Goodfellow et al v. Camp Netimus, Inc. et al

Filing 25

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 5/4/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GORDON PARKER GOODFELLOW:
IV, a minor by GORDON PARKER
GOODFELLOW, III and LORENA :
GOODFELLOW, Parents and
Natural Guardians, and GORDON : CIVIL ACTION NO. 3:16-1521
PARKER GOODFELLOW, III and
LORENA GOODFELLOW,
: (JUDGE MANNION)
Individually,
:
Plaintiffs
:
v
:
CAMP NETIMUS, INC., d/b/a
CAMP SHOHOLA FOR BOYS, INC. :
a/k/a CAMP SHOHOLA, INC.;
CANDACE KAY LEHMAN and
:
LISA M. CHOU (BRASS),
:
Defendants
MEMORANDUM
Pending before the court is the motion to dismiss, (Doc. 12), of the
defendants regarding plaintiffs’ direct medical corporate negligence claims
raised against Camp Netimus, Inc., d/b/a Camp Shohola for Boys, Inc. (“the
Camp”) in the amended complaint, (Doc. 10), based on an alleged defective
Certificate of Merit (“COM”) which allegedly fails to set forth that plaintiffs are
proceeding on such a theory against the Camp. The defendants also seek to
dismiss the allegations of negligence against the individual defendants as well
as all allegations of recklessness. Further, the defendants move to dismiss
the parent plaintiffs’ loss of consortium claim regarding their minor son. For
the reasons discussed below, the defendants’ motion will be GRANTED IN

PART AND DENIED IN PART.

I.

PROCEDURAL AND FACTUAL BACKGROUND1
The plaintiffs, Gordon Parker Goodfellow, III, and Lorena Goodfellow

bring this action on behalf of their minor son, Gordon Parker Goodfellow, IV
(“GPG”), and on their own behalf. The plaintiffs filed their complaint on July
22, 2016, (Doc. 1), against defendants the Camp, and the two Camp infirmary
nurses, Candace Kay Lehman and Lisa M. Chou. After defendants were
served, they filed a motion to dismiss the complaint on September 23, 2016.
(Doc. 9). On September 30, 2016, plaintiffs filed an amended complaint. (Doc.
10). There was only one difference between the amended complaint and the
original complaint, namely, ¶ 17.1 which stated that counsel erred in checking
the wrong box on the original COM for the Camp and that plaintiffs had
secured an expert who gave an opinion regarding the negligence of the
Camp. Attached to the amended pleading were amended COMs regarding all
three defendants. (Doc. 10, pp. 24-30). The amended COM for the Camp had
the box for vicarious liability checked. (Doc. 10, pp. 24-25). The court then
dismissed the motion to dismiss the original complaint since it was moot.
(Doc. 11).
1

All facts are taken from plaintiffs’ amended complaint, (Doc. 10), unless
otherwise noted. The facts alleged in plaintiffs’ amended complaint must be
accepted as true in considering the Camp’s motion to dismiss. See
Dieffenbach v. Dept. of Revenue, 490 Fed.Appx. 433, 435 (3d Cir. 2012);
Evancho v. Evans, 423 F.3d 347, 350 (3d Cir. 2005).
2

On October 19, 2016, the defendants filed a motion to dismiss portions
of the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 12). The
defendants simultaneously filed their brief in support. (Doc. 13). On November
2, 2016, the plaintiffs filed their brief in opposition. (Doc. 16). The defendants
filed a reply brief on November 9, 2016, rendering their motion to dismiss ripe
for review. (Doc. 17).
This action relates to the medical treatment GPG received while
attending the Camp, as an overnight camper, during the summer of 2014.
GPG became sick on July 26, 2014 and was brought to the Camp’s infirmary
complaining about stomach pain, nausea, vomiting and a fever. The Camp’s
infirmary was staffed by Lehman and Chou, both licensed professionals, who
believed GPG was suffering from a stomach flu. GPG remained in the Camp’s
infirmary from July 26 through July 29, 2014, allegedly without proper medical
care. On July 29, 2014, the Camp Director brought GPG to Hawley Urgent
Care where he was immediately referred to Wayne Memorial Hospital
Emergency Room for a CT scan. The scan revealed that GPG had a
perforated appendix which caused sepsis. GPG was then transported to
Geisinger Medical Center where he received IV antibiotics to address the
infection. GPG remained at Geisinger receiving antibiotics until September 24,
2014, when he was stable enough to have surgery to remove his appendix.
GPG was discharged from Geisinger on September 26, 2014. For one month
thereafter, GPG allegedly still had pain in his lower abdomen.
In their amended complaint, (Doc. 10), the plaintiffs allege that Lehman
3

