UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Exeter Hospital, Inc., Plaintiff

v. Case No. 14-cv-009-SM Opinion No.

David Kwiatkowski; Maxim Healthcare Services, Inc.; The American Registry of Radiologic Technologists; and Triage Staffing, Inc., Defendants

O R D E R

David Kwiatkowski was a cardiac catheterization technician

who, between 2003 and 2012, was employed by approximately 19

different hospitals throughout the country. In June of 2010, he

tested positive for Hepatitis C and, about one year later, in

April of 2011, he began working at Exeter Hospital, in Exeter,

New Hampshire.

Kwiatkowski was an intravenous drug user who often stole

drugs from his hospital employers. He injected the drugs, and

covered up his conduct by refilling the used syringes with saline

and returning them to the hospital’s inventory. When the tainted

syringes were subsequently used, many patients were infected with

the Hepatitis C virus. At least 32 patients at Exeter Hospital

were infected when they were injected with syringes tainted with Kwiatkowski’s blood. Not surprisingly, many of those patients

sued Exeter Hospital. The hospital has settled nearly all of

those suits and now seeks statutory contribution from each of the

defendants named here. In addition, it seeks contractual

indemnification from Triage Staffing - the employment agency that

placed Kwiatkowski at Exeter Hospital.

Pending before the court are motions to dismiss filed by

Maxim Healthcare Services, Inc. (“Maxim”) and The American

Registry of Radiologic Technologists (“ARRT”). Each defendant

asserts that the hospital’s complaint fails to allege sufficient

facts to demonstrate that it owed an actionable duty of care to

any patient with whom the Hospital settled, or that its conduct

proximately caused any patient to be infected with the Hepatitis

C virus. Exeter Hospital objects. Also pending is Exeter

Hospital’s motion to stay this case, pending resolution of the

few remaining state court claims brought by the hospital’s former

patients. Maxim, ARRT, and Triage Staffing, Inc. have filed a

joint objection.

For the reasons discussed, Maxim’s Motion to Dismiss

(document no. 9) is granted, ARRT’s Motion to Dismiss (document

no. 14) is denied, and Exeter Hospital’s motion to stay (document

no. 39) is denied.

2 Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences in

favor of the pleader.” SEC v. Tambone,

(1st

Cir. 2010). Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each

of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (citation and internal

punctuation omitted).

In other words, “a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly,

(2007). Instead, the facts alleged in

the complaint must, if credited as true, be sufficient to

“nudge[] [plaintiff’s] claims across the line from conceivable to

plausible.”

. If, however, the “factual allegations

in the complaint are too meager, vague, or conclusory to remove

3 the possibility of relief from the realm of mere conjecture, the

complaint is open to dismissal.” Tambone,

.

Background

Accepting the factual allegations set forth in the amended

complaint as true, the relevant background is as follows.

Between 2003 and 2007, Kwiatkowski was fired by or resigned from

four Michigan health facilities. Three of those

terminations/resignations came amid investigations into his

unlawful use of controlled substances. Subsequently, Maxim - a

temporary hospital staffing agency - placed Kwiatkowski at the

University of Pittsburgh Medical Center (“UPMC”). In 2008, UPMC

terminated Kwiatkowski’s employment after he was seen removing a

syringe containing the drug fentanyl from an operating room and a

search of his hospital locker revealed an empty syringe with

traces of morphine.

According to Exeter Hospital, “Maxim was notified of the

UPMC termination, but failed to report Kwiatkowski to any law

enforcement agency or licensing authority.” Amended Complaint

(document no. 40) at para. 45. And, says the hospital, despite

that knowledge, in November of 2008, Maxim placed him in a

position at Southern Maryland Hospital.

at para. 50.

Finally, Exeter Hospital alleges that:

4 Maxim’s inaction [i.e., its failure to report Kwiatkowski to law enforcement or licensing authorities] enabled Kwiatkowski to remain employed as a traveling cardiac catheterization technician, thereby foreseeably placing at risk the patients at any hospital in the country to which Kwiatkowski might travel, including those at Exeter Hospital.

at para. 49. Maxim’s placement of Kwiatkowski in a job at

Southern Maryland Hospital in 2008 appears to have marked the end

of its relationship with him - two and one-half years before

Kwiatkowski’s placement (by a different agency) at Exeter

Hospital.

In July of 2009, Medical Solutions (not a defendant) placed

Kwiatkowski in a position at Johns Hopkins Hospital. His

employment there ended after two incidents in which vials of

fentanyl went missing from the department in which Kwiatkowski

was working. Subsequently, Kwiatkowski was employed at the

Arizona Heart Hospital. He was fired in March of 2010, after he

was found semi-conscious in a restroom stall, beside a syringe

containing fentanyl. He admitted that he had taken the syringe

and injected himself. And, after he failed a drug test, he was

fired.

at paras. 51-55. At that point, the temporary

placement agency terminated its relationship with Kwiatkowski and

“notified defendant ARRT of the circumstances of Kwiatkowski’s

termination.”

at para. 56. According to Exeter Hospital:

5 Although ARRT had actual notice of the Arizona Heart Hospital termination, ARRT took no meaningful action to investigate the incident and/or revoke Kwiatkowski’s national certification.

As the operator of a national registry of radiological technicians, ARRT had the ability to investigate, suspend or revoke Kwiatkowski’s national certification.

ARRT did not act on Arizona Heart Hospital’s report of Kwiatkowski’s misconduct, but instead, continued to maintain his ARRT certification.

ARRT’s inaction enabled Kwiatkowski to remain employed as a traveling cardiac catheterization technician, thereby foreseeably placing at risk the patients at any hospital in the country to which Kwiatkowski might travel, including those at Exeter Hospital.

at paras. 57-60.

As noted earlier, Kwiatkowski tested positive for Hepatitis

C in June of 2010.

at para. 36. He began working at Exeter

Hospital in April of 2011 and, approximately one year later, the

hospital became aware that three of its former patients had been

diagnosed with Hepatitis C. Testing revealed that all three

former patients had been infected with an identical strain of

Hepatitis C, which suggested a common source of infection. The

hospital later determined that Kwiatkowski was infected with the

same strain of Hepatitis C and it identified him as the potential

source of patient infections. He was immediately placed on leave

and later fired. More than 3,000 patients of Exeter Hospital

were tested for the virus. Thirty-two former patients tested

6 positive for the same strain of Hepatitis C associated with

Kwiatkowski.

In July of 2012, Kwiatkowski was arrested and charged with

multiple violations of federal law. He pled guilty to all

charges and was sentenced to serve 468 months (39 years) in

prison.

Between December of 2012 and May of 2014, Exeter Hospital

settled numerous civil claims filed against it by former patients

who had been infected by Kwiatkowski. As part of each

settlement, the hospital obtained “a general release of all

claims which discharged the common liability of Exeter Hospital,

Kwiatkowski, Maxim, ARRT, AHSA, and Triage.” Amended Complaint

at para. 97. It appears (though it is not entirely clear) that

none of those defendants contributed to the settlements.1

The hospital alleges that the amount it paid to settle those

claims and discharge the common liability of the non-contributing

defendants, while reasonable, was “disproportionate to its actual

1 It is possible that Triage and AHSA may have contributed to a few, but not all, of the settlements. Compare Amended Complaint at paras. 97-100 (not including Triage or AHSA in the list of non-contributing defendants) with

at paras. 147-48 (specifically identifying Triage and AHSA as having failed to contribute to a particular settlement).

7 responsibility for the Hepatitis-C outbreak.” Amended Complaint

at para. 149. Accordingly, it seeks to have the “proportionate

fault of the non-contributing defendants established, and to be

awarded statutory contribution from each non-contributing

defendant in an amount that is commensurate with that

apportionment.”

at para. 150.

Defendants Maxim and ARRT deny that they owed the hospital’s

patients any actionable duty to warn them of the potential risk

posed by Kwiatkowski, or to report Kwiatkowski’s conduct to law

enforcement or licensing authorities. They also deny that their

conduct proximately caused any patients at Exeter Hospital to

become infected by Kwiatkowski.

