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Schlegel v. Wilson-Cook Medical

February 8, 2007

JAMES SCHLEGEL AND KELLY SCHLEGEL, PLAINTIFFS
v.
WILSON-COOK MEDICAL, INC., DEFENDANT/THIRD-PARTY PLAINTIFF
v.
A. DAVID FROEHLICH, M.D., ET AL., : THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court are two motions (Docs. 19, 22), filed by third-party defendants A. David Froehlich, M.D., ("Dr. Froehlich"), Heritage Medical Group, L.L.P. ("Heritage"), Susquehanna Surgeons, LTD., ("Susquehanna"), and Holy Spirit Hospital ("Holy Spirit") to dismiss the third-party complaint filed by defendant Wilson-Cook Medical, Inc. ("Wilson-Cook"). For the reasons that follow, the motions will be denied.

I. Statement of Facts*fn1

Plaintiff James Schlegel ("Mr. Schlegel") was admitted to Holy Spirit on April 3, 2003 with complaints of epigastric pain, nausea, and jaundice. (Doc. 1 ¶ 6.) Mr. Schlegel was diagnosed with obstructive jaundice with evidence of multiple gallstones and probable fatty liver. (Doc. 1 ¶¶ 7-8.) He was scheduled to undergo an endoscopic retrograde cholangiopancreatography ("ERCP") with possible biliary sphincterotomy and gallstone extraction on April 4, 2003 by Christopher Furlong, M.D. ("Dr. Furlong"). (Doc. 15 ¶ 14.) Dr. Furlong attempted to do the ERCP on April 4, 2003. However, conscious sedation and IV Propofol sedation failed and the surgery was terminated and rescheduled to April 5, 2003. (Doc. 15 ¶¶ 15, 16.) Dr. Karen Kormis ("Dr. Kormis") performed the ERCP on April 5, 2003. (Doc. 1 ¶ 8.) During the procedure, Dr. Kormis attempted to use a UTS-30 sphincterotome manufactured by Wilson-Cook, but the device was allegedly not functioning properly. (Doc. 1 ¶¶ 10-12.) Dr. Kormis therefore used another sphincterotome and completed the procedure. (Doc. 1 ¶ 12.) The operative procedure note indicates the sphincterotomy was successful and Mr. Schlegel had no immediate complications. (Doc. 15 ¶ 25.)

Mr. Schlegel was then scheduled to undergo laparoscopic cholecystectomy (gallbladder removal) performed by Dr. Froehlich on April 6, 2003. (Doc. 15 ¶ 26.) An April 5, 2003 progress note states that if Mr. Schlegel's amylase and lipase levels were elevated on the morning of April 6, 2003, surgery should be postponed. (Doc. 15 ¶ 28.) Despite high amylase and lipase levels, Dr. Froehlich performed the laparoscopic cholecystectomy on the morning of April 6, 2003. (Doc. 15 ¶¶ 29, 30.) After the surgery, Mr. Schlegel experienced nausea, dehydration, a distended and tender abdomen, intestinal obstruction, and tachychardia. (Doc. 15 ¶ 31.) Two days after the surgery, Mr. Schlegel was diagnosed with pancreatitis. (Doc. 15 ¶ 32.) After a few weeks, he developed necrotic pseudocysts. (Doc. 15 ¶ 32.)

The instant action was commenced on April 1, 2005. (See Doc. 1.) Plaintiffs allege Wilson-Cook was negligent in the manufacture and distribution of the sphincterotome, Wilson-Cook breached express and implied warranties by delivering a defective product, and such negligence was the direct cause of plaintiffs' harm. (Doc. 1 ¶¶ 20-26.) Wilson-Cook filed an answer to the complaint with affirmative defenses on June 2, 2005. (Doc. 6.) Wilson-Cook subsequently filed a third-party complaint on March 1, 2006, naming Dr. Froehlich, Heritage, Susquehanna, and Holy Spirit as third-party defendants. (See Doc. 15.) The third-party complaint sets forth negligence claims against Dr. Froehlich, Heritage, Susquehanna, and Holy Spirit. (Doc. 15 at 7-15.) Specifically, the pleading alleges that Dr. Froehlich was negligent and breached the duty of care owed to Mr. Schlegel by failing to exercise or apply the skills, training, and knowledge other physicians would have exercised in the same or similar circumstances. (See Doc. 15 at 7-8.) The pleading also alleges that Heritage, Susquehanna, and Holy Spirit are liable for the negligent acts committed by Dr. Froehlich.*fn2 (See Doc. 15 at 9-15.) The pleading requests judgment against third-party defendants for all sums that may be adjudged against Wilson-Cook in favor of plaintiffs, including costs and attorneys' fees, and "such other relief that the Court deems appropriate." (Doc. 15.)

On March 22, 2006, Holy Spirit filed a motion to dismiss Wilson-Cook's third-party complaint, and a brief in support thereof. (See Docs. 19 and 20.) Holy Spirit argues that all claims against it should be dismissed because the claims are precluded by the statute of limitations, Wilson-Cook failed to allege sufficient facts to establish that Holy Spirit is a joint tortfeasor with Wilson-Cook to support a claim for contribution or apportionment, and Wilson-Cook did not show good cause to suspend Local Rule 14.1. (See Doc. 20 at 6-13.) On March 28, 2006, Dr. Froehlich, Heritage, and Susquehanna filed a motion to dismiss Wilson-Cook's third-party complaint, and a brief in support thereof. (Docs. 22 and 23.) Dr. Froehlich, Heritage, and Susquehanna argue that all claims against them should be dismissed because Dr. Froehlich and Wilson-Cook are not joint tortfeasors and joinder of the medical providers defeats the purpose of Rule 14. (See Doc. 23 at 5-15.) The motions have been fully briefed and are ripe for disposition.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of claims that fail to assert a basis upon which relief can be granted. FED. R. CIV. P. 12(b)(6).

In the context of a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). Although the court is generally limited in its review to the face of the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice pleading rules do not require plaintiffs to allege affirmatively every aspect of their claims, but only to present sufficient facts to allow the opposing party to conduct discovery and prepare a defense. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, courts should not dismiss a complaint for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id.; see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Under this liberal pleading policy, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

A. Joint Tortfeasor and Contribution Claims

Third-party defendants argue that Wilson-Cook failed to allege sufficient facts to establish that they are joint tortfeasors with Wilson-Cook to support a claim for contribution or ...


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