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Bradley v. National Collegiate Athletic Association

United States District Court, District of Columbia

April 12, 2017

JENNIFER BRADLEY, Plaintiff,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Defendants.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge.

         The plaintiff, a former student-athlete at American University (the “University”), brings this civil action against the defendants, the United States of America (the “Government”), the National Collegiate Athletic Association (the “NCAA”), the Patriot League, the University, the Maryland Sports Medicine Center (the “Medicine Center”), David L. Higgins, M.D. P.C. (the “Higgins Practice”), and David L. Higgins, M.D. (“Dr. Higgins”), alleging various causes of action stemming from the defendants' alleged failure to provide her with proper medical care after she allegedly sustained a head injury during a field hockey game in September 2011. See Notice of Removal of a Civil Action (“Removal Notice”), Exhibit (“Ex.”) 5 (Amended Complaint (“Am. Compl.”)) ¶¶ 98-136. Six motions are currently pending before the Court: (1) Defendant [ ] Patriot League's Preliminary Motion to Dismiss (“Patriot League's Dismiss Mot.”), ECF No. 9; (2) Defendant [ ] Patriot League's Request for Hearing on Its Preliminary Motion to Dismiss (“Patriot's League's Hearing Request”), ECF No. 10; (3) defendant [ ] American University's Preliminary Motion to Dismiss (“University's Mot.”), ECF No. 11; (4) Defendant [ ] National Collegiate Athletic Association's Motion to Dismiss the Amended Complaint (“NCAA's Mot.”), ECF No. 17; (5) the Government's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (“Gov't's Mot.”), ECF No. 26; and (6) Defendants Maryland Sports Medicine Center, David L. Higgins, M.D. and David L. Higgins, M.D. P.C.'s Partial Motion to Dismiss, ECF No. 31. Upon careful consideration of the parties' submissions, [1]the Court concludes for the reasons that follow that it must deny the Government's motion to dismiss or, in the alternative, its motion for summary judgment, deny in part and grant in part both the NCAA's and the University's motions to dismiss, grant the Patriot League's motion to dismiss, deny the Patriot League's hearing request as moot, and grant the three medical provider defendants' partial motion to dismiss.

         I. BACKGROUND

         Much of the relevant factual background has been previously set forth by the Court in an earlier Order. See Removal Notice, Ex. 1 (Order dated December 10, 2015 (“Order”)), Part I.B. In brief,

[i]n 2011, the plaintiff was a junior-year student athlete at [the] University here in Washington, D.C. She played field hockey for the [U]niversity, and in September of that year, the plaintiff asserts that she ‘was hit in the head during a field hockey game between [the] University and Richmond University[.]' Subsequent to that hit, she allegedly began experiencing symptoms of a concussion, but continued participating in field hockey practices and games as she was [not] advised to sit out [practices and games] while her symptoms persisted. According to the plaintiff, this failure has caused her a variety of harms, including monetary damages.

Id. (internal citations and footnote omitted). “On March 19, 2012, [the plaintiff] presented to MedStar National Rehabilitation with her chief complaint being of a concussion, . . . [and] on April 30, 2012, her diagnosis was confirmed.” Id., Ex. 5 (Am. Compl.) ¶¶ 119-20.

         Between August and October 2014, the plaintiff “filed several actions in the Superior Court of the District of Columbia (“Superior Court”), which were consolidated against the [NCAA], [2] the Patriot League, [3] [the] University, the [ ] Medicine Center, David L. Higgins, M.D., P.C., David L. Higgins, M.D., and Aaron Williams, D.O.” Id., Ex. 1 (Order) at 1. In March 2015, the Government, pursuant to the Westfall Act, 28 U.S.C. § 2679 (2012), substituted itself for Dr. Williams as a defendant and removed the consolidated case to this Court. See id., Ex. 1 (Order) at 1-2. Thereafter, in December 2015, this Court dismissed the plaintiff's claims against the Government because the “the plaintiff concede[d] that she [was] still pursuing her administrative remedies, ” id., Ex. 1 (Order) at 11 (internal citation and quotation marks omitted), which precluded her at that time from bringing suit against the Government. This Court also concluded that it “no longer ha[d] jurisdiction over [the] matter following the dismissal of the [Government]” and remanded the case to the Superior Court. Id., Ex. 1 (Order) at 11-12.

