Cunagin v. Cabell Huntington Hospital, Inc.

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

RONALD CUNAGIN, as father and

next friend of J.C., an infant,

Plaintiff,

v. CIVIL ACTION NO. 3:19-0250

CABELL HUNTINGTON HOSPITAL, INC.,

a West Virginia corporation,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion to Dismiss the Plaintiff’s Amended Complaint

(ECF No. 71) by Defendant Cabell Huntington Hospital, Inc. (Defendant CHH) and a Motion to

File a Surreply by Plaintiff Ronald Cunagin, as father and next friend of J.C., an infant. ECF No.

82.1 For the following reasons, the Court DENIES, in part, and GRANTS, in part, Defendant

CHH’s motion and DENIES Plaintiff’s motion.

I.

FACTUAL ALLEGATIONS

In the Amended Complaint, Plaintiff alleges his infant son J.C. was born

prematurely on July 15, 2017, and he was hospitalized at Defendant CHH. Am. Compl. at ¶¶ 5, 18,

ECF No. 69. While at the facility, J.C. was diagnosed with “‘an acute facture of the right humeral

diaphysis with significant displacement and angulation . . . [and] . . . a [p]alpable deformity of the

1The proposed Sur-Reply is styled as both a Sur-Reply and Motion to Strike. See Motion

to Strike Certain Portions of Defendant’s Reply Brief in Support of Motion to Dismiss and

Plaintiff’s Sur-Reply to said Motion Pending Permission of the Court and Statement Concerning

Argument Motion to Strike, ECF No. 82-1.

right humerus, no lacerations, ecchymosis swelling[.]’” Id. at ¶11 (internal quotation marks

omitted). On August 23, J.C. was transferred to Pikeville Medical Center (PMC) and, four days

later, he was transferred to the University of Kentucky Health Care (UKHC). Id. at ¶5. Shriners

Hospital for Children Medical Center (SHC) also conducted an evaluation of J.C. Id. These three

medical centers diagnosed J.C. with multiple bone fractures. Id. at ¶6. Specifically, Plaintiff states

J.C. had three broken ribs, a broken arm, and broken legs. Id. at ¶8. J.C. was discharged to his

parents’ care on September 10, 2017. Id. at ¶5.

According to Plaintiff, the fractures were ruled non-accidental trauma and all

occurred while J.C. was a patient in either the Neo-Natal Intensive Care Unit (NICU) or the Neo-

Natal Therapeutic Unit (NTU) of Defendant CHH. Id. at ¶5. As J.C. and his parents are residents

of Kentucky, the abuse was investigated by the Kentucky Cabinet for Health and Family Services

(the Cabinet). Id. at ¶¶7, 8. After conducting interviews, the Cabinet found “‘[t]he only people that

had access to the child without supervision were the medical staff (unknown perp) leading the

Cabinet to believe that an unknown person caused deliberate harm to the child’” while he was

hospitalized at CHH. Id. at ¶7. The Cabinet concluded the perpetrator(s) was/were allowed by

Defendant CHH to enter the NICU and NTU and inflict deliberate harm on the child. Id. at ¶8.

Specifically, the Cabinet found “the parents never had the opportunity to have injured their child

and they did not injure him[.]” Id. Additionally, the Cabinet stated that testing did not reveal any

genetic or metabolic bone abnormality. Id.

Plaintiff maintains that J.C.’s injuries in no way occurred as or during medical

treatment, and do not fall within the definition of “healthcare” contained in West Virginia Code

§ 55-7B-2(e) (2017). Id. at ¶¶13, 14. Instead, Plaintiff alleges that Defendant CHH tortiously

permitted someone to have access to J.C. and that person intentionally committed child abuse in

violation of West Virginia Code § 61-8D-3 (2014). Id. at ¶¶15, 16; see W. Va. Code § 61-8D-3

(establishing the criminal penalties under West Virginia law for acts of child abuse resulting in

injury). Plaintiff alleges the lack of reasonable safety measures on the premises violated Defendant

CHH’s duty, as “the custodial entity,” to protect J.C. Id. at ¶25. Plaintiff claims such conduct was

so atrocious, intolerable, extreme, reckless, and outrageous, exceeding all bounds of decency, that

it establishes a claim for a Tort of Outrage (Count I). Id. at ¶¶25, 26.

