Donnellan v. Lindner

Filing 14

MEMORANDUM OPINION (Order to follow as separate docket entry) re 7 Defendant's Rule 12(b)(6) Motion by Henry Lindner, M.D. Signed by Honorable Robert D Mariani on 5/8/2024. (cac)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA DONNELLAN,
3:23-CV-01728
: (JUDGE MARIANI)

Plaintiff,
V.

HENRY LINDNER, M.D.,
Defendant.
MEMORANDUM OPINION
I. INTRODUCTION

Defendant's Rule 12(b)(6) Motion to Dismiss and/or Motion to Strike Pursuant to
Rule 12(D (Doc. 7) is pending before the Court. With his Motion, Defendant asks the Court
to strike all references to "reckless", "wanton", "outrageous", and "grossly negligent
conduct." (Id.

,r 35.) Additionally, Defendant asks the Court to dismiss Plaintiffs requests for

punitive damages and Intentional Infliction of Emotional Distress claim. (Id. at 7, 10.)
The Plaintiff in the Complaint is Patricia Donnellan. (Doc. 1 ,r 4.) The Defendant is
Henry Lindner, M.D. (Id.

,r 5.)

Plaintiffs Complaint (Doc. 1) alleges that Lindner diagnosed

Plaintiff with babesiosis without confirmation that Plaintiff had any parasitic infection. Plaintiff
also alleges that, because of this diagnosis, Lindner prescribed Plaintiff with numerous
medications over a significant period of time that caused Plaintiff physical and emotional
harm. Despite Plaintiff informing Lindner of the serious side effects that she was
experiencing, Plaintiff alleges that Lindner continued to prescribe high dosages of the same

medication. Plaintiffs Complaint filed on October 17, 2023 contains two counts: Count I
asserts a negligence claim under the Medical Care Availability and Reduction of Error Act
("MCARE"), 40 P.S. § 1303.505(a); and Count II asserts an Intentional Infliction of
Emotional Distress claim. For the reasons explained below, the Court will deny Defendant's
Motion (Doc. 7) .

II. 8ACKGROUND1
Plaintiff Patricia Donnellan ("Plaintiff') is an adult citizen of the State of Michigan.
(Doc. 1 f 4.) Defendant Henry Lindner, M.D. ("Lindner") is an adult citizen of the
Commonwealth of Pennsylvania. (Id. f 5.) At all relevant times, Lindner was a physician
licensed to practice medicine in the Commonwealth of Pennsylvania, holding himself out as
a practitioner in the areas of endocrinology and infectious disease. (Id.) Lindner maintained
a medical practice, office, and place of business at 230 West Tioga Steet, Suite 5,
Tunkhannock, Pennsylvania, 18657. (Id.)
In November 2008, Plaintiff was thirty-one (31) years old, and she presented to
Lindner complaining of achiness, weight gain, depression, problems with her sleep, and
other symptoms consistent with chronic fatigue. (Id. f 6.) At all relevant times, Lindner
advertised on a website, HormoneRestoration.com, which suggested that he could help
restore energy and health to patients with Plaintiffs symptoms. (Doc. 1 f 7.)

1 Unless

otherwise noted, the background information reiterates facts contained in Plaintiff's
Complaint (Doc. 1).
2

HormaneResoration.com does not mention whether Lindner is board certified in any
specialty. (Id. , 8.) It states that he began a residency in psychiatry, but resigned after one
year and became a general medical officer and flight surgeon in the United States Air Force.
(Id.) From 2008 to 2022, Plaintiff was a patient of Lindnefs and was under his care. (Id.,
9.) Plaintiff met Lindner in person approximately three times during this period, and normally
communicated with him by email, and occasionally by phone. (Id.)
In and around December 2020, Lindner ordered testing to determine whether
Plaintiff was infected by a babesia parasite, an infection caused by a babesia parasite is
known as "babesiosis,U and can be caused in humans by a tick bite. (Doc. 1 , 10.) Babesia
odocoilei is one particular species of the babesia parasite, and Lindner says that it causes
chronic babesiosis infections in humans. (Id., 11.) However, almost all cases of babesiosis
in humans in the United States are caused by babesia microti, not babesia odocoilei. (Id. )
Lindner has acknowledged that cases of human infection cases by babesia odocoilei are
"unknown to mainstream medicinell and difficult to detect by laboratory testing. (Id. )
Plaintiff alleges that it is standard practice for doctors in the Un ited States to
diagnose babesiosis using epidemiological risk factors and clinical evidence, and to confirm
the diagnosis with a blood smear examination or polymerase chain reaction (PCR) test. (Id.
, 12.) The testing that Lindner ordered in December 2020 included a PCR test, which was
negative for both babesia microti and babesia duncani (another babesia species). (Doc. 1 ,
3

