Doe v. United States of America ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN DOE,
Plaintiff,
v. Civil Action No. 10-0148 (JEB)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff John Doe worked as a scientist for Research Support Instruments (“RSI”), a
subsidiary of government contractor Physical Sciences, Inc. (“PSI”). During the course of an
experiment, he alleges, he was exposed to the pathogen causing Bovine Spongiform
Encephalopathy, commonly known as “mad-cow disease.” As a result, Plaintiff brings this pro
se action against RSI, PSI, and the United States seeking $15 million in damages for negligence,
intentional and negligent infliction of emotional distress, strict liability, and Constitutional torts
under the Fifth Amendment. RSI and PSI now jointly move to dismiss for failure to state a
claim, and PSI separately moves to dismiss for lack of personal jurisdiction. The Court agrees
that Plaintiff has failed to raise a cognizable issue, obviating any need to decide the jurisdictional
question. 1
I. Background
RSI provides engineering and scientific services to the Naval Research Laboratory
(“NRL”) in Washington, D.C. Plaintiff, who holds a Ph.D. in physics, was employed as a
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The Court has reviewed Defendants’ Motions, Plaintiff’s Opposition, and Defendants’ Reply.
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scientist at RSI between August 2006 and August 2008. Second Am. Compl. at 8. During this
period, Plaintiff worked “exclusively for NRL and on NRL site [sic],” where his job entailed
“developing a [research] method . . . .” Id.
Plaintiff alleges that, in March 2007, his supervisor “told [Plaintiff] about his intention to
involve in research [sic] on Mad-Cow disease in collaboration” with the National Veterinary
Services Laboratory (“NVSL”) in Ames, Iowa. Id. at 9. According to Plaintiff, “the plan was to
perform the same type of . . . measurements on Mad-Cow disease samples as [Plaintiff]
performed on [other materials] . . . to see if . . . [the] method can distinguish between brain tissue
infected with Mad-Cow disease and healthy brain tissue.” Id. Shortly thereafter, Plaintiff’s
supervisor allegedly gave him “an envelope . . . containing four [tissue] samples,” two of which
contained mad-cow disease and the other two contained healthy tissue. Id. Plaintiff claims that
when he asked his supervisor about “the risk and . . . safety procedures,” he was told “just not to
eat the samples.” Id.
Plaintiff alleges he performed the experiments on the samples as requested, and, upon
completion, he informed his supervisor that “the results of the experiment [] did not show any
difference between infected and not-infected [sic] samples . . . .” Id. at 10. At a subsequent
meeting, Plaintiff attempted to “justify his time [working on the experiments] and show the
results to the group leader,” but he was ignored by the group leader, who “conspicuously turned
his head away and changed the subject.” Id. Plaintiff was “puzzled by [this] behavior,” and
asserts it was at this time that he “[began] to realize something [was] wrong about the Mad-Cow
experiment.” Id.
Approximately two weeks later, Plaintiff met with the microbiologist of the research
group who was responsible for “the safe handling of biological materials.” Id. at 10-11. When
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Plaintiff explained that he had performed experiments on the mad-cow disease samples, the
microbiologist “answered right away in a somewhat scared voice: ‘if they find out, they are
going to close [the] lab.’” Id. at 11. Plaintiff surmised that “the Bio-safety commission at NRL
[had] never evaluated the experiment,” and as a result he had unwittingly taken part in a
“clandestine experiment” that was “not authorized.” Id. (emphasis in original). Furthermore,
during a group discussion on an unrelated matter a year later in March 2008, Plaintiff claims he
learned that “it was very likely that the [experiment] . . . sprayed pieces of mad-cow infected
tissue into the air.” Id.
Plaintiff concludes that he invariably would have “ingested and breathed such pieces of
infected tissue” because he conducted the experiment over a period of “eight hours in [a] small
room within five feet of the [mad-cow disease] samples.” Id. at 11-12. Upon seeking medical
advice about his alleged exposure to mad-cow disease, Plaintiff reports that he was told by an
infectious disease specialist that:
(1) [t]he disease is extremely rare and poorly understood; (2) [t]here is no
cure and no treatment for such disease . . . ; (3) [t]he disease[] [is] 100%
fatal, and the one year before death, when the symptoms appear, is brutal;
(4) [t]he incubation time . . . can be decades; (5) [t]here are no tests that can
be employed before the very last stage of the disease when the symptoms
appear . . . . The diagnosis is done at autopsy.
Id. at 13-14.
