govinfo:USCOURTS-cand-3_25-cv-02492-0

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United States District Court 
Northern District of California 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 
 
KIM HUDLOW, et al., 
Plaintiffs, 
v. 
 
EXTHERA MEDICAL CORPORATION, 
et al., 
Defendants. 
 

 
 
ORDER GRANTING IN PART AND 
DENYING IN PART DEFENDANTS’ 
MOTIONS TO DISMISS 
 
 
 
Before the Court are four motions to dismiss plaintiffs' First Amended Complaint 
(“FAC”), filed by (1) John Preston (“Preston”); (2) Devon Quasha (“Dr. Quasha”); (3) 
ExThera Medical Corporation (“ExThera”); and (4) Quadrant Clinical Care LLC, Quadrant 
Management LLC, and Alan Quasha (“Mr. Quasha”) (collectively, “Quadrant 
Defendants”). (See Doc. Nos. 87, 89, 90, & 91.) Plaintiffs1 have filed a single opposition, 
to which defendants have filed separate replies. The Court, having read and considered 
the papers filed in support of and in opposition to the motions, hereby rules as follows.2 
BACKGROUND3 
ExThera is “a San Francisco Bay Area medical device company.” (See FAC ¶ 5.) 
“The company developed a blood filter, known as the ‘Seraph 100,’” that “capture[s] 
 
1 The patient plaintiffs are David Hudlow, Brian Withey, John Bowen, Kyle Chupp, 
Ricardo Salgado, and Ingrid Peri. The remaining individual plaintiffs, Kim Hudlow, Jaime 
Baskin, Stacey Bowen, Vanessa Chupp, Carla Vass-Salgado, and Ron Peri, are the 
spouses of those patient plaintiffs, respectively. 
2 By prior order, the Court took the matters under submission. (See Doc. No. 120.) 
3 The below facts are taken from the FAC. 

 
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viruses, bacteria, and fungi” by “work[ing] in tandem with a dialysis machine, which 
pumps blood out of a patient’s body and into the device before returning it, filtered of 
pathogens, to the patient.” (See id. ¶ 32.) 
During the COVID-19 pandemic, ExThera’s Seraph 100 filter “showed initial 
promise for treatment of COVID-19,” and, “[i]n April 2020, the U.S. Food and Drug 
Administration granted ExThera Emergency Use Authorization for the treatment of severe 
COVID-19 disease with the Seraph filter.” (See id. ¶ 33.) 
Following the pandemic, ExThera, in September 2022, “announced that data from 
a preliminary in vitro study…demonstrated that the Seraph filter could remove circulating 
tumor cells,” after which “ExThera announced plans to study the use of the Seraph filters 
as a treatment to prevent further metastasis in cancer patients.” (See id. ¶ 34.) 
In July 2023, “ExThera announced that it had received FDA investigational device 
exemption for use of the Seraph filter for the removal of circulating tumor cells (CTC),” 
and that it “would market this treatment under the trade name ONCObind.” (See id. ¶ 35) 
(internal quotation omitted). 
During “the fall of 2023,” “ExThera’s Chief Medical and Regulatory Officer, Dr. 
Sanja Ilic (“Dr. Ilic”), conducted a trial [of ONCObind] in Zagreb, Croatia” in which 
“between 8 and 12 patients with late-stage, metastatic disease” participated and for 
whom “ExThera provided Seraph 100 filters at no cost.” (See id. ¶ 37.) “The results of the 
study were published in November 2024,” which study “explain[ed] that the ExThera 
filters could remove pathogens and CTCs from the bloodstream,” but “ma[de] no 
mention…that patients’ health or overall cancer burden improved as a result.” (See id.) 
(emphasis omitted). 
In December 2023, Preston, “an ExThera board member and also an investment 
advisor” to “Alan Quasha’s private equity firm, Quadrant Management, told Mr. Quasha 
about the Seraph 100 filters’ new use in ONCObind.” (See id. ¶ 39.) “Within days 
of…Preston’s pitch on its behalf, ExThera shared ‘results’ from their Croatian trial with 
Mr. Quasha,” who “then invested $3 million dollars in the company.” (See id.) 

 
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Mr. Quasha’s investment firm, Quadrant Management, “soon formed a clinical 
division known as Quadrant Clinical Care, which it incorporated on December 26, 2023,” 
the purpose of which being “to establish a facility in an existing clinic on the Caribbean 
island of Antigua.” (See id. ¶ 42.) “Quadrant Clinical Care then paid ExThera an 
additional $10 million to become ExThera’s exclusive Caribbean distributor” of the 
Seraph 100 filters. (See id.) “Shortly after” the clinic was set up, Quadrant Clinical Care 
“hired Mr. Quasha’s daughter, Dr. Devon Quasha…to oversee the clinic as its Chief 
Medical Officer.” (See id. ¶ 47.) 
Around “January and February 2024, [p]laintiffs]…began hearing about the 
ONCObind procedure that [d]efendants were administering in Antigua” (see id. ¶ 52) and 
“reached out to ExThera to learn more about the treatment” (see id. ¶ 53). 
“[B]eginning in February 2024,” plaintiffs spoke with Dr. Ilic and Preston and were 
told “that ONCObind had cured the cancer of multiple participants in a European trial,” 
“that ONCObind would be approved by the FDA for U.S. trials soon,” and that “individuals 
who received ONCObind in Antigua would have automatic and free access to the U.S. 
trials.” (See id. ¶¶ 53-54.) 
Also in February, Dr. Ilic, Preston, Dr. Quasha, and Mr. Quasha spoke “with 
certain physicians in the United States,” including two with practices in Florida, “about the 
promise of the ONCObind procedure for treating all forms of metastatic cancer,” with the 
expectation that such physicians “would refer patients to the Antigua clinic.” (See id. ¶¶ 
55-56.) 
Thereafter, plaintiffs Mr. Hudlow, Mr. Withey, Mr. Bowen, Mr. Chupp, Mr. Salgado, 
and Ms. Peri each received the ONCObind treatment at the Antigua clinic at the cost of 
“$45,000 per round” (see id. ¶ 10), three of whom “died within days or weeks of leaving 
Antigua, and each surviving [plaintiff] became sicker and saw their cancer markers 
increase significantly following the procedure” (see id. ¶ 14). None “experienced the 
promised tumor reduction.” (See id.) 
 Based on the above, plaintiffs assert the following eight Claims for Relief: (1) Civil 

 
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RICO, in violation of 18 U.S.C. § 1962(c) (see id. ¶¶ 258-281); (2) Civil RICO Conspiracy, 
in violation of 18 U.S.C. § 1962(d) (see id. ¶¶ 282-286); (3) Fraud (see id. ¶¶ 287-296); 
(4) Negligence (see id. ¶¶ 297-300); (5) Intentional Infliction of Emotional Distress (see id. 
¶¶ 301-305); (6) Battery (see id. ¶¶ 306-311); (7) Product Liability (Failure to Warn) (see 
id. ¶¶ 312-319); and (8) Wrongful Death (see id. ¶¶ 320-324). 
By the instant motions, Quadrant Defendants, Dr. Quasha, and Preston move to 
dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil 
Procedure and failure to start a claim under Rule 12(b)(6) of the Federal Rules of Civil 
Procedure. ExThera moves to dismiss solely under Rule 12(b)(6). 
LEGAL STANDARD 
I. Rule 12(b)(2) 
A motion to dismiss under Rule 12(b)(2) may be based on the face of the 
complaint and/or declarations of fact. See Doe v. Unocal Corp., 248 F.3d 915, 922 (9th 
Cir. 2001), abrogated on other grounds as recognized by Williams v. Yamaha Motor Co., 
851 F.3d 1015 (9th Cir. 2017). Where a defendant challenges personal jurisdiction, the 
plaintiff bears the burden of establishing the forum court’s personal jurisdiction over such 
defendant, see Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857, 862 (9th Cir. 
2003), and where the defendant’s motion “is based on written materials rather than an 
evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional 
facts,” see CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 
2011) (internal quotation and citation omitted). In that regard, “uncontroverted allegations 
in the complaint must be taken as true, see id. (internal quotation and citation omitted), 
“any evidentiary materials submitted on the motion are construed in the light most 
favorable to the plaintiff[,] and all doubts are resolved in [the plaintiff’s] favor,” see Ochoa 
v. J.B. Martin & Sons Farms, Inc., 287 F.3d 1182, 1187 (9th Cir. 2002) (internal quotation 

