UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________) JOHN ANTONIO EVANS ) ) P laintif f, )

) v. ) Case No. 1: 08-cv- 1629 (RM C) ) WASHINGTON METROP OLIT AN ) AREA TRANSIT AUTHORITY ) ) Defendan t. ) ) ) ____________________________________) MEMORAN DUM OP INION J ohn Antonio Evans was ve ry badly injured af

ter he struck a stoppe d car while riding his motorcy cle on a city street, wa s thrown forw ard onto the r oad, and w as then struc k by a passingbus operated by

the Washington Metr opolitan Area Transit Authority

(“WMATA” ). Mr. Evans pre sented his ca se on liability , bifurcated from damag es bec ause of the unava ilability

of
cer tain witnesses, to a jury

in the District of Columbia. After de liberatingfor a pproxi mately seven hour s, the jury

returne d a ver dict findingthat WMATA’s driver w as neg lige nt and that Mr. Evans wa s contributorily

neg lige nt, but that Mr. Evans had f ailed to prove two of the four elements of the common law doctr ine of “ last clea r cha nce.” As a re sult, despite the jury ’s finding that WMATA was neg lige nt, Mr. Evans collec ted no damag es. Mr. Eva ns now moves for a new tria l. He ar g ues that the “ last clea r cha nce” doctrine w as improper ly applied in this
case , the jury ’s ver dict is internally inconsistent, WM ATA’s c ounsel made pr ejudicial stateme nts duringclosing argument, and the Court wr ong ly ref used to admit evidenc e that supported hiscase . None of the ar guments made by

Mr. Evans is suffic ient to warr ant a ne w trial. The motion will be denied. I
. F ACTS

There is no dispute that the evidence at trial showed the following . On J anuar y 4, 2007, Mr. Evans wa s opera ting his motorcycle at a hig her spe ed than r ush hour traf

fic would allow in the left southbound lane of Martin L uther King

Avenue , S.E. in the District of Columbi a. At that time, a ve hicle drive n by Vincent F onghad bee n stopped for a lmost a minut e to make a le ft-hand tur

n at the interse ction of Pomeroy Road. Mr. Evans c ame up to Mr. F ong ’s vehicle, w as unable to pass it, and collided with the re ar of the vehicle . The for ce of impact ejec ted him from his motorcycle to the f ront rig ht side of Mr. F ong ’s ca r. A WMATA bus then struck Mr. Eva

ns, very badly injuring him. Plaintiff admits that “[i] t is . . . clear that WM ATA’s neg lige nce did not ca

use plaintiff to be put into that position” on the roadw ay to be struck. Pl.’s Reply to Def.’ s Opp’n to Mot. for Ne w Trial [Dkt. # 104] at 5 (“Pl.’s Reply ”); see also Pl.’s Mot. for Ne w Trial [Dkt. # 92] ¶ 3 (“Pl.’s Mot.”) (“ [I ]twas c lear that the re ason that the plaintiff w as thrown off

his motorcy cle ha d nothing to do with the def endant’ s neg lige nce. . . [I ]tis clear that the def endant’ s neg lige nce oc curr ed af ter the pla intiff was a lrea dy thrown off

his motorcy cle.” ). The jury was pre sented with the testimony of nine lay

witnesses by

way of live courtroom testimony , videotape deposition and witness statement, as we ll as statements made by Mr. Evans in medica l rec ords. The pa rties both prese nted expert opinion evidence by acc ident
rec onstructionists. I n addition, many photogr aphs of the a ccide nt scene and the motor ve hicles
wer e introduce d and sca le dra wing s of the interse ction wer e used by the ac cident
rec onstructionists during their te stimony . After deliberations, the jury

provided a

nswers to
2specific , numbere d questions on a spec ial verdic t form in the followingmanner :

1. Do you find that plaintiff John Antoni o Evans has pr oven by a pre pondera

nce of the evidenc e that the de fenda nt WM ATA wa s neg lige nt and such ne g lige nce pr ox imately cause d the plaintiff’s injuries? 1 Yes X N o ___ 2. Do you find that defe ndant WMATA has prove n by a pre pondera

nce of the evidenc e that plaintiff John Antonio Evans was contributorily neg lige nt? Yes X N o ___ 3. Do you find that the plaintiff John Antonio Evans has proven by a preponde ranc e of the evidenc e ea ch of the following :

a. That he w as in a position of dang er c aused by the neg lige nce of

both himself and the de fenda

nt? Yes ___ No X b. That he w as unaw are of the da ng er or unable to re move himself from the position of dang er?

