PAULINE v. UNITED STATES OF AMERICA et al

Filing 88

MEMORANDUM ORDER: It is hereby ORDERED that the plaintiffs file a memorandum addressing these issues by September 17, 2013. It is further ORDERED that the defendants respond to the plaintiffs' memorandum on these issues by October 1, 2013. Signed by Chief Judge Richard W. Roberts on 8/27/2013. (lcrwr1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
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Plaintiff,
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v.
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UNITED STATES OF AMERICA,
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et al.,
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Defendants.
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_____________________________ )
JOHN PAULINE,

Civil Action No. 08-1788 (RWR)

MEMORANDUM ORDER
Plaintiff John Pauline brings professional malpractice,
survival and wrongful death claims against the United States and
the Armed Forces Retirement Home (“AFRH”) (collectively, the
federal defendants), Dr. Pearson Sunderland, the Professional
Services of America (“PSA”), and Viola Johnson-Robinson.1

The

defendants move for summary judgment on all of Pauline’s claims
arguing that Pauline’s experts failed to identify a national
standard of care and show that national authorities support their
proposed national standard of care.
For a medical malpractice negligence claim, D.C. courts have
required a plaintiff to show: 1) “the applicable standard of
care,” 2) “a deviation from that standard” and 3) “a causal

1

On February 22, 2011, Pauline dismissed under Federal Rule
of Civil Procedure 41(a) the claims against defendant Teamstaff
Government Solutions Inc.

- 2 relationship between the deviation and the injury.”

Hill v.

Medlantic Health Care Grp., 933 A.2d 314, 325 (D.C. 2007);
Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007).

In an action

for negligence, the plaintiff bears the burden of proving the
national standard of care by a preponderance of the evidence.
Cárdenas v. Muangman, 998 A.2d 303, 307 (D.C. 2010); see also
Frazza v. United States, 529 F. Supp. 2d 61, 69 (D.D.C. 2008)
(citing Varner v. District of Columbia, 891 A.2d 260, 265 (D.C.
2006)).

The D.C. Court of Appeals has “been demanding in

requiring proof of a national standard of care” and requires that
the plaintiff’s experts articulate a clear standard and how it
was violated by comparing specific standards with specific facts
alleged.

Clark v. District of Columbia, 708 A.2d 632, 634-35

(D.C. 1997).

The expert must also link the standard asserted by

the expert to national authorities or sources.

Id.

Some courts have recognized that there is a lower standard
for an expert’s identification of a national standard of care
when considered at the summary judgment stage than when the
expert’s testimony is considered in the directed verdict context,
after the expert has testified.

See Liser v. Smith, 254 F. Supp.

2d 89, 103-04 (D.D.C. 2003); see also Robinson v. Washington
Metro. Area Transit Auth., 858 F. Supp. 2d 33, 41 n.7 (D.D.C.
2012) (quoting Varner, 891 A.2d at 270) (“This is a relevant
distinction because, although ‘the test for deciding a motion for

- 3 summary judgment is essentially the same as that for a motion for
a directed verdict,’ . . . [the expert’s] testimony at trial,
when subjected to direct and cross-examination, will provide an
opportunity to resolve any ambiguity in [the expert’s]
statements.”); Dorn v. McTigue, 157 F. Supp. 2d 37, 44 (D.D.C.
2001) (“Unlike at trial, the plaintiff opposing a
summary-judgment motion does not have the burden of providing
persuasive evidence on every element of her case.

. . .

Thus,

the plaintiff has not yet had a full opportunity to prove what
the national standard of care is in this case.”).

Under this

analysis, the plaintiff’s experts must assert only “a colorable
basis to believe that [the expert’s] testimony may satisfy” the
standard for identifying the national standards of care and
linking an expert’s opinion to them.

Liser, 254 F. Supp. 2d at

103-04; see Dorn, 157 F. Supp. 2d at 44 (requiring the expert to
provide “a specific and articulated basis for his expert opinion
to survive summary judgment”).
Pauline designated three expert witnesses for this
litigation: Barbara Darlington in nursing, Dr. Diane Mirabito in
social work and Dr. Harold Bursztajn in psychiatry.

Federal

Defs.’ Mot. for Summ. J., Ex. 7, Pl.’s Second Am. Expert
Designation ¶¶ 1-3.

Pauline’s opposition to the defendants’

summary judgment motion attaches and cites to supplemental
affidavits from two of their experts --

Darlington and

- 4 Bursztajn.

Mem. of P. & A. in Supp. of Pl.’s Opp’n to Defs.’

Mots. for Summ. J., Exs. 1, 2.

These affidavits supplement the

experts’ reports and depositions produced during discovery and
discuss the bases for their expert opinions.

In particular, both

experts assert that they could refer to national authorities
supporting their opinions regarding the national standard of care
in this case.

Id., Darlington Aff. Ex. 1 at 2; id., Bursztajn

Aff. Ex. 2 at 6.

However, the plaintiff did not move for leave

to supplement discovery or seek to re-open discovery to
supplement the experts’ reports.

The defendants argue that these

opinions should not be considered because Federal Rule of Civil
Procedure 26(a)(2) requires the plaintiff’s experts to have
provided a complete statement of their opinions during discovery.
Federal Defs.’ Reply at 14-16.

That bar would limit the experts’

testimony at trial to the issues addressed in the experts’
reports and the experts’ deposition testimony.
In order to facilitate the resolution of the summary
judgment motions, the parties will be directed to file
supplemental briefs regarding three issues.

First, the parties

shall identify the appropriate standard for identifying a
national standard of care at the summary judgment stage.

Second,

the parties shall discuss whether the plaintiffs’ supplemental
expert reports should be considered at this stage, and if so,
under what circumstances.

Third, the parties shall assess

- 5 whether the plaintiffs’ experts in all their submissions have
satisfied the standard for identifying a national standard of
care and showing that national authorities support their
testimony regarding the national standard of care.

Accordingly,

it is hereby
ORDERED that the plaintiffs file a memorandum addressing
these issues by September 17, 2013.

It is further

ORDERED that the defendants respond to the plaintiffs’
memorandum on these issues by October 1, 2013.
SIGNED this 27th day of August, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge