IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHERINE WILKERSON :

Plaintiff, : CIVIL ACTION

 :

vs. : NO. 04-CV-3212

 :

LABORATORY CORPORATION OF :

AMERICA HOLDINGS, d/b/a LABCORP :

Defendant :

MEMORANDUM AND ORDER

JOYNER, J. July 13, 2005

 This case is now before the Court for resolution of

Defendant Laboratory Corporation of America Holdings’ (“LabCorp”)

Motion for Partial Summary Judgment against Plaintiff Katherine

Wilkerson’s Complaint. For the reasons which follow, the Motion

is denied. 

Factual Background

 This case arises out of a venipuncture (blood draw) procedure

performed on Plaintiff by Cynthia Fullman, an employee of

Defendant LabCorp. Specifically, Plaintiff went to LabCorp on

June 10, 2002 to have blood drawn for laboratory testing. 

(Complaint, ¶ 4). The venipuncture procedure was performed by

Cynthia Fullman, who had been hired as a phlebotomist (specialist

in drawing blood) by LabCorp on December 5, 2000. (Defense

Exhibit 1). According to the allegations set forth in the

Complaint, Fullman inserted the needle into Plaintiff’s left arm

and repeatedly repositioned the needle in an attempt to find a

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vein. (Complaint, ¶ 4). Plaintiff immediately complained of

intense pain and burning in her arm, and she requested that

Fullman withdraw the needle. (Id. at ¶ 5). Fullman ignored

Plaintiff’s requests, and instead continued to draw several tubes

of blood. (Id.). After the blood was drawn, Plaintiff again

complained to Fullman about the pain and burning throughout her

arm. (Id. at ¶ 6). In response, Fullman offered no assistance

other than placing a band-aid on Plaintiff’s arm. (Id.). 

After leaving LabCorp, Plaintiff went to the office of Dr.

Katherine Sewell, the gynecologist who had ordered the testing,

but Dr. Sewell was unable to provide treatment outside her

specialty. (Id. at ¶ 7). The next day, Plaintiff went to the

emergency room at Thomas Jefferson University Hospital

complaining of pain in her left arm. (Id. at ¶ 8). At that

time, Plaintiff was given Motrin and a sling and told to make an

appointment with her primary care physician. (Id.). On June 14,

2002 Plaintiff was seen by her primary care physician, Kara

Greeley, who diagnosed nerve damage and referred Plaintiff to the

Philadelphia Hand Center. (Id. at ¶ 9). Over the next three

months, Plaintiff visited three physicians. (Id. at ¶¶ 10-13). 

Despite physical therapy, Dr. David Bosacco of Drexel Orthopedics

found on September 24, 2002 that Plaintiff was developing a

chronic regional pain syndrome known as reflex sympathetic

dystrophy (“RSD”). (Id. at ¶ 15). Dr. Bosacco concluded that

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the irritated nerve structure caused by the venipuncture

procedure performed at LabCorp had led to Plaintiff’s development

of RSD. (Id.). Dr. Christopher Fanale of Drexel Neurologic

Associates subsequently confirmed that Plaintiff suffers from RSD

in her upper arm as a result of a “needle stick.” (Id. at ¶

16). Plaintiff continues to be a patient at Drexel Neurology

Associates, taking medications and anesthetic blocks for RSD. 

(Id. at ¶ 17). Plaintiff also continues to engage in physical

therapy, but her RSD has not abated. (Id.).

In her Complaint, Plaintiff alleges that her injuries were

caused by the negligence and/or carelessness of LabCorp. 

Specifically, Plaintiff asserts that LabCorp was negligent in

hiring and retaining Fullman, an allegedly improperly trained

phlebotomist. (Id. at ¶ 20(a)). Plaintiff also contends that

LabCorp was negligent in failing to supervise Fullman while she 

drew Plaintiff’s blood. (Id. at ¶ 20(b)). Plaintiff further

asserts that LabCorp is vicariously liable for Fullman’s (1)

improper positioning of the needle and/or pressing the needle too

far into and/or through the vein, (2) probing for a vein when she

knew or should have known that such action increases the chance

of nerve injury, (3) failure to remove the needle immediately

upon Plaintiff’s complaints, (4) continuing to obtain tubes of

blood when she knew or should have known that such action

increases the chance of nerve injury, and (5) causing excessive

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bleeding and hematoma by improperly performing the venipuncture. 