 
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and citation omitted). 
II. Rule 12(b)(6) 
Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure "can be 
based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 
under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 
(9th Cir. 1990). Rule 8(a)(2), however, "requires only 'a short and plain statement of the 
claim showing that the pleader is entitled to relief.'" Bell Atlantic Corp. v. Twombly, 550 
U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, "a complaint 
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." 
Id. Nonetheless, "a plaintiff's obligation to provide the grounds of his entitlement to relief 
requires more than . . . a formulaic recitation of the elements of a cause of action." Id. 
(internal quotation, citation, and alteration omitted). 
 In analyzing a motion to dismiss, a district court must accept as true all material 
allegations in the complaint and construe them in the light most favorable to the 
nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). "To 
survive a motion to dismiss," however, "a complaint must contain sufficient factual 
material, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft 
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "Factual 
allegations must be enough to raise a right to relief above the speculative level," 
Twombly, 550 U.S. at 555, and courts "are not bound to accept as true a legal conclusion 
couched as a factual allegation," Iqbal, 556 U.S. at 678 (internal quotation and citation 
omitted). 
Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider 
any material beyond the complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 
Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Documents whose contents are alleged 

 
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in the complaint, and whose authenticity no party questions, but which are not physically 
attached to the pleading, however, may be considered. See Branch v. Tunnell, 14 F.3d 
449, 454 (9th Cir. 1994). In addition, a district court may consider any document "the 
authenticity of which is not contested, and upon which the plaintiff's complaint necessarily 
relies," regardless of whether the document is referenced in the complaint. Parrino v. 
FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). Finally, the Court may consider matters 
that are subject to judicial notice. See Mack v. South Bay Beer Distribs., Inc., 798 F.2d 
1279, 1282 (9th Cir. 1986). 
DISCUSSION 
I. Personal Jurisdiction 
As noted, Quadrant Defendants, Dr. Quasha, and Preston move to dismiss under 
Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction. 
A. Nationwide Jurisdiction – 18 U.S.C. § 1965(b) 
Plaintiffs allege that Quadrant Defendants, Dr. Quasha, and Preston are subject to 
personal jurisdiction under 18 U.S.C. § 1965, on the asserted ground that “[t]here is no 
other single district in which all [d]efendants are subject to jurisdiction, and the ends of 
justice in this multi-state, international conspiracy to commit wire fraud require the trial of 
this case in a single forum.” (See FAC ¶ 29.) 
“In any action under section 1964 of [Chapter 96]4 in any district court of the 
United States in which it is shown that the ends of justice require that other parties 
residing in any other district be brought before the court, the court may cause such 
parties to be summoned, and process for that purpose may be served in any judicial 
 
4 Chapter 96 is titled “Racketeer Influenced and Corrupt Organizations”; § 1962 
sets forth prohibited activities thereunder, and § 1964 provides district courts with 
jurisdiction over civil cases brought for violations of § 1962. 

 
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district of the United States by the marshal thereof.” See 18 U.S.C. § 1965(b). 
“In section 1965(b), Congress provided for service of process upon RICO 
defendants residing outside the federal court's district when it is shown that ‘the ends of 
justice’ require it,” Butcher’s Union Local No. 498, United Food and Commercial Workers 
v. SDC Investment, Inc., 788 F.2d 535, 538 (9th Cir. 1986), thereby “enabl[ing] plaintiffs 
to bring all members of a nationwide RICO conspiracy before a court in a single trial,” id. 
at 539. 
“For nationwide service to be imposed under section 1965(b),” (1) the court must 
“have personal jurisdiction over at least one of the participants in the alleged multidistrict 
conspiracy,” (2) the plaintiff must “show that there is no other district in which a court will 
have personal jurisdiction over all of the alleged co-conspirators,” and (3) the plaintiff 
must “allege a single nationwide RICO conspiracy.” See id.; see also Limcaco v. Wynn, 
2023 WL 154965, at *1 (9th Cir. 2023) (holding “[n]ationwide service under § 
1965(b) requires [1] a court to have personal jurisdiction over at least one of the 
participants, [2] no other district to be able to assert personal jurisdiction over all the 
alleged co-conspirators, and [3] facts showing the existence of a multidistrict conspiracy 
encompassing defendants”). 
1. Personal Jurisdiction Over At Least One Defendant 
As to the first requirement of § 1965(b), that the Court “have have personal 
jurisdiction over at least one of the participants in the alleged multidistrict conspiracy,” 
see Butcher’s Union, 788 F.2d at 539, there is no dispute that ExThera “is headquartered 
in Martinez, California” (see FAC ¶ 30), and, consequently, “is subject to general 
personal jurisdiction in this judicial district” (see id.); see also Ford Motor Co. v. Montana 
Eighth Judicial District Court, 592 U.S. 351, 358-59 (2021) (holding corporation is subject 
to general personal jurisdiction in “its place of incorporation and principal place of 

 
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business”); Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (holding corporation’s “principal 
place of business” is “where the corporation maintains its headquarters”). 
Accordingly, the first requirement of § 1965(b) is satisfied. 
2. No Other District with Personal Jurisdiction Over All 
Defendants 
As to the second requirement of § 1965(b), that “that there is no other district in 
which a court will have personal jurisdiction over all of the alleged co-conspirators,” see 
Butcher’s Union, 788 F.2d at 539, plaintiffs allege that “Quadrant Management LLC is 
incorporated in Delaware with its headquarters in New York”; that “Quadrant Clinical Care 
LLC is incorporated in Delaware, and, on information and belief, is a fully owned 
subsidiary of Quadrant Management and is operated as an arm of Quadrant 
Management without observing the corporate formalities necessary to maintain a 
separate identity”; that “Alan Quasha… resid[es] in Colorado”; that “Devon Quasha… 
resid[es] in Massachusetts”; and that “John Preston resid[es] in Massachusetts.” (See 
FAC ¶¶ 22-26.) 
By such allegations, plaintiffs appear to have made a sufficient showing that there 
is no other district in which a court will have general personal jurisdiction over all of the 
defendants. See Ford Motor Co., 592 U.S. at 358-59. As defendants point out, however, 
plaintiffs have not made a sufficient showing that there is no district in which a court 
would have specific personal jurisdiction over all of the defendants. See MSP Recovery 
Claims, Series LLC v. Actelion Pharmaceuticals US, Inc., 2024 WL 3408221, at *4 (N.D. 
Cal. July 12, 2024) (finding lack of personal jurisdiction under § 1965(b); noting “[w]hile 
[p]laintiffs may have demonstrated there is no district in which a [c]ourt would have 
general jurisdiction over all [d]efendants, [p]laintiffs have failed to establish there is no 
district in which a [c]ourt has specific personal jurisdiction over all the [d]efendants”). 

 
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Specific personal jurisdiction exists where, inter alia, a non-resident defendant 
“purposefully direct[s] his activities” at the forum or “purposefully avails himself of the 
privilege of conducting activities in the forum,” the claim “arises out of or relates to the 
defendant’s forum-related activities,” and the exercise of jurisdiction is “reasonable.” See 
Davis v. Cranfield Aerospace Solutions, Limited, 71 F.4th 1154, 1161-62 (9th Cir. 2023) 
(internal quotation and citation omitted). The “purposeful direction test typically applies to 
tort claims,” and requires the defendant to “have allegedly (1) committed an intentional 
act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is 
likely to be suffered in the forum state.” See id. at 1162-63 (internal quotation and citation 
omitted). 
Here, to the extent plaintiffs argue “there are no facts suggesting one district court, 
aside from the Northern District of California, would have specific jurisdiction over all 
[p]laintiffs anywhere in the country,” and that “[w]here such facts are not alleged, 
[p]laintiffs have made their showing” (see Opp. at 104:1-3), the Court disagrees. 
First, to meet their burden of demonstrating a lack of specific personal jurisdiction, 
plaintiffs must “proffer[]…evidence regarding defendants’ contacts with other districts.” 
See Barantsevich v. VTB Bank, 954 F.Supp.2d 972, 989-90 (C.D. Cal. 2013); see also 
Huntair, Inc. v. Gladstone, 774 F.Supp.2d 1035, 1039-40 (N.D. Cal. Feb. 16, 2011) 
(characterizing as “conclusory” and “insufficient” plaintiffs’ allegation that “they are not 
aware of any other district in which a court would have personal jurisdiction over all of the 
defendants”) (internal quotation and citation omitted). Moreover, in this instance, the FAC 
includes facts suggesting there is, in fact, another district in which a court will have 
personal jurisdiction over all of the alleged co-conspirators, namely, the state of Florida, 
in that plaintiffs allege all of the defendants purposefully directed to physicians in Florida 
statements that were essentially misleading as to the benefits of ONCObind. (See FAC 

 
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¶¶ 55-59, 177-178, 188, 247, 262.) 
Accordingly, the second requirement of § 1965(b) is not satisfied, and, 
consequently, plaintiffs have failed to establish personal jurisdiction under § 1965(b). 
B. Traditional Bases of Personal Jurisdiction 
Plaintiffs next allege that defendants are subject to personal jurisdiction 
“[i]ndependent of jurisdiction under 18 U.S.C. § 1965(b).” (See FAC ¶ 31.) 
With respect to non-resident defendants such as Quadrant Defendants, the Ninth 
Circuit “uses a three-part test to determine whether specific jurisdiction exists: 
(1) The non-resident defendant must purposefully direct his activities or 
consummate some transaction with the forum or resident thereof; or perform 
some act by which he purposefully avails himself of the privilege of conducting 
activities in the forum, thereby invoking the benefits and protections of its laws; 
 
(2) the claim must be one which arises out of or relates to the defendant's forum-
related activities; and 
 
(3) the exercise of jurisdiction must comport with fair play and substantial justice, 
 i.e. it must be reasonable. 
 
