PHILADELPHIA – A New Jersey man’s lawsuit against a Maryland-based rehabilitation company for injuries and allegedly deficient care he received after striking his head on a steel beam has been remanded to a Philadelphia state court.
Thomas Acciavatti of Turnersville, N.J. initially filed suit in the Philadelphia County Court of Common Pleas on Sept. 23 versus Restore Rehabilitation, LLC of Owings Mill, Md., Key Risk Management Services, LLC of Greensboro, N.C., StarNet Insurance Company of Urbandale, Iowa and Paradigm Corp. of Walnut Creek, Calif.
“On Oct. 1, 2018, plaintiff was working for the Delaware River Waterfront Corporation when he suffered a workplace injury resulting in, among other symptoms, left drop foot, affecting his ability to walk and otherwise use his left foot,” the suit stated.
“As a result of plaintiff’s injuries, he went out of work and began collecting workers compensation medical and indemnity benefits through defendant StarNet Insurance Company and/or defendant Key Risk Management Services, LLC.”
The suit added Nurse Case Manager Paula Martin sent the plaintiff a text message prior to Dec. 23, 2018, advising him that he had been cleared to return to work by his doctor at the Rothman Institute, and plaintiff returned to work accordingly in reliance upon that message.
“On Dec. 23, 2018, while plaintiff was working, he attempted to step onto a platform, but was unable to lift his leg sufficiently and his foot caught on the platform’s edge. As a result, plaintiff fell forward, striking his head on a steel beam and losing consciousness before awakening some time later with a bleeding head wound. Plaintiff suffered a number of injuries as a result,” per the suit.
“In the days after plaintiff’s Dec. 23, 2018 accident, Martin sent plaintiff a text message that the note she had read regarding plaintiff’s ability to return to work had been from a prior date, and plaintiff was not in fact cleared to return to work prior to the accident described above. Plaintiff was in no way contributorily negligent with regard to this accident, which occurred solely due to the negligence of one or more of the defendants.”
Acciavatti claimed he suffered a concussion with post-concussive syndrome, headache and post-concussive syncope, closed head wound, open head wound resulting in facial scarring and convergence insufficiency, and double vision.
On Oct. 27, a mutual stipulation was reached by all parties that all of the defendants, minus Restore Rehabilitation would be dismissed.
Subsequently, Restore Rehabilitation filed an answer with affirmative defenses on Nov. 6, denying the plaintiff’s allegations as actual/legal conclusions to which no response is required and demanded strict proof thereof at the time of trial.
UPDATE
On Nov. 19, U.S. District Court for the Eastern District of Pennsylvania Judge Timothy J. Savage remanded the case to the Philadelphia County Court of Common Pleas – concluding that the diversity of citizenship between the parties, the original grounds on which the case was removed, could not be ascertained.
“Relying in part on the plaintiff’s allegation that he is a New Jersey resident, the notice of removal conclusorily states that the plaintiff and the defendants are ‘citizens’ of different states. Because residency in a state is insufficient to establish citizenship, we are unable to determine whether the plaintiff is a citizen of New Jersey or any other state,” Savage said.
“Restore has also failed to allege its own citizenship. A limited liability company is treated as a citizen of every state in which its members are citizens. The removal notice provides no facts about Restore’s members. Instead, it inaccurately describes Restore as a Maryland corporation with its principal place of business there.”
Savage added that nowhere in the complaint or in the notice of removal is the citizenship of each of Restore’s members alleged, and thus, the case should be remanded.
For a count of negligence sounding in vicarious liability, the plaintiff is seeking compensatory damages in excess of $50,000, plus a trial by jury.
The plaintiff is represented by Benjamin J. Simmons of Defino Law Associates, in Philadelphia.
Defendant Restore Rehabilitation, LLC is represented by Mark G. Giannotti of Marks O’Neill O’Brien Doherty & Kelly, in Philadelphia.
Philadelphia County Court of Common Pleas case 200901334
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05068
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com