Curtis v. PeaceHealth

1

AILA CURTIS, et al., Plaintiffs, v. PEACEHEALTH, LIZ DUNNE, DOUG KOEKKOEK, Defendants.

No. 3:23-cv-05741-RJB

United States District Court, W.D. Washington, Tacoma

January 23, 2024

ORDER ON PEACEHEALTH DEFENDANTS' MOTION TO DISMISS

ROBERT J. BRYAN United States District Judge

This matter comes before the Court on PeaceHealth, Liz Dunne, and Doug Koekkoek's (collectively “PeaceHealth” or “PeaceHealth Defendants”) Motion to Dismiss Plaintiffs' Amended Complaint (Dkt. 30) and Plaintiffs' motion for judicial notice (Dkt. 36). Oral argument has been requested but is unnecessary to decide the motions. The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

This case arises from Defendants' COVID-19 vaccine mandates for healthcare workers. Dkt. 8. The healthcare worker Plaintiffs contend that the Defendants violated Plaintiffs' constitutional and international treaty rights, federal statutory rights, and that Defendants breached a contract and committed various state torts in connection with their “unlawful, malicious, unequal and contractually violative COVID-19 investigational drug mandate[s].” Id. at 2.

All claims against Washington State Governor Jay Robert Inslee were dismissed on December 21, 2023. Dkt. 32. The PeaceHealth Defendants now move to dismiss the claims against them pursuant to Fed.R.Civ.P. (“Rule”) 12(b)(6). Dkt 30. The Plaintiffs also move the Court to take judicial notice of a letter and a declaration filed in an out-of-district case. Dkt. 36. For the reasons provided below, the motion for judicial notice (Dkt. 36) should be granted and the motion to dismiss (Dkt. 30) should be granted, as to the federal claims, and renoted as to the state law claims.

I. MOTION FOR JUDICIAL NOTICE, PROCEDURAL HISTORY AND FACTS A. MOTION FOR JUDICIAL NOTICE

Pursuant to Federal Rule of Evidence 201(b): “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”

The Plaintiffs move the Court to take judicial notice of facts in a letter, dated August 23, 2021, from the United States Food and Drug Administration (“FDA”) to Pfizer Inc. (Dkt. 36-1) and facts in the Declaration of Peter Marks, M.D Ph.D. dated January 14, 2022 (36-2). Dkt. 36.

Letter. In the December 21, 2023 order that dismissed all claims against Gov. Inslee, the Court took judicial notice of facts in the August 23, 2021 letter. Dkt. 32. Accordingly, Plaintiffs' motion regarding that letter (Dkt. 36) should be granted.

Declaration of Dr. Marks. The Plaintiffs' motion for the Court to take judicial notice of facts in Dr. Mark's Declaration (Dkt. 36) should be granted.

Dr. Marks, who at that time was the FDA's Director of the Center for Biologics Evaluation and Research (“CBER”), prepared his declaration for Coker v. Austin, U.S. Dist. Court for the Northern Dist. of Florida case number 21-1211 AW-HTC. Dkt. 36-2. His declaration states that it was based, in part, on information available to him in his official capacity, and that in his official capacity as CBER Director, he was “fully familiar with [Coker] and the facts stated [therein].” Dkt. 36-2 at 1-2. While no such showing that he is familiar with the facts of this case is made, facts relevant to this case in his declaration “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” In any event, the relevant facts in Dr. Marks' Declaration are unhelpful to the Plaintiffs as will be discussed more thoroughly below in Section I.C.

B. PROCEDURAL HISTORY

Parties. The Plaintiffs are current and former PeaceHealth employees who filed a lengthy complaint on August 18, 2023. Dkt. 1. Although there are over 80 Plaintiffs, this is not a class action. The defendants were/are Gov. Inslee, PeaceHealth, a not-for-profit healthcare system headquartered in Clark County, Washington, and officers of PeaceHealth, Liz Dunne and Doug Koekkoek. Id.

Amended Complaint. The Amended Complaint asserts federal claims against the Defendants for: (1) violation of the Fourteenth Amendment's equal protection rights, (2) violation of the Fourteenth Amendment's due process rights, (3) violation of the “Spending Clause Doctrine,” (4) “Subjected to Investigational Drug Use,” pursuant to 42 U.S.C. § 1983, (5) “Unconstitutional Conditions Doctrine,” (6) “Implied Right of Action 21 U.S.C. § 360bbb-3;” a provision of the Federal Food, Drug, and Cosmetic Act (“FDCA”), and state law claims for (7) breach of contract, (third party beneficiary), (8) “employment torts,” (9) outrage, and (10) invasion of privacy and defamation of character. Dkt. 8 at 57-70.

