Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2005

Estate Aptekman v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1645




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Recommended Citation
"Estate Aptekman v. Philadelphia" (2005). 2005 Decisions. Paper 1361.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1361


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                                     NOT PRECEDENTIAL
         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       NO. 04-1645
                    ________________

   ESTATE OF FLORENCE SILVERMAN APTEKMAN
      BY STEPHEN MICHAEL SILVERMAN AND
   MARK JOEL SILVERMAN, CO-ADMINISTRATORS
          OF THE ESTATE OF FLORENCE
       SILVERMAN APTEKMAN, DECEASED;
  STEPHEN MICHAEL SILVERMAN, INDIVIDUALLY;
     MARK JOEL SILVERMAN, INDIVIDUALLY;
        LOUIS APTEKMAN, INDIVIDUALLY,

                            Appellants

                             v.

             CITY OF PHILADELPHIA;
          ASHTON HALL NURSING HOME;
               BEATRICE STENTA,
    INDIVIDUALLY AND IN HER PROFESSIONAL
          CAPACITY AS ADMINISTRATOR
      OF THE ASHTON HALL NURSING HOME;
                 APRIL LOWMAN,
    INDIVIDUALLY AND IN HER PROFESSIONAL
           CAPACITY AS DISPATCHER,
         FOR THE CITY OF PHILADELPHIA
                _________________

      On Appeal From the United States District Court
           For the Eastern District of Pennsylvania
                 (D.C. Civ. No. 01-cv-04963)
      District Judge: Honorable Clarence C. Newcomer
                   ____________________

Submitted Under Third Circuit LAR 34.1(a): January 10, 2005
                  Before: ROTH and CHERTOFF * , Circuit Judges,
              RESTANI** , Judge, United States Court of International Trade

                                   (Filed April 14, 2005)

                               _______________________

                                      OPINION
                               _______________________

Roth, Circuit Judge

        The Estate of Florence Aptekman appeals an order of the United States District

Court for the Eastern District of Pennsylvania granting summary judgment to defendants

Ashton Hall Nursing Home and Beatrice Stenta. Appellants filed a corporate negligence

claim against Ashton Hall, as well as claims for negligence, wrongful death and a

“survival action” against Ashton Hall and its supervisor, Beatrice Stenta. For the reasons

discussed below, we will affirm.

        Florence Aptekman was a resident of Ashton Hall, a long-term care nursing

facility. On November 8, 2000, Louis Aptekman, the decedent’s husband, visited her at

the home. While they were eating in the dining room, Ms. Aptekman collapsed and

appeared to be going into cardiac arrest. Staff members at the home came to Ms.

Aptekman’s aid, saw that she appeared to be in grave distress, and called for an


   *
      This case was submitted to the panel of judges Roth, Chertoff, and Restani. Judge
Chertoff resigned after submission, but before the filing of the opinion. The decision is
filed by a quorum of the panel. 28 U.S.C. § 46(d).
   **
     Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.

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ambulance from Regional Medical Transport. Shortly thereafter, Ashton Hall staff

members called 911, and a City of Philadelphia ambulance was dispatched. Appellants

claim that there was a delay in the dispatch of the city ambulance. Ms. Aptekman died on

the scene before she could be transported to a hospital. Although Appellants assume

otherwise, it appears that Stenta was not in the building on the day of Ms. Aptekman’s

demise. Appellants did not produce any evidence that she was on the premises, and

Stenta submitted an affidavit and copy of her time card to the contrary. Appellants did

not submit expert reports or any kind of evidence regarding the cause of Ms. Aptekman’s

death, nor did they submit any expert reports regarding Ashton Hall’s duty and alleged

breach.

      Ms. Aptekman’s two sons brought this action on behalf of her Estate. Appellants

sued the City of Philadelphia and its dispatcher, April Lowman, under 42 U.S.C. §§ 1983

and 1988 for violation of Ms. Aptekman’s Fourteenth Amendment rights based on a

failure to dispatch an ambulance in a timely manner. Appellants also pursued state claims

of wrongful death and a “survival action” against these defendants. The City of

Philadelphia and Lowman moved for summary judgment on the basis that Appellants

could not show that the City or Lowman had violated any constitutional right of Ms.

Aptekman’s. They further asserted that Appellants’ state law claims were barred by the

Political Subdivision Tort Claims Act. See 43 Pa. Cons. Stat. § 8541.

      Appellants claimed corporate negligence, negligence, wrongful death and a



                                            3
“survival action” against Ashton Hall and negligence against Stenta. Ashton Hall and

Stenta moved for summary judgment on the theory that Appellants failed to bring forth an

issue of material fact because they failed to submit expert reports on causation with

respect to Ms. Aptekman’s demise. Ashton Hall also sought summary judgment on the

basis that Appellants had failed to produce any expert reports regarding the nature of

Ashton Hall’s duty of care and whether there had been a breach of that duty. Stenta also

moved for summary judgment on the basis that Appellants had failed to show the

existence of an issue of material fact regarding her presence or absence at Ashton Hall on

the day Ms. Aptekman died. The District Court granted summary judgment in favor of all

defendants. Ms. Aptekman’s Estate appealed.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See

Guardian Life Ins. Co. of Am. v. Goduti-Moore, 

, 213 (3d Cir. 2000). On

appeal, Appellants argues that summary judgment was inappropriate because there

existed disputed issues of material fact. Particularly, they argue that there was an obvious

causal connection between the defendants’ actions and Ms. Aptekman’s death and that

there was were easily discernable duties of care that Ashton Hall breached.***

         Summary judgment is appropriate when there is no genuine issue of material fact,



   ***
      It appears that Appellants have abandoned their claims against the City of
Philadelphia and Lowman, as they have neither specifically appealed the District Court’s
order granting summary judgment to those defendants, nor have they raised any issues
with respect to that order in their appellate briefs. This Court excused the City of
Philadelphia from filing an appellate brief.

                                             4
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 

, 322-23 (1986).

       As the District Court properly noted, under all the asserted theories of liability, the

Appellants must show that Ashton Hall’s or Stenta’s alleged actions were both a factual

cause and a proximate cause of Ms. Aptekman’s death. Although Appellants claim that

the connection is plain, expert testimony as to the cause of death is usually necessary to

prove causation. See Mitzelfelt v. Kamrin, 

, 62 (1995). This is because the

workings of the human body with respect to pain and injury are outside the ken of the

average layperson. See Hamil v. Bashline, 

, 267 (1978).

       It is possible that no medical assistance, however swiftly rendered, would have

prevented Ms. Aptekman’s death. Where the causal nexus is not patently obvious, and

there is no expert opinion, a factfinder could not simply infer a causal connection. See

Florig v. Sears, Roebuck & Co., 

, 424 (1957). Because Appellant’s failed to

produce any expert testimony that any of the defendants’ actions caused, increased the

likelihood of, or hastened Ms. Aptekman’s demise, the District Court properly concluded

that there was no issue of material fact with respect to causation for any of the above

causes of action. Additionally, Appellants failed to produce anything but speculation to

controvert Stenta’s evidence that she was not present at Ashton Hall on the date in

question. They, therefore, failed to show that there was an issue of material fact as to any

alleged causal nexus for Stenta. Summary judgment was, therefore, appropriate. Because



                                              5
we agree that summary judgment was appropriate on this basis, we need not address

Appellees’ additional arguments.

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




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