D.C. Superior Court Opinions
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Intrafamily Offense Act / Civil Protection Orders / Destruction of Property as an Offense “Upon a Person”
The crime of malicious destruction of property may fall under the Intrafamily Offense Act’s (“IFA”) definition of an offense “upon a person” such that it could justify the issuance of a civil protection order (“CPO”). Damaging the property of another person can instigate further physical violence, act as a precursor to a violent act, or intimidate the other party in the same manner as an act of violence would, and may represent one aspect of a pattern of violent domination and control. Where an act of destruction of property potentially serves as a precursor to, threat or instigator of, or substitution for violence, or otherwise comprises part of a violent or intimidating pattern of domination and control, the issuance of a CPO would properly serve the IFA’s goals. Accordingly, the destruction of a phone and car immediately before and after a physical assault and the destruction of a victim’s car in order to express displeasure and exert control are consistent with the underlying purpose of the IFA. Recklessly damaging a door in order to open when no one else is home does not serve the IFA’s purpose.
Quitclaim Deed / Incapacity / Inter Vivos Gift / Donative Intent
Quitclaim deed of property transferred to neighbor is disaffirmed and voided. Decedent was incapacitated when he transferred the property to a neighbor. The transfer of the property is better viewed as an inter
vivos gift rather than a contract. Past work performed on the property cannot be consideration for a contract. Decedent never manifested donative intent since (1) he was incapacitated at the time of transfer and therefore could not understand the nature of the transaction; (2) testimony indicated he never believed the property belonged to anyone but him; and (3) he never gave up possession. Even if the transfer were viewed as a contract it would be voidable because of the incapacity. Decedent’s representatives have the authority to disaffirm the Quitclaim deed. Petition to void deed granted.
Collateral Source Rule / Medicare
The collateral source rule permits a plaintiff to seek damages for the full amount of medical expenses, including the amount written off by the hospital pursuant to the Medicare reimbursement formula. When a person pays into the Medicare system she has bargained for that benefit and under the collateral source rule she should receive the benefit of that bargain. Defendant’s motion in limine to exclude evidence of non-compensable hospital charges written off under federal Medicare program is denied.
Civil Protection Order / Stalking
Petition for Civil Protection Order (“CPO”) denied because the underlying behavior is constitutionally protected and thus does not constitute the offense of stalking. A website and flyers denouncing sex offender registries and the public employees who operate them constitutes speech on matters of public concern. Photographs that were improperly taken and used do not alter the protected nature of the speech and pictures taken in public buildings showing only a person’s physical appearance and government-owned furniture and fixtures do not implicate any privacy interest. While the website and pictures may have caused Petitioner emotional distress, the First Amendment protects offensive and inflammatory speech. While the acts of surreptitiously photographing Petitioner and distributing flyers in her place of work could fall within the scope of the stalking statute, there is no evidence that Respondent was directing his message at Petitioner rather than speaking in the context of public discourse. Even if the Court found Respondent’s behavior violated the stalking statute, the court would not exercise its discretion to grant a CPO since one in this situation would be inconsistent with the purposes of the Intrafamily Offense Act, the benefits to Petitioner would be outweighed by the resulting chilling effect on speech, and the availability of other remedies against enjoining Respondent’s speech based purely on content.
Habitual Late Payment of Rent / Redemption of Tenancy
Plaintiff landlord is entitled to a non-redeemable judgment of possession. A tenant habitually late in paying rent is not entitled to redeem tenancy. Rent payments are habitually late where the late payments—24 over the course of 3 years—were consistently and willfully late. Once notice was provided and Defendant failed to cure she lost the opportunity to redeem her tenancy.
D.C. Anti-SLAPP Act / LIKELY TO SUCCEED ON THE MERITS / PROVABLY FALSE STATEMENTS / FAIR COMMENT PRIVILEGE / ACTUAL MALICE / INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS / 12(B)(6) MOTION TO DISMISS
Anti-SLAPP and 12(b)(6) motions to dismiss a defamation suit brought by a scientist against media organizations and writers over accusations of data fraud are denied. A Plaintiff seeking to show he is likely to succeed on the merits on a defamation claim in response to an anti-SLAPP motion must satisfy a standard comparable to that used for a motion for judgment as a matter of law. Assertions that Plaintiff’s research was “fraudulent,” “bogus,” “scientific misconduct,” and “data manipulation” are not mere opinion or hyperbole but statements based on provably false facts sufficient to demonstrate a prima facie case for libel. Fair Comment privilege is not available where challenged statements are misstatements of fact. Where Plaintiff’s work has been investigated and found accurate several times, continued accusations that Plaintiff’s work is “intellectually bogus” shows a reckless disregard for the truth sufficient to indicate that further discovery may uncover evidence of actual malice and possibly sustain a finding of intentional infliction of emotional distress. Defendants’ motion to dismiss pursuant to 12(b)(6) is denied for the same reasons.
