	                             	
	
                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

SHARON ROLLINS,

                      Plaintiff,

                      v.                       Civil Action No. 10-00047 (BAH)

WACKENHUT SERVICES, et al.,

                      Defendants.




                             MEMORANDUM OPINION

       On December 10, 2008, twenty-three-year-old Devin Darell Bailey was working

as an armed security guard for Wackenhut Services, Inc. when he committed suicide with

his work-issued gun. Mr. Bailey had a history of mental illness and, when he died, he

was taking an antipsychotic drug used to treat bipolar disorder and another drug that

prevents disordered thoughts. Bailey’s mother, the plaintiff Sharon Rollins, brings this

suit, both on her own behalf and as the executrix of Bailey’s estate, for wrongful death

and survival actions against three defendants: Wackenhut Services, Inc. (“Wackenhut”);

Otsuka Pharmaceutical Company (“Otsuka America”), a Delaware business corporation

that manufactured the antipsychotic medication; and Bristol-Myers Squibb Company

(“Bristol-Myers”), a pharmaceutical company that allegedly was a collaborative partner

with Otsuka America in the development and commercialization of the antipsychotic

drug. The plaintiff is also suing Defendant Wackenhut for punitive damages. Defendant

Wackenhut has moved to dismiss the plaintiff’s claims and Defendants Otsuka America
and Bristol-Myers have moved for judgment on the pleadings. For the reasons explained

below, the defendants’ motions are granted.1

      I.      BACKGROUND

             Mr. Bailey’s struggle with his mental health became apparent in college, when he

needed to leave after his second year of school because he was suffering from severe

depression and other mental health problems. Compl. ¶ 11. On July 13, 2006, after Mr.

Bailey left college, he joined the Navy, but his mental health problems continued. Id. ¶

12. A few days after enlisting, on July 17, 2006, Mr. Bailey was psychiatrically

hospitalized at the North Chicago V.A. Hospital, where he was diagnosed with mental

disorders, including psychosis. Id. Based on these mental disorders, the Navy formally

discharged Mr. Bailey. Id. ¶¶ 12, 34.

             About a year after his discharge from the Navy, on April 16, 2007, the

Washington, D.C. Metropolitan Police were called to Plaintiff Rollins’s house, after

receiving radio reports about a family disturbance that involved Mr. Bailey. Id. ¶ 13.

The police officers tried to talk to Mr. Bailey, but he resisted and, after he kicked one of

the police officers in the leg, a search revealed that Mr. Bailey had an eight-inch knife in

his jacket. Id. ¶¶ 13-14.

             The police officers charged Mr. Bailey with three criminal offenses: two counts of

assault on a police officer and one count of carrying a dangerous weapon. Id. ¶ 15.

When Mr. Bailey appeared in the District of Columbia Superior Court to face these

																																																								
1
  Federal jurisdiction in this case is premised upon 28 U.S.C. § 1332. The plaintiff filed this case in the
Superior Court for the District of Columbia and the defendants sought removal to this Court because the
action is between citizens of different states and the amount in controversy exceeds $75,000. See Notice of
Removal ¶ 6. In addition, venue is proper in this District pursuant to 28 U.S.C. §1441, which provides that
“any civil action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States
for the district and division embracing the place where such action is pending.” Id.


	                                                          2
charges, the Court ordered a competency screening to determine if he was fit to stand

trial. Id. On June 26, 2007, the assigned physician reported that Mr. Bailey refused to

leave his Mental Health Treatment Unit Cell Block to attend the competency screening.

Id. Shortly thereafter, the Court ordered that Mr. Bailey be formally admitted to St.

Elizabeth’s Hospital. Id.

       St. Elizabeth’s Hospital performed a full mental history examination, and

diagnosed Mr. Bailey with “Bipolar Disorder, Most Recent Episode Mixed, Severe with

Psychotic Features.” Id. ¶ 17. The hospital prescribed two medications for Mr. Bailey’s

condition, Rispardal and Depakene, and discharged him three weeks after he was

admitted. Id.

       After being discharged, Mr. Bailey actively pursued employment but continued to

struggle with his mental health. Id. ¶¶ 19-21. On May 14, 2008, he voluntarily admitted

himself as an in-patient for help and treatment at Washington Adventist Hospital in

Takoma Park, Maryland. Id. ¶ 21. According to the Complaint, at Washington Adventist

Hospital, Mr. Bailey was prescribed Abilify, an antipsychotic drug used to treat bipolar

disorder and schizophrenia, for the first time. Id. The U.S. Food & Drug Administration

requires Abilify to be labeled with several warnings, one of which states: “Children,

adolescents, and young adults taking antidepressants for major depressive disorder

(MDD) and other psychiatric disorders are at increased risk of suicidal thinking and

behavior.” Id. ¶ 23.

       Mr. Bailey was initially prescribed 15 mg of Abilify per day, a dosage that was

later increased to 20 mg per day before he was discharged from Washington Adventist

Hospital on May 20, 2008. Id. ¶ 24. Upon his discharge, Mr. Bailey was directed to




	                                            3
continue taking Abilify as well as Fluphenazine (Prolixin), which helps prevent

disordered thoughts. Id. About a month later, on July 7, 2008, and again on August 25,

2008, Mr. Bailey was given additional prescriptions for Abilify and directed to take two

15 mg tablets per day, which the Complaint contends is the maximum legal dosage. Id. ¶

25.

