United States District Court, D. Columbia.
For JOHN PAULINE, individually and as Personal Representative of THE ESTATE OF JOSEPH PAULINE, Plaintiff: Sidney Schupak, LEAD ATTORNEY, ASHCRAFT & GEREL, Washington, DC; Joseph Musso, Pauline Ithnail Khamo, PRO HAC VICE, ASHCRAFT & GEREL, LLP, Alexandria, VA.
For UNITED STATES OF AMERICA, ARMED FORCES RETIREMENT HOME-WASHINGTON, Defendants: Brian P. Hudak, Jane M. Lyons, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
For PEARSON SUNDERLAND, DR., also known as, TREY, Defendant: Andrew E. Vernick, Gregory Samuel McKee, LEAD ATTORNEY, VERNICK & ASSOCIATES, LLC, Annapolis, MD.
For PROFESSIONAL SERVICES OF AMERICA, INC., VIOLA JOHNSON-ROBINSON, Defendants: Jodi V. Terranova, WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP, Washington, DC.
For TEAMSTAFF GOVERNMENT SOLUTIONS INC., formerly known as, RS STAFFING SOLUTIONS, INC., Defendant: Craig Stephen Brodsky, LEAD ATTORNEY, GOODELL, DEVRIES, LEECH & DANN, LLP.
MEMORANDUM OPINION AND ORDER
PAUL L. FRIEDMAN, United States District Judge.
This is a wrongful death and survival action brought by John Pauline, son and estate representative of Joseph Pauline, who committed suicide on October 19, 2007 while a resident at the Washington, D.C. campus of the Armed Forces Retirement Home. The elder Mr. Pauline had long suffered from mental illness, and plaintiff contends that his father received inadequate care in the months preceding his death, proximately causing inordinate psychic distress and his ultimate suicide. The defendants in this action are the United States and the Armed Forces Retirement Home--Washington (collectively " the Federal Defendants" ); Dr. Pearson Sunderland, a psychiatrist who evaluated Mr. Pauline shortly before his death; Ms. Viola Johnson-Robinson, a social worker who was assigned to assist Mr. Pauline; and Professional Services of America, Inc. (" PSA" ), the company that employed Dr. Sunderland and Ms. Johnson-Robinson and provided them as contractors to the Armed Forces Retirement Home.
Plaintiff seeks survival damages on behalf of his father for the pain and suffering allegedly experienced in the months leading up to his death, as well as for his father's injuries stemming from the suicide itself. See 2d Am. Compl. ¶ ¶ 39, 47, 56, 65, 79. In addition, plaintiff seeks wrongful death damages for his own grief and the loss of his father's companionship, as well as for medical, funeral, and burial expenses. Id. ¶ 81. The gravamen of plaintiff's complaint is that the defendants failed to recognize Mr. Pauline's increasing psychosis during the period preceding his death, and that, had they done so and consequently intervened at an earlier stage of this escalation, Mr. Pauline never would have committed suicide. See, e.g., Pl.'s Opp. at 51. In support of these claims, plaintiff has proffered reports and deposition testimony from three experts: Barbara Darlington, who is offered as an expert in nursing care; Dr. Harold J. Bursztajn, offered as an expert in psychiatry as well as on the issue of causation; and Dr. Diane Mirabito, offered as an expert in the field of social work. According to these experts, the defendants breached the standards of care governing their respective professions, proximately causing Mr. Pauline's pre-death suffering as well as his eventual death.
Presently before the Court are three motions for summary judgment: one filed by the Federal Defendants; another filed by Dr. Sunderland; and the third filed jointly by Professional Services of America, Inc. and Ms. Johnson-Robinson. Upon consideration of the parties' papers, the relevant legal authorities, and pertinent portions of the record in this case, the Court will grant in part and deny in part each of the three motions for summary judgment.
A. Plaintiff's Failure to Respond to Certain Arguments
Preliminarily, the Federal Defendants assert that the plaintiff has conceded the following points by failing to respond to them: (1) the Federal Defendants cannot be held vicariously liable for any malpractice committed by Dr. Sunderland or Ms. Johnson-Robinson; (2) plaintiff cannot recover damages for grief or loss of consortium stemming from his father's death; and (3) the record could not support a finding that the elder Mr. Pauline suffered a heightened degree of mental distress in the months preceding his death, nor a finding that any such suffering was caused by the defendants. Fed. Defs.' Reply at 2-5. In addition, plaintiff's statement of genuine issues of material fact is alleged to be unresponsive to the facts asserted by the Federal Defendants in their statement of undisputed material facts. Ids. at 5-8.
As the Federal Defendants note, plaintiff's opposition memorandum fails to respond to the Federal Defendants' argument that they may not be held vicariously liable for any malpractice committed either by Dr. Sunderland or Ms. Viola-Johnson, both of whom worked at the Armed Forces Retirement Home (" AFRH" ) as independent contractors rather than as employees of the government. Accordingly, the Court finds this argument to be conceded. Plaintiff also explicitly concedes that the District of Columbia's Wrongful Death Act does not permit recovery for any grief or loss of consortium damages, and that the only wrongful death recovery available to him would be limited to the reasonable expenses incurred for Mr. Pauline's funeral. See Pl.'s Opp. at 82 n.21.
The Federal Defendants also maintain that plaintiff has conceded their arguments regarding Mr. Pauline's alleged pre-death suffering. Fed Defs.' Reply at 5. The Court disagrees. plaintiff's memorandum frequently refers to his contention that Mr. Pauline suffered severe psychic distress during the period preceding his death, and plaintiff cites record evidence in support of this contention, as well as in support of his argument that the defendant's alleged malpractice proximately caused this suffering. See Pl.'s Opp. at 50, 60, 71, 85-86. ...