Iacangelo v. Georgetown University

• Decision Date: 30 September 2008
• Docket Number: Civil Action No. 05-2086 (PLF).
• Citation: 580 F.Supp.2d 111
• Parties: Felice I. IACANGELO, et al., Plaintiffs, v. GEORGETOWN UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

580 F.Supp.2d 111

Felice I. IACANGELO, et al., Plaintiffs, v. GEORGETOWN UNIVERSITY, et al., Defendants.

Civil Action No. 05-2086 (PLF).

United States District Court, District of Columbia.

September 30, 2008.

Andrew E. Greenwald, Joseph, Greenwald & Laake, P.A., Greenbelt, MD, Anthony Girardy Newman, Ernest Wendell McIntosh, Jr., Newman Mcintosh & Hennessey LLP, Bethesda, MD, for Plaintiffs.

Zoe C. Scharff, Williams & Connolly, LLP, Washington, DC, for Plaintiffs/Defendants.

David C. Kiernan, Megan Elizabeth Hills, Nicolas David Muzin, Williams & Connolly LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on plaintiffs' objections to Magistrate Judge Alan Kay's Report and Recommendation of September 17, 2008 ("Report").

I. BACKGROUND

Plaintiffs assert a variety of claims related to the medical treatment provided to Karyn Kerris. Their allegations center on three embolization procedures performed on Ms. Kerris between 1998 and 1999 by Dr. Vance Watson at Georgetown University Hospital. Those procedures involved the use of a mixture of two substances— Lipiodol and Histoacryl—injected into Ms. Kerris' brain to treat a vascular defect known as arteriovenous malformation.

On February 14, 2008, defendants filed a motion (1) seeking judgment on the pleadings or dismissal with respect to Counts VI, VII, VIII and IX of plaintiffs' Second Amended Complaint, and (2) asking the Court to strike certain allegations in plaintiffs' Second Amended Complaint.¹ The undersigned referred that motion to Magistrate Judge Kay for a report and recommendation pursuant to Local Civil Rule 72.3(a). On September 17, 2008, Magistrate Judge Kay issued a Report and Recommendation in which he recommended that this Court grant defendants' motion for judgment on the pleadings with respect to Counts VI, VII and IX; deny without prejudice defendants' motion with respect to Count VIII; and deny without prejudice defendants' motion to strike. Plaintiffs thereafter filed objections to the Report.² Specifically, plaintiffs objected to Magistrate Judge Kay's recommendation to dismiss Count VI (setting forth a free-standing claim for punitive damages) and Count VII (alleging negligence per se based on defendants' violations of 21 U.S.C. § 360c(a) and 21 C.F.R. § 812.20(a)(2)). See generally Plaintiffs' Objections to Magistrate Judge Kay's September 17, 2008 Report and Recommendation ("Pls.' Objections").³

II. DISCUSSION

When a party files written objections to any part of the magistrate judge's recommendation with respect to a dispositive motion, the Court considers de novo those portions of the recommendation to which objections have been made, and "may accept, reject, or modify the recommended disposition." FED.R.CIV.P. 72(b)(3). Having reviewed de novo those portions of the Report to which plaintiffs object (and, indeed, the Report in its entirety), the objections thereto and other relevant papers, the relevant case law and the entire record in this case, the Court concludes that the Report reaches the correct result in every instance. Thus, the Court will adopt and approve the Report in its entirety.

Only one point requires further discussion. Plaintiffs object to Magistrate Judge Kay's recommendation to dismiss Count VI (that is, the punitive damages claim) principally on the ground that "the form of pleading in Plaintiffs' [Second] Amended Complaint should not impair Plaintiffs' ability to recover punitive damages." Pls.' Objections at 3. But as the Report indicates, the dismissal of plaintiffs' punitive damages count does not necessarily preclude plaintiffs from obtaining punitive damages as a remedy. See Report at 6 n. 4; id. at 7 n. 5 (citing Int'l Kitchen Exhaust Cleaning Ass'n v. Power Washers of North America. 81 F.Supp.2d 70, 74 (D.D.C.2000)). Here, as in Int'l Kitchen, the Court concludes that it is appropriate to dismiss plaintiffs' free-standing punitive damages claim as improperly pled but "reserve[] judgment on the availability of punitive damages as a remedy" until a later stage in the proceedings. Int'l Kitchen Exhaust Cleaning Ass'n v. Power Washers of North America, 81 F.Supp.2d at 74.

An Order consistent with this Memorandum Opinion will be issued this same day.

SO ORDERED.

ORDER AND JUDGMENT

Upon careful consideration of the entire record herein, and for the reasons set forth in Magistrate Judge Alan Kay's Report and Recommendation of September 17, 2008 and the Memorandum Opinion issued this same day, it is hereby

ORDERED that the Court ADOPTS and APPROVES the Report and Recommendation of Magistrate Judge Kay [122] in its entirety; it is

FURTHER ORDERED that Defendants' Motion for Judgment on the Pleadings/Motion to Dismiss Plaintiffs' Negligence Per Se Claims Based On Violations of Federal Law and Punitive Damages [95] is GRANTED in part and DENIED in part; and it is

FURTHER ORDERED that Counts VI, VII and IX of plaintiffs' Second Amended Complaint are DISMISSED.

