                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



  RONNIE ANDREWS, et al.,

                          Plaintiff,

                 v.                                   Civil Action No. 1:11-cv-01089-ESH

  MV TRANSPORTATION,

                         Defendant.




                                  MEMORANDUM OPINION

       Plaintiffs Ronnie Andrews, Patricia James, Thomas James, Kelley Johnson, Clarence

Holbrook, and Mario Bonds (“plaintiffs) bring this action against MV Transportation, Inc.

(“defendant”) alleging that they were exposed to tuberculosis by Henry Chase, a MetroAccess

driver infected with the disease. (Amended Complaint, Jan. 3, 2012, ECF No. 29 (“Compl.”) ¶

5.) Before the Court is defendant’s Amended Motion for Summary Judgment based on

plaintiffs’ failure to produce any material evidence showing that the driver was negligent.

                                        BACKGROUND

       This case had been proceeding concurrently with a related matter before D.C. Superior

Court, McKissick et al. v. MV Transportation, Inc. No. 11-8681, when this Court stayed the

federal proceedings pending the resolution of McKissick. (Stay Order, April 30, 2013, ECF No.

58.) In consideration of the fact that there were only eight plaintiffs in this matter—compared to

sixty in Superior Court—and discovery in the federal case was relatively immature by

comparison, the Court felt that it would be inappropriate, at that time, for the smaller subset of



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plaintiffs to “essentially take the lead so as to overshadow the pending suit in Superior Court”

when the facts and claims were effectively identical. (Memo. Op., April 30, 2013, ECF No. 57.)

       Judge Anita Josey-Herring of D.C. Superior Court entered summary judgment for

defendant MV Transportation on the grounds that plaintiffs had failed to demonstrate that a

dispute as to a material fact existed as to whether Mr. Chase (“driver”) or MV Transportation

had notice of any possible infection with tuberculosis. McKissick, et al. v. MV Transportation,

Inc., No. 11-8681 (D.C. Super. Ct. Dec. 2, 2013). Plaintiffs appealed, and the D.C. Court of

Appeals affirmed. McKissick et al. v. MV Transportation, No. 13-cv-1506, 107 A.3d 1119 (D.C.

Dec. 9, 2014). The appellate panel added that, apart from Mr. Chase’s lack of actual or

constructive knowledge of his condition, plaintiffs had also failed to demonstrate any evidence

that Mr. Chase was actually infected with a serious disease while driving passengers. Id. at *2

(“[T]here is also no evidence that Mr. Chase actually had TB, or another serious communicable

disease, during the relevant period. Indeed the only credible medical evidence in the record is

that Mr. Chase was suffering from bronchitis during that period of time.”).

       Following the appellate decision, this Court lifted the stay on the federal case to consider

this motion. In response, plaintiffs simply re-filed their Opposition pleading from D.C. Superior

Court as an exhibit, providing no additional evidence to consider. For the reasons explained

herein, this Court agrees with the analysis of the D.C. courts, and defendant’s motion will be

granted.

                                           ANALYSIS

I.     STANDARD OF REVIEW

       Under Federal Rule of Civil Procedure 56, a motion for summary judgment shall be

granted if the pleadings, discovery, and any affidavits show that “there is no genuine dispute as



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to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A genuine issue of material fact exists if the evidence, viewed in a light most favorable

to the nonmoving party, could support a reasonable jury’s verdict for the non-moving party.”

Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014) (quoting Hampton v. Vilsack, 685

F.3d 1096, 1099 (D.C. Cir. 2012)) (internal citation marks omitted). To defeat a summary

judgment motion, however, “the non-movant must do more than simply show that there is some

metaphysical doubt as to the material facts; [i]f the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Gibbs v. Washington Metro. Area

Transit Auth., 48 F. Supp. 3d 110, 121 (D.D.C. 2014) (quoting Anderson v. Liberty Lobby, 477

U.S. 242, 249-250 (1986).

II. NEGLIGENCE

       In light of the fact that this issue is relatively straightforward, and has already benefitted

from well-reasoned judicial treatment, this opinion can be brief. To establish negligence, “the

plaintiff has the burden of proving by a preponderance of the evidence the applicable standard of

care, a deviation from that standard by the defendant, and a causal relationship between the

deviation and the plaintiff’s injury.” Varner v. Dist. of Columbia, 891 A.2d 260, 265 (D.C.

2006). Under principles of vicarious liability, an employer is held liable for the actionable

conduct of its employees performed in the scope of their employment. Black’s Law Dictionary

1055 (10th ed. 2014).

       Plaintiffs allege that during 2008, Mr. Chase was actively displaying symptoms of

tuberculosis while driving MetroAccess routes. (Compl. ¶ 37.) Plaintiffs claim that Mr. Chase

was negligent in continuing to attend work when he knew or should have known that he was

seriously ill and posed a risk to MetroAccess passengers, and that MV Transportation is



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vicariously liable for his negligence under the theory of respondeat superior. (Compl. ¶¶ 40, 42.)

