# Deane v. Quest Diagnostics LLC

> District Court, S.D. Ohio · September 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10376530

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10376530

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376530. Public record. Not legal advice.