APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 92-04493).
Before: Mansmann, Greenberg and Lewis, Circuit Judges.
Appellant Earl Trent challenges a district court's decision to abstain from hearing his case until a similar state court case is resolved. We will affirm.
Trent receives dialysis treatment at defendant Community Dialysis Center ("CDC") in Lansdowne, Pennsylvania. Defendant Dial Medical of Florida, Inc. ("Dial Medical") sells acid concentrate to CDC for use in dialysis treatment. Between late 1988 and early 1992, several CDC patients, including Trent, were found to have high serum aluminum levels, which could result in aluminum poisoning.
In July, 1992, Trent filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania alleging negligence against CDC and Dial Medical.*fn1 Specifically, Trent alleged that the elevated aluminum levels in CDC patients resulted from CDC's use of aluminum pumps to pump acid concentrate through patients as part of their dialysis treatment. In September, 1992, he filed a "motion for class maintenance," seeking certification of the class described in his amended complaint -- fifty-three CDC patients who have tested positive for serum aluminum levels of greater that 100 micrograms per liter (mcg/l) since January, 1990.
Shortly thereafter, Edwin Snead, who had earlier filed a similar class action complaint against CDC and its two medical directors in state court, moved to intervene in Trent's lawsuit. Snead, whose wife had died of aluminum poisoning after receiving dialysis treatment at CDC, sought in his case to represent a class comprised of all CDC patients injured by CDC's allegedly defective dialysis equipment and methods. Snead's complaint alleged negligence and outrageous conduct and included counts for wrongful death and survival.
In November 1992, the district court granted Snead's motion to intervene, denied Trent's motion for class certification and sua sponte decided to abstain from hearing the Trent case in light of the pendency of the Snead case in state court. The following order issued:
The motion of Edwin Snead . . . to intervene as a party plaintiff is GRANTED.
The motion of plaintiff Earl Trent for class certification is DENIED without prejudice.
This suit is DISMISSED WITHOUT PREJUDICE. This case is to remain in status quo and the Statute of Limitations is tolled.
It is further understood that all discovery and settlement Discussions will continue in coordination with the action currently pending in the Delaware County Court of Common Pleas styled Snead v. Community Dialysis Center, Inc.. . . . If intervention by the court is needed or desired, the parties may ask for assistance by either filing the appropriate motions, writing to the court or setting a telephone conference.
The parties shall keep the court advised of the status of this case and the state court action. When they are ready for trial or wish a settlement conference all that is necessary is to write directly to the court or set a telephone conference.
Since this appeal was argued, a class has been certified in the Snead case as to duty and breach of duty. Although the time period for opting out of that class has expired, Trent has chosen not to opt out. Trent appeals the ...