                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA



CYRENA CHANG PAULIN,

                Plaintiff,

        v.                                      Civil Action No. 12-86 (GK)

THE GEORGE WASHINGTON
UNIVERSITY SCHOOL OF MEDICINE
AND HEALTH SCIENCES

                Defendant.


                                MEMORANDUM OPINION

        Cyrena    Chang   Paulin    ("Paulin"     or   "Plaintiff")         filed    this

action       against    The     George    Washington    University          School     of

Medicine and Health Sciences              ("the University" or "Defendant")

for     breach of contract        and breach of the          implied covenant of

good faith        and fair     dealing.   On September 26,          2013,     after an

eight-day trial, a seven-member jury returned a verdict in favor

of Defendant on both counts.

        On October 23, 2013, Plaintiff filed a Motion for New Trial

[Dkt.     No.    97].   Upon    consideration     of   the    Motion,       Opposition

[Dkt.     No.    98],   Reply    [Dkt.    No.   99],   and    the    entire     record

herein, and for the reasons stated below, Plaintiff's Motion for

New Trial shall be denied.
                         1
I .         BACKGROUND

            Paulin enrolled in the                   Physician Assistant degree                     program

    (" PA     program")         at         the     University           in     August        2007.      The

relationship between Paulin and the University was                                           governed by

the          School      of          Medicine            and     Health        Sciences         Bulletin

    ("Bulletin") .        Jt.        Ex.     1.     The        parties       agree     that     a     valid

contractual           relationship existed between them and was                                 governed

by the contents of the Bulletin.

            Paulin's     course of           study included Evidence                  Based Medicine

    ("EBM")    I, a course designed to teach students how to access and

analyze current medical research and literature in order to stay

up      to     date    with      developing              treatments.         Paulin    also     received

credit         for     EBM      II     and        III,     which     were      one-credit           courses

designed to be taken online during the students'                                       clinical year.

However, EBM II and III were never actually taught,                                      although all

the         students,        including            Paulin,        were    given        "A"s     on     their

transcripts for those two courses.

            By August of 2 010,              Paulin had completed every requirement

for         graduation       from     the        PA program except             the    final     clinical

rotation         and     the         program's           final     cumulative         exam.     She     was

removed from her final clinical rotation because of insufficient


1
   Unless otherwise noted, the facts set forth herein are drawn
from the evidence presented by the parties at trial.
                               -2-
medical        knowledge             and      interpersonal            problems           with     her

supervisors.         Paulin received a failing grade in that course and

was subsequently dismissed from the PA program.

        On January 19,            2012,       Paulin filed a Complaint against the

University.          In Count One,            she claimed that the University had

breached its contract with her in five different ways. Compl.                                        ~


85     [Dkt.   No.     1].    Plaintiff did not,                however,         allege    that    the

failure to teach EBM II and III was itself a breach of contract.

        In Count Two,            Paulin alleged that the University breached

the implied covenant of good faith and fair dealing inherent in

all     contracts       in       the        District      of    Columbia          by   "making      it

impossible       for       the       Plaintiff      to    realize      the       benefit     of    her

contract and by permitting its agents to act in bad faith and in

a     manner    which        interfered         with      the    Plaintiff's           contractual

expectations."          Id.      ~    92.    She    did    not    seek       a    return     of    her

tuition,       but    instead         sought       reinstatement        in       the   program and

damages for lost earning capacity. Id.

        On September 16,              2013,     the case went to trial.                   The Court

bifurcated the trial into a liability phase and a damages phase.

Minute     Order      of     Sept.      16,     2013.      Plaintiff         called       only    four

witnesses in her case-in-chief:                      Paulin,     Dr.     Jacqueline Barnett,

Dr. Venetia Orcutt               (whose de bene esse deposition testimony was



                                                   -3-
played for             the         jury),     and Dr.       Elizabeth Blomenberg                       (same). 2 On

September 26,                   2013,     after completion of the eight-day trial on

the         issue          of      liability,         the    jury     returned               a    verdict        for

Defendant on both Counts [Dkt. No. 90].

            On October 23, 2013,                    Plaintiff filed a Motion for New Trial

    [Dkt.       No.        97] .     On      November       6,   2013,            Defendant             filed    an

Opposition             [Dkt.        No.      98],    and on November              15,    2013,          Plaintiff

filed a Reply [Dkt. No. 99]. The matter is now ripe for review.

II.         STANDARD OF REVIEW

            Federal         Rule        of   Civil     Procedure        59        permits          a     court    to

"grant a new trial on all or some of the issues                                                           after a

jury trial,                for any reason for which a new trial has heretofore

been granted in an action at law in federal court." Fed. R. Civ.

