United States District Court, M.D. Pennsylvania
GORDON PARKER GOODFELLOW IV, a minor by GORDON PARKER GOODFELLOW, III and LORENA GOODFELLOW, Parents and Natural Guardians, and GORDON PARKER GOODFELLOW, III and LORENA GOODFELLOW, Individually, Plaintiffs
CAMP NETIMUS, INC., d/b/a CAMP SHOHOLA FOR BOYS, INC. a/k/a CAMP SHOHOLA, INC.; CANDACE KAY LEHMAN and LISA M. CHOU BRASS, Defendants
MALACHYE. MANNION United States District Judge.
before the court is the motion to dismiss, (Doc.
VZ), of the defendants regarding plaintiffs'
direct medical corporate negligence claims raised against
Camp Netimus, Inc., d/b/a Camp Shohola for Boys, Inc.
("the Camp") in the amended complaint, (Doc. 10),
based on an alleged defective Certificate of Merit
("COM") which allegedly fails to set forth that
plaintiffs are proceeding on such a theory against the Camp.
The defendants also seek to dismiss the allegations of
negligence against the individual defendants as well as all
allegations of recklessness. Further, the defendants move to
dismiss the parent plaintiffs' loss of consortium claim
regarding their minor son. For the reasons discussed below,
the defendants' motion will be GRANTED IN PART AND DENIED
PROCEDURAL AND FACTUAL BACKGROUND
plaintiffs, Gordon Parker Goodfellow, III, and Lorena
Goodfellow bring this action on behalf of their minor son,
Gordon Parker Goodfellow, IV ("GPG"), and on their
own behalf. The plaintiffs filed their complaint on July 22,
2016, (Doc. V), against defendants the Camp, and the
two Camp infirmary nurses, Candace Kay Lehman and Lisa M.
Chou. After defendants were served, they filed a motion to
dismiss the complaint on September 23, 2016. (Doc. 9). On
September 30, 2016, plaintiffs filed an amended complaint.
(Doc. 10). There was only one difference between the
amended complaint and the original complaint, namely, ¶
17.1 which stated that counsel erred in checking the wrong
box on the original COM for the Camp and that plaintiffs had
secured an expert who gave an opinion regarding the
negligence of the Camp. Attached to the amended pleading were
amended COMs regarding all three defendants. (Doc. 10, pp.
24-30). The amended COM for the Camp had the box for
vicarious liability checked. (Doc. 10, pp. 24-25). The court
then dismissed the motion to dismiss the original complaint
since it was moot. (Doc. 11).
October 19, 2016, the defendants filed a motion to dismiss
portions of the amended complaint pursuant to Fed.R.Civ.P.
12(b)(6). (Doc. VZ). The defendants simultaneously
filed their brief in support. (Doc. 13). On November 2, 2016,
the plaintiffs filed their brief in opposition. (Doc. 16).
The defendants filed a reply brief on November 9, 2016,
rendering their motion to dismiss ripe for review. (Doc.
action relates to the medical treatment GPG received while
attending the Camp, as an overnight camper, during the summer
of 2014. GPG became sick on July 26, 2014 and was brought to
the Camp's infirmary complaining about stomach pain,
nausea, vomiting and a fever. The Camp's infirmary was
staffed by Lehman and Chou, both licensed professionals, who
believed GPG was suffering from a stomach flu. GPG remained
in the Camp's infirmary from July 26 through July 29,
2014, allegedly without proper medical care. On July 29,
2014, the Camp Director brought GPG to Hawley Urgent Care
where he was immediately referred to Wayne Memorial Hospital
Emergency Room for a CT scan. The scan revealed that GPG had
a perforated appendix which caused sepsis. GPG was then
transported to Geisinger Medical Center where he received IV
antibiotics to address the infection. GPG remained at
Geisinger receiving antibiotics until September 24, 2014,
when he was stable enough to have surgery to remove his
appendix. GPG was discharged from Geisinger on September 26,
2014. For one month thereafter, GPG allegedly still had pain
in his lower abdomen.
their amended complaint, (Doc. 10), the plaintiffs allege
that Lehman and Chou were negligent for initially
misdiagnosing GPG with a stomach flu, for failing to timely
diagnose his condition which was appendicitis, and for
failing to supervise and train Camp employees. In addition to
the direct professional negligence claims against Lehman and
Chou, the plaintiffs claim that the Camp is vicariously
liable for the alleged negligence of the two infirmary
nurses. The plaintiffs also assert claims of direct and
corporate negligence against the Camp, including claims that
it failed to adequately train the infirmary staff, it failed
to have adequate policies and procedures in place, and it
failed to consult with a physician.