SO ORDERED.

REPORT AND RECOMMENDATION

ALAN KAY, United States Magistrate Judge.

This matter was referred to the undersigned pursuant to Rule 72.3(a) of the Local Rules of the United States District Court for the District of Columbia for a Report and Recommendation regarding the disposition of Defendants' Motion for Judgment on the Pleadings/Motion to Dismiss Plaintiffs' Negligence Per Se Claims based on Violation of Federal Law and Punitive Damages ("Motion") [95]. Defendants move for judgment on the pleadings and to dismiss Counts IX, X, XI, and XII of Amended Complaint [9] and/or Counts VI, VII, VIII, and IX of Second Amended Complaint [101], pursuant to F.R.C.P. 12(c) and F.R.C.P. 12(b)(6), respectively, and they further move to strike paragraphs 5, 11(c)-(d), (f), (h)-(l), 13-22, 56, 58, 59 and all of it subparagraphs, and 61 of Amended Complaint and/or paragraphs 4, 10(c)-(d), (f), (h)-(l), 13-21, 24, 27 and all of its subparagraphs, 28-32, 36-37, 38 and all of its subparagraphs, and 39 of Second Amended Complaint, pursuant to F.R.C.P. 12(f). (Motion at 1.)¹ Upon consideration of the Defendants' Motion, Plaintiffs' opposition thereto ("Opposition") [97], Defendants' response to the opposition ("Reply") [100], and Plaintiffs' Surreply ("Surreply") [111], and for the reasons set forth below, the undersigned recommends that Defendants' Motion to Dismiss be granted regarding Counts VI, VII, and IX, and denied without prejudice regarding Count VIII of Plaintiffs' Second Amended Complaint; and that Defendants' Motion to Strike be denied without prejudice regarding Paragraphs 4, 10(c)-(d), (f), (h)-(l), 13-21, 24, 27, 28-32, 36-37, 38, and 39 of the Second Amended Complaint.

I. BACKGROUND

On October 24, 2005, Plaintiffs filed an eight count complaint [1] against Defendants for medical malpractice, alleging that as a direct and proximate result of the Defendants' negligence, Ms. Karen Kerris has suffered permanent damage to her body, including seizures, ischemia and neurological impairments, leaving her brain damaged and dysfunctional for the rest of her life. (Compl. ¶ 13.) Plaintiffs made claims under the theories of negligence, lack of informed consent, strict products liability, breach of implied warranty of fitness for a particular purpose, breach of express warranties, fraud, loss of consortium, breach of fiduciary obligations and punitive damages. Plaintiffs subsequently filed an Amended Complaint [9] on February 14, 2006. Defendants then moved to dismiss Counts III (strict products liability), IV (breach of implied warranty of fitness for a particular purpose), V (breach of express warranties), VI (fraud), VII (consortium claim of Paul Kerris), IX (punitive damages), X (negligence per se— violations of 21 U.S.C. § 360c(a)(II), and 21 C.F.R. § 812.20(a)(2)), XI (negligence per se—violations of 21 U.S.C. § 331(a), (b), (c), (g), and (k)) and XII (negligence per se—violation of 21 C.F.R. § 812.20(a)(2)) of the Amended Complaint, or in the alternative, for summary judgment with respect to Counts VI (fraud) and IX (punitive damages) and they also sought summary judgment on Count II (lack of informed consent). The undersigned submitted a Report and Recommendation [19] on October 11, 2006, which was adopted in part and rejected in part in the trial court's Memorandum Opinion [33] dated March 26, 2007.²

Plaintiffs filed a Second Amended Complaint [101] on February 27, 2008. Defendants subsequently filed the instant Motion for Judgment on the Pleadings/Motion to Dismiss Counts VI (punitive damages), VII (negligence per se—violations of 21 U.S.C. § 360c(a)(II), and 21 C.F.R. § 812.20(a)(2)), VIII (negligence per se— violations of 21 U.S.C. § 331(a), (b), (c), (g), and (k)) and IX (negligence per se— violation of 21 C.F.R. § 812.20(a)(2)) of the Second Amended Complaint. Defendants have also moved to strike Paragraphs 4, 10(c)-(d), (f), (h)-(l), 13-21, 24, 27, 28-32, 36-37, 38, and 39 of the Second Amended Complaint, pursuant to Fed.R.Civ.P. 12(f).³

II. LEGAL STANDARD

A. Motion to Dismiss

A court may grant a defendant's motion to dismiss if a plaintiff fails to state a claim upon which relief could be granted. Fed. R. Civ. 12(b)(6). "The complaint should not be dismissed unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (citing Schuler v. U.S., 617 F.2d at 608) (quotation omitted). In evaluating a motion to dismiss, a court must construe the complaint in the light most favorable to the Plaintiff and give the Plaintiff the "benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979). See Doe v. United States Department of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985) (The court accepts as true all of the complaint's factual allegations.) "However, legal conclusions, deductions or...