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HomeMy WebLinkAbout13-5904 Supreme CoprtofPennsylvania Cour of Commou Pleas For ProdnmotaT Uve Onlr: CyilCover-Sbeet Decker No CU FRLAND County i 3. 59011 &OJ The mfi....wii on collected on this lone is used"'fell fin enure adminislralion pmpu.ec This Jinni down not nupplemenl or replace the filing"O servlee of pleadi".c'or other papers as required bi lou'or rules of,ou,I Commencement of Action: S, El Complaint ❑ Writ of Summons 17 Petition ❑ I ransfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiffs Name: Lced Defendant s Name: Eric P. Fiedler, M.D. Shady Grove Fertility T Dollar Amount Requested: ❑within arbitration limits I Are money damages requested? ❑Yes El No (check one) []outside arbitration limits 0 N Is this a Class Action Suit? ❑Yes ❑x No Is this an MDJAppeal? ❑ Yes El No A Name of Plaintiff'Appellanfs Attomev: Andrew H. Foulkrod of Foulkrod Ellis, P.C. ❑ Check here it son hose no attorney fare it Sclf-Represented jPto Sul Litiganp Nature of the Case: Place an"X'to the left of the ONE case category that most accurately describes your PRIMARPCASE. Ifyou are making more than one type of claim, check the one that you consider most important. TORT mo nor hulvde Iona Torre CONTRACT p1o»ormrl,deJ rca.emsr CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection:Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection:Other ❑ Board of Elections ❑ Nuisance _ _ ❑ Dept.of Transportation ❑ Premises Liability ❑ Slatutop Appeal:Other S ❑ Product Liability (does not include ❑ Employment Dispute -- moss lor ry E El SEnder;LibeV Dcfmnation Discrimination C ❑ Other: ❑ Employment Dispute:Other ❑ Zoning Board T _ ❑ Other: 1 _ ❑ Other: O MASS TORT ❑ Asbestos N ❑ Tobacco ❑ Toxic Tort-DES ❑ 'I oxic Tod- Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Other: ❑ Eminent ❑ Common Law/Statutory Arbitration B ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ Non-Domestic Relations ❑ Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure:Commercial ❑Quo W'arranto ❑ Dental ❑ Partition ❑Replevin ❑ Legal ❑ Quiet Title a❑Other: ❑ Medical ❑ Other: Preliminary Injunction ❑ Other Professional: Updated 11112011 FOULKROD ELLIS Professional Corporation - i _ c�;. Andrew H. Foulkrod, Esquire ° N�C ( N A! Attorney I.D. #77394 .1 i,a: - 4000 Market Street UEHLNirJ Ctrs; Camp Hill, PA 17011 F'ENNSYLVP.NIA Phone: (717) 909-7006 Attorney for Petitioner Fax (717) 909-6955 Eric P. Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., CIVIL AC I ION - EQUITY Petitioner v. NO: 13 S9r9l/ Shady Grove Fertility, Respondent NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages-you must lake action within twenty (20) days after this Complaint and Notice are served, by entering written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so,the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Petitioner. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOLJ DO NOT I IAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER. THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE. Cumberland County Bar Association j 32 S. Bedford Street Carlisle, PA 17013 1123 -7�,d. 1-800-990-9108 717-249-3166 �N a94��S3 FOULKROD ELLIS Professional Corporation Andrew H Foulkrod, Esquire Attorney I . #77394 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Attorney for Petitioner Fax (717) 909-6955 Eric P. Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., CIVIL ACTION - EQUITY Petitioner V. NO: Shady Grove Fertility. Respondent VERIFIED PETITION FOR PRELIMINARY INJUNCTION OF ERIC P. FIEDLER, M.D. Petitioner, Eric P. Fiedler. M.D., by and through his counsel, Andrew H. Foulkrod. Esquire. Foulkrod Ellis, P.C.. hereby requests that this Honorable Court issue a preliminary injunction.and for the determination thereof grant certain pre-hearing discovery and schedule a hearing. and in support thereof avers as follows: 1. The Parties I. Petitioner. Eric P. Fiedler. M.D. ("Dr. Fiedler-), is a physician and fellowship trained,board-certified specialist in the field of Reproductive Endocrinology and Infertility, who at relevant times delineated below operated an infertility and reproductive medicine practice.I ambulatory surgical center.' and IVF laboratory, at 2708 Commerce Drive_ Harrisburg. Dauphin County. Pennsylvania, 17110. Advanced Center for Infertility and Reproductive Medicine, RPC(Dr. Fiedler's"clinical practice'). 'Center for Reproductive Surgery, LLC(Dr. Fiedler's"ambulatory surgical center'). ;Central Penn Reproductive Laboratory, LLC(Dr. Fiedler's "laboratory"). unique for that patient, prepared with media, and scaled in her desiccator jar, which was put on her incubator shelf. 7. On day I.eggs were evaluated for fertilization, and those fertilized normally were transferred to different media. On day 3, embryos were evaluated for development and were transferred to different media as appropriate. Embryo development was recorded in a binder which was maintained in the laboratory. W hen embryos were of proper maturity, I or 2 (or rarely 3 in older women) were transferred to the patient's uterus, and the remainder were cryopreserved. 8. For cryopreservation, straws (to contain embryos), a goblet (to contain straws) and a cane(to hold goblets).which were all unique for that patient, were labeled, as follows: Straw: MR#. straw number_number of embryos in that straw, date frozen. Goblet: name, MR#, date frozen (initial). Cane: number. The embryos were then transferred into the straws, typically 1 to 3 embryos per straw. The straws were frozen in liquid nitrogen and placed into the goblet, which clicked onto the cane. The cane was placed into a plastic sleeve that prevents the goblets from dislodging from the cane. The cane was- placed in a canister (not unique to the patient), which was numbered by the manufacturer, and stored in a tank, which was also numbered. Along with labeling the straw. goblet and cane, an Embryo Inventory Card was recorded as follows: the patients name and MR#_ straw numbers. and for each straw number: number of embryos in that straw, date frozen (with type of WE and developmental da)): cane numbcr, canister number: and tank number. All of the foregoing was performed, recorded and maintained in Dr. Fiedler's laboratory. 3 B. IVF Outcome Report used for Dr. Fiedler's clinical practice 9. There is a form, entitled "IVF Outcome Report,"that was used for Dr. Fiedler's clinical practice as a summary of I V F outcomes (from egg retrieval, development and fertilization to embryo development transfer to the patient's uterus and cryopreservation). 10. The IVF Outcome Report was housed in the patient's clinical chart, which was stored in Dr. Fiedler's clinical practice office. not in the laboratory. and consequently was often not available to laboratory personnel while laboratory work was being performed and recorded in the laboratory. Rather, laboratory personnel would often document on the IVF Outcome Report outside of the laboratory. in the clinical practice office. after the laboratory work had been completed. 11. Given the purpose and use of the IVF Outcome report,and given that it was often times documented outside of the laboratory, in the clinical practice office. after the laboratory work had been completed, it was never intended or used as an inventory, for cryopreserved embryos. 12. Any error in documentation on the IVF Outcome Report, made outside of the laboratory, in the clinical practice office, after laboratory work had been completed. would not equate to a mislabeling of embryos or an error in the inventory of cryopreserved embryos. Rather. since labeling and inventory occurred in the laboratory, any mislabeling or error in inventory would need to involve those records. i.e.,the straw, goblet. cane and Embryo Inventory Card. 4 C. Patient x I. Labeling of the Straw(s), Goblet and Cane and Recording the Embryo Inventors' Card in Dr. Fiedler's laboratory 13. The procedure for IVF,eryopreservation of embryos, labeling and recording inventory in Dr. Fiedler's laboratory, set forth in section 11. A. above, was followed for patient x. 14. By the end of September of 2011, by reason of medical disability (orthopedic). Dr. Fiedler was compelled to close his ambulatory surgical center and laboratory.and therefore no longer performed IVF, eryopreservation of embryos, or transfer to the uterus of cryopreserved embryos. 15. Sometime thereafter. desiring cryopreserved embryo transfer to her uterus, patient x's frozen embryos were shipped from Dr. Fiedler's laboratory to Shady Grove.° 16. At Shady Grove. patient x's straw(s) were thawed in preparation for embr)o transfer to her uterus. Prior to such transfer, all of the labeling on the thawed straw(s).. goblet and cane was compared with the Embryo Inventory Card, and it matched. 17. Based on the foregoing labeling and inventory match. there was no potential that patient N'S embryos had been mislabeled. or that there was any error in inventory. 2. An error was made in the subsequent documentation, outside of the laboratorv, in the clinical practice office, after the laboratory work had been completed, on the IVF Outcome Report' 18. Prior to embryo transfer to the uterus, Shady Grove's embryologist called Dr. Fiedler and reported that a portion of the documentation on patient x's 1 V F Outcome Report did not match with the labeling and inventory identified in section C. 1. above. °This is not the first instance in which embryos cryopreserved in Dr. Fied Ier's laboratory were shipped to Shady Grove for transfer to a patient's uterus. s Patient x is the only patient for whom there was an error made on the IVF Outcome Report. S 19. Shady Grove has told Dr. Fiedler that although the Embryo Inventory Card recorded the number of straws. with embryos per straw as follows: 1-2. 2-2, 3-4. 4-4,the l V F Outcome Report had been documented as follows: 1-2, 2-13-2. 4-2, 5-4. 20. Based on the information received from Shady Grove's embryologist, Dr. Fiedler understood and explained how and why the error was made in the documentation on the IVF Outcome Report.' Shady Grove's embryologist expressed understanding of Dr. Fiedler's explanation. and raised no concern with him. That was the last communication between Shady Grove and Dr. Fiedler regarding this issue until after the events set forth at paragraph 26 below. 21. 1 he error was limited to the documentation of numbers (straws and embryos per straw) for one patient. in that patient's IVF Outcome Report, done outside of the laboratory, in the clinical practice office, in the clinical practice office chart, after the laboratory work (i.e., eryopreservation_ labeling and inventory) had been completed: thus, it does not equate to a mislabeling or an error in inventorv. Nor does it involve patient x's identifiers, much less any other patient: thus, it does not equate to a misidentification or mix-up of embryos. 22. Even though patient x's Embryo Inventory Card and IVF Outcome Report were provided by Dr. Fiedler's laboratory and clinical practice to Shady Grove,' Shady Grove has refused to return copies to Dr. Fiedler for inspection, even with patient identifiers redacted. See entails with counsel for Shady Groves. attached as Exhibit"A:' Thus, Dr. Fiedler has not had an opportunity to inspect said records. which he seeks to verify his understanding set forth above. s Dr. Fiedler also explained the process of embryo labeling(set forth in paragraph 8. above) in contrast to subsequent documentation on the IVF Outcome Report(set forth in section II. B.above). ' or Fiedler believes that he may have provided subsequent copies of patient x's Embryo Inventory Card and IVF Outcome Report to Shady Grove. 6 3. Shadv Grove transferred patient x's thawed embrvos to her uterus 23. Patient x was not informed by Shady Grove that there was an issue with regard to the labeling or inventory of her embryos, because there was no such issue. She was told that there was an issue with some paperwork. but that it was nothing serious. 24. Given that the embryo labeling and inventory matched, Shady Grove transferred patient x's thawed embryos to her uterus. D. Closure of Dr. Fiedler's clinical practice 25. In May of 2012. by reason of medical disability (orthopedic). Dr. Fiedler was compelled to close his clinical practice. In connection therewith, in October of 2012 he transitioned his practice and his patient's charts to Shady Grove. As of that time, Shady Grove had not raised any concern with Dr. Fiedler regarding labeling, inventory or transfer to the uterus of embryos cryopreserved in his laboratory. III. Shady Grove's conduct which is sought to be enjoined 26. In July of 2013, Dr. Fiedler first learned that Shady Grove had been misrepresenting, to multiple patients, that several other of his patients embryos had been "mislabeled." leading to Shady Grove's unilateral decision not to transfer to the uterus any embryos that had been cryopreserved in his laboratory. 