13.) The testing did produce a positive result for babesia duncani antibodies , but that result
alone was not a sufficient basis for a reasonable doctor to diagnose an active infection of
babesiosis, given the negative PCR test and absence of other laboratory confirmation . (Id.)
No PCR test or blood smear examination ever confirmed that Plaintiff was infected
with babesiosis . (Id., 14.) Nonetheless, Lindner diagnosed Plaintiff with babesiosis. (Id.)
According to the Centers for Disease Control and Prevention ("CDC"), for nonimmunosuppressed people, babesiosis is either asymptomatic or causes an acute illness,
which ·should be confirmed through testing and treated for 7-10 days with antimicrobials,
such as azithromycin and atovaquone. (Id., 15.)
Lindner knew that mainstream medicine views babesiosis as an acute disease to be
treated with a short course of antimicrobial medication. (Id., 16.) Plaintiff claims that a
reasonable physician does not prescribe antimicrobial medications for months or longer
without a specifically identified objective rationale, confirmed by testing, because of the risk
that the patient will develop antimicrobial resistance and other adverse side effects. (Doc. 1
'17.)
Despite not having a blood smear examination or PCR test result confirming that
Plaintiff had babesiosis, Lindner prescribed antimicrobial medications to Plaintiff for more
than twenty months. (Id., 18.) Lindner knew that some of the medications he prescribed ,
such as tafenoquine, were not FDA approved for the treatment of babesiosis, or were not
4

routinely recommended by the CDC or the Infectious Diseases Society of America ("IDSA").

(/d.,I19.)
On April 20, 2021, Lindner emailed Plaintiff a document he wrote, titled "The
Treatment of Chronic Babesiosis." (Id. ,r 20.) The document showed that Lindner was aware
that his treatment program for babesiosis would cause his patients to become more ill , with
symptoms including fatigue, brain fog , headaches, muscle weakness, anxiety, and delirium.
(Id.)
Lindner convinced Plaintiff that the harm caused by babesia parasites was worse
than the possible side effects she would experience. (Doc. 1 ,r 21.) Plaintiff relied on
Lindner's diagnosis and treatment advice for babesiosis and followed his instructions with
respect to the medications he prescribed and the dosing of those medications. (Id. ,r 22.)
Plaintiff relied on Lindner's diagnosis and treatment advice for babesiosis in part because
Lindner told Plaintiff that he had diagnosed babesiosis in his own daughter, and he had
developed the treatment program for her. (Id.

,r 23.)

Lindner prescribed Plaintiff and other babesiosis patients high doses of
corticosteroids, including prednisone, hydrocortisone, and dexamethasone, which he
claimed could address the inflammation patients experienced as a result of the antimicrobial
medication. (Id. ,r 24.) Lindner prescribed corticosteroids for Plaintiff between 2008 and
2020 to treat the symptoms for which she originally sought his medical care. (Id. ,r 25.)
5

During these years, Plaintiffs corticosteroid doses rarely exceeded the equivalent of 20
milligrams of prednisone per day. (Id.)
Between December 2020 and November 2022, Plaintiff took the additional
medications prescribed by Lindner as part of his babesiosis protocol, which included even
higher doses of corticosteroids than those previously prescribed. (Doc. 1 ,r 26.) Plaintiff
regularly reported her dosages, symptoms, and reactions to Lindner by email. (Id.) In May
2022, Plaintiff was taking approximately 40 milligrams of prednisone equivalent per day. (Id.

,r 27.)
On May 22, 2022, Plaintiff wrote to Lindner that she did not think she could continue
with the babesiosis protocol because she was in so much pain and feeling suicidal. (Id.)
Lindner replied to Plaintiff on May 23, 2022, that he knew how she was feeling because he
had "been through it with my daughter." (Id.

,r 28.) In the same email, Lindner acknowledged

that the babesiosis protocol was making Plaintiff "more ill," that suicidal ideation was a
common side effect of the protocol, and that another one of his patients had developed
painful stretch marks on their skin, just as Plaintiff had. (Id.)
By September 2022, Plaintiff had stopped taking antimicrobial medications and had
reduced her corticosteroid doses. (Doc. 1 ,r 29.) On September 28, 2022, Lindner directed
Plaintiff to begin taking dexamethasone, and advised a "fast-track approach" of increasing

