UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KIMBERLY CHANNEY, et al.,
Plaintiffs, Civ. Action No. 16-2213 (EGS/RMM) v.
MARRIOTT INTERNATIONAL, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
The Complaint alleges that Plaintiff Kimberly Channey (“Ms.
Channey”) was sexually assaulted on or about May 5, 2016, while
she was a guest at the Marriott Marquis in Washington, D.C. See
Notice of Removal, ECF No. 1 ¶ 4. Plaintiffs Ms. Channey and her
husband Royce Channey (“Mr. Channey”) (collectively,
“Plaintiffs” or “the Channeys”) have brought spoliation and loss
of consortium claims against Defendant Marriott International,
Inc. (“Marriott”) arising from Ms. Channey’s sexual assault at
the Marriott Marquis. See id. ¶ 5. 1 The case was referred to
Magistrate Robin M. Meriweather for full case management. See
Min. Order, Feb. 3, 2017.
Pending before the Court is Marriott’s Motion for Summary
Judgment, see Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 24;
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.
1 which the Channeys opposed, see Pls.’ Mem. of P. & A. in Opp’n
to Def.’s Mot. for Summ. J. (“Pls.’ Opp’n”), ECF No. 26.
Magistrate Judge Meriweather issued a Report and Recommendation
(“R. & R.”) recommending that this Court grant the Motion for
Summary Judgment. See R. & R., ECF No. 35. The Channeys raise
several objections to Magistrate Judge Meriweather’s R. & R. See
Plaintiffs’ Objections to Report and Recommendation of
Magistrate (“Pls.’ Objections”), ECF No. 37 at 1.
Upon careful consideration of the R. & R., the Channeys’
objections, and opposition thereto, the applicable law, and the
entire record herein, the Court hereby ADOPTS the R. & R., ECF
No. 35, and GRANTS Marriott’s Motion for Summary Judgment, ECF
No. 24.
I. Background
A. Factual Background
On May 5, 2016, Ms. Channey was staying at the Marriott
Marquis, a hotel in Washington, D.C., while attending a
conference for the American College of Physicians. See Def.’s
Mot. § II (Def.’s Statement of Material Facts) (“Def.’s SOF”) ¶
1; see also Pls.’ Opp’n § II (Pls.’ Statement of Material Facts)
(“Pls.’ SOF”) ¶ 1. Between approximately 8:00 PM and midnight,
Ms. Channey was at the hotel bar with other physicians, and
consumed four to five mixed alcoholic beverages. See Pls.’ Opp’n
§ II (Pls.’ Statement of Material Facts) (“Pls.’ SOF”) ¶ 2; see
2 also Def.’s Mot. § 2 (Def.’s Statement of Material Facts)
(“Def.’s SOF”) ¶ 2. While at the bar, a man in a dark suit and
white shirt approached Ms. Channey. See Def.’s SOF, ECF No. 24 ¶
3; Deposition of Kimberly Channey (“Channey Dep.”), ECF No. 26-2
at 108:13-16. Ms. Channey testified that she recalled disliking
the way the man spoke to her, and that she told the man
something akin to “who the F are you?” or “get the F away from
me.” Pls.’ SOF, ECF No. 26 ¶ 4; Def.’s SOF, ECF No. 24 ¶ 9;
Channey Dep., ECF No. 26-2 at 108:13-21. While the man was at
the bar with Ms. Channey, Ms. Channey took a few sips of her
margarita, but stopped drinking it because it tasted bitter. See
Pls.’ SOF, ECF No. 26 ¶ 6; Channey Dep., ECF No. 26-2 at 86:22-
23. She did not see the man put anything in her drink, but her
back was turned when the man approached her. See Def.’s SOF, ECF
No. 24 ¶ 10; Channey Dep., ECF No. 26-2 at 108:13-14, 111:8-
112:6. Ms. Channey does not recall what happened from the time
she stopped drinking her margarita until she woke up the next
morning. See Pls.’ SOF, ECF No. 26 ¶ 7; Def.’s SOF, ECF No. 24 ¶
4; Channey Dep., ECF No. 26-2 at 108:7-8.
The hotel bartender, Rhachelda Mitchell, testified that the
man at the bar drank wine while there. See Def.’s SOF, ECF No.
24 ¶ 6; Deposition of Rhachelda Mitchell (“Mitchell Dep.”), ECF
No. 24-5 at 28:2-3. Ms. Mitchell also testified that Ms. Channey
and the man appeared “really friendly” and that the two left the
3 hotel bar together. See Pls.’ SOF, ECF No. 26 ¶¶ 3-4; Mitchell
Dep., ECF No. 24-5 at 29:10-16, 31:5-8. Ms. Channey disputes any
characterization of her interactions with the man as
affectionate or reflecting an interest in him. See Pls.’ SOF,
ECF No. 26 ¶ 3. Instead, she contends that her behavior is
consistent with having been drugged. See Pls.’ SOF, ECF No. 26 ¶
3. Ms. Channey’s account is supported by expert testimony, which
suggests that individuals given a predatory drug may appear to
be functioning “or to even participate” in the interaction with
their assailant. See Expert Report of Trinka D. Porrata
(“Porrata Rep.”), ECF No. 26-4 at 4. Hotel security footage
shows Ms. Channey walking towards the elevators, holding hands
with a man dressed in a dark suit and white shirt. See Def.’s
SOF, ECF No. 24 ¶ 3; see also Video Stills, ECF No. 24-3. A
hotel lock report shows that Ms. Channey’s room was unlocked and
opened at 11:58 pm and re-opened at 12:45 am the next day. See
Def.’s SOF, ECF No. 24 ¶ 3; Lock Report Data, ECF No. 24-4 at
11.
When Ms. Channey awoke the next morning, she noticed that
she was naked and still wearing her makeup. See Def.’s SOF, ECF
No. 24 ¶ 11; Channey Dep., ECF No. 26-2 at 128:14-16. Upon
examining her room, Ms. Channey found globs of toothpaste in the
sink, washcloths on the floor, clothes strewn across the room,
black curly hairs in her bed, and a wine glass with finger and
4 lip marks. See Def.’s SOF, ECF No. 24 ¶ 11; Channey Dep., ECF
No. 26-2 at 130:2-22, 134:2-19. While taking a shower, she
noticed that her genitals felt physically disturbed. See Pls.’
SOF, ECF No. 26 ¶ 12; Channey Dep., ECF No. 26-2 at 138:1-4. Ms.
Channey concluded that she had been sexually assaulted and
called hotel security after she had showered. See Def.’s SOF,
ECF No. 24 ¶ 12; Channey Dep., ECF No. 26-2 at 136:23-24.
Hotel security subsequently arrived in the room, including
the director of loss prevention, Donnie Womack (“Mr. Womack”).
See Def.’s SOF, ECF No. 24 ¶ 14; Channey Dep., ECF No. 26-2 at
141:21-142:6. Ms. Channey recalls Mr. Womack telling her that
"you know, sometimes people come here, they have a little thing,
and they just regret it in the morning," and that she should “be
glad this didn't happen to [her] in China. [She] could've woken
up with no kidney." Id. at 142:15-17; 143:19-21. Ms. Channey
pointed out to hotel security the items she believed were left
behind by her assailant, including the used wine glass with
fingerprints and lip impressions on the glass, used towels on
the bathroom floor, toothpaste in the sink, and hairs in the
bed. See Def.’s SOF, ECF No. 24 ¶ 14; Channey Dep. 141:21-142:6.
Mr. Womack asked Ms. Channey whether she wanted to file a police
report, to which she replied she did not know what she wanted to
do. See Channey Dep., ECF No. 26-2 at 142:6-10. However, before
leaving the room, Ms. Channey said “[r]ight now I just want to
5 get medical attention to make sure that I’m okay,” and then
stated: “Don’t touch the room. I will make that decision later.”
Id. at 143:15-17; see also Pls.’ SOF, ECF No. 26 ¶ 15; Channey
Dep., ECF No. 26-2 at 143:15. Ms. Channey states that Mr. Womack
assured her that the room would not be cleaned. Id. at 143:23-
24. Mr. Womack proceeded to contact the hotel’s housekeeping
department and asked that the room not be cleaned. See Def.’s
SOF, ECF No. 24 ¶ 16; Def.’s Answer to Pl.’s Interrogs. No 8,
ECF No. 24-7. When securing a hotel room that is a crime scene,
Marriott employees were trained to use a special key to lock the
room. See Lynette Banks Dep. (“Banks Dep.”), ECF No. 26-6 at
16:17-18:17. However, Mr. Womack did not lock the room. See
Pls.’ Opp’n, Donald Womack Dep. (“Womack Dep.”), ECF No. 26-5 at
158:1-20.
