                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2007

Cooney v. Booth
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1972




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-1972
                                    ____________

               ELEANOR M. COONEY, AS EXECUTRIX OF THE
              ESTATE OF DANIEL T. COONEY, JR., DECEASED;
             ELEANOR SCHIANO; HELEN E. COONEY MUELLER;
          DANIEL T. COONEY, III; ROBERT COONEY, INDIVIDUALLY,

                                                Appellants

                                           v.

                        ROBERT E. BOOTH, JR., M.D.;
                       ARTHUR R. BARTOLOZZI, M.D.;
                3B ORTHOPAEDICS, P.C. / PENN ORTHOPAEDICS;
                  3B ORTHOPAEDICS / PENN ORTHOPAEDICS
                              ____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                (D.C. No. 04-cv-01272)
                      District Judge: Honorable Jose L. Linares
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 12, 2006

                  Before: FISHER and CHAGARES, Circuit Judges,
                        and BUCKWALTER,* District Judge.

                                (Filed: January 4, 2007)

                                    ____________


      *
        The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
                                OPINION OF THE COURT
                                     ____________

BUCKWALTER, District Judge.

       In this appeal, we consider whether the United States District Court for the District

of New Jersey erred in granting Defendants’ Motion for Summary Judgment based on

collateral estoppel and Pennsylvania’s statute of limitations, 42 Pa. C.S.A. § 5524(a)(7).

For the reasons stated below, we will affirm the judgment of the District Court.

                                              I.

       The Court recognizes that the parties are well-versed in the facts and procedural

history of this matter, and therefore only those facts necessary to our analysis are set forth

below. The present action stems from a medical malpractice action filed by

Plaintiffs/Appellants in November of 1999. Plaintiffs filed the original medical

malpractice action after the death of Daniel T. Cooney, Jr. (“Cooney”) following knee

replacement surgery. In the initial action, Plaintiffs claimed Defendants/Appellees Robert

E. Booth, Jr., M.D. (“Booth”) and Arthur R. Bartolozzi, M.D. (“Bartolozzi”) committed

failure to obtain informed consent, medical negligence, fraud and intentional

misrepresentation, consumer fraud, intentional infliction of emotional distress, and

battery.1 Specifically, Plaintiffs alleged that after Cooney’s knee replacement surgery, his


       1
       Several other physicians were initially named in the cause of action. Prior to trial,
Dr. Bartolozzi and another doctor defendant, Dr. Nazarian, were granted summary
judgment, and all other Defendants with the exception of Dr. Booth were voluntarily
dismissed. The case therefore went to trial as against Dr. Booth only, and the issues tried
were reduced to medical malpractice, failure to obtain informed consent, and battery.

                                              2
foot became discolored and his pulse was not palpable, which in turn required another

operation in order to restore blood flow, and subsequent complications led to Cooney’s

death. The action was heard in the Eastern District of Pennsylvania before the Honorable

Eduardo C. Robreno. Prior to trial, counsel for Defendant Booth submitted a motion in

limine seeking to preclude Plaintiffs from making any references during the course of the

trial to the alleged investigation of Booth for Medicare fraud. This motion was

unopposed by Plaintiffs and granted by Judge Robreno. On March 21, 2001, the jury

returned a verdict in favor of Defendant. This Court affirmed the Eastern District of

Pennsylvania’s judgment on February 12, 2002, and denied Plaintiffs’ later request for

reconsideration.

       On June 12, 2002, Plaintiffs filed a motion to set aside the judgment and/or grant a

new trial, alleging Defendants Booth and Bartolozzi committed perjury or fraud by giving

contradictory testimony regarding who actually performed portions of Cooney’s surgery.

Plaintiffs also alleged to have obtained newly discovered evidence that Defendants were

committing medical fraud as a result of Booth having withheld information of a pending

investigation for Medicare fraud when he was deposed in the malpractice case. Plaintiffs

claimed that this in turn prevented them from fully and fairly presenting their case at trial.

Judge Robreno denied Plaintiffs’ motion on January 31, 2003, and subsequently denied

Plaintiffs’ motion for recusal and motion for reconsideration on May 13, 2003, and

June 5, 2003, respectively. This Court later affirmed the Eastern District of

Pennsylvania’s decisions.

                                              3
       On March 18, 2004, Plaintiffs commenced the present action in the District of

New Jersey seeking to set aside the March 2001 judgment pursuant to Federal Rule of

Civil Procedure 60(b). Plaintiffs allege legal and equitable fraud on the part of

Defendants as a result of them concealing that Booth had been investigated for Medicare

fraud prior to the malpractice trial and for concealing Bartolozzi’s participation in

Cooney’s surgery. At oral argument, the District of New Jersey specifically questioned

Plaintiffs on the relationship of the present fraud claims to those previously asserted.

