# ROSADO v. JANE DOE (LAW LIBRIAN)

> District Court, M.D. Pennsylvania · May 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10410442

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BERONIMO FRATICELLI ROSADO, Civil No. 3:18-cv-0601

Plaintiff (Judge Mariani)
v. .
RUSSELL JO. BELL, et al, .
Defendants
MEMORANDUM
I. Background
Plaintiff Geronimo Fraticelli Rosado, Jr.(“Rosado”) initiated this action in the United
States District Court for the Western District of Pennsylvania on July 31, 2017, setting forth
various claims against Pennsylvania Department of Corrections (“DOC”) officials and
individuals performing work at the State Correctional Institutions at Dallas (“SCl-Dallas”) and
Camp Hill (“SCl-Camp Hill”). (Docs. 1, 3). The matter was transferred to this Court on
March 15, 2018. The matter is proceeding via a Third Amended Complaint. (Doc. 69).
Presently pending are the following motions: motions to dismiss pursuant Rule
12(b)(6) of the Federal Rule of Civil Procedure filed by Defendants Stanish and DeBoer
(Doc. 115) and Defendant Havrilla (Doc. 125); Rosado’s “motion to clear any misconception
in support files undisputed facts against Dr. Havrilla” (Doc. 129); and Defendant Havrilla’s
motion to strike Rosado’s “motion to clear any misconception in support files undisputed

facts against Dr. Havrilla.” (Doc. 128). The motions are presently ripe for disposition.
(Docs. 116, 120-122, 124, 126, 127, 130-132). For the reasons set forth below, the motions
to dismiss and the motion to strike will be granted and the “motion to clear any
misconception in support files undisputed facts against Dr. Havrilla” will be stricken.
Il. Motion to Strike and “Motion to Clear Any Misconception in Support Files
Undisputed Facts Against Dr. Havrilla”
In seeking to strike Rosado’s “motion to clear any misconception in support files
undisputed facts against Dr. Havrilla’, Defendant Havrilla argues that it constitutes an
impermissible attempt to amend the Third Amended Complaint and to reintroduce claims
previously stricken by the Court. (Doc. 128, p. 2, ] 6). He also asserts that it alleges facts
outside the pleading, contains disputed facts, and is a duplicative response to his motion to
dismiss. (/d. at pp. 2-3 {J 6-10).
Rosado’s motion is replete with statements of “undisputed facts” and he notes in his
reply brief that the document falls within the parameters of Rule 56. (Doc. 132, p. 1). This
document is more appropriately submitted in opposition to a motion for summary judgment,
not a motion to dismiss. Defendant Havrilla seeks to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12 and the motion can be decided without considering
matters outside the pleadings and without converting the motion to one for summary
judgment. Consequently, the Court will grant Defendant Havrilla’s motion and strike the
document as there is no motion for summary judgment pending.

Ill. Motions to Dismiss
A. — Legal Standards
A complaint must be dismissed under FED. R. Civ P. 12(b)(6), if it does not allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662 (2009).
“Though a complaint ‘does not need detailed factual allegations, ... a formulaic
recitation of the elements of a cause of action will not do.... DelRio-Mocci v. Connolly Prop.
Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,
“[fJactual allegations must be enough to raise a right to relief above the speculative level.”
Covington v. Int'l Ass’n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). A court “take[s] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v.
Abbott Laboratories, 707 F .3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted).
Twombly and /qbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the elements a

plaintiff must plead to state a claim. Second, the court should identify allegations that,
because they are no more than conclusions, are not entitled to the assumption of truth.
Finally, where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
“{W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show/[n] -that the
pleader is entitled to relief.” /qbal, 556 U.S. at 679 (internal citations and quotation marks
omitted). This “plausibility” determination will be a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” /d.
However, even “if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). “[E]ven when
plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it,
unless the district court finds that amendment would be inequitable or futile, the court must
inform the plaintiff that he or she has leave to amend the complaint within a set period of
time. Id.
B. — Pertinent Portions of Rosado’s Third Amended Complaint
In section, “Rule 8(a) Sufficient Notice of Claims and Injuries," Rosado contends that

