MITCHELL v. UNITED STATES OF AMERICA
Filing
44
OPINION. Signed by Judge Robert B. Kugler on 11/21/2011. (dmr)
NOT FOR PUBLICATION
(Doc. No. 32)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
JEFFERY A. MITCHELL,
:
:
Plaintiff,
:
Civil No. 09-680 (RBK/KMW)
:
v.
:
OPINION
:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
___________________________________ :
KUGLER, United States District Judge:
Jeffery A. Mitchell (“Plaintiff”) alleges that while incarcerated in federal prison, he
suffered medical injury due to the negligence of the United States in failing to provide necessary
medical treatment. Plaintiff asserts claims for medical malpractice against the United States
(“the Government”) pursuant to the Federal Tort Claims Act. The Government argues that
Plaintiff’s Complaint should be dismissed because Plaintiff did not file an Affidavit of Merit
(“AOM”) as required by New Jersey’s Affidavit of Merit Statute (“AMS”). For the reasons
discussed below, the Court grants the Government’s motion.
I.
BACKGROUND
Plaintiff is an inmate in Federal Correctional Institution (“FCI”) Fort Dix, in Burlington
County, New Jersey. Compl. ¶ 1. On March 22, 2005, Plaintiff was arrested on federal drug
charges in violation of 21 U.S.C. § 841 and was sentenced to 121 months. Id. ¶ 5. Plaintiff
states that he has the following medical conditions: “[hypercholesterolemia], diabetes[],
hypertension, depress[i]on, [and] resp[i]ratory problems.” Id. ¶ 22. Plaintiff was first placed in
Martinberg Regional Jail, where he complained about an eye ailment. Id. ¶ 7. Plaintiff was then
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seen by an ophthalmologist, who diagnosed Plaintiff’s condition and prescribed treatment for
Plaintiff.1 Id. ¶¶ 6-8. Plaintiff states that he requested to receive his prescribed treatment, but
was told that he would be treated once he reached his final designated facility. Id. ¶ 9.
On September 30, 2005, Plaintiff was transferred to CDC in Youngstown, Ohio. Id. ¶ 10.
While there, Plaintiff states that he again requested to receive his prescribed treatment, but was
again told that he would be treated once he reached his final designated facility. Id. ¶ 10.
On November 15, 2005, Plaintiff was transferred to FCI Fort Dix. Id. ¶ 12. Plaintiff
states that he again requested treatment at Fort Dix, but was given the “runaround.” Id. Plaintiff
states that “[b]y the time [he] was seen by an Ophthalmologist it was too late and [Plaintiff] was
informed that [he] had lost [98%] of [the] sight in [his] left eye.” Id. Plaintiff alleges that due to
a delay in treatment of over four months, he developed glaucoma with a 98% vision loss. Id. ¶
17.
LEGAL STANDARD
A. Proper Characterization of Defendant’s Motion
Defendant purports to move for summary judgment pursuant to Fed. R. Civ. P. 56.
However, Defendant’s motion is premised upon Plaintiff’s failure to submit an affidavit of merit.
New Jersey courts have held that a “failure to provide an affidavit of merit is tantamount to a
failure to state a cause of action.” Burt v. West Jersey Health Sys., 771 A.2d 683, 687 (N.J.
Super. Ct. App. Div. 2001) (citing N.J. Stat. § Ann. 2A:53A-29). Therefore, Defendant’s motion
is properly analyzed under Fed. R. Civ. P. 12(b)(6).
B. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure
to state a claim upon which relief can be granted. With a motion to dismiss, “‘courts accept all
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Plaintiff does not describe the treatment that was prescribed by his ophthalmologist.
2
factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a
motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
addition to the allegations in the complaint, a court may consider matters of public record,
documents specifically referenced in or attached to the complaint, and documents integral to the
allegations raised in the complaint. Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 255 n.5
(3d Cir. 2004).
In determining whether a complaint states a plausible claim for relief, a court must
conduct a two-part analysis. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Fowler, 578
F.3d at 210-11. First, the court must separate factual allegations from legal conclusions. Iqbal,
129 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. Second, the court must determine whether the factual
allegations are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. at 1950.
