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Qualified common interest privilege applied in D.C. defamation case
In Payne v. Clark, No. 09-CV-1492 (D.C. Aug. 4, 2011), the D.C. Court of Appeals held that with respect to a defamation claim, a qualified common interest privilege protects statements made by citizens and other third parties who communicate in good faith with District agencies during an investigation into alleged misconduct by District employees.

However, the Court reversed the trial court's award of summary judgment based on the common interest privilege, finding that the plaintiff's opposition and exhibits were sufficient to raise a factual issue as to whether the defendant's primary purpose in making his statement against the plaintiff was to further the District's and the defendant's employer's common interest in elevator inspections unfettered by an elevator inspector's conflict of interest or bias; or whether his primary purpose was to further his and his employer's interest in punishing the plaintiff for finding elevator violations in the Blake Building.

A statement is protected by the common interest privilege if it is (1) made in good faith, (2) on a subject in which the party communicating has an interest, or in reference to which he has or honestly believes he has a duty (3) to a person who has such a corresponding interest or duty. Whether a statement is privileged is a question of law.

The D.C. Court of Appeals has previously recognized the common interest privilege in the context of statements that were made in good faith to police by private individuals regarding suspected wrongdoing; statements made to allege misconduct of a police officer to his superior; and statements involving communications between church members concerning matters of mutual concern or common interest. The Court has not limited the privilege to employers or organizations reporting information on their own employees or members.

Once the trial court determines that the qualified common interest privilege is applicable, the burden shifts to the plaintiff to rebut the presumption by demonstrating that the statement was made out of express malice or malice in fact, that is, that the defendant was motivated primarily by bad faith or ill will or enmity.

Posted by David B. Stratton on 08/30/2011 at 09:34 PM
DefensesDistrict of ColumbiaPermalink

Statute of limitations held to bar medical malpractice action for failure to diagnose cancer
In Linton v. Evans, the Plaintiff, in an attempt to avoid the three year statute of limitations period, argued that limitations began to run when she learned that her cancer was "probably noncurable," rather than when she first learned she had cancer.

The plaintiff argued that her claim was timely filed on May 7, 2010, because she did not learn she had Stage 3C breast cancer until well after her surgery on May 8, 2007. The plaintiff further argued that, "The mere discovery of cancer is not a defining event for instituting a lawsuit. . . . It is only when the patient learns that the cancer has gone from more likely curable to probably noncurable that the necessary elements for a lawsuit have accrued." The United States District Court for the District of Maryland rejected that argument, finding that the Plaintiff misinterpreted Edmonds v. Cytology Servs., 681 A.2d 546 (Md. Ct. Spec. App. 1996).

In Edmunds, the Plaintiff did not show signs of cancer for several years after her medical providers failed to diagnose her cervical cancer. The Court was "faced with the proper interpretation of "injury," pursuant to Section 5-109(a)(1), which sets forth the five-year limitations period measured from "the time the injury was committed." The Court reasoned that that the five-year period in Section 5-109(a)(1) "begins to run when injury (or 'damages') first arises, and not when all damages resulting from the physician's negligence have arisen. . . [All] that is required for an inquiry to exist 'is that the negligent act be coupled with some harm.'" The Court further reasoned that it is reasonable to assume "injury" means the same whether it applies to the five year or three year statutory period.

In Linton, the plaintiff knew that a lump under her arm was cancerous as of April 11, 2007, and knew she had breast cancer no later than April 25, 2007. Either of these events satisfied the discovery rule. Yet, she failed to file suit until May 7, 2010, outside of the three year statute of limitations.

The Court concluded as follows:

To the extent that the Edmonds opinion has precedential value for this case, it clearly does not turn on when the patient learned the specific stage of her cancer, and it would be a mistake to read into that case such an interpretation. Rather, the case was determined to warrant further fact-finding in order to measure when the patient first sustained "injury." Applying the Edmonds standard to this case does not afford Linton relief. It can reasonably be said that injury or damage first arose when she was diagnosed with cancer in April 2007 because that was "some harm."

Posted by Mark Kopelman on 08/30/2011 at 06:49 PM