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Burns v. Levy

United States District Court, District of Columbia

December 2, 2019

ANTOINETTE BURNS, Plaintiff,
v.
MATTHEW D. LEVY, et al, Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff Lt. Col. Antoinette Burns sued Defendants MedStar Georgetown University Hospital and Matthew D. Levy, M.D., and former Defendant Georgetown University Medical Center, on various grounds relating to her participation in and exit from the MGUH Community Pediatrics and Child Advocacy Fellowship Program. Lt. Col. Burns originally alleged various claims against the Defendants, including breach of contract and defamation claims. This Court previously granted summary judgment to the Hospital and Dr. Levy on the breach of contract claims, which the Court of Appeals affirmed.

         The Court of Appeals, however, did not affirm the Court's grant of summary judgment on Lt. Col. Burns's defamation claims and remanded at least a subset of those claims. Consequently, at issue between the parties now is the scope of the mandate on remand from the Court of Appeals. Also pending before the Court are the parties' other pretrial filings. How the Court rules on a few major objections and motions in limine may significantly impact the parties' positions with respect to numerous others. Accordingly, the Court considers several categories of disputes between the parties in this Memorandum Opinion and the accompanying Order by ruling on the Defendants' motions in limine and on Lt. Col. Burns's objection to Defendants' invocation of the common interest privilege.

         I. OVERVIEW

         This Memorandum Opinion considers six broad categories of issues raised by the parties' pretrial briefing. First, upon consideration of the relevant briefing, [1] legal authorities, and record, the Court GRANTS IN PART, DENIES IN PART, and DENIES WITHOUT PREJUDICE IN PART Defendants' Motion in Limine to Exclude Proposed Testimony and Evidence on Subjects that Are Not Relevant and Would Be Confusing, Irrelevant, Misleading, and Unfairly Prejudicial. In their motion, Defendants argue that two broad categories of evidence should be excluded. The Court concludes that the findings of the Court of Appeals, and its affirmation of this Court's grant of summary judgment on the contract claims, limits the evidence that Lt. Col. Burns can introduce at trial. However, the Court disagrees that the Court of Appeals limited its remand of the defamation claims as narrowly as Defendants contend. Still, much of the evidence that Lt. Col. Burns wants to offer should be excluded, as the Court outlines below.

         Second, the Court DENIES Lt. Col. Burns's request that the Court find that the common interest privilege does not apply to the communications at issue.[2] Under the law-of-the-case doctrine and mandate rule, the Court follows its prior conclusion from the first round of summary judgment briefing that the common interest privilege applies. Even if the Court were not obligated to follow its prior ruling, the common interest privilege still applies. This, however, does not preclude Lt. Col. Burns from arguing at trial that the privilege was abused, such as by a showing of malice (including falsity).

         Third, the Court DENIES WITHOUT PREJUDICE Defendants' Motion in Limine to Exclude Witnesses Not Disclosed or Identified as Such by Plaintiff in Her Rule 26 Disclosures or Discovery.[3] The parties have provided insufficient information regarding whether there has been a violation of the relevant rules, whether any violation was harmless, and as to which particular remedy is warranted. Consequently, the Court will require the parties to file supplemental briefing on the issues outlined below and in the accompanying Order.

         Fourth, the Court GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART Defendants' Motion in Limine to Exclude Proposed Testimony and Reports of Plaintiffs Expert Witness, Dr. Gregory Scott Blaschke.[4] In accordance with the Court's conclusions elsewhere in the Memorandum Opinion that certain evidence related to Lt. Col. Burns's dismissed contract claims should be excluded, the Court finds that certain of Dr. Blaschke's testimony should similarly be excluded. The parties' submissions, however, are not sufficient for the Court to determine whether any of Dr. Blaschke's anticipated testimony should be excluded under Federal Rules of Evidence 702 and 703. The Court will accordingly require the parties to file supplemental briefing on the issues outlined below and in the accompanying Order.

         Fifth, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion in Limine to Exclude Damages Evidence for Loss of Income and Attorneys' Fees, and to Strike Plaintiffs Claim for Attorneys' Fees.[5] The Court agrees with Defendants that evidence relating to lost income damages should be excluded and grants that portion of its Motion. The Court further grants Defendants' request to strike Lt. Col. Burns's request for attorneys' fees, as she cannot recover them in this case, but it denies Defendants' Motion to the extent that it seeks to exclude all evidence of attorneys' fees. Lt. Col. Burns is not precluded from introducing, at the appropriate juncture, limited evidence regarding attorneys' fees because it is relevant to computing punitive damages under District of Columbia law. The Court, however, limits the scope of attorneys' fees for which evidence may be introduced.

