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Libby v. Park Marion and Vernon Streets Operating Co. LLC

United States District Court, D. Massachusetts

March 20, 2018

WILLIAM LIBBY, Personal Representative of the ESTATE OF SARAH THERESA LIBBY, Plaintiff,


          Judith Gail Dein United States Magistrate Judge


         The plaintiff, William Libby, in his capacity as the Personal Representative of the Estate of Sarah Theresa Libby (“Ms. Libby”), brought this action against Park, Marion and Vernon Streets Operating Company, LLC d/b/a Brookline Health Care Center (“BHCC”).[1] As alleged in the Complaint, Ms. Libby choked to death when she was left unsupervised to eat in the dayroom of the assisted living facility in which she resided.

         Suit was originally filed in Norfolk Superior Court on or about February 27, 2017, and the Complaint was served on BHCC on or about April 14, 2017. (Docket No. 1 at ¶¶ 1, 2). A First Amended Complaint (“FAC”) was filed on or about May 2, 2017. (Id. at ¶ 2; Id. at Ex. 5). BHCC removed the action to this court on May 12, 2017, alleging that this court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) on the basis of diversity of citizenship between the parties, and an amount in controversy in excess of $75, 000. (Docket No. 1).

         The plaintiff subsequently filed a “Motion to Amend Complaint to Add New Party” seeking to add the Director of Nursing at BHCC, Altagrace Metayer, as a defendant (Docket No. 24) and a “Motion to Remand” this matter to state court, arguing that the addition of Nurse Metayer would have defeated diversity jurisdiction. (Docket No. 31). This court denied both motions without prejudice, holding that the proposed Second Amended Complaint (Docket No. 24-1) failed to state a claim against Ms. Metayer, and that, as a result, diversity jurisdiction was not disturbed and there was no basis to remand this action to state court. (See Docket No. 37).

         Thus, the operative complaint is the FAC, which purports to state a claim of negligence (Count I), wrongful death (Count II), “[b]reach of implied covenant of good faith, reasonableness and fair dealing” (Count III), and violation of Mass. Gen. Laws ch. 93A (Count IV). (Docket No. 1 at Ex. 5).

         This matter is before the court on BHCC's motion to dismiss Count IV for failure to state a claim, brought pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Docket No. 12). For the reasons detailed herein, the FAC satisfies the pleading requirements for a claim of unfair or deceptive business practices under Mass. Gen. Laws. ch. 93A. Therefore, defendant's motion to dismiss (Docket No. 12) is DENIED.


         BHCC operates a senior care facility located at 99 Park Street, Brookline, Massachusetts, known as Brookline Health Care Center. (FAC ¶ 2). BHCC held itself out “as a specialist in the fields of rehabilitation and skilled nursing care with the expertise necessary to maintain the health and safety of persons unable to care adequately for themselves.” (Id. ¶ 15). Ms. Libby was admitted to BHCC on or about April 7, 2012 for skilled nursing care and rehabilitation after a hospitalization for seizures and falls, and she remained there until her death on May 7, 2014. (Id. ¶¶ 11-12). Upon her admittance, Ms. Libby signed a written agreement (the “Agreement”) with BHCC that “was intended to ensure that [BHCC] complied with all state and federal legal requirements in the performance of the Agreement.” (Id. ¶ 13).

         Throughout her time at BHCC, Ms. Libby was deemed to be at risk for falls. (E.g., id. ¶¶ 20, 22, 25, 28, 30, 36, 37, 40). She fell unsupervised or reported falling unsupervised on July 7, 2012; April 5, 2013; May 18, 2013; and April 8, 2014. (Id. ¶¶ 20, 28, 30, 40). Her medical records also indicated that she was on a soft diet, customized for her diabetes, and at variable times during her residency at the facility required continual supervision while eating since she was at risk for aspiration. (E.g., id. ¶¶ 16-19, 24, 26-27, 32, 35-36, 38-39, 41-42). As further alleged in the First Amended Complaint:

On the morning of May 7, 2014, a resident in the day room alerted the nurses to help Ms. Libby who was holding her chest and in distress. A nurse's note later in the day said that Ms. Libby was seen holding her neck and tapping on her chest; and that she became unresponsive as she was being assessed by staff.

(Id. ¶ 43). When ambulance personnel attempted to insert an endoctracheal tube, they “had to remove a silver dollar sized piece of food before they were able to successfully intubate her.” (Id. ¶ 44). Ms. Libby was pronounced dead upon her arrival at Beth Israel Hospital. (Id. ¶ 45). The cause of death was “respiratory distress, secondary to aspiration.” (Id.). An autopsy revealed “a large volume of undigested food in her stomach and evidence of recent aspiration in her left lung.” (Id.).

         The plaintiff further alleges that BHCC “failed to provide adequate staff to care for [Ms. Libby] in order that the facility would maximize its profits” (id. ¶ 71) and that BHCC held itself out “as capable of providing nursing and physician services in a timely and effective way” and “of providing adequate staffing to attend to Ms. Libby's needs, ” while “understaffing the facility in contradiction to the promises made in the [Agreement] with Ms. Libby.” (Id. ¶ 79). The plaintiff alleges that this understaffing “resulted in [BHCC's] failure to properly assess, evaluate and maintain adequate aspiration and choking precautions and failure to properly maintain fall precautions.” (Id.).

         On January 19, 2017, the plaintiff served BHCC with a 93A demand letter by certified mail, return ...

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