Exeter Hospital, Inc. v. Kwiatkowski et al

Filing 94

///ORDER granting 78 ARRT's Motion to Dismiss Count 73 of Third Amended Complaint; and granting 79 Triage's Motion to Dismiss Counts 73 and 74, without prejudice to Exeter Hospital's moving to amend those two counts to state viable grounds for recovery. 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. 2016 DNH 200

David Kwiatkowski; Maxim
Healthcare Services, Inc.;
The American Registry of
Radiologic Technologists;
and Triage Staffing, Inc.,
Defendants

O R D E R

In 2012, thirty two former patients of Exeter Hospital
tested positive for Hepatitis-C.

And, it was discovered, a

substantially larger number had, potentially, been exposed to
the virus.

That outbreak was caused by David Kwiatkowski, an

intravenous drug user who was employed by the hospital as a
cardiac catheterization technician in 2011 and 2012.

Exeter

Hospital subsequently settled a large number of claims, both
from patients who had actually been infected with the HepatitisC virus, as well as patients who, although not infected, sought
compensation for injuries related to their having had to undergo
testing as well as their fear of having contracted the disease.
The hospital then filed this statutory contribution action
against several defendants, seeking to recover damages it

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sustained and expenses it incurred in connection with settling
those claims.

It also seeks contractual indemnification from

Triage Staffing - the employment agency that placed Kwiatkowski
at the hospital.

Pending before the court are two motions to dismiss.

The

American Registry of Radiologic Technologists (“ARRT”) moves to
dismiss count 73 of the Third Amended Complaint, which seeks
statutory contribution for sums Exeter Hospital paid to patients
who were tested for Hepatitis-C, but who did not actually
contract the disease (the so-called “negative results
claimants”).

Triage Staffing also moves to dismiss that count.

Additionally, Triage moves to dismiss count 74, in which Exeter
Hospital seeks contractual indemnification from Triage for the
same sums.

For the reasons discussed, those motions to dismiss

are granted, without prejudice to Exeter Hospital’s ability to
amend counts 73 and 74, as discussed below.

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.”
(1st Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441

Although the complaint need only contain “a

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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 the possibility of relief from the realm of
mere conjecture, the complaint is open to dismissal.”
597 F.3d at 442.

Tambone,

Such is the case here.

Background
Most of the relevant factual allegations are set forth in
the court’s prior order (document no. 48) and need not be

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recounted.

It is sufficient to note that Exeter Hospital

alleges the following.

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, patients were either
exposed to, or actually infected with, the Hepatitis-C virus.
As part of its investigation into the Hepatitis-C outbreak,
Exeter Hospital (along with the New Hampshire Department of
Health and Human Services) contacted patients who had received
care in the catheterization lab and other unspecified areas of
the hospital, recommending they undergo testing.

More than

3,000 people were tested and, of them, a total of 32 former
patients tested positive for Hepatitis-C.

Subsequently, a

number of those infected patients sued Exeter Hospital.

An

additional 188 patients who tested negative for the disease also
advanced claims against the hospital (but did not actually file

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suit).

Exeter Hospital settled many of those claims (from both

infected and non-infected parties) and obtained releases for
itself as well as all of the named defendants.

It then filed

this action, seeking statutory contribution (and, with respect
to Triage, contractual indemnification).

Exeter Hospital alleges that Triage Staffing knew
Kwiatkowski had Hepatitis-C and, despite that knowledge, it
“continued to expose hospital patients to the potential risk of
contracting the virus for years before [it] recommended him for
employment at Exeter Hospital.”
(document no. 74) at para. 35.

Third Amended Complaint
Exeter Hospital also alleges

that it reasonably relied upon Triage to properly screen
Kwiatkowski before recommending him for employment by the
hospital.

Id. at para. 64.

As for the American Registry of

Radiologic Technologists, Exeter Hospital says it was aware of
Kwiatkowski’s history of drug use, yet undertook no meaningful
investigation into his conduct and failed to revoke his national
certification.

Id. at paras. 55-58.

That conduct (or inaction)

on the part of ARRT and Triage, says the hospital, proximately
caused the injuries allegedly sustained by the negative results
claimants.

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All agree that, as for the 188 negative results claimants
at issue, the operative paragraph in Exeter Hospital’s Third
Amended Complaint alleges that:

Although Patients N001 through N188 tested negative
for the virus, they presented claims for damages to
Exeter Hospital, alleging that they each suffered
diverse physical and emotional injuries as a direct
result of learning of their potential infection with
the Hepatitis-C virus; of having to undergo the
recommended Hepatitis-C testing; and of having to wait
days (or in some cases, weeks) before learning that
their test results were negative.

Third Amended Complaint, at para. 953 (emphasis supplied).

ARRT

and Triage join in asserting that those allegations are simply
too meager to state a viable cause of action.

Accordingly, they

move to dismiss those counts in the Third Amended Complaint
relating to the 188 non-infected patients.