         Lastly, the Court GRANTS IN PART, DENIES IN PART, and DENIES WITHOUT PREJUDICE IN PART Defendants' Motion in Limine to Exclude Documents Not Identified as Required by the Court's Pretrial Scheduling and Procedures Order or Previously Produced During Discovery.[6] The Court denies Defendants' request to completely exclude fifteen exhibits, grants the portion of their Motion seeking to exclude ten exhibits relating to Lt. Col. Burns's damages, and denies without prejudice their Motion to the extent that it seeks to exclude Exhibit 65. If Defendants want to move to exclude Exhibit 65 again, the Court will require additional submissions from the parties as outlined below and in the accompanying Order.

         II. BACKGROUND

         This Court examined the facts of this case in its prior summary judgment rulings, to which it refers the reader. See Burns v. Levy, 373 F.Supp.3d 149, 151-52 (D.D.C. 2019) ("Burns IIF); see 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 /").Inshort>inthis lawsuit, Lt. Col. Burns 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 Dr. Levy. Second Am. Compl., ECF No. 26. The Court granted summary judgment for all three Defendants as to all claims and dismissed Plaintiff s case. See Burns I, 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. See Burns v. Levy, 873 F.3d 289 (D.C. Cir. 2017) ("Burns IF). The parties now dispute the scope of the D.C. Circuit's remand and the impact that its findings have on what evidence may be introduced at trial.

         III. LEGAL STANDARD

         Although neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence explicitly authorize motions in limine, "the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). In fact, under Federal Rule of Evidence 103, the court must "conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means" to the extent practicable. Fed.R.Evid. 103(d). "Pretrial motions in limine are an important mechanism to effectuate this goal of insulating the jury from inadmissible evidence," United States v. Bikundi, No. 14-CR-030 (BAH), 2015 WL 5915481, at *3 (D.D.C. Oct. 7, 2015), and are "designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions," Bradley v. Pittsburgh Bd. of Educ, 913 F.2d 1064, 1069 (3d Cir. 1990). See United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980) ("A pre-trial ruling, if possible, may generally be the better practice, for it permits counsel to make the necessary strategic determinations.").

         Motions in limine are therefore understandably intended to deal with discrete evidentiary issues and are not another opportunity to file disguised dispositive motions. Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich. 2009). In light of this limited purpose, motions in limine "should not be used to resolve factual disputes or weigh evidence," which remains the "function of a motion for summary judgment, with its accompanying and crucial procedural safeguards." C&EServs., Inc. v. AshlandInc., 539 F.Supp.2d 316, 323 (D.D.C. 2008). Factual questions, in other words, "should not be resolved through motions in limine," Goldman v. Healthcare Mgmt. Sys., Inc., 559 F.Supp.2d 853, 871 (W.D. Mich. 2008), nor is a motion in limine a "vehicle for a party to ask the Court to weigh the sufficiency of the evidence," Bowers v. Nat 7 Collegiate Athletic Ass 'n, 563 F.Supp.2d 508, 532 (D.N.J. 2008).

         Due to the trial court's "familiarity with the details of the case and its greater experience in evidentiary matters," it is '"accorded a wide discretion in determining the admissibility of evidence under the Federal Rules.'" Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (quoting United States v. Abel, 469 U.S. 45, 54 (1984)). When a motion in limine relates to the admissibility of evidence on relevance grounds, the court must determine whether the evidence is relevant under Federal Rule of Evidence 401 or otherwise inadmissible under Rule 403. This assessment of "the probative value" of the evidence and "weighing any factors counseling against admissibility is a matter first for the district court's sound judgment." Id. (internal quotation marks omitted) (quoting Abel, 469 U.S. at 54). "This is particularly true with respect to Rule 403 since it requires an 'on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.'" Id. (quoting 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)).

         Under Rule 401, the bar for relevance is low: Evidence is relevant if it tends to make a fact of consequence more or less probable than without that evidence, Fed.R.Evid. 401, provided that it is not otherwise excluded under the Rules, the Constitution of the United States, or an Act of Congress, Fed.R.Evid. 402. Moreover, even when evidence is relevant, the court may exclude it under Rule 403 on several grounds, including "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. In this context, unfair prejudice '"means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Ring, 706 F.3d 460, 472 (D.C. Cir. 2013) (quoting Advisory Committee's Note, Fed.R.Evid. 403).

         The trial judge's discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial. United States v. Valencia, 826 F.2d 169, 172 (2d Cir. 1987); seeRosemann v. Roto Die, Inc., 377 F.3d 897, 902 (8th Cir. 2004); United States v. Layton, 720 F.2d 548, 553 (9th Cir. 1983), cert, denied, 465 U.S. 1069 (1984), and overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008). The trial judge has the "discretion to rule in limine or to await developments at trial before ruling." Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § lO3.O2[l3] (9th ed. 2006). "[I]n some instances it is best to defer rulings until trial, where decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole." Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D. 111. 2011).

         IV. DISCUSSION

         In their pretrial filings, the parties have included numerous objections and motions in limine. The parties' disputes primarily fall into a few broad categories, most of which are also raised by Defendants' motions in limine. Lt. Col. Burns further requests that the Court decide whether the qualified common interest privilege applies to the Hospital and Dr. Levy's statements. Resolution of this question and the motions in limine will address many of the parties' objections and may substantially affect the parties' pretrial filings and strategy. The Court therefore considers these major disputes below.

