Opinion
Civil Action No. 1:19-cv-917 (RDA/WEF)
2024-02-26
B.R., Plaintiff, v. F.C.S.B., et al., Defendants.
Alison Anderson, Pro Hac Vice, Boies Schiller Flexner LLP, Los Angeles, CA, Andrew S. Brenner, Pro Hac Vice, Samantha Licata, Pro Hac Vice, Boies Schiller Flexner LLP, Miami, FL, Brittany Zoll, Pro Hac Vice, Robert Keefe, Pro Hac Vice, Samantha Pedersen, Pro Hac Vice, Boles Schiller Felxner LLP, Miami, FL, Bernard Joseph DiMuro, DiMuroGinsberg, P.C., Alexandria, VA, David Alan Warrington, Gary Lawkowski, Jonathan Mark Shaw, Dhillon Law Group, Inc., Alexandria, VA, Jason Matthew Hart, Kelly N. Stevenson, Pro Hac Vice, Melissa Fry Hague, Pro Hac Vice, The Joel Bieber Firm, Richmond, VA, Jonathan Leo Fahey, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, Karin Moore Sweigart, Pro Hac Vice, Dhillon Law Group, San Francisco, CA, Vanessa Bernstein Tussey, Pro Hac Vice, Boles Schiller Felxner LLP, Fort Lauderdale, FL, for Plaintiff. Kevin Spencer Elliker, Hunton Andrews Kurth LLP, Richmond, VA, Ryan Bates, Scott Wallace Burton, Sona Rewari, Hunton Andrews Kurth, LLP, Washington, DC, for Defendant F.C.S.B. Michael Eugene Kinney, The Law Office of Michael E. Kinney, PLC, Reston, VA, Ryan Bates, Hunton Andrews Kurth LLP, Washington, DC, for Defendants S.T., A.F., P.A.H., T.B., B.H., M.P.F., M.C., F.T., J.F. James Francis Davis, James F. Davis, P.C., Fairfax, VA, for Defendant C.K. Bruce Michael Blanchard, James Paul Menzies Miller, Odin, Feldman & Pittleman, PC, Reston, VA, for Defendant J.O.
Alison Anderson, Pro Hac Vice, Boies Schiller Flexner LLP, Los Angeles, CA, Andrew S. Brenner, Pro Hac Vice, Samantha Licata, Pro Hac Vice, Boies Schiller Flexner LLP, Miami, FL, Brittany Zoll, Pro Hac Vice, Robert Keefe, Pro Hac Vice, Samantha Pedersen, Pro Hac Vice, Boles Schiller Felxner LLP, Miami, FL, Bernard Joseph DiMuro, DiMuroGinsberg, P.C., Alexandria, VA, David Alan Warrington, Gary Lawkowski, Jonathan Mark Shaw, Dhillon Law Group, Inc., Alexandria, VA, Jason Matthew Hart, Kelly N. Stevenson, Pro Hac Vice, Melissa Fry Hague, Pro Hac Vice, The Joel Bieber Firm, Richmond, VA, Jonathan Leo Fahey, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, Karin Moore Sweigart, Pro Hac Vice, Dhillon Law Group, San Francisco, CA, Vanessa Bernstein Tussey, Pro Hac Vice, Boles Schiller Felxner LLP, Fort Lauderdale, FL, for Plaintiff.
Kevin Spencer Elliker, Hunton Andrews Kurth LLP, Richmond, VA, Ryan Bates, Scott Wallace Burton, Sona Rewari, Hunton Andrews Kurth, LLP, Washington, DC, for Defendant F.C.S.B.
Michael Eugene Kinney, The Law Office of Michael E. Kinney, PLC, Reston, VA, Ryan Bates, Hunton Andrews Kurth LLP, Washington, DC, for Defendants S.T., A.F., P.A.H., T.B., B.H., M.P.F., M.C., F.T., J.F.
James Francis Davis, James F. Davis, P.C., Fairfax, VA, for Defendant C.K. Bruce Michael Blanchard, James Paul Menzies Miller, Odin, Feldman & Pittleman, PC, Reston, VA, for Defendant J.O.
MEMORANDUM OPINION AND ORDER
Rossie D. Alston, Jr., United States District Judge.
This matter comes before the Court on Defendant Fairfax County School Board's ("FCSB") Motion for Partial Summary Judgment on Title IX Damages ("Motion"). Dkt. 488. The Court has dispensed with oral argument as it would not aid in the decisional process. Fed. R. Civ. P. 78(b); Local Civil Rule 7(J). This matter has been fully briefed and is now ripe for disposition. Considering FCSB's Motion, FCSB's Memorandum in Support (Dkt. 54), Plaintiff B.R.'s Brief in Opposition (Dkt. 555), and FCSB's Reply (Dkt. 575), this Court GRANTS-IN-PART and DENIES-IN-PART the Motion for the reasons that follow.