         After the case was remanded to the Superior Court, the plaintiff moved both to amend her Complaint and to remove the case back to this Court, a motion the Superior Court granted only with respect to the plaintiff's request to amend her Complaint. See id., Ex. 3 (Order dated Feb. 19, 2016) at 1. On February 23, 2016, the plaintiff amended her Complaint, and on the following day, removed this case back to this Court. See id. at 4. Shortly thereafter, the defendants filed their motions to dismiss the plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), which the Court now addresses.

         II. STANDARD OF REVIEW

         A motion to dismiss under Rule 12(b)(6) tests whether the complaint properly “state[s] a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 8(a) requires only that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although “detailed factual allegations” are not required, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), a plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation, ” id. Rather, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint alleging “facts [which] are ‘merely consistent with' a defendant's liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).

         “In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.'” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). However, conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         III. ANALYSIS

         A. The Plaintiff's Claims Against the Government

         As an initial matter, the Government contends that Counts IV and VIII of the plaintiff's Amended Complaint, which assert claims of negligent infliction of emotional distress and medical malpractice against the Government, “should be dismissed with prejudice” because “the [p]laintiff's claim[s are] time-barred by the [Federal Tort Claims Act (‘FTCA')]'s two-year statute of limitations[, ]” and because “under the borrowed servant doctrine, any alleged tort committed by Dr. Williams, attaches to the borrower (i.e., special employer), the Medical Practice of David L. Higgins . . . and not to the general master (i.e., general employer), the [Government].” Gov't's Mem. at 1-2. The Court will address each of these arguments in turn.

         1. The Federal Tort Claims Act's Two-Year Statute of Limitations

         The Government argues that the plaintiff's claims against it are time-barred because she failed to “file her claim with the appropriate agency” within two years after the “[p]laintiff's claim accrued . . . [in] March 2012 when she was diagnosed with [post-concussive syndrome], ” as the FTCA mandates. Gov't's Mem. at 10-11. In response, the plaintiff contends that the statute of limitations was equitably tolled and “did not begin to run until November 7, 2013, at the earliest, ” when “counsel for [d]efendant Higgins contacted [the p]laintiff's counsel and first indicated that Dr. Williams was a military fellow at the time he rendered treatment.” Pl.'s Gov't Opp'n at 11.

         “Under the doctrine of sovereign immunity, the United States is immune from suit unless Congress has expressly waived the defense of sovereign immunity by statute.” Carter-El v. D.C. Dep't of Corr., 893 F.Supp.2d 243, 246 (D.D.C. 2012) (Walton, J.) (citing United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”)). “Absent a waiver, sovereign immunity shields the Federal Government . . . from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). “The FTCA is an example of Congress' waiver of sovereign immunity. Under the FTCA, the United States consents to suit in federal district court for certain, but not all, tort claims.” Carter-El, 893 F.Supp.2d at 246.

         “The date the plaintiff's administrative claim was received is important because a party asserting jurisdiction under the FTCA must satisfy administrative exhaustion requirements by ‘present[ing] the claim to the appropriate federal agency.'” Olaniyi v. District of Columbia, 763 F.Supp.2d 70, 87 (D.D.C. 2011) (Walton, J.) (quoting 28 U.S.C. § 2675(a) (2006)). “In fact, the United States Code makes clear that a ‘tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues, ' id. (citing 28 U.S.C. § 2401(b)), and the associated regulations explain that a claim is deemed presented when it is received by the agency, ” id. (citing 28 C.F.R. §§ 14.2(a), 14.2(b)(1) (2005)). “Under the FTCA, a claim accrues ‘by the time a plaintiff has discovered both h[er] injury and its cause.'” Id. at 87-88 (quoting Sexton v. United States, 832 F.2d 629, 633 (D.C. Cir. 1987)); see also United States v. Kubrick, 444 U.S. 111, 123 (1979) (“A plaintiff . . . armed with the facts about the harm done to h[er], can protect [herself] by seeking advice in the medical and legal community. To excuse h[er] from promptly doing so by postponing the accrual of h[er] claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.”).

