REFOSCO v. THE UNITED STATES OF AMERICA

Filing 24

MEMORANDUM OPINION re: 13 MOTION to Dismiss 1 Complaint filed by THE UNITED STATES OF AMERICA. Signed by Judge William L. Standish on 5/12/2011. (md) Modified on 5/13/2011. (md)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

STACEY REFOSCO, individually and
in her capacity as
Administratrix of the estate of
David W. Refosco, deceased,
Plaintiff,
Civil Action No. 10-1112

v.
THE UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION
Pending before the Court is Defendant's motion to dismiss the
Complaint

in

its

entirety

pursuant

Procedure 12 (b) (1) and 12 (b) (6)
follow,

I.

to

Federal

(Doc. No. 13.)

Rules

of

Civil

For the reasons that

Defendant's motion is denied in part and granted in part.

INTRODUCTION
A.

Factual Histo
David W. Re

sco was a veteran of the armed services of

the United States who lost his leg when a
Vietnam.

land mine exploded in

In August 2007, Mr. Refosco was diagnosed at the Veterans

fairs hospital in Pittsburgh, Pennsylvania ("VA Hospital"), with
a

number

of

ser ious

cardiomyopathy,

medical

congestive

conditions

heart

including

failure,

and

non- ischemic

complete

rt

The facts in this section are taken from the Complaint and construed in
favor of Plaintiff.

blockage with pacemaker dependence.

A pacemaker/defibrillator was

at the VA Hospital on August 20, 2007.

surgically insert

Mr. Refosco was readmitted to the VA Hospital on October 18,
2007,

complaining that his pacemaker was malfunctioning.

ultimately

diagnosed

resistant

with

Staphylococcus

conventional

November

ion

on

infection

aureus,

antibiotic

in

an

which

treatment.
3,

Mr.

known
is

methicillin­

highly

Refosco

Plaintiff

2007.

as

He was

resistant
died

to

from

the

Stacey Refosco,

Mr.

Refosco's widow and administratrix, believes her husband contracted
the infection during the August 2007 pacemaker implantation and that
he died as the direct and proximate result of the negligence of t
VA Hospital staff.
B.

Procedural
Ms. Refosco suit in this Court on August 23,

Count I, brought pursuant to the Federal Tort CIa
§

2671 et seq.

("FTCA U

),

2010.

In

Act, 28 U.S.C.

Plaintiff seeks damages from the death of

her husband due to the negligence of the staff

the VA Hospital,

all of whom are employees or agents of Defendant acting in their
capacity as such at the time of
and October 2007.

r husband's treatment in August

Count II alleges that the premature death of her

husband was the direct and proximate result of Defendant's corporate
negligence.

Count

III

is brought pursuant

Wrongful Death Act, 42 Pa. C.S.

§

to the

Pennsylvania

8301, and Count IV is a survival

2

action brought under 42 Pa. C.S. § 8302.
Plaintiff alleges she timely submitted an administrative claim
to the Office of General Counsel with the Department of Veterans
Affairs; the claim was denied on March 1, 2010; 2 and she has therefore
complied with the requirement of the
administrat

FTCA that she exhaust her

remedies with the appropriate federal agency prior

to bringing su

in this Court.

Plaintiff further complied wi th the

FTCA requirement that if she chose not to seek reconsideration of
the decision by the Department of Veterans

fairs, s

suit within six months of the date on which t
mailed.
C.

See 28 U.S.C.

§§

must bring

final decision was

2675(a) and 2401.

Jurisdiction and Venue
aintiff avers that jurisdiction is conferred upon this

Court pursuant to 28 U.S.C. § 1346(b) in that the suit is brought
under the FTCA.

The Court has jurisdiction over the supplemental

state law claims pursuant to 28 U.S.C. § 1367.

Venue is appropriate

in this district under 28 U.S.C. § 1402(b).
II. STANDARD OF REVIEW

A.