I. BACKGROUND
The parties both complied with Federal Rule of Civil Procedure 56 and Local Rule 56 in setting forth and responding to enumerated paragraphs of undisputed facts. Although B.R. notes some minor amendments to FCSB's statement of undisputed facts, the facts as relevant to FCSB's Motion are largely undisputed.
1. B.R. initiated this lawsuit on July 12, 2019. Dkt. 1. In her Complaint and the subsequent amendments thereto, B.R. alleged that she had been raped, sexually assaulted, harassed, threatened, and bullied over a period of time during her seventh-grade year at Rachel Carson Middle School, between October 2011 and February 2012. Dkt. Nos. 1; 155. B.R. also alleged that FCSB was deliberately indifferent to B.R.'s reports of sexual abuse. Dkt. 1 ¶¶ 2-13.
2. B.R.'s Second Amended Complaint ("SAC") was filed on June 15, 2022. Dkt. 155. The SAC named FCSB, 11 identified individual, and 15 unidentified individuals as defendants. Id. As against FCSB, B.R. alleged two violations of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681(a), in Counts I and II. Id. ¶¶ 225-241.
3. In Counts I and II, B.R. incorporated her specific factual allegations previously set forth in the SAC. Dkt. 155 ¶¶ 225, 237, 323. But with respect to her damages, she specifically alleges that she has incurred "injuries, damages, and losses, including, but not limited to, emotional distress, fear, anxiety, trauma, traumatic brain injury, lost future earnings and earning capacity, and expenses for past and future educational, medical, and psychological care." Id. ¶¶ 236, 241. In a section entitled "Damages" at the end of the SAC, B.R. asserts twenty categories of damages, which she seeks from all Defendants. These include, but are not limited to:
a. Past, present, and future physical pain and mental anguish;
b. Humiliation and embarrassment associated with disfigurement and/or deformity;
c. Past and future inconvenience;
d. Personal and social limitations;
e. Past and future embarrassment;
f. Past and future humiliation;
g. Past and future loss of dignity;
h. Past and future pain and suffering;
i. Depression, anxiety, fear, emotional distress, and mental anguish;
j. Severe acute, traumatic stress disorder, severer post-traumatic stress disorder ("PTSD"), severe depression and anxiety, nightmares, and flashbacks, eating disorders, and other psychiatric disabilities and deficits;
k. Physical manifestations of emotional and psychiatric distress;
l. Neurological, cognitive, and emotional deficits; and
m. Past and future loss of enjoyment of life and life's pleasures.
4. FCSB moved under Rule 12(f) to strike B.R.'s request for emotional harm damages in Counts I and II based on the Supreme Court's decision in Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212, 142 S.Ct. 1562, 212 L.Ed.2d 552 (2022). Dkt. Nos. 161; 162.
5. The Court denied FCSB's Rule 12(f) motion without ruling on the merits. Dkt. 236 at 23. The Memorandum Opinion provided that FCSB could raise the argument anew "once the record is more fully developed and discovery into the scope of Plaintiff's damages is complete." Id.
6. In her Rule 26(a)(1) disclosures, B.R. provided a computation of her damages. Dkt. 489-1. The chart listed 21 medical providers, including doctors, hospitals, psychiatrists, and therapists for services provided between 2006 and 2022. For seven of those providers, B.R. did not list a specific damages amount. The chart listed total "Medicals" of $196,149.61.
7. FCSB also served an interrogatory requesting that B.R. "itemize[s] by amount all the damages and other relief you are seeking and the manner in which such amounts were computed or calculated, including any claims for compensatory damages, attorneys' fees, costs, and/or any other type of monetary relief that you seek against Defendant Fairfax County School Board." Dkt. 489-2 at 23-24.
8. In response, B.R. claimed "both economic and non-economic damages." Dkt. 489-2 at 24. Additionally, in response, B.R. stated that she would not disclose in narrative form all of the non-economic damages that she has suffered (unless ordered to), but that she would provide a more complete response at deposition. Id. B.R. also asserted that she "continues to incur medical expenses and economic losses as her damages are ongoing." Id. B.R. provided an "Expense Chart" as an exhibit to her response, which she described as a "list of past medical and therapeutic expenses" compiled to reflect "her economic loses through 2020." Id. According to B.R., the list does not include "Alternative Therapeutic Modalities, travel expenses to and from treating healthcare providers, associated expenses for the service dog, tutors, and costs associated with relocating the family." Id. B.R. also stated that her "life long and future economic damages will be submitted in conjunction with [her] expert['s] reports." Id.
