) 9 II CARLETTA TILOUSI, et al., ) ) 10 II Plaintiff, ) 17" The court has before it plaintiffs' Second Amended Complaint

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1 ~FILED RECEIVED loi..,e COpy DISTRICT OF ARIZONA CLERK, MAR U S DISTRICT - S Z005COURT 11\i BY l!-ts. DEPU. ~.J IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 8 9 II CARLETTA TILOUSI, et al., ) ) 10 II Plaintiff, ) ) 11 II vs. ) ) 12 II ) ARIZONA STATE UNIVERSITY, BOARD) 13 II OF REGENTS, et al., ) ) 14 /I Defendant. ) ) ) 16 No. ORDER {'c.,. 04-CV-1290-~-FJM 17" The court has before it plaintiffs' Second Amended Complaint 18 II (SAC) (doc. 29); defendants Arizona Board of Regents (ABOR) et 19 II al. 's Motion to Dismiss Counts I, III, and IV and to Dismiss Count 20 II V as to ABOR, and to Dismiss Plaintiffs' Punitive Damages Claims as 21 to the State and Public Employee Defendants (doc. 16); defendant 22 Ortiz's Joinder (doc. 23); defendant Markow's Joinder (doc. 20); 23 defendants Martin, McCarty, and Benyshek' s Joinder (doc. 18) i 24 II plaintiffs' Response (doc. ); defendants' Reply (doc. 33); and 25 II defendants I Reply in Support of Defendant Therese Ann Markow 's 26 II Joinder in Defendant ABOR's Motion to Dismiss (doc. 38). 27

2 1 The court also has before it defendant Markow's Motion to 2 Dismiss Count II (doc. 14), Response (doc. 27) I and Reply (doc. 3 37). 4 The court also has before it defendants ABOR' s Motion to 5 Dismiss Second Amended Complaint (doc. 34) I defendant Markow's 6 Joinder (doc. 39), defendants Martin and Benyshek's Joinder (doc. 7 36), plaintiffs' Response (doc. 42), defendant's Reply (doc. 50), 8 defendants Martin and Benyshek's Reply (doc. 48), and defendant 9 Markow's Reply in support of her joinder (doc. 52). 10 The court also has before it defendant Martin and Benyshek's 11 Motion to Dismiss Counts II and IV (doc. 35), Markow's joinder 12 (doc. 40), plaintiffs' Response (doc.43), defendants' Reply (doc ), and defendant Markow's Reply in support of her joinder (doc ). 15 II Because plaintiffs' second amended complaint supersedes the 16 II first amended complaint, the first amended complaint will be 17 II treated as nonexistent. Loux v. Rav, 375 F.2d 55, 57 (9th Cir. 18 II 1967). We will consider the defendants' motions filed in response 19 II to the first amended complaint as they apply to the second amended 20 II complaint. Additionally, Plaintiffs I Consent Motion for 21 II Enlargement of Time to Respond to Defendants' Motions to Dismiss 22 the Second Amended Complaint is granted (doc. 41). 23 Hart Report 2411 Plaintiffs attempt to incorporate by reference 152 pages of a 25 II report called the "Hart Report," over 240 pages of witness 26 II summaries and other exhibits, and 319 exhibits. We strike these 2711 documents from the complaint as they attempt to plead detailed - 2 -

3 1 evidence in violation of Rule 8 of the Federal Rules of civil 2 Procedure's requirement that plaintiffs' complaint be a "short and 3 II plain statement." For purposes of this order, we consider only 411 what is contained within plaintiffs' complaint itself. 5 II Jurisdiction 6 II This court has subject matter jurisdiction under U.S.C. 7 II 1343(a) (3) because of plaintiff's 42 U.S.C Civil Rights 8 II claim contained in Count Five. 9 II Introduction 10 II This action stems from a research project directed by 11 II Arizona State University professors John Martin and Therese 12 Markow focusing on the Havasupai Indian Tribe. Defendants 13 obtained blood samples and hand print samples from plaintiff 14 tribe members ostensibly to be used to study diabetes within the 15 tribe. However, plaintiffs claim the samples were also used for 16 research on unrelated topics such as schizophrenia, inbreeding, 17 and ancient human population migrations. Plaintiffs allege a 18 number of injuries as a result of defendants' actions and these 19 additional uses. Plaintiffs contend that had they known the 20 purposes for which their blood samples would be used, they would 21 not have consented to provide the samples. (SAC at 17). 22 We address each count of plaintiffs' second amended 23 complaint separately (doc. 29). 24 Count I 25 Plaintiffs allege breach of fiduciary duty and lack of 26 informed consent on the part of all defendants. Plaintiffs claim 27 defendant Zuerlein represented to them that blood samples - 3 -