and Chou were negligent for initially misdiagnosing GPG with a stomach flu,
for failing to timely diagnose his condition which was appendicitis, and for
failing to supervise and train Camp employees. In addition to the direct
professional negligence claims against Lehman and Chou, the plaintiffs claim
that the Camp is vicariously liable for the alleged negligence of the two
infirmary nurses. The plaintiffs also assert claims of direct and corporate
negligence against the Camp, including claims that it failed to adequately train
the infirmary staff, it failed to have adequate policies and procedures in place,
and it failed to consult with a physician.
There are five counts in the amended complaint, to wit: (I) a
professional medical negligence claim against Lehman; (II) a professional
medical negligence claim against Chou; (III) claims of vicarious liability as well
as direct corporate medical negligence claims against the Camp; (IV) a claim
for emotional distress allegedly suffered by GPG against all defendants; and
(V) a claim by GPG’s parents against all defendants for recovery of medical
bills and a loss of consortium claim by GPG’s parents regarding GPG. There
are also several allegations of recklessness against the defendants in the
amended complaint. As relief in all five counts, plaintiffs seek compensatory
damages. This court’s jurisdiction is based on diversity 28 U.S.C. §1332.
As indicated, the plaintiffs attached amended COMs to their amended
complaint regarding all three defendants. (Doc. 10, pp. 24-30). The amended
COMs against Lehman and Chou were filed based on Pa.R.C.P. 1042.3(a)(1)
and state, in pertinent part, an expert has found that “there is a basis to
4

conclude that the care, skill or knowledge exercised or exhibited by this
defendant in the treatment, practice or work [at issue], fell outside acceptable
professional standards and that such conduct was a cause in bringing about
the harm [to GPG].” The amended COM filed against the Camp, which is
based only on Pa.R.C.P. 1042.3(a)(2), states that “the claim that this
defendant deviated from an acceptable professional standard is based solely
on allegations that other licensed professionals [i.e.,Lehman and Chou] for
whom this defendant is responsible deviated from an acceptable professional
standard” and, that an expert has found “there is a basis to conclude that the
care, skill or knowledge exercised or exhibited by the other licensed
professionals in the treatment, practice or work [at issue], fell outside
acceptable professional standards and that such conduct was a cause in
bringing about the harm [to GPG].”

II.

STANDARDS OF REVIEW
A. Motion to Dismiss
The defendants’ motion to dismiss is brought pursuant to the provisions

of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the

5

complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff's cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
6

physically attached to the pleading, may be considered.” Pryor v. Nat'l
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
B. Motion to Strike
Defendants’ motion, insofar as it seeks to strike portions of the
amended complaint, is also made pursuant to Fed.R.Civ.P. 12(f). In Tennis
v. Ford Motor Co., 730 F.Supp.2d 437, 443 (W.D.Pa. 2010), the court
explained as follows regarding a Rule 12(f) motion:
Under Fed.R.Civ.P. 12(f) “[t]he court may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” Rule 12(f) “permits the court, on its own
motion, or on the timely motion of a party, to order stricken from
any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Adams v. Cnty. of
Erie, Pa., 2009 WL 4016636 at *1 (W.D.Pa. Nov. 19, 2009)
quoting Fed.R.Civ.P. 12(f)). “The purpose of a motion to strike is
to clean up the pleadings, streamline litigation, and avoid
7

unnecessary forays into immaterial matters.” Natale v. Winthrop
Resources Corp., 2008 WL 2758238 at *14 (E.D.Pa. July 9, 2008)
(quoting McInerney v. Moyer Lumber & Hardware, Inc., 244
F.Supp.2d 393, 402 (E.D.Pa. 2002)).
Although courts possess “considerable discretion in disposing of
a motion to strike under Rule 12(f), ‘such motions are not favored
and usually will be denied unless the allegations have no possible
relation to the controversy and may cause prejudice to one of the
parties, or if the allegations confuse the issues in the case.’”
Thornton v. UL Enterprises, LLC, 2010 WL 1005021 at *2
(W.D.Pa. March 16, 2010) (internal citations omitted). “Striking
some or all of a pleading is therefore considered a drastic remedy
to be resorted to only when required for the purposes of justice.”
Thornton, 2010 WL 1005021 at *2 (quoting DeLa Cruz v. Piccari
Press, 521 F.Supp.2d 424, 428 (E.D.Pa. 2007) (quotations
omitted)).

III.

DISCUSSION
In their motion, defendants argue that the amended COM filed against

the Camp supports only claims of vicarious liability with respect to the alleged
negligence of Lehman and Chou and is thus insufficient to support direct
claims of corporate negligence. Defendants also argue that plaintiffs’
corporate negligence claims against the Camp should be dismissed for failure
to state a cause of action and, that the vague allegations of negligence in the
amended complaint should be stricken against all defendants. Further,
defendants argue that all of the allegations of recklessness should be stricken
from the amended complaint. Finally, defendants assert that the parent
plaintiffs’ cause of action for loss of consortium regarding GPG should be
dismissed for failure to state a cognizable claim.
8

Plaintiffs initially contend that defendants’ motion to dismiss with respect
to their direct corporate negligence claims against the Camp is untimely.
Plaintiffs cite to Pa.R.C.P. 1042.6 and 1042.7 and, point out that a defendant
claiming a defective COM is required to file a notice of intent to enter a
judgment of non pros, i.e., a motion to dismiss with respect to this case, “no
sooner than the thirty-first day after the filing of the complaint.” Plaintiffs filed
their original complaint on July 22, 2016, and served it on defendants along
with waivers and Summons on July 26, 2016. Defendants signed the waivers
which provided that they had 60 days to respond to plaintiffs’ complaint from
July 26, 2016, i.e., by September 24, 2016. (Doc. 4, Doc. 8). On September
23, 2016, the defendants jointly filed their motion to dismiss with respect to
the original complaint, which argued, in part, that the COM regarding the
Camp was defective. (Doc. 9). Specifically, the COM regarding the Camp
which was attached to the original compliant, (Doc. 1, p. 29), had only the
third box checked which provided that “expert testimony of an appropriate
licensed professional is unnecessary for prosecution of the claim against this
defendant” based on Pa.R.C.P. 1042.3(a)(3). Defendants’ motion was timely
since it was filed one day before the expiration of the 60-day period. In
response to the motion to dismiss, plaintiffs filed their amended complaint on
September 30, 2016. Since the 60-day period expired on September 24, 2016
and there was only one day remaining on it, defendants had 14 days to
respond to plaintiffs’ amended complaint. See Fed.R.Civ.P. 15(a)(3).
9

On October 19, 2016, the defendants filed their motion to dismiss the
amended pleading, including the direct corporate negligence claims against
the Camp again based on a defective COM. However, defendants’ motion
was due on October 14, 2016, i.e., 14 days after September 30, 2016 and,
thus, it was filed five days late. Defendants did not file a motion for an
extension of time to file their motion. Nor did they file a motion with the court
seeking to file their motion to dismiss nunc pro tunc. As such, plaintiffs argue
that defendants’ motion to dismiss their amended complaint should be
dismissed in its entirety since it was filed out of time.
Defendants do not concede that their instant motion was untimely. Nor
do they claim that it was timely. Rather, defendants contend that the court
should still determine the merits of their motion even if it is untimely since
“plaintiffs are not prejudiced in any manner whatsoever.” (Doc. 17, p. 2).
Defendants point out that their instant motion to dismiss is nearly identical to
their prior motion to dismiss plaintiffs’ original complaint and that plaintiffs had
notice of their intent to challenge some of the amended pleading before it was
even filed. Thus, defendants state that dismissal of their instant motion is too
drastic a sanction since any short delay did not cause plaintiffs any prejudice.
Defendants’ motion was a few days late. However, the court, in its
discretion, will not strike the motion as untimely since plaintiffs had actual
prior notice of the essential grounds for the motion and there is simply no
prejudice to plaintiffs by the short delay. There is also no prejudice to plaintiffs

10

since many of defendants’ present arguments could be re-asserted in a later
summary judgment motion. Moreover, if defendants had requested an
extension of time or requested to file their motion nunc pro tunc, the court
certainly would have granted it. Thus, striking defendants’ motion under the
present circumstances would be too drastic a sanction, and the court will
consider the merits of defendants’ motion to dismiss. However, counsel is
reminded to adhere to the Federal Rules of Civil Procedure and the rules of
this court in the future.
Next, plaintiffs argue that defendants’ attempt to dismiss their claims of
direct corporate medical negligence against the Camp based on an alleged
defective COM should be asserted in a summary judgment motion and that
defendants were required under the Pennsylvania procedural rules to have
given them notice of intent to enter judgment of non pros pursuant to
Pa.R.C.P. 1042.6 and 1042.7.
At the outset, the court finds that the defendants can challenge the
plaintiffs’ alleged defective COM against the Camp in a motion to dismiss.
See Bassill v. Bryn Mawr Rehab. Hosp., 2016 WL 6247549, *1 (E.D.Pa. Oct.
26, 2016) (Defendant hospitals filed a motion to dismiss plaintiff’s corporate
negligence claim for filing a defective COM and asserted that plaintiff’s COM
was insufficient to support that claim.); see also Stroud v. Abington Mem’l
Hosp., 546 F. Supp. 2d 238, 248 (E.D.Pa. 2008). This court also takes judicial
notice that it has considered motions to dismiss in many cases based on the

11

failure to file proper COMs as well as timely COMs. See, eg., Levi v. Lappin,
2009 WL 1770146 (M.D.Pa. June 22, 2009); see also cases cited by
defendants (Doc. 17, pp. 5-6).
Additionally, the court does not find any reason to wait for a summary
judgment motion on the present issue since discovery will not alter the basis
of defendants’ stated contention seeking to dismiss plaintiffs’ corporate
negligence claims against the Camp due to a defective COM and the 60-day
deadline to file COMs has expired. Also, plaintiffs already had the opportunity
to amend their COM against the Camp and they did so. (Doc. 10, p. 25).
Further, defendants were not required to follow Pa.R.C.P. 1042.6 and
1042.7 by filing a notice of intent to enter judgment of non pros. As the court
stated in Keel-Johnson v. Amsbaugh, 2009 WL 648970, at *3 (M.D.Pa. Mar.
10, 2009), “[n]ot all aspects of the Pennsylvania COM rule can be
implemented in federal court[.]” In fact, Rules 1042.6 and 1042.7 are
“enforcement mechanisms [which] are procedural and inapplicable to federal
practice.” Id. (citing Stroud v. Abington Mem. Hosp., 546 F. Supp. 2d 238, 250
(E.D. Pa. 2008)). Additionally, “[n]either the Federal Rules of Civil Procedure
nor the local rules of this Court contemplate praecipes or the entry of
judgments of non pros.” Id. (citing Stroud, 546 F. Supp.2d at 250); Vochinsky
v. GEO Group, Inc., 2009 WL 4017254, *2 (E.D.Pa. Nov. 20, 2009) (“Federal
procedural rules differ from Pennsylvania procedural rules. Therefore, in
federal court, the defendant must file a motion to dismiss without prejudice

12

[regarding a COM].”). In any event, plaintiffs had notice of defendants’ intent
to move to dismiss based on an alleged defective COM against the Camp
when they filed their first motion prior to plaintiffs’ amended complaint and
amended COMs. (Doc. 9).
The court will now discuss the merits of defendants’ arguments and
grounds for dismissal seriatim.
Defendants move to dismiss plaintiffs’ claims of direct corporate medical
negligence against the Camp based on an alleged defective COM. “Rule
1042.3 of the Pennsylvania Rules of Civil Procedure requires that all
professional liability claims be supported by a [COM] filed within sixty days of
the filing of the complaint.” Bassill v. Bryn Mawr Rehab. Hosp., 2016 WL
6247549, *1 (E.D.Pa. Oct. 26, 2016) (citing Pa.R.Civ.P. 1042.3(a)).
Pennsylvania Rule of Civil Procedure 1042.32 further requires that, “[i]n any
action based upon an allegation that a licensed professional deviated from an
acceptable professional standard, the attorney for the plaintiff, or the plaintiff
if not represented, shall file . . . a certificate of merit signed by the attorney or
party.” Pa.R.C.P. No. 1042.3(a). This certificate of merit will either state that
“an appropriate licensed professional has supplied a written statement that

