                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



NICOLE PAXTON, Individually, and as
P.R. of the Estate of Gerald Metheny,
Deceased,

        Plaintiff,
               v.                                         Civil Action No. 13-111 (JEB)
WASHINGTON HOSPITAL CENTER
CORPORATION, et al.,

        Defendants.


                                  MEMORANDUM OPINION

        Plaintiff Nicole Paxton is the daughter of Gerald Metheny, a Virginia resident who died

shortly after a surgical procedure at The Washington Hospital Center here in the District of

Columbia. Individually, and on behalf of Metheny’s estate, she has brought this diversity action

against WHC and the doctor who performed the surgery, Steven Boyce, alleging that her father’s

death was due to their negligence. In the midst of discovery, the parties now seek the Court’s

determination of a choice-of-law issue. Plaintiff’s present Motion asks the Court to apply

Virginia, rather than District of Columbia, law to damages for solatium – i.e., grief or distress –

in her first count for wrongful death against WHC. She does so because the District does not

recognize this category of damages. The Court, however, pursuant to well-settled District of

Columbia choice-of-law principles, finds that such damages are not available here.

   I.      Background

        As most of the Amended Complaint’s factual allegations relevant to this Motion –

excluding, of course, any claim of negligence – appear to be undisputed by Defendants, the


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Court will begin there. On May 19, 2011, Gerald Metheny, who lived in Virginia, underwent

surgery at WHC in Washington. See Am. Compl., ¶¶ 1, 10. Plaintiff alleges that, during the

surgery, Dr. Boyce perforated one of Metheny’s blood vessels, which caused bleeding that was,

at least initially, undetected. Id., ¶ 12. Several hours later, Metheny was returned to surgery in

the doctor’s attempt to remedy the error. Id., ¶¶ 16-18. Plaintiff claims Metheny suffered “an

anoxic brain injury as a result of the . . . first surgery . . . .” Id., ¶ 19. He ultimately died on May

30 at WHC of a hemorrhagic attack, having left the hospital only for “several post-operative

sedation ‘holidays.’” Id., ¶¶ 19, 20; Opp., Exh. 4 (Death Certificate).

        On January 25, 2013, Plaintiff filed this suit against WHC and Boyce, alleging that

Metheny’s death was the direct result of their malpractice. Plaintiff seeks damages against WHC

under District of Columbia law for “funeral expenses, medical bills, pecuniary loss, emotional

distress, loss of society, care, assistance, advice, and consortium . . . .” Am. Compl., ¶ 22.

Plaintiff also seeks damages against WHC under Virginia law “for the grief suffered by

[Metheny’s] surviving wife.” Id. Plaintiff contends that the Court should apply Virginia law to

the grief claim because “both [Metheny] and his wife . . . were domiciled in . . . Virginia.” Id.

While discovery was ongoing, the parties indicated at a status conference that they wished the

Court to rule on a choice-of-law issue, and the Court permitted briefing.

        In her initial brief, Plaintiff asked the Court “to apply Virginia law with respect to loss of

consortium as the marital relationship resided in Virginia.” See Mot. at 1. As Defendant pointed

out in its Opposition and Plaintiff later admitted in her Reply, however, Virginia does not

recognize loss-of-consortium claims. See Opp. at 12-14; Reply at 2-4. In her Reply, Plaintiff

claimed that she had been “us[ing] the term Consortium to refer to Solatium” and was really

referring to solatium damages the whole time. See Reply at 2. Once Plaintiff and Defendant



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were on the same page as to what type of damages were being sought – that is, solatium, not loss

of consortium – the Court allowed additional briefing to flesh out the issue. See Minute Orders

of August 26 & 30, 2013 (granting permission for Surreply and Reply to Surreply). The Court,

therefore, will treat Plaintiff’s Motion as one seeking the application of Virginia law to the

solatium damages.

      II.      Legal Standard

            Federal courts sitting in diversity jurisdiction must apply the substantive law of the state

in which they sit. See Van Dusen v. Barrack, 376 U.S. 612, 637 (1964) (internal quotation

marks and citation omitted); Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Choice of law is

a substantive issue under Erie. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97

(1941). This Court must therefore apply the District of Columbia’s choice-of-law rules.

            The District of Columbia “use[s a] ‘governmental interests’ analysis, under which [it]

evaluate[s] the governmental policies underlying the applicable laws and determine[s] which

jurisdiction's policy would be more advanced by the application of its law to the facts of the case

under review.” District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995) (quoting

Hercules & Co. v. Shama Restaurant, 566 A.2d 31, 40-41 (D.C. 1989)). In performing this

analysis, District of Columbia courts “also consider the four factors enumerated in the

Restatement (Second) of Conflict of Laws § 145.” Id. These are:

                   a) the place where the injury occurred;
                   b) the place where the conduct causing the injury occurred;
                   c) the domicile, residence, nationality, place of incorporation and
                   place of business of the parties; and
                   d) the place where the relationship . . . between the parties is
                   centered.
Id.