         A. Defendants' Motion in Limine to Exclude Certain Contract and Defamation Evidence

         Defendants contend that in light of the D.C. Circuit's decision, evidence related to Lt. Col. Burns's dismissed contract claims, including her "one fellowship" theory, and to Lt. Col. Burns's defamation claim based on the contents of the Final Summative Assessment ("FSA") is irrelevant or otherwise inadmissible and should be excluded under Federal Rules of Evidence 401 and 403. See Defs.' Mot. to Exclude Certain Contract and Defamation Evid. In response, Lt. Col. Burns suggests that dismissal of her contract claims has no effect on her ability to introduce certain evidence related to the fellowship. She further argues that the Court of Appeals remanded the entirety of her defamation claims and contests the narrow reading of the mandate that Defendants propose. See Pl's Omnibus Opp'n at 14-18; Pl's Pretrial Stmt. Opp'n at 2-4, 7-9.

         Defendants are mistaken about the scope of the mandate from the Court of Appeals. It reversed and remanded all of Lt. Col. Burns's defamation claims, not just the two facets of those claims that it discussed in more depth in its opinion. However, the Hospital and Dr. Levy are correct that much of the evidence Lt. Col. Burns wants to introduce is either irrelevant on remand or is otherwise inadmissible.

         1. The Scope of the Mandate on Remand

         The parties contest exactly which claims or factual determinations the Court of Appeals remanded to this Court. In their Motion in Limine, the Hospital and Dr. Levy argue that only one of Lt. Col. Burns's defamation theories was remanded under the mandate rule: "whether the statements that [Lt. Col. Burns] was dismissed from the Program are defamatory, and not any other statements made in the FSA." Defs.' Mot. to Exclude Certain Contract and Defamation Evid. at 15. To the contrary, Lt. Col. Burns argues that while the Court of Appeals made some specific findings, it remanded all her defamation claims. Pl's Pretrial Stmt. Opp'n at 2. This Court agrees that the remand is not so narrow as the Hospital and Dr. Levy claim.

         Under the mandate rule, this Court cannot deviate from the mandate issued by the Court of Appeals for the District of Columbia Circuit. See Indep. Petroleum Ass'n of Am. v. Babbitt, 235 E3d 588, 596-97 (D.C. Cir. 2001) ("Under the mandate rule, 'an inferior court has no power or authority to deviate from the mandate issued by an appellate court.'" (quotingBriggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948))). "The mandate rule is a 'more powerful version' of the law-of-the-case doctrine, which prevents courts from reconsidering issues that have already been decided in the same case." Id. (quoting LaShawn A. v. Barry, 87F.3d 1389, 1393 & n.3 (D.C. Cir. 1996) (en banc)). This doctrine, however, "does not seek to sweep under its coverage all possible issues arising out of the facts of the case." United States ex rel. Dep't of Labor v. Ins. Co. of N. Am., 131 E3d 1037, 1041 (D.C. Cir. 1997). Instead, it "is limited to issues that were decided either explicitly or by necessary implication," and '"[t]he mere fact that [an issue] could have been decided is not sufficient to foreclose the issue on remand.'" Id. (quotingMaggard v. O'Connell, 703 F.2d 1284, 1289 (D.C. Cir. 1983)). To interpret the mandate, this Court must consider the D.C. Circuit's opinion. See Id. at 1041 n.7 ("[I]t is entirely appropriate-and, in most cases in this circuit, necessary-to consult the opinion to interpret the mandate.").

         In its opinion, the Court of Appeals reversed this Court's grant of summary judgment, finding that "[t]he record reveals enough of a dispute of fact to preclude summary judgment." BurnsII, 873 F.3d at 295. The opinion focused on Lt. Col. Burns's claim that the hospital defamed her "by its telling the Air Force she had been" fired from the Hospital. Id. It identified two relevant disputed issues. First, it was disputed on the record whether the statement that Lt. Col. Burns was dismissed for cause was false. Second, if it was false, it was disputed whether Hospital personnel knew or should have known of its falsity. See Id. at 295-96. The Court of Appeals ultimately explained that:

Because a reasonable jury could find (1) that the reports by Levy and the Hospital that Burns was fired were false statements, and (2) that the statements were made with the requisite knowledge or notice of their falsity (depending on the applicability of the peer review statute), we reverse the district court on Burns's defamation claims and remand for further proceedings.

Id. at 297 (emphasis added).

         The Hospital and Dr. Levy therefore contend that because the Court of Appeals did not explicitly reverse this Court's finding that the common interest privilege barred Lt. Col. Burns's defamation claim based on the FSA, and instead focused on those two disputed issues, whether the FSA was defamatory is no longer at issue. See Defs.' Combined Pretrial Stmt. Objs. and Resp. at 4-5; Defs.' Mot. to Exclude Certain Contract and Defamation Evid. at 15-16. Defendants are mistaken.

