United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, U.S. DISTRICT COURT JUDGE.
Court has before it Defendant Millennium Health LLC's
Motion to Dismiss (Dkt. 36); Defendant Dennis Stokes'
Motion to Strike (Dkt. 61); Defendant Scott Laney's
Motion for Summary Judgment (Dkt. 77); and Plaintiff Tyrell
Curtis Erlebach's Motion to Amend/Correct Complaint
(107). For the reasons explained below, the Court will grant
Defendant Millennium Health LLC's Motion to Dismiss,
grant Defendant Dennis Stokes' Motion to Strike, deny
Defendant's Scott Laney's Motion for Summary Judgment
as premature, and grant in part and deny in part
Plaintiff's Motion to Amend/Correct Complaint.
Tyrell Curtis Erlebach (“Plaintiff”) is a former
licensed physician's assistant specializing in providing
physician assistant services in cardiac
surgery. FAC, ¶ 33, Dkt. 107-1. In
January of 2016, Plaintiff was charged in connection with a
domestic disturbance in State v. Erlebach, Payette
County Case Number CR 2016-0154. Id., ¶ 34.
Plaintiff posted a bond in the amount of $200, 000 for his
pretrial release. Id., ¶ 38. As a condition of
his release, Plaintiff was required to report to the Payette
County Misdemeanor Probation Office and follow release
conditions which included not consuming or possessing
alcoholic beverages and submitting to testing for alcohol
and/or drugs as required by his probation officer.
time of Plaintiff's release from jail, Defendant Payette
County had a contract with Indianhead Resources, LLC pursuant
to which Indianhead promised to “perform all
supervision duties for persons with pretrial release
conditions as ordered by a judge in Payette County.”
Id., ¶ 39.2. Such supervision duties included,
but were not limited to, signing people up for drug and/or
alcohol testing, referring such individuals to an appropriate
facility, monitoring the reports of drug and/or alcohol
testing, and reporting any failed drug or alcohol tests to
the Court. Id. Defendant Dennis Stokes, through his
corporation Indianhead Resources, served as the Misdemeanor
Probation Officer for Payette County. Id., ¶
41. Plaintiff alleges Stokes in turn contracted with
Defendant K & K Treatment to provide random drug and
alcohol testing of the individuals Stokes referred.
Id., ¶ 64.
not clear from the FAC precisely what services K & K
Treatment agreed to provide to either Indianhead Resources or
to Payette County. However, upon his release from detention
in early 2016, Stokes referred Plaintiff to K & K
Treatment to provide urine samples for drug and alcohol
analysis. Id., ¶ 138. Plaintiff went to a K
& K Treatment facility to provide urine samples on
January 25, February 4, February 8, February 26, March 3, and
April 14, 2016. Id., Ex. 2, p. 2. K & K
Treatment sent Plaintiff's urine samples from each of
these dates to Defendant Pinnacle Laboratory Services for
evaluation and analysis. Id. Although each of his
previous reports had been negative, Pinnacle Laboratory
Services reported Plaintiff's urine sample from April 14,
2016 tested positive for alcohol. Id. Specifically,
Pinnacle Laboratory Services reported positive findings for
ethyl glucuronide and ethyl sulfate. Id. Ethyl
glucuronide and ethyl sulfate are minor metabolites of
alcohol found in both blood and urine up to 36 hours after
alcohol consumption. Id., p. 3.
results of Plaintiff's April 14, 2016 urinalysis were
reported to Defendant Stokes, who then conveyed the results
to the Payette County Prosecuting Attorney's office.
FAC, ¶ 62. The Payette County Sheriff's
Office and Payette County District Court were also notified
of Plaintiff's “positive” alcohol test, and
Plaintiff was ultimately arrested and incarcerated for
failure to comply with his conditions of pretrial release.
Id., ¶ 159. Plaintiff alleges he was forced to
post a second bond and suffered injury to his reputation
caused by one or more stories reported in the local newspaper
regarding his alleged failure to comply with the conditions
of his supervised release. Id., ¶ 161.
