[00:00:00] Speaker 00:
Next case 16-7103, Antoinette Burns, D.O., up for the appellant versus Matthew D. Levy, M.D.

[00:00:10] Speaker 00:
et al.

[00:00:11] Speaker 00:
Mr. Henan for the appellant, Mr. Schuler for the appellees.

[00:00:36] Speaker 05:
Thank you, Your Honor.

[00:00:37] Speaker 05:
Good morning, and may it please the court.

[00:00:39] Speaker 05:
Thank you for hearing argument in this case.

[00:00:42] Speaker 05:
I'm honored to be here.

[00:00:47] Speaker 05:
The district court, in our view, gave insufficient attention to the role played by Jamie Padmore, who was an officer of both the hospital and MedStar.

[00:01:01] Speaker 05:
In particular, the role that she played on December 11th and December 12th of 2012.

[00:01:09] Speaker 05:
And as a prelude to discussing that, there were two offer letters to Lieutenant Colonel Burns for her fellowship, one June 2nd of 2011 on the hospital

[00:01:25] Speaker 05:
stationary met star stationary and when later when she arrived august first of twenty eleven on the university stationary

[00:01:34] Speaker 05:
And the district court made no comment on the difference between these two.

[00:01:41] Speaker 05:
In fact, in a footnote, the court suggested that perhaps the August 1 letter was simply an amendment to the June 2 letter.

[00:01:49] Speaker 05:
But it's important to us and important to Lieutenant Colonel Burns that both of these letters offered her the very same fellowship.

[00:02:00] Speaker 05:
And these offer letters resulted in her beginning her fellowship and coming under the tutelage of defendant Dr. Levy.

[00:02:11] Speaker 05:
And after difficulties with Dr. Levy on April 3rd of 2012, and again this is a prelude to the involvement of Jamie Padmore,

[00:02:21] Speaker 05:
She was brought in and Dr. Levy and Dr. Nelson gave her a letter of April 3rd of 2012 dismissing her, and this is significant in the first sentences, dismissing her from, quote, research fellowship agreement with Georgetown University Medical Center and dismiss you from the community pediatrics and child advocacy fellowship program.

[00:02:47] Speaker 05:
It's important to us to highlight those two different programs that are both identified in this initial dismissal letter actually given to Lieutenant Burns on April 3rd of 2012 because she subsequently

[00:03:06] Speaker 05:
resigned her fellowship, and Dr. Nelson accepted her fellowship in a letter of December 11th of 2012 that we know was created by the intellectual author of what we call the dual fellowship theory, Jamie Padmore.

[00:03:24] Speaker 02:
Now what was not?

[00:03:26] Speaker 02:
Before we get to Ms.

[00:03:27] Speaker 02:
Padmore, the centerpiece of your concern is the

[00:03:34] Speaker 02:
summative assessment that came out and how it described her conduct.

[00:03:40] Speaker 02:
Yes.

[00:03:42] Speaker 02:
And that summative assessment was requested by and sent to the Air Force, correct?

[00:03:50] Speaker 05:
The Air Force asked in a verification form sent out for the hospital to report

[00:04:00] Speaker 05:
by filling in some blanks, one of which was whether she was the subject of any discipline, to which Dr. Levy answered yes.

[00:04:08] Speaker 05:
And there had been a previous inquiry by both Colonel Grau and Colonel Tankersley asking for specific explanations as to why the termination took place.

[00:04:20] Speaker 05:
sharing with them at any point in time that there was some sort of dual fellowship.

[00:04:26] Speaker 02:
Yeah, I'm not going to the dual fellowship.

[00:04:28] Speaker 02:
What I'm trying to figure out here is if the alleged harm is that after there were the exchange of letters and she withdrew from the fellowship, MedStar sent a letter to the Air Force that contained a final summative assessment.

[00:04:46] Speaker 02:
Yes.

[00:04:48] Speaker 02:
But the Air Force,

[00:04:51] Speaker 02:
which was a party to these contracts, asked for that assessment and was entitled to that assessment.

[00:04:59] Speaker 02:
They asked for it before her termination.

[00:05:03] Speaker 04:
I agree with that.