P.     59 (a) (1) (A).              Such     reason     exists       where        "substantial              errors

occurred in .                        the giving or refusal of instructions .                                       "

Nyman v. F.D.I.C., 967 F. Supp. 1562, 1569 (D.D.C. 1997).

            The decision to grant or deny a motion for new trial "lies

within the sound discretion of the court." Armenian Assembly of

Am.,        Inc.      v.     Cafesjian,         783    F.    Supp.    2d 78,            85       (D. D.C.    2011)

(quotation omitted) . "Generally, a new trial may only be granted

when        a    manifest           error      of     law   or   fact        is    presented."              In    re

2
   For scheduling reasons, the parties consented to present
several of Defendant's witnesses before the close of Plaintiff's
case in chief.
                               -4-
Lorazepam & Clorazepate Antitrust Litig., 467 F. Supp. 2d 74,                          87

    (D.D.C. 2006).

        Moreover, "[i]t is well established that challenges to jury

instructions      are   subject    to    the    harmless     error    rule."    Joy    v.

Bell     Helicopter     Textron,   Inc.,       999   F.2d   549,     559    (D.C.    Cir.

1993). This means that "to warrant reversal, the error must have

been     prejudicial:     It   must     have    affected     the     outcome    of    the

district court proceedings." Czekalski v.                   LaHood,    589 F.3d 449,

453 (D.C. Cir. 2009)        (quotation omitted).

III. ANALYSIS

        Paulin raises a single issue in her Motion for New Trial:

that the Court erred when it instructed the                     jury on her claim

that     the University had breached the              implied covenant         of good

faith     and   fair    dealing.      Plaintiff      objects    to    the    following

portion of the Court's instruction:

        To establish that the defendant breached or broke the
        implied covenant of good faith and fair dealing, Ms.
        Paulin must prove by a preponderance of the evidence
        that the defendant's decision to dismiss her was made
        in bad faith and was arbitrary or capricious rather
        than reasonable, with the purpose of depriving her of
        the rights and benefits of its educational contract
        with her. 3

3
  Defendant requested that the Court add this language from Alden
v. Georgetown Univ., 734 A.2d 1103, 1108 (D.C. 1999), to the
instruction. Trial Tr. Sept. 25, 2013, A.M. Session at 3:5-6:12.
Plaintiff objected to the addition of the Alden language on the
record. Id. at 6:24-8:10, 10:10-11:8. The objection was made
when the Court gave the parties "an opportunity to object on the
                               -5-
Trial Tr. Sept. 25, 2013, A.M Session at 27:8-28:4.

       Paulin      argues     that       the     language          focusing      the     jury's

decision on her dismissal prevented the                           jury from finding that

the University's failure to teach EBM II and III was,                                  standing

alone,     a breach of the implied covenant of good faith and fair

dealing.       Paulin's    argument       misconstrues            the   case   law,     her    own

Complaint, and the evidence presented at trial.

      As    this   Court     has    noted,       an       extensive     body    of     case    law

governs    "the contractual relationship between a                            student and an

educational institution." Paulin v.                       George Washington Univ.             Sch.

of Med     &   Health     Sci.,    878    F.    Supp.      2d 241,      246    (D.D.C.    2012)

(discussing Alden,          734    A.2d    at    1108       and    other cases).         In    the

academic context, the "concepts of academic freedom and academic

judgment are       so   important that          courts       generally give deference

to   the   discretion exercised by university officials." All worth

v. Howard Univ., 890 A.2d 194, 202                    (D.C. 2006).

      This deferential standard directs courts to not overturn an

institution's      decision to dismiss                a    student unless        the    student



record and out of the jury's hearing before the instructions and
arguments are delivered," and was therefore timely under Rule
51. Fed. R. Civ. P. 51(b) (2); id. 51(c) (2) (A)     (noting that
objection is timely if "party objects at         the opportunity
provided  under   Rule  51 (b) (2) "). Consequently,   Defendant's
argument that Plaintiff failed to preserve her objection lacks
merit.
                                -6-
can establish that the decision "is such a substantial departure

from accepted academic norms as to demonstrate that the person

or committee responsible did not actually exercise professional

judgment." Alden,                734 A.2d at 1109                (quoting Youngberg v.                 Romeo,

457 U.S.      307,       323      (1982)).         This standard applies to all "cases

involving         academic             dismissal,"          Alden,         734        A. 2d      at      1109,

regardless        of     whether         the       Plaintiff       has     brought          a    breach       of

contract claim or a claim for breach of the implied covenant of

good faith and fair dealing or both. Allworth,                                        890 A.2d at 202

(applying      deferential              Alden       standard        to     claim       for       breach       of

covenant of good faith and fair dealing).