Order Granting Gov. Inslee's Motion to Dismiss. On December 21, 2023, Gov. Inslee's motion to dismiss was granted and all claims asserted against him were dismissed. Dkt. 32. That order further granted Gov. Inslee's motion for judicial notice that: on August 23, 2021, the Pfizer-BioNTech vaccine received full FDA approval for individuals 16 and older. Id. This order adopts the reasoning (Id.) regarding that finding. As was the case in the December 21, 2023 order, this order does not credit allegations in the Amended Complaint that the only available vaccines at the relevant time were “investigational” or “experimental.” Id.; Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1115 (9th Cir. 2014)(holding that although for purposes of a motion to amend or for a motion to dismiss the court ordinarily credits the allegations in the complaint as true, it need not “accept as true allegations that contradict matters properly subject to judicial notice,” or in a complaint's attachment, or incorporated by reference into the complaint).

The December 21, 2023 order dismissed the Plaintiffs federal constitutional claims asserted against Gov. Inslee because they failed to allege sufficient properly credited facts in the Amended Complaint to assert a claim for violation of their equal protection, substantive due process or procedural due process rights. Dkt. 32 at 8-10. It further found that there was no private cause of action under the spending clause doctrine. Id. As to the Plaintiffs' “subjected to investigational drug use,” claim, which referred to 21 U.S.C. § 360bbb-3, 45 C.F.R. Part 46, the Belmont Report, Article VI of the International Covenant on Civil and Political Rights (“ICCPR”) Treaty, 10 U.S.C. § 980, Federal Wide Assurance, and the CDC COVID-19 Vaccination Program Provider Agreement, the December 21, 2023 order held that these laws/report/treaty were inapplicable and there was no private cause of action under any of these against Gov. Inslee. Id. at 11-13. The December 21, 2023 order held that the Plaintiffs failed to allege sufficient facts for which relief could be granted on their “unconstitutional conditions doctrine claim.” Id. It further held that Gov. Inslee was entitled to qualified immunity. Id. at 13-15. This order adopts the reasoning from the December 21, 2023 order on all federal claims. The state law claims against Gov. Inslee were also dismissed. Id.

C. BACKGROUND FACTS RELEVANT TO PEACEHEALTH'S MOTION

The background facts are taken from the Amended Complaint, its attachments, and facts subject to judicial notice. Gonzalez at 1115. Where judicial notice has been, or is now taken, it will be designated. Additionally, some general background information will be taken from court decisions.

1. COVID-19, Emergency Use Authorizations for Vaccines, and Vaccine Program

COVID-19 is a “highly contagious, dangerous, and . . . deadly disease.” Biden v. Missouri, 595 U.S. 87, 93 (2022). The COVID-19 pandemic posed significant challenges for federal and state governments. Dkt. 8. Beginning in February of 2020, Gov. Inslee declared a state of emergency and issued several public health and safety proclamations. Flower World, Inc. v. Sacks, 43 F.4th 1224, 1227 (9th Cir. 2022).

In December of 2020, the FDA granted emergency use authorization (“EAU”) for the Pfizer-BioNTech (“Pfizer-BioNTech”) two-dose mRNA vaccine for individuals 16 and older and for the Moderna two-dose mRNA vaccine for individuals 18 years and older. Dkt. 8. On December 21, 2020, Pfizer-BioNTech received conditional marketing authorization in the European Union for its COVID-19 vaccine, marketed as COMIRNATY®. Id. On February 27, 2021, the FDA granted EAU for the Johnson & Johnson vaccine for individuals 18 and older. Id.

The Amended Complaint alleges that PeaceHealth voluntarily agreed to participate in the Center for Disease Control and Prevention's (“CDC”) COVID-19 Vaccination Program. Dkt. 8 at 20. Attached to the Amended Complaint is a blank “CDC COVID-19 Vaccination Program Provider Agreement” (sometimes referred to herein as “Provider Agreement”) (Dkt. 8-1) that the Plaintiffs allege PeaceHealth signed (Dkt. 8 at 20). Id. This Provider Agreement states that it was an agreement between the CDC and the organization, like PeaceHealth, who agreed to administer COVID-19 vaccines. Dkt. 8-1 at 2. The agreement requires certain conduct like: a vaccine provider would administer the vaccines in accordance with all CDC requirements and recommendations, make a record, report vaccine administration data, not sell the vaccines, provide fact sheets to those they vaccinate, handle the vaccines “under proper conditions, including maintaining cold chain conditions,” report adverse reactions and provide vaccine record cards. Id.

The Amended Complaint does not assert that the PeaceHealth Defendants administered a COVID-19 vaccine (whether experimental or not) on any of the...