Goins v. St. Elizabeth Med. Ctr.

640 F.Supp.3d 745

Lisa Kay GOINS, Plaintiff v. SAINT ELIZABETH MEDICAL CENTER, et al., Defendants

CIVIL ACTION NO. 22-91-DLB-CJS

United States District Court, E.D. Kentucky, Northern Division. at Covington

Signed November 9, 2022

Anthony Dominick Romeo, Deters Law Firm, Independence, KY, Alan J. Statman, Statman, Harris * Eyrich LLC, Cincinnati, OH, for Plaintiff.

Cathy L. Stickels, Dressman Benzinger LaVelle P.S.C., Crestview Hills, KY, Emma Rose Gripshover, Dressman Benzinger LaVelle P.S.C., Covington, KY, for Defendants Saint Elizabeth Medical Center, Inc., John Doe(s), Jane Doe(s).

Andrew Pullen, Clay Alton Edwards, Nicholas J. Davis, O'Bryan, Brown & Toner, Louisville, KY, for Defendants Tri-State Gastroenterology Associates, Joel M. Warren, M.D.

Lori E. Hammond, Frost Brown Todd LLC, Louisville, KY, Mara Cusker Gonzalez, Pro Hac Vice, Dechert LLP, New York, NY, Sara B. Roitman, Pro Hac Vice, Dechert LLP, Chicago, IL, for Defendant ModernaTX, Inc.

Charles L. Hinegardner, Barron Peck Bennie & Schlemmer, Cincinnati, OH, for Defendant The Kroger Co.

MEMORANDUM OPINION AND ORDER

David L. Bunning, United States District Judge

I. INTRODUCTION

This matter is before the Court upon four Motions to Dismiss filed by Defendants ModernaTX, Inc. (Doc. # 12); The Kroger Company (Docs. # 14 and 16); and Tri-State Gastroenterology Associates and Dr. Joel M. Warren (Doc. # 15). Plaintiff Lisa Kay Goins has not responded to any of the pending motions, and the time for doing so has passed. Thus, each motion is ripe for the Court's review. For the reasons stated herein, the Motions to Dismiss filed by ModernaTX, Inc. (Doc. # 12) and the Kroger Company (Doc. # 16) are granted, the Motion to Dismiss filed by Tri-State Gastroenterology Associates and Dr. Joel M. Warren (Doc. # 15) is denied, and this matter is otherwise remanded to Boone Circuit Court.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Lisa Kay Goins filed this action in Boone Circuit Court in June 2022, alleging claims against ModernaTX, Inc. ("Moderna"), the manufacturer of a COVID-19 vaccine that Ms. Goins received; the Kroger Company ("Kroger"), which distributed the vaccine and provided it to Ms. Goins; Saint Elizabeth Medical Center ("St. Elizabeth"), which provided care to Ms. Goins during a health episode following her receipt of the vaccine; Tri-State Gastroenterology Associates ("Tri-State") and Dr. Joel Warren, who performed a surgery on Ms. Goins as part of the same health episode; and anonymous defendant employees of St. Elizabeth. (See generally Doc. # 1-2).

More specifically, Ms. Goins alleges that the Moderna vaccine she received caused her blood glucose levels to "fluctuate[ ] from her standard controlled level," which began a series of unfortunate healthcare events. (Id. ¶ 14). When Ms. Goins' blood glucose initially fell, she went to the emergency room at St. Elizabeth in Florence and was admitted to the hospital for "erratic hypoglycemia and shortness of breath." (Id. ¶ 15). According to Ms. Goins, the doctors at St. Elizabeth Florence were perplexed by her case and told her that they had "never seen anything like it." (Id. ¶ 19). St. Elizabeth referred Ms. Goins to Tri-State Gastroenterology, where she was examined by Dr. Joel Warren at some time following her discharge from the hospital. (Id. ¶ 22). Dr. Warren performed an endoscopic ultrasound and a pancreatic biopsy on Ms. Goins to determine if a mass was present on her pancreas. (Id. ¶¶ 23-24).

The ultrasound and biopsy resulted in no mass being found (id. ¶ 23), and Dr. Warren diagnosed Ms. Goins with "non-specific slightly hyperechoic pancreatic parenchyma with no identifiable mass." (Id. ¶ 25). In spite of that diagnosis, Ms. Goins further attests that some unidentified "doctors stated [her condition] could have been a reaction to her [ ] second Moderna COVID-19 vaccine." (Id. ¶ 26). The hospital then discharged Ms. Goins, and "[o]ver the [following] several weeks, Ms. Goins noticed she was very weak and had a loss of appetite." (Id. ¶¶ 27-28). Ms. Goins' condition continued to worsen, and she went to an emergency room at Harrison Memorial Hospital in Cynthiana. (Id. ¶¶ 28-30). Harrison Memorial admitted Ms. Goins to the hospital and determined that she had pancreatitis and a pseudocyst on her pancreas. (Id. ¶¶ 31-32). The ER doctor at Harrison Memorial "indicated the pseudocyst on the pancreas was more than likely caused from any irritation like a biopsy." (Id. ¶ 33). The hospital discharged Ms. Goins two days later. (Id. ¶ 34).

