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Hallum v. Four Corners OB-GYN

United States District Court, D. New Mexico

December 19, 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 Plaintiffs' Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60(b)(6) from Order to Dismiss Defendant Dr. Pallister for Lack of Jurisdiction and Motion to Transfer Jurisdiction to Federal District Court of Colorado pursuant to 28 U.S.C. § 1631 [Doc. 140]. The Court, having considered the motion and relevant law, finds that the motion is well-taken in part and will be granted in part.

         BACKGROUND

         Plaintiffs Tanya Hallum and Jesse Hallum are residents of San Juan County. Doc. 1 (Complaint) at ¶¶ 3-5. Ms. Hallum is the Personal Representative of Charlie Hallum's estate. Id. at ¶ 4. On or about September 1, 2014, Ms. 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 Ms. Hallum's pregnancy as high risk. Id. at ¶ 18. Ms. Hallum followed her gynecologist's recommendations and consistently went in for pre-natal examinations. Id. at ¶ 17.

         On or about January 6, 2015, Ms. Hallum visited 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 Ms. 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 Ms. Hallum that everything was fine. Id. at ¶ 24.

         Ms. Hallum's symptoms continued and she visited FC's Durango, Colorado office on January 8, 2015. Id. at ¶ 26. Ms. Rhien again checked Ms. Hallum's vital signs but did not examine her or refer her to a doctor for further care. Id. at ¶¶ 27-29. Ms. Hallum was again told that everything was fine with her pregnancy, and that she did not need to take any precautions. Id. at ¶ 30. On or about January 11, 2015, Ms. 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 counseled Ms. Hallum to receive an Essure birth control device. Id. at ¶ 33. Ms. 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, Ms. 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, Ms. 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.

         On March 17, 2017, Dr. Pallister filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure [Doc. 20], and a motion in the alternative for partial dismissal of Plaintiffs' claims for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. 21]. In her Rule 12(b)(6) motion, Dr. Pallister sought dismissal of all but two of Plaintiffs' claims as against her, specifically stating that Plaintiffs' claims for medical malpractice (Count I) and physician battery (Count VII) were “viable” claims against Dr. Pallister, “based on the sterilization procedure.” Doc. 21 at 4. On the same day, FC filed a motion for partial dismissal of Plaintiffs' claims pursuant to Rule 12(b)(6) [Doc. 19]. In its motion, FC sought dismissal of all but one of Plaintiffs' claims as against it, namely, Plaintiffs' medical malpractice claim arising out of Ms. Rhien's prenatal care of Ms. Hallum (Count I). Doc. 19 at 3.

         In a Memorandum Opinion and Order entered on September 28, 2018, the Court granted Dr. Pallister's motion to dismiss for lack of personal jurisdiction (“September 2018 Opinion”) [Doc. 132]. Specifically, the Court found that, because Plaintiffs failed to establish either general or specific jurisdiction over Dr. Pallister in New Mexico, Dr. Pallister did not have the minimum contacts with the forum state constitutionally required for this Court to exercise personal jurisdiction over Dr. Pallister. Doc. 132 at 6-10. Based on this finding, the Court granted Dr. Pallister's motion and dismissed the action as against her. Id. at 10. The Court did not consider, as an alternative to dismissal, transferring this case to the proper venue. The Court's disposition of Dr. Pallister's Rule 12(b)(2) motion rendered moot Dr. Pallister's alternative Rule 12(b)(6) motion.

         In a Memorandum Opinion and Order entered on March 18, 2019, the Court granted in part FC's partial motion to dismiss (“March 2019 Opinion”) [Doc. 143]. Specifically, the Court held as follows: Plaintiffs' medical malpractice claim (Count I) remains viable to the extent that it alleges claims against FC by Ms. Hallum based on the allegedly negligent care provided by Ms. Rhien; Plaintiffs' claims for negligent failure to publish safety protocols (Count II) and medical negligence claim (Count VI) remain viable to the extent that they are not based on the independent medical judgment of Dr. Pallister; Plaintiffs' wrongful death claim (Count III) remains viable; Plaintiffs' loss of consortium claim (Count IV) remains viable only as it applies to Ms. Hallum personally and Jesse Hallum; Plaintiffs' unfair trade practices claim (Count V) is dismissed, as New Mexico law cannot give rise to a claim for relief; to the extent that Plaintiffs intended to bring their physician battery claim (Count VII) against FC in addition to Dr. Pallister, that claim is dismissed as to FC under the corporate practice of medicine doctrine; Plaintiffs' negligent infliction of emotional distress claim (Count VIII) was withdrawn by Plaintiffs; Plaintiffs' negligent hiring, retention, and training/supervision claims (Counts IX and X) are dismissed; and Plaintiffs' claim for punitive damages (Count XI) is stricken, as it does not set forth a separate claim for relief. Doc. 143.

         Thereafter, Plaintiffs filed the instant motion seeking reconsideration of the September 2018 Opinion. Plaintiffs do not disagree with the Court's finding that New Mexico lacks jurisdiction over Dr. Pallister but argue that the Court invoked the wrong remedy by dismissing this action as to Dr. Pallister rather than transferring Plaintiffs' claims against Dr. Pallister to the proper venue. Dr. Pallister and FC both oppose the motion.

         DISCUSSION

         Plaintiffs characterize their motion as one for relief from judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, a catch-all provision stating that, “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any [] reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). As there has been no final judgment entered in this case, the Court instead construes Plaintiffs' motion as one invoking the Court's “discretion, ” pursuant to Rule 54(b), “to revise interlocutory orders prior to entry of final judgment.” Trujillo v. Bd of Educ. of Alb. Pub. Schs., 212 Fed.Appx. 760, 765 (10th Cir. 2007); see also Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir. 1988) (“[E]very order short of a final decree is subject to reopening at the discretion of the district judge.”). Rule 54(b) provides that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed.R.Civ.P. 54(b). Under Rule 54(b), “a district court can freely reconsider its prior rulings, ” and there is “no limit or governing standard on the district court's ability to do so, other than that it must do so ‘before entry of judgment.”' Lujan v. City of Santa Fe, 122 F.Supp.3d 1215, 1238 (D.N.M. 2015). Further, “[t]he Tenth Circuit has not cabined ...


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