A review of the docket reveals that, although the parties engaged in extensive litigation over motions to compel before Magistrate Judge William E. Fitzpatrick, it does not appear that FCSB ever filed a motion to compel on this issue seeking to direct B.R. to provide a more complete written response.
9. Exhibit A to Plaintiff's Answer to Interrogatories list many categories of claimed out-of-pocket expenses for each year between 2012 and 2022. Dkt. 489-2. B.R. listed a total of $676,004.21 in expenses. These categories included:
a. Medical: $488,370.10 b. Legal: $116,922.50 c. Tuition: $37,439.50 d. Physical Activities: $685.15 e. Activities: $4,267.09 f. Transportation: $15,795.44 g. Travel: $2,046.52 h. Prescriptions: $4,329.12 i. Rental: $1,648.79 j. Support Dog: $4,500
10. In June 2023, among B.R.'s expert reports related to damages, B.R. served expert reports by Alex Karras and Gary Young. Mr. Karras is a life care planner who provided a "Preliminary Life Care Plan" for B.R. and opined on the costs associated with B.R.'s future medical treatment needs, as forecasted by B.R.'s forensic psychiatric expert. Dkt. 489-3. The report projects costs of $1,543,622.46 for this "Life Care Plan." Id. During his deposition, Mr. Karras acknowledged that all of the expenses listed in his report are associated with treatment of psychiatric conditions or physical manifestations of psychiatric conditions, including PTSD. According to B.R.'s experts, PTSD is a physical injury.
FCSB asserted no alleged undisputed material facts related to the specific diagnoses that B.R. has received or whether any experts characterized those diagnoses as physical, mental or emotional injuries. Dkt. 489. In her Opposition, B.R. did produce evidence that PTSD is evidence of changes to the physical structure and function of the brain. Dkt. Nos. 555-1 ("The meta-analytic finding of greater amygdala activity in PTSD compliments the meta-analytic finding for decreased grey matter of the amygdala and supports both altered physical integrity and functional responding the amygdala in individuals with PTSD."); 555-2; 555-4.
11. B.R. also provided an expert report from a vocational specialist, Mr. Young, who opined on what B.R.'s earnings would have been as an adult but for the alleged events of her 7th grade year. Dkt. 489-5. Mr. Young opined that B.R. is totally incapable of working any job, but that — but for the alleged events of this case — she would have gone after college to obtain a professional degree and become and "thrived as a physician or attorney." Id.
II. LEGAL STANDARD
Summary judgment is appropriate only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment has the initial burden to show the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The facts shall be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "(A) party opposing summary judgment may not simply rest on the allegations of his complaint, but must instead come forward with specific evidence showing the existence of a genuine issue of fact." Muhammad v. Giant Food, 108 F. App'x 757, 764 (4th Cir. 2004) (citing Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)).
III. ANALYSIS
FCSB's motion relies primarily on the application of Cummings to this case and a determination of whether Cummings bars B.R. from seeking recovery for certain categories of damages under Title IX. As FCSB clarifies in its Reply, FCSB "does not ask the Court to resolve the existence of any particular injury, but instead asks the Court to rule on the availability of damages under Title IX." Dkt. 578 at 7 n.3 (emphasis in original). FCSB's arguments primarily fall into two categories: (i) damages that FCSB characterizes as mental or emotional; and (ii) damages for lost earnings. Like many of the arguably spurious allegations and counter-responses (or lack thereof) in this case, the parties appear to throw "everything at the wall" with respect to their arguments on damages in hopes that something sticks ... or does not. For the reasons that follow, the Motion will be granted in part and denied in part.
A. Cummings Applies to Title IX Cases
As an initial matter, the parties disagree regarding whether Cummings applies to Title IX cases. In Cummings, the Supreme Court held that a plaintiff bringing claims of discrimination under the Rehabilitation Act and the Patient Protection Affordable Care Act may not seek damages for emotional distress. 596 U.S. at 216-17, 142 S.Ct. 1562. The Supreme Court addressed the scope of remedies for a private right of action brought under antidiscrimination statutes that Congress enacted pursuant to its Spending Clause powers and determined that plaintiffs bringing such causes of action may only seek statutory damages as well as those damages "traditionally available in suits for breach of contract." Id. at 220-221, 230, 142 S.Ct. 1562. The Supreme Court then held that, because emotional distress damages are generally not available in an action for breach of contract, they are not recoverable in claims brought under the Spending Clause statutes. Id. at 221, 226-30, 142 S.Ct. 1562.
