Burns v. Levy

373 F. Supp. 3d 149
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 14, 2019
DocketCivil Action No. 13-898 (CKK)
StatusPublished
Cited by1 cases

This text of 373 F. Supp. 3d 149 (Burns v. Levy) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. Levy, 373 F. Supp. 3d 149 (D.C. Cir. 2019).

Opinion

COLLEEN KOLLAR-KOTELLY, United States District Judge

Defendants Matthew D. Levy and Medstar Georgetown University Hospital (the "Hospital")2 invoke the peer review privilege in this jurisdiction to shield themselves from Plaintiff Antoinette Burns' claim of negligent defamation.3 Because the Court finds that the United States Air Force entities to which Defendants provided certain information about Plaintiff do not qualify as "peer review bodies" under the relevant statute, that privilege is not available to Defendants.

Upon consideration of the briefing,4 the relevant legal authorities, and the record *151as a whole, the Court DENIES Defendants' [86] Joint Motion for Partial Summary Judgment as to the Applicability of the District of Columbia Peer Review Act to Plaintiff's Counts of Defamation. Plaintiff's negligent defamation claim must continue to trial along with her other remaining claim of intentional defamation.

I. BACKGROUND

A. Factual Background

The Court examined the facts of this case in its prior summary judgment ruling, to which it refers the reader. See Mem. Op. at 3-12, Burns v. Georgetown Univ. Med. Ctr. , Civil Action No. 13-898 (CKK), 2016 WL 4275585, at *2-*6 (D.D.C. Aug. 12, 2016) ("Burns I "), ECF No. 81. Here the Court focuses on those undisputed facts that are pertinent to the pending motion.

Plaintiff served as a pediatrician in the United States Air Force, specifically working for the United States Air Force Medical Service ("AFMS"). Defs. Medstar Georgetown University Hospital's and Matthew D. Levy, M.D.'s Stmt. of Material Facts as to Which There Is No Material Dispute in Supp. of Their Mot. for Partial Summ. J., ECF No. 86-2 ("Defs.' Stmt."), ¶¶ 1, 2. As part of her military service, Plaintiff began pursuing a specialized pediatric fellowship at the Hospital in August 2011. See id. ¶ 3; Pl.'s Stmt. of Disputed Material Facts and Additional Material Facts Not in Dispute, ECF No. 87-1 ("Pl.'s Stmt."), ¶¶ 18, 19, 33.

For reasons beyond the scope of this opinion, Plaintiff's participation prematurely terminated in April 2012. Pl.'s Stmt. ¶ 72. The Court need not address distinctions between the termination-related activities of the Hospital and Georgetown University Medical Center (the "University"), certain of which constitute a lingering contested issue. See infra Part I.B. In any case, also in April 2012, Defendant Levy, the Medical Director for Community Pediatrics, and Jamie S. Padmore, Vice President, Academic Affairs, Medstar Health, Inc., had a discussion about Plaintiff with two Air Force officials, including Colonel Thomas Grau, M.D., then-chief of the Physician Education Branch of AFMS. Defs.' Stmt. ¶ 5; Pl.'s Stmt. ¶¶ 38, 69. Col. Grau requested an evaluation of Plaintiff using a certain rubric. Defs.' Stmt. ¶ 5. His successor, Colonel Michael Tankersley, M.D., reiterated that request by email in December 2012 and January 2013. Id. ¶¶ 7, 11. By January 2013, the Air Force Centralized Credentialing Verification Office ("AFCCVO") had also sent a request for certain information, which Col. Tankersley took the opportunity to reinforce in his communication that month. Id. ¶¶ 10, 11.

B. Procedural Posture

In this lawsuit, Plaintiff pursued contract-based claims, defamation claims, and a claim of intentional interference with prospective economic advantage against a combination of the Hospital, the University, and Levy. 2d Am. Compl., No. 26. The Court granted summary judgment for all three Defendants as to all claims and dismissed Plaintiff's case. Burns I, Civil Action No. 13-898 (CKK), 2016 WL 4275585. On appeal, the D.C. Circuit affirmed dismissal *152of all but the defamation claims, as to which it reversed and remanded to this Court for certain further determinations. Burns v. Levy, 873 F.3d 289 (D.C. Cir. 2017) ("Burns II ").

Upon remand, this Court determined that one of the lingering issues-whether the Hospital or the University was first to terminate Plaintiff-could not be resolved by further summary judgment briefing, based on the D.C. Circuit's characterization of the record. Scheduling and Procedures Order, ECF No. 85, at 1-2 (citing Burns II , 873 F.3d at 292, 295 ) ). The Court reserved that issue for trial. Id. at 2. The other issue-the applicability of the District of Columbia's Health Care Peer Review Act-is the subject of the present briefing. See id. at 1.

II. LEGAL STANDARD

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Id. Accordingly, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

A party attempting to place a fact beyond dispute, or to show that it is truly disputed, must (a) rely on specific parts of the record, such as documentary evidence or sworn statements, or (b) "show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S.

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373 F. Supp. 3d 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-levy-cadc-2019.