are five counts in the amended complaint, to wit: (I) a
professional medical negligence claim against Lehman; (II) a
professional medical negligence claim against Chou; (III)
claims of vicarious liability as well as direct corporate
medical negligence claims against the Camp; (IV) a claim for
emotional distress allegedly suffered by GPG against all
defendants; and (V) a claim by GPG's parents against all
defendants for recovery of medical bills and a loss of
consortium claim by GPG's parents regarding GPG. There
are also several allegations of recklessness against the
defendants in the amended complaint. As relief in all five
counts, plaintiffs seek compensatory damages. This
court's jurisdiction is based on diversity 28 U.S.C.
indicated, the plaintiffs attached amended COMs to their
amended complaint regarding all three defendants. (Doc. 10.
pp. 24-30). The amended COMs against Lehman and Chou were
filed based on Pa.R.C.P. 1042.3(a)(1) and state, in pertinent
part, an expert has found that "there is a basis to
conclude that the care, skill or knowledge exercised or
exhibited by this defendant in the treatment, practice or
work [at issue], fell outside acceptable professional
standards and that such conduct was a cause in bringing about
the harm [to GPG]." The amended COM filed against the
Camp, which is based only on Pa.R.C.P. 1042.3(a)(2), states
that "the claim that this defendant deviated from an
acceptable professional standard is based solely on
allegations that other licensed professionals [i.e., Lehman
and Chou] for whom this defendant is responsible deviated
from an acceptable professional standard" and, that an
expert has found "there is a basis to conclude that the
care, skill or knowledge exercised or exhibited by the other
licensed professionals in the treatment, practice or work [at
issue], fell outside acceptable professional standards and
that such conduct was a cause in bringing about the harm [to
STANDARDS OF REVIEW
Motion to Dismiss
defendants' motion to dismiss is brought pursuant to the
provisions of Fed.R.Civ.P. 12(b)(6). This rule
provides for the dismissal of a complaint, in whole or in
part, if the plaintiff fails to state a claim upon which
relief can be granted. The moving party bears the burden of
showing that no claim has been stated, Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal
is appropriate only if, accepting all of the facts alleged in
the complaint as true, the plaintiff has failed to plead
"enough facts to state a claim to relief that is
plausible on its face, " Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007)
(abrogating "no set of facts" language found in
Conleyv. Gibson, 355 U.S. 41, 45-46 (1957)). The
facts alleged must be sufficient to "raise a right to
relief above the speculative level." Twombly,
550 U.S. 544, 127 S.Ct. at 1965. This requirement "calls
for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of" necessary elements of
the plaintiff's cause of action. Id.
Furthermore, in order to satisfy federal pleading
requirements, the plaintiff must "provide the grounds of
his entitlement to relief, " which "requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do."
Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008) (brackets and quotations marks omitted)
(quoting Twombly, 550 U.S. 544, 127 S.Ct. at
considering a motion to dismiss, the court generally relies
on the complaint, attached exhibits, and matters of public
record. See Sands v. McCormick, 502 F.3d 263 (3d
Cir. 2007). The court may also consider "undisputedly
authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are
based on the [attached] documents." Pension Benefit
Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196
(3d Cir. 1993). Moreover, "documents whose contents are
alleged in the complaint and whose authenticity no party
questions, but which are not physically attached to the
pleading, may be considered." Pryor v. Nat'l
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d
Cir. 2002). However, the court may not rely on other parts of
the record in determining a motion to dismiss. See Jordan
v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir. 1994).
the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g.,
Fletcher-Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mavview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002);
Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.
2000). "Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or
futility." Alston v. Parker, 363 F.3d 229, 236
(3d Cir. 2004).
Motion to Strike
motion, insofar as it seeks to strike portions of the amended
complaint, is also made pursuant to Fed.R.Civ.P.
12(f). In Tennis v. Ford Motor Co.,
730 F.Supp.2d 437, 443 (W.D.Pa. 2010), the court explained as
follows regarding a Rule 12(f) motion:
Under Fed.R.Civ.P. 12(f) "[t]he court may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter." Rule 12(f) "permits the court, on its own
motion, or on the timely motion of a party, to order stricken
from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter."
Adams v. Cnty. of Erie, Pa., 2009 WL 4016636 at *1
(W.D.Pa. Nov. 19, 2009) quoting Fed.R.Civ.P. 12(f)).
"The purpose of a motion to strike is to clean up the
pleadings, streamline litigation, and avoid unnecessary
forays into immaterial matters." Natale v. Winthrop
Resources Corp., ...