United States District Court, M.D. Pennsylvania
March 25, 2004.
CHRISTINE THOMAS, Individually and as Co-Administratrix of the Estate of Erin Finley, and MARK THOMAS, as Co-Administrator of the Estate of Erin Finley, Plaintiff
THE LUZERNE COUNTY CORRECTIONAL FACILITY, CRAIG T. BARDELL, M.D., Individually and in his official Capacity, SUSAN DAY, P.A, Individually and in her official capacity, WEXFORD HEALTH SOURCES, Inc., KATHRYN McCARTY, R.N., CHCA, Individually, and SHEILA HAGEMEYER, Individually, Defendants
The opinion of the court was delivered by: MALACHY MANNION, Magistrate Judge
Pending before the court is "Defendants, Craig R. Bardell, M.D.,
Susan Day, P.A., and Wexford Health Sources, Inc., Motion for More
Definitive Statement and Motion to Strike." (Doc. No. 3).
On June 13, 2003, the plaintiffs, Christine Thomas, individually and as
co-administratrix of the estate of Erin Finley, and Mark Thomas, as
co-administrator of the estate of Erin Finley, filed this action against
the above-named defendants alleging violations of 42 U.S.C. § 1983.
In addition, the
plaintiffs set forth pendent state law claims for negligence, negligent
infliction of emotional distress, wrongful death and survival. (Doc. No.
The instant motion for more definitive statement and motion to strike
was filed on behalf of defendants Craig Bardell, M.D., Susan Day, P.A.,
and Wexford Health Sources, Inc., ("Wexford defendants"). (Doc. No. 3). A
supporting brief was timely filed. (Doc. No. 4). The plaintiffs have
filed a brief in opposition. (Doc. No. 11).
In their motion, the Wexford defendants initially seek a more
definitive statement arguing that the "inter alia" language in paragraphs
96 and 101 of the complaint, and the "but is not limited to" language in
paragraphs 105 and 107 of the complaint, is impermissibly vague. (Doc.
No. 4, pp. 3-4).
With respect to this argument, Fed.R.Civ.P.8(a) states in pertinent
A pleading which sets forth a claim for relief . . .
shall contain: . . .(2) a short and plain statement of
the claim showing that the pleader is entitled to
Moreover, Fed.R.Civ.P. 8(e)(1) directs that:
Each averment of a pleading shall be simple, concise,
and direct. No technical forms of pleadings or motions
Finally, Fed.R.Civ.P. 8(f) states:
All pleadings shall be so construed as to do
The Federal Rules of Civil Procedure do not require the plaintiffs to
set out in detail the facts upon which they base their claims. To the
the Rules require is "a short and plain statement of the claim" that will
give the defendants fair notice of what the plaintiffs' claims are and
the grounds upon which they rest. Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163
(1993) (citing Conley
v. Gibson, 355 U.S. 41
, 47 (1957)). In general, the pleading required
under Rule 8 is "Notice Pleading" as opposed to "Fact Pleading" which
incorporates more specifics of the claim and requires more in response by
the defense. 2 Moore's Federal Practice, § 8 App.01 (Matthew Bender 3rd
A review of the complaint filed in the instant action shows that it is
laid out in 123 separate paragraphs, divided into seven (7) counts for
relief. It properly sets forth the jurisdictional and venue
requirements, the parties, and the procedural background. The factual
allegations are generally pled, but appear sufficient to put the
defendants on notice of the claims being brought against them.
Accordingly, the Wexford defendants' motion will be denied to the extent
that they seek a more definitive statement with regard to the "inter
alia" and "but not limited to" language set forth in paragraphs 96, 101,
105, and 107 of the complaint.
The Wexford defendants also seek a more definitive statement arguing
that the plaintiffs have failed to plead separate causes of action
against each of them in violation of Fed.R.Civ.P. 8(e) and Fed.R.Civ.P.
10(b). (Doc. No. 4, pp.4-5).
Although the Wexford defendants argue that Fed.R.Civ.P. 8(e) requires
"separate claims," as discussed above, Fed.R.Civ.P. 8(e)(1) directs
a pleading to be concise and direct, while Fed.R.Civ.P. 8(e)(2) addresses
the consistency of pleadings and provides in relevant part:
A party may set forth two or more statements of a
claim . . . alternately or hypothetically, either in
one count . . . or in separate counts . . . When two
or more statements are made in the alternative and one
of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency
of one or more of the alternative statements. A party
may also state as many separate claims . . . the party
has regardless of consistency and whether based on
legal, equitable, or maritime grounds.
