Deane v. Quest Diagnostics LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CIVIL ACTION NO. 1:18-cv-880 (WOB-SKB)

CAITLIN DEANE, PLAINTIFF

V.

QUEST DIAGNOSTICS, LLC, DEFENDANT/THIRD-PARTY PLAINTIFF

V.

MICHAEL A. THOMAS, M.D., ET AL, THIRD-PARTY DEFENDANTS

MEMORANDUM OPINION AND ORDER

This is a medical negligence case by Caitlin Deane

(“Caitlin”) against Quest Diagnostics, LLC’s (“Quest”) for its

alleged delay in diagnosing and treating her cervical cancer.

(Doc. 14 at ¶¶ 13-14). During discovery, Quest learned that

Caitlin participated in a long-term contraceptive clinical trial

and research study (“IUS Study”) at the University of

Cincinnati. (Doc. 31). Quest filed a third-party complaint

against Michael A. Thomas, M.D. (“Dr. Thomas”); Deborah A.

Boerschig, R.N., C.N.P. (“Nurse Boerschig”); University of

Cincinnati Physicians Company, LLC (“UCPC”); University of

Cincinnati Medical Center, LLC (“UCMC”); and UC Health, LLC

(“UCH”) (collectively “Third-Party Defendants”), asserting Ohio

law claims of (1) indemnity and (2) contribution.

This matter is before the Court on the Third-Party

Defendants’ motion to dismiss Quest’s third-party complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). (Doc. 48). Quest filed a response to the motion to

dismiss, and the Third-Party Defendants subsequently filed a

reply. (Docs. 58, 63). Upon determination that oral argument was

unnecessary in this matter, the Court took the motion under

advisement. For the reasons stated below, the Court grants the

Third-Party Defendants’ motion to dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

The underlying civil action alleges professional negligence

by cytotechnologists employed by Quest after Caitlin’s cervical

cancer went undiagnosed from 2012 until April 2018. (Doc. 14 at

3-4). Caitlin’s negligence claim cites two negative reports for

malignancy from Pap smears dated May 14, 2012 and June 1, 2015,

that she avers would have revealed cervical cancer had the

cytotechnologists properly interpreted them. (Id. at ¶ 17).

Caitlin filed her original complaint on November 12, 2018,

in the Hamilton County Court of Common Pleas against Quest

Diagnostics Incorporated and John Doe defendants. (Doc. 1-1).

Quest Diagnostics Incorporated removed this action from state

court to federal court and filed its answer. (Docs. 1, 9).

Caitlin filed her amended complaint, substituting Quest

Diagnostic Incorporated with Quest Diagnostics, LLC as the

proper Quest corporate entity.1 (Doc. 14). The amended complaint

made no claims against Third-Party Defendants. Quest filed its

answer on July 26, 2019. (Doc. 24).

During discovery, Quest learned that Caitlin participated

in an IUS Study at the University of Cincinnati by the Third-

Party Defendants. (Doc 31 at ¶ 22). Quest then filed a third-

party complaint against the Third-Party Defendants, alleging

they were “the substantial contributing factor” in failing to

discover Caitlin’s cancer. (Id. at ¶ 29). Quest alleges that the

2012 and 2015 Pap smear results were also collected by the

Third-Party Defendants. (Id. at ¶¶ 23-24). Quest avers that

should it be held liable, it is entitled to contribution from

the Third-Party Defendants for their proportionate fault and

indemnity for its costs, attorney fees, and other relief

incurred in connection with this matter. (Id. at ¶¶ 30-33).

II. ANALYSIS

In order to survive Defendants’ Rule 12(b)(6) motions to

dismiss, Quest’s third-party complaint must contain “enough

facts to state [claims] to relief that [are] plausible on

[their] face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). The Court must construe the third-party complaint in the

light most favorable to Quest and accept all factual allegations

1 Caitlin also dismissed the John/Jane Doe defendants and added her parents as

plaintiffs. (Doc. 14 at ¶¶ 2-3). Counts II and III of Caitlin’s amended

complaint, alleging loss of consortium by her parents, were dismissed with

prejudice. (Doc. 17).

as true. Chesbrough v. VPA, P.C., 655 F.3d 461, 467 (6th Cir.

