Baker et al v. Patterson et al

Filing 8

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER and TEMPORARY RESTRAINING ORDER (Dkt. 6 ) - Signed by Judge Mark W Bennett. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SUZETTE BAKER, CAMILLE
ADAMS, DONJUA MOSELEY,
JENALI GRAHAM, CHERYL STONE,
GLORIA PRIETO, FALLON
MATTHEWS, PENNY DALTON,
CHARISSE STEVENSON, KODI
TWISS, TRINA SMITH, DORETTA
LOPEZ, ELIZABETH CARDINET,
CRISTINA MASCCORRO, CARLA
WEAVER, and HEIDI SKAAGS,
No. 4:16-CV-00181-MWB
Plaintiffs,
vs.
TEMP R. PATTERSON, M.D., TEMP
R. PATTERSON, M.D., P.A.,
AMULATORY SURGERY CENTER
OF BURLEY, L.L.C., JOSEPH R.
PETERSEN, M.D., and JOHN DOES 1
THROUGH 10,

MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER and
TEMPORARY RESTRAINING
ORDER

Defendants.
___________________________
On May 20, 2016, plaintiffs Camille Adams, Suzette Baker, Jenali Graham,
Cheryl Stone, and Gloria Prieto filed a Motion For Temporary Restraining Order (TRO
Motion) (docket no. 6) asking this Court to restrain defendant Temp R. Patterson, M.D.,
from further concealing and to disclose any and all information available to him regarding
the source of breast implants that he has surgically placed in them. At this time, the
docket does not show that any of the defendants have been served with the Complaint or
Amended Complaint or the TRO Motion, but the plaintiffs’ counsel did identify counsel
for defendant Patterson, and, after consultation by my judicial assistant with counsel for

both the plaintiffs and defendant Patterson, I scheduled telephonic oral arguments on the
TRO Motion for 5:15 p.m. CDT (4:15 p.m. MDT). Counsel for both the plaintiffs and
defendant Patterson participated in those oral arguments.

Shortly before the oral

arguments, defendant Patterson also filed an Objection To Motion For Temporary
Restraining Order (docket no. 7).
The plaintiffs allege that Dr. Patterson used non-FDA approved implants
manufactured in China when he performed their breast implant surgeries. They allege
that defendant Patterson’s counsel has admitted “that the implants [defendant Patterson]
used for [non-moving plaintiff] Graham’s breast augmentation were Chinese made
implants,” Plaintiffs’ Counsel’s Affidavit, Exhibit A. Defendant Patterson has neither
admitted nor denied that the implants that he placed in other plaintiffs were manufactured
in China.

Indeed, the plaintiffs allege that, to date, Dr. Patterson has also refused

repeated requests by counsel to provide the plaintiffs, voluntarily, with the identity of
any of the implants’ manufacturers. The plaintiffs allege that plaintiff Baker has had her
implants removed, and, in an affidavit, Dr. Smith, who performed the removal, has
averred that he believes that plaintiff Baker’s implants were not FDA approved and were
from China. Plaintiffs’ Counsel’s Affidavit, Exhibit B. The plaintiffs also allege that
plaintiff Adams is scheduled to have her implants removed on May 26, 2016, and that
the other three moving plaintiffs have or are making arrangements to have their implants
removed, as well. Defendant Patterson’s counsel did not deny that Dr. Patterson has not
revealed the manufacturer of the breast implants in question and stated that he will not
do so without a court order.
As Chief Judge Winmill of this District has explained,
The standard for obtaining a preliminary injunction or
a temporary restraining order is the same. See Stuhlbarg Int'l
Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839
n. 7 (9th Cir.2001). In either case, the moving party must
show: (1) a likelihood of success on the merits; (2) a
likelihood of irreparable harm to the moving party in the
2