Dismissal under Fed. R. Civ. P. 12 b
A motion to dismiss pursuant to Rule 12 (b) (1) contends that

In paragraph 4 of the Complaint, Plaintiff alleges that the claim was
denied on March I, 2009, however, Exhibit B attached to Defendant's brief
in support of the motion to dismiss, the denial letter from the Department
of Veterans Affairs, is dated March I, 2010.

3

the district court lacks subj ect-mat ter jurisdiction.
12(b) (1).

Fed.R.Civ.P.

Such a motion questions the court's "very power to hear

the case" and is considered either "facial," that is,
attacks the complaint on

s face, or "factual," one which attacks

subject matter jurisdiction as a matter of fact.
Sa:v~~Lo~n

First. Fed.

one which

Mortensen v.

AE3 s'n, 549 F.2d 884,891 (3d Cir. 1977); see

also Petruska v. Gannon Oniv., 462 F.3d 294, 302, n.3 (3d Cir. 2006),
cert. denied, 550 O. S. 903 (2007).
to Rule 12(b) (1)
to the comp

When a motion to dismiss pursuant

is filed prior to the defendant filing an answer

int, it is, by defin

ion, a facial attack.

v. Wolff, 622 F. Supp.2d 240,243 (E.D. Pa. 2008)

i

Zimmerman

see also Mortensen,

549 F.2d at 891, n.17 (a "factual jurisdictional proceeding cannot
occur

until

plaintiff's

allegations

Because Defendant has not fil
12 (b) (1) motion as a
"Fa

an answer, we will treat its Rule

I court must accept the complaint's allegations as true./I

Common Cause v.

