment 6 (to which Russell never returned after he was stricken in May 2011) uncovered no Legionella bacteria. As far as the record reveals, no one else living in the Fitch Street apartment building and no one else who visited Bryce Resort during the same time period when Russell was there contracted Legionnaires' disease.

As noted above, Russell filed his lawsuit in June 2012. On February 5, 2013, he served Call/D with a Rule 26 (b)(4) statement in which he designated Dr. Steven Zimmet, a pulmonologist who treated Russell when he had Legionnaires' disease, as an expert who would testify as to " how Legionnaires' disease is contracted in general and specifically how Plaintiff contracted it due to his exposure to fumes and smells at his apartment building." [2] No expert report or academic articles were attached to the Rule 26 (b)(4) statement. Call/D's attorneys deposed Dr. Zimmet on April 19, 2013. Although Russell's counsel provided Dr. Zimmet with two academic articles regarding Legionella bacteria immediately before the deposition, Dr. Zimmet testified that he did not ...

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