Lucarelli et al v. D V A Renal Healthcare Inc

Filing 88

RULING Denying 82 MOTION for Reconsideration re 80 Memorandum Ruling and 81 Judgment on Motion to Dismiss. Signed by Judge Robert G James on 3/10/09. (crt,DickersonSld, D)

U.S.DISTRICT COURT WESTERN DISTRICT OF LOUISIANA RECEIVED

MAR. 112009
CLERK DEPUTY

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DWISTON

CAROL LUCARELLI EX REL. MAGGLELEAN TAYLOR, ET AL. VERSUS DVA RENAL IIEALTHCARE INC., ET AL.

CIVIL ACTION NO. 08-0406

JUDGE ROBERT G. JAMES MAG. JUDGE KAREN L. HAYES

RULING Pending before die Court is Plaintiffs' Motion for Reconsideration Pursuant to Fed. R. Civ. P. 59(e) [Doc. No. 82] of the Court's Ruling and Judgment [Doe. Nos. 80 & 81]. The Motion is opposed, For the following reasons, the Motion is DENTED. I. FACTUAL AND PROCEDURAL BACKGROUND This is a negligence action brought by Plaintiffs, the heirs of Maggielean Taylor ("the decedent"), against her dialysis provider, DRH. The decedent passed away in 2005, allegedly as a result of complications from her dialysis treatment. Plaintiffs allege that DRH, through its

predecessor-in-interest, Gambro Healthcare, undertook to conduct research in 2000 that revealed inexpensive means of limiting the risk of biological contaminants during hemodialysis. DRFT, through its predecessor-in-interest, however, failed to undertake research-supported upgrades. As a result, Plaintiffs contend that the decedent was "exposed to die injurious and deadly levels of biofilni-associated organisms and contaminants, which proximately caused the injuries to [the decedent]." [Doc. No. 63,

¶ 14].

DRH previously filed a motion to dismiss. This Court granted the motion in part, holding

that Plaintiffs failed to state a claim for negligent undertaking under RESTATEMENT (SECOND) OF TORTS § 324A. ~Doc.Nos. 80 & 81].

In their Motion for Reconsideration, Plaintiffs contend that they have stated a claim for
negligent undertaking under RESTATEMENT (SECOND) OF TORTS § 323. DRH filed a memorandum

in opposition [Doe. No. 84], and Plaintiffs filed a reply [Doe. No. 87]. II. LAW AND ANALYSIS Plaintiffs contend that they have stated a claim for negligent undertaking under
RESTATEMENT (SECOND) OF TORTS § 323.

DRIFT contends that Plaintiffs have failed to state a claim because Plaintiffs did not allege (1) that DRH undertook to perform a duty owed to the decedent, (2) that DRH's failure to exercise reasonable care increased the risk of harm to the decedent, and (3) that the decedent relied upon DRH's undertaking of that duty. Section 323, also known as the Good Samaritan Doctrine, provides that One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) (h) his failure to exercise such care increases the risk of such harm, or the harm is suffered because of the other's reliance upon the undertaking.

RESTATEMENT (SECOND) OF TORTS

§ 323.

A.

Duty
.

DRH argues that it did not "undertakefl. .to render services to another" by performing internal research; Plaintiffs' allegations refer only to the research conducted by DRH for its own use.

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Ic!. Plaintiffs respond that "[t]he research at issue was specifically pointed to stop injury and death to persons like [the decedent]." [Doe. No. 87, p. 2]. Section 323 contemplates a negligent undertaking of services rendered to benefit a specific person. Plaintiffs have not and cannot allege that the research was specifically undertaken to benefit the decedent. The Court finds that DRH did not assume a duty owed to the decedent under Section 323, and, therefore, Plaintiffs have failed to state a claim. B. Causation

In the alternative, assuming cirguendo that DRH assumed a duty, DRH argues that its failure to implement the fmdings of the research it undertook could not, as a matter of law, have increased the risk of harm to the decedent because DRIFT did not physically alter the manner in which it provided hemodialysis treatment. DRI-I also argues that Plaintiffs have failed to allege that the decedent relied upon DRT-T's undertaking. Plaintiffs respondthat once DRH undertook research that revealed serious problems with the dialysis treatment it provided, its disregard of the results "was affirmative misconduct to which no reliance or increased risk ofharm is needed to establish the elements of negligence." [Doe. No. 87, p.3]. For support, Plaintiffs cite to Comment (e) of Section 323, which leaves open the question whether there may not be cases in which one who has entered on performance of his undertaking, and cannot withdraw from it without leaving an unreasonable risk of serious harm to another, may be subject to liability even though his conduct has induced no reliance and he has in no way increased the risk. Clear authority is lacking, but it is possible that a court may hold that one who has thrown rope to a drowning man, pulled him half way to shore, and then unreasonably abandoned the effort and left him to drown, is liable even though there were no oilier possible sources of aid, and the situation is made no worse than it was.

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RESTATEMENT (SECOND) OF TORTS

§ 323, cmt. (e) (explaining RESTATEMENT (SECOND) OF TORTS

§ 323, caveat (2)).
The Court must make an Eerie guess as to how the Louisiana Supreme Court would rule on Plaintiffs' proposed extension of Section 323. Plaintiffs have provided no authority for their position, nor is the Court aware of any. Plaintiffs' theory of negligence is not viable under Section 323 as the law in Louisiana currently stands. By failing to respond to DRH's arguments regarding the risk of harm and/or reliance requirements of Section 323, the Court assumes that Plaintiffs have conceded these points. The Court, therefore, fmds that Plaintiffs have failed to state a claim under Section 323 on this basis as well. III. CONCLUSION For the foregoing reasons, Plaintiffs' Motion for Reconsideration Pursuant to Fed. R. Civ. P. 59(e) [Doe. No. 82] is DENIED. MONROE, LOUISIANA, this

/~ day of March, 2009.

ROBERTO. .JAMES( UNITED STATES DI'~TRICT UDGE J

J

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