Penns

ia,

558 F.3d 249,

~~~~~~__~~~__~_~~~~_B~d~.,

Cir. 2006).

T

257

(3d Cir.

2009),

458 F.3d 181, 188 (3d

court's review is limited to "the allegations on

face of the complaint.

complaint,

controverted.")

cial attack.

----------------~--~~.....~---~----.

t

been

al attacks . . . contest the sufficiency of the pleadings,

and the tr

quoting

have

.and any documents referenced in the

viewed in the light most favorable to the plaintiff./I

No.

Church of the Oniversal
4

07 4021, 2008 U.S. App. LEXIS 21961, *4-*5 (3d Cir. Oct. 20, 2008),

ci ting Mortensen,

549

F. 2d at

891,

and Tur icentro,

Airlines, Inc., 303 F.3d 293, 300 (3d Cir. 2002).

S. A.

v.

Am.

A complaint under

facial attack may be properly dismissed "only when the claim 'clearly
appears to be immaterial and made solely for the purpose of obtaining
jurisdiction or . . . is wholly insubstantial and frivolous.'"
s v. Fidelcor

Kehr

Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991),

quoting Bell v. Hood, 327 U.S. 678, 682 (1946); see also Iwanowa v.
FordMotorCo., 67 F. Supp.2d424, 438 (D. N.J. 1999) (such a complaint
should be dismissed "only if it appears to a certainty that the
plaintiff will not be able to assert a colorable claim of subject
matter jurisdiction.")

The United States Court of Appeals for the

Third Circuit has warned district courts against treating a motion
under Rule 12 (b) (1) identically to one brought under Rule 12 (b) (6)
and reaching the merits of the claim, noting that "the standard for
surviving a Rule 12 (b) (1) motion is lower than that
motion."

Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d

Cir. 2000).

The plaintiff has the burden of showing jurisdiction

is proper in this Court.
Supp.

a 12(b) (6)

2d 528,

533

(D. N.J.

Rudo

of N.J.

2001)

Inc.

153 F.

(the party invoking the court's

jurisdiction bears the burden of persuasion when the subject matter
jurisdiction of the court is challenged); Mortensen, id.

5

B.

Dismissal under Fed. R. Civ.

P. 12

In the aftermath of Bell Atl.
544

v. Twombl , 550 U.S.

u.s.

, 129 S. Ct. 1937, 173

(2007), Ashcroft v.

I

1,

L. Ed. 2d 868 (2009), and the interpretation of those two cases by
the Third Circuit Court of Appeals,

the pleading standards which

allow a complaint to withstand a motion to dismiss pursuant to Rule
12 (b) (6) have taken on slightly new parameters.
whether the comp

The standard is now

int includes "sufficient factual matter to show

that the claim is facially plausible."

Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009); see also Twombl

550 U.S. at 555,

holding that a complaint which offers only "labels and conclusions"
or "a formulaic recitation of the elements of a cause of action will
not do."

The Fowler court

rther directed that in considering a

motion to dismiss, the district court should undertake a two-part
analysis:
First, the
ctual and legal elements of a claim should
be separated.
The District Court must accept all of the
complaint's well-pleaded
cts as true, but may disregard
any legal conclusions. Second, a
strict Court must then
determine whether the facts alleged in the complaint are
suffi ent to show that the plaintiff has a plausible claim
for relief. In ot r words, a complaint must do more than
allege the plaintiff's entitlement to relief.
A
complaint has to show such an entitlement with its facts.
As the Supreme Court instructed in I
1
"[w]here the
well-pleaded facts do not permit the court to infer more
than the mere possibili ty of misconduct, the comp int
s
alleged - but it
s not shown - that the pleader is
entitled to relief."

6

Fowler, 578 F.3d at 210-211
"A claim has
factual

content

(quotations and citations omitted.)

cia I plausibility when the plaintiff pleads

that

allows

the

court

to

draw

the

reasonable

inference that the defendant is liable for the misconduct alleged.

H

Iqbal, 129 S. Ct. at 1949; see also Gelman v. State Farm Mut. Auto.
Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009), and Mayer v. Belichick,
605 F. 3d 223, 230 (3d Cir. 2010).

"Determining whether a compl

states a plausible claim for relief will . . . be a context-spe
task that requires t
experience

Liti.

and

common

reviewing court to draw on its
sense.

H

In

re

Ins.

nt
fic

j udici

Brokerage Anti trust

618 F.3d 300, 361 (3d Cir. 2010), quoting Iqbal, 129 S. Ct.

at 1950.

A complaint should not be dismissed even if it seems

unlikely the plaintiff can prove the facts alleged in the complaint
or will ultimately prevail on the merits.

The Twombl

pleading

standard "does not impose a probability requirement at the pleading
stage, but instead simply calls for enough facts to raise a reasonable
expectation that
element.

H

