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United States District Court for the Eastern District of Virginia, Alexandria Division
January 4, 2007, Decided; January 4, 2007, Filed
CIVIL ACTION NO. 1:05-1492
THIS MATTER is before the Court on Defendant Legum & Norman Realty Inc.'s ("Legum & Norman Realty") Motion to Preclude Expert Testimony and Motion for Summary Judgment. This case concerns a wrongful death suit for the death of Monica Flaherty who died of Legionnaire's disease 1 after visiting her family's condominium unit at The Braemar Towers ("Braemar Towers") in Ocean City, Maryland. Defendant Legum & Norman Realty manages the condominium complex and maintains and operates the complex's water system. Legionella bacteria were found in the water of the condominium complex and specifically in the Flaherty's unit. The issues before the Court are: (1) whether Plaintiffs Richard Flaherty, [*2] et al.'s ("Flaherty") 2 experts are qualified to establish the standard of care that a professional management company must exercise in operating and maintaining the water system of a condominium complex in Ocean City, Maryland; and (2) whether the Court should grant Defendant's Motion for Summary Judgment on Plaintiff's claims of negligence, gross negligence, and punitive damages because Plaintiff does not have sufficient evidence to establish the element of duty that Defendant owed to Mrs. Monica Flaherty in the operation and maintenance of the water system.
The Court grants Defendant's Motion to Preclude Expert Testimony and Defendant's Motion for Summary Judgment. The Court grants Defendant's Motion to Preclude Expert Testimony because Plaintiff's experts are not qualified to establish the requisite standard of care, and the factual circumstances and other bases for their opinions are not sufficient to establish an applicable standard of care or the alleged breach of a duty arising under the standard of care. Legionella bacteria are pervasive in both domestic and natural water systems around the world. (June 7, 2006 Dep. of Dr. Jennifer Clancy, at 15-16.) There are no national or state mandated standards for the testing for or prevention of legionella bacteria in potable water by a property management company that the plaintiff's experts could point to establish an applicable standard of care. (Id. at 17-18.) The Court grants Defendant's Motion for Summary Judgment because without expert testimony to establish the applicable standard of care, Plaintiff cannot [*4] establish the duty that Defendant owed Mrs. Monica Flaherty. Additionally, the Court finds that Plaintiff cannot make a claim for gross negligence and, accordingly, cannot make a claim for punitive damages.
The Court finds that it is unnecessary to address whether the exculpatory clause in the Association By-Laws indemnifies Defendant Legum & Norman Realty from liability as an agent of the Condominium Home Owners' Association because Plaintiff has failed to establish Defendant's negligence.
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2007 U.S. Dist. LEXIS 95921 *; 2007 WL 4694346
RICHARD FLAHERTY, et al., Plaintiffs, v. LEGUM & NORMAN REALTY, INC., Defendant.
Subsequent History: Affirmed by Flaherty v. Legum & Norman Realty, Inc., 2008 U.S. App. LEXIS 12482 (4th Cir. Va., June 11, 2008)
Legionella, water system, standard of care, Towers, Disease, temperature, professional management, expert testimony, practices, bacteria, guidelines, circumstances, degrees fahrenheit, proffered, amplification, summary judgment, dissemination, contracted, seminar, factors, tank, scientific, requisite, cleaning, scalding, training, condominium complex, investigated, outbreak, stressed