Metro's attorneys, breaking with a longstanding policy, have begun to take advantage of a legal loophole that they believe will enable them to win dismissal of the more than 400 personal injury suits filed against the agency in D.C. Superior Court.
Already three such suits have been ordered dismissed by Superior Court judges after hearing Metro's attorneys argue that the charter that created the area transportation authority in 1966 did not specifically name their court as one in which such suits could be filed. D.C. Superior Court did not exist at the time.
In addition, Metro has notified at least 15 attorneys representing other individuals allegedly injured by or on Metro transport that dismissals will be sought in their cases too.
The monetary implications are potentially enormous for both Metro and those suing the agency. Attorneys who frequently argue personal injury cases against Metro in Superior Court estimate that, typically, Metro has agreed to pay damages in 95 percent of all cases brought against it. Those settlements, they say, averaged about $10,000 apiece.
Particularly galling to attorneys representing individuals suing Metro is the possibility that at least 130 of the 400-plus cases may not be refiled in any other court because the alleged injuries occurred more than three years ago and thus exceed the statute of limitations.
The vast majority of the cases Metro wants dismissed involve injuries to Metro bus and train passengers or injuries stemming from buses striking other cars or pedestrians.
Robert Cadeaux, an attorney for one individual whose suit was dismissed by Superior Court Judge Tim Murphy last month, said yesterday that Metro's action violated a general practice of filing Metro-related cases in Superior Court that had long been adhered to both by Metro lawyers and private attorneys.
The understanding was reached after a ruling in 1973 by then-Superior Court Judge John Garrett Penn, who is now a U.S. District Court judge. When Metro lawyers attempted to win dismissal of cases against it then using the same argument, Penn ruled that Superior Court did have jurisdiction. Since then, both Metro lawyers and lawyers for persons suing Metro have used either U.S. District Court or Superior Court.
Recently, however, Metro's outside counsel, Hogan & Hartson, reviewed the federal statute and recommended resuming efforts to win dismissal of all cases against Metro in Superior Court.
Hogan & Hartson partner Vincent H. Cohen said yesterday that it would be "difficult not to use any defense available, given that it is public money. If it's public funds and if they [Metro officials] have an absolute defense [such as the case being filed in the wrong court], they have to go for it."
Cadeaux said he was approached last week by 15 other attorneys whose cases have been dismissed or who have learned that their cases have been targeted for dismissal petitions by Metro. In every case, he said, the statute of limitations has run out.
He said Metro lawyers also have told the attorneys that all Superior Court cases will be challenged as they come up for hearings.
Several lawyers interviewed said that the decision by Metro to challenge the suits creates complex legal issues that will have to be resolved by the D.C. Court of Appeals and possibly the U.S. Supreme Court. Cadeaux said he has asked for the appeals court to review his case on an expedited basis.
In the meantime, several lawyers, all of whom said they are worried that they may be sued for malpractice by clients angered because the suits were filed in the wrong court, called the situation "chaos."
Cadeaux said that Metro's arguments could be used against Metro, too, however.
"Every judgment they Metro's attorneys have won [in Superior Court] in the last three years could be challenged," Cadeaux said. That means that anyone who was successfully sued by Metro in Superior Court might have a chance to sue to recover their losses because Metro filed in the wrong court, too.
Metro, in turn, might be able to sue to recover any money it has lost in Superior Court suits, he added.
"It also means that in every judgment they have lost in the last nine years, they have been giving away public monies for no reason," Cadeaux said.