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           District of Columbia courts, moreover, need not decide all issues under a single

jurisdiction’s law. See Logan v. Providence Hosp., Inc., 778 A.2d 275, 280 (D.C. 2001).

“[D]ifferent law may apply to different issues in a lawsuit.” Id.

    III.      Analysis

           To determine which state’s laws apply to Plaintiff’s solatium claim, the Court will first

consider the policies underlying the District of Columbia’s and Virginia’s wrongful-death laws

and then consider the four Restatement factors.

           A. Governmental Policies

                  1. District of Columbia’s Interests

           Solatium compensates “for the mental anguish, bereavement and grief that those with a

close personal relationship to a decedent experience as the result of the decedent's death, as well

as the harm caused by the loss of the decedent[’s] society and comfort.” Belkin v. Islamic

Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009) (citing Dammarell v. Islamic Republic of

Iran, 281 F. Supp. 2d 105, 196-97 (D.D.C. 2003); Elahi v. Islamic Republic of Iran, 124 F. Supp.

2d 97, 110 (D.D.C. 2000)). As Plaintiff admits, “The District of Columbia does not recognize

claims for Solatium” under its wrongful-death act. Reply at 3; see Runyon v. District of

Columbia, 463 F.2d 1319, 1322 (D.C. Cir. 1972) (D.C. Wrongful Death Act does not allow

compensation for grief).

           This expresses a policy preference of the District of Columbia not to allow solatium

damages for deaths occurring here. In an analgous context, the District of Columbia Court of

Appeals has enforced a similar preference. The DCCA, recognizing that the District of

Columbia does not have a damages cap on liability for malpractice actions, reasoned that “[t]he

District has a significant interest . . . in holding its corporations liable for the full extent of the



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negligence attributable to them.” Kaiser-Georgetown Cmty. Health Plan, Inc. v. Stutsman

(Stutsman I), 491 A.2d 502, 509-10 (D.C. 1985). Likewise, the District’s prohibition of solatium

damages should be taken to mean that it has a similarly strong interest in shielding its residents

and corporations from this type of liability. Cf. Packer v. Kaiser Found. Health, 728 F. Supp. 8,

10-11 (D.D.C. 1989) (“This Court does not deny that the District of Columbia has some interest

in curtailing negligence attributable to its residents.”).

        Plaintiff nonetheless rejoins that “it is settled law that courts applying District of

Columbia choice of law rules follow the substantive law of the state where marriage is domiciled

to loss of consortium claims.” Mot. at 7. Although Plaintiff admits in her Reply that what she

actually means is solatium, not consortium, see Reply at 2-4, she still seeks to have the Court

extend the loss-of-consortium rationale to solatium claims. Such extension is not warranted.

        In loss-of-consortium claims, as “the claimed injury is to the marriage” itself, Felch v.

Air Florida, Inc., 562 F. Supp. 383, 386 (D.D.C. 1983) (internal quotation marks and citation

omitted), “the District of Columbia applies the law of the state where the marriage is domiciled.”

Long v. Sears Roebuck & Co., 877 F. Supp. 8, 13 (D.D.C. 1995). This is because that state has a

significant governmental interest “in regulating the legal rights of [its] married couples.”

Stutsman v. Kaiser Found. Health Plan (Stutsman II), 546 A.2d 367, 376 (D.C. 1988). In

solatium claims, however, the injury is not to the marriage itself. Although Plaintiff apparently

limits her solatium claim to grief suffered by Metheny’s wife, her allegation that the “issue[]

relate[s] to the marital relationship,” Reply at 6, is belied by the very law Plaintiff is asking this

Court to apply – namely, the law of Virginia. In Virginia, solatium damages are available to “the

surviving spouse, children of the deceased and children of any deceased child of the deceased[,] .

. . the parents, brothers and sisters of the deceased, and to any other relative who is primarily



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dependent on the decedent for support or services and is also a member of the same household as

the decedent . . . .” Va. Code Ann. § 8.01-53. Because solatium damages are available to people

outside of the marital relationship, these damages – unlike ones for loss of consortium – are not

based on an injury to the marriage itself. As a result, the loss-of-consortium precedent does not

apply.

