Exeter Hospital, Inc. v. Kwiatkowski et al

Filing 48

///ORDER denying 39 Exeter Hospital's Motion to Stay; granting 9 Maxim's Motion to Dismiss for Failure to State a Claim; and denying 14 The American Registry of Radiologic Technologists Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Exeter Hospital, Inc.,
Plaintiff
v.

Case No. 14-cv-009-SM
Opinion No. 2014 DNH 186

David Kwiatkowski; Maxim
Healthcare Services, Inc.;
The American Registry of
Radiologic Technologists;
and Triage Staffing, Inc.,
Defendants
O R D E R
David Kwiatkowski was a cardiac catheterization technician
who, between 2003 and 2012, was employed by approximately 19
different hospitals throughout the country.

In June of 2010, he

tested positive for Hepatitis C and, about one year later, in
April of 2011, he began working at Exeter Hospital, in Exeter,
New Hampshire.

Kwiatkowski was an intravenous drug user who often stole
drugs from his hospital employers.

He injected the drugs, and

covered up his conduct by refilling the used syringes with saline
and returning them to the hospital’s inventory.

When the tainted

syringes were subsequently used, many patients were infected with
the Hepatitis C virus.

At least 32 patients at Exeter Hospital

were infected when they were injected with syringes tainted with

Kwiatkowski’s blood.

Not surprisingly, many of those patients

sued Exeter Hospital.

The hospital has settled nearly all of

those suits and now seeks statutory contribution from each of the
defendants named here.

In addition, it seeks contractual

indemnification from Triage Staffing - the employment agency that
placed Kwiatkowski at Exeter Hospital.

Pending before the court are motions to dismiss filed by
Maxim Healthcare Services, Inc. (“Maxim”) and The American
Registry of Radiologic Technologists (“ARRT”).

Each defendant

asserts that the hospital’s complaint fails to allege sufficient
facts to demonstrate that it owed an actionable duty of care to
any patient with whom the Hospital settled, or that its conduct
proximately caused any patient to be infected with the Hepatitis
C virus.

Exeter Hospital objects.

Also pending is Exeter

Hospital’s motion to stay this case, pending resolution of the
few remaining state court claims brought by the hospital’s former
patients.

Maxim, ARRT, and Triage Staffing, Inc. have filed a

joint objection.

For the reasons discussed, Maxim’s Motion to Dismiss
(document no. 9) is granted, ARRT’s Motion to Dismiss (document
no. 14) is denied, and Exeter Hospital’s motion to stay (document
no. 39) is denied.

2

Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.”
Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441 (1st

Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).

In other words, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atl. Corp. v.

Instead, the facts alleged in

the complaint must, if credited as true, be sufficient to
“nudge[] [plaintiff’s] claims across the line from conceivable to
plausible.”

Id. at 570.

If, however, the “factual allegations

in the complaint are too meager, vague, or conclusory to remove

3

the possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.”

Tambone, 597 F.3d at 442.

Background
Accepting the factual allegations set forth in the amended
complaint as true, the relevant background is as follows.
Between 2003 and 2007, Kwiatkowski was fired by or resigned from
four Michigan health facilities.

Three of those

terminations/resignations came amid investigations into his
unlawful use of controlled substances.

Subsequently, Maxim - a

temporary hospital staffing agency - placed Kwiatkowski at the
University of Pittsburgh Medical Center (“UPMC”).

In 2008, UPMC

terminated Kwiatkowski’s employment after he was seen removing a
syringe containing the drug fentanyl from an operating room and a
search of his hospital locker revealed an empty syringe with
traces of morphine.

According to Exeter Hospital, “Maxim was notified of the
UPMC termination, but failed to report Kwiatkowski to any law
enforcement agency or licensing authority.”
(document no. 40) at para. 45.

Amended Complaint

And, says the hospital, despite

that knowledge, in November of 2008, Maxim placed him in a
position at Southern Maryland Hospital.
Finally, Exeter Hospital alleges that:

4

Id. at para. 50.

Maxim’s inaction [i.e., its failure to report
Kwiatkowski to law enforcement or licensing
authorities] enabled Kwiatkowski to remain employed as
a traveling cardiac catheterization technician, thereby
foreseeably placing at risk the patients at any
hospital in the country to which Kwiatkowski might
travel, including those at Exeter Hospital.
Id. at para. 49.