Plaintiff also alleges he was ultimately barred from
practicing his profession as a physician's associate as
“a direct and proximate result” of the
“acts and omissions of the Defendants.”
Id., ¶ 214.
that Pinnacle Laboratory Services' report was a
“false positive, ” Plaintiff immediately hired
Willamette Valley Forensics to review Pinnacle Laboratory
Services' results. Willamette Valley Forensics'
report suggests the analysis conducted by Pinnacle Laboratory
Services was not scientifically reliable because: (1) the
cutoff level utilized by Pinnacle Laboratory Services was
inappropriate to use as a tool to evaluate alcohol
consumption and could lead to misinterpretation; (2) Pinnacle
Laboratory Services did not report an error rate as commonly
provided by accredited laboratories; (3) Plaintiff's
“positive” values of ethyl glucuronide and ethyl
sulfate represented trace levels of alcohol; (4) such
“positive” values also represented levels below
the laboratory's instrument capabilities to produce
credible results; (5) use of chemical products such as
vanilla extract, hygiene products, mouthwash, or cough syrup
will also produce trace levels of ethyl glucuronide and ethyl
sulfate; (6) the levels reported for Plaintiff's specimen
were consistent with his use of common household products
such as hand sanitizer, aftershave and vitamins, which can be
absorbed through dermal tissues or inhalation and can be
misinterpreted as alcohol ingestion resulting in a false
positive; and (7) laboratory reports must be interpreted by a
qualified medical individual or toxicologist. Id.,
Ex. 2, p. 7.
Plaintiff criticizes Pinnacle Laboratory Services and its
report for each of these errors, the last is key to the
inclusion of Millennium Health as a defendant in this action.
To ensure scientific reliability, the Willamette Valley
Forensics report indicates that lab reports like those issued
by Pinnacle Laboratory Services must be reviewed by a
qualified medical individual or toxicologist. Id.
Like Pinnacle Laboratory Services, Millennium Health provides
analysis of, and reporting on, urine samples provided for
forensic drug and alcohol testing. FAC, ¶ 65.
On April 2, 2015, K & K Treatment registered as a new
client with Millennium Health. Id., Ex. 1, p. 1.
Prior to this registration, Plaintiff alleges Defendant Scott
Laney, an employee of Millennium Health, advised K & K
Treatment that he knew Alisha Phillips, a family nurse
practitioner working in Payette, and suggested that Phillips
could serve as K & K Treatment's medical director.
FAC, ¶ 68. Laney agreed to contact Phillips to
see if she would be interested in this role, but purportedly
failed to do so. Id. Nevertheless, Laney represented
to K & K Treatment that Phillips had agreed to act as K
& K Treatment's authorized medical provider.
Id. The April 2, 2015 New Client Registration form
between Millennium Health and K & K Treatment designated
Phillips as K & K Treatment's “Authorized
Healthcare Provider.” Id., Ex. 1.
Phillips' signature also appeared on the New Client
Registration Form. Id. Plaintiff alleges Millennium
Health or “its agents Defendant Laney and/or Defendant
[Joseph] Johnson” forged Phillips' signature on the
New Client Registration Form. FAC, ¶ 99.
Defendant Joseph Johnson was also an employee of Millennium
Health. Phillips' signature continued to appear on drug
and alcohol analysis reports ordered by K & K Treatment
after it registered as a new client of Millennium Health.
Id., ¶ 101.
time prior to Plaintiff's April 14, 2016 urinalysis test,
Laney ended his employment with Millennium Health.
Id., ¶ 82. Plaintiff alleges, “[w]hen
Defendant Laney was no longer employed by [Millennium Health]
he and/or [Johnson] diverted the analysis of drug/alcohol
testing ordered by [K & K Treatment] from [Millennium
Health] to [Pinnacle Laboratory Services].”
