SMITH v. ZIMMER HOLDINGS, INC. et al, No. 2:2014cv04365 - Document 14 (D.N.J. 2015)

Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 12/1/15. (js)

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SMITH v. ZIMMER HOLDINGS, INC. et al Doc. 14 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________ ____ Norm a Powell, : : Plaintiff, : H o n . Jo s e ph H . Ro d rigu e z : v. : Civil Action No. 14-4365 : City of Ocean City, et. al. : : Op in io n Defendants. : _______________________ : These m atters come before the court on separate motions for Sum m ary J udgment and to Dism iss, filed on behalf of Defendants Shore Mem orial Hospital [47] and Kathryn Page, R.N. [53] and on Cross Motion to Dism iss and for Sum m ary J udgment of Defendant J essica Ruiz, A.P.N.. The Court has considered the written subm issions without oral argument. For the reasons that follow, Defendants’ m otions are denied. I. Backgro u n d On J uly 11, 20 12 Plaintiff Norm a Powell was arrested and detained for driving under the influence. At the police station, Powell’s lung disease prevented her from producing a reading on a breathalyzer. She was also unable to produce a sufficient urine specim en despite being given and having consum ed ten cups of water. As a result, she was taken to the Shore Mem orial Hospital, where Defendant nurse Kathryn Page, R.N. drew her 1 Dockets.Justia.com blood and then inserted a catheter. Powell alleges that Defendant Officer Hall was present during and participated in the catheterization. Powell contracted an infection as a result of the catheter. On J uly 11, 20 14, Powell filed a sixteen (16) count Com plaint alleging various causes of action against the City of Ocean City, Office Laura Hall, and Sergeant D. Dubbs (Ocean City Defendants) and the Shore Memorial Hospital, Nurse Page, and Nurse Ruiz (Hospital Defendants). The Court granted partial summ ary judgm ent in favor of the Ocean City Defendants on April 28, 20 15. Now, the Hospital Defendants argue they are entitled to im m unity pursuant to N.J .S.A. 2A:62A-10 because they catheterized Powell and took a blood sam ple at the direction of the Ocean City Defendants. In addition, the Hospital Defendants argue that the specimens were obtained in a m edically acceptable m anner. II. Stan d ard s o f Re vie w A. Mo tio n to D is m is s Federal Rule of Civil Procedure 12(b)(6) allows a defendant to m ove for dism issal of a com plaint based on failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a motion to dism iss 2 pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. 1 See Chester County Interm ediate Unit v. Pa. Blue Shield, 896 F.2d 80 8, 812 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). A claim has facial plausibility 2 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (20 0 9) (citing Twom bly, 550 U.S. at 556). Where there are well-pleaded factual allegations, a court should assume their 1 Although a district court m ay not consider m atters extraneous to the pleadings, a docum ent integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for summ ary judgm ent. U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations omitted) (em phasis deleted). 2 This plausibility standard requires more than a m ere possibility that unlawful conduct has occurred. When a complaint pleads facts that are m erely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlem ent to relief. Id. 3 veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief. Iqbal, 129 S. Ct. at 1950 . The Court need not accept unsupported conclusions and unwarranted inferences, Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and [l]egal conclusions m ade in the guise of factual allegations . . . are given no presumption of truthfulness. Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) ([A] court need not credit either bald assertions or legal conclusions in a com plaint when deciding a m otion to dism iss.)). Accord Iqbal, 129 S. Ct. at 1950 (finding that pleadings that are no m ore than conclusions are not entitled to the assumption of truth). Although detailed factual allegations are not necessary, a plaintiff’s obligation to provide the grounds of his entitlem ent to relief requires m ore than labels and conclusions, and a form ulaic recitation of a cause of action’s elements will not do. Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 129 S. Ct. at 1949 (Threadbare recitals of the elements of a cause of action, supported by mere conclusory statem ents, do not suffice.). 4 Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact). Twom bly, 550 U.S. at 556 (internal citations om itted). [W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not shown-that the pleader is entitled to relief. Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). B. Su m m ary Ju d gm e n t A court will grant a m otion for sum m ary judgment if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). 5 An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum mary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who 6 fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. An alys is Defendants argue that im m unity under N.J .S.A 2A:62A-10 precludes liability. That statute shields medical personnel and facilities involved in obtaining bodily substance specimens from both from civil and/ or crim inal liability under certain circum stances. See N.J .S.A 2A:62A-10 . “The purpose of N.J .S.A. 2A:62A– 10 is to encourage m edical personnel to cooperate with law enforcem ent officers in obtaining bodily substance specim ens.” J iosi v. Twp. of Nutley, 332 N.J . Super. 