PERONIS et al v. UNITED STATES OF AMERICA et al
Filing
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MEMORANDUM OPINION indicating that for the reasons more fully stated within, the motion for summary judgment 86 filed by Defendant Hilary Jones, M.D. motion is denied. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 10/2/18. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CARISSA PERONIS, individually and as
administratrix of the estate of Kendall
Peronis, and MATTHEW FRITZIUS,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
VALLEY MEDICAL FACILITIES, INC.,
t/d/b/a HERITAGE VALLEY
PEDIATRICS, VALLEY MEDICAL
FACILITIES, INC., t/d/b/a HERITAGE
VALLEY BEAVER, and HILARY JONES,
M.D.,
Defendants.
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2:16-cv-01389
Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
INTRODUCTION
This malpractice claim arises after the tragic loss of a child who passed away just six
hours after birth. Pending before the court is a motion for summary judgment (Doc. No. 86)
filed by Defendant Hilary Jones, M.D. (“Dr. Jones”). Dr. Jones asserts that she is entitled to
summary judgment because plaintiffs—the parents of the child and the administrators of the
child’s estate—have failed to offer any evidence suggesting that Dr. Jones acted negligently.
Plaintiffs argue that summary judgment is not warranted because there does exist a genuine
dispute over material facts, primarily the timing of when Dr. Jones had been notified of the
child’s health issues and her alleged delay in providing necessary medical treatment. For the
reasons explained below, the court finds that factual disputes in the record make summary
judgment inappropriate. The motion (Doc. No. 86) will be denied.
II.
BACKGROUND
On October 12, 2014, plaintiff Carissa Peronis (“Ms. Peronis”) went to Heritage Valley
Beaver Hospital, in Beaver County, Pennsylvania, for the birth of her first child. Doc. No. 1 at 3,
6. She arrived at the hospital around 2:00 PM. Later in the evening, the fetal monitor showed
that the baby began to experience heart rate decelerations. The child was born at approximately
5:20 AM. At delivery, the child required resuscitation, to include suctioning of meconium and
administering oxygen. Id. at 8.
During the delivery, Dr. Kevin C. Dumpe had served as the attending physician. No
pediatrician was present at that time. According to plaintiffs, after the child was born, hospital
staff did not immediately notify a pediatrician about the child’s health conditions, and the child
was permitted to remain in the hospital room with her mother for the next two hours. Id. at 9.
At approximately 7:25 AM, a nurse documented abnormal respiratory symptoms, and soon
thereafter staff members contacted a medical resident on call at the hospital. Id. at 10. Shortly
after 8 AM, defendant Dr. Jones examined the child, noting meconium fluid at delivery and
mild respiratory distress. Id.
The child’s health deteriorated quickly. Dr. Jones arranged for the child to be
transported to another hospital. A transport team arrived sometime before 10:00 AM, but the
child developed a pulmonary hemorrhage and could not sustain her heart rate. Id. at 11. The
child died at 11:40 AM. Id. Dr. Jones signed the death certificate, noting the cause of death as
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“cardiac arrest due to pulmonary hemorrhage due to pulmonary hypertension due to
meconium aspiration.” Id. at 11. A subsequent autopsy report noted the cause of death as
“neonatal sepsis from E. coli and acute bronchopneumonia associated with massive aspiration
of meconium.” Id. at 11.
Plaintiffs now allege that a delay in delivery, the lack of proper treatment at delivery,
and a prolonged delay in treating the child postdelivery ultimately led to the child’s death. As
it relates to this motion, and to Dr. Jones in particular, plaintiffs allege that Dr. Jones was called
to examine the child at approximately 7:20 AM, but that Dr. Jones did not arrive to examine the
child until sometime after 8 AM. Doc. No. 96 at 2. Plaintiffs allege that this delay, among other
things, constitutes medical malpractice.
Plaintiffs filed their claim on September 8, 2016. Defendants included Kevin Dumpe, the
attending physician who specializes in obstetrics; Hilary Jones, the treating pediatrician who
specializes in pediatrics; Valley Medical Facilities, Inc. t/d/b/a Heritage Valley Pediatrics; Valley
Medical Facilities, Inc. t/d/b/a Heritage Valley Beaver; Primary Health Network – Beaver Falls
Primary Care (“Primary Care”), a federally qualified healthcare center; and the United States.1
Plaintiffs bring professional liability claims against the individual physicians, along with
vicarious liability claims against the healthcare entities that employed these physicians. The
United States is a party based on its affiliation with Primary Care and Dr. Dumpe.
