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Donnelly v. Rosas

United States District Court, D. Maryland

August 14, 2018

SUZANNE DONNELLY, Plaintiff,
v.
RAQUEL ROSAS, Defendant.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         Plaintiff Suzanne Donnelly (“Plaintiff” or “Donnelly”) brings this action against Defendant Raquel Rosas (“Defendant” or “Rosas”), who Donnelly alleges she sought treatment from for Lyme Disease for over two years after Rosas told her that she had experience treating tick-borne illness patients and was a “medical professional, licensed and trained as an effective healer.” (Am. Compl., ECF No. 5.) Despite the representations, Rosas was not licensed and Donnelly alleges that the treatment ultimately caused selenium toxicity. Currently pending before this Court is Defendant's Motion to Dismiss. (ECF No. 20.) The submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). This Court's jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332. For the following reasons, Defendant's Motion to Dismiss (ECF No. 20) is GRANTED IN PART and DENIED IN PART. Specifically, Defendant's Motion is GRANTED as to Plaintiff's intentional tort (Count IV) and breach of contract (Count V) claims and Counts IV and V are DISMISSED. In all other respects, Defendant's Motion is DENIED and Plaintiff proceeds with her claims for violation of the Maryland Consumer Protection Act, Md. Code Ann., Com. Law § 13-101 et seq. (Count I), fraudulent inducement and common law fraud (Count II), negligent misrepresentation (Count III), and for special and consequential damages.

         BACKGROUND

         In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). In September of 2011, Plaintiff Suzanne Donnelly contracted Lyme Disease. (Am. Compl., ECF No. 5 at ¶ 6.) After conventional treatments did not alieve her symptoms, on March 17, 2012 she began seeing Defendant Raquel Rosas who “represented that she had extensive knowledge, specialized training, and experience treating tick-borne illness patients” and “was a knowledgeable, skilled and effective medical professional, licensed and trained as an effective healer.” (Id. at ¶¶ 7, 10, 14.) Rosas then told Donnelly that one year of her treatment program would “fully cure [Donnelly's] tick-borne illness and resolve all associated or underlying conditions and symptoms.” (Id. at ¶ 10.) Relying on Rosas's statements, Donnelly began receiving “treatment, services, advice, prescriptions, consumer products manufactured by Defendant, other consumer products, goods, and diagnoses from Defendant . . . and referrals to others that provided goods or services.” (Id. at ¶ 8.) About a month or two into treatment, Rosas told Donnelly that it would in fact take two years of treatment in order for her to be fully healed. (Id. at ¶ 32.)

         The treatments occurred at Rosas's Maryland home office and included, among other things, ionized foot baths, detox baths, exposure to heat and “healing lights, ” acupuncture, and body wraps. (Id. at ¶¶ 11, 17, 30, 40.) Donnelly initially received treatments two to four times a week. (Id. at ¶ 11.) In February of 2014, however, she moved out of Maryland and began receiving treatment once every two weeks for a few days at a time.[1] (Id. at ¶¶ 11-12.) In addition to the in-person treatments, Donnelly asserts that Rosas recommended various pills, herbs, vitamins, oils, creams, and other store products. (Id. at ¶¶ 18-20.) Further, Donnelly alleges that Rosas requested that she provide regular updates of her symptoms and hair, urine, and saliva samples. (Id. at ¶¶ 25, 27.) Rosas also increased the frequency of Donnelly's treatments, supplements, and referrals, “substantially increasing the time, cost, and physical burden of Plaintiff's treatment.” (Id. at ¶ 24.) Donnelly alleges that during each visit, Rosas “continued to represent and promise Plaintiff that in return for payments, Defendant would, through her Treatments, Products, Store Products, and Referrals, fully and completely cure Plaintiff and eliminate her symptoms . . . Plaintiff relied upon these representations in continuing prescribed treatments and paying for same.” (Id. at ¶ 15.)