[00:05:04] Speaker 02:
Right, JA 421.

[00:05:05] Speaker 02:
They say that however this gets resolved, we're going to need a final summative assessment.

[00:05:11] Speaker 02:
So they had a right to that information as a matter of these contracts, correct?

[00:05:16] Speaker 05:
They had a right to the information, that's correct.

[00:05:18] Speaker 02:
So MedStar had to send it to them.

[00:05:20] Speaker 05:
Meznar did not have to send to them what they sent to them.

[00:05:24] Speaker 05:
They had to send them an honest, summative assessment of... Well, that's a determination that the district court made that we believe is a determination that must be made by a jury.

[00:05:35] Speaker 05:
Whether they had to send it or whether it was honest.

[00:05:40] Speaker 02:
They had to send it.

[00:05:41] Speaker 04:
But it was truthful.

[00:05:42] Speaker 04:
OK.

[00:05:43] Speaker 04:
But it was truthful and made with malice, right?

[00:05:47] Speaker 04:
That's correct.

[00:05:48] Speaker 04:
Have you put into the record material from which a court could say that it was made with malice, putting aside the question of the assertion that she was dismissed, the details of her conduct at the hospital?

[00:06:09] Speaker 05:
malice is quintessentially a factual issue for determination by the jury, and in this particular case, the district court looked at the record, plucked out of it some benign information,

[00:06:26] Speaker 05:
And the district court described the language used by Dr. Levy in the assessment as being within the realm of acceptable professional language under the standard of the mosque.

[00:06:39] Speaker 04:
That's irrelevant.

[00:06:40] Speaker 04:
I tend to agree with you.

[00:06:44] Speaker 05:
Well, there's a panoply of contested material facts, probably about 116, that we presented to the district court in response to Georgetown's assertion that everything that was contained in that summative assessment was true.

[00:07:01] Speaker 05:
And the record of the falsity of the information that was included there that we made in the district court is so lengthy that in our brief, Your Honor,

[00:07:12] Speaker 05:
pardon me, but we referred the court to that contest of material facts.

[00:07:18] Speaker 05:
And the problem that your honor has now is that the district court didn't make any findings of fact on the particular

[00:07:27] Speaker 05:
components of the summative assessment.

[00:07:31] Speaker 04:
But more importantly... I didn't see in your brief any effort to persuade us that the facts in favor of your client were so clear that one could infer, a jury could infer malice by the hospital.

[00:07:48] Speaker 05:
The explanation for that, I suppose, is that the argument that was made by Georgetown was fairly benign, and the court's treatment of it was fairly benign.

[00:08:01] Speaker 05:
And the extensive nature of the contest over this, it went on for pages and pages and pages in the cross motions for, excuse me, in the motion for summary judgment.

[00:08:11] Speaker 05:
And this court, I think in fairness to the position that we took on behalf of Lieutenant Colonel Burns,

[00:08:17] Speaker 05:
This court is in the same position as the district court in determining the truth or falsity, the malice or not of the information contained there.

[00:08:26] Speaker 05:
If the district court didn't do it, I apologize to this court, but the district court has basically left to this court the responsibility of trying to go through that and determine whether there's no fact in dispute that's material.

[00:08:40] Speaker 02:
Well, it's left to you to show it to us.

[00:08:42] Speaker 02:
I had thought part of your argument was that the

[00:08:45] Speaker 02:
the whole concoction, as you would say, of the termination letter from MedStar, that it was written the day after she resigned, but then backdated and never served on anybody, and that that was

[00:09:05] Speaker 02:
the predicate every starting point for an inference of malice that they seem to be creating post-hoc absolutely and that's just your characterization though that's obviously for them or a jury to address but absolutely and it's important to understand that the summative assessment is from the standpoint of the district court's assessment

[00:09:26] Speaker 05:
of the niceties of the legal documents here.

[00:09:30] Speaker 05:
This is on the MedStar stationary, the summative assessment.

[00:09:36] Speaker 05:
And it indicates that she was dismissed because of academic performance.

[00:09:40] Speaker 05:
Academic performance is part of the obligation of the university under the dual

[00:09:46] Speaker 05:
fellowship period has nothing to do with MedStar.