on May 16, 2013, he submitted an inmate request to be seen by an optometrist.! He avers
that the optometrist informed him that he was not able to correct Rosado’s visual
impairment and referred him to Dr. Havrilla in Kingston, Pennsylvania. (Doc. 69, p. 6, □□□
33-35).
He was seen by Dr. Havrilla on December 20, 2013. However, the doctor was
unable to treat him because Defendants Stanish and DeBoer allegedly failed to send his
medical chart or any documentation. (/d. at pp. 6, 7, {[{] 36-38). He further alleges that Dr.
Havrilla spoke with Defendant Stanish during that visit and reported that Rosado’s
“condition is serious, he has no corrective process to left eye, and requires a corneal graft,
his right eye cataract surgery.” (/d. at p. 7, ] 39). The doctor then allegedly stated “Mr.
Rosado | don't understand what you want me to do for you, your left eye needs a corneal
graft, your right eye cataract surgery, and highly recommend, | cannot issue you glasses.”
(Id. at p. 7, ] 42). Dr. Havrilla then allegedly denied Rosado’s request for a
recommendation for placement in a therapeutic community indicating that he no authority to
do so. (/d. at p. 7, 40-42). Rosado alleges that Stanish concluded on this date that he
would “not be providing any medical expenses for surgery....” (/d. at p. 11, J 89).
He alleges that on or about January 4, 2014, he submitted a sick call request
seeking “an alternative program” and Restasis. (Id. at p. 7, | 43). He was seen by

1 Based on the chronology of events, this request had to be made in May of 2013, not 2014.

Defendant DeBoer who allegedly informed him that there was no record of him seeing Dr.
Havrilla and denied his request for Restasis. (/d. at p. 7, ] 45). He also states that
Defendant Stanish “operated as fraud to reverse a professional medical opinion.” (/d. at p.
8, 7 50).
On July 20, 2014, he allegedly submitted a sick call request due to a recurrence of

an infection and rash near his right eye due to the corneal graft. (/d. at p. 8, 56).
Defendant DeBoer provided him with a generic form of Restasis, which he contends
complicated “both the eye and the infection.” (/d. at p. 8, 7] 58).
On August 18, 2014, Rosado alleges he was again transported to Dr. Havrilla’s
Office. He alleges the following took place during the appointment:
78. However, on August 18, 2014, Plaintiff was brought back to Defendant
Habrilla located at (703 Rutter Ave, Kingston, Pa.) advising Mr. Rosado stating
quote, “We are here to issue you glasses and ordered by Dr. Stanish.”
79. Mr. Rosado in opposition and swiftly responded to Defendant Habrilla,
stating, | sincerely hope you are not wrongfully proscribing [sic] me glasses
after rendering on December 20, 2013, glasses would only impair my vision
and glasses cannot be proscribed [sic].
80. Further, you have strict orders to wrongfully proscribe me glasses to
manifestly place me in (TC) program, please note if you decide to do so, I'll
place a lien on you, and freeze all your assets.
81. Dr Habrilla responded stating quote, “What?["] Officer Rose intervened
stating quote, “Dude what he trying to say is if you wrongfully proscribe him
glasses, he will place a lawsuit against you, trust me | read his record, he no
joke.”
82. Dr. Habrilla responded stating quote, “I cannot issue him glasses, it would
only impair his ability to see, | am calling Stanish immediately, glasses cannot

be proscribed [sic] | will finish the report, do not bring this inmate here again.”
(Id., pp. 10, 11, □□ 78-82). A telephonic conversation then allegedly took place between
Stanish and Havrilla during which Rosado asserts they agreed to provide him inadequate
medical care and agreed upon a false diagnosis. (/d. at p. 11, J] 80-84). He left Dr.
Havrilla’s office with an eyeglass prescription for tinted glasses so as to avoid sunlight and
irritation, and a recommendation that he receive surgery on both eyes. (/d. at p. 11, J 90).
On August 6, 2015, he submitted a sick call request to have his neck examined,
which he alleges was not answered for two days. (/d. at p. 12, J] 93, 94). Defendant
DeBoer told him there was nothing wrong with him and threatened him for seeking medical
attention; a different nurse then evaluated him and prescribed him a ten-day regimen of
muscle relaxers and pain relievers. (/d. at p. 12, J] 95-97).
On November 17, 2015, he sought treatment for the recurring rash and pain and
Defendant DeBoer told him he had no infection and did not treat his ailment. (/d. at p. 13,
100-101). He asserts that the rash went untreated for months. (/d. at p. 13, 7101). He

