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Dishner v. Universal Health Services, Inc.

United States District Court, N.D. Texas, Dallas Division

April 4, 2018

JOE DISHNER, Individually and as Executor of The ESTATE OF RUTH ANNE MARDOCK, EMMA DISHNER and GEORGE DISHNER, Plaintiffs,



         In this wrongful death action, defendant Universal Health Services, Inc. (“UHS”) moves under Fed.R.Civ.P. 12(f) to strike portions of plaintiffs' first amended complaint (“complaint”). For the reasons that follow, the court grants the motion in part and denies it in part and grants plaintiffs leave to replead.


         Plaintiffs Joe Dishner, Emma Dishner, and George Dishner (“the Dishners”) bring this action against defendant UHS, asserting claims arising out of the death of Ruth Anne MarDock, M.D. (“Dr. MarDock”). The Dishners allege that Dr. MarDock was working as an independent contractor at UHS's Timberlawn Behavioral Health System facility (“Timberlawn”) when she was tackled by a patient, resulting in serious head injuries that ultimately caused her death. Dr. MarDock's surviving spouse and children, in turn, bring claims under the Wrongful Death Act, Tex. Civ. Prac. & Rem. Code §71.001, et seq.

         The Dishners' complaint makes allegations about UHS's finances, including that UHS implements a business strategy of reducing staffing, safety, supervision, and management expenses; that UHS relies on, and reaps the benefits of, government funding along with “lower government scrutiny”; that, as a result of insufficient personnel and safety expenditures, UHS has been sued numerous times and cited by various agencies for inadequate staffing at facilities around the country; that patients have been sexually assaulted and otherwise harmed in facilities other than Timberlawn; that Timberlawn, where Dr. MarDock was working at the time she was attacked, is responsible for several similar safety incidents and fines; and that Timberlawn lost its federal funding as a result of failure to comply with patient safety, staffing, and other guidelines. UHS moves under Rule 12(f) to strike these parts of the complaint, contending that they do not comply with Rule 8(d)(1) standard that pleadings be “simple, concise, and direct.”


         “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Rule 12(f). The decision to grant a motion to strike is within the court's discretion. Jacobs v. Tapscott, 2004 WL 2921806, at *2 (N.D. Tex. Dec. 16, 2004) (Fitzwater, J.), aff'd on other grounds, 277 Fed.Appx. 483 (5th Cir. 2008). “The essential function of a Rule 12(f) motion is to ‘avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.'” Doe v. Roman Catholic Diocese of Galveston-Hous., 2006 WL 2413721, at *2 (S.D. Tex. Aug. 18, 2006) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)), rev'd on other grounds, 510 U.S. 517 (1994)). Motions to strike are generally viewed with disfavor and are seldom granted, because these motions seek a “drastic remedy” and are often “sought by the movant simply as a dilatory tactic.” FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D. Tex. 1993) (Cummings, J.) (citing Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)). “Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation. If there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied.” Pan Am. Life Ins. Co. v. Blanco, 311 F.2d 424, 428 n.13 (5th Cir. 1962) (quoting 2 Moore's Fed. Prac., 2d ed., P12.21(2)); see also Florance v. Buchmeyer, 500 F.Supp.2d 618, 645 (N.D. Tex. 2007) (Ramirez, J.) (Rule 12(f) motions “are viewed with disfavor” and should be granted “only when the pleading to be stricken has no possible relation to the controversy.”) (citations omitted)), rec. adopted, 500 F.Supp.2d at 624 (N.D. Tex. 2007) (Lynn, J.).

         “[W]hen there is no showing of prejudicial harm to the moving party, the courts generally are not willing to determine disputed and substantial questions of law upon a motion to strike.” Augustus, 306 F.2d at 868 (footnotes omitted). “Prejudice results to the moving party where the allegation or defense would have ‘the effect of confusing the issues or is so lengthy and complex that it places an undue burden on the responding party.'” Certain Underwriters at Lloyd's v. Bell, 2014 WL 4546046, at *4 (S.D.Miss. Sept. 11, 2014) (quoting Cumis Ins. Soc., Inc. v. Peters, 983 F.Supp. 787, 798 (N.D. Ill. 1997).


         UHS contends that ¶¶ 11-24 of the complaint describe a practice of “corporate greed” and “putting profits ahead of safety, ” and that the allegations “are immaterial to Dr. MarDock's death at Timberlawn, ” D. Br. 4; that ¶¶ 25-43, regarding inspection reports and lawsuits at non-Timberlawn facilities, are based on “other people's allegations and hearsay, ” and have no relevance to the circumstances of Dr. MarDock's attack at Timberlawn, id. at 5; and that pleadings of previous events are irrelevant because the suggested patterns neither indicate the “individualized circumstances and the purported dangers” of the Timberlawn facility at the time of Dr. MarDock's attack, nor demonstrate “that UHS knew or had reason to know of such an attack, ” D. Reply 3.

         The Dishners respond that the challenged parts of the complaint are material and pertinent to establish their claims for premises liability, [1] negligence, [2] and gross negligence.[3] They maintain that the allegations are relevant for establishing the actual or constructive knowledge element for the premises liability claim, and demonstrate the breach of duty element for their premises liability and negligence claims. The Dishners also contend that the challenged paragraphs are material to their gross negligence claims and are probative of UHS's subjective awareness of the risks involved and its conscious indifference to the risks. They posit that the context provided by these background allegations enables the complaint to meet the required plausibility standard.[4]



         The court agrees that ¶¶ 11-43 of the first amended complaint-set out under the rubric “UHS Generally”-are immaterial and impertinent. The background information alleged in ¶¶ 11-24 addresses the financial structure and revenue sources of UHS as a whole, and an alleged strategy of increasing profitability through “more efficient management of the operating expenses.” Compl. ¶¶ 11-24. These background fact allegations are not relevant to any specific element of a premises liability or negligence claim that the Dishners bring. The Dishners maintain that the claims show a profit motive resulting in an alleged “conscious indifference, ” as required to prove gross negligence.[5] Paragraphs 11-24, however, go well beyond a “simple, concise, and direct”[6] allegation demonstrating a plausible claim that UHS was consciously indifferent to safety issues at the Timberlawn facility. Rule 8(d)(1); see also Twombly, 550 ...

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