2

The Third Circuit has held that Rule 1042.3 is substantive law and must
be applied by federal courts sitting in diversity jurisdiction. Liggon-Redding v.
Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011) (“[W]e conclude
that Pennsylvania Rule 1042.3, mandating a certificate of merit in professional
negligence claims, is substantive law under the Erie Rule and must be applied
as such by federal courts.”).
13

there exists a reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or work that is the subject of
the complaint, fell outside acceptable professional standards and that such
conduct was a cause in bringing about the harm,” “the claim that the
defendant deviated from an acceptable professional standard is based solely
on allegations that other licensed professionals for whom this defendant is
responsible deviated from an acceptable professional standard,” or that
“expert testimony of an appropriate licensed professional is unnecessary for
prosecution of the claim.” Pa.R.C.P. No. 1042.3(a)(1), (2), (3).
“In Rostock v. Anzalone, 904 A.2d 943, 946 (Pa.Super.Ct. 2006), the
Pennsylvania Superior Court held that the plaintiff’s corporate negligence
claims required a COM and expert testimony.” Bassill, 2016 WL 6247549, *2.
In Stroud v. Abington Mem’l Hosp., 546 F. Supp. 2d 238, 248 (E.D.Pa. 2008),
the court held that “[a] COM is required as to corporate negligence claims that
are premised on allegations that a hospital’s actions fell below the applicable
medical or professional standard, i.e., where the claim is predicated upon
facts constituting medical treatment.” (citing Rostock, supra). It is clear that
a COM is required for a plaintiff to pursue a corporate negligence claim
against a licensed professional medical care provider such as a hospital.
Plaintiffs contend that a COM is not required in this case with respect to the
Camp since it is not a licensed professional medical care provider as
specified in Pa.R.C.P. 1042.1 and that they can proceed on their direct

14

corporate liability claims against the Camp without expert testimony.
Defendants dispute plaintiffs’ contention that a COM is not required as to their
direct corporate liability claims against the Camp. Defendants also dispute
whether plaintiffs’ COM is adequate with respect to such claims against the
Camp.
Plaintiffs filed their amended complaint with the amended COM against
the Camp since their original COM indicated that expert testimony of a
licensed professional was not necessary for the prosecution of the claim
against the Camp. (Doc. 1, p. 29). No doubt that the Camp is a corporate
entity but not a licensed professional or a health care provider. (Doc. 12, ¶36).
Plaintiffs’ amended COM with respect to the Camp served to remedy the error
in their original COM by indicating that they have an expert who opines only
that the Camp is vicariously liable for the actions of its professionally licensed
nurses, i.e., Lehman and Chou. See Pa.R.Civ.P. 1042.3(a)(2). Plaintiffs only
checked the second box on their amended COM with respect to the Camp.
(Doc. 10, p. 25). However, regarding their corporate direct medical negligence
claims against the Camp seeking to hold the Camp directly liable for its own
negligence, in addition to the alleged negligence of Lehman and Chou,
defendants contend that plaintiffs must present expert evidence and a COM.
A separate COM is required for each licensed professional who is
claimed to have deviated from an acceptable professional standard.
Pa.R.C.P. 1042.3(b)(1). A “licensed professional” is defined as “any person

15

who is licensed pursuant to an Act of Assembly as a healthcare provider as
defined by Section 503 of the Medical Care Availability and Reduction of Error
(MCARE) Act . . . and a nurse.” Pa. R.C.P. 1042.1. The MCARE Act, 40 P.S.
§1303.503, defines a “heath care provider” as “a primary health care center,
a personal care home licensed by [DPW] … or a person, including a
corporation, university or other educational institution licensed or approved by
the Commonwealth to provide health care or professional medical services as
a physician, a certified nurse midwife, a podiatrist, hospital, nursing home,
birth center, and an officer, employee or agent of any of them acting in the
course or scope of employment.”
Regardless whether the Camp is a licensed health care provider, a
COM is required because the substance of plaintiffs’ amended complaint
alleges professional medical malpractice was committed by the Camp.
Vochinsky, 2009 WL 4017254, *2 (court held that a COM was required by
inmate who alleged GEO Group, Inc., a corporation which operated the
Delaware County Prison, committed medical practice) (citing Dental Care
Assoc., Inc. v. Keller Eng’rs, Inc., 954 A.2d 597, 601-03, 603 n. 4
(Pa.Super.Ct. 2008) (“the Superior Court [ ] found the defendant qualified as
a licensed professional for purposes of Rule 1042 and a certificate of merit
was required where the defendant was a ‘corporation engaged in the
business of providing engineering services’ and the substance of plaintiff’s
complaint alleged professional malpractice.”).

16

As such, the court finds that a COM is required as to the direct
corporate medical negligence claims plaintiffs assert against the Camp even
though it is not a licensed professional medical care provider since these
claims are based on allegations that the Camp’s actions fell below the
applicable medical or professional standard, “i.e., where the claim is
predicated upon facts constituting medical treatment.” See Rostock, 904 A.2d
at 946; Stroud, 546 F.Supp.2d at 248. Specifically, plaintiffs allege that the
Camp failed to adequately train the infirmary medical staff, failed to have
adequate policies and procedures in place regarding its medical facility to
treat the campers, and failed to consult with a physician.
In fact, plaintiffs did file a COM against the Camp. However, the court
finds that the amended COM against the Camp supports only a claim of
vicarious liability and that it is insufficient to support a direct claim of corporate
medical negligence. Plaintiffs did not check the first box on their amended
COM against the Camp. See Pa.R.C.P. 1042.3(a)(1). Rather, they checked
only the second box.
In Bassill, 2016 WL 6247549, *2, the court explained as follows,
a claim for corporate negligence “is based on the negligent acts
of the institution.” Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997).
“A cause of action for corporate negligence arises from the
policies, actions or inaction of the institution itself rather than the
specific acts of individual hospital employees. Thus, under this
theory, a corporation is held directly liable, as opposed to
vicariously liable, for its own negligent acts.” Id. (internal citations
omitted).

17

Moreover, “[c]orporate negligence claims generally require expert
testimony; therefore, they also require COMs.” Id. In Count III of the amended
complaint, plaintiffs raise claims of vicarious liability and claims of direct
corporate medical negligence against the Camp with respect to the medical
treatment received by GPG. The court does not find, as plaintiffs now seem
to suggest, (Doc. 16, p. 12), that they are merely raising claims for ordinary
negligence against the Camp. In particular, plaintiffs allege in their amended
complaint, (Doc. 10), that the Camp controls an infirmary, employs full time
medical staff, including Lehman and Chou, and that the Camp is responsible
for such staff. Plaintiffs also allege that the Camp failed to have adequately
trained medical staff, failed to have adequate medical policies and procedures
in place, failed to have a doctor on staff, failed to meet its duty of providing
medical and nursing care to campers, and failed to inform GPG’s parents of
his medical conditions. Additionally, plaintiffs allege that the Camp was
negligent in failing to provide proper and competent supervision, diagnosis,
treatment, care and monitoring. (Doc. 10, ¶ 48). Thus, plaintiffs seek, in part,
to hold the Camp directly liable for its own medical negligence. “The case law
makes it clear that in order to do so, [plaintiffs] would need to present expert
evidence, and thus [a] supporting COM[], regarding the [Camp’s] negligence,
as separate from the alleged negligence of its employee[s] and/or agent[s].”
Bassill, 2016 WL 6247549, *2.
Under Pennsylvania law, medical negligence “can be broadly defined

18

as the unwarranted departure from generally accepted standards of medical
practice resulting in injury to a patient, including all liability-producing conduct
arising from the rendition of professional medical services.” Toogood v. Owen
J. Rogal, D.D.S., P.C., 573 Pa. 245, 254-55 (2003) (internal citations and
quotations omitted). Thus, a plaintiff must establish a duty owed by the
physician or medical personnel to the patient, a breach of that duty, that the
breach was the proximate cause of the plaintiff’s injury, and that the damages
suffered were a direct result of the harm. Toogood, 573 Pa. at 254-55. In
addition, “[w]ith all but the most self-evident medical malpractice actions there
is also the added requirement that the plaintiff must provide a medical expert
who will testify as to the elements of duty, breach, and causation.” Quinby v.
Plumsteadville Family Practice, Inc., 589 Pa. 183, 199 (2006); see also Brady
v. Urbas, 111 A.3d 1155, 1162 (Pa. 2015) (“Except in the most obvious cases
of negligence (such as where a gauze pad is left inside a patient's body),
expert testimony is necessary to establish the standard of care.”); Rodriguez
v. United States, 2009 WL 4480761 (M.D.Pa. Aug. 23, 2016), appeal pending,
(This court held that in order for plaintiff inmate to establish a prima facie case
of medical malpractice on behalf of the prison’s medical personnel as well as
on behalf of the Bureau of Prisons itself, the plaintiff inmate had to provide
expert testimony to demonstrate both the standard of care owed to him,
deviation from that standard, and causation.).
As defendants state in their reply brief, (Doc. 17, p. 7), “[b]ecause the