was eventually seen by the optometrist. He expected to have the recurring rash and pain
addressed. The optometrist informed him that he was there for an eyeglass prescription, not
for treatment of an infection. (Id. at p. 13, JJ 102-1-4). The infection allegedly spread and
Defendant DeBoer continued to inform him that there was no infection and threatened that
she would issue him a misconduct. (/d. at p. 13, ff] 105, 106).

C. Discussion
1. Medical Negligence Claims Against all Defendants
In Pennsylvania, medical negligence, or medical malpractice, is defined as “the
unwarranted departure from generally accepted standards of medical practice resulting in
injury to a patient, including all liability-producing conduct arising from the rendition of
professional medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140,
1145 (Pa. 2003) (citing Hodgson v. Bigelow, 7 A.2d 338 (Pa. 1939)). The existence of an
injury, by itself, does not prove a doctor's negligence. Mitchell v. Shikora, 209 A.3d 307, 315
(Pa. 2019) (citations omitted). Rather, under Pennsylvania law, to “establish a cause of
action for negligence, the plaintiff must prove the following elements: (1) a duty or obligation
recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct
and the resulting injury; and (4) actual damages.” See Northwestern Mut. Life Ins. Co. v.
Babayan, 430 F.3d 121, 139 (3d Cir. 2005) (citing Pittsburgh Nat'l Bank v. Perr, 637 A.2d
334, 336 (Pa. Super. Ct. 1994)): Brown v. Hahnemann Univ. Hosp., 20 F. Supp. 3d 538,
542 (E.D. Pa. 2014); see also Mitchell, 209 A.3d at 315.
Defendants seek to dismiss Rosado’s medical malpractice claims based on his
failure to comply with Pennsylvania’s Certificate of Merit (“COM”) requirements.? In a prior
memorandum (Doc. 107) addressing Defendant Stanish and DeBoer's first motion to

2 Defendant Havrilla seeks dismissal of the negligence claim on various other grounds. Because this
ground is dispositive of the claim, the Court will not address Havrilla’s additional alternative arguments.

dismiss based on a failure to comply with the COM requirements, inter alia, the Court noted
that, although Rosado filed three documents which he identified as COMs (Docs. 30, 84,
85), none complied with the Pennsylvania Rules of Civil Procedure 1042.3. At that time,
based on his pro se status, and an indication from various filings that he did not understand
the COM requirement (Docs. 84, 85), the Court afforded him the opportunity to file a proper
COM and denied Defendants’ motion without prejudice to their right to seek dismissal of the
negligence claims if Rosado failed to satisfy the COM requirement.
Rosado filed a purported COM on October 8, 2020. (Doc. 114). Defendants
promptly filed a motion to dismiss the negligence claims for failure to file a proper COM.
(Doc. 115). Likewise, Defendant Havrilla seeks to dismiss the negligence claims for failure
to file a proper COM. (Doc. 126, pp. 11-13).
Under Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, a plaintiff seeking
to raise medical malpractice claims must file a valid COM. That rule states in pertinent part:
(a) In any action based upon an allegation that a licensed professional deviated
from an acceptable professional standard, the attorney for the plaintiff, or the
plaintiff if not represented, shall file with the complaint or within sixty days after
the filing of the complaint, a certificate of merit signed by the attorney or party
that either []
(1) an appropriate licensed professional has supplied a written statement
that there exists a reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional standards and that
such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional
standard is based solely on allegations that other licensed professionals