       On September 3, 2008, Mr. Bailey applied for employment as a security guard

with Defendant Wackenhut. Id. ¶ 26. As part of the application process, Mr. Bailey took

a test for illegal drug use and had a physical medical examination. Id. On October 27,

2008, Wackenhut offered him a position as an armed security guard. Since Wackenhut

contracted with the U.S. Army, the employment offer was made contingent upon

successful completion of training and certification by the U.S. government, which

included certain “weapons qualifications” and a “criminal justice screening.” Id. ¶ 27.

       On November 4, 2008, Wackenhut’s National Research Center prepared a

Background Screening Report on Mr. Bailey that indicated a warrant had been issued for

his failure to appear in court to answer two undisposed charges for “assault on a police

officer” and “carry[ing a] dangerous weapon.” Id. ¶¶ 28, 29. According to the

Complaint, Wackenhut did not follow up on the information in the Background

Screening Report. Id. ¶ 30.

      On November 5, 2008, after successfully completing the weapons qualifications,

Wackenhut issued Mr. Bailey a firearm. Id. ¶¶ 31, 32. Mr. Bailey officially became an

armed security guard for Wackenhut, on November 15, 2008, when he completed the

Security Officer Course. Id. ¶ 35. Less than a month later, on December 9, 2008, while

he was on duty as a contract security officer for Wackenhut, Mr. Bailey killed himself




	                                            4
with his work-issued gun. Id. ¶ 36. An autopsy by the Office of the Armed Forces

Medical Examiner confirmed that the death was a suicide and noted that Mr. Bailey “had

a mental health history and had been prescribed Fluphenazine and Abilify.” Id. ¶ 37.

             The plaintiff initially brought this action in the Superior Court of the District of

Columbia. On January 11, 2010, the defendants removed the case to this Court based on

diversity of citizenship. Notice of Removal, ECF No. 1. In Count I of the Complaint,

plaintiff Rollins brings a wrongful death claim against all three defendants. Compl. ¶¶

38-44. The plaintiff claims Defendant Wackenhut was negligent because it (1) failed to

properly investigate the status of the charges listed on Mr. Bailey’s Background

Screening Report and the information regarding his mental health noted in his military

discharge papers; (2) illegally and improperly issued Mr. Bailey a firearm when it knew

or should have known he was legally prohibited from possessing the weapon; and (3)

allowed Mr. Bailey to continue possessing the firearm for over a month when his legal

disabilities against firearm possession were or should have been apparent.2 Id. ¶¶ 34,

40(a), (b), (c). The plaintiff also brings a wrongful death claim against defendants Otsuka

America and Bristol-Myers for “manufacturing and distributing Abilify within the United

States, despite its known risks of increasing suicidality in certain patients.” Id. ¶ 43.

             In Count II, the plaintiff brings a survival action, on behalf of her son, against all

three defendants for the “pain and suffering, mental anguish, inconvenience, and
																																																								
2
  Plaintiff alleges that the issuing of the firearm violated 18 U.S.C. § 922 (g)(2), which states: “It shall be
unlawful for any person--who is a fugitive from justice. . .to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce.” Compl. ¶ 32. Furthermore, the plaintiff
alleges that if Wackenhut had exercised ordinary care by examining Mr. Bailey’s D.C. Superior Court file,
it would have discovered that he had been committed to a mental hospital pursuant to court order, thus
making the issuance of the firearm unlawful under another provision of § 922(g). Id. ¶ 33. The plaintiff
does not indicate which other provision of § 922(g) is relevant. The provision the plaintiff likely is
referencing is § 922(g)(4), which states: “It shall be unlawful for any person--who has been adjudicated as
a mental defective or who has been committed to a mental institution. . .to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign commerce.”


	                                                          5
discomfort” experienced between her son’s injury and time of death as well as for the

economic loss of future earnings. Id. ¶¶ 46, 47.

             In Count III, the plaintiff seeks punitive damages from Defendant Wackenhut for

recklessly failing to perform a follow-up to Mr. Bailey’s Background Screening Report,

training him in firearms, and giving him access to firearms after his alleged legal

disqualifications either were or should have been obvious. Id. ¶ 49.

             The plaintiff seeks judgment of $1,000,000 against all three defendants for

wrongful death and an additional $1,000,000 from each defendant under the survival

action. The plaintiff also seeks $3,000,000 in punitive damages from Defendant

Wackenhut Services. Id. ¶ 51.

             On January 20, 2010, Defendant Wackenhut filed a motion to dismiss pursuant to

Rules 12(b)(1) and 12(b)(6). ECF No. 15. On the same day, Defendants Bristol-Myers

and Otuska America each filed a separate motion for judgment on the pleadings pursuant

to Rule 12(c).3 ECF Nos. 12, 16. These motions are now before the Court.4




																																																								
3
 Federal Rule 12(c) enables a party to move for a judgment on the pleadings after the pleadings are closed
as long as it is early enough not to delay trial. Defendants Bristol-Myers and Otsuka America filed answers
and a notice of removal simultaneously in this case, making the filing by these two defendants of a 12(b)(6)
motion inappropriate. Langley v. Napolitano, 677 F. Supp. 2d 261, 263 (D.D.C. 2010) (Since defendant has
already filed an answer, dismissal motion under Fed. R. Civ. P. 12(b)(6) “is more appropriately construed
as a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c)”); Douglass v. District of Columbia,
605 F. Supp. 2d 156, 161 (D.D.C. 2009) (treating Rule 12(b) motion to dismiss filed after answer as a
motion for judgment on the pleadings under Rule 12(c)). See also Def. Bristol-Myers Mem. in Supp. of
Mot. to Dismiss (“BMS Mem.”), ECF No. 12, at 3 n.6.
4
    This case was re-assigned to the current presiding judge on January 21, 2011.