See Davis, 71 F.4th at 1161-62. 
1. ExThera 
As noted, ExThera does not challenge the FAC on grounds of personal 
jurisdiction. 
2. Quadrant Defendants 
Plaintiffs assert Quadrant Defendants are subject to specific personal jurisdiction 
in this district, relying on their allegations that “Quadrant Management is a significant 
investor in ExThera,” and that “Quadrant Management and Quadrant Clinical Care are 
major purchasers and distributors of the ExThera Seraph 100 filters designed and 
shipped from California, and in at least one case, exported the filters from California to 
Antigua.” (See FAC ¶ 31.) 
Plaintiffs’ claims, however, do not arise out of or relate to Quadrant Defendants’ 

 
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purchases of the Seraph 100 filters, but, rather, to the manner by which defendants 
obtained their consent to be treated with the filters and the harm they suffered as a result 
of such treatment. Further, none of that conduct is alleged to have been directed to 
anyone in California, nor is any of the harm alleged to have been suffered in California. 
See Davis, 71 F.4th 1154. at 1163 (holding “[h]arm suffered in the forum state is a 
necessary element in establishing purposeful direction”) (internal quotation and citation 
omitted). 
 Accordingly, plaintiffs have failed to establish personal jurisdiction as to Quadrant 
Defendants. 
3. Dr. Quasha and Preston 
To establish personal jurisdiction over Dr. Quasha and Preston, plaintiffs rely 
solely on § 1965(b). (See Opp. at 102:15-19.) 
Accordingly, plaintiffs have failed to establish personal jurisdiction as to Dr. 
Quasha and Preston. 
C. Conclusion: Personal Jurisdiction 
In sum, plaintiffs have established personal jurisdiction as to ExThera, but have 
failed to establish personal jurisdiction as to Quadrant Defendants, Dr. Quasha, or 
Preston. 
Accordingly, to the extent plaintiffs’ claims are brought against Quadrant 
Defendants, Dr. Quasha, and Preston, the FAC is subject to dismissal, and the Court 
evaluates plaintiffs’ claims only as asserted against ExThera. 
II. Civil RICO – 18 U.S.C. § 1962(c) 
The First Claim for Relief alleges a violation of 18 U.S.C. § 1962(c), which section 
makes it “unlawful for any person employed by or associated with any enterprise…to 
conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs 
through a pattern of racketeering activity.” See 18 U.S.C. § 1962(c). 

 
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“The elements of a civil RICO claim are as follows: (1) conduct (2) of an enterprise 
(3) through a pattern (4) of racketeering activity (known as ‘predicate acts') (5) causing 
injury to plaintiff's ‘business or property.’” Living Designs, Inc. v. E.I. Dupont de Nemours 
and Co., 431 F.3d 353, 361 (9th Cir. 2005) (internal quotation and citation omitted). 
Plaintiffs allege that “ExThera Medical Corporation, Quadrant Management LLC, 
Quadrant Clinical Care LLC, Alan Quasha, John Preston, and Devon Quasha together 
constituted an association-in-fact enterprise,” referred to in the FAC as the “ONCObind 
RICO Enterprise.” (See FAC ¶ 261.) “The ONCObind RICO Enterprise,” according to 
plaintiffs, “was an ongoing, continuing group or unit of persons and entities associated 
together for the common purpose of perpetuating fraud, in particular to maximize profits 
at offshore ‘medical’ clinics by promoting to cancer patients the ONCObind procedure as 
a safe and effective cancer treatment, when in fact the ONCObind RICO Enterprise knew 
such claims were false and/or unsupported by evidence.” (See id. ¶ 263.) 
A civil RICO claim under § 1962(c) requires, as noted above, a “pattern of 
racketeering activity.” See 18 U.S.C. § 1962(c). 
The specified criminal acts that satisfy the “racketeering activity” element are 
described in 18 U.S.C. § 1961(1), and encompass “mail fraud” in violation of 18 U.S.C. 
§ 1341 and “wire fraud” in violation of § 1343. See 18 U.S.C. § 1961(1). Here, plaintiffs 
allege, “[d]efendants’ systematic scheme to fraudulently promote the ONCObind 
procedure as a safe and effective cancer treatment to maximize profits at offshore 
‘medical’ clinics…was facilitated by the use of the United States mail and wires,” which 
schemes, plaintiffs allege, “constitute ‘racketeering activity.’” (See FAC ¶ 267; see also id. 
¶¶ 269-271.) 
Next, the “pattern” element “requires the showing of a relationship between the 
predicates and…the threat of continuing activity.” See Howard v. America Online Inc., 

 
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208 F.3d 741, 749 (9th Cir. 2000) (internal quotation and citation omitted). Such 
“continuity requirement focuses on whether the associates' behavior was ongoing rather 
than isolated activity.” See Odom v. Microsoft Corp., 486 F.3d 541, 553 (9th Cir. 2007). 
“To satisfy the continuity requirement, [p]laintiffs must prove either a series of 
related predicates extending over a substantial period of time, i.e., closed-ended 
continuity, or past conduct that by its nature projects into the future with a threat of 
repetition, i.e., open-ended continuity.” Howard, 208 F.3d at 750 (internal quotation and 
citation omitted). 
A. Closed-Ended Continuity 
“Closed-ended continuity refers to a closed period of repeated conduct,” and “is 
established by showing that the predicate acts occurred over a substantial period of 
time.” See Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1526 (9th Cir. 1995). Here, as 
discussed below, the alleged pattern of racketeering activity is insufficient to establish 
closed-ended continuity. 
According to the FAC, the alleged predicate acts of mail and wire fraud committed 
by ExThera took place over the span of only a few months, specifically, from January 
2024, when the initial “three participants”5 are alleged to have received the ONCObind 
treatment at the Antigua clinic (see FAC ¶ 43) to May 2024, when the last alleged 
predicate act is alleged to have been committed, namely, an alleged act of wire fraud by 
Preston (see id. ¶ 247). 
As the Supreme Court has explained, “[p]redicate acts extending over a few 
weeks or months and threatening no future criminal conduct do not satisfy [the continuity] 
 
5 These three individuals are not further identified in the FAC. 

 
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requirement.” See H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 242 
(1989); see also Religious Technology Center v. Wollersheim, 971 F.2d 364, 366-67 (9th 
Cir. 1992) (holding “[a] pattern of activity lasting only a few months does not reflect the 
long term criminal conduct to which RICO was intended to apply”; noting “[w]e have 
found no case in which a court has held the requirement to be satisfied by a pattern of 
activity lasting less than a year”) (internal quotation and citation omitted); Howard, 208 
F.3d at 750 (holding “[a]ctivity that lasts only a few months is not sufficiently continuous”). 
Plaintiffs argue closed-end continuity is established because the alleged predicate 
acts took place “over at least an eight month period,” from December 2023, when 
defendants established Quadrant Clinical Care in December 2023, until July 2024, “when 
Quadrant Clinical Care informed Ms. Baskin that they would retain Ms. Baskin’s payment 
for the third, unused filtration and would use those funds to pay for the clinic Quadrant 
Clinical Care operated for Mr. Withey’s stay in the ‘ICU.’” (See Opp. at 32:16-27.) Neither 
the establishment of Quadrant Clinical Care nor Quadrant Clinical Care’s statement as to 
payment, however, is alleged to be an act of mail or wire fraud, and, even assuming, 
arguendo, such acts constitute predicate acts, eight months nonetheless falls short of the 
requisite period of time. See Kan-Di-Ki v. Sorenson, 723 Fed.Appx. 432, 434 (9th Cir. 
2018) (holding “alleged scheme” over a ten month period “was too limited and short in 
duration to sufficiently establish closed-ended continuity”). 
Accordingly, to the extent plaintiffs rely on closed-ended continuity, plaintiffs have 
not satisfied the “pattern” element of § 1962(c). 
B. Open-Ended Continuity 
“If closed-ended continuity cannot be established, plaintiffs may plead open-ended 
continuity.” Allwaste, 65 F.3d at 1526. “Open-ended continuity refers to past conduct that 
by its nature indicates a threat of future criminal conduct” or “projects into the future with 