Plaintiff has brought this suit for negligence, intentional infliction of emotional distress,
negligent infliction of emotional distress, and an alleged violation of his rights under the Fifth
Amendment; he additionally seeks to hold Defendants strictly liable for engaging in abnormally
dangerous activity. Id. at 6, 20-51. Plaintiff demands $15 million in damages and injunctive
relief in the form of medical monitoring. Although the United States has answered, RSI and PSI
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have filed a Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(6) for failure to
state a claim and 12(b)(2) for lack of personal jurisdiction.
II. Legal Standard
To survive a motion to dismiss under Rule 12(b)(2), Plaintiff bears the burden of
“establishing a factual basis for the [Court’s] exercise of personal jurisdiction over the
defendant.” Crane v. New York Zoological Society, 894 F.2d 454, 456 (D.C. Cir. 1990) (citing
Reuber v. United States, 750 F.2d 1039, 1052 (D.C. Cir. 1984), rev’d on other grounds by
Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994)). To meet this
burden, Plaintiff “must allege specific facts connecting the defendant with the forum.” Capital
Bank Int’l Ltd. v. Citigroup, Inc., 276 F. Supp. 2d 72, 74 (D.D.C. 2003) (citing Second
Amendment Foundation v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)).
In determining whether a basis for personal jurisdiction exists, “factual discrepancies
appearing in the record must be resolved in favor of the plaintiff.” New York Zoological
Society, 894 F.2d at 456 (citing Reuber, 750 F.2d at 1052). Unlike with a motion to dismiss
under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding
whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a
claim upon which relief can be granted.” When the sufficiency of a complaint is challenged
under Rule 12(b)(6), the Court must “treat the complaint's factual allegations as true . . . and
must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’”
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v.
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United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome
Stevens Pharms. Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
The notice pleading rules are “not meant to impose a great burden on a plaintiff.” Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005). But while “detailed factual allegations” are
not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007), “a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(internal quotation omitted). The Court need not accept as true, however, “‘a legal conclusion
couched as a factual allegation,’” nor an inference unsupported by the facts set forth in the
Complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Plaintiff must put forth “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
Though a plaintiff may survive a 12(b)(6) motion even if “recovery is very remote and unlikely,”
Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts
alleged in the complaint “must be enough to raise a right to relief above the speculative level.”
Id. at 555.
III. Analysis
Defendants argue that, even if Plaintiff could make out the elements of the counts
alleged, all are barred by the District of Columbia’s Workers’ Compensation Act (“WCA”).
D.C. Code § 32-1501, et seq. The Court agrees.
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A. The WCA
Defendants correctly argue that the claims against RSI fall within the exclusive
parameters of the WCA. The statutory language is unambiguous in its directive that the WCA
encompasses all claims and remedies for workplace injuries against employers. See D.C. Code §
32-1504. Section 32-1504(a) expressly provides that “[t]he liability of an employer [under the
WCA] shall be exclusive and in place of all liability of such employer to the employee . . . on
account of [an alleged workplace injury].” (emphasis added). Moreover, § 32-1504(b) makes
clear that “[t]he compensation to which an employee is entitled under this chapter shall constitute
the employee’s exclusive remedy against the employer . . . for any illness[] [or] injury . . . arising
out of and in the course of his employment.” (emphasis added).
Courts in this District have interpreted the text of the WCA literally. See Vanzant v.
WMATA, 557 F. Supp. 2d 113, 117 (D.D.C. 2008) (“The WCA is the exclusive remedy for a
workplace injury.”); Legesse v. Rite Aid Corp., 2007 WL 1191827, at *2 (D.D.C. 2007) (“The
[WCA] is the exclusive remedy for individuals injured in the workplace . . . .”); Everson v.
Medlantic Healthcare Group, 414 F. Supp. 2d 77, 86 (D.D.C. 2006) (“The [WCA] provides the
exclusive remedy for any workplace injury . . . .”) (emphasis added). These holdings are entirely
consistent with the District of Columbia’s long-established “rule that there can be no separate
recovery [beyond the WCA] where the underlying injury is covered by the [WCA].” Tredway v.
District of Columbia, 403 A.2d 732, 735 (D.C. 1979). The WCA is typical among workers’
compensation statutes in both its exclusivity provisions and its breadth. Id. at 735 n.7 (noting
that relief provided by workers’ compensation legislation generally is a replacement for common
law benefits); see also Brown v. Curtis & Johnson, Inc., 117 F. Supp. 830, 831 (D.D.C. 1954)
(“The liability of the employer under the Act is exclusive,” and “[t]he very purpose of the
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[WCA] is to substitute [relief under the WCA] for the commonlaw [sic] cause of action for
damages.”); Hicks v. Allegheny East Conference Ass’n of Seventh-Day Adventists, Inc., 712
A.2d 1021, 1022 (D.C. 1998) (“In short, workers’ compensation is a substitute for any liability of
the employer to an employee who otherwise would be entitled to recover damages from such
employer at law on account of [an] injury or death suffered by the employee.”) (emphasis added)
(internal quotation marks omitted).
