Lujan v. Chowan University

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This 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.

         STATEMENT OF THE CASE

         Plaintiff 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.

         In the 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.

         On 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.

         Plaintiff 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)).

         In 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.

         On 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.

         Following 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)).

         Defendant 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)).

         Plaintiff 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)).

         STATEMENT OF FACTS

         The facts alleged in the complaint^[1] 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).

         On 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).

         Plaintiff 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).

         Additional facts pertinent to the instant motions will be discussed below.

         DISCUSSION

         A. ...