Ms. Channey left the hotel and had a rape kit and blood
test performed at Washington Hospital Center. See Def.’s SOF,
ECF No. 24 ¶¶ 18-19; Pls.’ SOF, ECF No. 26 ¶ 18. A swab of Ms.
Channey’s neck yielded a partial DNA profile from an unknown
male, unlikely to be her husband. See Pls.’ SOF, ECF No. 26 ¶
19; Expert Report of Peter Valentin (“Valentin Rep.”), ECF No.
26-15 at 6. A toxicology report showed no evidence of drugs in
Ms. Channey’s system, except for trace amounts of alcohol and
caffeine. See Def.’s SOF, ECF No. 24 ¶ 19; Channey Dep., ECF No.
26-2 at 179:5-14. However, according to one of Plaintiffs’
6 experts, a toxicology report showing no evidence of drugs is not
conclusive evidence that the victim was not drugged. See Pls.’
SOF, ECF No. 26 ¶ 19; Porrata Rep., ECF No. 26-4 at 7, 12.
Although Marriott electronically removed the room from its
housekeeping list at 12:28 pm on May 6, 2016, a housekeeper
entered the room at 1:04 pm and cleaned the room while Ms.
Channey was at the hospital. See Def.’s SOF, ECF No. 24 ¶ 16.
When Ms. Channey returned, she saw that her hotel room had been
cleaned, and she screamed. See Def.’s SOF, ECF No. 24 ¶ 20;
Pls.’ SOF, ECF No. 26 ¶ 20; Channey Dep., ECF No. 26-2 at
173:23-25. Ms. Channey promptly left the hotel and returned
home. See Def.’s SOF, ECF No. 24 ¶ 20; Pls.’ SOF, ECF No. 26 ¶
20; Channey Dep., ECF No. 26-2 at 174:23-25. The following day,
Ms. Channey filed a police report by telephone from her home in
Michigan. See Def.’s SOF, ECF No. 24 ¶ 20; Pls.’ SOF, ECF No. 26
¶ 20; Channey Dep., ECF No. 26-2 at 177:16-178:14.
The investigating detective, Nicole Rizzi, did not order a
forensic examination of the hotel room. See Def.’s Mot.,
Deposition of Detective Nicole Rizzi (“Rizzi Dep.”), ECF No. 24-
6 at 24:3-13. Detective Rizzi noted that “[a]fter the passage of
24, 36 hours . . . especially knowing that the room, even if it
had not been reoccupied, if it had been cleaned, there’s really
not much . . . an examination of that room could yield.” Id. at
24:14-19. When closing the investigation, Detective Rizzi
7 concluded that there was no evidence that a sexual assault
occurred, because “there is no other male DNA that was found on
the complainant. We don’t have anyone that witnessed the
offense. The statements that the complainant did make did not
support any – you know, she couldn’t remember anything that
would be a specific classification of a sexual offense.” Id. at
50:1-9.
Several experts have also offered opinions through reports
and deposition testimony. Relevant here are the opinions offered
by the Channey’s experts Trinka Porrata and Peter Valentin and
Marriott’s expert Yale Caplan. See generally Porrata Rep., ECF
No. 26-4; Valentin Rep., ECF No. 26-15; Expert Report of Yale H.
Caplan, PhD (“Caplan Rep."), ECF No. 24-2. Ms. Porrata opines
that “[Ms. Channey] was the victim of a drug-facilitated sexual
assault, the proper processing of which was impeded by the
actions of the Marriott staff” and that “there appears to have
been a substantial possibility of identifying the perpetrator
through these [allegedly spoliated] evidentiary items.” Porrata
Rep., ECF No. 26-4 at 11-12. Mr. Valentin is a lecturer in the
Forensic Science Department at the University of New Haven and a
former major crimes detective. See Valentin Rep., ECF No. 26-15
at 1. Mr. Valentin opines that “it’s more likely than not that
the presence of DNA or fingerprints at the scene would have been
useful, would have identified somebody.” Pls.’ Opp’n, (Valentin
8 Dep.), ECF No. 26-14 at 69:2-5. Mr. Caplan, in contrast, opines
that “there is no forensic or scientific evidence of any kind
that suggests or shows that Ms. Channey was drugged by any third
person including the man shown in the video,” and that “to a
reasonable degree of scientific certainty, it is unlikely that
Ms. Channey had been given any drugs such as GHB that evening.”