27. Shady Groves representations are false for the following reasons: a. Patient x is the only patient for whom there was any issue with documentation, and b. Patient x's embryos were not mislabeled. 7 28. Moreover, the clear implication of Shady Grove's misrepresentation,that there has been embryo misidentification and/or mix-up, is patently wrongful. 29. Shady Grove's unilateral decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler s laboratory is unwarranted because: a. The facts upon which the decision is allegedly based are not true, since embryos were not mislabeled. much less for multiple patients: and. In. The decision is not based on patient x, as evidenced by the fact that patient x was not informed by Shady Grove that there was an issue with regard to the labeling or inventory of tier embryos:. rather, because the embryo labeling and inventory matched. Shady Grove transferred patient x's thawed embrvos to her uterus. 30. Instead, Shady Grove has financial incentive not to use embryos cryopreserved in an outside laboratory, and instead pursue fresh IVF, as follows: a. There is increased profit on fresh IVF as opposed to cryopreserved embryo transfer to the uterus: and, b. The ability to market higher IVF success rates (arising out of the fact that couples with proven success (they became pregnant and therefore still have preserved embryos) are being routed back for fresh 1 V F). 31. Shady Grove's misrepresentations and unilateral decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory is recklessly prejudicial, in that embryos arc in immediate jeopardy of being unnecessarily and irreparably discarded," in favor of the pursuit of fresh lV F, at emotional and financial cost to patients, and with exposure of Dr. Fiedler to unnecessary and unquatttifiable claims for civil liability. "Dr. Fiedler has been advised of intent and direction to discard embryos based on Shady Grove's representations. 8 IV. Relief Requested 32 It is respectfully requested that an injunction be issued, as follows: a. prohibiting Shady Grove from representing that embryos were mislabeled in Dr. Fiedler's laboratory; or, in the alternative. requiring that Shady Grove. in disclosing the events surrounding patient x (to patients seeking transfer to the uterus of embryos cryopreserved in Dr. Fiedler's laboratory), provide full disclosure. in writing, with an offer for those patients to call Dr. Fiedler if desired; b. prohibiting Shady Grove from conveying (to patients seeking transfer to the uterus of embryos cryopreserved in Dr. Fiedler's laboratory) a unilateral decision not to transfer such embryos to the uterus; or, in the alternative, requiring that Shady Grove offer the option to have such embryos transferred to the uterus elsewhere; and. C. for those patients to whom Shady Grove has represented that embryos were mislabeled in Dr. Fiedler's laboratory. and/or a unilateral decision not to transfer to the uterus embryos cryopreserved in Dr. Fiedler's laboratory, has been conveyed, requiring that Shady Grove provide full disclosure,in writing, of the events surrounding patient x, with an offer for those patients to call Dr. Fiedler if desired, and requiring that Shady Grove offer the option to have embryos cryopreserved in Dr. Fiedler's laboratory transferred to the uterus at Shady Grove. or in the alternative, elsewhere. 33. It is respectfully requested that a hearing be scheduled on the above issues. 9 34. It is respectfully requested that, within a reasonable time prior to said hearing, Shady Grove produce: a. copies, and originals for inspection, of patient x's Embryo Inventory Card(s) and IVF Outcome Report(s) provided by Dr. Fiedler's laboratory and clinical practice to Shady Grove; b. copies of patient x's medical records provided by Dr. Fiedler's practice and/or laboratory to Shady Grove; C. copies of patient x's medical records created at Shady Grove; d. copies of all documentation, electronic media and/or records regarding patient x; e. copies of all documentation, electronic media and/or records regarding Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory; and, f. topics of all documentation, electronic media and/or records regarding communication with Dr. Fiedler regarding patient x and/or Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory. 35. It is respectfully requested that custody of the charts of Dr. Fiedler's former patients, in the form in which they were transitioned by Dr. Fiedler to Shady Grove, he transitioned to a third party facility, in order to preserve the documentation as it existed at the time of transition by Dr. Fiedler to Shady Grove. 36. The foregoing requests, which are designed to be reasonable and equitable to all involved parties, were made to Shad? Grove by correspondence dated September 17,2013 (see 10 correspondence attached as Exhibit"B°J but have been denied by Shady Grove, citing only the need for patient authorization (see email attached as Exhibit°C'.) 37. Dr. Fiedler meets the legal requirements for a preliminary injunction, as follows: a. he has acted quickly. his ease is brought in good faith, and the relief he seeks is required to achievejustice and fairness: b. without injunctive relief; immediate and irreparable harm will result, changing the status quo: said harm would be greater if relief is delayed or not granted than if an injunction is issued: and the issuance of an injunction as requested will not substantially harm Shady Grovc or adversely affect the public interest; and, C. the injunctive relief sought is reasonably suited to abate the offending activity. WHEREFORE, Petitioner, Eric P. Fiedler, M.D., respectfully requests that this Honorable Court issue a preliminary injunction, and for the determination thereof grant certain pre-hearing discovery and schedule a hearing, in the form of the attached proposed Order. Respectfully submitted. FOULKROD BLLIS Profess'c nul C rporation Date: By: Andrew H. Foulkrod, Esquire Court I.D. No. 77394 11 -rH,E f 41 Andrew Foulkrod From: White, Claude[claude.white @integramed.com] Sent: Saturday, September 14, 2013 12.35 PM To: Andrew Foulkrod Subject: RE Eric Fiedler, M.D. We don't provide patient files, even de-identified, without a patient's consent since the reason doesn't'fall within the three exceptions under HIPAA. Claude E. White I Vice President 8 General Counsel IntegraMed® 2 Manhattanville Rd. I Purchase. NY 10577 P. 914-251-4142 1 F. 914-253-80101 C 914-318-8382 c I a ud e.wh ite(cDi ntea ramed.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS A PRIVILEDGED ATTORNEY- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION. DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM. THANK YOU From: Andrew Foulkrod [mailto:Andrew(afoulkrod.com] Sent: Friday, September 13, 2013 4:36 PM To: White, Claude Subject: RE: Eric Fiedler, M.D. Mr. White, To avoid any HIPAA concern,would you please forward copies of the IVF Outcome Report(s) and card(s) for the single event which was the subject of our discussion, with patient identifiers redacted? Andy From: White, Claude [mailto:claude.white( )integramed.com] Sent:Tuesday, September 03, 2013 4:15 PM To: Andrew Foulkrod Cc: Mottla, Gilbert; Portmann, Marc Subject: Eric Fiedler, M.D. Andy, 1 This is confirm our telephone conversation last Thursday,August 2Sir during which we discussed Dr. Fielder obtaining certain information from Shady Grove patient files who were former patients of Dr. Fiedler. After considering the issue of disclosing information from patient records,we have determined that the proper way of providing the requested information(consistent with HIPAA regulations) is for the applicable Shady Grove patients to give Shady Grove consent for the release of certain information from their clinical records to Dr. Fielder.Accordingly,we request that such authorization be obtained by Dr. Fielder from those patients for whom Dr. Fiedler has questions about the alignment of the embryology inventory lists with the labeling of the straws and/or canes containing the biological materials. Upon receipt of such authorizations,Shady Grove will then provide the information to Dr. Fielder. Claude E. White I Vice President &General Counsel IntegraMed® 2 Manhattanville Rd. I Purchase. NY 10577 R 914-251-4142 I F. 914-253-8010 I C 914-318-8382 cla ude.wh itel�D integra med.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS A PRIVILEDGED ATTORNEY- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT. YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM. THANK YOU 2 -7Z- FOULKROD ELLIS ATTORNEYS AND COUNSELORS AT LAW 4000 MARKET STREET CAMP HILL,PENNSYLVANIA 17011 PHONE(717)909-7006 FAX(717)909-6955 ANDREW H. FOULKROD andrew @foulkrod.com Phone Extension:4 September 17, 2013 VIA EMAIL AND FIRST CLASS MAIL Claude E. White, Esquire Vice President and General Counsel IntegraMed America, Inc. Two Manhattanville Road Purchase, NY 10577 Re: Eric Fiedler, M.D. Our File No. 3812 Dr. Mr. White: Please allow this correspondence to summarize the events which have been the subject of our recent communications, and set forth requests for what we perceive to be an equitable course of action going forward. In July, Dr. Fiedler learned that Shady Grove has been representing, to multiple sets of patients, that several other of his patients' embryos had been "mislabeled,"and therefore Shady Grove would not transfer any embryos from his practice. By letter of August 15,2013, you similarly related that Dr. Fiedler's patients have had embryos delivered to Shady Grove for transfer, and that "the labeling of the [embryos] is not matching up with the inventory." Citing a concern over whether "the [embryos] match the patients,"you confirmed that Shady Grove is unwilling to transfer embryos from Dr. Fiedler's practice. On August 29, 2013, during a conference call with Shady Grove representatives Marc Portmann and Gil Mottla, the following specific explanation was offered as the basis for the foregoing representations. There was an isolated event where the documentation on the IVF Outcome Report pertaining to a set of patients' embryos preserved at Dr. Fiedler's practice on 12/19/10 (8 embryos) and 12/20/10 (4 embryos) did not match the embryo inventory card. Specifically, the embryo inventory card (which contained cross-outs) identified the 4 straws that existed, as follows(straw number= number of embryos in straw): 1=2, 2=2, 3=4, 4=4. The IVF Claude E.White,Esquire September 17,2013 Page 2 Outcome Report read as follows: 1=2, 2=2, 3=2, 4=2, 5=4. Dr. Fiedler was contacted at the time by the Shady Grove embryologist who recorded Dr. Fiedler's explanation that"there were not enough straws to do 5" (which explanation, although partially recorded, makes sense). Embryos were thawed, labeling on the straws and goblet matched with the embryo inventory card, and embryos were transferred to the female patient. However, Shady Grove later concluded, citing in part its reluctance to use embryos frozen outside of Shady Grove, and citing in part the foregoing documentation, that no embryos from Dr. Fiedler's practice would be implanted in the future. Accordingly, no such embryos were subsequently received. Few(less than 5) sets of patients have requested embryo transfer and thus been informed of this issue and Shady Grove's decision. Citing privacy issues, you have declined our request to provide the foregoing documentation, in the form of copies any IVF Outcome Report(s) and embryo inventory card(s) that were originally provided to you by Dr. Fiedler relating to this event. We have since requested that you provide these copies with any and all patient identifiers redacted, and have again been declined. To summarize what we understand from our discussion with you: (1) the embryo inventory card was correct in the information that it contained (albeit, with some cross outs), (2)the information on the embryo inventory card matched the labeling on the goblet and straws that contained the embryos, (3) there was never any mismatch among the patient's identity, and the patient identifiers on the embryo inventory card, the embryo containers, and the IVF Outcome Report, and (4) Shady Grove did, in fact, thaw and transfer embryos to the patient's uterus with the desire and intent that a pregnancy would result. The IVF Outcome Report is used as a summary sheet for IVF outcomes, primarily to document the progression of oocyte and embryo development in the chart and to summarize this along with certain clinical egg retrieval and embryo transfer information, for use by clinical staff. It was provided to Shady Grove for this purpose. At Dr. Fiedler's practice the IVF Outcome Report was maintained in the patients office chart at all times beyond the initial entry on this form after the oocyte retrieval. Consequently, it was often located somewhere in the office and not available to the laboratory personnel during the embryo cryopreservation procedure when embryos are being labeled and inventoried on the embryo inventory card. Thus, it was never used or intended for the purpose of embryo inventory. This would have been explained to the Shady Grove embryologist by Dr. Fiedler along with his explanation that was afforded of why there was a discrepancy between the IVF Outcome Report and the embryo inventory card. We are certain that the cross outs on the embryo inventory card and the discrepancies on the IVF Outcome report are logically explained, consistent with what was partially recorded by your embryologist in conversation with Dr. Fiedler concerning the situation. Claude E. White,Esquire September 17,2013 Page 3 For the foregoing reasons, the events that have been described are not properly characterized as a "mislabeling'of embryos. Nor should the foregoing properly give rise to a unilateral decision not to use any embryos frozen in Dr. Fiedler's practice: it did not even prevent Shady Grove from transferring the embryos in the event at issue, which was isolated, and did not occur with several patients as has been represented. At the very least, we strongly believe that patients seeking transfer of embryos from Dr. Fiedler's practice, past and future, should be provided full written disclosure of these events with an offer to call Dr. Fiedler, rather than a shorthanded verbal mischaracterization, and be afforded a choice of whether to have their embryos transferred at another facility. Additionally, Dr. Fiedler is seeking the transfer of custody the charts of his patients, in the form in which they were transferred by Dr. Fiedler to Shady Grove, to a third party facility, in order to preserve the documentation as it existed at the time of transfer. We feel that these requests are reasonable, and we are prepared to make such requests to the Court, if necessary. 