United States District Court, D. Idaho
ESTATE OF MICHAEL MURPHY, by and through Rose Murphy as Personal Representative; ROSE MURPHY; CHARITY WILEY; DERRICK MURPHY; and MANDY COUCH, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief U.S. District Court Judge
Court has before it Defendant's Motion to Dismiss (Dkt.
11). The motion is fully briefed and the Court finds these
matters appropriate for decision without oral argument. For
the reasons explained below, the Court will grant the motion
in part, and deny the motion in part.
a medical malpractice and wrongful death case. Plaintiffs
include the Estate of Michael Murphy (“Estate”);
Rose Murphy, the widow of Michael Murphy; and the children of
Michael Murphy: Charity Wiley, Derrick Murphy, and Mandy
Couch. Compl. ¶¶ 1-5, Dkt. 1. Plaintiffs
allege that Michael Murphy (“Mike”) was in the
care of the Department of Veteran Affairs
(“DVA”), an agency of Defendant United States of
America. Compl. ¶ 12, Dkt. 1. The U.S. has
authorized suit under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-2680.
allege that on May 20, 2014, Mike reported to the DVA clinic
in Pocatello, Idaho with complaints of regurgitation, pain
when swallowing, and food and pills sticking in his lower
esophagus. Compl. ¶ 9. The treating physician,
Dr. Mark Butler, sent a request to the Veterans Hospital in
Salt Lake City, Utah for a pill swallow and barium study, and
an esophagogastroduodenoscopy (EGD). Compl. ¶
10, Dkt. 1. In the request, Dr. Butler instructed the Salt
Lake physicians to cancel the tests if they deemed them
unnecessary. Id. Dr. Charles Krueger of the Veterans
Hospital in Salt Lake City ultimately cancelled the tests.
April 3, 2015, Mike returned to the DVA and Dr. Butler with
complaints that his symptoms were worsening. Compl.
¶ 11, Dkt. 1. Dr. Butler ordered an urgent EGD.
Id. On April 23, 2015, a pathology report following
the EGD showed that Mike had esophageal cancer. Id.
Mike Murphy passed away on September 8, 2015, after a fall.
Compl. ¶ 12. The fall injured Mike Murphy's
weakened esophagus, and an uncontrolled esophageal hemorrhage
caused his death. Id.
allege that the U.S. failed to appropriately diagnose and
timely treat Mike, and that this failure substantially
contributed to Mike's death. Id. The Estate of
Michael Murphy is seeking damages including medical expenses,
out-of-pocket expenses, and loss of benefits and earnings
during Mike's life. Compl. ¶ 13. Rose
Murphy, as Mike's widow, is seeking damages including
loss of consortium, loss of household services, and loss of
wages and income. Compl. ¶ 15. Mike's
children are seeking damages including loss of society, care,
comfort, and companionship of Mike.
U.S. now moves to dismiss the Estate's claim to recover
for loss of benefits. Def.s Brief at 2, Dkt. 11-1.
The U.S. also moves to dismiss the claim of Mike's
children, and to dismiss them as plaintiffs from this case.
Def.s Brief at 4, Dkt. 11-1.
Motion to dismiss under Rule 12(b)(6)
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964
(2007). While a complaint attacked by a Rule 12(b)(6) motion
to dismiss “does not need detailed factual allegations,
” it must set forth “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. 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.”
Id. at 570. 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. at 556. The
plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
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. at 557.
Supreme Court identified two “working principles”
that underlie Twombly in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). First, the court need not accept as
true, legal conclusions that are couched as factual
allegations. Id. Rule 8 does not “unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 678-79. Second, to
survive a motion to dismiss, a complaint must state a
plausible claim for relief. Id. at 679.
“Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id.
too much in the complaint may also be fatal to a plaintiff.
Dismissal may be appropriate when the plaintiff has included
sufficient allegations disclosing some absolute defense or
bar to recovery. See Weisbuch v. County of L.A., 119
F.3d 778, 783, n. 1 (9th Cir. 1997) (stating that “[i]f
the pleadings establish facts compelling a decision one way,
that is ...