McDougall v. Tyson et al

Filing 44

MEMORANDUM ORDER denying 41 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Keith A. Pesto on 3/26/2024. Copy mailed to non-ECF user. (bgs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARLON McDOUGALL,
Plaintiff
v.
LIEUTENANT TYSON, et al.,
Defendants

:
:
: Case No. 3:23-cv-91-KAP
:
:
Memorandum Order

The remaining defendant (GEO Group)’s motion to dismiss, ECF no. 41, is denied.
The GEO Group moves to dismiss the complaint because plaintiff has not filed a timely
certificate of merit. Pennsylvania’s substantive law, which applies in this diversity case,
requires that a certificate of merit be filed with or shortly after the filing of a complaint
alleging professional negligence. Liggon-Redding v. Estate of Sugarman, 659 F.3d 258,
264 (3d Cir. 2011)(Rule 1042.3's certificate of merit requirement is applicable to cases in
diversity jurisdiction), limited in Wilson v. United States, 79 F.4th 312, 318 (3d Cir.
2023)(Rule 1042.3's certificate of merit requirement is not applicable to FTCA claim even
where Pennsylvania law determines the manner and extent of liability.)
However, Rule 1042.3 does not apply here because plaintiff does not allege that “a
licensed professional deviated from an acceptable professional standard.” What plaintiff
alleges happened on April 3, 2023 to make GEO Group liable to him is stated in the
complaint, ECF no. 1, and in two declarations, one by plaintiff, one by an eyewitness, filed
at ECF no. 39. Plaintiff, who uses a wheelchair, was being transferred from Moshannon
Valley Processing Center to the Pike County Correctional Facility. The wheelchair that
plaintiff was using at the time belonged at MVPC; the wheelchair plaintiff had been using
upon arrival at MVPC was somewhere “in the facility.” The van, with other inmates inside,
was awaiting departure for an approximately three hours trip. Rather than delaying the
van to find plaintiff’s wheelchair or transporting plaintiff using a wheelchair-accessible
van, plaintiff alleges that Lieutenant Tyson stated “that he did not care where the
wheelchair was,” and with two other officers attempted a lift and transfer of plaintiff to a
seat in the waiting passenger van. In the process, plaintiff says, “they dropped me to the
ground and I cried out in pain.” Corrections personnel picked plaintiff up, took him back
into MVPC, and several hours later transported plaintiff in a wheelchair-accessible van.
Defendant characterizes plaintiff’s claim as one subject to Rule 1042.3 because
Pennsylvania “provide[s] an extremely low threshold for professional liability claims,”
Defendant’s Brief at 6, citing Ditch v. Waynesboro Hospital, 917 A.2d 317 (Pa. Super.
2007). In Ditch, a stroke patient being transferred from the emergency room to a hospital
room fell from the hospital bed because she was not strapped down. The Superior Court
1

explained that an expert was necessary to establish the standard of care during transport,
that is, during the furnishing of health care services by a healthcare provider. I understand
defendant’s argument: if plaintiff’s claim were that defendant is liable due to the decision
of a health professional (for example, Nurse Freeland) to transport him using a regular
van and not a wheelchair-accessible van, this case would be governed by Ditch. But that
is plainly not plaintiff’s claim.
In Ditch itself, the Superior Court distinguished professional negligence from other
forms of negligence in terms directly applicable to this case, giving as an example Estate
of Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa.Super.1997), in which
a patient injured in a slip and fall caused by water on the floor was held to present solely
a claim of premises liability, not a claim of “hospital malpractice.” Similarly, in Medley v.
Dynamic Therapy Servs., LLC, No. 2047 EDA 2017, 2018 WL 461511 (Pa.Super. January
17, 2018), the Superior Court held that a plaintiff, who alleged that he was a front-seat
passenger being transported to physical therapy in a paratransit vehicle without being
restrained or secured to his seat by the driver of the vehicle and who was injured when
the driver “slammed on” the brakes after speeding through a stop sign, stated a claim of
ordinary negligence, not medical malpractice. The Medley panel agreed that the conduct
alleged did not concern the rendering of medical care.
The best short distinction between professional and ordinary negligence I have
seen was given by the Michigan Supreme Court in Bryant v. Oakpointe Villa Nursing
Center, 684 N.W.2d 864, 871 (Mich. 2004), quoted with approval in Grossman v. Barke,
868 A.2d 561, 570 (Pa.Super.2005). To summarize Bryant, professional negligence claims
occur only within the course of a professional relationship and raise questions involving
professional judgment. If a court examining the claim determines that the relevant acts
or omissions occurred within the course of a professional relationship and raise questions
of professional judgment beyond the lay factfinder’s knowledge and experience, then the
requirements of professional negligence actions apply.
Lieutenant Tyson and the corrections officers who dropped plaintiff were not
allegedly providing him with health care and had no professional relationship with him.
Whether dropping a shackled person is negligence is within the common knowledge and
experience of a lay juror. It may be that plaintiff will need an expert to prove causation of
some of his injuries (he alleges “four bulging disk[s] in my back” and a reinjured ACL tear)
but when that expert must be identified and provide evidence is a matter governed by
federal pretrial management rules, not Rule 1042.3.

2

There is no need to modify the pretrial schedule. The plaintiff is reminded to keep
the Clerk informed of his address.
DATE: March 26, 2024

Keith A. Pesto,
United States Magistrate Judge

Notice by ECF to counsel and by U.S. Mail to:
Marlon McDougall, A# 036708257
508 Waterworks Road
P.O. Box Drawer N
Farmville, VA 23901

3