 
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a threat of repetition.” See H.J., 492 U.S. at 241. In other words. “[o]pen-ended continuity 
is the threat that criminal conduct will continue into the future.” See Allwaste, 65 F.3d at 
1527 (internal quotation and citation omitted). “It is established by showing either that the 
predicate acts include a specific threat of repetition extending indefinitely into the future 
or that the predicate acts were part of an ongoing entity's regular way of doing business.” 
Id. (internal quotation and citation omitted). Here, as set forth below, plaintiffs fail to 
allege facts sufficient to support a finding of open-ended continuity. 
Plaintiffs allege that “[d]efendants’ acts…present a threat of continued 
racketeering activity, including…the fact that the ONCObind RICO Enterprise…continues 
to offer the procedure and [d]efendants…remain associated and financially involved with 
one another.” (See FAC ¶ 281.) In the absence of factual support, however, such 
conclusory allegation is unavailing. See, e.g., Howard, 208 F.3d at 750 (finding allegation 
“that [defendant’s] improper activities continue even at the present” failed to demonstrate 
continuity where plaintiffs “gave no factual support for acts after [any particular]” date). 
Moreover, the offering of the ONCObind procedure, by itself, i.e., without any 
misrepresentation, constitutes neither mail nor wire fraud; similarly, plaintiffs’ assertion 
that “ExThera Medical continues to highlight the ONCObind treatment on its website” 
(see Opp. at 30:5-6), even if pleaded in the FAC, fails to meet the requisite showing of 
fraud. 
Accordingly, to the extent plaintiffs rely on open-ended continuity, plaintiffs have 
not satisfied the “pattern” element of § 1962(c). 
C. Conclusion: Civil RICO – 18 U.S.C. § 1962(c) 
Plaintiffs’ First Claim for Relief is subject to dismissal. 
 

 
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III. Civil RICO Conspiracy – 18 U.S.C. § 1962(d) 
The Second Claim for Relief alleges a violation of 18 U.S.C. § 1962(d), which 
subsection makes it “unlawful for any person to conspire to violate any of the provisions 
of subsection (a), (b), or (c).” See 18 U.S.C. § 1962(d). 
“[S]ection 1962(d) makes it unlawful to conspire to conduct or participate in the 
conduct of an enterprise's affairs, where its affairs are conducted through a pattern of 
racketeering activity.” U.S. v. Tille, 729 F.2d 615, 619 (9th Cir. 1984). The Ninth Circuit 
has held, however, that the failure to adequately plead a substantive RICO claim under 
§ 1962(c) precludes a RICO conspiracy claim under § 1962(d). See Howard, 208 F.3d at 
751 (holding “[p]laintiffs cannot claim that a conspiracy to violate RICO existed if they do 
not adequately plead a substantive violation of RICO”; noting “[e]ven if [p]laintiffs properly 
claimed that the defendants agreed to be a part of an enterprise, the failure to allege 
substantive violations precludes their claim that there was a conspiracy to violate RICO”); 
see also Religious Technology Center, 971 F.2d at 367 n.8 (finding “conspiracy cause of 
action cannot stand” where plaintiff “has failed to allege the requisite substantive 
elements of RICO”). 
Here, given plaintiffs’ failure to plausibly allege a civil RICO claim under § 1962(c), 
plaintiffs likewise fail to allege a civil RICO conspiracy claim under § 1962(d). 
Accordingly, plaintiffs’ Second Claim for Relief is subject to dismissal. 
IV. Fraud 
The Third Claim for Relief asserts a claim of fraud, based on “both 
affirmative misrepresentations about the clinical promise of ONCObind and material 
omissions of fact about the risks of ONCObind.” (See FAC ¶ 288.) 
Under California law, the “necessary elements of fraud are: (1) misrepresentation 

 
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(false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); 
(3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting 
damage.” See Alliance Mortgage Co. v. Rothwell, 10 Cal.4th 1226, 1239 (Cal. 1995) 
(internal quotation and citation omitted). Additionally, allegations of fraud are subject to 
Rule 9(b)’s heightened pleading standard. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 
1097, 1103, 1106 (9th Cir. 2003) (holding, to meet Rule 9(b)’s particularity requirement, 
“[a]verments of fraud must be accompanied by ‘the who, what, when, where, and how’ of 
the misconduct charged”). 
Here, in alleging a fraud claim against ExThera, plaintiffs rely on 
misrepresentations made to patients by Preston as a member of ExThera’s Board of 
Directors, and by Dr. Ilic as ExThera’s Chief Regulatory Officer and Vice President of 
Clinical, Regulatory and Medical Affairs. The Court next considers the alleged 
misrepresentations made by Preston and Dr. Ilic.6 
A. Preston 
Plaintiffs allege Preston made to plaintiffs various fraudulent misrepresentations, 
either directly or by omission, that (1) the results of the Croatian trial demonstrated high 
efficacy of the ONCObind procedure in treating tumors (see FAC ¶¶ 53, 68, 69, 70, 178, 
222, 240); (2) the ONCObind procedure was safe (see id. ¶¶ 67, 69, 71, 224); (3) 
 
6 To the extent plaintiffs, based on a conspiracy theory, rely on alleged 
misrepresentations made by other defendants (see FAC ¶ 253 (alleging “[a]ll defendants 
engaged in a civil conspiracy and are liable for any of the torts committed by the other 
[d]efendants”), plaintiffs fail to plead the two defining elements of such a conspiracy, 
namely, “the formation of a group of two or more persons who agreed to a common plan 
or design to commit a tortious act,” and “a wrongful act committed pursuant to the 
agreement,” see City of Industry v. City of Fillmore, 198 Cal.App.4th 191, 212 (2011); see 
also Kidron v. Movie Acquisition Corp., 40 Cal.App.4th 1571, 1582 (1995) (holding 
“[m]ere association does not make a conspiracy”). 
 

 
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plaintiffs should forego chemotherapy and radiation treatments in order to experience the 
benefits of the ONCObind procedure (see id. ¶¶ 69, 54, 182); (4) patients who received 
the ONCObind procedure in Quadrant Clinical Care’s Antigua clinic would receive 
ONCObind for free in future American clinical trials (see id. ¶¶ 54, 75); and (5) adverse 
clinical test results and symptoms following the ONCObind procedure, such as increased 
cancer biomarkers, constituted evidence of the procedure’s effectiveness in treating 
cancer (see id. ¶¶ 98, 247). 
ExThera argues it is not liable for any alleged false statements by Preston 
because the FAC “contains no factual allegations that…Preston made any alleged false 
statements pursuant to any authority granted by ExThera’s Board.” (See ExThera Motion 
at 13:22-14:7.) 
Under California law, “a corporation is liable for the acts of its officers and directors 
so long as they are acting within the scope of their agency for the corporation.” See Bakst 
v. Community Memorial Health System, Inc., 2011 WL 13214315, at *4 (C.D. Cal. March 
7, 2011); see also Von Beltz v. Stuntman, Inc., 207 Cal.App.3d 1467, 1488 (1989) 
(holding “a private corporation is generally liable under the doctrine of respondeat 
superior for torts of its agents or employees committed while they are acting within the 
scope of their employment”). Consequently, a corporation can be held liable “for a 
misleading statement made by an employee or other agent who has actual or apparent 
authority” to so speak. See Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1577 n.28 
(9th Cir. 1990); see also Von Schrader v. Milton, 96 Cal.App. 192, 202 (1929) (holding 
“[a] corporation is liable for the fraud and deceit of its officers and agents, acting in the 
apparent course of their employment”).7 
 
7 Although ExThera cites to Delaware agency law (see ExThera Motion at 13:24), 

 
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“[A]ctual authority…may be implied as well as express.” See Unite Here 
Retirement Fund v. City of San Jose, 2023 WL 5181633, at *5 (N.D. Cal. Aug. 11, 2023) 
(internal quotation and citation omitted). “Express actual authority derives from an act 
specifically mentioned to be done.” See N.L.R.B. v. District Council of Iron Workers of the 
State of Cal. and Vicinity, 124 F.3d 1094, 1098 (9th Cir. 1997). “Implied actual authority 
comes from a general statement of what the agent is supposed to do; an agent is said to 
have the implied authority to do acts consistent with that direction.” Id. 
Apparent authority, on the other hand, “is created, and its scope defined, by the 
acts of the principal in placing the agent in such a position that he appears to have the 
authority which he claims or exercises.” See Blanton v. Womancare, Inc., 38 Cal.3d 396, 
406 (1985). “Apparent authority arises from the principal's manifestations to a third party 
that supplies a reasonable basis for that party to believe that the principal has authorized 
the alleged agent to do the act in question.” See N.L.R.B., 124 F.3d at 1099. Apparent 
authority, however, “cannot be established by the representations or conduct of the 
purported agent”; “the statements or acts of the principal must be such as to cause the 
belief the agency exists.” See J.L. v. Children’s Institute, Inc., 177 Cal.App.4th 388, 404 
(2009). In particular, apparent authority is created by “some intentional conduct or neglect 
on the part of the alleged principal creating a belief in the minds of third persons that an 
agency exists, and a reasonable reliance thereon by such third persons.” See Young v. 
Horizon West, Inc., 220 Cal.App.4th 1122, 1133 (2013) (internal quotation and citation 
omitted). 
 
and plaintiffs, while “not conced[ing] that Delaware law governs” (see Opp. at 37 n.12), 
respond with citations to Delaware cases, neither party submits any authority suggesting 
Delaware law, rather than the law of the forum state, governs the determination of 
whether Preston, in the commission of the alleged fraud, acted as ExThera’s agent. 