Dr. Kevin Dumpe and Primary Health Network-Beaver Falls Primary Care have since been
removed as defendants in this suit, in favor of the United States. Doc. No. 7.
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III.
LEGAL STANDARD
Summary judgment is appropriate when the moving party establishes “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact is one that could affect the
outcome of litigation. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir.
2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464,
475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of
genuine, triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its
burden, the non-moving party must present sufficient evidence of a genuine issue in rebuttal.
Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587). When considering the parties’ arguments, the court is required to view all facts and draw
all inferences in the light most favorable to the non-moving party. Id. (citing United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the
non-moving party when in conflict with the moving party’s claims. Bialko v. Quaker Oats Co.,
434 F. App’x 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d
Cir. 1995)).
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Nonetheless, a well-supported motion for summary judgment will not be defeated
where the non-moving party merely reasserts factual allegations contained in the pleadings.
Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of
West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits,
deposition testimony, admissions, and/or interrogatories to demonstrate the existence of a
genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013)
(citing Celotex Corp., 477 U.S. at 324).
IV.
DISCUSSION
The issues involved in this motion have been litigated extensively. The court held oral
argument on July 20, 2018, and again on September 17, 2018. Dr. Jones submitted the motion at
issue (Doc. No. 86) on May 15, 2018, a brief in support of the motion (Doc. No. 87), along with
two supporting briefs (Doc. Nos. 102, 111). Plaintiffs filed a response (Doc. No. 96), along with
two subsequent responsive briefs (Doc. Nos. 105, 114).
Based on the motion and arguments of counsel, the issues to decide are as follows:
First, what is the relevant law given that this case is before the federal judiciary
under the Federal Tort Claims Act (FTCA)?
Second, should plaintiffs be permitted to supplement their expert reports, in view of
arguments raised by Dr. Jones?
And third, should the court grant Dr. Jones’s motion for summary judgment?
Each of these issues will be discussed in turn.
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A.
The Federal Tort Claims Act and governing state law
The FTCA permits suits against the United States for tort liability. Subject to certain
exceptions, the FTCA provides that the United States is liable for the tortious actions of its
employees, more specifically,
for money damages, . . . for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the
government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission
occurred.
28 U.S.C. 1346(b)(1) (West 2013). To that end, “A plaintiff may recover against the United States
only to the extent that recovery would be permitted under the substantive tort law of the state
where the complained of conduct took place.” Weber v. United States, 991 F. Supp. 694, 696
(D.N.J. 1998) (citing Ciccarone v. United States, 486 F.2d 253, 257 (3d Cir. 1973)); see also Santos ex
rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009). Based on its text and interpretive case
law, the FTCA does not itself create a substantive cause of action against the United States.
Instead, the act simply provides a procedural remedy “by which substantive state law could be
applied against the federal government.” Weber, 991 F. Supp. at 696.
Jurisdiction in this case is thus proper against the federal government and its agents
under the FTCA. Jurisdiction is likewise proper against the remaining defendants based on
supplemental jurisdiction. See 28 U.S.C. § 1367. Either way, this court must apply Pennsylvania
substantive law, and plaintiffs must satisfy such state law requirements to potentially recover
damages. See, e.g., Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 263 (3d Cir. 2011) (holding
that a certificate of merit pursuant to Pa. R. Civ. P. 1042.3 is substantive law that must be
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applied in malpractice cases when a federal court exercises diversity or supplemental
jurisdiction); Baumgardner v. Ebbert, 535 F. App’x 72, 77 (3d Cir. 2013) (“The FTCA requires a
court to apply the tort laws of the state in which the alleged tort arose.”).
1.
Pennsylvania medical malpractice claims
Pennsylvania law broadly defines medical malpractice 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. Rogal, 824 A.2d 1140, 1145 (Pa. 2003). The elements necessary to establish a prima facie
case closely mirror those necessary to establish other negligence claims: “(1) the physician owed
a duty to the patient; (2) the physician breached the duty; (3) the breach was the proximate
cause of the harm suffered; and (4) the damages suffered were a direct result of the harm.”
Brown v. Hahnemann Univ. Hosp., 20 F. Supp. 3d 538, 542 (E.D. Pa. 2014) (citing Hightower–Warren
v. Silk, 698 A.2d 52, 54 (Pa. 1997)); see also Toogood, 824 A.2d at 1145.
