Regan v. Rajan & Temple University Hospital

32 Pa. D. & C.3d 515, 1984 Pa. Dist. & Cnty. Dec. LEXIS 323
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 1, 1984
Docketno. 1305
StatusPublished

This text of 32 Pa. D. & C.3d 515 (Regan v. Rajan & Temple University Hospital) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Regan v. Rajan & Temple University Hospital, 32 Pa. D. & C.3d 515, 1984 Pa. Dist. & Cnty. Dec. LEXIS 323 (Pa. Super. Ct. 1984).

Opinion

WALLACE, J.,

Presently before this court are the preliminary objections of the additional defendant, G. D. Searle and Company (Searle), and the response of defendant Whan S. Chung, M.D. (Dr. Chung). This court sustains the preliminary objections and dismisses the complaint of Dr. Chung, for the reasons stated below.

Plaintiffs began this action against Renga Rajan, M.D. (Dr. Rajan) and Temple University Hospital (Temple) on July 14, 1980. Plaintiffs’ claims arise out of treatment rendered to Theresa Regan by Dr. Rajan at Temple during six hospitalizations from November, 1978 to September, 1979, for a rare medical condition of vaginal agensis — a functioning uterus but no vagina. Dr. Rajan’s treatment included the insertion of an intrauterine device on February 7, 1979. Plaintiffs allege that Dr. Rajan was negligent in his treatment and that the insertion of the intrauterine device amounted to the sale of a defective product giving rise to liability under Section 402A of the Restatement (Second) of Torts and for breach of warranty.

Plaintiffs brought a subsequent action against Dr. Chung on August 12, 1982. These claims stem from treatment administered by Dr. Chung to Theresa Regan for infection at Episcopal Hospital, during five hospitalizations from September 26, 1979 to [517]*517August 9, 1980. Plaintiffs allege that Dr. Chung was negligent for failing to identify and remove the intrauterine device in light of the severe pelvic infection experienced by Theresa Regan.

The two actions brought by plaintiffs were consolidated by an order of the Honorable Thomas A. White on July 20, 1983. The parties to the consolidated actions filed a stipulation seeking to extend for 30 days the time allowed for joinder of G. D. Searle and Company as an additional defendant. The stipulation was approved by Honorable White on November 3, 1983, without prejudice to the right of G. D. Searle and Company to timely object.

On December 1, 1983, Dr. Chung filed a complaint against Searle, alleging that if plaintiffs prevail on their complaints, Searle is alone liable to plaintiffs or, in the alternative, is jointly and severally liable to Dr. Chung for full indemnity, or, in the alternative, is jointly and severally liable with Dr. Chung for contribution.

Searle makes these preliminary objections on two grounds. First, Searle petitions for dismissal of Dr. Chung’s complaint on grounds that the joinder of Searle more than a year after Dr. Chung was served with plaintiffs’ complaint is untimely under Pa. R.C.P. 2253 and that Dr. Chung has failed to show cause, as required by Rule 2253. Second, Searle demures to Dr. Chung’s complaint and seeks dismissal on the grounds that even when all the well-pleaded facts in Dr. Chung’s complaint and plaintiffs’ prior complaints are taken as true, they fail to state a cause of action against Searle. This court grants the preliminary objections on the first basis — that the complaint was untimely — and addresses this issue. The second basis — that the complaint is insufficient as a matter of law — will not be addressed.

[518]*518Pa. R.C.P. 2253 states as follows:

“Neither praecipe for a writ to join an additional defendant nor a complaint, if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.”

The application of this rule to the instant case is clear. Defendant’s request for permission to join Searle as an additional defendant was not made until more than 15 months after the expiration of the 60-day period prescribed by Rule 2253. Consequently, the burden of demonstrating sufficient cause to allow the unseasonable joinder rested with defendant. Lamoree v. Penn Central Transportation Co., 238 Pa. Super. 380, 357 A.2d 595 (1976).

The question of whether there is “cause shown” to justify an extension of time to permit the joinder of an additional defendant is a matter committed solely to the discretion of the trial judge. Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970); Marnell v. Cross, 372 Pa. 82, 92 A.2d 688 (1952); Lamoree v. Penn Central Transportation Co., 238 Pa. Super. 380, 357 A.2d 595 (1976).

Rule 2253 specifies neither what constitutes “cause shown” nor what criteria should be considered. The court is, therefore, guided by the objectives sought to be achieved by use of the additional defendant procedure in conjunction with the purpose for which a 60-day limitation was placed on its use. Zakian v. Liljestrand, supra, 438 Pa. at 256, 264 A.2d at 641. In essence, these rules are designed to dispose of matters involving numerous parties in a simple and expeditious manner “without subjecting the original plaintiff to unreasonable [519]*519delay in the prosecution of his portion of the litigation.” Zakian v. Liljestrand, supra.

The “cause” relied upon by Dr. Chung in the instant case is based on two contentions. His first contention is that he had absolutely no knowledge of, nor any reason to know of, the possible liability of Searle until his counsel had undertaken and completed extensive discovery procedures. Specifically, it was not until November 30, 1983, that Dr. Chung’s attorney was advised by Dr. Rajan’s attorney that a CU-7 IUD, not a Saf-T-Coil IUD, was involved in this case. And his second contention is that the delay was otherwise justified by the complicated nature of the case and the voluminous medical records.

Such contentions are invalid and, furthermore, deserve no sympathy. Dr. Chung’s contention that he could not effect joinder because he was unable to determine whether to join the manufacturer of CU-7 IUD’s or the manufacturer of Saf-T-Coil IUD’s is not supported by the record. In all of the medical records in this case, the only reference to a Saf-TCoil is in the Temple discharge summary for the period January 18 to February 10, 1983. In contrast, the IUD is identified as a CU-7 in the February 7, 1979 operative report of the Temple resident who assisted in its insertion, and in the December 18, 1980 report of the St. Barnabus Hospital pathologist who removed it. The IUD is also identified as a CU-7 in the records of Episcopal Hospital in a November 20, 1979 Department of Radiology report and in progress notes dated in July 10, 1980 and August 7, 1980, the first of which appears to have been written by Dr. Chung himself. Moreover, both Dr. Rajan and Dr. Perkins testified at depositions in 1981 that they inserted a CU-7 in Theresa Regan [520]*520and plaintiffs’ 1980 complaint against Dr. Rajan refers to the IUD as a CU-7.

With such information, it is unreasonable for Dr. Chung to have taken longer than one year to resolve a question of which IUD was inserted. Moreover, it is difficult to perceive of any information concerning the identity of the IUD or the potential involvement of Searle which was not known to Dr. Chung or readily available to him through the exercise of diligence within 60 days of the service of plaintiffs’ complaint.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burch v. Sears, Roebuck and Co.
467 A.2d 615 (Supreme Court of Pennsylvania, 1983)
Welch Foods, Inc. v. Bishopric Products Co.
385 A.2d 1007 (Superior Court of Pennsylvania, 1978)
Zakian v. LILJESTRAND
264 A.2d 638 (Supreme Court of Pennsylvania, 1970)
Marnell v. Cross
92 A.2d 688 (Supreme Court of Pennsylvania, 1952)
Zachrel v. Universal Oil Products Co.
49 A.2d 704 (Supreme Court of Pennsylvania, 1946)
Lamoree v. Penn Central Transportation Co.
357 A.2d 595 (Superior Court of Pennsylvania, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
32 Pa. D. & C.3d 515, 1984 Pa. Dist. & Cnty. Dec. LEXIS 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/regan-v-rajan-temple-university-hospital-pactcomplphilad-1984.