MEMORANDUM
HARVEY BARTLE III, Sitting By Designation
Plaintiffs St. Croix Renaissance Group, LLLP, Brownfield Recovery Corporation, and Energy Answers Corporation of Puerto Rico have sued defendants St. Croix Alumina, LLC and Alcoa World Alumina, LLC in connection with plaintiffs' purchase of an industrial property in St. Croix which was once an alumina refinery. On December 23, 2009, we granted in part and denied in part the motion of defendants for summary judgment. Presently, there remain claims for breach of contract for failure to disclose multiple red mud discharge events and failure to alert plaintiffs to hazardous materials on the property. There are also pending claims for fraud in the inducement for failing to disclose various environmental violations related to red mud releases into the sea.
Now before the court is defendants' Daubert motion seeking to exclude the expert testimony of Phillips Solseng and Ivan Contreras, geotechnical engineers in the employ of BARR Engineering.
Plaintiffs bring this action for breach of contract and fraud in the inducement in connection with various warranties made by defendants in the May 2002 Purchase Sale Agreement ("PSA") for the St. Croix property in issue. One of the warranties contained in the PSA provided that:
. . . and to Seller's knowledge, there are no such violations outstanding of the Environmental Law, except as disclosed on Exhibit 8.1.6 attached hereto and made part hereof, or in the Environmental Reports.
PSA § 8.1.6. Among the remaining claims, plaintiffs seek to hold defendants, the sellers, liable for a series of undisclosed releases of red mud into the Caribbean Sea in violation of environmental laws. While plaintiffs did learn of a single April 2002 release of red mud into the sea prior to signing the PSA, they contend that there were a series of undisclosed releases, some of which occurred as late as March and April 2002.
The expert report of Solseng and Contreras provides, "It is our opinion that the breaches of the dike and releases of the red mud pile had occurred prior to the reported release by SCA on April 16, 2002. It is also our opinion that the release reported by SCA on April 16 was not the result of a single heavy rainstorm event." These opinions are supported by nine separate findings contained in the report. Many of the findings measure amounts of red mud at various locations of the refinery property. One finding deals specifically with trenches dug to examine the strata of red mud and other soils. Another finding identifies the dating of a Tan Tan tree growing in the midst of a red mud deposit. From the calculation of the age of the Tan Tan tree, Solseng and Contreras opine that various red mud layers were deposited before the signing of the PSA in May, 2002. Solseng and Contreras also state that their opinions are corroborated by contemporaneous observations contained in documents produced in discovery.
As our Court of Appeals has repeatedly noted, Rule 702 of the Federal Rules of Evidence relating to the testimony of experts embodies three requirements: qualification, reliability, and fit.Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008). An expert is qualified if he "possess[es] specialized expertise."Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). This does not necessarily require formal credentials, as "a broad range of knowledge, skills, and training qualify an expert," and may include informal qualifications such as real-world experience. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994); Langbord v. U.S. Dept. of the Treasury, No. 06-5315, 2009 WL 1312576, at *2 (E.D. Pa. May 7, 2009) (citing Fed.R.Evid. 702 advisory committee's note). The qualification standard is a liberal one, and an expert may be sufficiently qualified under Rule 702 even if "the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers most appropriate." Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996).
To determine reliability, we focus not on the expert's conclusion but on whether that conclusion is "based on the methods and procedures of science rather than on subjective belief or unsupported speculation." Schneider, 320 F.3d at 404 (internal quotation marks omitted). Our analysis is flexible and may include such factors as:
(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.
Pineda,
520 F.3d at 247-48.
Expert testimony must also "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Thus, to "fit," such evidence must bear some relation to the "particular disputed factual issues in the case." United States v. Downing, 753 F.2d 1224, 1237 (3d Cir. 1985). Accordingly, this factor has been described as one of relevance.Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993);Paoli, 35 F.3d at 745 n. 13.
Defendants challenge the qualifications of Solseng and Contreras as well as the reliability of the methodology they employed. Solseng and Contreras, geotechnical engineers with a specialty in what is known as mine tailings, first reviewed historical engineering and geotechnical documents for evidence of prior red mud releases. They then conducted a field study of the refinery area known as "Area A," where plaintiffs allege that red mud had been released prior to 2002. They measured the red mud in various parts of Area A and dug eight trenches in order to examine the soil layers. Finally, they cut down a Tan Tan tree that appeared to be growing in several layers of red mud and sent a cross-section of the tree to a BARR Engineering colleague, Daniel Jones, who has been characterized as a plant specialist. Jones attempted to determine the tree's age by counting the rings in its cross-section.
Unwanted materials that remain after an industrial process has been used to removed desired materials are referred to as "tailings." Specifically, "mine tailings" are those unwanted materials derived from metal extractions, such as alumina refining.
Defendants specifically call into question the reliability of the document review and field study observations by Solseng and Contreras. Defendants allege that Solseng and Contreras cannot rely on several documents contained in their historical review because they are not the type reasonably relied on by engineers. They further maintain that the trenches dug by Solseng and Contreras were located randomly and produced no concrete evidence of multiple red mud layers or the timing of the purported releases.
