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Petty v. Somers

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: March 1, 1971.

ROBERT F. PETTY, GUARDIAN OF THE ESTATE OF ARDELL DONALDSON, A MINOR
v.
E. E. SOMERS, W. J. MITCHELL AND CHARLEROI-MONESSEN HOSPITAL, ROBERT F. PETTY, GUARDIAN OF THE ESTATE OF ARDELL DONALDSON, A MINOR, APPELLANT IN NO. 18,969, CHARLEROI-MONESSEN HOSPITAL, APPELLANT IN NO. 18,970

Ganey and Adams, Circuit Judges, and Weis, District Judge.

Author: Per Curiam

Opinion OF THE COURT

Plaintiff, a citizen of New Jersey, brought this action as guardian for Ardell Donaldson, a Pennsylvania citizen, against the defendants, individual doctors and hospital, also citizens of Pennsylvania. The suit is based on a claim for personal injuries received as a result of alleged medical malpractice.

The district court found that diversity had been "manufactured"; that suits had been filed in state courts against the individual defendants before the statute of limitations had run; but that timely action had not been taken against the hospital which refused to waive the limitations defense.

Following the holding of McSparran v. Weist, 402 F.2d 867 (3rd Cir. 1968), cert. den. sub nomine Fritzinger v. Weist, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969), the district court dismissed the action as to the individual defendants but denied the motion of the defendant hospital.

The plaintiff appellant disputes the factual determinations made by the lower court but the record contains ample support for the findings and we will not disturb them.

The hospital appellant contests prospective application of the "manufactured diversity" doctrine. This issue was considered and decided adversely to appellant by the court en banc in McSparran v. Weist, supra. Accord: Green v. Hale, 433 F.2d 324 (5th Cir. 1970); Lester v. McFaddon, 415 F.2d 1101 (4th Cir. 1969).

The judgment will be affirmed.

19710301

© 1998 VersusLaw Inc.



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