         Moreover, “[t]he time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.” United States v. Kwai Fun Wong, ___ U.S. ___, ___, 135 S.Ct. 1625, 1633 (2015). However, such relief applies “only sparingly” and generally is not available to a plaintiff who has “failed to exercise due diligence in preserving [her] legal rights” or has demonstrated only “a garden variety of excusable neglect.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (noting that a “[plaintiff] is ‘entitled to equitable tolling' only if [she] shows ‘(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way' and prevented timely filing” (internal citation omitted)). In this Circuit, courts can permit “equitable tolling, but ‘only in extraordinary and carefully circumscribed circumstances, '” Norman v. United States, 467 F.3d 773, 776 (D.C. Cir. 2006) (quoting Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998)), such as where ‘despite all due diligence [a plaintiff] is unable to obtain vital information bearing on the existence of her claim, '” id. (quoting Smith-Haynie, 155 F.3d at 579) (alteration in original). “At a minimum, due diligence requires reasonable efforts to learn the employment status of the defendant.” Id. “Further, due diligence is a fact-specific judgment in each case as to what the court expects a reasonable plaintiff to do in uncovering the elements of [her] claim.” United States v. Intrados/Intern. Mgmt. Grp., 265 F.Supp.2d 1, 11 (D.D.C. 2002) (citation omitted).

         Furthermore, “[b]ecause statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014). And, “courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). In other words, “a defendant is entitled to succeed on a Rule 12(b)(6) motion to dismiss brought on statute[] of limitations grounds only if the facts that give rise to this affirmative defense are clear on the face of the plaintiff's complaint.” Lattisaw v. District of Columbia, 118 F.Supp.3d 142, 153 (D.D.C. 2015) (citing Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)); accord Campbell v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 130 F.Supp.3d 236, 254 (D.D.C. 2015).

         There is no dispute that the plaintiff did not “present[ ] [her claim] in writing to the appropriate Federal agency within two years after [her] claim accrue[d], ” 28 U.S.C. § 2401(b), which was in March 2012, at the latest, when she was diagnosed with post-concussive syndrome, see Gov't's Mem. at 10. Therefore, because the plaintiff did not provide written notice of her claim until December 15, 2014, see Pl.'s Gov't Opp'n, Exhibit (“Ex.”) 3 (Affidavit of Service), the FTCA's two-year statute of limitations period seemingly bars the plaintiff's tort claims against the Government.[4] However, the Court cannot find from the face of the Complaint that the plaintiff failed to exercise reasonable due diligence to learn Dr. Williams' employment status, and because the plaintiff has shown that extraordinary circumstances prevented her from filing her claims against the government before she did, this Court finds that equitable tolling of the FTCA's two-year statute of limitations period is warranted.

         As noted above, the plaintiff contends that the FCTA's two-year statute of limitations should be equitably tolled until approximately November 7, 2013, when she learned from defendant Higgins' counsel that Dr. Williams was employed as a military fellow when he provided medical treatment to her at the University. See Pl.'s Gov't Opp'n at 11. The plaintiff contends that she “exercise[d] reasonable diligence in pursuing this matter by first sending a notice of representation letter to [the] University with a request to have both parties meet and discuss the matter.” Pl.'s Gov't Opp'n at 12; see also id., Ex. 9. She also “went out and retained experts in a highly complicated medical malpractice action, and underwent the timely and complex notice provisions required in the District of Columbia to pursue a medical malpractice claim.” Pl.'s Gov't Opp'n at 12-13. Specific to Dr. Williams' employment status, the plaintiff states that she “had absolutely no knowledge that Dr. Williams was a Federal Employee, nor any rational basis to believe that when she went and sought treatment from her team doctor at the [ ] University that she was actually being treated by [a Government employee].” Id. at 13. In addition, the plaintiff notes that “out of an abundance of caution in order to act with all due diligence, [she] served the Department of Defense and the Department of Health and Human Services with a Form 95 on December 15, 2014, ” to provide written notice of her claims, id. at 2, despite the uncertainty as to whether the Government would provide Dr. Williams with the Westfall certification, see id., Ex. 5 (Dr. Williams Petition for Certification), Ex. G (Letter from counsel for Dr. Williams sent to Litigation Division of the United States Army Legal Services Agency dated December 19, 2014) at 1 (noting that Dr. Williams and the Government had prior discussions regarding whether Dr. Williams was acting within the scope of his employment as a federal employee while treating the plaintiff). Therefore, the Court finds that the plaintiff acted with reasonable due diligence “in preserving [her] legal rights, ” Irwin, 498 U.S. at 96, in regards to filing a lawsuit against the Government.

