GEISS et al v. TARGET CORPORATION et al

Filing 30

OPINION. Signed by Judge Robert B. Kugler on 8/2/2011. (dmr)

NOT FOR PUBLICATION

(Doc. No. 23)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
SANDRA GEISS and ROBERT GEISS,
:
h/w,
:
:
Plaintiffs,
:
Civil No. 09-2208 (RBK/KMW)
:
v.
:
OPINION
:
TARGET CORPORATION, and/or
:
TARGET CORPORATION OF
:
MINNESOTA, JOHN DOES 1-5
:
(fictitious persons), and ABC CORPS 1-5 :
(fictitious corporations),
:
:
Defendants.
:
___________________________________ :
:
TARGET CORPORATION,
:
:
Third-Party Plaintiff,
:
:
v.
:
:
VIRTUA MEMORIAL HOSPITAL,
:
VIRTUA MEMORIAL HOSPITAL:
MT. HOLLY, VIRTUA WEST,
:
JOHN DOES 1-10 (names unknown), and :
ABC CORPS. 1-10 (names unknown),
:
:
Third-Party Defendants. :
___________________________________ :

KUGLER, United States District Judge:
This matter arises out of a slip-and-fall case by Plaintiffs against Defendant/Third Party
Plaintiff Target Corp. (“Target”). Subsequent to her fall, Mrs. Geiss was hospitalized at ThirdParty Defendant Virtua Memorial Hospital (“Virtua”). Target filed a Third-Party Complaint
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seeking contribution and indemnification from Virtua for Plaintiff’s injuries. Before the Court is
Virtua’s Motion to Dismiss Target’s Third-Party Complaint. Virtua argues that Target’s ThirdParty Complaint should be dismissed because Target did not file an Affidavit of Merit (“AOM”)
as required by New Jersey’s Affidavit of Merit Statute (“AMS”). Because Target complied with
a statutory exception by filing a sworn statement in lieu of an AOM, Virtua’s Motion is
DENIED.
I.

BACKGROUND
In January 2006, Mrs. Geiss had her right knee replaced and a prosthesis inserted.

(Third-Party Compl. Count I ¶ 3). In July 2007, Mrs. Geiss slipped and fell in Target. (ThirdParty Compl. Count I ¶ 2). According to Target, at some time in August 2007, Mrs. Geiss had
her knee examined, and doctors determined that the prosthesis was in place and unharmed.
(Third-Party Compl. Count I ¶ 4). Then, on August 29, 2007, Plaintiff had trouble breathing and
was admitted to Virtua with sepsis and a bacterial infection. (Third-Party Compl. Count I ¶ 5).
Mrs. Geiss underwent surgery to replace the prosthesis in her knee. She developed a MSSA
infection, underwent several subsequent surgeries, and ultimately had her knee fused. (ThirdParty Compl. Count I ¶ 9). Mrs. Geiss remained at Virtua for two months. (Third-Party Compl.
Count I ¶ 5). On March 26, 2009, Plaintiffs brought suit against Target, alleging that Mrs.
Geiss’s fall at Target caused her injuries and hospitalization.
On July 29, 2010, Target filed a Third-Party Complaint against Virtua, alleging that Mrs.
Geiss’s injuries were not caused by her fall, but by Virtua’s negligence. (Third-Party Compl.
Count I ¶ 6-7). Target’s theory of Virtua’s negligence can be summarized in a single sentence:
“According to Plaintiff’s expert, Dr. Barry Gleimer, something occurred during the course of
Plaintiff’s [Mrs. Geiss] admission to Virtua Memorial Hospital-Mt. Holly which dislodged

