                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
JOHN PAULINE,                 )
                              )
          Plaintiff,          )
                              )
          v.                  )       Civil Action No. 08-1788 (RWR)
                              )
UNITED STATES OF AMERICA,     )
et al.,                       )
                              )
          Defendants.         )
_____________________________ )


                        MEMORANDUM ORDER

     Plaintiff John Pauline brings professional malpractice,

survival and wrongful death claims against the United States and

the Armed Forces Retirement Home (“AFRH”) (collectively, the

federal defendants), Dr. Pearson Sunderland, the Professional

Services of America (“PSA”), and Viola Johnson-Robinson.1    The

defendants move for summary judgment on all of Pauline’s claims

arguing that Pauline’s experts failed to identify a national

standard of care and show that national authorities support their

proposed national standard of care.

     For a medical malpractice negligence claim, D.C. courts have

required a plaintiff to show: 1) “the applicable standard of

care,” 2) “a deviation from that standard” and 3) “a causal



     1
      On February 22, 2011, Pauline dismissed under Federal Rule
of Civil Procedure 41(a) the claims against defendant Teamstaff
Government Solutions Inc.
                                - 2 -

relationship between the deviation and the injury.”     Hill v.

Medlantic Health Care Grp., 933 A.2d 314, 325 (D.C. 2007);

Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007).     In an action

for negligence, the plaintiff bears the burden of proving the

national standard of care by a preponderance of the evidence.

Cárdenas v. Muangman, 998 A.2d 303, 307 (D.C. 2010); see also

Frazza v. United States, 529 F. Supp. 2d 61, 69 (D.D.C. 2008)

(citing Varner v. District of Columbia, 891 A.2d 260, 265 (D.C.

2006)).    The D.C. Court of Appeals has “been demanding in

requiring proof of a national standard of care” and requires that

the plaintiff’s experts articulate a clear standard and how it

was violated by comparing specific standards with specific facts

alleged.    Clark v. District of Columbia, 708 A.2d 632, 634-35

(D.C. 1997).    The expert must also link the standard asserted by

the expert to national authorities or sources.    Id.

     Some courts have recognized that there is a lower standard

for an expert’s identification of a national standard of care

when considered at the summary judgment stage than when the

expert’s testimony is considered in the directed verdict context,

after the expert has testified.    See Liser v. Smith, 254 F. Supp.

2d 89, 103-04 (D.D.C. 2003); see also Robinson v. Washington

Metro. Area Transit Auth., 858 F. Supp. 2d 33, 41 n.7 (D.D.C.

2012) (quoting Varner, 891 A.2d at 270) (“This is a relevant

distinction because, although ‘the test for deciding a motion for
                                 - 3 -

summary judgment is essentially the same as that for a motion for

a directed verdict,’ . . . [the expert’s] testimony at trial,

when subjected to direct and cross-examination, will provide an

opportunity to resolve any ambiguity in [the expert’s]

statements.”); Dorn v. McTigue, 157 F. Supp. 2d 37, 44 (D.D.C.

2001) (“Unlike at trial, the plaintiff opposing a

summary-judgment motion does not have the burden of providing

persuasive evidence on every element of her case.    . . .   Thus,

the plaintiff has not yet had a full opportunity to prove what

the national standard of care is in this case.”).    Under this

analysis, the plaintiff’s experts must assert only “a colorable

basis to believe that [the expert’s] testimony may satisfy” the

standard for identifying the national standards of care and

linking an expert’s opinion to them.     Liser, 254 F. Supp. 2d at

103-04; see Dorn, 157 F. Supp. 2d at 44 (requiring the expert to

provide “a specific and articulated basis for his expert opinion

to survive summary judgment”).

     Pauline designated three expert witnesses for this

litigation: Barbara Darlington in nursing, Dr. Diane Mirabito in

social work and Dr. Harold Bursztajn in psychiatry.    Federal

Defs.’ Mot. for Summ. J., Ex. 7, Pl.’s Second Am. Expert

Designation ¶¶ 1-3.   Pauline’s opposition to the defendants’

summary judgment motion attaches and cites to supplemental

affidavits from two of their experts --    Darlington and
                                 - 4 -

Bursztajn.   Mem. of P. & A. in Supp. of Pl.’s Opp’n to Defs.’

Mots. for Summ. J., Exs. 1, 2.    These affidavits supplement the

experts’ reports and depositions produced during discovery and

discuss the bases for their expert opinions.   In particular, both

experts assert that they could refer to national authorities

supporting their opinions regarding the national standard of care

in this case.   Id., Darlington Aff. Ex. 1 at 2; id., Bursztajn

Aff. Ex. 2 at 6.   However, the plaintiff did not move for leave

to supplement discovery or seek to re-open discovery to

supplement the experts’ reports.    The defendants argue that these

opinions should not be considered because Federal Rule of Civil

Procedure 26(a)(2) requires the plaintiff’s experts to have

provided a complete statement of their opinions during discovery.

Federal Defs.’ Reply at 14-16.    That bar would limit the experts’

testimony at trial to the issues addressed in the experts’

reports and the experts’ deposition testimony.

     In order to facilitate the resolution of the summary

judgment motions, the parties will be directed to file

supplemental briefs regarding three issues.    First, the parties

shall identify the appropriate standard for identifying a

national standard of care at the summary judgment stage.    Second,

the parties shall discuss whether the plaintiffs’ supplemental

expert reports should be considered at this stage, and if so,

under what circumstances.   Third, the parties shall assess
                              - 5 -

whether the plaintiffs’ experts in all their submissions have

satisfied the standard for identifying a national standard of

care and showing that national authorities support their

testimony regarding the national standard of care.    Accordingly,

it is hereby

     ORDERED that the plaintiffs file a memorandum addressing

these issues by September 17, 2013.   It is further

     ORDERED that the defendants respond to the plaintiffs’

memorandum on these issues by October 1, 2013.

     SIGNED this 27th day of August, 2013.


                                        /s/
                               RICHARD W. ROBERTS
                               Chief Judge