1 would appreciate it if you would let us know if you will work with us in these respects. Since I our , And-II�krod cc: F.ric Fiedler, M.D. (via email and first class mail) Andrew Foulkrod From: White, Claude[claude.white @integramed.com] Sent: Monday, October 07, 2013 9:13 AM To: Andrew Foulkrod Subject: RE: Eric Fiedler, M.D. Sorry I didn't communicate with you earlier. The physicians at Shady Grove continue to stand by their position that they will only provide information to Dr. Fiedler based on authorization from patients. They won't provide information without consent of patients Involved. Claude E. White I Vice President 8 General Counsel IntegraMed@ 2 Manhattanville Rd. I Purchase, NY 10577 P: 914-251-4142 I F 914-253-8010 I C. 914-318-8382 cla a de.wh ite(d i nte.gramed.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS A PRIVILEDGED ATTORNEY- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION. DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM. THANK YOU From: Andrew Foulkrod [mailto Andrew@foulkrod com] Sent: Monday, October 07, 2013 8:27 AM To: White, Claude Subject: RE: Eric Fiedler, M.D. Claude, Would you please provide an update or timeframe within which you expect to respond? Andy From: White, Claude [claude.white @integramed.com] Sent: Tuesday, September 17, 2013 12:20 PM To: Andrew Foulkrod Subject: RE: Eric Fiedler, M.D. Thank you. I will review with Shady Grove representatives and get back to you. 1 I. Respondent, Shady Grove Fertility ("Shady Grove"), is an infertility and reproductive medicine practice, which currently operates at 355 N. 21" Street. Suite 301, Camp Ifill, Cumberland County, Pennsykania, 17011. 11. Factual Background A. In Vitro Fertilization (°IVF"), Crvouresenation of Embrvos, Labeling and Recording Inventory in Dr. Fiedler's Laboratory 3. The day before retrieval of eggs for IVF, petri dishes were pre-labeled with the patients last name and dale of birth using a color ink identifier unique for that patient. Those petri dishes were prepared with media, sealed in a desiccatorjar unique for that patient, and placed on an incubator shelf. a) unique for that patient, and b) that was labeled with the patient's last name using the same color ink identifier unique for that patient. 4. On day 0.. after the patient's identity was verified, eggs were retrieved and placed in her petri dishes, which were sealed in her desiccatorjar, which was put on her incubator shelf. I he sperm were then prepared and labeled, with the patient's last name on the tube and lid, using the same color ink identifier unique for that patient. After 3-4 hours of egg incubation and sperm prep time_the sperm were introduced to the eggs and the patient's petri dishes were sealed in her desiccatorjar and placed on her incubator shelf. 5. Throughout the fVF process (i.e.. egg retrieval, evaluation and placement in media; fertilization; and embryo evaluation_placement in media, transfer to the patient's uterus and cryopreservation), only one patient's eggs or embryos were outside of the incubator at any given time, and only that patients partner's (and/or donor's) sperm was in the laboratory at the time when that patients eggs were out of the incubator. 6. The day before new media was required during the IVF process. petri dishes were pre-labeled with the patient's last name and dale of birth using the same color ink identifier 2 Claude E. White I Vice President 8 General Counsel Integrai 2 Manhattanville Rd. I Purchase, NY 10577 1: 914-251-4142 1 F. 914-253-8010 1 C. 914-318-8382 claude.whiteC@.intea ramed.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS A PRIVILEDGED ATTORNEY- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM. THANK YOU From: Andrew Foulkrod [mailbo AndrewCafoulkrod mm] Sent:Tuesday, September 17, 2013 8:54 AM To: White, Claude Subject: Eric Fiedler, M.D. Mr. White, Please see the attached correspondence, Thank you. Andy Foulkrod 2 07/01/1995 08:39 4077357865 SDFIEDLER PAGE 01 VERIFICATION I, ERIC P. FIEDLER, M.D., hereby certify that 1 have read the foregoing Petition jor Pre 'minary Injunction, which has been drafted by counsel on Imy behalf, and that the facts set fol therein are true and correct to the best of my knowledge, it{formation and belief. I This statement and Verification are made subject to the Penalties of 18 Pa.C.S.A. §4904, relat ng to unworn fabrication to authorities; I verify that all the statements made in the fore oing are true and correct and that false statements may s bject me to the penalties of 18 Pa.0 S.A. §4904. Date, 10 ? 3 A P. Fied ,M.D. I 1 FOULKROD ELLIS Professional Corporation Andrew H. Foulkrod, Esquire Attorney I . #77394 4000 Market Street Camp Hill, PA 17011 Phone. (717) 909-7006 Attorney for Petitioner Fax. (717) 909-6955 Eric P.Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler. M.D., CIVIL ACTION -EQUITY Petitioner V. NO: Shady Grove Fertility, Respondent Proof of Service I hereby certify that I am this 10th day of October, 2013, serving the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121: Pan, Rd'y..dni Counsel Rc,,,cnlcd_ R,,,ndnn VIA FIRST CI.ASS MAIL VIA FIR5T CLASS MAIL AND F-MAIL brine Shady Grove Fertility Name. Claude E. White, Esquire Adrkr,,_ 355 N. 2151 Street, Suite 301 Address_ InteeraMed America. Inc. Camp Hill. PA 17011 Two Manhattanville Road Purchase, NY 10577 1 MAII cwhiteOw'ritetzramed.com . 1 ^ DNc October 10.2013 _ �gnarure Email:andrexrfrnlkrodcom Andres 11.Foulkrod F,goire Type.Prinr A'ame Phone;(717)909-7006 Auome) ID Number'77394 firm Name_ Ibulkrod PII's PC Address 4000 Markel Slrret Camp H'll PA 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., • CIVIL ACTION - EQUITY Petitioner • v. • NO: /3 $ ( eaU) Shady Grove Fertility, • Respondent rnw z_ GO* — °' c.rlt ORDER :— AND NOW, this day of OCI HEREBY ORDERED that: Respondent shall file and serve a response to the averments contained in the Verified Petition for Preliminary Injunction of Eric P. Fiedler, M.D. (the "Petition") within a0 days hereof. A hearing on the Petition is scheduled for the / b!/ day of N , 2013, at $.5r) am/P141r, in Courtroom , Cumberland County Courthouse, Carlisle, Pa. Within 10 days prior to said hearing, Respondent shall provide to counsel for Petitioner: a. copies, and originals for inspection, of patient x (further identified in the Petition)'s Embryo Inventory Card(s) and IVF Outcome Report(s) provided by Dr. Fiedler's laboratory and clinical practice to Shady Grove; f b. copies of patient x's medical records provided by Dr. Fiedler's practice and/or laboratory to Shady Grove; c. copies of patient x's medical records created at Shady Grove; d. copies of all documentation, electronic media and/or records regarding patient x; e. copies of all documentation, electronic media and/or records regarding Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory; and, f. copies of all documentation, electronic media and/or records regarding communication with Dr. Fiedler regarding patient x and/or Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory. 1 :0. ;) BY THE CO J. C'dptES 112b.t Lk c. c � 1)441 ir)....XYAL1142,01._ abet./ ( Lou - /Col's/i3 -61 F'LEO-OFFICE f ` . .l E Ro THDNo {Fiji GREENBERG TRAURIG, LLP HI 3 OCT 23 AM 18: it 1 Brian T. Feeney (I.D. No. 78574) Charles L. Rombeau(I.D. No. 204859) CUMBERLAND COUNTY 2700 Two Commerce Square PENNSYLVANIA 2001 Market Street Philadelphia, PA 19103 Tel: 215.988.7800 Fax: 215.988.7801 Attorneys for Respondent Shady Grove feeneyb @gtlaw.com Fertility rombeauc @gtlaw.com • Eric P. Fiedler, M.D., : CIVIL ACTION - EQUITY Petitioner, v. : No. 13-5904 Shady Grove Fertility, • Respondent. • ENTRY OF APPEARANCE Kindly enter the appearance of Brian T. Feeney, Esquire and Charles L Rombeau, Esquire, of the law firm Greenberg Traurig, LLP on behalf of Respondent, Shady Grove Fertility. GREENBERG TRAURIG, LLP Dated: October 22, 2013 Brian T. Feeney (PA 78574) Charles L. Rombeau(PA No. 204859) 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 (215) 988-7812 Counsel for Respondent Shady Grove Fertility CERTIFICATE OF SERVICE I, Brian T. Feeney, hereby certify that on the 22" day of October 2013, I caused a true and correct copy of the foregoing ENTRY OF APPEARANCE to be served via First Class US Mail on the following counsel of record: Andrew H. Foulkrod, Esquire Foulkrod Ellis Professional Corporation 4000 Market Street Camp Hill, PA 17011 Brian T. Feeney, Esquire T J ILEu-o FOULKROD ELLIS t f- HE PRIG) l li0;d 0 TA R Professional Corporation Andrew H. Foulkrod, Esquire ���OCT��� 2� �� �- 3 Attorney I.D. #77394 �IiS�P�A�' 4000 Market Street COUNTY Camp Hill, PA 17011 PENNSYLVANIA Phone: (717) 909-7006 Attorney for Petitioner Fax: (717) 909-6955 Eric P. Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler,M.D., CIVIL ACTION -EQUITY Petitioner V. . NO: 13-590V Shady Grove Fertility, Respondent PROOF OF SERVICE AND RETURN OF SERVICE On October 10, 2013, a copy of the Verified Petition for Preliminary Injunction of Eric P. Fiedler, M.D., was served upon the persons in the mariner indicated below. Party: Respondent Counsel for Respondent VIA FIRST CLASS MAIL AND VIA FIRST CLASS MAIL AND E-MAIL CERTIFIED MAIL—RETURN RECEIPT REQUESTED Article No.7002 0460 0001 8914 1155 Name: Shady Grove Fertility Name: Claude E. White,Esquire Address: 355 N. 21" Street, Suite 301 Address: IntegraMed America, Inc. Camp Hill,PA 17011 Two Manhattanville Road Purchase,NY 10577 EMAIL: cwhiteointegramed.com On October 16, 2013, Claude E.White, Esquire relayed in writing his authority to accept service on behalf of Shady Grove. Respectfully submitted, FOUL ROD ELLIS Profe al orporation Date: �Q �-2 13 By: Andr H. lkrod, Esquire Court I.D. No. 77394 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 0 3./"�day of D C4vke , 2013, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Claude E. White, Esquire IntegraMed America, Inc. Two Manhattanville Road Purchase,NY 10577 FOULKROD ELLIS PROFESSIONAL CORPORATION By: Crystaf L.Nemetz, Secret GREENBERG TRAURIG, LLP By: Brian T. Feeney (I.D. No. 78574) , I r' t 3: L-0 Charles L. Rombeau(I.D. No. 204859) 2700 r..} ,�I `1. 1)3 i Two Commerce Square 4 ( ;; , : �. {'` ';�i°•� 2001 Market Street r' a : L`4' ,Pi A Philadelphia, PA 19103 Tel 215.988.7800 Attorneys for Respondent Fax: 215.988.7801 Shady Grove Fertility feeneyb @gtlaw.com rombeauc @gtlaw.com : IN THE CUMBERLAND COUNTY ERIC P. FIEDLER, M.D., : COURT OF COMMON PLEAS : PENNSYLVANIA Petitioner, v. : CIVIL ACTION - EQUITY SHADY GROVE FERTILITY, : No. 13-5904-Civil • Respondent. • NOTICE OF REMOVAL TO FEDERAL COURT Pursuant to 28 U.S.C. § 1446(d), Respondent Shady Grove Reproductive Science Center, P.C., t/a Shady Grove Fertility Centers and improperly named as "Shady Grove Fertility," files herewith a copy of the Notice of Removal flied in United States District Court for the Middle District of Pennsylvania on November 7, 2013. G' • :E�t'T •RIG, LLP Dated: November 11, 2013 • Brian T. Feeney (I.D. No. 78574) Charles L. Rombeau (I.D. No. 204859) 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Tel 215.988.7800 Fax 215.988.7801 Attorneys for Respondent Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 1 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ERIC P. FIEDLER, M.D., • Civil Action No. • Plaintiff, v. • • SHADY GROVE FERTILITY, • • Defendant. NOTICE OF REMOVAL Defendant Shady Grove Reproductive Science Center, P.C., t/a Shady Grove Fertility Centers and improperly named as "Shady Grove Fertility" ("Shady Grove" or "Defendant"), by its undersigned attorneys, hereby removes this action from the Court of Common Pleas of Cumberland County, Pennsylvania, to the United States District Court for the Middle District of Pennsylvania. As grounds for removal, Shady Grove avers as follows: 1. This action was commenced by Plaintiff Eric P. Fiedler, M.D., ("Fiedler" or "Plaintiff') on or about October 10, 2013, through the filing of a Verified Petition for Preliminary Injunction (the "Petition") in the Court of Common Pleas of Cumberland County and docketed as case number 13-5904- Civil. Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 2 of 37 2. Shady Grove received a copy of the Petition on or about October 15, 2013. 3. This Notice of Removal is timely under 28 U.S.C. § 1446(b) as it is filed within thirty (30) days of receipt by Shady Grove of the Petition, which is the initial pleading setting forth the claim for relief on which this action is based.' 4. A copy of Plaintiff's Petition is attached to this Notice of Removal as Exhibit A. 5. As alleged in the Petition, Fiedler is a physician who maintained an infertility and reproductive medicine practice in Dauphin County, Pennsylvania. (Petition ¶ 1.) Upon information and belief, Fiedler is a permanent resident of Pennsylvania with an intent to remain there, and therefore is a citizen of the Commonwealth of Pennsylvania for diversity purposes. 6. Shady Grove is a professional corporation organized under the laws of the State of Maryland, with its principal place of business at 15001 Shady Grove Road, Suite 340, Rockville, Maryland, 20850. 7. A professional corporation is treated like any other corporation for diversity purposes. See, e.g., Cote v. Wadel, 796 F.2d 981, 983 (7th Cir. 1986) ("To paraphrase Gertrude Stein, for purposes of diversity jurisdiction a corporation Actions commenced by petition in Pennsylvania satisfy the "initial pleading" requirement of 28 U.S.C. § 1446. See, e.g.,Manze v. State Farm Ins. Co., 817 F.2d 1062, 1069 (3d Cir.1987) (noting an action commenced through a petition to appoint a neutral arbitrator is the "initial pleading"that may be removed). 2 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 3 of 37 is a corporation is a corporation."); Saxe, Bacon & Bolan, P.C. v. Martindale- Hubbell, Inc., 710 F.2d 87 (2d Cir. 1983) (holding professional corporations must be treated as corporations, and not partnerships, for diversity purposes). 8. Shady Grove is therefore a citizen of the State of Maryland for diversity purposes. See 28 U.S.C. § 1332(c)(1).2 9. While the Complaint names "Shady Grove Fertility" as a defendant, no such entity exists. Rather, "Shady Grove Fertility" appears to be a reference to "Shady Grove Fertility Centers," a trade name utilized by Shady Grove. 10. It is well-established that a trade name can neither sue nor be sued. See, e.g., Pacheco v. Joseph McMahon Corp., 698 F. Supp. 2d 291, 295 (D. Conn. 2010) (noting that "[i]t is well settled that . . . a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name." (internal citations omitted)). Thus, "Shady Grove Fertility" is a non juridical entity and not a party in interest, and may be disregarded for diversity purposes. 11. Pursuant to 28 U.S.C. § 1332, there is complete diversity of citizenship between Plaintiff and Defendant, inasmuch as this is an action between citizens of different states. 2 Even were the Court to apply partnership law to Defendant and determine Shady Grove's citizenship by the citizenship of each of its members, diversity still exists. See, e.g., Carden v. ArkomaAssoc., 494 U.S. 185, 195-96 (1990). The twenty-one members of Shady Grove are citizens of Maryland, Virginia, or the District of Columbia, and none is a citizen of Pennsylvania. 3 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 4 of 37 12. The Petition seeks injunctive, and not monetary, relief. "In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 347 (1977). "In the Third Circuit, for actions seeking an injunction, it is settled that the amount in controversy is measured by the value of the right sought to be protected by the equitable relief." In re Corestates Trust Fee Litig., 39 F.3d 61, 65 (3d Cir. 1994) 13. Here, the Petition seeks wide-ranging injunctive relief interfering with Shady Grove's patient relationships and ethical obligations in the practice of medicine, including: a. Prohibiting Shady Grove from "making representations to its patients that embryos were mislabeled in Dr. Fiedler's laboratory"; b. Requiring Shady Grove to disclose "the events surrounding patient x" and provide "full disclosure, in writing, with an offer for those patients to call Dr. Fiedler if desired"; c. Prohibiting Shady Grove from "conveying . . . a unilateral decision not to transfer such embryos to the uterus; d. Requiring Shady to offer patients the "option to have [embryos cryopreserved in Dr. Fiedler's laboratory] the option to have such embryos transferred to the uterus elsewhere; 4 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 5 of 37 e. Requiring Shady Grove to offer patients "the option to have embryos cryopreserved in Dr. Fiedler's laboratory transferred to the uterus at Shady Grove, or in the alternative, elsewhere." f. Requiring the production of documents regarding Fiedler's former patient, patient x, to Fiedler; g. Requiring "that custody of the charts of Dr. Fiedler's former patients, in the form in which they were transitioned by Dr. Fiedler to Shady Grove, be transitioned to a third party facility." (See Petition ¶¶ 33-35.) 14. Fiedler avers that the injunctive relief is sought because Shady Grove's representations to patients have been "recklessly prejudicial" and have placed embryos collected by Fiedler "in immediate jeopardy of being unnecessarily and irreparably discarded." (Petition ¶ 31.) 15. Moreover, Fiedler contends that the injunctive relief is necessary to protect him against claims by his former patients, creating "exposure of Dr. Fiedler to unnecessary and unquantifiable claims for civil liability." (Petition 11131.) 16. Therefore, the "value of the right sought to be protected by equitable relief," according Fiedler, amounts to "unquantifiable claims for civil liability" potentially asserted by "multiple patients" who have paid Fiedler for fertility services and cryopreservation of embryos. (Petition ¶¶ 26, 31.) 5 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 6 of 37 17. Therefore, any reasonable calculation of the value of the action to Plaintiff indicates that the amount in controversy exceeds $75,000. 18. Thus, this civil action is one over which this Court has original jurisdiction pursuant to 28 U.S.C. § 1332, and which may be removed to this Court by Defendant pursuant to 28 U.S.C. § 1441, because it is a civil action between citizens of different states wherein the amount in controversy exceeds $75,000, exclusive of interests and costs. 19. Pursuant to 28 U.S.C. § 1441(a), the United States District Court for the Middle District of Pennsylvania is the proper venue for removal because the Court of Common Pleas of Cumberland County, Pennsylvania, where the action is currently pending, is located within the Middle District of Pennsylvania. 20. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being served on Plaintiffs counsel of record and will be promptly filed with the Prothonotary of the Court of Common Pleas of Cumberland County. 21. Copies of all process, pleadings and orders received by Shady Grove are filed herewith. See Exhibit A. 22. By filing a notice of removal in this matter, Defendant does not waive any defense, including but not limited to improper service of process, lack of jurisdiction over the person, or lack of venue, and specifically reserves the right to assert any and all defenses and/or objections to which it may be entitled. 6 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 7 of 37 WHEREFORE, Defendant Shady Grove Reproductive Science Center, P.C., t/a Shady Grove Fertility Centers and improperly named as "Shady Grove Fertility," hereby removes this action to the United States District Court for the Middle District of Pennsylvania. GREENBERG TRAURIG, LLP Dated: November 7, 2013 /s/ Charles L. Rombeau Brian T. Feeney, Esq. (PA 78574) Charles L. Rombeau, Esq. (PA 204859) 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Tel 215.988.7800 Fax 215.988.7801 feeneyb @gtlaw.corn rombeauc @gtlaw.corn Attorneys for Defendant Shady Grove Reproductive Centers, P.C. 7 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 8 of 37 Exhibit A Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 9 of 37 Supreme Co,><a4rt fEennsylvanit.a Courif;of Commo 1Pleas For Prothonotary Use Only: C y><hover\Shet Docket No: ^, CU RLAND _ County /3 . 3'9t)L/ [!�L�,k,y The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S 0 Complaint 0 Writ of Summons a Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E c Lead Plaintiff's Name: Lead Defendant's Name: Eric P. Fiedler, M.D. Shady Grove Fertility T Dollar Amount Requested: ❑within arbitration limits I Are money damages requested? ❑Yes III No (check one)9 ❑outside arbitration limits 0 _ N Is this a Class Action Suit? ❑Yes El No Is this an MDJAppeal? ❑ Yes 13 No A Name of Plaintiff/Appellant's Attorney: Andrew H. Foulkrod of Foulkrod Ellis, P.C. 0 Check here if you have no attorney(are a Self-Represented [Pro Se] Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection:Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections ❑ Nuisance Di Dept.of Transportation 10 Premises Liability Statutory Appeal:Other S ❑ Product Liability(does not include E mass tort) ❑ Employment Dispute: ❑ Slander/Libel/Defamation Discrimination C 0 Other: ❑ Employment Dispute:Other 0 Zoning Board T 0 Other: I ❑ Other: g- MASS TORT 0 Asbestos N ❑ Tobacco ❑ Toxic Tort-DES ❑ Toxic Tort-Implant REAL PROPERTY 0 Toxic Waste MISCELLANEOUS Other: 0 Ejectment ❑ Common Law/Statutory Arbitration B ❑ Eminent Domain/Condemnation 0 Declaratory Judgment ❑ Ground Rent all Mandamus ❑ Landlord/Tenant Dispute 0 Non-Domestic Relations ❑ Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure:Commercial 0 Quo Warranto ❑ Dental ❑ Partition 0 Replevin ❑ Legal 0 Quiet Title a Other: Medical ❑ Other: Preliminary Injunction 0 Other Professional: Updated I/1/2011 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 10 of 37 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., • CIVIL ACTION -EQUITY • Petitioner • v. NO: - 5909 et ` • Shady Grove Fertility, • Respondent ORDER AND NOW,this day of , 2013, it is HEREBY ORDERED that: Respondent shall file and serve a response to the averments contained in the Verified Petition for Preliminary Injunction of Eric P. Fiedler, M.D. (the "Petition")within days hereof. A hearing on the Petition is scheduled for the day of 2013, at am/pm, in Courtroom , Cumberland County Courthouse, Carlisle, Pa. Within days prior to said hearing, Respondent shall provide to counsel for Petitioner: a. copies, and originals for inspection, of patient x (further identified in the Petition)'s Embryo Inventory Card(s) and IVF Outcome Report(s) provided by Dr. Fiedler's Iaboratory and clinical practice to Shady Grove; Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 11 of 37 b. copies of patient x's medical records provided by Dr. Fiedler's practice and/or laboratory to Shady Grove; c. copies of patient x's medical records created at Shady Grove; d. copies of all documentation, electronic media and/or records regarding patient x; e. copies of all documentation, electronic media and/or records regarding Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory; and, f. copies of all documentation, electronic media and/or records regarding communication with Dr. Fiedler regarding patient x and/or Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory. BY THE COURT: J. Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 12 of 37 FOULKROD ELLIS • Professional Corporation ' . Andrew H. Foulkrod, Esquire ! Attorney I.D. #77394 ,1� 4000 Market Street t_,a ��r d• Camp Hill, PA 17011 Phone: (717) 909-7006 Attorney for Petitioner Fax: (717) 909-6955 Eric P. Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., CIVIL ACTION- EQUITY • Petitioner v. NO: • Shady Grove Fertility, • Respondent NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Petitioner. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE. Cumberland County Bar Association 32 S.Bedford Street Carlisle,PA 17013 1-800-990-9I08 717-249-3166 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 13 of 37 FOULKROD ELLIS Professional Corporation Andrew H. Foulkrod, Esquire Attorney I.D. #77394 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Attorney for Petitioner Fax: (717) 909-6955 Eric P. Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., CIVIL ACTION -EQUI'TY Petitioner NO: 3 S90 y Cum). Shady Grove Fertility, • Respondent VERIFIED PETITION FOR PRELIMINARY INJUNCTION OF ERIC P. FIEDLER, M.D. Petitioner, Eric P. Fiedler, M.D., by and through his counsel,Andrew H. Foulkrod, Esquire, Foulkrod Ellis, P.C., hereby requests that this Honorable Court issue a preliminary injunction, and for the determination thereof grant certain pre-hearing discovery and schedule a hearing, and in support thereof avers as follows: I. The Parties 1. Petitioner, Eric P. Fiedler, M.D. ("Dr. Fiedler"), is a physician and fellowship trained, board-certified specialist in the field of Reproductive Endocrinology and Infertility, who at relevant times delineated below operated an infertility and reproductive medicine practice,E ambulatory surgical center,2 and IVF laboratory,3 at 2708 Commerce Drive, Harrisburg, Dauphin County, Pennsylvania, 17110. 1 Advanced Center for Infertility and Reproductive Medicine, RPC(Dr. Fiedler's"clinical practice"). 2 Center for Reproductive Surgery, LLC(Dr. Fiedler's"ambulatory surgical center"). 3 Central Penn Reproductive Laboratory,LLC(Dr. Fiedler's"laboratory"). Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 14 of 37 2. Respondent, Shady Grove Fertility("Shady Grove"), is an infertility and reproductive medicine practice, which currently operates at 355 N. 21st Street, Suite 301, Camp Hill, Cumberland County, Pennsylvania, 17011. II. Factual Background A. In Vitro Fertilization ("IVF"), Cryopreservation of Embryos, Labeling and Recording Inventory in Dr.Fiedler's Laboratory 3. The day before retrieval of eggs for IVF, petri dishes were pre-labeled with the patient's last name and date of birth using a color ink identifier unique for that patient. Those petri dishes were prepared with media, sealed in a desiccator jar unique for that patient, and placed on an incubator shelf: a)unique for that patient, and b)that was labeled with the patient's last name using the same color ink identifier unique for that patient. 4. On day 0, after the patient's identity was verified, eggs were retrieved and placed in her petri dishes, which were sealed in her desiccator jar, which was put on her incubator shelf. The sperm were then prepared and labeled, with the patient's last name on the tube and lid, using the same color ink identifier unique for that patient. After 3-4 hours of egg incubation and sperm prep time, the sperm were introduced to the eggs and the patient's petri dishes were sealed in her desiccator jar and placed on her incubator shelf. 5. Throughout the IVF process (i.e., egg retrieval, evaluation and placement in media; fertilization; and embryo evaluation, placement in media, transfer to the patient's uterus and cryopreservation), only one patient's eggs or embryos were outside of the incubator at any given time, and only that patient's partner's (and/or donor's) sperm was in the laboratory at the time when that patient's eggs were out of the incubator. 6. The day before new media was required during the IVF process, petri dishes were pre-labeled with the patient's last name and date of birth using the same color ink identifier 2 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 15 of 37 unique for that patient, prepared with media, and sealed in her desiccator jar, which was put on her incubator shelf. 7. On day 1, eggs were evaluated for fertilization, and those fertilized normally were transferred to different media. On day 3, embryos were evaluated for development and were transferred to different media as appropriate. Embryo development was recorded in a binder which was maintained in the laboratory. When embryos were of proper maturity, l or 2 (or rarely 3 in older women)were transferred to the patient's uterus, and the remainder were cryopreserved. 8. For cryopreservation, straws (to contain embryos), a goblet(to contain straws) and a cane (to hold goblets), which were all unique for that patient, were labeled, as follows: Straw: MR#, straw number, number of embryos in that straw, date frozen. Goblet: name, MR#, date frozen (initial). Cane: number. The embryos were then transferred into the straws,typically l to 3 embryos per straw. The straws were frozen in liquid nitrogen and placed into the goblet, which clicked onto the cane. The cane was placed into a plastic sleeve that prevents the goblets from dislodging from the cane. The cane was placed in a canister(not unique to the patient), which was numbered by the manufacturer, and stored in a tank, which was also numbered. Along with labeling the straw, goblet and cane, an Embryo Inventory Card was recorded as follows: the patient's name and MR#; straw numbers, and for each straw number: number of embryos in that straw, date frozen(with type of IVF and developmental day); cane number; canister number; and tank number. All of the foregoing was performed, recorded and maintained in Dr. Fiedler's laboratory. 3 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 16 of 37 B. IVF Outcome Report used for Dr. Fiedler's clinical practice 9. There is a form, entitled "IVF Outcome Report,"that was used for Dr. Fiedler's clinical practice as a summary of 1VF outcomes (from egg retrieval, development and fertilization to embryo development,transfer to the patient's uterus and cryopreservation). 10. The 1VF Outcome Report was housed in the patient's clinical chart, which was stored in Dr. Fiedler's clinical practice office, not in the laboratory, and consequently was often not available to laboratory personnel while laboratory work was being performed and recorded in the laboratory. Rather, laboratory personnel would often document on the IVF Outcome Report outside of the laboratory, in the clinical practice office, after the laboratory work had been completed. 1 I. Given the purpose and use of the IVF Outcome report, and given that it was often times documented outside of the laboratory, in the clinical practice office, after the laboratory work had been completed, it was never intended or used as an inventory for cryopreserved embryos. 12. Any error in documentation on the IVF Outcome Report,made outside of the laboratory, in the clinical practice office, after laboratory work had been completed,would not equate to a mislabeling of embryos or an error in the inventory of cryopreserved embryos. Rather, since labeling and inventory occurred in the laboratory, any mislabeling or error in inventory would need to involve those records, i.e., the straw, goblet, cane and Embryo Inventory Card. 4 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 17 of 37 C. Patient x 1. Labeling of the Straw(s), Goblet and Cane and Recording the Embryo Inventory Card in Dr. Fiedler's laboratory 13. The procedure for IVF, cryopreservation of embryos, labeling and recording inventory in Dr. Fiedler's laboratory, set forth in section 11. A. above, was followed for patient x. 14. By the end of September of 2011, by reason of medical disability(orthopedic), Dr. Fiedler was compelled to close his ambulatory surgical center and laboratory, and therefore no longer performed IVF, cryopreservation of embryos, or transfer to the uterus of cryopreserved embryos. 15. Sometime thereafter, desiring cryopreserved embryo transfer to her uterus,patient x's frozen embryos were shipped from Dr. Fiedler's laboratory to Shady Grove.4 16. At Shady Grove,patient x's straw(s) were thawed in preparation for embryo transfer to her uterus. Prior to such transfer, all of the labeling on the thawed straw(s), goblet and cane was compared with the Embryo Inventory Card, and it matched. 17. Based on the foregoing labeling and inventory match, there was no potential that patient x's embryos had been mislabeled, or that there was any error in inventory. 2. An error was made in the subsequent documentation, outside of the laboratory, in the clinical practice office, after the laboratory work had been completed, on the IVF Outcome Reports 18. Prior to embryo transfer to the uterus, Shady Grove's embryologist called Dr. Fiedler and reported that a portion of the documentation on patient x's IVF Outcome Report did not match with the labeling and inventory identified in section C. 1. above. °This is not the first instance in which embryos cryopreserved in Dr. Fiedler's laboratory were shipped to Shady Grove for transfer to a patient's uterus. S Patient x is the only patient for whom there was an error made on the IVF Outcome Report. 5 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 18 of 37 19. Shady Grove has told Dr. Fiedler that although the Embryo Inventory Card recorded the number of straws, with embryos per straw as follows: 1-2,2-2, 3-4, 4-4, the IVF Outcome Report had been documented as follows: 1-2, 2-2, 3-2,4-2, 5-4. 20. Based on the information received from Shady Grove's embryologist, Dr. Fiedler understood and explained how and why the error was made in the documentation on the IVF Outcome Report.° Shady Grove's embryologist expressed understanding of Dr. Fiedler's explanation, and raised no concern with him. That was the last communication between Shady Grove and Dr. Fiedler regarding this issue until after the events set forth at paragraph 26 below. 21. The error was limited to the documentation of numbers (straws and embryos per straw) for one patient, in that patient's IVF Outcome Report, done outside of the laboratory, in the clinical practice office, in the clinical practice office chart, after the laboratory work (i.e., cryopreservation, labeling and inventory) had been completed; thus, it does not equate to a mislabeling or an error in inventory. Nor does it involve patient x's identifiers, much less any other patient; thus, it does not equate to a misidentification or mix-up of embryos. 22. Even though patient x's Embryo Inventory Card and IVF Outcome Report were provided by Dr. Fiedler's laboratory and clinical practice to Shady Grove, Shady Grove has refused to return copies to Dr. Fiedler for inspection, even with patient identifiers redacted. See emails with counsel for Shady Grove, attached as Exhibit "A." Thus, Dr. Fiedler has not had an opportunity to inspect said records, which he seeks to verify his understanding set forth above. 6 Dr. Fiedler also explained the process of embryo labeling(set forth in paragraph 8.above) in contrast to subsequent documentation on the IVF Outcome Report(set forth in section II.B. above). 'Dr. Fiedler believes that he may have provided subsequent copies of patient x's Embryo Inventory Card and IVF Outcome Report to Shady Grove. 6 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 19 of 37 3. Shady Grove transferred patient x's thawed embryos to her uterus 23. Patient x was not informed by Shady Grove that there was an issue with regard to the labeling or inventory of her embryos, because there was no such issue. She was told that there was an issue with some paperwork, but that it was nothing serious. 24. Given that the embryo labeling and inventory matched, Shady Grove transferred patient x's thawed embryos to her uterus. D. Closure of Dr.Fiedler's clinical practice 25. In May of 2012, by reason of medical disability (orthopedic), Dr. Fiedler was compelled to close his clinical practice. In connection therewith, in October of 2012 he transitioned his practice and his patient's charts to Shady Grove. As of that time, Shady Grove had not raised any concern with Dr. Fiedler regarding labeling, inventory or transfer to the uterus of embryos cryopreserved in his laboratory. III. Shady Grove's conduct which is sought to be enjoined 26. In July of 2013, Dr. Fiedler first learned that Shady Grove had been misrepresenting, to multiple patients, that several other of his patient's embryos had been "mislabeled,"leading to Shady Grove's unilateral decision not to transfer to the uterus any embryos that had been cryopreserved in his laboratory. 27. Shady Grove's representations are false for the following reasons: a. Patient x is the only patient for whom there was any issue with documentation, and b. Patient x's embryos were not mislabeled. 7 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 20 of 37 28. Moreover, the clear implication of Shady Grove's misrepresentation, that there has been embryo misidentification and/or mix-up, is patently wrongful. 29. Shady Grove's unilateral decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory is unwarranted because: a. The facts upon which the decision is allegedly based are not true, since embryos were not mislabeled, much less for multiple patients; and, b. The decision is not based on patient x, as evidenced by the fact that patient x was not informed by Shady Grove that there was an issue with regard to the labeling or inventory of her embryos; rather, because the embryo labeling and inventory matched, Shady Grove transferred patient x's thawed embryos to her uterus. 