         Despite undergoing Rosas's treatments, using the various products, and taking the various supplements, Donnelly alleges that her Lyme Disease symptoms increased. (Id. at ¶ 35.) Nevertheless, Rosas “consistently and falsely reassured and represented to Plaintiff that new and worsening symptoms were an expected result of Defendant's treatment and Plaintiff's recovery and would be resolved with additional treatments as long as Plaintiff continued to comply with Defendant's advice in full.” (Id.) Further, to explain the symptoms, Plaintiff alleges that Rosas falsely diagnosed her with various medical conditions, including “Rickettsia” and “Erhlichia.” (Id. at ¶ 38.) Throughout her treatment with Rosas, Donnelly “believed and relied upon the representations, misrepresentations and omissions of Defendant and paid Defendant substantial sums for Treatment and Products, and, at Defendants direction, paid for Referrals and prescribed consumer products.” (Id. at ¶ 44.)

         On or around June 11, 2014, however, Plaintiff, enduring “new and worsening symptoms that were extremely debilitating, ” visited a physician. (Id. at ¶ 50.) The physician told Plaintiff that none of her known medical conditions explained her worsening symptoms, and that the products she had been taking amounted to “toxic dosages of supplements.” (Id. at ¶ 52.) Specifically, the physician suspected selenium toxicity from toxic dosages of supplements prescribed to Donnelly by Rosas. (Id. at ¶¶ 52-53.) Plaintiff therefore stopped all treatment with Defendant on June 22, 2014. (Id. at ¶ 63.) On or around July 9, 2014, Plaintiff was conclusively diagnosed with selenium toxicity. (Id. at ¶ 64.) In late 2015, Plaintiff also learned for the first time from a third party that despite Rosas's representations, she may not have been professionally licensed in any capacity. (Id. at ¶ 70.)

         On May 31, 2017, Plaintiff Donnelly initiated this action against Defendant Rosas. (Compl., ECF No. 1.) Donnelly alleges that despite Rosas's representations to her during their first meeting and throughout her treatment, Rosas is not licensed as an effective healer, has no specialized tick-borne illness medical training or expertise, and did not have the requisite medical knowledge or training to treat and cure Plaintiff. (Id. at ¶ 16.) Further, Donnelly asserts that Rosas knew she was falsely recommending the treatments and products, diagnosing Donnelly with medical conditions, and representing that her treatment program would fully cure Donnelly. From these allegations, Donnelly asserts claims for violations of the Maryland Consumer Protection Act, fraudulent inducement and common law fraud, negligent misrepresentation, assault and battery, and breach of contract. (Am. Compl., ECF No. 5.) She seeks compensatory, special and consequential, and punitive damages in addition to attorney fees and costs. (Id.) She asserts that she continues to suffer from permanent effects of selenium poisoning. (Id. at ¶ 64.)

         STANDARD OF REVIEW

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The United States Supreme Court's opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) “require that complaints in civil actions be alleged with greater specificity than previously was required.” While a court must accept as true all factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Iqbal, 556 U.S. at 678.

         Rule 9(b) of the Federal Rules of Civil Procedure requires that “the circumstances constituting fraud be stated with particularity.” Fed.R.Civ.P. 9(b). The rule “does not require the elucidation of every detail of the alleged fraud, but does require more than a bare assertion that such a cause of action exists.” Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1074 (D. Md. 1991). To satisfy the rule, a plaintiff must “identify with some precision the date, place and time of active misrepresentations or the circumstances of active concealments.” Johnson v. Wheeler, 492 F.Supp.2d 492, 509 (D. Md. 2007). As the United States Court of Appeals for the Fourth Circuit stated in United States ex rel. Nathan v. Takeda Pharmaceuticals North America, Inc., 707 F.3d 451 (4th Cir. 2013), the aims of Rule 9(b) are to provide notice to defendants of their alleged misconduct, prevent frivolous suits, eliminate fraud actions where all the facts are learned after discovery, and protect defendants from harm to their goodwill and reputation. 707 F.3d at 456 (citation omitted).

