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

(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,

(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),

, at *3 (D.D.C. Sept. 12, 2019)

10 (citing Graham v. Mukasey,

(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,

(D.D.C. 2013) (quoting Morgan v. Astrue, No.

08-2133,

, 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.,

(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,

(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,

.

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,

(quoting Adickes v. S. H. Kress & Co.,

(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.”

. “[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.

.

For purposes of summary judgment, materiality is determined

by the substantive law of the action.

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.”

Similarly, the applicable substantive evidentiary standards of

the action guide “whether a given factual dispute requires

submission to a jury.”

. 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.”

.

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,

(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,

.

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

(“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.”

The second and third elements of the spoliation tort

establish the duty and breach. See

. The

first, fourth, fifth, and sixth elements of the spoliation tort

collectively establish causation. See

(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

.

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.”

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,

;

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.”

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,

(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),

, 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

recommendations to which objection is made and the basis for

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.”

. 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,

; 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,

. 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

(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,

(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,

.

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

“significant possibility” of convincing a reasonable jury to

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

, 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,

.

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.,

(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.,

(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

28