RICHARD D. O'RANGERS, Individually and on behalf of the ESTATE of ABRAMO A. O'RANGERS Plaintiff,
CADIA REHABILITATION SILVERSIDE, et al., Defendant.
Submitted: February 12, 2019
J. Leoni, Esquire; Attorney for Plaintiff
P. Merlini, Esquire and Mark G. Giannotti, Esquire; Attorneys
CLARKE STREETT, JUDGE
a nursing home negligence lawsuit with claims for survival
and wrongful death. Cadia Health Care, LLC, et
(the "Defendants") assert that there are
indispensable Pennsylvania entities ("Bryn Mawr")
that cannot be made a party to the instant case and,
therefore, request dismissal pursuant to Delaware Superior
Court Civil Rule ("Rule") 12(b)(7) and Rule
Plaintiff filed the instant lawsuit in
Delaware against Defendants and also filed a separate lawsuit
in Pennsylvania against Pennsylvania entities. Both lawsuits
concern Plaintiffs father's injuries and death. A hearing
was held on March 29, 2019 and the Court reserved decision.
Upon consideration of the parties' submissions and
arguments, Defendants' Motion is DENIED.
appears that Plaintiffs father, Abramo A. O'Rangers (the
"Decedent") was under the care of Bryn Mawr
Rehabilitation Hospital ("Bryn Mawr") from December
19, 2016 until December 31, 2016. Bryn Mawr is a Pennsylvania
entity and located in Pennsylvania.
December 31, 2016, the Decedent was transferred to
Defendant's facility in Wilmington,
Delaware. Defendant had an ulceration in his sacral
region when he was transferred.
are business entities organized in Delaware and located in
Delaware. Defendants did business as Cadia Rehabilitation
Silverside and/or Cadia Silverside, a provider of
rehabilitation and nursing services in Wilmington, Delaware.
Delaware Complaint alleges that Defendants provided care for
the Decedent between December 31, 2016 and January 18, 2017;
that Defendants were aware that the Decedent had difficulty
walking due to a traumatic brain injury and vertebral
compression; and that the Decedent would be at risk of
falling while in Defendants' care.
January 1, 2017, notwithstanding this information, the
Decedent fell and suffered injury to his
buttocks/sacral/coccyx area and elbow.
January 2, 2017, the Decedent fell, again, and suffered a new
deep tissue injury on his coccyx and/or exacerbation of
pre-existing injuries to his buttocks/sacral/coccyx area.
January 5, 2017, the Decedent fell for the third time and
suffered injury and/or exacerbation of pre-existing injuries
to his buttocks/sacral/coccyx area and elbow.
January 15, 2017, the Decedent fell again.
addition, Plaintiff alleges that Defendants failed to provide
precautions and protections relating to Decedent's
tendency to fall; failed to provide precautions and
protections to keep the Decedent's sacral decubitus
ulcer/wound clean; allowed the Decedent to wear soiled
diapers for "an unreasonable length of time;" and
failed to administer appropriate or sufficient medication (or
treatment) to treat the Decedent's sacral decubitus
January 18, 2017, the Decedent was admitted to St. Francis
Hospital in Wilmington, Delaware and remained there until
February 6, 2017. While in the hospital, the Decedent
underwent repeated procedures for the ulcer wound and surgery
to place a diverting colostomy in an attempt to keep the
wound area clean.
February 6, 2017, the Decedent was discharged from St.
Francis Hospital and transferred to Fair Acres, a nursing
facility located in Media, Pennsylvania.
March 31, 2017, the Decedent died at Fair Acres.
December 20, 2018, Plaintiff filed a lawsuit in Pennsylvania
against Bryn Mawr. The Pennsylvania complaint alleges that
Bryn Mawr's negligence caused a pressure ulcer wound on
the Decedent and that Decedent died as a result of Bryn
December 27, 2018, Plaintiff filed this Delaware Complaint
against Defendants asserting new injury and exacerbation of
injury in a Survival Claim and a Wrongful Death Claim.
