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

) BRETT E. COHEN, as Per sonal an d Legal Repre sentative of the Estate of D.Q., ) ) ) ) P laintif f, )

) v. ) Civil Action No. 08-480 (RMC) ) DISTRICT OF COLUMBIA, et al. , ) ) Defendan ts. ) )

MEMORAN DUM OP INION D.Q., a foster child and war d of the District o f C o l umbia, was killed when he was transporte d by van to Prog ressive L ife Center for an appointment, he exit ed the van, and stepped into oncoming traff

ic. Br ett Cohen, as per sonal and leg al re prese ntative of the Esta te of D.Q ., broug ht suit ag ainst: the District of Columbi a (“D istrict”); Prog ressive L ife C en t er (“ Prog ressive” ) (the
contra ctor that ar ra ng ed for place ment with foster pare nts and provided regular counseling and medical car e to D.Q.); Nile Ex press Tran s p o rt, I nc. (the company that operated the van that transporte d D.Q.); and Wil liam Woods (the driver of the oncoming car). The District of Columbi a and Prog ressive move d for summary judgme nt. Be cause the evidence did not meet the threshold require d to demonstrate that the District or Prog ressive acte d with deliberate indiffer ence that shocks the conscie nce, see Estate of Phillips v. District of Columbia , 455 F.3d 397, 403 (D.C. Cir. 2006), 1

T h is “ s tr in g e n

t r equire ment exis ts to differ entiate substantive due proce ss, w h ic h is in te n d e d 1 only to protec t ag ainst arbitra ry g o v er n m en t ac t ion, from local tort law.” Butera v. District of Columbia , 235 F.3d 637, 651 (D.C. Cir. 2001). Neg lige nce alone is i n s u fficie nt to establish a substantive due proc ess claim under § 1983. Daniels v. W

illiams , 474 U.S. 327, 331 (1986).the Court g rante d summary judgme nt in favor of Def endants on Plaintiff’s Due Process claim under
4 2 U. S

. C

. § 1 9 8 3

. See Mem. Op. [Dkt. # 130] & Orde r [Dkt. # 131]. The Court rema nded the

rema ining claims to t h e Dist rict of Columbi a S uperior Court. Plaintiff moves for reconsider ation pursuant to Fe dera l Rule of Civil Procedur e 59(e)

. As explained below, the motion will be denied.

A Rule 59(e) motion is discretionar y and need not be g rante d unless the district court finds that there is an “interve ning chang e of controlling law, the availability of new evidenc e, or the need to corr ect a clea

r err or or preve nt manifest injusti ce.” Fox v. Am. Airlines Inc. , 389 F.3d 1291,
12 9 6 (D.C. Cir. 2004) (quoting Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A Rule 59(e) motion is not “simply an opportunity to rea rgue fac ts and theories upon which a court has alre ady ruled.” New Y

ork v. United States , 880 F. Supp. 37, 38 (D.D.C. 1995). Nor is it an avenue for a “losing party

. . . to raise new issues that could have been raised previously .” Kattan v. District of Columbia , 995 F.2d 274, 276 (D.C. C ir. 1993). A motion to rec onsider is not “a vehicle for
p re s enting theories or arguments that could have been advanc ed ear lier.” Smith v. Hope Village , Inc ., 481 F. Supp. 2d 172, 183–84 (D.D.C. 2007); see also Gree n v. W hiteco Indus ., 17 F.3d 199,
202 n.5 (7th Cir. 1994) (“[M]ot ions f or rec onsideration

. . . cannot

. . . be employ ed as a vehicle to introduce evidenc e that could have been adduce d during the pendenc y of the summary judgme nt motion.”). “Rule 59 was not intende d to a llow a second bite at the apple.” Oce ana, Inc. v. Evans , 389 F. Supp. 2d 4, 8 (D.D .C. 2005).