We disagree and find the methods of soil layer analysis to be reliable. Solseng and Contreras reviewed the available literature in order to learn in which areas they were most likely to find the evidence of red mud releases. Such a practice is appropriate. Furthermore, Solseng and Contreras were entitled to rely on their experience in the field for the exact location of the trenches. They performed a standard analysis of the soil strata in each trench, with four trenches revealing discrete layers of red mud and other soils. Solseng and Contreras were not required to conduct their investigation in the "best" manner, merely a generally reliable one. If defendants believe that the methodology employed by Solseng and Contreras is sub-optimal and that different fieldwork would have yielded better evidence, they are free to bring out any deficiencies during cross-examination.
Defendants also call into question the qualifications of Solseng and Contreras in offering their opinion as to the date of the red mud layers based on the age of a Tan Tan tree growing in the area. Solseng and Contreras dated the deposits of the red mud in Area A by identifying when this Tan Tan tree began to grow. During the field study in April 2010, they identified a Tan Tan tree with a root flare that had grown over the surface of the mud. In their expert opinion, if the tree had grown before the red mud releases, the root flare would be below the surface of the ground and covered by releases. They concluded that because the root flare was exposed the tree grew after the mud was deposited. By dating the Tan Tan tree itself, they establish a benchmark date before which at least one red mud release had occurred.
Solseng and Contreras concede that they themselves do not have the expertise in the dating of the Tan Tan tree. When Solseng and Contreras chopped down the tree, they sent a cross-section of it to their associate Daniel Jones. Jones is a plant specialist with an undergraduate degree in botany and a master's degree in biology. Jones simply counted the dormancy rings in the Tan Tan cross-section. Each ring in a tree's cross-section indicates a period of dormancy, which Jones believed represented a year's time. Based on the rings of the Tan Tan cross-section, Jones estimated that the tree was between 16 and 17 years old, dating its initial growth to 1993-1994. Based at least in part on this date, Solseng and Contreras opine that at least one red mud release had occurred prior to 1993-1994 and thus prior to the reported April 2002 release.
Although in his career Jones has counted annual rings on trees to determine their age, he never took any specific courses in dendrochronology, the science of dating trees, and has no training and minimal expertise in this field. Moreover, he has no experience whatsoever in the botany of tropical regions, including that of St. Croix. Before this project, he had never before done any work in a tropical climate, let alone engaged in dendrochronology in a tropical climate.
Jones relied on two articles to support his contention that Tan Tan trees in tropical climates produce annual rings. The first article is entitled, "Anatomy of Grown Rings at the Yucatan Penninsula." This article provides:
A variety of environmental stressors (including climate) affect the physiology of trees and these variations are recorded in the tree rings. Thus, dendrochronology has been extensively employed in environmental studies of temperate and high altitude forests, but there have been few applications to date from the tropics (Roig, 2000).
One of the main reasons is that many tropical trees do not produce anatomically distinctive annual growth rings that can be used for the development of reliable tree-ring chronologies. (emphasis added)
While this article does arrive at the conclusion that "many woods in this study region will show anatomical growth markers," it does not provide any basis for believing that either the Tan Tan tree specifically or trees in St. Croix generally are among the ones that will.
The second article on which Jones relied, "Leucaena leucocephala (Lam.) de Wit," is authored by John K. Francis. The Francis article provides a general description of Leucaena leucocephala, which is the scientific name for the Tan Tan tree. While the article notes that the Tan Tan tree both grows in the tropics and "has visible annual rings," there is no basis for determining whether its conclusions are authoritative. The Francis article fails to cite any references or studies whatsoever for the proposition that growth rings in the Tan Tan tree are formed on an annual basis. Furthermore, it only identifies Francis as a "Research Forester, U.S. Department of Agriculture, Forest Service, International Institute of Tropical Forestry." From this description, there is no way to tell whether Francis himself is qualified to opine on the presence of annual rings in the Tan Tan tree in St. Croix. Jones does not state that he knows anything about Francis or whether he is qualified in the field of dendrochronology. The article does not list the education or experience of Francis, and we have no way to know what the qualifications are for a "Research Forester." Simply because a proposition appears somewhere in writing does not mean that the author is qualified to make it or that it is scientifically reliable.
Furthermore, in his deposition, Jones made statements that undermined his conclusion that the Tan Tan tree produces distinct annual rings in tropical climates. He conceded that other environmental conditions, such as drought, can result in periods of dormancy and produce visible rings. He also stated that he did not know whether trees in tropical areas experienced annual periods of dormancy in the winter.
In sum, Jones has no independent qualifications for rendering an opinion on the dendrochronology of a tropical tree. The writings he cites for information on dating a cross-section of Tan Tan tree do not provide the proper support for the contention that the Tan Tan tree generally produces annual rings. They provide no support that St. Croix has the type of climate that would produce an annual winter dormancy period for trees. Jones himself admitted that the rings could have been produced by events other than annual winter dormancy periods. Plaintiffs bear the burden of proving by a preponderance of the evidence that their proffered expert is qualified. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-45 (3d Cir. 1994). They have failed to meet that burden here. Even assuming that Solseng and Contreras would be entitled to rely on Jones's work in offering their opinions if Jones himself were a qualified expert, they cannot be permitted under the circumstances to testify regarding the dating of the Tan Tan tree or to provide any opinion resulting from the dating of that tree.