According to Ms. Goins, she continued to have a loss of appetite and could not hold down food after she left Harrison Memorial (id. ¶ 35), which prompted her to schedule a telehealth appointment. (Id. ¶ 36). The telehealth doctor instructed Ms. Goins to immediately go to an emergency room, and she went to St. Elizabeth in Edgewood. (Id. ¶¶ 36-37). At St. Elizabeth Edgewood, Ms. Goins was found to have internal bleeding, a "subcapsular splenic hematoma and presence of subcapsular splenic parenchymal laceration / rupture." (Id. ¶ 40). From there, a doctor performed an emergency surgery to fix Ms. Goins' internal bleeding and diagnosed her with "hemorrhagic shock, pancreatic necrosis, pancreatitis associated with posterior wall gastric perforation, spleen hematoma, acute blood loss, and acute pancreatitis." (Id. ¶ 42). The doctors at St. Elizabeth then performed a second surgery on Ms. Goins in October 2021 to place a drainage tube in her pancreas. (Id. ¶ 46).

The second surgery caused Ms. Goins to experience many after-effects, including being on a liquid diet (id. ¶ 47), being weak and having to undergo physical therapy twice a week, including using a walker and having a feeding tube. (Id. ¶¶ 48, 52). Ms. Goins attests that the after-effects of the surgery caused her to be "devastated [and] concerned she could not do basic skills, walk, or go up and down steps," which in turn caused her to become depressed. (Id. ¶ 49). After being discharged with a feeding tube, Ms. Goins' feeding tube port became infected, and after the infection was treated, Ms. Goins' feeding tube was removed in December 2021. (Id. ¶¶ 58, 60, 63). According to Ms. Goins, this series of events, beginning with her surgery in August 2021, was a "life altering experience" that caused her to suffer many different types of damages. (E.g., id. ¶ 64). While unclear, the gravamen of Ms. Goins' complaint seems to be that her Moderna COVID-19 vaccine caused the entire ordeal. (See id. at 22). Otherwise, Ms. Goins has also asserted general malpractice claims against the healthcare providers who treated her. (See, e.g., id. at 16-17).

Ms. Goins filed this action in Boone Circuit Court in June 2022, and St. Elizabeth filed an Answer to the Complaint in state court. (Doc. # 10). In July 2022, Moderna filed a Notice of Removal (Doc. # 1), removing the case to this Court. Moderna's Notice of Removal invoked multiple bases for subject-matter jurisdiction, including federal officer removal under 28 U.S.C. § 1442.¹ (Doc. # 1 at 4). Since the case's removal, Ms. Goins has not made any filings in the case, except for a Notice of Appearance filed on her behalf. (Docs. # 28 and 29). As part of that complete lack of prosecution, Ms. Goins has notably failed to respond to any of the four pending Motions to Dismiss, which were each filed in July 2022. (Docs. # 12, 14, 15, 16). The time for filing responses has passed, and the pending motions are thus ripe for the Court's review.

III. ANALYSIS

Local Rule 7.1(c) provides that "[f]ailure to timely respond to a motion may be grounds for granting the motion." LR 7.1(c). However, in the Sixth Circuit, a failure to respond is not alone a reason for a court to grant a motion to dismiss, even when local rules permit such a granting. Allstate Ins. Co. v. LG&E Energy, LLC, 201 F. App'x 311, 315 (6th Cir. 2006) (citing Carver v. Bunch, 946 F.2d 451, 452 (6th Cir. 1991)). Instead, as the Sixth Circuit explained in Carver, the district court "is required, at a minimum, to examine the movant's motion . . . to ensure that he has discharged [his] burden." 946 F.2d at 455 (explaining that a motion to dismiss should be processed in the same manner as a motion for summary judgment, ensuring that burdens are met); see also Green v. City of Southfield, 759 F. App'x 410, 417 (6th Cir. 2018) ("where the adverse party has not responded to a motion to dismiss, the district court must consider the evidence presented and make a determination accordingly."). Nonetheless, a court may dismiss an action by granting an unopposed motion if the nonmoving party's behavior "rises to the level of a failure to prosecute under Rule 41(b)." Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998) (citing Carver, 946 F.2d at 454).

Here, the Court notes at the outset that Plaintiff has almost entirely failed to prosecute her case since its removal from Boone Circuit, with the only activity being taken on her behalf being the filing of a Notice of Appearance.² (Doc. # 29). The Notice contains one sentence and merely notes that Alan Statman will be appearing on Ms. Goins' behalf. (Id.). Notably, the Notice was filed while all four Motions to Dismiss remained pending, and after the deadline to respond to each had passed. (See, e.g. Doc. # 12). Plaintiff likewise did not file a Motion to Remand the case back to state court where she filed it. In sum, notwithstanding the one-sentence Notice, all signs point to Plaintiff having completely abandoned her case. While the Court accordingly notes that this case is susceptible to dismissal under Rule 41(b), it will adjudicate the instant motions to dismiss in light of Carver, addressing each on the merits.

A. Standard of Review

In evaluating a 12(b)(6) motion to dismiss, a court is called to assess whether the plaintiff has "state[d] a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting ...