Green v. Costco Wholesale Corporation ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DENIERIKA F. GREEN, )
)
Plaintiff, )
)
v. )
) Case No. 21-cv-02061 (APM)
COSTCO WHOLESALE CORPORATION, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiff Denierika F. Green was waiting in the checkout line at a Costco in Washington,
D.C., when a store employee carrying a case of bottled water on his shoulder made contact with
her head. Plaintiff claims that this contact resulted in a concussion and various long-term medical
issues, which kept her out of work and eventually forced her to retire. The court has construed
Plaintiff’s pro se complaint and legal brief to assert three theories of negligence: (1) ordinary
negligence, (2) negligence per se, and (3) res ipsa loquitur. Plaintiff seeks $350,000 in damages
to recover lost income and medical expenses.
Before the court is Defendant Costco Wholesale Corporation’s motion for summary
judgment. Def.’s Mot. for Summ. J., ECF No. 20 [hereinafter Def.’s Mot.]. For the reasons stated
below, the motion is granted.
I.
A.
On January 8, 2019, Plaintiff was waiting in the checkout line at the Costco store located
at 2441 Market Street, N.E. in Washington, D.C. Def.’s Mot., Mem. in Supp. of Def.’s Mot., ECF
No. 20-1 [hereinafter Def.’s Mem.], at 1. A Costco employee walked by carrying a case of bottled
water on his shoulder, instead of on a cart. Id. Plaintiff felt something strike the back of her head.
She initially believed she was hit by a bird. Pl.’s Dep. Tr., ECF No. 27 [hereinafter Pl.’s Dep.].
Plaintiff claims that she suffered a concussion from the strike. She “was precluded from
work several times; at the initial incident January 8th 2019, January 23rd 2019 for 4 weeks and
ultimately for the remainder of the year May 13th 2019.” Pl.’s Opp’n to Def.’s Mot., ECF No. 23
[hereinafter Pl.’s Mot.], Pl.’s Mem. in Supp. of Opp’n, ECF No. 23-13 [hereinafter Pl.’s Opp’n],
at 9 1; see Pl.’s Mot., Ex. 11, ECF No. 23-11 [hereinafter Pl.’s Ex. 11] (primary care provider’s
notes excusing Plaintiff from work). She also claims to have developed long-term health
conditions that forced her to retire from work, including post-concussion syndrome, whiplash,
hearing loss with tinnitus, vision impairment, post-traumatic stress disorder, adjustment disorder, 2
vertigo, and dizziness. Pl.’s Opp’n at 15. In November 2020, a clinical neuropsychologist
conducted an evaluation and found Plaintiff had a “mildly abnormal exam with psychomotor
slowing, attentional difficulties, and inefficient learning for words,” but stated that the issues were
likely due to a multitude of causes, such as “pre-existing factors, normal intra-individual
variability, sleep fragmentation, and psychiatric distress,” and that it was “unlikely that these
difficulties [were] the direct result of her concussion.” Pl.’s Mot., Ex. 9, ECF No. 23-9 [hereinafter
Pl.’s Ex. 9].
1
ECF pagination is used for Plaintiff’s opposition brief.
2
The Diagnostic and Statistical Manual of Mental Disorders defines adjustment disorders as “[t]he presence of
emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of
the stressor(s).” AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS (5th ed. 2022).
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B.
Plaintiff filed suit on July 7, 2021, in the Superior Court for the District of Columbia,
demanding $350,000 in “money damages,” including $35,727 for medical expenses. Notice of
Removal, ECF No. 1, Ex. A, ECF No. 1-2 at 10–11. On July 29, 2021, Defendant filed a Notice
of Removal to this court and a motion to dismiss for failure to state a claim. Notice of Removal,
Civil Cover Sheet, ECF No. 1-1 at 2; Costco Wholesale Corp.’s Mot. to Dismiss Pl.’s Compl.,
ECF No. 2. The court denied Costco’s motion to dismiss. Minute Order, Aug. 9, 2021. Construing
her pro se complaint liberally, the court found that Plaintiff had pleaded a plausible claim of
negligence. Id.; see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[A] pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.”) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Costco subsequently filed a
motion for summary judgment. See Def.’s Mot.
II.
Summary judgment is proper when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); accord Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
A genuine issue of material fact is one that “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. The movant must demonstrate the absence of a
genuine issue of material fact. See Celotex, 477 U.S. at 323. When determining whether a genuine
issue of material fact exists, the trier of fact must view all facts, and reasonable inferences drawn
from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus.
v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).
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III.
A.