Although Cummings did not address claims under Title IX, the Supreme Court specifically referenced Title IX as an antidiscrimination statute under Congressional Spending Clause authority. 596 U.S. at 218, 142 S.Ct. 1562. Numerous district courts, including district court judges within this District, have held that Cummings precludes emotional distress damages in Title IX actions. See, e.g., Doe v. Fairfax Cnty. Sch. Bd., 2023 WL 424265, at *3 & n.1 (E.D. Va. Jan. 25, 2023) (Nachmanoff, J.) (collecting cases and holding that "Plaintiff is precluded from seeking emotional distress damages" under Cummings). B.R. concedes that every district court having considered this issue has held that Cummings applies to Title IX cases, Dkt. 555 at 22-23 & n.15; nonetheless, B.R. argues that Title IX was not passed only
pursuant to congressional Spending Clause authority, but also congressional authority pursuant to Section 5 of the Fourteenth Amendment. Id. at 24. B.R. acknowledges that the Fourth Circuit has not yet analyzed this particular issue, but other courts of appeals have held that "Cummings leaves little doubt that emotional distress damages are no longer permitted for violations of Title IX." S.C. v. Metro. Govt. of Nashville, 86 F.4th 707, 718 (6th Cir. 2023). B.R.'s argument is certainly creative, but this Court declines to depart from the language of Cummings itself, which categorized Title IX as a Spending Clause authority statute to which Cummings would apply, or from every other court to have analyzed the issue. Accordingly, this Court holds that Cummings applies to Title IX cases.
Perhaps recognizing the inherent weakness of this argument, B.R.'s Opposition brief focuses primarily on arguing that the damages she seeks are not of the same kind barred by Cummings and saves her arguments regarding the applicability of Cummings to Title IX cases at all for a short argument at the end of her brief. Dkt. 555.
B. Applying Cummings to the Damages Sought in this Case
FCSB frames its argument on the application of Cummings based on the categories of damages listed in paragraphs 236, 241, and 323 of the SAC. The parties primarily focus their arguments on whether PTSD is a physical or mental/emotional injury. Importantly, FCSB concedes that B.R. can recover "the costs of medical examination and treatment for any alleged physical harm she claims to have sustained during the alleged assaults." Dkt. 578 at 2, Moreover, although FCSB disputes that B.R. suffered from a traumatic brain injury ("TBI"), FCSB concedes that B.R. could recover for expenses and treatment related to her claimed TBI. Dkt. 489 at 10 n.4. To frame the Cummings' analysis, the Court will review the categories of damages sought that FCSB claims fall into Cummings' limitation of damages to those traditionally available in breach of contract suits.
Given this concession and FCSB's concession with respect to the alleged TBI, it appears that FCSB does not seek summary judgment with respect to other certain physical conditions alleged by B.R. such as musculoskeletal pain, pelvic pain, endometriosis, and nerve damage assuming that such conditions could be linked to the alleged physical assaults — which FCSB disputes. Comp. Dkt. 555 at 10 with Dkt. 578 at 10-11 n.6. It is unclear to the Court whether B.R. alleges that those physical ailments were caused by the assault or are physical manifestations of her PTSD. In any event, the parties do not fully develop the factual record with respect to those alleged injuries and, thus, the Court also does not consider those alleged physical injuries with respect to the rulings that FCSB seeks in the Motion.
i. Damages that are Clearly Emotional Distress Damages
Certain categories of damages sought by B.R. clearly fall into Cummings' prohibition on emotional distress damages. The following damages sought by B.R. fall squarely within that prohibition: (i) emotional distress, fear, and anxiety; (ii) mental anguish; (iii) humiliation and embarrassment; (iv) personal and social limitations; (v) loss of dignity; (vi) depression, anxiety, fear, emotional distress, mental anguish; (vii) nightmares and flashbacks; (viii) eating disorders and other psychiatric disabilities and deficits; (ix) physical manifestations of emotional or psychiatric distress; (x) emotional deficits; and (xi) loss of enjoyment of life and life's pleasures. SAC ¶¶ 236, 241, 323. Indeed, there appears to be no dispute among the parties that these kinds of damages fall squarely within the prohibition of Cummings. See Dkt. 555 at 9 (acknowledging
that the Supreme Court in Cummings did not allow the plaintiff to recover for "humiliation, frustration, and emotional distress"). Thus, the Court will grant the Motion insofar as it seeks judgment with respect to the above categories of damages.
