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CAPONE v. NADIG

May 2, 1997

JOSEPH ANTHONY CAPONE, as Administrator of the Estate of JENNIFER ANN OELKERS, deceased, a/k/a JENNIFER ANN CAPONE, Plaintiff,
v.
SAROJA NADIG, M.D., Defendant.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 In this medical malpractice wrongful death and survival action, Defendant has moved for partial summary judgment, pursuant to Fed. R. Civ. P. 56, on the issue of choice-of-law, as well as on the wrongful death claim of Plaintiff, Joseph Anthony Capone ("Capone"). Subject matter jurisdiction is conferred upon this Court by 28 U.S.C. ยง 1332.

 I. Facts and Procedural History

 For purposes of the Defendant's motion, the relevant facts are not in dispute. In the summer of 1994, Jennifer Ann Oelkers ("decedent") was a twenty-two year old full-time student at West Chester University in West Chester, Pennsylvania. During that summer, however, while residing at her parents' home in Cape May Court House, New Jersey, between semesters, Ms. Oelkers noticed swelling in her right pelvic area and brown spots on her vulva. Ms. Oelkers sought medical care from the Defendant, Dr. Saroja Nadig, a board certified gynecologist, in the Defendant's office in Woodbury, New Jersey. Ms. Oelkers visited the Defendant's office on two occasions, on June 20, 1994, and on August 22, 1994. After the August, 1994, visit, Defendant requested that Ms. Oelkers return for another examination in June of 1995. (Plaintiff's Brief ("P.B."), Ex.B).

 Ms. Oelkers returned to West Chester University in the fall of 1994, and graduated in December of that year. (P.B., Ex.C). During the spring of 1995, she observed a growth in her vulvar area and sought medical care from non-party physicians in Pennsylvania. On June 2, 1995, a vulvar lesion was excised from her right labia and a pathologic diagnosis of probable high grade melanoma was made. (P.B., Exs.G,H,I).

 In September of 1995, Ms. Oelkers began a full-time teaching position in Pottstown, Pennsylvania, where she also resided at that time. However, in October of that year, she was diagnosed with a recurrence of malignant melanoma. A CT scan taken on February 2, 1996, revealed metastasis to her liver. Shortly thereafter, on February 23, 1996, Ms. Oelkers married Joseph Capone in the state of Arizona. (P.B., Ex.N).

 On March 4, 1996, Ms. Oelkers and Mr. Capone instituted this suit, alleging that Defendant was negligent in the medical care she provided to Ms. Oelkers. The complaint also included a claim by Mr. Capone for loss of consortium.

 Ms. Oelkers died on April 29, 1996, at her parents' home in Cape May Court House, New Jersey. Mr. Capone, as her husband, was appointed the administrator of her estate. After her death, Mr. Capone filed an amended complaint on July 5, 1996, seeking to recover damages from the Defendant under the Wrongful Death and Survivorship laws of the Commonwealth of Pennsylvania.

 On April 4, 1997, Defendant moved for partial summary judgment on the issue of choice-of-law and on Mr. Capone's wrongful death claim.

 II. Summary Judgment Standard

 A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he or she] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Hersh v. Allen Products. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the Court must view all inferences, doubts and issues of credibility in favor of the non-moving party. See Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.), cert. denied, 133 L. Ed. 2d 26, 116 S. Ct. 64 (1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987) (citation omitted); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Moreover, Federal Rule of Civil Procedure 56(e) provides:

 
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does ...

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