Rollins v. Wackenhut Services, Inc. ( 2011 )


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  • 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.
    12
    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.
    14
    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