Maxim’s placement of Kwiatkowski in a job at

Southern Maryland Hospital in 2008 appears to have marked the end
of its relationship with him - two and one-half years before
Kwiatkowski’s placement (by a different agency) at Exeter
Hospital.

In July of 2009, Medical Solutions (not a defendant) placed
Kwiatkowski in a position at Johns Hopkins Hospital.

His

employment there ended after two incidents in which vials of
fentanyl went missing from the department in which Kwiatkowski
was working.

Subsequently, Kwiatkowski was employed at the

Arizona Heart Hospital.

He was fired in March of 2010, after he

was found semi-conscious in a restroom stall, beside a syringe
containing fentanyl.
and injected himself.
fired.

He admitted that he had taken the syringe
And, after he failed a drug test, he was

Id. at paras. 51-55.

At that point, the temporary

placement agency terminated its relationship with Kwiatkowski and
“notified defendant ARRT of the circumstances of Kwiatkowski’s
termination.”

Id. at para. 56.

According to Exeter Hospital:

5

Although ARRT had actual notice of the Arizona Heart
Hospital termination, ARRT took no meaningful action to
investigate the incident and/or revoke Kwiatkowski’s
national certification.
As the operator of a national registry of radiological
technicians, ARRT had the ability to investigate,
suspend or revoke Kwiatkowski’s national certification.
ARRT did not act on Arizona Heart Hospital’s report of
Kwiatkowski’s misconduct, but instead, continued to
maintain his ARRT certification.
ARRT’s inaction enabled Kwiatkowski to remain employed
as a traveling cardiac catheterization technician,
thereby foreseeably placing at risk the patients at any
hospital in the country to which Kwiatkowski might
travel, including those at Exeter Hospital.
Id. at paras. 57-60.

As noted earlier, Kwiatkowski tested positive for Hepatitis
C in June of 2010.

Id. at para. 36.

He began working at Exeter

Hospital in April of 2011 and, approximately one year later, the
hospital became aware that three of its former patients had been
diagnosed with Hepatitis C.

Testing revealed that all three

former patients had been infected with an identical strain of
Hepatitis C, which suggested a common source of infection.

The

hospital later determined that Kwiatkowski was infected with the
same strain of Hepatitis C and it identified him as the potential
source of patient infections.
and later fired.

He was immediately placed on leave

More than 3,000 patients of Exeter Hospital

were tested for the virus.

Thirty-two former patients tested
6

positive for the same strain of Hepatitis C associated with
Kwiatkowski.

In July of 2012, Kwiatkowski was arrested and charged with
multiple violations of federal law.

He pled guilty to all

charges and was sentenced to serve 468 months (39 years) in
prison.

Between December of 2012 and May of 2014, Exeter Hospital
settled numerous civil claims filed against it by former patients
who had been infected by Kwiatkowski.

As part of each

settlement, the hospital obtained “a general release of all
claims which discharged the common liability of Exeter Hospital,
Kwiatkowski, Maxim, ARRT, AHSA, and Triage.”
at para. 97.

Amended Complaint

It appears (though it is not entirely clear) that

none of those defendants contributed to the settlements.1

The hospital alleges that the amount it paid to settle those
claims and discharge the common liability of the non-contributing
defendants, while reasonable, was “disproportionate to its actual

1

It is possible that Triage and AHSA may have
contributed to a few, but not all, of the settlements. Compare
Amended Complaint at paras. 97-100 (not including Triage or AHSA
in the list of non-contributing defendants) with id. at paras.
147-48 (specifically identifying Triage and AHSA as having failed
to contribute to a particular settlement).
7

responsibility for the Hepatitis-C outbreak.”
at para. 149.

Amended Complaint

Accordingly, it seeks to have the “proportionate

fault of the non-contributing defendants established, and to be
awarded statutory contribution from each non-contributing
defendant in an amount that is commensurate with that
apportionment.”

Id. at para. 150.

Defendants Maxim and ARRT deny that they owed the hospital’s
patients any actionable duty to warn them of the potential risk
posed by Kwiatkowski, or to report Kwiatkowski’s conduct to law
enforcement or licensing authorities.

They also deny that their

conduct proximately caused any patients at Exeter Hospital to
become infected by Kwiatkowski.