 
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“[W]here a plaintiff alleges that a defendant is liable for fraud under an agency 
theory,” whether as an “agent or apparent agent,” Rule 9(b) requires that the existence of 
the agency relationship be pled with particularity.” See Jackson v. Fischer, 931 
F.Supp.2d 1049, 1061 (N.D. Cal. 2013). 
Here, plaintiffs have not alleged facts demonstrating that Preston, in making the 
above-discussed allegedly fraudulent statements to plaintiffs, acted within the scope of 
his agency as a member of ExThera’s Board of Directors. In particular, plaintiffs have not 
alleged any facts suggesting ExThera expressly directed Preston to recruit patients for 
Quadrant Clinical Care’s Antigua clinic, or that the recruitment of patients was incidental 
to his duties as a board member, nor have plaintiffs alleged any facts suggesting 
ExThera put Preston in the position of leading plaintiffs to believe he was speaking for 
ExThera when he engaged in such conduct. 
Although implied authority can “arise out of the duties…assumed by [a corporate 
officer] and acquiesced in by the corporation,” see Butler v. Solano Land Co., 46 Cal.App. 
171, 174 (1920), plaintiffs’ argument that such acquiescence has been demonstrated 
because “Preston’s statements were made as a representative of ExThera for multiple 
months, including while other ExThera officers made extremely similar representations,” 
is unavailing, as the paragraphs of the FAC to which plaintiffs cite include no facts as to 
representations made by anyone for multiple months or ExThera’s knowledge thereof. 
(See Opp. at 37:6-14 (citing FAC ¶¶ 67, 68, 254).)8 
Accordingly, to the extent plaintiffs’ Third Claim for Relief is based on Preston’s 
 
8 The case to which plaintiffs cite for the proposition that they “are not required to 
provide facts to support the elements of an agency relationship” (see Opp. at 37:15-26) is 
distinguishable, in that the claim asserted therein was not fraud. See Dion LLC v. Infotek 
Wireless, Inc., 2007 WL 3231738, at *1 (N.D. Cal. Oct 30, 2007). 

 
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allegedly fraudulent statements, such claim is subject to dismissal. 
B. Dr. Ilic 
Plaintiffs allege that Dr. Ilic, ExThera’s Chief Regulatory Officer and Vice 
President of Clinical, Regulatory, and Medical Affairs, made to plaintiffs various 
fraudulent misrepresentations, either directly or by omission, that (1) the results of the 
Croatian trial demonstrated high efficacy of the ONCObind procedure in treating tumors 
(see FAC ¶¶ 37, 53, 64, 65, 100, 103, 137); (2) the ONCObind procedure had the ability 
to boost patients’ immune systems; (3) the ONCObind procedure was safe (see id. ¶¶ 65, 
73); (4) plaintiffs should forego chemotherapy and radiation treatments in order to 
experience the benefits of the ONCObind procedure (see id. ¶¶ 44, 54, 65); (5) ExThera 
was beginning clinical trials in the United States and that patients who received the 
ONCObind procedure in Quadrant Clinical Care’s Antigua clinic would receive ONCObind 
for free in such future trials (see id. ¶¶ 54, 75, 99, 103, 123, 153); and (6) adverse clinical 
test results and symptoms after the ONCObind procedure, such as increased cancer 
biomarkers, constituted evidence of the procedure’s effectiveness in treating cancer, and 
that patients needed further ONCObind treatment following such symptoms (see id. ¶¶ 
98, 99, 100). 
There is no dispute that the above-listed alleged misrepresentations were made by 
Dr. Ilic as an agent of ExThera. The Court next considers the allegedly fraudulent 
statements made by Dr. Ilic. 
1. Statements Regarding the Croatian Trial and ONCObind’s 
Efficacy 
First, plaintiffs allege that Dr. Ilic made fraudulent misrepresentations to plaintiffs 
regarding the results of ExThera’s Croatian trial and ONCObind’s efficacy in treating 
cancer. 

 
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In particular, plaintiffs allege that “on or around February 8, 2024,” Dr. Ilic “spoke 
on the phone with Ms. Hudlow and Ms. Baskin” (“February 8 phone call”), during which 
call Dr. Ilic represented that, of the patients who received the ONCObind treatment in the 
Croatian trial, “nearly all of them had positive results after filtration,” that “several of the 
patients had no evidence of cancer after treatment, [that] the lowest reduction in primary 
tumor size was 49%,” and that the only patient who had passed away after the trial died 
“because the patient had undergone a lot of chemotherapy after the filtration and had 
gotten additional chemotherapy after the filtration.” (See FAC ¶ 65.) Plaintiffs allege such 
statements were false because “[n]o data had been published corroborating that the 
Croatian study reduced participants’ primary tumor sizes, reduced pain, or rendered 
cancer undetectable.” (See id. ¶ 270(i).) 
ExThera argues “the absence of data does not make Dr. Ilic’s statements untrue,” 
and, in any event, that “[p]laintiffs fail to allege any facts that Dr. Ilic knew that any 
statements about the Croatian study were false.” (See ExThera Mot. at 15:16-20.) 
Plaintiffs, however, have alleged that Dr. Ilic organized and conducted the 
Croatian trial (see FAC ¶ 37), that the Croatian trial did not yield the results that Dr. Ilic 
represented to Ms. Hudlow and Ms. Baskin over the phone (see id. ¶¶ 37-38), and that 
the article she published regarding the results of the trial did not make claims regarding 
the size of patients’ tumor reductions or that the participants in the trial had no evidence 
of cancer following participation in the trial (see id. ¶ 37 n.10). Such factual allegations 
are sufficient to support a finding of falsity and that Dr. Ilic either “had actual knowledge of 
the untruth” of the above-referenced statements or “that the statements were carelessly 
and recklessly made.” See Watt v. Peterson, 125 Cal.App.2d 788, 792 (1954) (setting 
forth showing necessary to plead fraud). 
Further, although not challenged, plaintiffs have adequately pleaded reliance (see 

 
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FAC ¶ 294) and resulting damage, namely, loss of money (see id. ¶ 296).9 
Accordingly, to the extent the Third Claim for Relief is based on the above- 
referenced statements regarding the Croatian trial and ONCObind’s efficacy, such claim 
is not subject to dismissal. 
2. Statements Regarding ONCObind’s Ability to Boost Patients’ 
Immune Systems 
Second, plaintiffs allege multiple defendants represented that, “[b]y filtering the 
blood, ONCObind supercharges the immune system, harnessing it to attack primary 
tumors themselves,” whereas, according to plaintiffs, “[t]here is no evidence that 
ONCObind supercharges the immune system and allows the body to attack primary 
tumors themselves.” (See FAC ¶ 270(ii).) 
The statements attributed to Dr. Ilic regarding the filters, however, namely, that in 
the February 8 phone call she “explained how the filters utilized heparin sulfate to bind 
circulating tumor cells and remove them from the bloodstream,” and that, of the patients 
who participated in the Croatian trial, “the lowest reduction in primary tumor size was 
49%” (see id. ¶¶ 270(ii) (citing id. ¶ 65)) do not include any reference to the immune 
system, let alone a representation as to “supercharg[ing] the immune system” (see id. ¶ 
270(ii)). 
Accordingly, to the extent the Third Claim for Relief is based on the above- 
referenced statements regarding ONCObind’s ability to boost patients’ immune systems, 
such claim is subject to dismissal. 
 
 
9 To the extent plaintiffs allege additional resulting damages, including worsening 
medical conditions and death, plaintiffs fail to make the requisite showing of a causal 
connection between the above-discussed misrepresentations and such additional 
damages. 