         Seemingly recognizing that her consortium parallel is unavailing, in her Reply to

Defendant’s Surreply, Plaintiff places all of her eggs in one basket: the reasoning in Judge Royce

Lamberth’s opinion in Burton v. United States, 668 F. Supp. 2d 86 (D.D.C. 2009). See Reply to

Surreply at 2 (“primary issue . . . is whether Judge Lamberth’s opinion in Burton . . . should be

followed”). In that case, Judge Lamberth did authorize the application of Maryland law to

certain damages in a wrongful-death case. See id. at 111, 113. Yet, as a preliminary matter, it is

unclear whether the Court was referring to solatium or consortium damages in Burton. While it

uses only the term “consortium” in the Opinion, the Court’s description of the type of losses it

was awarding damages for points to solatium. See id. at 113 (referring to consortium damages

as, inter alia, mental anguish, emotional pain and suffering, and companionship). In its Pretrial

Order holding that Maryland law would be applied to the “consortium” claim, however, the

Court’s reasoning was based entirely on the fact that “the injury to the marital relationship

occurred in Maryland.” See Pretrial Order of March 6, 2009, Burton v. United States, No. 05-

2214. As discussed above, this type of reasoning only applies to consortium damages. As a

result, Burton, even if it were binding precedent, does not carry the day for Plaintiff. In sum,

therefore, the District does not have a strong interest in permitting foreign law to govern solatium

claims here.




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                  2. Virginia’s Interests

           While the Court concededly must apply the District of Columbia’s choice-of-law rules to

this case, it finds Virginia’s choice-of-law rules telling as to that state’s interest. Contrary to

Plaintiff’s assertion, see Reply at 2, the law Virginia would apply if this case were brought there

is relevant because it helps this Court determine what Virginia courts believe Virginia’s

governmental interest is. See Stutsman II, 546 A.2d at 375 (“[I]f, to the detriment of one of its

own residents, Maryland would not assert its interest and disregard the [foreign] damage

limitation, the District of Columbia courts should not do so.”) (citing Tramontana v. S. A.

Empresa De Viacao Aerea Rio Grandense, 350 F.2d 468, 475 (D.C. Cir. 1965)). Virginia

choice-of-law rules would apply the law of the place where the injury occurred to any solatium

claim. See Betts v. S. Ry. Co., 71 F.2d 787, 789 (4th Cir. 1934) (“In the first place, there is no

question but that all matters pertaining to the substantive right of recovery under a wrongful

death statute, including the right to recover, the nature of the right, and the party in whom it is

vested, are governed by the law of the state where the injury resulting in death occurred.”); Jones

v. R.S. Jones & Associates, Inc., 431 S.E. 2d 33, 34 (Va. 1993) (applying lex loci delicti, or

“place of the wrong,” standard). If this case had been brought in Virginia, therefore, that state’s

courts would have applied the District of Columbia’s law on solatium, which denies any such

recovery. Even though Virginia does permit solatium damages, the fact that it would not apply

its own law on solatium had the case been filed there means that the Court cannot find that

Virginia has a significant governmental interest in the solatium claim.

           This does not end the analysis, however, since the Court must also determine which

jurisdiction has the most significant relationship to the dispute using the four Restatement

factors.



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       B. Restatement Factors

       This inquiry need not detain us long. To repeat, the four Restatement factors look at the

place of injury, the place of conduct causing injury, the domicile or place of business of the

parties, and the place the parties’ relationship is centered. See Restatement (Second) of Conflict

of Laws § 145. These clearly tip in favor of application of District of Columbia law. First, the

injury occurred here. Second, the conduct that allegedly caused the injury – the surgery – also

occurred here. The third factor is the only equivocal one: Metheny was domiciled in Virginia

and Plaintiff is currently domiciled there, while Defendant’s place of business is in Washington.

Fourth, the hospital-patient relationship was centered here. As all but the third strongly dictate

application of D.C. law, the Restatement factors add great weight to the prior analysis.

                                             *   *    *

       The District of Columbia prohibits solatium damages, while Virginia would not even

apply its own law to allow those damages if this case had been brought there. Because of these

considerations and the Restatement factors’ strong tilt towards the District of Columbia, the

Court concludes that the District is the “jurisdiction [whose] policy would be more advanced by

the application of its law to the facts of the case under review.” Coleman, 667 A.2d at 816

(internal quotation marks and citation omitted). It will, therefore, apply District of Columbia law

to Plaintiff’s solatium claim and deny this category of damages.




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   IV.      Conclusion

         For the foregoing reasons, the Court will issue a contemporaneous Order denying

Plaintiff’s Motion to apply Virginia law to her solatium claim.



                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: October 9, 2013




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