Trinidad v. BioLife Plasma Services LLC

Opinion

WO

Claudette Trinidad, No. CV-20-02496-PHX-GMS

Plaintiff, ORDER

v.

BioLife Plasma Services, L.P.,

Defendant. Pending before the Court is BioLife Plasma Services, L.P.’s (“Defendant”) Motion to Dismiss or Motion for Judgment on the Pleadings (Doc. 23.) For the following reasons, the Court denies the Motion.1 Defendant operates plasma collection facilities, including a plasma donation facility in Tempe, Arizona. (Doc. 20 at 2); (Doc. 23 at 1.) Pursuant to federal law, Defendant is required to test each plasma donation it receives for “evidence of infection due to a relevant transfusion-transmitted infection(s),” including the human immunodeficiency virus (“HIV”). 21 C.F.R. § 610.41(a) (2016). On July 23, 2020, Plaintiff visited Defendant’s Tempe facility but was informed she would not be able to donate because of “an unspecified issue relating to her blood test

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 decision. See Lake at Las Vegas Invrs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991). results.” (Doc. 20 at 2.) On July 31, 2020, Plaintiff received a package from Defendant advising that Plaintiff had tested positive for HIV. After failing to manifest any HIV symptoms for several months, Plaintiff was tested again at Sonoran Quest Laboratories on November 2. (Doc. 20 at 3.) The test came back negative, and this suit followed. B. Defendant’s Motion to Dismiss for Failure to State a Claim 1. Legal Standard To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When analyzing a complaint for failure to state a claim, “allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). 2. Did Defendant Owe Plaintiff a Duty to Provide Accurate Test Results? The only duty alleged in the Amended Complaint is “a duty to provide accurate test results, knowing that Plaintiff and her medical providers would rely on said results to care for Plaintiff.” (Doc. 20 at 3.) Defendant argues that no such duty exists, because the informed consent given by Plaintiff prior to her plasma draws, attached as Exhibit B to Defendant’s motion, demonstrates that Plaintiff was aware (1) that her blood would be tested for HIV, (2) that there was “a small possibility of a false positive test result,” and (3) that the screening tests should not be used for health reasons. (Doc. 23-2 at 4.) She nevertheless consented to the blood draw. (Doc. 23-2 at 5.) Defendant further alleges that these same disclaimers and explanations were provided on forms accompanying the results of Plaintiff’s test which were sent back to her and attached as Exhibit A to Defendant’s motion. (Doc. 23 at 3–5.) The gist of Defendant’s motion is that there can be no duty to Plaintiff to provide her with accurate test results when Plaintiff consented to the blood draw both knowing that there was a small possibility of false positive results and acknowledging that screening tests should not be used for health reasons. A. Defendant’s Attached Documents “[E]vidence outside the pleadings . . . cannot normally be considered in deciding a 12(b)(6) motion.” Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993). “A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice— without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see Fed. R. Civ. P. 12(d). “Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s claim.” Id. However, “the mere mention of the existence of a document is insufficient to incorporate the contents of a document.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Moreover, “if the document merely creates a defense to the well-pled allegations in the complaint, then that document did not necessarily form the basis of the complaint.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). Exhibit A is the UPS package Plaintiff received that contained the false positive test result. (Doc. 23 at 2–3); (Doc. 23-1.) Plaintiff references this package in the Amended Complaint, and she alleges that the false positive test result was “emotionally and spiritually crush[ing].” (Doc. 20 at 3.) The package, therefore, forms the basis of the complaint because it does not merely “create[ ] a defense” but is the very event that allegedly triggered Plaintiff’s entitlement to relief. Khoja, 899 F.3d at 1002. The Court will consider Exhibit A. The Court does not understand, however, how the Defendant might negate any duty it owes to Plaintiff by providing her with her test results and explanations of what the results may or may not mean as it apparently did in Exhibit A. Such actions do not establish the non-existence of a duty. They may establish that any duty owed by Defendant to Plaintiff was fulfilled, but Defendant explicitly disavows making any such argument at this stage of the litigation. (Doc. 27 at 2 n.1.) (“While BioLife would also raise the defense of and argue that even if it did owe a duty, it did not breach that duty, BioLife recognizes that such an argument would be better raised in a motion for summary judgment, and is not arguing ‘no breach’ in its underlying Motion [Doc. No. 23], but reserves it right to such defense.”) Exhibit B is an “Informed Consent for Automated Plasmapheresis” that was allegedly given to Plaintiff on July 16, 2020. (Doc. 23-2.) Plaintiff does not mention this document in the Amended Complaint. The Court understands how an informed consent, signed by the Plaintiff prior to the plasma draw, which acknowledged the possibility of false positive tests and the need not to use the results of such tests for health care purposes—such as the Defendant seeks to introduce through Exhibit B—might limit the scope of any duty Defendant owes to Plaintiff to provide her with accurate results. But the document does not form the basis of a claim—it forms the basis of a defense, which Defendant admits: “[The] forms (Ex. B) are central to Plaintiff’s sole negligence claim as it establishes that no legal duty exists as alleged.” (Doc. 23 at 4.) It can hardly be said that a document that allegedly negates the existence of a claim can form the basis of Plaintiff’s complaint. Therefore, the Court will not consider Exhibit B at this point in the case. To the extent that the Defendant argues, in the absence of Exhibit B, that there could be no duty of reasonable care that might incorporate accurate testing, such an argument fails at this point in the litigation. “To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, 150 P.3d 228, 230 (2007). “Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained.” Id. “Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant.” Id. at 145, 150 P.3d at 232. “A special or direct relationship, however, is not essential in order for there to be a duty of care.” Id. Public policy, as evidenced through statutes and common law, may also establish a duty of care. Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 232 Ariz. 598, 601, 307 P.3d 1025, 1028 (Ct. App. 2013). Here, Plaintiff does not argue that a special relationship creates a duty of care. Therefore, the Court will consider only whether public policy creates such a duty. The Arizona Supreme Court addressed a similar factual situation as this case in Stanley v. McCarver, 208 Ariz. 219, 92 P.3d 849 (2004).2 There, the court imposed a duty of care despite the lack of any special relationship between the plaintiff and the defendant. The court based its holding on the fact that the defendant agreed to interpret the plaintiff’s medical records and to accurately report them.3 Id. at 223, 92 P.3d at 853. The court noted that “placing oneself in the hands of a medical professional” may establish “a reasonable expectation that the ‘expert will warn of “incidental dangers of which he is cognizant due to his peculiar knowledge of his specialization.”’” Id. (quoting Green v. Walker, 910 F.2d 291, 296 (5th Cir. 1990)). Stanley also seemed to address the precise issue in this case: “We do not imagine, . . . that if [the defendant] falsely told the employer that [the plaintiff]