 
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3. Statements Regarding Safety of ONCObind Procedure 
Third, plaintiffs allege multiple defendants represented that “there are no serious 
risks to the ONCObind procedure,” whereas, according to plaintiffs, their 
“experiences…illustrate that ONCObind was not risk free.” (See FAC ¶ 270(iv).) 
The only statement attributed to Dr. Ilic, however, makes no reference to risk. (See 
id. ¶¶ 270(iv) (citing id. ¶ 65).)10 
Further, to the extent plaintiffs contend that Dr. Ilic, “in addition to” making 
affirmative misrepresentations, “concealed or failed to disclose” that “at least one person 
had died after the Croatian trial” (see Opp. at 78:8-17), such contention is contradicted by 
their allegations in the FAC (see FAC ¶ 65 (alleging Dr. Ilic, in the February 8 phone call, 
“mentioned a single patient who passed away after filtration”). 
Accordingly, to the extent the Third Claim for Relief is based on the above- 
referenced statements regarding the safety of the ONCObind procedure, such claim is 
subject to dismissal. 
4. Statements Regarding Advisability of Foregoing 
Chemotherapy and Radiation Treatments 
 
Fourth, plaintiffs allege multiple defendants represented that “[t]he only obstacle to 
success is continued chemotherapy or radiation treatment and therefore patients should 
stop such treatment before receiving ONCObind and for some time afterwards,” whereas, 
according to plaintiffs, “[t]here is no evidence that discontinuing or refraining from 
 
10 Although not cross-referenced in ¶ 270(iv) of the FAC, to the extent plaintiffs 
may be relying on their allegation that “Dr. Ilic and Mr. Preston made it clear to Ms. 
Hudlow and Ms. Baskin that ONCObind had no adverse effects, so long as the patient 
receiving the filtration did not receive chemotherapy too close to the treatment” (see FAC 
¶ 73), such allegation fails to meet the requirements of Rule 9(b). See Vess, 317 F.3d at 
1106 (holding “[a]verments of fraud must be accompanied by the who, what, when, 
where, and how of the misconduct charged”). 

 
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undergoing chemotherapy or radiation was advisable.” (See FAC ¶ 270(v).) 
The only statement attributed to Dr. Ilic regarding chemotherapy, however, 
namely, that Dr. Ilic, in the February 8 phone call, “mentioned a single patient who 
passed away after filtration, but…insisted it was because the patient had undergone a lot 
of chemotherapy before the filtration and had gotten additional chemotherapy after the 
filtration” (see id. ¶ 270(v) (citing id. ¶ 65)), does not constitute a recommendation to any 
plaintiff that he/she cease chemotherapy or radiation treatments. 
Accordingly, to the extent the Third Claim for Relief is based on the above- 
referenced statements regarding the advisability of foregoing chemotherapy and radiation 
treatments, such claim is subject to dismissal. 
5. Statements Regarding Clinical Trials in the U.S. 
Fifth, plaintiffs allege that, on multiple occasions, Dr. Ilic made false statements to 
Ms. Hudlow, Ms. Baskin, and Ms. Bowen regarding impending clinical trials of ONCObind 
in the United States, and that patients who received the ONCObind treatment at the 
Antigua clinic would have the opportunity to enroll for free in the clinical trials (see FAC 
¶¶ 75, 99, 123, 153), whereas, according to plaintiffs, the purported clinical trials were 
“actually a single trial for a particular type of pancreatic cancer that no [p]laintiff 
participant had and appears to have only enrolled five participants” (see id. ¶ 270(viii)). 
Plaintiffs allege that Dr. Ilic, during February, March, and April 2024, represented 
to plaintiffs that ONCObind clinical trials “would soon be available in the United States to 
treat all kinds of cancer” (see FAC ¶ 75), and, in particular, that two such trials were 
beginning, one at the “University of Oklahoma” (see id. ¶¶ 99, 123, 153) and one at the 
“MD Anderson Cancer Center in Texas” (see id. ¶¶ 99, 123), and that Antigua ONCObind 
recipients would be eligible to participate in such trials for free (see id. ¶¶ 75, 153). The 
only factual allegation as to the falsity of those statements, however, is that, as of the 

 
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time of the filing of the FAC, the sole clinical trial to have begun in the United States was 
at the University of Oklahoma and “limited to testing the procedure on a specific kind of 
pancreatic cancer” (see id. ¶ 99), which none of the plaintiffs is alleged to have had. Such 
allegation does not suffice to support a finding that, at the time the statements were 
made, approximately a year earlier, no other trials were anticipated. Further, plaintiffs 
have not alleged they agreed to receive treatment at the Antigua clinic in reliance on any 
of the above statements regarding clinical trials in the United States. 
Accordingly, to the extent the Third Claim for Relief is based on the above- 
referenced statements regarding clinical trials in the United States, such claim is subject 
to dismissal. 
6. Statements Regarding ONCObind’s Adverse Effects and the 
Need for Further ONCObind Treatment 
Sixth, plaintiffs allege multiple defendants represented that, following ONCObind 
treatment, “[a]ny negative test results or adverse events are proof that ONCObind is 
working and that further filtrations are needed,” whereas, according to plaintiffs, “[p]laintiff 
participants’ negative test results and adverse events were confirmation that ONCObind 
was harming them, in some cases leading to death.” (See FAC ¶ 270(ix) (citing id. ¶¶ 99, 
103, 137-138).) 
As evidence of the falsity of such statements, plaintiffs allege that, after 
experiencing pain following the ONCObind treatment, Mr. Hudlow’s condition did not 
improve, but, rather, “significantly worse[ned],” including the sudden appearance of 
“growths…on Mr. Hudlow’s head and body,” and “dramatic increase in circulating tumor 
DNA in Mr. Hudlow’s blood,” which results “never returned to the levels they were before 
he went to Antigua” (see FAC ¶¶ 95-98), all culminating in his death “12 days after his 
last ONCObind filtration” (see id. ¶ 117). The FAC contains no allegation, however, that 

 
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at the time the above-referenced statements were made, Dr. Ilic, either as a medical 
professional or otherwise, knew those statements were false or that she made them with 
reckless disregard for their truth. 
Accordingly, to the extent the Third Claim for Relief is based on the above- 
referenced statements regarding ONCObind’s adverse effects and the need for further 
ONCObind treatment, such claim is subject to dismissal. 
V. Negligence 
The Fourth Claim for Relief asserts a claim for negligence. (See FAC ¶¶ 297.) 
Under California law, “[t]he elements of a negligence cause of action are: (1) a 
legal duty to use due care; (2) a breach of that duty; (3) the breach was the proximate or 
legal cause of the resulting injury; and (4) actual loss or damage resulting from the 
breach of the duty of care.” See Brown v. Ransweiler, 171 Cal.App.4th 516, 534 (2009). 
A. Duty 
Plaintiffs assert “ExThera (through Dr. Ilic) had a special duty of care…because of 
the physician-patient relationship” with Mr. Hudlow and Mr. Withey. (See Opp. at 85:9-
86:2.)11 
“A physician's duty of care to a patient does not arise until a physician-patient 
relationship is established.” See McCurry v. Singh, 104 Cal.App.5th 1170, 1176 (2024). 
“The relationship…comes into existence when the patient, or someone acting for 
the patient, solicits the practitioner's services and the latter knowingly consents to, and 
begins consensually to act for, the benefit of the patient.” Id. at 1176-77 (internal 
 
11 Plaintiffs’ assertion that ExThera breached the ordinary duty of care is based on 
representations by Preston, who, as discussed above, has not been shown to have acted 
as ExThera’s agent. 

 
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quotation and citation omitted). “The relationship does not arise when the physician does 
not affirmatively treat or directly advise the patient.” Id. at 1176 (internal quotation and 
citation omitted). 
Here, ExThera argues “the FAC fails to allege that…any ExThera employee 
acted as a treating physician to any [p]laintiff, or that ExThera treated any patients,” and 
that plaintiffs improperly “lump[] ‘Dr. Ilic and Dr. Quasha’ together.” (See ExThera Reply 
at 13:23-26.) 
Contrary to ExThera’s arguments, however, plaintiffs have alleged facts sufficient 
to support a finding that a physician-patient relationship was established between Dr. Ilic 
and both Mr. Hudlow and Mr. Withey. In particular, plaintiffs allege that Dr. Ilic, on various 
occasions, spoke with someone acting for Mr. Hudlow and Mr. Withey, namely, their 
spouses, Ms. Hudlow and Ms. Baskin, to discuss the ONCObind treatment’s efficacy and 
safety and recommended the ONCObind treatment (see, e.g., FAC ¶¶ 65, 73, 99, 100, 
103), assisted plaintiffs in enlisting in the treatment program (id. ¶¶ 66, 74, 81), evaluated 
plaintiffs’ symptoms and responses to the procedure (id. ¶¶ 100, 103, 104, 137), offered 
to enroll plaintiffs in upcoming clinical trials (id. ¶ 99, 103, 123), referred plaintiffs to 
treating physicians, and informed those physicians about the ONCObind procedure (id. 
¶¶ 58, 76).12 
Given the above allegations, the Court finds plaintiffs have sufficiently pleaded a 
duty of care based on a physician-patient relationship between Dr. Ilic and Mr. Hudlow 
 
12 Although plaintiffs have alleged Dr. Ilic, on one occasion, communicated with 
Ms. Bowen regarding Mr. Bowen’s ability to enroll in an upcoming trial of ONCObind in 
the United States (see FAC ¶ 153), and, on another occasion, assisted Mr. Chupp’s 
physician in preparing paperwork for the purpose of administering ONCObind to Mr. 
Chupp in Canada (see id. ¶ 210), such allegations are insufficient to establish a 
physician-patient relationship between Dr. Ilic and either Mr. Bowen or Mr. Chupp. 

