I. Introduction and Background.
Defendants, Chia S. Shu, M.D. and Divine Providence Hospital, have filed motions to dismiss the claim of the plaintiff husband, William A. Gulick, II, for negligent infliction of emotional distress. The complaint in this diversity action arises from obstetrical treatment rendered to the plaintiff wife, Ruby D. Gulick, by defendant Shu during the birth of the plaintiffs' baby, Tricia Lee Gulick, at the defendant hospital. Tricia Lee Gulick died twelve days later, allegedly as a result of Shu's malpractice in failing to perform a timely caesarean section. Count V of the complaint sets forth a claim for negligent infliction of emotional distress on behalf of the parents "as a result of their child being born with severe birth asphyxia, respiratory distress syndrome, renal failure, seizure disorder, and brain death." (Complaint, para. 32). Citing Pennsylvania precedent, defendants assert that the husband's claim must fail as a matter of law.
As a federal district court, sitting in diversity, we must consider the decisions of a state's highest court to be the ultimate authority regarding state law. Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548 (3d Cir. 1985). Decisions of intermediate appellate courts of the state, while not conclusive, are indicia of how the state's highest court might decide the issue, McGowan v. University of Scranton, 759 F.2d 287 (3d Cir. 1985), and a federal court must attribute significant weight to lower state court decisions in the absence of any indication that the highest state court would rule otherwise. Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir. 1985).
All parties agree that Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), is the leading case in Pennsylvania on the right of a person to recover emotional distress caused by the tortious infliction of injury upon another. Although claiming at most the allegiance of only three of the members of the Pennsylvania Supreme Court, it has to some extent guided intermediate state appellate courts in subsequent cases, see Herman v. Welland Chemical, Ltd., 580 F. Supp. 823 (M.D. Pa. 1984); Brooks v. Decker, 343 Pa. Super. 497, 495 A.2d 575 (1985); Hoffner v. Hodge, 47 Pa. Commw. 277, 407 A.2d 940 (1979), appeal dismissed, 498 Pa. 135, 445 A.2d 104 (1982), as well as some federal district courts. See Amader v. Johns-Manville Corp., 514 F. Supp. 1031 (E.D. Pa. 1981); Bliss v. Allentown Public Library, 497 F. Supp. 487 (E.D. Pa. 1980).
The main opinion in Sinn, written by Justice Nix, adopted the following test from Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968), for determining when a person can recover for emotional distress caused by observing traumatic injury to another:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.