[00:09:50] Speaker 05:
And their position seems to be that MedStar had the right to report to the Air Force that Lieutenant Colonel Burns had been subject to discipline and was dismissed because there had to be some relationship between MedStar and Lieutenant Colonel Burns.

[00:10:09] Speaker 05:
If MedStar has the right to report

[00:10:13] Speaker 05:
that she has been dismissed from the program that the hospital operates, then how could there not be an obligation between MedStar and Lieutenant Colonel Burns to treat her fairly, to provide her with due process, according to the Accreditation Council of Graduate Medical Education, to insist, as our expert Matthew Blaschke indicated,

[00:10:39] Speaker 05:
someone who's quite distinguished in this area, to insist that if you're going to do a summative assessment at the end of the day, then what you do during the course of the fellowship training must also comply with the ACGME standards,

[00:10:54] Speaker 05:
by giving Lieutenant Colonel Burns intermediate feedback on her performance and an opportunity, quite frankly, to even have input into the summative assessment.

[00:11:06] Speaker 05:
I'm quite surprised, quite frankly, that the district court judge, who's quite experienced in medical education cases, didn't recognize that Dr. Blaschke's opinion about due process within the medical education program was so important in considering

[00:11:23] Speaker 05:
what the facts were in this case and what the standards were for determining the motion for summary judgment.

[00:11:31] Speaker 02:
Thank you.

[00:11:31] Speaker 02:
We'll hear from the other side now.

[00:11:46] Speaker 03:
Morning, Your Honors.

[00:11:47] Speaker 03:
May it please the Court.

[00:11:48] Speaker 03:
I would like to start my argument with comments on two points in Dr. Burns' reply brief.

[00:11:55] Speaker 03:
First, as to the defamation counts, MedStar and Dr. Levy fully agree with Judge Kolar-Katelli that common interest privilege applies and bars the defamation claims.

[00:12:06] Speaker 03:
That said, they also argue that peer review statute of the District of Columbia is an express policy of the District of Columbia government and should apply first as a threshold decision point in cases like this, which clearly implicate peer review.

[00:12:21] Speaker 02:
It doesn't apply when?

[00:12:23] Speaker 02:
It's just unclear whether common interest and peer review even apply when the party getting the information is itself a party to the, has a contract right to that information.

[00:12:33] Speaker 02:
Does it still apply?

[00:12:34] Speaker 03:
Yes, Your Honor.

[00:12:36] Speaker 03:
It's not outside, it's not a question of contract in my view, it's a question of the graduate medical education standards which suggest peer review in all matters.

[00:12:47] Speaker 03:
In fact, I would say there was an obligation on MedStar's part

[00:12:50] Speaker 03:
not a right, but an obligation to provide peer review information to the Air Force whether or not that Star Wars contractual party with the Air Force, because that's an expectation within graduate medical education.

[00:13:04] Speaker 03:
And then the statute in turn offers protections for those who participate in peer review because of the important public policy behind having accurate information about medical professionals and other care providers.

[00:13:16] Speaker 02:
I get that.

[00:13:17] Speaker 02:
It's just it's a little different animal when you have someone

[00:13:21] Speaker 02:
the military sending someone for education as part of their active duty, that the prime party to this is actually the Air Force, not Dr. Burns.

[00:13:31] Speaker 02:
And so it is their contract, their fellowship, that she's doing at their direction as part of her education.

[00:13:39] Speaker 02:
And I'm trying to figure out whether you've seen prior cases that involved

[00:13:44] Speaker 02:
active-duty military graduate students and the transmission of information between the educators and the military, which is itself the prime party to the contract.

[00:13:55] Speaker 03:
I haven't, Your Honor, but in the testimony that was taken from the Air Force, former Air Force officers, they were retired by the time they were deposed, they talked about it as being standard operating procedure for them to request from the training institution

[00:14:12] Speaker 03:
information about the officer candidate.

[00:14:16] Speaker 03:
Partly that was because they require it for their medical education and partly it's because the officer is assigned to the AFIT, the airport institution for training.