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and/or damaged the prosthesis.” (Third-Party Compl. Count I ¶ 8) (emphasis added). The ThirdParty Complaint contains no further explanation of exactly how Plaintiff was injured, or how
Virtua was negligent. However, before filing its Third-Party Complaint, Target requested copies
of Mrs. Geiss’s hospital records from her time at Virtua. (Third-Party Compl. Count II ¶ 2).
Virtua informed Target that “a significant portion” of the records were missing. (Third-Party
Compl. Count II ¶ 3). Target requested the missing records, but did not receive them. Target
therefore requested that Virtua identify the medical personnel who signed portions of the records,
and identify the medical personnel who would have signed the missing records. Virtua
responded that it could not “identify with any specificity the names of the employees, nurses,
doctors, or other individuals or entities who treated and/or participated in the treatment of
Plaintiff.” (Third-Party Compl. Count III ¶ 3). Thus, Target alleges that it “cannot state with
any specificity the exact date upon which Plaintiff was injured at the hospital or the exact cause
of Plaintiff’s injuries.” (Third-Party Compl. Count II ¶ 5).
The Third-Party Complaint contains four counts requesting indemnification or
contribution. Count I claims that Virtua and its employees caused Mrs. Geiss’s injuries. Count
II alleges that Virtua spoliated evidence by “carelessly, negligently and/or intentionally
destroy[ing], alter[ing] and/or fail[ing] to maintain the records pertaining” to Mrs. Geiss’s visit.
Count III claims that Target cannot identify the names of the individual employees who treated
Mrs. Geiss, and reserves the right to amend the Third-Party Complaint when Virtua produces the
required information. Count IV seeks contribution from Third-Party Defendant under the Joint
Tortfeasors Contribution Act, N.J. Stat. Ann. § 2A:53A-1, and under common law.
On September 10, 2010, Virtua answered Target’s Third-Party Complaint. Virtua filed
its Motion to Dismiss on February 16, 2011 on the basis that Target had not timely filed an AOM

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as required by New Jersey’s AMS. On February 25, 2011, Target submitted a Sworn Statement
pursuant to N.J. Stat. Ann. § 2A:53A-28 certifying that it could not obtain an AOM because
Virtua had not provided requested information.
II.

STANDARD
Virtua moved to dismiss after answering the Third-Party Complaint. Where a party

moves to dismiss after filing an answer, “the court will treat [the motion to dismiss] as a motion
for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c).” Snyder v. Baumecker, 708 F.
Supp. 1451, 1462 n.6 (D.N.J. 1989). Under Federal Rule of Civil Procedure 12(c), a court will
grant judgment on the pleadings if, on the basis of the pleadings, no material issue of fact
remains and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 12(c);
DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008). The standard governing a Rule
12(c) motion is the same as the standard governing a motion to dismiss under Rule 12(b)(6). See
Spruill v. Gillis, 372 F.3d 218, 223 n. 2 (3d Cir. 2004). The Court must accept the nonmoving
party’s well-pleaded factual allegations as true and construe those allegations in the light most
favorable to the nonmoving party, but the Court will disregard any unsupported conclusory
statements. See DiCarlo, at 262–63. 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). Determining plausibility is a “contextspecific task” that requires the court to “draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). A complaint cannot survive where a court can
only infer that a claim is merely possible rather than plausible. See id.
III.

DISCUSSION
The AMS is “a tort reform measure” that is “designed to weed out frivolous lawsuits at

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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.1 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
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.
There are two exceptions to the AOM requirement. First, there is the commonknowledge exception, where the negligence of the defendant is apparent to an ordinary person,

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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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rendering an expert opinion unnecessary. Couri v. Gardner, 801 A.2d 1134, 1141 (N.J. 2002).
Second, there is the sworn-statement exception, where pursuant to N.J. Stat. Ann. § 2A:53A-28,
a plaintiff provides a sworn statement that it requested information necessary to prepare an
AOM but has not received that information from the defendant. Id. Here, Target argues that
both exceptions apply.2
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)
(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

2

Target also argues that the equitable doctrine of “unclean hands” bars Virtua from seeking dismissal on the basis of
the AMS. Target relies upon a footnote in McHugh v. Jackson, No. 07-2970, 2009 U.S. Dist. LEXIS 33743 at *1920 (D.N.J. Apr. 20, 2009), for the proposition that the doctrine is applicable in this situation. Because the Court
finds that the “sworn statement” exception is satisfied in this case, it will not determine the applicability of the
doctrine of “unclean hands.”

