D. v. MICKENS et al
Filing
140
OPINION. Signed by Judge Joseph E. Irenas on 6/20/2013. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Troy D., and
Iris Maldonado, as
Administrator of the Estate
of O.S.,
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 10-2902
(JEI/AMD)
Plaintiffs,
OPINION
v.
Mickens, et al.,
Defendants.
APPEARANCES:
DECHERT LLP
By: John J. Sullivan
902 Carnegie Center, Ste. 500
Princeton, NJ 08540
and
CLARK LAW OFFICES P.A.
By: Bruce W. Clark
103 Carnegie Center, Ste. 300
Princeton, NJ 08540
Counsel for Plaintiffs
MICHAEL J. LUNGA ESQ. LLC
By: Michael J. Lunga
23 Vreeland Road, Ste. 250
Florham Park, NJ 07932
Counsel for Defendants Ellen Zupkus, Jason Fleming, Tara
Lally, Angela Clack, Keli Drew-Lockhart, Susanna Carew,
Robert Randolph.
1
IRENAS, Senior District Judge:
Plaintiffs Troy D. (“Troy”) and O’Neill S. (“O’Neill”) 1
initiated this action seeking compensatory and punitive damages,
and declaratory and injunctive relief, for injuries they
suffered while in the custody of the New Jersey Juvenile Justice
Commission (“JJC”).
Plaintiffs brought this action pursuant to
42 U.S.C. §1983 2, N.J.S.A. §10:6-2, and under general theories of
negligence.
Pending before the court is a motion to dismiss
with prejudice and without costs the Plaintiffs’ negligence
claims against Defendants Ellen C. Zupkus, Ph.D, Jason S.
Fleming, Psy.D., Tara M. Lally, Ph.D., Angela Clack, Psy.D.,
Keli Drew-Lockhart, Psy.D., and Susanna Carew, Psy.D.
Health Defendants”).
(“Mental
The basis of the Motion to Dismiss is that
Plaintiffs did not file affidavits of merit as required by
N.J.S.A. 2A:63A-26 to -29.
For the reasons stated herein, the
Mental Health Defendants’ motion will be denied.
I.
The Second Amended Complaint alleges the following facts.
1
On January 19, 2012, the Court was notified of the death of
Plaintiff O’Neill S. (Dkt. No. 82) Consequently, Iris
Maldonado, as Administrator of O’Neill S.’s estate was
substituted for O’Neill S. as a plaintiff in this action. (Dkt.
No. 91)
2
The court exercises subject matter jurisdiction pursuant to
28 U.S.C. §§ 1331 and 1367(a).
2
On February 18, 2009, Troy, then 15 years old, was
adjudicated delinquent by the Superior Court of New Jersey and
ordered to be committed to the custody of the JJC. 3
Compl. ¶ 74.)
(Second Am.
Troy remained in custody from February 25, 2009,
until October 7, 2009, for a total of 225 days. 4
(Id. ¶ 80.)
For approximately 178 to 188 of those days, Troy was held in
isolation under a special observation status requiring close or
constant watch, purportedly for his own safety.
(Id. ¶ 81)
On February 27, 2009, O’Neill, then 16 years old, was
adjudicated delinquent for conspiracy to distribute CDS 5 and
committed to the custody of the JJC.
(Id. ¶ 120.)
Between June
2009 and October 2010, O’Neill was held in isolation for
approximately fifty days, awaiting hearings for alleged
disciplinary violations.
(Id. ¶ 125.)
3
Troy was adjudicated delinquent on three counts of
violation of probation, fourth degree criminal sexual contact,
two counts of fourth degree aggravated assault, third degree
aggravated assault, and third degree criminal restraint.
(Lemane Cert. Ex. A.)
4
Troy spent a majority of the time confined at the Juvenile
Medium Security Facility (“JMSF”) in Bordentown, New Jersey, but
was also confined for shorter periods of time at the Juvenile
Reception and Assessment Center (“JRAC”) and the New Jersey
Training School (“NJTS”). (Second Am. Compl. ¶ 77.) JMSF, JRAC
and NJTS are all JJC-operated facilities. (Id. ¶¶ 28-29.)
5
The Court understands “CDS” to refer to controlled
dangerous substances, notwithstanding Plaintiffs’
characterization of O’Neill’s offense as “conspiracy to
distribute compact discs.” (Am. Compl. ¶ 120.)
3
While Plaintiffs were placed in isolation for different
reasons, the conditions they experienced were similar.
