Feirson v. District of Columbia

• Decision Date: 29 March 2005
• Docket Number: No. CIV.A. 01-0905(JDB).,CIV.A. 01-0905(JDB).
• Citation: 362 F.Supp.2d 244
• Parties: Bruce and Mary Ann FEIRSON Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

362 F.Supp.2d 244

Bruce and Mary Ann FEIRSON Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

No. CIV.A. 01-0905(JDB).

United States District Court, District of Columbia.

March 29, 2005.

Frank James Eisenhart, James Gregory Dyer, Dechert Price & Rhoads, Washington, DC, Brennan J. Torregrossa, Dechert LLP, Philadelphia, PA, for plaintiffs.

David A. Jackson, Office of Corporation Counsel, D.C., Washington, for the District of Columbia and the physician defendants.

Thomas Michael Hogan, Hogan & Heald, Fairfax, VA, for the physician defendants.

MEMORANDUM OPINION

BATES, District Judge.

Plaintiffs Sgt. Bruce and Mary Ann Feirson bring this action against the District of Columbia ("the District") and Michelle Smith-Jefferies, M.D. ("Dr. Smith-Jefferies"), Taunya Brownlee, M.D. ("Dr. Brownlee"), and Craig Throne, M.D. ("Dr. Thorne") (collectively "physician defendants")¹ for injuries suffered by Sgt. Feirson during an "attack exercise" as part of his training as a District of Columbia police officer. Presently before the Court are the physician defendants' motions for summary judgment on Sgt. Feirson's claims under 42 U.S.C. § 1983 and the common law² and on Mary Ann Feirson's common law claim for loss of consortium. For the reasons that follow, the Court will grant each physician defendant's motion for summary judgment.

BACKGROUND

This case arises from Sgt. Bruce Feirson's participation in the Armament Systems Proficiency ("ASP") training program conducted by the Metropolitan Police Department ("MPD"). ASP training teaches MPD officers, such as Sgt. Feirson, how to use the ASP baton through both classroom instruction and physical exercises. One of those exercises is an "attack" exercise in which trainees, equipped with an ASP, must fend off an instructor acting as a violent suspect. During one of these attack exercises Sgt. Feirson was injured.

Within the MPD, the Medical Services Division ("MSD") of the Human Services department is responsible for the medical care of police officers. As part of that responsibility, police officers receive medical care through the Police and Fire Clinic ("clinic") for injuries suffered on the job. In February of 1997, the District of Columbia transferred operation of the clinic to PFC Associates, a private professional health organization. The physician defendants were all at the relevant times of this lawsuit employed by PFC Associates. Dr. Smith-Jefferies and Dr. Thorne, at different times, were the Medical Directors of the clinic. MPD also maintains liaisons within the clinic who coordinate medical care for police officers.

LEGAL STANDARD

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(©). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by "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." Id. (quoting Fed.R.Civ.P. 56(©)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252, 106 S.Ct. 2505.

ANALYSIS

I. Section 1983

The physician defendants move for summary judgment on Sgt. Feirson's section 1983 claim. They observe that under this Court's Memorandum Opinion and Order of March 30, 2004, confirmed in a September 14, 2004 Order denying plaintiff's motion for reconsideration, Sgt. Feirson's section 1983 claim was dismissed against the District of Columbia. In that earlier Memorandum Opinion, the Court ruled that Sgt. Feirson could not establish that the District's actions constituted an unreasonable seizure under the Fourth Amendment or excessive force under the Fifth Amendment. See March 30, 2004 Mem Op. at 13, 17. The physician defendants argue that the March 30, 2004 Order (as confirmed by the September 14, 2004 Order) established the law of this case as to Sgt. Feirson's section 1983 claim, and therefore they should be granted summary judgment on Sgt. Feirson's section 1983 claims against them.

The physician defendants' arguments on this point draw heavily from the law of the case doctrine. Under this doctrine, when the same issue is presented to the same court, in the same case, the results should be the same. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (under the law of the case doctrine "the same issue presented a second time in the same case in the same court should lead to the same result"). The doctrine is particularly persuasive here. Unless plaintiff can present additional facts relevant to his section 1983 claims against the physician defendants, this Court's ruling that plaintiff cannot establish constitutional violations against the District of Columbia pursuant to section 1983 should also govern Sgt. Feirson's section 1983 claims against the physician defendants.

Sgt. Feirson does not present any new or unique facts relevant to his section 1983 claims against the physician defendants that would convince the Court to reexamine its previous decision regarding Sgt. Feirson's section 1983 claims. Plaintiff's response to the physician defendants' motions is merely to reargue his motion for reconsideration of the March 30, 2004 Order. See Pl. Opp. at 27 (premising all his arguments regarding section 1983 claims against physician defendants on Court granting motion to reconsider). However, plaintiff's motion for reconsideration was denied, and because Sgt. Feirson does not present any new facts or law relevant to his section 1983 claims against the physician defendants, the Court's prior determination regarding Sgt. Feirson's section 1983 claim will govern.

II. Intentional Infliction of Emotional Distress

Sgt. Feirson also brings a claim for intentional infliction of emotional distress against the physician defendants. In order to state a claim for intentional infliction of emotional distress, Sgt. Feirson must establish: "(1) extreme and outrageous conduct on the part of defendant which (2) either intentionally or recklessly (3) causes the plaintiff severe emotional distress." Howard Univ. v. Best, 484 A.2d 958, 985 (D.C.1984). Additionally, "[t]he conduct must be `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C.2002) (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C.1998)).

Here, Sgt. Feirson alleges that each of the physician defendants failed to take action to stop the ASP training despite "substantial knowledge that their patients were being intentionally assaulted in the ASP attack exercise." See Pl. Opp. at 25. He also argues that the physician defendants' affirmative acts of reviewing and approving the ASP training program constituted reckless or intentional conduct that caused Sgt. Feirson's injuries. The "extreme or outrageous" nature of this alleged intentional or reckless conduct, according to Sgt. Feirson, is that the physician defendants each had a patient-physician relationship with plaintiff. Id. The physician defendants contend that the record does not support the claim that they engaged in intentional or reckless conduct that caused Sgt. Feirson's emotional distress or that any of their conduct was extreme and outrageous.

Sgt. Feirson's first claims that the physician defendants had knowledge of the significant injuries occurring during the ASP training and that their failure to stop the training program amounts to extreme and outrageous intentional or reckless conduct. Sgt. Feirson testified at his deposition that there were "rampant" rumors of the assaults occurring during ASP training amongst MPD officers. See Feirson Dep. (Pl.Opp.Ex. 8) at 27. Plaintiff relies on further evidence of rumors through the deposition of Lt. Sheila Ford, the police liaison officer at the clinic, who acknowledged that in her opinion "it is common knowledge among department employees that the ASP-training program has caused a lot of injuries to police officers." Ford Dep. (Pl.Opp., Ex. 12) at 92.

Plaintiff also proffers the medical records of other police officers injured through the ASP attack exercises as evidence that the physician defendants were aware that substantial injuries were occurring. See Pl. Opp. at 11-13. The medical records show that Dr. Thorne, prior to Sgt. Feirson's injuries, had been involved in some manner in the examination of nine officers who reported some form of an injury from ASP training. See Dr. Thorne Statement of Material Facts As To Which There Is No Genuine...