The opinion of the court was delivered by: Beryl A. Howell United States District Judge
On December 10, 2008, twenty-three-year-old Devin Darell Bailey was working as an armed security guard for Wackenhut Services, Inc. when he committed suicide with his work-issued gun. Mr. Bailey had a history of mental illness and, when he died, he was taking an antipsychotic drug used to treat bipolar disorder and another drug that prevents disordered thoughts. Bailey's mother, the plaintiff Sharon Rollins, brings this suit, both on her own behalf and as the executrix of Bailey's estate, for wrongful death and survival actions against three defendants: Wackenhut Services, Inc. ("Wackenhut"); Otsuka Pharmaceutical Company ("Otsuka America"), a Delaware business corporation that manufactured the antipsychotic medication; and Bristol-Myers Squibb Company ("Bristol-Myers"), a pharmaceutical company that allegedly was a collaborative partner with Otsuka America in the development and commercialization of the antipsychotic drug. The plaintiff is also suing Defendant Wackenhut for punitive damages. Defendant Wackenhut has moved to dismiss the plaintiff's claims and Defendants Otsuka America and Bristol-Myers have moved for judgment on the pleadings. For the reasons explained
below, the defendants' motions are granted.*fn1
Mr. Bailey's struggle with his mental health became apparent in college, when he needed to leave after his second year of school because he was suffering from severe depression and other mental health problems. Compl. ¶ 11.On July 13, 2006,after Mr. Bailey left college, he joined the Navy, but his mental health problems continued. Id. ¶ 12. A few days after enlisting, on July 17, 2006, Mr. Bailey was psychiatrically hospitalized at the North Chicago V.A. Hospital, where he was diagnosed with mental disorders, including psychosis. Id. Based on these mental disorders, the Navy formally discharged Mr. Bailey. Id. ¶¶ 12, 34.
About a year after his discharge from the Navy, on April 16, 2007, the Washington, D.C. Metropolitan Police were called to Plaintiff Rollins's house, after receiving radio reports about a family disturbance that involved Mr. Bailey. Id. ¶ 13. The police officers tried to talk to Mr. Bailey, but he resisted and, after he kicked one of the police officers in the leg, a search revealed that Mr. Bailey had an eight-inch knife in his jacket. Id. ¶¶ 13-14.
The police officers charged Mr. Bailey with three criminal offenses: two counts of assault on a police officer and one count of carrying a dangerous weapon. Id. ¶ 15.
Columbia Superior Court to face these When Mr. Bailey appeared in the District of charges, the Court ordered a competency screening to determine if he was fit to stand trial. Id. On June 26, 2007, the assigned physician reported that Mr. Bailey refused to leave his Mental Health Treatment Unit Cell Block to attend the competency screening. Id. Shortly thereafter, the Court ordered that Mr. Bailey be formally admitted to St. Elizabeth's Hospital. Id.
St. Elizabeth's Hospital performed a full mental history examination, and diagnosed Mr. Bailey with "Bipolar Disorder, Most Recent Episode Mixed, Severe with Psychotic Features." Id. ¶ 17. The hospital prescribed two medications for Mr. Bailey's condition, Rispardal and Depakene, and discharged him three weeks after he was admitted. Id.
After being discharged, Mr. Bailey actively pursued employment but continued to struggle with his mental health. Id. ¶¶ 19-21. On May 14, 2008, he voluntarily admitted himself as an in-patient for help and treatment at Washington Adventist Hospital in Takoma Park, Maryland. Id. ¶ 21. According to the Complaint, at Washington Adventist Hospital, Mr. Bailey was prescribed Abilify, an antipsychotic drug used to treat bipolar disorder and schizophrenia, for the first time. Id. The U.S. Food & Drug Administration requires Abilify to be labeled with several warnings, one of which states: "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." Id. ¶ 23.
