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David T. Veale and Scott W. Veale v. Robert T. Furness

February 2, 2012

DAVID T. VEALE AND SCOTT W. VEALE
v.
ROBERT T. FURNESS, APPLE TREE ANIMAL HOSPITAL, TUFTS UNIVERSITY STEVEN ROWELL, WINDHAM VETERINARY CLINIC, STEPHEN ANGELL, ANGELL ANIMAL MEDICAL CENTER, MEGAN SULLIVAN, NEW ENGLAND VETERINARY ONCOLOGY GROUP, LLC, JEFF PHILIBERT, ANIMAL MEDICAL CENTER, VETERINARY EMERGENCY SPECIALTY CENTER OF NEW ENGLAND, VETERINARY EMERGENCY CENTER OF MANCHESTER, CAPITAL AREA VETERINARY EMERGENCY CENTER, EMERGENCY VETERINARY CLINIC OF THE SEACOAST



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

Opinion No. 2012 DNH 029

MEMORANDUM ORDER

Plaintiffs David and Scott Veale, proceeding pro se, have brought this suit against a number of veterinary professionals and organizations who, they allege, committed malpractice that resulted in the death of their dog, Elsie. In addition to state-law claims for breach of contract, negligence, veterinary malpractice, bailment, and fraud, the Veales have asserted federal claims for conspiracy to interfere with their civil rights under 42 U.S.C. § 1985(3) and violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Defendants have moved to dismiss the suit, arguing, among other things, that the Veales' complaint fails to state a claim under federal law, see Fed. R. Civ. P. 12(b)(6), and that, because at least one plaintiff and one defendant are citizens of the same state, this court lacks subject-matter jurisdiction over the remaining state-law claims, see 28 U.S.C. § 1332(a)(1). For essentially those reasons, the court dismisses the case.

I. Applicable legal standard

To survive a motion to dismiss under Rule 12(b)(6), the plaintiff's complaint must make factual allegations sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "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." Id. at 1940. In ruling on such a motion, the court must accept as true all well-pleaded facts set forth in the complaint and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).

Similarly, when evaluating a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the court "accept[s] as true all material allegations of the complaint, and construe[s] the complaint in favor of the complaining party." Peterson v. United States, 774 F. Supp. 2d 418, 421 (D.N.H. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). However, "the burden lies with the plaintiff, as the party invoking the court's jurisdiction, to establish that it extends to his claims." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

The following background summary is consistent with that approach.

II. Background

In mid- to late September 2006, Elsie, a 10-year old English setter belonging to plaintiffs David and Scott Veale, developed a serious pyrothorax infection which caused a great deal of pus and swelling to accumulate in her chest and around her lungs. The Veales brought Elsie to Dr. Robert Furness, a veterinarian at Apple Tree Animal Hospital in Hopkinton, New Hampshire. This, they say, was a mistake--Dr. Furness, motivated by "group hatred toward the Plaintiffs because of who they are and their false reputations," conspired with "others" to harm Elsie. Among other things, Dr. Furness allegedly misdiagnosed Elsie with an infected uterus, prescribed unnecessary medication, and performed unnecessary surgery to remove her uterus. During this surgery, Dr. Furness either intentionally or negligently caused lesions to Elsie's spleen, liver, kidney, heart, and lungs.

Immediately after the surgery, the Veales picked up Elsie from Apple Tree and took her to Tufts University's Hospital for Small Animals to obtain a second opinion. The personnel at Tufts told the Veales that Elsie was in very critical condition, and would die if not treated for her chest infection and the injuries suffered during surgery. Over the next several days, Tufts personnel stabilized Elsie and contacted Dr. Furness. They then performed an additional surgery on Elsie "to straighten a few things out." The surgery appeared to have gone well. However, when the Veales picked up Elsie from Tufts, they were not told about any test results or recommended follow-up treatments; nor did Tufts provide them with a copy of Elsie's records.

For the next several months, Dr. Stephen Angell of Windham Animal Hospital in Brattleboro, Vermont treated Elsie. He did not provide the Veales with any opinion about what had happened to Elsie. The Veales remained concerned about Elsie's condition, and contacted a Dr. Whalen at Tufts regarding those concerns. After Tufts finally sent Elsie's records to the Veales in March 2007, they discovered that, in November 2006, Tufts had received test results suggesting that Elsie should have received further x-rays to monitor the progress of her internal injuries.

On Friday, March 23--within a week of receiving the records--the Veales noticed that Elsie was becoming weak and was "not her usual self." They immediately brought her to the Capital Area Veterinary Emergency Center ("CAVEC") in Concord, New Hampshire, which referred them to Dr. Megan Sullivan at Angell Animal Medical Center ("AAMC") in Boston, Massachusetts. After examining Elsie, Dr. Sullivan informed the Veales that Elsie had developed very serious stage V leukemia. She told them that it would cost "thousands and thousands of dollars" to begin treating her for the cancer, and recommended that they arrange to have Elsie euthanized. When the Veales asked that AAMC perform an ultrasound and urinalysis, Dr. Sullivan told them that AAMC did not have enough time to do any further tests or treatments to help save Elsie at that time. She also told the Veales that she did not believe the cancer had been caused by anything Dr. Furness or Tufts had done.

The Veales then brought Elsie to the Veterinary Emergency & Specialty Hospital in South Deerfield, Massachusetts, which agreed to perform the ultrasound. The ultrasound revealed numerous unusual lesions in Elsie's spleen and on her liver. Armed with these results, the Veales brought Elsie to Dr. Jeff Philibert at the New England Veterinary Oncology Group ("NEVOG"). Dr. Philibert recommended a cancer treatment plan for Elsie. After the first treatment, Elsie had a mild reaction that caused bleeding from her nose. Dr. Philibert nonetheless recommended further treatment, which caused additional serious reactions, including additional bleeding.

NEVOG advised the Veales to take Elsie to the Animal Medical Center ("AMC") in Nashua, New ...


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