Discussion

I. Statutory Contribution.

Under New Hampshire’s statutory contribution scheme, “the

jury, or if there is no jury [the court,] shall find the amount

of damages to be awarded to each claimant and against each

defendant in accordance with the proportionate fault of each of

the parties.” N.H. Rev. Stat. Ann. (“RSA”) 507:7-e. A defendant

who has settled with a claimant, may recover against another

tortfeasor only if “the settlement extinguishes the liability of

the person from whom contribution is sought, and then only to the

8 extent that the amount paid in settlement was reasonable.” RSA

5-7:7-f. As the New Hampshire Supreme Court has observed, one of

the purposes of that statutory scheme is “to relieve defendants

involved in personal injury lawsuits from damages exceeding their

percentage of actual fault.” Ocasio v. Fed. Express Corp.,

(2011).

Here, the hospital’s claims for contribution rest on its

assertion that defendants’ negligence proximately caused the

patients with whom the hospital settled to contract Hepatitis C.

So, to prevail on those contribution claims, the hospital must

demonstrate that each individual defendant owed a duty to the

infected patient, it breached that duty, and that breach

proximately caused the patient’s injury. See Pesaturo v. Kinne,

(2011). Whether a duty exists in a particular

case is a question of law. See Carignan v. N.H. Int’l Speedway,

Inc.,

(2004). And, “[a]bsent the existence of

a duty, a defendant cannot be liable for negligence.”

As to each of the named defendants - including Maxim and

ARRT - Exeter Hospital alleges the following:

Prior to the time that Kwiatkowski arrived at Exeter Hospital, each of the defendants knew, or through the exercise of reasonable care, should have known, that allowing Kwiatkowski to continue working as a traveling cardiac catheterization technician would foreseeably

9 place at extreme risk any patient who came under his care.

Each of the defendants owed a duty to exercise reasonable care to properly screen, test, monitor and supervise Kwiatkowski in his capacity as a traveling cardiac catheterization technician.

Each of the defendants owed a duty to exercise reasonable care to fully investigate and report to the appropriate authorities Kwiatkowski’s illegal drug diversion and use.

Each of the defendants owed a duty to immediately and permanently prevent Kwiatkowski from continuing his employment as a traveling cardiac catheterization technician.

Amended Complaint at paras. 82-85. According to the hospital,

each of the defendants breached one or more of those duties.

And, says the hospital, as a “direct and proximate result of the

aforesaid breaches of duty by each of the defendants, Exeter

Hospital and its patients were foreseeably harmed within the

State of New Hampshire.”

at para. 90.

II. Maxim Healthcare Service, Inc.

According to the hospital, the duty Maxim breached was its

obligation to report “to appropriate authorities” UPMC’s

dismissal of Kwiatkowski in 2008 and, thereafter, to “immediately

and permanently prevent Kwiatkowski from continuing his

employment as a traveling cardiac catheterization technician.”

See Amended Complaint at paras. 84-85.

10 At this juncture, it probably bears noting what the

hospital’s amended complaint does not allege with regard to

Maxim. First, the hospital does not claim that Maxim knew UPMC

fired Kwiatkowski for stealing controlled substances, using

hospital hypodermic needles, and/or engaging in illegal drug use.

Nor does the amended complaint allege that Maxim knew (or should

have known) that Kwiatkowski was infected with Hepatitis C. The

amended complaint simply alleges that Maxim was aware of the fact

of - but not the circumstances surrounding - Kwiatkowski’s

discharge from UPMC. See

at para. 46 (“Maxim was notified of

the UPMC termination, but failed to report Kwiatkowski to any law

enforcement agency or licensing authority.”).

Nevertheless, the hospital seems to imply that Maxim had

knowledge beyond that which is specifically alleged in the

amended complaint. After noting that Maxim did not notify any

licensing or law enforcement agencies of Kwiatkowski’s

termination from UPMC in 2008, the amended complaint alleges:

Recognizing the obvious importance of making such a report, Maxim created and back-dated an e-mail message suggesting that it had reported Kwiatkowski’s conduct to the Maryland Board of Physicians in 2009.