It is unsurprising, then, that the WCA preempts an employee’s suit against an employer
for common law tort claims arising during the course and scope of employment. See Dominion
Caisson Corp. v. Clark, 614 A.2d 529, 533 (D.C. 1992) (declaring that under workers’
compensation schemes, “the employer receives tort immunity,” and the employee “giv[es] up the
right to sue the employer”) (internal quotation marks omitted); Myco, Inc. v. Super Concrete
Co., 565 A.2d 293, 298 (D.C. 1989) (“[U]nder the exclusivity provision of the Act the employer
cannot be liable in tort to [an] employee for [an] injury . . . .”). It is equally well established that
the WCA “extends to claims for emotional distress or mental anguish where the underlying cause
or tort is covered by the WCA.” Legesse, 2007 WL 1191827, at *2 (citing Tredway, 403 A.2d at
735); see also Estate of Underwood v. National Credit Union Admin., 665 A.2d 621, 631 (D.C.
1995) (stating that “the trial court ordinarily will not have jurisdiction over [claims involving]
emotional distress . . . based on the acts of a supervisor or co-worker”); Tatum v. Hyatt Corp.
918 F. Supp. 5, 8 (D.D.C. 1994) (holding that common law tort claims for intentional infliction
of emotional distress are preempted by WCA).
Given this broad coverage, Plaintiff must rely on a narrow exception to the WCA. The
only workplace injuries falling outside the purview of the WCA are “‘injuries specifically
intended by the employer to be inflicted on the particular employee who is injured.’” Vanzant,
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557 F. Supp. 2d at 117 (quoting Clements v. Ace Cash Express, Inc., 2005 WL 1490005, *1
(D.D.C. 2005)). In other words, “the WCA specifically covers injuries that are the result of
willful and intentional conduct of . . . a fellow employee . . . so long as the employer did not
intend those parties’ actions.” Id. (emphasis in original); see also Tatum. 918 F. Supp. at 8(granting summary judgment to defendant because common law claims, including intentional
infliction of emotional distress, were predicated on actions of fellow employee, which employer
did not intend); Grillo v. Natl. Bank of Wash, 540 A.2d 743, 744 (D.C. 1988) (holding that “only
injuries specifically intended by the employer to be inflicted on the particular employee who is
injured fall outside of the exclusivity provisions of the WCA”).
Plaintiff cannot squeeze his claims into this exception. This is particularly so because the
relevant decisional law has narrowly interpreted it. Specific intent by the employer will not be
found even where an employer has knowledge to a “substantial certainty” that an injury will
result from an act. Clements, 2005 WL 1490005, at *1 n.3 (citing Grillo, 540 A.2d at 751).
Moreover, workplace injuries caused by the intentional acts of third parties demonstrate specific
intent on the part of an employer only where the employer and a third party conspired to injure
an employee. Id. (citing Grillo, 540 A.2d at 748); see also Rustin v. District of Columbia, 491
A.2d 496, 502 (D.C. 1985) (finding no proof of specific intent by employer).
Even accepting as true Plaintiff’s allegations that he unknowingly participated in a
“clandestine experiment,” Defendants’ argument is strengthened rather than weakened. Second
Am. Compl. at 11. Under this theory, Plaintiff’s coworkers purposefully bypassed established
safety protocol regarding the experiments with the intention of keeping their activities a secret.
If so, the experiment leading to his alleged exposure was carefully designed so that RSI would
never learn of it. RSI, it follows, cannot be said to have intended Plaintiff’s injury. It is thus
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clear from Plaintiff’s own assertions that RSI neither conspired with a third party to injure him,
nor possessed any degree of knowledge – much less knowledge to a substantial certainty – that
Plaintiff would be exposed to tissue infected with mad-cow disease.
Plaintiff’s invocation of Chung v. Lee, 852 F. Supp. 43 (D.D.C. 1994), and District of
Columbia v. Thompson, 570 A.2d 277, 286 (D.C. 1990), rev’d in part on other grounds, 593
A.2d 621 (1991), do not undercut Defendants’ position. These cases do not, as Plaintiff argues,
stand for the proposition that the WCA exempts an injured employee from its provisions where
the employee did not lose wages. Instead, Chung and Thompson merely illustrate the distinction
between an “injury” and a “disability” under the WCA: one can recover for disability under the
WCA only if the injury leading to the disability results in a loss of wages. See D.C. Code § 32-
1501(8). The cases nowhere suggest that all other forms of workplace injury without wage loss
are outside the scope of the Act.
