United States District Court, E.D. Pennsylvania
February 11, 2004.
JOSEPH L. CASTLE, II, et al.
LINDA J. GROUSE, M.D.
The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
Plaintiffs, Trustees of the AHP Settlement Trust (the "Trust"),*fn1
have sued defendant Linda J. Grouse, M.D. under the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964, et
seq., as well as for various common law torts, including fraud.
Defendant has moved to dismiss this action under Rule 12(b)(3) of the
Federal Rules of Civil Procedure for improper venue and under Rule 12(b)
(6) for failure to state a claim upon which relief can be granted.
This action is related to the nationwide Class Action Settlement
involving Wyeth's diet drugs Pondimin and Redux, commonly known as
fen-phen. The class action, as well as Mutli-District Litigation No.
1203 involving fen-phen, are both situated in this court. In accordance
with the Class Action Settlement Agreement approved by this court in
Pretrial Order ("PTO") No. 1415 in Brown, et al. v. American Home
Corporation, Civ.A. No. 99-20593 (E.D. Pa.), the Trust was
established and funded by Wyeth to pay benefits to class members who
suffered mitral or aortic heart valve regurgitation from ingesting
fen-phen. To obtain those benefits a class member is required to submit
an echocardiogram read by a board-certified cardiologist who certifies
that the class member's condition meets the definitions set forth in the
Settlement Agreement. Settlement Agreement, § VI.C. The cardiologist
must supply various medical information about the class member,
including the echocardiogram readings, on a court-approved form known as
a Green Form, and must attest to the accuracy of the information
presented under penalty of perjury. Settlement Agreement, § VI.C.4;
Green Form, Part II. The Green Form also has a section to be completed
and signed by the claimant and one to be completed and signed by the
Dr. Crouse, a board-certified cardiologist, was engaged by various
attorneys to read and certify the echocardiograms of some 2,500 class
members. The complaint asserts that hundreds of Dr. Grouse's readings
were not only medically unreasonable but that she and others were
involved in a scheme to defraud the Trust. It further alleges that as a
result of the Trust's reliance on her certifications given under oath, it
paid out several million dollars to undeserving claimants. The Trust
seeks compensatory and punitive damages.
First, Dr. Grouse challenges venue in this district. As the defendant,
she bears the burden of proving that venue is improper. Myers v.
American Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982); Simon
v. Ward, 80 F. Supp.2d 464, 466-68 (E.D. Pa. 2000). The relevant
facts, however, are not in dispute.
Dr. Grouse resides and practices medicine with Kramer and Grouse
Cardiology, P.C.*fn2 ("Kramer and Grouse") in Kansas City, Missouri,
where she read all the echocardiograms in issue and attested to the
completed Green Forms. Immediately above the line for her signature and
the date are the following two sentences:
This form is an official court document sanctioned
by the Court that presides over the Diet Drug
Settlement and submitting it to the Claims
Administrators is equivalent to filing it with a
Court. I declare under penalty of perjury, that
the information provided in this form is correct
to the best of my knowledge, information and
Dr. Grouse forwarded the completed Green Forms to the various attorneys
by whom she was engaged, and the attorneys in turn transmitted the forms
to the Trust.
When completed, the forms were sent to the Diet Drug Settlement, P.O.
Box 7939, Philadelphia, PA 19101. This address was on the first page of
the Green Form. It is undisputed that the Green Forms certified by Dr.
Grouse were received by the Trust in Philadelphia and that the benefits
provided to class
members as a result of these certifications were paid by the Trust
from this location.*fn3
Since this action is not based solely on diversity of citizenship, the
applicable venue statute is 28 U.S.C. § 1391(b). The Trust relies
specifically on § 1391(b)(2), which reads:
A civil action wherein jurisdiction is not founded
solely on diversity of citizenship may, except as
otherwise provided by law, be brought only in . . .
(2) a judicial district in which a substantial part
of the events or omissions giving rise to the claim
Under § 1391(b)(2), we must focus on whether "a substantial part
of the events or omissions giving rise to the claim" occurred in this
district, not on the extent of the defendant's particular contacts with
the forum. See Cottman Transmission Svs., Inc. v. Martino,
36 F.3d 291
, 294 (3d Cir. 1994). Under Cottman, "[s]ubstantiality
is intended to preserve the element of fairness so that a defendant is
not haled into a remote district having no real relationship to the
dispute." Id. The substantiality factor has clearly been met.