In Count II, Plaintiff also alleges Defendant CHH knew or should have known it

was necessary to establish and enforce security measures, with proper supervision, to “provide a

reasonably safe place for J.C.” while hospitalized. Id. at ¶28. Despite foreseeable and preventable

harm, Plaintiff contends Defendant CHH negligently performed these duties and, as a result, J.C.

suffered serious and permanent non-accidental traumatic injuries. Id. at ¶¶28-30. Therefore, in

Count II, Plaintiff asserts a claim of Negligent Supervision and Premises Liability against

Defendant CHH.

Turning to Counts III and IV, Plaintiff alleges related claims involving spoliation

of evidence. In Count III, Plaintiff makes a claim of Negligent Spoliation of Evidence, and in

Count IV, he makes a claim for Intentional Spoliation of Evidence. With respect to these counts,

Plaintiff states that Defendant CHH had actual knowledge of J.C.’s fractured leg, but it failed to

report the abuse as required by West Virginia law to the appropriate governmental and law

enforcement agencies and covered up the abuse. Id. at ¶¶32, 33; see W. Va. Code § 49-2-803

(2015) (stating, in part, “[a]ny medical . . . professional . . . who has reasonable cause to suspect

that a child is . . . abused, . . . shall immediately, and not more than forty-eight hours after

suspecting this abuse . . ., report the circumstances or cause a report to be made to the Department

of Health and Human Resources. In any case where the reporter believes that the child suffered

serious physical abuse . . ., the reporter shall also immediately report, or cause a report to be made,

to the State Police and any law-enforcement agency having jurisdiction to investigate the

complaint”).2 Plaintiff asserts Defendant CHH refuses to provide Plaintiff with video or digital

images and information about surveillance and security at the NICU and NTU. Id. at ¶36. “To the

extent the evidence in the control of CHH is not available or has been lost, discarded or destroyed,

[Plaintiff claims] Defendant CHH is guilty of negligent spoliation of evidence” and/or “intentional

spoliation of evidence.” Id. at ¶¶37, 39.

In Count V, Plaintiff invokes the doctrine of res ipsa loquitur.3 Plaintiff asserts

Defendant CHH negligently “fail[ed] to supervise or enforce security for the infant J.C. . . . and

2In his Amended Complaint, Plaintiff cites West Virginia Code § 49-6A-2. Am. Compl. at

¶22. However, this section was amended and reenacted as West Virginia Code § 49-2-803 in 2015.

This section was amended again in 2018 but, as the events of this case occurred in 2017, the June

12, 2015 version applies.

3The West Virginia Supreme Court has held that, under the doctrine of res ipsa loquitur,

“it may be inferred that harm suffered by the plaintiff is

caused by negligence of the defendant when (a) the event is

of a kind which ordinarily does not occur in the absence of

negligence; (b) other responsible causes, including the

conduct of the plaintiff and third persons, are sufficiently

eliminated by the evidence; and (c) the indicated negligence

is within the scope of the defendant's duty to the plaintiff.”

Syl. Pt. 3, Dickens v. Sahley Realty Co., 756 S.E.2d 484 (W. Va. 2014) (quoting Syl. Pt. 4, Foster

v. City of Keyser, 501 S.E.2d 165 (W. Va. 1997)). To have the doctrine apply to avoid summary

fail[ed] to provide J.C. with a reasonably safe premise[, which was] solely within the scope of

defendant’s duty to provide, supervise and enforce security for infant J.C.” Id. at ¶¶ 41, 42(b), (c).

Plaintiff maintains this negligence resulted in J.C.’s harm. Id. at ¶41.4

In its motion, Defendant CHH argues Plaintiff’s claims arise under the West

Virginia Medical Professional Liability Act (MPLA), West Virginia Code § 55-7B-1 et seq., but

Plaintiff did not comply with the statutory requirements. As a result, Defendant CHH contends

Plaintiff has failed to state a claim under Rule 12(b)(6) and this Court lacks jurisdiction under Rule

12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff insists, however, the MPLA is irrelevant

to his claims.