         In arguing that the plaintiff did not exercise reasonable due diligence, the Government cites as support for its position Norman v. United States, 467 F.3d 773 (D.C. Cir. 2006), M.J. ex rel. Jarvis v. Georgetown Univ. Med. Ctr., 962 F.Supp.2d 3 (D.D.C. 2013), aff'd as modified, 2014 WL 1378274 (D.C. Cir. Mar. 25, 2014), and Espinosa v. United States, No. 09-2399 (RMU), 2011 WL 710170, at *1 (D.D.C. Feb. 22, 2011), where the courts in each case declined to equitably toll the FTCA's two-year statute of limitations because the plaintiffs failed to act with reasonable due diligence. The Court finds, however, the facts in those cases distinguishable from the facts in this case. In Norman, the plaintiff, who sustained injuries in an automobile accident after being struck by the driver of a rental car who was a federal employee acting within the scope of his employment, 467 F.3d at 773-74, argued that “he exercised due diligence because immediately following the accident he filed a worker's compensation claim with his employer and a liability claim with USAA, ” id. at 776, the driver's personal “insurance provider, ” id. at 774. Although the plaintiff failed to present this documentation to the district court, the Circuit, in reviewing the documentation, noted that “[n]either the worker's compensation claim nor the liability claim indicate[d that the plaintiff] or his attorney made any efforts prior to the expiration of the FTCA's two-year statute of limitations-much less reasonably diligent efforts-to discover [the driver's] employer.” Id. at 776.

         Similarly, in M.J. ex rel. Jarvis, the plaintiff, fourteen years after the birth of her son, brought a medical malpractice claim on behalf of her son, alleging that he suffered from physical and mental disabilities attributable to the timing and method of his delivery. 962 F.Supp.2d at 4-5. The district court rejected the plaintiff's argument that the statute of limitations should be equitably tolled because the plaintiff failed to identify any efforts she had taken to learn of the doctor's employer. See id. at 9. And, in Espinosa, the plaintiff, who suffered spinal injuries in a car accident after being struck by “an active duty Army solider operating a government-owned van on official Army business, ” 2011 WL 710170, at *1, also argued that “the FTCA statute of limitations should be [equitably] tolled because he filed his complaint prior to the expiration of [the] District of Columbia's personal injury statute of limitations, having not yet received the Westfall certification, ” id. at *2. The district court, however, noted that, “[o]ther than retaining counsel in the months after the accident, the plaintiff made no effort to discover [the driver's] employment status or to file suit within the two-year limitations period, ” in addition to failing to “allege[] or present[] any evidence of fraudulent concealment on the part of the agency that might provide a basis for equitable tolling.” Id. at *3.

         As the Court noted earlier, the plaintiff in this case exercised reasonable due diligence in pursuing her legal rights. She attempted to discuss and potentially resolve this matter with the University, retained medical experts, conducted research through the efforts of her attorneys, and complied with timely jurisdictional requirements in pursuing certain claims. She also reasonably believed that Dr. Williams was an employee of the University, as he worked at the University as a medical trainer for the field hockey team. See Pl.'s Gov't Opp'n at 11. Thus, unlike the plaintiffs in the cases cited by the Government, it cannot be said that the plaintiff here failed to employ reasonable efforts to identify Dr. Williams' employer.

