The D.C. Law Report

Court of Appeals Rules that Medical Malpractice Action Was Filed One Day Too Late

Douglas Melcher — Fri, 18 May 2012 22:48:43 +0000

On May 17, 2012, the District of Columbia Court of Appeals decided Atiba v. Washington Hospital Center, No. 10-CV-622 (D.C. May 17, 2012) (“Slip op.”) in which it considered whether a medical malpractice claim was timely filed. By way of background, pursuant to statute, medical malpractice claims are subject to a three-year limitations period. Slip op. at 2-3 (citing D.C. Code § 12-301(8)). Additionally, “[b]efore filing a medical malpractice action, a plaintiff must give ‘not less than’ ninety days’ advance notice to the intended defendants.” Id. at 2 (quoting D.C. Code § 16-2802). “If . . . such notice is given within ninety days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action is ‘extended 90 days from the date of the service of the notice.’” Id. (quoting D.C. Code § 16-2803). In this case, the relevant medical services were provided to the plaintiff during the period October 27 to November 2, 2006. Id. at 1-2. The plaintiff served the required notice on October 27, 2009, and filed her complaint on January 26, 2012 — the ninety-first day after giving notice. Id. at 2. The trial court dismissed the plaintiff’s complaint on the grounds that the plaintiff filed one day too late, and the Court of Appeals affirmed. Id. In affirming, the Court specifically rejected the plaintiff’s argument that the notice statute required the plaintiff to wait until ninety “clear days” had passed prior to filing the complaint. Id. at 5. The Court further stated that “[i]t may be true that filing the complaint on any date prior to January 25 would have violated the 90-day notice requirement . . ., and any date after January 25 was untimely,” but that such an interpretation of the relevant statutes was reasonable and consistent with legislative intent. Id. at 8. In light of the foregoing, a plaintiff in a medical malpractice case should beware of giving notice within ninety days of the expiration of the limitations period and relying on the 90-day extension of the limitations period as doing so would have the effect of giving the plaintiff only a one-day window for timely filing a complaint. In any instance, great care should be taken in determining the required filing date. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

About the Author: Douglas C. Melcher is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

Court of Appeals Affirms Summary Judgment for Defendants on Age Discrimination Claim Brought Under DCHRA

Douglas Melcher — Fri, 18 May 2012 22:27:42 +0000

On May 10, 2012, the District of Columbia Court of Appeals decided Cain v. Reinoso, No. 11-CV-249 (D.C. May 10, 2012) (“Slip op.”) in which it considered an age discrimination claim brought under the District of Columbia Human Rights Act (“DCHRA”). The plaintiff in this case was terminated from her employment, at the age of 62, by a Deputy Mayor of the District of Columbia who allegedly terminated her due to her age. Slip op. at 1-2. She then brought an age discrimination claim under the DCHRA against the Deputy Mayor and the District of Columbia. Id. The trial court granted summary judgment for the defendants. Id. at 2. On appeal, the Court assumed for the sake of argument that the plaintiff had presented sufficient evidence to establish a prima facie case of discrimination under the DCHRA. Id. at 9. Specifically, it assumed that her evidence was sufficient to show “(1) that she was a member of a protected class, (2) that she was qualified for the job from which she was terminated, (3) that her termination occurred despite her employment qualifications, and (4) that a substantial factor in her termination was her membership in the protected class.” Id. at 4 (internal brackets and quotation marks omitted). The Court then proceeded to consider whether the defendants had “articulated a ‘legitimate, nondiscriminatory basis’ for terminating [the plaintiff's] employment.” Id. at 9. The Court reviewed the defendants’ evidence regarding an internal reorganization and downsizing, an evaluation of the plaintiff’s work performance, and the superiority of another employee, and concluded that the defendants had presented “a legitimate, nondiscriminatory explanation” for the Deputy Mayor’s decision to terminate her employment. Id. at 19. The Court then considered whether the plaintiff could overcome that explanation by showing that it was “pretextual.” Id. at 19-29. The Court concluded that the plaintiff had not presented any specific evidence showing that the explanation was pretextual. Id. Notably, the plaintiff had acknowledged during her deposition that neither the Deputy Mayor nor his chief of staff had “ever made any age-related or discriminatory remark to her.” Id. at 13. Accordingly, the Court affirmed the trial court’s grant of summary judgment for the defendants. Id. at 29-30. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Rejects Claims for False Imprisonment, Malicious Prosecution, and Unjust Imprisonment Brought by Former Prisoner Whose Conviction Was Vacated