         While the Court of Appeals focused on those two disputed issues, it never explicitly affirmed this Court's grant of summary judgment to Defendants with respect to the FSA. For a court to be bound by a mandate, "the issue must actually have been decided 'either expressly or by necessary implication' on that appeal." Maggard, 703 F.2d at 1289 (quoting Cleveland v. Fed. Power Comm'n, 561 F.2d 344, 348 (D.C. Cir. 1977)). "The mere fact that it could have been decided is not sufficient to foreclose the issue on remand." Id. Although the Court of Appeals could have reached the issue of whether Lt. Col. Burns's other defamation claims were properly decided on summary judgment, it did not do so. Consequently, the Court is not bound by any sub silentio affirmance, contrary to what the Hospital and Dr. Levy claim.

         Instead, the Court of Appeals merely identified at least two issues precluding the grant of summary judgment without affirming any of this Court's findings on Lt. Col. Burns's defamation claims. It further explicitly stated that it reversed this Court "on Burn's defamation claims" without narrowing the scope of that reversal on remand. Burns II, 873 F.3d at 297. And when "a Court of Appeals reverses a grant of summary judgment by finding genuine disputes as to material facts," which is what happened here, "remand to the district court effectively 'restarts' the litigation in the district court." Corrigan v. Glover, 254 F.Supp.3d 184, 199 (D.D.C. 2017), appeal dismissed, No. 17-7099, 2017 WL 6945808 (D.C. Cir. Dec. 20, 2017). Its remand therefore included all of Lt. Col. Burns's defamation claims, including even those that the opinion did not discuss at length.

         Accordingly, the Court denies the portion of the Hospital and Dr. Levy's Motion seeking to exclude evidence related to Lt. Col. Burns's defamation claim based on the FSA. However, as the Court explains in more detail below, see infra Section IV.B (discussing applicability of common interest privilege on remand), the common interest privilege still protects the Hospital and Dr. Levy's statements under the law-of-the-case doctrine and mandate rule. The remaining issues on remand, then, involve whether Lt. Col. Burns can overcome the privilege's protection for each of her defamation claims-including her claim premised on the FSA's contents.

         2. The Effect of Dismissing Lt. Col. Burns's Contract Claims

         The Court of Appeals affirmed the grant of summary judgment to the Hospital and Dr. Levy on Lt. Col. Burns's original contract claims. Burns If 873 F.3d at 293-95. In doing so, it rejected Lt. Col. Burns's single-fellowship theory that "she accepted one fellowship with multiple parts," and that she resigned from that one fellowship. Id. at 293. Ultimately, the "unambiguous words of the contracts at issue" were "fatal to all of her arguments." Id. at 294. Now, on remand, Lt. Col. Burns has indicated that she plans to introduce certain evidence that the Hospital and Dr. Levy claim were largely related to her dismissed contract claims. This evidence, Defendants argue, is either irrelevant or otherwise inadmissible.

         Lt. Col. Burns disagrees. She claims that all this evidence still remains relevant to her defamation claims because "the dismissal of the contract claims has no impact on this evidence." Pl's Omnibus Opp'n at 16. She argues that this evidence relating to, among other things, the contractual relationships between the parties, the parties' expectations about the fellowships, and the working relationship between Lt. Col. Burns and Dr. Levy is relevant because it goes to "the state of mind of Dr. Levy and Jamie Padmore" for the negligent and intentional defamation claims. Pl's Pretrial Stmt. Opp'n at 7-8. Lt. Col. Burns also contends that this evidence goes toward her demonstration of malice to overcome the common interest privilege that otherwise shields the statements at issue. Id. at 8; see also infra Section IV.B (discussing applicability of common interest privilege).

         Lt. Col. Burns is correct that the mental state of the parties is a fact of consequence for her claims. To satisfy the requirements for defamation under District of Columbia law, she must prove "(1) that [she] was the subject of a false and defamatory statement; (2) that the statement was published to a third party; (3) that publishing the statement was at least negligent; and (4) that [she] suffered either actual or legal harm." Farah v. Esquire Magazine, 736 F.3d 528, 533-34 (D.C. Cir. 2013). Lt. Col. Burns may also attempt to overcome the common interest privilege at trial by demonstrating malice. See Columbia First Bank v. Ferguson, 665 A.2d 650, 656 (D.C. 1995) ('"The qualified privilege is a complete defense to libel, but the defense is lost by the showing of malice.'" (quoting Mosrie v. Trussell, 467 A.2d 475, 477 (D.C. 1983))). The mental state of Dr. Levy and other Hospital personnel is relevant, then, to her arguments. What is less clear is whether all the contested evidence makes it more or less probable that Defendants had, or did not have, the requisite mental states.

