SHUSTER v. CABANAS et al

Filing 72

OPINION. Signed by Judge Renee Marie Bumb on 9/10/2014. (drw)

NOT FOR PUBLICATION

[Docket No. 68]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

BORIS SHUSTER,
Plaintiff,
v.

Civil Action No.
11-1764(RMB/JS)

DR. ROBERT CABANAS, DR. ABIGAIL
LOPEZ DE LASALLE,IBE CHIGOZIE,
P.A., LIEUTENANT KENNETH PERNELL,
and UNITED STATES OF AMERICA,

OPINION

Defendants.

Appearances:
Charles P. Montgomery
Earp Cohn P.C.
20 Brace Road, 4th Floor
Cherry Hill, NJ 08034
Attorneys for the Plaintiff
Colette R. Buchanan
Office of the United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Attorneys for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
I.

Introduction
This matter comes before the Court upon a motion by

Defendant, the United States of America, for summary judgment
(Docket No. 68).

For the reasons set forth below, Defendant’s

motion will be denied.

1

II.

Factual and Procedural Background 1
Plaintiff, Boris Shuster, is a former inmate at the Federal

Correctional Institution at Fort Dix, New Jersey (“FCI”).
(Def.’s R. 56.1 at ¶ 1). The only remaining claim in this case
alleges medical malpractice by the Defendant in the treatment of
a dental problem Plaintiff experienced while imprisoned at FCI.
(Id. at ¶2).

All other Defendants and Plaintiff’s other claims

were dismissed by this Court on July 19, 2013 [Docket Nos. 52
and 53].
Plaintiff’s medical malpractice claim alleges negligence by
Bureau of Prison health care providers in the performance of a
dental procedure performed by Dr. Cabanas on December 10, 2008,
and in the care Plaintiff received following that procedure.
(Def.’s R. 56.1 at ¶ 3).

This claim is brought pursuant to the

Federal Tort Claims Act, 28 U.S.C. §§ 346(b), 2671 et seq.

(Id.

at 4).

Where there are significant factual disputes between the
parties, the facts should be construed in favor of the nonmoving party. See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir.
2004), cert. denied, 543 U.S. 956 (2004). That said, Plaintiff
does not dispute the Defendant’s submitted Local Rule 56.1
statement and the Court relies on that submission as
appropriate. See Local Civ. R. 56.1 “any material fact not
disputed shall be deemed undisputed for purposes of the summary
judgment motion.” To the extent that additional facts were
required to resolve this motion, this Court has relied in
Plaintiff’s pleading.
1

2

Plaintiff alleges that, as a consequence of the procedure,
he experienced post-operative pain and swelling, but he was not
seen for a follow-up appointment despite reporting “severe postoperative pain” until hospitalization became necessary on
December 17, 2008. (First Amended Complaint at ¶¶ 21-22).
Plaintiff avers that Dr. Cabanas refused to see him despite his
post-operative pain because “he had to go to a funeral.”
at ¶ 20).

(Id.

Once hospitalized, the Plaintiff was diagnosed with

an infection and had two teeth extracted. (Id. at ¶ 23).
Plaintiff also alleges that he was provided a prescription for
antibiotics on December 5, 2008 but that prescription was not
filled until December 16th despite Plaintiff’s complaints of
pain and swelling.

(Id. at 21). 2

In a previous Opinion, Docket No. 52, this Court discussed
Plaintiff’s opposition to the Defendant’s motion for summary
judgment as to his medical negligence claim, and found that
under Federal Rule of Civil Procedure 56(d), Plaintiff had
properly indicated that he needed additional discovery to

Plaintiff’s First Amended Complaint also contains
additional allegations of medical negligence – e.g., that
instruments used for his dental procedure were not sterile, that
he was not provided pain medication or a dental appliance to
alleviate pain, and that intravenous antibiotics were improperly
administered and had a deleterious effect on his stomach lining.
(FAC at ¶¶ 19, 32, 36-38). From his opposition brief, however,
Plaintiff appears to have abandoned these allegations and is
pursuing only those allegations specifically discussed below.
2

3

properly oppose summary judgment.

The Court also noted that

Plaintiff “will also be required to timely submit an affidavit
of merit.”

(Docket No. 52. At 12 n. 1) (citing Olivares v.

United States, 447 F. App’x 347, 353 (3d Cir. 2011)(requiring
affidavit of merit for FTCA medical malpractice claim)).
The parties later agreed to provide Plaintiff with more
time to obtain an affidavit of merit.

(See Docket No. 63).

It

is undisputed that Plaintiff has not provided the affidavit of
merit, and this failure forms the basis for Defendant’s instant
motion for summary judgment.

III. Applicable Standard
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R.

Civ. P. 56(a). A fact is “material” if it will “affect the
outcome of the suit under the governing law . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

When deciding the

existence of a genuine dispute of material fact, a court’s role
is not to weigh the evidence; all reasonable “inferences,
doubts, and issues of credibility should be resolved against the
moving party.”

Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307
4

n.2 (3d Cir. 1983). However, a mere “scintilla of evidence,”
without more, will not give rise to a genuine dispute for trial.
Anderson, 477 U.S. at 252. Further, a court does not have to
adopt the version of facts asserted by the nonmoving party if
those facts are “utterly discredited by the record [so] that no
reasonable jury” could believe them.

Scott v. Harris, 550 U.S.

373, 380 (2007). In the face of such evidence, summary judgment
is still appropriate “where the record . . . could not lead a
rational trier of fact to find for the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).

IV. Analysis
As stated above, it is undisputed that Plaintiff has failed
to provide an affidavit of merit with respect to his medical
negligence claim.

Typically, as pointed out by Defendant, this

failure could result in a dismissal of Plaintiff’s medical
malpractice claims.

See Olivares, 447 F. App’x at 353 (“In New

Jersey, allegations of medical malpractice require, with few
exceptions, the submission of an affidavit of merit as a
precondition to filing suit. Failure to so file "shall be deemed
a failure to state a cause of action.") (citing N.J. Stat. Ann.
§ 2A:53A-27 through 29).

5

There are, however, exceptions to this general rule, as
noted by the Olivares court.

Here, Plaintiff asserts that an

affidavit of merit is not necessary because Plaintiff’s
allegations that he was not examined for six days following the
procedure and that the prescribed post-operative antibiotics
were not properly administered fall within the “common
knowledge” exception to the affidavit of merit rule. 3
Per the common knowledge exception, “[w]here . . . common
knowledge makes apparent a claim’s merit, an expert’s affidavit
is unnecessary.”

Natale v. Camden County Correctional Facility,

318 F.3d 575, 580 (3d Cir. 2003).

“The common knowledge

exception only applies where jurors common knowledge suffices to
enable [the jurors], using ordinary understanding and
experience, to determine a defendant's negligence without the
benefit of the specialized knowledge of experts.” Fontanez v.
United States of America et al., No. 11-2573, 2014 U.S. Dist.
LEXIS 75831, at *10 (D.N.J. May 30, 2014) (internal quotations
and citations omitted).

Plaintiff contends that it is widely

known that prompt follow-up care is necessary where there are

3

Based on Plaintiff’s representations in his brief, this
Court finds that he has abandoned his other allegations, which
would require the filing of an affidavit of merit, as the common
knowledge exception is not asserted by Plaintiff to apply to
said allegations of medical negligence.
6

complaints of post-operative pain and that failure to administer
antibiotics constitutes an error.
In reply, the Defendant argues that the common knowledge
exception should only be applied in “exceptionally obvious cases
of medical malpractice.”

(Doc. No. 71 at 2).

Defendant further

argues that Plaintiff’s allegations “- that Dr. Cabanas failed
to examine plaintiff for six days following a dental procedure
and that he failed to ensure that plaintiff was administered the
prescribed antibiotics – are not analogous to the situations in
which the courts have applied the common knowledge exception.”
Id. at 2.
This Court disagrees.

In this case, a reasonable jury

could conclude that Defendant was negligent absent expert
testimony.

Other courts have held that the common knowledge

exception applies based upon similar allegations.
See e.g., Jackson v. Fauver, 334 F. Supp. 2d 697, 743 (D.N.J.
2004)(applying the common knowledge exception where plaintiffs
complained, inter alia, that they were not provided with
prescribed medications in a timely fashion); Grimes v.
Correctional Medical Servs., No. 08-567, 2010 U.S. Dist. LEXIS
10536, at *11-13 (D.N.J. Feb. 8, 2010)(finding that failure to
provide plaintiffs with medications prescribed by their doctors
“falls into the common knowledge exception to the affidavit of
merit requirement, and summary judgment cannot be granted. . .
7

.”); Hernandez v. Cullison, No. 05-3038, 2006 U.S. Dist. LEXIS
45505, at *50 n. 9 (D.N.J. June 26, 2006)(finding allegations
that recommended surgical treatment was improperly delayed
required no affidavit of merit and allowing plaintiff’s medical
malpractice claim to proceed).
Because the threshold merit of Plaintiffs allegations, as
now specifically limited by Plaintiff to the failure to properly
administer a prescription and failure to provide a prompt postoperative follow-up, are readily apparent from a reading of the
Plaintiff’s First Amended Complaint, the common knowledge
exception applies and Plaintiff’s medical negligence claim may
proceed. 4

V. Conclusion
For the reasons set forth above, this Court finds that
Defendant’s motion for summary judgment shall be denied.

An

appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated:

September 10, 2014

4

Like the Court in Hernandez, 2006 U.S. Dist. LEXIS 45505,
at * 50 n. 9, this Court notes that “while the common knowledge
doctrine relieves Plaintiff of his obligation to comply with the
Affidavit of Merit Statute, it does not relieve him of the
burden of proving his case at trial.”
8