6

the doses. (Id. 130.) Lindner claimed that this approach worked on his daughter, but also
"landed two very sick patients in the hospital." (Id.)
On October 15, 2022, Plaintiff reported taking the prednisone equivalent of
approximately 120 milligrams in one day, and Lindner directed Plaintiff to "continue the
higher steroid dosing." (Id. 131.) Lindner added that she "should just try more Dex gradually
up to the limit of feeling overstimulated." (Id.)
Lindner had earlier written to Plaintiff (on March 28, 2022) that "[i]n a sane world
you'd be in a hospital for this treatment, but if you got to a hospital now the doctors will stop
your antibabesials and lower your prednisone dose precipitously." (Id. 133.) On October 19,
2022, Plaintiff wrote to Lindner that the dexamethasone was not working. (Doc. 1 134.)
Lindner replied the same day, "I think you have not taken as much Dex as you need yet,"
and that Plaintiff was "clearly" in the group of his patients - including his daughter - who
needs high doses. (Id.) In the same email, Lindner wrote, "[m]y daughter has unfortunately
had to take more Dex/Pred than any person has ever taken, in all of medical history I
believe," but she had "no choice." (Id.) In the same email, Lindner acknowledged that
"Dex/Pred has negative effects on the body," including "facial puffiness and abdominal
weight gain," and that "[a]t high doses the muscles atrophy." (Id. 135.) He argued that while
these side effects are not good, "the alternative is to stay in your current condition
indefinitely." (Id.)
7

Plaintiff wrote to Lindner on October 24, 2022, that she "woke up feeling like death ,"
that she was in extreme pain , that she felt worse as she took more dexamethasone, and
that she felt "like I am crawling towards death." (Doc. 1 , 36.) On October 27, 2022, Plaintiff
wrote to Lindner, "I am so so horribly incapacitated. I can't stand up on my own. I need help
getting to the bathroom. My knees feel so inflamed. My shoulders feel so inflamed. My face
and eyes are swollen. I can't get any pain relief from Advil, or Tylenol with codeine. I
honestly feel like I am dying." (Id., 37.) In reply emails to Plaintiff the same day, Lindner
wrote that he wanted to keep Plaintiff out of the hospital, because "they will dismiss
babesiosis, blame all your problems on steroids and antimalarial medications, and give you
only a minimal steroid dose." (Id., 38.)
On November 1, 2022, Lindner spoke to Plaintiff on the phone, and noted in her
record that his plan was to "try much higher steroid dosing . . .. Patient will take 20mgs pred
now, and repeat every 2hrs until feeling much better or overdosed ." (Id. , 39.) The next day,
November 2, 2022, Plaintiff reported to Lindner that she had taken 20 milligrams of
prednisone every two hours, as he directed, for a total of 220 milligrams of prednisone. (Id.
, 40.) She reported that her lower belly was swollen, and it was hard for her to get up or
bend over. (Id.) Lindner acknowledged that there was "quite a bit of edema in your face, "
and that "it must be due to the high prednisone doses." (Id.)

8

On November 3, 2022, Lindner wrote to Plaintiff that "[y]ou may have a very high
steroid requirement and we just haven't gotten close to it yet." (Doc. 1,r 41.) He directed her
to start the day with 8 milligrams of dexamethasone and 10 milligrams of prednisone,
followed by 4 milligrams of dexamethasone and 10 milligrams of prednisone "all day." (Id.)
On November 4, 2022, Plaintiff presented to the Emergency Room at CPMC Van
Ness in San Francisco, complaining of pain, among other symptoms. (Id. ,r 42.) She was
diagnoses with pneumonia and discharged, and she informed Lindner of her diagnosis and
discharge by email. (Id.) On November 5, 2022, Plaintiff wrote to Lindner that she did not
have enough corticosteroid pills for his prescribed doses, and that she was "very frightened"
that she would never walk again . (Id. ,r 43.) On November 6, 2022, Lindner wrote to Plaintiff
that he had sent new corticosteroid prescriptions for her, and added "I'm scared about you
too-and hoping your don't have steroid myopathy . ... We'll found out quickly with the very
high Dex/pred dosing." (Id. ,r 44.) On November 7, 2022, Plaintiff confirmed in an email to
Lindner that she was following his prescribed dosing instructions. (Doc. 1 ,r 45.) Lindner
replied that Plaintiff should "take 128 mgs of Dex and 80 mgs of prednisone daily to get the
equivalent of 976mgs of prednisone." (Id.)
On November 9, 2022, Plaintiff wrote to Lindner that she had followed his advice and
taken 976 milligrams of prednisone equivalent in approximately 18 hours. (Id. ,r 46.) In a
reply the same day, Lindner suggested reducing the prednisone by 10 milligrams per dose
9

and wrote "for now I think you should continue the higher steroid doses." (Id.

f 47.) Plaintiff

continued suffering from a variety of painful side effects of the corticosteroids, and on
November 12, 2022, she presented to UCSF Medical Center in San Francisco. (Id.

f 48.)