	                                                          6
    II. DISCUSSION

    A. Standards of Review

       1.      Motion to Dismiss for Lack of Subject Matter Jurisdiction.

       A court must dismiss a case when it lacks subject matter jurisdiction. McManus

v. District of Columbia, 530 F. Supp. 2d 46, 62 (D.D.C. 2007). “Plaintiff bears the

burden of proving subject matter jurisdiction by a preponderance of the evidence.” Am.

Farm Bureau v. U.S. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000); accord Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). It is well established that, in deciding a

motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court must

construe the allegations in the Complaint liberally but “need not accept factual inferences

drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint,

nor must the Court accept plaintiffs’ legal conclusions.” Speelman v. United States, 461

F. Supp. 2d 71, 73 (D.D.C. 2006); see also Hohri v. United States, 782 F.2d 227, 241

(D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). The Court must be

assured that it is acting within the scope of its jurisdictional authority and therefore must

give the plaintiff’s factual allegations closer scrutiny when resolving a Rule 12(b)(1)

motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. See

Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Westberg v. FDIC, 759

F. Supp. 2d 38, 41 (D.D.C. 2011); Dubois v. Wash. Mut. Bank, 2010 U.S. Dist. LEXIS

91855, at *5-6 (D.D.C. Sept. 2, 2010); Hoffman v. District of Columbia, 643 F. Supp. 2d

132, 135-136 (D.D.C. 2009); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185

F. Supp. 2d 9, 13-14 (D.D.C. 2001). In evaluating subject matter jurisdiction, the Court,

when necessary, may look outside the Complaint to “undisputed facts evidenced in the




	                                             7
record, or the complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts.” Herbert v. Nat’l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992) (citing

Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); see also Alliance for

Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).

       2.      Motion to Dismiss for Failure to State a Claim.

       To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

plaintiff need only plead “enough facts to state a claim to relief that is plausible on its

face” and to “nudge[ ] [his or her] claims across the line from conceivable to plausible.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). Although

detailed factual allegations are not required, the Complaint must set forth “more than an

unadorned, the defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 129

S.Ct. 1937, 1949 (2009), and may not merely state “a formulaic recitation of the elements

of a cause of action.” Twombly, 550 U.S. at 555. Instead, the complaint must plead facts

that are more than “merely consistent with” a defendant’s liability; “the plaintiff [must

plead] 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 (internal

quotation marks omitted) (citing Twombly, 550 U.S. at 556).

       3.      Motion for Judgment on the Pleadings Pursuant to Federal Rule of
               Civil Procedure 12(c).
       Rule 12(c) allows for judgment on the pleadings after responsive pleadings have

been filed but prior to trial. The standard for a motion for judgment under Rule 12(c) is

essentially the same standard as a motion to dismiss under Rule 12(b)(6). See Schuchart

v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 35 (D.C. Cir. 2004); Haynesworth v.

Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987), abrogated on other grounds by Hartman v.



	                                              8
Moore, 547 U.S. 250 (2006); Baumann v. District of Columbia, 744 F. Supp. 2d 216, 221

(D.D.C. 2010); Sanders v. District of Columbia, 601 F. Supp. 2d 97, 99 (D.D.C. 2009)

(“The standard of review for motions for judgment on the pleadings under Rule 12(c) of

the Federal Rules is essentially the same as that for motions to dismiss under Rule

12(b)(6).”). “Because a Rule 12(c) motion would summarily extinguish litigation at the

threshold and foreclose the opportunity for discovery and factual presentation, the Court

must treat Defendants’ motion with the greatest of care and deny it if there are allegations

in the complaint which, if proved, would provide a basis for recovery.” Baumann, 744 F.

Supp. 2d at 221 (quotations omitted) (citing Haynesworth, 820 F.2d at 1254).

    B. Analysis

       1.      The Court has Subject Matter Jurisdiction over the Plaintiff’s Claims
               Against Defendant Wackenhut.

       Defendant Wackenhut claims that the Court lacks subject matter jurisdiction

because the District of Columbia Workers’ Compensation Act (“DCWCA”) provides the

exclusive remedy for injuries that occur during the course of a worker’s employment.

Def. Wackenhut’s Mem. in Supp. of Mot. to Dismiss (“Wackenhut Mem.”) at 3. While

the DCWCA is the exclusive remedy “for any illness, injury, or death arising out of and

in the course of employment,” D.C. Code § 32-1504(b), there are some limited

circumstances where the DCWCA does not apply. As relevant here, the DCWCA does

not apply “where injury to the employee was occasioned solely by his intoxication or by

his willful intention to injure or kill himself or another.” D.C. Code §32-1503(d). Since

Mr. Bailey’s suicide falls under this exception to workers’ compensation coverage, his

claim is properly before the Court. See Pl.’s Opp’n to Wackenhut Mem. at 3.




	                                            9
        “The [DCWCA] provides a comprehensive scheme for compensating private

sector employees for their work-related injuries. It makes the employer liable without

fault if the employee’s occupational injury or death falls within the scope of the Act, but

as a quid pro quo for such automatic liability the Act provides the employee’s exclusive

remedy-an administrative remedy-against the employer for injuries within its reach.”

Estate of Underwood v. Nat’l Credit Union Admin., 665 A.2d 621, 630 (D.C. 1995)

(internal citations omitted). The issue in this case is whether the plaintiff’s claim against

Wackenhut is compensable under the DCWCA and thus is not eligible for a lawsuit in

court. See id. at 631.