Douglas Melcher — Fri, 18 May 2012 22:27:15 +0000

On May 10, 2012, the District of Columbia Court of Appeals decided DeWitt v. District of Columbia, No. 10-CV-510 (D.C. May 10, 2012) (“Slip op.”) in which it considered common law claims for false imprisonment and malicious prosecution and a statutory claim for unjust imprisonment under the District of Columbia’s Unjust Imprisonment Act, D.C. Code §§ 2-421 to -424. The plaintiff in this case was convicted in the Superior Court of the District of Columbia of various criminal charges and subject to a lengthy prison sentence. Slip op. at 2. More than a decade later, he submitted a motion to vacate his conviction on the grounds of newly discovered exculpatory evidence that substantially undermined the government’s case against him. Id. The Superior Court vacated the conviction and ordered a new trial based on its findings that the evidence showed that it was more likely than not that the plaintiff was innocent but that the evidence fell short of clearly and convincingly showing his innocence. Id. The government declined to re-try the case and the plaintiff was released from prison. Id. The plaintiff then filed a civil action against the District of Columbia and four officers of the Metropolitan Police Department alleging claims for false imprisonment, malicious prosecution, and unjust imprisonment arising from his prosecution and imprisonment. Id. at 3. The trial court granted summary judgment for the defendants. Id. at 3. On appeal, the key issue with respect to the false imprisonment and malicious prosecution claims was whether there was probable cause to arrest and prosecute the plaintiff. Id. at 4-10. The Court ruled that, even setting aside any evidence that the plaintiff alleged had been manipulated or otherwise corrupted by the defendants, there was sufficient evidence during the relevant time period to show probable cause, including several witness identifications of the plaintiff. Id. at 7-9. It further found that there was no basis for concluding that the plaintiff was prosecuted maliciously because practically all of the exculpatory evidence that served as the basis for vacating the plaintiff’s conviction was discovered after he had already been tried. Id. at 9-10. With respect to the unjust imprisonment claim, the issue on appeal was whether the claim was barred by the doctrine of collateral estoppel. Id. at 10-17. The Court ruled that it was barred because the Superior Court in vacating the plaintiff’s conviction explicitly found that the evidence fell short of clearly and convincingly showing the plaintiff’s innocence. Id. The Court ruled that this finding precluded the plaintiff from proving an essential element of his unjust imprisonment claim; specifically, “that, based on clear and convincing evidence, he did not commit any of the acts charged.” Id. at 10 (quoting D.C. Code § 2-412). Accordingly, the Court affirmed the trial court’s grant of summary judgment to the defendants. Id. at 17. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Upholds Enforcement of Pennsylvania Judgment Against Ralph Nader

Douglas Melcher — Wed, 16 May 2012 18:38:56 +0000

On May 10, 2012, the District of Columbia Court of Appeals decided Nader v. Serody, No. 09-CV-906 (D.C. May 10, 2012) in which it upheld a judgment of the Superior Court of the District of Columbia enforcing a Pennsylvania judgment entered against former presidential candidate Ralph Nader, his running mate, and their campaign organization.

By way of background, the Pennsylvania judgment awarded litigation costs to a group of voters who successfully challenged Nader’s nominating papers for the 2004 presidential election in Pennsylvania. The voters then initiated an action in the Superior Court to enforce the Pennsylvania judgment which resulted in the attachment of Nader’s assets in certain bank accounts. Nader moved for relief against enforcement pursuant to Sup. Ct. Civ. R. 60(b) contending that the Pennsylvania judgment was unlawfully procured; specifically, he alleged the existence of “newly discovered evidence” regarding certain “undisclosed ties and campaign contributions to members of the Supreme Court of Pennsylvania who voted to affirm” the judgment awarding litigation costs and the underlying judgment sustaining the challenge to his nominating papers. Slip op. at 4. He also moved pursuant to Sup. Ct. Civ. R. 41(b) to dismiss the enforcement action on the grounds that the action failed to comply with Sup. Ct. Civ. R. 62(a). The Superior Court denied both motions and Nader appealed. In denying the motions, the Superior Court took judicial notice that, after Nader had filed the Rule 60(b) motion, he unsuccessfully petitioned the trial court in Pennsylvania “to open the record or set aside its judgment directing him to pay litigation costs” on the grounds of alleged criminal misconduct relating to the challenge to his nominating papers. Slip op. at 4-5.