Almost all medical malpractice cases require expert testimony. “Because the negligence
of a physician encompasses matters not within the ordinary knowledge and experience of
laypersons a medical malpractice plaintiff must present expert testimony to establish the
applicable standard of care, the deviation from that standard, causation and the extent of the
injury.” Toogood , 824 A.2d 1140, 1145 (2003); see generally 3 Summ. Pa. Jur. 2d Torts § 37:65 (2d
ed.). Assuming a prima facie case is shown, “the standard of care and the defendant’s
satisfaction of that standard are questions of fact to be submitted to a jury.” K.H. ex rel. H.S. v.
Kumar, 122 A.3d 1080, 1094 (Pa. Super. Ct. 2015).
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2.
Expert testimony standards under Pennsylvania law
Expert testimony must be stated to a “reasonable degree of medical certainty.” Mitzelfelt
v. Kamrin, 584 A.2d 888, 892 (Pa. 1990). In certain cases, establishing proximate cause may be
difficult, such as in cases where physicians fail to timely diagnose a disease. In those instances,
physicians may still be liable when it can be shown by a preponderance of evidence that the acts
or omissions of the physician were a “substantial factor in bringing about the harm.” Id.; see also
Maresca v. Mancall, No. CIV.A. 01-5355, 2004 WL 1058148, at *3 (E.D. Pa. May 11, 2004), aff'd, 135
F. App'x 529 (3d Cir. 2005); Billman v. Saylor, 761 A.2 d 1208, 1211–12 (Pa. Super. Ct. 2000); Eaddy
v. Hamaty, 694 A.2d 639, 642 (Pa. Super. Ct. 1997).
Finally, when considering the requisite degree of medical certainty, expert testimony
should be viewed in its entirety. See, e.g., Eaddy, 694 A.2d at 642 (“[A]n expert need not testify
with absolute certainty or rule out all possible causes of a condition…[n]or do we require an
expert to testify in precisely the language used to enunciate the legal standard.”) (collecting
cases); see also McCann v. Amy Joy Donut Shops, A Div. of Am. Snacks, Inc., 472 A.2d 1149, 1151 (Pa.
Super. Ct. 1984). The same is true when a court reviews an expert’s report in the context of
summary judgment. See Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. Ct. 2001). In other
words, an expert report need not contain “magic words.” Welsh v. Bulger, 698 A.2d 581, 585-86
(Pa. 1997). Rather, Pennsylvania courts look at the substance of the evidence presented to
determine if there is an adequate expert opinion to make out a prima facie case of medical
malpractice against the defendant. Rauch, 783 A.2d at 826 (finding that, when reviewing an
expert report, there is no need to rely on “formulaic incantation of identification and fault
attribution,” if the “clear import of the report implicates the named physician defendants.”).
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B.
Sufficiency of the expert reports
With this legal background in mind, the court turns to Dr. Jones’s arguments. Dr. Jones
argues that summary judgment is warranted because none of plaintiffs’ experts opine in their
reports that Dr. Jones’s conduct fell below the standard of care. Doc. No. 87 (“[N]one of the
experts that plaintiffs identified have provided a report which is in any way critical of Dr.
Hilary Jones, or the care she rendered to [the child].”). Dr. Jones further argues that plaintiffs
should not be permitted to supplement or amend their expert reports because:
(1) the court has already set deadlines for disclosure of expert reports;
(2) plaintiffs’ experts are not privy to new information that was not previously available
at the time they drafted their initial reports;
(3) any proposed modifications to those reports would constitute additional expert
opinions, as opposed to mere clarification of existing opinions; and
(4) Dr. Jones would incur prejudice after having to litigate a summary judgment motion
based on deficient expert reports. Doc. No. 111 at 17.
1.
Contents of plaintiffs’ expert reports
Plaintiffs intend to call three medical experts at trial: Dr. Edward H. Karotkin
(neonatology), Dr. Leonard Zamore (obstretics/gynecology), and Dr. Steven Lewis Shore
(pediatrics/pediatric infectious diseases). Doc. No. 77 at 9, 10. Each expert produced a report.
Those reports are attached to plaintiffs’ pretrial statement. Id.
Beginning with Dr. Karotkin, his report does not name any physician by name. Doc. No.
