STEWART-WILSON v. CHRISTIAN H. BUHL LEGACY TRUST et al

Filing 11

ORDER granting 2 Motion to Substitute Party. UNITED STATES added. JOHN GALLAGHER, MD and JOHN GALLAGHER, MD terminated. Signed by Magistrate Judge Robert C. Mitchell on 3/1/2017. (spc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DELANI J. STEWART-WILSON, a minor, by her
natural mother and legal guardian, D’ERICKA
STEWART,
Plaintiff,
vs
CHRISTIAN H. BUHL LEGACY TRUST, f/k/a
SHARON REGIONAL HEALTH SYSTEM and
JOHN GALLAGHER, M.D.,
Defendants.

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Civil Action No. 17-113

ORDER
On January 9, 2017, Plaintiff Delani J. Stewart-Wilson, a minor, by her natural mother
and legal guardian, D’Erica Stewart, filed this action in the Court of Common Pleas of Mercer
County, Pennsylvania. The complaint alleges one count of negligence and one count of
respondeat superior liability, arising out of severe and permanent injuries suffered by Delani
during her birth at Sharon Regional Hospital on November 8, 2009. Named as defendants are the
Christian H. Buhl Legacy Trust, which owned the hospital, and John Gallagher, M.D., who was
responsible for the delivery. Plaintiff alleges that Gallagher failed to use reasonable care during
the delivery.
On January 24, 2017, Gallagher removed the action to this Court on the basis of the
federal officer removal statute, 28 U.S.C. § 1442(a). On January 25, 2017, the United States of
America moved to be substituted as the proper party in place of Gallagher. An order was
entered, giving Plaintiff until February 16, 2017 to respond to the motion. To date, Plaintiff has
filed no response.

The United States indicates that, at the time of the incident alleged in the Complaint,
Gallagher was an employee of the Primary Health Network, a deemed entity that was eligible for
Federal Tort Claims Act malpractice coverage and was acting within the course and scope of his
employment. 42 U.S.C. § 233(g)-(n). The Attorney General of the United States, by the Acting
United States Attorney for the Western District of Pennsylvania, has certified that Gallagher was
acting within the scope of his employment with the Primary Health Network at the time of the
incident giving rise to the within action. (ECF No. 2 Ex. A.) Accordingly, the United States
argues that Gallagher is entitled to individual immunity from suit under the Federal Tort Claims
Act. 28 U.S.C. § 2671, et seq. (“FTCA”).
The FTCA provides that all actions arising thereunder must be brought in the name of the
United States of America, not in the name of the federal employee or entity who is allegedly
negligent. 28 U.S.C. § 2679(b)(1). Where an action is brought against a federal employee, upon
certification by the Attorney General that the employee was acting within the scope of his or her
employment, the United States is substituted as the defendant. 28 U.S.C. § 2679(d)(1); Osborn
v. Haley, 549 U.S. 225, 229-30 (2007). Further, 28 C.F.R. §§ 5.13(a) and 15.4 authorize the
United States Attorney for the district where the civil action is brought to make the statutory
certification that the employee was acting within the scope of employment.
The United States Attorney for this district has made the appropriate certification in this
case. Therefore, the United States of America should be substituted for John Gallagher, M.D. as
a named Defendant in this action with respect to the claims asserted against him, and he should
be dismissed from this action with prejudice.
AND NOW, this 1st day of March, 2017,
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IT IS HEREBY ORDERED that the motion to substitute party (ECF No. 2) filed on
behalf of defendant John Gallagher, M.D. is granted. Defendant, John Gallagher, M.D. is
dismissed, with prejudice, from this action, and the United States of America is substituted as a
Defendant with respect to Plaintiff’s claims against him for all further proceedings in this case.

s/Robert C. Mitchell_________________
ROBERT C. MITCHELL
United States Magistrate Judge

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