(Id. at ¶¶ 20(c)-(h)). Finally, Plaintiff’s Complaint alleges

that she may suffer “lost earnings horizons.” (Id. at ¶ 24). 

By this Motion for Partial Summary Judgment, Defendant

argues that this Court should enter judgment in its favor

regarding paragraphs 20(a),(b),(d),(f),(g), and (h) of

Plaintiff’s Complaint. Defendant also moves for summary judgment

as to the lost earnings claim in paragraph 24. In her response,

Plaintiff has agreed to voluntarily withdraw from her Complaint

the claims based on paragraphs 20(b) regarding negligent

supervision, 20(h) concerning excessive bleeding and hematoma,

and 24 involving lost earnings horizons. (Plaintiff’s Response

to Defendant’s Motion, p.9). Therefore, this Court’s Discussion

will solely address Defendant’s Motion concerning paragraphs

20(a),(d),(f), and (g) of Plaintiff’s Complaint. 

Standards Governing Summary Judgment Motions

In deciding a motion for summary judgment under Fed.R.Civ.P.

56, a court must determine “whether there is a genuine issue of

material fact and, if not, whether the moving party is entitled

to judgment as a matter of law.” Medical Protective Co. v.

Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (internal citation

omitted). Indeed, Rule 56 provides that summary judgment is

properly rendered: 

[I]f the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

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any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as

a matter of law. A summary judgment, interlocutory in

character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of

damages. 

 

Stated more succinctly, summary judgment is appropriate only when

it is demonstrated that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-

32 (1986). An issue of material fact is said to be genuine “if

the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary

judgment, all facts must be viewed and all reasonable inferences

must be drawn in favor of the non-moving party. Troy Chemical

Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 125-26 (3d

Cir. 1994); Oritani Savings & Loan Assn. v. Fidelity & Deposit

Co. of Md., 989 F.2d 635, 638 (3d Cir. 1993). 

In Celotex Corp. v. Catrett, supra, the Supreme Court

articulated the allocation of burdens between a moving and

nonmoving party in a motion for summary judgment. Specifically,

the Court in that case held that the movant had the initial

burden of showing the court the absence of a genuine issue of

material fact, but that this did not require the movant to

support the motion with affidavits or other materials that

negated the opponent’s claim. Celotex, 477 U.S. at 323. The

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Court also held that Rule 56(e) requires the nonmoving party to

“go beyond the pleadings and by her own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on

file,’ designate ‘specific facts showing that there is a genuine

issue for trial.’” Id. at 324 (quoting Fed.R.Civ.P. 56(e)). This

does not mean that the nonmoving party must produce evidence in a

form that would be admissible at trial in order to avoid summary

judgment. Obviously, Rule 56 does not require the nonmoving

party to depose its own witnesses. Rather, Rule 56(e) permits a

summary judgment motion to be opposed by any of the kinds of

evidentiary materials listed in Rule 56, except the pleadings

themselves, and it is from this list that one would normally

expect the nonmoving party to make the required showing that a

genuine issue of material fact exists. Id. See, also, Morgan v.

Havir Mfg. Co., 887 F. Supp. 759 (E.D. Pa. 1994); McGrath v. City

of Phila., 864 F. Supp. 466, 472-73 (E.D. Pa. 1994). 

Discussion

I. Plaintiff’s Claim for Negligent Hiring and Retention of

Cynthia Fullman

A. Ruth McCall’s Qualifications to Offer Expert

Testimony

Defendant first contends that any opinions or testimony

offered by Plaintiff’s expert, Ruth McCall, MT/ASCP, regarding

LabCorp’s hiring or retention of Cynthia Fullman should be

stricken. Specifically, Defendant asserts that McCall is not

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qualified to testify about the applicable standard of care

because she has experience hiring phlebotomists to teach, rather

than work in a laboratory. Defendant further argues that without

McCall’s testimony, Plaintiff cannot establish either the

appropriate standard of care or any breach thereof by LabCorp. 

Accordingly, Defendant requests that this Court enter judgment as

a matter of law in its favor. 