Yes X N o ___
c. That the de fenda

nt was aw are , or by

the exercise of

rea sonable c are should have be en aw are of plaintiff’s da ng er a nd obliviousness or inability to extricate himself fr om dang er?

Yes X N o ___ A findingthat the bus driver operated the bus neg lige ntly was a finding ag ainst WMATA. 1 WMATA is li able f

or the torts of its employ ees. SeeAct of N ov. 6, 1966, Pub. L . No. 89-774, 80 Stat. 1324 (codified at D.C. Code § 9-1107.01 (2001))
. 3d. That the de fenda nt had suffic ient time and opportunity , by the exercise of
rea sonable c are , to avoid striking the pla intiff, and the de fenda nt failed to do so? Yes ___ No X Be cause Mr. Evans wa s found neg lige nt by the jury , under D .C. law, he c ould only be aw arde d damag es if he pr oved that WMATA had the la st, clear chanc e to avoid the a ccide nt. Howeve r, 2 the jury ’s answe rs to questions Nos. 3a and 3d ba rre d such a r ecove ry . II
. LEGAL STANDARD A cour t has discre tion to gra

nt a new tr ial “af

ter a jury trial, for a

ny rea son for which a ne w trial has . . . be en g rante d in an ac tion at law in fede ral c ourt[.] ” F E D . R. C I V . P. 59(a) . Motions for new tria l must establish a clear and obvious err or of law or fa ct. Nyman v. Fede ral Deposit Ins. Corp. , 967 F. Supp. 1562, 1569 (D.D .C. 1997). A new tr ial is appropria te “whe re the court is convince d the jury verdic t was a se riously

err oneous re sult and where denial of the motion will result in a clea r miscar riag e of justice.” Id. (citation omitted). Error s that may

justify a new trial include a

jury verdic t ag ainst the weig ht of evidenc e. Id . Howeve r, “‘ [i ]nt ru[sion] upon the rig htful province of the jury is...highly disfavore d...[t ]he jury ’s ver dict must stand unless the evidence , toge ther with all infer ence s that
can r easona

bly drawn there from is so one-sided tha t rea sonable [people] could not disagr ee on the ver dict.’” Smith v. Dist. of Columbia , 413 F.3d 86, 97 ( D.C. Cir. 2005) (alter ations in D.C. law applies to this case beca use the Court sits in the District of Columbi a and the acc ident 2 occur red he re. A lthough f

eder al jurisdiction arises by virtue of a

n interstate c ompact, the Washington Are a Tra

nsit Authority

Compact, local lawdefine s liabilit y . SeeAct of N ov. 6, 1966, Pub. L . No. 89-774, 80 Stat. 1324 (codif ied at D.C. Code § 9-1107.01 ( 2001)) ( stating that the Authority ’s liability

is to be g overne d by

“the law of the a pplicable sig natory

(includingrules on conflict of la

ws)”)
. 4orig inal) (quoting Boodoo v. Cary , 21 F.3d 1157, 1161 ( D.C. Cir.1994)). When a pa rty claims that a jury ’s ver dict is internally inconsistent, the Court has a spec ial obliga tion to view the evidenc e in a manne r that re conciles the verdic t, if possible. Hundley v . Dist. of Col umbia , 494 F.3d 1097, 1102 ( D.C. Cir. 2007). I f the jury ’s answe rs to questions on a ver dict form ca nnot be
rea sonably

rec onciled with the re cord, a new tria l is warra

nted. Id
. An er ror in admitting or

excluding evide nce that affe cts a pa rty ’s substantial rig hts may also be g rounds for grantinga new trial. SeeF E D R. C I V . P. 61; Nyman , 967 F. Supp. at 1569. For

an er ror to af fec t substantial rights, it “‘must have been pr ejudicial: I t must have aff ecte d the outcome of

the...proc eeding s.’” Muldrow ( Ex rel. Estate of Muldrow) v. Re -direct, Inc., 493 F.3d 160, 168 ( D.C. Cir. 2007) (quotingUnited States v. Olano , 507 U.S. 725, 734 (1993)) . Otherw ise, a c ourt may disreg ard the err or. SeeF E D . R. C I V . P. 61 (“A t ever y stag e of the proc eeding , the cour