Determining plausibility is a “context-specific task” that requires the court to “draw on its
judicial experience and common sense.” Id. A complaint cannot survive where a court can only
infer that a claim is merely possible rather than plausible. See id.
II.
DISCUSSION
Plaintiff asserts a common-law tort claim against the United States for negligence.
Generally, the United States is immune from suit unless it consents to be sued. See United States
v. Sherwood, 312 U.S. 584, 586 (1941). The FTCA is a limited waiver of sovereign immunity
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and provides the exclusive remedy for alleged tortious acts or omissions of federal employees.
See 28 U.S.C. § 2679(a). “Because the [FTCA] constitutes a waiver of sovereign immunity, the
Act’s established procedures have been strictly construed.” Livera v. First Nat'l State Bank of
N.J., 879 F.2d 1186, 1194 (3d Cir. 1989).
The New Jersey AMS is “a tort reform measure” that is “designed to weed out frivolous
lawsuits at an early stage and to allow meritorious cases to go forward.” Galik v. Clara Maass
Med. Ctr., 771 A.2d 1141, 1147 (N.J. 2001). The AMS “requires a plaintiff in a malpractice
case to make a threshold showing that the claims asserted are meritorious” by filing an AOM
from an expert stating that the claim is not frivolous.2 Id. “[T]he AMS applies to the filing of a
third-party complaint when the cause of action pled requires proof of malpractice or professional
negligence. And, the obligation rests upon the third-party plaintiff to meet the requirements of
the statute by filing a timely affidavit of merit.” Nagim v. New Jersey Transit, 848 A.2d 61, 68
(N.J. Super. Ct. Law Div. 2003). Where the third-party complaint derives from a malpractice
claim asserted by the plaintiff, and “seeks only to direct the claims made by the plaintiff from the
only named defendant to the party at fault rather than . . . to raise a new affirmative claim,” the
third-party plaintiff need not file an AOM. Diocese of Metuchen v. Prisco & Edwards, AIA,
864 A.2d 1168, 1172 (N.J. Super. Ct. App. Div. 2005). In such an instance, the plaintiff is
2
The statute provides:
In any action for damages for personal injuries, wrongful death or property
damage resulting from an alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff shall, within 60 days
following the date of filing of the answer to the complaint by the defendant,
provide each defendant with an affidavit of an appropriate licensed person that
there exists a reasonable probability that the care, skill or knowledge exercised
or exhibited in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional or occupational standards or
treatment practices. The court may grant no more than one additional period, not
to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of
good cause.
N.J. Stat. Ann. § 2A:53A-27.
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required to file an AOM, thereby fulfilling the purpose of the AMS. Id. However, where the
plaintiff does not assert a malpractice claim, the third-party plaintiff asserting malpractice must
comply with the AMS. Nagim, 848 A.2d at 68.
However, in Hubbard v. Reed, 774 A.2d 495 (N.J. 2001), the New Jersey Supreme Court
held that when a defendant’s negligence is so apparent that expert testimony is unnecessary at
trial, the purpose of the affidavit of merit statute – to reduce frivolous lawsuits – would not be
furthered by requiring an affidavit of merit. Id. at 499-500. The so-called “common knowledge”
exception “applies ‘where jurors’ common knowledge as lay persons is sufficient to enable them,
using ordinary understanding and experience, to determine a defendant’s negligence without the
benefit of the specialized knowledge of experts.’” Id. at 499 (quoting Estate of Chin v. Saint
Barnabas Med. Ctr., 734 A.2d 778, 785 (N.J. 1999)) (holding that common knowledge exception
applied where a dentist extracted the wrong tooth).
A. Common Knowledge Exception
An AOM is not required when the case turns on common knowledge, and the allegations
sound in ordinary negligence. New Hampshire Ins. Co. v. Diller, 678 F. Supp. 2d 288, 309
(D.N.J. 2009). “The factual predicate for a common knowledge case is one where the
carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary
experience.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 579 (3d Cir. 2003) (quoting
Estate of Chin v. Saint Barnabas Med. Ctr., 734 A.2d 778, 785-6 (N.J. 1999)). The exception
applies where there has been an obvious error. See Hubbard v. Reed, 774 A.2d 495, 501 (N.J.