for whom this defendant is responsible deviated from an acceptable
professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
Pa. R. Civ. P. 1042.3(a). The requirements of Rule 1042.3 are substantive in nature and,
therefore, federal courts in Pennsylvania must apply these prerequisites of Pennsylvania
law when assessing the merits of a medical malpractice claim. See Liggon-Redding v.
Estate of Sugarman, 659 F.3d 258, 262-65 (3d Cir. 2011); Iwanejko v. Cohen & Grigsby,
P.C., 249 F. App’x 938, 944 (3d Cir. 2007). This requirement applies with equal force to
counseled complaints and to pro se medical malpractice actions brought under state law.
See Hodge v. Dep't of Justice, 372 F. App'x 264, 267 (3d Cir. 2010) (affirming district court's
dismissal of medical negligence claim for failure to file a certificate of merit); Levi v. Lappin,
No. 07-1839, 2009 WL 1770146, at *1 (M.D. Pa. June 22, 2009).
In his COM, Rosado states that “[e]xpert testimony [is] not necessary to prevail, any
lay person can see. However, plaintiff attempted to seek expert testimony, and therefore,
submits to (a).(3).” (Doc. 114, p. 1).
Defendants argue that “to satisfy his burden he must provide expert testimony
establishing to a reasonable degree of medical certainty (1) the standard of care required
from the physicians...; (2) deviation from the standard of care...; and (3) that such deviation
constituted the proximate cause of the harm suffered by Rosado.” (Doc. 116, p. 11).
(citations omitted). They cite to caselaw which holds that competent expert testimony on

10

the standard of care and causation constitutes “indispensable requirements of establishing
a right to recovery.” (Doc. 116, p. 12, citing Hoffman v. Mogil, 665 A.2d 478, 481 (Pa.
Super. 1995): Toogood, 824 A.2d at 1145. See also, Doc. 126, pp. 11, 12, citing Liggon-
Redding, 659 F.3d at 265, and Hakeem v. Salaam, 260 F. App’x 432, 434 (3d Cir. 2008)).
Further, in the absence of such expert testimony, a plaintiff cannot establish a prima facie

case of medical malpractice which precludes proceeding to trial or offering testimony at

some later point in the litigation, absent exceptional circumstances. (Doc. 116, p. 12, citing
Miller v. Sacred Heart Hosp., 753 A.2d 829, 833 (2000); Eaddy v. Hamathy, 694 A.3d 639,
643 (Pa. Super. 1997). See also Doc. 126, p. 11, citing Liggon-Redding, 659 F.3d at 265;
Robles v. Casey, 2012 WL 382986, at *3 n.1 (M.D. Pa. Feb. 6, 2012). Defendants Stanish
and DeBoer also point out that the Pennsylvania legislature prohibits anyone not a
physician from testifying against a physician on the issue of the standard of care and on
causation. (Doc. 116, p. 13, citing 40 P.S. § 1303.512).
To meet the first and second elements of a medical negligence claim, Rosado must
establish by expert testimony “the recognized standard of care and that the care or
treatment rendered fell below such standard.” Titchnell v. United States, 681 F.2d 165, 169
(3d Cir. 1982); Maresca v. Mancall, 135 Fed. Appx. 529, 531 (3d Cir. 2005); Welsh v.
Bulger, 698 A.2d 581, 585 (Pa. 1997) ("{A] plaintiff must present expert testimony to
establish to a reasonable degree of medical certainty that the defendant's acts deviated
from an accepted medical standard, and that such deviation was the proximate cause of the

