Trinidad v. BioLife Plasma Services LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Claudette Trinidad, No. CV-20-02496-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 BioLife Plasma Services, L.P., 13 Defendant. [15] 16 Pending before the Court is BioLife Plasma Services, L.P.’s (“Defendant”) Motion 17 to Dismiss or Motion for Judgment on the Pleadings (Doc. 23.) For the following reasons, 18 the Court denies the Motion.1 19 BACKGROUND 20 Defendant operates plasma collection facilities, including a plasma donation facility 21 in Tempe, Arizona. (Doc. 20 at 2); (Doc. 23 at 1.) Pursuant to federal law, Defendant is 22 required to test each plasma donation it receives for “evidence of infection due to a relevant 23 transfusion-transmitted infection(s),” including the human immunodeficiency virus 24 (“HIV”). 21 C.F.R. § 610.41 (a) (2016). 25 On July 23, 2020, Plaintiff visited Defendant’s Tempe facility but was informed she 26 would not be able to donate because of “an unspecified issue relating to her blood test 27 1 Defendant’s request for oral argument is denied because the parties have had an adequate opportunity to discuss the law and evidence, and oral argument will not aid the Court’s 28 decision. See Lake at Las Vegas Invrs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724 , 729 (9th Cir. 1991). 1 results.” (Doc. 20 at 2.) On July 31, 2020, Plaintiff received a package from Defendant 2 advising that Plaintiff had tested positive for HIV. After failing to manifest any HIV 3 symptoms for several months, Plaintiff was tested again at Sonoran Quest Laboratories on 4 November 2. (Doc. 20 at 3.) The test came back negative, and this suit followed. 5 DISCUSSION 6 B. Defendant’s Motion to Dismiss for Failure to State a Claim 7 1. Legal Standard 8 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 9 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 10 elements of a cause of action”; it must contain factual allegations sufficient to “raise a right 11 to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 555 12 (2007). When analyzing a complaint for failure to state a claim, “allegations of material 13 fact are taken as true and construed in the light most favorable to the nonmoving party.” 14 Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched 15 as factual allegations are not given a presumption of truthfulness, and “conclusory 16 allegations of law and unwarranted inferences are not sufficient to defeat a motion to 17 dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). 18 2. Did Defendant Owe Plaintiff a Duty to Provide Accurate Test Results? 19 The only duty alleged in the Amended Complaint is “a duty to provide accurate test 20 results, knowing that Plaintiff and her medical providers would rely on said results to care 21 for Plaintiff.” (Doc. 20 at 3.) Defendant argues that no such duty exists, because the 22 informed consent given by Plaintiff prior to her plasma draws, attached as Exhibit B to 23 Defendant’s motion, demonstrates that Plaintiff was aware (1) that her blood would be 24 tested for HIV, (2) that there was “a small possibility of a false positive test result,” and 25 (3) that the screening tests should not be used for health reasons. (Doc. 23-2 at 4.) She 26 nevertheless consented to the blood draw. (Doc. 23-2 at 5.) Defendant further alleges that 27 these same disclaimers and explanations were provided on forms accompanying the results 28 of Plaintiff’s test which were sent back to her and attached as Exhibit A to Defendant’s 1 motion. (Doc. 23 at 3–5.) 2 The gist of Defendant’s motion is that there can be no duty to Plaintiff to provide 3 her with accurate test results when Plaintiff consented to the blood draw both knowing that 4 there was a small possibility of false positive results and acknowledging that screening 5 tests should not be used for health reasons. 6 A. Defendant’s Attached Documents 7 “[E]vidence outside the pleadings . . . cannot normally be considered in deciding a 8 12(b)(6) motion.” Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993). “A 9 court may, however, consider certain materials—documents attached to the complaint, 10 documents incorporated by reference in the complaint, or matters of judicial notice— 11 without converting the motion to dismiss into a motion for summary judgment.” United 12 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see Fed. R. Civ. P. 12(d). “Even if a 13 document is not attached to a complaint, it may be incorporated by reference into a 14 complaint if the plaintiff refers extensively to the document or the document forms the 15 basis of the plaintiff’s claim.” Id. However, “the mere mention of the existence of a 16 document is insufficient to incorporate the contents of a document.” Coto Settlement v. 17 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Moreover, “if the document merely 18 creates a defense to the well-pled allegations in the complaint, then that document did not 19 necessarily form the basis of the complaint.” Khoja v. Orexigen Therapeutics, Inc., 899 20 F.3d 988 , 1002 (9th Cir. 2018). 21 Exhibit A is the UPS package Plaintiff received that contained the false positive test 22 result. (Doc. 23 at 2–3); (Doc. 23-1.) Plaintiff references this package in the Amended 23 Complaint, and she alleges that the false positive test result was “emotionally and 24 spiritually crush[ing].” (Doc. 20 at 3.) The package, therefore, forms the basis of the 25 complaint because it does not merely “create[ ] a defense” but is the very event that 26 allegedly triggered Plaintiff’s entitlement to relief. Khoja, 899 F.3d at 1002. The Court 27 will consider Exhibit A. 28 The Court does not understand, however, how the Defendant might negate any duty 1 it owes to Plaintiff by providing her with her test results and explanations of what the results 2 may or may not mean as it apparently did in Exhibit A. Such actions do not establish the 3 non-existence of a duty. They may establish that any duty owed by Defendant to Plaintiff 4 was fulfilled, but Defendant explicitly disavows making any such argument at this stage of 5 the litigation. (Doc. 27 at 2 n.1.) (“While BioLife would also raise the defense of and 6 argue that even if it did owe a duty, it did not breach that duty, BioLife recognizes that such 7 an argument would be better raised in a motion for summary judgment, and is not arguing 8 ‘no breach’ in its underlying Motion [Doc. No. 23], but reserves it right to such defense.”) 9 Exhibit B is an “Informed Consent for Automated Plasmapheresis” that was 10 allegedly given to Plaintiff on July 16, 2020. (Doc. 23-2.) Plaintiff does not mention this 11 document in the Amended Complaint. The Court understands how an informed consent, 12 signed by the Plaintiff prior to the plasma draw, which acknowledged the possibility of 13 false positive tests and the need not to use the results of such tests for health care 14 purposes—such as the Defendant seeks to introduce through Exhibit B—might limit the 15 scope of any duty Defendant owes to Plaintiff to provide her with accurate results. But the 16 document does not form the basis of a claim—it forms the basis of a defense, which 17 Defendant admits: “[The] forms (Ex. B) are central to Plaintiff’s sole negligence claim as 18 it establishes that no legal duty exists as alleged.” (Doc. 23 at 4.) It can hardly be said that 19 a document that allegedly negates the existence of a claim can form the basis of Plaintiff’s 20 complaint. Therefore, the Court will not consider Exhibit B at this point in the case. 21 To the extent that the Defendant argues, in the absence of Exhibit B, that there could 22 be no duty of reasonable care that might incorporate accurate testing, such an argument 23 fails at this point in the litigation. “To establish a claim for negligence, a plaintiff must 24 prove four elements: (1) a duty requiring the defendant to conform to a certain standard of 25 care; (2) a breach by the defendant of that standard; (3) a causal connection between the 26 defendant's conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, [27] 214 Ariz. 141, 143 , 150 P.3d 228, 230 (2007). “Whether the defendant owes the plaintiff 28 a duty of care is a threshold issue; absent some duty, an action for negligence cannot be 1 maintained.” Id. 2 “Duties of care may arise from special relationships based on contract, family 3 relations, or conduct undertaken by the defendant.” Id. at 145 , 150 P.3d at 232 . “A special 4 or direct relationship, however, is not essential in order for there to be a duty of care.” Id. 5 Public policy, as evidenced through statutes and common law, may also establish a duty of 6 care. Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 232 Ariz. 598, 601 , 307 P.3d 7 1025, 1028 (Ct. App. 2013). Here, Plaintiff does not argue that a special relationship 8 creates a duty of care. Therefore, the Court will consider only whether public policy creates 9 such a duty. 10 The Arizona Supreme Court addressed a similar factual situation as this case in 11 Stanley v. McCarver, 208 Ariz. 219 , 92 P.3d 849 (2004).2 There, the court imposed a duty 12 of care despite the lack of any special relationship between the plaintiff and the defendant. 13 The court based its holding on the fact that the defendant agreed to interpret the plaintiff’s 14 medical records and to accurately report them.3 Id. at 223 , 92 P.3d at 853 . The court noted 15 that “placing oneself in the hands of a medical professional” may establish “a reasonable 16 expectation that the ‘expert will warn of “incidental dangers of which he is cognizant due 17 to his peculiar knowledge of his specialization.”’” Id. (quoting Green v. Walker, 910 F.2d 18 291, 296 (5th Cir. 1990)). Stanley also seemed to address the precise issue in this case: 19 “We do not imagine, . . . that if [the defendant] falsely told the employer that [the plaintiff] 20 2 Plaintiff also argued that Ariz. Rev. Stat. § 32-1481 imposes a statutory duty on Defendant. However, a statute may only establish a duty of care “if it ‘is designed to 21 protect the class of persons, in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation.’” Gilbert Tuscany Lender, 22 LLC, 232 Ariz. at 601 , 307 P.3d at 1028 (quoting Est. of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 253 , 866 P.2d 1330, 1339 (1994)). The Court is doubtful that Plaintiff 23 would be within the class of plaintiffs the statute was intended to protect, especially when Section B of the statute holds donors liable for their own negligence. Clearly, the statute 24 was not intended for Plaintiff’s benefit. 25 3 Although Defendant argues that this case is distinguishable from Stanley because Defendant received no consideration, (Doc. 27 at 6), Stanley’s holding did not rest on 26 whether there was consideration. Stanley, 208 Ariz. at 223–24, 92 P.3d at 853–54 (“Section 324A suggests imposing a duty on one ‘who undertakes, gratuitously or for 27 consideration, to render services to another which he should recognize as necessary for the protection of a third person.’” (emphasis added)). The distinction is especially inapplicable 28 in this case because Defendant was legally obligated not to accept the consideration— Plaintiff’s plasma—once it learned of the positive test result. 21 C.F.R. § 610.41 . 1 had tuberculosis when she did not, thus denying her employment . . . that the absence of a 2 formal doctor-patient relationship would preclude a lawsuit.” Id. at 226 , 92 P.3d at 856 3 n.7. This language seems to suggest that placing oneself in the hands of a medical expert 4 creates a reasonable expectation of accurate results, even if the expert was not consulted 5 “for Plaintiff’s benefit.” (Doc. 27 at 5.) 6 Even if the above suggestion in Stanley does not establish a duty, however, a duty 7 is implied based on Stanley’s analysis itself. The Stanley court considered several factors 8 to determine whether a duty should be implied absent a special relationship. These 9 included, (1) the existence of a formal doctor–patient relationship; (2) the extent of the 10 relationship; (3) the type of tests conducted; (4) whether the defendant was in a unique 11 position to prevent harm; (5) the burden of preventing harm; (6) whether the plaintiff relied 12 upon the [defendant’s] diagnosis or interpretation; (7) the closeness of the connection 13 between the defendant’s conduct and the injury suffered; (8) the degree of certainty that 14 the plaintiff has suffered or will suffer harm; and (9) the skill or special reputation of the 15 actors. Id. at 223 , 92 P.3d at 853 . Applying those factors to this case favors imposing a 16 duty. 17 First, no doctor–patient relationship existed in this case; however, one did not exist 18 in Stanley either. Second, Plaintiff visited Defendant’s facilities at least three times, (Doc. 19 20 at 2), and Defendant—presumably—performed a screening test each time. Although 20 this factor does not weigh strongly in either direction, the relationship in this case seems to 21 be more direct than the one in Stanley, in which the defendant was independently 22 contracted with one of the parties. 