Bilinski v. Wills Eye Hospital et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.November 1, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA RONALD JOSEPH BILINSKI, Plaintiff, v. WILLS EYE HOSPITAL, et al., Defendants. : : : : : : : : : Civil Action No. 2:16-CV-02728-GJP THE BOARD OF DIRECTORS OF CITY TRUSTS’ MOTION TO DISMISS. Defendant City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts (“Board”), by its undersigned counsel, hereby files this Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In support thereof, the following is averred: 1. Pursuant to Local Rule of Civil Procedure 7.1(c), the Board incorporates by reference the attached Brief in Support of its Motion to Dismiss as though fully set forth at length. WHEREFORE, Defendant City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts hereby requests that this Court grant its Motion to Dismiss and that the claims against it in Plaintiff’s Complaint be dismissed in their entirety, with prejudice. OF COUNSEL: Archer & Greiner, P.C. One Liberty Place 1650 Market Street, 32 nd Floor Philadelphia, Pennsylvania 19103-7393 Phone: 215-963-3300 Fax: 215-963-9999 Howard A. Rosenthal Howard A. Rosenthal Jonathan P. Rardin Attorneys for Defendant, City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts 113014827v1 Case 2:16-cv-02728-GJP Document 111 Filed 11/01/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA RONALD JOSEPH BILINSKI, Plaintiff, v. WILLS EYE HOSPITAL, et al., Defendants. : : : : : : : : : Civil Action No. 2:16-CV-02728-GJP BRIEF OF THE BOARD OF DIRECTORS OF CITY TRUSTS IN SUPPORT OF MOTION TO DISMISS. Plaintiff, Ronald Joseph Bilinski (“Bilinski”), has filed what appears to be a medical malpractice claim against twenty-seven defendants associated with the Wills Eye Hospital (“Wills Eye”). Among the defendants is the City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts (“Board”), improperly named in the Complaint as “City of Philadelphia, Trustee.” The Board submits this Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), because Bilinksi has failed to state a claim against it. I. PROCEDURAL HISTORY. This matter was initiated on June 3, 2016, when Bilinski filed an application to proceed in forma pauperis with the Court. That application was granted on June 9, 2016 and, on that same day, Bilinski, acting pro se, filed a Complaint against forty-four defendants. On June 20, 2016, Bilinski filed a Motion to Amend his Complaint, which was granted by Order dated June 21, 2016. Bilinski filed the Amended Complaint on July 13, 2016, reducing the number of defendants from forty-four to twenty-seven. As the Board was not served with the Amended Complaint and Waiver of Service sent on July 18, 2016, on September 23, 2016, the United States Marshal Service personally served the Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 1 of 9 2 Amended Complaint at the “City Legal Office.” Presumably, this refers to the City of Philadelphia Law Department, which finally referred the Amended Complaint to the Board. Various co-defendants filed three Motions to Dismiss on September 19, 2016 and September 22, 2016. On October 26, 2016, the Court granted those Motions in part. STATEMENT OF FACTS DIRECTED AGAINST THE BOARD. Bilinski purports to allege facts regarding damage to his right eye during an operation on or about June 16, 2014. [Amended Complaint, Doc. 6 at 3-4.] There is no allegation connecting the Board or any of its members to Bilinski’s alleged injury. However, Bilinski alleges generally that the Board, along with several other defendants, “are all controlled ‘collaboratives’ under [the Wills Eye Foundation].” [Amended Complaint, Doc. 6-3 at 15.] Based on the general allegations of being a “collaborative,” Bilinski has brought claims against the Board for violations of the following: 1. Sections 7 and 8 of the Clayton Act, 15 U.S.C. §§ 18 and 19. 2. Title 7 of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. 3. Various portions of the United States Criminal Code, including: a. Conspiracy to commit offense or to defraud United States, 18 U.S.C. § 371. b. Obstruction of criminal investigations of health care offenses, 18 U.S.C. § 1518. c. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy, 18 U.S.C. § 1519. d. Tampering with a witness, victim, or an informant, 18 U.S.C. § 1512(a). e. Influencing or injuring officer or juror generally, 18 U.S.C. § 1503. f. Bank fraud, 18 U.S.C. § 1344. g. Health care fraud, 18 U.S.C. §§ 1346 and 1347. Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 2 of 9 3 h. Civil action to restrain harassment of a victim or witness, 18 U.S.C. § 1514. i. Conspiracy to defraud the Government with respect to claims, 18 U.S.C. § 286. j. False, fictitious or fraudulent claims, 18 U.S.C. § 287. k. Hate crime acts, 18 U.S.C. § 249. l. Deprivation of rights under color of law, 18 U.S.C. § 242. m. Conspiracy against rights, 18 U.S.C. § 241. 4. The Fourteenth Amendment to the United States Constitution. 5. False claims against the government of the United States, 31 U.S.C. § 3729. 6. Medical Device Reporting, 21 CFR § 803.1. 7. Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. 8. The Americans with Disabilities Act, 42 U.S.C. §§ 12101(3) and (4) and 12203. 9. Basic Health and Human Services Policy for Protection of Human Research Subjects, 45 C.F.R. §§ 46.101, 46.115-.117. [Amended Complaint, Doc. 6-4, at 29-32.] Even if Bilinski alleged sufficient facts to find that the Board played a role in damaging him, the claims alleged are irrelevant to plaintiff’s causes of action. None of these claims give rise to a cause of action against the Board, or any defendant, based on the facts alleged by Bilinski. II. LEGAL ARGUMENT. A. Standard Of Review Applicable To Motion To Dismiss Pursuant To Rule 12(b)(6), F.R.C.P. The Court, pursuant to Rule 12(b)(6), F.R.C.P., shall dismiss a complaint for “failure to state a claim upon which relief can be granted.” On a motion to dismiss, the Court must accept Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 3 of 9 4 as true all of the factual allegations in the complaint, and must draw all reasonable inferences in favor of the plaintiff. Cal. Pub. Employees’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 134 (3d Cir. 2004); Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001). However, the Court need not credit bald assertions or legal conclusions. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007), the Supreme Court held that “[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)….” (Citations omitted.) In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009), the Supreme Court elaborated in Twombly, and held: “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’.… 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.” (Citations omitted; emphasis added.) Based on the facts as alleged in the Amended Complaint, Bilinski’s claims against the Board must be dismissed. B. The Court Has Already Dismissed All Claims Except For Bilinski’s Medical Malpractice Claim. In response to Motions to Dismiss filed by various defendants, this Court already has determined that Bilinski failed to state a claim for relief under the “United States Constitution, federal criminal statutes, the [Food, Drug & Cosmetic] Act, the federal regulations regarding the ‘Protection of Human Subjects,’ the False Claims Act, Title VII, the Clayton Act, the Emergency Medical Treatment and Active Labor Act, and the Americans with Disability Act” and dismissed those claims with prejudice as to those parties who have already filed Motions to Dismiss. [Opinion at 10.] For the reasons determined by the Court, these claims against the Board also Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 4 of 9 5 should be dismissed. In its Opinion, this Court stated that “[a]ll claims asserted under the First and Fourteenth Amendments to the United States Constitution are dismissed because Bilinski has not alleged state action.” [Opinion at 4.] Further, “[a]ll claims under criminal statutes … are dismissed because these statutes do not provide private causes of action.” [Id.] Bilinski’s claims under the regulations known as Basic Health and Human Services Policy for Protection of Human Research Subjects were dismissed for the same reasons. [Id. at 5.] While the Court does not specifically mention the regulations regarding Medical Device Reporting, 21 C.F.R. § 803.1, those claims should be dismissed because they too do not give rise to a private right of action. Bilinski’s claims under the False Claims Act were dismissed because he “failed to comply with various filing and service requirements, and, in any case, is precluded from pursuing a qui tam action on behalf of the Governement due to his status as a pro se litigant.” [Id.] All claims under Title VII of the 1964 Civil Rights Act were dismissed because “Bilinski has not alleged that he was an employee of any of the Defendants,” including the Board. [Id. at 6.] Bilinski’s claims under Sections 7 and 8 of the Clayton Act were dismissed because he “has not alleged any facts relevant to the substance of these two statutes or any harm allegedly suffered due to statutorily-proscribed conduct.” [Id.] This Court dismissed all claims asserted under the Emergency Medical Treatment and Active Labor Act because “the statute does not apply to Bilinski’s allegations.” [Id.] Finally, this Court dismissed all claims brought under the Americans with Disabilities Act because Bilinski “has not alleged facts establishing that he has standing to bring a claim under the statute.” [Id. at 7.] For the reasons stated in the Court’s Opinion dated October 26, 2016, the same claims Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 5 of 9 6 against the Board must be dismissed. 1 The only claims, therefore, remaining against the Board are Bilinski’s claim under Pennsylvania common law for medical malpractice, and that should likewise be dismissed for the reasons that follow. C. Bilinski Fails To Allege Sufficient Facts To Sustain A Claim Against The Board for Medical Malpractice. In K.H. v. Kumar, 122 A.3d 1080, 1093, 2015 PA Super 177 (2015), the Pennsylvania Superior Court stated that, in order to establish a claim for medical malpractice a plaintiff “must establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and [that] the damages suffered were a direct result of the harm.” (Emphasis added.) To the extent that Plaintiff’s medical malpractice claim is against the Board, Plaintiff has failed to establish a breach of any duty by the Board, nor any link between the Board and any physician or medical procedure beyond the conclusion of “collaborative” activity. In any event, not a single fact is alleged regarding such alleged conduct. The Board is a state agency established by the Pennsylvania Legislature in 1869 to discharge “[a]ll and singular the duties, rights and powers of the city of Philadelphia, concerning all property and estate whatsoever, dedicated to charitable uses or trusts, the charge or administration of which is now or shall hereafter become vested in or confined to the city of Philadelphia.” 53 P.S. § 16365. The Board is empowered to “make rules and by-laws for the proper regulation of their business, to appoint as many agents as in their judgment shall be required for the proper discharge of all the duties delegated to said directors, and determine the duties and compensation of all such agents and appointees; also in the name of the said city, and in accordance with the conditions of said charitable trusts, to make all leases, contracts and agreements whatsoever which, in the course of the administration and management of said property, it may 1 On October 26, 2016, the Court denied Bilinski’s request to amend his Complaint to include claims under the Sherman Act of 1890, 15 U.S.C. §§ 1, et seq. Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 6 of 9 7 from time to time become necessary and proper to make and execute; and it shall be the duty of the said directors of trusts, for and in the name of the said city, to do, perform and discharge, all and singular, whatever acts and duties are or from time to time may become proper or necessary to be done by the said city in discharge of said trust, and to make an annual report thereof to the councils of the city, to the board of appointment, and to the legislature of Pennsylvania.” 53 P.S. § 16368. Although, pursuant to the enabling legislation, the Board manages the assets left to the City of Philadelphia, the Board does not provide, direct or manage medical treatment by any physicians associated with Wills Eye Hospital, nor does Bilinski allege a single fact which even suggests that it does. As Trustee, the Board manages the assets of the Estate of James Wills. Wills Eye operates with the funds managed by the Board, but is not itself operated by the Board. Likewise, Bilinski does not allege that any of the referenced doctors have any connection to the Board. There is no claim, nor can there be, that the Board hired, supervised or controlled the individual defendant doctors. There is no allegation that the Board was ever informed by Bilinski of any alleged issue with his treatment; in fact, there is no allegation that Bilinski had any contact with the Board. In Thompson v. Nason Hospital, 527 Pa. 330, 341, 591 A.2d 703, 708 (1991), the Pennsylvania Supreme Court stated that: “It is important to note that for a hospital to be charged with negligence, it is necessary to show that the hospital had actual or constructive knowledge of the defect or procedures which created the harm. Furthermore, the hospital's negligence must have been a substantial factor in bringing about the harm to the injured party.” (Internal citations omitted.) Bilinski does not allege that the Board ever had any knowledge, actual or constructive, of any alleged defect or procedure that created his harm. Further, the Board is a step further removed from the hospital as it is merely the Trustee for the assets and Wills Eye Hospital is a separately incorporated entity. Unlike a hospital which controls the operations of the facility and manages Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 7 of 9 8 staff and personnel providing medical procedures, the Board does not operate Wills Eye Hospital but it merely manages the assets of the Estate of James Wills. As such, any medical malpractice claim, if it exists at all, must be limited to those parties that actually provided medical care. The Board, as Trustee, did not provide medical care nor is there any allegation which would allow a claim for medical malpractice to continue against it. D. Bilinski’s Medical Malpractice Claim Should Be Dismissed For Failure To Provide A Certificate Of Merit. Pennsylvania Rule of Civil Procedure 1042.3 states that: “In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either “(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or “(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or “(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” The Third Circuit has held that this requirement for a Certificate of Merit is substantive Pennsylvania law and must be applied by federal courts exercising diversity jurisdiction. See Iwanejko v. Cohen & Grigsby, P.C., 249 Fed. App’x 938, 944 (3d Cir. 2007). In its Opinion dated October 26, 2012, this Court stated that facts necessary to support Bilinski’s medical