She was diagnosed with steroid myopathy, a pulmonary embolism, two deep vein
thromboses, multiple subacute bilateral rib fractures, and features of Cushing's disease.
(Id.)
On November 13, 2022, Lindner wrote a letter to Plaintiffs treating physicians, which
included "I had her take high-dose Dexamethasone, 128mgs/day, for 3 days. Her weakness
only worsened, indicating steroid myopathy." (Id.

f 49.) Plaintiff alleges that the care and

treatment caused by Lindner resulted in steroid myopathy, pulmonary embolism, deep vein
thromboses, subacute bilateral rib fractures , osteopenia, Cushing's syndrome, hair loss,
stretch marks on the skin , scarring on the skin, facial edema, acne, weight gain and obesity,
post-traumatic stress disorder, among other damages. (Id. f 50.)
Plaintiff alleges two distinct counts within her Complaint (Doc. 1). Count I of Plaintiffs
Complaint alleges negligence on the part of Defendant for failing to follow the standard of
care for the treatment of babesiosis. (Id.

ff 52-56.) Count II of Plaintiffs Complaint alleges

an Intentional Infliction of Emotional Distress claim, contending that Lindner's medical
treatment of Plaintiff constituted extreme and outrageous conduct. (Id.

10

ff 57-61.)

Ill. STANDARD OF REVIEW
A. Motion to Dismiss
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it
does not allege "enough facts to state a claim to relief that is plausible on its face." Be// At/.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, 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. at 555 (internal citations ,
alterations, and quotations marks omitted). A court "take[s] as true all the factual allegations
in the Complaint and the reasonable inferences that can be drawn from those facts, but ...
disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Labs., 707
F.3d 223,231 n.14 (3d Cir. 2013) (internal citation, alteration, and quotation marks omitted).
Thus, "the presumption of truth attaches only to those allegations for which there is
sufficient 'factual matter' to render them 'plausible on [their] face."' Schuchardt v. President
11

of the U.S., 839 F.3d 336,347 (3d Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S.
at 679). "Conclusory assertions of fact and legal conclusions are not entitled to the same
presumption." Id.
"Although the plausibility standard 'does not impose a probability requirement, ' it
does require a pleading to show 'more than a sheer possibility that a defendant has acted
unlawfqlly."' Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
citation omitted) (first quoting Twombly, 550 U.S. at 556; then quoting Iqbal, 556 U.S. at
678). "The plausibility determination is 'a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense."' Id. at 786-87 (quoting
Iqbal, 556 U.S. 679).
The Third Circuit Court of Appeals has identified the following three-step inquiry as
appropriate to determine the sufficiency of a complaint pursuant to Twombly and Iqbal:
First, the court must take note of the elements a plaintiff must plead to state a
claim. Second, the court should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth. Finally,
where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement
for relief.
Burtch v. Mi/berg Factors, Inc., 662 F.3d 212, 221 (3d Cir.2011 ); see also Connelly v. Steel
Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013); Santiago v. Warminster Twp., 629 F.3d
121, 130 (3d Cir. 2010).
In considering a motion to dismiss, the reviewing court examines:
12

the "complaint, exhibits attached to the complaint, [and] matters of public
record," Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010), we can also
consider documents "that a defendant attaches as an exhibit to a motion to
dismiss," Pension Benefits Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993), if they are "undisputedly authentic" and "the
[plaintiffs] claims are based [on them]," Mayer, 605 F.3d at 230. That holding
extends to settlement material because plaintiffs "need not provide admissible
proof at th[e] [motion-to-dismiss] stage." In re OSG Sec. Litig., 12 F. Supp.3d
619, 622 (S.D.N.Y. 2014); see also In re MyFord Touch Consumer Litig., 46 F.
Supp.3d 936, 961 n.5 (N.D. Cal. 2014) (same) . Moreover, the Supreme Court
has been clear about the scope of our review, stating we "must consider the
complaint in its entirety, as well as other sources [we] ordinarily examine when
ruling on ... motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take judicial
notice." Tellabs, Inc. v. Makar Issues & Rights, Ltd. , 551 U.S. 308, 322, 127
S. Ct. 2499, 168 L.Ed .2d 179 (2007) (emphasis added).
Estate of Roman v. City of Newark, 914 F.3d 789, 796-97 (3d Cir.), cert. denied sub
nom. Estate of Roman v. City of Newark, New Jersey, 140 S. Ct. 82, 205 L. Ed. 2d 28
(2019), and cert. deniedJ. 140 S. Ct. 97, 205 L. Ed. 2d 28 (2019).
Even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit
a curative amendment unless such an amendment would be inequitable or futile." Phillips v.
Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court finds that amendment
would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.
Id.