Discussion
I.

Statutory Contribution.
Under New Hampshire’s statutory contribution scheme, “the

jury, or if there is no jury [the court,] shall find the amount
of damages to be awarded to each claimant and against each
defendant in accordance with the proportionate fault of each of
the parties.”

N.H. Rev. Stat. Ann. (“RSA”) 507:7-e.

A defendant

who has settled with a claimant, may recover against another
tortfeasor only if “the settlement extinguishes the liability of
the person from whom contribution is sought, and then only to the

8

extent that the amount paid in settlement was reasonable.”
5-7:7-f.

RSA

As the New Hampshire Supreme Court has observed, one of

the purposes of that statutory scheme is “to relieve defendants
involved in personal injury lawsuits from damages exceeding their
percentage of actual fault.”

Ocasio v. Fed. Express Corp., 162

N.H. 436, 446 (2011).

Here, the hospital’s claims for contribution rest on its
assertion that defendants’ negligence proximately caused the
patients with whom the hospital settled to contract Hepatitis C.
So, to prevail on those contribution claims, the hospital must
demonstrate that each individual defendant owed a duty to the
infected patient, it breached that duty, and that breach
proximately caused the patient’s injury.

See Pesaturo v. Kinne,

161 N.H. 550, 557 (2011).

Whether a duty exists in a particular

case is a question of law.

See Carignan v. N.H. Int’l Speedway,

Inc., 151 N.H. 409, 412 (2004).

And, “[a]bsent the existence of

a duty, a defendant cannot be liable for negligence.”

Id.

As to each of the named defendants - including Maxim and
ARRT - Exeter Hospital alleges the following:
Prior to the time that Kwiatkowski arrived at Exeter
Hospital, each of the defendants knew, or through the
exercise of reasonable care, should have known, that
allowing Kwiatkowski to continue working as a traveling
cardiac catheterization technician would foreseeably
9

place at extreme risk any patient who came under his
care.
Each of the defendants owed a duty to exercise
reasonable care to properly screen, test, monitor and
supervise Kwiatkowski in his capacity as a traveling
cardiac catheterization technician.
Each of the defendants owed a duty to exercise
reasonable care to fully investigate and report to the
appropriate authorities Kwiatkowski’s illegal drug
diversion and use.
Each of the defendants owed a duty to immediately and
permanently prevent Kwiatkowski from continuing his
employment as a traveling cardiac catheterization
technician.
Amended Complaint at paras. 82-85.

According to the hospital,

each of the defendants breached one or more of those duties.
And, says the hospital, as a “direct and proximate result of the
aforesaid breaches of duty by each of the defendants, Exeter
Hospital and its patients were foreseeably harmed within the
State of New Hampshire.”

II.

Id. at para. 90.

Maxim Healthcare Service, Inc.
According to the hospital, the duty Maxim breached was its

obligation to report “to appropriate authorities” UPMC’s
dismissal of Kwiatkowski in 2008 and, thereafter, to “immediately
and permanently prevent Kwiatkowski from continuing his
employment as a traveling cardiac catheterization technician.”
See Amended Complaint at paras. 84-85.

10

At this juncture, it probably bears noting what the
hospital’s amended complaint does not allege with regard to
Maxim.

First, the hospital does not claim that Maxim knew UPMC

fired Kwiatkowski for stealing controlled substances, using
hospital hypodermic needles, and/or engaging in illegal drug use.
Nor does the amended complaint allege that Maxim knew (or should
have known) that Kwiatkowski was infected with Hepatitis C.

The

amended complaint simply alleges that Maxim was aware of the fact
of - but not the circumstances surrounding - Kwiatkowski’s
discharge from UPMC.

See Id. at para. 46 (“Maxim was notified of

the UPMC termination, but failed to report Kwiatkowski to any law
enforcement agency or licensing authority.”).

Nevertheless, the hospital seems to imply that Maxim had
knowledge beyond that which is specifically alleged in the
amended complaint.

After noting that Maxim did not notify any

licensing or law enforcement agencies of Kwiatkowski’s
termination from UPMC in 2008, the amended complaint alleges:
Recognizing the obvious importance of making such a
report, Maxim created and back-dated an e-mail message
suggesting that it had reported Kwiatkowski’s conduct
to the Maryland Board of Physicians in 2009.
Maxim subsequently admitted (through counsel) to the
Maryland Attorney General’s Office that the e-mail
message was a fabrication.