In sum, Plaintiff “‘completely misconceives the purpose and function of [workers’
compensation laws]; the whole theory of . . . compensation legislation[] is to provide the injured
workman with certain and absolute benefits in lieu of All [sic] common law damages.’”
Tredway, 403 A.2d at 735 n.7 (quoting Haynes v. Rederi A/S Aladdin, 362 F.2d 345, 350 (5th
Cir. 1966)). Plaintiff’s claims against RSI are thus barred by the WCA’s explicit requirements.
B. Personal Jurisdiction Over PSI
PSI argues that the Court lacks personal jurisdiction over it, given that it is a
Massachusetts corporation with its principal place of business in Andover, Massachusetts. See
Motion at 4. Plaintiff responds that he can pierce PSI’s corporate veil or otherwise demonstrate
that RSI is merely the alter ego of PSI, thus making personal jurisdiction appropriate over PSI.
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The Court need not resolve this issue because, even if Plaintiff could satisfy the applicable veil-
piercing standard, all claims against PSI would then similarly be barred by the WCA.
It should be preliminarily noted that PSI misstates the test for veil-piercing under District
of Columbia law. See Defendants’ Reply at 7-8. It would certainly be to PSI’s benefit if courts
still required a showing that an entity “‘use[d] the corporate form to perpetrate fraud or wrong.’”
Id. (quoting Vuitch v. Furr, 482 A.2d 811, 815 (D.C. 1984)) (citing McAuliffe v. C. & K.
Builders, 142 A.2d 605, 607 (D.C. 1958)), but that is no longer the case. Indeed, this is the exact
point the Court in Vuitch made when it explicitly discarded the restrictive standard applied in
McAuliffe: “More recently, the court has held that considerations of justice and equity can
justify piercing the corporate veil and has rejected the contention that . . . there must be a
showing of fraud . . . .” 482 A.2d at 815. The core thrust of Vuitch is to explain how the veil-
piercing principle has evolved into a doctrine of equity under which “the decision to pierce will
be influenced by [many] considerations.” Id. at 816. The existence or nonexistence of fraud is
of course relevant to the inquiry, but “the factor [that] predominates will vary in each case.” Id.Properly enunciated, the veil-piercing doctrine requires “(1) unity of ownership and
interest [between the entities], and (2) [either] use of the corporate form to perpetrate fraud or
wrong, or other considerations of justice and equity justify it.” McWilliams Ballard, Inc. v.
Broadway Management Company, 636 F. Supp. 2d 1, 8 (D.D.C. 2009) (quoting Estate of
Raleigh v. Mitchell, 947 A.2d 464, 470 (D.C. 2008)) (citations and internal quotation marks
omitted). A commonly referenced, though not exhaustive, list of factors for determining when
veil-piercing is appropriate includes “‘(1) whether corporate formalities have been disregarded,
(2) whether corporate funds and assets have been extensively intermingled . . . , (3) inadequate
initial capitalization, and (4) fraudulent use of the corporation to protect [an entity] from the
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claims of creditors.’” McWilliams, 636 F. Supp. 2d at 8 (quoting Mitchell, 947 A.2d at 470-71(quoting Bingham v. Goldberg. Marchesano. Kohlman. Inc., 637 A.2d 81, 93 (D.C. 1994))). Far
from the rigid doctrine Defendants intimate, “the ultimate principle [of veil piercing] is one
permitting its use to avoid injustice.” United States v. Andrews, 146 F.3d 933, 940 (D.C. Cir.
1998) (internal quotation marks omitted).
Even under the appropriate veil-piercing test, it is not at all obvious that Plaintiff meets
his burden. For purposes of this Motion, however, the Court will consider Plaintiff’s allegations
in the light most favorable to him and assume he could pierce PSI’s corporate veil. Yet this
helps Plaintiff not at all. Whether RSI and PSI are or are not distinct corporate entities does not
affect Plaintiff’s ability to bring claims against an employer for an alleged workplace injury
sustained within the course and scope of his employment in the District of Columbia. The WCA
would still stand as an insuperable barrier. Whether it is due to a lack of personal jurisdiction or
because of the preemptive effect of the WCA, the conclusion must be the same: Plaintiff cannot
sue PSI in this Court.
IV. Conclusion
Because Plaintiff’s claims are barred by the WCA, the Court need not consider the other
defenses Defendants assert to particular counts. The Court, accordingly, will grant Defendants’
motion to dismiss. A separate Order accompanies this Memorandum Opinion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 15, 2011
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