II.

STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure raises the fundamental question of whether a court is competent to hear and adjudicate

the claims brought before it. It is axiomatic that a court must have subject matter jurisdiction over

a controversy before it can render any decision on the merits. Challenges to jurisdiction under Rule

12(b)(1) may be raised in two distinct ways: “facial attacks” and “factual attacks.” Thigpen v.

United States, 800 F.2d 393, 401 n.15 (4th Cir.1986) (Murnaghan, CJ, concurring), rejected on

other grounds, Sheridan v. United States, 487 U.S. 392 (1988). A “facial attack” questions whether

judgment, all three prongs of this test must be met. Syl. Pt. 4, in part, id. (citation omitted).

Additionally, “[t]he doctrine applies only in cases where defendant’s negligence is the only

inference that can reasonably and legitimately be drawn from the circumstances.” Syl. Pt. 5, in

part, id. (emphasis original; internal quotation marks and citations omitted).

4Plaintiff has two additional counts in the Amended Complaint. In Count VI he requests

compensatory damages, and in Count VII he requests for punitive damages.

the allegations in the complaint are sufficient to sustain the court’s jurisdiction. Id. When, as here,

a party makes a “facial attack,” the court must accept the allegations in the complaint as true and

decide if the complaint is sufficient to confer subject matter jurisdiction. Id.5

Under Rule 12(b)(6), the Court also must look for “plausibility” in the complaint.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard requires a plaintiff to set

forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotation

marks and citations omitted). Accepting the factual allegations in the complaint as true (even when

doubtful), the allegations “must be enough to raise a right to relief above the speculative level[.]”

Id. (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a

claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum

expenditure of time and money by the parties and the court.” Id. at 558 (internal quotation marks

and citations omitted).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained that,

although factual allegations in a complaint must be accepted as true for purposes of a motion to

5On the other hand, a “factual attack” challenges the truthfulness of the factual allegations

in the complaint upon which subject matter jurisdiction is based. In this situation, a “district court

is to regard the pleadings’ allegations as mere evidence on the issue, and may consider evidence

outside the pleadings without converting the proceeding to one for summary judgment.”

Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991)

(citing Adams v. Bain, 697 F.2d 1213,1219 (4th Cir. 1982); Trentacosta v. Frontier Pac. Aircraft

Indus., 813 F.2d 1553, 1558 (9th Cir.1987)). To prevent dismissal, “the nonmoving party must set

forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id.

(citations omitted). A dismissal only should be granted in those instances in which “the material

jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.”

Id. (citations omitted).

dismiss, this tenet does not apply to legal conclusions. 556 U.S. at 678. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

(citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a

context-specific analysis, drawing upon the court’s own judicial experience and common sense.

Id. at 679. “While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Id.

III.

DISCUSSION

Pursuant to the MPLA, a medical professional liability action ordinarily may not

be filed against “any health care provider” unless a plaintiff first timely and properly serves the

health care provider with a screening certificate of merit. W. Va. Code § 55-7B-6(a), (b).6 A failure

to provide the required notices under the MPLA deprives a court of subject matter jurisdiction. See

Syl. Pt. 2, State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 835 S.E.2d 579 (W. Va. 2019)

(“The pre-suit notice requirements contained in the [MPLA] are jurisdictional, and failure to

provide such notice deprives a circuit court of subject matter jurisdiction.”). In this case, Defendant

CHH argues Plaintiff’s allegations of negligent supervision and premise liability are encompassed

within the rendering of health care under the Act. As such, Defendant CHH asserts it is entitled to

the protections of the MPLA, including pre-litigation notices before suit can be filed against it. As

it is undisputed that Plaintiff did not provide such notices, Defendant CHH contends the case must

be dismissed.