         Defendants further argue that even if any of the evidence they challenged is relevant, considering that Lt. Col. Burns's contract claims have been dismissed, "introduction of any testimony or evidence regarding her impressions or understandings of which entity she had a contract with, the nature or quality of the Program, [or] the structure of the Program" will cause confusion, waste time, unduly delay the trial, and unfairly prejudice Defendants. Defs.' Mot. to Exclude Certain Contract and Defamation Evid. at 14. According to Defendants, much of the proposed testimony should be excluded on those grounds.

         Lt. Col. Burns responds only summarily to Defendants' arguments in this vein, stating that "the probative nature of the evidence is substantially outweighed by any prejudice to the Defendants, because the Hospital and Dr. Levy have shown no prejudice." Pl's Pretrial Stmt. Opp'n at 9. She does not address, in either her original Pretrial Objections or her Omnibus Opposition to Defendants' Motions in Limine, Defendants' arguments regarding the dangers of confusing or misleading the jury about the issues. Those arguments are therefore conceded. See Wannallv. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) ("[I]f a party files an opposition to a motion and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded."); see also Pretrial Scheduling and Procedures Order, ECF No. 92, at 5 ("Similarly, where a party fails to respond to arguments in opposition papers, the Court may treat those specific arguments as conceded. Phrasavang v. Deutsche Bank, 656 F.Supp.2d 196, 201 (D.D.C. 2009).").

         Despite this concession, the Court examines the parties' arguments at length below. As some of the discussions and rulings in this Memorandum Opinion will undoubtedly impact the parties' arguments and motions in limine, the Court focuses here on Defendants' objections under Rules 401 and 403. To the extent that Defendants' objections on other grounds are not mooted by the Court's determinations in this Memorandum Opinion and the accompanying Order, they are denied without prejudice to enable Defendants to consider whether they are still relevant and whether they want to raise them in relation to the revised Joint Pretrial Statement.

         i. Dr. Levy's Testimony in Exhibits A and B

         Defendants first challenge, as irrelevant or otherwise inadmissible, two portions of Dr. Levy's deposition testimony, which they attached to their Motion as Exhibits A and B. The Court disagrees that all the excerpted portions of Dr. Levy's testimony are now irrelevant. Most of the testimony is probative with respect to disputed issues specifically identified by the Court of Appeals in Burns II, such as the timing of Lt. Col. Burns's dismissal and whether Dr. Levy acted with malice. See, e.g., Burns II, 873 F.3d at 295 ("Whether the statement was false, and whether Hospital personnel knew or should have known of its falsity, is disputed on the present record.").

         Consider the testimony excerpted in Exhibit A. This discussion is relevant to at least two disputed issues identified by the Court of Appeals. For example, Dr. Levy discusses the timing of Lt. Col. Burns's dismissal, Defs.' Mot. to Exclude Certain Contract and Defamation Evid. Ex. A at 46-47, and the method by which he believed that he dismissed Lt. Col. Burns, id, both of which are probative when it comes to the timing dispute noted by the Court of Appeals. See Burns II, 873 F.3d at 296 ("Considering the University's stated intent to treat Lt. Col. Burns's withdrawal effective as of April 3, a reasonable jury could decide that Lt. Col. Burns terminated her University fellowship agreement on April 3 or December 11, and that either termination was prior to the Hospital's attempt to dismiss her.").

         What is more, the testimony sheds light on Dr. Levy's understanding of the fellowship structure and his knowledge of the underlying contracts. He explains that he knew he'd seen "documents evidencing Colonel Burns entering into a research fellowship with the university," Defs.' Mot. to Exclude Certain Contract and Defamation Evid. Ex. A at 50:16-51:7, but that he was not involved in the university fellowship negotiation process, id. Ex. A at 51:8-52:2. On the one hand, Dr. Levy's review or recollection of any such documents tends to make it more probable that he was aware that, if the University terminated its fellowship first, he and the Hospital lacked any authority to dismiss Lt. Col. Burns. On the other hand, Dr. Levy's noninvolvement in the university fellowship process and lack of memory as to the details of the university program tend to make it more probable that he did not have that knowledge. This testimony is therefore probative.

         The same is true of the deposition testimony excerpted in Exhibit B. In this testimony, Dr. Levy discusses his knowledge of Lt. Col. Burns's negotiated resignation from the university fellowship, see, e.g., Id. Ex. B at 65:7-66:7, and when he learned that the two fellowships were distinct, see, e.g., Id. Ex. B at 67:1-68:13; id. Ex. B at 70:14-71:3. These lines of testimony, along with others in this portion, similarly relate to Dr. Levy's mental state and knowledge of the underlying fellowship structure and contractual relationships. Accordingly, to the extent that the testimony about the fellowships challenged by Dr. Levy and the Hospital sheds light on the mental state of Dr. Levy or the Hospital in publishing the allegedly defamatory statements or the disputed issues identified by the Court of Appeals, the designated testimony is relevant.

