Dymeck v. Rajjoub

43 Pa. D. & C.5th 13
CourtPennsylvania Court of Common Pleas, Lycoming County
DecidedDecember 2, 2014
DocketNo. 12-00550
StatusPublished

This text of 43 Pa. D. & C.5th 13 (Dymeck v. Rajjoub) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lycoming County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dymeck v. Rajjoub, 43 Pa. D. & C.5th 13 (Pa. Super. Ct. 2014).

Opinion

BUTTS, /.,

I. Background

From July 23, 2010 to September 16, 2010, plaintiff Judy J. Dymeck was a patient in the Williamsport Hospital, located in Lycoming County. On September 16, 2010, Plaintiff was transferred to Select Specialty Hospital, located in Montour County. On September 19, 2010, plaintiff was transferred to Geisinger Medical Center, also located in Montour County.

On August 29, 2014, plaintiffs settled with the following defendants: Rodwan K. Rajjoub, M.D., Lalita Mittal, M.D., Stuart M. Olinsky, M.D., Clyde M. Finch, M.D., Thomas E. Cullen, D.O., the Williamsport Hospital, the Williamsport Hospital and Medical Center, the [16]*16Williamsport Hospital Foundation, NCPHS Foundation, NCPHS Health Education and Research Foundation. The aforementioned defendants will be referred to as the “Williamsport-related defendants.” The terms of the settlement are contained in a document titled “Joint Tortfeasor Release” (Joint Tortfeasor Release).

On October 22,2014, defendants Tina M. Jacobs, D.O., Jagdeep K. Mehr, M.D., and Larry E. Bohner, II, P.A.-C. filed an answer with amended new matter and new matter cross-claims to plaintiffs’ third amended complaint. In the answer, defendants Jacobs, Mehr, and Bohner asserted a cross claim against the Williamsport-related defendants.

On October 22, 2014, a motion to transfer venue from Lycoming County to Montour County (motion to transfer) was filed by defendants Jacobs, Mehr, Bohner, Geisinger Medical Center, Geisinger Health System Foundation, and Select Specialty Hospital. These defendants will be referred to as the “Select-related defendants.”

Also on October 22,2014, the Select-related defendants filed a motion to compel the production of the settlement agreement between plaintiffs and the Williamsport defendants (motion to compel).

On October 29, 2014, defendant Select Specialty Hospital filed an answer and amended new matter to plaintiffs’ third amended complaint. In the answer, defendant Select Specialty Hospital asserted a cross claim against the Williamsport-related defendants. Because they assert the same claim, defendant Select Specialty Hospital’s answer and defendants Jacobs, Mehr, and Bohner’s answer will be referred to the “answer.”

The Williamsport-related defendants filed preliminary objections to the answer. The objections included a [17]*17demurrer to the cross claim.

On November 17, 2014, the Select-related defendants filed a motion for leave to file amended answer with new matter (motion for leave). On December 2, 2014, after argument, this court granted the motion for leave.

II. Discussion

A. Preliminaiy Objections

Williamsport-related defendants argue that the cross claim is legally insufficient because they are not joint tortfeasors with the Select-related defendants. Defendant Olinsky argues that the defendants are not joint tortfeasors because the plaintiff’s move to Select Specialty Hospital pro vides areasonable basis to apportion the alleged inj uries. Defendant Olinsky contends that the Williamsport-related defendants and the Select-related defendants cannot be considered joint tortfeasors because “the alleged harm to the plaintiff is severable as to time and alleged injury.” Defendants the Williamsport Hospital, the Williamsport Hospital and Medical Center, the Williamsport Hospital Foundation, NCPHS Foundation, and NCPHS Health Education and Research Foundation argue that they are not joint tortfeasors with the Select-related defendants because the plaintiffs claim that the injury which occurred at the Williamsport Hospital was separate from the injury which occurred at Select Specialty Hospital. Defendant Rajjoub argues that the condition of the Plaintiff upon her arrival to Select Special Hospital provides a reasonable basis to apportion the alleged injuries.

Select-related defendants argue that the Williamsport-related defendants recognize that joint liability may come into play as evidenced by their entry into the joint tortfeasor release. Select-related defendants also note that [18]*18the plaintiffs allege the defendants are jointly and severally liable in the third amended complaint.

“The question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Booze v. Allstate Ins. Co., 750 A.2d 877, 878-79 (Pa. Super. 2000).

Defendants are not joint tortfeasors if the harm to the plaintiff is capable of apportionment. Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1027 (Pa. Super. 2005). “If the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive.” Id. (quoting Restatement (Second) of Torts § 879). “It is the function of the court to determine whether the harm to the plaintiff is capable of apportionment among two or more causes.” Lasprogata v. Qualls, 397 A.2d 803, 806 (Pa. Super. 1979).

“If two or more causes combine to produce a single harm which is incapable of being divided on any logical, reasonable, or practical basis, and each cause is a substantial factor in bringing about the harm, an arbitrary apportionment should not be made.” Neal, 882 A.2d at 1027.

In determining whether the harm to a plaintiff is capable of apportionment, that is, whether the defendants are separate or joint tortfeasors, courts consider several factors:

the identity of a cause of action against each of two or more defendants; the existence of a common, or [19]*19like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential; responsibility of the defendants for the same injuria as distinguished from the same damnum.

Id.

The above factors do not “establish a single, cumulative test of apportionability.” See Glomb v. Glomb, 530 A.2d 1362, 1366 (Pa. Super. 1987). The factors are not “an exhaustive list of independent tests.” See id. “The determination of whether to allow apportionment is entirely a practical inquiry into the circumstances of each case. In some cases, reference to one or more of the factors might aid the inquiry.” Id.

“Most personal injuries are by their very nature incapable of division.” Capone v. Donovan, 480 A.2d 1249, 1251 (Pa. Super. 1984).

In their complaint, plaintiffs repeatedly refer the alleged injuries as “injuries to the nerve and spinal cord.”1 The complaint does not allege that a certain injury to the nerves [20]

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Related

Glomb v. Glomb
530 A.2d 1362 (Supreme Court of Pennsylvania, 1987)
Hatfield v. Continental Imports, Inc.
610 A.2d 446 (Supreme Court of Pennsylvania, 1992)
Booze v. Allstate Insurance Co.
750 A.2d 877 (Superior Court of Pennsylvania, 2000)
Cheeseman v. Lethal Exterminator, Inc.
701 A.2d 156 (Supreme Court of Pennsylvania, 1997)
Corbett v. Weisband
551 A.2d 1059 (Supreme Court of Pennsylvania, 1988)
Capone v. Donovan
480 A.2d 1249 (Supreme Court of Pennsylvania, 1984)
Neal v. Bavarian Motors, Inc.
882 A.2d 1022 (Superior Court of Pennsylvania, 2005)
Lasprogata v. Qualls
397 A.2d 803 (Superior Court of Pennsylvania, 1979)
Martin v. Owens-Corning Fiberglas Corp.
528 A.2d 947 (Supreme Court of Pennsylvania, 1987)
National Liberty Life Insurance v. Kling Partnership
504 A.2d 1273 (Supreme Court of Pennsylvania, 1986)
Pasquariello v. Godbout
72 Pa. D. & C.4th 129 (Northampton County Court of Common Pleas, 2005)

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Bluebook (online)
43 Pa. D. & C.5th 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dymeck-v-rajjoub-pactcompllycomi-2014.