11

Amended Complaint at paras. 47-48.

The hospital has not,

however, appended that e-mail to the amended complaint, nor has
it disclosed its contents, nor does the hospital state when it
was actually generated.

The amended complaint simply references

that document without elaboration.

Even if the hospital had disclosed the contents of that
document, however, it is difficult to see how it might be
relevant to this case.

The mere existence of such a document

does not shed light on what Maxim actually knew in 2008.

That

Maxim may have thought - perhaps several years after the fact that it should have reported UPMC’s termination of Kwiatkowski to
the Maryland Board of Physicians, reveals nothing about what it
knew (or should have known) in 2008 - the date on which the
hospital claims Maxim breached its common law duty.2

2

In its Reply Memorandum (document no. 25), Maxim
suggests why the hospital’s amended complaint is (seemingly
purposefully) vague in alleging what Maxim knew about the
circumstances surrounding UPMC’s termination of Kwiatkowski’s
employment. See Id. at 2-3 (“The Complaint accurately states
Maxim was aware of Mr. Kwiatkowski’s dismissal by UPMC, but
Exeter Hospital cautiously does not go further - perhaps because
voluminous discovery obtained from UPMC and Maxim which Exeter
Hospital has possessed for nearly a year has demonstrated no such
‘smoking guns’ such as Maxim’s awareness of a positive drug
screen or results of a UPMC test showing that a syringe had been
refilled with another liquid which might indicate it had been
swapped after use.”).
12

Given the allegations in the amended complaint, it cannot be
said that Maxim should have (or could have) foreseen the criminal
conduct in which Kwiatkowski engaged while employed at Exeter
Hospital, or the injuries he inflicted upon the hospital’s
patients.

Mere knowledge that he had been fired from his

position at UPMC, without more, is insufficient to impose upon
Maxim the duties the hospital says were breached.

See generally

England v. Brianas, __ N.H. __, 2014 WL 2749153 (N.H. June 18,
2014) (discussing the concepts of “duty” and “foreseeability”
under New Hampshire law, and the limited exceptions to the
general rule that individuals have no duty to protect others from
the criminal conduct of third parties).

And, of course, Maxim

did not place Kwiatkowski at Exeter Hospital.

Based upon the facts allegedly known by Maxim in 2008, it
could not reasonably foresee that Kwiatkowski would infect (or
otherwise harm) patients at Exeter Hospital.

Consequently, Maxim

had no duty to report Kwiatkowski’s discharge to licensing or law
enforcement agencies.

As the New Hampshire Supreme Court has

noted,
In determining whether a duty exists, we recognize that
no negligent act threatens all imaginable harms;
unreasonably dangerous conduct is dangerous because it
threatens particular kinds of harms to particular kinds
of persons in particular ways; responsibility should
follow the pattern of the risk. Accordingly, “[t]he
risk reasonably to be perceived defines the duty to be
13

obeyed.” Palsgraf v. Long Island R. Co., 248 N.Y. 339,
162 N.E. 99, 100 (N.Y. 1928). The scope of the duty,
therefore, is limited to those risks that are
reasonably foreseeable.
Macie v. Helms, 156 N.H. 222, 224-25 (2007) (citations and
internal punctuation omitted).

See also Corso v. Merrill, 119

N.H. 647, 651 (1979) (“The key to applying a traditional
negligence approach is the doctrine of foreseeability.

Duty and

foreseeability are inextricably bound together. . . . A person
may be liable only to those who are foreseeably endangered by his
conduct and only with respect to those risks or hazards whose
likelihood made the conduct unreasonably dangerous.

His duty is

measured by the scope of the risk which negligent conduct
foreseeably entails.”) (citations and internal punctuation
omitted).

Moreover, under New Hampshire’s common law of negligence, an
individual or entity does not typically owe a duty to protect
others from the criminal conduct of a third party (like that in
which Kwiatkowski engaged).

See, e.g., Brianas, 2014 WL 2749153,

*2 (“Private persons have no general duty to protect others from
the criminal acts of third persons.

This rule is grounded in the

fundamental unfairness of holding private citizens responsible
for unanticipated criminal acts of third parties.”) (quoting
Walls v. Oxford Mngt Co., 137 N.H. 653, 656-56 (1993)).