With respect to these same circumstances, FCSB also seeks summary judgment to prohibit B.R. from recovering any medical treatment costs associated with those conditions. Here too, B.R. does not seem to disagree that such damages would be barred by Cummings. See Dkt. 555 at 19 (asserting that "FCSB erroneously characterizes B.R.'s medical treatment costs [sic] damages as being for 'emotional distress,' and then argues that Cummings bars recovery for them"). In any event, FCSB is correct in this regard; with respect to the eleven categories of mental or emotional distress listed above, B.R. also may not recover her medical expenses associated with treating those conditions. See, e.g., M.R. v. Burlington Area Sch. Dist., 2023 WL 4826471, at *5 (E.D. Wis. July 27, 2023) (recognizing "that the mental health treatment costs sought to be recovered are mere proxies for emotional distress damages and therefore unrecoverable"); A.T. v. Oley Valley Sch. Dist., 2023 WL 1453143, at *4 (E.D. Pa. Feb. 1, 2023) (granting summary judgment to school district on "Plaintiffs' claims for past, present and future medical expenses based on emotional distress such as bipolar disorder, anxiety, humiliation, embarrassment, frustration and alcohol and drug addiction and past, present and future emotional pain and suffering/mental distress"). Thus, the Court will grant the Motion insofar as it seeks judgment with respect to the medical treatment costs associated with the above-listed mental and emotional conditions.
ii. Damages Whose Origin is Ambiguous
FCSB has sought summary judgment as to the availability of certain categories of damages, rather than to adduce facts with respect to the specific damages sought by B.R. Dkt. 578 at 7 n.3. This choice places the Court at a disadvantage when determining whether certain damages are physical or emotional because FCSB has adduced no undisputed facts as to what those damages are such that the Court could more easily place those damages into an applicable category. There are four categories of damages listed in the SAC and challenged by FCSB for which the Court lacks sufficient factual information to grant FCSB's motion. Those categories are damages for: (i) inconvenience; (ii) pain and suffering; (iii) traumatic stress disorder and PTSD; and (iv) neurological and cognitive deficits. Dkt. 155 ¶¶ 236, 241, 323.
Except for B.R.'s alleged PTSD diagnosis, FCSB offers no explanation as to why the other three categories should be considered mental or emotional conditions rather than physical conditions. Neither party here describes what is meant by "inconvenience," and in the absence of any such allegations it is difficult for the Court to conclude that such damages are barred as a matter of law. FCSB's attack on B.R.'s allegations of pain and suffering and neurological and cognitive deficits are likewise puzzling. FCSB appears to assume that "pain and suffering" means emotional pain and suffering, but FCSB has adduced no undisputed facts that would support such a limitation. Indeed, in her Opposition, B.R. specifically counters that she experiences chronic pain that would make such a construction unwarranted. Dkt. 555 at 10. Moreover, in the absence of any statement of facts regarding the alleged neurological and cognitive defects that B.R. alleges, the Court connects those allegations
to the alleged TBI that B.R. asserts she experienced and which FCSB concedes is a physical injury not subject to Cummings (although it disputes that any such injury occurred). Dkt. 489 at 10 n.4. Thus, with respect to those three categories of damages, the Court will deny the Motion because FCSB has not demonstrated that there is no dispute of any material fact as to these categories of damages nor has FCSB demonstrated that it is entitled to summary judgment as a matter of law.
The closest question presented by the parties is with respect to B.R.'s alleged PTSD and associated treatment costs. In its Memorandum in Support, FCSB did not separately address B.R.'s alleged PTSD or adduce any facts related to that diagnosis. Dkt. 489. PTSD was a primary focus, however, of both the Opposition and the Reply Briefs. Dkt. Nos. 555; 478. At first blush, FCSB's argument has a certain appeal, as PTSD is often thought of conceptually as a mental health disorder, and FCSB does cite to three cases in which PTSD was held to fall under Cummings' prohibition on emotional distress damages. None of those cases, however, addressed the argument and evidence put forward by B.R. here. B.R. has introduced uncontroverted evidence in the form of expert opinions by her own and by FCSB's experts that PTSD is the result of structural and functional changes to the brain as a result of the assault. See Dkt. Nos. 555-1 (B.R.'s expert opining that trauma alters brain structure that results in PTSD); 555-13 (FCSB's expert opining that "pharmacological ... chemical changes in the brain ... drive th[e] symptoms" of PTSD).
See, e.g., Doe v. City of Pawtucket, 633 F.Supp.3d 583, 589-90 (D.R.I. 2022) (identifying "post traumatic syndrome" as one of "varying forms or descriptions of emotional distress" and granting summary judgment on such damages); Doe v. Duerfahrd, 2022 WL 17253080, at *1, *3 (N.D. Ind. Nov. 28, 2022) (granting motion for judgment on the pleadings under Cummings in a case where the plaintiff alleged she had "been diagnosed with Post Traumatic Stress Disorder, panic disorder, and agoraphobia" attributed to her assaults); Doe v. Sch. Bd. of Palm Beach Cnty., 2022 WL 17988203, at *5, *7 (S.D. Fla. Nov. 22, 2022) (granting summary judgment under Cummings where plaintiff had "post-traumatic stress and emotional distress caused from her assault," though noting the finding as "functionally moot" given the availability of such damages for remaining tort claims).
