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February 20, 1968

Barbara PRINCE, Administratrix c.t.a. of the Estate of Robert J. Reilley, Deceased
The TRUSTEES OF the UNIVERSITY OF PENNSYLVANIA, a corporation and American Cyanamid Company and Tenneco Chemicals, Inc.

The opinion of the court was delivered by: BODY

 BODY, District Judge.

 Two separate motions involving different defendants are presently before the Court. First, the defendant Trustees of the University of Pennsylvania [hereinafter "University"] have moved to dismiss this wrongful death and survival action on the sole ground that plaintiff's claim for damages against them cannot, as a legal certainty, reach the jurisdictional amount required in all diversity actions. 28 U.S.C. Section 1332(a) *fn1" Second, the two defendant drug companies, American Cyanamid Company (hereinafter "Cyanamid") and Tenneco Chemicals, Inc. (hereinafter "Tenneco"), filed a motion for summary judgment predicated on the theory that the negligence and breach of warranty actions brought against them are barred by certain allegedly applicable statutes of limitation.

 The relevant facts alleged in plaintiff's complaint are as follows: On July 6, 1944 plaintiff's decedent, Robert J. Reilley, a New Jersey domiciliary, was admitted to the University of Pennsylvania Hospital on the advice of a Pennsylvania physician for a full week of observation and tests for a condition unrelated to the present litigation. Sometime during that week Mr. Reilley received an injection of a drug known as "Thorotrast" *fn2" into his neck. He was re-admitted to that hospital in February of 1949 for treatment of a lump which had developed on his neck in the area of the Thorotrast injection. Early in September 1963 the decedent again returned to the University of Pennsylvania Hospital, this time in serious condition.

 Mr. Reilley succumbed to a malignant disease on September 26, 1963 in the Salem County Memorial Hospital in Salem, New Jersey, allegedly as a result of the 1944 injection of Thorotrast. The decedent's administratrix contends that neither she nor the decedent had any knowledge of the dangerous effect of Thorotrast before decedent's final hospitalization in September of 1963.

 On June 8, 1965 the administratrix c.t.a. of decedent's estate, a Virginia resident, instituted this wrongful death and survival action claiming substantial damages for negligence and breach of warranty.

 The liability of the University depends upon the alleged negligence of persons purported to be its agents and employees in permitting the drug to be administered to Mr. Reilley; their negligent administration of the drug to him; and their failure to follow certain post-operative procedures. The complaint also attributes to the University a breach of warranty in allegedly failing to provide Mr. Reilley with care and treatment in accordance with accepted medical and surgical standards.

 The two defendant drug companies, Cyanamid and Tenneco, are charged with a breach of express and implied warranties that Thorotrast was a safe, fit and proper product for injection in the human anatomy as an aid to diagnostic studies. In addition, the complaint alleges the negligence of the drug companies primarily because they manufactured and sold the drug without warning of its presumably known dangerous properties.

 Jurisdiction of the Court is based exclusively on diversity of citizenship. No federal question is presented.



 The only question presented by the University's motion to dismiss, and one involving an important choice of law problem, is whether the "grouping of contacts" test adopted by the Supreme Court of Pennsylvania in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), demands application of the substantive law of Pennsylvania or of New Jersey law to the facts of this case.

 If New Jersey law applies, as the defendant University contends, plaintiff would be limited by statute *fn3" to a maximum recovery of $10,000 from the University, a charitable corporation. Thus plaintiff could not, as a legal certainty recover in excess of the federal jurisdictional amount. On the other hand, if Pennsylvania law applies, plaintiff is not bound by any damage ceiling *fn4" and the University's motion to dismiss would necessarily be denied.

 Since jurisdiction is based on diversity of citizenship this Court must apply the law of Pennsylvania, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), including its conflict of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Hartwell v. Piper Aircraft Corp., 186 F.2d 29 (3rd Cir. 1951). Both the plaintiff and the defendant University agree that the case of Griffith v. United Air Lines, supra, which rejected the old "lex loci delecti" rule in favor of the more enlightened "center of gravity" or "grouping of contacts" theory, is the law governing our disposition of the present motion to dismiss.

 Thus it is our duty to ascertain whether the courts of Pennsylvania, if faced with these identical facts, would apply the substantive law of Pennsylvania or that of New Jersey to the issue before us. Gerr v. Emrick, 283 F.2d 293 (3rd Cir. 1960).