t must di sreg ard a ll error s and def ects that do not af

fec t any party ’s substantial rig hts.”). III
. ANALYSIS

Mr. Evans a

rgues that: 1) the law

of “la st clear

chanc e” w as wrong ly

applied; 2) the jury ’s answe rs to verdic t form questions Nos. 3c a nd 3d are inconsistent under the f actua l
scena rios prese nted by

the evidenc e, and that its answer to No. 3d is inconsistent with its answer to question No. 1; 3) defe nse counse l made pre judicial statements duringclosing arguments; 4) and the r efusa l to allow Mr. Evans to introduce evidenc e re g ardingcame ras on the bus a nd ref usal to instruct the jury

to draw a neg ative infe renc e ag ainst WMATA based upon its “fa ilure to preser ve evide nce” from such c amer as led to an e rrone ous verdict. Pl.’s Mot. ¶ 9. Eac h of these a rguments will be addre ssed in turn.
5A. Last ClearChance “L ast clea r cha nce” is a common law doc trine, deve loped to mitigate the initial harshne ss of the common law r ules of neg lige nce, pa

rticularly the rule that plaintiff’s contributory

neg lige nce is a

n absolute bar

to rec overy

in a neg lige nce a ction, which is the law in the District of Columbia. See Felton v. W agner , 512 A.2d 291, 296 (D.C. 1986). “ L ast clea r chanc e” pr ovides an avenue to ove rcome this hurdle. Where both par ties were neg lige nt, a defe ndant may

be held liable if

the “supe rior opportunity to avoid the ac cident” w as his. Phillips v. D.C. Transit Sys., Inc. , 198 A.2d 740, 741-42 (D .C. 1964).

The lawof “la st clear

chanc e” in the D istrict of Columbia requires pr oof that: (1)
. . . the plaintiff was in a position of dang er cause d by the neg lige nce of both plaintiff and defe nd an t ; (2 )
. . . the plaintiff was oblivious to the dang er, or unable to extricate [hi mself] from the position of dang er; (3)
. . . the defe ndant was awa re, or by the exercise of rea sonable car e should have been awa re, of the plaintiff’s dang er and of [hi s] oblivion to it or [hi s] inability to extricate [hi mself] from it; and (4)
. . . the defe ndant, with means available t o [ h i m] , could have avoided injuring the plaintiff afte r b ec o m i ng awa re of the dang er and the plaintiff’s inability to extricate [hi mself] from it but failed to do so. Belton v. W

ashington Metro. Area Transit Auth. , 20 F.3d 1197, 1199 ( D.C. Cir. 1994) (quoting Robinson v. Dist. of Columbia , 580 A.2d 1255, 1258 (D.C. 1990) ( all emphase s deleted) . “The District has hew ed to this four-r equire ment formula in a longstream of case s.” Id. at 1199-1200 (citingcase s). Mr. Eva

ns failed to provide sufficie nt proof of two of these re quirements at tria l: 1) that a pr imary

act of neg lige nce by

WMATA placed him in a situation of per il; 2) that there was suff icient opportunity

for the driver of the bus to avoid striking him. As a r esult, he could not avail himself of the pr otection of the “ last clea r cha nce” doctrine a

nd could not collect
6damag es bec ause of his own contributory

neg lige nce. See P

hillips , 198 A.2d at 742. Mr. Evans would have the law reg arding“last cle ar c hance ” interpr eted diff ere ntly so that his own neg lige nce, that resulted in his ejec tion from his motorcy cle into the path of the WMATA bus, is ignore d. He a rgues he ma

y rec over be cause the jury

found WMATA guilty

of neg lige nce tha

t occur red subse quent to his own neg lige nce “ sever ing [his] contributory neg lige nce.” Pl.’s Reply

at 5; seePl.’s Mot. ¶ 3. This int erpr etation is at odds with D.C. law. The jury found that Mr. Eva

ns was in a position of dang er due to his own antece dent neg lige nce, that is, no neg lige nce on the part of WMATA initially place d him in peril. Under the D .C. law of “last cle ar c hance ,” Mr. Eva ns cannot c ollect damag es bec ause he is the sole party responsible for his init ial dang er.

