Cormier v. Dist. of Columbia Water

• Citation: 84 A.3d 492
• Decision Date: 03 July 2013
• Docket Number: Nos. 11–CV–1290,12–CV–537.,s. 11–CV–1290
• Parties: David R. CORMIER, et al., Appellants, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee.
• Court: Court of Appeals of Columbia District

84 A.3d 492

David R. CORMIER, et al., Appellants,

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

Nos. 11–CV–1290, 12–CV–537.

District of Columbia Court of Appeals.

Argued Dec. 19, 2012.

Decided July 3, 2013.

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.

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

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,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 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 by other conditions unrelated to WASA's distribution system. Given the minimal probative value of the evidence, the trial court cannot be said 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...