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Exeter Hospital, Inc. v. Kwiatkowski

United States District Court, D. New Hampshire

October 31, 2016

Exeter Hospital, Inc., Plaintiff
David Kwiatkowski; Maxim Healthcare Services, Inc.; The American Registry of Radiologic Technologists; and Triage Staffing, Inc., Defendants Opinion No. 2016 DNH 200

          Robert C. Dewhirst, Esq. Elaine M. Michaud, Esq. Jonathan A. Lax, Esq. Joshua M. Wyatt, Esq. Peter W. Mosseau, Esq. Jay Surdukowski, Esq. Peter A. Meyer, Esq. James B. Lynch, Esq. Mark A. Darling, Esq. Shari L. J. Aberle, Esq. Daniella Massimilla, Esq. Linda M. Smith, Esq. Ralph Suozzo, Esq. William N. Smart, Esq.


          Steven J. McAuliffe United States District Judge

         In 2012, thirty two former patients of Exeter Hospital tested positive for Hepatitis-C. And, it was discovered, a substantially larger number had, potentially, been exposed to the virus. That outbreak was caused by David Kwiatkowski, an intravenous drug user who was employed by the hospital as a cardiac catheterization technician in 2011 and 2012. Exeter Hospital subsequently settled a large number of claims, both from patients who had actually been infected with the Hepatitis-C virus, as well as patients who, although not infected, sought compensation for injuries related to their having had to undergo testing as well as their fear of having contracted the disease. The hospital then filed this statutory contribution action against several defendants, seeking to recover damages it sustained and expenses it incurred in connection with settling those claims. It also seeks contractual indemnification from Triage Staffing - the employment agency that placed Kwiatkowski at the hospital.

         Pending before the court are two motions to dismiss. The American Registry of Radiologic Technologists (“ARRT”) moves to dismiss count 73 of the Third Amended Complaint, which seeks statutory contribution for sums Exeter Hospital paid to patients who were tested for Hepatitis-C, but who did not actually contract the disease (the so-called “negative results claimants”). Triage Staffing also moves to dismiss that count. Additionally, Triage moves to dismiss count 74, in which Exeter Hospital seeks contractual indemnification from Triage for the same sums. For the reasons discussed, those motions to dismiss are granted, without prejudice to Exeter Hospital's ability to amend counts 73 and 74, as discussed below.

         Standard of Review

         When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must “accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

         In other words, “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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to “nudge[] [plaintiff's] claims across the line from conceivable to plausible.” Id. at 570. If, however, the “factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Tambone, 597 F.3d at 442. Such is the case here.


         Most of the relevant factual allegations are set forth in the court's prior order (document no. 48) and need not be recounted. It is sufficient to note that Exeter Hospital alleges the following. David Kwiatkowski was a cardiac catheterization technician who, between 2003 and 2012, was employed by approximately 19 different hospitals throughout the country. In June of 2010, he tested positive for Hepatitis-C and, about one year later, in April of 2011, he began working at Exeter Hospital, in Exeter, New Hampshire.

         Kwiatkowski was an intravenous drug user who often stole drugs from his hospital employers. He injected the drugs and covered up his conduct by refilling the used syringes with saline and returning them to the hospital's inventory. When the tainted syringes were subsequently used, patients were either exposed to, or actually infected with, the Hepatitis-C virus. As part of its investigation into the Hepatitis-C outbreak, Exeter Hospital (along with the New Hampshire Department of Health and Human Services) contacted patients who had received care in the catheterization lab and other unspecified areas of the hospital, recommending they undergo testing. More than 3, 000 people were tested and, of them, a total of 32 former patients tested positive for Hepatitis-C. Subsequently, a number of those infected patients sued Exeter Hospital. An additional 188 patients who tested negative for the disease also advanced claims against the hospital (but did not actually file suit). Exeter Hospital settled many of those claims (from both infected and non-infected parties) and obtained releases for itself as well as all of the named defendants. It then filed this action, seeking statutory contribution (and, with respect to Triage, contractual indemnification).

         Exeter Hospital alleges that Triage Staffing knew Kwiatkowski had Hepatitis-C and, despite that knowledge, it “continued to expose hospital patients to the potential risk of contracting the virus for years before [it] recommended him for employment at Exeter Hospital.” Third Amended Complaint (document no. 74) at para. 35. Exeter Hospital also alleges that it reasonably relied upon Triage to properly screen Kwiatkowski before recommending him for employment by the hospital. Id. at para. 64. As for the American Registry of Radiologic Technologists, Exeter Hospital says it was aware of Kwiatkowski's history of drug use, yet undertook no meaningful investigation into his conduct and failed to revoke his national certification. Id. at paras. 55-58. That conduct (or inaction) on the part of ARRT and Triage, says the hospital, proximately caused the injuries allegedly sustained by the negative results claimants.

         All agree that, as for the 188 negative results claimants at issue, the operative paragraph in Exeter Hospital's Third Amended Complaint alleges that:

Although Patients N001 through N188 tested negative for the virus, they presented claims for damages to Exeter Hospital, alleging that they each suffered diverse physical and emotional injuries as a direct result of learning of their potential infection with the Hepatitis-C virus; of having to undergo the recommended Hepatitis-C testing; and of having to wait days (or in some cases, weeks) before learning that their test results were negative.

         Third Amended Complaint, at para. 953 (emphasis supplied). ARRT and Triage join in asserting that those allegations are simply too meager to state a viable cause of action. Accordingly, they move to dismiss those counts in the ...

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