Mr. Evans r ebuts this prece dent, citing Bowman v. Re dding &Co. , 449 F.2d 956, 970 (D.C. Cir. 1971) and Drapaniotis v. Franklin , 504 F.2d 236, 237- 38 (D.C. Cir. 1974), both of which r ejec ted any

require ment that a def

endant be found guilty

of ante cede nt neg lige nce. These c ases howe ver w ere issued “ after Fe bruar y 1, 1971, the date on which, by virtue of the District of Columbia Court Reorg anization Act, Pub. L . No. 91-358, 84 Stat. 475, 667, [the D.C. Circuit] cea sed to an a

uthoritative exposit or of District law . . . . Even if a ny pre- Fe bruar

y 1, 1971 decisions of this circ uit supported a tende ncy to dispense with antec edent ne g lige nce, the District’s later

asser tion of the requir ement in an en banc decision, W MATA v. J

ones , 443 A.2d [45, 51 (D.C. 1982] would control.” Belton , 20 F.3r d at 1200.

Once the jury

found Mr. Eva

ns contributorily

neg lige nt, his only

opportunity

for
rec overy was unde r the doc trine of “ last clea r cha nce.” The doc trine wa s applied cor rec tly under D.C. law, and he failed to pe rsuade the jury on two points critical to its application.
7B. Incons istent Ve rdicts Mr. Evans c laims that the jury ’s ver dict was impossibly inconsistent beca

use, to
answe r question No. 3c on the verdic t form af firmatively , the jury

must have found the bus dr iver to be “in a position in which he c ould have be come a war e of the plaintiff’s position of dang er.” Pl.’s Mot. ¶ 4. He contends that havingrea ched suc h a conc lusion under the fa ctual sce narios prese nted, the jury

could not have r easona

bly found that WMATA did not have suff icient distance a nd time to avoid striking Mr. Eva ns on the road in r esponse to question No. 3d. Id. Mr. Evans f

urther a rgues that the jury ’s neg ative answ er to No. 3d on the verdic t form is inconsistent with its positive answer to question No. 1 to the eff ect that De fenda

nt was neg lige nt and that such ne g lige nce pr ox imately cause d Mr. Evans’ injuries. Id . ¶ 6. Mr. Evans state s that no coher ent interpre tation of the evide nce w ould allow the jury to answer

Nos. 3c a nd 3d in the manner

in which they

did. I n order

to answer

No. 3c positively , he ar g ues the jury could have only

g iven weight to witness testim ony that supported the conc lusion that the W MATA bus driver had time to both observe a nd avoid Mr. Eva

ns. Mr. Evans asse rts that testimony that the bus was stopped be fore it struck Mr. Evans or that the bus was tra velingat 2-3 miles per

hour should be interpr eted to mea n that there was e noug h time for the driver to see a nd avoid him on the roadw ay . He f urther a rgues that testimony

by the bus driver that the bus was travelingat appr ox imately 20 miles per hour c ould not have bee n cre dited by the jury in making its finding s. Pl’s. Mot. ¶ 4. There are more re asonable interpre tations of the trial re cord tha n just those posit ed by Mr. Evans. F or instance , the driver testified that he sa

w the motorcycle lying on the road behind him but did not s top to find out where the driver, Mr . Evans, had la nded. B ased on this
8and re g ardle ss of conflictingtestimony on the bus’s spee d, the jury might have found that the driver w as neg lige ntly

inattentive but still cre dited WMATA’s expert’s testimony that the momentum and weig ht of the bus pre vented the dr iver fr om stopping bef ore strikingMr. Evans. The jury ’s answe rs to No. 1 and 3( d) also do not lack c onsistency as Mr. Eva

ns alleg es. Mr. Eva

ns arg ument that “[a] person is not neg lige nt if there is nothingwhich that person c an or should do to avoid ca using a n acc ident,” Pl.’s Reply

at 2, misinterprets the f

unction of No. 3d a

nd the application of the “last cle ar c hance ” doctr ine. The doc trine only comes to bear when it has already been e stablished that a def endant wa s neg lige nt, as the jury clea rly found in its answer to No. 1, but, be cause a plaintiff wa s also neg lige nt, the defe ndant was not liable. “L ast clea

r cha nce” opens the door f

or re cover

y to a plaintiff whe n, the def endant wa s
awa re of and could ha

ve stopped the injury
. See Phillips , 198 A.2d at 742 (de scribinga sce nario wher e the “ last clea

r cha nce” doctrine a

pplies). Question No. 3d a sked the jury whether avoidanc e wa s possible, and, there fore , the doctrine could apply ; it was not connec ted to the question of WMATA’s neg lige nce a s Mr. Evans a rgues. As a r esult, the jury ’s finding s that WMATA was neg lige nt but could not have avoide d striking Mr. E vans ar e not inconsistent.