19

COM against the Camp fails to comply with Pa.R.C.P. 1042.3(a)(1), plaintiffs
must be precluded from presenting expert testimony as to direct medical
negligence against the Camp. If plaintiffs are precluded from presenting
expert testimony against the Camp, they cannot establish a medical
negligence claim against the Camp.” See Rodriguez, supra; Vochinsky, supra.
Indeed, the Bureau of Prisons in the Rodriguez case and the GEO Group in
the Vochinsky case, like the Camp, are not licensed professional medical care
providers but they all have medical facilities and medical staff under their
supervision to treat the medical needs of the inmates and the campers.
Since the court has found that a COM is required with respect to
plaintiffs’ direct corporate medical negligence claims against the Camp, the
court must decide if the failure of plaintiffs to file the requisite COM within the
deadline, should result in the dismissal with prejudice of these claims. “In
limited circumstances, a plaintiff’s failure to file a timely certificate of merit
may be excused.” Bassill, 2016 WL 6247549, *3 (citing Womer v. Hilliker, 908
A.2d 269, 278–80 (Pa. 2006) (“holding that a failure to file a COM in
compliance with the rules may be excused where there is substantial
compliance, lack of prejudice and a reasonable explanation or legitimate
excuse”)). As in Bassill, the court finds no equitable exceptions apply in this
case. The Rule’s 60-day deadline has passed. See Pa.R.Civ.Proc. 1042.3(a)
(plaintiff shall file the COM with the complaint or within sixty days after the
filing of the complaint). Defendants made plaintiffs aware of the instant issue

20

challenging the original COM against the Camp in their first motion to dismiss
and plaintiffs then filed their amended complaint, alleging that counsel erred
in checking the wrong box on the original COM for the Camp and that an
expert gave an opinion regarding the negligence of the Camp. (Doc. 10,
¶17.1). Plaintiffs also filed their amended COM against the Camp. Thus,
insofar as Count III of plaintiffs’ amended complaint raises direct corporate
medical negligence claims against the Camp, such claims will be dismissed
with prejudice since the deadline has passed and no equitable exceptions
apply.
Defendants also seek to dismiss the claim of GPG’s parents for loss of
their child’s consortium contained in Count V of the amended complaint.
There is no dispute that under Pennsylvania law, a parent has no right to
recover damages for the loss of a child’s consortium. Recently, in Beam v.
Western Wayne Sch. Dist., 165 F.Supp.3d 200, 217 (M.D.Pa. 2016), the court
stated that “Pennsylvania, similar to federal law, does not recognize a cause
of action for the loss of consortium of a child.” (citing Quinn v. City of
Pittsburgh, 243 Pa. 521, 524–25, 90 A. 353 (1914) (holding that a parent may
not recover for the loss of a child’s consortium because such a cause of
action is confined to where a [spouse] sues for injuries to his[/her spouse]);
Robinson v. Hartzell Propeller, Inc., 276 F.Supp.2d 412, 415 (E.D.Pa. 2003)
(“dismissing claim for parental loss of consortium on grounds that the
Pennsylvania Supreme Court most likely would not allow that cause of

21

action”). Accordingly, the parent plaintiffs’ claim for loss of GPG’s consortium
contained in Count V of the amended complaint will be dismissed with
prejudice.
Further, defendants argue that plaintiffs’ allegations of negligence
against the Camp staff, including Lehman and Chou, (Doc. 10, ¶ 35), should
be stricken as vague and unsupported. The court finds that these allegations
are sufficient for present purposes and state plausibly professional medical
negligence claims against Lehman and Chou. Thus, defendants’ motion to
dismiss plaintiffs’ allegations of negligence against all defendants will be
denied.
Finally, defendants argue that all of the allegations for recklessness
should be stricken from the amended complaint. The amended complaint
contains various allegations of recklessness against all defendants which
implies that plaintiffs will be seeking punitive damages. (See, eg., Doc. 10, ¶’s
35-36). However, defendants point out that the amended complaint does not
contain a separate claim for punitive damages and plaintiffs’ prayer for relief
does not request punitive damages. Defendants also state that even if
plaintiffs are seeking punitive damages, they fail to meet their burden of
pleading sufficient facts to support a claim for punitive damages.
Plaintiffs state that their allegations of recklessness are sufficient at this
stage of the case, including their allegations that the Camp allowed GPG, who
was a minor, “to wallow in pain and suffering for four days is sufficient to

