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

In 2012, thirty two former patients of Exeter Hospital

tested positive for Hepatitis-C. And, it was discovered, a

substantially larger number had, potentially, been exposed to

the virus. That outbreak was caused by David Kwiatkowski, an

intravenous drug user who was employed by the hospital as a

cardiac catheterization technician in 2011 and 2012. Exeter

Hospital subsequently settled a large number of claims, both

from patients who had actually been infected with the Hepatitis-

C virus, as well as patients who, although not infected, sought

compensation for injuries related to their having had to undergo

testing as well as their fear of having contracted the disease.

The hospital then filed this statutory contribution action

against several defendants, seeking to recover damages it

1 sustained and expenses it incurred in connection with settling

those claims. It also seeks contractual indemnification from

Triage Staffing - the employment agency that placed Kwiatkowski

at the hospital.

Pending before the court are two motions to dismiss. The

American Registry of Radiologic Technologists (“ARRT”) moves to

dismiss count 73 of the Third Amended Complaint, which seeks

statutory contribution for sums Exeter Hospital paid to patients

who were tested for Hepatitis-C, but who did not actually

contract the disease (the so-called “negative results

claimants”). Triage Staffing also moves to dismiss that count.

Additionally, Triage moves to dismiss count 74, in which Exeter

Hospital seeks contractual indemnification from Triage for the

same sums. For the reasons discussed, those motions to dismiss

are granted, without prejudice to Exeter Hospital’s ability to

amend counts 73 and 74, as discussed below.

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

2 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 the possibility of relief from the realm of

mere conjecture, the complaint is open to dismissal.” Tambone,

. Such is the case here.

Background

Most of the relevant factual allegations are set forth in

the court’s prior order (document no. 48) and need not be

3 recounted. It is sufficient to note that Exeter Hospital

alleges the following. 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, patients were either

exposed to, or actually infected with, the Hepatitis-C virus.

As part of its investigation into the Hepatitis-C outbreak,

Exeter Hospital (along with the New Hampshire Department of

Health and Human Services) contacted patients who had received

care in the catheterization lab and other unspecified areas of

the hospital, recommending they undergo testing. More than

3,000 people were tested and, of them, a total of 32 former

patients tested positive for Hepatitis-C. Subsequently, a

number of those infected patients sued Exeter Hospital. An

additional 188 patients who tested negative for the disease also

advanced claims against the hospital (but did not actually file

4 suit). Exeter Hospital settled many of those claims (from both

infected and non-infected parties) and obtained releases for

itself as well as all of the named defendants. It then filed

this action, seeking statutory contribution (and, with respect

to Triage, contractual indemnification).

Exeter Hospital alleges that Triage Staffing knew

Kwiatkowski had Hepatitis-C and, despite that knowledge, it

“continued to expose hospital patients to the potential risk of

contracting the virus for years before [it] recommended him for

employment at Exeter Hospital.” Third Amended Complaint

(document no. 74) at para. 35. Exeter Hospital also alleges

that it reasonably relied upon Triage to properly screen

Kwiatkowski before recommending him for employment by the

hospital.

at para. 64. As for the American Registry of

Radiologic Technologists, Exeter Hospital says it was aware of

Kwiatkowski’s history of drug use, yet undertook no meaningful

investigation into his conduct and failed to revoke his national

certification.

at paras. 55-58. That conduct (or inaction)

on the part of ARRT and Triage, says the hospital, proximately

caused the injuries allegedly sustained by the negative results

claimants.

5 All agree that, as for the 188 negative results claimants

at issue, the operative paragraph in Exeter Hospital’s Third

Amended Complaint alleges that:

Although Patients N001 through N188 tested negative for the virus, they presented claims for damages to Exeter Hospital, alleging that they each suffered diverse physical and emotional injuries as a direct result of learning of their potential infection with the Hepatitis-C virus; of having to undergo the recommended Hepatitis-C testing; and of having to wait days (or in some cases, weeks) before learning that their test results were negative.

Third Amended Complaint, at para. 953 (emphasis supplied). ARRT

and Triage join in asserting that those allegations are simply

too meager to state a viable cause of action. Accordingly, they

move to dismiss those counts in the Third Amended Complaint

relating to the 188 non-infected patients.