As noted above, Dr. Grouse signed and submitted some 2,500 Green Form
certifications which were ultimately forwarded to the Trust in
Philadelphia for review and processing. Hundreds of these are alleged to
be fraudulent. It was from Philadelphia that the Trust disbursed several
million dollars to allegedly undeserving
claimants based on the Trust's reliance on those certifications.
This is not a remote district having no real relationship to the claims
in issue. Id.
In Cottman, our Court of Appeals cited with approval
Bates v. C & S Adjusters, Inc., 980 F.2d 865 (2d Cir.
1992). Bates involved a claim under the Fair Debt Collection
Practices Act. Although the plaintiff had incurred a debt while living in
the Western District of Pennsylvania, he instituted his action in the
Western District of New York. The creditor, which was also located in
Pennsylvania, had referred the matter to defendant, a debt collection
agency that did not do business in the state of New York. The agency sent
plaintiff a letter at his Pennsylvania address, but the Postal Service
forwarded it to him at his new address in New York state. The Court of
Appeals for the Second Circuit explained that venue was not a matter of
contacts but a matter of where events occurred. Since the harm under the
Fair Debt Collection Act did not occur until plaintiff received the
letter, the court held that its receipt was a substantial event and that
venue was proper. If the receipt of the letter as a result of the
forwarding procedures of the Postal Service was sufficient to establish
venue in Bates, surely the receipt in the Eastern District of
Pennsylvania of numerous allegedly false or fraudulent Green Forms signed
by Dr. Grouse and the payment by the Trust of several million dollars in
benefits from this district predicated on those Green Forms are
sufficient events to establish proper venue here.
Dr. Grouse has not met her burden of proof to establish that venue is
improper. Her motion to dismiss the complaint under Rule 12(b)(3) of the
Federal Rules of Civil Procedure will be denied.
Dr. Grouse also challenges the sufficiency of the Trust's complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint
should be dismissed under Rule 12(b)(6) only where "it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." In re Rockefeller Ctr.
Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). All
reasonable inferences are drawn in favor of the non-moving party.
See Univ. of Md. at Bait, v. Peat, Marwick, Main & Co.,
996 F.2d 1534, 1538 (3d Cir. 1993).
As an integral part of its motion to dismiss, the defendant contends
that the Trust's complaint does not comply with Rule 9(b) of the Federal
Rules of Civil Procedure, which provides that the "circumstances
constituting fraud . . . shall be stated with particularity." The
Court of Appeals of this Circuit has held that "Rule 9(b) requires a
plaintiff to plead (1) a specific false representation of material fact;
(2) knowledge by the person who made it of its falsity; (3) ignorance of
its falsity by the person to whom it was made; (4) the intention that it
should be acted upon; and (5) that the plaintiff acted upon it to his
damage." Shapiro v. UJB Fin. Corp., 964 F.2d 272, 284 (3d
Cir.), cert. denied, 113 S.Ct. 365 (1992). The court is
not to focus exclusively on the "particularity" language of Rule 9(b),
however, for doing so would be to take "too narrow an approach and fails
to take account of the general simplicity and flexibility contemplated by
the rules." Seville Indus. Mach. Corp. v. Southmost Mach.
Corp., 742 F.2d 786, 791 (3d Cir. 1984). "Rule 9(b) falls short of
requiring every material detail of the fraud such as date, location, and
time." Fed.R.Civ.P. 9(b); Rockefeller, 311 F.3d at 216. We
must not lose sight of the main purpose of Rule 9(b) which is to put the
defendant on notice of the claims against which she must defend. See
Christidis v. First Pa. Mortgage Trust, 717 F.2d 96, 99-100 (3d Cir.
We turn first to the Trust's claims under RICO which provides that
"[a]ny person injured in his business or property by reason of a
violation of § 1962 . . . may sue therefor in any appropriate
United States district court and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney's
fee." 18 U.S.C. § 1964 (c).