2011). If the complaint contains “either direct or inferential

allegations” to establish each material element required for

recovery under an actionable legal theory, then it survives a

motion to dismiss. Bishop v. Lucent Technologies, Inc., 520 F.3d

516, 519 (6th Cir. 2008).

A. Lack Of Subject Matter Jurisdiction Over Dr. Thomas And

Nurse Boerschig

The Third-Party Defendants seek dismissal of the state law

claims against Dr. Thomas and Nurse Boerschig in Quest’s third-

party complaint, arguing the Court lacks subject matter

jurisdiction to determine whether they are immune under Ohio

Revised Statute § 9.86. (Doc. 48 at 5). They argue that Ohio

Revised Code § 2743.02(A)(3)(F) vests “exclusive, original

jurisdiction” with the Ohio Court of Claims to make this initial

determination of whether Dr. Thomas and Nurse Boerschig are

immune under Ohio Revised Statute § 9.86. (Id. at 6). Because

the Third-Party Defendants have presented prima facie evidence

to show Dr. Thomas and Nurse Boerschig are employees of the

state, the Ohio Court of Claims must make the initial

determination of jurisdiction and immunity.

The issue of immunity under the Eleventh Amendment raises a

question of federal jurisdiction. Johnson v. University of

Cincinnati, 215 F.3d 561, 570-71 (6th Cir. 2000). The Eleventh

Amendment provides immunity for states, arms of the state, and

state employees in their official capacities from suits for

money damages. Rogers v. Banks, 344 F.3d 587, 594 (6th Cir.

2003). It also expressly prohibits citizens from suing states in

federal court, subject to some exceptions. U.S. CONST. amend. XI

(“The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State”). The Supreme

Court has interpreted the Eleventh Amendment to mean that

plaintiffs may directly sue a state in federal court when a

state consents to suit or the case concerns a statute passed

under Section 5 of the Fourteenth Amendment to the United States

Constitution. Seminole Tribe of Florida v. Florida, 517 U.S. 44

(1996); Alden v. Maine, 527 U.S. 706 (1999). This case involves

the former.

While Ohio has consented to being sued in Ohio’s court of

claims, it has not consented to state law actions against the

State of Ohio and its officials outside of its own court. Jones

v. Hamilton Cty. Sheriff, 838 F.3d 782, 786 (6th Cir. 2016).

Ohio Revised Code § 9.86 provides:

[N]o officer or employee shall be liable in any civil

action that arises under the law of this state for

damages or injury caused in the performance of his

duties, unless the officer’s or employee’s actions

were manifestly outside the scope of his employment or

official responsibilities, or unless the officer or

employee acted with malicious purpose, in bad faith,

or in a wanton or reckless manner.

(Emphasis added). Ohio Revised Code § 2743.02(A)(3)(F) mandates,

however, that lawsuits seeking damages against state employees

“shall first be filed against the state in the court of claims

that has exclusive, original jurisdiction to determine,

initially, whether the officer or employee is entitled to

personal immunity under section 9.86, of the Revised Code and

whether the courts of common pleas have jurisdiction over the

civil action.” (Emphasis added). In other words, “Ohio law

requires that, as a condition precedent to asserting a cause of

action against a state employee in his individual capacity, the

Court of Claims must first determine that the employee is not

entitled to the immunity provided for in Revised Code section

9.86.” Otte v. Kasich, 709 F. App’x 779, 784 (6th Cir. 2017)

(internal quotations omitted).

Under Ohio Revised Code § 109.36(A)(1)(b), a “person that,

at the time a cause of action against the person . . . arises,

is rendering medical [or] nursing . . . services pursuant to a

personal services contract or purchased service contract with a

department, agency, or institution of the state” is an

“employee.” The crux of the dispute hinges on whether there is

evidence to determine that Dr. Thomas and Nurse Boerschig are

employees of Ohio to prompt a jurisdictional issue.

Quest argues that the Third-Party Defendants did not

provide evidence for their conclusion that Dr. Thomas and Nurse

Boerschig are employed by the University of Cincinnati and

discovery is needed on this issue. (Doc. 58 at 6). The Third-

Party Defendants argue the University of Cincinnati’s website

establishes Dr. Thomas and Nurse Boerschig’s employment, which

they say the Court can take judicial notice of. (Doc. 63).

