The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the defendants' and plaintiffs' objections to Magistrate Judge Alan Kay's Report and Recommendation on defendants' combined motion to dismiss certain counts of the Amended Complaint, motion for summary judgment on other counts, and motion to strike portions of the Amended Complaint. Upon consideration of the Report and Recommendation, both parties' objections, defendants' motions, the oppositions thereto, the replies, and the entire record in this case, this Court agrees with and adopts Magistrate Judge Kay's recommendations in part and rejects them in part. The reasons are set forth in this Memorandum Opinion.
Plaintiffs, the husband and parents of Karyn Kerris, have brought a variety of claims against Dr. Vance Watson and Georgetown University related to her medical treatment.
Their allegations center on three embolization procedures performed on Ms. Kerris between 1998 and 1999 by Dr. Watson at Georgetown University Hospital. Those procedures involved the use of a mixture of two substances -- Lipiodal and Histoacryl -- injected into Ms. Kerris' brain to treat a vascular defect known as Arteriovenous Malformation.
Defendants filed a combined motion to dismiss Counts III, IV, V, VI, VII, IX, X, XI, and XII of the Amended Complaint, or, in the alternative, for summary judgment with respect to Counts VI and IX; they also seek summary judgment on Count II. They have moved to strike certain allegations from the Amended Complaint. No discovery has occurred yet in this case. On April 21, 2006, this Court referred defendants' combined motion to dismiss, for summary judgment, and to strike portions of the Amended Complaint to Magistrate Judge Alan Kay for a report and recommendation pursuant to Rule 72(b) of the Federal Rules of Civil Procedure. Magistrate Judge Kay issued his Report and Recommendation on October 11, 2006, recommending that defendants' motion to dismiss be granted with respect to Counts III, IV, V, VI, and VII of the Amended Complaint, and denied without prejudice with respect to Counts IX, X, XI, and XII.*fn2 He also recommended that defendants' motion for summary judgment be denied with respect to Count II. Finally, he recommended that defendants' motion to strike be granted in part with respect to Paragraphs 11(o) and 60 of the Amended Complaint and denied without prejudice with respect to all other paragraphs that defendants moved to strike.
Both the plaintiffs and the defendants thereafter filed objections to the Magistrate Judge's Report and Recommendations. Plaintiffs objected to Magistrate Judge Kay's recommendation to dismiss Counts III, IV, V, VI, and VII; defendants objected to the recommendation to deny summary judgment on Count II. 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 decision[.]" FED.R. CIV.P. 72(b).
A. Motions to Dismiss and for Summary Judgment
The Court agrees with and adopts Magistrate Judge Kay's analysis of defendants' motion and his recommendation to grant the motion to dismiss with respect to Count III, IV, V and VII of plaintiffs' Amended Complaint, and his recommendation that Count VI be dismissed without prejudice. The Court also agrees with his recommendation to deny the motion to dismiss or, in the alternative, for summary judgment with respect to Counts IX, X, XI, and XII. The Court reaches these conclusions substantially for the reasons stated by Magistrate Judge Kay.*fn3
The Court agrees with Magistrate Judge Kay's recommendation to deny the motion for summary judgment on Count II, but disagrees with his analysis.
Count II relies almost entirely on what communications took place between Ms. Kerris and Dr. Watson. It alleges that defendants failed to provide the information to Ms. Kerris necessary for her to provide informed consent. Am. Compl. ¶¶ 15-22. Specifically, plaintiffs allege that defendants did not disclose to Ms. Kerris, inter alia,that the combination of Lipiodol and Histoacryl used in her embolizations was not approved by the FDA, the high failure rates for such embolizations, the "extremely high risk of failure with catastrophic results," or that the use of the combination of drugs was experimental and unapproved by Georgetown University Hospital's Institutional Review Board. Id. ¶¶ 15-20. Plaintiffs claim that had she known these facts, Ms. Kerris never would have consented to the procedures. Id. ¶ 21.
Defendants provide a declaration by Dr. Watson stating that Ms. Kerris was aware of the risks involved based on conversations Dr. Watson states that he had with Ms. Kerris, some of which were outside the presence of her husband or parents. See Declaration of Vance E. Watson, M.D. ("Watson Decl.") ¶¶ 8, 9, Ex. 8 in Support of Defendants' Motion for Summary Judgment on Counts II, VI, and IX. In their briefs, defendants argue that it is illogical to think that Ms. Kerris would not have met alone with Dr. Kerris at some point in time. Plaintiffs submit their own affidavits disputing not only what Dr. Watson disclosed to Ms. Kerris, but whether he ever spoke with her alone. See Paul Kerris Affidavit ¶ 3; Felice Iacangelo Affidavit ¶ 3; Cicily Iacangelo Affidavit ¶ 3. Magistrate Judge Kay concluded that only Dr. Watson and Ms. Kerris could know what took place between them and that, without testimony from Ms. Kerris (who is now incapacitated), plaintiffs will be unable to prove what verbal communications took place between them. Nevertheless, Magistrate Judge Kay recommended denying the motion for summary judgment because of questions about the meaning of the written consent forms used by the defendants and signed by Ms. Kerris.
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show 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(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In considering a motion for summary judgment, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 255; see Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir.1998) (en banc). The non-moving party's opposition, however, must consist of more than unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. ...