Finally, defendants also contend that this expert testimony does not "fit" the facts of the case because Solseng and Contreras do not opine that the red mud releases reached the Caribbean Sea and thus qualify as a violation of environmental law under the terms of the sale agreement. This argument is unavailing at this time. The testimony of Solseng and Contreras regarding the varying layers of red mud and the likelihood of numerous distinct releases over a period of years may establish that the red mud in Area A did not arrive there via erosion. Plaintiffs will need to present evidence that the red mud reached the sea in order to establish an environmental violation at trial, but they are free to do so in other ways consistent with the Rules of Evidence. The testimony of Solseng and Contreras cannot be said not to "fit" the plaintiffs' claims merely because it does not prove by itself all that plaintiffs must prove to prevail on their claims.
Solseng and Contreras will be permitted to offer their expert opinion at trial. However, they will be precluded from testifying as to the dating or age of the Tan Tan tree or the date of any red mud layer that is based on the dating or age of such tree.
ORDER
AND NOW, this 1st day of December, 2010, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of defendants to exclude the expert testimony of Phillips Solseng and Ivan Contreras of BARR Engineering (Doc. #320) is GRANTED in part and DENIED in part;
(2) the motion is GRANTED to the extent that Solseng and Contreras seek to testify about the dating and age of a Tan Tan tree found on the refinery property or to render any opinion based on its age; and
(3) the motion is DENIED in all other respects.
tial summary judgment.
See Baloch, 517 F. Supp. 2d at 348 n. 2 ("If the movant raises arguments for the first time in his reply to the non-movant's opposition, the court will either ignore those arguments in resolving the motion or provide the non-movant an opportunity to respond to those arguments by granting leave to file a sur-reply."). Accordingly, the Court shall deny Plaintiff's motion for leave to file a surreply.
B. Defendants' Motion for Partial Summary Judgment
Defendants' motion for partial summary judgment is limited to the narrow issue of what damages Mrs. Himes may recover under her Wrongful Death Act claim (Count II). See Defs.' Mot. at 4-9. The Wrongful Death Act provides, in pertinent part:
As this is a diversity action, the Court must generally first determine which jurisdiction's law to apply. The Court notes, however, that Defendants have not challenged Mrs. Himes' application of the District of Columbia's Wrongful Death Act, and both parties therefore assume that District of Columbia law governs. "The Court need not and does not question the parties' assumptions on that point." Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60, 65 (D.D.C. 2009); see also CSX Transp., Inc. v. Commercial Union Ins. Co., 82 F.3d 478, 48283 (D.C. Cir. 1996) (parties may waive choice-of-law arguments); C E Servs., Inc. v. Ashland, Inc., 498 F. Supp. 2d 242, 255 n. 5 (D.D.C. 2007) (same); cf. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1495 (D.C. Cir. 1991) ("[C]ourts need not address choice of law questions sua sponte.").
[Damages] shall be assessed with reference to the injury resulting from the act, neglect, or default causing the death, to the spouse or domestic partner and the next of kin of the deceased person; and shall include the reasonable expenses of last illness and burial. Where there is a surviving spouse or domestic partner, the jury shall allocate the portion of its verdict payable to the spouse or domestic partner and next of kin, respectively, according to the finding of damage to the spouse or domestic partner and next of kin. D.C. Code § 16-2701(b).
The Act provides a decedent's "close relatives" a cause of action to recover damages for "`the pecuniary benefits that [they] might reasonably be expected to have derived from the deceased had he lived.'" Lewis v. Lewis, 708 A.2d 249, 251-52 (D.C. 1998) (quoting Semler v. Pyschiatric Inst. of Washington, D.C., Inc., 575 F.2d 922, 925 (D.C. Cir. 1978)). A decedent's close relatives may recover these damages "provided the personal representative of [the] deceased's estate prevails in their behalf in the wrongful death action. . . ." Runyon v. District of Columbia, 463 F.2d 1319, 1321 (D.C. Cir. 1972). Under the Wrongful Death Act, pecuniary losses include both: (1) "the loss of financial support the decedent could have expected to provide the next of kin had he lived;" and (2) "the value of lost services (e.g., care, education, training, and personal advice)." Herbert v. District of Columbia, 808 A.2d 776, 778 n. 2 (D.C. 2002); accord District of Columbia v. Hawkins, 782 A.2d 293, 303 (D.C. 2001); Doe v. Binker, 492 A.2d 857, 863 (D.C. 1985). The Act, however, does not provide damages for non-pecuniary losses, such as grief, mental anguish, or sentimental loss. See, e.g., Elliott v. Michael James, Inc., 559 F.2d 759, 766 (D.C. Cir. 1977).
Defendants' motion for partial summary judgment, hardly the model of artful drafting, pertains only to Mrs. Himes' claims for damages for the loss of Mr. Himes' services, and particularly his care, education, training, guidance, and personal advice (collectively, "parental services") to the Adult Children. Specifically, Defendants assert two alternative grounds for precluding such damages. First, Defendants argue that because the Adult Children have reached the age of majority, Mrs. Himes is barred as a matter of law from recovering the value of Mr. Himes' parental services to the Adult Children. See Defs.' Mot. at 6-7. Alternatively, Defendants weave their way through a series of contentions to essentially argue that, even if Mrs. Himes could recover damages for the Adult Children's lost parental services, Mrs. Himes has failed to present sufficient evidence of such services, and consequently these damages should be barred. See id. at 8-9.
