                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 ALEXANDRIA McGAUGHEY,                           )
                                                 )
                      Plaintiff,                 )
                                                 )
               v.                                )    Civil Case No. 07-1498 (RJL)
                                                 )
 DISTRICT OF COLUMBIA, et ai.,                   )
                                                 )
                      Defendants.                )


                              MEMORANDUM ORDER
                                                 ~
                              (SeptemberZ),20 10) [# 191]

       Plaintiff Alexandria McGaughey ("plaintiff' or "McGaughey") has filed this

action against eight defendants, including Howard University ("HU"), Howard

University d/b/a Howard University Hospital ("HUH"), Dr. Wendie Williams ("Dr.

Williams"), and Dr. Dawit Yohannes ("Dr. Yohannes") (collectively, "the Howard

defendants"), for the events arising from her attempts to receive medical treatment

following her alleged drugging and sexual assault in December 2006.

       McGaughey has brought six claims against HU and HUH: Count I, for violation of

the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §§ 1395dd et seq.;

Count II, which alleges medical malpractice/abandonment for failure to treat McGaughey

and sending her home; Count III, which alleges negligence for, inter alia, failure to

administer a rape kit and test for presence of a date rape drug; Count IV, which alleges

medical malpractice for the same; Count V, which alleges negligent hiring, training, and

supervision of medical personnel; and Count VI, for violations of the District of


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Columbia's Consumer Protection Procedures Act ("CPPA"), D.C. Code §§ 28-3901 et

seq. Counts II, III, IV, and VI are also brought against Dr. Williams. Counts III, IV, and

VI are also brought against Dr. Y ohannes. The Howard defendants have moved for

partial dismissal of, or in the alternative, for partial summary judgment on, Counts II-VI

against them, as well as plaintiff s punitive damages claim. 1

       On December 31, 2009 the instant motion, among others, was referred to

Magistrate Judge Deborah A. Robinson for report and recommendation pursuant to Local

Civil Rule 72.3. See Order [#239]. On March 3, 2010, Magistrate Judge Robinson

recommended denial of the Howard defendants' motion. See Report & Recommendation

[#249]. Unsurprisingly, the Howard defendants objected to the entirety of Magistrate

Judge Robinson's recommendation. Def. Obj. [#257].

       Local Civil Rule 72.3( c) provides that the Court "shall make a de novo

determination of those portions of a magistrate judge's findings and recommendations to

which objection is made." LCvR 72.3(c). The Court "may accept, reject, or modify, in

whole or in part, the findings and recommendations of the magistrate judge." Id. As

requested by the parties, the Court has made a de novo review of the Howard defendants'

motion. Because there are genuine disputes of material fact with respect to Counts II-V,

the Court hereby ADPOTS Magistrate Judge Robinson's recommendation and DENIES

summary judgment on all counts (including plaintiffs punitive damages claim) except as




1 Because the Howard defendants' motion for partial dismissal is not only untimely, but
they have introduced material outside of the pleadings, their motion will be treated as a
summary judgment motion. Fed. R. Civ. P. 12(d).
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    to Count VI. For the following reasons, summary judgment on plaintiffs CPPA claim

    will be GRANTED for the Howard defendants.

                                           DISCUSSION

           Summary judgment is proper where the evidence shows "that there is no genuine

    issue as to any material fact and that the movant is entitled to judgment as a matter of

    law." Fed. R. Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

    (1986) (citing same). The moving party bears the initial responsibility of demonstrating

    the absence of a genuine dispute of material fact. Celotex, 477 U. S. at 323. A party

    opposing a motion for summary judgment "may not rely merely on allegations or denials

    in its own pleading; rather, its response must-by affidavits or as otherwise provided in

    this rule-set out specific facts showing a genuine issue for trial." Fed. R. Civ. P.

    56(e )(2). Though the Court must draw all justifiable inferences in favor of the non-

    moving party in deciding whether there is a disputed issue of material fact, "[t]he mere

    existence of a scintilla of evidence in support of the [non-movant]'s position will be

    insufficient; there must be evidence on which the jury could reasonably find for the [non-

    movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

           McGaughey sues the Howard defendants under D.C.'s CPPA for their alleged

    misrepresentations as to the availability of a rape kit and the defendants' ability to

    perform one on her. Pl.'s Opp'n [#206, Ex. 1] 35. The Court has previously found that

    the CPPA does not allow recovery for personal injuries of a tortious nature, such as

    medical malpractice, and thus granted summary judgment on this claim for the

    defendants in this case affiliated with George Washington University Hospital. See



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Memorandum Opinion as to defendants District Hospital Partners, George Washington

University, and Dr. Christopher Lang, Sept. 20, 2010 [#271] (citing Gomez v. Indep.

Mgmt oIDel., Inc., 967 A.2d 1276, 1286-87 (D.C. 2009». Because McGaughey's CPPA

claims against the Howard defendants similarly "constitute 'attacks on the actual

performance of [a physician's] medical service, which would be more appropriately

addressed in the context of a [] medical malpractice claim,'" and because the CPPA bars

recovery for such damages, the Howard defendants are entitled to summary judgment as

a matter of law. Caulfied v. Stark, 893 A.2d 970, 978 (D.C. 2006) (alterations in

original) (citations omitted). Therefore, summary judgment for the Howard defendants

on the CPPA claim is GRANTED.

                                    CONCLUSION

      Accordingly, it is hereby

      ORDERED that Motion for Partial Summary Judgment filed by the defendants

Howard University, Howard University d/b/a Howard University Hospital, Dr. Wen die

Williams, and Dr. Dawit Yohannes is GRANTED in part and DENIED in part.

      SO ORDERED.


                                                         \




                                                United States District Judge




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