Reg ardle ss of these f

indings, the disputes surr ounding the jury ’s answe rs to these questions would stil l not merit a new tria l beca use the jury ’s answe rs to No. 3c a nd 3d would not materia lly

chang e the r esult of trial. The jur y found that Mr. Eva

ns was contr ibutorily

neg lige nt and that WMATA’s neg lige nce did not put Mr. Eva ns in a position of dang er, a fac t Mr. Evans acknow ledg es. These finding s alone would ba r the a pplication of the “ last clea r cha nce” doctrine under D .C. law and a

ny collection of da

mag es by Mr. Evans.

9C. P rej udi cial Statem ents in Closin g Mr. Evans a

rgues that counse l for WMATA made pr ejudicial stateme nts during closing argument. First, Mr. Eva ns attacks r efe renc es to camera s made by WMATA’s counsel beca use he himself w as not able to make arguments reg arding the pre sence of ca

mera s on the bus to the jury . Second, he a

rgues that re fer ence s to the eff ect of the ac cident on the WMATA bus driver c reated a f

alse impression that the ve rdict would adve rsely aff ect him. The issue of what ar guments could be pre sented to the jury reg arding

the bus’s
came ra sy stem was vig orously contested dur ing pr etrial proc eeding s. Over Mr . Evans’ r epeated objections, the Court ruled that he could not argue that the a bsence of a vide o rec ordingof the
acc ident from ca

mera s on the bus nece ssarily meant that WMATA could be a ccuse d of spoliation or suffe r an a dverse infere nce. D uringhis deposition, the driver of the bus testified that he thought the dig ital video rec order (“D VR”) e quipment that maintained re cording s from the
came ras on the bus w as oper atingon the day of the a ccide nt beca

use its light was on. Me m. P. & A. in Supp. of Mot. to P roff er Evide nce in Supp. of a Missing Evidenc e Instruction [Dkt. # 89] at 3. WMATA’s desig nated maintena nce a g ent testified at de position t hat, two wee ks after the
acc ident, a tec hnician diagnosed that there was no e lectric al power to the equipment. Id ., Ex . 4 [Dkt. # 89-4] at 40 (De p. of Allan Na bb). He further

testified that, in g ener al, DVR sy stems on WMATA’s buses wer e not prope rly maintained bec ause of

a lac k of re source s. Id ., Ex . 4 at 26. WMATA’s evidenc e tec hnician wa s unable to extract any video, and the la st available imag e on the equipment wa s from appr ox imately three wee ks befor e the a ccide nt. Id ., Ex . 2 [Dkt. # 89-2] at 15 (De p. of Off

icer Richard Ray

). Mr. Eva

ns moved in limi ne to have the Court instruct the jury on adver se infer ence on the theory that the video, if available, would have demonstrated
10WMATA’s neg lige nce. T he Court denied this motion, finding that ther e wa s not sufficient

evidenc e that the video e ver e x isted or of a ny act to destroy

it. The motion was ag ain adva nced 3 At a pre -trial hea

ringon May

26, 2011, the Court ruled: 3 There ’s bee n a lot of ar g ument betwee n y ou [counsel] as to evidenc e of

spoliation. Iwill not allow y ou to present e vidence of spoliation, not by experts, not by

any body
. . . . There ’s no evidenc e that the DV R video is not available bec ause of any intentional or mal[icious] act on the pa rt of Metro. Whether

or not Metro should have more opera

ble video ca

mera s in their buses, that’s an entirely differ ent issue. Metro c annot be f ound liable to Mr. Evans beca use it doesn’t maintain it’s [si c] video came ras we ll enoug h. The video c amer a did not cause or it’s [si c] omiss ion did not cause the acc ident. So therefor e, it’s [sic] prese nce or omission i s just the presenc e or omission of a useful, potentially useful piec e of, data piece , a piec e of information, piece s of information not ava ilable, not available for rea sons that are not attributable to liability or lac k of liability
. And you cer

tainly , Icannot a llow an ar g ument for a n adver se infer ence that had ther e bee n video ca mera s available operating, those vide o came ras would have shown somethingthat was to the plaintiff’ s benef it and to Metro’ s detriment. Who knows what it would have shown. The jury is going to decide that based on the te stimony of the witnesse s. Their be st judgment a s to probabilities and cre dibilit ies and a ll the rest of it as to how that all comes out.