13

B. Motion to Strike
Federal Rule 12(0 provides that "[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P.
12(0. "A court possesses considerable discretion in disposing of a motion to strike under
Rule 12(0." Krisa v. Equitable Life Assurance Soc'y, 109 F.Supp.2d 316, 319 (M.D. Pa.
2000) (quoting North Penn Transfer, Inc. v. Victaulic Co. of Am., 859 F.Supp. 154, 158 (E.D.
Pa. 1994)).
"Motions to strike, however, are not favored and usually will be denied unless the
allegations have no possible relation to the controversy and may cause prejudice to one of
the parties, or if the allegations confuse the issues." Id. (quoting North Penn, 859 F.Supp. at
158) (internal quotation marks omitted). See also, Karpov v. Karpov, 307 F.R.D. 345, 348
(D. Del. 2015) ("In proceeding on a motion to strike for relevancy, the movant must show
that the allegations being challenged are so unrelated to the plaintiffs claims as to be
unworthy of any consideration and that their presence in the pleadings will be prejudicial.").

IV. ANALYSIS
Defendant contends that the Court should strike "all references to 'reckless' ,
'wanton', 'outrageous', and 'grossly negligent conductlll from Plaintiffs Complaint. (Doc. 7 ~
35.) Defendant also argues that the Court should dismiss portions of Plaintiffs Complaint on
two grounds: (1) Plaintiff cannot state a claim for punitive damages; and (2) Plaintiff fail to
14

state a claim for their Intentional Infliction of Emotional Distress claim. (Doc. 7 at 5, 7.) The
Court will address Defendant's request to strike and each alleged basis for dismissal in turn .
A. Motion to Strike

Here, pursuant to Fed. R. Civ. P. 12(D, Defendant "requests that all references to
'reckless', 'wanton', 'outrageous', and 'grossly negligent conduct' must be stricken from the
Complaint." (Doc. 7 f 35.) Lindner fails to explain why such allegations are "redundant,
immaterial, impertinent, or scandalous." Fed. R. Civ. P. 12(D. Lindner similarly provides no
arguments in his motion or briefing to suggest that "the allegations being challenged are so
unrelated to the plaintiffs claims as to be unworthy of any consideration and that their
presence in the pleadings will be prejudicial." Karpov, 307 F.R.D. at 348. Additionally,
although such allegations are legal conclusions that are not entitled to the presumption of
truth for the purposes of a 12(b)(6) motion to dismiss, Iqbal, 556 U.S. 679, this principle
does not equate to a determination that those allegations are also redundant, immaterial,
impertinent, or scandalous.
As the Court notes, infra at 18, Plaintiff alleges facts in her Complaint as to Lindner's
conduct that could be plausibly characterized as "reckless, wanton , outrageous , and grossly
negligent." (See, e.g., Doc. 7 ff 14, 16, 18, 19, 20, 24, 28, 30, 31, 38, 39, 40, 45, 46, 48,
49.) In essence, Plaintiffs Complaint alleges facts that contend that Lindner misdiagnosed
Plaintiff with babesiosis and overprescribed significant quantities of medications despite
15

knowing the dangers of doing so and despite Plaintiffs repeated complaints. (Id.) Although
Lindner is entitled to deny the legal conclusions offered in Plaintiffs complaint that describe
Lindner's acts as "reckless, wanton, outrageous, and grossly negligent," those legal
conclusions are not improper, redundant, or unnecessarily derogatory. See Karpov, 307
F.R.D. at 348; see also Walking v. Lindner, No. 3:23-CV-806, 2024 WL 84206, at *4 (M.D.
Pa. Jan. 8, 2024) (finding under nearly identical factual circumstances that Lindner failed to
explain why the plaintiffs allegations in that case were redundant, immaterial, impertinent,
or scandalous). Therefore, the Court will deny Lindner's request (Doc. 7,r 35) to strike all
references to "reckless", "wanton", "outrageous", and "grossly negligent conduct" from
Plaintiffs Complaint (Doc. 1).
B. Motion to Dismiss
Defendant argues that the Court should dismiss portions of Plaintiffs Complaint on
two grounds: (1) Plaintiff cannot state a claim for punitive damages; and (2) Plaintiff fail to
state a claim for their Intentional Infliction of Emotional Distress claim. (Doc. 7 at 5, 7; Doc. 8
at 5, 7.} The Court will address each argument for partial dismissal in turn.
1. Punitive Damages
Defendant argues that Plaintiffs request for punitive damages should be dismissed
because the Complaint does not allege facts that would establish grounds for an award of
punitive damages under Pennsylvania law. (Doc. 7,r,r 26-33; Doc. 8 at 5-7.) Upon review of
16