Plaintiffs’ counsel agreed that the fraud claims in this action were in fact the same exact

claims previously alleged and argued in Plaintiffs’ June 12, 2002 motion to set aside the

judgement and/or grant a new trial. Plaintiffs’ counsel claimed that there was no final

judgment of these claims and therefore Plaintiffs were not barred from pursuing this

separate complaint. Despite Plaintiffs’ assertions, the Honorable Jose L. Linares of the

District of New Jersey granted Defendant’s motion for summary judgment based on

collateral estoppel and the statute of limitations.

                                              II.

       Plaintiffs/Appellants now claim that the District of New Jersey’s judgment in favor

of the Defendants must be reversed and Appellants are entitled to summary judgment.

Specifically, Appellants argue that res judicata does not apply as being contrary to

F.R.C.P. 60(b) and Pennsylvania’s statute of limitations was improperly applied both

jurisdictionally and substantively. This Court disagrees and finds that the District Court



                                               4
properly granted summary judgment in favor of Defendants on grounds of collateral

estoppel and Pennsylvania’s statute of limitations.

                                             III.

       The doctrine of collateral estoppel, or issue preclusion, prevents a party from

relitigating issues already decided in a previous cause of action. Under Pennsylvania law,

collateral estoppel applies when: (1) the issue decided in the prior adjudication was

identical to the one presented in the later action; (2) there was a final judgment on the

merits; (3) the party against whom the plea is asserted was a party or in privity with a

party to the prior adjudication; and (4) the party against whom it is asserted has had a full

and fair opportunity to litigate the issue in question in the prior adjudication. Capek v.

Devito, 767 A.2d 1047, 1051 (Pa. 2001) (citing Safeguard Mutual Ins. Co. v. Williams,

345 A.2d 664, 668 (Pa. 1975)).

       In the present case, Appellants base their argument on the claim that the District of

New Jersey believes fraud and fraud on the court to be one and the same. Appellants

argue that the independent action for legal and equitable fraud asserted here has not

reached final judgment on the merits, and therefore the District of New Jersey

erroneously determined res judicata. Appellants’ argument is flawed in that the District

of New Jersey’s granting of summary judgment to Defendants was based on collateral

estoppel and not res judicata. Collateral estoppel is analogous to issue preclusion, while

res judicata is analogous to claim preclusion. This Court agrees with the District of New

Jersey in that it is of no consequence that the fraud claims themselves are argued to be in

                                              5
fact different; the issue is whether the issues now presented meet the four-pronged test for

collateral estoppel, thus barring Appellants from relitigating those issues.

       When applying the test, there is overwhelming evidence indicating that

Appellants’ legal and equitable fraud claim is barred by collateral estoppel. Beginning

with the first prong, there is no doubt that the present issue is identical to an issue

previously asserted. In the initial medical malpractice action tried in the Eastern District

of Pennsylvania, Appellants filed a motion to set aside judgments and/or grant a new trial

claiming Defendants Booth and Bartolozzi committed fraud, perjury, and battery against

Appellants, and fraud and perjury against the court, by concealing Booth’s alleged

Medicare fraud investigation and Bartolozzi’s involvement in Cooney’s knee replacement

surgery. That motion was denied on January 31, 2002. In the present action, on appeal

from the District of New Jersey, Appellants claim Defendants Booth and Bartolozzi

committed legal and equitable fraud by concealing Booth’s Medicare fraud investigation

and Bartolozzi’s involvement in Cooney’s surgery. The issues are clearly identical. They

revolve around the same parties, involve the same facts, and allege the same injury.

Furthermore, Appellants’ counsel even agreed that the claims were exactly the same when

questioned by the District of New Jersey at oral argument. It is therefore the opinion of

this Court that the first prong of Pennsylvania’s collateral estoppel test is satisfied

because the issue decided in the prior adjudication is identical to the one presented here.

       The second prong of collateral estoppel analysis is also satisfied because the issue

previously litigated achieved final judgment on the merits. The Eastern District of

                                               6
Pennsylvania denied Appellants motion to set aside judgment and/or a new trial,

specifically finding that any inconsistent testimony relating to Bartolozzi’s involvement

in Cooney’s surgery does not amount to fraud and is not proof of perjury. It is also

apparent that the Eastern District of Pennsylvania considered the alleged concealment of

Booth’s Medicare fraud investigation in reaching the decision to deny Appellants’ claims.

The court revisited the claims in denying Appellants motion for reconsideration on June

5, 2003. On appeal, this Court affirmed the Eastern District of Pennsylvania’s judgment,

specifically agreeing that the allegation of fraud against the court was without merit, and

considering and finding all of Appellants’ other arguments to be unpersuasive. It is

therefore clear that there was a final judgment on the merits of Appellants’ initial claims

of fraud, perjury, and battery.