Id. Plaintiff suggests Laney and Johnson
misrepresented to Pinnacle Laboratory Services that Phillips
would continue to serve as K & K Treatment's
authorized medical provider. Id., ¶ 84-85. K
& K Treatment is identified as the client, and Phillips
is identified as the “Doctor, ” on Pinnacle
Laboratory Services' urinalysis of Plaintiff's April
14, 2016 urine sample. Id., Ex. 1. Phillips is also
identified as the “Doctor, ” or ordering medical
provider, on each of Plaintiff's five negative urinalysis
tests analyzed by Pinnacle Laboratory Services at the request
of K & K Treatment prior to April 14, 2016. FAC,
¶ 104. However, Phillips is not a doctor qualified to
review drug and alcohol tests, did not order or review tests
of Plaintiff's urine samples, and did not agree to
monitor or review any drug or alcohol tests for Millennium
Health, K & K Treatment, or Pinnacle Laboratory Services.
Id., ¶¶ 104-5.
April 2016, Phillips first learned she was improperly
identified as the “Doctor” on lab reports
associated with random drug and alcohol tests arranged by K
& K Treatment when Plaintiff's criminal defense
attorney contacted Phillips and asked her to review Pinnacle
Laboratory Services' positive report of Plaintiff's
April 14, 2016 urine sample. Id., ¶ 108.
Phillips had never heard of K & K Treatment and did not
understand how she had been identified as the
“Doctor” on the Pinnacle Laboratory Services
report. Id., ¶ 109. Phillips contacted
Defendant Kim Rostad, owner of K & K Treatment, and was
told her name was listed as “Doctor” on hundreds
of lab reports issued by both Millennium Health and Pinnacle
Laboratory Services associated with random drug tests
arranged by K & K Treatment. Id., ¶ 110.
Rostad also told Phillips that Laney and Johnson had
“assisted K & K Treatment with the necessary
arrangements to have [Millennium Health] perform the testing
associated with K & K Treatment's random drug and
alcohol testing business.” Id. In addition,
Laney and Johnson purportedly “identified Alisha
Phillips as K & K Treatment's authorized medical
provider or ‘Doctor' associated with K & K
Treatment's random drug and alcohol testing
business” without Phillips' authorization or
knowledge. Id., ¶ 119.
Health filed a Motion to Dismiss Plaintiff's original
complaint on August 15, 2018. Motion to Dismiss,
Dkt. 36. The original complaint did not reference any of the
allegations regarding Laney and Johnson's
misrepresentations to K & K Treatment and Pinnacle
Laboratory concerning Phillips. In its Motion to Dismiss,
Millennium Health contends Plaintiff cannot establish the
duty element of his negligence claim because Pinnacle
Laboratory, a competitor of Millennium Health, analyzed
Plaintiff's specimen and sent the “false
positive” report to K & K Treatment. Memorandum
in Support of Motion to Dismiss, Dkt. 36-1, p. 5.
Further, Millennium Health contends it was not involved with
the collection, receipt, testing, analysis, or reporting of
Plaintiff's specimen. Id., p. 6. Although the
Court grants in part Plaintiff's Motion to Amend,
Plaintiff still fails to state a claim for negligence against
Millennium even with the allegations regarding Laney and
Johnson. For the reasons explained below, the FAC does not
adequately allege a duty owed by Millennium to Plaintiff. The
Motion to Amend is accordingly denied with respect to
Plaintiff's allegations against Millennium Health, and
Millennium is dismissed as a defendant in this action.
MILLENNIUM HEALTH'S MOTION TO DISMISS (Dkt. 36)
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 v.
Twombly, 550 U.S. 544, 555 (2007). While a complaint
“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. 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.
dismissal without leave to amend is improper unless it is
beyond doubt that the complaint “could not be saved by
any amendment.” Harris v. Amgen, Inc., 573
F.3d 728, 737 (9th Cir. 2009). The Ninth Circuit has held
that “in dismissals for failure to state a claim, a
district court should grant leave to amend even if no request
to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.” Cook, Perkiss and Liehe, Inc. v.
Northern California Collection Service, Inc., 911 F.2d
242, 247 (9th Cir. 1990). The issue is not whether plaintiff
will prevail but whether he ...