Maxim subsequently admitted (through counsel) to the Maryland Attorney General’s Office that the e-mail message was a fabrication.

11 Amended Complaint at paras. 47-48. The hospital has not,

however, appended that e-mail to the amended complaint, nor has

it disclosed its contents, nor does the hospital state when it

was actually generated. The amended complaint simply references

that document without elaboration.

Even if the hospital had disclosed the contents of that

document, however, it is difficult to see how it might be

relevant to this case. The mere existence of such a document

does not shed light on what Maxim actually knew in 2008. That

Maxim may have thought - perhaps several years after the fact -

that it should have reported UPMC’s termination of Kwiatkowski to

the Maryland Board of Physicians, reveals nothing about what it

knew (or should have known) in 2008 - the date on which the

hospital claims Maxim breached its common law duty.2

2 In its Reply Memorandum (document no. 25), Maxim suggests why the hospital’s amended complaint is (seemingly purposefully) vague in alleging what Maxim knew about the circumstances surrounding UPMC’s termination of Kwiatkowski’s employment. See Id. at 2-3 (“The Complaint accurately states Maxim was aware of Mr. Kwiatkowski’s dismissal by UPMC, but Exeter Hospital cautiously does not go further - perhaps because voluminous discovery obtained from UPMC and Maxim which Exeter Hospital has possessed for nearly a year has demonstrated no such ‘smoking guns’ such as Maxim’s awareness of a positive drug screen or results of a UPMC test showing that a syringe had been refilled with another liquid which might indicate it had been swapped after use.”).

12 Given the allegations in the amended complaint, it cannot be

said that Maxim should have (or could have) foreseen the criminal

conduct in which Kwiatkowski engaged while employed at Exeter

Hospital, or the injuries he inflicted upon the hospital’s

patients. Mere knowledge that he had been fired from his

position at UPMC, without more, is insufficient to impose upon

Maxim the duties the hospital says were breached. See generally

England v. Brianas, __ N.H. __,

(N.H. June 18,

2014) (discussing the concepts of “duty” and “foreseeability”

under New Hampshire law, and the limited exceptions to the

general rule that individuals have no duty to protect others from

the criminal conduct of third parties). And, of course, Maxim

did not place Kwiatkowski at Exeter Hospital.

Based upon the facts allegedly known by Maxim in 2008, it

could not reasonably foresee that Kwiatkowski would infect (or

otherwise harm) patients at Exeter Hospital. Consequently, Maxim

had no duty to report Kwiatkowski’s discharge to licensing or law

enforcement agencies. As the New Hampshire Supreme Court has

noted,

In determining whether a duty exists, we recognize that no negligent act threatens all imaginable harms; unreasonably dangerous conduct is dangerous because it threatens particular kinds of harms to particular kinds of persons in particular ways; responsibility should follow the pattern of the risk. Accordingly, “[t]he risk reasonably to be perceived defines the duty to be

13 obeyed.” Palsgraf v. Long Island R. Co.,

,

(N.Y. 1928). The scope of the duty, therefore, is limited to those risks that are reasonably foreseeable.

Macie v. Helms,

(2007) (citations and

internal punctuation omitted). See also Corso v. Merrill,

(1979) (“The key to applying a traditional

negligence approach is the doctrine of foreseeability. Duty and

foreseeability are inextricably bound together. . . . A person

may be liable only to those who are foreseeably endangered by his

conduct and only with respect to those risks or hazards whose

likelihood made the conduct unreasonably dangerous. His duty is

measured by the scope of the risk which negligent conduct

foreseeably entails.”) (citations and internal punctuation

omitted).

Moreover, under New Hampshire’s common law of negligence, an

individual or entity does not typically owe a duty to protect

others from the criminal conduct of a third party (like that in

which Kwiatkowski engaged). See, e.g., Brianas,

,

*2 (“Private persons have no general duty to protect others from

the criminal acts of third persons. This rule is grounded in the

fundamental unfairness of holding private citizens responsible

for unanticipated criminal acts of third parties.”) (quoting

Walls v. Oxford Mngt Co.,

(1993)). See also

14 Remsburg v. Docusearch, Inc.,

(2003)

(citations and internal punctuation omitted). And, the amended

complaint fails to allege sufficient facts to support application

of any of the four (rarely) invoked exceptions to that rule. See

generally Brianas,

, *2; Walls,

-

59.

