18970 | 3rd Cir. | Mar 1, 1971
437 F.2d 955" date_filed="1971-03-01" court="3rd Cir." case_name="Robert Petty v. E. Somers">437 F.2d 955
Robert F. PETTY, Guardian of the Estate of Ardell Donaldson, a minor
v.
E. E. SOMERS, W. J. Mitchell and Charleroi-Monessen
Hospital, Robert F. Petty, Guardian of the Estate of Ardell
Donaldson, a minor, Appellant in No. 18,969,
Charleroi-Monessen Hospital, Appellant in No. 18,970.
Nos. 18969, 18970.
United States Court of Appeals, Third Circuit.
Argued Jan. 8, 1971.
March 1, 1971.
Decided March 1, 1971,
Hymen Schlesinger, Pittsburgh, Pa., for appellant in No. 18969 and appellee in No. 18970.
Norman J. Cowie, Thomson, Rhodes & Grigsby, Pittsburgh, Pa., argued for appellee (Charleroi-Monessen Hospital) in No. 18969 and appellant in No. 18970.
Bruce R. Martin, Pittsburgh, Pa., for appellees, E. E. Somers and W. J. Mitchell in both cases.
Before GANEY and ADAMS, Circuit Judges, and WEIS, District Judge.
OPINION OF THE COURT
PER CURIAM:
Plaintiff, a citizen of New Jersey, brought this action as guardian for Ardell Donaldson, a Pennsylvania citizen, against the defendants, individual doctors and hospital, also citizens of Pennsylvania. The suit is based on a claim for personal injuries received as a result of alleged medical malpractice.
The district court found that diversity had been 'manufactured'; that suits had been filed in state courts against the individual defendants before the statute of limitations had run; but that timely action had not been taken against the hospital which refused to waive the limitations defense.
Following the holding of McSparran v. Weist, 402 F.2d 867" date_filed="1968-10-24" court="3rd Cir." case_name="Stella Mcsparran Guardian of The Estate of Richard Riegner v. Jeffrey Weist">402 F.2d 867 (3rd Cir. 1968), cert. den. sub nomine Fritzinger v. Weist, 395 U.S. 903" date_filed="1969-05-19" court="SCOTUS" case_name="Monks v. New Jersey">395 U.S. 903, 89 S. Ct. 1739" date_filed="1969-05-19" court="SCOTUS" case_name="Boykin v. Alabama">89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969), the district court dismissed the action as to the individual defendants but denied the motion of the defendant hospital.
The plaintiff appellant disputes the factual determinations made by the lower court but the record contains ample support for the findings and we will not disturb them.
The hospital appellant contests prospective application of the 'manufactured diversity' doctrine. This issue was considered and decided adversely to appellant by the court en banc in McSparran v. Weist, supra. Accord: Green v. Hale, 433 F.2d 324" date_filed="1970-11-17" court="5th Cir." case_name="Wilbur Green, Administrator of the Estate of Phillip Ray Walker, Deceased v. William P. Hale, O. H. Thompson, Vaneta Thompson">433 F.2d 324 (5th Cir. 1970); Lester v. McFaddon, 415 F.2d 1101" date_filed="1969-09-15" court="4th Cir." case_name="James L. Lester, Administrator of the Estate of Flossie Mae Garner Brown, Deceased v. Heyward McFaddon and Cameron Lumber Company">415 F.2d 1101 (4th Cir. 1969).
The judgment will be affirmed.