“Law of the Case” Doctrine / Reasonable Business Expectancy / Proximate Cause Requirement in Misappropriation of Trade Secrets
In a suit over alleged tortious interference in a bidding process for a contract to train air traffic controllers, Defendants are entitled to summary judgment on claims of tortious interference, misappropriation of trade secrets, and misappropriation of confidential business information. The “law of the case” doctrine does not bind a court when the prior ruling was on a different type of motion on a different legal and factual record. Plaintiff cannot succeed on a claim of tortious interference with business and unfair competition where it cannot establish it had valid business expectancy in receiving the contract or as a subcontractor. Plaintiff does not have commercially reasonable business expectancy when their claim rests on speculative assertion that it would have won a contract as prime bidder in a situation where the contracting agency maintained discretion over selecting a bid. Neither the Court nor a jury is empowered to determine what the contracting agency would have qualitatively decided in a situation different from the one at bar and the Court cannot find Plaintiff’s expectancy matured beyond “wishful thinking.” Plaintiff lacks valid business expectancy as a subcontractor where it merely has an agreement to negotiate in good faith for a subcontract with the party it claims would have received the contract absent the alleged interference. There is no dispute of material fact regarding alleged aiding and abetting of a conflict of interest and misappropriating trade secrets and propriety information where Plaintiff proffers documents from the contracting agency that discuss issues related to the contract but provides no evidence connecting those documents to Defendant. Defendant’s motion for summary judgment on Plaintiff’s claim of misappropriation of trade secrets denied where there is a question of material fact over Defendant’s possession of allegedly misappropriated documents. Plaintiff must demonstrate the element of proximate causation to succeed in a misappropriation claim, like any other tort action. In light of Plaintiff’s failure to submit a bid in a highly discretionary bidding process, any conclusion that Defendant’s alleged misconduct is the proximate cause of the alleged arm would be purely speculative.
Acknowledgment of Paternity
Written acknowledgment of paternity does establish paternity—or serve as condition precedent to the ensuing legal obligations—where it was improperly executed and subsequent DNA testing has determined that Defendant is not the biological father. Acknowledgement does not does not establish paternity when it is not signed under oath with written and oral notice of the alternatives to, legal consequences of, and the rights and responsibilities arising from paternity, in accordance with D.C. Code § 16-909.01 (a)(1). Respondent’s DNA test results provide conclusive proof of non-paternity in the absence of contrary evidence.
MOTION TO COMPEL DISCOVERY OF SPOUSE’S MENTAL HEALTH RECORDS
Abstract: This D.C. Superior Court Memorandum Opinion thoroughly addresses the tension between the child custody statute, which comprehends, inter alia, consideration of the mental health of each competing parent, and the medical privilege statute, which strongly protects a person’s privacy right for mental health records, concluding that the former is outweighed by the latter. Facts: (1) The Plaintiff (the Father) and the Defendant (the Mother) are the parents of a son, who at the time of this action was just under two years of age. (2) In May 2012, the Father filed this action for divorce, in which he also sought sole custody of the child and the Mother filed a counterclaim, likewise seeking sole custody. (3) The basis for the Father’s custodial request was the Mother’s mental health history which included depression and anxiety. (4) The Mother’s response was that it was her husband’s controlling and abusive treatment during the marriage that had caused her emotional distress, but that her own continuing mental health treatment and prescribed medications had led to a state of normalcy, which allowed her to care adequately for the child. (5) To assess her assertions, the Father filed a motion for leave to gain access to her mental health treatment records and permission to depose her providers. (6) When she invoked the statutory medical privilege, he contended that she had waived it by placing her mental health at issue when she sought sole custody of the child. He pointed out that the custody statute makes a parent’s mental health a relevant factor for the Court’s consideration in such a suit, pursuant to the overarching standard of “the best interest of the child.” (7) The Court found that the motion presented “several novel questions concerning the interplay between the child custody statute and the laws concerning the confidentiality and disclosure of the mental health treatment information.” (8) Nevertheless, pending a formal ruling on the Father’s more expansive request, the Court required that the Mother undergo an independent court-ordered mental examination by a licensed psychologist. (9) As to the competing custody and privilege statutes, the Court found that the primary conflict was between the custody statute’s provision that the Court must consider “the mental and physical health of all persons involved” as one among the 17 factors in such a suit, and the medical privilege statute’s “broad privilege for confidential mental health treatment information” which “recognizes no express exception to the privilege … [for] a child custody case.” (10) The Court therefore framed the issues as follows: “Whether the child custody statute creates an implied exception in custody cases to the statutory privilege protecting the confidentiality of mental health treatment information and, if not, the circumstances, if any, in which a Judge presiding over a custody case may ... exercise his parens patriae powers to pierce the privilege in the best interest of the child or deem the statements or other actions of a party an implied waiver of the party’s