III. The American Registry of Radiologic Technologists.

The potential tort liability of ARRT presents a closer

question because, as a certifying agency, it may have assumed a

broader range of duties than those imposed upon a temporary job-

placement agency like Maxim. Moreover, ARRT is alleged to have

had substantially greater knowledge of Kwiatkowski’s misdeeds.

Specifically, the amended complaint alleges that, in March of

2010, Kwiatkowski was fired from his job at the Arizona Heart

Hospital after he was found “semi-conscious in a restroom stall

[and] [t]he co-employee who discovered him observed a fentanyl

syringe floating in the toilet,”

at para. 52, and that

Kwiatkowski subsequently failed a drug test. The amended

complaint goes on to allege that:

The temporary medical staffing agency that had placed Kwiatkowski at Arizona Heart Hospital, Springboard, Inc., also terminated Kwiatkowski’s employment, and notified defendant ARRT of the circumstances of Kwiatkowski’s termination.

15 Although ARRT had actual notice of the Arizona Heart Hospital termination, ARRT took no meaningful action to investigate the incident and/or revoke Kwiatkowski’s national certification.

at paras. 56-57. The amended complaint concludes that,

“ARRT’s inaction enabled Kwiatkowski to remain employed as a

traveling cardiac catheterization technician, thereby foreseeably

placing at risk the patients at any hospital in the country to

which Kwiatkowski might travel, including those at Exeter

Hospital.”

at para. 60.

Accepting the factual allegations in the amended complaint

as true, ARRT knew that Kwiatkowski was found semi-conscious, at

his place of employment, having injected himself with fentanyl -

a controlled substance he likely misappropriated from his

hospital employer. ARRT also knew that Kwiatkowski failed a drug

test and was fired by both the hospital and the temporary

placement agency. Those facts necessarily gave rise to at least

two critical questions. First, what reasonably foreseeable risks

did Kwiatkowski pose to patients of hospitals in which he might

work? And, second, what (if any) duty did ARRT have with respect

to that patient population?

While ARRT plainly thinks those questions should be resolved

as a matter of law in its favor based upon the sparse facts

16 alleged in the amended complaint, the court disagrees. Indeed,

the substantial volume of material outside the amended complaint

submitted by ARRT and Exeter Hospital suggests that this case may

turn on material facts not fully developed in that pleading.

See, e.g., Exeter Hospital’s Objection to ARRT’s Motion to

Dismiss (document no. 20) (attaching ARRT’s answers to

interrogatories, deposition testimony, and copies of earlier

state court decisions in this matter); ARRT’s Reply Memorandum

(document no. 26) (attaching deposition testimony and various

correspondences about the incident at Arizona Heart Hospital).3

As an aside, the court notes that ARRT’s public website

suggests that it may have undertaken a duty to investigate the

incident at Arizona Heart Hospital and/or take action to revoke

Kwiatkowski’s certification credentials - particularly since ARRT

apparently seeks to induce a national audience of potential

medical employers to rely upon its certification credentials as

an indication that ARRT has carefully reviewed applicants and

3 At this juncture, the court need not determine which, if any, of those documents might properly be considered in ruling upon ARRT’s motion to dismiss. See generally Watterson v. Page,

(1st Cir. 1993) (noting that when ruling on a motion to dismiss, courts may consider “documents the authenticity of which [is] not disputed by the parties; . . . official public records; . . . documents central to plaintiffs’ claim; or . . . documents sufficiently referred to in the complaint.”). See also Schaefer v. IndyMac Mortg. Servs.,

, 100 n.1 (1st Cir. 2013).