22

support a claim for punitive damages.” (Doc. 16, p. 20). Plaintiffs state that the
statute of limitations for GPG to raise a claim of punitive damages will not
expire for five years and that such damages “are not a separate claim but
rather an element of damages which can be claimed at any stage.” (Id.).
Plaintiffs concede that they did not request punitive damages in their
amended complaint but they suggest that they will seek leave of court to file
a second amended complaint to assert a claim for punitive damages after
discovery.
The remaining claims in this case include plaintiffs’ claims for
professional medical negligence against Lehman and Chou as well as their
claim of vicarious liability against the Camp pertaining to the alleged
negligence of Lehman and Chou, Counts I-III. “Reckless conduct is the factual
characterization of the events that took place giving rise to the negligence
action; it is not a claim in itself that the court can dismiss.” Austin v. Nugent,
2016 WL 7048994, *7 (M.D.Pa. Dec. 5, 2016).
Defendants seek to dismiss all of plaintiffs’ allegations of recklessness
to avoid the imposition of punitive damages. “Punitive damages are merely an
element of damages in a negligence action.” Id. (citing Kirkbride v. Lisbon
Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989) (“[N]o independent action
exists for a claim of punitive damages since punitive damages is only an
element of damages”) (emphasis in original)). “It follows that punitive
damages are ‘predicated upon the finding of liability.’” Id. (citing Kirkbride, 555

23

A.2d at 802).
As indicated, plaintiffs’ amended complaint does not specifically seek
punitive damages. As this court stated in the Austin case, 2016 WL 7048994,
*7, since defendants seek dismissal of an element of a claim that is not even
demanded, there is nothing to dismiss at this stage.
Assuming arguendo that plaintiffs had demanded punitive damages, or
as they imply, that they will later seek punitive damages, as this court pointed
out in Austin, defendants misconstrue the standard under Rule 12(b)(6). Id.
“The pleading standard set forth in Twombly solely requires that the plaintiff’s
claims be ‘plausible,’ not that they be proven in the complaint by sufficient
facts as the defendant’s motion would suggest. Id. (citing Twombly, 550 U.S.
at 547). “In Pennsylvania, punitive damages are available as a remedy for
negligence actions.” Id. (citing Hutchinson ex rel. Hutchinson v. Luddy, 870
A.2d 766, 772–73 (Pa. 2005)). “This remedy is only available ‘in cases where
the defendant’s actions are so outrageous as to demonstrate willful, wanton
or reckless conduct.’” Id. (citing Hutchinson ex rel. Hutchinson, 870 A.2d at
770).
The court finds that the plaintiffs’ allegations of reckless in their
amended complaint would be enough to state a “plausible” claim for punitive
damages under Pennsylvania law. Austin, 2016 WL 7048994, *8 (citing
Twombly, 550 U.S. at 547); see also Tucker v. Horn, Case No. 4:16-cv-0071,
2016 WL 4679018, at *3–4 (M.D. Pa. Sept. 9, 2016). As this court instructed

24

in Austin, “Plaintiff[s] would certainly bear a high evidentiary burden if [they]
decided to seek punitive damages, but this is the very purpose of discovery.”
Id. Further, “[d]iscovery would be necessary to determine whether the
defendant’s actions rose to the level of outrageous conduct warranting
punitive damages.” However, like in Austin, the issue of whether plaintiffs will
be able to make the requisite evidentiary showing is not an issue that this
court need address now. “Thus, even if the plaintiff[s] had sought punitive
damages in [their] [amended] complaint, the allegations would be sufficient
to survive a motion to dismiss as dismissal at this early stage would be
premature.” Id.
Moreover, in the November 30, 2016 revised scheduling order, the court
set June 2, 2017 as the deadline for fact discovery and the final date for the
amendment of pleadings is June 15, 2017. (Doc. 21). Since these dates have
not yet passed, the court will allow the plaintiffs’ allegations of recklessness
in their amended complaint to proceed. Accordingly, defendants’ motion to
dismiss all of plaintiffs’ allegations of recklessness will be denied.

25

IV.

CONCLUSION
For the reasons discussed above, the defendants’ motion to dismiss,

(Doc. 12), the plaintiffs’ amended complaint, (Doc. 10), will be GRANTED IN
PART AND DENIED IN PART. A separate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: May 4, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1521-01.wpd

26