Discussion

Under New Hampshire law, “a right of contribution exists

between or among 2 or more persons who are jointly and severally

liable upon the same indivisible claim, or otherwise liable for

the same injury, death, or harm.” N.H. Rev. Stat. Ann. (“RSA”)

507:7-f I. Having settled the claims advanced by the 188

negative results claimants for their alleged “diverse physical

and emotional injuries,” Exeter Hospital now seeks contribution

from each of the named defendants for their joint and several

6 liability to those patients. The source of that joint and

several liability is, however, unclear. Exeter Hospital’s

amended complaint fails to articulate any precise cause(s) of

action the negative results claimants might have had against the

hospital and for which ARRT and/or Triage would be jointly and

severally liable. In its opposition memoranda, however, Exeter

Hospital suggests that such a cause of action might be based on

negligence, or negligent infliction of emotional distress, or

possibly even intentional infliction of emotional distress. The

court disagrees.

Perhaps the most significant shortcoming of the amended

complaint is its failure to plausibly allege that any of the

negative results claimants were actually exposed to the

Hepatitis-C virus, or even that it is reasonably likely that

they were exposed. The amended complaint does not, for example,

allege that Kwiatkowski was the cardiac technician from whom

they received care, or that they actually received some sort of

intravenous medication or procedure while at the hospital during

Kwiatkowski’s tenure as a cardiac catheterization technician.

Nor does it allege that they were patients at the hospital

during the relevant time period and under circumstances

suggesting that transmission to them of the Hepatitis-C virus

was reasonably possible. Absent such factual claims, the Third

7 Amended Complaint fails to adequately allege that each of the

188 negative results claimants was adequately exposed to the

Hepatitis-C virus to have a reasonable fear of developing the

illness. See generally Kenyon v. Cheshire Cty. Jail Adm'r, No.

CIV. 92-515-M,

, at *5 (D.N.H. Sept. 22, 1994)

(noting that to state a viable claim, plaintiff “must allege a

specific incident of possible exposure that could lead to a

reasonable fear of developing AIDS” and concluding that

“plaintiff’s allegations that he might have been exposed to AIDS

and has suffered emotional distress as a result are inadequate

as a matter of law to state a claim for emotional distress upon

which relief could be granted.”) (emphasis in original). See

also Marlin v. Bill Rich Constr.,

,

(1996) (holding that plaintiff must allege that

he or she was “actually exposed” to the disease by the

defendant’s negligent conduct and that “the exposure upon which

the claim is based raises a medically established possibility of

contracting a disease”); Neal v. Neal,

,

(1994) (“Damages are recoverable for emotional

distress claims resulting from the present fear of developing a

future disease only if the mental injury alleged is shown to be

sufficiently genuine and the fear reasonable. We hold that

there can be no reasonable fear of contracting such a disease

absent proof of actual exposure.”); Dillard v. Torgerson

8 Properties, Inc., No. CIV. 05-2334(PAMJSM),

, at

*3 (D. Minn. Oct. 16, 2006) (dismissing plaintiff’s negligent

infliction claim because she could not show “that she was

actually exposed to a communicable disease,” and noting that

“most jurisdictions that have considered emotional distress

claims based on the fear of contracting HIV have required actual

exposure to HIV”).

Rather than alleging a plausible instance of at least

possible exposure to Hepatitis-C for each of the negative

results claimants, the amended complaint suggests that Exeter

Hospital (laudably) tested those patients out of an abundance of

caution and, ultimately, settled their claims despite the fact

that there may have been no legal obligation to do so (or, at a

minimum, without requiring those claimants to demonstrate that

they had, indeed, suffered legally compensable emotional

distress). Of course, independent of any legal obligation the

hospital may have had to compensate the negative results

claimants, one can imagine many reasons that might have

motivated the hospital to settle those claims quickly and out of

court. But, absent actual legal liability on the part of the

hospital (and ARRT and Triage) to those patients, the hospital

cannot recover on its contribution claims against ARRT and

Triage.

9 Additionally, to the extent Exeter Hospital seeks to

recover for settlements related to emotional distress allegedly

suffered by the negative results claimants, the amended

complaint fails to adequately allege that each (or, indeed, any)

of them suffered objective physical manifestations or symptoms

of their emotional distress - an essential element of a viable

claim for emotional distress under applicable New Hampshire law.