         ANALYSIS

         Plaintiff Donnelly brings claims in this Court based on diversity jurisdiction under 28 U.S.C. § 1332 for (1) violations of the Maryland Consumer Protection Act, (2) fraudulent inducement and common law fraud, (3) negligent misrepresentation, (4) assault and battery, and (5) breach of contract.[2] Defendant moves to dismiss the Amended Complaint on the ground that Plaintiff has failed to state a claim for each cause of action. Further, Defendant argues that Plaintiff's claims for special or consequential damages must be stricken, in addition to Plaintiff's claims for attorney's fees and punitive damages in relation to her breach of contract claim. This Court addresses each claim in turn below.[3]

         A. Maryland Consumer Protection Act (Count I)

         The Maryland Consumer Protection Act (“MCPA”), Md. Code Ann., Com. Law § 13-101 et seq., prohibits “unfair or deceptive trade practices.” § 13-301. The MCPA was enacted in response to “mounting concerns over the increase of deceptive practices in connection with the sales of merchandise, real property, and services and the extension of credit.” Id. at § 102(a)(1). As the Court of Special Appeals for Maryland explained in Hogan v. Maryland State Dental Association, 155 Md.App. 556, 563, 843 A.2d 902 (Md. Ct. Spec. App. 2004), “[t]he Act allows consumers to recover from persons who engage in deceptive trade practices related to the sale or offering for sale of consumer goods, consumer realty, or consumer services; the extension of consumer credit; or the collection of consumer debts.” 155 Md.App. at 563 (citing § 13-303; Consumer Protection Div. v. Outdoor World Corp., 91 Md.App. 275, 288, 603 A.2d 1376 (1992)). The MCPA also expressly exempts various types of professionals including medical professionals. § 13-101(g), 101(d), 104(1). “[C]ourts in this District have construed the exemption broadly, holding that covered professionals may be exempt from MCPA liability ‘even when they are not acting within their specific professional capacity.'” Hawkins v. Kilberg, 165 F.Supp.3d 386, 390 (D. Md. 2016) (quoting Pruitt v. Alba Law Grp., P.A., No. DKC-15-0458, 2015 WL 5032014, at *10 (D. Md. Aug. 24, 2015)). Because an MCPA claim sounds in fraud, it must be plead with particularity. Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013); Marchese v. JPMorgan Chase Bank, N.A., 917 F.Supp.2d 452, 465 (D. Md. 2013). Defendant argues that Plaintiff's claims arise from Defendant Rosas's treatment of Plaintiff Donnelly in her role as a “medical healer” and accordingly falls within this exception to the MCPA. (ECF No. 21 (citing ECF No. 5 at ¶ 75).) It is undisputed, however, that Defendant Rosas is not a licensed physician or licensed with any Maryland agency.[4](ECF No. 23 at 3.) See Scull v. Groover, Christie & Merritt, P.C., 435 Md. 112, 76 A.3d 1186 (Md. 2013) (discussing in the context of “professional services” exceptions in Maryland law that “[p]rofessionals are generally licensed on the basis of specialized training, experience, and demonstrated competence . . . Their conduct in providing such services is generally regulated by specialized boards”).

         Further, construing the Amended Complaint in the light most favorable to the Plaintiff, Donnelly asserts not only that she received treatment from Rosas, but also that Rosas sold her consumer products. The Amended Complaint alleges that “[a]t all times relevant, Plaintiff was a consumer seeking consumer goods and services, engaging in consumer transactions, and was not seeking goods or services in trade or business.” (ECF No. 5 at ¶ 73.) Donnelly further alleges that “Defendant falsely and deceitfully represented to Plaintiff that Defendant self-manufactured or possessed goods and products that included pills, pellets, tinctures, herbs, enzymes, amino acids, vitamins, homepathics, oils, creams, and other substances that were essential to cure and would in fact cure Plaintiff.” (Id. at ¶ 18.) Donnelly alleges that Rosas “prescribed and sold” the products to her despite knowing that they were of no medical value to her and potentially harmful. (Id. at ¶ 19.) See Pease v. Abbott Laboratories, Inc., No. JKB-12-1844, 2013 WL 174478, at *2 (D. Md. Jan. 16, 2013) ...


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