King et al v. Garfield County Public Hospital District No 1 et al, No. 2:2012cv00622 - Document 99 (E.D. Wash. 2014)
Court Description: ORDER DENYING DEFENDANT OHS'S 57 MOTION TO DISMISS. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)
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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DENNIS KING and TRICIA KING, husband and wife, NO: 12-CV-0622-TOR 8 Plaintiffs, 9 ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS v. 10 11 GARFIELD COUNTY PUBLIC HOSPITAL DISTRICT NO. 1, a municipal corporation, et al., 12 Defendants. 13 14 BEFORE THE COURT is Defendant OHS Health & Safety Services, Inc.’s 15 Motion to Dismiss Pursuant to Rule 12(c) (ECF No. 57). This matter was 16 submitted for consideration without oral argument. The Court has reviewed the 17 briefing and the record and files herein, and is fully informed. 18 BACKGROUND 19 This case concerns a hospital employee’s termination for alleged drug 20 diversion and use after the employee tested positive in a drug test. Plaintiff Dennis ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 1 1 King sued his former employer, Garfield County Hospital District No. 1, as well as 2 companies allegedly involved in the drug test. In the motion now before the Court, 3 one of those companies, OHS Health & Safety Services, Inc. (“OHS”), moves to 4 dismiss the Second Amended Complaint for Damages against it. For the reasons 5 explained below, the Court denies Defendant OHS’s motion. FACTS1 6 Plaintiff Dennis King (“King”) is a registered nurse who was employed full- 7 8 time by Garfield County Hospital District No. 1 (“GCHD”) from March 2, 2007, 9 until March 29, 2011. After a dental procedure, King was prescribed and was 10 taking Tylenol with codeine. After King’s shift on February 7, 2011, a narcotics 11 count was performed and there were no discrepancies. On the following day—one 12 of King’s days off—the narcotic count revealed an additional 19ml of liquid in the 13 morphine bottle. GCHD sent the bottle back to the manufacturer without testing. 14 On February 11, 2011, GCHD staff required King to take a urine drug test 15 without any prior warning. This was one of King’s regularly scheduled days off, 16 and he had taken a prescription Tylenol with codeine approximately one hour 17 before the test. King informed the test technician that he had ingested Tylenol with 18 1 19 20 These facts are drawn from Plaintiff’s complaint and are accepted as true for the purposes of the instant motion. ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 2 1 codeine. The test came back positive for codeine and morphine. King was 2 informed on February 18, 2011, that he had “extremely high levels of morphine” in 3 his urine. He again informed a GCHD staff member that he had a valid prescription 4 for Tylenol with codeine. On February 22, 2011, King, GCHD staff and Defendant 5 Dr. Terrence McGee had a phone meeting about his positive test results. On March 6 28, 2011, Dr. McGee reported to GCHD that King had a positive finding for 7 codeine and morphine; the next day, King was terminated from his employment 8 with GCHD based on allegations of substance abuse. 9 At an unemployment hearing conducted by the Washington State 10 Employment Security Division, Dr. McGee testified in support of GCHD and its 11 staff’s assertions that King had been terminated based on suspected drug diversion 12 and use, as well as testifying that King may have developed a tolerance for opioids. 13 However, the unemployment hearing examiner failed to establish that King was 14 terminated for misconduct. The Nursing Care Quality Assurance Commission 15 (“NQAC”), to which GCHD had reported King, likewise determined that the 16 evidence did not support allegations of drug diversion and substance abuse. 17 Despite this, King has not been able to find full-time employment as a nurse since 18 his termination from GCHD. 19 20 In December 2012, King sued Defendants GCHD, hospital staff members, and Dr. McGee in this Court, alleging, inter alia, violation of constitutional rights, ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 3 1 defamation, and negligence. The hospital Defendants counterclaimed under RCW 2 4.24.510, Washington’s Anti-SLAPP statute. On July 16, 2013, Plaintiffs amended 3 their complaint pursuant to the parties’ stipulation (ECF No. 24). On September 4 29, 2013, this Court granted Plaintiffs’ motion to file a second amended complaint 5 (ECF No. 33), adding QCL, Inc., and OHS Health & Safety Services, Inc. King 6 alleges that Defendant QCL, Inc., was the laboratory which processed the urine 7 drug test, and that Defendants OHS and Dr. McGee were responsible for 8 interpreting the urine drug tests. Specifically, Plaintiffs’ Second Amended 9 Complaint states that 10 11 Upon information and belief, Defendant OHS Health & Safety Services, Inc., is a for profit California Corporation doing business, at all times relevant herein, within Orange County, State of California. … 12 13 14 Mr. King was not provided any of the documentation or evidence relied upon by Dr. McGee, even after repeated requests. Initially, Dr. McGee treated Mr. King’s urine test as negative based upon the fact that Mr. King had a valid prescription for Tylenol #3 (with codeine). 