Plaintiff does not alleg e any chang e in law nor does he point to new evidenc e. I nstead he asser ts that the Court committed clea r err or. I n making this claim, Plaintiff mere ly reha shes the

same arg uments prese nted in opposition to the motions for summary judgme nt filed by the District and Prog ressive. For example, Plaintiff continues to argue that Prog ressive and the District are liable

-2-beca

use they failed to ensure that D.Q. consistently took his medications, specula ting that if he had been ta king his medic ation he would not have run impulsively into the s tree t, and that the District and Prog ressive should have had policies in place reg arding the administration of medication. The Court addre ssed these a

rg uments: Plaintiff has not shown that the District and Prog ressive knew or should have k n own that D.Q.’s insufficient medication in the two wee ks befor e J uly 15 would result i n hi s cr o s s i n g the s tree t in front of an onc oming c ar on July 18. Moreove r, there is no evidence that D.Q. was ex p eriencing any particula r emotional or behavior al problem in the wee ks immediately befor e his death that should have p u t t h e District or Prog ressive on notice that D.Q. was at ris k o f serious har

m.

. . . . Dr. Adewa le evaluated D.Q. just [t hree ] day s befor e the acc ident and he did not find D.Q. to be a dang er to himself or ot hers. He opined that D.Q. had sufficie nt medication in his sy stem on J uly 15 such that he had not suffe red neg ative eff ects. Dr. Adewa le place d D.Q. back on presc ri b ed medications that very day

. The rec ord as a whole reve als g rea

t attention to D.Q. and his n ee d s . Plaintiff has failed to point to evidenc e s u fficie nt to show that the District or Prog ressive acte d, or failed to act, with deliberate indiffer ence that shocks the conscie nce. Mem. Op. at 15–16. Simi larly , Plaintiff ag ain argues that the District and Prog ressive should have known of the dang er that D.Q. would jump out of a car int o traff ic based on three incidents that

occur red four y ear s ear lier when D.Q. was seven y ear s old. The Court reject ed t h at ar gument, explaining that “[g]iven the passag e of time without any evidenc e of simil ar behavior , the District and Prog ressive’ s failure to take ac t i on to preve nt eleve n-y ear -old D.Q. from exit ing the van and crossing the street on the day of his death could not have been deliberately indiffer ent. No

-3-rea sonable juror could find that they knew or should have known that there was a substantial risk that

D.Q. would step into traf fic.” Id . at 17. Plaintiff also attempts to introduce evidenc e of su b s equent reme dial measure s, evidenc e that he failed to prese nt in opposition to the m otions for summ ary judgme nt. In support of his claim that the District lacke d sufficie nt policies reg arding the transporta tion of foster children, Plaintiff points to an ema i l p re p ared by the District more than two months afte r the acc ident that ref ers to the de velopment of ne w transpor tation policies. Summary judgme nt is properly

g rante d 2
ag ainst a party who “af

ter adequa

te time for discovery and upon motion

. . . fails to make a showing sufficie nt to establish the ex istence of an element es s en t i al t o that party ’s case, and on which that party will bear the burden of proof at t rial.” Celotex Cor p. v. Catrett , 477 U.S. 317, 322 (1986). The email is not new or newly discovere d. I f Plaintiff wanted to rely on this evidenc e, he should have filed it in response to Def endant s’ m otions for summ ary judgme nt. Moreove r, Feder al R ule of Evidenc e 407 bar s the introduction of subseque nt remedia l measure s:

When, afte r an injury or harm alleg edly cause d by an event, measure s ar e t ak en that, if taken previously , would have made the injury o r

The e mail states: 2
I n an eff

ort for MAA to administer and manag e the provision of safe transporta tion from pick-up to delivery , wi th or without driver assistance as nece ssary , attache d ar e s ome protocols we can start apply ing while “for

mal” non-eme rg ency transporta tion Pol icies and Procedur es ar e b ei ng discussed, develope d and written.