The University of Cincinnati College of Medicine’s website

provides that Dr. Thomas is the “Director of OB/GYN Reproductive

Endocrinology & Infertility at the UC College of Medicine” and

researches intrauterine devices.2 (Id. at 3-4). The University of

Cincinnati’s directory identifies Nurse Boerschig as a

University of Cincinnati Practitioner.3 (Id. at 4).

Even without this website, Quest’s pleading explicitly

acknowledges Dr. Thomas’ dual employment as the “Chief of the

Division of Reproduction Endocrinology and Infertility at the

University of Cincinnati College of Medicine” and “Director of

Reproductive Medicine Research at University of Cincinnati”, in

conjunction with his employment with UCPC, UCMC, and UCH. (Doc.

31 at ¶¶ 3, 25). Although Quest’s concern about the capacity in

which Dr. Thomas was performing his duties is well-taken, Ohio

Revised Code § 2743.02(A)(3)(F) sets a clear condition precedent

2https://www.med.uc.edu/microsites/indispensable/more-stories/michael-thomas-

md-uc-college-of-medicine

3https://ucdirectory.uc.edu/FacultyStaffSearch.asp?mode=SearchFS&ID={00380039-

0044-0034-4200-310044003000}

for the Ohio Court of Claims having exclusive, original

jurisdiction to determine initially “whether the officer or

employee is entitled to personal immunity under section 9.86”

and “whether the courts of common pleas have jurisdiction over

the civil action.” Thus, because the Third-Party Defendants’

motion presents prima facie evidence that Dr. Thomas is an

employee of a public and private entity, it is for the Ohio

Court of Claims to make the initial determination of immunity

and whether it has jurisdiction over the civil action. See e.g.,

Randolph v. Holzer Medical Center, 2010 WL 2521424, at *2 (S.D.

Ohio June 22, 2010) (dismissing a defendant without prejudice

because the defendant made a prima facie showing that he was an

employee of the State of Ohio when he consulted with the

plaintiff as a volunteer professor of medicine at the University

of Cincinnati). Therefore, this Court lacks jurisdiction over

Dr. Thomas. Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir.

1989) (“Until the Ohio Court of Claims determines that they are

not immune, there is no cause of action cognizable under Ohio

law over which the district court can assert pendent

jurisdiction.”).

Nurse Boerschig’s employment status with the University of

Cincinnati is silent in Quest’s pleadings. Nevertheless, “[a]

court ruling on a Rule 12(b)(6) motion may consider materials in

addition to the complaint if such materials are public records

or are otherwise appropriate for the taking of judicial notice.”

New England Health Care Employees Pension Fund v. Ernst & Young,

LLP, 336 F.3d 495, 501 (6th Cir. 2003). Federal Rule of Evidence

201 permits a court to take judicial notice of facts that are

not subject to reasonable dispute in that they are either

generally known within the territorial jurisdiction of the trial

court or capable of accurate and ready determination by resort

to resources whose accuracy cannot be reasonably questioned.

This means public records and government documents are “not to

be subject to reasonable dispute.” Jackson v. City of Columbus,

194 F.3d 737, 745 (6th Cir. 1999). “This includes public records

and government documents available from reliable sources on the

Internet.” Total Benefits Planning Agency Inc. v. Anthem Blue

Cross & Blue Shield, 630 F.Supp.2d 842, 849 (S.D. Ohio July 25,

2007), aff’d 552 F.3d 430 (6th Cir. 2008).

Here, the University of Cincinnati’s website sufficiently

establishes Nurse Boerschig’s employment with the University.

This argument is bolstered by Quest’s admission that the IUS

Study with Caitlin was conducted at the University of

Cincinnati. (Doc. 31 at ¶ 22). Therefore, like Dr. Thomas, the

Third-Party Defendants make their prima facie case showing that

Nurse Boerschig was an employee of the State of Ohio and it is

for the Ohio Court of Claims to make the initial determination

of jurisdiction and immunity.

Moreover, when subject matter jurisdiction is challenged

under Rule 12(b)(1), the plaintiff has the burden of proving

jurisdiction to survive the motion. Rogers v. Stratton Indus.,

798 F.2d 913, 915 (6th Cir. 1986). Although Quest argues that

Nurse Boerschig was not performing her duties in her capacity as

a state employee, Ohio law vests this initial determination to

its court of claims. O.R.C. § 2743.02(A)(3)(F). Quest does not

show how this condition precedent is inapplicable in this

circumstance.