the allegations contained within her Complaint, Plaintiff adequately offers factual allegations
that could entitled her to punitive damages.
In diversity jurisdiction cases, federal courts must apply state substantive law and
federal procedural law. See Schmigel v. Ucha/, 800 F.3d 113, 119 (3d Cir. 2015). Because
Plaintiff brings her claims for punitive damages under Pennsylvania state law, that law
applies. See Gluck v. Unisys Corp., 960 F.2d 1168, 1179 (3d Cir. 1992). Pennsylvania has
codified punitive damages as to healthcare providers in the Medical Care Availability and
Reduction of Error Act ("MCAREJI), 40 P.S. § 1303.505(a). The MCARE states that "punitive
damages may be awarded for conduct that is the result of the health care provide(s willful
or wanton conduct or reckless indifference to the rights of others.JI 40 P.S. § 1303.505(a). 2
The MCARE continues by stating that "[i]n assessing punitive damages, the trier of fact can
1

properly consider the character of the health care provider s act, the nature and extent of
the harm to the patient that the health care provider caused or intended to cause and the
wealth of the health care provider.JI (Id.)
As this court has previously held,
[b]ecause a punitive damages award hinges on a defendant's state of mind, a
judgment on the pleadings that asks to dismiss a punitive damages claim is not
appropriate. A defendant's state of mind can only generally only be answered
with the development of a full factual record. This is well established in this
District, and in our sister districts across the Commonwealth . See, e.g., Harvell
v. Brumberger, No. 19-cv-2124, 2020 WL 6947693, at *8, 2020 U.S. Dist.
2 "A showing

of gross negligence is insufficient to support an award of punitive damages." 40 P.S. §

1303.505(b).
17

LEXIS 206828, at* 19-21 (M.D. Pa. Nov. 4, 2020) (report and recommendation
adopted by 2020 WL 6946575, 2020 U.S. Dist. LEXIS 221668 (M.D. Pa. Nov.
25, 2020)) ("courts have deemed [ ] motions to dismiss punitive damages
claims to be premature and inappropriate where, as here, the complaint alleges
reckless conduct."); Kerlin v. Howard, No. 18-cv-481, 2018 WL4051702, at*2,
2018 U.S. Dist. LEXIS 144152, at *3-4 (M.D. Pa. Aug. 24, 2018) ("this Court
has consistently held that it is premature to dismiss demands for punitive
damages prior to discovery"); 4 Tjokrowidjojo v. San Lucas, No. 20-cv-6564,
2021 WL 1143379, at *2, 2021 U.S. Dist. LEXIS 56655, at *2 (E.D. Pa. Mar.
25, 2021) ("courts routinely deny requests to dismiss punitive damages claims
in motor vehicle accident cases at the onset of litigation."); Cobb v. Nye, No.
14-cv-865, 2014 WL 7067578, at*-, 2014 U.S. Dist. LEXIS 172087, at *810 (M.D. Pa. Dec. 12, 2014) (same, as applied to a driver who rear ended
plaintiffs car); Maturo v. Pugh, No. 20-cv-1464, 2020 WL 4015240, 2020 U.S.
Dist. LEXIS 124868 (E.D . Pa. July 16, 2020) (same, as applied to a driver who
made an improper left turn).
Medina v. Haas, No. 4:21-CV-1000, 2021 WL 6063237, at *4 (M.D. Pa. Dec. 22, 2021).
As applied here in the medical malpractice context, if Lindner was engaged in willful
or wanton conduct or acted with a reckless indifference to the rights of others, then a
punitive damages award may be warranted. See 40 P.S. § 1303.505(a). Because this
assessment necessarily involves an evaluation of Lindner's subjective mental state,
discovery should be permitted to probe that issue.
Additionally, Plaintiff pleads facts in her Complaint that could plausibly amount to
willful or wanton conduct or evidence of a reckless indifference to the rights of others.
Plaintiff alleges that "no PCR test or blood smear examination ever confirmed that Plaintiff
was infected with babesiosis. Nonetheless, Lindner diagnosed Plaintiff with babesiosis."
(Doc. 1 , 14.) Plaintiff also alleges that, despite the CDC recommending that babesiosis be
18

