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Hallum v. Four Corners OB-GYN

United States District Court, D. New Mexico

March 18, 2019

TANYA HALLUM, Personal Representative of the Estate of Charlie Hallum, TANYA HALLUM, Individually, and JESSE HALLUM, Individually, Plaintiffs
v.
FOUR CORNERS OB-GYN, A PROFESSIONAL LLP, and DR. MARECA PALLISTER, Individually, Defendants.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant Four Corners, OB/GYN's Motion for Partial Dismissal of Plaintiffs' Claims Pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 19. The Court, having considered the motion and relevant law, finds that the motion is well-taken in part and will be granted in part and denied in part.

         BACKGROUND

         Plaintiffs Tanya Hallum and Jesse Hallum are residents of San Juan County. Doc. 1 (Complaint) at ¶¶ 3-5. Tanya Hallum is the Personal Representative of Charlie Hallum's estate. Id. at ¶ 4. On or about September 1, 2014, Tanya Hallum learned she was pregnant with Charlie Hallum and became a patient of Defendants Four Corners OB/GYN (“FC”) and Dr. Mareca Pallister. Id. at ¶ 16. FC is a professional LLP in a Colorado corporation. Id. at ¶ 7. Dr. Pallister was a member of FC and employed as a gynecologist at FC. Id. at ¶ 9. Dr. Pallister classified Tanya Hallum's pregnancy as high risk. Id. at ¶ 18. Tanya Hallum followed her gynecologist's recommendations and consistently went in for pre-natal examinations. Id. at ¶ 17.

         On or about January 6, 2015, Tanya Hallum went in to FC's Aztec, New Mexico office for an unscheduled examination due to pain in her reproductive system and was seen by Nancy Rhien. Doc. 1 at ¶¶ 20-21. Ms. Rhien is an employee of FC.[1] Id. at ¶ 21. Ms. Rhien checked Tanya Hallum's vital signs but did not examine her to determine the cause of her pain, nor did she refer her to a doctor for further investigation of the pain. Id. at ¶¶ 21-23. Instead, Ms. Rhien informed Tanya Hallum that everything was fine. Id. at ¶ 24.

         Tanya Hallum's symptoms continued and she visited FC's Durango, Colorado office on January 8, 2015. Id. at ¶ 26. Ms. Rhien again checked Tanya Hallum's vital signs but did not examine her or refer her to a doctor for further care. Id. at ¶¶ 27-29. Tanya Hallum was again told everything was fine with her pregnancy, and was not instructed to take any precautions. Id. at ¶ 30.

         On or about January 11, 2015, Tanya Hallum gave birth to Charlie Hallum, who was born approximately four months premature and “lived for a short duration.” Id. at ¶ 32.

         At some point thereafter, Dr. Pallister advised Tanya Hallum to receive an Essure birth control device. Id. at ¶ 33. Tanya Hallum consented and underwent a procedure, on or about March 19, 2015, to implant the Essure birth device. Id. at ¶¶ 34-36. However, on or about May 6, 2015, Tanya Hallum was informed that Dr. Pallister had implanted three Essure birth devices, which had to be removed. Id. at ¶ 37. As a result of the implantation of the three devices, Tanya Hallum underwent an unwanted hysterectomy. Id.

         Based on these allegations, Plaintiffs commenced the instant action on January 5, 2017. The Complaint alleges medical malpractice (Count I); negligent failure to publish safety protocols (Count II); wrongful death/loss of chance of life (Count III); loss of consortium (Count IV); unfair trade practices (Count V); medical negligence (Count VI); physician battery (Count VII); negligent infliction of emotional distress (Count VIII);[2] negligent hiring, retention, and training/supervision of Dr. Pallister (Count IX); and negligent hiring, retention, and training/supervision of Nancy Rhien (Count X). Plaintiffs seek punitive damages (Count XI). Except for Count VII directed towards Dr. Pallister specifically, and Counts VII, IX, and X referring only to a singular defendant, each count appears to be alleged against both Dr. Pallister and FC.

         Dr. Pallister filed a Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(2). Doc. 20. On September 28, 2018, this Court granted the Motion. Doc. 132. Therefore, the only claims that remain are as to FC.

         On March 17, 2017, FC filed this partial motion to dismiss, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Doc. 19. On April 17, 2017, Plaintiffs filed a response in opposition to FC's motion. Doc. 42. FC filed a reply on June 1, 2017. Doc. 45.

         LEGAL STANDARD

         I. Rule 12(b)(6)

         Under Rule 12(b)(6), a Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When considering a Rule 12(b)(6) motion, the Court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 558 U.S. 1148 (2010).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

         The Court in Iqbal identified “two working principles” in the context of a motion to dismiss. Id. First, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; see Twombly, 550 U.S. at 570 (holding that a plaintiff must “nudge” her claims “across the line from conceivable to plausible”). Accordingly, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. (citation omitted).

         In keeping with these two principles, the Court explained:

A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

         II. Choice of Law

          When a plaintiff invokes a federal district court's diversity jurisdiction, as is the case here, the district court looks to the forum state's choice-of-law rules to determine which state's substantive law to apply. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941). The first step in New Mexico choice-of-law analysis is to characterize the claim by “area of substantive law-e.g., torts, contracts, domestic relations-to which the law of the forum assigns a particular claim or issue.” Terrazas v. Garland & Loman, Inc., 142 P.3d 374, 377 (N.M. Ct. App. 2006).

         The Plaintiffs' Complaint relies not on a contract, but on a common-law theory of tort liability. When a claim is categorized as a tort, “New Mexico courts follow the doctrine of lex loci delicti commissi-that is, the substantive rights of the parties are governed by the law of the place where the wrong occurred.” Id. Where the elements of the underlying claim include harm, the place of the wrong is the place where the harm occurred. Id. (citing First Nat'l Bank in Albuquerque v. Benson, 553 P.2d 1288 (N.M. Ct. App. 1976)). The place of the wrong has been clarified to be the “location of the last act necessary to complete the injury.” Torres v. State, 894 P.2d 386, 390 (N.M. 1995) (citing Wittkowski v. State, 710 P.2d 93, 95 (N.M. Ct. App. 1985), cert. quashed, 708 P.2d 1047 (N.M. 1985), overruled on other grounds by Silva v. State, 745 P.2d 380, 385 (N.M. 1987)).

         Under Torres, New Mexico's place-of-wrong rule is not utilized if such application would violate New Mexico public policy. Id.; see also In re Estate of Gilmore, 946 P.2d 1130, 1135 (N.M. Ct. App. 1997) (“[P]olicy considerations may override the place-of-the-wrong rule.”). However, a court should “begin with a strong presumption in favor of application of the place-of- wrong rule, but [] not close [its] eyes to compelling policy arguments for departure from the general rule in specific circumstances.” Gilmore, 946 P.2d at 1136.

         III. Documents Outside of the Pleadings

          In support of its motion to dismiss, especially as related to Counts III (Wrongful Death/Loss of Chance of Life) and Count IV (Loss of Consortium), FC attaches Exhibit A, which is a certificate of Charlie Hallum's death estimating the gestational age as 21 weeks and noting that he “[d]ied during labor, after [the] first assessment.” Doc. 19-1, Ex. A. As noted above, on a 12(b)(6) motion, the court considers only “the four corners” of the plaintiff's complaint, as it is tasked with “reviewing the sufficiency of the complaint alone.” Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002); see also Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Thus, the general rule is that the court cannot consider materials attached to a defendant's motion to dismiss without converting the motion into one for summary judgment. Fed.R.Civ.P. 12(b). Exceptions to this rule include: “(1) documents that the complaint incorporates by reference; (2) documents referred to in the complaint and central to the plaintiff's claim and the parties do not dispute the documents' authenticity; and (3) matters of which a court may take judicial notice.” Gee, 627 F.3d at 1186 (internal citations omitted). When one of these exceptions applies, a court may take judicial notice of some facts without triggering conversion of a 12(b)(6) motion to a motion for summary judgment. Id.; Tal v. Hogan, 453 F.3d 1244, 1264 fn.24 (10th Cir. 2006).

         Under the first and second exceptions, the court may consider not only the complaint itself, but also attached exhibits, Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994), and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A defendant may submit for consideration an “indisputably authentic copy” of a document referred to by plaintiff in the complaint that is “central to” the plaintiff's claim. GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1385 (10th Cir. 1997); see also Jacobsen v. Deseret Book Co., 287 F.3d 936, 941- 42 (10th Cir. 2002) (noting that a court may consider documents to which the complaint refers if the documents are central to the plaintiff's claim and the parties do not dispute their authenticity); Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

         Under the third exception, a court may “take judicial notice of its own files and records, as well as facts which are a matter of public records.” Schendzielos v. Silverman, 139 F.Supp.3d (2015) (citing Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2011)). While the court may take judicial notice of documents that are a matter of public record, it may not take the facts asserted in the filings to be true. Id. In other words, a court may take notice of public records to show their contents, but not to prove the truth of matters asserted ...


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