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 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, 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 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 was not intended for Plaintiff’s benefit.

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 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 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 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. had tuberculosis when she did not, thus denying her employment . . . that the absence of a formal doctor-patient relationship would preclude a lawsuit.” Id. at 226, 92 P.3d at 856 n.7. This language seems to suggest that placing oneself in the hands of a medical expert creates a reasonable expectation of accurate results, even if the expert was not consulted “for Plaintiff’s benefit.” (Doc. 27 at 5.) Even if the above suggestion in Stanley does not establish a duty, however, a duty is implied based on Stanley’s analysis itself. The Stanley court considered several factors to determine whether a duty should be implied absent a special relationship. These included, (1) the existence of a formal doctor–patient relationship; (2) the extent of the relationship; (3) the type of tests conducted; (4) whether the defendant was in a unique position to prevent harm; (5) the burden of preventing harm; (6) whether the plaintiff relied upon the [defendant’s] diagnosis or interpretation; (7) the closeness of the connection between the defendant’s conduct and the injury suffered; (8) the degree of certainty that the plaintiff has suffered or will suffer harm; and (9) the skill or special reputation of the actors. Id. at 223, 92 P.3d at 853. Applying those factors to this case favors imposing a duty. First, no doctor–patient relationship existed in this case; however, one did not exist in Stanley either. Second, Plaintiff visited Defendant’s facilities at least three times, (Doc. 20 at 2), and Defendant—presumably—performed a screening test each time. Although this factor does not weigh strongly in either direction, the relationship in this case seems to be more direct than the one in Stanley, in which the defendant was independently contracted with one of the parties. 208 Ariz. at 220, 92 P.3d at 850. Third, Defendant performed screening tests and two confirmatory tests for HIV. (Doc. 23-1 at 7.) These tests, like Stanley, would have made Defendant privy to certain information regarding Plaintiff’s health—although perhaps not to the extent of the defendant in Stanley, who had access to the plaintiff’s “confidential medical record.” 208 Ariz. at 223, 92 P.3d at 849. Fourth, Defendant was in a unique position to prevent harm because it was in the exact position as the defendant in Stanley: screening for signs of disease, but not for Plaintiff’s benefit. Fifth, Defendant bore the burden of preventing harm because it held itself out as a “state-of-the-art facility” and was the entity in charge of handling Plaintiff’s testing. (Doc. 20 at 2.) Plaintiff had no control over that process. Sixth, Plaintiff clearly alleges that she relied on Defendant’s diagnosis. (Doc. 20 at 3–4.) Seventh, there was a close connection between Defendant’s false positive test and Plaintiff’s emotional injury; however, the connection is lessened by Plaintiff’s failure to get retested until three months after the false positive result, during which time Plaintiff knew that the confirmatory tests were “negative” and “indeterminate.”4 (Doc. 20 at 3–4); (Doc. 23-1 at 7.) Eighth, it was not certain that Plaintiff would suffer harm from a false positive test result because she could have sought a confirmation test; however, there is likely some chance for harm, especially emotional harm, created by receiving a false HIV diagnosis. And finally, Defendant held itself out as having special skills by purporting to be a “state-of-the-art” facility. (Doc. 20 at 2.) Plaintiff, presumably, would have no special skills as a mere donor. The Fourth, Fifth, Sixth, and Ninth factors clearly weigh for the imposition of a duty, and the Second, Seventh, and Eighth factors tend to weigh for the imposition of a duty, although these are somewhat less clear. Only the First and Third factors clearly weigh against imposing a duty. The great weight of the factors favors imposing a duty and “illuminate[s] the concerns that motivate tort liability” in this case. Stanley, 208 Ariz. at 223, 92 P.3d at 853. Based on the public policy considerations as enumerated in Stanley, the Court holds that Arizona would impose a duty of care on Defendant based on the facts of as pleaded in the Amended Complaint. That Stanley involved a medical malpractice claim instead of an ordinary negligence claim, as alleged here, does not change this result.5 Stanley’s holding was not limited to medical malpractice claims. Although the court focused on the absence of a doctor–patient relationship, it specifically noted that imposing a duty “in these circumstances also

