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O'Rangers v. Cadia Rehabilitation Silverside

Superior Court of Delaware

April 8, 2019

RICHARD D. O'RANGERS, Individually and on behalf of the ESTATE of ABRAMO A. O'RANGERS Plaintiff,

          Submitted: February 12, 2019

          Robert J. Leoni, Esquire; Attorney for Plaintiff

          Mark P. Merlini, Esquire and Mark G. Giannotti, Esquire; Attorneys for Defendants




         This is a nursing home negligence lawsuit with claims for survival and wrongful death. Cadia Health Care, LLC, et al.[1] (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)[2] and Rule 19.[3]

         Plaintiff[4] filed the instant lawsuit in Delaware against Defendants and also filed a separate lawsuit in Pennsylvania against Pennsylvania entities.[5] 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.

         Statement of Facts

         It 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.[6]

         On December 31, 2016, the Decedent was transferred to Defendant's facility in Wilmington, Delaware.[7] Defendant had an ulceration in his sacral region when he was transferred.

         Defendants 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.

         The 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.

         On January 1, 2017, notwithstanding this information, the Decedent fell and suffered injury to his buttocks/sacral/coccyx area and elbow.

         On 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.

         On 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.

         On January 15, 2017, the Decedent fell again.[8]

         In 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 ulcer/wound.

         On 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.

         On February 6, 2017, the Decedent was discharged from St. Francis Hospital and transferred to Fair Acres, a nursing facility located in Media, Pennsylvania.

         On March 31, 2017, the Decedent died at Fair Acres.

         On December 20, 2018, Plaintiff filed a lawsuit in Pennsylvania against Bryn Mawr.[9] 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 Mawr's conduct.[10]

         On 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.

         On 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.

         On March 29, 2019, a Hearing on Defendants' Motion to Dismiss was held. The Opinion of the Court denying Defendants' Motion to Dismiss follows.

         Parties' Contentions

         Defendants 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.[11] Hence, Defendants argue, Bryn Mawr is a necessary party to the instant action under Rule 19(a).

         Defendants 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.[12] As such, Defendants contend that the four factors to be considered in Rule 19(b) weigh in favor of dismissing the instant action.

         Defendants, 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;[13] 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 action."[14]

         In addition, Defendants assert that Graham v. State Farm Mutual Insurance Company[15] and Shahin v. UPS[16] "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 jurisdiction."[17]

         Plaintiff, 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)[18], 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.

         Plaintiff 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;[19] 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;"[20] and Plaintiff would be prejudiced by dismissal because Plaintiff would not have an adequate remedy for the injuries caused by Defendants.

         At the 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.[21]Defendants contended that these exceptions apply to Plaintiffs Wrongful Death Claim.

         As to the Survival Claim, Defendants asserted that Plaintiff is able to obtain full recovery in Pennsylvania[22] despite Defendants' concession that the Delaware Complaint alleges a Delaware elbow injury caused exclusively by Delaware Defendants and discovery would be required ...

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