 In Griffith, the decedent, a Pennsylvania domiciliary, purchased a ticket from United Air Lines, Inc. in Philadelphia for a round trip flight to and from Phoenix, Arizona. The plane crashed during a scheduled landing at Denver, Colorado, the crash causing the immediate death of decedent. Under Colorado law recovery of damages would have been minimal. In holding that decedent's executor could bring an assumpsit action in Pennsylvania, and that Pennsylvania law would apply, the court specifically overruled the line of cases which developed the lex loci delecti doctrine. However, after discussing various theories of liability based on "significant relationships" between local laws and the parties, the court analyzed the fact situation in Griffith and, as the basis for its decision, stated at 416 Pa. 1, 24, 203 A.2d 796, 807:

"Pennsylvania's interest in the amount of recovery, on the other hand, is great. The relationship between decedent and United was entered into in Pennsylvania. Our Commonwealth, the domicile of decedent and his family, is vitally concerned with the administration of decedent's estate and the well-being of the surviving dependents to the extent of granting full recovery, including expected earnings."

 As in Griffith, supra, the relationship between decedent and defendant hospital in the instant case was entered into in Pennsylvania. It is true that, unlike Griffith, the domicile of decedent and his family in this case is New Jersey. Therefore, one might argue that New Jersey enjoys the paramount interest here. New Jersey clearly maintains an important interest in the administration of the decedent's affairs. However, the interest of a full recovery, an interest which the court in Griffith carefully pointed out, would be best served by application of Pennsylvania law under which decedent's estate would not be limited in its recovery.

 The primary importance of the Griffith decision is the Court's insistence that in considering choice of law problems, it is necessary to analyze the policies and interests underlying the particular issue before the Court.

 Applying the "interest analysis" approach of Griffith, we have concluded that Pennsylvania, not New Jersey, has the most significant relationship with this litigation. The following Pennsylvania "contacts" are important:

(1) The relationship between plaintiff's decedent and the defendant Hospital was entered into and centered in Pennsylvania when Mr. Reilley entered the University of Pennsylvania Hospital for diagnostic study;
(2) The alleged negligent acts, as well as the alleged breach of warranty occurred in Pennsylvania where the drug Thorotrast was administered to plaintiff's decedent;
(3) Pennsylvania is the place of incorporation of the defendant University and the state in which the University conducts its principal corporate activities; therefore, the University certainly could have anticipated law suits brought under Pennsylvania law and could not justifiably have relied on defenses available under New Jersey law, including the $10,000 limitation on damages which defendant now relies upon.

 It is true that the symptoms of cancer which allegedly caused Mr. Reilley's death did not emerge, and were not identified until 1963 when he entered a New Jersey hospital. We conclude, however, that this fact, combined with the fact that the decedent resided in New Jersey, died there, and his estate was administered there, bears little relationship to the issues before the Court under any interest analysis approach.

 The Court in Griffith emphasized that a "contact counting" or a "quantitative" contacts approach to conflicts issues was to be avoided. In the present case we are fully convinced that, qualitatively speaking, Pennsylvania has the most significant contacts with this litigation.

 Even if we were to hold that New Jersey substantive law applies, we would not apply New Jersey limitation on damages. The Court in Griffith examined the policies and interests which Colorado had in the case before it and commented that an examination of the policies which apparently underlie the Colorado statute indicated that state's lack of interest in the amount of recovery in a Pennsylvania court. Inter alia, the court surmised that the limitation might have been intended to protect Colorado defendants from large verdicts against them. Griffith v. United Air Lines, 416 Pa. at 24, 203 A.2d at 796. In the instant case, it cannot seriously be argued that the New Jersey statute was meant to limit recovery to one of its own domiciliaries from an out of state hospital having no real connection with New Jersey.

 The New Jersey statute in question was obviously intended to protect New Jersey charities from verdicts in excess of $10,000. Although it is true that the statute speaks in terms of any charitable corporation, it is clear that New Jersey was only empowered to legislate with respect to New Jersey charities.

 In summary we find that the application of the Griffith method to the facts of the instant case makes it clear that the concern of Pennsylvania, as opposed to the interests of New Jersey, is unquestionably the greater. Thus, the defendant University's motion to dismiss must be denied since the plaintiff ...

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