Daugherty v. Total Healthcare Consultants, PLLC et alMEMORANDUM in Support of Motion re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIME.D. Tenn.January 3, 2018UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE NAOMI DAUGHERTY, ) ) Plaintiff, ) ) v. ) No. 3:17-CV-00325-CLC-HBG ) Jury Demand (12) TOTAL HEALTHCARE CONSULTANTS, ) PLLC, D/B/A PCA PAIN CARE OF OAK ) RIDGE, DR. DONALD JONES, M.D., AND ) ANESTHESIA SERVICES ASSOCIATES, ) PLLC, D/B/A COMPREHENSIVE ) PAIN SPECIALISTS, AMERIDOSE, LLC, ) MEDICAL SALES MANAGEMENT, INC., ) MEDICAL SALES MANAGEMENT SW, INC., ) GDC PROPERTIES MANAGEMENT, LLC, ) ARL BIO PHARMA, INC. D/B/A ANALYTICAL) RESEARCH LABORATORIES, BARRY ) J. CADDEN, GREGORY CONIGLIARO, ) LISA CONIGLIARO CADDEN, DOUGLAS ) CONIGLIARO, CARLA CONIGLIARO, ) AND GLENN A. CHIN, ) ) Defendants. ) ) MEMORANDUM OF LAW IN SUPPORT OF CPS’S MOTION TO DISMISS Defendant Anesthesia Services Associates, PLLC d/b/a Comprehensive Pain Specialists (“CPS”) submits this Memorandum of Law in Support of its contemporaneously-filed Motion to Dismiss. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 1 of 19 PageID #: 894 2 Introduction and Summary of Argument The Plaintiff’s claims against CPS – centered on administration of a contaminated steroid injection in 2012 – fall within the broad reach of the Tennessee Health Care Liability Act (“THCLA”) because they are “related to the provision of…health care services.”1 Despite the clear statutory language capturing the Complaint within the THCLA’s ambit, the Plaintiff did not comply with the THCLA’s presuit notice requirements. Under established precedent, the Court must dismiss the claims against CPS for failure to comply with these mandatory requirements. Even if analyzed separately, the Plaintiff’s claims for product liability and civil conspiracy are actually twice-cursed. The civil conspiracy claim fails to allege an actionable underlying tort, which is a necessary element. And, the product liability claim cannot survive dismissal because CPS was not a “seller” of the steroid administered to the Plaintiff. Factual Background2 In May, June, and August 2012, the New England Compounding Center (“NECC”) manufactured three “lots” or “batches” of an injectable steroid called methylprednisolone acetate (“MPA”).3 PCA Pain Care Center in Oak Ridge bought MPA from NECC, receiving vials from one or more of these lots.4 1 TENN. CODE ANN. § 29-26-101. 2 This background is based upon the allegations of the Complaint. CPS reserves the right to dispute these allegations in the unlikely event the case survives dismissal. 3 Compl. ¶¶ 54, 108. 4 Compl. ¶¶ 55, 106. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 2 of 19 PageID #: 895 3 On September 7, 2012, the Plaintiff received an injection of the NECC MPA at PCA Pain Care Center during a medical procedure.5 Later that month, NECC recalled the three lots of MPA after patients who received the medication became ill with fungal meningitis, ultimately linked to NECC’s contamination of the drug during the manufacture process.6 The Plaintiff alleges that the MPA she received was contaminated and that she was injured as a result.7 8 Despite recognizing in her Complaint that NECC, not CPS, contaminated the medication, the Plaintiff chose to also pursue claims against CPS for unwittingly administering the contaminated medication. CPS’S MOTION FOR SUMMARY JUDGMENT One note is necessary before presenting the argument: The Complaint alleges that CPS had an ownership interest or management role at PCA Pain Care Center.9 This is factually incorrect. CPS had no role whatsoever at PCA Pain Care Center at the time at issue in this case, and is not a proper party. Rather than complicating this motion by arguing factual issues, CPS is contemporaneously filing a motion for summary judgment to address this separate dispositive legal argument. 5 Compl. ¶ 113. 6 Compl. ¶¶ 53-54. 7 Compl. ¶¶ 113, 210-214. 8 Notably, the CDC does not classify the Plaintiff as a confirmed “case” of fungal meningitis or fungal infection. 9 Compl. ¶¶ 17-21. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 3 of 19 PageID #: 896 4 Procedural History Original Lawsuit On September 9, 2013, the Plaintiff filed suit against CPS in state court in Anderson County.10 The Plaintiff did not send presuit notice to CPS before filing suit (required by Tenn. Code Ann. § 29-26-121), nor did she file a certificate of good faith with the Complaint (required by Tenn. Code Ann. § 29-26-122).11 The only attempt at presuit notice came on September 18, 2013, nine days after the lawsuit.12 On October 30, 2013, Defendant Donald Jones, M.D., moved to dismiss the Complaint because the Plaintiff did not file a certificate of good faith. At the hearing on the motion to dismiss, the Plaintiff voluntarily dismissed Dr. Jones from the case. The order of dismissal as to Dr. Jones was entered on November 8, 2013. The Plaintiff subsequently dismissed the case voluntarily as to the remaining Defendants, including CPS. The order of dismissal was entered on November 20, 2013.13 Refiled Case On January 4, 2014, the Plaintiff filed the instant lawsuit, making claims against CPS for negligence, negligent infliction of emotional distress, civil conspiracy, and product liability.14 The Complaint also named owners and pharmacists at NECC (the Caddens, Conigliaros, and Glenn Chin), a number of companies owned by the same individuals 10 Original Compl. attached as Exhibit 1. 11 See Original Compl (Ex. 1). 12 See Excerpt of Exhibit A of Refiled Complaint (Presuit notices dated 9/18/13 sent to CPS), attached to this motion as Exhibit 2 for the Court’s convenience. 13 Order of dismissal attached as Exhibit 3. 14 See Compl. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 4 of 19 PageID #: 897 5 (Ameridose, Medical Sales Management, and GDC Properties), and unaffiliated vendors of NECC (ARL BioPharma and UniFirst).15 NECC MDL On January 28, 2014, the case was removed to this Court.16 The Judicial Panel on Multidistrict Litigation then transferred the case to the NECC MDL (MDL No. 2419) in the U.S. District Court for the District of Massachusetts.17 The MDL Court stayed this case (along with many others), while allowing several cases against other Tennessee clinics bringing the same theories to proceed as the MDL’s “lead” cases.18 In the “lead” MDL cases against other Tennessee clinics, the MDL Court dismissed the claims for civil conspiracy and product liability (the same claims this Plaintiff asserts).19 NECC’s owner’s, affiliated companies, and unaffiliated vendors all eventually settled the claims against them (for a combined settlement of approximately $200 million), and the MDL Court dismissed the claims against the settling defendants on August 18, 2015.20 In the case at bar, that left only the claims against CPS, Total Healthcare Consultants, PLLC d/b/a PCA Pain Care Center of Oak Ridge, and Donald Jones, M.D. On July 27, 2017, the Judicial Panel on Multidistrict Litigation transferred the case back to this Court for further proceedings.21 While minimal discovery specific to this case 15 See Compl. 16 Doc. 1. 17 Doc. 2. 18 See Doc. 44 at 7. 19 Docs. 41, 43, 55-1. 20 Doc. 35. 21 Doc. 48. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 5 of 19 PageID #: 898 6 was done in the MDL, the MDL did accomplish four years of pretrial litigation, procedural disputes, and “common” discovery, both directly and indirectly applicable to this case. Law and Argument I. The Complaint should be dismissed because the Plaintiff failed to provide presuit notice before refiling. a. The THCLA governs all claims against CPS. In 2011, the legislature passed the THCLA and broadly expanded the reach of the statutory scheme governing claims involving health care liability (previously known as medical malpractice). The THCLA now applies to “any civil action…alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based.”22 In Ellithorpe v. Weismark,23 the Tennessee Supreme Court acknowledged the broad reach of the THCLA: [W]e hold that section 29-26-101 establishes a clear legislative intent that all civil actions alleging that a covered health care provider or providers have caused an injury related to the provision of, or failure to provide health care services be subject to the pre-suit notice and certificate of good faith requirements, regardless of any other claims, causes of action, or theories of liability alleged in the complaint.24 Following Ellithorpe, the Tennessee Court of Appeals again recognized the breadth of the THCLA in Osunde v. Delta Med. Ctr.,25 observing, “Given the breadth of 22 TENN. CODE ANN. § 29-26-101 (emphasis added). 23 479 S.W.3d 318 (Tenn. 2015). 24 Id. at 827 (emphasis in original). 25 505 S.W.3d 875 (Tenn. Ct. App. 2016). Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 6 of 19 PageID #: 899 7 the statute, it should not be surprising if most claims now arising within a medical setting constitute health care liability actions.”26 The Complaint in this case, examined against these unambiguous legislative and judicial mandates, clearly alleges injury relating to the provision of health care: ¶ 154 – Had [CPS] injected Naomi with MPA purchased from a compounder other than NECC; [sic] Naomi would not have received a fungus contaminated injection and become ill from such contaminated injection. (emphasis added). ¶ 155 – Had [CPS] injected Naomi with MPA purchased from a pharmaceutical manufacturer; [sic] Naomi would not have suffered terrible fear and extreme distress and worry. ¶ 163 – After her contaminated, epidural steroid injection, on September 7, 2012, Naomi had to be taken to her car in a wheelchair. This had never happened before, although she had received such injections in the past. ¶ 168 – Approximately two months after receiving the contaminated injection on September 7, 2012, Naomi went blind to nearly blind in the left eye. ¶ 179 – As a direct and proximate result of the contaminated epidural steroid injections…, Naomi suffered injury and is emotionally distressed…. The alleged injuries are unabashedly “related to” the provision of health care services. The Plaintiff claims no injury that is unrelated to the administration of the MPA by CPS, i.e., that is unrelated to the provision of health care services. Indeed, the Plaintiff effectively conceded the THCLA applies by attempting (albeit unsuccessfully) to comply with the THCLA’s presuit notice and certificate of good faith requirements when filing suit.27 Because the plain language of the Complaint alleges injury related to the provision of health care, the THCLA governs all claims against CPS. 26 Id. at 884-85. 27 See Compl. ¶¶ 271-277. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 7 of 19 PageID #: 900 8 b. The THCLA governs each specific cause of action against CPS. The propriety of applying the THCLA is further reinforced by examining each individual cause of action against CPS – (1) negligence, (2) negligent infliction of emotional distress (“NIED”), (3) product liability, and (4) civil conspiracy. i. The Plaintiff’s claims for negligence and NIED are health care liability claims. With regard to the claims for (1) negligence and (2) NIED, the Tennessee Supreme Court’s holding in Ellithorpe is dispositive. In Ellithorpe, the plaintiffs alleged claims for ordinary negligence and intentional infliction of emotional distress (“IIED”).28 The plaintiffs attempted to argue that these claims were not subject to the THCLA.29 The court disagreed citing the plain language of § 29-26-101(a)(1) and held that the entire complaint was governed by the THCLA, including the claims for ordinary negligence and IIED.30 The holding applies squarely here. CPS is a “health care provider” as defined by Tenn. Code Ann. § 29-26-101(a)(2)(E); the Plaintiff alleges she received health care services from it.31 Like in Ellithorpe, the Complaint is “rife with allegations relating to [the] provision of health care services to [the plaintiff].”32 Just as in Ellithorpe, the THCLA governs the Plaintiff’s ordinary negligence and NIED claims. 28 Id. at 821. 29 Id. at 822. 30 Id. at 827-828. 31 Ellithorpe, 479 S.W.3d at 827-28; Compl. ¶¶ 15-20. 32 Ellithorpe, 479 S.W.3d at 828; Compl. ¶¶ 20, 105, 107, 110, 251, 259, 260. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 8 of 19 PageID #: 901 9 ii. The product liability claim, no matter how pled, is a health care liability claim. The same result awaits the claim for (3) product liability. The MDL Court already decided this exact issue while managing pretrial proceedings. In fact, the MDL Court concluded twice that Tennessee plaintiffs could not bring claims under the TPLA because the THCLA governs.33 After rounds of briefing and argument, Judge Zobel found that the plaintiffs’ alleged injuries were related to health care services and found that the TPLA had to give way to the THCLA under established canons of statutory construction.34 The Court should treat these decisions as the law of the case,35 or, at minimum, follow Judge Zobel’s sound legal analysis. There is no reason to relitigate this issue for a third time.36 33 Docs. 41, 43. 34 Docs. 41, 43. 