Durham v. Cincinnati Children's Hospital Medical Center

Filing 31

ORDER granting 8 Defendant's Motion to Dismiss and denying 27 Intervenor Plaintiffs' Motion to Intervene. Signed by Judge Timothy S. Black on 7/25/17. (gs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JACOB DURHAM,
Plaintiff,
vs.
CINCINNATI CHILDREN’s
HOSPITAL MEDICAL CENTER ,
Defendant.

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Case No. 1:15-cv-438

Judge Timothy S. Black

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (Doc. 8) AND
DENYING INTERVENOR PLAINTIFFS’ MOTION TO INTERVENE (Doc. 27)
I.

INTRODUCTION

This case is one of hundreds of cases in both Ohio state courts and federal courts
stemming from the alleged conduct of an orthopedic surgeon named Abubakar Atiq
Durrani who formerly lived and worked in the Cincinnati area. In 2013, allegations
surfaced that Dr. Durrani had for years subjected his patients to unnecessary surgeries
without informed consent as part of a financial scheme. Dr. Durrani was criminally
indicted in late 2013, but fled to his native Pakistan before trial. There is no indication he
will return. In his absence, hundreds of allegedly wronged patients have filed civil suits
against numerous related parties, from Dr. Durrani himself to the facilities where
surgeries allegedly took place to the manufacturers of the medial products that were
allegedly inserted into patient s without their informed consent. The majority of the
plaintiffs in these various lawsuits are represented by a single law firm, the Deters Law
Office.
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In the case currently before this Court, Plaintiff Jacob Durham has filed a
proposed class action suit against Defendant Cincinnati Children’s Hospital Medical
Center. The complaint advances claims of fraud and violations of the Ohio Consumer
Sales Protection Act. (Doc. 7, at 37–41). The proposed class advanced by the complaint
is outlined as follows:
Jacob Durham maintains this action on behalf of himself and all
patients who, as of the filing of this complaint, have undergone surgery at
CCHMC and had Infuse/BMP-2 placed in them without their knowledge
and consent during surgery by Dr. Atiq Durrani and other surgeons.
The members of this putative class are so numerous that joinder of
individual claims is impracticable. Morever [sic], there are significant
questions of fact and law common to the members of the putative class. The
Deters Law Office represents 185 individuals who have brought claims for
Infuse/BMP-2 at West Chester.
However, this action is being brought on behalf of all others not
current Deters Law Office clients who had Infuse/BMP-2 placed in them
without their knowledge. This is known based upon the number of Dr.
Durrani surgeries performed and his prolific use of BMP-2. It was used
secretly in that unless a patient reviewed in detail their medical records and
medical bills they would not know. It is important they do know based
upon all the harm BMP-2 can cause and could be causing them completely
without their knowledge.
(Id. at 35 (emphasis added)). Mr. Durham is represented by the Deters Law Office in
both this case and a separate case filed in Ohio state court raising similar claims against,
among others, the defendant in this case.
Defendant filed a timely motion to dismiss (Doc. 8), which was placed on hold
while the Court adjudicated a motion to remand filed by Plaintiffs. (Doc. 12). The Court
has rejected the motion to remand (see Doc. 18), and the motion to motion to dismiss has
now been fully briefed by the parties.

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Plaintiff’s response to the motion to dismiss acknowledges that Jacob Durham is
an inappropriate class representative because he is not a member of the proposed class
due to his previous association with the Deters Law Office as the plaintiff in an Ohio
state court action raising similar claims to the present action. (Doc. 22, at 11). Jacob
Durham has accordingly indicated that he no longer wishes to proceed as the class
representative in this action. (Id. at 6). In an attempt to preserve this action, three
potential intervenor plaintiffs, Christina Rutter, Joseph Rutter, and Carson Rutter
(“Intervenor Plaintiffs”), have filed a motion to intervene as class representatives in this
action. (Doc. 27). That motion has been opposed by Defendant.
II.

STANDARD OF REVIEW

In evaluating a motion under Fed. R. Civ. P. 12(b)(6), the Court should not accept
legal conclusions as true, nor should it accept conclusory allegations that the claims’
elements have been satisfied. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
allegations of the complaint must rise above the speculative level and be plausible on
their face. Twombly, 550 U.S. at 555, 558. The Sixth Circuit recently held that to
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face” and all well-pled facts in the complaint must
be accepted as true. Savoie v. Martin, 673 F.3d 488, 492 (6th Cir. 2012) (citations
omitted).

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Aside from being appropriate to dismiss the individual claims, a motion to dismiss
can also challenge class certification based solely on the allegations in the complaint.
Schilling v. Kenton County, 2011 U.S. Dist. LEXIS 8050, at *11-12 (E.D. Ky. Jan. 27,
2011). To dismiss a complaint based on the failure to properly plead class allegations,
the moving party has the burden of demonstrating from the face of the plaintiffs’
complaint that it will be impossible to certify the class as alleged, regardless of the facts
plaintiffs may be able to prove. Id.
III.
A.