Caplan Rep., ECF No. 24-2 at 3, 4.
B. Procedural Background
On October 18, 2016, the Channeys filed a claim against
Marriott in the Superior Court for the District of Columbia,
alleging spoliation of evidence and loss of consortium. See
Compl., ECF No. 1-3 at 9-10. On November 4, 2016, Marriott
removed the case to the United States District Court for the
District of Columbia based on diversity jurisdiction. See Not.
of Removal, ECF No. 1. The case was referred to Magistrate Judge
Robin M. Meriweather for full case management, up to but
excluding trial, including the preparation of a report and
recommendation with respect to any potentially dispositive
motions. See Min. Order, Feb. 3, 2017.
Pending before this Court is Marriott’s motion for summary
judgment, see Def.’s Mot, ECF No. 24; which the Channeys oppose,
see Pls.’ Opp’n, ECF No. 26. Magistrate Judge Meriweather has
issued a R. & R. recommending that this Court grant the Motion
for Summary Judgment. See R. & R., ECF No. 35. The Channeys have
9 raised several objections to Magistrate Judge Meriweather’s R. &
R.. See Pls.’ Objections, ECF No. 37 at 1.
II. Legal Standard
A. Objections to a Magistrate Judge's Report and Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
A district court “may accept, reject or modify the recommended
disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1) (“A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”). A district court “must determine de novo
any part of the magistrate judge's disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however,
the party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the [R. &
R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d
86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly
erroneous standard, the magistrate judge's decision is entitled
to great deference” and “is clearly erroneous only if on the
entire evidence the court is left with the definite and firm
conviction that a mistake has been committed.” Buie v. D.C., No.
CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019)
10 (citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009))
(internal quotation marks omitted).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for objection.” LCvR 72.3(b). “[O]bjections which
merely rehash an argument presented to and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).
B. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment motions must be granted if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party
bears the initial burden “of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be
discharged by ‘showing’ . . . that there is an absence of
11 evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325.
In evaluating a summary judgment motion, “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255
(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59
(1970)). Summary judgment turns on “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 251-52. “[I]f the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party”–and thus a “genuine” dispute over a material fact exists–
then summary judgment is not available. Id. at 248.
For purposes of summary judgment, materiality is determined
by the substantive law of the action. Id. Accordingly, the
substantive law identifies “which facts are critical and which
facts are irrelevant,” and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Id.
Similarly, the applicable substantive evidentiary standards of
the action guide “whether a given factual dispute requires
submission to a jury.” Id. at 255. The Court’s role at the
summary judgment stage “is not . . . to weigh the evidence and
12 determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Id. at 249.
C. Third-Party Spoliation
The District of Columbia Court of Appeals first recognized
the tort of third-party negligent spoliation in Holmes v. Amerex
Rent-A-Car, 710 A.2d 846 (D.C. 1998).
Under Holmes, a spoliation claim consists of seven
elements:
(1) existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to that action; (3) destruction of that evidence by the duty-bound defendant; (4) significant impairment in the ability to prove the potential civil action; (5) a proximate relationship between the impairment of the underlying suit and the unavailability of the destroyed evidence; (6) a significant possibility of success of the potential civil action if the evidence were available; and (7) damages adjusted for the estimated likelihood of success in the potential civil action.
Holmes, 710 A.2d at 854.
Although spoliation is not an ordinary tort, its analysis
adheres to basic tort principles. Specifically, a plaintiff must
prove: a duty; a breach; an injury; and causation. See id. at
849 (“To prevail in a tort action generally, a plaintiff must
show by a preponderance of the evidence that the defendant
13 breached a legally cognizable duty to the plaintiff, and that
the breach was the proximate and legal cause of ascertainable
damages to the plaintiff.”). These four components of a tort
claim must, however, “be informed by a careful balancing of
interests required by the unique features of this tort.” Id.
The second and third elements of the spoliation tort
establish the duty and breach. See id. at 849-50, 854. The
first, fourth, fifth, and sixth elements of the spoliation tort
collectively establish causation. See id. at 851-52 (explaining
that proximate cause requires a showing “that the defendant’s
actions proximately caused some level of impairment in the
plaintiff’s ability to prove an existing underlying civil claim”
and that “plaintiff’s underlying claim was, at some threshold
level, meritorious”). The seventh element provides a means to
calculate damages that reflect the degree of impairment that the
spoliation caused. See id. at 852-53.