        “[W]hen there is a ‘substantial question’ whether the [DCWCA] applies, the

administrative agency charged with implementing the statute, given its special expertise,

has ‘primary jurisdiction’ to ‘make the initial determination concerning coverage’ before

the courts can exercise jurisdiction.” Id. at 630 (quoting Harrington v. Moss, 407 A.2d

658, 661 (D.C. 1979) (internal quotations omitted)). “A substantial question will exist

unless [the] injuries were clearly not compensable under the [statute].” Grillo v. Nat’l

Bank of Washington, 540 A.2d 743, 749 (D.C. 1988) (quoting Tredway v. District of

Columbia, 403 A.2d 732, 735 (D.C. 1979) (interpreting the similar Federal Employee’s

Compensation Act) (internal citations and quotations omitted); see also Estate of

Underwood, 665 A.2d at 630 (“Unless a claimant’s injuries clearly are not compensable

under the WCA-i.e., when there is a substantial question whether the WCA applies-the

administrative agency charged with administering workers compensation claims, the

Department of Employment Services (DOES), not the Superior Court, has primary

jurisdiction. . . .”) (internal quotations omitted).




	                                              10
       The Court finds that there is not a “substantial question” as to whether Mr.

Bailey’s suicide is covered by the DCWCA. The exception set forth in D.C. Code § 32-

1503(d) applies and Mr. Bailey’s suicide is not covered by the Act.

       The plaintiff argues that this statute clearly excludes Mr. Bailey’s suicide from

workers’ compensation coverage. Defendant Wackenhut counters that Bailey’s suicide

actually does not fall under the “willful intention to injure or kill himself” exception

because, according to Wackenhut, the statutory language of D.C. Code § 32-1503(d) only

excludes compensation for deaths occasioned “solely” by a willful intention to kill

oneself. Def.’s Reply to Pl.’s Opp’n to Wackenhut Mem. (“Wackenhut Reply”) at 2.

Since the plaintiff has alleged that Wackenhut’s negligence contributed to the suicide,

Wackenhut argues that the plaintiff has not alleged that the death was occasioned

“solely” by the decedent’s suicidal intention as necessary to fall under the exclusion. See

id. The plaintiff responds that Wackenhut’s reading of the statute is flawed and that

“solely” only modifies the first clause of D.C. Code § 32-1503(d) – i.e., the clause

referring to an injury occasioned “solely by . . . intoxication.” See Pl’s Sur-reply to

Wackenhut Mem. (“Pl.’s Sur-reply”) at 1-4.

       When interpreting a statute, the Court first looks at the language of the statute.

See e.g., Grillo, 540 A.2d at 751; Peoples Drug Stores, Inc. v. District of Columbia, 470

A.2d 751, 753 (D.C. 1983) (en banc). Generally, “[w]hen the plain meaning of the

statutory language is unambiguous, the intent of the legislature is clear, and judicial

inquiry need go no further.” District of Columbia v. Place, 892 A.2d 1108, 1111 (D.C.

2006); District of Columbia v. Gallagher, 734 A.2d 1087, 1091 (D.C.1999). When

interpreting statutes, however, the Court should not “make a fetish out of plain meaning”




	                                            11
nor should it “make a fortress out of the dictionary.” Place, 892 A.2d at 1111 (citing J.

Parreco & Son v. Dist. of Columbia Rental Hous. Comm’n, 567 A.2d 43, 46 (D.C.

1989)). “In construing a statute the primary rule is to ascertain and give effect to

legislative intent and to give legislative words their natural meaning.” Banks v. United

States, 359 A.2d 8, 10 (D.C. 1976) (quoting General Motors Acceptance Corp. v. One

1962 Chevrolet Sedan, 191 A.2d 140, 142 (D.C. 1963)). Furthermore, “[t]he literal

words of a statute. . . are not the sole index to legislative intent, but rather, are to be read

in the light of the statute taken as a whole. . . .” District of Columbia v. Bender, 906 A.2d

277, 281-82 (D.C. 2006).

        In this case, the statute at issue states that “[l]iability for compensation shall not

apply where injury to the employee was occasioned solely by his intoxication or by his

willful intention to injure or kill himself or another.” D.C. Code § 32-1503(d).

Wackenhut argues that “solely” applies both to the clause referring to intoxication and to

the clause referring to willful intention to injure or kill oneself. Wackenhut Reply at 2-3.

The plaintiff contends, however, that if “solely” were meant to apply to both clauses the

legislature would have made this clear and the statute would read: “occasioned solely by

his intoxication or solely by his willful intention to injure himself or another.” Pl.’s Sur-

reply at 2. The legislature could also have made this intent clear by making the statute

read “occasioned solely either by his intoxication or by his willful intention to injure

himself or another.” The statute takes neither of these forms, however. Consequently,

the Court finds that the plain reading of this part of the statute slightly favors the

plaintiff’s position. Even so, a plain reading of this statutory text alone ultimately cannot

clarify whether “solely” modifies both clauses.




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             When viewed in the context of other current provisions of the DCWCA, however,

it is clear that “solely” only modifies the clause involving intoxication. In another

section in the same chapter of the D.C. Code as § 32-1503(d), the DCWCA enumerates

certain presumptions regarding claims for workers’ compensation as follows:

             In any proceeding for the enforcement of a claim for compensation under this
             chapter it shall be presumed, in the absence of evidence to the contrary:

             [. . .]

             (3) That the injury was not occasioned solely by the intoxication of the injured
             employee.

             (4) That the injury was not occasioned by the willful intention of the injured
             employee to injure or kill himself or another.