[00:14:27] Speaker 03:
So they're no longer under military supervision at the time when they're performing those services and getting that training.

[00:14:34] Speaker 03:
So they want input from the institution for purposes of their documentation of their own internal record keeping.

[00:14:41] Speaker 01:
You know, the oddity here is, as I understand your argument, you're saying that her resignation

[00:14:47] Speaker 01:
nullified her retroactive resignation, nullified any obligation on your part to afford her due process, which doesn't seem to me you're otherwise contesting that she would have.

[00:15:01] Speaker 01:
And in university settings, at least in my experience, there normally would be that opportunity.

[00:15:08] Speaker 01:
But you're saying, no, that's all washed away because she resigned.

[00:15:11] Speaker 01:
So the question in my mind is,

[00:15:14] Speaker 01:
Why doesn't that retroactive reservation nullify whatever right you thought you had to pass on negative assessments that had not been garnered pursuant to due process?

[00:15:25] Speaker 03:
Your Honor, there are two answers to that, and it goes back to the fact that there were two institutions involved, one of which had a contractual agreement with Dr. Burns, and that was Georgetown University.

[00:15:35] Speaker 03:
That's the contract from which she resigned, and whatever due process rights she had in that agreement, first Georgetown thinks were satisfied because it had a right to dismiss her, fairly or unfairly in terms of others' view of due process, but the contract

[00:15:52] Speaker 03:
expressly allowed it to dismiss her without process under certain circumstances.

[00:15:56] Speaker 03:
And at the time of the dismissal, Georgetown believed that that clause had been triggered.

[00:16:01] Speaker 03:
That subsequently gets washed out, Your Honor, because she resigns from the agreement with Georgetown.

[00:16:06] Speaker 03:
That leaves MedStar in a different setting than Georgetown.

[00:16:11] Speaker 03:
MedStar offers process to medical personnel through its House Officers Manual, and that includes those who are in training.

[00:16:25] Speaker 03:
And in fact, MedStar offered Dr. Byrne's due process and Dr. Byrne's expert.

[00:16:31] Speaker 02:
After the fact due process.

[00:16:34] Speaker 03:
Which is what their manual provides for.

[00:16:36] Speaker 03:
it is always after the fact.

[00:16:38] Speaker 03:
I understand that my learned opponent talked about Dr. Blaschke talking about process in advance.

[00:16:45] Speaker 03:
That is not required by ACGME standards.

[00:16:50] Speaker 03:
This fellowship was not subject to ACGMA standards in the first place because pediatric fellowships are not, which Dr.

[00:16:58] Speaker 03:
Burns expert read with but nevertheless they offered her within three weeks after they they offered her due process as a post dismissal review and she declined.

[00:17:12] Speaker 03:
Dr. Burns expert.

[00:17:14] Speaker 02:
Just to be clear the bay there is MedStar or Georgetown?

[00:17:18] Speaker 03:
MedStar.

[00:17:20] Speaker 03:
Dr. Burns' expert admitted in his deposition that the process offered by MedStar met the applicable medical standards for the accreditation body.

[00:17:31] Speaker 03:
That's at appendix page 554 at paragraph 155, and the transcript cites reference.

[00:17:37] Speaker 03:
MedStar's expert agreed, and Dr. Burns opted not to invoke that.

[00:17:42] Speaker 02:
Did her relationship, whatever is characterized with MedStar, terminate?

[00:17:47] Speaker 02:
At the same moment, her relationship with Georgetown terminated?

[00:17:50] Speaker 02:
Or is your theory that they separately terminated?

[00:17:55] Speaker 03:
Your Honor, they were terminated at the same time, and that would have been at the April 3rd meeting with Dr. Burns where she was presented with the original notice of termination, and that notice of termination issued by Georgetown specifically referenced both the research training, research fellowship agreement and the program.

[00:18:18] Speaker 02:
So you agree that there's one fellowship here as well, not two?

[00:18:21] Speaker 03:
Yes, Your Honor, there was an agreement with Georgetown to be placed into a fellowship training program that included two components, one of which was the Masters of Public Health, which was offered by George Washington University, and then there was the clinical aspect, which was going to be, or she was going to be placed within the clinic at MedStar, and MedStar was going to supervise for that.