35 See In re Welding Fume Prod. Liab. Litig., No. 1:03-CV-17000, 2010 WL 7699456, at *2 (N.D. Ohio June 4, 2010) (“As a general matter, the transferor court is bound, upon remand, by the orders entered by the transferee court during the coordinated or consolidated pretrial proceedings. Those decisions are considered law of the case.” (internal citations and quotations omitted)); see also Manual for Complex Litigation (4th) § 20.133 at 226 (“Although the transferor judge has the power to vacate or modify rulings made by the transferee judge, subject to comity and ‘law of the case’ considerations, doing so in the absence of a significant change of circumstances would frustrate the purposes of centralized pretrial proceedings.”); c.f. In re Upjohn Co. Antibiotic Cleocin Prod. Liab. Litig., 664 F.2d 114, 119-120 (6th Cir. 1981) (noting general applicability of law of the case doctrine in MDL context where MDL court decides dispositive legal issue before case is returned to home district, but choosing not to apply doctrine in the case at bar because it involved reconsideration by the MDL court of a discovery order entered by the home district court prior to consolidation). 36 This is consistent with the only other Tennessee precedent addressing this issue. In Burris v. Hosp. Corp. of America, 773 S.W.2d 932 (Tenn. Ct. App. 1989), the Tennessee Court of Appeals held that the plaintiff’s product liability claim against a hospital for a defective product used during a medical procedure was governed by the THCLA’s predecessor, rather than the TPLA. Id. at 935. The substantial broadening of the THCLA since Burris warrants the same result in this case. The THCLA, not the TPLA, applies to the Plaintiff’s claims. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 9 of 19 PageID #: 902 10 iii. The Plaintiff’s civil conspiracy claim is also a health care liability claim because it relates to the provision of health care services. Finally, the Plaintiff’s claim of (4) civil conspiracy is likewise governed by the THCLA. The Plaintiff alleges that CPS conspired with NECC to circumvent unidentified Massachusetts Board of Pharmacy “requirements.”37 This claim, too, “relates to” the provision of health care services. The Plaintiff alleges that the civil conspiracy “resulted in harm to Naomi and other patients who received NECC’s MPA.”38 As discussed at length above, the administration of the MPA by CPS, a health care provider, which allegedly caused the injury, is the provision of health care services, and thus is governed by the THCLA. Moreover, the Plaintiff alleges that CPS conspired to violate pharmacy “requirements.” The practice of pharmacy falls squarely within the THCLA.39 The Plaintiff’s attempt to recast her health care liability claim as a far-fetched civil conspiracy is of no avail. The THCLA still applies because the claim alleges injury related to the provision of health care services, “regardless of the theory of liability on which the action is based.” * * * * * * * 37 Compl. ¶¶ 215-219. 38 Compl. ¶ 218. 39 The statute defines “health care provider” to include health care providers licensed under Title 63, which includes pharmacists, and defines “health care services” to include care provided by pharmacists and pharmacy interns. TENN. CODE ANN. §§ 29-26-101(a)(2), -101(b). Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 10 of 19 PageID #: 903 11 Whether the Court examines the Complaint as a whole or each specific claim individually, the allegations of the Complaint, the plain language of the THCLA, and the cases interpreting the THCLA lead to a single outcome – the THCLA, and only the THCLA, governs the claims against CPS. c. The Plaintiff did not send CPS notice of the instant lawsuit before filing the Complaint, rendering the case subject to dismissal. The THCLA carries with it a number of substantive requirements. Relevant here, a prospective plaintiff must send presuit notice to potential defendants 60 days before filing suit.40 This requirement is mandatory, not directory.41 Failure to comply renders the suit subject to dismissal.42 The proper way to challenge compliance with Tenn. Code Ann. § 29-26-121 is to file a motion to dismiss.43 The defendant must state how the plaintiff failed to comply with the statutory requirements by referencing specific omissions in the complaint and/or by submitting affidavits or other proof.44 Once the defendant files a properly-supported motion demonstrating the plaintiff’s noncompliance with these requirements, the burden shifts to the plaintiff to demonstrate that he or she either complied with the statute or that extraordinary cause exists to excuse noncompliance.45 40 TENN. CODE ANN. § 29-26-121. 41 Myers v. AMISUB, 282 S.W.3d 300, 308 (Tenn. 2012). 