UNIVERSITY OF MARYLAND SCHOOL OF LAW. LEGAL METHOD-CIVIL PROCEDURE (3 Hours) Day Division Wednesday, December 18, 1991

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1 UNIVERSITY OF MARYLAND SCHOOL OF LAW LEGAL METHOD-CIVIL PROCEDURE (3 Hours) Day Division Wednesday, December 18, 1991 Professor Condlin - Section B 9:10 a.m. - 12:10 p.m. No. Signature: Printed Name: INSTRUCTIONS: Sign and print your name in the blanks above. Put the number found above on the outside cover of each of your blue books and on your envelope. Do not put your name on the blue books or envelope at any place. Upon completion of the examination put your answers in the envelope, fasten the envelope, write the course and instructor names on the outside, and hand it in to the exam administrator. Be sure to enclose all of your answers -- you will be graded only on what is inside the envelope. Hand in the exam question separately. There is one question, with five parts, weighted unequally, and you should allocate your time accordingly. A superior answer to one part, produced by spending a disproportionate amount of time on it, probably won't compensate for a weak answer to another, produced by not having enough time to finish it, though time should not be a problem. The question is long and you should read it carefully. It suggests issues more than it develops them, and this places the burden on you to determine what is needed to provide complete answers. If you cannot resolve questions fully because you lack necessary information, say what additional information you would need, though saying what else you need should not be the most prominent feature of your answers. Throughout, it would help to err on the side of including more rather than less. Work continuously and don~t spend time worrying about whether you will finish. Avoid long descriptive statements about law in general. Just solve the problems presented by the fact patterns. THIS IS AN OPEN BOOK EXAM. YOU MAY BRING ANY MATERIALS YOU LIKE TO THE EXAM WITH YOU.

2 Maureen Sart, in her capacity as Administratrix of the Estate of Maurice Sart, Plaintiff, v. Wheeling Memorial Hospital, a West Virginia Public Corporation and Sol E. Airee, M.D., individually, and Sol E. Airee, M.D., P.C., a West Virginia Professional Corporation, Defendants. Maureen Sart (plaintiff), Administratrix of the Estate of Maurice Sart, her husband, appeals from a judgment of the United States District Court for the District of West Virginia dismissing her wrongful death, negligence and libel claims for lack of personal jurisdiction over the defendants. She also appeals from: 1) the denial of her motion to remand the claims to Pennsylvania Superior Court, or alternatively, to refer the wrongful death and negligence claims to the Pennsylvania Health Claims Arbitration Panel (the Panel); 2) the denial of her motion for summary judgment based on a Panel decision in her favor; and 3) the granting of defendants' motion to transfer the entire action to West Virginia. On June 9, 1987, plaintiff's husband sustained injuries in a diving accident while on a camping trip in West Virginia. He was admitted to Wheeling Memorial Hospital in Wheeling, West Virginia, where he was treated by Sol E. Airee, M.D. (Airee). Airee resides in Valley Grove, Pennsylvania, and maintains separate offices for the general practice of medicine in both Wheeling and Valley Grove. He divides his time unevenly between the two locations, with about 80% of his practice conducted out of the West Virginia office, and the remaining 20% out of the Pennsylvania office. He sees a patient in either one office or the other, but never in both. He is on the staff of hospitals in each town, but refers his Pennsylvania patients only to Valley Grove Hospital, and his West Virginia patients only to Wheeling Memorial. This is not an unusual arrangement. The two towns are on the border between Pennsylvania and West Virginia and are only a few miles apart. Most physicians in the area divide their

3 practices in similar ways. On the basis of x-rays taken in the Wheeling hospital, Airee diagnosed Sart's injury as a neck sprain, and treated him accordingly. After almost two weeks in the Wheeling hospital, Airee arranged for Sart's transfer to St. Francis Hospital in Pittsburgh, Pennsylvania, Sart's home city. From his West Virginia office, Airee telephoned Sart's treating physician at St. Francis to set up the transfer, and subsequently mailed Sart's x-rays and other medical records, along with a summary of his (Airee's) diagnostic conclusions, to the Pittsburgh hospital. The transfer arrangements and dispatch of medical records were Airee's only direct contacts with Pennsylvania in conjunction with his treatment of Sart. He saw Sart only in the Wheeling hospital, and kept Sart's records and charts in his (Airee's) Wheeling office. On June 22, 1987, Sart was admitted to St. Francis Hospital. Initially, the course of treatment begun in Wheeling was continued. But when Sart failed to improve additional medical tests were performed. They revealed that Sart had suffered a fracture of the odontoid process, and in retrospect, should have been treated differently from the beginning. Given the length of time in which it had gone untreated, Sart's Pittsburgh doctors decided that only orthopedic surgery could correct his injury. During the surgery, performed at St. Francis in July, 1987, Sart's left vertebral artery was entered, causing blood losses and neurological deficits which eventually resulted in his death on August 11, Plaintiff asserts no claim against St. Francis hospital, or those performing surgery on the decedent, in the present action. On June 25, 1989, plaintiff, as administratrix of her husband's estate, filed the present action in Pennsylvania Superior (state) Court, against both Airee (individually and in his status as a West Virginia professional corporation), and the Wheeling Memorial Hospital, alleging claims against each under the Pennsylvania wrongful death statute, and the state's common law doctrines of both negligence and libel. (Wrongful death and negligence are proved in the same way, and with the same evidence, but the plaintiff alleged both claims so as to avoid certain Pennsylvania restrictions on suits by representatives of estates. Those restrictions are not involved in this proceeding.) Plaintiff's negligence claim is based on a presumption of negligence created when Airee and the Wheeling hospital, in their treatment of Sart, failed to follow certain procedures required by the federal Medicare Act. Or, at least this is what the plaintiff has alleged and must prove. Apart from this single failure, plaintiff acknowledges that defendants performed their respective tasks in accordance with the highest standards of the medical profession. The libel claim is based on public statements each defendant made at the time of Sart's admission to Wheeling

