Amended material stricken from complaint in nursing home negligence case

By Nicholas Malfitano | Apr 10, 2017

PHILADELPHIA – A judge has ruled that a plaintiff did not have permission of the Court to amend a portion of his complaint and violated a Federal Rule of Civil Procedure, which resulted in those portions being stricken.

On March 30, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert decided two paragraphs would be removed from John Simmons’s complaint against defendants Simpson House, Inc., Simpson House Foundation, Prime Healthcare Services-Roxborough, LLC (doing business as Roxborough Memorial Hospital), Kindred Hospital-South Philadelphia and Kindred Healthcare, Inc., due to Simmons’ violation of said rule, FRCP No. 15.

Simmons filed the instant lawsuit as the administrator of his mother Ola Simmons’ estate. He alleges she moved into Simpson House Nursing Home because she was suffering from senile psychosis and episodic incontinence. During her five-month stay, she “developed pressure sores, experienced excessive weight loss and contracted multiple infections.”

Ola was transferred to Prime-Roxborough where her condition continued to decline, and after less than a month at that facility, she was moved to Kindred Hospital and died roughly two months later while in hospice care.

John asserted claims of negligence, wrongful death and survival, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) against Simpson House and Simpson House, Inc. (Simpson House), Prime Healthcare Services-Roxborough, LLC (Prime-Roxborough) and Kindred Hospital-South Philadelphia and Kindred Healthcare Inc. (Kindred).

“Prime-Roxborough filed a partial motion to dismiss Simmons’s third amended complaint. Because Simmons amended portions of his third amended complaint without leave of Court, the Court grants Prime-Roxborough’s motion and strikes these paragraphs from the complaint,” Pappert said.

On Dec. 12, 2016, the Court denied Prime-Roxborough’s motion to dismiss Simmons’s second amended complaint and granted Simpson House’s motion to dismiss with respect to Count 18 (a claim made under the UTPCPL), but gave Simmons leave to amend his complaint – but only with respect to Count 18.

However, Simmons filed his third amended complaint on Dec. 22, 2016.

“Prime-Roxborough moves to ‘dismiss’ paragraphs 133(d) and 137, in Counts 3 and 4, from the third Amended Complaint. Prime-Roxborough contends that Simmons did not have leave of the Court to amend these paragraphs, and so they should be stricken from the complaint,” Pappert stated.

Pappert concurred with the defendants’ rationale and ordered the amended material in question stricken from the record.

“The Court construes Prime-Roxborough’s motion as a motion to strike under Rule 12(f) rather than a motion to dismiss under Rule 12(b)(6). The Court granted Simmons leave to amend Count 18. Simmons amended his complaint without leave of Court when he added allegations to paragraphs pertaining to counts other than Count 18. This violates Federal Rule of Civil Procedure 15. Simmons’s amendments to paragraphs 133(d) and 137 are stricken from the Third Amendment Complaint,” Pappert said.

The plaintiff is represented by Rhonda Hill Wilson in Philadelphia.

The defendants are represented by Jeffrey W. McDonnell of the Law Office of Peter A. Callahan in Philadelphia, plus John M. Skrocki and William J. Mundy of Burns White, in West Conshohocken.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-06636

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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