Schur v. Zackrison et al
Filing
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MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 12/08/2015. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JACOB A. SCHUR,
Plaintiff,
v.
LEILA H. ZACKRISON, et al.,
Defendants.
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1:15-cv-01013 (JCC/IDD)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendants Leila
Zackrison, M.D. (“Zackrison”), and Leila Zackrison, M.D., P.C.’s
(“Practice”) (collectively “Defendants”) Motion to Dismiss.
[Dkt. 5.]
In response to the motion, Plaintiff Jacob A. Schur
(“Schur”) moved to voluntarily dismiss the Practice as a
defendant, while maintaining suit against Zackrison.
[Dkt. 10.]
For the following reasons, the Court will grant Plaintiff’s
motion to voluntarily dismiss the Practice and will deny
Defendants’ motion to dismiss.
I. Background
On June 7, 2012, Plaintiff Jacob A. Schur sought
medical consultation and treatment from Defendants regarding two
tick bites.
(Compl. [Dkt. 1] ¶¶ 14-15.)
A nurse at Defendants’
medical practice ordered laboratory tests to determine if Schur
1
had Lyme disease.
(Id. ¶ 14.)
Before receiving the test
results, the nurse diagnosed Schur with several bacterial
infections, including “mycoplasma pneumonia, chlamydophila
pneumonia, and legionella.”
(Id. ¶ 20.)
The nurse ordered
Schur to begin taking prescription antibiotics, to receive a
vitamin injection, and to undergo more tests.
(Id. ¶ 21.)
tests later returned negative for Lyme disease.
The
(Id. ¶ 23.)
Despite the negative tests, Defendants’ staff
allegedly told Schur he was “very ill, suffered from multiple
conditions, and needed extensive treatment to help make him
better.”
(Id. ¶ 26.)
One nurse allegedly told Schur his
failure to follow the recommended course of treatment could
cause him to “have a stroke, develop shingles, or develop other
ailments.”
(Id. ¶ 31.)
In response to these statements, Schur
began a course of treatment that included laboratory tests,
“extensive” antibiotic prescriptions, self-injected vitamins,
and a specific diet.
(Id. ¶¶ 29-30.)
vitamins and dietary supplements.
Defendants sold these
(Id. ¶ 33.)
After four months of treatment, Schur met with Dr.
Zackrison for the first time in October 2012.
(Id. ¶ 38.)
Zackrison told Schur he was “very ill” and diagnosed him with
Lyme disease and several infections, including “anaplasmosis,
babesiosis, mycoplasmosis/legionella, viral overload,
encephalopathy/encephalitis, chronic neuritis, and
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hypercalcphia,” among others.
(Id. ¶¶ 41-42.)
To treat these
conditions, Zackrison recommended more antibiotics, vitamins,
tests, and also intravenous nutrients.
(Id. ¶ 43.)
The
combined charges for Schur’s treatment were “approximately
twenty-five thousand dollars.”
(Id. ¶ 53.)
After receiving Zackrison’s diagnosis, Schur sought a
second doctor’s opinion.
(Id. ¶ 44.)
That doctor concluded
that Schur never had Lyme disease “or any other condition that
required treatment” and that the treatment Schur received was
not “medically necessary.”
(Id. ¶¶ 46, 49.)
Schur then began
legal proceedings.
Schur, an attorney, filed a pro se warrant in debt
against Zackrison in Arlington County General District Court on
May 30, 2014, and a bill of particulars on August 25, 2014.
(Warrant in Debt [Dkt. 5-3]; Bill of Particulars [Dkt. 5-2].)
Schur sought $25,000 in damages as “compensatory, consequential,
and punitive damages” for Zackrison’s “fraud, breach of
fiduciary duties, negligence, gross negligence, recklessness,
breach of contract/implied contract, malpractice.”
Particulars at 7; Warrant in Debt.)
(Bill of
About ten months later, on
March 17, 2015, Schur nonsuited his case after receiving advice
from his current attorney.
(Mem. in Opp’n [Dkt. 8] at 6.)
The next day, March 18, 2015, Schur’s attorney filed a
new suit in Fairfax County Circuit Court against only the
3
Practice.
(Id.)
