Rollins v. Wackenhut Servs., Inc.

Decision Date28 December 2012
Docket NumberNo. 11–7094.,11–7094.
Citation703 F.3d 122
PartiesSharon M. ROLLINS, Individually and as Personal Representative for the Estate of Devin Darrell Bailey, Appellant v. WACKENHUT SERVICES, INC., et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

OPINION TEXT STARTS HERE

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00047).

Gregory Stuart Smith argued the cause and filed the briefs for appellant.

Matthew W. Carlson argued the cause and filed the brief for appellee Wackenhut Services, Inc.

Daniel S. Pariser argued the cause for appellees Bristol–Myers Squibb Company, et al. With him on the brief was Timothy M. Broas. Adam S. Nadelhaft entered an appearance.

Before: ROGERS, BROWN and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Circuit Judge KAVANAUGH.

ROGERS, Circuit Judge:

Sharon Rollins's son committed suicide using a gun provided by his employer while he was taking prescribed medication manufactured and distributed by two pharmaceutical companies. On appeal from the dismissal of her wrongful death and survival action against the employer and pharmaceutical companies, Rollins presents three issues. First, she contends that the district court erred in ruling she failed to state a claim of negligence against the employer when the court invoked, sua sponte, District of Columbia law that suicide is an intervening and independent cause of death subject to limited exceptions that were inapplicable. Alternatively, she urges certification of the negligence-liability question to the D.C. Court of Appeals. Finally, she disputes the district court's ruling that the complaint failed to state a plausible claim of products liability against the pharmaceutical companies and contends that the court then erred in denying her leave to amend the complaint. For the following reasons, we must conclude that these contentions are unpersuasive, and we affirm.

I.

Devin Bailey, Rollins's son, had a history of mental illness. Accepting as true the factual allegations in the complaint, see Thompson v. District of Columbia, 530 F.3d 914, 915 (D.C.Cir.2008), Bailey withdrewfrom Penn State University after two years because of increased depression and serious mental health problems. Compl. ¶ 11. In 2006, he joined the United States Navy but was quickly discharged after having been hospitalized for psychosis only a few days into his service. Compl. ¶ 12. In April 2007, Rollins tried unsuccessfully to have her son transported to a mental hospital for inpatient treatment. Compl. ¶ 13. When the police arrived in response to a radio-run for a family disturbance and tried to restrain Bailey, he kicked one officer in the leg; Bailey was subsequently charged with assaulting a police officer and carrying a dangerous weapon—an 8–inch knife found in his pocket. Compl. ¶¶ 14–15. After he was committed by the court in July to St. Elizabeth's Hospital for a competency evaluation, Compl. ¶ 15, Bailey was diagnosed as having “Bipolar Disorder, Most Recent Episode Mixed, Severe with Psychotic Features,” Compl. ¶ 17. He was released on prescribed medications, Rispardal and Depakene, after about three weeks. Compl. ¶ 17. In early 2008 he successfully completed a course in basic real estate principles at Montgomery College in Maryland and passed the written and physical examinations for a position as a firefighter/EMT in Fairfax County, Virginia. Compl. ¶¶ 18–19.

In May 2008, Bailey voluntarily admitted himself to Washington Adventist Hospital in Maryland, where doctors prescribed him the antipsychotic drug ABILIFY®. Compl. ¶ 21. An accompanying “black-box warning” stated: “Children, adolescents, and young adults taking antidepressants for major depressive disorder (MDD) and other psychiatric disorders are at increased risk of suicidal thinking and behavior. (5.2).” Compl. ¶ 23. Section 5.2 warns of “long-standing concern” about inducing worsening of depression and emergence of suicidality during early phases of treatment. Compl. ¶ 23. Bailey was discharged from the Hospital after about a week with instructions to take 20 mg of ABILIFY® daily, along with Prolixin to improve compliance. Compl. ¶ 24. In July and August he received additional prescriptions for ABILIFY® with instructions to increase the dosage to 30 mg daily, the maximum dosage. Compl. ¶ 25. ABILIFY® is manufactured and distributed in the United States by Otsuka America Pharmaceutical, Inc. (“Otsuka”), and Bristol–Myers Squibb Company (“Bristol–Myers”). Compl. ¶¶ 3–4.