30. Instead, Shady Grove has financial incentive not to use embryos cryopreserved in an outside laboratory, and instead pursue fresh IVF, as follows: a. There is increased profit on fresh IVF as opposed to cryopreserved embryo transfer to the uterus; and, b. The ability to market higher IVF success rates (arising out of the fact that couples with proven success (they became pregnant and therefore still have preserved embryos) are being routed back for fresh IVF). 31. Shady Grove's misrepresentations and unilateral decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory is recklessly prejudicial, in that embryos are in immediate jeopardy of being unnecessarily and irreparably discarded,8 in favor of the pursuit of fresh IVF, at emotional and financial cost to patients, and with exposure of Dr. Fiedler to unnecessary and unquantifiable claims for civil liability. 8 Dr. Fiedler has been advised of intent and direction to discard embryos based on Shady Grove's representations. 8 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 21 of 37 IV. Relief Requested 32. It is respectfully requested that an injunction be issued, as follows: a. prohibiting Shady Grove from representing that embryos were mislabeled in Dr. Fiedler's laboratory; or, in the alternative, requiring that Shady Grove, in disclosing the events surrounding patient x (to patients seeking transfer to the uterus of embryos cryopreserved in Dr. FiedIer's laboratory), provide full disclosure, in writing, with an offer for those patients to call Dr. Fiedler if desired; b. prohibiting Shady Grove from conveying (to patients seeking transfer to the uterus of embryos cryopreserved in Dr. Fiedler's laboratory) a unilateral decision not to transfer such embryos to the uterus; or, in the alternative, requiring that Shady Grove offer the option to have such embryos transferred to the uterus elsewhere; and, c. for those patients to whom Shady Grove has represented that embryos were mislabeled in Dr. Fiedler's laboratory, and/or a unilateral decision not to transfer to the uterus embryos cryopreserved in Dr. Fiedler's laboratory has been conveyed, requiring that Shady Grove provide full disclosure, in writing, of the events surrounding patient x, with an offer for those patients to call Dr. Fiedler if desired, and requiring that Shady Grove offer the option to have embryos cryopreserved in Dr. Fiedler's laboratory transferred to the uterus at Shady Grove, or in the alternative, elsewhere. 33. It is respectfully requested that a hearing be scheduled on the above issues. 9 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 22 of 37 34. It is respectfully requested that, within a reasonable time prior to said hearing, Shady Grove produce: a. copies, and originals for inspection, of patient x's Embryo Inventory Card(s) and IVF Outcome Report(s)provided by Dr. Fiedler's laboratory and clinical practice to Shady Grove; b. copies of patient x's medical records provided by Dr. Fiedler's practice and/or laboratory to Shady Grove; c. copies of patient x's medical records created at Shady Grove; d. copies of all documentation, electronic media and/or records regarding patient x; e. copies of all documentation, electronic media and/or records regarding Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory; and, f. copies of all documentation, electronic media and/or records regarding communication with Dr. Fiedler regarding patient x and/or Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory. 35. It is respectfully requested that custody of the charts of Dr. Fiedler's former patients, in the form in which they were transitioned by Dr. Fiedler to Shady Grove, be transitioned to a third party facility, in order to preserve the documentation as it existed at the time of transition by Dr. Fiedler to Shady Grove. 36. The foregoing requests, which are designed to be reasonable and equitable to all involved parties, were made to Shady Grove by correspondence dated September 17, 2013 (see 10 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 23 of 37 correspondence attached as Exhibit "B",)but have been denied by Shady Grove, citing only the need for patient authorization (see email attached as Exhibit "C".) 37. Dr. Fiedler meets the legal requirements for a preliminary injunction, as follows: a. he has acted quickly,his case is brought in good faith, and the relief he seeks is required to achieve justice and fairness; b. without injunctive relief, immediate and irreparable harm will result, changing the status quo; said harm would be greater if relief is delayed or not granted than if an injunction is issued; and the issuance of an injunction as requested will not substantially harm Shady Grove or adversely affect the public interest; and, c. the injunctive relief sought is reasonably suited to abate the offending activity. WHEREFORE, Petitioner, Eric P. Fiedler, M.D., respectfully requests that this Honorable Court issue a preliminary injunction, and for the determination thereof grant certain pre-hearing discovery and schedule a hearing, in the form of the attached proposed Order. Respectfully submitted, FOULKROD ELLIS Profess' nal Cprrporation 1 Date: f Oi(0 //3 By: 4 Andrew H. Foulkrod, Esquire Court I.D. No. 77394 11 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 24 of 37 Andrew Foulkrod From: White, Claude[claude.white @integramed.com) Sent: Saturday, September 14, 2013 12:35 PM To: Andrew Foulkrod Subject: RE: Eric Fiedler, M.D. We don't provide patient files, even de-identified, without a patient's consent since the reason doesn't'fall within the three exceptions under HIPAA. Claude E. White I Vice President&General Counsel IntegraMed® 2 Manhattanville Rd. I Purchase, NY 10577 P: 914-251-4142 I F: 914-253-80101 C: 914-318-8382 claude.whiteaintegramed.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORM ■JEY- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU Al HE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING ' RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM. THANK YOU From: Andrew Foulkrod [mailto:Andrewc foulkrod.com] Sent: Friday, September 13, 2013 4:36 PM To: White, Claude Subject: RE: Eric Fiedler, M.D. Mr.White, To avoid any HIPAA concern, would you please forward copies of the IVF Outcome Report(s)and card(s)for the single event which was the subject of our discussion, with patient identifiers redacted? Andy From: White, Claude [mailto:claude.white(iintedramed.corn] Sent: Tuesday, September 03, 2013 4:15 PM To: Andrew Foulkrod Cc: Mottla, Gilbert; Portmann, Marc Subject: Eric Fiedler, M.D. Andy, 1 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 25 of 37 This is confirm our telephone conversation last Thursday, August 29th during which we discussed Dr. Fielder obtaining certain information from Shady Grove patient files who were former patients of Dr. Fiedler. After considering the issue of disclosing information from patient records,we have determined that the proper way of providing the requested information (consistent with HIPAA regulations)is for the applicable Shady Grove patients to give Shady Grove consent for the release of certain information from their clinical records to Dr. Fielder.Accordingly,we request that such authorization be obtained by Dr. Fielder from those patients for whom Dr. Fiedler has questions about the alignment of the embryology inventory lists with the labeling of the straws and/or canes containing the biological materials. Upon receipt of such authorizations,Shady Grove will then provide the information to Dr. Fielder. Claude E. White I Vice President& General Counsel IntegraMed® 2 Manhattanville Rd. l Purchase, NY 10577 P: 914-251-4142 l F: 914-253-8010 l C: 914-318-8382 claude,white(c�integramed.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS A PRIVILEDGED ATTORNEY- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM, THANK YOU • , , •, :t . r t.. r; ,G.); r., .. .,n}s': .. I'•1 ,.. t., •P • r ti i:' t. ,i G•!;. ,7g.,. ..i, ..°, _ _ r.f , 1 :#•'r+ `i 3: „ • � .. o! ,.i'I!1 .t , .. �'r. .( I,i71+•l: .('j,, 10, : .c.... ,.,Ci - ci V:(.,IC .rt.•I"'!°r..�,i�±r I. .i. .. . `[ . - '. .. :! 1.'...i•.6 Ct•r..(i .. 2 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 26 of 37 FOULKROD ELLIS ATTORNEYS AND COUNSELORS AT LAW 4000 MARKET STREET CAMP HILL,PENNSYLVANIA 17011 PHONE(717)909-7006 FAX(717)909-6955 ANDREW H. FOULKROD andrew @foulkrod.com Phone Extension:4 September 17, 2013 VIA EMAIL AND FIRST CLASS MAIL Claude E. White, Esquire Vice President and General Counsel IntegraMed America, Inc. Two Manhattanville Road Purchase, NY 10577 Re: Eric Fiedler, M.D. Our File No. 3812 Dr. Mr. White: Please allow this correspondence to summarize the events which have been the subject of our recent communications, and set forth requests for what we perceive to be an equitable course of action going forward. In July,Dr. Fiedler learned that Shady Grove has been representing,to multiple sets of patients, that several other of his patients' embryos had been "mislabeled,"and therefore Shady Grove would not transfer any embryos from his practice. By Ietter of August 15, 2013, you similarly related that Dr. Fiedler's patients have had embryos delivered to Shady Grove for transfer, and that "the Iabeling of the [embryos] is not matching up with the inventory." Citing a concern over whether"the [embryos] match the patients,"you confirmed that Shady Grove is unwilling to transfer embryos from Dr. Fiedler's practice. On August 29, 2013, during a conference call with Shady Grove representatives Marc Portmann and Gil Mottla, the following specific explanation was offered as the basis for the foregoing representations. There was an isolated event where the documentation on the IVF Outcome Report pertaining to a set of patients' embryos preserved at Dr. Fiedler's practice on 12/19/10 (8 embryos) and 12/20/10 (4 embryos)did not match the embryo inventory card. Specifically, the embryo inventory card (which contained cross-outs) identified the 4 straws that existed, as follows (straw number=number of embryos in straw): 1=2, 2=2, 3=4, 4=4. The IVF Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 27 of 37 Claude E. White, Esquire September 17,2013 Page 2 Outcome Report read as follows: 1-2, 2-2, 3-2, 4-2, 54. Dr. Fiedler was contacted at the time by the Shady Grove embryologist who recorded Dr. Fiedler's explanation that "there were not enough straws to do 5" (which explanation, although partially recorded,makes sense). Embryos were thawed, labeling on the straws and goblet matched with the embryo inventory card, and embryos were transferred to the female patient. However, Shady Grove later concluded, citing in part its reluctance to use embryos frozen outside of Shady Grove, and citing in part the foregoing documentation, that no embryos from Dr. Fiedler's practice would be implanted in the future. Accordingly, no such embryos were subsequently received. Few (less than 5) sets of patients have requested embryo transfer and thus been informed of this issue and Shady Grove's decision. Citing privacy issues, you have declined our request to provide the foregoing documentation, in the form of copies any IVF Outcome Report(s) and embryo inventory card(s) that were originally provided to you by Dr. Fiedler relating to this event. We have since requested that you provide these copies with any and all patient identifiers redacted, and have again been declined. To summarize what we understand from our discussion with you: (1)the embryo inventory card was correct in the information that it contained (albeit, with some cross outs), (2)the information on the embryo inventory card matched the labeling on the goblet and straws that contained the embryos, (3) there was never any mismatch among the patient's identity, and the patient identifiers on the embryo inventory card, the embryo containers, and the IVF Outcome Report, and (4) Shady Grove did,in fact,thaw and transfer embryos to the patient's uterus with the desire and intent that a pregnancy would result. The IVF Outcome Report is used as a summary sheet for IVF outcomes, primarily to document the progression of oocyte and embryo development in the chart and to summarize this along with certain clinical egg retrieval and embryo transfer information,for use by clinical staff. It was provided to Shady Grove for this purpose. At Dr. Fiedler's practice the IVF Outcome Report was maintained in the patients office chart at all times beyond the initial entry on this form after the oocyte retrieval. Consequently, it was often located somewhere in the office and not available to the laboratory personnel during the embryo cryopreservation procedure when embryos are being labeled and inventoried on the embryo inventory card. Thus, it was never used or intended for the purpose of embryo inventory. This would have been explained to the Shady Grove embryologist by Dr. Fiedler along with his explanation that was afforded of why there was a discrepancy between the IVF Outcome Report and the embryo inventory card. We are certain that the cross outs on the embryo inventory card and the discrepancies on the IVF Outcome report are logically explained, consistent with what was partially recorded by your embryologist in conversation with Dr. Fiedler concerning the situation. Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 28 of 37 Claude E. White, Esquire September 17,2013 Page 3 For the foregoing reasons, the events that have been described are not properly characterized as a"mislabeling" of embryos. Nor should the foregoing properly give rise to a unilateral decision not to use any embryos frozen in Dr. Fiedler's practice; it did not even prevent Shady Grove from transferring the embryos in the event at issue, which was isolated, and did not occur with several patients as has been represented. At the very least, we strongly believe that patients seeking transfer of embryos from Dr. Fiedler's practice,past and future, should be provided full written disclosure of these events with an offer to call Dr. Fiedler, rather than a shorthanded verbal mischaracterization, and be afforded a choice of whether to have their embryos transferred at another facility. Additionally, Dr. Fiedler is seeking the transfer of custody the charts of his patients, in the form in which they were transferred by Dr. Fiedler to Shady Grove, to a third party facility, in order to preserve the documentation as it existed at the time of transfer. We feel that these requests are reasonable, and we are prepared to make such requests to the Court, if necessary. I would appreciate it if you would let us know if you will work with us in these respects. Since -I. our, 11.1- Andre ' H. FouIkrod cc; Eric Fiedler, M.D. (via email and first class mail) Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 29 of 37 Andrew Foulkrod From: White, Claude[claude.white @integramed.com] Sent: Monday, October 07, 2013 9:13 AM To: Andrew Foulkrod Subject: RE: Eric Fiedler, M.D. Sorry I didn't communicate with you earlier.The physicians at Shady Grove continue to stand by their position that they will only provide information to Dr. Fiedler based on authorization from patients. They won't provide information without consent of patients involved, Claude E. White I Vice President& General Counsel IntegraMed® 2 Manhattanville Rd. I Purchase, NY 10577 P: 914-251-4142 I F: 914-253-8010 I C: 914-318-8382 claude.whiteCa�integramed.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE ( A OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMA Y- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU ARE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING TI- RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEIvjuw- iviv, uia I rvov r ivry irvv JF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM. THANK YOU From: Andrew Foulkrod [mailto:Andrew©foulkrod.com] Sent: Monday, October 07, 2013 8:27 AM To: White, Claude Subject: RE: Eric Fiedler, M.D. Claude, Would you please provide an update or timeframe within which you expect to respond? Andy From: White, Claude [claude,white @integramed.com] Sent: Tuesday, September 17, 2013 12:20 PM To: Andrew Foulkrod Subject: RE: Eric Fiedler, M.D. Thank you. I will review with Shady Grove representatives and get back to you. 1 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 30 of 37 Claude E. White l Vice President & General Counsel IntegraMed® 2 Manhattanville Rd. ! Purchase, NY 10577 P: 914-251-4142 IF: 914-253-80101 C: 914-318-8382 claude.white(c�integramed.com THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS A PRIVILEDGED ATTORNEY- CLIENT COMMUNICATION AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY THE GENERAL COUNSEL OF INTEGRAMED AMERICA, INC IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT 914-253-8000 AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO ANY MEDIUM. THANK YOU From: Andrew Foulkrod [mailto:Andrew( foulkrod.com] Sent: Tuesday, September 17, 2013 8:54 AM To: White, Claude Subject: Eric Fiedler, M.D. Mr. White, Please see the attached correspondence. Thank you. Andy Foulkrod • 'iri•.;iy... ,r•'• , . 'Y.1:, .r., ... :�.''•, :( . . [n'. . .. ,��..: 1.... 1,. �.."1( i•( ..., ,. •••r v� ,tY t•N. 7 •I!1 I +KI. af,r ((ii:,: hT•it..?Ca'�n1i•`'r7:. ':.,)y • r. , 7 r ;:?.. . . . . t.it ■1}'' SN r n• if. '� .r 1pan ti •.., r.I,i• 2 Case 1:13-cv-02737-CCC Document 1 Fed 11/07/13 Page 31 of 3T,A� 01 07/01/1995 08:39 4077357865 SDF E R ERfFICATIO�I I, ERIC P. FIEDLER, M.D., hereby certify that I have read the foregoing Petition for Pre 'urinary Injunction, which has been drafted by counsel on my behalf, and that the facts set fo therein are true and correct to the best of my knowledge, information and belief. This statement and Verification are made subject to the nalties of 18 Pa.C.S.A. §4904, relat ng to unworn fabrication to authorities; I verify that II the statements made in the fore oing are true and correct and that false statements may s bject me to the penalties of 18 Pa. S.A. §4904. Date;, f° 3 t....- � r�' . � Er c 15:Fied.e , M.D. Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 32 of 37 FOULKROD ELLIS Professional Corporation Andrew H, Foulkrod, Esquire Attorney 1.D. #77394 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Attorney for Petitioner Fax: (717) 909-6955 Eric P. Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler,M.D., • CIVIL ACTION -EQUITY Petitioner • v. • NO: Shady Grove Fertility, Respondent • Proof of Service I hereby certify that I am this 10th day of October, 2013, serving the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121: Party: Respondent Counsel Represented: Respondent VIA FIRST CLASS MAIL VIA FIRST CLASS MAIL AND E-MAIL Name: Shady Grove Fertility Name: Claude E. White, Esquire Address: 355 N. 21st Street, Suite 301 Address: IntegraMed America,Inc. Camp Hill, PA 17011 Two Manhattanville Road Purchase,NY 10577 EMAIL: cwhite ' 'ntegramed.com (Y\. Date: October ]0.2013 Signature Email:andrew@foulkrod.com Andrew H.Foulkrod,Esquire Type/Prtnt Name Phone:j7l7)909-7006 Attorney ID Number:77394 Firm Name: Foulkrod Ellis.P,C Address: 4000 Market Street,Camp Hill,PA 17011 Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 33 of 37 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., CIVIL ACTION - EQUITY Petitioner • da);v. NO: /3- S k / L. • Shady Grove Fertility, . Respondent r rE'm CD - ORDER �' = AND NOW, this j,rik_day of , 2013, it is HEREBY ORDERED that: Respondent shall file and serve a response to the averments contained in the Verified Petition for Preliminary Injunction of Eric P. Fiedler, M.D. (the"Petition")within ,,,26 days hereof. A hearing on the Petition is scheduled for the /g .day of kcjoE,mLEyZ , 2013, at Qy.o am/ in Courtroom 3 , Cumberland County Courthouse, Carlisle, Pa. Within /6 days prior to said hearing, Respondent shall provide to counsel for Petitioner: a. copies, and originals for inspection, of patient x (further identified in the Petition)'s Embryo Inventory Card(s)and IVF Outcome Report(s) provided by Dr. Fiedler's laboratory and clinical practice to Shady Grove; Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 34 of 37 b. copies of patient x's medical records provided by Dr. Fiedler's practice and/or laboratory to Shady Grove; c. copies of patient x's medical records created at Shady Grove; d. copies of all documentation, electronic media and/or records regarding patient x; e. copies of all documentation,electronic media and/or records regarding Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory; and, f, copies of all documentation, electronic media and/or records regarding communication with Dr. Fiedler regarding patient x and/or Shady Grove's decision not to transfer to the uterus any embryos that were cryopreserved in Dr. Fiedler's laboratory. BY THE COURT: /4! J. Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 35 of 37 IL v E P4 OTHOHu 7 GREENBERG TRAURIG, LLP Brian T. Feeney(I.D. No. 78574) x;} ` Charles L. Rombeau (I.D. No. 204859) 2700 Two Commerce Square .t `t §EJ COUNTY PE 2001 Market Street ldY VArli Philadelphia, PA 19103 Tel: 215.988.7800 Fax: 215.988.7801 Attorneys for Respondent Shady Grove feeneyb @gtlaw.com Fertility rombeauc @gtlaw.com Eric P. Fiedler, M.D., CIVIL ACTION - EQUITY Petitioner, v. : No. 13-5904 Shady Grove Fertility, Respondent. ENTRY OF APPEARANCE Kindly enter the appearance of Brian T. Feeney, Esquire and Charles L Rombeau, Esquire, of the law firm Greenberg Traurig, LLP on behalf of Respondent, Shady Grove Fertility. GREENBERG TRAURIG, LLP Dated: October 22, 2013 4 / Brian T. Feeney (PA 78574) Charles L. Rombeau(PA No. 204859) 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 (215)988-7812 Counsel for Respondent Shady Grove Fertility Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 36 of 37 CERTIFICATE OF SERVICE I,Brian T. Feeney,hereby certify that on the 22nd day of October 2013, I caused a true and correct copy of the foregoing ENTRY OF APPEARANCE to be served via First Class US Mail on the following counsel of record: Andrew H. Foulkrod, Esquire Foulkrod Ellis Professional Corporation 4000 Market Street Camp Hill, PA 17011 7- 6 Brian T. Feeney, Esquire Case 1:13-cv-02737-CCC Document 1 Filed 11/07/13 Page 37 of 37 CERTIFICATE OF SERVICE I, Charles L. Rombeau, hereby certify that on the 7th day of November, 2013, I caused a true and correct copy of the foregoing Notice of Removal to be served via First Class Mail upon the following counsel of record: Andrew H. Foulkrod, Esq. Foulkrod Ellis, P.C. 4000 Market Street Camp Hill, PA 17011 Attorneys for Plaintiff /s/Charles L. Rombeau Charles L. Rombeau, Esq. 'JS 44 (Rev.12/07) Case 1:13-cv-02737 EffiL'e 'it dL1d 11/07/13 Page 1 of 2 The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law,except as provided by local rules of court. This form,approved by the Judicial Conference of the United States in September 1974,is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS DEFENDANTS Eric P. Fiedler, M.D. Shady Grove Fertility (b) County of Residence of First Listed Plaintiff Cumberland County County of Residence of First Listed Defendant (EXCEPT IN U.S.PLAINTIFF CASES) (IN U.S.PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES,USE THE LOCATION OF THE LAND INVOLVED. (C) Attorney's(Firm Name,Address,and Telephone Number) Attorneys(If Known) Andrew H. Foulkrod, Foulkrod Ellis, P.C.,4000 Market Street, Camp Hill, Charles L. Rombeau, Greenberg Traurig, LLP,2001 Market St. PA17011, 717.919.7006 Phila., PA 19103, 215.988.7800, rombeauc @gtlaw.com II. BASIS OF JURISDICTION (Place an 'X"in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an"X"in One Box for Plaintiff (For Diversity'Cases Only) and One Box for Defendant) ❑ I U.S.Government ❑ 3 Federal Question PTF DEF PTE DEE Plaintiff (U.S.Goverment Not a Party) Citizen of This State X I ❑ I Incorporated or Principal Place ❑ 4 ❑ 4 of Business In This State ❑2 U.S Government IX 4 Diversity Citizen of Another State ❑ 2 ❑ 2 Incorporated and Principal Place ❑ 5 29 5 Defendant of Business In Another State (Indicate Citizenship of Parties in Item Ill) Citizen or Subject of a ❑ 3 ❑ 3 Foreign Nation ❑ 6 ❑ 6 Foreign Country IV. NATURE OF SUIT (Place an'X"in One Box Only) 1 CONTRACT TORTS FORFEITURE/PENALTY , 'i BANKRUPTCY OTHER STATUTES j ❑ 110 Insurance PERSONAL INJURY PERSONAL INJURY ❑610 Agriculture ❑ 422 Appeal 28 USC 158 ❑ 400 State Reapportiomnent ❑ 120 Marine ❑ 310 Airplane ❑ 362 Personal Injury- ❑620 Other Food&Drug ❑ 423 Withdrawal ❑ 410 Antitrust ❑ 130 Miller Act ❑ 315 Airplane Product Med.Malpractice ❑625 Drug Related Seizure 28 USC 157 ❑ 430 Banks and Banking ❑ 140 Negotiable Instrument Liability ❑ 365 Personal Injury - of Properly 21 USC 881 ❑ 450 Commerce ❑ 150 Recovery of Overpayment 2l( 320 Assault,Libel& Product Liability ❑630 Liquor Laws ( PROPERTY RIGHTS ❑ 460 Deportation &Enforcement ofiudgment Slander ❑ 368 Asbestos Personal ❑640 R R.