Count I of the complaint alleges a violation of
18 U.S.C. § 1962(c), which states: "[i]t shall be unlawful for any person
employed by or associated with any enterprise engaged in, or the activities
which affect, interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of unlawful
debt." In order to plead a
claim under § 1962(c), the Trust must allege that Dr. Grouse
"engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activities." Schroeder v. Acceleration Life Ins. Co. of
Pa., 972 F.2d 41, 46 (3d Cir. 1992). Dr. Grouse asserts that the
Trust has failed to allege a pattern of racketeering activity and that it
lacks standing to assert a § 1962(c) claim.
"Racketeering activity" is defined under § 1961(1)(B) as any act
indictable under certain provisions of Title 18 of the United States
Code. 18 U.S.C. § 1961 (1)(B). The provisions relevant to the present
case are 18 U.S.C. § 1341 and 1343, which make it a crime to engage
in mail fraud or wire fraud. Id. A "pattern of racketeering
activity" is defined as requiring at least two acts of racketeering
activity occurring within a ten-year period. 18 U.S.C. § 1961(5).
Integral to a pattern of racketeering activity are: (1) relatedness of
the racketeering predicates; and (2) racketeering predicates which amount
to continued criminal activity or pose a threat of continued criminal
activity. Tabas v. Tabas, 47 F.3d 1280, 1292 (3d Cir.) (en
bane), cert. denied, 115 S.Ct. 2269 (1995) (citing H.J.
Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 240 (1989)).
Dr. Grouse first argues that the Trust has failed to allege with
sufficient particularity mail and wire fraud. Specifically, the defendant
contends that the Trust has failed to identify a single mailing or use of
the wires. The essential elements of mail or wire fraud under §§ 1341
and 1343 are that:
(1) there was a scheme to defraud; (2) the defendant participated
in the scheme with specific intent to defraud; and (3) the United States
mail or wire communications were used in furtherance of the fraudulent
scheme. U.S. v. Svme, 276 F.3d 131, 142 n.3 (3d Cir. 2002).
The Trust has alleged in its complaint that Dr. Grouse willfully signed
numerous Green Forms with the knowledge that the information contained on
them was not correct, that she and those acting in concert with her used
their expertise to capture misleading images, that she falsely certified
hundreds of claimants' Green Forms and caused such false Green Forms to
be placed in the mails, that she intended to defraud the Trust, that she
and others acting at her direction used the telephone and telefax, and
that she earned more than $3.2 million for her work on behalf of two of
the twenty-five law firms for which she worked. Compl. M 46-49, 60-61,
73, 75. The Trust's pleading clearly meets the requirements of Rule 9(b).
It explains in detail to Dr. Grouse the nature and specifics of the
underlying claims of mail and wire fraud. See Christidis, 717
F.2d at 99-100.
Even assuming the Trust meets the particularity requirement of
Rule 9(b), Dr. Grouse argues that the predicate acts of mail and wire fraud
asserted by the Trust do not constitute a pattern of racketeering
activity under RICO because they do not satisfy the relatedness and
continuity requirements of the statute.
Predicate acts are related if they "have the same or similar purposes,
results, participants, victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics and are not isolated
events." Tabas, 47 F.3d at 1292 (citing H.J. Inc.,
492 U.S. at 240). There can be no question that the predicate acts
alleged here are related. The Trust has stated that Dr. Grouse
intentionally falsified and mailed a large number of Green Forms with the
intent of defrauding the Trust. This purported scheme consisted of
repeated acts of a substantially similar nature, with the identical
purpose of inducing the Trust to pay undeserving claimants.
Dr. Grouse maintains that even if the Trust has pleaded relatedness, it
fails with respect to the continuity requirement. Continuity means a
closed period of repeated conduct extending over an extended period of
time, which our Court of Appeals has interpreted to mean at least twelve
months.*fn4 Tabas, 47 F.3d at 1293. Dr. Grouse argues that the
Trust has failed to allege a closed period of continuity because
"virtually all" of the claims submitted on behalf of the fifty-five
persons listed in Exhibit C to the Complaint (filed under seal), in which
activity is alleged, spanned only a three-month period from January
to March, 2002. First, the Green Forms of those fifty-five claimants are
dated from February 22, 2000 to March 29, 2002. Moreover, Exhibit C is
merely alleged to be a representative sample. The complaint alleges that
the illegal activity continued for more than three years, from March 22,
2000 until May 6, 2003. A closed period of repeated conduct extending
over this period of time is sufficient to satisfy the continuity
requirement. See Tabas, 47 F.3d at 1292.