. . . So the [ alleg ed] reckle ssness of not havinga re cord to prove one wa y or the other how

the plaintiff wa s injured did not contribute to his injuries and ca nnot be used a s a basis to argue Metro must be liable for those injuries beca

use they don’t have a video to disprove it.

. . . I just don't think that Ilogic ally or leg ally

can unde r this circumstanc e make the c onnection you choose to make as to the conne ction betwee n the video pre sence or abse nce a nd the injuries and the liability for the injuries without some evidence of an intentional spoliation and you have none.

... 11and ag ain denied be fore trial. Duringclosing argument, WMATA’s counsel made a re fer ence to camer as beca use people are “imperf

ect r ecor ding de vices of r eal time.” D ef.’ s Opp’n to Mot. for Ne w Trial [Dkt. # 102] at 15. In rebuttal, c ounsel for Mr . Evans ar g ued that WMATA did not prove that came ras on the bus did not exist; the Court admonished counse l not to continue that line of argument beca

use it was not consistent with its pretrial ruling
. Mr. Evans c laims these statements we re pr ejudicial and le d to an er roneous verdic t. The Court does not find that these statements wer e pre judicial in their nature or in their eff ect on the jur

y . The re fer ence to people havingincomplete memorie s, unlike came ras, wa s presumably

desig ned to addr ess the diffe ringtestimonies of witnesses as to the seque nce of the
acc ident events; g iven the diffe ringacc ounts the jury hear d, there was nothinguntoward a bout the comment. Its inclusion of a ref ere nce to c amer as g ave it no g reater we ight. F urthermor e, it is not clear how counse l’s comment would have had any eff ect on the jur

y ’s deter minations reg ardingthe neg lige nce of the par ties. Finally , Mr. Evans wa s not prejudiced by the Court’s ruling duringboth pretrial a nd trial that he c ould not make ar g uments reg ardingthe pre sence of
came ras on the bus. The comment by WMATA’s counsel wa s not related to this issue. Counsel for WMATA also re fer ence d the impact of this ca se on the bus drive r duringclosing argument. Counsel for Mr. Eva ns objected at this t ime, and the Court instructed [Y] ou have no e vidence that it even existed. You see, it’s not as if ther e wer e spoliation beca

use we don’t know and the evidenc e would sug g est that it’s at least 50/50 that it didn’t ex ist ever. That it never videoe d this acc ident. Neve r. And so it’s not as if you have e vidence that it did ex ist and if Mr. Ray

wer e more talented he might have extracted it. Transc ript of Pretrial Confe renc e at 51- 57, Evans v. W ashington Metro. Area Transit Auth. , No. 8-1629 (D.D .C. May

26, 2011). 12the jury

that there was no e vidence offe red on this point. I t is assumed the jury followed the Court’s instruction. W

eek s v. Angelone , 528 U.S. 225, 234 (2000). Notably , the jury conclude d that the driver

neg lige ntly

operated the bus, indicatingno eff ect on the jur

y due to counse l’s comments. Neither

of the re marks by

WMATA’s counsel c aused pr ejudice to Mr. E vans beca use the jury ’s ver dict was not influenc ed by them. As a re sult, Mr. Evans’ “substantial rig hts” wer e not adve rsely aff ecte d within the meaningof F eder al Rule of Civil P roce dure 61. Any err or that may

have oc curr ed whe n the jury hear d these stateme nts during c losing a rgument was ha rmless, and ther e ar e no g rounds for a new tria l. D. Evidence of Alleged Sp oliation. Finally , Mr. Evans r enew s his claim that he was e ntitled to int roduce evidenc e reg ardingthe exist ence of ca mera s on the bus and to an a dverse infere nce a g ainst WMATA beca use its personnel a lleg edly destroy ed video f

ootag e conta ined in the DVR sy stem. This contention has twice been r ejec ted, and the Court doe s not pursue it further
. IV
. CONCLUSION The motion for a

new tria l [ Dkt. # 92] provides no basis to second guess the jury ’s verdic t and must be denied. Amemorializing Orde r ac companies this Memora ndum Opinion.
Date: Oc tober 6, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

13