[00:18:48] Speaker 02:
Eight months later and in December did MedStar feel obliged to prepare a letter terminating her and including in that letter all the negative information, she says is false, you obviously do not, that is the center of this case.

[00:19:06] Speaker 03:
Because MedStar's position, meaning that she had been terminated from her position within the clinical training program that it operated, had been covered by the initial letter prepared by Georgetown and given to Dr. Burns on April 3rd.

[00:19:24] Speaker 03:
when Georgetown subsequently made a decision to allow Dr. Burns to resign from her research fellowship agreement, that did not include MedStar and MedStar's dismissal of her from a medical training program.

[00:19:38] Speaker 03:
So it had to.

[00:19:39] Speaker 02:
So suddenly then now there's two things, two fellowships.

[00:19:43] Speaker 02:
That doesn't, that seems.

[00:19:45] Speaker 03:
Well, not too fairly.

[00:19:46] Speaker 02:
And then if you do them back, then date the letter honestly.

[00:19:49] Speaker 02:
Date it December, not backdate it to April.

[00:19:52] Speaker 03:
Insert it on somebody.

[00:19:53] Speaker 03:
From MedStar's position, it never changed.

[00:19:56] Speaker 03:
Dr. Burns didn't ask to be allowed to resign, asked MedStar to be allowed to resign from the clinical.

[00:20:05] Speaker 02:
Well, you just said it was one fellowship.

[00:20:07] Speaker 02:
She resigned from the one fellowship.

[00:20:08] Speaker 02:
She didn't know that suddenly, or not suddenly, shall I say eight months later,

[00:20:13] Speaker 02:
eight months after the April termination that it was going to suddenly get divided into two with two different letters coming out with the very information she was trying to stop.

[00:20:22] Speaker 03:
Well, she also didn't leave the program at George Washington University.

[00:20:27] Speaker 03:
There were components of her training that she was.

[00:20:31] Speaker 03:
No.

[00:20:32] Speaker 02:
You're not representing GW, right?

[00:20:34] Speaker 03:
I am not.

[00:20:35] Speaker 02:
I mean, that apparently, no one's fighting about whatever happened with GW, so.

[00:20:40] Speaker 03:
Which is my point, Your Honor, is that if Dr. Burns somehow perceived this to be a unified whole,

[00:20:48] Speaker 02:
She figured Georgetown and MedStar were the unified whole, and you're the one, I thought you had just said to me, and I'm sorry if I misunderstood, that you yourselves considered it a single fellowship, and that when one terminated, the other terminated instantaneously, and that's what the...

[00:21:03] Speaker 03:
agreements say there was a research fellowship agreement that doctor burns entered into with Georgetown University and which Georgetown University had an understanding with which with her Air Force training command.

[00:21:19] Speaker 03:
And both of those agreements contemplated that Dr. Burns would participate in a clinical program offered by MedStar as part of her research fellowship agreement with Georgetown University.

[00:21:34] Speaker 03:
So in effect, Georgetown turns to MedStar and says, we have a fellow, we would like you to put her into your training program through the children's clinic.

[00:21:44] Speaker 03:
MedStar does so.

[00:21:46] Speaker 03:
It has an independent obligation as a medical training facility to have someone in that program subject to the rigors of academic medical training.

[00:22:01] Speaker 03:
That's what the revised, or the second April 3rd letter represents, is Georgetown's notification, or excuse me, MedStar's notification that Dr. Burns has not completed that program.

[00:22:15] Speaker 02:
was never sent to anybody.

[00:22:17] Speaker 02:
They had this great obligation to do it, but didn't send it to anybody.

[00:22:20] Speaker 03:
Well, Your Honor, that was not by intent.

[00:22:23] Speaker 03:
It was by inadvertence.

[00:22:24] Speaker 02:
Well, that sounds like a fact allegation.

[00:22:27] Speaker 02:
But the reality is that this thing didn't materialize until, I take it, at least there's grounds for a jury to determine.

[00:22:35] Speaker 02:
There's factual allegations here that it was drafted the day after she withdrew from her fellowship with Georgetown.

