The opinion of the court was delivered by: Urbina, District Judge.
Denying the Plaintiff's Motion for Order Determining Burden of
Proof as to Consumer Protection Claim
This matter comes before the court on the plaintiff's motion for an
order determining the proper burden of proof on her Consumer Protection
Claim ("the plaintiff's motion"). The plaintiff, Doris Holland Dorn ("the
plaintiff" or "Ms. Dorn"), seeks an order from this court ruling that an
unintentional violation of the District of Columbia Consumer Protection
Procedures Act ("CPPA"), D.C.Code §§ 28-3901-3904, may be proved by a
preponderance of the evidence. Specifically, the plaintiff seeks an order
deciding this burden of proof in the event that she can only prove an
"unintentional," rather than an "intentional," misrepresentation under
§ 28-3904(e). See Pl's Opp'n to Def's Mot. to Dismiss ("Pl's Opp'n")
at 4. In addition, the plaintiff asks for an order entitling her to
attorney's fees, expenses, and compensatory damages if she succeeds in
proving an unintentional violation of the CPPA.
Applying the two-prong test the court established in its Memorandum
Opinion issued on July 26, 1999 ("Mem.Op."), the court determines that an
unintentional misrepresentation claim, under these facts, would fall
outside the scope of the CPPA as it applies to the practice of medicine.
Thus, the court need not decide which burden of proof applies to an
unintentional misrepresentation claim under the CPPA. Accordingly, the
court hereby denies the plaintiff's motion.
In October 1995, Ms. Dorn went to the office of Dr. John W. McTigue
("the defendant" or "Dr. McTigue") for her annual eye examination. During
this visit, Ms. Dorn complained of decreased vision. Dr. McTigue
diagnosed Ms. Dorn with cataracts and, on November 16, 1995, performed
cataract surgery on her. During the course of the procedure, however, a
portion of the plaintiff's lens fell into the posterior portion of her
eye. After Dr. McTigue tried unsuccessfully to remove the lens, he sent
the plaintiff to the Washington Hospital Center for further surgery. Even
after the corrective surgery was performed, the plaintiff suffered
irreparable damage to her retina, resulting in total loss of sight in her
left eye. See Compl. at 3-4.
In counts I and II of the amended complaint, Ms. Dorn alleges that the
defendant's decision to perform surgery constituted medical malpractice
because he failed to meet the applicable standard of care and failed to
obtain informed consent from the plaintiff In Count III, the claim now at
issue, Ms. Dorn alleges that the defendant's negligence and failure to
obtain informed consent constituted an "unlawful trade practice" as
defined by the CPPA. See Am. Compl. at 7.*fn1
Now the plaintiff asks the court to determine the burden of proof that
would apply if the plaintiff could prove only an unintentional or
inadvertent violation of the CPPA. Consistent with its 1999 Memorandum
Opinion, the court holds that under these facts, an
unintentional-misrepresentation claim would fall outside the scope of the
CPPA as it applies to the medical field. Accordingly, the court need not
reach the question of the burden of proof for unintentional violations.
A. Unintentional Violations of the CPPA
Before the court may determine which burden of proof governs claims of
unintentional violations of the CPPA, it must first ascertain whether
such a claim can proceed in this case. Otherwise, the court would be
issuing an advisory opinion.*fn2 When the court denied the defendant's
motion to dismiss, it had considered a claim for intentional
misrepresentation in violation of the CPPA. See Mem. Op. at 5. The
parties had not asked the court to address whether a claim for
unintentional misrepresentation under the CPPA could also proceed.
The plaintiff now requests an order determining the burden of proof she
would have to meet to prove an unintentional violation of the CPPA. In
Osbourne v. Capital City Mortgage Corp., 667 A.2d 1321, 1330 (D.C.
1995), the court decided the burden of proof for intentional violations
of D.C.Code § 28-3904(e), but declined to express an opinion on
whether the CPPA would cover allegations of unintentional
misrepresentation. Thus, the case at bar raises an issue of ...