15 16 17 18 19 After GCHD informed Dr. McGee of its suspicion of drug diversion based on no other positive tests, Dr. McGee changed his initial findings regarding Mr. King’s urinalysis from negative to positive. … Dr. McGee improperly relied upon the urine concentration to quantify morphine intake. The analysis must focus on the ratio of codeine to morphine, which was consistent with a prescription for Tylenol #3 (with codeine) in this case. 20 ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 4 1 2 3 4 On March 29, 2011, Mr. King was terminated from his employment with GCHD based on allegations of substance abuse. … Dr. McGee testified that Mr. King’s urine drug test results produced elevated levels of codeine and morphine. He also testified that the levels of codeine and morphine in Mr. King’s urine would not result from one tablet of Tylenol #3 (with codeine). … 5 6 Upon information and belief, OHS Health & Safety Services, Inc., and Dr. McGee were responsible for interpretation of the urine drug tests. … 7 8 QCL, Inc., OHS Health & Safety Services, Inc., Dr. McGee, and GCHD owed Mr. King a duty to follow the accepted standard of care in performing the testing, conducting the analysis, and interpreting the urinalysis. 9 10 QCL, Inc., OHS Health & Safety Services, Inc., Dr. McGee, and GCHD breached their duty to follow the accepted standard of care performing the testing, conducting the analysis, and interpreting the urinalysis. 11 Dr. McGee negligently interpreted the urinalysis results as positive. 12 Dr. McGee’s negligence caused Mr. King substantial damages… 13 Defendants are liable to Plaintiff as a result of their breach of duty. 14 15 16 GCHD, as a principal, is liable for the actions of its ostensible agent, Dr. McGee. Upon information and belief, Dr. McGee has an employment and/or agency relationship with OHS & Safety Services, Inc. 17 ECF No. 33 at 4, 9-14, 18-19. 18 On December 27, 2013, the Court granted Defendant QCL’s motion to 19 dismiss for failure to state a claim and terminated Defendant QCL subject to 20 Plaintiffs’ right to file and serve a third amended complaint within 15 days. ECF ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 5 1 No. 56 at 12-13. Plaintiffs, however, did not file a third amended complaint within 2 15 days. 3 Defendant OHS now requests dismissal of the claims against it pursuant to 4 Fed. R. Civ. P. 12(c) on grounds that Plaintiffs’ Second Amended Complaint fails 5 to state a claim upon which relief may be granted. 6 7 8 9 DISCUSSION A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(c) A Rule 12(c) motion for judgment on the pleadings is properly granted where, accepting as true allegations of fact in the complaint, construed in the light 10 most favorable to the non-moving party, “there is no issue of material fact in 11 dispute, and the moving party is entitled to judgment as a matter of law.” Fleming 12 v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). When a Rule 12(c) motion is used to 13 raise a defense of failure to state a claim, a motion for judgment on the pleadings 14 faces the same test as a motion under Rule 12(b)(6). McGlinchy v. Shell Chem. 15 Co., 845 F.2d 802, 810 (9th Cir. 1988). A motion to dismiss for failure to state a 16 claim tests the legal sufficiency of the plaintiff’s claims. Navarro v. Block, 250 17 F.3d 729, 732 (9th Cir. 2001). To withstand dismissal, a complaint must contain 18 “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 19 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Naked assertion[s],” “labels and 20 conclusions,” or “formulaic recitation[s] of the elements of a cause of action will ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 6 1 not do.” Id. at 555, 557. “A claim has facial plausibility when the plaintiff pleads 2 factual content that allows the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 4 678 (2009). While a plaintiff is not required to establish a probability of success 5 on the merits, he or she must demonstrate “more than a sheer possibility that a 6 defendant has acted unlawfully.” Id. 7 A complaint must also contain a “short and plain statement of the claim 8 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 9 standard “does not require detailed factual allegations, but it demands more than an 10 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 11 678 (quoting Twombly, 550 U.S. at 555). In assessing whether Rule 8(a)(2) has 12 been satisfied, a court must first identify the elements of the plaintiff’s claim(s) and 13 then determine whether those elements could be proven on the facts pled. The 14 court should generally draw all reasonable inferences in the plaintiff’s favor, see 15 Sheppard v. David Evans and Assocs., 694 F.3d 1045, 1051 (9th Cir. 2012), but it 16 need not accept “naked assertions devoid of further factual enhancement.” Iqbal, 17 556 U.S. at 678 (internal quotations and citation omitted). 