It is worth noting that, because FCSB cited these cases in the Reply, B.R. had no opportunity to respond. Moreover, the three cases that FCSB cites do not address PTSD specifically and do not address any arguments that PTSD is a physical injury. See City of Pawtucket, 633 F.Supp.3d at 589-90; Duerfahrd, 2022 WL 17253080, at *1, 3; Sch. Bd. of Palm Beach Cnty., 2022 WL 17988203, at *5, *7.
FCSB has put forth a rather complicated response to B.R.'s expert evidence. First, FCSB obliquely argues that "Cummings does not distinguish 'emotional' from 'physical' injuries, or opine that physical injuries are compensable in contract cases." Dkt. 578 at 7-8. But this contradicts FCSB's own admission that "Plaintiff may obtain only the costs of medical examinations and treatment for any physical harm she claims to have sustained during the alleged assaults" and its admission that B.R's TBI injury would be compensable (if it exists and is associated with the assault). Dkt. Nos. 489 at 10 n.4; 578 at 2. The Restatement (Second) of Contracts likewise recognizes that damages for physical injury are among the traditionally available contract remedies. See, e.g., Restatement (Second) of Contracts § 347 cmt. c. (Am. Law Inst. 1981) ("Consequential losses include such items as injury to person or property resulting from defective performance."). Moreover, as FCSB concedes, district courts have also recognized that
Title IX plaintiffs may recover for physical injuries. Dkt. 578 at 8 n.4.
See City of Pawtucket, 633 F. Supp. 3d at 590 (denying defendant's motion for summary judgment on Title IX plaintiff's damages for medical expenses for treatment of physical injuries because "many sources to which the Supreme Court referred in Cummings also noted the availability of damages for physical injury in breach of contract actions" and "these damages have been available in breach of contract actions"); Pennington v. Flora Cmty. Unit Sch. Dist. No. 35, 2023 WL 348320, at *2 (S.D. Ill. Jan. 20, 2023) ("Plaintiffs very clearly requested medical expenses, which the allegations attribute to treatment for physical injuries they suffered as a result of bullying, as well as treatment for the psychological injuries. As the Court sees it, these are compensatory damages for economic losses, which Cummings did not preclude."); Doe v. Town of N. Andover, 2023 WL 3481494, at *12 (D. Mass. May 16, 2023) ("Cummings does not bar [the plaintiff's] Title IX claims wholesale where she seeks remedies beyond emotional distress damages.").
Next, FCSB argues that PTSD is not a physical injury but a proxy for the kind of emotional injuries barred under Cummings. To that end, FCSB offers no expert opinions or factual implications to counter B.R.'s evidence. Although FCSB attempts to categorize this determination as one that the Court can make as a matter of law, the kind of injury sustained by B.R. and the origination of that injury and whether it is caused by a change to the structure of her brain appears heavily fact-bound and FCSB has introduced no facts, expert or otherwise, regarding B.R.'s PTSD. FCSB further asserts that recognizing PTSD as a physical ailment would open the door to all forms of mental and emotional distress damages contrary to Cummings. Not so. The limiting principle would be that the damages must be connected to physical changes wrought by a physical injury. Although the Court could find no Title IX cases addressing the precise question raised here (and the parties have cited none), in other contexts, courts have recognized that plaintiffs may pursue a similar argument. Moreover, it is difficult to see what the line is between the brain injuries that FCSB admits are compensable (TBI) and those which it argues are not (PTSD). FCSB makes no attempt to explain the dissonance between those positions, if (as B.R.'s experts maintain) both stem from changes to the brain. In sum, the burden is on FCSB as the movant to establish that there are no genuine disputes of fact and that it is entitled to judgment as a matter of law. FCSB has failed to do so here, and so the Motion will be denied with respect to PTSD damages.
See, e.g., Turturro v. Continental Airlines, 128 F. Supp. 2d 170, 178-79 (S.D.N.Y. 2001) ("New technology has allowed doctors to perceive that extreme stress, such as a near death experience or being taken hostage, can actually change brain cell structure and cause a specific area of the brain to atrophy. Although not every PTSD patient will display the same biological abnormalities, objective evidence exists in some cases brain damage has ensued.... [Thus,] we acknowledge that under some circumstances a diagnosis of chronic PTSD may fall within the Convention's definition of 'bodily injury.'"); In re Air Crash Taipei, Taiwan on October 31, 2000, 2004 WL 5642007, at *4 (C.D. Cal. Sept. 3, 2004) (recognizing that an airline passenger "may recover for PTSD to the extent that PTSD results from a bodily injury" and that "[w]hether a physical injury caused PTSD or whether the PTSD caused physical manifestations, such as changes to the brain, are questions of fact not properly before the Court").