 
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and Mr. Withey. 
B. Breach 
“[T]he standard of care for physicians is the reasonable degree of skill, knowledge 
and care ordinarily possessed and exercised by members of the medical profession 
under similar circumstances.” Avivi v. Centro Medico Urgente Medical Center, 159 
Cal.App.4th 463, 470 (2008) (emphasis omitted). The “duty of care applies not only to the 
physician's actual performance or administration of treatment, but also to his choice of 
which courses of treatment to recommend (or not recommend) to a patient.” See Flores 
v. Liu, 60 Cal.App.5th 278, 290 (2021). 
Here, plaintiffs assert Dr. Ilic “breached [her] duty of care by encouraging 
[p]laintiffs to cease proven treatment methods…and to instead undergo an experimental 
procedure while misrepresenting the actual risks and lack of evidence.” (See Opp. at 
86:26-28.) 
“A physician violates his duty of care to a patient if he recommends a course of 
treatment” when that treatment “is one that no reasonable physician using such skill, 
prudence and diligence as other members of the relevant medical community would have 
recommended.” See Flores, 60 Cal.App.5th at 291. “Because, as noted above, the duty 
of care for recommending courses of treatment is pegged to what reasonable physicians 
using such skill, prudence and diligence as other members in the relevant medical 
community would do, whether that duty was breached in a particular case is generally a 
question for experts except where the matter...is...within the common knowledge of 
laymen.” Id. at 292 (internal quotation and citation omitted). 
Here, as noted, plaintiffs allege Dr. Ilic, in recommending plaintiffs undergo a 
course of treatment, markedly misstated the results of a study she herself conducted. 
Under such circumstances, the Court finds plaintiffs need not allege an expert opinion in 

 
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order to plead breach. 
C. Causation 
As noted, one of the elements of a negligence claim is that “the breach was the 
proximate or legal cause of the resulting injury.” See Brown, 171 Cal.App.4th at 534. 
Defendants argue plaintiffs have failed to plead the requisite element of causation. 
In response, plaintiffs cite to their allegations of “worsening disease, death, and 
emotional trauma.” (See Opp. at 87:11-15.) Plaintiffs fail, however, to make the requisite 
causal connection between Dr. Ilic’s recommendations and plaintiffs’ worsening medical 
conditions. Plaintiffs have not alleged, for example, facts showing plaintiffs would not 
have suffered such worsening conditions had they followed a different course of 
treatment or had not received the alleged inadequate medical care at the Antigua clinic. 
Under such circumstances, plaintiffs’ Fourth Claim for Relief is subject to 
dismissal. 
VI. Intentional Infliction of Emotional Distress 
The Fifth Claim for Relief asserts a claim for intentional infliction of emotional 
distress. (See FAC ¶¶ 301-305.) 
Under California law, “[t]he elements of the tort of intentional infliction of emotional 
distress are: (1) extreme and outrageous conduct by the defendant with the intention of 
causing, or reckless disregard of the probability of causing, emotional distress; (2) the 
plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate 
causation of the emotional distress by the defendant's outrageous conduct.” See 
Christensen v. Superior Court, 54 Cal.3d 868, 903 (1991) (internal quotation and citation 
omitted). “Conduct to be outrageous must be so extreme as to exceed all bounds of that 
usually tolerated in a civilized community,” and the defendant must have engaged in such 
conduct with the “inten[t] to inflict injury or…with the realization that injury will result.” See 

 
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id. (internal quotation and citation omitted). 
At the outset, ExThera argues, the “Estate of David Hudlow, Estate of John 
Bowen, and Estate of Kyle Chupp cannot assert an [intentional infliction of emotional 
distress] claim because emotional distress damages do not survive the death of the 
person who suffered them.” (See ExThera Mot. at 21:14-16) (internal quotation and 
citation omitted). As plaintiffs point out, however, a cause of action for a decedent’s pre-
death pain and suffering survives and may be brought by the “decedent’s personal 
representative or successor in interest on the decedent’s cause of action” if the lawsuit 
was, as here, “filed on or after January 1, 2022, and before January 1, 2026.” See Cal. 
Code Civ. P. § 377.34(b). 
Further, as to the merits of such claim, plaintiffs, as discussed above, have 
adequately pleaded a fraud claim based on Dr. Ilic’s alleged misrepresentations to 
seriously ill cancer patients in an effort to encourage them to participate in an allegedly 
inappropriate treatment protocol. Such conduct is sufficient to support a claim for IIED. 
See, e.g., Berkley v. Dowds, 152 Cal.App.4th 518, 534 (2007) (holding medical treatment 
advice can support a finding of outrageous conduct if that advice is “false and given in 
bad faith”). 
Accordingly, to the extent the Fifth Claim for Relief is based on the first of the 
above-discussed allegedly fraudulent statements, such claim is not subject to dismissal. 
VII. Battery 
In the Sixth Claim for Relief, plaintiffs assert a claim for battery, alleging 
“[d]efendants’ touching of [p]laintiff[s]…through the use of ONCObind—was extremely 
offensive because [d]efendants misrepresented what the medical procedure was” and 
“did not disclose that the procedure amounted to human experimentation for which there 
was no clinical proof of efficacy at treating cancer and for which substantial risks existed.” 

 
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(See FAC ¶ 308.) 
Under California law, a plaintiff can assert a claim for “medical battery” either (1) 
“when a physician obtains the patient's consent to perform one type of treatment, but 
performs a substantially different treatment for which the plaintiff gave no consent,” or (2) 
“when a physician performs the treatment for which consent was obtained and an 
infrequent complication occurs that the physician failed to disclose when obtaining the 
patient's consent.” See Larson v. UHS of Rancho Springs, Inc., 230 Cal.App.4th 336, 349 
(2014). 
Here, plaintiffs have not alleged that, in the course of their medical care at 
Quadrant Clinical Care’s Antigua clinic any ExThera physician or agent performed any 
treatment or medical procedure on any plaintiff. Rather, plaintiffs consistently allege that 
treatment was performed by Quadrant Clinical Care’s Chief Medical Officer, namely, Dr. 
Quasha (see FAC ¶¶ 23, 47, 48, 60, 74, 81, 83, 97, 101, 125, 126, 150, 152, 155, 265), 
the clinic’s attending physician, namely, Dr. Joseph John (see id. ¶¶ 85, 87, 105, 126, 
151, 157, 208, 244, 252, 265), and other Quadrant Clinical Care staff (see id. ¶¶ 13, 15-
20, 23, 85, 109, 130, 179, 229, 275).13 
Accordingly, plaintiffs’ Sixth Claim for Relief is subject to dismissal. 
VIII. Product Liability (Failure to Warn) 
The Seventh Claim for Relief asserts a claim for strict product liability for failure 
to warn of the risks presented by ExThera’s Seraph 100 filters, namely, the risk of 
clogging, causing significant blood loss, and the risk of pain and worsening symptoms 
 
13 As with their claims of fraud, plaintiffs have failed to plead facts sufficient to 
show ExThera can, on a conspiracy theory, be held liable for the conduct of other 
defendants. 