D.C. Code § 32-1521.

             These provisions of D.C. Code § 32-1521 clearly parallel the language of D.C.

Code § 32-1503(d), but in this formulation, the “willful intention . . .to kill himself”

clause and the “intoxication” clause appear in separate subsections, and the modifier

“solely” appears only in connection with the “intoxication” clause. Since different

provisions of the same statute are construed harmoniously, the fact that “solely” only

modifies the “intoxication” clause in this section of the DCWCA strongly indicates that

“solely,” as used in D.C. Code § 32-1503(d), also only applies to the “intoxication”

clause. See Motion Picture Ass’n of Am., Inc. v. FCC, 309 F.3d 796, 801 (D.C. Cir.

2002) (citing Erlenbaugh v. United States, 409 U.S. 239, 244 (1972) (acknowledging

“the principle that individual sections of a single statute should be construed together.”)).5


																																																								
5
 In her briefing, the plaintiff argues that the legislative history of D.C. Code § 32-1503(d) also supports her
position. See Pl.’s Sur-reply at 2-3. Specifically, the plaintiff notes, correctly, that the DCWCA was
modeled after the Longshoremen’s and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. 901 et
seq. See also Grillo, 540 A. 2d at 749 n.15. The plaintiff then notes that one section of the LHWCA, 33
U.S.C. § 920, which addresses the presumption of compensation coverage, separates the clauses for


	                                                          13
But see Dir., Office of Workers’ Comp. Programs, U. S. Dept. of Labor v. Cooper

Associates, Inc., 607 F.2d 1385, 1391, n.4 (D.C. Cir. 1979) (quoting 33 U.S.C. § 903(b)

(1977) as “No compensation shall be payable if the injury was occasioned solely by the

    . . . willful intention of the employee to injure or kill himself . . . .”) (alteration in

original) (referring to the predecessor statute to the DCWCA).

             Since “solely” does not apply to both clauses of § 32-1503(d), the Court finds that

there is not a substantial question as to whether the injury falls under the DCWCA. The

statute is clear that “[l]iability for compensation shall not apply where injury to the

employee was occasioned . . . by his willful intention to injure or kill himself or another.”

Thus, the Court has jurisdiction over the plaintiff’s claims arising out of Mr. Bailey’s

suicide.

             2.            The Plaintiff Fails to State a Claim Against Defendant Wackenhut.

             Neither party disputes that the cause of death in this case is suicide. By relying on

D.C. Code §32-1503(d) to escape workers’ compensation coverage, the plaintiff has

effectively admitted that the suicide was a willful and intentional act. The plaintiff’s

claim is that Defendant Wackenhut’s negligence was a substantial factor in Mr. Bailey’s

death. Compl. ¶ 40. Unfortunately for the plaintiff, however, D.C. law does not permit

recovery under these circumstances.

																																																																																																																																																																					
“willful intention to kill oneself and for intoxication,” with “solely” only modifying the “intoxication”
clause. The plaintiff is correct, but 33 U.S.C. § 920 appears to correspond to D.C. Code § 32-1521, which
is discussed above and which also separates the two clauses, rather than to D.C. Code § 32-1503(d). By
contrast, 33 U.S.C. § 903 is the section of the LHWCA that appears to correspond to D.C. Code § 32-
1503(d). That section of the LHWCA is substantially similar to the section of the DCWCA at issue here
and reads: “No compensation shall be payable if the injury was occasioned solely by the intoxication of the
employee or by the willful intention of the employee to injure or kill himself or another.” 33 U.S.C. § 903.
Thus, the sections of the LHWCA cited by the plaintiff do not provide any further guidance to the Court
beyond the guidance provided by the structure and text of the DCWCA itself.

	


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        The general rule in the District of Columbia is that a plaintiff may not recover

damages in negligence from the suicide of another. District of Columbia v. Peters, 527

A.2d 1269, 1275-76 (D.C. 1987). “[S]uicide generally is considered to be a deliberate,

intentional, and intervening act which precludes a finding that a given defendant is, in

fact, responsible for the decedent’s death.” Washington Metro. Area Transit Auth. v.

Johnson, 726 A.2d 172, 181-82 (D.C. 1999) (quoting Peters, 527 A.2d at 1275; see also

Johnson v. Wal-Mart Stores, Inc., 587 F. Supp. 2d 1027 (C.D. Ill. 2008) (“[S]uicide is an

intervening and independent cause of death which breaks the chain of causation and

precludes its liability in this case.”) (internal citations omitted)).

        The two recognized exceptions to this general rule that suicide bars a negligence

claim do not apply here. First, there is an exception where:

        The actor’s negligent conduct so brings about the delirium or insanity of another
        as to make the actor liable for it, the actor is also liable for harm done by the other
        to himself while delirious or insane, if his delirium or insanity… makes it
        impossible for him to resist an impulse caused by his insanity which deprives him
        of his capacity to govern his conduct in accordance with reason.

Peters, 527 A.2d at 1275-76 (citing Restatement (Second) of Torts § 455 (1977)). Here,

however, the plaintiff does not contend that Wackenhut caused Mr. Bailey’s mental

illness in any way, or that negligence by Wackenhut resulted in delirium, insanity, or

other mental conditions that precluded Mr. Bailey from making an intentional choice to

commit suicide. In short, this exception does not apply.