February 12, 2019, Defendants filed a Motion to Dismiss for
failure to name Bryn Mawr as a necessary party. On March 21,
2019, Plaintiff filed its Response.
March 29, 2019, a Hearing on Defendants' Motion to
Dismiss was held. The Opinion of the Court denying
Defendants' Motion to Dismiss follows.
assert that the Delaware Complaint and the Pennsylvania
Complaint involve the same pressure ulcer suffered by the
Decedent. Defendants contend that the Court cannot accomplish
a fair allocation of responsibility for the alleged injury to
the Decedent and, citing Rule 19, that Defendants have
"...a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the claimed
interest" because Bryn Mawr is alleged to have caused
the "exact same harm" as Defendants. Hence,
Defendants argue, Bryn Mawr is a necessary party to the
instant action under Rule 19(a).
further assert that, because Bryn Mawr is not subject to
jurisdiction in Delaware courts, it is not 'feasible'
to join Bryn Mawr in the instant action. As such,
Defendants contend that the four factors to be considered in
Rule 19(b) weigh in favor of dismissing the instant action.
applying those factors, argue that the absence of Bryn Mawr
unfairly prejudices Defendants because Defendants will not
have an opportunity to seek allocation of any potential
judgement as to Bryn Mawr; that the prejudice cannot be
lessened because Defendants will have no adequate remedy at
law unless Bryn Mawr is included in the instant
action; that a judgment rendered in the absence
of Bryn Mawr would not be adequate because Defendants would
have no recourse against Bryn Mawr; and that dismissal will
"not adversely impact [P]laintiff s ability to seek an
adequate remedy in the Pennsylvania
addition, Defendants assert that Graham v. State Farm
Mutual Insurance Company and Shahin v.
UPS "stand for the proposition that
dismissal is appropriate when a party not subject to the
jurisdiction of Delaware Courts is alleged to have
negligently caused the same harm complained of against the
defendant over whom the Delaware Courts have
in opposition, asserts that the Bryn Mawr defendant is not a
necessary party to the Survival Claim or the Wrongful Death
Claim. Plaintiff submits that some of the Decedent's
Delaware injuries are separate and independent from the Bryn
Mawr injuries. As such, Bryn Mawr is not an indispensable
party. Plaintiff also argues that, to the extent that some of
the injuries are the same, then Bryn Mawr is a joint
tortfeasor which, under case law and Rule 19(a), is not a
necessary party. Plaintiff also asserts that the Court cannot
weigh the four factors in Rule 19(b) and, even if the Rule
19(b) four factors are considered, each factor weighs against
dismissal in the instant case.
contends that Defendants would not be prejudiced by a
judgment in the absence of Bryn Mawr because the instant
action alleges that some of the tortious Delaware activities
are separate and distinct from the alleged acts of Bryn Mawr
and have caused separate and distinct injuries; the Court
could provide instruction to the jury that Decedent resided
in two separate facilities and the jury would be able to
decide which injuries were caused by Defendants; the jury
will only examine Defendants' conduct because Plaintiff
has "alleged separate and distinct acts of negligence of
the Defendants, not a single injury-causing event in which
both Bryn Mawr and Defendants
participated;" and Plaintiff would be prejudiced by
dismissal because Plaintiff would not have an adequate remedy
for the injuries caused by Defendants.
March 29, 2019 hearing, Defendants acknowledged that Bryn
Mawr is a joint tortfeasor concerning the Wrongful Death
Claim but argued that there are exceptions to the rule that
joint tortfeasors are not necessary parties. Defendants posit
that joint tortfeasors become necessary parties when a
plaintiff is claim splitting and when there is a pending case
on the same issue in another jurisdiction.Defendants
contended that these exceptions apply to Plaintiffs Wrongful
the Survival Claim, Defendants asserted that Plaintiff is
able to obtain full recovery in Pennsylvania despite
Defendants' concession that the Delaware Complaint
alleges a Delaware elbow injury caused exclusively by
Delaware Defendants and discovery would be required ...