Damages for a decedent's lost services may extend beyond just parental services and include such services as cooking dinner, grocery shopping, and household repairs. See, e.g., Graves v. United States, 517 F. Supp. 95 (D.D.C. 1981). With one exception set forth below, Defendants' motion for partial summary judgment only addresses the parental services subset of services that Mr. Himes provided to his family.
Before addressing the merits of Defendants' motion, the Court notes that in addition to the Wrongful Death Act itself, Mrs. Himes' damage claims are also governed by several general principles. Namely, "[t]he issue of damages in a wrongful death or survival action, as in other actions, is particularly within the province of the jury." Binker, 492 A.2d at 863; see also id. at 864 ("In wrongful death actions, `[t]he amount of damages to be awarded must be based largely on the good sense and sound judgment of the jury . . . [and] all the facts and circumstances of the case.'" (quoting Rankin v. Shayne Bros., Inc., 234 F.2d 35, 36 (D.C. Cir. 1956) (alterations in the original)). Despite this discretion, a jury's damage award must be supported by "substantial evidence" — i.e., "the evidence must be more than a `scintilla,' but it `need not point entirely in one direction.'" Id. (quoting Balt. O.R. Co. v. Postom, 177 F.2d 53, 55 (1949)). Additionally, "[w]hile damages are not required to be proven with mathematical certainty, there must be some reasonable basis on which to estimate damages." Wood v. Day, 859 F.2d 1490, 1493 (D.C. Cir. 1988) (quoting Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C. 1982)) (internal quotation marks omitted and alteration in the original). With these general principles in mind, the Court now turns to the merits of Defendants' motion for partial summary judgment.
1. The Wrongful Death Act Does Not Preclude Mrs. Himes from Recovering Damages for the Adult Children's Lost Parental Services
Defendants' principal argument is that no case law supports allowing Mrs. Himes to recover, under a Wrongful Death Act claim, the value of the Adult Children's lost parental services. Defs.' Mot. at 6. In response, Mrs. Himes argues, inter alia, that the Act does not explicitly preclude adult children from recovering the value of lost parental services and the cases Defendants rely upon are distinguishable. Pl.'s Opp'n at 9-11, 13-21. For the reasons set forth below, the Court agrees with Mrs. Himes.
Notably, as Mrs. Himes correctly notes, the plain language of the Wrongful Death Act does not explicitly bar a decedent's adult children from recovering damages for lost parental services. See Pl.'s Opp'n at 10. The beneficiaries of a Wrongful Death Act claim are statutorily defined as the decedent's "spouse or domestic partner and [] next of kin." D.C. Code § 16-2701(b).
Nowhere does the Act distinguish among these potential beneficiaries on the basis of their age or whether they are seeking damages for lost parental services. See id. § 16-2701; see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. . . . When the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.'") (internal citations omitted). Instead, potential beneficiaries under the Act include a decedent's "next of kin," D.C. Code § 16-2701(b), which is a "broad and inclusive" term that this Court must afford a "generous construction," Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1234 (D.C. Cir. 1997) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)); see also Public Citizen v. Farm Credit Admin., 938 F.2d 290, 293 (D.C. Cir. 1991) ("[I]f [the legislature] has intentionally and unambiguously crafted a particularly broad, all-inclusive definition, it is not [a court's] function . . . to subvert that effect." (quoting Consumers Union v. Heimann, 589 F.2d 531, 533 (D.C. Cir. 1978))). Therefore, the Court concludes that the plain meaning of the Act's text does not substantiate Defendants' narrow interpretation that would bar a decedent's adult children, but not minor children, from recovering damages for lost parental services.
Defendants, not to be deterred by the fact that the Wrongful Death Act's text does not support their position, forgo any textual analysis in favor of cobbling together an assortment of cases they claim indicate that adult children cannot recover the value of lost parental services under the Wrongful Death Act. See Defs.' Mot. at 6-7. Upon review of these cases, the Court finds Defendants' argument unconvincing.
Defendants first rely on Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001). See Defs.' Mot. at 6. In Butera, the D.C. Circuit analyzed, inter alia, whether a mother had a constitutionally protected liberty interest in companionship with her adult son that could be enforced through a section 1983 claim. 235 F.3d at 654-56. The D.C. Circuit resolved this question in the negative, finding that the diminishing dependence that adult children generally have on a parent warranted distinguishing case law that had found that parents have a constitutionally protected liberty interest in companionship with their minor children. See id. at 655-56.