III. Analysis
A. The Channeys Do Not Meet Their Burden for a Third-Party Spoliation Claim Against Marriott
Mariott argues that it was under no legal duty to preserve
the evidence within Ms. Channey’s room, and that even if it did
owe her a legal duty, “[w]ithout engaging in utter speculation,
it cannot be said that the hotel significantly impaired a
14 criminal or tort lawsuit or that the hotel significantly
impaired Plaintiffs’ success in a claim against the third
party.” Def.’s Mot., ECF No. 24 at 2. In other words, Marriott
contests duty, breach, and causation. The Channeys respond that
Marriott did have a duty to preserve the evidence in Ms.
Channey’s hotel room, and that the existence of evidence is not
speculative, i.e., that causation exists. See Pls.’ Opp’n, ECF
No. 26 at 20, 27.
Magistrate Judge Meriweather’s R. & R. finds that “a
reasonable juror could conclude: that Marriott had a duty–it
told Ms. Channey it would preserve her hotel room, in her
absence, and for her benefit; that Marriott breached this duty–
it did not preserve the room; and that the Channeys suffered an
injury–they cannot recover in a civil claim against Ms.
Channey’s assailant.” R. & R., ECF No. 35 at 10. However,
Magistrate Judge Meriweather concludes that “[b]ecause there is
insufficient evidence to support the Channeys’ theory of
causation, their spoliation claim fails as a matter of law, and
summary judgment should be entered in Marriott’s favor.” Id.
The Channeys raise two objections to Magistrate Judge
Meriweather’s report. First, they argue that Magistrate Judge
Meriweather’s R. & R. improperly ignores the testimony of the
victim. See Pl.’s Objections, ECF No. 37 at 4. Second, they
argue that she improperly weighs the evidence. Id. at 5.
15 Marriott responds that Magistrate Judge Meriweather was not
bound to accept Ms. Channey’s testimony without regard to the
evidence and that she “correctly concluded Plaintiffs cannot
meet their burden to show they had a significant possibility to
recover in the underlying tort litigation even with the
allegedly spoliated evidence.” Def.’s Opp’n, ECF No. 38 at 5.
Marriott adds that Magistrate Judge Meriweather’s findings must
be reviewed with “great deference.” Id. at 7.
Since the objections raised by the Channeys focus on
Magistrate Judge Meriweather’s findings as to whether there is
“a significant possibility of success of the potential civil
action if the evidence were available,” Holmes, 710 A.2d at 854;
that is where the Court focuses its attention. 2 The Court first
addresses the question of the standard of review for Magistrate
Judge Meriweather’s R. &. R., and then discusses each of the
Channeys’ objections.
1. Magistrate Judge Meriweather’s R. & R. is Reviewed De Novo
The Channeys argue that Magistrate Judge Meriweather’s
recommendation should be rejected because it is contrary to
2 Magistrate Judge Meriweather found that the Channeys had met their burden with regards to the first five elements of the spoliation tort. See generally R. & R., ECF No. 35. Neither the Channeys nor Marriott contest her findings on the other elements. See generally Pls.’ Objections, ECF No. 37; Def.’s Opp’n, ECF No. 38. 16 precedent for granting a motion for summary judgment. See Pls.’
Objections, ECF No. 37 at 6. They contend that she ignored
direct testimony from the victim and “improperly weighed
evidence that is solely within the province of the jury to
determine truthfulness.” Id. Marriott responds that Magistrate
Judge Meriweather’s findings must be reviewed with “great
deference” since they are fully consistent with the record and
supported by applicable law. Def.’s Opp’n, ECF No. 38 at 7. The
Court disagrees and reviews the findings de novo.
A district court “must determine de novo any part of the
magistrate judge's disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3). Objections must “specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the basis for
objection.” LCvR 72.3(b). “If, however, the party makes only
conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the [R. & R.] only for
clear error.” Houlahan, 979 F. Supp. 2d at 88 (internal citation
omitted). “Under the clearly erroneous standard, the magistrate
judge's decision is entitled to great deference” and “is clearly
erroneous only if on the entire evidence the court is left with
17 the definite and firm conviction that a mistake has been
committed.” Buie, No. CV 16-1920 (CKK), 2019 WL 4345712, at *3.