42 Stevens v. Hickman Comm. Health Care Svcs., 418 S.W.3d 547, 560 (Tenn. 2013). 43 Myers, 282 S.W.3d at 307. 44 Id. 45 Id. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 11 of 19 PageID #: 904 12 In the case at bar, the Plaintiff sent CPS presuit notice, but she did so while her original lawsuit was pending.46 She did not send a new presuit notice after voluntarily dismissing her case.47 The Tennessee Court of Appeals addressed this exact situation in Childs v. UT Medical Group.48 The plaintiff filed suit, sent presuit notice while the original lawsuit was pending, voluntarily dismissed the case, and refiled without sending the defendant a new presuit notice.49 The Court of Appeals held that a presuit notice sent before a previously- filed case is voluntarily dismissed does not satisfy Tenn. Code Ann. § 29-26-121 with respect to a refiled complaint.50 The Court of Appeals ruled that the plaintiff was required to send a new notice 60 days before refiling the case.51 The situation here is identical. The Plaintiff sent presuit notice while her initial suit was pending, which Childs tells us does not satisfy § 29-26-121. As a result, the Complaint should be dismissed for failure to comply with § 29-26-121. 46 Compare Compl. Ex. A (attached as Ex. 2) with attached Exs.1 and 3. 47 See Compl. Ex. A (attached as Ex. 2). 48 398 S.W.3d 163 (Tenn. Ct. App. 2012). 49 Id. at 164. 50 Id. at 170 (“However, it follows that, for the purposes of section 29-26-121, effective notice cannot be given of a potential, subsequent, re-filed action while the original action is pending.”). 51 Id. (“Plaintiffs' June 2009 correspondence became part of the record of the original lawsuit filed in 1999. That action ‘was over’ in September 2009. Plaintiffs were required to provide notice of their potential ‘new’ 2010 action at least 60 days prior to the re-filing of their complaint.”). Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 12 of 19 PageID #: 905 13 II. The civil conspiracy and product liability claims are subject to dismissal on separate and independent grounds. Even if the Court ignores the fact that the civil conspiracy and product liability claims are simply deficient THCLA claims with different labels applied to them by the Plaintiff, the result is the same because neither states a viable legal claim. a. Standard of Review Rule 12(b)(6) of the Federal Rules of Civil Procedure governs motions to dismiss for failure to state a claim upon which relief can be granted.52 This Court recently reiterated the standard for deciding a motion to dismiss for failure to state a claim: In ruling on a motion to dismiss, a court must determine, taking as true and construing in favor of the plaintiff all well-pleaded allegations in the complaint, whether the complaint states a plausible claim for relief under the law. The court is not, however, bound to accept as true bare assertions of legal conclusions. Although a complaint need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, this statement must nevertheless contain factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.53 Neither the civil conspiracy claim nor the product liability claim clears this bar. 52 FED. R. CIV. P. 12(b). 53 Brinkley v. Midland Funding, LLC, No. 3:16-CV-152, 2016 WL 5017307, at *1 (E.D. Tenn. Sept. 19, 2016) (internal citations and quotations omitted). Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 13 of 19 PageID #: 906 14 b. The civil conspiracy claim fails to state a claim because it does not allege an actionable underlying tort. Tennessee law is well-settled that a claim for civil conspiracy must include an actionable underlying tort. “It is a general rule that conspiracy cannot be made the subject of a civil action, unless something is done which, without the conspiracy, would give a right of action. The damage done is the gist of the action, not the conspiracy....[T]he simple act of conspiracy does not furnish a substantive ground of action.”54 One cannot conspire to commit a wrong that is not actionable.55 Here, the Plaintiff alleges that CPS conspired to “circumvent Massachusetts Board of Pharmacy patient safety requirements.”56 However, there is no private right of action for violation of these purported requirements (which are not even specifically identified, another fatal flaw57). Put simply, the Plaintiff has not pled an actionable underlying tort. The MDL Court recognized this fatal deficiency and dismissed identical civil conspiracy claims already.58 Whether the Court considers this to be the law of the case or not, the underlying legal analysis is correct. The Complaint fails to state a viable claim for civil conspiracy, requiring dismissal. 