2001) (where dentist extracted wrong tooth); Estate of Chin, 734 A.2d at 787 (where doctor
hooked up equipment that pumped gas rather than fluid that should have been used into patient’s
uterus); Bender v. Walgreen Eastern Co., Inc., 945 A.2d 120 (N.J. Super. Ct. App. Div. 2008)
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(where pharmacist filled prescription with wrong drug); Becker v. Eisenstodt, 158 A.2d 706, 711
(N.J. Super. Ct. App. Div. 1960) (where doctor used caustic solution rather than painkiller to
treat a young girl’s nose after plastic surgery). However, “the common-knowledge exception
should be narrowly construed ‘to avoid non-compliance with the [AMS].’” Risko v. Ciocca, 812
A.2d 1138, 1141 (N.J. Super. Ct. App. Div. 2003) (quoting Hubbard, 774 A.2d at 501). As a
result, the plaintiff must “demonstrate that an expert would be no more qualified than a nonexpert in regards to attesting to the merit of the claim(s).” Carbonaro v. Lutz, No. 08-4928, 2010
U.S. Dist. LEXIS 80236, at *13 (D.N.J. Aug. 3, 2010) (citing Hubbard, 774 A.2d at 500).
Here, Plaintiff has not demonstrated that his claim turns on common knowledge.
Plaintiff alleges only that “immediate medical care [was] needed” for his eye condition, and that
Defendant failed to provide the necessary treatment in a timely fashion, resulting in Plaintiff’s
injury. Compl. ¶ 15. However, Plaintiff has not described specifically what treatment was
prescribed by his ophthalmologist. Furthermore, Plaintiff has not described the specific nature of
his “eye condition,” beyond stating that Plaintiff has “[hypercholesterolemia], diabetes[],
hypertension, depress[i]on, [and] resp[i]ratory problems.”3 Id. ¶ 22. The Court finds that the
question of whether the provision of a certain ophthalmological treatment or treatments for
Plaintiff’s unspecified eye condition, four months after it was prescribed, was the likely
proximate cause of the glaucoma and 98% blindness in Plaintiff’s left eye, is not within the
common knowledge of a layperson. Here, Defendant had indeed provided medical treatment to
Plaintiff. Plaintiff’s allegation that the medical treatment was allegedly provided too late or was
otherwise insufficient is an assertion of technical medical expertise that requires expert testimony
to prove. A delay in providing prescribed medical treatment does not automatically equate to a
finding of negligence. See McLoyd v. U.S., 2006 WL 2135837, *6 (D.N.J. July 27, 2006) (“the
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Plaintiff has not at this time produced any of his medical records.
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negative effects of a delay in treating a dislocated lunate is not generally determinable in the
absence of an expert”). The timeframe within which glaucoma should be treated is not within
the common knowledge of a layperson.
In order to satisfy the common-knowledge exception, Plaintiff must demonstrate that
Defendant’s negligence is readily apparent to anyone of average intelligence and ordinary
experience. See Natale, 318 F.3d at 579. Even taking the allegations in the light most favorable
to Plaintiff, Plaintiff has not pled facts sufficient for an ordinary person to determine that
Defendant was negligent. It is not possible for a physician, let alone a layperson, to
meaningfully evaluate Plaintiff’s complex negligence claim here without knowing specific
details as to the type of treatment prescribed by Plaintiff’s ophthalmologists, as well as Plaintiff’s
medical condition and medical history. Therefore, because Plaintiff has not provided an affidavit
of merit to support Plaintiff’s claim for medical malpractice, Plaintiff’s claim must be dismissed.
III.
CONCLUSION
For the reasons discussed above, the Court dismisses Plaintiff’s claim against Defendant.
An appropriate Order shall enter.
/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: 11/21/11
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