Owen after Omaha Public Power District was out of the case, leaving only Kroger and Owen Equipment who were both citizens of Iowa even though the amount in controversy required was easily met.
Footnote 1 in Owen refers to Joseph v. Chrysler Corp., 513 F.2d 626 (CA-3, 1975) as in accord. Joseph, however, is an affirmance on judgment order without opinion in two cases decided below in 61 F.R.D. 347 (D.Pa., 1973), which does not even mention Jacobson, nor does Owen.
Other cases in the line are Weiss v. Sunasco, 316 F. Supp. 1197 (D.Pa.,1970), also involving a diversity claim below the jurisdictional minimum, and which distinguished Jacobson; Seyler v. Steuben Motors, 462 F.2d 181 (CA-3, 1972) which also distinguishes Jacobson; and Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973), which lists Jacobson in note 29, but did not pass on the question it decided and was content to note that if there were power to hear the claim, the District Court properly exercised its discretion in declining to exercise pendent jurisdiction. The significance of that segment is somewhat diluted by the ruling in Part III that the same claim just decided to have been properly rejected came within the trial court's diversity jurisdiction. Under these conditions this court must assume that Jacobson is still binding on this court and on other panels of the Court of Appeals until reconsidered en banc. See, also, Gallo v. Yamaha Motor, 488 F. Supp. 502 (D.Pa.,1980), which tips its hat to Jacobson but does not find it applicable.
In the present case, Jacobson clearly does not apply by its own terms. The complaint charges the two doctors, Dr. Braun and Dr. Malcolm, in one paragraph directed to medical standards, and charges Holy Name (along with two fictitious employees never identified by discovery or otherwise) on the basis of hospital standards. These are quite different claims and cases because the controlling standards are bound to be different. The professional standards apply to those who practice medicine and this the hospital cannot do. For this reason it cannot be held to answer vicariously for conduct that involves the practice of medicine, even though it can be held vicariously for conduct which is part of hospital functions (such as preventing patients from falling out of bed).
It is noteworthy, too, that a review of all the discovery materials discloses nothing to suggest any performance failure on the hospital's part, but also indicates there was no claim made against the orthopedist who thought there should be a biopsy of the affected vertebra and took the sample, none against the laboratory physicians who administered the radiation treatments, and none against the head of the pathology department who supervised Dr. Braun.
Thus, aside from the inability to meet the jurisdictional minimum even by aggregation of the claims of the two plaintiffs, plaintiffs' discovery has not even attempted to obtain evidence to support the separate claim against the hospital and its unidentified, fictitiously named employees. It may be that this paragraph of the complaint was included to protect the claims in the event discovery turned up some kind of negligence on the part of the unknown employees for which the hospital could be held vicariously liable. At an early stage, dismissal may have been withheld while the factual history was developed.
But this has now been done, and it is more than a year since the court raised the jurisdictional question, with nothing more evident than before, even in the proposed requests to charge and lists of witnesses and exhibits.
The court is satisfied that it is bound by Jacobson, but that Jacobson does not govern in the particular facts and circumstances of this case, and, to the extent that the cases suggest the existence of discretion, the court exercises it against the retention of Holy Name Hospital.
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