4 Memorial, to the effect that Sart "must have been on drugs" for the accident to have happened. 4 Upon their filing in Pennsylvania Superior Court, plaintiff's wrongful death and negligence claims were automatically referred to the Pennsylvania Health Claims Arbitration Panel. The Superior Court retained jurisdiction of the libel claim. The Panel was established in 1985 by the Pennsylvania Malpractice Reform Act, and under the terms of that Act, all health care related claims filed in Pennsylvania state courts after January 1, 1986, must first be referred to the Panel for binding arbitration. Panel hearings are informal, conducted in a manner understandable to one not trained in law, and the Pennsylvania Rules of Evidence and Civil Procedure do not apply. Parties are encouraged to present claims themselves, though they may use lawyers if they choose, and are allowed to introduce any witness testimony and documentary evidence they think will be helpful, as long as they notify all interested parties before the hearing of the witnesses and documents they plan to use. Litigants unsatisfied with a Panel decision have thirty days in which to appeal to the Pennsylvania Superior Court. On appeal, the Superior Court is required to conduct a new and complete evidentiary hearing, and make a final judgment on the merits. On appeal, the Panel decision must be introduced into evidence in the Superior Court, but it has no binding effect. A party losing in Superior Court may appeal to the Pennsylvania Supreme Court, whose decision is final. The Panel is described in the Malpractice Reform Act as an adjunct agency of the Superior Court. Claims pending before the Panel are considered to be pending before the Superior Court, and unappealed decisions of the Panel have the full force and effect of Superior Court judgments. The Pennsylvania legislature created the Panel system to divert as many health care claims as possible from the state court system, so as to conserve judicial resources and free up tax dollars for use on other pressing social problems. It believed that the Panel process would be fairer, cheaper and more responsive to the needs of individual litigants than the more cumbersome and less flexible process of formal courts. The freedom to consider all evidence the parties believed relevant, the right to allow parties to argue their own claims, and the power to tailor decisions to the parties' individual situations, rather than frame them in the "win-lose" categories of a judicial decree, it was thought, would make Panel decisions more legitimate than court decrees, and thus cause them, even when unfavorable, to be more readily accepted. This, in turn, would reduce the demand for court adjudication of health care claims and save limited judicial resources. While studies of Health

5 Claim Panels in other states had indicated that such Panels were slightly more pro-defendant than traditional juries, the Pennsylvania legislature thought this was a small enough price to pay for the Panel's significant advantages. After the present action was filed and plaintiff's wrongful death and negligence claims referred to the Panel, but before the Panel had taken any action on those claims, defendants removed the entire case to the United States District Court for the Western District of Pennsylvania. The plaintiff immediately moved to remand to Pennsylvania Superior Court, on the ground that removal had been improperly granted. This motion was denied. She then moved to have the District Court refer the wrongful death and negligence claims to the Health Claims Panel for binding arbitration, as required by Pennsylvania law, but this too was denied. The defendants then filed a joint motion to transfer the entire case to the United States District Court for the District of West Virginia. Plaintiff opposed this motion, but it was granted. Subsequent to the transfer, but before the West Virginia District Court had taken any action in the case, the Pennsylvania Health Claims Panel notified the parties that it would conduct a hearing on plaintiff's wrongful death and negligence claims. Rather than risk the entry of an adverse judgment, all defendants (represented by their lawyers), voluntarily participated in this hearing, each defendant presenting its full defense on the merits. Again, before the West Virginia District Court had taken any action, the Panel found each defendant guilty of both wrongful death and negligence, and held them jointly and severally liable to the plaintiff for $1,000,000 in damages. Two months later, during which nothing happened in the case, plaintiff filed a motion for partial summary judgment in the West Virginia District Court, arguing that defendants were now estopped from relitigating the wrongful death and negligence claims because those claims had been fully and finally adjudicated by the Health Claims Panel. The District Court denied this motion. Defendants then moved jointly to dismiss plaintiff's suit, on the ground that the Pennsylvania Superior Court did not have personal jurisdiction over defendants at the commencement of the action. Again, plaintiff opposed the motion, but it was granted. Plaintiff now appeals from this almost unanimous string of defeats. Please tell me how the United States Court of Appeals for the Third Circuit should rule on each of the following

6 questions. Whenever your answers are different for different defendants or claims, discuss the defendants and claims separately. Explain your answers fully. THE QUESTIONS ARE WEIGHTED DIFFERENTLY. ALLOCATE YOUR TIME AND DISCUSSION ACCORDINGLY. a) Should plaintiff's motion to remand to the Pennsylvania Superior Court have been granted? (35%) 8 b) Should plaintiff's motion to refer the wrongful death and negligence claims to the Pennsylvania Health Claims Arbitration Panel have been granted? (15%) 4 c) Should defendants' joint motion to transfer to the West Virginia District Court have been granted? (10%) 3 d) Should plaintiff's motion for partial summary judgment have been granted? (15%) 4 e) Should defendants' joint motion to dismiss for lack of personal jurisdiction have been granted? [Assume that limits of the relevant long arm statute goes to the due process clause of the 14th amendment.] (25%) 6