Discussion
Under New Hampshire law, “a right of contribution exists
between or among 2 or more persons who are jointly and severally
liable upon the same indivisible claim, or otherwise liable for
the same injury, death, or harm.”
507:7-f I.

N.H. Rev. Stat. Ann. (“RSA”)

Having settled the claims advanced by the 188

negative results claimants for their alleged “diverse physical
and emotional injuries,” Exeter Hospital now seeks contribution
from each of the named defendants for their joint and several

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liability to those patients.

The source of that joint and

several liability is, however, unclear.

Exeter Hospital’s

amended complaint fails to articulate any precise cause(s) of
action the negative results claimants might have had against the
hospital and for which ARRT and/or Triage would be jointly and
severally liable.

In its opposition memoranda, however, Exeter

Hospital suggests that such a cause of action might be based on
negligence, or negligent infliction of emotional distress, or
possibly even intentional infliction of emotional distress.

The

court disagrees.

Perhaps the most significant shortcoming of the amended
complaint is its failure to plausibly allege that any of the
negative results claimants were actually exposed to the
Hepatitis-C virus, or even that it is reasonably likely that
they were exposed.

The amended complaint does not, for example,

allege that Kwiatkowski was the cardiac technician from whom
they received care, or that they actually received some sort of
intravenous medication or procedure while at the hospital during
Kwiatkowski’s tenure as a cardiac catheterization technician.
Nor does it allege that they were patients at the hospital
during the relevant time period and under circumstances
suggesting that transmission to them of the Hepatitis-C virus
was reasonably possible.

Absent such factual claims, the Third

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Amended Complaint fails to adequately allege that each of the
188 negative results claimants was adequately exposed to the
Hepatitis-C virus to have a reasonable fear of developing the
illness.

See generally Kenyon v. Cheshire Cty. Jail Adm'r, No.

CIV. 92-515-M, 1994 WL 529925, at *5 (D.N.H. Sept. 22, 1994)
(noting that to state a viable claim, plaintiff “must allege a
specific incident of possible exposure that could lead to a
reasonable fear of developing AIDS” and concluding that
“plaintiff’s allegations that he might have been exposed to AIDS
and has suffered emotional distress as a result are inadequate
as a matter of law to state a claim for emotional distress upon
which relief could be granted.”) (emphasis in original).

See

also Marlin v. Bill Rich Constr., 198 W. Va. 635, 653, 482
S.E.2d 620, 638 (1996) (holding that plaintiff must allege that
he or she was “actually exposed” to the disease by the
defendant’s negligent conduct and that “the exposure upon which
the claim is based raises a medically established possibility of
contracting a disease”); Neal v. Neal, 125 Idaho 617, 622, 873
P.2d 871, 876 (1994) (“Damages are recoverable for emotional
distress claims resulting from the present fear of developing a
future disease only if the mental injury alleged is shown to be
sufficiently genuine and the fear reasonable.

We hold that

there can be no reasonable fear of contracting such a disease
absent proof of actual exposure.”); Dillard v. Torgerson

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Properties, Inc., No. CIV. 05-2334(PAMJSM), 2006 WL 2974302, at
*3 (D. Minn. Oct. 16, 2006) (dismissing plaintiff’s negligent
infliction claim because she could not show “that she was
actually exposed to a communicable disease,” and noting that
“most jurisdictions that have considered emotional distress
claims based on the fear of contracting HIV have required actual
exposure to HIV”).

Rather than alleging a plausible instance of at least
possible exposure to Hepatitis-C for each of the negative
results claimants, the amended complaint suggests that Exeter
Hospital (laudably) tested those patients out of an abundance of
caution and, ultimately, settled their claims despite the fact
that there may have been no legal obligation to do so (or, at a
minimum, without requiring those claimants to demonstrate that
they had, indeed, suffered legally compensable emotional
distress).

Of course, independent of any legal obligation the

hospital may have had to compensate the negative results
claimants, one can imagine many reasons that might have
motivated the hospital to settle those claims quickly and out of
court.

But, absent actual legal liability on the part of the

hospital (and ARRT and Triage) to those patients, the hospital
cannot recover on its contribution claims against ARRT and
Triage.

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Additionally, to the extent Exeter Hospital seeks to
recover for settlements related to emotional distress allegedly
suffered by the negative results claimants, the amended
complaint fails to adequately allege that each (or, indeed, any)
of them suffered objective physical manifestations or symptoms
of their emotional distress - an essential element of a viable
claim for emotional distress under applicable New Hampshire law.
See, e.g., Tessier v. Rockefeller, 162 N.H. 324, 342 (2011)
(noting that one of the essential elements of a viable claim for
negligent infliction of emotional distress is “serious mental
and emotional harm accompanied by objective physical
symptoms.”).