6There is an exception in subparagraph (c) where it is believed “no screening certificate of

merit is necessary because the cause of action is based upon a well-established legal theory of

liability which does not require expert testimony supporting a breach of the applicable standard of

care[.]” W. Va. Code § 55-7B-6(c), in part.

On the other hand, Plaintiff argues that he did not have to provide Defendant CHH

a screening certificate of merit because the core allegations in the Amended Complaint do not arise

under the MPLA. Instead, his core allegations are that Defendant CHH failed to fulfill its duty to

provide J.C. a safe environment due to lapses in security at the facility. Plaintiff insists he has made

no allegation in the Amended Complaint that Defendant CHH breached a duty related to the

medical treatment J.C. received and, thus, the MPLA simply does not apply.

Defendant CHH disagrees and maintains the MPLA is interpreted broadly and, as

such, encompasses Plaintiff’s claims. In support of its position, Defendant CHH cites Minnich v.

MedExpress Urgent Care, Inc., 796 S.E.2d 642 (W. Va. 2017), and Faircloth. Upon review,

however, the Court finds Minnich and Faircloth clearly are distinguishable from the present case.

In Minnich, the plaintiff’s husband sought medical care at a MedExpress, a health

care provider under the Act. 796 S.E.2d at 643-44. Once at the facility, a medical assistant,

employed by MedExpress, spoke with the plaintiff and her husband to evaluate his condition in a

triage area. Id. at 644. According to the plaintiff, they told the medical assistant that Mr. Minnich

recently had hip surgery and had just started walking without assistance. Id. Thereafter, the medical

assistant escorted the couple to an examination room, where she reportedly told Mr. Minnich to sit

on an examination table. Id. After the medical assistant left the room, Mr. Minnich attempted to

get on the table by using the table’s retractable step, but he fell into the plaintiff causing them both

to be injured. Id. Mr. Minnich ultimately died, which the plaintiff attributed to his fall. Id. at n.9.

The plaintiff then filed claims against MedExpress for premise liability, loss of

consortium, and wrongful death. Id. On summary judgment, the circuit court found the plaintiff’s

premise liability theory was really a medical malpractice claim. Thus, the court held she had to

comply with the notice requirements of the MPLA. Id.

On appeal, the West Virginia Supreme Court found the medical assistant was a

“health care provider” under the MPLA because she was an employee of a health care facility and

acted within the scope of her employment. Id. at 645-46. However, the inquiry did not end there.

The West Virginia Supreme Court also considered whether the medical assistant was providing

“health care” within the meaning of the MPLA. To this point, the Court rejected the plaintiff’s

argument her husband had not received any health care services prior to his fall, finding the intake

procedures of gathering medical history and taking vital signs are integral components of health

care. Id. at 647. Additionally, Mr. Minnich’s fall occurred during the course of his evaluation and

on medical equipment that “was necessarily part of the health care services MedExpress undertook

to provide Mr. Minnich.” Id. Moreover, the Court found expert testimony would be necessary

because the plaintiff specifically raised the issue of whether the medical assistant acted within the

standard of care in rendering health care, having been aware of Mr. Minnich’s ambulatory

restrictions, yet not assisting him onto the examination table. Id. Given the manner in which the

plaintiff pled her case, the Court agreed with the circuit court that the MPLA controlled the claim.

Id. at 648.

In Faircloth, an inmate at the Eastern Regional Jail and Corrections Facility

committed suicide. 242 S.E.2d at 583. Thereafter, the Estate brought an action against a

correctional officer, the West Virginia Regional Jail and Correctional Facility Authority (the

Regional Jail Authority), and PrimeCare Medical of West Virginia, Inc. (PrimeCare). Id. at 582.7

In part, the Estate alleged “Defendants knew or should have known [the deceased] was addicted

to heroin and a possible suicide risk.” Id. at 583 (emphasis added in Faircloth; internal quotation

marks omitted). The Estate also alleged, in part, that PrimeCare and the Regional Jail Authority

acted in concert with one another to provide medical screening and monitoring of inmates at the

facility, and they failed to supervise and properly train the defendant correctional officer. Id.