malpractice claim “are not so simple or obvious as to be within the experience and comprehension of laypersons and will require Bilinski to present expert testimony to Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 8 of 9 9 establish the elements of duty/standard of care, breach, proximate causation and damages.” [Opinion at 9-10.] Recognizing that a Certificate of Merit is required, this Court ordered that Bilinski file a Certificate of Merit, and accompanying written supporting statement, by or before November 28, 2016, or suffer dismissal. [Order at 2.] In light of the lack of any possible claim against the Board for medical malpractice, this defect should not affect dismissal now, as with most other defendants. However, at the very least and only in the small chance that Bilinski creates some connection between the Board and his alleged medical malpractice, should Bilinksi fail to provide the proper Certificate of Merit as required by this Court’s Order dated October 26, 2016, all remaining claims against the Board should be dismissed with prejudice. III. CONCLUSION. Plaintiff has failed to state a claim upon which relief can be granted. The Court should dismiss all claims against the Board brought under the United States Constitution, federal statutes or federal regulations for the same reason that the Court previously dismissed such claims against other defendants. Further, the Court should dismiss the medical malpractice claim against the Board because Plaintiff has failed to allege any facts that would suggest that the Board was providing medical services, had a duty to provide medical services or breached such a duty. Such a duty lies solely with the physicians who provided medical care to Bilinski and could only have been breached by those physicians. OF COUNSEL: Archer & Greiner, P.C. One Liberty Place 1650 Market Street, 32 nd Floor Philadelphia, Pennsylvania 19103-7393 Phone: 215-963-3300 Fax: 215-963-9999 Howard A. Rosenthal Howard A. Rosenthal Jonathan P. Rardin Attorneys for Defendant, City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts 115051044v1 Case 2:16-cv-02728-GJP Document 111-1 Filed 11/01/16 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA RONALD JOSEPH BILINSKI, Plaintiff, v. WILLS EYE HOSPITAL, et al., Defendants. : : : : : : : : : Civil Action No. 2:16-CV-02728-GJP ORDER AND NOW, this _____ day of __________________, 2016, upon consideration of the Motion to Dismiss of defendant the City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts, and any response thereto, IT IS ORDERED that the defendant’s Motion to Dismiss is granted and plaintiffs’ Complaint against the City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts, is dismissed, with prejudice. BY THE COURT: ________________________________________ THE HONORABLE GERALD J. PAPPERT, J. Case 2:16-cv-02728-GJP Document 111-2 Filed 11/01/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA RONALD JOSEPH BILINSKI, Plaintiff, v. WILLS EYE HOSPITAL, et al., Defendants. : : : : : : : : : Civil Action No. 2:16-CV-02728-GJP CERTIFICATION OF SERVICE. The undersigned Counsel certifies that true and correct copies of the foregoing Motion to Dismiss, supporting Brief and proposed Order filed on behalf of defendant the City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts, were electronically filed with the Clerk of Court on November 1, 2016 using the CM/ECF system, which will automatically send e-mail notification to all counsel of record, as follows: Donna Nadel Kramer, Esquire Post & Schell 4 Penn Center 1600 JFK Boulevard Philadelphia, PA 19103 Attorney for Defendants Wills Eye Hospital, Wills Eye Institute, Wills Eye Opthalmology Clinic Inc., Joseph P. Bilson, Dr. Julia A. Haler, YLA Secretary to CEO Joseph P. Bilson, “Lisa,” Michael Allen, Wills Eye, et al., Wills Eye Foundation Deborah M. Knight Goldfein & Joseph, P.C. 1880 John F. Kennedy Boulevard, 20 th Floor Philadelphia, PA 19103 Attorney for Defendants Donna Gambino, Mid Atlantic Retina, CEO John Duemell, Ed Weber, Winkel, Barbara Brown, Sarah Rapuano, Dr. David C. Reed, Dr. Sonja Mehta, Dr. Robert S. Bailey, Jr., Dr. Samuel K. Houston, III, Mid Atlantic Retina Practice, Rhonda Ceretelle, Rhonda Colclough, Daniel P. Martz, Esquire Christie Pabarue & Young 1880 J.F.K. Boulevard, 10 th Floor Philadelphia, PA 19103 Attorney for Defendant Dr. Michael Anthony Dellavecchia In addition, true and correct copies of the foregoing Motion to for an Extension of Time were deposited on November 1, 2016 in the United States Mail, first class, postage prepaid and addressed: Case 2:16-cv-02728-GJP Document 111-3 Filed 11/01/16 Page 1 of 2 2 Ronald Joseph Bilinski 4814 Washington St. Ext. Wilmington, DE 19809 Plaintiff OF COUNSEL: Archer & Greiner, P.C. One Liberty Place 1650 Market Street, 32 nd Floor Philadelphia, Pennsylvania 19103-7393 Phone: 215-963-3300 Fax: 215-963-9999 Howard A. Rosenthal Howard A. Rosenthal Jonathan P. Rardin Attorneys for Defendant, City of Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of Directors of City Trusts 115165759v1 Case 2:16-cv-02728-GJP Document 111-3 Filed 11/01/16 Page 2 of 2