In light of the above, the Wexford defendants' argument that the
plaintiffs must set forth a separate claim as to each individual defendant
finds no support in Fed.R.Civ.P. 8(e).
Moreover, Fed.R.Civ.P. 10(b) provides:
All averments of claim or defense shall be made in
numbered paragraphs, the contents of each of which
shall be limited as far as practicable to a statement
of a single set of circumstances; and a paragraph may
be referred to by number in all succeeding pleadings.
Each claim founded upon a separate transaction or
occurrence and each defense other than denials shall
be stated in a separate count or defense whenever a
separation facilitates the clear presentation of the
matters set forth.
Pursuant to Fed.R.Civ.P. 10(b), when there are several claims, each
founded upon a separate transaction or occurrence, then each claim is to
be stated in a separate count in the complaint, but only when "a
separation facilitates the clear presentation of the matters set forth."
United States v.
Iroquois Apartments, Inc., 21 F.R.D. 151 (1957) (citations omitted).
However, the mere fact that an action is brought against several
defendants does not necessarily indicate that separate statements under
Fed.R.Civ.P. 10(b) is required against each individual defendant. Where
the essence of the complaint against multiple defendants is a scheme,
plan or course of conduct, Fed.R.Civ.P. 10(b) does not require that each
claim against each defendant be stated separately merely because all of
the defendants may not be involved in each transaction or occurrence. 27
Fed. Proc., L.Ed. § 62:109 (citing Securities & Exchange Commission v.
Quinq N. Wong, 252 F. Supp. 608 (D. Puerto Rico. 1966)).
Upon review of the complaint filed in the instant action, the court
finds that the plaintiffs have properly plead separate causes of action
against the Wexford defendants, and that the plaintiffs need not plead
each of the separate causes of action against each individual defendant.
Therefore, to the extent that the Wexford defendants seek to have the
plaintiffs file a more definitive statement pleading separate causes of
action against each of the individual defendants, their motion will be
The Wexford defendants further seek to have stricken the allegations of
deliberate indifference, intent, and willfulness from the plaintiffs'
complaint, and as a result, the plaintiffs' request for punitive damages.
(Doc. No. 4, pp. 5-7).
Upon review, the Wexford defendants' argument is, in essence,
a motion to dismiss the plaintiffs' claim for punitive damages for
failure to state a claim upon which relief can be granted. The Wexford
defendants acknowledge that the plaintiffs have alleged conduct on their
part which was "intentional, willful and done with deliberate
indifference." They argue, however, that the plaintiffs cannot support
these allegations and, therefore, cannot support a claim for punitive
damages. As a result, the Wexford defendants argue that the portion of
the plaintiffs' complaint seeking punitive damages should be dismissed
for the plaintiffs' failure to state a claim upon which relief can be
Pursuant to the provisions of Fed.R.Civ.P. 12(b)(6), dismissal of a
complaint, in whole or in part, should only occur where it appears that
the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Accordingly, dismissal is appropriate "only if, after accepting
as true all of the facts alleged in the complaint, and drawing all
reasonable inferences in the plaintiff's favor, no relief could be
granted under any set of facts consistent with the allegations of the
complaint." Trump Hotel and Casino Resorts. Inc. v. Mirage Resorts.
Inc., 140 F.3d 478, 483 (3d Cir. 1998)(citing ALA. Inc. v. Ccair. Inc.,
29 F.3d 855, 859 (3d Cir. 1994). A dismissal under 12(b)(6) should only
be granted if "it is certain that no relief can be granted under any set
of circumstances which could be proved." Steamfitters Local Union No. 420
Welfare Fund v. Phillip Morris. Inc., 171 F.3d 912, 919 (3d Cir.
