Verdicts

Noting that the U.S. Court of Appeals for Third Circuit has not yet offered any guidance on the issue, Justice Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania recently remanded a medical malpractice action to the Philadelphia County Court of Common Pleas after deciding that third-party defendants may not remove cases to federal court under 28 U.S.C. ' 1441. Foster v. City of Philadelphia, 2011 U.S. Dist. LEXIS 123212 (E.D. Pa. 10/25/11).

Prisoner Allen Wimberly Jr. died while in custody. The plaintiff, who is the administratrix of Wimberly's estate, brought suit in the Philadelphia County Court of Common Pleas against the doctor who treated Wimberly, Dr. Joseph Scogna. She claimed Dr. Scogna caused the deceased's death by unreasonably delaying surgery. Additional defendants were Frankford Hospital of the City of Philadelphia, and the Frankford Hospital Torresdale Campus. All of the parties are Pennsylvania residents, and the medical malpractice complaint asserts only state law claims. Subsequent to the original claim, Dr. Scogna became a third-party plaintiff by filing a joinder complaint against the City of Philadelphia and a large group of employees, medical workers, and affiliates of the Philadelphia Industrial Correctional Center and the Philadelphia Prison System (collectively, the third-party defendants). The third-party defendants are also Pennsylvania residents, but Dr. Scogna's third-party action made several federal claims; for instance, he alleged the third-party defendants violated Wimberly's civil rights. Based on these claims, the third-party defendants filed a Notice of Removal from state to federal court pursuant to 28 U.S.C. ' 1441. The plaintiff moved to have the case remanded to the Philadelphia County Court of Common Pleas pursuant to 28 U.S.C. ' 1447.