        Second, there is another exception where the defendant has a special relationship

involving treatment or custodial control over the deceased that imposes a duty to take

reasonable steps to prevent a reasonably foreseeable suicide. Thus, for example, “an

institution, such as a psychiatric hospital, [may have] a duty of custodial care [to] the




	                                              15
suicide victim.” Johnson, 726 A.2d at 177-78 n.8 (citing McLaughlin v. Sullivan, 461

A.2d 123, 125 (N.H. 1983)). In such cases, plaintiffs may establish negligence claims on

behalf of the suicide victim. See Clark v. District of Columbia, 708 A.2d 632 (D.C.

1997) (considering whether a plaintiff established a violation of a custodial standard of

care in a case involving the suicide of a minor in a juvenile receiving home); Phillips v.

District of Columbia, 714 A.2d 768 (D.C. 1998) (evaluating plaintiff’s evidence

establishing standard of care for negligence claim involving suicide of inmate at D.C.

jail); Powers-Bunce v. District of Columbia, 479 F. Supp. 2d 146, 163 (D.D.C. 2007)

(recognizing negligence claim arising out of suicide of prisoner in police custody); see

also McLaughlin, 461 A.2d at 125-26 (discussing custodial duties of care to prevent

suicide). No such custodial duty is relevant in this case.

             Rather, the Complaint alleges that Defendant Wackenhut was negligent when it

(1) failed to take reasonable action in response to Mr. Bailey’s Background Screening

Report; (2) improperly and illegally allowed Mr. Bailey to possess a firearm; and (3)

improperly and (3) illegally allowed him to retain the firearm for over a month. 6 Compl.

¶ 40 (a), (b), (c). Certainly the allegations in this case raise serious questions about the

diligence and care with which Wackenhut performs background checks on the employees

to whom it provides firearms. Nevertheless, even assuming, arguendo, that the plaintiff’s

allegations are true, the defendant would still not be liable because Mr. Bailey’s suicide
																																																								
6
  The plaintiff claims that the Defendant Wackenhut violated provisions of 18 U.S.C. § 922(g) when it
issued Mr. Bailey a firearm. Compl. ¶¶ 33,40(a). The Complaint cites §922(g), which forbids fugitives
and persons committed to mental hospitals from receiving firearms. However, §922(g) restricts the actions
of fugitives and mentally ill persons, not the actions of those who distribute firearms. Section 922(d) of the
same statute pertains to persons who “sell or otherwise dispose of any firearm,” but the plaintiff has not
addressed whether this section might apply to Wackenhut’s conduct in this case. In any event, the question
is academic because the plaintiff cannot recover damages in negligence for Mr. Bailey’s suicide. Courts in
other jurisdictions that have faced suicide cases involving negligence claims premised on a violation of 18
U.S.C. § 922 and similar statutes have generally rejected the claims. See Johnson v. Wal-Mart Stores, Inc.,
588 F.3d 439,433 (7th Cir. 2009) (citing cases).


	                                                          16
was an intervening act that precludes liability under D.C. law and that is the law that this

Court is bound to apply.

        Accordingly, Defendant Wackenhut’s motion to dismiss is granted.

        3.       The Plaintiff Has Failed To State A Claim Against Defendants Otsuka
                 America and Bristol-Myers.

        The Complaint alleges that Otsuka America and Bristol-Myers (“the

pharmaceutical defendants”) are “strictly liable” to the plaintiff under Restatement

(Second) of Torts § 402(A), which concerns liability for defective products. Compl. ¶ 43.

The pharmaceutical defendants have moved for judgment on the pleadings, arguing that

the plaintiff has failed to plead sufficient facts to state a plausible products liability claim.

The Court agrees with the pharmaceutical defendants and grants their motions.7

        The District of Columbia has recognized a strict liability tort cause of action for

defective products based on Restatement (Second) of Torts § 402(A). See Warner

Fruehauf Trailer Co. v. Boston, 654 A.2d 1272, 1274 (D.C. 1995). Under this cause of

action, “[a] product may be found defective for § 402A purposes if it has one of three

shortcomings: (1) a manufacturing defect; (2) an absence of sufficient warnings or

instructions; or (3) an unsafe design.” Id. Section 402A establishes that in a products

liability case strict liability will only be imposed if the product is “unreasonably

dangerous.” See East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1118 (D.C. 1990)

(“[R]ecovery is predicated on findings that the product entered the stream of commerce

with a design or manufacturing defect rendering it unreasonably dangerous.”) (citing

Restatement (Second) of Torts § 402A. cmt. J. (1965)); McPherson v. Searle & Co., 775

F. Supp. 417, 421-22 (D.D.C. 1991). An “unreasonably dangerous” product is one for
																																																								
7
  Defendants Otusuka America and Bristol-Myers have filed separate motions under Rule 12(c). Since
their arguments are essentially the same, the Court addresses these motions together.


	                                                17
which “the risks, costs and benefits of the product in question and alternative designs, and

that the magnitude of the danger from the product outweighed the costs of avoiding the

danger.” Warner Fruehauf Trailer Co., 654 A.2d at 1276; see also Webster v. Pacesetter,

Inc., 259 F. Supp. 2d 27, 36 (D.D.C. 2003); Restatement (Second) of Torts § 402A, cmt. i

(“The article sold must be dangerous to an extent beyond that which would be

contemplated by the ordinary consumer who purchases it, with the ordinary knowledge

common to the community as to its characteristics.”).

       In this case, the pharmaceutical defendants argue that the plaintiff has failed to

state a products liability claim because the plaintiff has essentially claimed nothing more

than that Mr. Bailey “took . . . Abilify and months later committed suicide.” Def. Otsuka

America’s Mem. in Supp. Mot. to Dismiss (“Otsuka Mem.”); BMS Mem. They contend

that the Complaint has not explained how their product is at fault nor has it specified

which type of product liability claim the plaintiff intends to pursue. As such, the

pharmaceutical defendants argue that the Complaint fails to state a claim under the

federal pleading standard.