In his circuit court complaint, Schur sought
$150,000 in compensatory damages and $350,000 in punitive
damages for the Practice’s alleged negligence, actual fraud, and
constructive fraud.
That case appears to be pending, although
Defendants say they have not been served.
(Mem. in Supp. [Dkt.
5] at 7.)
Finally, on August 10, 2015, Schur’s attorney filed
the present lawsuit against Zackrison and the Practice.
The
federal complaint includes a claim of intentional infliction of
emotional distress (“IIED”), in addition to reasserting the
claims of negligence, fraud, and constructive fraud Schur raised
in general district court.
(Compl. ¶ 57-81.)
Defendants move
to dismiss this case under 12(b)(1) for lack of jurisdiction,
arguing that the amount in controversy is insufficient.
Additionally, Defendants seek to dismiss the IIED claim under
12(b)(6) as untimely.
For the following reasons, the Court will
deny both bases of dismissal.
II. Analysis
A.
Subject Matter Jurisdiction
A district court “possesses only that power authorized
by the Constitution and statute.”
Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).
Congress has
conferred on the district courts original jurisdiction in
diversity cases between citizens of different States, between
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U.S. citizens and foreign citizens, or by foreign states against
U.S. citizens.
28 U.S.C. § 1332(a).
“To ensure that diversity
jurisdiction does not flood the federal courts with minor
disputes, § 1332(a) requires that the matter in controversy in a
diversity case exceed a specified amount, currently $75,000.”
Allapattah Servs., 545 U.S. at 552.
As a general rule, “‘the sum claimed by the plaintiff
controls’ the amount in controversy determination.”
JTH Tax,
Inc. v. Frashier, 624 F.3d 635, 638 (4th Cir. 2010) (quoting St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288
(1938)).
“If the plaintiff claims a sum sufficient to satisfy
the statutory requirement, a federal court may dismiss only if
‘it is apparent to a legal certainty, that the plaintiff cannot
recover the amount claimed.’”
Indem., 303 U.S. at 289).
Id. (quoting St. Paul Mercury
This legal certainty or “legal
impossibility of recovery must be so certain as virtually to
negative the plaintiff’s good faith in asserting the claim.”
Wiggins v. N. Am. Equitable Life Assur. Co., 644 F.2d 1014, 1017
(4th Cir. 1981) (quoting McDonald v. Patton, 240 F.2d 424, 426
(4th Cir. 1957)).
This difficult showing makes “dismissal on
jurisdictional amount grounds rare.”
Work v. U.S. Trade, Inc.,
747 F. Supp. 1184, 1188 (E.D. Va. 1990).
The burden of proving
jurisdiction falls on the plaintiff, the party attempting to
invoke the court’s jurisdiction.
Id.
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When applying this 12(b)(1) analysis, a court may
“consider evidence outside the pleadings without converting the
proceeding to one for summary judgment.”
Johnson v. Portfolio
Recovery Assocs., LLC, 682 F. Supp. 2d 560, 566 (E.D. Va. 2009)
(quoting Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th
Cir. 2004)).
Additionally, a court may consider a settlement
offer as proof of the amount in controversy under this
jurisdictional analysis without conflicting with Federal Rule of
Evidence 408’s prohibition on the use of settlement offers as
evidence.
See Brown v. Wal-Mart Stores, Inc.,
No. 5:13cv00081,
2014 WL 60044, at *1 n.1 (W.D. Va. Jan. 7, 2014) (“Even though
settlement offers are inadmissible to prove liability under Rule
408 of the Federal Rules of Evidence, they are admissible to
show that the amount in controversy for jurisdictional purposes
has been met.” (quoting Carroll v. Stryker Corp., 658 F.3d 675,
682 n.2 (7th Cir. 2011))).
Defendants raise three arguments they believe prove
the amount in controversy cannot be met: (1) Schur filed a
similar pro se case in general district court seeking only
$25,000 for all compensatory and punitive damages; (2) Schur
allegedly attempted to settle that pro se case for $19,000; and
(3) Schur cannot, as a matter of law, prove the malice required
to trigger punitive damages.
For the following reasons, the
Court finds no legal certainty that compensatory damages will
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fall below the jurisdictional amount.