[00:22:46] Speaker 03:
I wouldn't say backdated, Your Honor, because it was essentially the same letter as was issued.

[00:22:54] Speaker 02:
It was written in December and dated in April.

[00:22:57] Speaker 03:
It was signed in December with an April date.

[00:22:59] Speaker 03:
I agree with that, Your Honor.

[00:23:00] Speaker 02:
Was it not written by them?

[00:23:02] Speaker 02:
When did they write it?

[00:23:03] Speaker 03:
They wrote it after the Georgetown University made its decision that it was going to release Dr. Burns to her fellowship.

[00:23:09] Speaker 02:
I get that.

[00:23:10] Speaker 02:
When did it?

[00:23:10] Speaker 02:
I thought I saw on the record that it was written in December, the day after she was through.

[00:23:14] Speaker 03:
Yes, Your Honor.

[00:23:15] Speaker 03:
I'm sorry.

[00:23:15] Speaker 03:
I was trying to say that.

[00:23:16] Speaker 03:
So, Your Honor, the perspective that Georgetown and MedStar have on that is that each institution was free to make a decision, as George Washington would have been, with respect to Dr. Burns' position with it

[00:23:33] Speaker 03:
Georgetown honored her question.

[00:23:35] Speaker 01:
How could you don't need to suggest that she could have continued once she resigned?

[00:23:42] Speaker 01:
Once the original resignation, she's done.

[00:23:46] Speaker 01:
MedStar's not going to continue her after she's resigned with the university or whatever.

[00:23:51] Speaker 03:
MedStar had already dismissed her.

[00:23:53] Speaker 03:
It dismissed her in April, as did Georgetown.

[00:23:55] Speaker 03:
Georgetown agreed to allow her instead to resign from her agreement, which is what she asked.

[00:24:01] Speaker 03:
That's how her letter is phrased.

[00:24:04] Speaker 03:
And Georgetown University responds in kind.

[00:24:06] Speaker 01:
And if you look at Dr. Merck's letter... Can you say that resignation arrangement has no effect on MedStar?

[00:24:13] Speaker 03:
Yes.

[00:24:14] Speaker 03:
has no effect on... And MedStar had already dismissed her.

[00:24:18] Speaker 03:
MedStar did not need to take any further action.

[00:24:20] Speaker 02:
No, but the dismissal, at least JA-166, Rosa fell with what Georgetown did.

[00:24:25] Speaker 02:
And so why wouldn't the withdrawal do the same thing?

[00:24:29] Speaker 02:
Rise and fall with what Georgetown did.

[00:24:30] Speaker 02:
You're not completely separate entities like GW here.

[00:24:34] Speaker 03:
The letter that is issued to Dr. Burns, the original letter in April, which is given to her in real time, references both the Georgetown research fellowship agreement and the program in which Dr. Burns was placed by Georgetown with the consent of MedStar.

[00:24:55] Speaker 03:
So it's dismissing her from both of those at the same time, at the point where Georgetown decides it's going to allow Dr. Burns to resign from the research fellowship agreement

[00:25:05] Speaker 03:
That leaves in place because she didn't, among other things, she did not ask to be released.

[00:25:10] Speaker 03:
She consciously phrased her letter, was her testimony, to match the description in her research fellowship agreement with Georgetown, which does not reference the second clause of the original April 3rd letter, referencing her dismissal from the clinical training program with MedStar.

[00:25:31] Speaker 04:
Doesn't the agreement between the university and the hospital provide that the, well the agreement at least terminates when the arrangement between the university and the fellow terminates for any reason?

[00:25:50] Speaker 03:
I think that's right, Ron.

[00:25:52] Speaker 04:
So was there anything there at the point where the relationship between her and the university terminates?

[00:26:01] Speaker 03:
Well, that relationship terminates on April 3rd.

[00:26:05] Speaker 03:
The parties recast it in December.

[00:26:07] Speaker 03:
Yeah, that it un-terminates, right.

[00:26:11] Speaker 03:
But even at that point in December, the request from Dr. Burns, which she dated April 3rd, even though she gave it to Georgetown in December, is to be effective on April 3rd, the date of the original dismissal from both the research fellowship agreement and the training program.