Additionally, the Estate claimed PrimeCare and the Regional Jail Authority failed to intervene on

the deceased’s behalf, were deliberately indifferent to him, and allowed him to commit suicide

while he was in protective custody. Id.8 PrimeCare moved to dismiss the claims, in part, because

the Estate did not comply with the MPLA.

Upon order of the circuit court, the Estate filed a notice of claim, but it maintained

it did not need to file a screening certificate of merit because “its theory of liability was well-

established” and expert testimony was unnecessary to set forth the standard of care. Id. at 584.

PrimeCare objected, but the circuit court denied its motion to dismiss. Id.

On appeal, the West Virginia Supreme Court determined the Estate’s claims against

PrimeCare were based upon “health care services rendered, or which should have been rendered,

7PrimeCare was added in an amended complaint. Id.

8There also were claims for negligent retention, firing, and staffing. Id. The West Virginia

Supreme Court noted it was unclear whether the inmate was on suicide watch when he took his

life. Id. at n.3.

by a health care provider or health care facility to a patient,” amounting to a “medical professional

liability” action. Id. at 587 (citing W. Va. Code § 55-7B-2(i) (2015) (internal quotation marks

omitted).9 Specifically, the Court noted that the phrase “medical professional liability” includes

“other claims that may be contemporaneous to or related to the alleged tort or breach of contract

or otherwise provided, all in the context of rendering health care services.” Id. at 586 (quoting

W. Va. Code § 55-7B-2(i), in part; emphasis added in Faircloth; footnote omitted). Additionally,

the Court recognized that the phrase “health care” is defined under the statute as:

“(1) Any act, service or treatment provided under, pursuant to or in

the furtherance of a physician's plan of care, a health care facility's

plan of care, medical diagnosis or treatment;

(2) Any act, service or treatment performed or furnished, or which

should have been performed or furnished, by any health care

provider or person supervised by or acting under the direction of a

health care provider or licensed professional for, to or on behalf of

a patient during the patient's medical care, treatment or confinement,

including, but not limited to, staffing, medical transport, custodial

care or basic care, infection control, positioning, hydration, nutrition

and similar patient services; and

(3) The process employed by health care providers and health care

facilities for the appointment, employment, contracting,

credentialing, privileging and supervision of health care providers.”

9West Virginia Code § 55-7B-2 was amended in 2017, and added a subsection defining the

word “occurrence” as including:

any and all injuries to a patient arising from health care rendered by

a health care facility or a health care provider and includes any

continuing, additional or follow-up care provided to that patient for

reasons relating to the original health care provided, regardless if the

injuries arise during a single date or multiple dates of treatment,

single or multiple patient encounters, or a single admission or a

series of admissions.

W. Va. Code § 55-7B-2(l) (2017). Other than stylistic changes, the remainder of West Virginia

Code § 55-7B-2 was unchanged.

Id. (quoting W. Va. Code § 55-7B-2(e); emphasis added in Faircloth). Moreover, a “health care

facility” includes “‘any state-operated institution or clinic providing health care’” and a “health

care provider” is

“any person taking actions or providing service or treatment

providing service or treatment pursuant to or in furtherance of a

physician’s plan of care, a health care facility’s plan of care,

medical diagnosis or treatment; or a health care provider acting in

the course and scope of the officer’s, employee’s or agent’s

employment.”

Id. at 586-87 (quoting W. Va. Code § 55-7B-2(g), in part; emphasis added in Faircloth).

In considering the allegations against PrimeCare, the Court found there were three

basic claims. One was failing to assess the decedent’s risk of suicide. Two was its failure to monitor

and house the decedent based upon PrimeCare’s alleged knowledge of the decedent’s risk. Three

was its failure to “train, monitor, and discipline” the defendant correctional officer to monitor the

decedent. Given that these allegations fit within the statutory definition of “health care” and “were

‘health care services rendered, or which should have been rendered, by a health care provider or

health care facility to a patient[,]’” the West Virginia Supreme Court held the MPLA applied, the

Estate failed to comply with the pre-suit notice requirements, and the circuit court lacked subject

matter jurisdiction. Id. at 587, 589 (quoting, in part, W. Va. Code § 55-7B-2(i), in part; emphasis

added in Faircloth).