         The probative value of Dr. Levy's testimony in Exhibits A and B, moreover, outweighs the risks of confusion and prejudice that Defendants claim will occur. It is true that, at times, the deposition transcript is difficult to follow. Counsel for Lt. Col. Burns did not make this any easier, as his questions sometimes appear argumentative or duplicative. See, e.g., Id. Ex. A at 47:17-19 ("Q. I don't want to say that. I don't think it's true. Do you think it's true?"). But, contrary to Defendants' assertions, much of the challenged deposition testimony speaks directly to Dr. Levy's understanding of the fellowships' formal structure and other disputed issues. His answers regarding when he found out about the distinct nature of the two fellowships, see, e.g., Id. Ex. B at 70:14-71:3, for instance, explicitly relates to the disputed timing issue that the Court of Appeals discussed.

         Overall, there is a close nexus between this testimony and the mental state of Dr. Levy and other Hospital personnel, Dr. Levy's knowledge of Lt. Col. Burns's negotiated withdrawal, and Dr. Levy and the Hospital's understanding of the contractual rights underpinning the fellowships- all of which are issues that directly bear on Lt. Col. Burns's remaining defamation claims. As a result, the majority of this testimony is highly probative and the Court cannot say that its probative value is substantially outweighed by the danger of misleading the jury, confusing the issues, or prejudicing Defendants. The Court accordingly denies the Hospital and Dr. Levy's Motion as to the majority of the testimony.

         There are two exceptions, however. In Exhibit A, there comes a point when the questioning becomes argumentative and duplicative and consequently poses a substantial risk of confusion. This begins when counsel for Lt. Col. Burns asks, "Dr. Levy, don't you have them mixed up?" Id. Ex. A at 51:18. From that point forward, counsel questions Dr. Levy about whether he was confused in his description of the fellowships, which Dr. Levy denies. Id. at 51:18-52:22. Even if this testimony is slightly probative, the Court agrees with Defendants that this prolonged back-and-forth poses a significant risk of confusing the issues or misleading the jury, which substantially outweighs its slight probative value. The Court grants Defendant's Motion as to this testimony in lines 51:18 through 52:22.

         There is a similar turning point in Exhibit B. The line of questioning beginning on page 71, line 7 and ending on page 73, line 22, is substantially more likely to confuse the issues than it is probative. In fact, it is unclear how this testimony sheds light on any of the previously discussed disputed issues. Counsel for Lt. Col. Burns and Dr. Levy primarily retread ground about the terminology of the two fellowships and about the structure of the university fellowship. See, e.g., Id. Ex. B at 71:18-72:20. Even if this testimony were probative, however, most of it appears calculated toward building Lt. Col. Burns's original contract claims. As a result, it poses a danger of confusing the issues or misleading the jury that substantially outweighs its potential probative value. The Court grants Defendant's Motion as to this testimony in lines 71:7 through 73:22.

         ii. Other Testimony

         Dr. Levy and the Hospital also challenge other proposed testimony regarding Lt. Col. Burns's recruitment, expectations for the fellowship, and the nature of the fellowship and whether it complied with certain standards. This includes Exhibit C attached to Defendants' Motion in Limine, which is an excerpted portion of Dr. Levy's deposition testimony, as well as the testimony of numerous other witnesses. See Defs.' Mot. to Exclude Certain Contract and Defamation Evid. at 7-10. Before considering each portion of challenged testimony, the Court first discusses considerations common to all of them in light of Lt. Col. Burns's contentions. Lt. Col. Burns argues that all this challenged testimony goes to the mental state of Dr. Levy and the Hospital. See Pl's Pretrial Stmt. Opp'n at 7-8. Under her theory, this testimony presents circumstances demonstrating that "Dr. Levy was poorly trained, did not follow procedures typical of such a program, and was operating a 'rogue' clinical program," which supports that "Dr. Levy acted with malice." Id. at 8-9.

         In the context of the common interest privilege, malice is "the equivalent of bad faith." Moss v. Stockard, 580 A.2d 1011, 1025 (D.C. 1990). "Malice is defined as 'the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will.'" Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 859 (D.C. Cir. 2006) (quoting Moss, 580 A.2d at 1025). "But even a showing of ill will does not 'forfeit the privilege so long as the primary purpose is to further the interest which is entitled to protection.'" Id. (quoting Columbia First Bank, 665 A.2d at 656).

         While it is true that malice can be inferred from the circumstances, see Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 291 (D.C. 1977), Lt. Col. Burns's proposed nexus between the allegedly "disorganized nature" of the "rogue program" and Dr. Levy's alleged malice is nebulous at best. To begin with, she claims that evidence that the Hospital and Dr. Levy "did not follow proper procedures is relevant in determining malice." Pl's Pretrial Stmt. Opp'n at 8. Lt. Col. Burns relies here on Columbia First Bank v. Ferguson, 665 A.2d 650 (D.C. 1995), which she contends stands for the analogous proposition that following procedures can undercut a showing of malice. In Columbia First Bank, the District of Columbia Court of Appeals found that a bank employee's actions did not rise to the level of malice in part because she viewed her actions as complying with a federal regulation that required the bank to notify law enforcement of certain suspicious activities. Id. at 655-56. In that sense, that the employee and bank were thorough and followed the relevant reporting procedures, such as by spending significant time on drafting and investigating the report, demonstrated that the "primary motive" in reporting the suspicious behavior at issue was "to fulfill what she [the employee] perceived to be her official duties," and not malice. Id. at 656-57.