Federal Rule of Evidence 702 provides that a witness must

qualify as an expert “by knowledge, skill, training or

education.” The Third Circuit Court of Appeals has interpreted

the qualifications which a witness must have to act as an expert:

Rule 702 requires the witness to have specialized knowledge

regarding the area of testimony. The basis of this

specialized knowledge can be practical experience as well as

academic training and credentials. We have interpreted the

specialized knowledge requirement liberally, and have stated

that this policy of liberal admissibility of expert

testimony extends to the substantive as well as the formal

qualifications of experts. However, at a minimum, a

proffered expert . . . must possess skill or knowledge

greater than the average layman. . . 

El Clock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). 

Furthermore, “an expert is permitted wide latitude to offer

expert opinions, including those that are not based on first-hand

knowledge or observation.” Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 592 (1993). 

Plaintiff’s expert, Ruth McCall, MT/ASCP, is a registered

medical technologist with more than thirty years of experience as

a phlebotomist. Since 1986, McCall has been an instructor in the

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licensed medical technician program at Albuquerque Technical

Vocational Institute / Community College, where she has been in

charge of the healthcare technician program in phlebotomy since

1987. As part of her responsibilities as an instructor and

director of the program, McCall hires phlebotomists to teach

theory and laboratory. (McCall Depo., pp.43-44). McCall has

also authored a book called Phlebotomy Essentials, which is used

in teaching phlebotomy students. (Id. at p.58). Currently, she

is working on a CD ROM entitled Phlebotomy Tutor, which

demonstrates errors in phlebotomy and their avoidance. (Id. at

p.64).

Under the standards set forth by the Federal Rules of

Evidence, as interpreted by the United States Supreme Court and

the Third Circuit, McCall has competent knowledge of what skills

are required in evaluating phlebotomists for hire, as she has

been training them for nearly 20 years. She likewise has

experience in hiring phlebotomists to work in her training

program and teach phlebotomy. Moreover, McCall was educated as a

medical technologist and now provides phlebotomy education both

through her written materials and classroom instruction. Thus,

McCall appears well-qualified as an expert to opine that LabCorp

was negligent in its hiring and retention of a technician whose

basic training does not meet current standards by which

phlebotomists must be judged to protect the public. Similarly,

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McCall is qualified to offer an expert opinion that LabCorp was

negligent in failing to promulgate proper policies and procedures

to fill employees’ knowledge gaps. Accordingly, at this

procedural juncture, this Court finds it inappropriate to strike

McCall’s testimony and grant Defendant’s Motion on such grounds. 

B. Genuine Issues of Material Fact Exist Regarding

LabCorp’s Negligence in Hiring and Retaining

Cynthia Fullman 

Defendant contends that without Ruth McCall’s testimony, 

Plaintiff’s 20(a) claim must fail due to an inability to

demonstrate that Fullman’s negligence was foreseeable to LabCorp. 

Specifically, Defendant alleges that without McCall’s testimony,

Plaintiff cannot establish the standard of care or any negligent

breach thereof by LabCorp. It is well established under

Pennsylvania law, however, that an employer may be liable in

negligence in the following instances:

if [the employer] knew or should have known that an employee

was dangerous, careless, or incompetent and such employment

might create a situation where the employee’s conduct would

harm a third person.

Brezinski v. World Truck Transfer, Inc., 755 A.2d 36, 39-40 (Pa. 

Super. 2005)(citing Dempsey v. Walso Bureau, Inc., 246 A.2d 418 

(Pa. 1968)). Moreover, an act is negligent if the harm was 

foreseeable to the class to which the complaining member belongs. 

Cmmw. Dept. of Hwy. v. Eldridge, 184 A.2d 488, 491-92 (Pa. 1962). 

 

Based on the applicable law, this Court finds sufficient

evidence to raise a genuine issue of material fact regarding the

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foreseeability of Fullman’s negligence. Specifically, the

evidence indicates that the propensity for nerve injury during a

venipuncture was common knowledge in the laboratory community

between two and four years prior to the venipuncture in question,

and certainly at the time of Fullman’s hiring in 2002.

