Johnson v. PHYSICIANS ANESTHESIA SERVICE, PA

• Decision Date: 18 October 1985
• Docket Number: Civ. A. No. 83-196 CMW,84-80 CMW.
• Citation: 621 F. Supp. 908
• Parties: Almeda JOHNSON, Guardian and next friend of Myrtle Lewis, Plaintiff, v. PHYSICIANS ANESTHESIA SERVICE, P.A., a Delaware corporation, et al., Defendants. Almeda JOHNSON, Guardian and next friend of Myrtle Lewis, Plaintiff, v. Richard J. LENNIHAN, Jr., M.D., et al., Defendants.
• Court: U.S. District Court — District of Delaware

621 F. Supp. 908

Almeda JOHNSON, Guardian and next friend of Myrtle Lewis, Plaintiff, v. PHYSICIANS ANESTHESIA SERVICE, P.A., a Delaware corporation, et al., Defendants.

Almeda JOHNSON, Guardian and next friend of Myrtle Lewis, Plaintiff, v. Richard J. LENNIHAN, Jr., M.D., et al., Defendants.

Civ. A. Nos. 83-196 CMW, 84-80 CMW.

United States District Court, D. Delaware.

October 18, 1985.

Ben T. Castle, and David C. McBride, of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiff.

Victor F. Battaglia, Robert K. Beste, Jr., and Wayne Marvel of Biggs & Battaglia, Wilmington, Del., and Walter L. Pepperman and Donald E. Reid of Morris Nichols Arsht & Tunnell, Wilmington, Del., for defendant Physicians Anesthesia Service, P.A.

William D. Bailey, Jr., and Phoebe S. Young of Bayard, Handelman & Murdoch, P.A., Wilmington, Del., for defendant Peter J. Mette.

Warren Burt, Wilmington, Del., for defendant Richard W. Skinner.

F. Alton Tybout of Tybout, Redfearn, Casarino & Pell, Wilmington, Del., for defendant Richard J. Lennihan, Jr., M.D. and Richard J. Lennihan, Jr., M.D., P.A.

John A. Parkins and Terry Crain of Richards, Layton & Finger, Wilmington, Del., for defendant Wilmington Medical Center, Inc.

OPINION

CALEB M. WRIGHT, Senior District Judge.

These consolidated civil actions assert claims of medical malpractice arising from an operation performed on Myrtle Lewis on February 18, 1982. Almeda Johnson, Myrtle Lewis's sister, originally filed suit on April 5, 1983 as guardian and next friend of Myrtle Lewis, who at that time was incompetent and institutionalized at the Wilmington Medical Center in a comatose state.

On March 2, 1985, Myrtle Lewis died. Plaintiff now seeks to amend her complaints to assert against all defendants a claim arising from Myrtle Lewis's death under the Delaware Wrongful Death Act, 10 Del.C. §§ 3721-3725 (1982). This statute became effective December 1, 1982, between the time of the alleged malpractice and Myrtle Lewis's death. Plaintiff seeks damages under 10 Del.C. § 3724(d) on behalf of the spouse and children of Myrtle Lewis.

Defendants make three arguments in opposition to this amendment. First, Defendants contend that 10 Del.C. § 3704(b) (repealed Dec. 1, 1982), the wrongful death statute in effect at the time of the alleged wrongdoing, should control, not 10 Del.C. §§ 3721-3725, the wrongful death statute in effect at the date of death.

Second, Defendants contend that the statute of limitations for malpractice actions, 18 Del.C. § 6856, which runs for two years from the date of injury, bars any wrongful death action. Myrtle Lewis died three years and two weeks after the date of her operation.

Third, Defendant Wilmington Medical Center contends that Almeda Johnson, who is now the administratrix of Myrtle Lewis's estate, is not the proper party to bring a wrongful death action.

I.

No Delaware court has dealt with these issues. This Court sits in exercise of its diversity jurisdiction. As such, the Court, although providing a federal forum, must apply the substantive law of the appropriate state jurisdiction as expressed in that state's statutes and the decisions of its highest courts. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).¹ While Erie established the source of law for the decisions of federal courts in diversity cases, knowing the source of law does not guarantee that it can be ascertained with complete certainty. Federal courts in applying state law frequently encounter instances in which state law is not readily accessible because the state's highest court has not recently addressed a particular question of law. See Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280, 284 (3d Cir.1980).