&Truck ❑ 820 Copyrights ❑ 470 Racketeer Influenced and ❑ 151 Medicare Act ❑ 330 Federal Employers' Injury Product ❑650 Airline Regs. ❑ 830 Patent Comrpt Organizations ❑ 152 Recovery of Defaulted Liability Liability ❑660 Occupational ❑ 840 Trademark ❑ 480 Consumer Credit Student Loans ❑ 340 Marine PERSONAL PROPERTY Safety/Health ❑ 490 Cable/Sat TV (End Veterans) ❑ 345 Marine Product ❑ 370 Other Fraud ❑690 Other ❑ 810 Selective Service ❑ 153 Recovery of Overpayment Liability ❑ 371 Truth in Lending LABOR SOCIAL SECURITY ❑ 850 Securities/Commodities/ of Veteran's Benefits ❑ 350 Motor Vehicle ❑ 380 Other Personal ❑ 710 Fair Labor Standards ❑ 861 HIA(139511) Exchange ❑ 160 Stockholders'Suits ❑ 355 Motor Vehicle Property Damage Act ❑ 862 Black Lung(923) ❑ 875 Customer Challenge ❑ 190 Other Contract Product Liability ❑ 385 Property Damage ❑720 Labor/Mgmt.Relations ❑ 863 DIWC/DIWW(405(g)) 12 USC 3410 ❑ 195 Contract Product Liability ❑ 360 Other Personal Product Liability ❑730 Labor/Mgmt.Reporting ❑ 864 SSID Title XVI ❑ 890 Other Statutory Actions ❑ 196 Franchise Injury &Disclosure Act ❑ 865 RSI(405(g)) ❑ 891 Agricultural Acts 1 REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ❑740 Railway Labor Act FEDERAL TAX SUITS ❑ 892 Economic Stabilization Act ❑210 Land Condemnation ❑ 441 Voting ❑ 510 Motions to Vacate ❑ 790 Other Labor Litigation ❑ 870 Taxes(U.S.Plaintiff ❑ 893 Environmental Matters ❑220 Foreclosure ❑ 442 Employment Sentence ❑ 791 Empl.Ret.Inc. or Defendant) ❑ 894 Energy Allocation Act ❑230 Rent Lease&Ejectment ❑ 443 Housing/ Habeas Corpus: Security Act ❑ 871 IRS—Third Party ❑ 895 Freedom of lnfonnation ❑240 Torts to Land Accommodations ❑ 530 General 26 USC 7609 Act ❑245 Tort Product Liability ❑ 444 Welfare ❑ 535 Death Penally IMMIGRATION ❑ 900Appeal of Fee Determination ❑290 All Other Real Property 0 445 Amer.w/Disabilities- ❑ 540 Mandamus&Other ❑462 Naturalization Application Under Equal Access Employment ❑ 550 Civil Rights ❑463 Habeas Corpus- to Justice ❑ 446 Amer.w/Disabilities- O 555 Prison Condition Alien Detainee ❑ 950 Constitutionality of Other ❑465 Other Immigration State Statutes C7 440 Other Civil Rights Actions V. ORIGIN (Place an"X"in One Box Only) Appeal to District O I Original RI 2 Removed from Transferred from Judge from g 17 3 Remanded from 0 4 Reinstated or 0 5 0 6 Multidistrict O 7 Proceeding State Court Appellate Court Reopened another district Litigation Magistrate (specify) Judgment CA the S.C, it Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION Brief descri tion of cause: Petition for injunctive relief regarding defendants'disclosures to patients VII. REQUESTED IN O CHECK IF THIS IS A CLASS ACTION DEMAND$ CHECK YES only if demanded in complaint: COMPLAINT: UNDER F.R.C.P.23 JURY DEMAND: 0 Yes 0 No VIII. RELATED CASE(S) (See instructions): D IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD November 7, 2013 /s/Charles L. Rombeau (PA 204859) FOR OFFICE USE ONLY RECEIPT S AMOUNT APPLYING HP JUDGE MAG.JUDGE JS 44 Reverse (Rev 12,07> Case 1:13-cv-02737-CCC Document 1-1 Filed 11/07/13 Page 2 of 2 INSTRUCTIONS FOR ATTORNEYS COMPLETING CiVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law,except as provided by local rules of court. This form,approved by the Judicial Conference of the United States in September 1974,is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently,a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a)Plaintiffs-Defendants. Enter names(last,first,middle initial)of plaintiff and defendant. If the plaintiff or defendant is a government agency.use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency.identify first the agency and then the official,giving both name and title. (b)County of Residence. For each civil case filed,except U.S.plaintiff cases,enter the name of the county where the first listed plaintiff resides at the time of tiling. In U.S.plaintiff cases,enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE:in land condemnation cases, the county of residence of the"defendant"is the location of the tract of land involved.) (c)Attorneys. Enter the firm name,address,telephone number,and attorney of record. If there are several attorneys,list them on an attachment,noting in this section"(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a),F.R.C.P.,which requires that jurisdictions be shown in pleadings. Place an"X"in one of the boxes. If there is more than one basis of jurisdiction,precedence is given in the order shown below. United States plaintiff. (1)Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2)When the plaintiff is suing the United States,its officers or agencies,place an"X"in this box. Federal question. (3)This refers to suits under 28 U.S.C. 1331,where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution,an act of Congress or a treaty of the United States. In cases where the U.S.is a party,the U.S.plaintiff or defendant code takes precedence,and box I or 2 should be marked. Diversity of citizenship. (4)This refers to suits under 28 U.S.C. 1332,where parties are citizens of different states. When Box 4 is checked,the citizenship of the different parties must be checked. (See Section III below;federal question actions take precedence over diversity cases.) III. Residence(citizenship)of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an"X"in the appropriate box. If the nature of suit cannot be determined,be sure the cause of action,in Section Vi below,is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit,select the most definitive. V. Origin. Place an"X"in one of the seven boxes. Original Proceedings. (I)Cases which originate in the United States district courts. Removed from State Court. (2)Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C.,Section 1441. When the petition for removal is granted,check this box. Remanded from Appellate Court. (3)Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4)Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5)For cases transferred under Title 28 U.S.C. Section I404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6)Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.Section 1407. When this box is checked,do not check(5)above. Appeal to District Judge from Magistrate Judgment. (7)Check this box for an appeal from a magistrate judge's decision. Vi. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S.Civil Statute:47 USC 553 Brief'Description:Unauthorized reception of cable service ViI. Requested in Complaint. Class Action. Place an"X"in this box if you are filing a class action under Rule 23,F.R.Cv.P. Demand. in this space enter the dollar amount(in thousands of dollars)being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases,insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. CERTIFICATE OF SERVICE I, Charles L. Rombeau, hereby certify that on the 11th day of November, 2013, I caused a true and correct copy of the foregoing Notice of Removal to Federal Court to be served via UPS upon the following counsel of record: Andrew H. Foulkrod, Esq. Foulkrod Ellis, P.C. 4000 Market Street Camp Hill, PA 17011 Attorneys for Petition• Charles L. Rombeau, Esq. fY ' , t1 f ,iJ:;ii it„, 2j3110V 13 PH t• ..�.. W:13:r LMh0 COUNTY E NNSYLVANIA FOULKROD ELLIS Professional Corporation Andrew H. Foulkrod, Esquire Attorney I.D. #77394 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Attorney for Petitioner Fax: (717) 909-6955 Eric P. Fiedler, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., : CIVIL ACTION - EQUITY • Petitioner • v. NO: 13-5904 Civil • Shady Grove Fertility, • Respondent MOTION TO POSTPONE HEARING Petitioner, Eric P. Fiedler, M.D., by and through his counsel, Andrew H. Foulkrod, Esquire, Foulkrod Ellis, P.C., respectfully requests that this Honorable Court postpone the hearing scheduled for 9:30 a.m. on Monday,November 18, 2013, before the Honorable Edward E. Guido, on the Verified Petition for Preliminary Injunction of Eric P. Fiedler, M.D. ("Petition"), as follows: 1. Respondent filed a Notice of Removal with the United States District Court for the Middle District of Pennsylvania("Federal Court") on November 7, 2013 (the "Notice of Removal"), and filed a copy of the Notice of Removal with this Honorable Court on November 11, 2013. Respondent's Notice of Removal alleges that the Federal Court has jurisdiction. 2. Respondent's Notice of Removal effectively removes this case from this Honorable Court, unless and until the case is remanded by the Federal Court. 28 USC 1446(d). 3. Although Petitioner has filed a motion with the Federal Court to remand the case to this Honorable Court, it is very highly unlikely that the jurisdictional issues will be resolved in the Federal Court prior to the scheduled hearing; moreover, Respondent has not provided the discovery which this Honorable Court had Ordered, and which will be required prior to conducting a hearing. 4. Although Petitioner desires to move this matter forward as expeditiously as possible, this case is not currently before this Honorable Court, and therefore a hearing before this Honorable Court would not be appropriate, unless and until the case is remanded. 5. Judge Guido's chambers advised that a motion would be required to postpone the hearing pursuant to Respondent's Notice of Removal. WHEREFORE, Petitioner, Eric P. Fiedler, M.D., respectfully requests that this Honorable Court postpone the hearing on the Verified Petition for Preliminary Injunction of Eric P. Fiedler, M.D., currently scheduled for Monday, November 18, 2013. Respectfully submitted, FOULKROD ELLIS Prof es to Corporation Date: i By: Andrew H. Nulkrod, Esquire Court I.D. No. 77394 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 1c) 1A -day of h) ,--2013, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania,postage prepaid, first class delivery, and addressed as follows: Brian T. Feeney, Esquire Charles L. Rombeau, Esquire Greenberg Traurig, LLP 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Counsel for Respondent, Shady Grove Fertility FOULKROD ELLIS PROFESSIONAL CORPORATION By: Crystal L. Nemetz, Secre 3 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Eric P. Fiedler, M.D., CIVIL ACTION - EQUITY Petitioner V. NO: 13-5904 Civil Shady Grove Fertility, Respondent ORDER � AND NOW, this /I ty of A10 YfihY1�0 l7� �/f . , 2013, the hearing on the Verified Petition for Preliminary Injunction of Eric P. Fiedler, scheduled pursuant to an Order signed by the Honorable Edward E. Guido dated r 15, 2QJ.3, is hereb POSTPONED J. I�/s�i3 3 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ` ' `< Sheriff w th,,, of ta�,,totr 1-t13,rx DEC -2 rill: {t., ,, Jody S Smith � Chief Deputy r CO try Richard W Stewart LVANIA Solicitor t.F Eric P. Fiedler vs. Case Number Shady Grove Fertility(et al.) 2013-5904 SHERIFF'S RETURN OF SERVICE 11/06/2013 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Marc Portmann, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Chester, Pennsylvania to serve the within Writ of Summons according to law. 11/14/2013 Ronny R Anderson, Sheriff,who being duly sworn according to law, states this Subpoena upon defendant Dani L Healy is returned not served per request from attorney Foulkrod. 11/25/2013 The Sheriff of Chester County, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Marc Portmann, but was unable to locate the Defendant in his bailiwick. The Chester County Sheriff therefore returns the within requested Writ of Summons as"Not Served"at Chesterbrook Blvd., 945 Chestbrook Blvd., Chesterbrook, PA 19087 per Attorney request. SHERIFF COST: $64.76 SO ANSWERS, November 25, 2013 RONNY R ANDERSON, SHERIFF v:a e ir. ei oscr• '.:c. { J H E-A 2..1/V e r //- / -13 V:30/9-#'--t. 4 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson 0. .;„f .0 at Cac¢,at� -ft Sheriff o Jody S Smith Richard W Stewart Chief Deputy _•_ -�` -,;.t.= iFF Solicitor Eric P. Fiedler vs. a um er Shady Grove Fertility(et al.) 2013-5904 0 SERVICE COVER SHEET ii, N_ Service i"ailS: � � � �'u 'r- @ 7 � • Category: Civil Action -Writ of Summons Zone: Manner: Deputize Expires: 11/18/2013 Warrant: Notes: PLEASE EXPEDITE PER ATTY. REQUEST t- oo 0 a) a o ServeT.oR ' '9 £41 a E Fina 4 r ;'p` : CO Name: Marc Portmann Served: Personally• Adult In Charge • Posted • Other Primary 945 Chestbrook Blvd. Adult In w Address: iChesterbrook, PA 19087 Charge: - Phone: DOB: Relation: p Alternate = Date: = Time: • Address: O _ . ... O Phone: Deputy: Mileage: v Name: Phone: 717-909-7006 to a1 i 3k �f1�I 6s� � '�<;... �. , ,. �ma7z,°::. ��s�;r"=xdt:.�;s��a: -�.'S ... ...s».h�Ik3 Date: -3 • o Time: ) 3 o '4 Mileage: /4 . hi..4./iy Deputy: VI to 3 es/ ppci, •n i 3 �r a s�. . Pc� i 1T0 Mid P 4\1(17- S S E Ltr, n 0 re Now, November 06, 2013 I, Sheriff of Cumberland County, Pennsylvania do hereby deputize the Sheriff of Chester County to execute service of the documents herewith and make return thereof according to law. 1-• Return To: m Cumberland County Sheriffs Office a One Courthouse Square Carlisle, PA 17013 Ronny R Anderson, Sheriff ')(/ From:FOULKROD ELLIS 717 909 6955 11 /12/2013 11 :37 #611 P.002/002 FOULKROD ELLIS 1401144.44.41 ATTORNEYS AND COUNSELORS AT LAW 4000 MARKET STREET CAMP HILL,PENNSYLVANIA 17011 PHONE(717)909-7006 FAX(717)909-6955 ANDREW H. FOULKROD andrew @foulkrod.com Phone Extension:4 • November 12,2013 VIA FACSIMILE—(717) 240-6397 Cumberland County Courthouse Office of the Sheriff One Courthouse Square Carlisle, PA 17013 Re: Fiedler v. Shady Grove Fertility Center Docket No. 13-5904 Our File No. 3812 Dear Sheriff: Service of the following subpoenas for hearing was previously requested: • Cumberland County—Dani L. Healey • Chester County—Marc Portmann This case has now been removed to Federal Court. For this reason, the hearing has been cancelled and our office is requesting the withdrawal of the service of these two subpoenas. Thank you for your attention to this matter. Sinc-;�I�,� Andr- H. Foulkrod /cws