18 “The essential elements of actionable negligence are: (1) the existence of a 19 duty owed to the complaining party; (2) a breach thereof; (3) a resulting injury; and 20 (4) a proximate cause between the claimed breach and resulting injury.” Pedroza v. ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 7 1 Bryant, 101 Wash. 2d 226, 228 (1984). In Washington, a principal is liable for the 2 negligent acts of its agent when the agent acts on behalf of the principal and within 3 the scope of employment. Scott v. Ross, 140 F.3d 1275, 1280 (9th Cir. 1998). 4 Here, Plaintiffs’ allegations against OHS depend primarily on two 5 contentions: (1) that OHS interpreted the drug results, ECF No. 33 at 9 (“Upon 6 information and belief, OHS Health & Safety Services, Inc., and Dr. McGee were 7 responsible for interpretation of the urine drug tests.”); and (2) that OHS and Dr. 8 Terrence McGee2 have an agency or employment relationship, ECF No. 33 at 19 9 (“Upon information and belief, Dr. McGee has an employment and/or agency 10 relationship with OHS & Safety Services, Inc.”). Thus, the Court must determine 11 whether Plaintiff has stated facts to support a finding that OHS negligently 12 interpreted the test results or that Dr. McGee was negligent and such negligence 13 may be imputed to OHS because of an agency or employment relationship. 14 Defendant contends that the complaint contains no factual allegations as to 15 how OHS owed any to Plaintiffs; what breach occurred, including any actions 16 OHS took in performing any testing, conducting any analysis, or interpreting any 17 analysis; or what damages were caused by the alleged breach. ECF No. 57 at 4, 6. 18 Plaintiff responds that it has sufficiently pleaded facts showing Dr. McGee 19 20 2 Dr. McGee is also named as a Defendant in this action. ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 8 1 negligently interpreted the results of Mr. King’s drug tests, and that because Dr. 2 McGee is the agent of OHS, his acts are also the acts of OHS. ECF No. 71 at 6-7. 3 Plaintiffs have adequately pleaded their claim that OHS and Dr. McGee 4 have an agency/employment relationship, and they have adequately pleaded 5 allegations of Dr. McGee’s negligence. The factual recitation in the complaint 6 states that OHS and Dr. McGee “were responsible for interpretation of the urine 7 drug tests.” ECF No. 33 at 9. As Plaintiffs note, Defendants acknowledge that the 8 Second Amended Complaint makes detailed factual allegations against Dr. McGee. 9 ECF No. 57 at 2-3. These include allegations that “Dr. McGee and GCHD 10 improperly relied upon the urine concentration to quantify morphine intake. The 11 analysis must focus on the ratio of codeine to morphine, which was consistent with 12 a prescription for Tylenol #3 (with codeine) in this case.” ECF No. 33 at 11. 13 Plaintiffs further claim that he was “terminated from his employment with GHCD 14 based on allegations of substance abuse” after “Dr. McGee changed his initial 15 findings regarding King’s urinalysis from negative to positive.” Id. at 10-11. The 16 Second Amended Complaint also clearly states that “OHS Health & Safety 17 Services, Inc., [and] Dr. McGee…owed Mr. King a duty to follow the accepted 18 standard of care in performing the testing, conducting the analysis, and interpreting 19 the urinalysis.” ECF No. 33 at 18-19. And the Second Amended Complaint makes 20 a clear claim that Dr. McGee had an agency or employment relationship with OHS. ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 9 1 ECF No. 33 at 19. Thus, Plaintiffs have linked liability from Dr. McGee to OHS; 2 they have stated that there was a duty that Dr. McGee breached, and that Dr. 3 McGee had an agency/employment relationship with OHS. These are not “naked 4 assertions devoid of further factual enhancement” or defendant-unlawfully- 5 harmed-me accusations. Taken in the light most favorable to Plaintiffs, the Second 6 Amended Complaint survives OHS’s motion to dismiss. 7 ACCORDINGLY, IT IS HEREBY ORDERED: 8 Defendant OHS Health & Safety Services, Inc.’s Motion to Dismiss 9 Pursuant to Rule 12(c) (ECF No. 57) is DENIED. The Court will entertain 10 11 12 13 Defendant OHS’s timely motion to adjust the scheduling order, if any. The District Court Executive is hereby directed to enter this Order and provide copies to counsel. DATED April 10, 2014. 14 15 THOMAS O. RICE United States District Judge 16 17 18 19 20 ORDER DENYING DEFENDANT OHS’S MOTION TO DISMISS ~ 10
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