4 collected by Markow and Martin would be used solely to research 2 II and study diabetes among the Havasupai. SAC ~ 20. Plaintiffs 3 II claim defendant Benyshek induced plaintiffs to provide blood 4 II samples by representing that they would be used solely to study 5 II diabetes. Plaintiffs allege that they would not have consented to 6 II provide their blood samples had they known they would be used in 7 II other studies. SAC ~ II Plaintiffs claim all defendants failed to obtain informed 9 II consent for drawing blood and failed to use the care and skill 10 II exercised by researchers of ordinary prudence. SAC ~ 73. The 11 II Restatement requires informed consent to be "to the particular 12 II conduct, or substantially the same conduct" in order to be 13 II effective. RESTATEMENT (SECOND) OF TORTS B92A (2) (b) (1965). See 14 II Duncan v. Scottsdale Imaqinq. Ltd., 205 Ariz. 306, 311 (Ariz. 15 II 2003). Plaintiffs do not allege that the actual conduct towards 16 II plaintiffs, taking their blood samples, was not the result of 17 proper consent. Instead, they claim plaintiffs did not consent 18 to certain later uses of the blood samples. However, a comment to the Restatement notes that: The rule stated in 892B, that a consent to a contact the particular character of which the other is fully aware, is not made ineffective by reason of the fraudulent misrepresentations which induce the other to give the consent, is of peculiar importance in determining the existence of liability for a merely offensive contact... [T]he consent, though fraudulently procured, prevents the infliction of the contact from being itself a wrong and as such actionable. RESTATEMENT (SECOND) OF TORTS 18 cmt f (1965). Plaintiffs consented to having blood drawn and were fully aware 27 II of the character of the contact. Thus their consent is not made -4-

5 1 ineffective even if defendants did make fraudulent 2 representations to induce that consent. Therefore, there is no 3 cause of action for lack of informed consent and that component 4 of Count I is dismissed. 5 Additionally, plaintiffs allege in Count I that all 6 defendants violated 42 D.S.C. 9, 45 C.F.R However, this federal regulation regarding institutional review 8 II boards does not provide a private right of action nor does it 9 evidence an intent to do so. A court must determine whether a 10 statute "displays an intent to create not just a private right 11 II but also a private remedy." See Alexander v. Sandoval, 532 D.S. 12 II 275, 6 (2001). 42 D.S.C. 9 instructs the Secretary of 13 II Health and Human services to engage in certain regulatory 14 II functions. The text and structure of the statute display no 15 II intent to establish a private right of action. 16 II As to plaintiffs' claim that they had a fiduciary 17 II relationship with all defendants, plaintiffs allege no facts 18 II sufficient to establish such a relationship. As defendants point 19 II out, plaintiffs do not even allege that any of the defendants 20 II accepted the trust and confidence of plaintiffs, but instead 21 II plaintiffs' allegations focus on Martin and Benyshek's perception 22 that the Havasupai trusted Martin. Response at 10. This does 23 not establish that defendants accepted the trust of plaintiffs. 24 See ~ Greenberq v. Miami Children's HosDital, 264 F.Supp.2d (S.D. Fla. 2003). For these reasons plaintiffs' claims for 26 breach of fiduciary duty are also dismissed. Therefore, Count I 27 is dismissed in its entirety