         In certain contexts, then, adherence to procedures relevant to publication of the allegedly defamatory statement can certainly undercut a showing of malice. See, e.g., Mastro, 447 F.3d at 859 ("The primary purpose behind management's publication of the memoranda was not to sully Mastro's reputation, but to document the events leading to Mastro's dismissal, in conformance with company policy and applicable law."); Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1315-16 (D.C. 1977) (rejecting argument that defendant sent notice of repossession with malice based on its alleged "fail[ure] to comply with the proper procedures" in part because it was required by company policy and "standard procedure to notify the local credit bureau of a respossession"). And sometimes the opposite may be true: failing to adhere to procedures relevant to the statement's publication might, in some circumstances, tend to show that malice was a motivating factor.

         This does not mean, however, that the program's adherence or nonadherence to procedures more generally-outside of the dismissal or publication context-is probative. Notably, Lt. Col. Burns does not appear to argue that the procedures mentioned actually applied to the fellowship. See, e.g., Pl's Pretrial Stmt. Opp'n at 8 (describing them as "procedures typical of such a program"); Joint Pretrial Stmt, at 12 (discussing testimony about how fellowship ran "outside the University norms for fellowships"). This is a stark difference from Columbia First Bank, in which the bank had clear obligations under federal law, and from other cases in which the defendants had applicable policies and standards. If Dr. Levy or the Hospital had no obligation to follow the guidelines at issue, any noncompliance does little-if anything-to suggest that they had the requisite relevant mental state when publishing the allegedly defamatory statements.

         In fact, much of the testimony that Lt. Col. Burns wants to introduce appears unrelated to what was at issue in Columbia First Bank and other cases, which were the procedures used to investigate and publish the allegedly defamatory statements. See Columbia First Bank, 665 A.2d at 656-57; Mastro, 447 F.3d at 859; Ford Motor Credit, 367 A.2d at 1315-16. The analogous situation here is the method by which Dr. Levy and the Hospital dismissed Lt. Col. Burns and communicated their statements to the Air Force. Most of the evidence that Defendants move to exclude, however, has nothing to do with that publication or even Lt. Col. Burns's dismissal. For instance, Lt. Col. Burns wants to introduce testimony regarding her own "expectations of the fellowship," the "recruitment" of Lt. Col. Burns and "the disorganized nature of the fellowship," the University's lack of knowledge about the fellowship and how the fellowship "operat[ed] outside the University norms for fellowships," counseling of Dr. Levy "on the procedures of progressive discipline" with respect to Lt. Col. Burns, and the "Air Force's expectations of the program." See Joint Pretrial Stmt, at 8-20. It is unclear how this testimony connects to her claims at all. Lt. Col. Burns's theory is that all this testimony is relevant because Dr. Levy had a motive to "cover up his mistake" of "firing Lt. Col. Lt. Col. Burns without any due process or documentation," which goes to whether he had malice. Pl's Pretrial Stmt. Opp'n at 9.

         Lt. Col. Burns provides no further legal support for her theory, and the theory's application does not withstand much scrutiny. First, much of the challenged testimony does not even appear to be connected to Lt. Col. Burns's theory. For example, her recruitment, her expectations for the fellowship, and the Air Force's expectations for the fellowship shed no light on the mental state possessed by Dr. Levy or other Hospital personnel. They do not tend to make it more or less likely that Dr. Levy acted with negligence, intent, or malice one way or the other and, as a result, are not probative or relevant. Nor does Lt. Col. Burns explain how these lines of testimony in particular work within her theory. And second, most of the actions that Dr. Levy took during the fellowship are attenuated from the actual publication, and numerous steps are required to connect his actions with the ultimate publication. This casts significant doubt on the probative value of the majority of this testimony.

         Even if this challenged testimony were probative under Lt. Col. Burns's theory, Defendants argue, its probative value would be substantially outweighed by the dangers posed of confusing the issues, misleading the jury, or unfair prejudice. As previously noted, while Lt. Col. Burns contests that this testimony would be prejudicial, she has conceded the arguments that it would pose a significant risk of confusing the issues or misleading to the jury. Still, for the sake of thoroughness and clarity, the Court now applies the above generally applicable considerations to specific categories of proposed testimony.

         (a) Excerpts of Dr. Levy's deposition testimony in Exhibit C to Defendants' Motion in Limine.

