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December 3, 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,
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


A complaint in the above entitled diversity medical malpractice case was filed in the District Court for the Eastern District of Pennsylvania on October 10, 1980. On motion by some of the defendants, the case was transferred to this district. A jury trial began in this court on September 8, 1981. The jury returned a special verdict on October 6, 1981. On October 7, 1981, judgments were entered in favor of the plaintiffs and against the defendants, Maple Avenue Hospital, David Buffone, M.D. and William J. Siar, M.D. The other defendants were exonerated.

 On November 6, 1981, plaintiffs filed a Motion to Add "delay damages" pursuant to the Pennsylvania Rule of Civil Procedure 238 which was adopted by the Supreme Court of Pennsylvania on November 20, 1978, effective 120 days after December 6, 1978. The Rule provides, inter alia, that:


"(In) an action seeking monetary relief for bodily injury ... the court ... shall (1) add to the amount of compensatory damages ... in the verdict of the jury ... damages for delay at ten (10) percent per annum, not compounded, which shall become part of the ... verdict ...; (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the ... verdict ....


"(c) ... (Damages) for delay shall be added to the ... verdict ... against all defendants found liable, no matter when joined in the action."

 In Jarvis, et ux., v. Johnson, et al., 491 F. Supp. 389 (W.D.Pa.1980), the court held that Rule 238 was procedural and not substantive law and declined to give Rule 238 any effect. *fn1"

 In Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), the Supreme Court of Pennsylvania held that Rule 238 was procedural and constitutional.

 In the Eastern District of Pennsylvania, in the case of Renner v. Lichtenwalner, 513 F. Supp. 271 (E.D.Pa. 1981), the court added damages for delay to the verdict in favor of the plaintiff in a diversity action. *fn2"

 In the case of Bullins v. Philadelphia, 516 F. Supp. 728 (E.D.Pa.1981), "delay damages" were granted to plaintiff under Rule 238.

 The district courts relied on Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

 As stated in Renner, supra, at p. 272:


"Labeling Rule 238 as "procedural' or "substantive' fails to address Erie's policies and effect upon diversity litigation. (Citations omitted.) Clearly, Erie provides diversity litigants with an impartial forum, not a different set of legal rules governing the merits of the dispute. Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 164 (3d Cir. 1976). The twin aims of Erie, discouragement of forum shopping and minimizing the possibility of results varied by the mere fortuity of diversity, compels the conclusion that plaintiff may claim Rule 238 damages in a federal forum applying Pennsylvania law. (Citations omitted.) A contrary result would weaken Erie's first goal, discouragement of forum shopping, since state defendants, where diversity exists, could avoid the obligations and potential liabilities imposed by Pennsylvania law by removing the action to federal court. See 28 U.S.C. ยง 1441. Moreover, denying diversity plaintiffs damages for delay while their state counterparts may obtain them derogates from Erie's second goal, avoiding the harshness of disparate results between federal and state courts within the same state adjudicating similar claims.


"The accrual of pre-judgment interest is a matter of law which federal courts are bound to follow ...." (Citations omitted.) (Emphasis added.)

 In Huddell v. Levin, et al., 395 F. Supp. 64 (D.C.N.J.1975), it appears that the district court in a diversity action involving wrongful death upheld a similar rule of civil procedure promulgated by the Supreme Court of New Jersey, i.e., Rule of Court 4:42-11(b). Although the judgment in favor of the plaintiff was vacated, the Court of Appeals held that it was permissible for the district court to impose pre-judgment interest in accordance with Rule 4:42-11(b). Huddell v. Levin, 537 F.2d 726, 742-3 (3rd Cir. 1976). *fn3"

 In my opinion under the Erie doctrine, a federal court must apply "delay damages" to a jury verdict in a diversity case pursuant to Rule 238.

 It is apparent that the basic aim of Rule 238 is to lessen delay in the disposition of cases. There was no delay in this case against five doctors and two hospitals. If Rule 238 were discretionary, the delay damages would be denied.

 An appropriate order will be entered.

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