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GARCIA v. GALLO

February 19, 1987

DANIELA GARCIA, et al, Plaintiffs
v.
DR. ROBERT J. GALLO, et al, Defendants


Maryanne Trump Barry, United States District Judge.


The opinion of the court was delivered by: BARRY

Plaintiffs, an infant and her parents, the latter as guardians and also as individuals, bring this personal injury action against Dr. Robert J. Gallo; Hackensack Medical Center, a nonprofit charitable hospital; and various "John Does." The hospital now moves for dismissal for lack of subject matter jurisdiction. The motion will be granted.

 On February 20, 1983, plaintiff Isabel Garcia was admitted to the hospital for the delivery of her child, plaintiff Daniela Garcia. Isabel was attended by Dr. Gallo and various hospital employees who are identified in the complaint as unknown "physicians, residents, interns, nurses[,] and other operating room personnel." Complaint at Count II, para. 4. Plaintiffs allege that because the doctor failed to "exercise the degree of care commonly exercised by other obstetricians in like cases," Complaint at Count I, para. 5, and because the attending staff failed to "exercise the degree of care commonly exercised by operating room personnel in like cases," Complaint at Count II, para. 5, the infant plaintiff has suffered severe, permanent, mental and physical injury. Plaintiffs filed this action in this court on October 21, 1985 *fn1" alleging the aforementioned negligence and asserting as the jurisdictional base the diverse citizenship of the parties.

 The narrow issue now before the court is whether a state statute which limits the liability of nonprofit hospitals precludes such an institution from being a defendant in a federal court suit based upon diversity. I hold that while the Supreme Court of the United States has not addressed this precise factual circumstance, the clear weight of the highest court's decisions in similar cases compels a conclusion that this court lacks jurisdiction over the hospital.

 New Jersey Statutes Annotated 2A:53A-7 states in pertinent part:

 
No nonprofit corporation, society or association organized exclusively for . . . hospital purposes shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association. . . .

 Id. The harshness of this "charitable immunity" statute is somewhat abrogated by N.J.S.A. 2A:53A-8 which allows for recovery of up to $ 10,000.00 in damages if the nonprofit defendant is "organized exclusively for hospital purposes." Id.

 The hospital, relying solely on the Honorable Vincent P. Biunno's decision in Young v. Malcolm, 568 F. Supp. 839 (D.N.J. 1983), contends that because the "charitable immunity" statutes necessarily bar any judgment against the hospital for an amount over $ 10,000.00, the minimum amount required by statute for diversity jurisdiction, *fn2" this court lacks subject matter jurisdiction over plaintiffs' claim against the hospital. While the Young decision does stand for that proposition and was, in my opinion, correctly decided, Young is not the only landmark on the jurisdictional landscape. With all due respect to the wisdom and scholarship of Judge Biunno, a full explication of this issue requires more than the defendant's citation to one decision of a court of concurrent jurisdiction.

 An analysis of the applicable law with regard to this precise issue, at least in this circuit, should begin with Jacobson v. Atlantic City Hospital, 392 F.2d 149(3d Cir.1968). In that case, an executor of an estate brought a negligence suit against a nonprofit hospital and two physicians who attended the deceased during his hospitalization. The district court dismissed the complaint against the hospital based upon N.J.S.A. 2A:53A-7 and -8. In reversing the district court, the Court of Appeals noted that it had:

 
taken the lead in recognizing diversity jurisdiction over an entire lawsuit in tort cases presenting closely related claims based, in principal part at least, on the same operative facts and normally litigated together, even though one of the claims, if litigated alone, would not satisfy a requirement of diversity jurisdiction.

 Jacobson, 392 F.2d at 153. Drawing support from the then recent case of United Mine Workers of America v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), the court concluded that where both the federal claim and the non-federal claim arose from the same "core of operative facts," the claims should be heard together. Here, the court noted, the defendant hospital and at least one of the doctors were "closely associated" with the events that allegedly caused the injury. Since the normal procedure if the suit had been brought in state court would have been to try the two claims together in one expeditious and convenient proceeding, the claims should be considered a "single" action within the court's diversity jurisdiction. Jacobson, 392 F.2d at 152.

 The Third Circuit's self-professed role in being at the forefront of the trend toward recognizing jurisdiction over this type of claim did not escape notice by the Supreme Court. In Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1972), reh'g denied, 412 U.S. 963, 37 L. Ed. 2d 1012, 93 S. Ct. 2999 (1973), the Supreme Court made note of Jacobson as part of a general trend of the lower courts to hear pendent claims involving pendent parties where the case could be considered "whole" as defined by Gibbs. Moor, 411 U.S. at 713.

 Moor involved a civil rights suit that sought to include a pendent state claim against a political subdivision which, after Monroe v. Pape,3 could not be a person within the context of ยง 1983 and hence was not a proper party for purposes of federal question jurisdiction. Both the district court and the Ninth Circuit Court of Appeals had rejected the Jacobson line of cases and refused to find jurisdiction. While it affirmed the lower courts, the Supreme Court relied on those courts' alternative basis for decision, *fn4" expressly declining to squarely face the issue of "pendent parties." *fn5" The Court did pause to note that those cases, including Jacobson, that had followed the liberal trend of Gibbs had failed to note that Gibbs might be limited to its facts:

 
There is a significant difference between Gibbs and [the liberal trend of expanding jurisdiction]. For the exercise of pendent jurisdiction over the claims against the county would require us to bring an entirely new party -- a new defendant -- into each ...

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