"treated for 7-10 days with antimicrobials" (Id.~ 15), Lindner subjected Plaintiff to extensive
dosages of prednisone and other medications that were not FDA approved for the treatment
of babesiosis and that resulted in damages. (Id.~~ 15, 19, 26, 27, 30, 31, 45.) Specifically,
Plaintiff alleges that Lindner instructed that Plaintiff should "take 128 mgs of Dex and 80
mgs of prednisone daily to get the equivalent of 976mgs of prednisone." (Id.~ 46.) Plaintiff
also claims that Lindner "was aware that his treatment program for babesiosis would cause
his patients to become more ill, with symptoms including fatigue, brain fog, headaches,
muscle weakness, anxiety, and delirium." (Id.~ 20.) Plaintiff alleges that "Lindner
acknowledged that 'Dex/Pred has negative effects on the body,' including 'facial puffiness
and abdominal weight gain,' and that '[a]t high doses the muscles atrophy."' (Id.~ 35.)
In ruling on a motion to dismiss in a case against the same Defendant under nearly
identical factual circumstances to those here, this Court has previously denied dismissal
because the plaintiff in that case alleged that Lindner "directed [Plaintiffj to consume
medication in dosages far exceeding normal limits, over an extended period, and while she
reported severe symptoms. From such allegations a reasonable factfinder could infer that
he acted with reckless indifference." Wo/king, 2024 WL 84206 at *4. Such conduct by
Lindner is precisely what is alleged in Plaintiffs Complaint. (Doc. 1 ~~ 14, 15, 19, 20, 26, 27,
30, 31, 45, 46.)

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Other courts in the Third Circuit have also found relatively comparable alleged
conduct by medical care teams to plausibly justify a punitive damages award. See, e.g.,

O'Leary v. Wexford Health Sources, Inc., No. CV 16-1393, 2018 WL 1010748, at *5-6 (E.D.
Pa. Feb. 22, 2018) (denying the defendants' motion to dismiss punitive damages because
that complaint plausibly alleged that "Defendants were aware of [the plaintiffs] significant
medical needs" and nonetheless "delayed [the plaintiffs] necessary medical care").
Because Plaintiff has alleged facts that plausibly support "reckless, wanton ,
outrageous, and negligent conduct" on the part of Lindner (Doc. 1 ,r 56), Plaintiff has plead
sufficient allegations to allow her request for punitive damages to continue at this stage.
Therefore, Defendant's partial motion to dismiss on this basis will be denied.
2. Intentional Infliction of Emotional Distress
Defendant also contends that partial dismissal is warranted with respect to Plaintiffs
Intentional Infliction of Emotional Distress claim (Doc. 1 ,r,r 57-61) . (Doc. 8.) Plaintiff
contends that she pleads sufficient facts in her Complaint to make out an Intentional
Infliction of Emotional Distress claim. (Doc. 9.) For similar reasons explained with respect to
Plaintiffs request for punitive damages, Defendant's request to dismiss Plaintiffs Intentional
Infliction of Emotional Distress claim will be denied.
For Plaintiff to state a claim for Intentional Infliction of Emotional Distress, she must
plead facts sufficient to show that Lindner acted with "intentional outrageous or extreme
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conduct" which caused her severe emotional distress. Swisher v. Pitz, 868 A.2d 1228, 1230
(Pa. Super. Ct. 2005). "Outrageous or extreme conduct has been defined by the appellate
courts of this Commonwealth as conduct that is so outrageous in character, so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in civilized society." Id. (internal quotation marks omitted). That is,
it has not been enough that the defendant has acted with intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by "malice," or a degree of aggravation
that would entitle the plaintiff to punitive damages for another tort,
Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (internal citations and quotation
marks omitted).
"With regard to the element of outrageousness , it is for the cou rt to determine in the
first instance whether the defendant's conduct may reasonably be regarded as so extreme
and outrageous to permit recovery. " Swisher, 868 A. 2d at 1231.
Cases which have found a sufficient basis for a cause of action of intentional
infliction of emotional distress have ... presented only the most egregious
conduct. Seel] e.g., Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970)
(defendant, after striking and killing plaintiffs son with automobile, and after
failing to notify authorities or seek medical assistance, buried body in a field
where discovered two months later and returned to parents (recognizing but
not adopting section 46)); Banyas v. Lower Bucks Hospital, 437 A.2d 1236 (Pa.
Super. Ct. 1981) (defendants intentionally fabricated records to suggest that
plaintiff had killed a third party which led to plaintiff being indicted for homicide);
Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979)
(defendant's team physician released to press information that plaintiff was
suffering from fatal disease, when physician knew such information was false) .
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Hoy, 720 A.2d at 754.
Furthermore, a plaintiff must demonstrate physical injury or harm to sustain a cause
of action for intentional infliction of emotional distress. Fewell v. Besner, 664 A.2d 577, 582
(Pa. Super. Ct. 1995) (citing Kazatsky v. King David Mem'I Park, inc., 527 A.2d 988, 995
(Pa. 1987) ("Those truly damaged should have little difficulty in procuring reliable testimony
as to the nature and extent of their injuries [A]t the very least, existence of the alleged
emotional distress must be supported by competent medical evidence.")); Criveilaro v.
Pennsylvania Power and Light Co. , 491 A.2d 207 (Pa. Super. Ct. 1985) (finding that
symptoms of depression, nightmares, anxiety requiring psychological treatment, and ...
ongoing mental, physical and emotional harm sufficiently stated physical manifestations of
emotional suffering to sustain a cause of action).
Here, similar to Plaintiffs request for punitive damages, Plaintiff s Intentional Infliction
of Emotional Distress claim hinges on Lindner's subjective state of mind. (See Doc. 1 ~~ 58,
59, 60, 61.) In relevant part, Plaintiff alleges that "[n]o PCR test or blood smear examination
ever confirmed that Plaintiff was infected with babesiosis. Nonetheless, Dr. Lindner
diagnosed Plaintiff with babesiosis." (Id. ~ 14.) Plaintiff states that "[a]ccording to the
Centers for Disease Control and Prevention ("CDC"), for non-immunosuppressed people,
babesiosis is either asymptomatic or causes an acute illness, which should be confirmed
through testing and treated for 7-10 days with antimicrobials, such as azithromycin and
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atovaquone." (Id.