Defendant’s argument for summary judgment largely rests on Plaintiff’s failure to support
her negligence claim with expert testimony. Def.’s Mem. at 7–11. Plaintiff designated neither a
standard-of-care expert nor a medical expert to establish causation. Plaintiff responds that no
expert testimony is required to support her negligence claim. Pl.’s Opp’n at 9. She does not
require a standard-of-care expert because she advances theories of negligence per se and res ipsa
loquitor. See id. (“Why must an expert testify to an obvious preventable safety hazard?”). And a
causation expert is not needed because she has submitted medical records as evidence of her
injuries. Id. (“As all my submitted medical records state, I have Cognitive and Memory Recall
issues.”). The court concludes that Plaintiff cannot proceed without a medical expert.
“There is no inflexible requirement in a personal injury case that the plaintiff produce
expert medical testimony on causation.” Williams v. Patterson, 681 A.2d 1147, 1150 (D.C. 1996).
“In the absence of ‘complicated medical questions,’ the plaintiff’s own testimony, without need
for supporting expert medical testimony, will suffice to prove causation of injury.” Int’l Sec. Corp.
of Va. v. McQueen, 497 A.2d 1076, 1080 (D.C. 1985) (quoting Jones v. Miller, 290 A.2d 587, 590
(D.C. 1972)). On the other hand, “in cases presenting medically complicated questions due to
multiple and/or preexisting causes, or questions as to the permanence of the injury, . . . expert
testimony is required on the issue of causation.” Baltimore v. B.F. Goodrich Co., 545 A.2d 1228,
1231 (D.C. 1988) (internal citations omitted). This case falls into the latter category.
As noted, Plaintiff asserts that as a result of being hit in the head with a case of bottled
water she has suffered multiple long-term ailments. According to her opposition, Plaintiff seeks
to recover damages for the following:
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Damages—I was diagnosed with a Concussion. As a result I now
suffer from Post-Concussion Syndrome, Whiplash (which
exacerbated pre-existing Cervical Radiculopathy such that, I need
more intensive treatments and possibly surgery) Hearing Loss with
Tinnitus, (I now wear a Hearing Device) Vision Impairment with
Bifocals (I did not wear glasses before) PTSD, Adjustment
Disorder, Vertigo and Dizziness (I walk with a cane) I also use a
shower and toilet chair assistance. I also have a disability parking
placard and will soon have provisions placed upon my license.
Pl.’s Opp’n at 15. In addition, she also demands compensation for lost wages: “I have claimed
‘Loss of Capacity to Earn’” and “I have been unable to work since the incident.” Id. at 20.
For these types of claimed injuries and losses, Plaintiff was required to come forward with expert
testimony to establish causation. See, e.g., Williams v. Lucy Webb Hayes Nat. Training Sch. for
Deaconesses & Missionaries, 924 A.2d 1000, 1003 (D.C. 2007).
The limited medical records that Plaintiff attaches to her opposition make the point. One
from November 25, 2020, states:
Ms. Green produced a mildly abnormal exam with psychomotor
slowing, attentional difficulties, and inefficient learning for words.
These difficulties likely have a multifactorial etiology, including
pre-existing factors, normal intra-individual variability, sleep
fragmentation, and psychiatric distress. It is unlikely that these
difficulties are the direct result of her concussion.
Pl.’s Ex. 9. Another record from July 2020 describes Plaintiff has having “[c]hronic pain,”
“anxiety disorder,” and a “probable concussion,” and notes that “some issues [were] likely due to
mood and sleep issues” and were potentially “multi etiologic.” Pl.’s Mot., Ex. 10, ECF No. 23-10
[hereinafter Pl.’s Ex. 10], at 1–3. As these records make clear, Plaintiff does not present with the
type of uncomplicated medical questions that could proceed to trial without an expert.
Still, Plaintiff theoretically could seek damages for the injuries she immediately suffered
based solely on her own testimony. See, e.g., Lucy Webb, 924 A.2d at 1003 (holding that the
testimony of a plaintiff who had not designated an expert could support damages for “pain and
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suffering that she experienced over a period of hours, not longer”). But nowhere does she submit
admissible proof to support such damages. The court advised Plaintiff how she must respond to a
motion for summary judgment in accordance with Rule 56. See Order, ECF No. 21, at 2 (quoting
in full FED. R. CIV. P. 56(c)). However, Plaintiff has not provided any evidence to support any
actual injury. She has not offered contemporaneous medical records from a treating physician. 3
Nor has she submitted her own declaration or affidavit to support any pain and suffering soon after
being struck. Even Plaintiff’s opposition brief is silent about any pain and suffering she
immediately experienced.
