angioplasty. See doc. 49, exhibit A, Deposition of Jose
Calle, Part I, pp. 39-40 ("J. Calle Dep. I"). At the time of his
inquiry, Mr. Calle was under the impression that Dr. Nicholson did not
perform an angioplasty on him because Mr. Calle was an inmate. See id. at
39-40, 49-50 and doc. 49, exhibit A, Deposition of Jose Calle, Part II,
pg. 25 ("J. Calle Dep. II").
In September 1999, while in prison in Kentucky, Mr. Calle began
treating with Dr. David C. Booth. J. Calle Dep. I at 43.44. Mr. Calle
recalls that Dr. Booth asked him in September 1999 why the doctors at
York Hospital did not "do something" for him. Id. Dr. Booth's September
24, 1999 consultation report, which Dr. Booth read into the record at his
deposition, states in pertinent part as follows: The patient did not
receive reperfusion treatment... should have received reperfusion
treatment on August 14, 1999. . ..*fn3 Doc. 49, Exhibit A, Deposition
of David C. Booth, M.D., pp. 16-17, 19 ("Booth Dep.").
In October 1999, Mr. Calle began treating with Dr. Booth's colleague,
Dr. Pedro Moreno. See doc. 36, exhibit K, Deposition of Pedro Moreno,
M.D., pp. 21-22, 37 ("Moreno Dep."). Mr. Calle's case was presented at an
October 1999 catheterization conference attended by Dr. Moreno where it
was decided that Mr. Calle should be scheduled for elective angioplasty
in January 2000. Id. at 22-42. Dr. Moreno, who speaks Spanish, developed
a relationship with Mr. Calle's family, Id. at 22. On January 28, 2000,
Dr. Moreno performed an unsuccessful angioplasty on Mr. Calle. Id. at
44, 50-51. Mr. Calle recalls Dr. Moreno explaining on January 28, 2000
that the angioplasty was unsuccessful because "it wasn't done sooner."
J. Calle Dep. I at 44.
Plaintiff was "awakened" to the possibility that his injury was caused
by York Hospital and his doctors on January 28, 2000. See doc. 48, p. 13
("Mr. Calle neither knew nor should have known of his injury prior to his
awakening with Dr. Moreno on January 28, 2000.").
II. Legal Standard
Summary judgment is proper when "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c). A fact that will affect the outcome
of the case under the governing law is "material." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). "In determining whether an issue
of material fact exists, the court must consider all evidence in the
light most favorable to the non-moving party." Reeder v. Sybron
Transition Corp., 142 F.R.D. 607, 609 (M.D.Pa. 1992) (citing White v.
Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988)).
At the summary judgment stage, a judge does not weigh the evidence for
the truth of the matter, but simply determines "whether there is a
genuine issue for trial." Schnall v. Amboy Nat. Bank, 279 F.3d 205, 209
(3d Cir. 2002) (citing Anderson, 477 U.S. at 249). An issue of material
fact is "genuine" if "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
"Once the moving party has shown that there is an absence of evidence
the claims of the non-moving party, the non-moving party may
not simply sit back and rest on the allegations in the complaint;
instead, it must "go beyond the pleadings and by [its] own affidavits, or
by the depositions, answers to interrogatories, and admissions on file,
and designate specific facts showing that there is a genuine issue for
trial."' Schiazza v. Zoning Hearing Bd., Fairview Tp., York County,
Pennsylvania, 168 F. Supp.2d 361, 365 (M.D.Pa. 2001) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Summary judgment should be
granted when a party "fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at
A. The Pennsylvania "Discovery Rule"
The court applies state substantive law when federal jurisdiction is
based on diversity of citizenship. Erie Railroad Co. v. Tompkins,
304 U.S. 64, 79-80 (1938); Burgh v. Borough Council of Borough of
Montrose, 251 F.3d 465, 474 (3d Cir. 2001). A state statute of
limitations is considered substantive law within the ambit of Erie
Railroad. Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 552 (3d
Cir. 1985) ("statutes of limitations are considered substantive").
Furthermore, "state tolling principles are generally to be used by a
federal court when it is applying a state limitations period." Bohus v.
Beloff, 950 F.2d 919, 924 (3d Cir. 1991) (quoting Vernau v. Vic's
Market, Inc., 896 F.2d 43, 45 (3d Cir. 1990)).
The parties agree that Pennsylvania law governs this dispute. In
Pennsylvania, the statute of limitations for a medical malpractice claim
is two years. 42 Pa.C.S.A. § 5524(2). The limitation period begins to
run when the cause of action accrues - i.e. generally, when the injury
occurs. Pocono Int'l Raceway Inc. v. Pocono Produce, Inc., 468 A.2d 468,
471 (Pa. 1983). Plaintiffs allege that defendants committed medical
malpractice on August 14, 1999. Thus, the statute of limitations on
plaintiffs' medical malpractice claims expired on August 14, 2001, unless
tolled by the "discovery rule." This tolling of the limitations period
occurs only when an injury is unknown and not reasonably discoverable.
Pocono Int'l Raceway, 468 A.2d at 471 ("The `discovery rule'. . . arises
from the inability of the injured, despite the exercise of due
diligence, to know of the injury or its cause.") (emphasis in original).
The party seeking to invoke the discovery rule bears the burden of
establishing the inability to know of the injury despite the exercise of
reasonable diligence. Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997).
"[Tihe very essence of the discovery rule in Pennsylvania is that it
applies only to those situations where the nature of the injury itself is
such that no amount of vigilance will enable the plaintiff to detect an
injury." Id. at 170.
The parties disagree as to the precise contours of the discovery rule
in Pennsylvania. The Nicholson defendants argue that the discovery rule
tolls the statute of limitations only when the injury is unknown and not
reasonably discoverable within the original statutory period after the
injury (here, within two years of the alleged malpractice, or on or
before August 14, 2001). Thus, defendants argue, the discovery rule is
inapplicable and the claims against the Nicholson defendants
are time barred because plaintiffs knew of the injury before August
Plaintiffs contend that the discovery rule has evolved into an
equitable rule which tolls the statute of limitations until the injured
party knows or reasonably should know about the injury, regardless of
whether the discovery is made within the initial limitations period or
beyond. Plaintiffs assert that they did not know of Mr. Calle's
injuries, and reasonably could not have known of them, until January 28,
2000. (Doc. 48, pp. 5, 13). Hence, plaintiffs assert that the statute of
limitations did not expire until January 28, 2002, and the amended
complaint was timely filed on November 28, 2001.
The Third Circuit has provided the following guidance in ascertaining
state substantive law:
[T]he decisions of the Pennsylvania Supreme Court
are, of course, the authoritative source. See, e.g,
Connecticut Mut. Life. Ins. Co. v. Wyman, 718 F.2d 63,
65 (3d Cir. 1983). If the Pennsylvania Supreme Court
has not yet passed on the issue before us, we must
consider the pronouncements of the lower state
courts, see id., as well as federal appeals and
district court cases interpreting state law, see,
e.g., Boyanowski v. Capital Area Intermediate Unit,
215 F.2d 396, 406 (3d Cir. 2000).
State Farm Mut. Automobile Ins. Co. v. Coviello, 233 F.3d 710, 713 (3d