                                 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


        1
            The Court has reviewed Defendants’ Motions, Plaintiff’s Opposition, and Defendants’ Reply.

                                                         1
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



                                                  2
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




                                                   3
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.




                                                  4
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.




                                                  5
       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



                                                  6
[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,



                                                   7
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



                                                  8
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.




                                                  9
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



                                                  10
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




                                                 11
