Thornton v. DaVita Healthcare Partners, Inc.
| Decision Date | 09 April 2014 |
| Docket Number | Consolidated Civil Action No 13-cv-00563-RBJ-KMT |
| Parties | DONALD THORNTON, individually and as Personal Representative of the ESTATE OF JEAN THORNTON, and on behalf of all others similarly situated, Plaintiffs, v. DAVITA HEALTHCARE PARTNERS, INC., Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER
Before the Court is defendant DaVita Healthcare Partners' motion to dismiss for failure to state a claim. Jurisdiction is proper under 28 U.S.C. 1332 because there is complete diversity of citizenship, and the amount in controversy exceeds $75,000.
The plaintiffs in this case, a consolidation of several suits against DaVita, are individuals or family members of individuals who received dialysis treatments from DaVita and allegedly suffered serious injuries as a result of that treatment. Indeed, at this stage it appears largely undisputed that the plaintiffs were severely hurt—and in some instances killed—because of hemodialysis treatments using defective products called GranuFlo or NaturaLyte. The issue before the Court is whether, assuming the truth of the facts alleged in plaintiffs' complaint, DaVita could possibly be held liable for any injury. For the reasons that follow, I grant in part the motion to dismiss.
Hemodialysis is a process used to treat patients suffering from advanced kidney disease. During that process, healthcare providers use something called a dialysate to maintain the proper balance of acid and base in the dialysis patient's blood. The products at issue in this case, GranuFlo/NaturaLyte, are a component of dialysate. Dialysates are available by prescription only. [ECF No. 53 ¶¶ 16, 43, 56.] If a patient receives an incorrect ratio of acids and bases during treatment, severe complications can ensue. In extreme cases, cardiac arrest is possible.
GranuFlo/NaturaLyte is manufactured by a company called Fresenius. Id. ¶ 7. The product includes an ingredient—sodium diacetate—that causes unsafe changes in patients' blood pH. Id. ¶ 48.1 Plaintiffs allege that Fresenius was aware of these unsafe effects. Id. ¶¶ 9, 53, 54. Fresenius was aware of the effects, in part, because of a large internal study of the outcomes of its many administrations of the hemodialysis using GranuFlo/NaturaLyte. Id. ¶ 10. In March of 2012, the FDA required Fresenius to issue a memorandum to clinics and physicians explaining these risks. Id. ¶¶ 58-59, 68.
DaVita operates an extensive network of clinics throughout the United States. Id. ¶ 1. According to plaintiffs, DaVita administered hemodialysis treatments using GranuFlo/NaturaLyte at these clinics, and ultimately plaintiffs and their family members were injured or killed by those treatments. DaVita administers GranuFlo/NaturaLyte only when prescribed by a physician. Its preparation of the treatment involves adding purified water to the GranuFlo/NaturaLyte in order to produce a solution that can be used in DaVita's dialysis machines. Id. ¶ 13. DaVita claims to use its proprietary "DaVita Quality Index" to track patient outcomes and safety. Id. ¶ 20. This information gathering process indicates, according toplaintiffs, that DaVita knew or should have known about the risks to which its patients were exposed. Id. ¶ 62.2
GranuFlo/NaturaLyte's effect on blood pH has the potential to cause a variety of complications. Plaintiffs allege that they received these products during treatment at DaVita and suffered different injuries at different times.
Plaintiffs initially filed cases separately. On April 10, 2013, this Court granted a motion to consolidate related actions into the instant case. [ECF No. 14.] The case was referred to Magistrate Judge Kathleen M. Tafoya who directed the parties to file a consolidated complaint.[ECF No. 35.] The plaintiffs filed a first amended complaint on May 28, 2013, [ECF No. 39.], and a second amended complaint styled as a class action on July 8, 2013, [ECF No. 53.]. The amended complaint brought claims of failure to warn, breach of express and implied warranty, fraudulent concealment, negligence, strict products liability, wrongful death, loss of consortium, and violations of the Colorado Consumer Protection Act against DaVita. DaVita then filed a motion to dismiss pursuant to FRCP 12(b)(6), and plaintiffs responded on September 6, 2013. [ECF Nos. 56 and 63.] DaVita filed a reply on September 22, 2013 at which point the motion became full-briefed and ripe for review by this Court. [ECF No. 65.] During all this back and forth, Judge Tafoya entered an order staying discovery until the Court could rule on DaVita's motion to dismiss. [ECF No. 67.]
In reviewing a motion to dismiss, the Court must accept the well-pleaded allegations of the complaint as true and construe them in the plaintiff's favor. However, the facts alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations that are purely conclusory are not entitled to an assumption of truth. Id. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
In responding to the motion to dismiss, plaintiffs make a concession that isn't really a concession. Plaintiffs state that they "concede for purposes of this motion that the laws of the respective states of residence should apply." [ECF No. 63 at 8.] In the next paragraph, plaintiffs claim to "reserve the right to argue that Colorado law should apply." Id. I get the sense that they took this position believing their claims were likely to survive the motion to dismiss. Because I grant in part the motion to dismiss, I also analyze the claims under applicable Colorado law in order to ensure that plaintiffs get a full and fair treatment of their arguments.
Some of plaintiffs' claims are premised on DaVita's being held liable as a manufacturer of GranuFlo/NaturaLyte solution, specifically plaintiffs' causes of action for failure to warn,3 breach of implied warranties, breach of express warranties, and strict products liability. Acknowledging that Fresenius manufactures GranuFlo/NaturaLyte, plaintiffs nonetheless insist that DaVita is also a manufacturer because it adds water to the powdered compounds sold by Fresenius and thereby "manufactures" the solution that DaVita ultimately uses in its dialysis treatments. This stretches the commonsense and legal definitions of "manufacturer" too far.
In the relevant jurisdictions, strict liability claims are not allowed against medical service or healthcare providers. See, e.g., Kohl v. American Home Prods., 78 F. Supp. 2d 885, 895-96 (W.D. Ark. 1999) (); Hoff v. Zimmer, Inc., 746 F. Supp. 872, 874 (W.D. Wis. 1990) (...
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