169, 176, 753 A.2d 132, 136 (App. Div. 20 0 0 ) (citing Senate Law, Public Safety and Defense Comm ittee, Statement 7 to S. 10 89 (enacted as L.1986, c.189)). In part, N.J .S.A. 2A:62A-10 provides: a. When acting in response to a request of a law enforcem ent officer, any physician, nurse or medical technician who withdraws or otherwise obtains, in a m edically accepted m anner, a specimen of breath, blood, urine or other bodily substance and delivers it to a law enforcem ent officer, shall be im m une from civil or crim inal liability for so acting, provided the skill and care exercised is that ordinarily required and exercised by others in the profession. b. Any physician, nurse or m edical technician who, for an accepted m edical purpose, withdraws or otherwise obtains, in a m edically accepted m anner, a specimen of breath, blood, urine or other bodily substance and subsequently delivers it to a law enforcem ent officer either voluntarily or upon court order, shall be im m une from civil or crim inal liability for so acting, provided the skill and care exercised in obtaining the specim en is that ordinarily required and exercised by others in the profession. c. The im m unity from civil or crim inal liability provided in subsections a. and b. of this section shall extend to the hospital or other medical facility on whose prem ises or under whose auspices the specim ens are obtained, provided the skill, care and facilities provided are those ordinarily so provided by sim ilar m edical facilities. Application of im m unity under N.J .S.A 2A:62A-10 is not appropriate in all circum stances. For im m unity to attach, the sample must either be requested by a law enforcem ent officer or obtained for an accepted m edical purpose. J iosi, 332 N.J . Super. at 176. Im portantly, the sam ple m ust also be obtained in a medically accepted manner. Id. 8 Here, Plaintiff alleges a violation of her constitutional rights by the Defendants Shore Mem orial Hospital, Kathryn Page, R.N. and J essica Ruiz, A.P.N. Plaintiff claim s that these Defendants allowed Officer Hall to assist in her catheterization without her consent and performed the catheterization in a hum iliating and m edically unacceptable m anner. See Com pl. ¶52. Plaintiff claim s that Officer Hall assisted in the procedure without proper sterilization or dress and caused her to contract the bacterial virus MRSA. Id. Prior to being transported to Shore Mem orial Hospital, Plaintiff was given ten cups of water and attempted, but was unable, to produce a urine sam ple at the police station. See Dep. Officer Hall, p. 19:13-22. According to the Officer Hall, Plaintiff could not sufficiently urinate and was then taken to the hospital where blood was drawn for analysis. See id., p. 19:2-6. After the blood sam ple was procured, Plaintiff was catheterized so that a urine sam ple could be collected. Id. Officer Hall testified that Plaintiff was not given another opportunity to urinate at the hospital. Id. at p. 19:23-25. Plaintiff contracted MRSA as a result of the catheterization. 3 Pursuant to the New J ersey Appellate Division’s decision in J iosi, summ ary judgm ent is 3 Defendants move to dismiss this claim on plausibility grounds. This motion is denied because, viewing the facts in a light most favorable to Plaintiff, as is required on a motion to dismiss, the claim is plausible given the circumstances of catheterization occurring in a state of her normal dress and the Officer’s presence and alleged participation. 9 not warranted at this tim e because questions of fact exist as to whether the catheterization was necessary and whether the catheterization was perform ed in a medically acceptable manner. In J iosi, the plaintiff was arrested and charged with driving under the influence. J iosi, 332 N.J . Super. 169. He was taken to the hospital where blood was drawn with the plaintiff’s perm ission. Id. Like Powell, plaintiff was involuntarily catheterized. Id. In reversing the trial court’s grant of sum m ary judgment, the Appellate Division opined: In our view it is not enough to dem onstrate that the procedure can be accom plished without harm to the “patient.” Under the present circumstances where the sam ple is being taken, not for an accepted m edical purpose but to further a crim inal prosecution, constitutional rights of privacy are im plicated “[b]ecause it is clear that the collection and testing of urine intrudes upon the expectations of privacy that society has long recognized as reasonable ... these intrusions m ust be deemed searches under the Fourth Am endm ent.” Skinner v. Railway Labor Executives' Assoc., 489 U.S. 60 2, 617, 10 9 S.Ct. 140 2, 1413, 10 3 L. Ed.2d 639, 660 (1989). In this context the question of whether the procedure was done in a “m edically accepted m anner” entails m ore than the mechanics of the procedure. It m ust also encom pass the question of whether the procedure was necessary for its intended purpose. The record before the m otion judge was not fully developed in this regard, but on the proofs provided a jury could find that the period of time plaintiff was given to voluntarily urinate was insufficient to justify involuntary catheterization. The tim e lapse between plaintiff's last glass of water and the involuntary catheterization m ay have been as little as sixteen m inutes. Overall, the tim e between when plaintiff began taking water and the catheterization was only around forty-six m inutes. What problem s m ight have arisen by allowing plaintiff m ore time to 10 voluntarily urinate were not explored at the sum m ary judgm ent hearing. J iosi v. Twp. of Nutley, 332 N.J . Super. at 177. Here, there are questions of fact related to whether the procedure was necessary. As in J iosi, there is a dispute as to whether m ore tim e could have been allotted for Powell to produce a urine sam ple without catheterization. In addition, given that Powell contracted MRSA as a result of the catheterization, there is a question of fact as to whether the catheterization procedure was performed in a m edically acceptable m anner. See Aff.of Cheryl McKnight, Ex. D. The presence of these disputes caused the Appellate Division in J iosi to rem and the m atter to the trial court for further exploration. The Court finds the Appellate Division’s reasoning persuasive and finds that questions of fact preclude N.J .S.A 2A:62A-10 im m unity at this tim e. As a result, the m otions for summ ary judgm ent and to dism iss of both Shore Mem orial Hospital and Kathryn Page, R.N. are denied. J essica Ruiz’s cross m otions are denied for the same reasons, but without prejudice and with the right to refile upon the conclusion of discovery. 4 4 Plaintiff argues that at the time of Defendant Ruiz’s cross- motion, discovery was not complete. Specifically, Ruiz’s deposition had not occurred. Although this motion has been pending for some time, neither party supplemented their arguments to include references to Ruiz’s deposition. In light of the incomplete record upon which Ruiz moves, the Court will permit her to refile her motion. Plaintiff may then oppose the motion with the benefit of the missing discovery. 11 An appropriate Order accompanies this Opinion. Dated: Decem ber 1, 20 15 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 12

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