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Vargas v. Penn State Hershey Milton S. Hershey Medical Center

United States District Court, M.D. Pennsylvania

May 18, 2018



          KANE JUDGE.

         Plaintiff JoAnna Vargas, as Executrix of the Estate of Justino Vargas, and on her own behalf, filed a complaint against Defendant Penn State Hershey Milton S. Hershey Medical Center (“Medical Center”), on August 10, 2016, asserting claims of negligence under Pennsylvania's Wrongful Death Act, 42 Pa. C.S. § 8301, and Survival Act, 42 Pa. C.S. § 8302, as well as a claim for negligent infliction of emotional distress, arising out of the death of Justino Vargas after his discharge from the Medical Center. (Doc. No. 1 ¶¶ 33-39, 94-99.) Before the Court is Defendant's partial motion for summary judgment as to Plaintiff's negligent infliction of emotional distress claim. (Doc. No. 27.) For the reasons that follow, the Court will grant the motion.

         I. BACKGROUND[1]

         Plaintiff JoAnna Vargas (“Plaintiff”), is the widow and Executrix of Justino Vargas (“Mr. Vargas”). (Doc. No. 28 ¶ 1.) At the time of the events giving rise to this action, Plaintiff and Mr. Vargas traveled from Florida to visit family in Hershey, Pennsylvania. (Id.) On December 2, 2014, Mr. Vargas began to develop bright red, moderate rectal bleeding. (Id. ¶ 3.) After having his second bowel movement, Mr. Vargas required help from his wife and sons to get off the toilet, as he told them that he felt weak and dizzy. (Id. ¶¶ 3-4.) When he got off the toilet, Plaintiff noticed large amounts of blood in the toilet bowl. (Id. ¶ 4.) Two hours after the rectal bleeding began, Mr. Vargas's family called an ambulance, which took him to the Medical Center's Emergency Department. (Id. ¶ 4.) Plaintiff arrived separately at the Medical Center. (Id. ¶ 5.) While at the Emergency Department, it was determined that Mr. Vargas had acute blood-loss anemia, and Medical Center staff inserted two large bore IVs to begin fluid resuscitation, obtained blood for testing, and ordered a CT of his abdomen. (Id. ¶ 6.)

         Ultimately, Mr. Vargas was admitted to the Medical Center's internal medicine service and housed in its Intermediate Care Unit (“IMC”) for close observation. (Id. ¶ 7.) After resuscitation with IV fluids, his vital signs normalized. (Id.) The Medical Center's gastroenterology service (“GI Service”), consulted on Mr. Vargas's case and planned to perform an endoscopy and colonoscopy. (Id. ¶ 8.) The GI Service's assessment of Mr. Vargas was that he had an acute GI bleed, possibly due to a bleeding diverticula, [2] or peptic ulcer disease (“PUD”), due to Mr. Vargas recently beginning a course of nonsteroidal anti-inflammatory drugs (NSAIDs). (Id.)

         In the late afternoon of December 2, 2014, Mr. Vargas underwent an endoscopy and colonoscopy to evaluate the cause of his rectal bleeding. (Id. ¶ 9.) Plaintiff was not present for performance of these tests. (Id.¶ 10.) Plaintiff learned after the endoscopy and colonoscopy that Mr. Vargas's GI bleed was due to stomach ulcers. (Id.¶ 11.) After the testing was complete, Plaintiff asked to see Mr. Vargas and then left the Medical Center to sleep. (Id.¶ 12-13.) On December 3, 2014, Mr. Vargas texted Plaintiff and told her that it was possible that he might not be released from the Medical Center due to a low blood count; however, later that day, he again texted Plaintiff and this time told her that his blood count was better and that he was ready for discharge from the Medical Center. (Id. ¶¶ 14-15.) After receiving the second text from Mr. Vargas, Plaintiff returned to the Medical Center on December 3 with a family friend and picked up her husband, who was discharged. (Id. ¶¶ 16-17.) When doing so, she did not speak with any Medical Center physicians. (Id.¶ 17.) After leaving the Medical Center, Plaintiff and Mr. Vargas went to lunch and then to the airport for a scheduled flight to return to their home in Florida. (Id.¶ 18.)