208 Ariz. at 220 , 92 P.3d at 850 . Third, Defendant 23 performed screening tests and two confirmatory tests for HIV. (Doc. 23-1 at 7.) These 24 tests, like Stanley, would have made Defendant privy to certain information regarding 25 Plaintiff’s health—although perhaps not to the extent of the defendant in Stanley, who had 26 access to the plaintiff’s “confidential medical record.” 208 Ariz. at 223 , 92 P.3d at 849 . 27 Fourth, Defendant was in a unique position to prevent harm because it was in the exact 28 position as the defendant in Stanley: screening for signs of disease, but not for Plaintiff’s 1 benefit. Fifth, Defendant bore the burden of preventing harm because it held itself out as 2 a “state-of-the-art facility” and was the entity in charge of handling Plaintiff’s testing. 3 (Doc. 20 at 2.) Plaintiff had no control over that process. Sixth, Plaintiff clearly alleges 4 that she relied on Defendant’s diagnosis. (Doc. 20 at 3–4.) Seventh, there was a close 5 connection between Defendant’s false positive test and Plaintiff’s emotional injury; 6 however, the connection is lessened by Plaintiff’s failure to get retested until three months 7 after the false positive result, during which time Plaintiff knew that the confirmatory tests 8 were “negative” and “indeterminate.”4 (Doc. 20 at 3–4); (Doc. 23-1 at 7.) Eighth, it was 9 not certain that Plaintiff would suffer harm from a false positive test result because she 10 could have sought a confirmation test; however, there is likely some chance for harm, 11 especially emotional harm, created by receiving a false HIV diagnosis. And finally, 12 Defendant held itself out as having special skills by purporting to be a “state-of-the-art” 13 facility. (Doc. 20 at 2.) Plaintiff, presumably, would have no special skills as a mere donor. 14 The Fourth, Fifth, Sixth, and Ninth factors clearly weigh for the imposition of a 15 duty, and the Second, Seventh, and Eighth factors tend to weigh for the imposition of a 16 duty, although these are somewhat less clear. Only the First and Third factors clearly weigh 17 against imposing a duty. The great weight of the factors favors imposing a duty and 18 “illuminate[s] the concerns that motivate tort liability” in this case. Stanley, 208 Ariz. at 19 223, 92 P.3d at 853 . Based on the public policy considerations as enumerated in Stanley, 20 the Court holds that Arizona would impose a duty of care on Defendant based on the facts 21 of as pleaded in the Amended Complaint. 22 That Stanley involved a medical malpractice claim instead of an ordinary negligence 23 claim, as alleged here, does not change this result.5 Stanley’s holding was not limited to 24 medical malpractice claims. Although the court focused on the absence of a doctor–patient 25 relationship, it specifically noted that imposing a duty “in these circumstances also 26 4 “When the confirmatory test is reported to be indeterminate, it indicates that the test result was not definitely positive or negative as per manufacturer’s guidelines.” (Doc. 23-1 at 4.) [27] 5 Because this Court has determined that Stanley v. McCarver establishes a duty under the 28 pleaded facts, it does not reach the question of whether a duty also exists under Ariz. Rev. Stat. § 12-561 , which pertains specifically to medical malpractice. 1 comports with the Restatement (Second) of Torts.” Stanley, 208 Ariz. at 223 , 92 P.3d at 2 853 (citing Restatement (Second) of Torts § 324A (Am. L. Inst. 1965)). Thus, even if the 3 court was deciding a medical malpractice claim, it explicitly stated that general tort 4 principles as expounded in the Restatement supported the holding. Id. In addition to citing 5 the Restatement, the court also relied on Prosser’s Handbook of the Law of Torts, again 6 expounding general negligence principles not specific to medical malpractice. Id. at 224, [7] 92 P.3d at 854 (citing William L. Prosser, Handbook of the Law of Torts § 53, at 324). 