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T.W.; R.H.; K.S.; L.K.; K.F., : IN THE COURT OF COMMON PLEAS OF
a Minor, by A.F., Guardian; : CUMBERLAND COUNTY, PENNSYLVANIA
C.A., a Minor, by K.A., :
Guardian; G.S., a Minor, by :
L.W., Guardian; L.B., a Minor, : CIVIL ACTION—MEDICAL PROFESSIONAL
by M.B., Guardian; and F.B., : LIABILITYACTION
a Minor, by M.B., Guardian; :
S.L., individually and on behalf :
of all persons similarly situated; : CLASS ACTION
Plaintiffs :
:
v. :
:
UPMC; UPMC PINNACLE; and :
UPMC CARLISLE, d/b/a/ UPMC :
PINNACLE CARLISLE, d/b/a :
PINNACLE HEALTH :
CARLISLE REGIONAL :
MEDICAL CENTER, :
Defendants : NO. 2019-13625 CIVIL TERM
IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFFS’ FIRST
AMENDED CLASS ACTION COMPLAINT
BEFORE PLACEY, J.
OPINION and ORDER OF COURT
PLACEY, J., July 28, 2020.
For disposition in this medical professional liability case are preliminary
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objections filed by Defendants to Plaintiffs’ first amended class action complaint. The
preliminary objections are in the form of a motion to strike the complaint, without
1
Defendants’ Preliminary Objections to Plaintiffs’ First Amended Class Action Complaint, filed May 21,
2020 (hereinafter Defendants’ Preliminary Objections).
2
Plaintiffs’ First Amended Class Action Complaint, filed April 6, 2020 (hereinafter Plaintiffs’ First
Amended Complaint).
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prejudice, for failure to identify certain plaintiffs by more than their initials and a motion
4
to strike an allegation of recklessness in the complaint.
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Briefs have been submitted on behalf of Plaintiffs and Defendants. Pursuant to
7
the court’s administrative order dated May 27, 2020, the matter will be decided on
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briefs.
For the reasons stated in this opinion, Defendants’ preliminary objections will be
sustained in part and denied in part.
STATEMENT OF FACTS
The allegations of Plaintiff’s First Amended Complaint may be summarized as
follows: While in the employ of Defendants from January, 2016, to April 19, 2019, a
certain hospital emergency room nurse surreptitiously videotaped more than 200 adult
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and minor female patients in various phases of undress. In the course of this conduct,
10
the nurse “made patients strip nude unnecessarily,” and it is believed that he shared
11
the “illicit video(s) and/or image(s) on the internet with other predators.” This conduct
resulted in direct and vicarious liability on the part of Defendants to the patients as
follows:
3
Defendants’ Preliminary Objections, ¶¶3-7.
4
Id., at ¶¶8-11.
5
Plaintiffs’ Brief in Opposition to Defendants’ Preliminary Objections, filed June 8, 2020 (hereinafter
Plaintiffs’ Brief).
6
Defendants’ Brief in Support of Preliminary Objections, filed May 21, 2020.
7
Administrative Order, dated May 27, 2020, No. 2020-02825 Civil (Cumberland County).
8
See Order of Court, dated June 12, 2020;
9
Plaintiffs’ First Amended Complaint, ¶¶1, 9-14, 21-22, 30.
10
Id., at ¶32.
11
Id., at ¶31.
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“Corporate Negligence, Gross Negligence, and/or Incompetence” on the
part of Defendants was evidenced
a. by failing to properly implement and/or follow and/or ignoring policies
and/or procedures related to the supervision of patients, employees,
and/or hospital facilities;
b. by failing to properly implement and/or follow and/or ignoring policies
and procedures regarding inspection of patient rooms, outlets,
electronics, and/or devices in the ER;
c. by failing to properly implement and/or follow and/or ignoring policies
regarding the access of devices on the hospital’s network, and/or the
downloading, uploading, or sharing of images on the hospital’s
network;
d. by not properly screening, interviewing, hiring, retaining, and/or
training employees/volunteers/contractors/agents fit to treat patients,
or to supervise patients, employees, and/or hospital facilities,
including \[the nurse\];
e. by not hiring enough numbers of employees/ volunteers/ contractors/
agents to supervise patients, employees, and/or hospital facilities;
f. by failing to properly train employees/volunteers/contractors/agents
regarding sexual abuse and/or exploitation prevention;
g. by failing to screen, investigate, respond to, consider, inform, and/or
warn relevant individuals regarding \[the nurse\];
h. by failing to recognize red flags in \[the nurse’s\] conduct, including,
but not limited to, \[the nurse’s\] direction to female patients that they
completely remove clothing when there was no reason to do so;
i. by failing to supervise \[the nurse\] at all relevant times; and,
j. by violating the Restatement (Second) of Torts §§ 344, 324A, 328D,
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323, and/or 302.