[00:26:28] Speaker 02:
The original agreement said that the MedStar agreement terminates immediately, absent expressed agreement to the contrary upon a termination of the arrangement between the university and the fellow.

[00:26:43] Speaker 02:
And so there was no expressed agreement to the contrary that the MedStar one would go forward in any way.

[00:26:49] Speaker 02:
So it was rising or falling with Georgetown, correct?

[00:26:53] Speaker 03:
Yes, your honor.

[00:26:54] Speaker 02:
And so you would have had to have an express agreement to the contrary for her withdrawal from Georgetown not to effectuate a withdrawal, a termination, a withdrawal of what she did with her relationship with MedStar.

[00:27:08] Speaker 03:
Well, I think they're coterminous, your honor, and that aside... I think that's her point.

[00:27:12] Speaker 03:
That aside, it doesn't change the fact that what we'll really hear about today is the fact that there was a final summative assessment issued

[00:27:19] Speaker 03:
which essentially has the same facts and information in it as was in the termination letter, the notice letter to Dr. Burns that we acknowledge was never delivered to her, even though it was essentially the same facts that were in the April, the original April 3rd letter, which was.

[00:27:36] Speaker 03:
So what we're really here about is the final summative assessment, which was the report to the Air Force.

[00:27:41] Speaker 03:
So that's what Dr. Burns argues is defamatory to her and breached the agreements with her was the reporting to the Air Force and caused her harm.

[00:27:53] Speaker 03:
That would have happened irrespective of the manner of termination or when it was effective.

[00:28:00] Speaker 02:
Who runs the kids' mobile medical clinic?

[00:28:02] Speaker 03:
Uh, med star does med star.

[00:28:05] Speaker 02:
So her letter did reference that her letter.

[00:28:09] Speaker 02:
J 103.

[00:28:12] Speaker 02:
I thoroughly enjoyed providing clinical care to pediatric patients at the kids mobile medical clinic.

[00:28:17] Speaker 02:
It's a pleasure to do all this, but I've got to move on.

[00:28:21] Speaker 03:
But that's not what she asked to be released from your honor.

[00:28:24] Speaker 03:
and that she asked to be released from her arrangement with Georgetown.

[00:28:30] Speaker 03:
With her one fellowship.

[00:28:32] Speaker 02:
From her one fellowship.

[00:28:33] Speaker 03:
From a fellowship which included a training component at MedStar.

[00:28:39] Speaker 02:
You agreed, there's one fellowship here.

[00:28:41] Speaker 03:
Yes, you are.

[00:28:42] Speaker 03:
Any other questions?

[00:28:43] Speaker 03:
There was a fellowship agreement through which she was placed at MedStar in the clinic as part of that.

[00:28:48] Speaker 02:
Was she in a MedStar employee?

[00:28:50] Speaker 03:
She was not, Your Honor.

[00:28:52] Speaker 03:
She was a Georgetown University employee and that is the Georgetown employee agreement that she had with MedStar to allow her to have privileges.

[00:29:06] Speaker 02:
Thank you very much.

[00:29:16] Speaker 05:
I'm over my time, Your Honor.

[00:29:17] Speaker 02:
Yes, we'll give you two minutes.

[00:29:20] Speaker 05:
Thank you.

[00:29:24] Speaker 02:
So we give you two minutes if you want.

[00:29:26] Speaker 02:
Did you have any more points, or are you done?

[00:29:28] Speaker 05:
I do, I'm sorry.

[00:29:31] Speaker 05:
I didn't understand the court.

[00:29:33] Speaker 05:
I just have a few.

[00:29:33] Speaker 05:
I think the colloquy that we just witnessed is a perfect example of why this is a case for the jury.

[00:29:39] Speaker 05:
And Judge Williams, the answer to the verification form, yes, Lieutenant Colonel Byrd has been disciplined, is false based upon

[00:29:52] Speaker 05:
the ignition that you've heard here today that she was originally dismissed from both programs on exhibit 48.

[00:30:03] Speaker 05:
And that is the dismissal of what was then retracted when she resigned.

