PHILADELPHIA - The U.S. District Court for the Eastern District of Pennsylvania has denied Sheila Durnell and Charles Opdenaker’s motion to remand their class action lawsuit against several health care providers back to Delaware County state court.
The lawsuit is against Gerald Foti, D.O., Suburban Spine and Orthopedic Center, LLC, Main Line Hospitals, Inc. and Crozer-Keystone Health System. The plaintiffs claimed that the defendants violated several state laws when Foti committed medical malpractice.
Suburban Spine and Foti removed the case to the federal court via the Class Action Fairness Act (CAFA) of 2005.
“The court finds neither argument persuasive and denies plaintiffs’ motion for remand,” Judge Berle M. Schiller ruled Sept. 20.
Durnell and Opdenaker sued on April 26, with allegations that Foti subjected patients to "medically unnecessary or unindicated procedures, surgery and/or injections between 2011 to the present,” according to the lawsuit.
The alleged unnecessary practices were committed at Suburban Spine and Orthopedic Center, Main Line Hospitals, Inc., Crozer-Keystone Health System and/or John Doe health system. The plaintiffs said that because of the defendants’ alleged misconduct and negligence, many patients experienced injuries and loss of consortium.
While the plaintiffs wanted the court to remand the case, stating that the removal was untimely and that the case is considered an exception to federal jurisdiction via CAFA, the court said it was unmoved.
The court first determined that the defendants’ notice of removal was filed in a timely manner. The defendants filed the notice on July 9, so they had to prove they weren’t served on or before June 8.
While the plaintiffs said the defendants didn’t file the notice until after 30 days of being served with the complaint, the court said, “defendants have met their burden by providing a copy of the docket for this action in the Delaware County Court of Common Pleas. The docket contains no indication that defendants were served on or before June 8, 2019. In fact the only reference to service of Dr. Foti and Suburban Spine indicates that service did not take place on June 4, 2019.”
The claim as a whole interestingly came from a typo in the defendants’ first removal notice that said they were served on June 4. But they later clarified that that was a mistake.
The court also determined that the case complies with federal jurisdiction with CAFA. It agreed with defendants that CAFA requirements were met for federal jurisdiction, noting that the amount in question is more than $5 million, that the class is minimally diverse, and that the class consists of more than 100 people considering that Foti performed at least 100 procedures and surgeries during the timeframe at hand.
The plaintiffs also didn’t properly prove that an exception to CAFA is relevant in the case.