77-1. Nonetheless, Dr. Karotkin provides a detailed summary of events and ultimately opines
the following:
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[I]f this child had been delivered earlier she would have had an opportunity to
avoid the massive inhalation of infected amniotic fluid and meconium. Even
without an earlier delivery, a pediatrician should have been called if the child’s
respiratory difficulties had been assessed at or shortly after delivery. An earlier
assessment by a pediatrician would have prompted earlier antibiotic treatment
and quicker transfer. Earlier treatment and transfer [to another hospital] would
have provided this infant with a chance of survival. The delay in delivery and in
assessing this child after delivery increased the likelihood of her death.
Doc. No. 77-1 at 2.
Dr. Zamore’s report likewise provides a detailed account of events and discusses alleged
deviations in the standard of care. According to Dr. Zamore, delivery should have been
accomplished several hours earlier, and Dr. Dumpe should have had a pediatrician present at
delivery. Doc. No. 77-2 at 2. Dr. Zamore is further critical of the nurses and all other healthcare
providers in “failing to advocate” for a pediatrician to be present at delivery, and in failing to
provide a full assessment of the infant’s condition at or shortly after delivery. Id. Put simply,
Dr. Zamore believes that “the fact that a pediatrician was not present or called at this delivery
was contrary to good medical practice and hospital policy.” Id.
Finally, Dr. Shore claims in his report that “[t]here is confusion as to when the
pediatrician was called.” Doc. No. 77-3 at 1. According to Dr. Shore, the child was brought into
the nursery around 7:00 AM, but was not assessed until about 7:25 AM, when it was noted that
the child had respiratory distress and hypoxemia. Id. Dr. Shore goes on to reference medical
records suggesting that a pediatrician was called when the baby was found in respiratory
distress (around 7:20 AM). Id. Dr. Shore further states:
[T]he resident testified that the call [to Dr. Jones] came in after 0800. He [the
medical resident] then went to the nursery, did a cursory exam and told the nurse
to wait for the general pediatrician on call, Dr. Hilary Jones, to show for her
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rounds. Dr. Jones did not arrive to examine the baby until after 0815, about 3 hours
after birth.
Id. Dr. Shore opines that, although the child had been very sick at birth, the baby could have
recovered with prompt and appropriate medical care, particularly earlier care by a pediatrician.
Id. at 2. “The more timely administration of an effective antibiotic and intervention with NICUlevel care may well have saved this baby’s life.” Id. at 3.
What is clear from these reports is that plaintiffs’ medical experts believe, to a reasonable
degree of medical certainty, that quicker medical intervention—particularly earlier care by a
pediatrician— would have increased the child’s chance of survival. What is less clear is Dr.
Jones’s alleged violation of the standard of care because none of plaintiffs’ experts explicitly
implicate her by name.
2.
Plaintiffs’ position regarding the expert reports
In response to the motion for summary judgment, plaintiffs contend that Dr. Karotkin’s
and Dr. Shore’s expert reports establish a prima facie case of medical malpractice against Dr.
Jones. To support this argument, plaintiffs reference the hospital records wherein a nurse
documents the child’s respiratory distress. In those records, a nurse writes that Dr. Jones was
notified at 7:20 AM. Doc. No. 96-2 at 1. Plaintiffs then reference Dr. Shore’s report that
discusses the confusion as to when the pediatrician was called and that Dr. Jones did not
ultimately examine the baby until 8:15 AM. Doc. No. 77-3 at 1. Plaintiffs claim that, if Dr. Jones
was called at 7:20 AM, but did not arrive until after 8:15 AM, such a delay would constitute a
deviation from the standard of care. Furthermore, plaintiffs claim that causation is established
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because Dr. Shore and Dr. Karotkin opined that earlier medical assessment and care by a
pediatrician would have provided the child with an increased chance of survival.
During oral argument on July 20, 2018, plaintiffs argued that their expert reports need
not contain magic words and that their reports are sufficient. Nonetheless, plaintiffs also
suggested supplementing or clarifying their expert reports if the court deemed it necessary. On
September 17, 2018, plaintiffs filed a supplement to Dr. Karotkin’s expert report. That
supplement now explicitly states that it would constitute a deviation from the accepted
standard of care if Dr. Jones was notified of the child’s respiratory distress at 7:20 AM, but did
not act or arrive at the nursery until about an hour later. Doc. No. 120-1 at 1.
3.
