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Run-Over Cyclist Keeps Suit Out of Federal Court

(CN) - Wilkie Trucking must face negligence claims in Pennsylvania state court from a cyclist who still has trouble walking after a road accident, a federal judge ruled.

Thomas McMillan had been riding his bicycle in Philadelphia in May 2013 when Wilkie driver Randy Lovell turned his tractor trailer right into the cyclist and ran him over.

McMillan sued Lovell and his New Jersey-based employer in state court on Sept. 24, alleging careless and negligent truck operation.

The Pennsylvanian says the accident left him with "catastrophic, disabling, life-altering and permanent" injuries, including sacral and pubic bone and joint fractures, a scrotal laceration, femoral artery dissections and thrombosis, severe knee injuries, and abrasions all over his body.

McMillan says he has undergone multiple major surgeries for the injuries; spent more than two weeks in the hospital and two more in rehab; and requires physical therapy, "potent" pain medication, and extensive diagnostic testing.

Agonizing aches and pains also trouble the cyclist, who says he has extreme weakness; difficulty walking; permanent scarring; orthopedic, neurologic, and mental anguish; and other bone, muscle, nerve, tissue, and ligament injuries yet to be determined.

McMillan says Lovell and Wilkie owe him at least $50,000, the amount required in Philadelphia County to avoid required arbitration.

He denied the defendants' estimate in a Nov. 1 response that the recoverable damages at below $75,000, which the plaintiff denied later that month.

The truck company later removed the case to federal court, but U.S. District Judge R. Barclay Surrick granted McMillan's motion to remand on Feb. 21, finding that any notice of removal was due within 30 days of receiving the complaint.

"Defendants should have reasonably and intelligently concluded from a fair reading of the damages alleged in the complaint, particularly in consideration of the extent of the injuries, the multiple surgeries plaintiff underwent, the time he spent in the hospital and in rehab, the injuries not yet determined, and the loss of earnings, that the damages sought would well exceed the $75,000 jurisdictional amount," Surrick wrote. "Plaintiff's complaint is not one that sets damages equivocally. Nor does the complaint merely contain boilerplate language to describe plaintiff's injuries."

Wilkie failed to persuade the court that it was unaware damages would exceed $75,000 until about two months after the complaint was filed.

"Plaintiff's injuries were described unequivocally," Surrick added. "The damages sought were specifically alleged with significant details regarding the dates of surgeries and diagnoses and treatments that plaintiff received. A fair reading of the complaint should have put defendants on notice that the damages sought certainly exceeded the jurisdictional amount. Accordingly, defendants' notice of removal was not timely filed."


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