(Plaintiff’s Exhibit D, p.56). In fact, even the Defendant’s

expert acknowledges that at all times relevant to this lawsuit,

the propensity for severe nerve injury was widely known among

phlebotomists. (Id.). It has further been shown that in hiring

Fullman, LabCorp failed to ascertain whether she was aware of the

possibility, prevention, and treatment of nerve injuries. 

(Defense Exhibits 1,2). LabCorp also failed to offer Fullman

training in such areas. (Id.). Thus, there is adequate evidence

from which a reasonable jury could find Fullman’s negligence

foreseeable, as LabCorp should have known that failing to ensure

Plaintiff’s knowledge of nerve injuries could seriously harm

individuals in the public. 

Defendant also argues that Plaintiff’s claim must fail

because she cannot prove a causal connection between negligence

in LabCorp’s hiring or retention of Fullman and Plaintiff’s

injuries. This Court, however, finds the evidence sufficient to

raise a genuine issue of material fact concerning the cause of

Plaintiff’s nerve damage. Specifically, Plaintiff alleges both

that Fullman repeatedly repositioned the needle and refused to

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withdraw the needle when Plaintiff experienced pain. (Complaint,

¶¶ 4-5). While testifying, Ruth McCall stated that it is “common

knowledge” among phlebotomists that if a patient experiences pain

and burning, the phlebotomist should recognize the symptoms of a

nerve injury and remove the needle. (McCall Depo., p.86). 

McCall further explained that failure to immediately remove the

needle can increase a nerve injury’s severity. (Id.). Likewise,

Dr. Gerald Dworkin, D.O., Plaintiff’s expert, has testified that

a longer period of trauma to the nerve can cause a more serious

injury. (Dworkin Depo., p.101). Even the Defendant’s medical

expert, Dr. Gerard Malanga, M.D., admits that excessive

repositioning of the needle is inappropriate and may cause

injury. (Malanga Depo., p.68). 

Logically, if Fullman had known the symptoms that would

appear if the needle came into contact with a nerve, she would

not have probed, but instead would have removed the needle. Such

removal could have arguably minimized the risk of severe nerve

damage. Therefore, a reasonable jury could find that if LabCorp

had acquainted itself with Fullman’s lack of knowledge regarding

the potential for nerve injuries, Plaintiff’s injury could have

been prevented or lessened. As a jury could find a casual link

between Plaintiff’s injury and LabCorp’s inappropriate hiring and

training, summary judgment is inappropriate as to paragraph 20(a)

of Plaintiff’s Complaint. 

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II. Genuine Issues of Material Fact Exist Concerning

LabCorp’s Vicarious Liability

Plaintiff further alleges that LabCorp is vicariously liable

for several of Fullman’s negligent acts. (Complaint, ¶¶ 20(d),

(f),(g)). The Pennsylvania law governing vicarious liability

provides the following: 

[A]n employer is vicariously liable for the negligent acts

of his employee which cause injuries to a third-party,

provided that such acts were committed during the course of

and within the scope of the employment. . . [T]he basic

inquiry is whether such [employee] is subject to the alleged

employer’s control or right to control with respect to [her]

physical conduct in the performance of the services for

which [she] was engaged. The hallmark of an employeremployee relationship is that the employer not only controls

the result of the work but has the right to direct the

manner in which the work shall be accomplished. 

Valles v. Albert Einstein Med. Ctr., 758 A.2d 1238, 1244 (Pa. 

Super. 2000). LabCorp does not dispute that its interaction with

Fullman constituted an employer-employee relationship under the

Pennsylvania law governing vicarious liability. LabCorp

contends, however, that Plaintiff does not provide sufficient

evidence of Fullman’s negligence to thereby find it vicariously

liable. Specifically, LabCorp argues that Fullman properly

positioned the needle and did not contribute to Plaintiff’s

injury by failing to immediately remove the needle. 

First, LabCorp asserts that there is no evidence of improper

positioning or pressing of the needle, as alleged in paragraph

20(d) of Plaintiff’s Complaint. Plaintiff, however, alleges that

Fullman “reposition[ed] the needle repeatedly while searching for

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a vein.” (Complaint, ¶ 4). In support of Plaintiff’s assertion,

McCall has offered testimony explaining that “moving the needle

trying to find a vein” is likely to “[hit] . . . nerves, artery,

[or] other structures in the arm.” (McCall Depo., p.80). 