Law related to supplemental filing of expert reports
Before considering the sufficiency of the expert reports, the court must first determine
whether it will consider the supplemental filing. This decision implicates several rules of
procedure, to include Rules 26, 37, and 56. First, an expert witness is required to provide an
expert report. Fed. R. Civ. P. 26(a)(2)(B). That report must contain, among other things, a
complete statement of all opinions of the expert witness. Id. Expert reports are designed to
eliminate unfair surprise to the opposing party and to conserve resources. See, e.g., Reed v.
Binder, 165 F.R.D. 424, 429 (D.N.J. 1996) (citing Sylla–Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d
277, 284 (8th Cir. 1995), cert. denied, 516 U.S. 822 (1995)). “The test of a report is whether it was
sufficiently complete, detailed and in compliance with the Rules so that surprise is eliminated,
unnecessary depositions are avoided, and costs are reduced.” Reed, 165 F.R.D. at 429.
An expert witness also has a duty to supplement or correct his disclosure. Fed. R. Civ.
P. 26(e)(1), (2). Such changes must ordinarily be disclosed by the time the party’s pretrial
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disclosures are due. Id. Notably, Rule 26 “does not give parties the right to freely supplement,
especially after court-imposed deadlines.” McDaniel v. Kidde Residential & Commercial, No. 2:12CV-1439, 2015 WL 6736811, at *1 (W.D. Pa. Nov. 3, 2015) (citations omitted). “Courts
distinguish true supplementation (e.g., correcting inadvertent errors or omissions) from
gamesmanship, and have therefore repeatedly rejected attempts to avert summary judgment by
supplementing an expert report with a new and improved expert report.” Id. (citations and
quotation marks omitted); accord Kremsky v. Kremsky, 2017 WL 4467180, at *4 (E.D. Pa. Feb. 22,
2017).
Violations of Rule 26 requirements can result in sanctions under Rule 37. As this court
has addressed in the past, Rule 37 provides the court with discretion to impose a variety of
potential sanctions. See McDaniel v. Kidde Residential & Commercial, No. 2:12-CV-1439, 2015 WL
6736811, at *2 n.1 (W.D. Pa. Nov. 3, 2015). One such sanction is to disregard the supplemental
report and exclude those opinions contained therein from trial. See id.; see also Sowell v. Butcher
& Singer, Inc., 926 F.2d 289, 302 (3d Cir. 1991). Another potential sanction is to shift the costs of
expert depositions. See Reed v. Binder, 165 F.R.D. 424, 429 (D.N.J. 1996).
Prior to excluding evidence under Rule 37, the court should consider the following four
factors: “(1) the prejudice or surprise in fact of the party against whom the excluded witnesses
would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which
allowing the evidence in trial would disrupt the orderly and efficient trial of the case or of other
cases in the court; and (4) bad faith or willfulness in failing to comply with the district court’s
order.” McDaniel, 2015 WL 6736811, at *2 (citations omitted).
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Finally, this court must be mindful of Rule 56. The 1963 advisory committee notes to
Rule 56 explain that “[t]he very mission of the summary judgment procedure is to pierce the
pleadings and to assess the proof in order to see whether there is a genuine need for trial.” To
that end, if a party fails to properly support an assertion of fact or to properly address the
opposing party’s assertion of fact at the summary judgment stage, Rule 56 (e) gives the court
discretion to permit that party “an opportunity to properly support or address that fact.” Fed.
R. Civ. P. 56(e)(1). The 2010 advisory committee notes to Rule 56(e) further state that this
approach is usually “the court’s preferred first step.” See also Liebling v. Novartis Pharm. Corp.,
No. CV1110263MMMMRWX, 2014 WL 12584383, at *3 (C.D. Cal. Mar. 6, 2014) (“[G]enerally
courts should afford a party an opportunity to support her facts and address her opponent’s
facts under rule 56(e)(1).”).
As mentioned, invoking Rule 56(e)(1) is a matter of this court’s discretion. In reviewing
case law, it appears other courts have declined to afford this opportunity in cases of bad faith or
in protracted litigation where further opportunity to address summary judgment arguments
would lead to even further delay in the litigation process. See, e.g., Rahman v. Taylor, No. CIV.
10-0367, 2013 WL 1192352, at *4 (D.N.J. Mar. 21, 2013); Hayes v. Am. Int'l Grp., No. CIV.A. 092874, 2014 WL 3746813, at *34 (E.D. Pa. July 29, 2014).
4.