Without any explanation as to its relevance, Defendants quote the Butera court's discussion distinguishing the relationships adult and minor children have with their parents. See Defs.' Mot. at 6. As this discussion does not pertain to the Wrongful Death Act, Butera is clearly not binding authority as to whether adult children may recover damages for lost parental services under the Act. To the extent Defendants rely on Butera to argue that, as a general principle, an adult child relies on a parent less than a minor child, the Court need not agree nor disagree. Because damages under the Wrongful Death Act are not awarded based on social norms of dependency, but based on the beneficiary's actual dependency on the decedent, the general principle enunciated in Butera does not persuade the Court to impose an age restriction on Wrongful Death Act beneficiaries that is unsupported by the Act's text. See Lewis, 708 A.2d at 251-52 (damages under the Wrongful Death Act are limited to "the pecuniary benefits that statutory beneficiaries might reasonably be expected to have derived from the deceased had he lived." (quoting Semler, 575 F.2d at 925) (internal quotation marks omitted)).
Second, Defendants rely on the 115-year-old case of Baltimore P.R. Co. v. Golway, 6 App. D.C. 143, 1895 WL 11770 (D.C. Cir. 1895), to argue that damages for lost parental services are not recoverable once a decedent's child reaches the age of majority. Defs.' Mot. at 6-7. In Golway, the court interpreted the language of a previous District of Columbia wrongful death statute, which is substantially identical to the current statutory language in all relevant respects, to limit damages assessed under the statute to pecuniary injuries. Id. at *22. The court then concluded that "the advice and counsel of a good and sensible father" to adult children has a value too "vague and uncertain" to constitute a pecuniary injury. Id. (reversing the trial court's jury instruction permitting such damages).
Modern courts interpreting the current Wrongful Death Act agree with the Golway court that, under District of Columbia law, a plaintiff may only recover damages for pecuniary injuries under a wrongful death claim. Compare id., with Lewis, 708 A.2d at 251-52. The Golway court's decision, however, that this limitation requires categorically barring damages for parental advice appears to be a dead letter. Defendants do not cite, and this Court could not find, a single District of Columbia court that has adopted this categorical exclusion in the Golway opinion's 115-year-old existence. Perhaps, this is because modern courts address the Golway court's concern — awarding damages for injuries with a vague and uncertain value — not by categorically excluding types of damages that may be prone to uncertain values, but by requiring a plaintiff's damage award to be supported by substantial evidence. See Binker, 492 A.2d at 863 (requiring evidence supporting a jury award to "be more than a `scintilla,' but it `need not point entirely in one direction.'" (quoting Postom, 177 F.2d at 55)); see also Romer, 449 A.2d at 1100 ("While damages are not required to be proven with mathematical certainty, there must be some reasonable basis on which to estimate damages."). Regardless of the precise reasons modern courts have elected not to rely upon Golway's interpretation of permissible damages in a wrongful death claim, the Court declines Defendants' invitation to be the first court in over a century to resurrect Golway so as to categorically bar Mrs. Himes from recovering the value of Mr. Himes' parental services to the Adult Children.
Third, Defendants rely upon a trial court's remittitur quoted in District of Columbia v. Jackson, 810 A.2d 388, 398 (D.C. 2002), to argue that case law supports barring a decedent's adult children from recovering the value of lost parental services. See Defs.' Mot. at 7. The Court is not persuaded. In Jackson, the court affirmed a remittitur in which the trial court concluded that the over two-million dollar jury award was out of proportion to "the loss of services and care, education, training, guidance and parental advice this particular decedent, based on the record, could have been expected to give [plaintiff] for five years until she turned eighteen." 810 A.2d at 398. Despite neither the Jackson court nor the trial court explicitly providing that adult children are barred as a matter of law from recovering the value of lost parental services, Defendants seize upon the quote's final four words — "until she turned eighteen" — as evidence of such a bar. See Defs.' Mot. at 7. This argument, however, ignores the trial court's explicit justification for issuing the remittitur: the two-million dollar jury award was excessive in light of the evidence presented at trial. See Jackson, 810 A.2d at 398 (finding the verdict excessive "based on the record"). The fact that the Jackson court also affirmed the remittitur based in part on the record's "limited proof of services" further solidifies this Court's conclusion that Jackson does not support Defendants' argument, as the case merely stands for the
To clarify, Defendants do not rely upon the Jackson court's opinion, but the excerpts of the trial court's remittitur quoted therein. See Defs.' Mot. at 7. The remittitur does not appear to be set forth in full in Jackson and Defendants have not provided the Court a complete version of the remittitur. Even if the Court were persuaded that the remittitur quoted in Jackson supported Defendants' position, which the Court is not, the Court still would not impose an interpretation of the Wrongful Death Act unsupported by its text based on such an incomplete source.
unremarkable proposition that excessive damages may be reduced by a remittitur. See id.