13
In this regard, “Defendants had a duty to patients to protect them from harm,”
Defendants “knew or should have known of a risk of sexually exploitive or abusive
12
Id., at ¶57.
13
Id., at ¶53.
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behavior occurring at \[Defendants’\] hospitals,” other instances of similar sexually
exploitive or abusive behavior had occurred “at \[Defendants\] hospitals, and other
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companies’ medical facilities, prior to \[the nurse’s\] arrest on April 19, 2019,” and
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“Defendants knew or should have known of \[the nurse’s\] conduct.” “Due to the actions
and omissions of \[Defendants\] … , \[Plaintiffs\] suffered damages, including physical,
psychological, psychiatric, and/or emotional damages, as well as past and future
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medical expenses and past and future loss of earning and/or earning capacity.”
“Vicarious Liability—Negligence, Gross Negligence, and/or Incompetence” on the
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part of Defendants was evidenced through the same failures by their agents. In this
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regard, “Defendants’ agents had a duty to patients to protect them from harm,”
Defendants “knew or should have known of a risk of sexually exploitive or abusive
20
behavior occurring at \[Defendants’\] hospitals,” other instances of similar sexually
exploitive or abusive behavior had occurred “at \[Defendants\] hospitals, and other
21
companies’ medical facilities, prior to \[the nurse’s\] arrest on April 19, 2019,” and
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“Defendants knew or should have known of \[the nurse’s\] conduct.” As a result of the
14
Id., at ¶54.
15
Plaintiffs’ First Amended Complaint, ¶55.
16
Id., at ¶57.
17
Id., at ¶50.
18
Id., at ¶64.
19
Id., at ¶60 (emphasis added).
20
Id., at ¶61
21
Plaintiffs’ First Amended Complaint, ¶62.
22
Id., at ¶63.
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“agents’ negligent, careless, grossly negligent, reckless, and/or incompetent actions and
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omissions, \[Plaintiffs\] suffered severe injuries.”
The First Amended Complaint alleges that “the \[Pennsylvania Attorney
General’s\] office has only been able to identify approximately 50 of \[the nurse’s\] more
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than 200 known victims.” For purposes of this litigation, the complaint requests that
the court certify a class of “(1) all identified victims of \[the nurse and\] (2) identifiable
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victims of \[the nurse\].”
Plaintiff Class Representatives T.W., R.H., K.S., and L.K. are “adult female
residents of Pennsylvania, who were treated at UPMC-Carlisle between January 2016
and April 19, 2019” and who “have been able to identify themselves in video(s) and/or
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image(s) created by \[the nurse\] at UPMC-Carlisle … .” Minor-Plaintiff Class
Representatives K.F., C.A., G.S., and L.B., by their respective guardians, are minor
female residents of Pennsylvania, “who were similarly treated at UPMC-Carlisle
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between January 2016 and April 19, 2019,” and “have identified themselves in
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video(s) and/or image(s) created by \[the nurse\] at UPMC-Carlisle … .”
According to the pleading, “Plaintiff Class Representatives \[have all been\]
identified by their initials, as this case involves sexual victimization, and thus implicates
29
important privacy rights. The Defendants shall be made aware of their identities.”
23
Id., at ¶65 (emphasis added).
24
Id., at ¶28.
25
Id., at ¶33.
26
Id., at ¶12.
27
Plaintiffs’ First Amended Complaint, ¶13.
28
Id., at ¶14.
29
Id., at ¶15.
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Plaintiffs’ initial complaint in this matter utilized the words “reckless,” “recklessly,”
or “recklessness” in characterizing the conduct upon which their claims were predicated
3031
28 times, and explicitly requested punitive damages. In response to preliminary
32
objections to the allegations of recklessness, and to the request for punitive
33
damages, Plaintiffs’ First Amended Complaint virtually eliminated all references to
34
recklessness and omitted any specific request for punitive damages. Inadvertently or
35
not, however, one reference to recklessness escaped deletion.
On May 21, 2020, Defendants filed the preliminary objections to Plaintiffs’ First
36
Amended Complaint sub judice. The preliminary objections request that the complaint
be stricken, without prejudice, for failure to identify the adult plaintiffs and guardians by
37
more than their initials and to strike the remaining reference to recklessness in the
38
complaint. In a response to the preliminary objections, Plaintiffs defend the use of
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initials to identify plaintiffs in sexual abuse cases, and contend that the complaint
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“contains more than enough factual allegations to rise to the level of recklessness.”
30
Plaintiffs’ Class Action Complaint, filed December 27, 2019.
31
Plaintiffs’ Class Action Complaint, prayers for relief, filed December 27, 2019.
32
Defendants’ Preliminary Objections to Plaintiffs’ Class Action Complaint, ¶¶15-18, filed March 16,
2020.