Analysis regarding the supplemental filing
After carefully considering the parties’ arguments, the court finds in its discretion that
permitting the supplemental filing is warranted. As discussed above, the purpose of summary
judgment is to truly assess whether there is a genuine need for trial. And, under Rule 56(e), it is
ordinarily the preferred first step to allow a party to properly support or address the fact at
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issue. In this case, the confusion over when Dr. Jones was called had already been outlined in
the expert reports. The issue thus boils down to whether any of plaintiffs’ experts would agree
that an alleged hour or so delay on the part of Dr. Jones in responding to the child’s respiratory
distress would constitute a breach of the standard of care. Plaintiffs answer that in the
affirmative with a one-sentence supplement to Dr. Karotkin’s expert report.
The court is mindful of Dr. Jones’s concerns about the initial deficiency in the reports.
The court has considered Rule 37 and Dr. Jones’s position that any supplemental filings or
clarifications to the expert reports should be stricken. In considering such a severe sanction, the
court has reviewed the four factors specified in McDaniel.
Each of those factors weighs in favor of permitting the supplemental filing. First, the
court finds little prejudice or surprise to Dr. Jones. While Dr. Jones asserts prejudice in having
to file a summary judgment motion, that was her tactical decision. By the same token, Dr. Jones
could have first conferred with plaintiffs about fault attribution, before filing any motion. After
all, Dr. Jones was on notice of the issue based on the complaint. Specifically, in Count III of the
complaint, plaintiffs explicitly allege that Dr. Jones was negligent “in failing to respond to
notifications and messages regarding [the child’s] condition in a timely and proper fashion.”
Doc. No. 1 ¶ 103. Similarly, Dr. Shore in his report noted the confusion about when the
pediatrician was called. Doc. No. 77-3 at 1. Furthermore, all three of plaintiffs’ experts opine
that faster medical intervention by a pediatrician could have saved the child’s life. Plaintiffs’
theory should come to no surprise to Dr. Jones.
In addition, the court finds little prejudice because Dr. Jones did not depose any of
plaintiffs’ experts. When asked about this decision at oral argument, Dr. Jones’s counsel
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explained that no depositions were taken because “the issue… is not even close… It’s clear from
the reports and it’s clear from plaintiffs’ narrative statement what the story is they’re telling us
here and the story doesn’t involve Dr. Jones’s negligence.” Doc. No. 109, Hr’g Tr. 12:5–13. The
court disagrees. Plaintiffs’ experts could have provided more clarity regarding fault attribution;
nevertheless, when read together, all three expert reports implicate Dr. Jones. See Rauch v. MikeMayer, 783 A.2d 815, 826 –27 (2001) (reviewing expert reports together in their entirety to
determine whether the substance presents a prima facie case of medical malpractice). To the
extent there was some ambiguity in the expert reports, Dr. Jones had other options aside from
immediately seeking summary judgment.
The court further finds little prejudice because Dr. Jones’s theory of the case will not be
changing in view of the one-sentence supplement to Dr. Karotkin’s report. At oral argument,
counsel for Dr. Jones stated: “It’s our position that none of that [i.e. a delay in medical care]
mattered.” Doc. No. 109, Hr’g Tr. 17:21 –24. Rather, according to Dr. Jones’s experts, the child
suffered from fetal sepsis, and “no intervention taken by any of the physicians was going to
change the outcome of this case.” Id. at 18:4 –10. Therefore, allowing plaintiffs to clarify fault
attribution and causation with a one-sentence supplement does little to change the defense
theory of this case.
Turning to the second factor to consider under Rule 37—the ability of the party to cure
the prejudice—the court finds that plaintiffs have already done so, to the extent there was any
prejudice in the first place. Plaintiffs clarified their position through written filings and at oral
argument. Plaintiffs, in no uncertain terms, have now set forth their position regarding Dr.
Jones’s alleged deviation in the standard of care.
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The third factor to consider is whether allowing the evidence at trial would disrupt the
orderly and efficient presentation of the case. Dr. Jones made no arguments on this point. The
court likewise sees no reason why the supplemental filing would have any impact on efficiency
in this case moving forward.