For similar reasons, Defendants' final case, Graves v. United States, 517 F. Supp. 95 (D.D.C. 1981), also does not support Defendant's interpretation of the Wrongful Death Act. After a bench trial, the Graves court found the plaintiff's estimate of the value of decedent's services excessive in light of the evidence presented at trial that the decedent "tutored his 16 year old daughter, taught his sons his trade, cooked dinner, did grocery shopping for the family, and did all of the household and automobile repairs." Id. at 100. Contrary to Defendants' characterization, see Defs.' Mot. at 7, the Graves court did not disagree with the plaintiff's estimate because the decedent's children were barred as a matter of law from recovering the value of lost parental services once they reached the age of majority. Instead, the Graves court found that, although "there would have come a point where [the decedent] would have no longer been required to tutor his daughter and would have let experience take over as his sons' teacher," plaintiff's estimate erred in assuming that the decedent would continue to provide these services for the remaining thirty-three and a half years of his life expectancy. Graves, 517 F. Supp. at 99 n. 6 100; see also Lewis, 708 A.2d at 251-52 (damages under the Wrongful Death Act are limited to "the pecuniary benefits that statutory beneficiaries might reasonably be expected to have derived from the deceased had he lived." (quoting Semler, 575 F.2d at 925) (internal quotation marks omitted and emphasis added)). In fact, Graves undermines Defendants' argument: if the ages of a decedent's children were the basis of a bright-line rule against recovery that Defendants claim, then surely the Graves court would have explicitly referenced such a rule. Instead, the court presumably found the ages of the decedent's children largely irrelevant to its inquiry, as the ages of the decedent's sons are completely omitted from the opinion. See generally Graves, 517 F. Supp. at 95.
In conclusion, the Court finds that the cases Defendants rely upon do not support a more restrictive interpretation of the Wrongful Death Act than indicated by the Act's text. The Act's text does not distinguish among potential beneficiaries on the basis of their age or whether they are seeking damages for lost parental services. See D.C. Code § 16-2701. Instead, the Act defines the potential beneficiaries of a Wrongful Death Act claim broadly so as to include "next of kin." Id. § 16-2701(b). To effectuate this fairly broad phrase, this Court must reject Defendants' efforts to impose a narrower definition of potential beneficiaries based on the beneficiary's age and the type of damages sought. See Public Citizen, 938 F.2d at 293 ("[I]f [the legislature] has intentionally and unambiguously crafted a particularly broad, all-inclusive definition, it is not [a court's] function . . . to subvert that effect." (quoting Heimann, 589 F.2d at 533)). Therefore, for the aforementioned reasons, the Court rejects Defendants' first basis for partial summary judgment.
2. A Genuine Issue Exists Regarding Mrs. Himes' Damages for the Adult Children's Lost Parental Services
Defendants' alternative basis for summary judgment fares no better. Though convoluted, Defendants' alternative argument appears to break into three discrete sub-parts. First, Defendants claim that damages for the Adult Children's lost services are barred as a matter of law to the extent they duplicate damages for Mrs. Himes' lost services. See Defs.' Mot. at 8. Second, Defendants contend that because the Adult Children have reached the age of majority, evidence supporting their damages for lost guidance and personal advice must meet a higher standard of proof than what is required for minor children to recover similar damages. See id. Finally, Defendants object to Mrs. Himes' evidence of the Adult Children's lost parental services as "vague" and "uncertain." See id. The Court shall address each argument below.
a. Damages for the Adult Children's lost services are not barred because they may duplicate damages for Mrs. Himes' lost services
Defendants argue that damages for the Adult Children's lost services are not recoverable under the Wrongful Death Act to the extent they duplicate Mrs. Himes' damages for lost services. See Defs.' Mot. at 8; see also Defs.' Reply at 2 (arguing that the Adult Children's claims are "subsumed within the claim of [Mrs. Himes]"). Defendants' argument is without merit.
Here, Defendants refer to the services Mr. Himes provided to the entire household, including cooking, cleaning, and grocery shopping. See Defs.' Mot. at 8.
First, Defendants' argument has a dubious premise. Defendants fail to cite to where Mrs. Himes has ever claimed damages for lost services that might hypothetically duplicate those for the Adult Children. See Defs.' Mot. at 8; Defs.' Reply at 3-5. Moreover, the estimate of the present value of Mr. Himes' services that Mrs. Himes produced in this case is based on the value of Mr. Himes' services to the entire household — not to individual family members. See Defs.' Mot., Ex. 8 (October 23, 2009 Supplemental Report of Economic Loss of David Himes), at 6. Therefore, other than through pure conjecture, the Court fails to see how Defendants are able to surmise that Mrs. Himes and the Adult Children have claimed duplicative damages from an estimate that provides a single, lump sum value for all of Mr. Himes' lost services.
Even assuming, arguendo, that damages for Mrs. Himes and the Adult Children's lost services are duplicative, Defendants have presented no legal authority that would support this Court barring specific damages on a motion for summary judgment. Notably, Defendants cannot rely on the Wrongful Death Act's text, which has no such restriction, to support their argument. See D.C. Code § 16-2701. Meanwhile, the sole case Defendants rely upon, Runyon v. District of Columbia, 463 F.2d 1319 (D.C. Cir. 1972), does not support their position. See Pl.'s Opp'n at 13. Although the Runyon court did state "that double recovery for the same elements of damage should of course be avoided," 463 F.2d at 1321 (quoting Hudson v. Lazarus, 217 F.2d 344, 349 (D.C. Cir. 1954)), it did so when reversing the trial court's remittitur — i.e., post-trial, see id. at 1321-23. Runyon does not support this Court prospectively limiting Mrs. Himes' Wrongful Death Act damages on summary judgment. In fact, it would make no sense for this Court to do so without knowing whether the jury will in fact award Mrs. Himes lost services damages — the necessary predicate for the Adult Children's damages to be potentially duplicative.
