The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN
Plaintiffs in this action seek damages for the wrongful birth/life of the minor plaintiff, Sara Mae Flickinger, who was born suffering from spinabifida. In addition, plaintiffs seek damages under 42 U.S.C.A. § 1983 for the deprivation of their right under Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), to make a timely and informed decision as to whether to terminate the pregnancy. We have jurisdiction pursuant to 28 U.S.C. § 1331. On May 14, 1993 we denied defendants SmithKline Beecham Clinical Laboratories, Inc. and SmithKline Beecham Corporation's Motion to Dismiss and/or for Summary Judgment as premature. There has been an opportunity for discovery and we now consider the motions for summary judgment filed by defendants Casimir J. Wanczyk, M.D., Joseph J. Korey, Jr., M.D. and Berks Ob-Gyn Associates, Ltd., and a separate motion for summary judgment filed by Smithkline Beecham Clinical Laboratories, Inc. and SmithKline Beecham Corporation.
Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the:
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
"The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Secur. Litigation, 881 F.2d 1236, 1243 (3d Cir. 1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Celotex Corp v. Catrett, 477 U.S. 317, 321 n.3, 106 S. Ct. 2548, 2552 n.3, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(e)); see also First Nat. Bank v. Lincoln Nat. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986).
For the purposes of this motion, the following facts appear to be undisputed. Sara Mae Flickinger was born on January 31, 1991, suffering from spinabifida, a condition caused by a spinal or neural tube defect. Early in her pregnancy with Sara Mae, Sara's mother, Deborah Flickinger, underwent a maternal serum alphafetoprotein test (hereinafter "AFP test") to determine whether Ms. Flickinger faced an increased risk of bearing a child with a neural tube defect, such as spinabifida. In August of 1990, a sample of Ms. Flickinger's blood was delivered to defendants SmithKline Beecham Clinical Laboratories, Inc. and SmithKline Beecham Corporation (hereinafter "SmithKline"). When a pregnant patient is found to be at said increased risk, then additional tests and procedures are performed to definitively determine if the unborn child has a neural tube defect.
In late August, 1990, SmithKline reported that the AFP test result was normal. Subsequently, defendant Casamir J. Wanczyk, M.D., who was providing Ms. Flickinger with prenatal care, advised Ms. Flickinger that the AFP test result was normal. At that time, Ms. Flickinger was approximately 16-18 weeks pregnant, and at that time, under the laws of Pennsylvania, could, should she have chosen to do so, have had an abortion.
On January 20, 1991, when Ms. Flickinger was approximately 37-38 weeks pregnant, a sonogram was performed which was subsequently reported as showing the baby had hydrocephalus. At that point, Ms. Flickinger's pregnancy had advanced to the point where under Pennsylvania law she could not obtain an abortion. On January 28, 1991, a follow-up sonogram was performed which revealed that the fetus had a spinal defect. In April of 1991, defendant Joseph J. Korey, M.D. provided additional demographic data (primarily the patient's weight) to the SmithKline defendants and asked them to re-perform the August 1990 AFP test in light of the additional demographic data. The result of the re-performed test was extremely elevated.
For the purposes of opposing both motions for summary judgment, plaintiffs do not challenge the applicability of Pennsylvania law. See Memorandum of Law in Support of Plaintiffs' Opposition to SmithKline Beecham Clinical Laboratories, Inc. and ...