11

harm suffered.”). “Should a plaintiff certify that expert testimony is unnecessary, ‘in the
absence of exceptional circumstances the attorney is bound by the certification and,
subsequently, the trial court shall preclude the plaintiff from presenting testimony by an
expert on the questions of standard of care and causation.” See Rodriguez v. United
States, No. 3:14-cv-1149, 2016 WL 4480761, at *4 (M.D. Pa. Aug. 23, 2016) (quoting Pa. R.
Civ. P. 1042.3(a)(3), aff'd, 695 F. App’x 669 (3d Cir. 2017). See also, Pa. R. Civ. P.
1042.3(a)(3). In short, “the consequence of such a filing is a prohibition against offering
expert testimony later in the litigation, absent ‘exceptional circumstances.” See Liggon-
Redding, 659 F.3d at 265.
This exception is narrow. “The only instance in which expert testimony is not
required is when the matter is so simple or the lack of care so obvious as to be within the

range of experience and comprehension of non-professional persons.” Hakeem, 260 F.
App’x. at 435 (citing Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 n. 1 (1997)).
Significantly, “[iJt is well-settled that reliance on the doctrine of res ipsa loquitur in medical
negligence cases ‘must be carefully limited.’”* Njos v. United States, 2017 WL 6949812

3 Res ipsa loquitur is a rule of evidence permitting an inference of negligence from the circumstances
surrounding the injury. Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1071
(Pa.2006). The Pennsylvania Supreme Court has adopted res ipsa loquitur as articulated in the
Restatement (Second) of Torts § 328D. /d. (citation omitted). Under § 328D, it may be inferred that the
harm suffered was caused by the negligence of the defendant when: (a) the event is the kind which does
not ordinarily occur in the absence of negligence; (b) the evidence sufficiently eliminates other possible
causes, including the conduct of the plaintiff and third parties; and (c) the indicated negligence is within the
scope of the defendant's duty to the plaintiff. If the court determines that these prerequisites are met, it is
for the jury to determine whether an inference of negligence should be drawn. See Toogood, 573 Pa. 245,
824 A.2d 1140, 1149-50 (Pa.2003) (plurality) (holding that before res ipsa loquitur may be invoked,
plaintiffs must meet the three § 328D conditions).
12

(M.D. Pa. Oct. 17, 2017). Three conditions must be met before the doctrine may be invoked:
(a) either a lay person is able to determine as a matter of common knowledge, or an expert
testifies, that the result which has occurred does not ordinarily occur in the absence of
negligence; (b) the agent or instrumentality causing the harm was within the exclusive
control of the defendant; and (c) the evidence offered is sufficient to remove the causation
question from the realm of conjecture, but not so substantial that it provides a full and
complete explanation of the event. See Toogood, 824 A.2d at 1149-50.
We agree with Defendants. A COM that commits Rosado to proceeding without
expert testimony is fatal to his medical malpractice claims. Although his filing satisfies the
requirements of Rule 1042.3,4 see Liggon-Redding v. Estate of Sugarman, 659 F.3d 258,
265 (3d Cir. 2011), his claims involve an alleged untreated eye infection that caused a
painful rash, which resulted in diminished eyesight and additional injuries to the eye. His
injury concerns complex issues relating to the standard of care and causation, which he
cannot establish without expert testimony. Toogood, 573 Pa. at 264, 824 A.2d at 1151.
This is not a case where a licensed medical professional's deviation from the standard of

care and that deviation’s causation of injury are obvious and within the realm of layperson
knowledge, such as, for example, when a surgeon inadvertently leaves a sponge or other

4 “There is no basis in Pennsylvania law that would permit a district court to reject a filing under Rule
1042.3(a)(3) in favor of one filed under Rule 1042.3(a)(1). Pennsylvania law expressly allows a plaintiff to
proceed on the basis of a certification that expert testimony will not be required to prove his] claim.” See
Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011).
13

medical material/instrument in a patient’s abdominal cavity. See Jones v. Harrisburg
Polyclinic Hospital, 437 A.2d 1134, 1138 n.11 (Pa. 1981). See also Preacher v. Correct
Care Servs., No. 2:19-CV-1207, 2021 WL 862320, at *6 (W.D. Pa. Jan. 29, 2021), report
and recommendation adopted, No. CV 19-1207, 2021 WL 858501 (W.D. Pa. Mar. 8, 2021),
citing Paige v. Holtzapple, 2009 WL 2588849, *4 (M.D. Pa. 2009) (“Where the conduct at
issue constituted an integral part of rendering medical treatment, and involved diagnosis,
care, and treatment by a licensed professional, ... the action is one that is characterized as