14

See also

Remsburg v. Docusearch, Inc., 149 N.H. 148, 153-54 (2003)
(citations and internal punctuation omitted).

And, the amended

complaint fails to allege sufficient facts to support application
of any of the four (rarely) invoked exceptions to that rule.

See

generally Brianas, 2014 WL 2749153, *2; Walls, 137 N.H. at 65759.

III. The American Registry of Radiologic Technologists.
The potential tort liability of ARRT presents a closer
question because, as a certifying agency, it may have assumed a
broader range of duties than those imposed upon a temporary jobplacement agency like Maxim.

Moreover, ARRT is alleged to have

had substantially greater knowledge of Kwiatkowski’s misdeeds.
Specifically, the amended complaint alleges that, in March of
2010, Kwiatkowski was fired from his job at the Arizona Heart
Hospital after he was found “semi-conscious in a restroom stall
[and] [t]he co-employee who discovered him observed a fentanyl
syringe floating in the toilet,” id. at para. 52, and that
Kwiatkowski subsequently failed a drug test.

The amended

complaint goes on to allege that:
The temporary medical staffing agency that had placed
Kwiatkowski at Arizona Heart Hospital, Springboard,
Inc., also terminated Kwiatkowski’s employment, and
notified defendant ARRT of the circumstances of
Kwiatkowski’s termination.

15

Although ARRT had actual notice of the Arizona Heart
Hospital termination, ARRT took no meaningful action to
investigate the incident and/or revoke Kwiatkowski’s
national certification.
Id. at paras. 56-57.

The amended complaint concludes that,

“ARRT’s inaction enabled Kwiatkowski to remain employed as a
traveling cardiac catheterization technician, thereby foreseeably
placing at risk the patients at any hospital in the country to
which Kwiatkowski might travel, including those at Exeter
Hospital.”

Id. at para. 60.

Accepting the factual allegations in the amended complaint
as true, ARRT knew that Kwiatkowski was found semi-conscious, at
his place of employment, having injected himself with fentanyl a controlled substance he likely misappropriated from his
hospital employer.

ARRT also knew that Kwiatkowski failed a drug

test and was fired by both the hospital and the temporary
placement agency.

Those facts necessarily gave rise to at least

two critical questions.

First, what reasonably foreseeable risks

did Kwiatkowski pose to patients of hospitals in which he might
work?

And, second, what (if any) duty did ARRT have with respect

to that patient population?

While ARRT plainly thinks those questions should be resolved
as a matter of law in its favor based upon the sparse facts

16

alleged in the amended complaint, the court disagrees.

Indeed,

the substantial volume of material outside the amended complaint
submitted by ARRT and Exeter Hospital suggests that this case may
turn on material facts not fully developed in that pleading.
See, e.g., Exeter Hospital’s Objection to ARRT’s Motion to
Dismiss (document no. 20) (attaching ARRT’s answers to
interrogatories, deposition testimony, and copies of earlier
state court decisions in this matter); ARRT’s Reply Memorandum
(document no. 26) (attaching deposition testimony and various
correspondences about the incident at Arizona Heart Hospital).3

As an aside, the court notes that ARRT’s public website
suggests that it may have undertaken a duty to investigate the
incident at Arizona Heart Hospital and/or take action to revoke
Kwiatkowski’s certification credentials - particularly since ARRT
apparently seeks to induce a national audience of potential
medical employers to rely upon its certification credentials as
an indication that ARRT has carefully reviewed applicants and

3

At this juncture, the court need not determine which,
if any, of those documents might properly be considered in ruling
upon ARRT’s motion to dismiss. See generally Watterson v. Page,
987 F.2d 1, 3 (1st Cir. 1993) (noting that when ruling on a
motion to dismiss, courts may consider “documents the
authenticity of which [is] not disputed by the parties; . . .
official public records; . . . documents central to plaintiffs’
claim; or . . . documents sufficiently referred to in the
complaint.”). See also Schaefer v. IndyMac Mortg. Servs., 731
F.3d 98, 100 n.1 (1st Cir. 2013).
17

determined that its certificate holders are professionally
competent, capable, and ethical, and that it investigates matters
of potential disqualification to assure continuing eligibility
for certification.