,r 15.) Plaintiff claims that "Dr. Lindner knew that mainstream medicine

views babesiosis as an acute disease to be treated with a short course of antimicrobial
medication," but that Lindner nonetheless "prescribed antimicrobial medications to Plaintiff
for more than twenty months." (Id.

,r,r 16, 18.) Additionally, Plaintiff alleges that Lindner

prescribed very high doses of the medication despite being aware of the continuing negative
consequences to Plaintiff by doing so. (Id.

,r,r 27, 30, 31, 34, 35, 39, 40, 41, 44, 46, 47.)

Plaintiff concludes her Complaint by alleging that "Plaintiff [has] suffered and will
continue to suffer physical manifestations of severe emotional distress, including stress ,
anxiety, depression, all of a continuing nature and requiring psychological treatment, as well
as fatigue, insomnia, nightmares, continuing and recurring nausea and pain , and other
symptoms." (Id. ,r 61 .)
As was the case with Defendant's arguments for dismissal with respect to punitive
damages, this Court has previously addressed a motion to dismiss by the same Defendant
with respect to an Intentional Infliction of Emotional Distress claim. In that case, this Court
held that dismissal of that plaintiffs Intentional Infliction of Emotional Distress claim was not
warranted:
Accepting the facts as alleged, that Dr. Lindner directed Stacey to regularly
take significantly more than (and at points almost twenty times) the normal limit
of prednisone over the course of several months, despite her reports of severe
side effects, the court concludes that Plaintiffs have adequately plead extreme
and outrageous conduct.
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Walking, 2024 WL 84206 at *5.
As addressed supra, Plaintiff pleads facts that could plausibly show intentionally
outrageous or extreme conduct on the part of Lindner, as well as physical injury that was
caused by Lindner's conduct while treating Plaintiff. See, e.g., Toney v. Chester Cnty.
Hosp., 961 A.2d 192, 200 (Pa. Super. Ct. 2008) , aff'd, 36 A.3d 83 (Pa. 2011) (allegations
including nausea, headaches, insomnia satisfied physical harm requirement); Fargione v.
Sweeney, 2017 WL 4283955, at *5 (E .D. Pa. 2017) (allegations including "stress,
nervousness, anxiety, and insomnia" sufficed at motion to dismiss stage).
Additionally, because "(a] defendant's state of mind can only generally only be
answered with the development of a full factual record," Medina, 2021 WL 6063237 at *4, it
would be inappropriate to dismiss Plaintiffs Intentional Infliction of Emotional Distress claim
at this stage without providing an opportunity to develop the evidentiary record. Id.
Therefore, the Court will deny this basis of Defendant's partial motion to dismiss.
V. CONCLUSION
Defendant fails to offer any compelling arguments as to why Plaintiffs references to
"reckless", "wanton", "outrageous", and "grossly negligent conduct" should be stricken .
Additionally, Plaintiff alleges sufficient facts in her Complaint to make a plausible claim for
punitive damages and Intentional Infliction of Emotional Distress. Therefore, for the reasons

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set forth above, Defendant's Partial Motion to Dismiss the Complaint (Doc. 7) will be denied.
A separate Order will follow.

Robert D. Mariani
United States District Judge

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