absence of preliminary relief; (3) that the balance of equities
tips in favor of the moving party; and (4) that an injunction is
in the public interest. Winter v. Natural Res. Def. Council
Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
The court may apply a sliding scale test, under which “the
elements of the preliminary injunction test are balanced, so
that a stronger showing of one element may offset a weaker
showing of another.” Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011).
Idaho v. Coeur d’Alene Tribe, 49 F. Supp. 3d 751, 762 (D. Idaho 2014). As part of this
four-factor test, “‘serious questions going to the merits’ and a balance of hardships that
tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long
as the plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for the Wild Rockies, 632 F.3d at 1135.
Although a more stringent standard applies to “mandatory” injunctions or TROs that
require action, rather than simply preserve the status quo, the question is whether the
balance of the same factors clearly favors the moving party. Marlyn Nutraceuticals, Inc.
v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009).
For present purposes, I will direct my analysis only to the claim for a TRO by
plaintiff Adams, who is scheduled to have her implants removed on May 26, 2016.
Adams contends, baldly, that she is likely to prevail on at least one of her claims against
Dr. Patterson. She does not argue, however, what facts satisfy the elements of any of
her claims in the underlying Amended Complaint (docket no. 3). Those claims are for a
RICO violation, fraud, breach of fiduciary duty, violations of the Idaho Consumer
Protection Act, battery, premises liability, and medical malpractice. The allegations in
the Amended Complaint, taken as true, and the affidavits submitted in support of the
TRO Motion provide sufficient factual basis to support, at the very least, “serious
questions going to the merits” of plaintiff Adams’s claims. Id.
Plaintiff Adams stands on firmer ground as to the other factors in the four-factor
test. Her allegations and the affidavits in support of the TRO Motion indicate the
3

“likelihood of irreparable harm” in the absence of a TRO, where money damages cannot
provide an “effective remedy,” see Coeur d’Alene Tribe, 49 F. Supp. 3d at 764, for the
potential physical and emotional damage from non-FDA approved implants and/or the
potentially unnecessary removal of breast implants. The balance of equities or hardships,
likewise, tips strongly in plaintiff Adams’s favor, in light of the potential harm to her,
and the absence of any cognizable hardship to Dr. Patterson from disclosing the
information in question to Adams. See Alliance for the Wild Rockies, 632 F.3d at 113738 (explaining that the “balance of hardships” factor considers the hardships to each of
the parties). Finally, the “public interest” weighs in favor of granting the TRO as to
plaintiff Adams, because doing so reflects the public interest in safety of medical devices
as enshrined, for example, in legislation authorizing the FDA to approve such devices.
While this determination is very preliminary, and does not suggest any ultimate
disposition of this case, the TRO Motion is granted, only as to plaintiff Adams. Further
proceedings will address whether a TRO or preliminary injunction should issue in favor
of the other plaintiffs.
A bond is ordinarily required pursuant to Rule 65(c). “District courts have
discretion to determine the amount of security required,” which may include a
determination that no bond is required. See Leittler v. Armstrong, No. 1:10–cv–361–
BLW, 2010 WL 3735674, *5 (D. Idaho September 15, 2010) (citing Barahona–Gomez
v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999)).
THEREFORE, pursuant to Rule 65 of the Federal Rules of Civil Procedure,
defendant Temp R. Patterson, M.D., his agents, employees, affiliates, and any business
entities and/or persons controlled directly or indirectly by him or acting on his behalf or
in concert with him, are hereby enjoined and required to disclose, not later than 8:00
p.m. MDT on May 25, 2016, any and all documents available to him regarding the
source of the breast implants he has surgically placed in plaintiff Camille Adams. This
disclosure shall be subject to a court-ordered protective order, the details of which the
parties will subsequent discuss, but at this time, the disclosure shall only be for the use
4

of plaintiff Adams, her counsel, and the doctor performing her implant removal. The
doctor performing plaintiff Adams’s implant removal may rely on this information to
advise the other plaintiffs concerning their treatment.

The plaintiffs receiving this

information may disclose it only to immediate family members, who shall not make
further disclosure of it.
This Temporary Restraining Order shall issue without payment of any bond.
This Temporary Restraining Order shall remain in full force and effect for fourteen
(14) days from the date of this order, unless dissolved at an earlier time or expressly
renewed for a like period of time by order of the court.
IT IS SO ORDERED.
DATED this 25th day of May, 2016, at 6:00 p.m. CDT.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
VISITING JUDGE

5