       The Court agrees that the facts in the Complaint are insufficient to establish a

plausible manufacturing defect, design defect, or failure to warn claim against the

pharmaceutical defendants. The Complaint alleges that the defendants are liable for

“manufacturing and distributing Abilify within the United States, despite its known risks

of increasing suicidality in certain patients.” Compl. ¶43. Furthermore, the plaintiff

contends that the defendants sold the “product in a defective condition [that is]

unreasonably dangerous to users and consumers. . . based on [Mr. Bailey’s] use of [the]

product and. . .the reasonably foreseeable consequences of fluctuations or cessations of




	                                            18
usage that can be expected to occur after initial utilization of this product by person with

mental health issues, particularly at high dosage levels.” Id. These allegations are vague

and conclusory, and do not suffice to state a claim for relief.

       In the plaintiff’s opposition to the motions to dismiss, the plaintiff appears to

argue that she intended to allege all three categories of products liability claims – design

defect, manufacturing defect, and failure to warn. See Pl.’s Opp’n to Pharmaceutical

Defs.’ Mot. to Dismiss at 15 (“[T]he pharmaceutical Defendants do not appear to allege

that Plaintiff’s strict liability claim under Restatement (Second) of Torts § 402A fails to

encompass all three of its specified subcategories of manufacturing defect, design defect,

and failure to warn. . . .	permitting an amendment so that these subcategories can be

spelled out more specifically in an amended Complaint is surely well within this Court’s

discretion.”). The Complaint, however, does not appear to contain any factual allegations

to suggest that the plaintiff is asserting a manufacturing defect or failure to warn claim.

There are no facts alleged that would appear to relate to manufacturing defects in the

Abilify doses taken by Mr. Bailey, and, regarding the failure to warn claim, the

Complaint’s allegations state only that Abilify did carry an FDA-mandated “black box

warning” regarding suicide risk. See Compl. ¶ 23 (“ABILIFY’s prescribing information

contains a black-box warning that ‘Children, adolescents, and young adults taking

antidepressants for major depressive disorder (MDD) and other psychiatric disorders are

at increased risk of suicidal thinking and behavior.’”); see also BMS Mem. at 3 (“[The]

Complaint alleges that [Mr. Bailey] was first prescribed Abilify in mid-May 2008. In

May 2007, the. . . [FDA] required that all antidepressants include a black box warning

about the risk of suicidality in young adults ages 18 to 24. Thus, at the time [Mr. Bailey]




	                                            19
received his prescription, the Abilify product labeling contained a black box warning

unambiguously stating that ‘[c]hildren, adolescents, and young adults taking

antidepressants for major depressive disorder (MDD) and other psychiatric disorders are

at increased risk of suicidal thinking and behavior.’”).8

              The Complaint also fails to plead sufficient, non-conclusory allegations to

establish a design defect claim. To prevail on a design defect claim, the plaintiff would

have to show “the risks, costs and benefits of the product in question and alternative

designs, and that the magnitude of the danger from the product outweighed the costs of

avoiding the danger.” Warner Freuhauf Trailer Co., 654 A.2d at 1276; Webster, 259 F.

Supp. 2d at 36. With respect to pharmaceutical drugs in particular, there is a well-

established gloss on the Restatement (Second) of Torts §402A, known as “Comment k,”

that typically modifies the standard for products liability into an analysis more similar to

ordinary negligence than to strict liability. See Dyson v. Winfield, 113 F. Supp. 2d 35, 39

(D.D.C. 2000), aff’d sub nom. Dyson v. Pharmacia & Upjohn Co., Inc., 21 Fed. App’x 2

(D.C. Cir. 2001). Comment k states in relevant part that:

             There are some products which, in the present state of human knowledge, are
             quite incapable of being made safe for their intended and ordinary use and that
             these products are especially common in the field of drugs. . .Such a product,
             properly prepared, and accompanied by proper directions and warning, is not
             defective, nor is it unreasonably dangerous.

Restatement (Second) of Torts § 402A, cmt. k. (1965); see also Dyson, 113 F. Supp. 2d at

40. Under Comment k, a “drug manufacturer’s duty . . . is to properly prepare[ ]” the



																																																								
8
  In connection with its discussion of the black box warning, the Complaint also alleges generally that the
pharmaceutical defendants may have promoted “off label uses” of Abilify, but the Complaint contains no
facts or allegations to indicate what these off-label uses were and the Complaint does not suggest that Mr.
Bailey’s prescription was an “off-label” use. See Compl. ¶¶ 22-23.



	                                                          20
drug and include “proper directions and warning[s]” with it. Dyson, 113 F. Supp. 2d at

40.

             The Complaint here does not allege that the pharmaceutical defendants failed to

properly prepare Abilify or failed to include proper directions and warnings. Even if the

plaintiff were to argue that Comment k is inapplicable here, the Complaint does not

contain any specific allegations to suggest that “the risks, costs and benefits of the

product in question and alternative designs, and that the magnitude of the danger from the

product outweighed the costs of avoiding the danger.” Warner Freuhauf Trailer Co., 654

A.2d at 1276 (internal quotations and citations omitted). The Complaint does not allege

that the risks of Abilify outweigh its benefits or that there was any equally effective

alternative design or manner of increasing the safety of the product. Indeed, the

Complaint does not attempt to identify what about Abilify made it “defective,” other than

its “known risks of increasing suicidality in certain patients” – a danger that the plaintiff

admits was specifically described in the drug’s FDA-mandated warning materials.