 
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from their use in the filtration procedure. (See FAC ¶¶ 312-319; see also Opp. at 99:3.) 
“In California, a defendant manufacturer can be held strictly liable for failure to 
warn if the plaintiff proves the following: (1) the defendant manufactured, distributed, or 
sold the product; (2) the product had potential risks that were known or knowable at the 
time of manufacture or distribution, or sale; (3) that the potential risks presented a 
substantial danger to users of the product; (4) that ordinary consumers would not have 
recognized the potential risks; (5) that the defendant failed to adequately warn of the 
potential risks; (6) that the plaintiff was harmed while using the product in a reasonably 
foreseeable way; (7) and that the lack of sufficient warnings was a substantial factor in 
causing the plaintiff's harm.” Jian Wu v. Ean Holdings, LLC, 2014 WL 117338, at *3 (N.D. 
Cal. Jan. 10, 2014) (citing Judicial Council of Cal. Civil Jury Inst. No. 1205) (internal 
quotation and citation omitted). 
A. Causation 
1. Blood Loss from Clogged Seraph 100 Filters 
ExThera asserts the Seraph 100 filters did not cause plaintiffs’ injuries, citing an 
article plaintiffs reference in the FAC (see FAC at 1 n.1; 15 n.12), which reference, 
according to ExThera, was for the purpose of “attribut[ing] their injuries to the alleged 
incompetence or absence of [Quadrant Clinical Care] staff.” (See ExThera Motion at 
23:22-23.) In particular, ExThera argues, “any alleged clogging was due to [Quadrant 
Clinical Care’s] failure to properly administer the treatment, not because the filters 
themselves were defective.” (See ExThera Reply at 15:7-8.) Although the article does 
mention one occasion on which Quadrant Clinical Care’s improper administration caused 
the filter to clog (see Doc. No. 102-1 (“Coppola Decl.”) Ex. 1 at 20), the FAC contains 
factual allegations sufficient to support a finding that, on multiple occasions, the Seraph 
100 filters clogged when used in a manner intended by ExThera. (See FAC ¶¶ 129-131, 

 
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163, 243.) 
2. ONCObind Procedure 
Plaintiffs allege that, even where the Seraph 100 filters did not clog and 
functioned as intended, the ONCObind procedure caused plaintiffs “significant harm, 
including, but not limited to, severe emotional distress, extreme pain14, loss of blood, 
tumor lysis syndrome15, kidney failure, rapid progression of cancer metastasis, and, in 
three cases, death.” (See FAC ¶ 319.) 
As to tumor lysis syndrome, plaintiffs have alleged facts sufficient to show 
causation. (See FAC ¶¶ 65, 90, 200-202.) As to all of the other conditions, the above-
quoted conclusory allegation, given the absence of factual support, is insufficient. See 
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding “conclusory statements…do not 
suffice” to state plausible claim). 
B. Learned Intermediary Doctrine 
ExThera contends that, “even if the alleged harm was attributable to ExThera’s 
filters,” ExThera cannot be held liable for plaintiffs’ failure to warn claim due to California’s 
“learned intermediary doctrine.” (See ExThera Motion at 24:2-4.) 
“The learned intermediary doctrine provides that manufacturers have a duty to 
warn physicians, but not the physicians’ patients, about certain risks accompanying use 
of their…medical devices.” See Himes v. Somatics LLC, 16 Cal.5th 209, 221 (2024) 
(holding “the manufacturer is required to warn physicians of any non-negligible risks that 
 
14 There is no allegation that any plaintiff suffered extreme pain during and by 
reason of the administration of the treatment. 
15 According to the FAC, tumor lysis syndrome “occurs when many tumor cells are 
killed and the body struggles to process them as they are released into the bloodstream.” 
(See FAC ¶ 90.) 

 
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are generally unknown to the medical community”). “Pursuant to the doctrine, the 
manufacturer fulfills its general duty of care owed to the patient by providing an adequate 
warning to the patient's physician.” Id. at 222. “The patient cannot sue the manufacturer 
for failing to warn him or her directly.” Id. at 221. “As long as the manufacturer has 
adequately warned the patient's physician of the non-negligible risks of its prescription 
drug or medical device, the manufacturer has fulfilled its duty to warn.” Id. 
“Moreover, the manufacturer cannot be held liable if it has provided appropriate 
warnings and the doctor fails in his or her duty to transmit these warnings to the 
patient.” Id. at 222 (internal quotation and citation omitted). “The physician thus acts as a 
learned intermediary between the manufacturer and the patient by recommending a 
course of treatment based not only on the warnings relayed by the manufacturer, but also 
on the physician's own medical training and experience as well as the patient's particular 
needs and risk factors.” Id. (internal quotation and citation omitted). 
Here, ExThera argues, “[p]laintiffs do not allege ExThera failed to train [Quadrant 
Clinical Care’s] physicians” to use the Seraph 100 filters, and that “[p]laintiffs admit 
ExThera sent employees to Antigua” to train the clinic’s staff “on the use of the filters.” 
(See ExThera Motion at 24:6-10.) As plaintiffs point out, however, their allegation that 
ExThera instructed staff at Quadrant Clinical Care’s Antigua clinic on the administration 
of the ONCObind procedure (see, e.g., FAC ¶ 43) does not suggest ExThera warned of 
the risks presented by the Seraph 100 filters or the procedure in which they were used 
(see Opp. at 97:27-98:2), nor does it show ExThera warned any physicians who referred 
plaintiffs to the Antigua clinic. 
C. Conclusion: Product Liability 
To the extent plaintiffs’ Seventh Claim for Relief is based on a failure to warn as to 
the risks of clogging and tumor lysis syndrome, such claim is not subject to dismissal. To 

 
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the extent the Seventh Claim for Relief is based on a failure to warn as to other risks, 
such claim is subject to dismissal. 
IX. Wrongful Death 
The Eighth Claim for Relief, brought by plaintiffs Kim Hudlow, Stacey Bowen, 
and Vanessa Chupp, and the Estates of David Hudlow, John Bowen, and Kyle Chupp,16 
asserts a claim for wrongful death. (See FAC ¶¶ 320-324.) 
Under California law, the elements of a cause of action for wrongful death are 
(1) the commission of a “tort (negligence or other wrongful act),” (2) the “resulting death,” 
and (3) “damages, consisting of the pecuniary loss suffered by the heirs.” See Quiroz v. 
Seventh Ave. Center, 140 Cal.App.4th 1256, 1263 (2006) (internal quotation and citation 
omitted) (emphasis omitted). 
As to the first element, as discussed above, plaintiffs have adequately pleaded 
a fraud and intentional infliction claim by Mr. Hudlow, and failure to warn claims by Mr. 
Bowen and Mr. Chupp.17 As to the second element, however, plaintiffs have not, as 
discussed above, pleaded “a resulting death.” See Quiroz, 140 Cal.App.4th at 1263. 
Accordingly, plaintiffs’ Eighth Claim for Relief is subject to dismissal. 
 
16 To the extent the wrongful death cause of action is brought by the Estates of 
David Hudlow, John Bowen, and Kyle Chupp, such claim is subject to dismissal. See 
California Code of Civil Procedure § 377.60 (listing persons with standing to assert 
wrongful death cause of action); see also Horwich v. Superior Court, 21 Cal.4th 272, 283 
(1999) (holding “Code of Civil Procedure section 377.60 “creates a new cause of action in 
favor of the heirs as beneficiaries…distinct from any the deceased might have maintained 
had he survived”) (emphasis omitted) (internal quotation and citation omitted). 
17 ExThera’s argument that plaintiffs’ wrongful death claim fails because “California 
law does not recognize a claim for wrongful death where the decedent had a less than 
fifty percent chance of survival” is unavailing. (See ExThera Mot. at 24:16-17.) As 
plaintiffs point out, the case on which ExThera relies, Bromme v. Pavitt, 5 Cal.App.4th 
1487 (1992), concerns alleged “failure[s] to diagnose and treat a potentially terminal 
condition,” a claim not brought here. See id., 5 Cal.App.4th at 1493. 
 

 
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CONCLUSION 
For the reasons stated above, defendants’ motions to dismiss are hereby GRANTED 
IN PART and DENIED IN PART as follows: 
1. As to Quadrant Defendants’, Dr. Quasha’s, and Preston’s motions to dismiss for 
lack of personal jurisdiction, said motions are hereby GRANTED, and all claims 
alleged against said defendants are hereby DISMISSED with leave to amend. 
2. As to ExThera’s motion to dismiss the First (Civil RICO), Second (Civil RICO 
Conspiracy), Fourth (Negligence), Sixth (Battery), and Eighth (Wrongful Death) 
Claims for Relief, the motion is hereby GRANTED, said claims are hereby 
DISMISSED with leave to amend. 
3. As to ExThera’s motion to dismiss the Third Claim for Relief (Fraud) and Fifth 
Claim for Relief (Intentional Infliction of Emotional Distress), to the extent said 
claims are based on statements regarding the Croatian trial and ONCObind’s 
efficacy, the motion is hereby DENIED, and in all other respects is hereby 
GRANTED with leave to amend. 
4. As to ExThera’s motion to dismiss the Seventh Claim for Relief (Product Liability), 
to the extent the claim is based on failure to warn of the risks of clogging and 
tumor lysis syndrome, the motion is hereby DENIED, and in all other respects is 
hereby GRANTED with leave to amend. 
5. If plaintiffs elect to amend, plaintiffs’ Second Amended Complaint shall be filed no 
later than June 30, 2026. 
IT IS SO ORDERED. 
 
Dated: May 28, 2026 
 MAXINE M. CHESNEY 
 United States District Judge 

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