      Paulin        argues           that     her    claim        about     the       EBM       courses       is

distinct from her claim about inappropriate dismissal,                                            and thus

should      not     be          subject       to    the         deferential           Alden      standard.

However, the Court rejected Plaintiff's "theory" as inconsistent

with the governing case law and her Complaint.                                        Trial Tr.         Sept.

25,   2013,       A.M.      Session         at     11:9-11        ("That    may       have       been       your

theory all along,                but that theory doesn't really fit into what

the D.C. Court of Appeals has stated the law is.").

      The     basis        of        Plaintiff's        claims       was,        indisputably,               the

University's           academic          decision          to     dismiss        her     from         the     PA

program. Compl.           «Jr   92    (seeking reinstatement and lost wages). The

Complaint     did        not         allege      that   the       failure        to    teach       the      EBM
                                                     -7-
courses was in and of itself either a breach of contract or a

breach        of    the    covenant        of    good    faith     and      fair   dealing.       Id.

<J[<J[   84-92.    Thus,    it was not a           "manifest error of law" for the

Court to instruct the jury to apply the Alden standard and focus

on the decision to dismiss Paulin.                         See In re Lorazepam,             4 67 F.

Supp. 2d at 87. Therefore, her Motion shall be denied.

          Even     if     the    instruction       had    been     erroneous,        Plaintiff's

motion would nonetheless be denied because she failed to                                         show

than any such error was prejudicial. Czekalski,                               589 F.3d at 453

(harmless error rule applies to argument that                                 jury instruction

was        erroneous        and     requires       party     to       show     any    error      was

"prejudicial:           It must have affected the outcome of the district

court proceedings") .

          Plaintiff's           proferred instruction would have                   directed the

jury that it could find a breach of the implied covenant of good

faith and fair dealing if she proved, by a preponderance of the

evidence,          that    the     University       "acted       in    bad    faith       with   the

purpose       of    depriving        her    of    the     rights      and    benefits       of   its

educational contract with her."                         Pl.'s Mot.       at Ex.      B.   However,

Plaintiff failed to submit any evidence that the decision to not

teach the EBM courses was done in bad faith or with the purpose

of depriving her of her contractual rights and benefits.



                                                  -8-
       The evidence at trial showed that EBM I was a "foundation

course"      that    provided           students     "with       the   curriculum           and        the

instruction required for students in the program." Test. of Dr.

Jacqueline       Barnett          ("Barnett      Test."),         Sept.      24,     2013,           A.M.

Session at       49;      Test.     of Cyrena Chang              Paulin,     Sept.        16,        2013,

P.M.    Session     at     47-48,        59.   EBM   I    provided        the   basic       content

needed for the students to succeed in their clinical rotations

and to satisfy the accreditation requirements for evidence-based

medicine.      Barnett          Test.     at   49;       Test.    of    Venetia       L.        Orcutt

("Orcutt Dep.") at 46.

       EBM    II         and      III,      however,        were       not      required               for

accreditation purposes               nor did they teach                skills necessary to

succeed in a        student's            clinical rotations.           Orcutt Dep.              at     4 6,

184.   Instead,      they were designed to provide students with tools

for    success      in    post-graduate         practice.          Barnett      Test.           at     49.

Significantly,         there is no evidence that Paulin was singled out

to not      receive      these     courses           indeed,      it   is    undisputed that

none   of    Paulin's          fellow     students       were    taught      EBM     II     or        III.

Therefore,     there was absolutely no evidence proffered at trial

that would have permitted the jury to find that the University

acted in "bad faith with the purpose of depriving her" of her

education when it failed to teach EBM II or III.



                                               -9-
       In    sum,    even     if   the     jury    had     been       given     Plaintiff's

instruction,        the outcome would not have changed because she did

not    proffer      sufficient     evidence       for    the   jury to        find   in   her

favor.      Thus,    Paulin     failed     to     show    that       the   alleged    error

"affected      the     outcome      of    the     district         court      proceedings,"

Czekalski,     589    F. 3d at     453,    and her Motion must be denied on

this basis as well.

IV.    CONCLUSION

       Because      Plaintiff      did    not   identify       a    "manifest     error    of

law" nor show that any error was prejudicial, Plaintiff's Motion

for   New . Trial     shall   be denied.        An Order           shall   accompany this

Memorandum Opinion.



May   .$,   2014
                                                   Is/     §i.U ~
                                                                ~
                                                  Gladys KesBler:r.
                                                                    1
                                                  United States Dlstrict Judge


Copies to: attorneys on record via ECF




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