"In the absence of an authoritative pronouncement from the state's highest court, the task of a federal tribunal is to predict how the court would rule." Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir.1981). Accurate forecasts of the decisions of a state's highest court must begin with an examination of the best available evidence. Evidence of state law comes in many forms: lower state court precedents, related decisions and considered dicta of a state's highest court, the policies that inform that court's application of certain legal doctrines, the decisions of courts in another jurisdiction and even legal treatises and articles. See McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662-63 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980); Brown v. Caterpillar Tractor Co., 696 F.2d 246, 250 (3d Cir.1982). The decisions of state trial courts are not to be regarded by federal courts as conclusive evidence of what the state's highest court would hold, although state trial court decisions should be accorded some weight. Commissioner v. Estate of Bosch, 387 U.S. 456, 464, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). Under some conditions, federal authority may not be bound even by intermediate state appellate court rulings, id., especially when such rulings bear certain indicia of unreliability. See National Surety Corp. v. Midland Bank, 551 F.2d 21, 32 (3d Cir.1977). The purpose of these prudential rules for ascertaining state law is not to afford federal courts unfettered discretion in deciding issues of state law, but to assure that litigants in a diversity action are not penalized by being deprived of the same flexibility that a state court could reasonably expect to show, Becker v. Interstate Properties, 569 F.2d 1203 (3d Cir.1977), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978), when the federal court is, in effect, sitting as a state court. Commissioner v. Estate of Bosch, 387 U.S. at 465, 87 S.Ct. at 1783.

II.

At the time of Myrtle Lewis's operation, 10 Del.C. § 3704(b) controlled all Delaware wrongful death claims. The statute read as follows:

Whenever death is occasioned by unlawful violence or negligence, and no suit is brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or if there is no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned.

The right of action created by § 3704(b) depended on certain conditions. First, the injured party must have died. Second, the injury must have caused the death. Third, the decedent must not have brought a personal injury action during his lifetime. Saunders v. Hill, 202 A.2d 807, 809 (Del. 1964), Perry v. Philadelphia, B. & W.R. Co., 77 A. 725 (Del.Super.Ct.1910), Coulson v. Shirks Motor Express Corp., 48 Del. 561, 107 A.2d 922 (1954).

The Supreme Court of Delaware held that, under § 3704(b), only the spouse of the deceased could bring an action if that spouse was alive, Reynolds v. Willis, 209 A.2d 760 (Del.1965) and that only monetary loss suffered as the result of death was recoverable as damages. Id. "Monetary loss" was later held not to include funeral expenses, Bennett v. Andree, 252 A.2d 100 (Del.1969), compensation for household and child care work, Abele v. Massi 273 A.2d 260 (Del.1970), or punitive damages, even in murder, Benson v. Lynch, 404 F.Supp. 8 (D.Del.1975).

In 1982, the General Assembly repealed § 3704(b). 63 Del.Laws c. 256, § 3. At the same time, it enacted an entirely new wrongful death statute, 10 Del.C. §§ 3721-3725. The new statute by necessity incorporates the first two conditions, death and causation, that were found in § 3704(b).²

Unlike its predecessor, however, the new statute allows a wrongful death action to be brought and damages to be awarded for the benefit of the spouse, parent and child of the deceased person, or if no spouse, parent or child qualifies, any person related to the decedent by blood or marriage. 10 Del.C. § 3724(a)-(c).

The new statute also allows, in determining the amount of damages, consideration of (1) deprivation of pecuniary benefits, as well as (2) loss of contributions for support, (3) loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children, (4) reasonable funeral expenses not to exceed $2,000, and (5) mental anguish of the surviving spouse and children of the deceased³ resulting from the death. 10 Del.C. § 3724(d).

III.

Myrtle Lewis's injury occurred prior to the date of enactment of the new wrongful death statute and her death occurred after its enactment. The crux of the issue is which wrongful death statute should apply. The parties can point to no cases from other jurisdictions on point. Many of the cases upon which they rely deal with situations in which both the injury and the death took place before an act's effective date or where the date of injury and death coincide. See, e.g., Gleason v. Huss, Inc., No. 80C-JL-9, (Del.Super.Ct. filed Apr. 4, 1983) (Balick, J.); Kleibrink v. Missouri-Kansas-Texas R. Co., Inc., 224 Kan. 437, 581 P.2d 372 (1978); Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974); Wittel v. Baker, 10 Md.App. 531, 272 A.2d 57 (Md.Ct.Spec.App.1971). In Gleason, for example, Judge Balick ruled that the new Delaware wrongful death statute did not apply to a wrongful death action filed two and one half years prior to the statute's effective date.

Other cases cited involve intervening amendments to a wrongful death statute, original parts and the substance of which remained intact throughout the dates of both injury and death. See, e.g., Bradley v. Knutson, 62 Wis.2d 432, 215 N.W.2d 369 (1974) (dicta); Slate v. City of Fort Worth, 193 S.W. 1143 (Tex.Civ.App.1917); Quinn v. Chicago, M. & St. P.R. Co., 141 Wis. 497, 124 N.W. 653 (1910). The instant case, however, involves the striking in its entirety of Delaware's existing wrongful death statute and the enactment of a new wrongful death statute that bears little resemblance to its predecessor, but for the requirement that someone...