statutory right to maintain the confidentiality of her mental health treatment information.” Rulings: The Court ruled on the issues presented as follows: (A) Statutory Construction. The Court relied upon “several well-settled principles of statutory interpretation,” as follows: (1) Language Used. (a) The first rule is to give the language used in the statute its “ordinary meaning.” (b) Although the child custody statute is governed by the “best interest” standard, it does not limit a court’s consideration to the factors set forth therein. (c) At the same time, however, the medical privilege statute provides that a “mental health professional,” as defined by the statute “may not be permitted, without consent of the client, … to disclose any information, confidential in its nature, that [s/]he has acquired in attending to a client in a professional capacity, and that was necessary to enable him [or her] to act in that capacity.” (d) It expressly provides only four situations in which the privilege does not apply: (i) specified serious criminal and juvenile delinquency proceedings; (ii) criminal cases in which the competency or sanity of the defendant is at issue; (iii) juvenile delinquency or neglect proceedings in which the same issues are presented; and (iv) criminal, juvenile, and civil proceedings in which a person is alleged to have defrauded certain government medical programs. (e) The Court observed that “although the custody statute makes the mental health of the parents relevant to the determination of the best interest of the child, the statute is silent regarding the types of evidence that may be used in proving the parent’s mental condition, and it says nothing about piercing the [privileged] status of a parent’s confidential mental health information in custody cases.” (f) The Court therefore found that “the plain language of the custody and privilege statutes thus offers no support for the proposition advanced by … [the Father] that the custody statute creates an implied exception in custody cases to the statutory privilege protecting the confidentiality of mental health information.” (2) Harmonization. (a) A second method of statutory interpretation is to interpret two statutes relevant to each other “in a way that avoids unnecessary conflicts between them,” i.e., to “harmonize” them as though “they … [were enacted] together.” (b) In this regard, the Court found that “the statutes at issue can be harmonized in a way that gives full effect to both” because “the custody statute does not require … any preference for the use of confidential mental health information as proof of a party’s mental health condition.” (c) Rather, the Court found, “in most custody cases a party’s mental health can be adequately established through the lay testimony of family members, friends, neighbors, co-workers, employers, and, where justified by good cause, through the expert testimony of a mental health professional who has conducted a court-ordered examination of the party.” (d) This is because “normal … and abnormal conduct are matters of common knowledge so [that] lay persons may conclude from observation that certain observed conduct is abnormal.” (3) Chronological Order. (a) Similarly important is the order in which the statutes were enacted, the more recent statute usually governing any inconsistency. (b) This approach would cause the medical privilege statute – which had undergone numerous amendments between 1963 and 2012 -- to control. (c) The Court carefully noted, however, that in the event an appellate court disagreed with this interpretation, a review of the respective statutes’ legislative histories showed that the sequential revisions in the medical privilege statute had “extended the scope of the … privilege … to include” several health care providers beyond physicians, psychiatrists, and psychologists … to any person whom a client reasonably believes to be … a mental health professional.” At the same time, however, no amendment provided for an exception to the medical privilege for child custody cases. (d) In contrast, the custody statute has remained in the same form since 1977. (4) Specificity. (a) The final rule of construction relied upon by the Court was the rule that a more specific statute controls over a more general one regarding similar topics. (b) The Court found that the more recently-amended privilege statute, though expansive, “provides with significant specificity the extent to which the privilege applies to confidential mental health treatment information.” (c) Likewise in contrast, the custody statute, while specific on other topics, “refers only generally to the requirement that the court consider the mental health of all individuals involved in determining the best interest of a child,” which made the privilege statute the “more specific” of the two, the Court found. (d) Although the legislative history of the privilege statute did refer to providing a “fairer process for formally resolving marital disputes concerning … custody … of children,” the Court found that its “legislative history sheds no particular light on either the decision to include the mental and physical health of all individuals involved in the list of factors to be considered or the type of evidence … that would be used as proof of the mental condition of the person involved in a custody dispute.” (e) The Court’s research also revealed support for the priority of the privilege statute as a matter of serving the “public interest” (i) in persuasive case law from the U.S. Supreme Court and other jurisdictions and (ii) in the mental health provider community at large. The rationale was that “it is in a child’s best interest that his parents actually obtain the mental health treatment they need” and therefore “parents must not be unnecessarily discouraged from seeking such treatment by fears that … confidential statements made in the course of therapy will be used against them in litigation over the custody of … [a] child.” (5) Consequently, the Court found that “the potential costs of court-ordered disclosures of confidential mental health treatment information cannot be overstated.” (6) Accordingly, it rejected the Father’s argument, as a general proposition, “that the District’s child custody statute creates an implied exception in custodial cases to the statutory privilege protecting the confidentiality of mental health treatment information,” finding this contention to be “contrary to the plain language of the custody and privilege statues, their legislative histories, the rules of statutory construction, and sound public policy.” (B) Parens
