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Thomas D. Calvillo v. Siouxland Urology Associates P.C.

October 28, 2011

THOMAS D. CALVILLO;
NATHAN CALVILLO; JOLEEN F. DELUTRI; FLORINDA HOPPE; MARY CASADAY; VINCENT COUGHLIN; ROBERT NICHOLS; BETTY SALTSGIVER; MARK A. WASSON; KENNETH J. BAAK; CYNTHIA A. FLAMMANG; TYLER J. SITZMANN; TERRY L. CARTER; AUDREY M. PURUCKER;
LAURIE OLSON; MARGARET WHITE; GARY DUERKSEN; JAVIER RODRIGUEZ; BONNIE L. GRASER; ANNETTE HOLGUIN; RONALD R. ALLEN; THERESA KINNEY; DAN GROSENHEIDER; GLORIA TODD; GAYLEEN E. LARA; JAMES SIGATY; MARILYN UPTON; KEVIN WEIFENBACH; JAMES PETERS; THOMAS L. ASHLEY; WILLIAM P. COLLINS; PAULA G. HINDS; HAROLD NICHOLS; RAQUEL D. OATMAN; ERNESTO MIRANDA; YVONNE MOATS; DAWN GILLES; RONALD C. WILTGEN; PAMELA BANTA; ANGIE DEBRUIN; AMY HINES; PATRICK REED; PHYLLIS E. BERGDALE; DAWN GIRARD; RAY NELSON; LORI A. STEFFEN; MARION K. ATHENS, KATHERINE J. MOIR, BRANDI FRANKE. STEVEN G. GUNSOLLEY, STACEY J. NELSON, KIMBERLY STURGES, GARY WEAVER, AND DAVID M. EISMA, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED INDIVIDUALS, PLAINTIFFS,
v.
SIOUXLAND UROLOGY ASSOCIATES P.C., D/B/A SIOUXLAND UROLOGY CENTER, A SOUTH DAKOTA CORPORATION; SIOUXLAND UROLOGY CENTER, L.L.C., A SOUTH DAKOTA CORPORATION; JOHN A. WOLPERT, M.D., INDIVIDUALLY; DAVID D. HOWARD, M.D., INDIVIDUALLY; PATRICK M. WALSH, M.D., INDIVIDUALLY; KENNETH E. MCCALLA, M.D., INDIVIDUALLY; TIMOTHY G. KNEIB, M.D., INDIVIDUALLY; CRAIG A. BLOCK, M.D., INDIVIDUALLY, AND THOMAS W. HEPPERLEN, M.D., INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE AND DENYING PLAINTIFFS' MOTION TO DISMISS

Defendants, Siouxland Urology Associates, Siouxland Urology Center, Dr. Wolpert, Dr. Howard, Dr. Walsh, Dr. McCalla, Dr. Kneib, Dr. Block, and Dr. Hepperlen, move to strike all class action allegations in plaintiffs' third amended complaint because those allegations are in direct violation of this court's order following denial of class certification. Docket 95. All named plaintiffs, on behalf of themselves and all other similarly situated individuals, oppose defendants' motion. Docket 101. If the court does not reconsider certifying the class, then plaintiffs request that the court dismiss the action for lack of subject matter jurisdiction. Id. at 3.

BACKGROUND

The original complaint was filed in this court on April 17, 2009. Docket 1. Defendants moved to dismiss the complaint or, in the alternative, to strike the class allegations. Docket 28; Docket 30. On July 31, 2009, plaintiffs moved for joinder of parties and filed an amended complaint. Docket 39; Docket 47. Following its granting of the motion for joinder, the court ordered a second amended complaint to be filed identifying the newly joined parties and any facts pertaining to those individuals. Docket 63. After the second amended complaint was filed, defendants filed a motion to dismiss and a motion to strike class allegations from the second amended complaint. Docket 71; Docket 73. Plaintiffs responded and moved for a second time to certify the class. Docket 80.

On February 28, 2011, this court entered an order that denied plaintiffs' second motion for class certification and denied as moot defendants' motion to dismiss and motion to strike. Docket 91. The court denied certification of the class because the majority of plaintiffs' theories of recovery would require an individualized or case-by-case inquiry, which would make class certification inappropriate. Docket 91 at 10-11. Plaintiffs filed an interlocutory appeal with the Eighth Circuit Court of Appeals to challenge the denial of class certification. Docket 94. That appeal was considered and denied. Docket 98.

The district court also ordered plaintiffs to file a third amended complaint. Docket 91 at 15. Plaintiffs filed the third amended complaint, which included claims against defendants for negligence, medical malpractice, intentional infliction of emotional distress, negligent infliction of emotional distress, battery, fraudulent concealment, fraudulent misrepresentation, informed consent, unjust enrichment, and violation of South Dakota's deceptive trade practices and consumer protection act. The complaint alleges that plaintiffs, as patients, were harmed when defendants reused bags of irrigation fluid and plastic tubing for their cystoscopy procedures, which raised the possibility of exposure to blood infections or blood-borne illnesses.

Docket 93 ¶¶ 6-17. Plaintiffs again included class-wide claims even though class certification had been denied. Docket 93 at ¶¶ 27-42. Defendants again move to strike the class allegations from plaintiffs' third amended complaint. Docket 95.

ANALYSIS

I. Motion to Strike

Defendants' claim that plaintiffs' inclusion of class claims in its third amended complaint was improper, directly ignored the court's February order, and should be stricken. Plaintiffs state they included class claims because they did not know if the court's determination on class certification was final, they wanted to protect all plaintiffs' rights in state court, and they wanted to allow the parties to proceed with discovery on those claims if the court deemed it appropriate.

A court may order stricken from "a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike should be denied "unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action." Atl. Recording Corp. v. Raleigh, No. 4:06-CV 1708, 2009 WL 1543458, *2 (E.D. Mo. June 2, 2009) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1382).

In plaintiffs' second amended complaint, plaintiffs alleged a number of causes of action that included: negligence, medical malpractice, intentional infliction of emotional distress, battery, fraudulent concealment, fraudulent misrepresentation, failure to obtain informed consent, unjust enrichment, and exemplary damages. Docket 93. After its analysis on class certification, this court found "this case . . . will require a 'case-by-case determination' as to whether a patient is entitled to any relief . . . [t]hus, plaintiffs have failed to establish the typicality requirement for class certification." Docket 91 at 11.

The court also determined that class certification was inappropriate for multiple issues and claims pleaded in the second amended complaint "[b]ecause of the many individual issues surrounding the numerous theories for relief . . . certifying various issue classes would not increase the efficiency of the litigation." Id. at 13.

Plaintiffs argue that the court did not specifically order that their third amended complaint be filed without class action allegations,and that the court has the power to readdress the issue of class certification at any time. The court used clear language denying class certification. The court specifically stated that it found class certification inappropriate because "[m]ost of these theories for recovery necessary involve an individualized and case-by-case inquiry." Docket 91 at 10. Specifically, the court recognized that class certification was not proper for claims of intentional infliction of emotional distress, negligent infliction of emotional distress, battery, fraudulent concealment and fraudulent misrepresentation, medical malpractice, and informed consent. Id. at 10-11. Finally, the court said that it "rejects plaintiffs' argument that such class certification of ...


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