That website provides, in part, as follows:

ARRT CERTIFICATION. Certification is the initial
recognition of an individual who satisfies certain
standards within a profession. Employers, state
licensing agencies, and federal regulators look at the
ARRT credential as an indication that a person has met
a recognized national standard for medical imaging,
interventional procedures, and radiation therapy
professionals.
As outlined in ARRT’s “Equation for Excellence,”
candidates for ARRT certification must meet basic
education, ethics, and examination requirements to
become eligible.
* * *
Ethics Requirements for ARRT Certification. Every
candidate for certification must, according to ARRT
governing documents, “be a person of good moral
character and must not have engaged in conduct that is
inconsistent with the ARRT Rules of Ethics,” and they
must “agree to comply with the ARRT Rules and
Regulations and the ARRT Standards of Ethics.” ARRT
investigates all potential violations in order to
determine eligibility.
The American Registry of Radiologic Technologists,
https://www.arrt.org/Certification (visited August 28, 2014)
(emphasis supplied).4

4

Although ARRT’s website is not discussed in the amended
complaint, it is referenced in the supplemental materials
submitted by Exeter Hospital and ARRT. Additionally, ARRT’s
certification standards are discussed in an earlier state court
decision issued in this case, which was also submitted by Exeter
18

The dispositive point here is that the amended complaint, as
drafted, passes muster in that it outlines, in brief, a plausible
legal and factual claim against ARRT.

Disposition of that claim

may require a trial or it may be amenable to resolution as a
matter of law - but on summary judgment.

It remains unclear at

this point whether material facts are in dispute.

IV.

Exeter Hospital’s Motion to Stay.
Finally, Exeter Hospital moves the court to stay this

contribution action, pending resolution of the last few state
court cases filed by the hospital’s former patients.

According

to the hospital,
Only six of the twenty-nine cases originally brought by
Kwiatkowski victims remain pending. The rest have been
successfully mediated. Two of the remaining six suits
are scheduled for mediation in the next thirty days.
The Superior Court has issued a series of procedural
orders, and anticipates conducting the trials of any
cases that have not settled starting in January 2015.
Motion to Stay (document no. 39-1) at 4.

Invoking the Colorado

River abstention doctrine, see Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800 (1976), the hospital asserts
that this court should “stay these proceedings and abstain from
ruling on the pending motions to dismiss.”

Id. at 6.

disagrees.

Hospital in opposition to ARRT’s motion to dismiss.
19

The court

As the court of appeals for this circuit has noted, “The
crevice in federal jurisdiction that Colorado River carved is a
narrow one.

Of all the abstention doctrines, it is to be

approached with the most caution, with only the clearest of
justifications warranting dismissal.”

Jimenez v. Rodriguez-

Pagan, 597 F.3d 18, 27 (1st Cir. 2010) (citation and internal
punctuation omitted).

The court went on to note that,

“Unsurprisingly, the cases that satisfy this test are few and far
between.”

Id. at 28.

Exeter Hospital has not shown that this is

one of those rare and exceptional cases.

Nor has it shown any

benefit to be gained by staying these proceedings at this time.
Should it subsequently become necessary to issue a stay so the
full extent of the hospital’s damages liability to its former
patients can be determined, the court will entertain the
appropriate motion at that time.

But, resolution of the

underlying liability issues need not be delayed.

Conclusion
For the foregoing reasons, as well as those set forth in
Maxim’s memoranda, Exeter Hospital’s amended complaint fails to
state any viable claims against Maxim.
to dismiss (document no. 9) is granted.

According, Maxim’s motion
The motion to dismiss

filed by The American Registry of Radiologic Technologists

20

(document no. 14) is, however, denied.

Exeter Hospital’s motion

to stay (document no. 39) is also denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 4, 2014
cc:

Mark A. Darling, Esq.
Robert C. Dewhirst, Esq.
David Kwiatkowski, pro se
Jonathan A. Lax, Esq.
Peter A. Meyer, Esq.
Elaine M. Michaud, Esq.
Peter W. Mosseau, Esq.
Nicole Paquin, Esq.
Mark W. Shaughnessy, Esq.
William N. Smart, Esq.
Ralph Suozzo, Esq.
Jay Surdukowski, Esq.
Robert G. Whaland, Esq.

21