Despite the inexplicable factual and legal bases for Defendants' argument, it is clear that the argument derives from Defendants' disagreement with Mrs. Himes' estimate of the value of Mr. Himes' lost services. See, e.g., Defs.' Stmt. ¶ 15 ("This valuation is premised on a healthy 49 year old, not a `disabled' 49 year old, as was David Himes"); Defs.' Reply at 4 ("Defendants' [sic] dispute both the value assigned to these lost services and the claim that this decedent who at the time of his death suffered from a pre-existing and unrelated disability."). However, it is for the jury, not the Court on summary judgment, to determine the proper valuation and allocation of damages for the loss of Mr. Himes' services. See D.C. Code § 16-2701(b) (" [T]he jury shall allocate the portion of its verdict payable to the spouse or domestic partner and next of kin, respectively, according to the finding of damage to the spouse or domestic partner and next of kin.") (emphasis added); see also Binker, 492 A.2d at 860 ("The issue of damages in a wrongful death or survival action, as in other actions, is particularly within the province of the jury."). To the extent Defendants are fearful that the jury's allocation of damages in this case may be excessive, presenting this argument on summary judgment is premature. See D.C. Code § 162701(b) ("If, in a particular case, the verdict is deemed excessive, the trial judge or the appellate court, on appeal of the cause, may order a reduction of the verdict."); cf. United States ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 501 F. Supp. 2d 51, 53 n. 2 (D.D.C. 2007) ("Defendant [] makes what is, in essence, a preliminary motion for remittitur on the grounds that the damage amount against him is excessive. . . . [A]s the judgment has not yet been entered in this case, [defendant's] argument for remittitur is premature.").
Therefore, for the aforementioned reasons, the Court rejects Defendants' argument that damages for the Adult Children's lost services are barred as a matter of law because they duplicate the damages for Mrs. Himes' lost services.
b. Damages for the Adult Children's lost guidance and personal advice are not subject to a higher standard of proof
Defendants also argue that because the Adult Children have reached the age of majority, their damages for lost guidance and personal advice must be proven by "very specific" evidence and must be for services comparable to those "one could obtain from a professional." Defs.' Mot. at 8. Once again, in what has become a refrain in this Memorandum Opinion, Defendants present no legal authority pertaining to the Wrongful Death Act to support their argument. See id.
Instead, under the apparent misconception that every jurisdiction's wrongful death statute must be interpreted identically, Defendants support their argument by citing to four cases that all discuss other jurisdictions' wrongful death statutes. See id. at 8-9 ( Green v. Bittner, 424 A.2d 210 (1980) (New Jersey's wrongful death statute); Oldham v. Korean Air Lines Co., Ltd., 127 F.3d 43 (D.C. Cir. 1997) (the federal Death on the High Seas Act ("DOSHA")); Soloman v. Warren, 540 F.2d 777 (5th Cir. 1976) (DOSHA); First Bank in Greenwich v. Nat'l Airlines, Inc., 288 F.2d 621 (2d Cir. 1961) (DOSHA)). Defendants make no effort to explain why the Wrongful Death Act must be construed consistent with these other jurisdictions' statutes. See generally Defs.' Mot.; Defs.' Reply.
Moreover, review of the cases Defendants rely upon reveals that these heightened standards are simply courts' attempts to delineate between pecuniary and non-pecuniary losses. For example, the New Jersey Supreme Court interpreted New Jersey's wrongful death statute as requiring that damages for "[c]ompanionship and advice . . . be limited strictly to their pecuniary element." Bittner, 424 A.2d at 215. Accordingly, the court required such damages to "be confined to what the marketplace would pay a stranger with similar qualifications for performing such services," so as to ensure that no damages "may be attributed to the emotional pleasure that a parent gets when it is his or her child doing the caretaking rather than a stranger." Id. at 215-16. Similarly, to ensure that damages are being awarded for the pecuniary aspect of an adult child's lost parental guidance and training, courts awarding damages under DOSHA require a "very specific showing" that the "parents' guidance had a pecuniary value beyond the irreplaceable values of companionship and affection." Oldham, 127 F.3d at 56 (quoting Soloman, 540 F.2d at 789).
Under the District of Columbia's Wrongful Death Act, however, the limitation of damages to strictly pecuniary losses functions differently. Although this limitation excludes damages for grief, mental anguish, or sentimental loss, courts have also recognized that this limitation:
must not be used to defeat the humanitarian objective of the statute[] and to limit recovery to nominal damages. The pecuniary loss resulting from the death of a
member of the family cannot be ascertained with precision or computed with accuracy. True, in the case of an adult, the income of the deceased and his earning capacity form a partial basis for a conclusion. Even in such a situation, however, an element of chance and conjecture enters into the determination, because if the deceased had not lost his life as a result of the defendant's negligence, he might have died shortly thereafter in another accident or from some natural cause.