         Defendants challenge four different sections of this excerpt. The first and fourth segments to which Defendants object are two lines of questioning in which counsel for Lt. Col. Burns questions Dr. Levy about Padmore's knowledge of any intermediate formative assessments completed for Lt. Col. Burns. Defs.' Mot. to Exclude Certain Contract and Defamation Evid. at 7; id. Ex. C at 147:11-15; id. Ex. C at 151:4-16. The first portion appears to concern formative assessments required by the Accreditation Council for Graduate Medical Education ("ACGME") standards, which, as noted above, Lt. Col. Burns does not necessarily argue even apply here. Id. Ex. C at 147:11-15. The same is true of the second discussion. See, e.g., Id. Ex. C at 151:4-9 ("Do you know now, Dr. Levy, that the preparation of a summative assessment, according to ACGME guidelines . . . ."). These standards were directly intertwined with Lt. Col. Burns's dismissed contract claims. As previously explained, introducing such arguments would pose a substantial danger that the jury would be confused or misled about the issues. For these reasons, the Court agrees with Defendants that this testimony is irrelevant and that, even if it were not, the danger of confusing or misleading the jury would substantially outweigh its probative value. Accordingly, the Court grants Defendants' Motion as to this testimony.

         The second and third challenges are to several lines of questioning on page 149 of the transcript. Defs.' Mot. to Exclude Certain Contract and Defamation Evid. at 7-8. In the first exchange, Lt. Col. Burns's counsel questions Dr. Levy on the Air Force's expectations and intentions with respect to the fellowship. Id. Ex. C at 149:4-13. As previously explained, Lt. Col. Burns has not provided any reason why the Air Force's expectations are relevant, and there is no clear connection between those expectations and her defamation claims. These lines should therefore be excluded as irrelevant and because their potential to confuse or mislead the jury substantially outweighs any potential probative value. The Court therefore grants Defendants' Motion as to this testimony.

         Subsequently, counsel for Lt. Col. Burns questions Dr. Levy about the summative assessment:

Q. Do you regret what you wrote in the summative assessment?
A. No.
Q. Would you do it again?
A. Would I do the same thing again?
Q. Yeah.
A. Yes.

Id. Ex. C at 149:14-20. The Hospital and Dr. Levy advance the same arguments for these lines. The Court agrees that it is unclear how these lines are probative, as whether Dr. Levy regrets his actions does not necessarily make it more or less likely that he had the requisite mental state. Moreover, even if they were probative, that probative value would be outweighed by the possibility of confusing the issues, misleading the jury, or prejudice to Defendants. The Court therefore grants Defendants' Motion to exclude these lines as well.

         (b) Testimony regarding Lt. Col. Burns's recruitment her expectations for the fellowship, and the Air Force's expectations for the fellowship.

         The Hospital and Dr. Levy challenge portions of proposed testimony by Lt. Col. Burns herself, Dr. Ana Caskin, and Dr. Thomas Grau regarding Lt. Col. Burns's recruitment, her expectations for the fellowship, and the Air Force's expectations for the fellowship. See Defs.' Mot. to Exclude Certain Contract and Defamation Evid. at 9. As explained above, this testimony is not probative. Lt. Col. Burns fails to explain how this testimony in particular tends to make it more likely (or not) that Dr. Levy had the mental states that she alleges or how it relates to her current defamation claims at all. Nor is there a clear connection between this testimony and her claims. Even if this testimony were probative, however, presenting testimony about the parties' expectations and whether the fellowship lived up to those expectations would pose a strong risk of misleading the jury and confusing the issues, especially as Lt. Col. Burns's contract claims primarily relating to those arguments have been dismissed. Accordingly, the Court grants Defendants' Motion as to this testimony.

         (c) Testimony regarding the nature of the fellowship and compliance with internal or external standards.

         Defendants also challenge proposed testimony by several non-expert witnesses regarding the "disorganized nature of the fellowship" and whether the fellowship (including its feedback and dismissal procedures) complied with University norms or ACGME standards. This appears to include testimony from Dr. Caskin, Dr. Crooke, Jamie Padmore, and Dana Saxton. See Id. at 9-10. For the reasons explained in more depth above, this testimony generally does not have probative value with respect to Dr. Levy's mental state.

         Lt. Col. Burns has not responded to the Hospital and Dr. Levy's arguments that introducing this testimony would pose a substantial risk of confusing or misleading the jury. The danger of confusing the issues or misleading the jury by introducing this evidence, however, is substantial. This is especially the case because Lt. Col. Burns's contract claims, which were in part premised on "due process" arguments that drew on the same facts, have been dismissed. Her phrasing of this proposed testimony uses similar terms such as "University norms." See, e.g., Joint Pretrial Stmt, at 12, 16. A jury could easily think that whether the program or Dr. Levy complied with norms or standards is a distinct issue, rather than a collateral issue that might minimally shed light on the Defendants' mental state. The Court therefore grants Defendants' Motion as to this testimony.[7]

         (d) Testimony regarding Dr. Levy's conduct toward Lt. Col. Burns during the fellowship and Burn's ...


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