Dr. Grouse further argues that the Trust has failed to plead continuity
because only one victim, the Trust, is identified. The Trust counters
that a RICO claim can be sustained with only one victim and that in any
event it has alleged multiple victims, that is, those who are class
members with legitimate claims for benefits from the Trust. We need not
reach this second issue. The number of victims is but one factor to be
considered in evaluating whether a pattern of racketeering activity can
be established. It is not determinative in itself. The complaint of the
Trust is not deficient in this regard. See H.J. Inc. v. Northwestern
Bell Tel. Co., 492 U.S. 229, 240 (1989); see also Tabas,
47 F.3d at 1292; Barticheck v. Fidelity Union Bank/First Nat'l
State, 832 F.2d 36, 39 (3d Cir. 1987).
As a final matter with regard to Count I, Dr. Grouse maintains that the
Trust lacks standing to bring a § 1962(c) claim against her because
there is no allegation that she actually submitted the Green Forms to the
Trust. Rather, the
submissions to the Trust were in the discretion of the lawyers and
law firms to whom Dr. Grouse transmitted the Green Forms. According to
her, any injury she may have caused to the Trust was at most indirect.
Under RICO "[a]ny person injured in his business or property by reason of
a violation of Section 1962" may sue. 18 U.S.C. § 1964(c). Further,
under § 1962(c), it is unlawful "to conduct or participate, directly
or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity." 18 U.S.C. § 1962(c)
(emphasis added). See also Restatement (Second) of Torts, §
533 (1977).*fn5 An injury caused by any indirect participation of Dr.
Grouse in a pattern of racketeering activity is actionable under RICO.
Accordingly, the motion of the defendant to dismiss the Trust's claim
under § 1962(c) of RICO in Count I of the complaint will be denied.
Count II of the complaint has been brought under
18 U.S.C. § 1962(d), which provides "[i]t shall be unlawful for any person to
conspire to violate any of the provisions of subsection (a), (b), or (c)
of this section." 18 U.S.C. § 1962(d).
According to the complaint, Dr. Grouse conspired to violate §
1962(c). Specifically, it states that in implementing the fraudulent
scheme she acted in concert with her sonographers in the operation of the
enterprise, Kramer and Grouse. The complaint further alleges that the
enterprise itself conspired with Dr. Grouse and her co-conspirators to
engage in a multi-year pattern of criminal conduct. Compl. ¶¶ 51, 90,
103. Dr. Grouse contends that Count II cannot survive because it is
predicated on an alleged conspiracy among her, her employer Kramer and
Grouse, and other fellow employees. She maintains that corporations and
their employees cannot conspire.
We recognize there is disagreement within the Eastern District of
Pennsylvania with regard to whether there can be an intracorporate
conspiracy under 18 U.S.C. § 1962(d). See Hoxworth v. Blinder,
Robinson & Co., Inc., 903 F.2d 186, 204 n.29 (3d Cir. 1990).
However, we concur with the reasoning of Judges Rendell and DuBois that a
corporate entity cannot conspire with its employees. United Nat'l
Ins. Co. v. Equip. Ins. Managers, Civ. A. Nos. 95-0116 &
95-2892, 1995 WL 631709, *6 (E.D. Pa. Oct. 27, 1995); and T.I.
Constr. Co., Inc. v. Kiewit E. Co., Civ. A. No. 91-2638, 1992 WL
195425, *10 (E.D. Pa. Aug. 5, 1992). Contra Brokerage Concepts, Inc.
v. U.S. Healthcare, Inc., Civ. A. No. 95-1698, 1996 WL 135336, *5
(E.D. Pa. Mar. 19, 1996). Nevertheless, an exception exists where the
employees act in pursuit of their own interests and not for the benefit
of the corporation. United Nat'l Ins. Co., 1995 WL 631709, *6.