Both
Plaintiffs were confined to a seven-foot-by-seven-foot room and
allowed out only for hygiene purposes.
(Id. ¶¶ 86, 169.)
The
rooms contained only a concrete bed slab, a toilet, a sink, and
a mattress pad.
(Id.)
Both Plaintiffs were denied any
educational materials or programming, and were prevented from
interacting with their peers.
(Id.)
In addition, Plaintiffs
were refused mental health treatment during their periods in
isolation, and were deprived of other necessary medical
treatment.
(Id. ¶ 1.)
On June 7, 2010, Troy initiated this action by filing a
complaint in this court against the Mental Health Defendants,
and multiple defendants associated with the JJC.
In the present
case, the Mental Health Defendants are all psychologists with
University Correctional Healthcare within the University of
Medicine and Dentistry of New Jersey. 6
(See id. ¶ 66-73.)
University Correctional Healthcare, along with Universal
Behavioral Healthcare, has an interagency agreement with the New
Jersey Department of Corrections to manage all aspects of mental
6
In the Second Amended Complaint, Robert Randolph, M.D., is
included as a Mental Health Defendant. (Second Am. Compl.
¶ 72.) However, there is no dispute that Defendants have
submitted an affidavit of merit as to Dr. Randolph. Therefore,
he is not a party to the instant Motion to Dismiss.
4
health care provided to juveniles within JJC facilities.
(Id. ¶
65.)
An Amended Complaint was filed on December 2, 2010.
No. 10.)
(Dkt.
Subsequently, defendants moved to dismiss the Amended
Complaint pursuant to Fed. R. Civ. P. 12(b)(6) or, in the
alternative, for summary judgment pursuant to Fed. R. Civ. P.
56.
On August 25, 2011, this Court denied those motions.
(Dkt.
No. 50.)
The Complaint was most recently amended on December 14,
2011.
(Dkt. No. 77.)
The Second Amended Complaint asserts that
Plaintiffs were subjected to excessive isolation and denied
access to education, treatment and other therapeutic support,
(Second Am. Compl. ¶ 1) and includes claims arising under 42
U.S.C. § 1983, the New Jersey Civil Rights Act, the New Jersey
Constitution, and common law negligence.
Currently pending before the Court is the Mental Health
Defendants’ motion to dismiss Plaintiffs’ negligence claims with
prejudice and without costs for failure to supply timely
affidavits of merit in support of their claims.
At present, the
Mental Health Defendants do not seek the dismissal of any other
claims asserted by Plaintiffs.
The Court has received a brief
in support from the Mental Health Defendants, and a brief in
opposition from the Plaintiffs.
The Mental Health Defendants
5
have not filed a reply brief to the Plaintiffs’ brief in
opposition.
II.
N.J.S.A. 2A:53A-27 (the “Affidavit of Merit Statute”)
provides that:
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...
N.J.S.A. 2A:53A–27.
Defendants argue that Plaintiffs’ negligence claims must be
dismissed because Plaintiffs have failed to provide affidavits
of merit for the Mental Health Defendants.
It is undisputed
that if the Affidavit of Merit Statute applies, and no exception
is warranted, dismissal of Plaintiffs’ negligence claims is
appropriate.
See generally Paragon Contrs., Inc. v. Peachtree
Condo. Ass'n, 202 N.J. 415, 422 (2010) (“Neglecting to provide
an affidavit of merit ... generally requires dismissal with
prejudice because the absence of an Affidavit of Merit strikes
at the heart of the cause of action.”); Couri v. Gardner, 173
6
N.J. 328, 333 (2002) (“failure to provide an affidavit results
in dismissal of the complaint.... [T]he overall purpose of the
statute is to require plaintiffs in malpractice cases to make a
threshold showing that their claim is meritorious, in order that
meritless lawsuits readily could be identified at an early stage
of litigation.”) (internal citations and quotations omitted).
In the instant case, however, the Affidavit of Merit
Statute does not apply. N.J.S.A. 2A:53A-26 lists who constitutes
a “licensed person” for the purposes of the Affidavit of Merit
Statute.