Compl. ¶¶ 23, 43. Thus, the plaintiff has not met her burden to allege facts showing that

Abilify is defective or is not a reasonably safe product. Without further factual

allegations about the supposedly defective nature of Abilify, the allegation that the drug

is “unreasonably dangerous” and hence defective is merely a legal conclusion.9 See



																																																								
9
  The Complaint contains several allegations about Abilify that are irrelevant to the plaintiff’s claim. For
example, as noted above, the plaintiff alleges that the defendants promoted off-label uses of Abilify, but
does not allege that Mr. Bailey engaged in an off-label use. Similarly, the plaintiff claims that “the safety
of doses of Abilify oral or Abilify Injection above 30 mg / day has not been evaluated in clinical trials.”
Pl.’s Opp’n to Pharmaceutical Defs.’ Mot. to Dismiss at 9 (quoting Compl. ¶ 25). Yet, the plaintiff makes
no allegation nor pleads any facts to suggest that Mr. Bailey took more than 30 mg of Abilify per day.
Finally, the plaintiff emphasizes that her allegation about the “maximum dosage was also pleaded in the
context of these Defendants’ ‘promotional efforts directed at prescribers,’ Complaint ¶ 23, including ‘paid
remuneration in the form of consulting arrangement fees to physicians to induce them to prescribe
ABILIFY.’” Pl.’s Opp’n to Pharmaceutical Defs.’ Mot. to Dismiss at 9-10. The plaintiff, however, does not


	                                                          21
Lewis v. Abbott Laboratories, No. 08 Civ. 7480, 2009 WL 2231701, at *4 (S.D.N.Y. July

24, 2009); Lewis v. White, No. 08 Civ. 7480, 2010 WL 6465230, at *4 (S.D.N.Y. July 1,

2010) (“[P]laintiff’s allegations are conclusory. Further, plaintiff has not alleged that it

was feasible for [pharmaceutical company defendants] to design [the drug] in a safer

manner. Thus, plaintiff has not met her burden to allege evidence that [the drug] is not

reasonably safe.”); Bodley v. Foster Wheeler Energy Corp., No. 10-CV-51, 2011 WL

1576673, at *3 (D.V.I. Apr. 26, 2011) (“[T]here is consensus that when the plaintiff

alleges that a product is defective in design, he or she has asserted a legal conclusion. . . .

a ‘plaintiff's bald assertion’ that a device is defective is insufficient to state a claim of

products liability.”); Frey v. Novartis Pharmaceuticals Corp., 642 F. Supp. 2d 787, 795

(S.D. Ohio 2009) (“Plaintiffs’ design defect claim must . . . be dismissed because

plaintiffs have once again simply provided a formulaic recitation of the elements of a

claim under the [relevant state products liability] statute.”); see also Ashcroft v. Iqbal,

129 S.Ct. 1937, 1949-51 (2009) (“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice. . . . It is the conclusory

nature of respondent’s allegations . . . that disentitles them to the presumption of truth.”).

             The plaintiff contends that absent “discovery, a public admission, or a spy, . . .

many plaintiffs will have no way to prove their case,” if the Court applies an overly

burdensome pleading standard for defective product claims. Pl.’s Opp’n to

Pharmaceutical Defs.’ Mot. to Dismiss at 8. While the Court is sensitive to this concern,

in this case, the plaintiff has not alleged sufficient facts establishing any plausible claim

that Mr. Bailey’s suicide resulted from the defective nature of Abilify.

																																																																																																																																																																					
explain how any alleged consultation fees paid to prescribers of Abilify are relevant to her claim that the
drug was defective.


	                                                                              22
                Where the plaintiff has failed to support conclusory allegations of a defective

product with specific facts that “nudge[ ] [his or her] claims across the line from

conceivable to plausible,” the Court must dismiss the claim. Twombly, 550 U.S. at 570;

see also Lewis, 2009 WL 2231701, at *4 (dismissing plaintiff’s claims as conclusory

where the Complaint simply alleged that a drug was both inherently dangerous and that

the side effects outweighed the benefits because it caused pancreas, liver, and kidney

disease; blood disorders; hair loss; skin conditions; and brain damage.); Bodley, 2011 WL

1576673, at *4 (dismissing defective medical device claim). Therefore, the plaintiff’s

product defect claim against the pharmaceutical defendants must be dismissed. The

motions for judgment on the pleadings of Defendants Otsuka America and Bristol-Myers

are therefore granted.10

      III. CONCLUSION

             For the reasons explained above, Defendant Wackenhut’s motion to dismiss and

the pharmaceutical defendants’ motions for judgment on the pleadings are GRANTED.

An Order consistent with this Memorandum Opinion will be entered.




DATED: August 10, 2011                                                      /s/ Beryl A. Howell
                                                                            BERYL A. HOWELL
                                                                            United States District Judge




																																																								
10
  In her opposition memorandum, filed in February 2010, the plaintiff indicated that she intended to seek
leave of the Court to amend the Complaint, but no motion for leave to amend has been filed. To the extent
that the plaintiff has requested leave to amend the Complaint in her opposition memorandum itself, that
request is denied because the plaintiff has not indicated that she will be able to plead sufficient facts to state
a claim for relief. Accordingly, amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182
(1962). In addition, the pharmaceutical defendants’ request for an oral hearing on their motions under
Local Rule 7(f) is denied.


	                                                          23
