Defendants in wrongful death lawsuit of Philly sixth-grader appeal to Third Circuit

By Nicholas Malfitano | Mar 20, 2017

PHILADELPHIA – Defendants in a wrongful death lawsuit surrounding the September 2013 death of a sixth-grade student have appealed a federal judge’s decision not to dismiss them from the case under the doctrine of qualified immunity.

Defendants Jelena Markovic, Dawn Hunt, Jennifer Yost, Andrena Seawright, Jennifer Hale and Principal Paulette Gaddy have appealed to the U.S. Court of Appeals for the Third Circuit, from the aforementioned Jan. 31 order of U.S. District Court for the Eastern District of Pennsylvania Judge Nitza I. Quinones Alejandro.

The administrators of Laporshia Massey’s estate, Pauline Hodges and Mark W. Richardson, initially sued the City of Philadelphia, School District of Philadelphia and her school, the W.C. Bryant Promise Academy, in September 2014 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.

A later, separate action against the individual defendants in question was consolidated with the initial litigation in November 2015. The suit seeks compensatory damages in excess of $150,000, 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.

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.

Defendants Markovic, Hunt, Yost, Seawright, Hale and Gaddy filed a motion for summary judgment on Aug. 15, claiming their actions were protected under the doctrine of qualified immunity.

“The facts do not support a claim for a violation of a constitutional right. Laporshia was never seized in violation of the Fourth Amendment, nor do the facts support a state-created danger claim under the Due Process clause of the Fourteenth Amendment. Plaintiff’s claim against the School District must fail because there is no underlying constitutional violation, nor has plaintiff identified any policy or custom that caused Laporshia’s death. Principal Gaddy is entitled to qualified immunity on the plaintiff’s supervisory liability claim because she did not violate a clearly established constitutional right. Finally, defendants are entitled to immunity from the state law claims under the Pennsylvania Political Subdivision Tort Claims Act,” the defendants’ summary judgment motion argued.

Quinones Alejandro ruled Jan. 31, however, to grant the dismissal of the Fourth Amendment claim and deny the dismissal of the remaining claims.

“This Court finds that genuine issues of material fact exist which preclude summary judgment on plaintiff's claims, and in particular, plaintiff’s state-created danger claims. While defendants argue plaintiff has not established that a state-created danger existed, the record…supports that [the] individual defendants precluded Massey from being seen by a school nurse and/or from self-administering medication to treat her asthma once she complained of not being able to breathe, and, further, took no immediate measures to attend to her breathing difficulties,” Quinones Alejandro said.

The individual defendants of Markovic, Hunt, Yost, Seawright, Hale and Gaddy filed their appeal to Quinones Alejandro’s decision on March 1, and further proceedings will be heard in the U.S. Court of Appeals for the Third Circuit.

The plaintiffs are represented by Joseph M. Marrone and Jacob N. Snyder of the Marrone Law Firm, in Philadelphia.

The defendants are represented by Jeffrey M. Scott and Jonathan P. Rardin of Archer & Greiner in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 17-1471

U.S. District Court for Eastern District of Pennsylvania cases 2:14-cv-05046 & 2:15-cv-05281

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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