In sum, since this Court lacks subject-matter jurisdiction

to hear Quest’s state law claims against Dr. Thomas and Nurse

Boerschig, Quest’s claims are dismissed without prejudice.

B. State Law Claims Against Remaining Third-Party Defendants

Are Dismissed, And Quest’s Alternative Request to Amend its

Third-Party Complaint Is Denied

The remaining question is whether Quest’s indemnity and

contribution claims against UCPC, UCMC, and UCH may persist in

light of alleged deficiencies to make a plausible assertion for

both state law claims, pursuant to Rule 12(b)(6).

1. Indemnification

First, Quest’s third-party complaint seeks indemnification

from the Third-Party Defendants should any liability be

attributed to it. (Doc. 31 at ¶¶ 32-33). Under Ohio law,

indemnification obligations arise “from contract, either express

or implied, and is the right of a person who has been compelled

to pay what another should have paid to require complete

reimbursement.” Worth v. Aetna Cas. & Sur. Co., 513 N.E.2d 253,

256 (Ohio 1987). Quest argues the facts support an inference for

an implied contract of indemnity. (Doc. 58 at 11).

“An implied contract of indemnity should be recognized in

situations involving related tortfeasors, where the one

committing the wrong is so related to the second party as to

make the second party liable for the wrongs committed solely by

the other.” Reynolds v. Physicians Ins. Co. of Ohio, 623 N.E.2d

30, 31 (Ohio 1993) (citation omitted). Ohio recognizes this

relationship with wholesaler/retailers, abutting property

owner/municipality, independent contractor/employer, and

master/servant. Id. (Citation omitted). “Indemnification is not

allowed when the two parties are joint or concurrent tortfeasors

and are both chargeable with actual negligence.” Id. at 31-32

(citation omitted).

Quest argues it “alleged a relationship with the Third-

Party Defendants of the type required for an implied contract of

indemnity . . . akin to that of an independent

contractor/employer or master/servant relationship.” (Id. at

12). The Third-Party Defendants argue Quest’s conclusion does

not describe how their relationship is analogous to an

independent contractor/employer or a master/servant and fails to

appreciate that it named two individuals and three entities as

third-party defendants. (Doc. 63 at 8).

Quest’s allegations do not directly or inferably show how

their relationship is analogous to an independent

contractor/employer or a master/servant. Quest’s third-party

complaint avers that Caitlin and the Third-Party Defendants

participated in the IUS Study between 2012 and 2018, wherein the

Dr. Thomas and Nurse Boerschig collected the Pap smear results

in the course and scope of their employment for UCPC, UCMC, and

UCH. (Doc. 31 at ¶¶ 22-27). Quest contends that these facts

clearly show that Quest performed testing on the Pap smear

results in conjunction with the IUS Study performed by the

Third-Party Defendants. (Doc. 58 at 11).

At best, these facts show that Quest and the Third-Party

Defendants were performing distinct and separate duties for

Caitlin. See Reynolds, 623 N.E.2d at 32 (holding there was no

implied contract of indemnity because the third-party

plaintiff’s complaint failed to establish a relationship between

the obstetrician responsible for delivering the plaintiff and

the pediatrician responsible for the plaintiff’s care after he

was born). Like Reynolds, the facts show a disconnect in the

care Caitlin received from Quest (responsible for the laboratory

services and interpretation of Caitlin’s Pap smear slides) and

the Third-Party Defendants (responsible for a separate IUS Study

when they reviewed the slides). The fact that the Third-Party

Defendants collected the Pap smear results that were eventually

evaluated by Quest’s employees does not directly or inferably

show that Quest hired them in some capacity to collect the Pap

smear results for it to interpret. Practically, it is also

unclear how an independent contractor/employer relationship or

master/servant relationship is the proper analogy when Quest did

not learn of the Third-Party Defendants’ collecting the same Pap

smear results until a year into this litigation. Therefore,

Quest fails to plead facially plausible facts to entitle it to

indemnification from the Third-Party Defendants.