It is important to note that the Court does not find as a matter of law that PTSD is a physical injury. The Court merely finds that it lacks an adequate factual predicate on this record to determine that PTSD qualifies as a mental or emotional distress such that it would be barred by Cummings.
In sum, because FCSB has failed to meet its burden on summary judgment with respect to whether inconvenience,
pain and suffering, neurological and cognitive defects, and PTSD constitute physical or emotional injuries, the Motion will be denied with respect to those claimed damages. Furthermore, because FCSB admits that B.R. is entitled to expenses for medical treatment related to physical injuries, the Motion will also be denied with respect to the medical treatment costs associated with those conditions. Dkt. 578 at 2.
iii. Damages for Lost Future Earnings and Earning Capacity
In the SAC, B.R. asserts that she has incurred damages related to "lost future earnings and earnings capacity." Dkt. 155 ¶¶ 236, 241. FCSB argues that these damages also fail under Cummings because B.R.'s generalized claim for lost earnings damages are too speculative and attenuated to constitute traditional contractual remedies. Dkt. 578 at 14-15. Both parties rely on Judge Nachmanoff's decision in his Fairfax County School Board case and the Fourth Circuit's decision in Rice v. Community Health Association, 203 F.3d 283 (4th Cir. 2000) to support their positions. Dkt. Nos. 489 at 11-12; 555 at 15-16; 578 at 14-15.
Authorities generally recognize that "[c]onsequential damages for lost earning capacity may be awarded in breach of contract cases where a plaintiff alleges 'the loss of identifiable professional opportunities'" and where a plaintiff "alleges and proves with specificity that the defendant's breach actually adversely influenced or affected job opportunities.'" Fairfax Cnty. Sch. Bd, 2023 WL 424365 at *6 (citing 24 Williston on Contracts § 66.4 (4th ed. 2022)). More specifically, the Fourth Circuit has held, in the context of a breach of contract action, that plaintiffs must plead and prove "future identifiable professional opportunities that would have been available to [them] absent the breach" and that were contemplated by the parties when they formed the contract. Rice, 203 F.d at 288-89. The Fourth Circuit held that, absent such pleading and proof, "such consequential damages are simply too speculative and the contracting parties cannot reasonably be presumed to have anticipated such damages at the time they entered into a contract." Id.
Here, B.R. relies on an expert report from Mr. Young that asserts that B.R. is incapable of maintaining a job and that, but for the alleged assaults that are the subject of this case, B.R. would have been a highly successful lawyer or surgeon. Dkt. 555-6. The Court agrees with FCSB that B.R.'s lost earnings and lost earnings capacity are much too speculative and attenuated. The Court could find only two cases addressing lost earnings capacity in relation to a Title IX claim: (i) the Fairfax County School Board case, which was cited by the parties, Judge Nachmanoff held that a plaintiff's similar allegations regarding "lost future earnings and earning capacity" failed to set forth identifiable lost professional opportunities and were too attenuated in time from the alleged Title IX violations, 2023 WL 424265, at *6-*7; and (ii) Doe v. Trustees of Dartmouth College, 699 F.Supp.3d 171 (D.N.H. Oct. 18, 2023), which similarly found that damages related to lost earnings capacity were too speculative. As the Fourth Circuit has made clear, consequential damages relating to lost economic opportunities are not recoverable simply because a plaintiff specifies an aspirational position, as they must have been anticipated or contemplated at the time of contracting. See Rice, 203 F.3d at 289 (holding that "regardless of how such a claim is characterized, it is plagued with the same problem as a claim for consequential damages for injury to reputation: such consequential damages are simply too speculative and the contracting parties cannot reasonably be presumed to have
anticipated such damages at the time they entered into a contract"). Thus, it is not that the Rice court held that such claims for loss of earnings capacity are based on reputational harms — as argued by B.R. but that claims for lost earnings capacity face the same proof problem as claims for reputational harm in a contract case and are too speculative. Accordingly, the Court will grant FCSB's Motion with respect to B.R.'s alleged damages based on lost future earnings and lost earnings capacity.