         Moreover, the Court finds that extraordinary circumstances require equitable tolling of the FTCA's two-year statute of limitations. As the plaintiff notes, the contract between defendant Higgins and the Government, which governs the employment terms for Dr. Williams as a trainee and member of “a fellowship program under the supervision of defendant Higgins, ” Pl.'s Gov't Opp'n at 1, prohibits individuals “being treated by the trainees [from] be[ing] made aware of [the] relationship” between defendant Higgins and the Government, thereby “deliberate[ly] conceal[ing] [a] material fact[] related to the involvement of the [Government].” Pl.'s Gov't Opp'n at 10; see also Gov't's Mot., Ex. 2 (Memorandum of Understanding Between the Medical Practice of David L. Higgins, M.D. and the National Capital Consortium (the “Agreement”)) ¶ 12 (“Neither party will use the name of the other party in any of its publicity or advertising media. The existence and scope of the program, however, may be known to [the] trainees.”). The plaintiff contends that neither this contract or any other

proof or evidence of Dr. Williams' employment . . . was ever provided to [the p]laintiff or [her] counsel until Dr. Williams filed a Praecipe in the underlying Superior Court Action in March of 2015[, ] in which he attached a copy of his Petition for Judicial Findings and Certification of Scope of Officer or Employment in Case 1:15-MC-00283 in this Court.

Pl.'s Gov't Opp'n at 11-12. Therefore, despite the plaintiff's exercise of due diligence, she would have been “unable to obtain [the] vital information, ” Norman, 467 F.3d at 776, about Dr. Williams' employment status because that information was concealed and not made available until Dr. Williams legally sought to force the Government to provide him with a Westfall certification. And, until the Government provided the Westfall certification, it had taken the position that Dr. Williams was not acting within the scope of his federal employment, but rather as an employee of the Medicine Center hired by the University, the same belief the plaintiff reasonably held. Accordingly, because the Court cannot find that the plaintiff failed to exercise due diligence in pursuing her legal rights, and as a result of extraordinary circumstances that existed in this case, the Court finds it appropriate to equitably toll the FCTA's two-year statute of limitations until November 7, 2013, when the plaintiff learned that Dr. Williams was a military fellow. Therefore, because the plaintiff filed her administrative claim within two years after learning of Dr. Williams' status as a military fellow, the Court must reject the Government's position that the plaintiff's claims against it are time-barred.[5]

         2. Borrowed Servant Doctrine

         The Government also argues that the “[p]laintiff's claims against [it] fail under the borrowed servant doctrine” because “at all times relevant to the litigation, [Dr.] Williams ‘was an agent, servant, and/or employee of . . . [the] University, Higgins, Higgins, P.C. and [the Medicine] Center, '” Gov't's Mem. at 15 (quoting Removal Notice, Ex. 5 (Am. Compl.) ¶ 13), and because “the Higgins Practice had the ‘power to control and direct' [Dr.] Williams in the performance of his work, ” id. The plaintiff contends that issue preclusion estops the Government from asserting the borrowed servant doctrine because

the issue over whether or not [the Government] was liable for the actions of Dr. Williams was actually litigated, [and] determined by a valid final judgment on the merits when the Court issued its previous[] ruling after a full and fair opportunity to litigate the matter where the issue of [the Government's] liability for Dr. Williams was essential.

Pl.'s Gov't Opp'n at 21. In response, the Government asserts that the “state law defining an individual's scope of employment (for purposes of Westfall certification) is separate and distinct from the control inquiry and the ultimate issue of employer liability (for purposes of borrowed servant).” Gov't's Reply at 10. Accordingly, the Court must decide (1) whether, after litigating the Westfall certification issues, the Government's determination that it must be substituted as a defendant for Dr. Williams for Westfall certification purposes bars the Government from denying liability for Dr. Williams' alleged negligent conduct based on issue preclusion, and if not, (2) whether Dr. Williams is a borrowed servant of the Higgins Practice, which the Government argues should be solely liable for Dr. Williams' alleged negligent conduct.

         a. The Applicability of Issue Preclusion

         There does not appear to be a case in this Circuit that has addressed the issue of whether the Government, which after substituting itself for an individual in a civil action after determining that the individual acted within the scope of his federal employment for Westfall certification purposes, is precluded from arguing that it is not liable for the individual's allegedly negligent actions under the borrowed servant doctrine. As support for its position that the Westfall certification question and the determination of liability for the allegedly negligent conduct are separate issues, the Government relies on Palmer v. Flaggman, 93 F.3d 196 (5th Cir. 1996), which addressed this issue. The Court finds the reasoning in Palmer instructive.