See, e.g., Tessier v. Rockefeller,

(2011)

(noting that one of the essential elements of a viable claim for

negligent infliction of emotional distress is “serious mental

and emotional harm accompanied by objective physical

symptoms.”). See also O'Donnell v. HCA Health Servs. of N.H.,

Inc.,

, 611–12,

(2005) (“To

recover for emotional distress under a traditional negligence

theory, we have consistently required plaintiffs to demonstrate

physical symptoms of their distress regardless of physical

impact.”); Palmer v. Nan King Rest., Inc.,

(2002) (“[I]n order to recover for emotional distress under a

traditional negligence theory, the plaintiff must demonstrate

physical symptoms of her distress.”). In other words, to state

a viable claim for emotional distress, the hospital must allege

that each individual claimant’s emotional distress was

“sufficiently serious” to have manifested itself through

physical symptoms. In re Bayview Crematory, LLC,

,

10 786 (2007). Exeter Hospital’s general allegation that the

negative results claimants suffered “diverse physical and

emotional injuries as a result of learning of their potential

infection” is not sufficient.1

Parenthetically, the court notes that even if the amended

complaint did adequately plead a claim for emotional distress

damages (it does not), if this case were to proceed to trial,

Exeter Hospital would have to introduce expert medical testimony

in order to demonstrate that each individual claimant suffered a

physical manifestation or symptom, which was causally related to

his or her emotional injuries. See, e.g., In re Bayview

Crematory, LLC,

(“To ensure that the emotional

injury is sufficiently serious to warrant legal protection and

establish a cause of action, expert testimony is required to

prove physical symptoms suffered from alleged negligent

infliction of emotional distress.”); O'Donnell,

(“Though the plaintiffs claim great suffering, we have held that

1 Because none of the negative results claimants actually filed suit against Exeter Hospital, no formal discovery was conducted and the nature and severity of each individual’s claimed emotional distress may be unclear. Consequently, Exeter Hospital may not have been able to allege, in good faith, that each of the negative results claimants suffered emotional distress that was sufficiently severe to manifest itself in physical symptoms.

11 expert testimony is required to recover damages for negligent

infliction of emotional distress.”).

Finally, it probably bears noting that the needle stick

that the negative results claimants may have had to endure as

part of the testing process (the only specific physical injury

Exeter Hospital identifies) is not a physical manifestation of

emotional distress associated with the fear of having

potentially contracted Hepatitis-C. See, e.g., Evans v. Taco

Bell Corp., No. 04-cv-103-JD,

at *8 (D.N.H.

Sept. 23, 2005) (“Evans does not assert that her claimed

emotional distress resulted from her inoculation, but rather

from her ingestion of food which she later learned could have

potentially been contaminated with Hepatitis A. Because her

alleged emotional distress did not follow from any physical

injury, Evans’s negligence claim suffers from the same fatal

defect as those of the plaintiffs in Palmer and Thorpe: it seeks

damages for emotional distress unaccompanied by either physical

injury or physical symptoms.”).

Conclusion

The allegations set forth in count 73 of the Third Amended

Complaint fall well short of plausibly asserting a factual basis

for viable negligence, negligent infliction of emotional

12 distress, or intentional infliction of emotional distress claims

by each of the 188 individual negative results claimants against

either ARRT or Triage. And, because count 74 is derivative of

count 73, it also fails to state a viable cause of action

against Triage for contractual indemnification of the sums

Exeter Hospital paid in settlement to the negative results

claimants.

ARRT’s motion to dismiss count 73 of the Third Amended

Complaint (document no. 78), as well as Triage’s motion to

dismiss counts 73 and 74 (document no. 79), are granted, without

prejudice to Exeter Hospital’s moving to amend those two counts

to state viable grounds for recovery.

If it so chooses, and if counsel can do so in good faith

(Rule 11, Federal Rules of Civil Procedure) Exeter Hospital may,

within thirty (30) days of the date of this order, file an

amended complaint that adequately and plausibly sets forth

factual allegations sufficient to state a viable basis to

recover against ARRT and/or Triage for settlements made to one

or more of the 188 negative results claimants. If Exeter

Hospital avails itself of that opportunity, it must, as for each

individual negative results claimant, allege the essential

elements of a viable claim and a plausible basis upon which to

13 rest any award of damages, including that each such claimant

suffered physical symptoms or physical manifestations of severe

emotional distress that Exeter Hospital believes, in good faith,

can be proven at trial.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 31, 2016

cc: Robert C. Dewhirst, Esq. Elaine M. Michaud, Esq. Jonathan A. Lax, Esq. Joshua M. Wyatt, Esq. Peter W. Mosseau, Esq. Jay Surdukowski, Esq. Peter A. Meyer, Esq. James B. Lynch, Esq. Mark A. Darling, Esq. Shari L. J. Aberle, Esq. Daniella Massimilla, Esq. Linda M. Smith, Esq. Ralph Suozzo, Esq. William N. Smart, Esq.

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