a professional negligence action requiring expert testimony”) (collecting cases).
Consequently, he “may not rely upon Rule 1042.3(a)(3) or the doctrine of res ipsa loquit[uJr
to carry his burden of proof on the issues of negligence and causation that are central to this
tort claim.” See Njos, \2017 WL 6949812. Accordingly, Defendants’ motions to dismiss the
medical malpractice claims will be granted.5
2. Eighth Amendment Claim Against Defendant Havrilla
A claim brought pursuant to 42 U.S.C. § 1983 is subject to the same statute of
limitations that applies to personal injury tort claims in the state in which such a claim arises.
See Wallace v. Kato, 549 U.S. 384, 387 (2007); Kach v. Hose, 589 F.3d 626, 639 (3d Cir.
2009). Rosado’s claim arose in Pennsylvania; thus, the applicable statute of limitations is
Pennsylvania’s two-year statute of limitations for personal injury actions. 42 Pa. CONS.

5 Ina “Certificate of Verification” attached to his COM, he adds that he reserves the right to execute
expert testimony in the event that his case goes to trial. (Doc. 114, p. 2). However, his election to proceed
under Pa. R. Civ. P. 1042.3(a)(3) precludes future reliance on, or introduction of, expert testimony.

14

STAT. ANN. § 5524(2). The statute of limitations period accrues when the plaintiff knows or
has reason to know of the injury which is the basis of the section 1983 action. See Garvin

v. City of Phila., 354 F.3d 215 (3d Cir. 2003): Genty v. Resolution Trust Corp., 937 F.2d
899, 919 (3d Cir. 1991).

According to Rosado’s complaint, the care rendered by Defendant Havrilla occurred

on December 20, 2013, and August 18, 2014. Rosado seems to be invoking
Pennsylvania's discovery rule in asserting that he was not aware of his injuries until he
underwent an independent medical examination on November 11, 2016, which resulted in
his disability claim being granted on September 17, 2017. (Doc. 129, p. 3). Pennsylvania's
discovery rule is “an exception to the requirement that a complaining party must file suit
within the statutory period.” Communications Network International, Ltd., 187 A.3d at 961
(quoting Meehan v. Archdiocese of Philadelphia, 870 A.2d 912, 919 (Pa. Super. Ct. 2005)).
The discovery rule is applicable where the plaintiff “is reasonably unaware that his or her
injury has been caused by another party’s conduct.” Gleason v. Borough of Moosic, 609 Pa.
353, 15 A.3d 479, 484 (2011). If the discovery rule is applicable, the running of the statute of
limitations is tolled. /d.
“The discovery rule is designed to ‘ameliorate the sometimes-harsh effects of
the statute of limitations,’ and it is often applied in medical malpractice and
latent disease cases in which the plaintiff is unable to discover his or her injury
until several years after the tort occurred.” Mest v. Cabot Corp., 449 F.3d 502,
510 (3d Cir. 2006) (quoting Cathcart v. Keene Indus. Insulation, 471 A.2d 492,
500 (Pa. Super. Ct. 1984)). The rule tolls the accrual of the statute of limitations
when the plaintiff is unable, “despite the exercise of due diligence, to know of