Thus, jurisdiction is
proper, even without considering any claim for punitive damages.
“Compensatory damages are intended to redress the
concrete loss that the plaintiff has suffered by reason of the
defendant’s wrongful conduct.”
State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 416 (2003) (internal quotation and
citation omitted).
A plaintiff’s losses could include necessary
expenses, bodily injury, physical pain, inconvenience, and
mental anguish, among others.
See Giant of Va., Inc. v. Pigg,
207 Va. 679, 685 (Va. 1967) (“Compensatory damages are those
allowed as recompense for loss or injury actually received and
include loss occurring to property, necessary expenses, insult,
pain, mental suffering, injury to the reputation and the
like.”).
In this case, Schur alleges theories of relief that,
if proven, would potentially permit him to recover damages for a
broad range of injuries.
For example, if he succeeds on his
claim of fraud, he could recover the financial damages he
suffered as a result of the fraud.
See Pigott v. Moran, 341
S.E.2d 179, 182 (Va. 1986) (“[W]hen sued upon at law, fraud will
support a recovery for financial damage personal to the
individual.”).
Additionally, his negligence claim would entitle
him to damages proximately caused by Defendants’ negligent acts.
See Cooper v. Whiting Oil Co., Inc., 311 S.E.2d 757, 760 (Va.
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1984) (stating elements for negligence).
These damages could
include, not only the expenses he incurred, but also the pain,
suffering, and inconvenience of any physical impact or injury
Defendants’ negligence caused.
See Bowers v. Sprouse, 492
S.E.2d 637, 638 (Va. 1997) (“Certainly, at a minimum, this
plaintiff experienced pain, suffering, and inconvenience as a
result of the defendant’s negligence and was entitled to
compensation for these elements.”).
Additionally, damages for
emotional distress may be available to the extent they are
“proved or fairly inferred from injuries sustained.”
Bruce v.
Madden, 160 S.E.2d 137, 140 (Va. 1968) (quoting Perlin v.
Chappell, 96 S.E.2d 805, 868 (Va. 1957)).
Applying these
principles of compensatory damages, the Court does not find it
legally certain that Schur’s damages fall below $75,000.
Looking first at direct monetary damages, Schur
alleges that Defendants’ fraud and negligence caused him to be
charged $25,000 in unnecessary medical treatments.
Although
these monetary damages are, without more, insufficient to
satisfy the jurisdictional threshold, Schur alleges other
potentially viable injuries.
At this stage of the case, Schur’s allegations of
unnecessary medical treatment are sufficient to constitute a
physical injury permitting recovery for pain, suffering, and
inconvenience.
The Virginia Supreme Court has defined “injury”
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to mean “positive, physical or mental hurt to the claimant.”
Howard v. Alexandria Hosp., 429 S.E.2d 22, 25 (Va. 1993).
In
Howard v. Alexandria Hospital, the court found physical injury
when the plaintiff’s body “was invaded by intravenous tubes,
needles administering ‘pain shots,’ and instruments used to
withdraw blood,” and various side effects of “the antibiotic
therapy” doctors prescribed to remedy their negligent use of
unsterilized instruments during surgery.
Id.; see also R.J. v.
Humana of Fla., Inc., 652 So. 2d 360, 364 (Fla. 1995) (“Although
we find that the touching of a patient by a doctor and the
taking of blood for ordinary testing would not qualify for a
physical impact, other more invasive medical treatment or the
prescribing of drugs with toxic or adverse side effects would so
qualify.”).
Similarly, in this case, Schur alleges he was
prescribed antibiotic medication for four months, selfadministered vitamins through injection, provided several blood
samples, and was ordered to maintain a strict diet.
At this
stage, these allegations are sufficient to constitute a physical
injury permitting Schur to recover for pain, injury,
inconvenience, and suffering.
Additionally, Schur alleges mental and emotional
injuries.
A false-positive diagnosis typically does not support
a claim for emotional damages when the diagnosis does not
involve a contemporaneous and injurious course of treatment.