6 Count II 2 Plaintiffs allege fraud and misrepresentation/fraudulent 3 concealment against defendants Martin, Markow, Benyshek, and 4 Zuerlein. Plaintiffs do not allege Count Two against ABOR. Rule 5 9(b) of the Federal Rules of Civil Procedure provides that all 6 averments of fraud and the circumstances constituting fraud 7 "shall be stated with particularity." The circumstances of the 8 II alleged fraud IImust be specific enough to give defendants notice 9 II of the particular misconduct...so that they can defend against 10 II the charge and not just deny that they have done anything wrong." 1111 Neubronner v. Milken, 6 F.3d 666,672 (9th Cir. 1993). lithe who, 12 II what, where, when, and how" of the alleged fraud must be set 13 II forth. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). 14 Count II is deficient with respect to defendant Martin 15 because it does not allege any particular statements of Martin's 16 II nor does it allege that any of the named plaintiffs were intended 17 II recipients of alleged fraudulent statements by Martin. 18 II Therefore, as a matter of law, plaintiffs have failed to state a 19 II claim for fraud under Rule 9(b). See Southwest Pet Products v. 20 II Koch Indus., 89 F. Supp 1115, 1130 (D. Ariz. 2000). Count II is 21 dismissed as to defendant Martin. 22 Defendant Markow also moves to dismiss Count II on the 23 grounds that it fails to cite any statements that can be 2411 specifically attributed to defendant Markow. Plaintiffs merely 2511 allege that "defendants" made "false or misleading 26 II representations" and similarly vague allegations. SAC' II Plaintiffs fail to separately allege the elements of fraud for -6-

7 each defendant as required under Rule 9(b). Southwest Pet 2 II Products v. Koch Industries, 89 F.Supp.2d 1115, 1130 (D. Ariz. 3 II 2000). Count II is therefore dismissed as to defendant Markow. 4 II With respect to defendant Benyshek, plaintiffs failed to 5 II allege the time, place, and contents of the alleged fraud with 6 II particularity as required by Rule 9(b). Plaintiffs' second 7 amended complaint merely asserts that over a three year period 8 Benyshek made false and misleading statements to plaintiffs that 9 induced them to provide their blood samples. The allegations 10 contain no specific allegations of statements by Benyshek. Count 11 II is therefore dismissed as to defendant Benyshek. 12 Count II is similarly deficient with respect to defendant 13 Zuerlein. Plaintiffs do not allege with particularity when, 14 where, or to whom Zuerlein allegedly made fraudulent statements, 15 nor do they allege the contents of Zuerlein's statements. 16 Instead, plaintiffs allege "defendants" made statements that all 17 information would be kept "locked" at ASU. Plaintiffs do not 18 state a claim for fraud against defendant Zuerlein and, 19 therefore, Count II is dismissed in its entirety. 20 Count III 21 In Count III of their second amended complaint, plaintiffs 22 allege negligent infliction of emotional distress against all 23 defendants and intentional infliction of emotional distress 24 against only defendants Martin, Markow, and Zuerlein. 25 In order to recover for the tort of negligent infliction of 26 emotional distress, the shock or mental anguish of the plaintiff 27 must be manifested as a physical injury. Keck v. Jackson,

8 Ariz. 114, 115, 593 p.2d 668 (Ariz. 1979); see also Monaco v. 2 II Healthpartners of S. Ariz., 196 Ariz. 299, 302, 995 P.2d 735, II (Ariz. App. 1999). Plaintiffs claim they have suffered "severe 411 mental and emotional harm, suffering, fright, anguish, rage, 5 II shock, nervousness, anxiety, sleeplessness, unrest, depression, 6 II humiliation, loss of self esteem, and loss of dignity." SAC' 7 II 92. The Restatement makes clear that II transi tory, non-recurring 8 II physical phenomena, harmless in themselves, such as dizziness, 9 II vomiting, and the like, do not make the actor liable where such 10 II phenomena are in themselves inconsequential and do not amount to 11 II any substantial bodily harm. II RESTATEMENT (SECOND) OF TORTS 436 (A) 12 II cmt c (1965). Also, according to the Restatement, 13 II long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long 14 II continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental 15 II aberration, may be classified by the courts as illness 16 II Id. 17 II Plaintiffs' complaint alleging continued mental and emotional 18 II harm may be adequate for a claim of bodily harm if plaintiffs can 19 II present evidence to establish long continued mental disturbance 20 II of the sort contemplated by the Restatement. Therefore, the 21 motion to dismiss the negligent infliction of emotional distress 22 claim in Count III is denied. 23 II As to plaintiffs' claim for intentional infliction of 24 emotional distress against defendants Martin, Markow, and 25 Zuerlein, plaintiffs may recover only if defendants' conduct is 26 extreme and outrageous, the defendant either intends to cause 27 emotional distress or recklessly disregards the near certainty - 8 -