Finally, the court must consider bad faith. Here, the court does not find plaintiffs acted
in bad faith. At all times plaintiffs have complied with this court’s deadlines and rules. The
supplemental filing here is best viewed as a minor clarification to the previous reports. As
discussed above, courts distinguish true supplementation of expert reports—correcting minor
errors and omissions—from gamesmanship. In the past, this court has excluded evidence from
trial under Rule 37; in both cases bad faith was a significant factor for the sanction. See McDaniel
2015 WL 6736811, at *2 n. 1, and Wonderland NurseryGoods Co. v. Thorley Indus., LLC, No. CIV.A.
12-196, 2014 WL 199789, at *1 (W.D. Pa. Jan. 17, 2014). These cases are distinguishable. The
court based its decision in McDaniel on violations of the court’s scheduling orders, the potential
for significant delay in trial, and the supplemental filing constituting an “entirely new” theory
of the case on the eve of trial. 2015 WL 6736811, at *5. Similarly, in Wonderland, the court
excluded amended claims in a patent infringement case when plaintiffs attempted, without
leave of court, to file amended claims that constituted a “wholesale change in position” on the
eve of trial. 2014 WL 199789, at *6.
Here, plaintiffs’ supplemental filing is not a wholesale change in position. To the
contrary, plaintiffs have maintained their overall theory since the initial filing of the complaint.
It has remained plaintiffs’ position that the entire medical staff at the hospital breached the
standard of care by failing to timely intervene with appropriate medical care. The genesis of the
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claim—and the opinions of plaintiffs’ experts—is that earlier intervention by a pediatrician
could have saved this child’s life. The fact that plaintiffs’ expert reports could have been more
thorough with respect to fault attribution does not change plaintiffs’ theory of the case. Put
simply, Dr. Jones has been on notice of the claims since the beginning. There is no justification
to find bad faith.
C.
Summary judgment
The court now turns to the crux of the issue — whether summary judment is
appropriate. Because there is a genuine dispute as to material facts, this case must move
forward to trial. The court reaches this decision based on (1) the prima facie case established
against Dr. Jones and (2) the dispute as to the time Dr. Jones was notified of the child’s
condition.
As discussed above, Plaintiffs must satisfy Pennsylvania law in establishing a prima facie
case. That includes the elements of duty, breach, causation, and damages. See Brown v.
Hahnemann Univ. Hosp., 20 F. Supp. 3d 538, 542 (E.D. Pa. 2014) (citing Hightower–Warren v. Silk,
698 A.2d 52, 54 (Pa. 1997)). Expert testimony is required to establish each element. Toogood v.
Rogal, 824 A.2d 1140, 1145 (Pa. 2003). Here, at least one of plaintiffs’ experts, Dr. Karotkin,
opines that Dr. Jones departed from the accepted standard of care in failing to timely respond to
the child’s respiratory distress when she was notified at 7:20 AM. This expert further claims
that earlier care by a pediatrician would have increased the child’s chance of survival. Should
the factfinder agree, damages could be awarded.
Given that a prima facie case has been established, the court considers whether there is a
triable issue of fact. The court must look beyond the pleadings and consider whether plaintiffs,
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as the nonmoving party, have pointed to evidence in the record to demonstrate the existence of
a genuine issue. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir.
2013). Notably, the court is required to view all facts and draw all inferences in the light most
favorable to the nonmoving party. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (further
noting that “the judge’s function is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial”).
As discussed at length in this decision, the parties dispute whether nurses notified Dr.
Jones at 7:20 AM. Hospital records indicate Dr. Jones received notice at that time. Doc. No. 96-2
at 1. Dr. Jones, however, denies this in her deposition: “I was not called.” Doc. No. 96-3 at 2. At
oral argument, plaintiffs have further summarized the dispute as follows:
[T]here is a factual dispute between the nurse’s note where she says 7:20 Dr. Jones
was notified, her deposition testimony where she says it was a little after 7:20, with
the resident who says he wasn’t called by the nurse until around 8:00 when he was
coming out of his morning lecture, and Dr. Jones who says she never got a call and
didn’t show up until 8:15 or 8:20.
Doc. No. 109, Hr’g Tr. at 25:14 –20. Dr. Jones barely addresses this factual dispute in her motion
for summary judgment. Instead, she relies on deficiencies in the expert reports. In other words,
Dr. Jones completely ignores the factual dispute regarding the time and method in which she
was notified to administer care to the child.
The court is not in the position to weigh the evidence, assess witness credibility, or
determine the standard of care or whether that standard was violated. This case is appropriate
for determination before a jury, and summary judgment must be denied.
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An appropriate order follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: October 2, 2018
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