scovery will reveal

McTernanv. Cit

of York

dence of the necessary

564 F.3d636, 646 (3dCir. 2009)

(internal quotations omitted.)
III. ANALYSIS
Regardless of the federal rule invoked by Defendant, the gist
of its argument is the same:

the Complaint must be dismissed in its

entirety for failure to comply with a rule of Pennsylvania civil
7

procedure which requires a document known as a "Certificate of Merit"
("COM")

to accompany any suit alleging professional malpractice.

(United States of America's Brief in Support of Motion to Dismiss,
Doc. No. 14, at 5.)
does not disagree

Defendant asserts in its brief -- and

aintiff

-- that Pennsylvania law applies in this case,

inasmuch as federal courts apply the law of the state in which the
allegedly tortious conduct occurred when assessing claims brought
under the FTCA.

(Id. at 6,

ting, inter alia, Hodge v. United States

No. 09-3723, 2010 U.S. App. LEXIS 6400, * 6 (3d Cir. Mar. 25,
2010).)
On January 27, 2003,

Pennsylvania Supreme Court adopted a

rule of civil procedure, effective immediately, which requires that
either concurrently with filing

the complaint or no later than

60 days thereafter, the plaintiff or her attorney bringing a claim
of professional liability against certain designated professionals
- including a health care provider 3

-

with the court hearing the case.

Pa. R. Civ. P. 1042.3 and 1042.1.

must file a certificate of merit

"The rules of this chapter govern a civil action in which a professional
liability claim is asserted by on or behalf of a patient or client of [a]
licensed professional . . . . As used in thi s chapter, "licensed professional"
means (II any person who is licensed pursuant to an Act of Assembly as (i)
a health care provider as defined by Section 503 of the Medical Care
Availability and Reduction of Error (MCARE) Act."
Pa. R. Civ. P.
1042.1(a). MCARE, 40 P.S. § 1303.503, defines "health care provider" as:
"A primary health care center . . . 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 . . . hospital, . . . and an officer, employee or agent of any of
them acting in the course and scope of employment."
3

8

Alternat

ly, \\

r good cause shown," the pIa int iff may file wi thin
riod a motion to the extend the time in which

the initial 60-day

filed.

the COM is to

Rule 1042.3(d).

The policy objectives of the COM requirement are to prevent
base

ss pro

ssional liability claims and protect defendants from

frivolous lawsuits.

Keel-Johnson v.

, CA No. 07-200, 2009

U.S. Dist. LEXIS 19310, *23 (M. D. Pa. Mar. 10, 2009).
in the COM the plaintiff or

To these ends,

attorney attests to the fact that

(1) an appropriate licensed pro ssional has supplied a
writ ten statement that 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
11 outs
acceptable professional standards and that such
conduct was a cause in bringing about the harm, or
(2 ) the claim that the defendant deviated from an
acceptable professional standard is based solely on
licensed professionals
allegations that 0
r
whom this defendant is responsible deviated from an
acceptable pro ssional standard, or
(3) expert
testimony
of
an
appropriate
licensed
professional is unnecessary for prosecution of the
claim.
Pa. R. Civ. P. 1042.3(a).
If the plaintiff

Is to timely file the COM or to request an

extension of time in which to do so,

the defendant may move the

prothonotary to enter what is known under Pennsylvania law as a
judgment of non

s, providing it has given the plaintiff a 30-day

notice of its intent.

(See form of notice set out in Rule 1042.6.)
9

If the plaintiff files a proper COM within the 30-day period or files
ei ther

a

mot ion

see king

a

determination

of

the

court

that

no

certificate is necessary or a motion seeking an extension of time
in which to fi
1042.7.

, the judgment of non pros may not be entered.

Should t

plaintiff

Rule

il to take any of those actions and

the prothonotary enters the jUdgment of non pros, the plaintiff still
has at least one more chance to revive the claim by seeking relief
from the judgment and requesting that it either be struck or opened.
v.

Pa. R.

P.

3051.

In those circumstances,

the plaintiff must

petition the court alleging "facts showing that (1) the petition is
timely filed,
excuse

(2)

there is a reasonable explanation or legitimate

the inactivity or delay, and (3) there is a meritorious

cause of action."

Id.

In Booker v. United States, No. 09-2688, 2010 U.S. App. LEXIS
3155, *4 (3d Cir. Feb. 18, 2010)

I

t

Court of Appeals for the Third

Circuit confirmed that Rule 1042.3(a) (1) is "substantive state law
that must be applied by the federal district courts."
v.

See also Perez

ffin, No. 08-2979, 2008 U.S. App. LEXIS 26250, *4 (3d Cir. Dec.