9
See Hickman v. Lab. Corp. of Am. Holdings, Inc., 460 F. Supp. 2d
693, 702 (W.D. Va. 2006) (rejecting negligent misdiagnosis of
HIV claim of plaintiff who received HIV treatment but no
medication); Goddard v. Protective Life Corp., 82 F. Supp. 2d
545, 556 (E.D. Va. 2000) (denying negligent HIV misdiagnosis
claim where plaintiff received no treatment or medication
because misdiagnosis was corrected only two days after the
initial false-positive diagnosis).
Schur, however, sufficiently
alleges a contemporaneous course of treatment in this case.
Thus, he may recover for mental anguish or emotional damages
proved or fairly inferred from the physical impact or injury of
that treatment.
See Bruce, 160 S.E.2d at 139 (“Physical pain
and mental anguish usually, and to some extent, necessarily flow
from, or attend, bodily injuries.” (quoting Brown v. Hannibal &
St. J.R. Co., 12 S.W. 655 (Mo. 1889)).
Schur alleges that
Defendants’ conduct caused him to become concerned, to
experience “severe anxiety and stress over his health,” and to
suffer severe emotional distress.
Schur has also raised these
injuries in his claim for intentional infliction of emotional
distress.
In light of these potential sources of damages, the
Court cannot conclude to a legal certainty that the amount in
controversy falls below the jurisdictional threshold.
Many of
Schur’s alleged damages are “unliquidated and not readily
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subject to precise calculation.”
722 S.E.2d 610, 616 (Va. 2012).
John Crane, Inc. v. Hardick,
As the Virginia Supreme Court
has noted, “[t]here is no fixed rule or standard by which
damages can be measured for mental and physical suffering.”
Hughes v. Moore, 197 S.E.2d 214, 220 (Va. 1973).
And the
“amount to be awarded is largely a question for the jury to
determine in view of the facts and circumstances of each
particular case.”
Id.
It is not at all unusual for juries to
return verdicts for emotional damages far exceeding the
liquidated monetary damages a plaintiff incurs.
See, e.g.,
Murphy v. Va. Carolina Freight Lines, Inc., 213 S.E.2d 769, 773
(Va. 1975) (reinstating jury verdict with a 19-to-1 ratio of
nonmonetary to monetary damages when plaintiff suffered $1,250
in out-of-pocket medical expenses and was hospitalized for two
weeks and bed-ridden for two months following a car accident).
Schur alleges $25,000 in monetary damages.
Additionally, Schur
alleges being told he was “very ill, suffered from multiple
conditions, and needed extensive treatment to help make him
better,” and that his conditions could cause him to “have a
stroke, develop shingles, or develop other ailments.”
statements caused him concern and “severe anxiety.”
These
Although a
jury might not find these claims merit substantial compensation,
it is not legally certain that a jury would award less than
enough to push compensatory damages over $75,000.
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Therefore,
Schur’s assertion that the amount in controversy has been met
controls and, as there is no dispute that the parties are
diverse,1 jurisdiction exists.
Instead of refuting these alleged damages directly,
Defendants ask the Court to discredit the amount claimed based
on Schur’s valuation and attempt to settle his lawsuit while he
proceeded pro se in general district court.
These pro se
actions, however, do not certainly establish the amount in
controversy of this case.
As Schur notes, his early valuation
of the case was based on his own misunderstanding of the damages
available in Virginia.
This explanation is consistent with
Schur nonsuiting his undervalued case immediately after
receiving advice from counsel about the true value of his
alleged injuries.
He then filed a new case seeking $150,000 in
compensatory damages, in addition to punitive damages.
The
Court can see no reason to discredit Schur’s current valuation
based on his earlier uninformed assessment of the case.
The Court turns now to Defendants’ argument that
Schur’s claim of intentional infliction of emotional distress
against Zackrison is time barred.
For the following reasons,
that argument is unpersuasive.
1
Schur is an individual domiciled in Colorado. (Compl.
¶ 1.) Defendant Zackrison is an individual domiciled in
Virginia. (Id. ¶ 3.) The Practice is a Virginia corporation
with its principal place of business in Virginia. (Id.)
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B.
12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal
sufficiency of the complaint.
F.3d 518, 522 (4th Cir. 1994).
See Randall v. United States, 30
When ruling on a motion to
dismiss, “the material allegations of the complaint are taken as
admitted.”
Jenkins v. McKeithen, 395 U.S. 411, 422 (1969).