Defendant CHH maintains that in both Minnich and Faircloth the phrase “health

care” was applied broadly to acts beyond medical treatment and it was recognized the phrase

“health care providers” statutorily includes employees and agents of the health care facilities.

Additionally, Defendant CHH states that Faircloth establishes that employees, such as security

guards, who are responsible for the safety and security of premises, are “health care providers”

under the MPLA. Therefore, Defendant CHH argues Plaintiff’s claim arise under the MPLA.

Though written broadly, the MPLA is nonetheless applicable only in the context of

“health care” and not intended to preempt every conceivable claim which might occur between a

patient and a medical provider that is unrelated to health care. The legislative findings set forth in

West Virginia Code § 55-7B-1 (2015) of the MPLA address a crisis in West Virginia’s common

law medical malpractice arena, balancing the interests of medical care and health care providers

with those of patients injured as a result of negligent acts by health care providers. Throughout the

relevant definition in West Virginia Code § 55-7B-2(e) of “health care,” the language tethers the

Act’s protections to those providing health care and medical services, and not just to a physical

location like a hospital or to the conduct of every employee including those not involved in health

care. For instance, subsection (2) lists “but not limited to, staffing, medical transport, custodial

care or basic care, infection control, positioning, hydration, nutrition and similar patient services,”

all matters relating to health care or medical conditions. It does not purport to cover premises

liability, such as an unattended slippery floor, an unsecured handrail, or negligent security guard.

Further, it is clear that, in both Minnich and Faircloth, the West Virginia Supreme

Court applied the statutes in light of the specific allegations made by the plaintiffs in those cases.

In both cases, the alleged tortious acts occurred within the scope of an “act, service or treatment

provided under, pursuant to or in the furtherance of a . . . a health care facility's plan of care,

medical diagnosis or treatment.” W. Va. Code § 55-7B-2(e), in part. In Minnich, the Court found

the decedent fell during the course of medical treatment and on equipment that “was necessarily

part of the health care services MedExpress undertook to provide” him. 796 S.E.2d at 647. In

Faircloth, the claim related to the correctional officer was based on PrimeCare’s alleged “failure

to train, monitor, and discipline” the officer with regard to monitoring the decedent’s medical

condition, that is, his risk of suicide. The guard’s monitoring of the suicide risk was integral to the

medical care. It was not a claim, as here, that a lapse in security resulted in an assault. Instead, in

this case, the Court finds Plaintiff narrowly drafted the core allegations of his Amended Complaint

to avoid claims arising under the Act.

Additionally, given these allegations, requiring Plaintiff to comply with the

screening certificate of merit under the MPLA would be nonsensical. Under the MPLA as it existed

when this action was filed, the certificate of merit must

be executed under oath by a health care provider qualified as an

expert under the West Virginia rules of evidence and shall state with

particularity: (1) The expert’s familiarity with the applicable

standard of care in issue; (2) the expert’s qualifications; (3) the

expert's opinion as to how the applicable standard of care was

breached; and (4) the expert’s opinion as to how the breach of the

applicable standard of care resulted in injury or death.

W. Va. Code § 55-7B-6(b) (2017), in part.10 The “standard of care and a defendant’s failure to

meet the standard of care” under the MPLA further must

be established . . . by testimony of . . . knowledgeable, competent

expert witnesses if required by the court. A proposed expert witness

may only be found competent to testify if the foundation for his or

her testimony is first laid establishing that: (1) The opinion is

actually held by the expert witness; (2) the opinion can be testified

to with reasonable medical probability; (3) the expert witness

possesses professional knowledge and expertise coupled with

knowledge of the applicable standard of care to which his or her

expert opinion testimony is addressed; (4) the expert witness’s

10This version of the statute was effective from June 29, 2017 to May 28, 2019.

opinion is grounded on scientifically valid peer-reviewed studies if

available; (5) the expert witness maintains a current license to

practice medicine with the appropriate licensing authority of any

state of the United States: Provided, That the expert witness’s

license has not been revoked or suspended in the past year in any

state; and (6) the expert witness is engaged or qualified in a medical

field in which the practitioner has experience and/or training in

diagnosing or treating injuries or conditions similar to those of the

patient. If the witness meets all of these qualifications and devoted,

at the time of the medical injury, sixty percent of his or her

professional time annually to the active clinical practice in his or her

medical field or specialty, or to teaching in his or her medical field

or specialty in an accredited university, there shall be a rebuttable

presumption that the witness is qualified as an expert.