On appeal, the Court recognized that the enforcement action was subject to the District of Columbia’s Uniform Enforcement of Foreign Judgments Act, D.C. Code § 15-351 et seq. (2001) (the “Act”) “which sets out the procedures and standards for enforcement of foreign judgments in the Superior Court of the District of Columbia.” Slip op. at 7. The Court stated that the Act’s provisions “must be read in harmony with the constitutional mandate to accord full faith and credit to the judgments of sister states.” Id. at 8. Accordingly, “the rights and defenses preserved by the Act are only those which the debtor may constitutionally raise.” Id. (emphasis in original; internal brackets and quotation marks omitted). The Court stated that “[w]e join the consensus of courts in jurisdictions that have adopted the [Uniform Enforcement of Foreign Judgments Act] and have held that a foreign judgment does not have to be accepted for enforcement in the receiving jurisdiction if the court rendering the judgment lacked jurisdiction or if the foreign judgment resulted from proceedings lacking in essential due process safeguards or was procured by fraud on the court.” Id. at 10. A collateral challenge to a judgment, however, may be precluded by the doctrine of res judicata because the constitutional mandate of full faith and credit “‘generally requires every State to give a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.’” Id. at 14 (quoting Durfee v. Duke, 375 U.S. 106, 109 (1963)).

Applying the foregoing principles, the Court of Appeals ruled that res judicata precluded all of the arguments raised in Nader’s Rule 60(b) motion because the motion “challenged the validity of a judgment on the basis of claims that were either fully litigated — and rejected — in the Pennsylvania courts, or that could have been brought in those courts.” Id. at 13. That litigation included the litigation leading to the judgment for litigation costs and Nader’s subsequent unsuccessful petition requesting the Pennsylvania trial court to open the record or set aside the judgment for litigation costs. The Court recognized that a foreign judgment may be challenged on the grounds of fraud but concluded that the doctrine of res judicata precluded the arguments in Nader’s Rule 60(b) motion. Accordingly, the Court did not address the merits of those arguments. With respect to Nader’s Rule 41(b) motion, the Court ruled that Nader’s arguments therein were either moot, facially incorrect, or defeated by the Court’s ruling on the Rule 60(b) motion. The Court therefore upheld enforcement of the Pennsylvania judgment.

To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Reverses Summary Judgment for Defendants in False Arrest Case

Douglas Melcher — Wed, 16 May 2012 18:20:45 +0000

On May 10, 2012, the District of Columbia Court of Appeals decided Bradshaw v. District of Columbia, No. 07-CV-274 (D.C. May 10, 2012) in which it reversed the trial court’s grant of summary judgment for the defendants — the District of Columbia and an officer of the Metropolitan Police Department. The case arose from an incident in which the officer arrested the plaintiff at a club. The officer alleged, inter alia, that before he made the arrest a bouncer at the club told him that the plaintiff had tried to fight with another patron (i.e., that the plaintiff committed the crime of attempted assault). The plaintiff brought common law and constitutional false arrest claims against the defendants (as well as one or more other claims that were not considered on appeal). The trial court granted summary judgment for the defendants. On appeal, the District urged the Court to affirm the trial court’s grant of summary judgment because, based on the information allegedly provided to the officer by the bouncer, the arrest was justified. In reviewing the evidence, the Court stated that if the officer’s testimony about what the bouncer allegedly said to him had definitively and consistently indicated that the bouncer did in fact tell him that the plaintiff had tried to fight with another patron that summary judgment for the defendants would have been proper because there was no evidence in the record to contradict such testimony and an arrest under such circumstances would have been legally justified because the officer would have had probable cause to arrest or, at the least, a reasonable and good faith basis for believing that he was acting lawfully in making the arrest. The Court ruled, however, that the officer’s testimony was not definitive or consistent about what the bouncer said and thus could not support a finding that there was no genuine dispute as to whether the bouncer actually told him that the plaintiff tried to fight with another patron. The Court therefore reversed and remanded for further proceedings. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Rules that Plaintiff Failed to Show that Allegedly Defamatory Statement Was Provably False

