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OSBORNE v. BAKER

June 15, 1981

Eric OSBORNE, a minor, by his parents and natural guardians, Linda Osborne and Thomas Osborne, and Linda Osborne and Thomas Osborne, in their own right, Plaintiffs,
v.
Norman BAKER, D.O., Joseph John Cutry, M.D., Charles Cole Memorial Hospital, Celso L. Backes, M.D., Maple Avenue Hospital, David Buffone, M.D., and William J Siar, M.D., Defendants



The opinion of the court was delivered by: MARSH

The above-entitled action was filed in the Eastern District of Pennsylvania on October 14, 1980. Upon motions to transfer venue, the action was transferred to the Western District of Pennsylvania pursuant to 28 U.S.C. ยง 1391(a).

In an amended complaint, plaintiffs allege that they are citizens of West Virginia and that the defendants, Norman D. Baker, D.O., is a citizen of Ohio; Joseph John Cutry, M.D., is a citizen of New York; Charles Cole Memorial Hospital is a Pennsylvania corporation with its principal place of business in Coudersport, Pennsylvania; also, Celso L. Backus, M.D., is a citizen of Pennsylvania; David Buffone, M.D., is a citizen of Pennsylvania; and Maple Avenue Hospital is a Pennsylvania corporation with its principal place of business in Dubois, Pennsylvania. *fn1"

 The defendants, Baker and Cutry, filed motions to dismiss alleging lack of diversity. The other defendants have joined in the motions to dismiss.

 On May 18, 1981 an evidentiary hearing was held at which the plaintiffs, Thomas and Linda Osborne, testified and presented exhibits on the issue of citizenship. After consideration of the evidence presented at the hearing, the court makes the following:

 FINDINGS OF FACT

 Eric Osborne was born on October 29, 1979, at the Maple Avenue Hospital in Dubois, Pennsylvania. As a result of the aforesaid negligence of the defendants, Eric was born prematurely with extensive brain injury consisting of cerebral palsy and mental retardation; allegedly negligent subsequent treatment caused blindness.

 The Osbornes were reared in the north central section of Pennsylvania in Warren and Potter Counties. After their respective educations and the completion of Thomas Osborne's service in the United States Army, they returned to Port Allegheny where they planned to earn a living and raise a family.

 At the time Eric was born, Thomas was an optician practicing in Port Allegheny being employed by his father-in-law and brother-in-law who were optometrists.

 As a result of the brain damage afflicting Eric, the Osbornes felt they had to move in order to be closer to a children's hospital and to earn more money to help pay for the highly extraordinary medical and incidental expenses of raising a multihandicapped child. Approximately $ 102,000 medical expenses had been incurred up to the date of the hearing.

 The Osbornes sold their home in Port Allegheny. They moved to Meadville where Thomas opened an optical center in partnership with his brother-in-law who was taking his apprenticeship under Thomas in order to be certified as an optician.

 By the end of September, 1980, it became apparent to the Osbornes that the attempt to increase their income by establishing a business in Meadville was not succeeding. The total income from the partnership for the partial year 1980 was only $ 1,124. (See deposition of Thomas Osborne, p. 37.) Consequently, they decided to open another optical store in another place. They chose Chester, West Virginia.

 The reasons the Osbornes selected Chester, West Virginia, as their new residence were:

 
a. It was within 38 miles of the Children's Hospital and the Pittsburgh School for the Blind in ...

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