Eleventh Circuit Court Of Appeals Upholds Jurisdiction Of Claims Filed By Victim Of Italian Air Disaster

Posted on June 16, 2008 by Bob Dennison

In the matter King v. Cessna Aircraft Company, et al., 505 F.3d 1160 (2007), the United States Court of Appeals, Eleventh Circuit, held that the lower court did maintain subject matter jurisdiction over claims relating to a massive aviation disaster that occurred in Italy. The disaster took place when two aircraft collided on an active runway in Milan, Italy resulting in the deaths of One Hundred Eighteen people and severely injuring another. The estates of Seventy Victims and one personal injury claimant filed a legal action in the Southern District of Florida. Sixty Nine of the claimants, including the personal injury claimant were European Citizens. The remaining plaintiff was the filed by Jack King, the father and personal representative of the estate of Jessica King, an American citizen. Jessica King was born in California but for the preceding eleven years prior to the incident, Ms. King was physically residing abroad in furtherance of her mobile career in hotel management. Many other claims were filed in Italy.

Cessna, a Florida Defendant, filed, inter alia, a motion to dismiss in favor of the Italian courts on grounds of forum non conveniens, as well as a motion to dismiss on grounds that the District Court lacked subject matter jurisdiction. Cessna argued that the presence of the King action destroyed diversity jurisdiction.

The lower court did eventually grant the forum non motions as to the European claimants, however, it also concluded that Mr. King, a citizen of the United States, deserved full deference to his choice of forum typically afforded to domestic plaintiffs and maintained jurisdiction. The lower court, however, did issue a stay over the King litigation pending resolution of the Italian litigation. Appeals were taken by all parties-- Cessna on jurisdiction; King on stay; and the European claimants on forum non.

Cessna argued on appeal the presence of King destroyed diversity jurisdiction. The Court found that for purposes of diversity jurisdiction where an estate is a party, the citizenship that counts is that of the decedent and citizenship is deemed to be that of the decedent's domicile at the time of death. Cessna further argued that Ms. King maintained minimal ties to California during the eleven years prior to her death and while living abroad and argued that Ms. King's legal domicile was or should be that of the country in which she resided at the time of her death which would have then placed her in the shoes of the European claimants for forum non purposes.

The Court of Appeals found persuasive that Ms. King's California domicile remained unaffected because she never formed the requisite intent to change her California domicile and that her residence abroad was in pursuit of here career goals in hotel management and in furtherance of her employer's interests. As such, the Court maintained that subject matter was properly conferred upon the lower court. As to the Stay, even though the issue presented was interlocutory, the Court invoked an exception to confer jurisdiction upon itself to review the appeal holding that Stay "effectively put King out of Court" for an indeterminate period of time and vacated the Stay. As to the Sixty Nine European claimants, the Court took notice that among the reasons the lower court issued a stay in the first place was an attempt to avoid duplicitous litigation. Given that the Court ruled that the King case was proper and should proceed, and therefore multiple litigations could not be avoided, the Court also vacated the forum non dismissal and remanded the case to the lower court for further proceedings consistent with the Court opinion.

 
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Federal Pennsylvania Court Weighs in on the Certificate-of-Merit Rules in Professional-Liability Actions

Posted on June 16, 2008 by Megan Browne

Under Pennsylvania state court rules, a plaintiff suing a defendant for professional liability has to file a certificate, as to every claim asserted, confirming that the plaintiff obtained a written statement from a professional in the same profession as the defendant stating that the defendant’s actions fell below the applicable standard of care.

The Supreme Court of Pennsylvania adopted this requirement in January 2003 because of an increase in malpractice lawsuits and the concern that frivolous lawsuits were allowing to proceed. With this requirement, it is no longer enough that a plaintiff’s lawyer believed a professional did or did not do something that was expected. The requirement has been strictly construed by the courts, and, if a proper and timely certificate is not filed as to a claim, the claim will be dismissed, subject to the plaintiff’s ability to petition to open the claim.

Even though the requirement is set out in Pennsylvania state court rules, federal courts in Pennsylvania has consistently applied it to professional-liability claims in federal court. For example, it was recently applied in Stroud v. Abington Memorial Hospital .There, the court dismissed a professional-liability claim against the defendant hospital because there was not a certificate as to that claim. It did so even though the Complaint stated allegations in support of that claim and even though a certificate was filed for a different claim against the hospital.

Another highlight of the decision is the court’s explanation that, if a hospital is sued because it is alleged to be liable for the actions of an employee or alleged agent, the plaintiff must file a certificate of merit as to the hospital and one as to each employee or agent whose actions are at issue. This is required by the plain language of the rules. In Shroud, the plaintiff filed a certificate against the hospital certifying that the claim against the hospital was based solely on actions of other licensed professionals, along with a certificate as to one doctor who was alleged to be the hospital’s agent. The court found that the two certificates “must be read as representing . . that the claims against Hospital were limited to answering in respondeat superior for the alleged negligence” of the doctor. It did not matter that the Complaint pled another claim.  This analysis is consistent with the intent behind the requirement of certificates of merit in that it will prevent plaintiffs from filing lawsuits asserting multiple claims on a fishing expedition and based only on the plaintiff’s lawyer’s belief that liability exists. Instead, before filing a lawsuit or soon thereafter, plaintiffs must have a defendant’s actions reviewed by a like professional who must opine that malpractice occurred and that there is support for every claim asserted. Without that opinion, the lawsuit or some of its claims cannot go forward.

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