The only record evidence presented of Plaintiff’s condition following the strike comes from
her deposition testimony, which Defendant submitted. Plaintiff testified that, “I was putting the
groceries on the conveyor belt and I felt something strike the back of my head. And originally I
thought it was a bird, I looked over and I said, honey, was that a bird, something hit me in the
head.” Pl.’s Dep.; see Def.’s Mem. at 3 n.1. Thus, the only record evidence suggests that Plaintiff
was not forcibly struck in the head. Based on the record presented, the court cannot find that there
is a genuine dispute of fact as to whether Plaintiff suffered any compensable injuries.
See RESTATEMENT (SECOND) OF TORTS § 907 (1979) (“If actual damage is necessary to the cause
of action, as in negligence, nominal damages are not awarded.”); 22 AM. JR. 2D Damages § 18
(“Nominal damages are not recoverable in actions to recover damages for ordinary negligence, in
which damages are an element of the cause of action itself, and the plaintiff has failed to prove
those damages.”).
3
Plaintiff has offered two letters, one dated January 23, 2019, and another dated May 13, 2019, from her treating
physician indicating that she could not work due to a concussion. Pl.’s Ex. 11. Those letters, however, reflect expert
opinion that Plaintiff did not support with the disclosures required by Rule 26(a)(2)(C).
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B.
Nor can the court excuse Plaintiff for failing to make expert disclosures. See McNeil v.
United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel.”). Rule 37 provides that “[i]f a party fails to . . . identify a witness as required by
Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
FED. R. CIV. P. 37(c)(1). District courts have broad discretion to determine whether nondisclosure
is substantially justified or harmless. Grant v. Ent. Cruises & Spirit Cruises, LLC, 767 F. App’x
15, 16 (D.C. Cir. 2019). The court’s analysis of the effects of nondisclosure is influenced by the
Fourth Circuit’s five factor test, which considers:
(1) the surprise to the party against whom the evidence would be
offered; (2) the ability of that party to cure the surprise; (3) the extent
to which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party’s
explanation for its failure to disclose the evidence.
S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2007);
see also DAG Enters. v. Exxonmobil Corp., No. 00-cv-0182 (RBW), 2007 WL 4294317, at *1
(D.D.C. Mar. 30, 2007) (considering the Fourth Circuit’s five-factor test when determining
whether to exclude evidence under Rule 37(c)(1)); Burns v. Levy, No. 13-cv-898 (CKK), 2019 WL
6465142, at *24 (D.D.C. Dec. 2, 2019) (applying the Fourth Circuit test while acknowledging that
it “is not binding on this Court”). These factors do not support a finding of harmlessness.
First, Defendant has not received, as required, the opinions of Plaintiff’s treating physicians
or had the opportunity to cross examine them. Plaintiff has produced some medical records, but
the records are an inadequate substitute for proper expert disclosures and examination during
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discovery. The limited records disclosed also appear to be incomplete. And, at least one of the
records conveys a different version of the alleged injury than the one Plaintiff advances here.
Pl.’s Ex. 10 at 3 (notation that Plaintiff “asked that I update her chart to reflect that she was hit
with an elbow”) (emphasis added).
Second, Plaintiff has not said that her treating physicians will make themselves available
for depositions to cure the nondisclosure.
Third, although no trial is set in this matter, reopening discovery at this juncture is
unwarranted given that the court explained to Plaintiff how to respond to a motion for summary
judgment, but she did not comply.
Fourth, the expert testimony is evidently important. Plaintiff is seeking hundreds of
thousands of dollars in damages for long-term physical injuries and lost wages but has not offered
any evidence to support a causal connection between the alleged strike to her head and her claimed
injuries. If anything, the limited medical records in the record do not help her. Pl.’s Ex. 9 (stating,
as of November 25, 2020, that (i) Plaintiff’s psychomotor issues likely were due to multiple
factors, (ii) it was “unlikely” that her long-term ailments were “the direct result of her concussion,”
and (iii) “her most impairing distress appears to stem from her many non-specific physical
complaints and focus on them”); Pl.’s Ex. 10 at 1 (stating, more than a year after the incident, that
Plaintiff’s brain MRI was normal and her neck pain was present before her injury).
Finally, Plaintiff’s explanation for non-disclosure of experts is wanting. She says that she
“took the advice of [her] neurologist who has retired from expert testimonies and that her reports
should be substantial enough, to provide clear documentation of [her] injury and diagnosis.”
Pl.’s Opp’n at 8. Plaintiff should not have relied on her neurologist’s assessment of legal
requirements.
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