[00:30:08] Speaker 02:
I'm sorry, what J.A.A.

[00:30:09] Speaker 02:
Page are you holding up?

[00:30:10] Speaker 05:
It's our exhibit 48, and it is the April 3rd, the real April 3rd, 2012 letter that was on George Washington University Medical Center stationary.

[00:30:22] Speaker 02:
Georgetown.

[00:30:24] Speaker 05:
The university.

[00:30:25] Speaker 05:
Not George Washington.

[00:30:26] Speaker 05:
The university.

[00:30:27] Speaker 05:
That dismissed her from the research fellowship and the community pediatrics and child fellowship.

[00:30:35] Speaker 05:
And I'm sorry, your program.

[00:30:40] Speaker 04:
letter, because to the extent that that letter is maintained in effect, the answer that she was disciplined is completely valid.

[00:30:53] Speaker 05:
This was the removal that was initiated on April 3rd, actually on April 3rd, that she resigned from and her resignation was accepted.

[00:31:05] Speaker 05:
Now, they kept secret

[00:31:10] Speaker 04:
I'm sorry, you're talking about the December, April 3rd letter?

[00:31:17] Speaker 05:
No, I'm talking about the real April 3rd letter, which refers to both programs Mr. Schuler said he just said.

[00:31:27] Speaker 05:
that by this letter she was dismissed from both sides of the fellowship, the clinical and the academic side of the fellowship, but they kept secret from her the idea that somewhere down the road

[00:31:42] Speaker 05:
They were going to separately dismiss her from the MedStar fellowship.

[00:31:49] Speaker 04:
What is the impact, to the extent that your defamation claim rests on the hospital saying that she was dismissed, and you, I thought, argued that in truth and in fact, she was not dismissed because the dismissal was nullified.

[00:32:06] Speaker 04:
Oh, yes.

[00:32:09] Speaker 04:
You now seem to be making an argument under which MedStar was perfectly correct in saying she was dismissed.

[00:32:14] Speaker 05:
I'm sorry, Your Honor.

[00:32:16] Speaker 05:
It's this letter that was rescinded.

[00:32:19] Speaker 05:
This was the agreement that she was subsequently allowed to rescind by her resignation that was backdated to the same date.

[00:32:29] Speaker 05:
To what extent?

[00:32:31] Speaker 04:
Does that decision either prevent the hospital from responding to the Air Force as to how the clinical relationship went,

[00:32:55] Speaker 04:
and whether it makes it not the case when the hospital says she was dismissed.

[00:33:05] Speaker 05:
It's our position that when Lieutenant Colonel Burns sent in her letter resigning as a consequence

[00:33:15] Speaker 05:
of being sent the real April 3rd letter.

[00:33:18] Speaker 05:
That constituted a resignation from the fellowship and all of its components.

[00:33:26] Speaker 05:
And what Mr. Schuler has told the court is that secretly

[00:33:32] Speaker 05:
Georgetown apparently was harboring an intention at some point down the road to dismiss her again.

[00:33:40] Speaker 05:
When you say Georgetown, you mean the hospital?

[00:33:43] Speaker 02:
MedStar.

[00:33:43] Speaker 02:
MedStar, yeah.

[00:33:44] Speaker 05:
Yes, to dismiss her again, which they did simultaneously with accepting her resignation, except they kept it in their pockets and backdated it.

[00:33:56] Speaker 05:
That's the height of perfidy in my view.

[00:33:59] Speaker 05:
And it's summarized in our exhibit 58, which is the letter that Jamie Padmore sent to Colonel Tankersley on December 12, 2012.

[00:34:11] Speaker 02:
Can you give me a JA page for these things?

[00:34:13] Speaker 02:
What JA page is that on?

[00:34:16] Speaker 05:
This is exhibit 58 to our motion, our opposition to the motion for summary judgment.

[00:34:23] Speaker 05:
You're looking for a page in the record.

[00:34:25] Speaker 05:
It's A443.

[00:34:26] Speaker 02:
That will help.

[00:34:27] Speaker 02:
Thank you very much.

[00:34:31] Speaker 02:
All right, thank you very much.