Moreover, “the complaint is to be liberally construed in the
favor of plaintiff.”
Id.
In addition, a motion to dismiss must
be assessed in light of Federal Rule of Civil Procedure 8’s
liberal pleading standards, which require only “a short and
plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8.
Rule 8 does not
require “detailed factual allegations,” but a plaintiff must
still provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
Although a 12(b)(6) motion invites an inquiry into the
legal sufficiency of the complaint, rather than an analysis of
potential defenses to the claims set forth therein, dismissal
nevertheless is appropriate when the face of the complaint
clearly reveals the existence of a meritorious affirmative
defense.
Brooks v. City of Winston-Salem, N.C., 85 F.3d 178,
181 (4th Cir. 1996).
Thus, a 12(b)(6) motion “generally cannot
reach the merits of an affirmative defense, such as the defense
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that the plaintiff’s claim is time-barred.”
Inc., 494 F.3d 458, 464 (4th Cir. 2007).
Goodman v. Praxair,
But the court may
reach the issue “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are alleged
in the complaint.”
Id.
Defendants argue Schur’s IIED claim against Zackrison
is barred by Virginia’s two year statute of limitations.
Although Defendants are correct that the two-year statute of
limitations applies, see Va. Code § 8.01-243(A); Lucas v.
Henrico Cty. Sch. Bd., 822 F. Supp. 2d 589, 607 (E.D. Va. 2011)
(“Virginia’s two-year statute of limitations for personal injury
applies to a claim for intentional infliction of emotional
distress.”), they are incorrect about the application of that
statute in this case.
To determine whether Schur’s IIED claim was timely,
the Court must first determine when that claim accrued.
Defendants identify the time of accrual as either when Schur
first received the misdiagnosis and treatment or when Schur
discovered he had been misdiagnosed.
Although an injury
typically accrues on the date “the injury is sustained . . . and
not when the resulting damage is discovered,”
Va. Code § 8.01-
230, the injury in this case is subject to an exception.
In
cases involving continuous and substantially uninterrupted
medical treatment, the “continuing treatment rule” deems the
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injury to accrue when treatment is terminated.
See Fenton v.
Danaceau, 255 S.E.2d 349 (Va. 1979); see also Johnson v. Capital
Area Permanente Grp., No. 113046, 1993 WL 945935, at *3 (Va.
Cir. Ct. Feb. 1, 1993) (applying continuous treatment rule to
doctor’s misdiagnosis of HIV).
Schur sufficiently alleges that
he was under Defendants’ continuous and uninterrupted treatment.
Schur began a treatment of antibiotics upon his first visit to
the Practice.
(Compl. ¶ 17.)
It appears he remained on this
medication while awaiting Defendants’ reading of his test
results.
After the test results returned about three weeks
later, Schur continued to treat with Defendants.
(Id. ¶ 25.)
Specifically, Schur’s treatment included “extensive
prescriptions for antibiotics,” vitamin injections, laboratory
tests, a specific diet, and appointments with Defendants every
two weeks. (Id. ¶¶ 28, 29, 32.)
This “continuous and expensive
treatment regime” appears to have continued uninterrupted for
four months, until Schur finally sought a second opinion.
¶ 56.)
(Id.
Thus, Schur’s IIED claim accrued when his treatment
terminated around four months after his initial June 7, 2012
visit.2
Under this calculation, the statute of limitations began
2
The date of termination comes from the face of the bill of
particulars filed in Arlington General District Court. (GDC
Compl. [Dkt. 5-2] ¶¶ 4, 21, 31.) Reference to this earlier
court filing does not convert this 12(b)(1) proceeding into a
motion for summary judgment. See Fed. R. Civ. P. 12(d). The
Court may take judicial notice of earlier proceedings,
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to run, at the latest, in October 2012.
Unless a tolling
provision applies, Schur’s August 10, 2015 filing of his federal
complaint would not be within the two-year statute of
limitations.
Although neither party’s briefs addressed the issue of
tolling, Virginia’s nonsuit tolling doctrine applies to make
Schur’s IIED claim timely.3
Under Virginia law, a properly filed
nonsuit tolls the statute of limitations on a plaintiff’s cause
of action.