9 that such distress will result, and severe emotional distress actually occurs. Mosakowski v. PPS World Medical. Inc., 329 F.Supp.2d 1112 (D. Ariz. 2003). Defendants' actions must be "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Patton v. First Federal Savinqs and Loan Ass'n of Phoenix, 578 P.2d 152, 155 (Ariz. 1978), citing Cluff v. Farmers Insurance Exchanqe, 460 P.2d 666, 668 (1969). We cannot say that defendants' alleged actions in collecting blood samples for different uses than those stated to plaintiffs do not meet this standard. Plaintiffs have alleged the elements of intent and severe emotional distress. Because plaintiffs have adequately alleged a claim for intentional infliction of emotional distress, defendants' motion to dismiss the intentional infliction of emotional distress claim in Count III is denied. Count IV Count IV of the second amended complaint alleges conversion against defendants Markow, Martin, and Zuerlein only, and not against defendant Benyshek or defendant Arizona Board of Regents et al. (ABOR). In order to state a claim for conversion, plaintiffs must allege a "right to immediate possession of the chattel at the time of the alleged conversion." Sears Consumer Fin. v. Thunderbird Products, 166 Ariz. 333, 335, 802 P.2d 1032,

10 (Ct. App. 1990). Despite plaintiffs' voluntary donation of the blood samples, which suggests plaintiffs had no right to immediate possession of the blood, plaintiffs claim defendants. committed conversion by intentionally "obtaining possession of a chattel from another by fraud or duress." RESTATEMENT (SECOND) OF TORTS 221 (b) (1965). However, Rule 9 of the Federal Rules of Civil Procedure applies to this claim grounded in fraud and requires plaintiffs to allege the who, what, when, where, and how of the alleged misconduct. Cooper v. Picket, 137 F.3d 616, 627 (9th Cir. 1997). Plaintiffs fail to comply with the requirements of Rule 9 and therefore Count IV is dismissed in its entirety. Count In Count V, plaintiffs allege that defendants Martin, Markow, Benyshek, and Zuerlein violated plaintiffs' civil rights and that plaintiffs have suffered harm as a result. Complaint ~, Plaintiffs do not allege Count V against ABOR. None of the motions to dismiss Count V address plaintiffs' claims against individually named defendants. V 21 Count VI Though not stated in the caption, defendants ABOR's Motion to Dismiss (doc. 16) also moves for the dismissal of Count VI. Plaintiffs allege all defendants are negligent, grossly negligent, and negligent per se. Plaintiffs fail to allege which laws defendants allegedly violated and fail to allege grounds to support a claim for negligence per se. Thus that claim is - 10-

11 1 "dismissed. Plaintiffs' gross negligence and negligence claims contained in Count VI will not be dismissed at this stage as they state a legally sufficient claim that defendants breached a duty owed to plaintiffs to exercise reasonable care in conducting research with human research subjects and that the alleged breach caused damage to plaintiffs. Count VII Plaintiffs allege all defendants unreasonably disclosed private facts by transferring the blood samples obtained from plaintiffs "from laboratory-to-laboratory and university-touniversity." SAC' 115. Plaintiffs base their claim on their allegation that plaintiffs have a privacy interest in their blood samples. Defendants claim that the blood samples are not IIprivate facts" concerning plaintiffs' private lives, that the dissemination of the blood samples would not be "highly offensive to a reasonable person," and that there is a legitimate public interest in information that can advance medical and scientific understanding of disease. There is no dispute that the blood samples here were obtained with the consent of plaintiffs who voluntarily donated them for research purposes. Plaintiffs' second amended complaint merely asserts that the transfer of the blood samples themselves, not any specific or identifying information regarding the blood ",samples, invades a privacy interest of the plaintiffs' because

12 they were later used for purposes other than those plaintiffs intended. Because the samples were voluntarily donated, there is no issue of fact as to whether the blood samples themselves constitute "private facts" or matters and therefore Count VII is dismissed. Count VIII Plaintiffs allege all defendants intruded on their seclusion and solitude by "conducting new or unauthorized research using Plaintiffs' Blood Samples and publishing scholarly papers and articles on ancient human population migration theories." SAC ~ 122. To state a claim for intentional intrusion upon seclusion, plaintif~s must allege (1) an intentional intrusion into a private place, conversation, or matter (2) in a manner highly offensive to a reasonable person. Medical Lab. Mqmt. Consultants v. American Broad. Companies. Inc., 306 F.3d 806, 812 (9th Cir. 2002). As defendants argue, because plaintiffs voluntarily supplied the blood samples, plaintiffs have failed to state a claim that defendants intruded into a private matter of plaintiffs' in a highly offensive manner. Count VIII is 22 dismissed in its entirety Punitive Damaqes Plaintiffs concede that they are barred by A.R.S from recovering punitive damages from state entities and public employees on state law claims. Response at 16. Counts I, II, IV, VII, and VIII have been dismissed in their entirety