B.R. cites no contrary case law and instead relies on her expert report. B.R.'s expert report only supports the speculative nature of her damages. Mr. Young extrapolates from B.R.'s acceptance to an internship program at Sidley Austin as a project assistant that, absent the alleged assaults, B.R. would have become an attorney and earned $211,850 annually and extrapolates from her interest in medicine that, absent the alleged assaults, B.R. would have become a surgeon and made $305,150 per year. Dkt. Nos. 555-6 (extrapolating ability to become an attorney based on internship program); 555-10 (testimony regarding nature of the program and role as a project assistant). Moreover, Mr. Young's conclusions in this regard are incomplete and trail off without explanation: "Prior to this she would have thrived as a physician or attorney. She has an [sic] vocational economic loss between [sic]." Dkt. 555-6 (sentence suddenly concludes without completing the thought).
B.R. also argues that she identified two particular positions that she did have post-high school: a position at Sloan Kettering Cancer Center and a project assistant position at Sidley Austin. Dkt. 555 at 16-17. However, Plaintiff does not rely on those positions for her calculations of her damages. Dkt. 555-6. Moreover, it is unclear whether and how much B.R. was paid for those positions. Dkt. 555-10 at 180-82 (discussing that certain positions at the Sloan Kettering Cancer Center were unpaid and others were "very low paid"). Even so, again, those positions are attenuated from the alleged assaults, Fairfax Cnty. Sch. Bd., 2023 WL 424265, at *7, and were not contemplated at the time B.R. attended Rachel Carson Middle School as a seventh grader, Rice, 203 F.3d at 289.
Absent from the discussion of losses is any accounting for the opportunity costs and tuition costs to obtain a law degree or a medical degree. Dkt. 555-6 at 15. Indeed, Mr. Young calculates B.R.'s lost wages based on a life expectancy of 56 years from her age — 23 years old — at the time of the report. Id. at 13 (describing calculation of life expectancy of 23 plus 56 years of working); id. at 15 (calculating 56 years of wage losses as a doctor or lawyer). However, that fails to take into account that, even if B.R. went straight from undergrad to medical school or law school, she would not have yet graduated from either and also fails to take into account that doctors go through a period of residency where they make significantly less than Mr. Young's expected salary of $305,000.
B.R. argues that the rejection of this expert opinion is unconscionable and that it would immunizes school officials from the consequences of life-altering injuries based on the age of the student at the time of the Title IX violation. Dkt. 555 at 18-19. But this is the effect of Cummings' holding — that there will be damages that will be uncompensated because of the application of traditional contract law principles to Title IX cases. See Cummings, 596 U.S. at 240, 142 S.Ct. 1562 (Breyer, J., dissenting) (recognizing that "the Court's decision today means that those same remedies will be denied to students who suffer discrimination at the hands of their teachers ..."). Thus, this argument fails to persuade this Court that Cummings does not apply or that traditional contract principles would enable B.R. to recover the generalized and speculative lost earnings capacity that she has identified. Just as this Court would be precluded from ordering remedies for either of the parties not encompassed by this lawsuit, this Court is likewise precluded
from ordering generalized and speculative lost earnings capacities not compensable under the law.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant FCSB's Motion for Partial Summary Judgment (Dkt. 488) is GRANTED-IN-PART and DENIED-IN-PART; and it is
FURTHER ORDERED that the Motion is granted insofar as B.R. sought damages based on the following categories: (i) emotional distress, fear, and anxiety; (ii) mental anguish; (iii) humiliation and embarrassment; (iv) personal and social limitations; (v) loss of dignity; (vi) depression, anxiety, fear, emotional distress, mental anguish; (vii) nightmares and flashbacks; (viii) eating disorders and other psychiatric disabilities and deficits; (ix) physical manifestations of emotional or psychiatric distress; (x) emotional deficits; (xi) loss of enjoyment of life and life's pleasures; (xii) medical expenses and treatment costs associated with the foregoing conditions; and (xiii) lost future earnings and earnings capacity; and it is
FURTHER ORDERED that the Motion is denied insofar as B.R. sought damages based on: (i) inconvenience; (ii) pain and suffering; (iii) traumatic stress disorder and PTSD; or (iv) neurological and cognitive deficits; and it is
FURTHER ORDERED that the parties are DIRECTED to meet and confer within TEN DAYS of the issuance of this Memorandum Opinion and Order to discuss whether any portion needs to remain under seal and to discuss any appropriate redactions for a public version; and it is
FURTHER ORDERED that, if the parties cannot agree regarding what portions of this Memorandum Opinion and Order should remain under seal or should be redacted from a public version (if any), the parties are DIRECTED to contact the chambers of Magistrate Judge William E. Fitzpatrick within FOURTEEN DAYS of the issuance of this Memorandum Opinion and Order for a briefing schedule and a hearing date to resolve the dispute.
It is SO ORDERED.