2. Contribution

Second, Quest also seeks contribution from the Third-Party

Defendants. (Doc. 31 at ¶¶ 30-31). The Third-Party Defendants

argue that Quest failed to plead the threshold requirement of

Ohio’s contribution statute that it was jointly and severally

liable with the Third-Party Defendants and that Quest had paid

more than its proportionate share of liability. (Doc. 48 at 9-

10). Quest concedes that it does not specifically allege it is

jointly and severally liable but argues that its third-party

complaint effectively alleges this requirement, when considered

as a whole. (Doc. 58 at 13).

Ohio’s contribution statute provides “if one or more

persons are jointly and severally liable in tort for the same

injury . . . there may be a right of contribution even though

judgment has not been recovered against all or any of them.”

Ohio Rev. Code Ann. § 2307.25(A).

Again, Quest argues that the Third-Party Defendants were

negligent when they too did not detect Caitlin’s cancer. (Doc.

31 at ¶ 28). Paragraph 29 of the third-party complaint states

that the Third-Party Defendants “were the substantial

contributing factor, in whole or in part, of the Plaintiff’s

alleged injuries and damages.” This paragraph also lists fifteen

ways the Third-Party Defendants were negligent, all of which

concern their failure to detect and diagnose the cancer during

IUS Study. (Id. at ¶ 29). Because the Third-Party Defendants did

not catch the cancer diagnosis from the Pap smear slides, Quest

concludes that “such injuries and damages were the direct,

proximate and legal result of the negligence of the Third-Party

Defendants and, thus, Quest Diagnostics is entitled to

contribution from the Third-Party Defendants for [their]

proportionate share of the fault.” (Id. at ¶ 31).

Under Ohio law, joint and several liability arises when the

negligence of two or more persons either combine or concur to

produce a single indivisible injury. Wery v. Seff, 25 N.E.2d

692, 694 (Ohio 1940); Schindler v. Standard Oil Co., 143 N.E.2d

133, 136 (Ohio 1957). A joint tortfeasor is “one who actively

participates, cooperates in, requests, aids, encourages,

ratifies, or adopts a wrongdoer’s actions in pursuance of a

common plan or design to commit a tortious act.” Clevecon Inc.

v. Northeast Ohio Regional Sewer Dist., 628 N.E.2d 143, 148

(Ohio Ct. App. 1993).

Quest’s pleadings do not allege directly or inferably that

it and the Third-Party Defendants acted together in any manner

to produce Caitlin’s injury. Nor does it describe an action “in

pursuance of a common plan or design to commit a tortious act.”

Similar to the issue with indemnity, it appears Quest is

alleging the Third-Party Defendants were negligent for two

separate roles (Quest interpreted and reported the results of

Caitlin’s Pap smear and the Third-Party Defendants conducted the

IUS Study, wherein they should have diagnosed the cancer).

Therefore, Quest’s third-party complaint does not state a

facially plausible claim of joint and several liability.

3. Quest’s Request for Leave to Amend its Complaint is

Denied

Quest alternatively argues that the Court should grant it

an opportunity to amend its third-party complaint. (Doc. 58 at

13, 14). The Third-Party Defendants do not contest this request

in their reply. Nevertheless, Quest has not followed the proper

procedure for submitting a motion to amend its complaint. See

Evan v Pearson Enter, Inc., 434 F.3d 839, 853 (6th Cir. 2006)

(“Because [the plaintiff] failed to state her grounds for

amending with particularity in her first motion for leave, the

district court did not abuse its discretion in denying Evans’

request for leave to amend.”). Quest also did not tender a

proposed amended complaint for the Court to review. Therefore,

if Quest wants the Court to consider such a request, it may

submit a properly supported motion with a copy of the amended

third-party complaint, no later than twenty-one days from the

entry of this Memorandum Opinion and Order.

III. CONCLUSION

Therefore, after considering the matter fully, and the

Court being sufficiently advised,

IT IS ORDERED that:

(1) The Third-Party Defendants’ motion to dismiss, Doc.

48, be, and is hereby, GRANTED. As indicated above, Dr. Thomas

and Nurse Boerschig are hereby DISMISSED WITHOUT PREJUDICE for

lack of subject matter jurisdiction;

(2) Quest shall submit any motion and amended complaint no

later than twenty-one days from the entry of this Memorandum

Opinion and Order.

This 25th day of September, 2020.

SLY . :

LO Signed By:

AJ) William O. Bertelsman WOR

as" United States District Judge

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