Gehling v. St. George Univ. School of Medicine, 86 CV 1368.

• Decision Date: 12 October 1988
• Docket Number: No. 86 CV 1368.,86 CV 1368.
• Citation: 698 F. Supp. 419
• Parties: Rose GEHLING, admx. of the Estate of Earl J. Gehling and the Estate of Earl J. Gehling, and Rose Gehling on her own behalf, Plaintiff, v. ST. GEORGE UNIVERSITY SCHOOL OF MEDICINE, LTD., Defendant.
• Court: U.S. District Court — Eastern District of New York

698 F. Supp. 419

Rose GEHLING, admx. of the Estate of Earl J. Gehling and the Estate of Earl J. Gehling, and Rose Gehling on her own behalf, Plaintiff, v. ST. GEORGE UNIVERSITY SCHOOL OF MEDICINE, LTD., Defendant.

No. 86 CV 1368.

United States District Court, E.D. New York.

October 12, 1988.

Shor, Levin & Weiss, P.C., Elkins Park, Pa., for plaintiff; Lawrence D. Levin, of counsel.

Donald J. Werner, Massapequa Park, N.Y., for defendant.

MEMORANDUM-DECISION AND ORDER

BARTELS, District Judge.

On April 18, 1982, Earl J. Gehling died after having voluntarily participated in the "Saint George's University School of Medicine ("SGU") road race" of 2.6 kilometers between the two campuses of St. George's University Medical School, a Grenadian corporation, located in Grenada. At the time of his death, Gehling, a student at SGU, was 5' 11", and weighed 240 pounds. His general health at the time of the race is disputed. Prior to enrollment at the school, the decedent indicated his knowledge, in writing, that Grenadian health facilities, in general, were not of the same high standard as those in the United States. The race was unsupervised by SGU, and the school allegedly did not provide any medical care and surveillance for race participants. Moreover, the school did not require runners to submit to any type of pre-race screening or physical examination. The race was organized by students and was open to both students and non-students alike. The race held on April 18, 1982, was run, unlike prior races, at approximately 3:00 P.M. under tropical conditions. Upon crossing the finish line, Gehling collapsed. Several doctors were present, including at least one SGU employee.

According to the SGU newsletter, which is published by the defendant, the decedent was "immediately" treated by three faculty physicians and two students who were physician's assistants. An unsuccessful attempt was made to revive him which included administration of oxygen. The decedent was thereafter brought by ambulance to the government-operated General Hospital. Gehling died several hours later, despite the efforts of at least three other doctors. Subsequently, what the plaintiff describes as an "unauthorized post-mortem examination" was performed on Gehling's body by a local "undertaker", who allegedly never advised the family of the true outcome of the examination. A second autopsy was later performed in the United States at plaintiff's request. The findings of the second pathologist were at variance with those of the first.

The plaintiff, Rose Gehling¹, a resident of Pennsylvania, originally instituted this action on September 2, 1983, in the United States District Court for the Middle District of Pennsylvania, claiming that the race was run and controlled by SGU, and accusing SGU and Foreign Medical School Services Corporation ("FMSSC") of committing wrongful acts which caused Earl Gehling's death. The causes of action unrelated to the Pennsylvania forum were transferred to this district by the Pennsylvania court pursuant to 28 U.S.C. § 1631, for lack of in personam jurisdiction over the defendants. As stated by the Pennsylvania court, the causes of action now before us solely concern events occurring in Grenada. Memorandum order of Judge Conaboy, 4/14/86 at 10-11. The Eastern District of Pennsylvania, in its Order transferring the case to this District, stated that

although we have grave reservations regarding whether the plaintiff can maintain either personal jurisdiction over the defendant St. George's Hospital in the Eastern District of New York or venue in that forum, ... we shall sever the causes of action in this case and transfer to the EDNY the following counts of plaintiff's Substituted Third Amended Complaint:

a. Count 1: Negligence

b. Count 2: Strict Liability

c. Count 5: Battery on a corpse

d. Count 6: Medical Malpractice

e. Count 7: Negligence in the Conduct of a Road Race.

Id. Interspersed throughout the transferred counts are claims of fraud or misrepresentation.

The two defendants, SGU and FMSSC, while stipulating that this Court has jurisdiction over both parties, moved for summary judgment. On July 8, 1988, we granted summary judgment in favor of FMSSC, while reserving our ruling on SGU's motion.