Douglas Melcher — Tue, 01 May 2012 16:34:13 +0000

On April 26, 2012, the District of Columbia Court of Appeals decided Rosen v. American Israel Public Affairs Committee, Inc., No. 11-CV-368 (D.C. Apr. 26, 2012) in which it considered a defamation claim by a former employee against his employer and its spokesman. The employee was terminated by his employer amid controversy (including a criminal investigation) regarding his receipt and handling of classified information from a government official. The defamation claim was premised on a statement by the employer’s spokesman to the media indicating that the employee was terminated because he “did not comport with the standards that [the employer] expects of its employees.” Id., slip op. at 6-7 (internal quotation marks omitted). The trial court granted summary judgment for the defendants on the grounds that the statement was not “provably false.” On appeal, the Court of Appeals upheld the trial court’s decision. The Court concluded that any defamatory meaning of the statement would have to arise from an interpretation of the word “standards.” The evidence showed, however, that the employer did not have any written standards and merely had unwritten general expectations that its employees would obey the law, follow the advice of in-house counsel, etc. The Court concluded that “[w]hatever collection of unwritten ‘standards’ [the employer] may have had [during the relevant time period], each was too subjective, too amorphous, too susceptible of multiple interpretations . . . to make any of them susceptible to proof of particular, articulable content.” Id. at 21. Accordingly, the employer’s “‘standards’ – a word of aggregation expressing an even higher level of generality – could have meant many things, none self-evident, and certainly none specifically directed at ‘receiving or handling classified information,’ [the employee's] central focus in bringing [the] lawsuit.” Id. The Court therefore ruled that the plaintiff could not prove the falsity element of his defamation claim and, accordingly, upheld the trial court’s decision granting summary judgment for the defendants. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Partially Upholds Default Judgment Premised on Claim Under Uniform Fraudulent Transfer Act

Douglas Melcher — Tue, 01 May 2012 16:12:08 +0000

On April 26, 2012, the District of Columbia Court of Appeals decided Bertram v. WFI Stadium, Inc., No. 11-CV-396 (D.C. Apr. 26, 2012) in which it considered an appeal of a default judgment premised on a claim for fraudulent conveyance. By way of background, the plaintiff, WFI Stadium, Inc. (“Stadium”), had previously obtained a Maryland judgment against another company, Distributive Networks, Inc. (“Distributive”). The defendant, Kevin D. Bertram (“Bertram”), was the Chief Executive Officer and majority owner of Distributive. Stadium filed a complaint against Bertram alleging a claim for fraudulent conveyance. Bertram failed to answer. The trial court entered a default and then, following an evidentiary hearing on damages, awarded approximately $1.9 million to Stadium. On appeal, Bertram challenged the judgment on the grounds that (1) the trial court should not have entered a default because Stadium’s complaint failed to state a claim upon which relief may be granted, and (2) the amount of the damage award was excessive. With respect to the first issue, the Court of Appeals ruled that Stadium adequately pleaded a fraudulent conveyance claim against Bertram under the Uniform Fraudulent Transfer Act (“UFTA”), D.C. Code §§ 28-3101 to -3111 (2001), where Stadium had alleged in its complaint that (1) Bertram entered into an agreement on behalf of Distributive to transfer substantially all of the valuable assets of Distributive for the benefit of third party creditors of Distributive while knowing at the time of the agreement that the assets were encumbered by Stadium’s Maryland judgment; (2) Bertram personally benefited from the agreement because he received a release from personal liability on amounts owed by Distributive to the third party creditors, and (3) Bertram entered into the agreement intentionally, willfully, and maliciously and with the intent to defraud Stadium and that such intent could be imputed to Distributive. With respect to the second issue, however, the Court ruled (based on the limited evidence presented to the trial court) that the assets fraudulently transferred by Distributive were clearly less than the amount of the judgment entered by the trial court and thus the amount of the judgment was excessive. The Court therefore affirmed the judgment as to liability but reversed and remanded for further proceedings regarding the amount of the judgment. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.