Nicholas Malfitano May 14, 2015, 3:10pm


PHILADELPHIA – A federal judge recently dismissed the City of Philadelphia as a defendant in an ongoing wrongful death lawsuit over whether the presence of a nurse to administer inhaler medication would have prevented the September 2013 death of a sixth-grade student.

A federal judge also denied the subsequent motion from plaintiff’s counsel to reconsider that decision in March.

The City of Philadelphia - named as a defendant in the lawsuit along with the School District of Philadelphia, W.C. Bryant Promise Academy and Principal Gaddy - filed a motion to dismiss itself from the litigation in February, arguing the plaintiffs’ amended complaint (filed in January) failed to state a claim for which relief can be granted.

The motion further argued, among other things, that the plaintiffs’ amended complaint was insufficient under the plausibility standard of federal law and that all defendants are entitled to qualified immunity for their actions.

Counsel for the plaintiffs countered Laporshia Massey’s death was due to the alleged fact that “defendants detained her in school, prohibited her from possessing and using her medication, drove her home instead of to the hospital, employed individuals who lacked sufficient knowledge, skill and training to assist Ms. Massey during her fatal, medical emergency.”

“Had the defendants not detained her and not employed individuals who lacked the requisite knowledge, skill and training to address Ms. Massey’s fatal asthma attack, she would have survived,” plaintiff counsel Michael D. Pomerantz wrote.

Yet, Judge Nitza I. Quinones Alejandro ruled in February that the City of Philadelphia would in fact be dismissed as a defendant from the lawsuit.

“Defendant City and Defendant School District are two (2) separate, distinct and independent entities,” Alejandro decided. “Further, the Commonwealth of Pennsylvania and not the City, appoints the School District’s leaders.

“In addition, plaintiff’s amended complaint is devoid of any mention related to an action or omission by an Employee of the City or a policy attributed to the City.

“Under these circumstances, plaintiff has failed to state a claim against the City. Consequently, this motion to dismiss is granted.”

Plaintiff counsel filed a motion to reconsider this decision on March 3, but it was subsequently denied by Alejandro two weeks later, according to court records.

Alejandro opined the plaintiff’s motion for reconsideration did not include “any intervening change in the controlling law, availability of new evidence that was not available when the Court granted the [original] motion at issue, or the need to correct a clear error of law or fact, or to prevent manifest injustice.”

All three of those points constitute the only true scope for reconsideration per precedent in the U.S. Court of Appeals for the Third Circuit, Alejandro explained.

The judge also reiterated the City and School District’s separation, with respect to the plaintiffs’ claims.

“Plaintiff’s claims against the City are entirely premised on the alleged acts of the District and the District’s agents and employees,” Alejandro wrote.

“Since the City and the District are two separate and distinct entities, Plaintiff cannot maintain a claim against the City based on acts of the District. This Court finds that in seeking reconsideration, Plaintiff has failed to show the narrowly prescribed circumstances set forth.”

The administrators of Massey’s estate originally sued the City of Philadelphia, School District of Philadelphia and her school, the W.C. Bryant Promise Academy, in September of last year for wrongful death in its decision not to have a full-time nurse on staff to carry out its policy of not allowing students to take their prescribed medications without the presence of a school nurse.

The principal and teacher were also been named defendants for their alleged failure to recognize the severity of Massey’s asthma attack and not taking the proper measures to keep her safe. The suit seeks compensatory damages in excess of $150,000 for each of the six counts, plus punitive damages.

According to the complaint, 12-year-old Massey had a well-documented case of asthma that was known to her teachers and school administrators. On Sept. 25, 2013, she began to complain to her teacher that she had difficulty breathing.

Since there was not a nurse on duty to supervise the use of her inhaler, Massey was unable to take her medication, the complaint says.

The complaint says that the unidentified teacher told Massey to “be calm” and kept her in class until dismissal, never calling emergency services or transporting her to the hospital.

When Massey arrived home, the complaint says that she was immediately taken to the Children’s Hospital of Philadelphia.

While on the way, Massey went into respiratory arrest, and CPR attempts by hospital personnel were unsuccessful. The complaint says the Philadelphia Medical Examiner pointed to acute exacerbation of asthma as the cause of death.

Massey’s death caught national attention as a tragic consequence of the School District of Philadelphia’s budget woes.

Two weeks after her death, the state authorized an extra $45 million to the school district’s budget, but that money was used to rehire laid-off teachers and other administrative staff.

Superintendent William Hite argued that the school district had met the state standard of one nurse per 1,500 students. The nurse assigned to Bryant was scheduled to be at the school two days a week, with the remainder days at another school.

The complaint claims that Massey’s death was a result of negligent actions by the school district and Bryant’s administrative staff, which allegedly failed to properly train its staff to recognize medical emergencies and when situations require contacting emergency services.

The defendants are accused of being indifferent to Massey’s medical emergency and caused her to unjustly experience pain and suffering before her death.

The plaintiffs are represented by Michael D. Pomerantz, Esq. of the Marrone Law Firm, LLC in Philadelphia.

The defendants are represented by Jeffrey M. Scott, Esq. of Archer & Greiner in Philadelphia.

U.S. District Court for Eastern District of Pennsylvania case 2:14-cv-05046

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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