ANALYSIS

Neither Plaintiff nor the Intervenor Plaintiffs are appropriate class
representatives for the putative class in this action

Defendant argues in its motion to dismiss that class certification should be denied
and the complaint should be dismissed because Jacob Durham is not a proper class
representative for the proposed class in the complaint. Defendant is correct.
Mr. Durham is clearly not a member of the class he seeks to represent. While the
members of the putative class include people who are “not current Deters Law Office
clients,” Mr. Durham is currently being represented by the Deters Law Office in a case in
state court advancing similar claims to those advanced in this complaint. Durham v.
Durrani, et al, Hamilton Cty. Comm. Pl. No. A1403361 (June 9, 2014). He therefore
cannot be a member of the proposed class in this case. That is the end of this Court’s
necessary inquiry into the merits of this class action, as the Supreme Court has quite
clearly stated that “a class representative must be part of the class.” Wal-Mart Stores,

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Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting East Tex. Motor Freight System, Inc. v.
Rodriguez, 431 U.S. 395, 403 (1977)).
The recently filed motion to intervene seeks to cure this defect by introducing new
representative class members. (Doc. 27). However, the Intervenor Plaintiffs also have a
previous pending state action in which they are represented by the Deters Law Office and
therefore would not be members of the putative class defined in the complaint. See
Rutter et al. v. Durrani, et al, Hamilton County Court of Comm. Pl. No. A1402941 (May
19, 2014). The proposed intervenor complaint seeks to cure this defect by modifying the
putative class as follows:
Plaintiffs intervene in this class action pursuant to Rule 23 of the
Federal Rules of Civil Procedure on behalf of a Class of all persons: (i) who
had a bio-engineered bone graft device known as Infuse® Bone Graft/LTCAGE® Lumbar Tapered Fusion Device ("Infuse®") supplied by
defendant to the Class members and implanted into them during cervical,
thoracic, or lumbar spine surgeries performed at a hospital or surgical
center facility owned or operated by defendant; (ii) who had not reached
their 18th birthday on the dates the surgeries were performed; and (iii)
whose surgeries were performed during the period from April 2, 2004, to
the present (the “Class”). Excluded from this definition is: (a) plaintiffs’
counsel; (b) the Court and its staff; (c) defendant, its agents, employees,
servants, officers, and attorneys; and (d) all persons other than the named
Plaintiffs who have previously commenced a civil action in any court of
competent jurisdiction asserting claims, counterclaims, or causes of action
against defendant arising from or attributable to defendant’ sale, transfer, or
use of Infuse® at any of its facilities.
(Doc. 27-1, at 3 (emphasis added)).
The fundamental problem with this class as defined by Intervenor Plaintiffs is that
Intervenor Plaintiffs are specifically included in a class in which they would not
otherwise belong for no logical reason other than as a brazen attempt to avoid dismissal
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for lack of a proper representative plaintiff. Intervenor Plaintiffs are currently
represented by the Deters Law Office in an Ohio state court action raising similar claims
against the defendant in the present action (among others). Rutter, Hamilton County
Court of Comm. Pl. No. A1402941. Intervenor Plaintiffs therefore do not meet the
objective criteria used to define the putative class in this case. The Court cannot allow
the Deters Law Office to use Intervenor Plaintiffs as a vehicle to keep its proposed class
action afloat by proposing a class that is not based solely on objective, generalized
criteria. The only class that could be properly certified in this action would require
striking the phrase “other than the named Plaintiffs” from the proposed class in the
proposed intervenor complaint.
Once the improper phrase specifically adding Intervenor Plaintiffs to the proposed
class is stricken, it is clear that Intervenor Plaintiffs suffer from the same fatal defect as
Jacob Durham with regard to their bid to be representative plaintiffs in this action;
namely, they are not members of the proposed class. Accordingly, the motion to
intervene is moot, as this action would be dismissed for lack of a representative plaintiff
regardless of the outcome of the motion to intervene. 1

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The Court notes that the difference between Mr. Durham and the proposed intervenors versus
the potential members of the putative class is not merely superficial. If allowed to serve as a
class representative in this case, the plaintifss would be simultaneously advancing two cases
against the same defendant seeking similar relief. The progress of one case might dictate the
level of attention or effort given to the other; if the state case progresses in plaintiffs’ favor, it
would be reasonable to expect that plaintiffs’ energy would be directed away from the present
case and towards the state case so as to maximize the chances of recovery. This is an untenable
situation, and perfectly illustrates why the Supreme Court has held that lead plaintiffs in a class
action are required to be class members.

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IV.

CONCLUSION

Ultimately, there appears to be little need for this class action, which seems to this
Court to merely be an attempt by the Deters Law Office to “corner the market” on any
potential plaintiffs they may have missed who are not among the hundreds of plaintiffs
currently pursuing their claims in Ohio state court. This is an inappropriate use of the
class action mechanism, and if allowed would create duplicitous litigation that would
threaten to waste judicial resources and prolong the ultimate resolution of the many
serious claims arising from the alleged acts of Dr. Durrani. As it stands, allowing this
complaint to proceed would serve no one but Plaintiff’s counsel.
Accordingly, IT IS ORDERED that Defendant’s motion to dismiss (Doc. 8) is
GRANTED, the Intervenor Plaintiffs’ motion to intervene (Doc. 27) is DENIED
(on the merits and as moot), and the case is DISMISSED WITH PREJUDICE. The
Clerk shall enter judgment accordingly, whereupon this civil action shall be CLOSED.
IT IS SO ORDERED.
Date: 7/25/17

______________________
Timothy S. Black
United States District Judge

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