According to the complaint, "Dr. Grouse designed and implemented the
fraudulent scheme in order to earn sums not capable of being earned
through the Enterprise's legitimate practice of medicine." Compl. ¶
90. After careful review of the allegations of RICO conspiracy, we find
the complaint sets forth no allegation that Dr. Crouse was pursuing
solely her own interests, rather than the interests of Kramer and
Crouse.*fn6 Therefore, we will grant the motion of Dr. Crouse to dismiss
Count II of the complaint alleging a conspiracy under § 1962(d) of
We turn now to the Trust's common law claims. In Count III, the Trust
alleges intentional misrepresentation and fraud. Dr. Grouse again asserts
Rule 9(b) of the Federal Rules of Civil Procedure, arguing the Trust
failed to plead the necessary elements with the specificity required. Dr.
Crouse further argues the alleged misrepresentations were not made to the
Trust directly and that the Trust has not alleged proximate harm as a
result of her conduct.
To plead fraud under Pennsylvania law, a plaintiff must allege: "(1) a
representation; (2) which is material to the transaction at hand; (3)
made falsely, with knowledge of its falsity or recklessness as to whether
it is true or false; (4)
with the intent of misleading another into relying on it; (5)
justifiable reliance on the misrepresentation; and (6) the resulting
injury was proximately caused by the reliance." Gibbs v. Ernst,
647 A.2d 882, 889 (Pa. 1994).
The complaint speaks to each of these elements. As we stated above, the
purpose of Rule 9(b) is to put the defendant on notice of the charge
against which she must defend. See Christidis, 717 F.2d at
99-100. Furthermore, Gibbs does not require that the
misrepresentation be made directly to the Trust. The pleadings are
sufficient to allow the inference, when viewed in the light most
favorable to the Trust, that Dr. Grouse made knowingly or recklessly
false material representations, upon which she intended the Trust to rely
and upon which the Trust did justifiably rely in paying millions of
dollars to undeserving claimants. The complaint also adequately pleads
that the injury was proximately caused by the reliance. See
Gibbs, 647 A.2d at 889. Based on the foregoing, we will deny the
motion of Dr. Grouse to dismiss Count III.
Count IV alleges conspiracy to commit fraud. Dr. Grouse moves to
dismiss based on the intracorporate conspiracy doctrine. Again, while
employees of a corporation generally cannot conspire, this principle does
not apply if the employees are acting in pursuit of their own interests
and not for the benefit of the corporation. United Nat'l Ins.
Co., 1995 WL 631709, *6. However, as with Count II, the Trust has
plead the exception to the intraconspiracy doctrine. We will
dismiss Count IV.
The Trust has not responded to Dr. Grouse's motion to dismiss Count V,
which is a claim for gross negligence, willful misconduct, and wanton and
outrageous conduct. We therefore will grant as unopposed her motion to
dismiss this count.
In Count VI, the Trust has alleged Dr. Grouse acted negligently in
failing to ascertain the truth or falsity of the representations she made
on claimants' Green Forms submitted to the Trust. Although the Trust
labels Count VI a claim for negligence, Dr. Grouse argues, and we agree,
that Count VI is a claim for negligent misrepresentation. The elements of
a claim for negligent misrepresentation are: "(1) a misrepresentation of
a material fact; (2) made under circumstances in which the misrepresenter
ought to have known its falsity; (3) with an intent to induce another to
act on it; and (4) which results in injury to a party acting in
justifiable reliance on the misrepresentation." Bortz v. Noon,
729 A.2d 555, 561 (Pa. 1999). A claim for negligent misrepresentation
cannot stand unless it is established that there was a duty owed to the
injured party. Id. Thus, unless Dr. Grouse owed a duty to the
Trust to provide accurate information, Count VI fails.
Dr. Grouse was retained by lawyers and law firms acting on behalf of
claimants under the Settlement Agreement and not by the Trust itself. Dr.
Grouse maintains that because she had no direct relationship with the
Trust she owed it no duty. A lack
of strict privity, however, will not always bar a claim for
negligence. See Coleco. Indus., Inc. v. Berman, 423 F. Supp. 275,
310 (E.D. Pa. 1976). Pennsylvania courts have enunciated several
factors to be considered in determining whether there exists a duty of
care, a determination which is "necessarily rooted in often amorphous
public policy considerations . . . (1) the relationship between the
parties; (2) the social utility of the actor's conduct; (3) the nature of
the risk imposed and foreseeability of the harm incurred; (4) the
consequences of imposing a duty upon the actor; and (5) the overall
public interest in the proposed solution." Atcovitz v. Gulph Mills
Tennis Club, Inc., 812 A.2d 1218, 1222-23 (Pa. 2002).
