United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
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.
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
Memorandum Opinion considers six broad categories of issues
raised by the parties' pretrial briefing. First, upon
consideration of the relevant briefing,  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.
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. 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).
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. 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
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. 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.
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. 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.
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. 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.
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.
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
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).
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)).
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).
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).
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.
Defendants' Motion in Limine to Exclude Certain Contract
and Defamation Evidence
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.
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.
The Scope of the Mandate on Remand
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.
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
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).
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.
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.
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
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
The Effect of Dismissing Lt. Col. Burns's Contract
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
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
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.
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.
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).").
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.
Dr. Levy's Testimony in Exhibits A and B
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.").
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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
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.
Excerpts of Dr. Levy's deposition testimony in
Exhibit C to Defendants' Motion in Limine.
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.
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.
counsel for Lt. Col. Burns questions Dr. Levy about the
Q. Do you regret what you wrote in the summative assessment?
Q. Would you do it again?
A. Would I do the same thing again?
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.
Testimony regarding Lt. Col. Burns's recruitment her
expectations for the fellowship, and the Air Force's
expectations for the fellowship.
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.
Testimony regarding the nature of the fellowship and
compliance with internal or external standards.
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.
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.
Testimony regarding Dr. Levy's conduct toward Lt.
Col. Burns during the fellowship and Burn's ...