IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AGNES M. COLLINS, :
: CIVIL ACTION
UNITED STATES of AMERICA, :
: No. 11-4450
M E M O R A N D U M
GENE E.K. PRATTER JANUARY 10, 2012
Currently pending before the Court is the Government’s Motion to Transfer Venue to the Southern District of Florida (Doc. No. 3) pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the Court denies the Government’s motion.
I. FACTUAL BACKGROUND
Between 1998 and 2006, the late Mr. Robert E. Collins suffered from a hiatal hernia and gastroesophogeal reflux disease (“GERD”). Mr. Collins was treated for these ailments at Veterans Administration Medical Centers (“VAMC”) in West Palm Beach, Florida from 1998 through May 2005, and then in Asheville, North Carolina from May 2005 to February 2006. All the while, Mr. Collins’s symptoms progressively worsened. During a February 12, 2006 consultation with a civilian doctor, a biopsy revealed that Mr. Collins suffered from esophageal
cancer. In early 2007, Mr. Collins and his wife, Ms. Agnes Collins, moved to Pennsylvania where Mr. Collins underwent treatment at the Fox Chase Cancer Center and Crozer Chester Medical Center. However, on May 8, 2007, Mr. Collins succumbed to his cancer and passed away.
Ms. Collins brought this suit against the Government under Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. and § 1346(b), in the Eastern District of Pennsylvania on behalf of herself and the estate of her late husband, alleging that the Government committed medical malpractice for failing to test for and diagnose Mr. Collins’s cancer. The Government filed the present Motion to Transfer Venue.
Philadelphia Collins v. USA
Plaintiffs Barry Lackro and Beverly Lackro
(collectively, “Plaintiffs”) brought this medical malpractice
action as husband and wife seeking redress for injuries sustained
during a brachytherapy procedure administered by Dr. Gary Kao
(“Dr. Kao”) at the Philadelphia VA Medical Center (“PVAMC”). Dr.
Kao, enclosing a certification of employment from the United
States Attorney (“U.S. Attorney”), asserts that he was an
employee of the United States during the time in question and
that his actions were within the scope of his employment with the
United States. Consequently, Dr. Kao seeks to be dismissed from
Plaintiffs’ suit under the Federal Tort Claims Act (“FTCA”) as
amended by the Westfall Act. The FTCA affords certain federal
employees absolute immunity from state law tort claims for which
the United States is subject to liability under the FTCA.
Plaintiffs agree that the FTCA provides a basis for dismissing
Dr. Kao from the suit. However, Plaintiffs seek limited
discovery of ninety days to ensure Dr. Kao was, in fact, an
employee of the United States acting within the scope of his
philadelphia Lackaro v. VA