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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, Target has not demonstrated that its claim turns on common knowledge. Target
alleges only that “something” happened while Mrs. Geiss was at Virtua that caused her injuries.3
Target does not allege that an obvious error by Virtua or its employees caused Mrs. Geiss’s
injuries. Rather, Target acknowledges that it does not know the exact cause of her injuries.
Because Mrs. Geiss received medical treatment, her injuries may have resulted from negligent
medical care that requires expert testimony to prove. In order to satisfy the common-knowledge
exception, Target must demonstrate that Virtua’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 Target, it has not pled facts sufficient for an ordinary
person to determine that Virtua was negligent.
B. Sworn-Statement Exception
The AMS provides a sworn-statement alternative to an AOM. Manley v. Maran, No. 022504, 2003 U.S. Dist. LEXIS 19645, at *5 (D.N.J. Aug. 1, 2003). “This alternative applies in
cases where a plaintiff has properly requested materials from a defendant that will have bearing
on the required Affidavit of Merit, yet the defendant has not complied.”4 Id. The New Jersey

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Target does not assert res ipsa loquitur as a theory of Virtua’s negligence. To assert res ipsa loquitur, Target must
plead that: (1) the occurrence itself ordinarily bespeaks negligence; (2) the instrumentality was within Virtua’s
exclusive control; and (3) there is no indication that the injury was the result of Plaintiff’s own voluntary act or
negligence. Buckelew v. Grossbard, 435 A.2d 1150, 1159 (N.J. 1981). Moreover, “an affidavit of merit is required
in a res ipsa loquitur case, unless the ‘common knowledge’ doctrine is also applicable.” Risko v. Ciocca, 812 A.2d
1138, 1142 (N.J. Super. Ct. App. Div. 2003). Thus, Target’s allegations would not be sufficient even if Target
relied on res ipsa loquitur because Target has not demonstrated that its claim turns on common knowledge.
4

The AMS provides the following:

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Legislature created the sworn-statement exception as a “safety valve.” Aster v. Shoreline
Behavioral Health, 788 A.2d 821, 827 (N.J. Super. Ct. App. Div. 2002). It recognized the
potential for defendants to abuse the AOM requirement, and “afford[ed] a plaintiff a vehicle to
prevent a malpractice defendant from defeating a malpractice claim prematurely by failing to
provide the data necessary for an expert to render an Affidavit of Merit.” Barreiro v. Morais,
723 A.2d 1244, 1248 (N.J. Super. Ct. App. Div. 1999). Importantly, for the sworn-statement
exception to apply, the requested records must have “a substantial bearing on preparation of the
affidavit.” N.J. Stat. Ann. § 2A:53A-28 (emphasis added). A plaintiff must reasonably believe
that the documents exist and that the documents are necessary to prepare the AOM. Guzman v.
Jersey City Med. Ctr., 811 A.2d 481, 482 (N.J. Super. Ct. App. Div. 2002) (holding that swornstatement exception did not apply where plaintiff went to emergency room, but left when he felt
he had waited too long and was being ignored, and then requested logs of his visit at the hospital,
because plaintiff received no treatment at the hospital and could not reasonably expect logs to
exist or that the nonexistent logs would have a substantial bearing on preparation of an AOM).
However, “it is difficult to grasp how a plaintiff who has never seen the documents could be
specific as to how the unknown documents could have a bearing on the affidavit.” Aster, 788
A.2d at 826. Thus, where the information a plaintiff requests is known to exist, “it should be
presumed that the medical records or other records or information not produced have . . . a
substantial bearing on preparation of the affidavit, and that the burden of establishing otherwise

An affidavit shall not be required pursuant to section 2 of this act if the plaintiff provides
a sworn statement in lieu of the affidavit setting forth that: the defendant has failed to
provide plaintiff with medical records or other records or information having a substantial
bearing on preparation of the affidavit; a written request therefor along with, if necessary,
a signed authorization by the plaintiff for release of the medical records or other records
or information requested, has been made by certified mail or personal service; and at least
45 days have elapsed since the defendant received the request.
N.J. Stat. Ann. § 2A: 53A-28.