There is no factual dispute that Mr. Chase was not diagnosed with the disease until after he was

no longer driving passengers. (Defendant’s Amended Motion for Summary Judgment, March

27, 2013, ECF No. 52 (“Mot.”), Ex. 4.) Plaintiffs’ case instead rests upon the theory that, due to

Mr. Chase’s financial motivations to stay at work and “get paid,” he misled his employer and

doctors when he knew he was seriously ill, thereby avoiding a positive diagnosis whilst

irresponsibly exposing others. (Plaintiff’s Opposition to Defendant’s Amended Motion for

Summary Judgment, July 8, 2015, ECF No. 61 (“Opp’n”), Ex. 1, at 4.) Defendant, in turn,

maintains that a claim of negligence based on exposure to an infectious disease requires a

showing that the driver had actual or constructive knowledge of the presence of the disease, and

that plaintiffs fail to make such a showing. The Court agrees with defendant.

       To hold an individual negligent for transmitting an infectious disease, “it must be proved

that the defendant knew of the presence of the disease.” See, e.g., Earle v. Kuklo, 98 A.2d 107,

109 (N.J. 1953) (collecting cases from New Hampshire, Wisconsin, Missouri, New York,

Kansas, and Texas). Plaintiffs do not produce any evidence suggesting that Mr. Chase actually

knew he had tuberculosis or any other serious, infectious illness that should have precluded him

from going to work. Quite the opposite: the very same medical records relied upon by plaintiffs

show that Mr. Chase sought medical care when he felt ill, was diagnosed with bronchitis on two

separate occasions, and was repeatedly cleared to return to work after treatment. (Opp’n, Ex. 1,

at 25, 26.) Plaintiffs place great emphasis on a piece of evidence showing that a doctor

examined Mr. Chase on one occasion for a “respiratory condition” and advised him not to return

to work until further evaluation. (Opp’n, Ex. 1, at 26.) First, there is no evidence that Mr. Chase

ignored that advice, and second, such a diagnosis is plainly too vague to demonstrate the Mr.



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Chase learned that he had contracted a condition as serious as tuberculosis or some other

sickness that would risk passengers’ health.

       Plaintiffs further argue that a reasonable juror could infer from the fact that Mr. Chase

was suffering from a persistent cough that he knew—or should have known—that such a cough

was likely tuberculosis or an equivalently noxious disease. (Opp’n., Ex. 1, at 4-9.) Such an

inference is unreasonable on its face, and especially incongruous when one considers the

contrary medical advice from his healthcare provider, Dr. Hejl. A patient “who seek[s] medical

care [is] not responsible for diagnosing their own condition, but must rely on the physician’s

expertise to determine the cause of the problem and provide treatment.” Hardi v. Mezzanotte,

818 A.2d 974, 980 (D.C. 2003); see also Morrison v. MacNamara, 407 A.2d 555, 568 (D.C.

1979) (noting that “the nature of the physician-patient relationship… requires the patient to rely

on the learning and judgment of the doctors”).

       Because there is no evidence that Mr. Chase had actual or constructive knowledge that he

had contracted tuberculosis, plaintiffs argue that Mr. Chase had a history of failing to disclose

unfavorable information, and had a financial motive for misleading his doctors as to the severity

of his illness. (Opp’n, Ex. 1, at 29.) In plaintiffs’ view, a jury should be entitled to weigh the

possibility that Mr. Chase effectively self-diagnosed the seriousness of his illness, knew that he

was likely infected, and lied to his doctors in order to stay on the job. (Opp’n, Ex. 1, at 23.)

Summary judgment requires this Court to draw all possible inferences in favor of the plaintiffs; it

does not require it to treat bare speculation as circumstantial evidence. Absent any independent

evidence to corroborate such a theory, it is insufficient grounds for defeating a motion for

summary judgment.




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                                         CONCLUSION

       Because plaintiffs have presented no colorable evidence that Mr. Chase knew or should

have known that he was infected with a communicable disease, no reasonable juror

could find him guilty of negligence. Defendant’s motion for summary judgment is granted. 1



                                                     /s/ Ellen Segal Huvelle
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge


Date: September 1, 2015




1 This Court has no occasion to reach the question of whether Mr. Chase actually had
tuberculosis at the time he was at work, given plaintiffs’ inability to marshal any evidence of
negligence. It is well established that “a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.” Mosby-
Nickens v. Howard Univ., 864 F. Supp. 2d 93, 97 (D.D.C. 2012) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). There is no basis, however, to disagree with the D.C. Court
of Appeals’ finding that plaintiffs presented no material evidence of infection during the relevant
time period.
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