       In regards to the third and fourth prongs of collateral estoppel analysis, there is no

doubt that Appellants were the party in the original medical malpractice action and had a

full and fair opportunity to litigate the issue in question. The Eastern District of

Pennsylvania accepted Appellants’ factual allegations as true in deciding their motion to

set aside judgment and/or grant a new trial, and the court clearly considered all of

Appellants’ arguments. Furthermore, as stated, this Court considered all of Appellants’

arguments on appeal and found them to be unpersuasive. Therefore, all four prongs have

been met, and the District of New Jersey properly granted summary judgment in favor of

the Defendants based on collateral estoppel.

                                             IV.

                                               7
       In addition to contesting the District of New Jersey’s ruling on collateral estoppel

grounds, Appellants claim the Court erred in concluding that their claims were barred by

the applicable statute of limitations. When a conflict of law exists—differing statutes of

limitations in this case—the court must determine which state’s law is most appropriate

for the given case. This analysis is commonly known as the governmental interest

approach. The court determines “first the governmental policies evidenced by the laws of

each related jurisdiction and second the factual contacts between the parties and each

related jurisdiction.” Henry v. Richarson-Merrell, Inc., 508 F.2d 28, 32 (3d Cir. 1973).

In weighing each state’s contacts with the parties and litigation, the court determines

which law to apply based on the qualitative, not quantitative, nature of those contacts.

Veazey v. Doremus, 103 N.J. 244, 247 (1986).

       Appellants claim that the District of New Jersey erred in applying Pennsylvania’s,

rather than New Jersey’s, statute of limitations. Appellants state that New Jersey

provides for a six year statute of limitations for tortious conduct, while Pennsylvania

imposes a two year period, and therefore their claims are not time barred under New

Jersey law. Appellants support this claim by arguing that New Jersey case law imposes a

strong policy of applying New Jersey law, regardless of where the conduct occurred, for

tort actions where the injured party is domiciled in New Jersey. This Court, however, is

of the belief that while the injured party’s domicile is certainly a strong factor to consider,

it must be weighed accordingly with the other significant interests of each state. In this

case, the District of New Jersey conducted a thorough analysis of the interests of both

                                              8
states before properly applying Pennsylvania law. Cooney may have been domiciled in

New Jersey, but the alleged cause of action in this case arose in Pennsylvania, Cooney’s

treatment took place in Pennsylvania, the litigation of Appellants’ initial action where the

alleged fraud took place was in Pennsylvania, and Pennsylvania has a substantial interest

in deterring the misconduct alleged to have occurred in a Pennsylvania court. After

weighing the interests of both states, this Court agrees with the District of New Jersey that

Pennsylvania’s statute of limitations is most appropriate.

       Appellants next argue that even if Pennsylvania law is applicable, the “discovery

rule” should have tolled Pennsylvania’s statute of limitations, thus making their claims

timely. Pennsylvania imposes a two (2) year statute of limitations on tortious conduct,

including deceit or fraud. 42 Pa. C.S.A. §5524(a)(7). The discovery rule is “a judicially

created device which tolls the running of the applicable statute of limitations until that

point when ‘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.’” Pearce v. Salvation

Army, 449 Pa. Super. 654, 658 (1996) (quoting Redenz by Redenz v. Rosenberg, 360 Pa.

Super. 430, 434 (1987)). Under the discovery rule, “the statute of limitations begins to

run on the first date that the injured party possesses sufficient critical facts to put him on

notice that a wrong has been committed and that he need investigate to determine whether

he is entitled to redress.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985).

        In the present case, Appellants claim that the statute of limitations should be

tolled because Appellants did not have knowledge of Booth’s involvement in the

                                               9
Medicare fraud investigation until June, 2002. However, as the District of New Jersey

properly concluded, the issue is not when Appellants had actual knowledge of the alleged

fraud. Rather, the issue is when Appellants possessed sufficient critical facts to put them

on notice of a wrong and the need to investigate further. Id. at 23. The evidence is clear

that sufficient critical facts existed long before June, 2002. Appellant testified that she

received information relating to Booth being investigated for Medicare fraud as early as

October, 2000. Furthermore, Appellants were again put on notice of a potential fraud

claim when Defendants submitted a motion in limine requesting that no references be

made to the alleged Medicare fraud investigation of Booth. Clearly Appellants were in

possession of the critical facts necessary to prompt a further investigation of their fraud

claims well before the two year statute of limitations period expired. There is simply no

basis for application of the discovery rule here.

       The other arguments presented by Appellants on appeal of the District of New

Jersey’s ruling on the discovery rule and Pennsylvania’s statute of limitations are

unpersuasive. Therefore, it is this Court’s opinion that the District of New Jersey

properly time barred Appellant’s claims.

                                              V.

       This Court need not consider Appellants’ arguments addressing the merits of the

actual fraud claim itself. Not only is this claim time barred, but as previously discussed, it

was already considered by this Court on a prior appeal and Appellants are estopped from



                                              10
relitigating the issue. For the foregoing reasons, the judgment of the District Court in

granting Defendants’ Motion for Summary Judgment will be affirmed.




                                             11