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should be borne by the party that has not produced the records.” Id. (holding that sworn
statement exception applied where hospital refused repeated requests for information that it had
because there were technical defects with the requests because hospital had not rebutted
presumption that information had a substantial bearing on plaintiff preparing AOM); see also
Manley, 2003 U.S. Dist. LEXIS 19645, at *9-10 (observing that the AMS does not distinguish
between the situation where a defendant in fact has retained the relevant documents or
information requested, and where a defendant no longer has that information).
Here, Target timely provided a sworn statement in lieu of an AOM.5 However, Virtua
argues that Target could not reasonably believe that the records sought would have a substantial
bearing on the preparation of an AOM. Specifically, Virtua argues that it made good-faith
efforts to locate the missing records and informed Target that it could not locate the records
before Target filed the Third-Party Complaint. Further, Virtua argues that it provided Target
with extensive records of Plaintiff’s visit, and that if there had been an incident causing Plaintiff
harm, the incident would have been noted somewhere in those records.
Virtua’s arguments are unavailing. First, Target reasonably believes that information
exists regarding Mrs. Geiss’s treatment at Virtua. Target alleges that Virtua has not divulged
requested information about the identities of the individuals who treated Mrs. Geiss. Target

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Virtua does not contest the timeliness of Target’s sworn statement. Target provided its sworn statement on
February 25, 2011. Virtua filed its answer to the Third-Party Complaint on September 10, 2010. Therefore, Target
filed its sworn statement more than 120 days after Virtua filed its answer. See N.J. Stat. § 2A:53A-27 (providing
that a plaintiff shall file an AOM within 60 days after the defendant files an answer, or within 120 days if the court
finds good cause). However, “for purposes of determining the timeliness of an application to file a ‘sworn
statement’ under N.J.S.A. 2A:53A-28, the application should relate back to the beginning of plaintiff’s efforts to
obtain the documents referred to in its application.” Aster, 788 A.2d at 826 (emphasis added). Thus, a plaintiff’s
request for information before the statutory deadline satisfies the timeliness requirement. Id. Where a plaintiff’s
efforts to obtain information “began well before the affidavit of merit filing deadline, because they commenced even
prior to suit and commenced thereafter,” the sworn statement is timely. Id. In the Third-Party Complaint filed on
July 29, 2010, Target alleges that it sought Plaintiff’s missing records as well as the names of the personnel who
treated Plaintiff. (See Third-Party Compl. Count II ¶ 2). Further, in November 2010, Target again requested the
missing records from Virtua. Therefore, Target’s sworn statement relates back to an earlier date, and the sworn
statement falls within the statutory timeframe.

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requested that Virtua identify signatures on the records it received, and asked Virtua to identify
the individuals who treated Mrs. Geiss. Even if the missing records no longer exist or never
existed, Target can interview or depose those persons who treated Mrs. Geiss. Despite Virtua’s
contention that it has complied in good faith with Target’s requests for information, Virtua
provides no explanation for its inability to identify those persons.6
Second, Target reasonably believes that the information it sought is necessary to prepare
an AOM. See Guzman, 811 A.2d at 482. Where the information requested exists, that
information is presumed to have a substantial bearing on the preparation of an AOM. Aster, 788
A.2d at 826. Virtua has not established that the information Target sought does not have a
substantial bearing on the preparation of the AOM. See id. With the information, Target can
depose the individuals who treated Mrs. Geiss and discover what, if anything, occurred during
her treatment. Thus, Target reasonably believes that the identities of the individuals who treated
Mrs. Geiss is necessary to prepare an AOM, and Target’s Sworn Statement satisfies N.J. Stat.
Ann. § 2A:53A-28.
IV.

CONCLUSION
For the reasons discussed above, Virtua’s Motion to Dismiss is DENIED. An

appropriate Order shall enter.

Date: 8/2/2011

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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Target alleges that it requested billing documents and other information from Virtua in an effort to identify treating
medical personnel, but that it did not receive them. (Pl.’s Sworn Statement ¶ 12). Virtua does not explain why it
has not provided Target with that information.

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