. . . The medical provider or Ag ency (e.g

. CFSA) must reque st or arr ang e for an attendant for Medica id rec ipients who are minor children under the ag e of 15, when they know there is no pare nt or g uardia n available to acc ompany

the child on the trip to the provider ’s fa culty or off ice. Pl.’s Mot. for Recons. [Dkt. # 132] , Ex . A (Email date d Sept. 29, 2006). -4-harm less likely to occur , evidenc e of the subsequent measure s is not admissible to prove neg lige nce, [or] culpable c onduct . . . .
Fe d. R. Evid. 407

. Her e, Plaintiff improperly seeks to rely on a subsequent reme dial measure to
prove c ulpable conduc t.

I n addition, Plaintiff arg

ues that the lack of transporta tion policies reg a r d in g d r o p p ing off children at Prog ressive constituted deliberate indiffer ence and that the Court should have relied

on the repor

ts and opinions of its transportat i o n ex p ert, Richard Gar rity , and its social service s expert, Anthony

Ver onico. Plaintiff contends:
Acc ording to Mr. Gar

rity , the District and [P rog ressive] should have evaluated the pick-up and discharg e of clients at [P rog ressive’ s] fac ilit y , b ecause these acts wer e “a common, repe titive, and daily occur renc e at the [ Prog ressive] fac ility .” Acc ording to Mr. Garrity , [P rog ressive] fac ed undue safe ty risk wit h i t s policies (or lack there of) for the safe discharg e and pickup of clients. Plaintiff’s social services ex p ert Anthony Ver onico echoe d the view of Richard Gar rity , in expl aining that D.Q. would be at risk of harm if they did not provide an attendant. Pl.’s Mot. for Recons. at 15. Mr. Gar rity stated that “[p] eriodic m o n i t o ri n g of transporta tion
contra ctors is common prac tice in human service s or community transporta tion. Wh ile not mandated, on-g oing oversig ht of transporta tion car riers is common industry prac tice.” Id

. at 22. I t is true that the Court did not adopt the views of Plaintiff’s experts. I nstead, the Court evalua ted the entire re co rd prese nted by the parties, as it is require d to do to evalua te a motion for summary judgme nt. Fur

thermore , the expert repor ts prese n t ed by Plaintiff are unsworn and unverifie d and thus are inadmissible. See Nnadili v. Chevron U.S.A., Inc. , 435 F. Supp. 2d 93, 104 (D.D.C. 2006) (citing Fowle v. C & C Cola , 868 F.3d 59, 67 (3d Cir. 1989)). I n light of the entire rec ord, the Court found that Pla in

ti f f h a d not mustered sufficie nt evidenc e to show a g enuine issue reg arding deliberate

-5-indiffer ence , finding that “no rea sonable juror co u l d find that the District knew or should have

known of a substantial risk to D.Q.’s safe ty beca use the van parke d acr oss the street or beca use there

was no attendant acc ompany ing the driv er . Du e P roce ss does not require the District to set standards, overse e, and monitor ever y single detail of a contra ctor’s perf ormanc e (such as wher e the
contra ctor parks) without some notice that such is nece ssary to keep its char g es safe .” Mem. Op. at 21. 3
Be cause Pl ai n t i ff has not demonstrated any clea r err or or other basis for

rec onsideration, the motion for rec onsideration [Dkt. # 132] will be denied. A memorializing Orde r

acc ompanies this Memorandum Opinion.

Date: January

13, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

Compare DeAnzona v. C i t y a n d C o u n t

y of Denv er , 222 F.3d 1229 (10th Cir. 2000). I n 3 DeAnzona , the pare nts of a child who drowne d at a city /county -sponsored day camp broug ht a due p ro cess claim ag ainst the City and County of Denve r, and the Tenth Circuit held that summary judgme nt should be g rante d to the defe ndants. The “[l] ack of diligenc e in watching a five-y ear -old child walk twenty -five y ards is not rec kless disreg ard

. . . Not paying e noug h attention to a child and thus allowing the child to wande r awa y and drown is terribly trag ic, and possibly even neg lige nt. Howeve r, mere neg lige nce doe s not shock the consc ience .” Id . at 1236. -6-