In September 2008, Bailey applied for a job with Wackenhut Services, Inc., a contractor that provides security services to the federal government. Compl. ¶¶ 6, 26. Wackenhut hired him the following month as an armed security guard at Walter Reed Army Medical Center. Compl. ¶ 27. The offer of employment was contingent on completion of a “weapons qualification” and “criminal justice screening.” Compl. ¶ 27. In early November, Wackenhut's National Research Center prepared a background screening report stating there was an outstanding September 10, 2007 arrest warrant for Bailey for failing to appear in court on “UNDISPOSED” assault and weapon charges. Compl. ¶¶ 28–29. Although the report was forwarded to the Field Manager and Chief of Guards who extended the offer of employment to Bailey, Wackenhut did not follow up on this information. Compl. ¶¶ 28, 30. Neither did Wackenhut obtain Bailey's military service record. Compl. ¶ 34. Instead, Wackenhut tested Bailey's firearms proficiency and issued him a gun to use in his work. Compl. ¶¶ 31–32. On November 15, 2008, Bailey received a “Diploma” declaring him a “graduate” of Wackenhut's “Security Officer Course.” Compl. ¶ 35.

On December 9, 2008, Bailey shot and killed himself with a work-issued gun while on duty in a Walter Reed guard shack. Compl. ¶ 36. He was 23 years old. See Compl. ¶ 10.

Rollins, individually and as representative of her son's estate, filed suit in the D.C. Superior Court against Wackenhut, Otsuka, and Bristol–Myers. The complaint alleged that Wackenhut negligently issued Bailey a gun without adequately investigating his background and mental health history, Compl. ¶ 40, and that the pharmaceutical companies were strictly liable for manufacturing and distributing ABILIFY® “in a defective condition unreasonably dangerous to users and consumers, and particularly young adults such as Devin Bailey.” Compl. ¶ 43. Rollins sought compensatory damages of $1 million each for wrongful death and for survival on behalf of Bailey's estate against all defendants, and $3 million in punitive damages against Wackenhut. On January 11, 2010, the defendants removed the lawsuit to the federal court, based on diversity jurisdiction, 28 U.S.C. §§ 1332, 1441. The pharmaceutical companies filed answers to the complaint the same day. The following week, on January 20, 2010, they moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(c). Wackenhut, which had not filed an answer, moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Rollins opposed the motions.

The district court dismissed the complaint against Wackenhut for failure to state a claim pursuant to Rule 12(b)(6) and granted judgment on the pleadings to the pharmaceutical companies pursuant to Rule 12(c). Rollins v. Wackenhut Servs., 802 F.Supp.2d 111 (D.D.C.2011). Rollins appeals. Our review is de novo. Rudder v. Williams, 666 F.3d 790, 794 (D.C.Cir.2012); Thompson, 530 F.3d at 915.

II.

Rollins alleged that her son's employer, Wackenhut, violated a special relationship and duty of protection it owned to her son by “carelessly and negligently” (1) failing to investigate the charges listed on its screening report and the information in his military service record; (2) issuing him a gun when it should have known that he was prohibited from possessing a weapon under federal law; and (3) allowing him to possess the gun for over a month. Compl. ¶ 40. The district court rejected Wackenhut's argument, citing Grillo v. National Bank of Washington, 540 A.2d 743, 744 (D.C.1988), that Rollins's exclusive remedy was under the D.C. Workers' Compensation Act, D.C.Code § 32–1504(a) & (b). That Act provides it “shall not apply where injury to the employee was occasioned solely by his intoxication or by his willful intention to injure or kill himself or another.” D.C.Code § 32–1503(d) (emphasis added). The district court agreed with Rollins, and so do we, that the Act was inapplicable, but the district court noted that by relying on D.C.Code § 32–1503(d) to escape the Act's coverage, Rollins “effectively admitted that the suicide was a willful and intentional act.” Rollins, 802 F.Supp.2d at 120;see Pl's Mem. In Opposition to Defendant Wackenhut Services, Inc.'s Motion To Dismiss Feb. 3, 2010. Observing further that Rollins claimed Wackenhut's negligence was a substantial factor in her son's death, see Compl. ¶ 42, the district court, sua sponte, invoked District of Columbia tort law and granted Wackenhut's motion to dismiss the complaint for failure to state a claim. Id. at 121. Rollins contends the district court erred in dismissing the complaint on the basis of a legal theory never briefed or argued in the district court, which it interpreted too narrowly, and alternatively she seeks certification of the local law question to the D.C. Court of Appeals.

A.

The district court may sua sponte dismiss a claim pursuant to Rule 12(b)(6) without notice where it is “patently obvious” that the plaintiff cannot possibly prevail based on the facts alleged in the complaint. Baker v. Dir., U.S. Parole Comm'n, 916 F.2d 725, 727 (D.C.Cir.1990). In District of Columbia v. Peters, 527 A.2d 1269 (D.C.1987), the District of Columbia Court of Appeals endorsed the general rule that one may not recover damages in negligence for the suicide of another, subject to the irresistible impulse exception. The...

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