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Estate of Grier v. University of Pennsylvania Health System

June 11, 2009


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is Plaintiff's Motion to Amend Complaint. (Doc. No. 10.) For the following reasons, the Motion will be granted in part and denied in part.


Plaintiff alleges that in 1986, Tony Grier ("Grier") was diagnosed with pulmonary sarcoidosis, a disease that causes inflammation of lung tissue. (Compl. ¶ 3.) In 2002, the disease had progressed to the point where Grier was placed on a waiting list to receive a lung transplant. (Id. ¶ 5.) In January, 2005, a lung became available for transplant after an individual was injured in an accident and was pronounced brain dead at the Lancaster General Hospital. (Proposed First Am. Compl. ¶¶ 14-15.) The donated lung was removed from the accident victim and a bronchoscopy was performed in the lung by Gregory Rossini, M.D., to determine suitability for donation. (Compl. ¶¶ 22-24.) Grier was informed that the lung donor was a healthy, 18-year-old male. (Id. ¶ 8.) On January 7, 2005, Grier received the lung transplant at the Hospital of the University of Pennsylvania. (Id. ¶ 11.) The lung transplant was performed by Defendant Alberto Pochettino, M.D. (Id. ¶ 12.) Before and after the transplant surgery, Grier was under the care of Defendants Robert Kotloff, M.D., and Jeffrey Sager, M.D. (Id. ¶¶ 6, 16.) A month after the transplant surgery, on February 7, 2005, Grier's doctors detected a spot on the transplanted lung. (Id. ¶ 17.) On May 28, 2005, Grier was diagnosed as having lung cancer. (Id. ¶ 29.) Within two months of the diagnosis, on July 16, 2005, Grier died of lung cancer. (Id. ¶ 36.) It was later determined that the lung donor was not a healthy 18-year-old male, but a 31-year-old female who had smoked cigarettes daily for over a decade. (Proposed First Am. Compl. ¶ 31.)

After Grier's death, Emma Grier, administrator of the Estate of Tony Grier ("Plaintiff"), retained a law firm to represent the estate in this matter. No complaint was filed by the law firm. Eighteen months later, on May 21, 2007, Emma Grier hired Dawn L. Jackson, Esquire, to represent the estate.*fn1 On May 25, 2007, Jackson filed a Complaint in the United States District Court for the District of New Jersey. The Complaint named as Defendants the University of Pennsylvania Health System / Hospital of the University of Pennsylvania ("UPenn"); Jeffrey Sager, M.D.; Robert Kotloff, M.D.; Alberto Pochettino, M.D.; and John and Jane Does 1-50. The Complaint contained five counts: wrongful death (Count I); survival (Count II); medical malpractice (Count III); negligence (Count IV); and intentional infliction of emotional distress (Count V). On October 1, 2007, Judge Cavanaugh of the District of New Jersey determined that the Eastern District of Pennsylvania was the appropriate venue for this matter and ordered the case transferred pursuant to 28 U.S.C. § 1404(a). See Order, Estate of Grier, 07-2475 (D.N.J. Oct. 10, 2007).

Plaintiff has filed the instant Motion pursuant to Federal Rule of Civil Procedure 15 seeking leave to file a First Amended Complaint. (Doc. No. 10.) The proposed First Amended Complaint seeks to add two new causes of action: intentional assault and battery and lack of informed consent (Count VI); and common law fraud and intentional and/or negligent misrepresentation (Count VII). (Id.) The proposed First Amended Complaint also seeks to add claims for punitive damages to Counts I and II. (Id.) In addition, the proposed First Amended Complaint seeks to replace three John Doe Defendants with three proposed named Defendants: Lancaster General Hospital; Gregory Rossini, M.D.; and the Gift of Life Donor Program. (Id.)


Rule 15(a) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); Freedom Int'l Trucks, Inc., of N.J. v. Eagle Enters., Inc., 182 F.R.D. 172, 174 (E.D. Pa. 1998). "The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "Indeed, in the absence of any apparent reason '[Rule 15's] mandate should be heeded.'" Freedom Int'l, 182 F.R.D. at 174 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Supreme Court has identified a non-exhaustive list of factors that may justify denying leave to file an amended complaint. These include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment . . . ." Foman, 371 U.S. at 182; see also Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). "An applicant seeking leave to amend a pleading has the burden of showing that justice requires the amendment." Katzenmoyer v. City of Reading, 158 F. Supp. 2d 491, 497 (E.D. Pa. 2001); see also Freedom Int'l, 182 F.R.D. at 175 ("The party seeking leave to amend bears the burden of explaining the reasons for the delay.").

When a party seeks leave to file an amended complaint adding a new claim or naming a new party after the statute of limitations has expired, the requested leave may only be granted if the new claims or parties relate back to the filing date of the original complaint. Rule 15(c) provides in part:

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Fed. R. Civ. P. 15(c).

When a party seeks leave to file an amended complaint adding new claims against an existing party, the applicable provision is Rule 15(c)(1)(B), which requires that the new claims arise out of the same transaction or occurrence that gave rise to the claims contained in the original complaint. Finley Assocs., Inc., v. Sea & Pines Consol. Corp., 714 F. Supp. 110, 115-16 (D. Del. 1989); see also Green v. Robinson, 112 Fed. App'x 165, 168-69 (3d Cir. 2004) (unpublished opinion) ...

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