13 Therefore, all state-law claims for punitive damages in the remaining Counts III, V, and VI are dismissed against ABOR and the named public employees including Martin, Markow, Benyshek, and Zuerlein. Accordingly, IT IS ORDERED GRANTING IN PART defendants ABOR et al. 's Motion to Dismiss with respect to Counts I, the negligence per se claims contained in Count VI, and all punitive damages claims (doc. 16), AND DENYING IN PART defendants ABOR et al. 's Motion to Dismiss with respect to the negligent infliction of emotional distress claims contained in Count III and the negligence and 13 II gross negligence claims contained in Count VI (doc. 16). Count 14 II II, the intentional infliction of emotional distress claim 15 II contained in Count III, Count IV, and Count V are not alleged 16 II against ABOR in the plaintiffs' second amended complaint. 17 IT IS ORDERED GRANTING IN PART defendant ABOR et al. IS Motion to Dismiss the Second Amended Complaint with respect to 20 Count I, the negligence per se claim in Count VI, Count VII, 21 Count VIII, and all punitive damages claims (doc. 34). IT IS ALSO ORDERED DENYING IN PART defendant ABOR et al.'s Motion to Dismiss the Second Amended Complaint with respect to Count III (Count III alleges only negligent infliction of emotional distress against ABOR) and the negligence and gross negligence claims in Count VI (doc. 34)

14 IT IS ORDERED GRANTING defendant Ortiz's Motion to Dismiss as Ortiz is not named in the second amended complaint as a defendant (doc. 23). IT IS ORDERED GRANTING IN PART defendant Markow's Joinder to Dismiss with respect to Counts I, IV, and the negligence per se claims alleged in Count VI. IT IS ORDERED DENYING IN PART defendant Markow's Joinder with respect to Counts III and the negligence and gross negligence claims alleged in Count VI. IT IS ORDERED GRANTING IN PART defendants Martin, McCarty, defendant in the second amended complaint, Counts I against Martin and Benyshek, Count IV against Martin (plaintiffs do not allege Count IV against Benyshek), the negligence per se claims alleged in Count VI against Martin and Benyshek, Count VII, and Count VIII. (docs. 18, 36). IT IS ALSO ORDERED DENYING IN PART defendants Martin and Benyshek's Joinder in the Motion to Dismiss with respect to Count III (docs. 18, 36). IT IS ORDERED GRANTING defendant Markow's Motion to Dismiss Count II (doc. 14). IT IS ORDERED GRANTING IN PART defendant Markow's Joinder in the Motion to Dismiss the Second Amended Complaint with respect to Count I, the negligence per se claim alleged in Count VI, Count VII, Count VIII, and claims for punitive damages (doc. 39)

15 IT IS ORDERED DENYING IN PART defendant Markow's Motion to Dismiss with respect to Count III and the negligence and gross negligence allegations in Count VI (doc. 39). IT IS ORDERED GRANTING defendant Martin and Benyshek's Motion to Dismiss Counts II and IV (doc. 35). IT IS ORDERED GRANTING defendant Markow's Joinder in the Motion to Dismiss Counts II and IV (doc. 40). The remaining claims include: Count Three intentional infliction of emotional distress claims against Martin, Markow, and Zuerlein; Count Three negligent infliction of emotional distress claims against all defendants; Count V Violation of Civil Rights claims against Martin, Markow, Benyshek, and Zuerlein; and Count VI negligence and gross negligence claims against all defendants. shows the status of claims. DATED this~ day of March, Because of the confusing complexity of the claim and party structure, we have attached a chart which... '

16 of Civil xxx= Not alleged against that defendant Consent Pnvate Fiduciary Infliction Emotional Negligence Rights SeclUSion Fraudulent Concealment Disclosure Lack Misrepresentauonl DEFENDANT offacts Informed Duty; Distress b) COUNT a) COUN1: c:) Negligence IntentIOnal Negligent Gross VIII IIi V Per COUNT a) Negligence IV XXX DISMIS~ED MARTIN MARKOW BENYSHEK ZUERLEIN DISMISSED ABOR XXX Tilousi et al. v. ABOR et al.