This permits the plaintiff to recommence suit in
federal court within six months after the nonsuit or within the
original limitations period, whichever is longer.
§§ 8.01-229(E)(3), -380.
See Va. Code
Schur’s IIED claim is timely under
this six month tolling provision.
Schur timely filed a related cause of action against
Zackrison in Arlington General District Court on May 30, 2014.
That complaint alleged facts substantively identical to those
especially when construed in the light most favorable to the
moving party. Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000)
(taking judicial notice of complaint in related state court
proceeding); Commonwealth v. Brown, 373 F.2d 771, 778 (3d Cir.
1967) (“Applicable to our consideration here is the further rule
that a federal court may take judicial notice of matters of
record in state courts within its jurisdiction.”); Dunston v.
Huang, 709 F. Supp. 2d 414, 415 n.1 (E.D. Va. 2010) (looking to
prior state court filings in statute of limitations analysis at
motion to dismiss stage); 5-Star Mgmt., Inc. v. Rogers, 940 F.
Supp. 512, 518 (E.D.N.Y 1996) (taking judicial notice of fact
alleged in state court complaint).
3
The parties presented oral arguments regarding the
application of nonsuit tolling at the November 19, 2015 hearing.
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alleged in the present complaint.
On March 17, 2015, Schur
voluntarily nonsuited his general district court complaint.
Thus, under Virginia Code § 8.01-229(E)(3), Schur had six
months—until September 17, 2015—to refile his cause of action.
Schur timely filed the IIED claim as part of this federal
complaint on August 10, 2015, within the six month tolling
period.
The nonsuit tolling doctrine applies even though Schur
did not raise an IIED claim in his general district court
complaint.
A new claim may benefit from the nonsuit tolling
doctrine when that claim arises from the same conduct,
transaction or occurrence as the nonsuited action.
Dunston v.
Huang, 709 F. Supp. 2d 414, 420 (E.D. Va. 2010); see also Law v.
PHC-Martinsville, Inc., No. 13-73, 2014 WL 10320484, at *2 (Va.
Cir. Ct. Oct. 2, 2014) (applying same transaction test).
But
see Lawton-Gunter v. Meyer, No. CL14-347, 2014 WL 8240004, at *4
(Va. Cir. Ct. June 12, 2014) (applying the “same-evidence test”
to determine whether “new claims asserted in a recommenced
action are part of a previously asserted cause of action” for
nonsuit tolling purposes).
In this case, it is clear that the
IIED claim arises from the same transaction or occurrence as
Schur’s prior suit for fraud, negligence, and other claims.
transaction in the prior suit involved Defendants’ alleged
misdiagnosis and unnecessary treatment occurring between June
17
The
and October 2012.
Schur’s IIED claim is based on the same
misdiagnosis and course of treatment, including Defendants’
statements regarding the seriousness of Schur’s medical
condition.
According to the complaint, Defendants’ misdiagnosis
caused him to undergo treatment and caused him severe anxiety.
Therefore, the IIED claim is part of the same cause of action as
the nonsuited general district court case.
Hence, the IIED
claim benefits from the tolling doctrine, making it timely.
Accordingly, the Court need not consider Schur’s alternative
argument that the federal complaint “relates back” to the
general district court case under Virginia Code § 8.01-6.1 or
Federal Rule of Civil Procedure 15(c).
In conclusion, the Court notes the limited scope of
its holding in this motion to dismiss.
Defendants’ raised an
affirmative defense as to only Schur’s IIED claim.
Defendants
did not challenge the prima facie sufficiency of the negligence,
IIED, constructive fraud, or fraud allegations.
memorandum opinion does not address these issues.
Therefore, this
Additionally,
the Court’s discussion of available damages must be viewed
through the lens of the deferential legal standard applicable to
jurisdictional changes.
III. Conclusion
For the forgoing reasons, the Court will deny
Defendants’ Motion to Dismiss the case for lack of jurisdiction
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and deny Defendants’ Motion to Dismiss the intentional
infliction of emotional distress claim as untimely.
The Court
will grant Plaintiff’s unopposed motion to voluntarily dismiss
Defendant Zackrison, M.D., P.C.
An appropriate order will issue.
December 8, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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