United States District Court, District of Columbia
MEMORANDUM OPINION 
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Matthew D. Levy and Medstar Georgetown University Hospital
(the “Hospital”) invoke the peer review
privilege in this jurisdiction to shield themselves from
Plaintiff Antoinette Burns' claim of negligent
defamation. Because the Court finds that the
United States Air Force entities to which Defendants provided
certain information about Plaintiff do not qualify as
“peer review bodies” under the relevant statute,
that privilege is not available to Defendants.
consideration of the briefing,  the relevant legal
authorities, and the record as a whole, the Court
DENIES Defendants'  Joint Motion for
Partial Summary Judgment as to the Applicability of the
District of Columbia Peer Review Act to Plaintiff's
Counts of Defamation. Plaintiff's negligent defamation
claim must continue to trial along with her other remaining
claim of intentional defamation.
Court examined the facts of this case in its prior summary
judgment ruling, to which it refers the reader. See
Mem. Op. at 3-12, Burns v. Georgetown Univ. Med.
Ctr., Civil Action No. 13-898 (CKK), 2016 WL 4275585, at
*2-*6 (D.D.C. Aug. 12, 2016) (“Burns
I”), ECF No. 81. Here the Court focuses on those
undisputed facts that are pertinent to the pending motion.
served as a pediatrician in the United States Air Force,
specifically working for the United States Air Force Medical
Service (“AFMS”). Defs. Medstar Georgetown
University Hospital's and Matthew D. Levy, M.D.'s
Stmt. of Material Facts as to Which There Is No. Material
Dispute in Supp. of Their Mot. for Partial Summ. J., ECF No.
86-2 (“Defs.' Stmt.”), ¶¶ 1, 2. As
part of her military service, Plaintiff began pursuing a
specialized pediatric fellowship at the Hospital in August
2011. See Id. ¶ 3; Pl.'s Stmt. of Disputed
Material Facts and Additional Material Facts Not in Dispute,
ECF No. 87-1 (“Pl.'s Stmt.”), ¶¶
18, 19, 33.
reasons beyond the scope of this opinion, Plaintiffs
participation prematurely terminated in April 2012. Pl.'s
Stmt. ¶ 72. The Court need not address distinctions
between the termination-related activities of the Hospital
and Georgetown University Medical Center (the
“University”), certain of which constitute a
lingering contested issue. See infra Part I.B. In
any case, also in April 2012, Defendant Levy, the Medical
Director for Community Pediatrics, and Jamie S. Padmore, Vice
President, Academic Affairs, Medstar Health, Inc., had a
discussion about Plaintiff with two Air Force officials,
including Colonel Thomas Grau, M.D., then-chief of the
Physician Education Branch of AFMS. Defs.' Stmt. ¶
5; Pl.'s Stmt. ¶¶ 38, 69. Col. Grau requested
an evaluation of Plaintiff using a certain rubric. Defs.'
Stmt. ¶ 5. His successor, Colonel Michael Tankersley,
M.D., reiterated that request by email in December 2012 and
January 2013. Id. ¶¶ 7, 11. By January
2013, the Air Force Centralized Credentialing Verification
Office (“AFCCVO”) had also sent a request for
certain information, which Col. Tankersley took the
opportunity to reinforce in his communication that month.
Id. ¶¶ 10, 11.
lawsuit, Plaintiff pursued contract-based claims, defamation
claims, and a claim of intentional interference with
prospective economic advantage against a combination of the
Hospital, the University, and Levy. 2d Am. Compl., No. 26.
The Court granted summary judgment for all three Defendants
as to all claims and dismissed Plaintiffs case. Burns
I, Civil Action No. 13-898 (CKK), 2016 WL 4275585. On
appeal, the D.C. Circuit affirmed dismissal of all but the
defamation claims, as to which it reversed and remanded to
this Court for certain further determinations. Burns v.
Levy, 873 F.3d 289 (D.C. Cir. 2017) (“Burns
remand, this Court determined that one of the lingering
issues-whether the Hospital or the University was first to
terminate Plaintiff-could not be resolved by further summary
judgment briefing, based on the D.C. Circuit's
characterization of the record. Scheduling and Procedures
Order, ECF No. 85, at 1-2 (citing Burns II, 873 F.3d
at 292, 295)). The Court reserved that issue for trial.
Id. at 2. The other issue-the applicability of the
District of Columbia's Health Care Peer Review Act-is the
subject of the present briefing. See Id. at 1.