         In Palmer, the Firth Circuit considered whether “a federal employee who acts as the ‘borrowed servant' of a private employer may simultaneously act within the scope of his federal employment in such a way as to make him immune from suit under the Westfall Act.” 93 F.3d at 197. In assessing this issue, the court noted that it had to determine whether, under Texas state law where the alleged negligence occurred, “the scope of employment inquiry is separable from the control inquiry and the ultimate issue of liability.”[6] Id. at 201. However, the court recognized that “Texas state law on this issue [was] sparse” because

[t]he Westfall Act creates a unique situation in which the parties have an interest in proving that an employee acted within the scope of his or her employment, without regard for the ultimate issue of the employer's liability [while] the model tort case [in Texas] answers the scope of employment issue only in the context of assigning liability.

Id. And, the “Texas cases involving two ‘employers' generally resolve only the issue of which employer had ‘control' over the tortfeasor, and hence the liability through the ‘borrowed servant' doctrine.” Id. at 201-02. Thus, “Texas courts have not elaborated on whether the tortfeasor was also within the scope of the non-liable defendant's employment, or whether a tortfeasor is legally able to act simultaneously within the scope of employment of two defendants where only one is ultimately liable.” Id. at 202. Nonetheless, in “reach[ing] the result [that it] believe[d] the Texas court would be most likely to reach, ” id.; see also id. at 202 (“Because Texas courts have not directly addressed this issue, we must decide it as we believe the Texas Supreme Court would have decided it, if confronted with the issue directly.”), the court reasoned (1) that there was “no distinction between simultaneously ‘serving' two masters, and acting within the ‘scope of employment' of two employers[;]” id. at 204, (2) that “a particular action can serve more than one purpose, while still remaining within the scope of employment[;]” id. (“[A]n action may benefit the employee personally, but still fall within the course and scope of his employment, so long as the purpose of the action still benefits the master to an appreciable extent.” (internal citation omitted)), and (3) that “[t]he borrowed servant inquiry seeme[d] to become relevant only after one determines whether an employee's actions are within the scope of his general employment[, ]” id. (noting that “[e]ven if the borrowing master is liable for the acts of the servant, ‘the general employer remains liable if the act fell within the scope of the employee's general employment'” (internal citation omitted)). Therefore, the court concluded that “nothing in Texas law indicates that the stated test for scope of employment . . . also includes an additional element of control over the tortfeasor's actions. Instead, [it found] that the element of control is relevant only to the separate issue of ultimate liability.” Id. at 205.

         Applying these principles here, the Court notes that “District of Columbia [respondeat superior] law, which applies in this case, follows the RESTATEMENT (SECOND) OF AGENCY (1958) (“Restatement”) in defining scope of employment.” Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006). Under the Restatement:

Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master. [However, c]onduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement § 228. Consequently, District of Columbia law does not include the additional element of control over the tortfeasor's actions in determining the scope of employment. In addition, District of Columbia cases have separately considered the borrowed servant doctrine as a defense to assigning liability for tortious conduct. See Dellums v. Powell, 566 F.2d 216, 220 (D.C. Cir. 1977) (applying the borrowed servant doctrine as a defense to vicarious liability), cert. denied, 438 U.S. 916 (1978); see also Estate of Carter v. District of Columbia, 903 F.Supp. 165, 167 (D.D.C. 1995) (discussing whether the borrowed servant doctrine transferred liability to the District of Columbia for the actions of United States Park Police engaged in routine patrolling in the District of Columbia). Accordingly, the Court finds “that the element of control is relevant only to the separate issue of ultimate liability, ” Palmer, 93 F.3d at 205, and thus, issue preclusion does not apply in this case because the parties have only litigated Dr. Williams' scope of employment for Westfall certification purposes.

         b. Borrowed Servant Status and Liability

         “Under the law of agency, ‘a person who is generally the servant of one master [ ] can become the borrowed servant of another.'” Chang v. United States, Nos. 02-2010 (EGS), 02-2283 (EGS), 2007 WL 2007335, at *12 (D.D.C. July 10, 2007) (quoting Dellums, 566 F.2d at 220) (alteration in original). “In considering whether an employee's negligence should be imputed to a special employer, the critical determination is which employer possess the ‘power of control.'” Dower v. Davis, No. 86-2658-OG, 1987 WL 12847, at *5 (D.D.C. July 28, 1987). The Restatement identifies the following factors as relevant to determining the issue of control:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is part of the regular business of ...

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