33
Defendants’ Preliminary Objections to Plaintiffs’ Class Action Complaint, ¶¶19-24, filed March 16,
2020.
34
See Plaintiffs’ First Amended Complaint.
35
See text accompanying note 23 supra.
36
Defendants’ Preliminary Objections.
37
Id., at ¶¶3-7. Defendants do not challenge the identification of minor plaintiffs by initials. Id., at ¶5.
38
Id., at ¶¶8-11.
39
Plaintiffs’ Response to the Preliminary Objections of Defendants, ¶¶3-7, filed June 8, 2020.
40
Id., at ¶¶8-11.
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DISCUSSION
Identification of plaintiffs. Under Pennsylvania Rule of Civil Procedure 1018,
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“\[t\]he caption of a complaint shall set forth … the names of all the \[known\] parties … .”
It has been said that this requirement “is not complied with by using a party’s initials.” A.
McD. v. Rosen, 621 A.2d 128, 129 n.1 (Pa. Super. 1993). An exception to the Rule is
not warranted by the fact that the case involves matters of a sexual nature
embarrassing to the plaintiff. R.W. v. Hampe, 626 A.2d 1218 (Pa. Super. 1993) (lower
court held to have abused discretion in permitting identification of plaintiff by initials in
suit against psychiatrist where treatment-related details of patient’s third-party sexual
history were pertinent to case).
In declining to authorize an adult plaintiff’s identification in the caption of a case
by initials, notwithstanding embarrassment to the plaintiff of a sexual nature, the court in
Hampe cited a “common law presumption of openness,” arising out of “a common law
right of access to judicial records.” Id., at 1220; see generally Hutchison v. Luddy, 581
A.2d 578 (Pa. Super. 1990), rev’d on other grounds, 594 A.2d 307 (Pa. 1991); Katz v.
Katz, 514 A.2d 1374 (Pa. Super. 1986).
In support of the “vast\[ly\] importan\[t\]” principle of openness, the Hampe court
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cited such legal scholars as Hale, Blackstone, Holmes, and Wigmore, noting the
following rationale provided by Justice Holmes:
It is desirable that the trial of \[civil\] causes should take place under the
public eye, not because the controversies of one citizen with another
are of public concern, but because it is of the highest moment that
those who administer justice should always act under the sense of
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Pa. R.C.P. 1018.
42
Hampe, 626 A.2d at 1220-21 (Pa. Super. 1993).
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public responsibility, and that every citizen should be able to satisfy
himself with his own eyes as to the mode in which a public duty is
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performed.
Other benefits of openness in the judicial system are also enumerated in the Court’s
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decision declining to authorize the plaintiff’s identification by initials. The court pointed
out, in addition, that in the discovery phase of a case protections against
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embarrassment might be alternatively available by way of protective orders.
Some courts have formulated a detailed balancing test with respect to the issue
of a plaintiff’s identification. See, e.g., Doe v. Provident Life and Accident Insurance
Company, 176 F.R.D. 464 (E.D. Pa. 1997). Thus, in Provident Life, while
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acknowledging “the strong public interest militating against pseudonymity,” and
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placing the burden of proof upon the plaintiff, a federal court listed the following
considerations to be applied to the issue:
The factors which support the use of pseudonymous
litigation are as follows: (1) the extent to which the identity of
the litigant has been kept confidential; (2) the bases upon
which disclosure is feared or sought to be avoided, and the
substantiality of these bases; (3) the magnitude of the public
interest in maintaining the confidentiality of the litigant’s
identify; (4) whether, because of the purely legal nature of
the issues presented or otherwise, there is an atypically
weak public interest in knowing the litigant’s identities; (5)
the undesirability of an outcome adverse to the
pseudonymous party and attributable to his refusal to pursue
the case at the price of being publicly identified; and (6)
43
Id., at 1221.
44
Id., at 1220-21.
45
Id., at 1220-1224.
46
Provident Life, 176 F.R.D. at 466.
47
Id., at 467.
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whether the party seeking to sue pseudonymously has
illegitimate ulterior motives. …
On the other side of the scale, the factors which militate
against the use of a pseudonym are as follows: (1) the universal
universal level of public interest in access to the identities of
litigants; (2) whether, because of the subject matter of this
litigation, the status of the litigant as a public figure, or
otherwise, there is a particularly strong interest in knowing the
the litigant’s identities, beyond the public’s interest which is
normally obtained; and (3) whether the opposition to
pseudonym by counsel, the public, or the press is illegitimately
motivated… . The factors, in favor of and against
pseudonymity, listed above are not meant to comprise an
inclusive list of factors to be exclusively considered when
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determining the propriety of pseudonymous litigation… .
See also A.R. v. Norris, No. 2016-207 C.P. (Susquehanna County) (slip op. January 31,
2017); contra Roe v. New York, 49 F.R.D. 279 (S.D.N.Y. 1970).