W. Va. Code § 55-7B-7(a) (2015) (emphasis added). Clearly, those requirements focus on medical

doctors, and it would be absurd (if not impossible) to have a licensed physician opine to a

“reasonable medical probability” as to sufficiency of a security system. Although Defendant CHH

states that Plaintiff has disclosed a “‘Certified Healthcare Safety Professional’ to offer healthcare

safety opinions,”11 and an orthopedic surgeon, those disclosures do not create a claim arising

under the MPLA. Presumably, Plaintiff made those designations to meet its burden of proof on the

claims it has raised, which the Court finds are outside of the MPLA.

Defendant CHH next argues the Amended Complaint should be dismissed because,

as the West Virginia Supreme Court said in Strahin v. Cleavenger, 603 S.E.2d 197 (W. Va. 2004),

“[g]enerally, owners or occupiers of land have no duty to protect visitors to their property from

the deliberate criminal conduct of third parties ‘because the foreseeability of risk is slight, and

because of the social and economic consequences of placing such a duty on a person.’” 603 S.E.2d

at 205 (quoting Miller v. Whitworth, 455 S.E.2d 821, 825 (1995)). “This rule holds whether the

11Def.’s Reply in Supp. of Mot. to Dismiss the Pl.’s Am. Compl., at 7.

person injured by the third party is a social guest, a tenant, an occupant, or a business invitee.”

Scott v. Taco Bell Corp., 892 F. Supp. 142, (S.D. W. Va. 1995). However, there are exceptions to

this general rule, which include:

(1) when a person has a special relationship which gives rise to a

duty to protect another person from intentional misconduct or (2)

when the person’s affirmative actions or omissions have exposed

another to a foreseeable high risk of harm from the intentional

misconduct. Restatement (Second) of Torts §§ 302B cmt. e and 315

(1965).

Strahin, 603 S.E.2d at 205 (emphasis added in Strahin; quoting Miller).

In Miller, the West Virginia Supreme Court cited with approval the Restatement

(Second) of Torts § 314A (1965), which identifies certain entities, by their status alone, that have

a special relationship giving rise to a duty to protect. 455 S.E.2d at 825 n.4; see also Doe v. Wal-

Mart Stores, Inc., 479 S.E.2d 610 (W. Va. 1996) (per curiam) (discussing Miller’s approval of the

Restatement). As relevant here, two of the situations identified in the Restatement that give rise to

a special relationship include “[a] possessor of land who holds it open to the public is under a

similar duty to members of the public who enter a response to invitation” and “[o]ne who is

required by law to take or who voluntarily takes the custody of another under circumstances such

as to deprive the other of his normal opportunities for protection is under a similar duty to the

other.” Id. With respect to whether a landlord may be held liable for criminal activity, the West

Virginia Supreme Court explained in Miller that, although general knowledge of criminal activity

is not alone enough to impose a duty, the facts must be considered on a case-by-cases basis and “a

duty will be imposed if a landlord’s affirmative actions or omissions have unreasonably created or

increased the risk of injury to the tenant from the criminal activity of a third party.” Syl. Pt. 6, in

part, Miller. In Doe, the West Virginia Supreme Court further relied upon the Restatement and

said that, “[u]nlike a landlord, a possessor of land who holds the land open to members of the

public to enter in response to his invitation, by virtue of his status alone, does have a duty to protect

persons on the premises from criminal activity of their parties.” 479 S.E.2d at 616.