Mr. Bailey was initially prescribed 15 mg of Abilify per day, a dosage that was later increased to 20 mg per day before he was discharged from Washington Adventist Hospital on May 20, 2008. Id. ¶ 24. Upon his discharge, Mr. Bailey was directed to continue taking Abilify as well as Fluphenazine (Prolixin), which helps prevent disordered thoughts. Id. About a month later, on July 7, 2008, and again on August 25, 2008, Mr. Bailey was given additional prescriptions for Abilify and directed to take two 15 mg tablets per day, which the Complaint contends is the maximum legal dosage. Id. ¶ 25.
On September 3, 2008, Mr. Bailey applied for employment as a security guard with Defendant Wackenhut. Id. ¶ 26. As part of the application process, Mr. Bailey took a test for illegal drug use and had a physical medical examination. Id. On October 27, 2008, Wackenhut offered him a position as an armed security guard. Since Wackenhut contracted with the U.S. Army, the employment offer was made contingent upon successful completion of training and certification by the U.S. government, which included certain "weapons qualifications" and a "criminal justice screening." Id. ¶ 27.
On November 4, 2008, Wackenhut's National Research Center prepared a Background Screening Report on Mr. Bailey that indicated a warrant had been issued for his failure to appear in court to answer two undisposed charges for "assault on a police officer" and "carry[ing a] dangerous weapon." Id. ¶¶ 28, 29. According to the Complaint, Wackenhut did not follow up on the information in the Background Screening Report. Id. ¶ 30.
On November 5, 2008, after successfully completing the weapons qualifications, Wackenhut issued Mr. Bailey a firearm. Id. ¶¶ 31, 32. Mr. Bailey officially became an armed security guard for Wackenhut, on November 15, 2008, when he completed the Security Officer Course. Id. ¶ 35. Less than a month later, on December 9, 2008, while he was on duty as a contract security officer for Wackenhut, Mr. Bailey killed himself with his work-issued gun. Id. ¶ 36. An autopsy by the Office of the Armed Forces Medical Examiner confirmed that the death was a suicide and noted that Mr. Bailey "had a mental health history and had been prescribed Fluphenazine and Abilify." Id. ¶ 37.
The plaintiff initially brought this action in the Superior Court of the District of Columbia. On January 11, 2010, the defendants removed the case to this Court based on diversity of citizenship. Notice of Removal, ECF No. 1. In Count I of the Complaint, plaintiff Rollins brings a wrongful death claim against all three defendants. Compl. ¶¶ 38-44. The plaintiff claims Defendant Wackenhut was negligent because it (1) failed to properly investigate the status of the charges listed on Mr. Bailey's Background Screening Report and the information regarding his mental health noted in his military discharge papers; (2) illegally and improperly issued Mr. Bailey a firearm when it knew or should have known he was legally prohibited from possessing the weapon; and (3) allowed Mr. Bailey to continue possessing the firearm for over a month when his legal disabilities against firearm possession were or should have been apparent.*fn2 Id. ¶¶ 34, 40(a), (b), (c). The plaintiff also brings a wrongful death claim against defendants Otsuka America and Bristol-Myers for "manufacturing and distributing Abilify within the United States, despite its known risks of increasing suicidality in certain patients." Id. ¶ 43.
In Count II, the plaintiff brings a survival action, on behalf of her son, against all three defendants for the "pain and suffering, mental anguish, inconvenience, and discomfort" experienced between her son's injury and time of death as well as for the economic loss of future earnings. Id. ¶¶ 46, 47.
In Count III, the plaintiff seeks punitive damages from Defendant Wackenhut for recklessly failing to perform a follow-up to Mr. Bailey's Background Screening Report, training him in firearms, and giving him access to firearms after his alleged legal disqualifications either were or should have been obvious. Id. ¶ 49.
The plaintiff seeks judgment of $1,000,000 against all three defendants for wrongful death and an additional $1,000,000 from each defendant under the survival action. The plaintiff also seeks $3,000,000 in punitive damages from Defendant Wackenhut Services. Id. ¶ 51.
On January 20, 2010, Defendant Wackenhut filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). ECF No. 15. On the same day, Defendants Bristol-Myers and Otuska America each filed a separate motion for judgment on the pleadings pursuant to Rule ...