23, 2008)

(same.)

We therefore turn to the ef

of applying Rule

1042.3 to the procedural history of this case.
Ms. Re

sco never actually concedes that she neither

certificate within 60 days

led the

filing the Complaint nor requested an

extension of time in which to do so.
10

(See PI

ntiff's Brief in

Oppos

ion to Motion to

referring to "PIa
Re

smiss, Doc. No. 16, "Plf.'s Brief,u at 4,

iff's alleged failure to file u a COM.)

sco did not "allegedlyH fail to file the COM,

failed to file it until
by Defendant's motion.
fil

Ms.

she absolutely

was brought to her attention

omiss
Regardless,

however,

of when

COM was

, it is inadequate to support all of Plaintiff's claims.
The COM signed by Plaintiff's counsel states in

s entirety:

The claim that this 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 pro ssional
standard and an appropriate licensed professional has
suppl
a wri tten statement to the undersigned that
is a basis to conclude that the care, skill or knowl
exercised or exhib ed by the other licensed professionals
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.
(Plf.'s Brief, Exh. A.)
This language tracks p

sely paragraph two of the model

of the Certificate of Merit set out in Rule 1042.9.
the Complaint,
Hospital

"were

Plaintiff alleges
carried

out

contractors and/or representat
Hospi tal] and through VA, t

In Count I of

that the operations of

by

servants,

s of VA

rm

employees,

VA
agents,

ttsburgh [i.e., the VA

Defendant USA, all of whom were acting

in the course and scope of their employment

U

and that" [a] s a result

of the negligent breach of the duty and standard of care by the
11

Defendant and its servants, employees, agents, contractors and/or
representatives, Plaintiffs sustained . . . damages."
~~

17-18.)

(Complaint,

This is the classic description of vicarious liability

under Pennsylvania law.
490, 493 (Pa. Super.

ct.

Costa v. Roxborough Mem'l Hosp., 708 A.2d
1998).

though the licensed professionals

need not be identified by name, \\ [w] here the COM sets out a vicarious
liability theory,

additional COMS must also be filed as to each

licensed professional

for

vicariously liable."

See Stroud v.

Supp.2d 238,248

whom that defendant

is alleged to be

on Mem.

Ho

.,

546 F.

49 (E.D. Pa. 2008), citing Rule 1042.3(a) (2) note.

We assume the only "licensed professional" for whom Defendant is
alleged to be

cariously liable is the VA Hospital itself since only

one COM was filed and the Complaint does not make allegations against

See Vochnis

any individual per se.

CA No.

09-3012, 2009 U.S. Dist. LEXIS 108792, *10 (E.D. Pa. Nov. 20, 2009)
(dismissing medical malpractice claim where the plaintiff

led to

file a COM for any professional for whom he alleged the defendant
was responsible.)

The language of the COM therefore satisfies the

requirements for stating a claim under the doctrine of vicarious
liability against Defendant.
However, in Count

I,

aintiff has alleged corporate liabil

y

against the VA Hospital, identifying in Paragraph 21 a number of ways
in which Defendant allegedly breached its duty of reasonable care
12

to Mr.

Refosco.

"Corporate

negligence

liability against the hospital,

is

a

direct

theory

of

which contemplates some form of

systemic negligence by the hospital and is not simply a vicarious
theory

liabili ty based on the negligence of its employees."

Stroud, 546 F. Supp.2d at 245, citing Edwards v. Brandywine Hosp.,
652 A.2d 1382, 1386-87 (Pa. Super. Ct. 1995).

But when proceeding

under a direct theory of liability, the COM must incorporate the
paragraph of the model form,

rst

that is, a statement that

an appropriate licensed professional has supplied a
written statement
that
there
sts a
reasonable
probability that the care, skill or knowledge exercised
or exhibited in the treatment, practice, or work that is
the subj ect of the complaint
1 outside acceptable
professional standards and that such conduct was a cause
in bringing about the harm.
Rule 1042.3 (a) (1) .
Plaintiff has not incorporated such language in her COM even
though the model form allows a plaintiff to indicate in a single
document her intent to proceed under both direct corporate liability
and vicarious liability.

Rule 1042.3{b) (2); see also Stroud, 546

F. Supp.2d at 249; Yee v. Roberts, 878 A.2d 906, 914 (Pa. Super. Ct.
2005)

(requiring a COM to be filed with respect to the alleged

professional negligence of the partnership in failing to properly
train and supervise its employees in addition to the COM for the
negligence of the individual dentist); Sparks v. Children's Hosp.,
2010 Phila. Ct. Com. Pl. LEXIS 35,
13

*12 *14

(Phila. Co.,

Jan. 26,

