granting of discontinuance to permit re-filling would cause unreasonable inconvenience and expense for defendants where case pending for five years and minor-plaintiff could not provide expert witness despite extensive discovery
How later courts described this case
- granting of discontinuance to permit re-filling would cause unreasonable inconvenience and expense for defendants where case pending for five years and minor-plaintiff could not provide expert witness despite extensive discovery
- case pending for five years, involving great effort and expense, yet minor-plaintiff could not produce expert witness to support their claims; therefore, defendants showed unreasonable inconvenience and expense
Written by the judges who cited it.
Later courts went against this
Disapproved in part by Fancsali v. University Health Center, 563 Pa. 439 (2000)
We disapprove any language in Foti that suggests otherwise.
The opinion
WIEAND, Judge,
concurring in a statement:
I concur. The only reason appellees seek to discontinue this action is because they cannot make out a prima facie case for recovery. The action charges appellants.with malpractice, and said appellants have a right to have the malpractice claims against them adjudicated. Appellees have no right to discontinue the action without prejudice in the hope that medical science will in the future provide factual support for a cause of action which, they concede, does not now exist. To allow the action to be discontinued without prejudice under these circumstances would be to prejudice defendants unfairly by holding them hostage indefinitely to an unwarranted claim. I would reverse and remand for trial.