In light of these pronouncements, Plaintiff argues that the hospital in this case had

a duty to protect J.C. from intentional misconduct because it had a special relationship with him

as contemplated in Miller, Doe, and the Restatement. Specifically, Plaintiff alleges in the Amended

Complaint that the hospital had a custodial relationship with J.C., a hapless infant, and “voluntarily

or otherwise assumed a duty to provide for [his] protection and safety[.]” Am. Compl. at ¶25, in

part. Plaintiff also contends a special relationship was formed because Defendant CHH, as owner

of the premises, invited the public, including J.C., to use its services. Additionally, Plaintiff

contends that Defendant CHH’s security lapses exposed him to a foreseeable high risk of harm

from the intentional misconduct. Upon consideration, the Court finds that these allegations and

arguments that a special relationship existed creating a duty that was breached are sufficient to

survive Defendant CHH’s Rule 12(b)(6) challenge.

Defendant CHH next argues that Plaintiff’s claim of Tort of Outrage fails as a

matter of law. In order to establish outrage under West Virginia law, a plaintiff must show:

(1) that the defendant’s conduct was atrocious, intolerable,

and so extreme and outrageous as to exceed the bounds of

decency; (2) that the defendant acted with the intent to inflict

emotional distress, or acted recklessly when it was certain or

substantially certain emotional distress would result from his

conduct; (3) that the actions of the defendant caused the

plaintiff to suffer emotional distress; and, (4) that the

emotional distress suffered by the plaintiff was so severe that

no reasonable person could be expected to endure it.

Syl. Pt. 3, in part, Travis v. Alcon Labs., Inc., 504 S.E.2d 419 (W. Va. 1998) (referring to a claim

for intentional or reckless infliction of emotional distress, also known as a tort of outrage). The

Travis court further explained a claim requires conduct that is “‘more than unreasonable, unkind

or unfair; it must truly offend community notions of acceptable conduct.’” Id. at 425 (citation

omitted). “Whether conduct may reasonably be considered outrageous is a legal question,” Syl. Pt.

4., id., which courts determine on a “case-by-case basis.” Hines v. Hills Dep't Stores, Inc., 454

S.E.2d 385, 390 (W. Va. 1994) (citing Restatement (Second) of Torts § 46).

Here the Amended Complaint alleges that Defendant CHH breached its duty to

protect J.C., an infant in its care, and J.C. suffered intentional abuse and multiple broken bones

from the criminal acts of an individual or individuals who had access to him as a result of the

breach. Additionally, Plaintiff asserts Defendant CHH knew or should have known that its failure

to properly establish, enforce, and supervise security measures would result in harm. This Court

has no difficulty finding these allegations are sufficient under Travis to allege a tort of outrage.

Therefore, the Court denies Defendant CHH’s motion to dismiss this claim.

Lastly, Defendant CHH seeks to dismiss Plaintiff’s Count V for Res Ipsa Loquitor

because it is an evidentiary rule, not a separate cause of action. See Crum v. Equity Inns, Inc., 685

S.E.2d 219, 229 (2009) (“It is well established that the principle of res ipsa loquitur does not create

a cause of action. It is, rather, an evidentiary principle[.]”); McClenathan v. Rhone-Poulenc, Inc.,

926 F. Supp. 1272, 1281 (S.D. W. Va. 1996) (res ipsa loquitur “does not constitute independent

cause of action”). Upon review, the Court agrees. Therefore, the Court GRANTS Defendant

CHH’s motion and DISMISSES Count V.

IV.

CONCLUSION

Accordingly, for the foregoing reasons, the Court GRANTS Defendant CHH’s

motion with respect to Count V, but DENIES the remainder of the motion. Plaintiff also filed a

Motion to File a Sur-Reply, which includes a Motion to Strike Certain Portions of Defendant’s

Reply. ECF No. 82. Although Defendant CHH’s Reply does contain information that is irrelevant

to its motion to dismiss, the Court ignored that information and finds it would be confusing to

strike portions of the Reply or have Defendant CHH file a revised Reply at this time. The Court

also finds a Sur-Reply unnecessary. Therefore, the Court DENIES Plaintiff's motion.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented parties.

ENTER: October 22, 2020

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ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

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