See also O'Donnell v. HCA Health Servs. of N.H.,

Inc., 152 N.H. 608, 611–12, 883 A.2d 319, 324 (2005) (“To
recover for emotional distress under a traditional negligence
theory, we have consistently required plaintiffs to demonstrate
physical symptoms of their distress regardless of physical
impact.”); Palmer v. Nan King Rest., Inc., 147 N.H. 681, 684
(2002) (“[I]n order to recover for emotional distress under a
traditional negligence theory, the plaintiff must demonstrate
physical symptoms of her distress.”).

In other words, to state

a viable claim for emotional distress, the hospital must allege
that each individual claimant’s emotional distress was
“sufficiently serious” to have manifested itself through
physical symptoms.

In re Bayview Crematory, LLC, 155 N.H. 781,

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786 (2007).

Exeter Hospital’s general allegation that the

negative results claimants suffered “diverse physical and
emotional injuries as a result of learning of their potential
infection” is not sufficient.1

Parenthetically, the court notes that even if the amended
complaint did adequately plead a claim for emotional distress
damages (it does not), if this case were to proceed to trial,
Exeter Hospital would have to introduce expert medical testimony
in order to demonstrate that each individual claimant suffered a
physical manifestation or symptom, which was causally related to
his or her emotional injuries.

See, e.g.,

In re Bayview

Crematory, LLC, 155 N.H. at 786 (“To ensure that the emotional
injury is sufficiently serious to warrant legal protection and
establish a cause of action, expert testimony is required to
prove physical symptoms suffered from alleged negligent
infliction of emotional distress.”); O'Donnell, 152 N.H. at 612
(“Though the plaintiffs claim great suffering, we have held that

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Because none of the negative results claimants actually
filed suit against Exeter Hospital, no formal discovery was
conducted and the nature and severity of each individual’s
claimed emotional distress may be unclear. Consequently, Exeter
Hospital may not have been able to allege, in good faith, that
each of the negative results claimants suffered emotional
distress that was sufficiently severe to manifest itself in
physical symptoms.

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expert testimony is required to recover damages for negligent
infliction of emotional distress.”).

Finally, it probably bears noting that the needle stick
that the negative results claimants may have had to endure as
part of the testing process (the only specific physical injury
Exeter Hospital identifies) is not a physical manifestation of
emotional distress associated with the fear of having
potentially contracted Hepatitis-C.

See, e.g., Evans v. Taco

Bell Corp., No. 04-cv-103-JD, 2005 WL 2333841 at *8 (D.N.H.
Sept. 23, 2005) (“Evans does not assert that her claimed
emotional distress resulted from her inoculation, but rather
from her ingestion of food which she later learned could have
potentially been contaminated with Hepatitis A.

Because her

alleged emotional distress did not follow from any physical
injury, Evans’s negligence claim suffers from the same fatal
defect as those of the plaintiffs in Palmer and Thorpe: it seeks
damages for emotional distress unaccompanied by either physical
injury or physical symptoms.”).

Conclusion
The allegations set forth in count 73 of the Third Amended
Complaint fall well short of plausibly asserting a factual basis
for viable negligence, negligent infliction of emotional

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distress, or intentional infliction of emotional distress claims
by each of the 188 individual negative results claimants against
either ARRT or Triage.

And, because count 74 is derivative of

count 73, it also fails to state a viable cause of action
against Triage for contractual indemnification of the sums
Exeter Hospital paid in settlement to the negative results
claimants.

ARRT’s motion to dismiss count 73 of the Third Amended
Complaint (document no. 78), as well as Triage’s motion to
dismiss counts 73 and 74 (document no. 79), are granted, without
prejudice to Exeter Hospital’s moving to amend those two counts
to state viable grounds for recovery.

If it so chooses, and if counsel can do so in good faith
(Rule 11, Federal Rules of Civil Procedure) Exeter Hospital may,
within thirty (30) days of the date of this order, file an
amended complaint that adequately and plausibly sets forth
factual allegations sufficient to state a viable basis to
recover against ARRT and/or Triage for settlements made to one
or more of the 188 negative results claimants.

If Exeter

Hospital avails itself of that opportunity, it must, as for each
individual negative results claimant, allege the essential
elements of a viable claim and a plausible basis upon which to

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rest any award of damages, including that each such claimant
suffered physical symptoms or physical manifestations of severe
emotional distress that Exeter Hospital believes, in good faith,
can be proven at trial.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
October 31, 2016
cc:

Robert C. Dewhirst, Esq.
Elaine M. Michaud, Esq.
Jonathan A. Lax, Esq.
Joshua M. Wyatt, Esq.
Peter W. Mosseau, Esq.
Jay Surdukowski, Esq.
Peter A. Meyer, Esq.
James B. Lynch, Esq.
Mark A. Darling, Esq.
Shari L. J. Aberle, Esq.
Daniella Massimilla, Esq.
Linda M. Smith, Esq.
Ralph Suozzo, Esq.
William N. Smart, Esq.

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