17 determined that its certificate holders are professionally

competent, capable, and ethical, and that it investigates matters

of potential disqualification to assure continuing eligibility

for certification. That website provides, in part, as follows:

ARRT CERTIFICATION. Certification is the initial recognition of an individual who satisfies certain standards within a profession. Employers, state licensing agencies, and federal regulators look at the ARRT credential as an indication that a person has met a recognized national standard for medical imaging, interventional procedures, and radiation therapy professionals.

As outlined in ARRT’s “Equation for Excellence,” candidates for ARRT certification must meet basic education, ethics, and examination requirements to become eligible.

* * *

Ethics Requirements for ARRT Certification. Every candidate for certification must, according to ARRT governing documents, “be a person of good moral character and must not have engaged in conduct that is inconsistent with the ARRT Rules of Ethics,” and they must “agree to comply with the ARRT Rules and Regulations and the ARRT Standards of Ethics.” ARRT investigates all potential violations in order to determine eligibility.

The American Registry of Radiologic Technologists,

https://www.arrt.org/Certification (visited August 28, 2014)

(emphasis supplied).4

4 Although ARRT’s website is not discussed in the amended complaint, it is referenced in the supplemental materials submitted by Exeter Hospital and ARRT. Additionally, ARRT’s certification standards are discussed in an earlier state court decision issued in this case, which was also submitted by Exeter

18 The dispositive point here is that the amended complaint, as

drafted, passes muster in that it outlines, in brief, a plausible

legal and factual claim against ARRT. Disposition of that claim

may require a trial or it may be amenable to resolution as a

matter of law - but on summary judgment. It remains unclear at

this point whether material facts are in dispute.

IV. Exeter Hospital’s Motion to Stay.

Finally, Exeter Hospital moves the court to stay this

contribution action, pending resolution of the last few state

court cases filed by the hospital’s former patients. According

to the hospital,

Only six of the twenty-nine cases originally brought by Kwiatkowski victims remain pending. The rest have been successfully mediated. Two of the remaining six suits are scheduled for mediation in the next thirty days. The Superior Court has issued a series of procedural orders, and anticipates conducting the trials of any cases that have not settled starting in January 2015.

Motion to Stay (document no. 39-1) at 4. Invoking the Colorado

River abstention doctrine, see Colorado River Water Conservation

Dist. v. United States,

(1976), the hospital asserts

that this court should “stay these proceedings and abstain from

ruling on the pending motions to dismiss.” Id. at 6. The court

disagrees.

Hospital in opposition to ARRT’s motion to dismiss.

19 As the court of appeals for this circuit has noted, “The

crevice in federal jurisdiction that Colorado River carved is a

narrow one. Of all the abstention doctrines, it is to be

approached with the most caution, with only the clearest of

justifications warranting dismissal.” Jimenez v. Rodriguez-

Pagan,

(1st Cir. 2010) (citation and internal

punctuation omitted). The court went on to note that,

“Unsurprisingly, the cases that satisfy this test are few and far

between.”

. Exeter Hospital has not shown that this is

one of those rare and exceptional cases. Nor has it shown any

benefit to be gained by staying these proceedings at this time.

Should it subsequently become necessary to issue a stay so the

full extent of the hospital’s damages liability to its former

patients can be determined, the court will entertain the

appropriate motion at that time. But, resolution of the

underlying liability issues need not be delayed.

Conclusion

For the foregoing reasons, as well as those set forth in

Maxim’s memoranda, Exeter Hospital’s amended complaint fails to

state any viable claims against Maxim. According, Maxim’s motion

to dismiss (document no. 9) is granted. The motion to dismiss

filed by The American Registry of Radiologic Technologists

20 (document no. 14) is, however, denied. Exeter Hospital’s motion

to stay (document no. 39) is also denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 4, 2014

cc: Mark A. Darling, Esq. Robert C. Dewhirst, Esq. David Kwiatkowski, pro se Jonathan A. Lax, Esq. Peter A. Meyer, Esq. Elaine M. Michaud, Esq. Peter W. Mosseau, Esq. Nicole Paquin, Esq. Mark W. Shaughnessy, Esq. William N. Smart, Esq. Ralph Suozzo, Esq. Jay Surdukowski, Esq. Robert G. Whaland, Esq.

21