Similarly, Plaintiff testified that the needle looked

approximately two inches long, with one inch entering her arm. 

(Wilkerson Depo., p.27). In support of this allegation, McCall

has testified that it is possible for a needle to protrude

through the vein when that length of needle is used. (McCall

Depo., p.81). Moreover, Dr. Dworkin recognized that it was

possible for the needle to have gone through the vein. (Dworkin

Depo, p.89). Thus, this Court finds that hearing evidence about

Fullman’s probing and needle placement could lead a reasonable

jury to conclude that the needle was improperly positioned and/or

passed through the vein. Accordingly, summary judgment is

inappropriate as to paragraph 20(d) of Plaintiff’s Complaint. 

LabCorp also argues that there is no evidence that Fullman’s

alleged failure to remove the needle immediately and continuing

to draw blood caused and/or worsened Plaintiff’s injuries, as

alleged in paragraphs 20(f) and 20(g) of Plaintiff’s Complaint. 

This Court, however, finds that a genuine factual contention is

presented by the evidence indicating that Fullman’s failure to

immediately remove the needle caused and/or worsened Plaintiff’s

injuries. Specifically, Ruth McCall has testified that failing

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to remove a needle immediately upon complaints of pain or

symptoms of nerve damage falls below accepted standards of care. 

(McCall Depo., pp.86-87). McCall further explained that allowing

a needle to remain in a patient’s arm for a longer time-period

can exacerbate a nerve injury. (Id. at pp.86, 88). Moreover,

Dr. Dworkin has testified that Fullman’s improper use of the

needle caused Plaintiff’s injury. (Dworkin Depo., pp.39, 66). 

Dworkin also testified that a longer period of trauma to a nerve

will cause greater injury. (Id. at 101-102). Even the

Defendant’s expert medical witness concedes that the severity of

a nerve injury will increase as the time of trauma increases. 

(Malanga Depo., pp.65-66). 

The testimony offered by Ruth McCall, MT/ASCP, Dr. Gerald

Dworkin, D.O., and Dr. Gerard Malanga, M.D., supports the

allegations in paragraphs 20(f) and 20(g) of Plaintiff’s

Complaint. Specifically, such evidence raises a valid factual

issue as to whether Fullman’s failure to remove the needle

immediately when Plaintiff complained of pain caused or increased

the nerve damage suffered. This Court finds such evidence

sufficient to survive summary judgment, as Plaintiff has provided

testimony from several medical experts pertaining to both the

injury itself and the relationship between the injury and the

alleged cause. Therefore, because sufficient evidence exists

from which a reasonable jury could conclude that Plaintiff’s

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injury was caused and/or worsened by Fullman’s failure to

immediately withdraw the needle, summary judgment is

inappropriate regarding the claims included in paragraphs 20(f)

and 20(g) of Plaintiff’s Complaint. 

An order follows. 

Case 2:04-cv-03212-JCJ Document 24 Filed 07/13/05 Page 15 of 16
IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHERINE WILKERSON :

Plaintiff, : CIVIL ACTION

 :

vs. : NO. 2:04-CV-03212

 :

LABORATORY CORPORATION OF :

AMERICA HOLDINGS, d/b/a LABCORP :

Defendant :

ORDER

AND NOW, this 13th day of July, 2005, upon consideration of

Defendant Laboratory Corporation of America Holdings’ Motion for

Partial Summary Judgment as to Plaintiff’s Complaint (Doc. No.

17), and Plaintiff’s response thereto (Doc. No. 22), it is hereby

ORDERED that the Motion is DENIED, as follows:

(1) It appearing to this Court that Plaintiff has

voluntarily withdrawn the claims asserted in paragraphs 20(b),

20(h), and 24 of the Complaint, Defendant’s Motion for Summary

Judgment with respect to these claims is DENIED AS MOOT; and

(2) Defendant’s Motion for Summary Judgment as to the claims

asserted in paragraphs 20(a),(d),(f), and (g) of the Complaint is

DENIED. 

BY THE COURT:

 s/J. Curtis Joyner 

 J. CURTIS JOYNER, J.

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