Patriae. (1) Having made that general ruling, however, the Court also recognized that its role as parens
patriae both enabled and required it to act as “more than just a moderator” in child custody cases because this genre of litigation does not involve “a run-of-the-mill dispute in which only the parties’ interests are implicated.” (2) Rather, in order to determine the child’s best interest, a court “should do … [its] best to obtain all the information needed for a judicious disposition” to that end. Thus, “an appropriate balance must be struck between the court’s parens patriae role and the countervailing interest at the core of the statutory privilege protecting the confidentiality of mental health treatment information.” (3) To fulfill that role, there is “general judicial authority” which holds that “a judge in a custody case … [may] pierce the privilege … [in the] limited … circumstances in which a party’s mental condition is truly material to the custody determination and other less intrusive sources of information … to enable the court to perform its essential role of … determining the child’s best interest” are either unavailable or insufficient. (4) In a situation where a party affirmatively puts his or her mental health that issue in a child custody case, the Court ruled, “the rule of privilege protecting such communications must yield to the dominant duty of the court guard the welfare of its wards.” (5) Nonetheless, the Court ruled that the Father had “not satisfied this standard,” either. (6) In any event, the Court had already ordered the Mother to undergo an independent mental health examination, to say nothing of the lay witness appraisals that would also be available. (C) Waiver. (1) Finally, the Court addressed the question of whether the Mother had waived the medical privilege. (2) The common law rule is that “a person who [affirmatively] places his or her medical condition at issue through the filing of a lawsuit impliedly waives the protection of the doctor-patient privilege regarding relevant medical evidence.” (3) The pertinent statute recognizes an implied waiver in “civil or administrative proceedings,” although, the Court found, it is “not clear” whether a child custody case is such a “civil proceeding,” since such matters sound in equity in the Family Court, rather than the Civil Division of the Superior Court. (4) Ultimately, however, the Court determined that it need not make such a ruling because “whether a custody case is a civil proceeding, … the Court finds that … [the Mother] has not impliedly waived her privilege under either of the prevailing legal standards.” (5) Rather, the Court ruled, it was the Father who had “placed … [the Mother]’s mental health ‘at issue’ through the ‘affirmative act of … [his] filing suit’ and thereby ‘initiated’ … [the issue of the Mother]’s mental health as ‘an element of his claim’ for custody.” (6) Although the Mother responded by denying that her mental health was a detriment and asserting that she was a fit custodial parent, she had not herself placed any records, comments, or diagnoses of her mental health care professional on the record, the Court ruled. (7) Finally, it re-emphasized that it had already ordered that she undergo an independent mental-health examination and, under those circumstances, it found “nothing about … [her] assertion of her statutory privilege that is ‘manifestly unfair’ to .. [the Father] or inconsistent with the purposes for which the privilege is intended.” Conclusions: Based on the foregoing, the Trial Court concluded that (1) the Father had not made out any implied waiver of the Mother’s statutory medical privilege, whether based on the common law or statutory law standard, (2) although the Court noted that its opinion could change as the case develops, (3) so that at this point the Father’s motion for discovery into this area was denied.
Expert Testimony Regarding Standard of Care / Common Knowledge Exception / Negligent Infliction of Emotional Distress / Zone of Danger / Special Relationship Exception / Respondeat Superior
Defendants’ motion for summary judgment is granted for claims of negligent training and supervision and negligent infliction of emotional distress and claim of respondeat superior is dismissed in a case arising from a traffic accident where a police car hit a pedestrian. A negligent training and supervision claim fails as a matter of law where Plaintiff has not named an expert to testify and therefore cannot establish the applicable standard of care. The training of police officers in vehicle operation and managing the scene of a traffic accident are not common knowledge among laypersons and thus require expert testimony to establish the standard of care. Summary judgment granted for Defendants on claim of negligent infliction of emotional distress (“NIED”) as there is no genuine issue of material fact. The Zone of Danger standard for NIED requires a party to plead that she had been in a zone of physical danger. Plaintiff has failed to establish a prima facie case where she has failed to provide evidence to support that or the contention that the emotional distress suffered was serious and verifiable. The Special Relationship Exception does not apply since Plaintiff had no relationship with the police officers before the accident that necessarily implicated her emotional well-being. Additionally, there is no genuine issue of material fact that the actions of questioning plaintiff at the scene and taking photographs of her were especially likely to cause serious emotional distress or that Plaintiff even suffered such distress. The doctrine of respondeat superior is theory of liability, not an independent cause of action, so Plaintiff’s claim is dismissed.