Specifically, N.J.S.A. 2A:53A-26 states:
As used in this act, “licensed person” means any
person who is licensed as:
a. an accountant pursuant to P. L.1997, c. 259
(C.45:2B-42 et seq.);
b. an architect pursuant to R.S.45:3-1 et seq.;
c. an attorney admitted to practice law in New
Jersey;
d. a dentist pursuant to R.S.45:6-1 et seq.;
e. an engineer pursuant to P.L.1938, c. 342 (C.45:827 et seq.);
f. a physician in the practice of medicine or
surgery pursuant to R.S.45:9-1 et seq.;
g. a podiatrist pursuant to R.S.45:5-1 et seq.;
h. a chiropractor pursuant to P.L.1989, c. 153
(C.45:9-41.17 et seq.);
i. a registered professional nurse pursuant to
P.L.1947, c. 262 (C.45:11-23 et seq.);
7
j. a health care facility as defined in section 2 of
P.L.1971, c. 136 (C.26:2H-2);
k. a physical therapist pursuant to P.L.1983, c. 296
(C.45:9-37.11 et seq. );
l. a land surveyor pursuant to P.L.1938, c. 342
(C.45:8-27 et seq.);
m. a registered pharmacist pursuant to P.L.2003, c.
280 (C.45:14-40 et seq.);
n. a veterinarian pursuant to R.S.45:16-1 et seq.;
o. an insurance producer pursuant to P.L.2001, c.
210 (C.17:22A-26 et seq.); and
p.
a certified midwife, certified professional
midwife, or certified nurse midwife pursuant to
R.S.45:10-1 et seq.
N.J.S.A. 2A:53A-26.
The New Jersey Appellate Division has held that the
Affidavit of Merit Statute is exclusive to those licensed
professionals listed in the statute.
For example, in Saunders
v. Capital Health System at Mercer, 942 A.2d 142, 146 (N.J.
Super. App. Div. 2008), abrogated on other grounds by Paragon
Contractors, Inc. v. Peachtree Condo. Ass'n, 997 A.2d 982 (N.J.
2010) the Superior Court of New Jersey, Appellate Division held
that a Plaintiff did not need an affidavit of merit to sue a
licensed midwife because midwives were not listed in N.J.S.A.
2A:53A-26.
The Appellate Division further noted that “[h]ad the
Legislature intended N.J.S.A. 2A:53A–26 to apply to other
unspecified licensed health providers, it could easily have
8
prefaced the licensed persons listed with the words ‘including
but not limited to.’ It chose not to do so.” 7
This district implemented Saunders’ analysis in Mirow v.
Lebovic, 2009 WL 5206249 (D.N.J. 2009).
In Mirow the court
denied a motion to dismiss for failure to provide an Affidavit
of Merit for a licensed optometrist on the grounds that “an
‘optometrist’ is not included in the list of ‘licensed
persons’.”
Id. at *2.
The Mirow court further reasoned that
the defendant did not provide “any argument for why the Court
should not follow the Appellate Division’s analysis in
Saunders.”
Id.
In the instant case, the Mental Health Defendants are all
psychologists.
Psychologists are not included in the list of
licensed persons under N.J.S.A. 2A:53A-26. 8
Therefore, as in
Saunders and Mirow, no affidavits of merit are required.
Additionally, analogous to Mirow, the Mental Health Defendants
have failed to present any argument for why this court should
not follow Saunders.
See Mirow, 2009 WL 5206249, at *2.
7
The Affidavit of Merit Statute was amended on December 12,
2010 to include midwives. N.J.S.A. 2A:53A-26(p); L.2010, c. 88,
§ 1, eff. Dec. 12, 2010.
8
Defendants do not argue that a psychologist can be
considered a “physician in the practice of medicine or surgery.”
Even if Defendants did raise this argument it would be
unavailing because psychologist is not defined pursuant to
N.J.S.A. 45:9-1, but rather N.J.S.A 45:14B-2. C.f. Mirow v.
Lebovic, 2009 WL 5206249, at *1 n.3 (D.N.J. 2009).
9
II.
For the foregoing reasons, the Mental Health Defendants’
Motion to Dismiss Plaintiffs’ professional negligence claims
will be denied. 9
An appropriate Order will accompany this
Opinion.
Date: June
20 , 2013
_
s/Joseph E. Irenas_______
JOSEPH E. IRENAS, S.U.S.D.J.
9
The Court is aware that Plaintiffs have also argued that the
Mental Health Defendants’ motion to dismiss should be barred
under the theories of equitable estoppel and laches. Because
the Court has denied the Motion to Dismiss on the basis that no
affidavits of merit were required, the Court does not reach the
question of whether the Motion to Dismiss is barred by laches or
equitable estoppel.
10
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