Finally, Pennsylvania Rule of Civil Procedure 223 perhaps provides some leeway
for a trial court to fashion an exception to Rules 1018 and 2028 in an extreme case:
Subject to the requirements of due process of law and of the
constitutional rights of the parties, the court may make and enforce
rules and orders covering any of the following matters, inter alia: …
(4) Regulating or excluding the public or persons not interested in
the proceedings whenever the court deems such regulation or
exclusion to be in the interest of the public good, order or morals.
In the present case, while the court is persuaded that the Hampe decision
counsels against permitting adult plaintiffs herein who are not serving as guardians of
minors to identify themselves by their initials only, it is also persuaded by Plaintiffs’
argument in its brief that, as to adults serving as guardians, “if Plaintiffs’ guardians’ full
names are disclosed next to their children’s initials, the minors’ anonymity is destroyed,
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Id., at 467-68 (citations omitted).
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as minors and guardians typically share last names.” Given the protections generally
afforded minors with respect their identities as litigants in Pennsylvania, the fact that
abuse of the minors of a sexual nature is alleged to have taken place, and the possibility
that such abuse has been memorialized on the internet, Defendants’ preliminary
objections to the use of initials for purposes of identification of parental guardians herein
will be dismissed, while they will be sustained as to other adult plaintiffs.
Recklessness. It has been said that “reckless conduct may be sufficient to
support” an award of punitive damages. Renk v. City of Pittsburgh, 641 A.2d 289, 294
(Pa. 1994). However, “punitive damages are an extreme remedy available in only the
most exceptional matters.” Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005)
(citation omitted). “In Pennsylvania, a punitive damages claim must be supported by
evidence sufficient to establish that (1) a defendant had a subjective appreciation of the
risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as
the case may be, in conscious disregard of that risk.” Hutchison v. Luddy, 870 A.2d 766,
772 (Pa. 2005).
With respect to recklessness, the Pennsylvania Superior Court has stated that
in order to be reckless, conduct must be unreasonable; but to be
reckless it must be something more than negligent. It must not only be
unreasonable, but it must involve a risk of harm to others substantially
in excess of that necessary to make the conduct negligent. It must
involve an easily perceptible danger of death or substantial physical
harm, and the probability that it will so result must be substantially
greater than is required for ordinary negligence.
The actor to be reckless must recognize that his conduct involves a
risk substantially greater in amount than that which is necessary to
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Plaintiffs’ Brief at 4 n.7.
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make his conduct negligent. The difference between reckless
misconduct and conduct involving only such a quantum of risk as is
necessary to make it negligent is a difference in the degree of the risk,
but this difference of degree is so marked as to amount substantially to
a difference in kind.
Moran v. Estate of Moran, 586 A.2d 416, 423 (Pa. Super. 1991); see also Pennsylvania
th
Suggested Standard Civil Jury Instructions §13.60 (4 ed. 2015) (“conscious disregard
of the likelihood of harm to others” required for reckless conduct). Stated more briefly,
an “intentional indifference or conscious disregard of risks … defines recklessness.”
Feleccia v. Lackawanna College 215 A.3d 3, 20 (Pa. 2019).
In the present case, a fair reading of Plaintiffs’ First Amended complaint does
not, in the court’s view, support a conclusion that Defendants were intentionally
indifferent to the risk that their employee in the person of an emergency room nurse
would commit the acts of misconduct attributed to him. Accordingly, Defendants’
preliminary objection in the form of a motion to strike the allegation of recklessness in
the complaint will be sustained.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
TH
AND NOW, this 28 day of July, 2020, upon consideration of Defendants’
Preliminary Objections to Plaintiffs’ First Amended Class Action Complaint, filed May
21, 2010, and for the reasons stated in the accompanying opinion, it is ordered and
directed as follows:
1. The preliminary objection in the form of a motion to strike the
complaint, without prejudice, based upon the failure to identify
adult plaintiffs by more than their initials is denied to the extent
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that it relates to parental guardians and is otherwise sustained,
without prejudice to Plaintiffs’ right to file an amended complaint;
2. The preliminary objection in the form of a motion to strike the
allegation of recklessness in the complaint is sustained; and
3. Plaintiffs are afforded a period of 20 days from the date of this
order within which to file a Second Amended Class Action
Complaint, consistent herewith.
BY THE COURT,
_____________________
Thomas A. Placey C.P.J.
Distribution:
Benjamin D. Andreozzi, Esq.
ANDREOZZI & FOOTE
4503 North Front Street
Harrisburg, PA 17110
Attorneys for Plaintiffs
John C. Conti, Esq.
DICKIE, McCAMEY & CHILCOTE, P.C.
Suite 400
Two PPG Place
Pittsburgh, PA 15222-5402
and
Hubert X. Gilroy, Esq.
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
Attorneys for Defendants
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