Elliott, 559 F.2d at 766 (quoting
Hord v. Nat'l Homeopathic Hosp., 102 F. Supp. 792, 794 (D.D.C. 1952),
aff'd, 204 F.2d 397 (D.C. Cir. 1953));
see also Hord, 102 F. Supp. at 794-95 ("Death statutes have their roots in dissatisfaction with the archaisms of the law. . . . It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied." (quoting
Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51 (1937))). Therefore, rather than bar certain lost service damages out of concern of their potentially non-pecuniary nature, District of Columbia courts require a damage award to be "`based largely on the good sense and sound judgment of the jury . . . [and] all the facts and circumstances of the case,'"
Binker, 492 A.2d at 864 (quoting
Rankin, 234 F.2d at 36) (alteration in the original), as the "loss of [] services cannot be quantified with mathematical precision,"
id. at 863.
In conclusion, the Wrongful Death Act's text and case law do not support Defendants' two-tiered, heightened standard for adult children seeking damages under the Act for lost guidance and advice. Furthermore, this Court, sitting in diversity, is not inclined to fashion novel burdens of proof under a state law ex nihilo. See, e.g., Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993) (A "federal court in a diversity case is not free to engraft onto . . . state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits." (quoting Tidler v. Eli Lilly Co., 851 F.2d 418, 424 (D.C. Cir. 1988))); Tidler, 851 F.2d at 424 ("Absent
some authoritative signal from the legislature or the [state courts], we see no basis for even considering the pros and cons of innovative theories. . . . We must apply the law of the forum as we infer it presently to be, not as it might come to be." (quoting Dayton v. Peck, Stow Wilcox Co., 739 F. 2d 690, 694-95 (1st Cir. 1984))). Therefore, the Court rejects Defendants' argument that, because the Adult Children have reached the age of majority, their damages for lost guidance and personal advice must somehow meet a higher standard of proof.
c. A genuine issue exists as to whether Mr. Himes provided parental services to the Adult Children
For their final argument, Defendants claim that Mrs. Himes' evidence of the parental services Mr. Himes provided to the Adult Children is "vague," "uncertain," and "fail[s] to set forth in any detail the claim for pecuniary loss." Defs.' Mot. at 8. The Court construes this argument as claiming that there is no genuine issue that Mr. Himes did not actually provide parental services to the Adult Children, and therefore Defendants are entitled to judgment as a matter of law precluding such damages. As previously mentioned, damages under the Wrongful Death Act for lost services include damages for lost "care, education, training, and personal advice." E.g., Herbert, 808 A.2d at 778 n. 2.
Defendants do not appear to claim that Mrs. Himes' evidence regarding other, nonparental services that Mr. Himes provided to the Adult Children are "vague" or "uncertain." See Defs.' Mot. at 8 ("[T]he adult children also seek to recover for lost services as it relates to loss of parental support. The evidence on this point is vague and evidences only that the decedent was available to talk to his children about what was going on in their lives and steer them in the right direction."). However, even if Defendants' motion for partial summary judgment extends beyond strictly parental services, the Court would similarly deny the motion as the record indicates that Mr. Himes performed yard work, laundry, cooking, and grocery shopping for his family, including the Adult Children. 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.
To the extent Defendants seek summary judgment because Mrs. Himes' evidence does not meet the heightened standard of a "very specific showing," the Court rejects this argument for the reasons stated above. See supra Part III.B.2.b.
In response to Defendants' motion, Mrs. Himes has identified specific facts demonstrating the existence of a genuine issue that Mr. Himes provided parental services. See Pl.'s Opp'n at 12. For example, Mrs. Himes identifies how Defendants do not dispute that Mr. Himes provided child care services to his daughter Nicole, by feeding and caring for her children. See Pl.'s Opp'n at 12; Defs.' Stmt. ¶¶ 8, 11; Diana Himes Dep. at 64:11-15, 65:1-2. Mrs. Himes also contends that Mr. Himes provided personal advice to the Adult Children. See Pl.'s Opp'n at 12; Defs.' Stmt. ¶ 8; Diana Himes Dep. at 66:15-17. In their reply, Defendants do not rebut Mrs. Himes' claim that the aforementioned facts demonstrate the existence of a genuine issue that Mr. Himes provided parental services to the Adult Children. See generally Defs.' Reply.
Analyzing these facts in Mrs. Himes' favor, as the Court must, a reasonable trier of fact could find for Mrs. Himes and award damages for the Adult Children's lost parental services. See Liberty Lobby, 477 U.S. at 255 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). In reaching this conclusion, the Court expresses no opinion as to the actual value of these lost parental services, as "[t]he issue of damages in a wrongful death or survival action . . . is particularly within the province of the jury." Binker, 492 A.2d at 860. The Court simply holds that Mrs. Himes has demonstrated a genuine issue as to whether Mr. Himes actually provided parental services to the Adult Children.
IV. CONCLUSION
The Court has considered the remaining arguments tendered by the parties, and has concluded that they are without merit. Therefore, and for the reasons set forth above, the Court shall DENY Plaintiff's [63] Motion for Leave to File a Surreply. Additionally, the Court shall DENY Defendants' [60] Motion for Partial Summary Judgment as (1) Mrs. Himes is not barred as a matter of law from recovering damages under the Wrongful Death Act for the Adult Children's lost services and (2) a genuine issue exists as to whether Mr. Himes provided the Adult Children parental services. An appropriate Order accompanies this Memorandum Opinion.