Middendorft v. West Chester Hospital, LLC et al
ORDER granting 5 Defendants' Motion to Dismiss. Signed by Judge Timothy S. Black on 7/25/17. (gs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WEST CHESTER HOSPITAL, LLC,
Case No. 1:15-cv-439
Judge Timothy S. Black
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (Doc. 5)
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
In the case currently before this Court, Plaintiff Lyndsey Middendorf has filed
a proposed class action suit against Defendants West Chester Hospital, LLC and UC
Health. The complaint advances claims of fraud and violations of the Ohio Consumer
Sales Protection Act. (Doc. 3, at 41–46). 1 The proposed class advanced by the complaint
is “any BMP-2 patient at West Chester Dr. Durrani implanted BMP-2 who is not already
a Deters Law Office or other law office client who has brought a claim for BMP-2.” (Id.
at 3). 2 Ms. Middendorf 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
defendants in this case. Middendorf v. Durrani, et al, Hamilton County Court of Comm.
Pl. No. A1506649 (Dec. 7, 2015).
Defendants filed a timely motion to dismiss (Doc. 5), which was placed on hold
while the Court adjudicated a motion to remand filed by Plaintiffs. (Doc. 11). The Court
has denied the motion to remand (see Doc. 18), and the motion to motion to dismiss has
now been fully briefed by the parties.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(f) authorizes courts to strike “from any
pleading any insufficient defense or any redundant, impertinent, or scandalous matter.”
Currently pending before the Court is a motion by Plaintiff to drop two of the four counts
(negligence and negligent credentialing, supervision, and retention) from the original complaint.
(Doc. 23). Defendants did not respond to that motion in the time allotted by the Federal Rules of
Civil Procedure. The Court accordingly grants the motion (Doc. 23) and will evaluate the
current motion to dismiss as applied to the complaint without the two removed claims.
BMP-2 is a medical product that is alleged to have been inserted into many of Dr. Durrani’s
patients without informed consent during Dr. Durrani’s tenure in the Cincinnati area.
Fed. R. Civ. P. 12(f). The purpose of the Rule “is to avoid the expenditure of time and
money that must arise from litigating spurious issues by dispensing with those issues
prior to trial.” Kennedy v. Cleveland, 797 F.2d 297, 305 (6th Cir. 1986). A Rule 12(f)
motion is the preferred method for addressing class allegations that cannot be cured by
discovery. Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011);
see also Rikos v. Procter & Gamble Co., No. 1:11-CV-226, 2012 WL 641946, at *4 (S.D.
Ohio Feb. 28, 2012). Because “[a] party seeking class certification must affirmatively
demonstrate his compliance with [Federal Rule of Civil Procedure 23],” Wal-Mart
Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (U.S. 2011), certification is proper only “if
the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 are
met.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). A failure to satisfy any
of the Rule’s requirements “dooms the class.” Pilgrim, 660 F.3d at 946.
There are two parts to Rule 23. Part (a) requires that the party seeking class
certification must show the numerosity, commonality, typicality and adequacy of
representation. Part (b) requires the party to show that questions of law or fact common
among class members predominate over questions affecting only individual members,
and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. In addition to these explicit requirements is an implicit one:
a party must show also that the proposed class is “sufficiently definite so that it is
administratively feasible for the court to determine whether a particular individual is a
member of the proposed class.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532,
537–38 (6th Cir. 2012) (internal citations omitted). A successful class definition is one
that is based on objective criteria so that class members may be identified without
individualized fact finding. Crosby v. Social Sec. Admin., 796 F.2d 576, 580 (1st Cir.
1986); see also 7A Wright & Miller, Federal Practice and Procedure, § 1760 (3d ed.)
(noting that the class description must be “sufficiently definite so that it is
administratively feasible for the court to determine whether a particular individual is a
member.”). An unsuccessful class definition is one that is based on “subjective
standards . . . or terms that depend on resolution of the merits[.]” Manual for Complex
Litigation (Fourth) § 21.222 (2004).
The proposed class does not have a proper class representative
Defendants argue in their motion to dismiss that class certification should be
denied and the complaint should be dismissed because Lyndsey Middendorf is not a
proper class representative for the class advanced in the complaint. Defendants are
Ms. Middendorf is clearly not a member of the class she seeks to represent.
While the members of the putative class include people “who [are] not already a Deters
Law Office or other law office client who has brought a claim for BMP-2,” Ms.
Middendorf is currently being represented by the Deters Law Office in a case in state
court advancing similar claims to those advanced in this complaint. Middendorf v.
Durrani, et al, Hamilton County Court of Comm. Pl. No. A1506649 (Dec. 7, 2015). She
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, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting East Tex. Motor Freight System,
Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)).
Without Ms. Middendorf, the proposed class from the complaint has no class
representative. 3 With no named party pursuing the claims of the complaint, this case
must be dismissed.
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.
The Court notes that the difference between Ms. Middendorf and the potential members of the
putative class is not merely superficial. If allowed to serve as a class representative in this case,
Ms. Middendorf would be simultaneously advancing two cases against the same defendants
seeking similar relief. The progress of one case might dictate the level of attention or effort
given to the other; if Ms. Middendorf’s state case progresses in her favor, it would be reasonable
to expect that her energy would be directed away from the present case and towards the state
case so as to maximize her 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
Accordingly, IT IS ORDERED as follows:
1) Plaintiff’s motion to dismiss count II and count IV of the complaint without
prejudice (Doc. 23) is GRANTED;
2) Defendants’ motion to dismiss (Doc. 5) is GRANTED and this case is
DISMISSED WITH PREJUDICE;
3) The Clerk shall enter judgment accordingly, whereupon this civil action shall
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
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