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Estate of Murphy v. United States

United States District Court, D. Idaho

May 7, 2018

ESTATE OF MICHAEL MURPHY, by and through Rose Murphy as Personal Representative; ROSE MURPHY; CHARITY WILEY; DERRICK MURPHY; and MANDY COUCH, Plaintiffs,


          B. Lynn Winmill, Chief U.S. District Court Judge


         The 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.


         This is 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.

         Plaintiffs 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. Id.

         On 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.

         Plaintiffs 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.

         The 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.


         1. Motion to dismiss under Rule 12(b)(6)

         Federal 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.

         The 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.

         Providing 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 ...

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