The question is not, as Marriott suggests, whether
Magistrate Judge Meriweather’s findings are “fully consistent
with the record and are supported by applicable law,” Def.’s
Opp’n, ECF No. 38 at 7; the question is whether the Channeys
“specifically identify the portions of the proposed findings and
objection.” LCvR 72.3(b).
The Channeys argue that “[i]n assessing the weight of proof
of the rape, the Magistrate not only ignored the testimony of
the woman assaulted, but also gave no weight to destroyed
objects that corroborated an unidentified man [in] the hotel
room.” Pls.’ Objections, ECF No. 37 at 4-5. Next, the Channeys
object to Magistrate Judge Meriweather’s weighing of expert
evidence, arguing that she “improperly sua sponte finds the
testimony [of experts] not admissible,” “misconstrues the
testimony of forensic experts,” and “fails to draw inferences in
favor of the nonmoving party.” Id. at 5-6. Although it is a
close call, because the Channeys point to specific statements in
the R. & R., the Courts find that these are not “conclusory or
general objections,” Houlahan, 979 F. Supp. 2d at 88; but rather
18 properly specific objections that must be reviewed de novo. See
Fed. R. Civ. P. 72(b)(3).
2. Magistrate Judge Meriweather Did Not Improperly Ignore The Testimony of The Victim
The sixth element of the spoliation tort looks at whether
there is a “significant possibility of success of the potential
civil action if the evidence were available.” Holmes, 710 A.2d
at 854. The significant possibility standard addresses the level
of harm that must be proven, and is a heightened standard,
intended to protect a defendant’s interest in only providing
compensation for conduct that is actually harmful. See id. at
850 (standard of proof reflects the interest in “only
compensating plaintiff for defendant’s harmful negligence or
recklessness”). A plaintiff must show “a substantial and
realistic possibility of succeeding, but need not cross the
threshold of demonstrating that such success was more likely
than not, something that would be realistically impractical of
proof.” Id. at 710. The “significant possibility” standard for
third-party spoliation differs from the “genuine issue of
material fact” standard for summary judgment. To defeat summary
judgment, a plaintiff must show a “genuine issue of material
fact” such that a reasonable jury “could return a verdict for
the [plaintiff].” Liberty Lobby, 477 U.S. at 248 (emphasis
added). To defeat summary judgment in the spoliation claim,
19 however, a plaintiff must show a “significant possibility” that
a reasonable jury would have found for the plaintiff on any of
her potential civil claims. See Holmes, 710 A.2d at 852.
Here, Marriott argues that it is highly unlikely that DNA
or fingerprint evidence would have been recovered, and also that
such evidence would have led to an identification, proved a
sexual act occurred, and shown that the sexual act was non-
consensual. See Def.’s Mot., ECF No. 24 at 25-28. The Channeys
argue that potential DNA and fingerprint evidence uncovered from
the hairs in the bedsheets, the used washcloths, the globs of
toothpaste in the sink, or used wine glass with fingerprint and
lip impressions, combined with Ms. Channey’s testimony, the
circumstances, her early report of the assault, and the presence
of male DNA on her skin, “would allow her a significant possibly
of proving that her assailant attempted to (and succeeded) at
causing Ms. Channey physical harm.” Pls.’ Opp’n, ECF No 26 at
36-41.
Magistrate Judge Meriweather concludes in her R. & R. that
the Channeys have not met their burden of showing they have a
“significant possibility” of convincing a reasonable jury to
enter a verdict in their favor because: (1) there is “no
significant possibility that the evidence would have identified
Ms. Channey’s assailant”; (2) “the Channeys have not established
that there is a significant possibility that the spoliated
20 evidence, if preserved, would have shown that a non-consensual
sexual act occurred in Ms. Channey’s room”; and (3) “even
assuming the Channeys could show a “significant possibility”
that, but for the spoliation, either an identification would
have been made, or a nonconsensual sexual act would have been
proved, the Channeys must prove both to prevail on their claim.”
R. & R., ECF No. 35 at 22-24.
The Channeys object that in evaluating whether they have a
enter a verdict in their favor, Magistrate Judge Meriweather
“dismissed Mrs. Channey’s testimony that she had been sexually
assaulted,” and that the “spoliated evidence is not material to
Mrs. Channey’s assertion of sexual assault” because “[h]er
testimony provides sufficient foundation for a reasonable jury
to believe an assault occurred.” Pls.’ Objections, ECF No. 37 at
4. Marriott responds that Magistrate Judge Meriweather was not
bound to accept Ms. Channey’s testimony without also considering
evidence that: (1) Ms. Channey did not recall whether an assault
occurred; and (2) video and eyewitness testimony showed Ms.
Channey consensually walking with the alleged assailant to the
elevator. Def.’s Opp’n, ECF No. 38 at 5; see also Pls.’ SOF, ECF
No. 26 ¶ 7. Although the Court has sympathy for the suffering
Ms. Channey experienced, and no reason to disbelieve Ms.
21 Channey’s version of events, it cannot conclude that Magistrate
Judge Meriweather improperly ignored Ms. Channey’s testimony.
Contrary to the Channeys’ assertion, Magistrate Judge
Meriweather’s R. &. R. explicitly credits Ms. Channey’s
testimony, stating that “a jury could rely on Ms. Channey’s
impression that her genitals felt disturbed, paired with a
potential recovery of hair or fluids from the bed, to conclude
that a sexual act occurred in the room.” R. & R., ECF No. 35 at
4 (emphasis added). However, the question for the Court is not
whether a jury could rely on Ms. Channey’s impression, but
rather whether the Channeys would have a significant possibility
of convincing a reasonable jury to enter a verdict in their
favor if the spoliated evidence were available.
In this case, Ms. Channey’s testimony establishes that she
does not recall whether an assault occurred. See Pls.’ SOF, ECF
No. 26 ¶ 7; Channey Dep., ECF No. 26-2 at 108:7-8. As Marriott
points out, the available evidence, including video and
eyewitness testimony, also does not establish that Ms. Channey
was coerced or forced to have sex with the alleged assailant.
See Def.’s Opp’n, ECF No. 38 at 5; Video Stills, ECF No. 24-3.
Most importantly, there is no “significant possibility that the
spoliated evidence, if preserved, would have shown that a non-
consensual sexual act occurred in Ms. Channey’s room,” because
even if the evidence did identify the perpetrator, it “would not
22 independently demonstrate that he sexually assaulted Ms. Channey
or committed other actionable torts.” R. & R., ECF No. 35 at 23.
The Channeys themselves assert that the “spoliated evidence is
not material to Ms. Channey’s assertion of sexual assault,” but
ask the Court to find against Marriott for alleged third-party
spoliation regardless because “[Ms. Channey’s] testimony
provides sufficient foundation for a reasonable jury to believe
an assault occurred.” Pls.’ Objections, ECF No. 37 at 4. The
Court cannot logically agree; this case is not one against the
alleged perpetrator, but against the harm caused by Marriott’s
spoliation.
The Channeys refer the Court to Greene v. Dalton, in which
the Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) reversed a trial judge who granted the defendant’s
summary judgment motion, holding that the judge did not
appropriately credit the victim’s specific recollection of rape.
See 164 F.3d 671, 675 (D.C. Cir. 1999). However, the issue in
Greene was not third-party spoliation, but solely whether an
assault occurred, and the plaintiff had specific recollection of
the event. Id. at 674. The case therefore does not apply here.
23 The Court concludes that Magistrate Judge Meriweather did not
improperly ignore Ms. Channey’s testimony.
3. Magistrate Judge Meriweather Did Not Improperly Weigh The Evidence
While arguing that there is no “significant possibility” of
success for the Channeys even if the spoliated evidence were
available, Marriott states that “it is highly unlikely there
would be any identifying evidence on any item in the hotel room,
and the mere existence of evidence would not lead substantially
to an identification of the alleged assailant.” Def.’s Mot., ECF
No. 24 at 27. In response, the Channeys present expert testimony
pointing to various factors that might make an identification
more likely, such as the nature of the crime and the state of
the crime scene. See, e.g., Porrata Rep., ECF No. 26-4 at 12
(more physical evidence in this case than in a typical drug-
facilitated sexual assault case); Valentin Rep., ECF No. 26-15
at 5 (“apparent sophistication of the offender” shows he is
likely to be a repeat offender, and thus found in a law
enforcement database). Magistrate Judge Meriweather finds in the
R. &. R. that the experts do not describe any facts “showing the
general likelihood of such an identification in a typical case,”
and that the jury therefore “could not find that there was a
“significant possibility” of an identification.” R. & R., ECF
No. 35 at 22-23. Magistrate Judge Meriweather adds that, to the
24 contrary, “many factors indicate that an identification was
unlikely, such as the wide pool of potential suspects present at
a major hotel in a major city, and the relatively narrow pool of
prior arrestees and criminal offenders found in law enforcement
databases.” Id. at 23.
The Channeys object that Magistrate Judge Meriweather
“misconstrues the testimony of forensic experts and fails to
draw inferences in favor of the nonmoving party.” Pls.’
Objections, ECF No. 27 at 5. They assert that “[a]t a minimum,
due process requires that the proponents of the expert testimony
be provided a hearing to make a proffer before the Magistrate
ruled.” Id. at 6. Marriott responds that the Channeys “neither
point to testimony or any part of their experts’ reports that
were not considered by [Magistrate] Judge Meriweather nor which
would permit a reasonable inference that because DNA was
obtained from the room that it had a significant possibility of
identifying the alleged assailant.” Def.’s Opp’n, ECF No. 38 at
6. Marriott also counters that “[Magistrate] Judge Meriweather
had no obligation to permit Plaintiffs to supplement their
expert’s deposition testimony and reports especially given that
discovery closed on August 29, 2018, and Plaintiffs represented
to the Court that all discovery was completed in a Joint Status
25 Report submitted on February 28, 2019.” Id. The Court agrees on
both issues.
Magistrate Judge Meriweather does not misconstrue expert
testimony, but rather points out gaps in the testimony,
specifically the absence of a baseline on the likelihood of
identification, without which it is unlikely that a jury could
find a “significant possibility” of identifying the assailant.
See R. & R., ECF No. 35 at 22-23 (quoting Porrata Dep., ECF No.
26-13 at 96:20-22 (opinion on the likelihood of an
identification is “[j]ust based on the likelihood of identifying
somebody through fingerprints, when we actually have good
fingerprints. It’s hard to say.”); Valentin Dep., ECF No. 26-14
at 69:12-18 (admitting no experience with the specific
probabilities of a DNA or fingerprint match)). Magistrate Judge
Meriweather relatedly points out that “although Mr. Valentin
cites the number of “hits” returned by forensic evidence, see
Valentin Rep., ECF No. 26-15 at 5; the Channeys have not
provided any evidence of the number of “misses,” i.e., when no
results are returned at all. Id. at 23. The Court cannot
conclude that Magistrate Judge Meriweather improperly weighed
the evidence when the R. & R. reflects careful consideration of
the legal standard, i.e., whether the Channeys can show a
26 “significant possibility of success of the potential civil
action if the evidence were available.” Holmes, 710 A.2d at 854.
Moreover, as Marriott correctly points out, the Channeys’
assertion that “[t]he Magistrate improperly sua sponte finds the
testimony not admissible,” Pls.’ Objections, ECF No. 37 at 6; is
a mischaracterization. The parties jointly represented to the
Court that discovery was completed. See Joint Status Report,
February 28, 2019. Magistrate Judge Meriweather was not
obligated to hold a hearing to permit additional expert
representations. See generally Wannall v. Honeywell Int’l, Inc.,
292 F.R.D. 26, 34-35 (D.D.C. 2013) (stating that a party cannot
amend expert reports “whenever they believe such reports would
be ‘desirable’ or ‘necessary’ to their case” and that “to
construe supplementation to apply whenever a party wants to
bolster or submit additional expert opinions would reek [sic]
havoc in docket control and amount to unlimited expert opinion
preparation.”); see also Capitol Sprinkler Inspection, Inc. v.
Guest Servs., 630 F.3d 217, 227 (D.C. Cir. 2011) (holding that
supplementation or extension requires that the party seeking
relief show that it “cannot reasonably” have met the original
deadlines despite its diligence). The Channeys provide no case
law to the contrary. See generally Pls.’ Objections, ECF No. 37.
27 Therefore, the Court concludes that Magistrate Judge Meriweather
did not improperly weigh the evidence.
B. Loss of Consortium
Magistrate Judge Meriweather agrees with the parties that
the loss of consortium claim depends on the spoliation claim.
See R. & R., ECF No. 35 at 26. Because the Court does not agree
with the Channeys’ objections to the R. & R., and adopts the
recommendation on the spoliation claim, the loss of consortium
claim must also fail.
IV. Conclusion and Order
For the reasons stated above, the Court
ADOPTS Magistrate Judge Meriweather’s Report and
Recommendation, ECF No. 35; and further
GRANTS Defendant’s Motion for Summary Judgment, ECF No. 24.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge December 3, 2021