         Between the time Mr. Vargas was discharged from the Medical Center and the time of the flight, Plaintiff thought that Mr. Vargas “looked okay” and she “wasn't concerned” about his condition. (Id. ¶ 19.) Plaintiff and Mr. Vargas flew from Harrisburg to Philadelphia, where they boarded another flight to Jacksonville, Florida. (Id. ¶ 20.) During the flight from Harrisburg to Philadelphia, Mr. Vargas appeared normal. (Id.) However, during the flight from Philadelphia to Jacksonville, Mr. Vargas experienced a re-occurrence of his rectal bleeding. (Id. ¶ 21.) At that time, Plaintiff, who was seated next to him, noticed that he became unresponsive. (Id.) Ultimately, he got up to to go to the bathroom and Plaintiff witnessed a trail of blood, or “a lot of blood.” (Id.) When Mr. Vargas entered the airplane bathroom, he collapsed with the door open, and Plaintiff started screaming for help. (Id. ¶ 22.) Two passengers who identified themselves as medical professionals came forward and attempted to resuscitate Mr. Vargas while the plane made an emergency landing. (Id.) After the plane landed, Plaintiff and Mr. Vargas were taken to a hospital in separate ambulances, where Plaintiff learned that Mr. Vargas had passed away. (Id.¶ 23.)

         On August 10, 2016, Plaintiff filed her complaint against the Medical Center in this Court. (Doc. No. 1.) After resolution of an initial motion to dismiss, the Medical Center filed its answer to the complaint on June 1, 2017. (Doc. No. 21.) After several motions for extensions of time to complete discovery, discovery closed in December 2017. The Medical Center subsequently filed this motion for partial summary judgment addressing Plaintiff's claim for negligent infliction of emotional distress with accompanying statement of material facts and a brief in support. (Doc. Nos. 27-29.) On March 9, 2018, Plaintiff filed an “Answer in Opposition to Defendant's Motion for Partial Summary Judgment” (Doc. No. 30), with several exhibits attached, including a copy of the complaint (Doc. No. 30-2), a copy of Plaintiff's deposition testimony (Doc. No. 30-3), a copy of a purported expert report (Doc. No. 30-4), and a Memorandum of Law in Opposition to Defendant's Motion (Doc. No. 30-5). As noted above, Plaintiff filed no response to the Medical Center's statement of material facts, as required by Local Rule 56.1. On March 19, 2018, the Medical Center filed its reply brief. (Doc. No. 31.) Accordingly, the pending motion for partial summary judgment is fully briefed and ripe for disposition. This case is currently scheduled for trial in July 2018.


         Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

         The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving 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 at trial, ” summary judgment is warranted. Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant a motion for summary judgment when the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not defeat a motion for summary judgment with evidence that would not be admissible at trial. Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).


         A. Legal Standard Applicable to Claims of Negligent Infliction of Emotional Distress

         In Pennsylvania, courts have limited negligent infliction of emotional distress (“NIED”), claims to four particular factual situations: (1) the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff suffered a physical impact; (3) the plaintiff was in a “zone of danger, ” at risk of an immediate physical injury; or (4) the plaintiff had a contemporaneous observation of a tortious injury to a close relative. Doe v. Phila. Cmty. Health Alts. AIDS Task Force, 745 A.2d 25, 27 (Pa. Super. Ct. 2000), aff'd, 767 A.2d 548 (Pa. 2001). According to the briefing of the parties, the first and fourth theories of NIED liability are potentially at issue in this case.

         With regard to the first factual scenario, NIED claims are limited to existing relationships that involve “duties that obviously and objectively hold the potential of deep emotional harm in the event of breach.” Toney v. Chester Cty. Hosp., 36 A.3d 83, 95 (Pa. 2011). In Toney, an evenly divided Pennsylvania Supreme Court affirmed the Superior Court's denial of defendant's motion to dismiss plaintiff's allegations of negligent infliction of emotional distress on the basis that, in the absence of physical impact or injury, such a claim can be maintained “only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.” Id. at 84. The justices who favored affirmance concluded that such claims are limited to ...

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