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The mere existence of some
factual dispute is insufficient on its own to bar summary
judgment; the dispute must pertain to a
“material” fact. Id. Accordingly,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor
may summary judgment be avoided based on just any
disagreement as to the relevant facts; the dispute must be
“genuine, ” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find
for the non-movant. Id.
attempting to place a fact beyond dispute, or to show that it
is truly disputed, must (a) rely on specific parts of the
record, such as documentary evidence or sworn statements, or
(b) “show[ ] that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
the fact.” Fed.R.Civ.P. 56(c)(1). Conclusory assertions
offered without any factual basis in the record cannot create
a genuine dispute sufficient to survive summary judgment.
See Ass'n of Flight Attendants-C W A, AFL-CIO v. U.S.
Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly
support an assertion of fact or fails to properly address
another party's assertion of fact, ” the district
court may “consider the fact undisputed for purposes of
the motion.” Fed.R.Civ.P. 56(e).
faced with a motion for summary judgment, the district court
may not assess credibility or weigh evidence; instead, the
evidence must be analyzed in the light most favorable to the
non-movant, with “all justifiable inferences . . .
drawn in his favor.” Anderson, 477 U.S. at
255. “If material facts are at issue, or though
undisputed, are susceptible to divergent inferences, summary
judgment is not available.” Moore v. Hartman,
571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v.
Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)) (internal
quotation marks omitted). In the end, the district
court's task is to determine “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477
U.S. at 251-52. In this regard, the non-movant must “do
more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-50.
decades or further ago, health care entities developed a
practice of “peer review, ” whereby, for example,
medical professionals exchange information to gauge the
qualifications of prospective colleagues and monitor the
performance of current colleagues. See generally,
e.g., 41 C.J.S. Hospitals § 16 (2019). Although
this process has taken various forms, it is safe to say that
the permutations share a common goal: to ensure a
well-functioning medical system that ultimately inures to the
benefit of patient care.
effective peer review process requires candor on the part of
those providing sensitive assessments of their colleagues.
The quid pro quo for that frankness is the assurance
that recipients will treat the information as confidential.
But the assessor supplying the information wants something
more: Immunity from liability in the event that the assessee
or someone else is unhappy with the sharing-or perhaps the
pending Joint Motion generally concerns the availability of
this immunity; it is to this facet of peer review protections
that the Court shall refer with the term, “peer review
privilege.” Only one narrow issue is dispositive here:
Whether the specific recipients of the sensitive information
in this case qualify as “peer review bodies”
under the statute establishing the privilege in this
jurisdiction, the District of Columbia's Health Care Peer
Review Act, D.C. Code §§ 44-801 et seq.
For the reasons that follow, that answer is no. As a result,
those who furnished the sensitive information cannot rely on
the peer review privilege in their own defense.
parties' briefing was of limited assistance in reaching
this conclusion. For one thing, Defendants tried to bootstrap
the nature of the information exchanged to support rather
thin attempts to show that certain U.S. Air Force entities
satisfy the definition of peer review bodies. See,
e.g., Defs.' Mem. at 11-14. Moreover, the case law
construing the Health Care Peer Review Act is scant. The
parties have not identified any cases, nor has the Court
found any, that address the scope of the District of
Columbia's peer review privilege in more than cursory
fashion. See Oguntoye v. Medstar Georgetown Univ.
Hosp., Civil No. 2013 CA 5054, 2015 D.C. Super. LEXIS 6,
at *11-*12 (D.C. Super. Ct. Apr. 3, 2015) (briefly concluding
that putatively false information was instead an opinion, and
therefore did not breach D.C. privilege); Ali v. MedStar
Health, Civil Action No. 99ca001753, 2003 D.C. Super.
LEXIS 32, at *10 (D.C. Super. Ct. Aug. 15, 2003) (citing
defendants' argument that D.C. privilege applies, but
proceeding exclusively under related federal
statute). The scope of the privilege is not
really at issue though.
Court need only determine whether the statutory definition of
a peer review body encompasses the U.S. Air Force entities in
this case. Reported cases touching on that definition appear
to be limited to the context of discovery and admissibility
under D.C. Code § 44-805. See Ervin v. Howard
Univ., 445 F.Supp.2d 23 (D.D.C. 2006); Stone v.
Alexander, 6 A.3d 847 (D.C. 2010); see also Jackson
v. Scott, 667 A.2d 1365 (D.C. 1995) (implicitly relying
on, but not citing, relevant definition). These few cases
help to illuminate the statutory scheme and, to some extent,
the definition of a peer review body. But because this case
turns more closely on underexamined parts of that definition,
the Court must proceed primarily by its own lights. First,
the Court shall introduce the Air Force entities that
Defendants propose to qualify as one or more peer review
Relevant U.S. ...