I. Choice of Law

We have earlier informed the parties that New York courts would normally apply the substantive law of Grenada in this action (Memorandum-Decision and Order, 6/13/88). Accordingly, pursuant to Fed.R.Civ.P. 44.1, the Court ordered the defendant to submit proof of Grenadian law.

Rule 44.1 of the Federal Rules of Civil Procedure provides:

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

Under Rule 44.1, "the court is free to insist on a complete presentation of the foreign law by counsel." Fed.R.Civ.P. 44.1 advisory committee's note. This Court has so insisted and finds the parties' submissions less than satisfactory no matter which side is considered as having the burden of proving Grenadian law. Trying this case on the basis of the limited, and sometimes misstated, Grenadian law thus far submitted would be impossible, or at least irresponsible. The original proponent of Grenadian law, SGU, apparently concurs with this judgment, and accordingly has withdrawn its motion for the application of Grenadian law. The plaintiff has interposed no objection to the non-applicability of Grenadian law. The Court rules, then, that the law of New York will govern this case. See Rolnick v. El Al Israel Airlines, Ltd., 551 F.Supp. 261, 264 n. 2 (E.D. N.Y.1982) (New York law would apply where parties failed to prove foreign law).

We now consider the first part of SGU's motion for summary dismissal, i.e., dismissal of the wrongful death claim as untimely.²

II. Limitation Periods for Wrongful Death

That New York law is to govern this case does not mean Grenadian law is irrelevant. New York's "borrowing statute", section 202 of the New York Civil Practice Law & Rules (hereinafter "CPLR") provides in pertinent part that "an action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued...." CPLR 202 (McKinney 1972). This suit was commenced seventeen months after Gehling's death.

Both parties agree that the survival causes of action are timely under New York and Grenadian law, leaving only the question of the limitation period of the wrongful death action.

Under New York law the time within which an action for wrongful death must be brought is two years. N.Y. Estates, Powers & Trusts Law 5-4.1 (McKinney 1981).

The applicable Grenadian law governing the time for bringing such a suit is disputed. SGU contends that the applicable time period is contained in the Grenadian Compensation for Injuries Act (the "Grenadian Act"). That act prescribes a twelve month period for bringing suit. See 1 Revised Laws of Grenada, ch. 65. SGU contends that this twelve month period is a condition precedent which need not be pled as an affirmative defense, but, in the alternative, moves to amend its answer to add a statute of limitations defense. Plaintiff contends that the applicable time period is contained in the English Fatal Accidents Act of 1976 (the "English Act"). A suit under that act must be brought within three years of the decedent's death. See 31 Halsbury's Laws of England, "Negligence" 202-212 (4th ed. 1974) (hereinafter "Halsbury"); 24 Halsbury, "Limitations of Actions" 639. Plaintiff claims that the English Act is Grenadian law and overrides any law to the contrary. Moreover, plaintiff argues that the applicable limitation period is a statute of limitation which SGU should not, at this late day, be allowed to assert as a defense.

To determine the validity of the parties' contentions, a review of Grenadian history and English law is warranted.

From 1763 to 1967 Grenada was essentially a colony within the Commonwealth of the United Kingdom.³ The Grenadian Act was promulgated by the Grenadian legislative council in 1885. See 1 Revised Laws of Grenada ch. 65.

By the West Indes Act of 1967, Grenada became an associate member of the Commonwealth. West Indes Act, 1967, 15 & 16 Eliz. 2, ch. 4; 7 Halsbury, "Commonwealth & Other Territories" 271-85.

Section 10 of the act provides that the associate status of an associate member can be terminated by the legislature of an associate member or by the English monarch acting by Order in Council.

Section 11 of the act provides that after associate status is terminated, "no Act of the Parliament of the United Kingdom ... shall extend, or be deemed to extend, to the former associated state as part of its law."

In 1973, Grenada's status as an associate member of the Commonwealth was terminated. Grenada Termination of Association Order, 1973, S.I. 1973/2157.

In March of 1979, the People's Revolutionary Government was swept into power on Grenada. Davidson, supra at 13; Gilmore, supra at 20. On March 25, 1979, People's Law No. 5 was promulgated providing that all pre-revolutionary law was to remain in force until repealed or amended. Davidson, supra at 19. This Court has been unable to find any People's Law purporting to repeal or amend the Grenadian Act.

The People's Revolutionary Government was ousted through United States military intervention in October, 1983. Gilmore, supra at 11. General elections were held pursuant to the reinstated Grenadian Independence Constitution. The first law the new parliament passed was Act No. 1 of 1985 which provided in pertinent part: "2. For the...