In addition, Pennsylvania courts have adopted § 552 of the
Restatement (Second) of Torts,*fn7 which allows recovery by a third
party injured by a negligent misrepresentation of
information where the supplier of the information knew that the
information was intended to go to that specific third party, even where
there is no contractual privity between the supplier of information and
the injured third party. See David Pflumm Paving & Excavating,
Inc. v. Foundation Servs. Co., 816 A.2d 1164, 1168
(Pa. Super. 2003).
The complaint alleges Dr. Grouse knew that the purpose of completing
and submitting Green Forms to the Trust was to obtain monetary awards for
claimants, and she knew or had reason to know that negligence on her part
in certifying the Green Forms would harm the Trust. Despite this
knowledge, according to the complaint, Dr. Grouse negligently attested to
hundreds of Green Forms containing material representations upon which
she knew the Trust would rely and upon which the Trust did rely in paying
millions of dollars to undeserving claimants. Under the law of
Pennsylvania, the Trust's pleading of negligent misrepresentation in
Count VI is sufficient to survive a motion to dismiss.
Count VII alleges unjust enrichment. Dr. Grouse submits that the Trust
lacks standing to assert this claim against her because the Trust itself
conferred no benefit upon her. She was retained and paid by claimants'
attorneys or the law firms. She is not alleged to have received any money
directly from the Trust as a result of her alleged misrepresentations.
The elements of unjust enrichment under Pennsylvania law are: (1)
"benefits conferred on defendant by plaintiff," (2)
"appreciation of such benefits by defendant," and (3) "acceptance
and retention of such benefits under such circumstances that it would be
inequitable for defendant to retain the benefit without payment of
value." Temple Univ. Hosp., Inc. v. Healthcare Mqt. Alternatives,
Inc., 832 A.2d 501, 507 (Pa. Super. 2003). Obviously, if the
benefit to Dr. Grouse was conferred upon her by one other than the Trust,
the Trust cannot maintain this claim. The complaint does not allege that
Dr. Grouse received any remuneration from the Trust itself. However, the
Trust alleges that it has, in effect, reimbursed some lawyers and law
firms for the amounts they paid to Dr. Grouse. Compl. ¶ 58. The claim
for unjust enrichment is cloaked with principles of equity. See
Wiernick v. PHH U.S. Mortgage Co., 736 A.2d 616, 622
(Pa. Super. 1999). We must await the further development of the factual
record. At this time, we will deny the defendant's motion to dismiss Count
As a final matter, Dr. Grouse argues that the Trust's tort claims are
barred by the Pennsylvania statute of limitations, which is two years for
such claims. See 42 Pa. Cons. Stat. Ann. § 5524;
Mellev v. Pioneer Bank, 834 A.2d 1191, 1200-01
(Pa. Super. 2003). The limitations bar is an affirmative defense, and it is
not properly raised here as part of a Rule 12(b)(6) motion, where the time
period alleged in the complaint complies with the limitations period and
the affirmative defense does not appear on the face of the pleading.
Oshiver v. Levin, Fishbein, Sedan & Berman, 38 F.3d 1380,
1384 n.1 (3d Cir. 1994);
Brown v. Bellaplast Maschinenbau, 104 F.R.D. 585, 587
(E.D. Pa. 1985). Because the complaint specifically alleges Dr. Grouse's
misconduct extended from March 22, 2000 at least through May 6, 2003, the
filing of the complaint on September 18, 2003 is within any applicable
statute of limitations at least to the extent of some of the misconduct.
Only at a later point in these proceedings will we be able to determine
what, if any, portion of the Trust's tort claims are untimely.
In summary, we will deny the motion of Dr. Grouse to dismiss for
improper venue. We will dismiss Counts II, IV, and V of the Trust's
complaint for failure to state a claim upon which relief can be granted
but will deny the motion to dismiss the remaining counts.