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.) 5 Because this Court has determined that Stanley v. McCarver establishes a duty under the 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. comports with the Restatement (Second) of Torts.” Stanley, 208 Ariz. at 223, 92 P.3d at 853 (citing Restatement (Second) of Torts § 324A (Am. L. Inst. 1965)). Thus, even if the court was deciding a medical malpractice claim, it explicitly stated that general tort principles as expounded in the Restatement supported the holding. Id. In addition to citing the Restatement, the court also relied on Prosser’s Handbook of the Law of Torts, again expounding general negligence principles not specific to medical malpractice. Id. at 224, 92 P.3d at 854 (citing William L. Prosser, Handbook of the Law of Torts § 53, at 324). Most tellingly, however, the court did not apply Arizona’s medical malpractice statute to determine the scope of the standard of care; instead, it cited Prosser and referenced the statute in a footnote. Id. at n.5. If the court were limiting itself to only the policies underlying medical malpractice, it would have had no reason to apply Prosser instead of the clearly applicable statute. Therefore, Stanley is not limited to just medical malpractice claims but establishes Arizona’s general public policies toward the imposition of a duty under the specific facts of the case: “[T]he duty emanates from the panoply of social concerns that generally inform tort law”—not just the narrow subset of tort law that is medical malpractice. Id. at 226, 92 P.3d at 856 (emphasis added). Moreover, this Court’s decision is supported by the trend of other state courts. Although Arizona courts are not bound by cases in other states, they are persuasive authority. Hodai v. City of Tucson, 239 Ariz. 34, 42, 365 P.3d 959, 967 n.8 (Ct. App. 2016) (“[O]ur courts may look to cases from other jurisdictions as persuasive authority.”); see also Bunker’s Glass Co. v. Pilkington PLC, 202 Ariz. 481, 491, 47 P.3d 1119, 1129 (Ct. App. 2002); HM Hotel Props. v. Peerless Indem. Ins. Co., 874 F. Supp. 2d 850, 853–54 (D. Ariz. 2012) (collecting Arizona cases considering out-of-state decisions). Other states have imposed a duty on laboratories providing test results to third parties, even if not undertaken for the plaintiff’s benefit. See, e.g., Landon v. Kroll Lab’y Specialists, 999 N.E.2d 1121, 1124 (N.Y. 2013) (“Without question, the release of a false positive report will have profound, potentially life-altering, consequences for a test subject.”); Quisenberry v. Compass Vision, Inc., 618 F. Supp. 2d 1223, 1128 (S.D. Cal. 2007) (“[T]he overall trend is for the courts to recognize that a laboratory owes a duty to its test subject, regardless of whether a contractual relationship exists between them.”); Sharpe v. St. Luke’s Hosp., 821 A.2d 1215, 1219 (Pa. 2003) (“[T]he [defendant], in turn, should have realized that any negligence with respect to the handling of the specimen could harm [the plaintiff] . . . .”). The Court therefore holds that in light of both Stanley and the trend in other states, as well as the absence at this point of any consideration of Exhibit B, Plaintiff has alleged sufficient facts to establish some duty. The Court, therefore, declines to determine the scope of the duty of care at this early stage of the litigation. B. Defendant’s Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” The standard governing a Rule 12(c) motion for judgment on the pleadings is “functionally identical” to that governing a Rule 12(b)(6) motion. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). When analyzing a Rule 12(c) motion, the court must accept the nonmovant’s allegations as true, see Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989), and construe factual allegations in a complaint in the light most favorable to the nonmovant. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “Judgment on the pleadings under Rule 12(c) is proper when the moving party establishes on the face of the pleadings that there is no material issue of fact and that the moving party is entitled to judgment as a matter of law.” Jensen Fam. Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 937 n.1 (9th Cir. 2011). Because Defendant owed Plaintiff a duty, as explained above, there is a genuine issue of material fact as to whether Defendant breached that duty by providing a false test result. Therefore, Defendant’s Motion for Judgment on the Pleadings is denied. Because the Court finds Defendant owed Plaintiff a duty, Plaintiff has properly pleaded a claim on which relief may be granted. Defendant’s motions are, therefore, denied. 1 IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss or Motion for Judgment on the Pleadings (Doc. 23) is DENIED. Dated this 14th day of October, 2021. Wars ) A Whacrsay Sooo) Chief United States District Judge

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