rmed without opinion at 2010 Pa. Super. LEXIS 6942 (Pa.

2010) ,

Super. Ct. Nov. 15,2010) (refusing to allow the corporate negligence
claim to proceed where the plaintiff did not file a certificate of
merit for that claim but only for

vica

ous liabil

y claim);

and Doble v. Moses Taylor Hosp., 78 Pa. D. & C. 4 th 449, 465 (Lackawanna
Co. 2006)

(same).

We there

re find that even if the Court accepts

Plaintiff's reasons for failing to file the COM in a timely fashion,
the document provided does not satisfy the requirements of Rule
1042.3(a) (2).
dismissed

The corporate liability claim in Count II is hereby
failure to comply with Rule 1042.3.

As noted above, after Defendant moved to dismiss the Complaint,
Plaintiff provided the COM attached as Exhibit A to her brief in
opposition to the motion to dismiss.

The United States then sought

and was given leave to file a reply brief (Doc. No. 20) in which it
argued that because Plaintiff had failed to offer any "reasonable
explanation or legitimate excuse for

failure H to file the COM

in a timely manner, the Complaint should still be dismissed.
With the Court's permission, Ms. Refosco filed a response to
Defendant's

ly brief, stating that prior to filing the lawsuit,

her counsel had obtained an expert's medical report to support the
COM.

However, shortly a

er filing suit, counsel was diagnosed with
arly difficult to treat; while

a form of cancer which is parti

undergoing extensive chemotherapy and radiation treatments, he was
14

unable

to

attend

to

his

practice,

even

on

a

part

time

basis.

(Surreply Brief in Opposition to Motion to Dismiss, Doc. No. 23, at
2-3. )

During his absence, there was a "breakdown of communication"

and as a result, he erroneously believed others in his law firm had
filed

the

COM based on

the medical

expert's

report,

while

co-counsel believed he had done so prior to his illness.

his

New lead

counsel from the firm has been named and the Court is assured that
"there are no further obstacles in the path of this case."

(Id. at

3-4. )
The Pennsylvania Supreme Court has held that Rule 1042.3 is
subject

to

two

"equitable

exceptions,"

substantial compliance with the Rule,
prejudice to another party's rights,

first,

the

plaintiff's

assuming there has been no
and second,

the plaintiff's

"reasonable explanation" or "leg i timate excuse" for failure to fully
comply.

Womer v. Hilliker, 908 A.2d 269,279 (Pa. 2006).

concludes
unexpected

that

in

the

serious

confusion

illness

and

and

stress

subsequent

associated with
lengthy

counsel's failure to file the COM is understandable.
Burket, 881 A.2d 861,

866 (Pa. Super. 2005)

The Court
an

treatment,
See Almes v.

(where counsel failed

to timely file a COM due to the death of his mother-in-law, the court
was "not prepared to assert that an attorney who forgets that the
certificate was due or who fails to take [action] when faced with
the family crisis like the one presented here is so derelict in his
15

obligations that the oversight should not be excused.")
the Pennsylvania Superior Court has accepted as a I

In fact,

itimate excuse

one quite similar to that offered by Plaintiff's counsel here.
Sabo v. Worrall, 959 A.2d 347, 349, 352 (Pa. Super. Ct. 2008)

See

(where

a COM was promptly prepared, placed in counsel's file, and counsel
erroneously believed his para
court,

gal had filed the document with the

the failure to file the COM was an inadvertent mistake or

oversight which justified vacating t
Czerniak v.
(counsel

who

entry of non pros.)

See also

shore, 83 Pa. D. & C. 4th 459, 462 (Bucks Co. 2007)
believed

the

certificate

had

complaint by another attorney according to

been

filed

with

the

the

firm's

ordinary

business practices had provided a reasonable excuse); Doble, 78 Pa.

o. &

C. 4 th 4 4 9 at 4 63

(where former counsel "inexplicably failed"

to file a timely COM despite having a favorable expert report to
support

it

and

litigation

was

in

its

infancy,

the

otherwise

meri torious case would not be dismissed simply due to attorney
neglect or mistake.)
In sum, Plaintiff has proffered a reasonable excuse for

iling

to file the necessary COM in a timely fashion and was evidently
prepared to do so on April 22, 2011, the date of the COM attached
to Plaintiff's brief in opposition to the motion to dismiss.
litigation is also in its infancy in that the parties have not

This
t

alternative dispute resolution

even identified or participated
16

or begun discovery.

However, the COM attached to Plaintiff's brief

does not support the claim brought in Count II of the Complaint, which
is therefore dismissed.
May

-LJ-,

An appropriate Order follows.

2011
William L. Standish
United States District Judge

17