54 Levy v. Franks, 159 S.W.3d 66, 82 (Tenn. Ct. App. 2004) (quoting Tenn. Pub. Co. v. Fitzhugh, 52 S.W.2d 157, 158 (Tenn. 1932)). 55 Felts v. Paradise, 158 S.W.2d 727, 729 (Tenn. 1942). 56 Compl. ¶ 216. 57 Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 38 (Tenn. Ct. App. 2006) (“Civil conspiracy claims must be pled with some degree of specificity. Conclusory allegations, however, unsupported by material facts will not be sufficient to state such a claim” (internal citations omitted)). 58 Doc. 55-1 at 40-43. Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 14 of 19 PageID #: 907 15 c. The Plaintiff’s product liability claim also fails as a matter of law because CPS is not “engaged in the business of selling” MPA. In order to sue under the TPLA, the Plaintiff must establish that CPS was a “seller” of the MPA administered to the Plaintiff.59 The TPLA defines seller as an individual or entity “engaged in the business of selling a product.”60 Overwhelming legal authority, the allegations of the Plaintiff’s own Complaint, and common sense preclude a finding that CPS was a “seller” as a matter of law. Tennessee precedent, virtually every other state to decide the issue, and well- respected tort commentators and treatises all recognize that health care providers are service providers and cannot be held liable as “sellers” of defective products under a product liability theory. Tennessee precedent: The Tennessee Court of Appeals held in Burris that claims against a health care provider for injuries suffered from an allegedly defective product could not proceed under a product liability theory.61 This principle is consistent with longstanding Tennessee precedent recognizing in other scenarios that strict product liability claims cannot proceed against defendants who used a defective product incident to providing a service.62 59 TENN. CODE ANN. § 29-28-106. 60 TENN. CODE ANN. § 29-28-102(7). 61 Burris, 773 S.W.2d at 935. 62 Delta Refining Co. v. Procon, Inc., 552 S.W.2d 387 (Tenn. Ct. App. 1976) (refusing to hold general contractor liable for defective pump installed by the general contractor because the general contractor was not engaged in the business of selling pumps); Parker v. Warren, 503 S.W.2d 938 (Tenn. Ct. App. 1973) (refusing to apply strict liability to the carpenter who used defective wood in constructing bleachers that later collapsed, holding that the carpenter was not engaged in the business of selling lumber). Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 15 of 19 PageID #: 908 16 Other states: Thirty (30) United States jurisdictions have considered whether a health care provider is subject to strict product liability for a defective product used incidental to medical care. Twenty-eight (27 states and the District of Columbia) answered the question in the negative. No Strict Product Liability in this Setting Strict Liability 1. California 15. Mississippi 1. Alabama 2. Colorado 16. Missouri 2. Ohio 3. Connecticut 17. New Hampshire 4. District of Columbia 18. New Jersey 5. Florida 19. New Mexico 6. Georgia 20. New York 7. Illinois 21. North Carolina 8. Indiana 22. Oklahoma63 9. Kansas 23. Pennsylvania 10. Louisiana 24. South Carolina 11. Maine 25. Texas 12. Maryland 26. Washington 13. Michigan 27. West Virginia 14. Minnesota 28. Wisconsin Attached as Exhibit 4 is an Appendix summarizing the case law from these jurisdictions. Tort commentators: The best-known tort commentators and treatises likewise conclude that health care providers cannot be held strictly liable for defective products used incidental to health care services. Prosser & Keeton64, the A.L.R.65, and even the 63 Federal courts interpreting Oklahoma law. 64 W. Prosser & W. Page Keeton, Prosser & Keeton on Torts, § 104, at 720 (5th ed. 1984) (“Hospitals, medical doctors, and other professionals who provide health care services have not generally been held strictly liable even when, in the course of rendering health care services, defective products are transmitted. They are not regarded as the kind of enterprisers, akin to the producer of mass products, that can conveniently bear the costs of accidents attributable to defective things used and transmitted. Moreover, the principal thing bargained for is not the product transmitted but the professional services of the defendant.”). 