City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 262 n. 12 (3d
Cir. 1998). When considering a motion to dismiss under Rule 12(b)(6), the
important inquiry is not whether the plaintiff will ultimately prevail on
the merits of his claim, but only whether he is entitled to offer
evidence in support of them. Scheuer v. Rhodes, 416 U.S. 232, 236
In a § 1983 action, a jury may be permitted to assess punitive damages
when the defendant's conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the
federally protected rights of others. Feldman v. Philadelphia Housing
Authority, 43 F.3d 823, 833 (3d Cir. 1994)(citing Smith v. Wade,
461 U.S. 30, 56 (1983)). Similarly, the Pennsylvania Supreme Court has
stated that "punitive damages may be awarded for conduct that is
outrageous, because of the defendant's evil motive or his reckless
indifference to the rights of others." Id. (quoting Feld v. Merriam,
485 A.2d 742, 747 (Pa. 1984)).
In this case, the plaintiffs have alleged conduct on the part of the
Wexford defendants which was intentional, willful and done with
deliberate indifference. In light of these allegations and at the early
stage of the instant proceedings, the plaintiffs will be permitted to
proceed with their punitive damages claim. See Fed.R.Civ.P. 9(b)("Malice,
intent, knowledge . . . may be averred generally.").
Finally, the defendants seek dismissal of the plaintiffs' claim of
negligent infliction of emotional distress pursuant to Fed.R.Civ.P.
12(b)(6) for the
plaintiffs' failure to state a claim upon which relief can be granted.
(Doc. No. 4, pp. 7-10).
In relation to a claim for intentional infliction of emotional
Restatement (Second) of Torts provides:
(1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it, for such bodily harm.
(2) Where such conduct is directed at a third person,
the actor is subject to liability if he intentionally
or recklessly causes severe emotional distress (a) to
a member of such person's immediate family who is
present at the time, whether or not such distress
results in bodily harm, or (b) to any other person who
is present at the time, if such distress results in
Restatement (Second) of Torts, § 46 (Emphasis added).
Although the Pennsylvania Supreme Court has yet to declare whether a
cause of action for intentional infliction of emotional distress is
viable in Pennsylvania, it has nevertheless assumed arguendo that such a
tort exists. See Taylor v. Albert Einstein Medical Center. 754 A.2d 650
(Pa. 2000). In doing so, the Pennsylvania Supreme Court has held that a
family member who is not actually present and does not witness the
tortious conduct cannot recover for the intentional infliction of
emotional distress. Id. The court reasoned that the "presence"
requirement would apply equally to a claim for
negligent infliction of emotional distress. Id.
The court has uncovered only one unpublished Eastern District of
Pennsylvania case which allowed a claim for intentional infliction of
emotional distress to survive a motion to dismiss, even where the
"presence" requirement was not met. See Cunningham v. Integrated Health
Serv., Inc., 1997 WL 256952 (E.D.Pa.). Cunningham, however, is
distinguishable from the instant action. In Cunningham, the plaintiff
brought a diversity action against a nursing home claiming that it
intentionally inflicted emotional distress upon her by failing to timely
inform her of the abuse which befell her mother while under the nursing
home's care. The court in that case was addressing the defendant's motion
to dismiss on the basis that the conduct was not sufficiently outrageous
to satisfy the requirements for intentional infliction of emotional
distress. While the court noted that the plaintiff could not recover for
her own emotional distress caused by the actual abuse because she was not
actually present at the time, the court allowed the claim to survive on
the basis that the plaintiff based her claim upon the fact that the
defendant misrepresented the true nature of the injury to her mother in
order to protect itself from liability, and that the cover up damaged the
plaintiff's relationship with her mother.
This court finds the more recent opinion of the Pennsylvania Supreme
Court to be more persuasive, as that opinion was based upon the clear
language of the Restatement (Second) of Torts, § 46, which requires
individual to be present and witness the tortious conduct in order to
recover on an emotional distress claim. Research has not uncovered any
other case which, like Cunningham, has found that an emotional distress
claim may proceed absent the "presence" requirement.
In this case, the plaintiffs have not adequately plead the presence
requirement. As such, the Wexford defendants' motion will be granted with
respect to the plaintiffs' claim for negligent infliction of emotional
Based upon the foregoing, an appropriate order will issue.
Based upon the court's memorandum filed this same day,
IT IS HEREBY ORDERED THAT the Defendants, Craig R. Bardell, M.D., Susan
Day, P.A., and Wexford Health Sources, Inc.:
(1) Motion for More Definitive Statement" (Doc. No.
3), is denied; and,
(2) the motion to dismiss the plaintiffs' claim for
infliction of emotional distress
(Doc. No. 3) is granted.
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