15

the injury or its cause.” Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc.,
468 A.2d 468, 471 (Pa. 1983). Under the discovery rule, the statutory period
“does not begin to run until ‘the plaintiff knows, or reasonably should know, (1)
that he has been injured and (2) that his injury has been caused by another
party’s conduct.’ ” /d. (quoting Mest, 449 F.3d at 510). The plaintiff “bears the
burden of demonstrating that he exercised reasonable diligence in determining
the existence and cause of his injury.” Mest, 339 F.3d at 411 (citing Cochran v.
GAF Corp., 666 A.2d 245, 249 (Pa. 1995)). “To demonstrate reasonable
diligence, a plaintiff must ‘establish[ ] that he pursued the cause of his injury
with those qualities of attention, knowledge, intelligence and judgment which
society requires of its members for the protections of their own interests and
the interests of others.’ ” /d. (quoting Cochran, 666 A.2d at 250).
The Supreme Court of Pennsylvania has clarified that reasonable diligence is
not “an absolute standard, but is what is expected from a party who has been
given reason to inform himself of the facts upon which his right to recovery is
premised.” Fine, 870 A.2d at 858. “ ‘[T]here are [very] few facts which diligence
cannot discover, but there must be some reason to awaken inquiry and direct
diligence in the channel in which it would be successful. This is what is meant
by reasonable diligence.’ ” /d. (alteration in original) (quoting Crouse v. Cyclops
Indus., 765 A.2d 606, 611 (Pa. 2000)). “Put another way, [t]he question in any
given case is not, what did the plaintiff know of the injury done him? [B]ut, what
might he have known, by the use of the means of information within his reach,
with the vigilance the law requires of him.” /d. (quoting Scranton Gas & Water
Co. v. Lackawanna Iron & Coal Co., 31 A. 484, 485 (Pa. 1895)). Pennsylvania
applies the discovery rule narrowly, placing a heavy burden on plaintiffs
invoking the rule. See Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa.
2011). “Where ... reasonable minds would not differ in finding that a party knew
or should have known on the exercise of reasonable diligence of his injury and
its cause, the [Court determines that the discovery rule does not apply as a
matter of law.” Fine, 870 A.2d at 858-59 (citing Pocono Int'l, 468 A.2d at 471).
Doe v. City of Wilkes-Barre, No. CV 3:19-938, 2021 WL 1197627, at *2-3 (M.D. Pa. Mar.
30, 2021) quoting Soutner v. Covidien, LP, 2018 WL 5312610, at *4 (M.D. Pa. Oct. 26,
2018).
It is clear from the allegations in the Third Amended Complaint that in August 2014,

16

at the latest, Rosado knew or should have known of Defendant Havrilla’s involvement in his
alleged injury and its cause. He alleges that in August 2014, Defendant Havrilla falsely
diagnosed him and wrongfully prescribed glasses, despite a determination in December
2013, that glasses would only impair his vision. He also alleges that he was present for a
telephonic conference between Havrilla and Defendant Stanish during which they allegedly
agreed to provide him inadequate medical care and agreed upon a false diagnosis. Further,
he alleges that he communicated to Defendant Havrilla that “you have strict orders to
wrongfully proscribe me glasses to manifestly place me in (TC) program, please note if you
decide to do so, I'll place a lien on you, and freeze all your assets.” (Doc. 69, J 80).
Allegedly, Officer Rose intervened stating quote, “Dude what he trying to say is if you
wrongfully proscribe him glasses, he will place a lawsuit against you, trust me | read his
record, he no joke.” (/d. at 81). He also alleges that in December 2013, Defendant Havrilla
reached the same conclusion as two other doctors who treated and performed a corneal
graft on his eye in 2005. Despite this conclusion, in August 2014, he went back on his
professional opinion. (/d. at 85, 86).
It is clear that Rosado has filed to meet his burden of demonstrating that the
discovery rule applies. Reasonable minds would not differ in finding that he knew or should
have known on the exercise of reasonable diligence of his injury and its cause in August
2014. Consequently the discovery rule does not apply.

17

The Eighth Amendment claim against Defendant Havrilla accrued, at the latest, in
August 2014, and the applicable statute of limitations expired two years later in August
2016. Plaintiff did not initiate this action until July 31, 2017. Hence, the Eighth Amendment
claim against Defendant Havrilla is barred by the statute of limitations and subject to
dismissal.

IV. Conclusion
Based on the foregoing discussion, Defendant Havrilla’s motion to strike Rosado’s
“motion to clear any misconception in support files undisputed facts against Dr. Havrilla” will
be granted and the motions to dismiss filed by Defendants Stanish and DeBoer and
Defendant Havrilla will be granted.
A separate Order shall issue.

Dated: May 2% 2021 E77 ( □□ Mle;
Robert D. Mariani
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410442. Public record. Not legal advice.