65 65 A.L.R. 5th 357 (“A number of courts have considered application of the related theories of strict liability in tort and breach of warranty in actions by patients against hospitals or medical practitioners for injuries suffered from medical instruments, drugs, or prostheses/implants used in treatment. Generally, attempts to Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 16 of 19 PageID #: 909 17 Restatement of Torts66 (which Tennessee appellate courts often adopt on undecided questions of law67), all agree that strict product liability does not apply in the health care setting. Common sense: Finally, applying common sense to the allegations of the Plaintiff’s Complaint leaves no doubt that CPS engaged in the provision of health care services, not the business of selling medications. The fundamental premise of the Complaint is that CPS, through its alleged agent, was negligent in providing care and treatment for the Plaintiff’s chronic pain.68 Health care providers who administer medication as part of the treatment process are not “engaged in the business of selling” medication; they are engaged in providing health care services to patients. The Plaintiff’s product liability claim must be dismissed because the Plaintiff cannot establish, as a matter of law, that CPS was engaged in the business of selling MPA, a required element of the claim. * * * * * * apply product liability principles to what would be conventional medical malpractice actions have been unsuccessful.”). 66 Restatement (Third) of Torts, Products Liability § 20, cmt. d (1998) (“[I]n a strong majority of jurisdictions, hospitals are held not to be sellers of products they supply in conjunction with the provision of medical care, regardless of the circumstances.”). 67 See, e.g., Davis v. Komatsu Am. Indus. Corp, 42 S.W.3d 34, 43 (Tenn. 2001) (adopting § 5(b) and comment (e) to § 5 of the Restatement (Third) of Torts: Production Liability); West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 648-49 (Tenn. 2001); Robinson v. Omer, 952 S.W.2d 423, 426-27 (Tenn. 1997). 68 E.g., Compl. ¶ 260 (“Dr. Jones was negligent in his care and treatment of Naomi Daugherty….”); Compl. ¶ 213 (“Dr. Jones discharged Naomi and refused to give her any further epidural steroid injections even though safe and sterile epidural steroid injections had given her great relief in the past.”); Compl. ¶ 19 (“While providing treatment to Naomi Daugherty at PCA/[CPS], the physicians, nurses, staff and other personnel were agents, apparent agents, employees or representatives of…[CPS]…and were acting within the course and scope of their employment….”). Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 17 of 19 PageID #: 910 18 Even if the Court declines to apply the THCLA to the Plaintiff’s claims for civil conspiracy and product liability, they still cannot survive dismissal. Both claims lack a required element and are insufficient as a matter of law. For the civil conspiracy claim, the Plaintiff cannot establish an actionable underlying tort; for the product liability claim, the Plaintiff cannot establish CPS was a “seller” of MPA. The Court should dismiss both claims. Conclusion The claims against CPS indisputably allege injury related to the provision of health care services, bringing the Complaint within the ambit of the THCLA. But, the Plaintiff failed to send presuit notice after nonsuiting her original lawsuit as required by Tenn. Code Ann. § 29-26-121. This deficiency requires dismissal pursuant to Childs. Even if the Court finds that the product liability and civil conspiracy claims can survive dismissal under the THCLA, they lack legal viability. All paths lead to the same destination – all claims against CPS should be dismissed. Respectfully submitted, GIDEON, COOPER & ESSARY, PLC /s/ Chris J. Tardio Chris J. Tardio 315 Deaderick Street Suite 1100 Nashville, TN 37238 (615) 254-0400 (Phone) (615) 254-0459 (Fax) chris@gideoncooper.com Attorneys for CPS Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 18 of 19 PageID #: 911 19 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on the following via the Court’s CM/ECF system on January 3rd, 2018: Loring Justice Linn Guerrero Chad Rickman Loring Justice, PLLC 11911 Kingston Pike Suite 201 Knoxville, Tennessee 37934 Ph: (865) 584-8620 Fax: (865) 584-8621 Attorneys for Plaintiff /s/ Chris J. Tardio Chris J. Tardio Case 3:17-cv-00325-CLC-HBG Document 59 Filed 01/03/18 Page 19 of 19 PageID #: 912