8 Most tellingly, however, the court did not apply Arizona’s medical malpractice statute to 9 determine the scope of the standard of care; instead, it cited Prosser and referenced the 10 statute in a footnote. Id. at n.5. If the court were limiting itself to only the policies 11 underlying medical malpractice, it would have had no reason to apply Prosser instead of 12 the clearly applicable statute. Therefore, Stanley is not limited to just medical malpractice 13 claims but establishes Arizona’s general public policies toward the imposition of a duty 14 under the specific facts of the case: “[T]he duty emanates from the panoply of social 15 concerns that generally inform tort law”—not just the narrow subset of tort law that is 16 medical malpractice. Id. at 226, 92 P.3d at 856 (emphasis added). 17 Moreover, this Court’s decision is supported by the trend of other state courts. 18 Although Arizona courts are not bound by cases in other states, they are persuasive 19 authority. Hodai v. City of Tucson, 239 Ariz. 34, 42 , 365 P.3d 959 , 967 n.8 (Ct. App. 2016) 20 (“[O]ur courts may look to cases from other jurisdictions as persuasive authority.”); see 21 also Bunker’s Glass Co. v. Pilkington PLC, 202 Ariz. 481, 491 , 47 P.3d 1119, 1129 (Ct. 22 App. 2002 ); HM Hotel Props. v. Peerless Indem. Ins. Co., 874 F. Supp. 2d 850 , 853–54 23 (D. Ariz. 2012) (collecting Arizona cases considering out-of-state decisions). Other states 24 have imposed a duty on laboratories providing test results to third parties, even if not 25 undertaken for the plaintiff’s benefit. See, e.g., Landon v. Kroll Lab’y Specialists, 999 26 N.E.2d 1121 , 1124 (N.Y. 2013) (“Without question, the release of a false positive report 27 will have profound, potentially life-altering, consequences for a test subject.”); 28 Quisenberry v. Compass Vision, Inc., 618 F. Supp. 2d 1223, 1128 (S.D. Cal. 2007) (“[T]he 1 overall trend is for the courts to recognize that a laboratory owes a duty to its test subject, 2 regardless of whether a contractual relationship exists between them.”); Sharpe v. St. 3 Luke’s Hosp., 821 A.2d 1215, 1219 (Pa. 2003) (“[T]he [defendant], in turn, should have 4 realized that any negligence with respect to the handling of the specimen could harm [the 5 plaintiff] . . . .”). The Court therefore holds that in light of both Stanley and the trend in 6 other states, as well as the absence at this point of any consideration of Exhibit B, Plaintiff 7 has alleged sufficient facts to establish some duty. The Court, therefore, declines to 8 determine the scope of the duty of care at this early stage of the litigation. 9 B. Defendant’s Motion for Judgment on the Pleadings 10 Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the 11 pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” The 12 standard governing a Rule 12(c) motion for judgment on the pleadings is “functionally 13 identical” to that governing a Rule 12(b)(6) motion. Dworkin v. Hustler Magazine Inc., [14] 867 F.2d 1188, 1192 (9th Cir. 1989). When analyzing a Rule 12(c) motion, the court must 15 accept the nonmovant’s allegations as true, see Hal Roach Studios v. Richard Feiner & 16 Co., 896 F.2d 1542, 1550 (9th Cir. 1989), and construe factual allegations in a complaint 17 in the light most favorable to the nonmovant. Fleming v. Pickard, 581 F.3d 922, 925 (9th 18 Cir. 2009). “Judgment on the pleadings under Rule 12(c) is proper when the moving party 19 establishes on the face of the pleadings that there is no material issue of fact and that the 20 moving party is entitled to judgment as a matter of law.” Jensen Fam. Farms, Inc. v. 21 Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934 , 937 n.1 (9th Cir. 2011). 22 Because Defendant owed Plaintiff a duty, as explained above, there is a genuine 23 issue of material fact as to whether Defendant breached that duty by providing a false test 24 result. Therefore, Defendant’s Motion for Judgment on the Pleadings is denied. 25 CONCLUSION 26 Because the Court finds Defendant owed Plaintiff a duty, Plaintiff has properly 27 pleaded a claim on which relief may be granted. Defendant’s motions are, therefore, 28 denied. 1 IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss or Motion 2|| for Judgment on the Pleadings (Doc. 23) is DENIED. 3 Dated this 14th day of October, 2021. Wars ) 5 A Whacrsay Sooo) 6 Chief United States District Judge [28] -10-