United States District Court, E.D. North Carolina, Northern Division
MARCO A. LUJAN, Plaintiff,
CHOWAN UNIVERSITY and LISA BLAND, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Chowan
University's (“Chowan”) motion to dismiss for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) (DE 63), defendant Lisa Bland's
(“Bland”) motion to dismiss for failure to state
a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)
(DE 66), and plaintiff's motion for leave to file a third
amended complaint (DE 85). The motions have been fully
briefed, and the issues presented are ripe for ruling. For
reasons discussed below, plaintiff's motion for leave to
file a third amended complaint is granted, and
defendants' motions to dismiss are denied as moot.
OF THE CASE
Marco A. Lujan (“Lujan”) initiated this action on
November 10, 2017, asserting claims of negligence and medical
malpractice against defendants, which allegedly caused
plaintiff to suffer hyperthermia and heat stroke during a
soccer conditioning session held August 15, 2016.
interest of judicial economy, the court incorporates by
reference its discussion of the procedural background of this
case from the court's prior order dated August 8, 2018.
In that order, the court granted plaintiff leave to file his
second amended complaint, and denied all pending motions to
dismiss in the case as moot.
August 9, 2018, plaintiff filed his second amended complaint.
Defendants then filed their respective motions to dismiss for
failure to state a claim on August 22, 2018. In support of
their motions, defendant Chowan argues plaintiff has pleaded
professional malpractice under a theory not recognized in
North Carolina; defendant Chowan and its non-healthcare
provider employees are entitled to immunity under N.C. G.S.
§ 90-21.14; plaintiff's assumed duty theories of
liability are insufficient as a matter of law; defendant
Chowan cannot be held vicariously liable for causes of action
that fail against employed healthcare providers; and
plaintiff has failed to adequately plead punitive damages.
Defendant Bland argues the second amended complaint fails to
state a claim for medical negligence; the second amended
complaint does not allege a breach of a legally cognizable
standard of care; the second amended complaint does not
allege proximate cause between an act or omission of
defendant Bland and plaintiff's injuries; the second
amended complaint fails to state a cognizable claim for
negligent hiring, training, and supervision against defendant
Bland; and plaintiff's claim for punitive damages fails
to allege the requisite aggravating circumstances.
filed his responses in opposition to the motions to dismiss
on September 11, 2018. In response to defendant Chowan,
plaintiff argues that he has sufficiently pleaded claims
pursuant to N.C. G.S. § 90-21.12; immunity under N.C.
G.S. § 90-21.14 is not available to defendant Chowan and
its employees; plaintiff has sufficiently pleaded defendant
Chowan's separate and affirmative duty to plaintiff;
plaintiff has sufficiently pleaded a claim for vicarious
liability; and plaintiff has sufficiently pleaded punitive
damages. In support of his response, plaintiff submits
excerpts from the NCAA's 2016-2017 Division II Manual
(“NCAA Manual” (DE 71-2)); Guideline 2C from
NCAA's 2014-2015 Sports Med. Handbook (“Guideline
2C” (DE 71-3)); the 2005 National Athletic
Trainers' Association Code of Ethics (“Code of
Ethics” (DE 71-4)); the 2015 National Athletic
Trainers' Association Position Statement on Exertional
Heat Illnesses (“Position Statement” (DE 71-5));
and the 2018 Bill Heinz Memorandum regarding Heat
Acclimatization and Heat Illness Prevention (“Heinz
Memorandum” (DE 71-6)).
response to defendant Bland, plaintiff argues that he has
sufficiently pleaded claims for medical negligence; the
second amended complaint alleged that defendant Bland's
actions and omissions proximately caused plaintiff's
injuries; plaintiff alleges defendant Bland owed him separate
affirmative duties, which she breached; plaintiff has
sufficiently pleaded negligent hiring, training, and
supervision against defendant Bland; and plaintiff has
adequately pleaded punitive damages. In support of his
response, defendant attaches the same supporting documents as
in his response to defendant Chowan.
September 25, 2018, defendants filed their respective replies
to plaintiff's responses. Defendant Bland argues that
plaintiff's attempt to state a claim for medical
malpractice is not supported by North Carolina law;
plaintiff's theory of assumption is an attempted end-run
around the legally imposed standard of care; and plaintiff
fails to comply with punitive damages pleading requirements.
Defendant Chowan argues that plaintiff's medical
malpractice claims fail as a matter of law; and negligence
claims based on assumption of duty should be dismissed as a
matter of law.
submission of defendants' motions to dismiss, the court
entered its case management order on November 1, 2018, with
discovery due by April 30, 2019, and dispositive motions due
May 31, 2019. During the course of discovery, plaintiff filed
the instant motion for leave to file a third amended
complaint. The proposed amended complaint would add
allegations to the complaint concerning defendant Bland's
lack of training in how to use a rectal thermometer and
defendant Chowan's failure to maintain the ice machine in
the training room, based on discovery responses received
November 17, 2018, and defendant Bland's deposition taken
November 28, 2018. In support of the motion, plaintiff
attaches his proposed third amended complaint (DE 85-1), a
redlined version of this proposed third amended complaint (DE
85-2), and excerpts from defendant Bland's deposition
(“Bland Dep.” (DE 85-3)).
Chowan responded in opposition to the motion, arguing that
plaintiff unduly delayed in seeking to amend his complaint;
that plaintiff's third amended complaint is futile; and
that defendants would be unduly prejudiced by the amendment.
In support of its response, defendant Chowan submits the
deposition of Meredith Long (“Long Dep.” (DE
89-1)), and the deposition of Michelle Aiken (“Aiken
Dep.” (DE 89-2)).
replied that the proposed allegations in the complaint
address new information that he has discovered; and
plaintiff's claims are not futile. In support of his
reply, plaintiff attaches a letter from defendant
Chowan's defense counsel (“November 2018
Letter” (DE 90-1)), and documents produced with the
letter (“Document Production” (DE 90-2)).
facts alleged in the complaint are summarized as follows.
Defendant Chowan is a private university located in
Murfreesboro, North Carolina. (Compl. ¶ 2). Defendant
Chowan is also a member of the National Collegiate Athletic
Association (“NCAA”). (Id. ¶ 7). At
times pertinent to the complaint, defendant Bland allegedly
was defendant Chowan's director of sports medicine.
(Id. ¶ 3). Plaintiff is a former student at
defendant Chowan where he was a member of the men's
soccer team. (Id. ¶ 6). As a member of the
Chowan soccer team, plaintiff trained for, practiced for and
competed in intercollegiate competitions on behalf of and at
the direction of the defendant Chowan, its agents, servants
and employees. (Id. ¶ 8).
August 15, 2016, plaintiff participated in a soccer
conditioning session, which included timed runs, near
defendant Chowan's campus, at the direction of defendant
Chowan. (Id. ¶ 9) . P r i o r to the runs,
defendant Bland gave approval to the soccer coach to have his
team run in extreme heat, and permitted Michelle Aiken
(“Aiken”), an unlicensed trainer, to examine
plaintiff to determine if he was healthy enough to
participate. (Id. ¶¶ 10, 13). During the
course of the timed runs, plaintiff experienced severe
hyperthermia and ultimately suffered a near fatal heat
stroke. (Id. ¶ 14).
alleges numerous breaches of duties by defendants, including
requiring plaintiff to practice sports in extreme weather;
permitting an unlicensed athletic trainer to examine
plaintiff and supervise team workouts; and failing to provide
equipment or training necessary to properly treat
hyperthermia and exertional heat stroke. (See Compl.
¶¶ 34, 51).
facts pertinent to the instant motions will be discussed