MENDEZ v. SHAH et al

Filing 187

OPINION FILED. Signed by Judge Noel L. Hillman on 3/3/16. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
:
:
:

MARIA MENDEZ,
Plaintiff,

Civil Action No. 13-1585
(NLH/JS)

:
:
:
Defendants.
:
:
______________________________ :
RAHUL V. SHAH, M.D., et al.,

OPINION

Appearances:
MICHAEL T. ROONEY
ROONEY & ROONEY
TWO PENN CENTER PLAZA
1500 JFK BLVD., SUITE 200
PHILADELPHIA, PA 19102
Attorney for Plaintiff
JAY J. BLUMBERG
BLUMBERG & WOLK, LLC
158 DELAWARE STREET
PO BOX 68
WOODBURY, NJ 08096
Attorney for Defendants Rahul V. Shah, M.D. and Premier
Orthopedic Associates Surgical Center LLC
HILLMAN, District Judge:
Before the Court is Defendants Rahul V. Shah M.D. and
Premier Orthopedic Associates Surgical Center LLC’s motion for
summary judgment as to three claims in Plaintiff Maria Mendez’s
third amended complaint.

For the reasons stated below, the
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motion will be granted.
I.

BACKGROUND
Plaintiff Maria Mendez suffered from chronic back pain and

sought treatment from Defendant Rahul V. Shah, M.D.

Dr. Shah

diagnosed Plaintiff with spinal stenosis and spondylolistheses
and recommended spinal surgery.1

Dr. Shah first performed

surgery on Plaintiff’s back on March 21, 2011 and implanted
Medtronic brand devices in her spine which Plaintiff alleges
failed and caused her injury.

These devices include the “Infuse

Bone Graft/LT–Cage Lumbar Fusion” device as well as “the
Capstone Spinal System, Infuse Bone Graft, MasterGraft Matrix,
CD Horizon Legacy screws, [and] Cancellous chips[.]”
Compl. ¶ 20 [Doc. No. 131].)

(Third Am.

Plaintiff states that the Capstone

cages and Infuse bone graft were inserted into the spaces
between her fourth and fifth lumbar vertebrae (L4/L5) and
between the fifth lumbar vertebra and the sacrum (L5/S1).
(Pl.’s Counterstatement of Facts ¶ 12 [Doc. No. 182-1].)
Due to increasing pain over several weeks following her
March 21, 2011 operation, films were taken of Plaintiff’s back
which showed the cages had migrated and the L5/S1 hardware
failed.

1

Dr. Shah performed a revision surgery on May 18, 2011

The background of this case is set out in further detail in
Mendez v. Shah, 28 F. Supp. 3d 282 (D.N.J. 2014).
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to remove and replace the L5/S1 spacers.
Plaintiff alleges she sustained “drop foot” and other
complications as a result these surgeries.

She further alleges

that she is disabled and suffers excruciating pain every day.
It is not expected that there is any further treatment that
could help her.
Originally, Plaintiff brought claims of negligence, medical
malpractice, battery, lack of informed consent, breach of the
implied warranty of fitness for a particular purpose, breach of
express warranty, breach of contract, fraudulent concealment,
fraud and misrepresentation, as well as claims pursuant to the
New Jersey Product Liability Act (“PLA”).

The Court previously

dismissed Plaintiff’s claims against the medical device
manufacturer, Medtronic, primarily based on federal preemption.
(See March 20, 2015 Op. and Order [Doc. Nos. 170, 171].)
Plaintiff voluntarily dismissed Dr. Shah’s physician’s assistant
and the hospital where the surgery was performed.

As such, Dr.

Shah and Premier Orthopedics are the only remaining Defendants.
Defendants do not seek summary judgment on Plaintiff’s
negligence claims and Plaintiff has withdrawn her breach of
warranty and breach of contract claims.

Accordingly, the

parties dispute only whether Defendants should be granted
summary judgment on Counts II (lack of informed
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consent/battery), III (New Jersey Product Liability Act), and
VII (fraudulent concealment).

The parties also dispute whether

Plaintiff may claim punitive damages.
II.

JURISDICTION
This Court exercises jurisdiction pursuant to 28 U.S.C. §

1332(a), diversity of citizenship.

Plaintiff is a citizen of

the Commonwealth of Pennsylvania and Defendants are citizens of
the State of New Jersey.

The amount in controversy exceeds the

jurisdictional limit exclusive of interest and costs.
A Court exercising diversity jurisdiction must apply the
law of the forum state within which it sits, and therefore, New
Jersey law will apply to Plaintiff’s state law claims.

See

Chemical Leaman Tank Lines, Inc. V. Aetna Casualty and Surety
Co., 89 F.3d 976, 983 (3d Cir. 1996) (stating that “[a]s a
federal court sitting in diversity, we must apply the
substantive law of New Jersey.”) (citing Borse v. Piece Goods
Shop, Inc., 963 F.2d 611, 613 (3d Cir. 1992)).
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is
satisfied that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
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judgment as a matter of law.”

Celotex Corp. v. Catrett, 477

U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004) (quoting Anderson, 477 U.S. at 255).

Initially, the

moving party has the burden of demonstrating the absence of a
genuine issue of material fact.
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett, 477

Once the moving party has met this

burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue
for trial.

Id.

Thus, to withstand a properly supported motion

for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.

Anderson, 477 U.S. at 256-57.
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A party

opposing summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.

Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
IV. DISCUSSION
A. Count II: Lack of Informed Consent and Battery as to Dr.
Shah
Count II of Plaintiff’s third amended complaint contains two
claims: lack of informed consent and battery.

The Court will

address these claims separately.
1.

Lack of Informed Consent

Informed consent is an action in negligence based upon a
doctor’s duty to provide appropriate information for the patient
to make an informed decision regarding his or her medical
treatment.

Whitley-Woodford v. Jones, 253 N.J. Super. 7, 10-11,

600 A.2d 946, 947 (App. Div. 1992) (citing Largey v. Rothman,
110 N.J. 204, 540 A.2d 504 (1988)).

“For consent to be

informed, the patient must know not only of alternatives that
the physician recommends, but of medically reasonable
alternatives that the physician does not recommend.

Otherwise,

the physician, by not discussing these alternatives, effectively
makes the choice for the patient.”

Matthies v. Mastromonaco,

160 N.J. 26, 38, 733 A.2d 456, 462 (1999) (citation omitted).
“The information a doctor must disclose depends on what a
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reasonably prudent patient would deem significant in determining
whether to proceed with the proposed procedure.”

Howard v.

Univ. of Med. & Dentistry of New Jersey, 172 N.J. 537, 548, 800
A.2d 73, 79 (2002).
While no expert testimony is required to prove that an
undisclosed risk would have been material to the patient’s
consent, a plaintiff must first submit expert testimony showing
that the “risk was one of which the physician should have been
aware, and that it was recognized within the medical community.”
Febus v. Barot, 260 N.J. Super. 322, 327, 616 A.2d 933, 935-36
(App. Div. 1992); see also Calabrese v. Trenton State Coll., 162
N.J. Super. 145, 157, 392 A.2d 600, 606 (App. Div. 1978) aff'd,
82 N.J. 321, 413 A.2d 315 (1980) (“[where] a doctor has been
shown to have made disclosure of some of the risks associated
with the proposed treatment, the alleged inadequacy of his
disclosure must be established by expert medical testimony
because no lay jury can be expected to reach a conclusion on
such a technical matter unaided by such testimony.”).
While Plaintiff does not allege that Dr. Shah failed to
inform her of several serious medical risks of her spinal
surgery, she contends that Dr. Shah should have informed her of
the increased risk of harm of using Medtronic devices.

She

further alleges that a reasonable patient would not have
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consented to the procedure had she been fully informed about the
off-label and experimental use of the products.
¶¶ 66, 68, 72.)

(3rd Am. Compl.

Plaintiff further alleges that Dr. Shah should

have informed Plaintiff of his financial arrangement with
Medtronic.

(Id. ¶ 67.)

Plaintiff’s informed consent claim fails as a matter of law
because she must establish through expert testimony that Dr.
Shah’s disclosures to her were inadequate.

Plaintiff’s sole

expert report of Dr. Kim Garges is devoid of any testimony
concerning any risk Dr. Shah should have disclosed.

Thus,

summary judgment must be granted Plaintiff’s claim of lack of
informed consent.

Febus, 260 N.J. Super. at 328 (affirming

district court’s order of summary judgment on informed consent
claim where plaintiff failed to produce an expert report which
stated that the risk not disclosed was recognized by the medical
community).
2.

Battery

In contrast to a claim of lack of informed consent, battery
is an intentional tort whereby a doctor does not obtain the
consent of his patient to perform a particular operative
procedure.

Whitley-Woodford, 253 N.J. Super. at 11.

Unlike

informed consent, expert testimony is not required to prove
deviation from a standard of care.
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Id.

Battery occurs, for

example, where a doctor implants a cadaver bone into a patient
contrary to the patient’s specific instructions (Murphy v.
Implicito, No. A-3172-03T3, 2005 WL 2447776 (N.J. Super. Ct.
App. Div. Sept. 22, 2005)) or when a patient consents to surgery
by one surgeon but is operated on by another (Perna v. Pirozzi,
92 N.J. 446, 457 A.2d 431 (1983)).
Here, there is nothing in the record to suggest that Dr.
Shah performed a procedure substantially different from the
spinal surgeries Plaintiff authorized in the surgical consent
forms she signed.

Accordingly, summary judgment will be granted

on Plaintiff’s battery claim, as well.
B. Count III: Liability of Health Care Providers For Medical
Devices Under the New Jersey Product Liability Act, N.J.
Stat. § 2A:58C-11, as to Dr. Shah and Premier Orthopedic
Under the New Jersey Product Liability Act, a health care
provider cannot be held liable for harm allegedly caused by a
medical device unless: “(1) the provider has exercised some
significant control over the design, manufacture, packaging or
labeling of the medical device relative to the alleged defect in
the device which caused the injury, death or damage; or (2) the
provider knew or should have known of the defect in the medical
device which caused the injury, death or damage, or the
plaintiff can affirmatively demonstrate that the provider was in
possession of facts from which a reasonable person would
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conclude that the provider had or should have had knowledge of
the alleged defect in the medical device which caused the
injury, death or damage; or (3) the provider created the defect
in the medical device which caused the injury, death or damage.”
N.J. Stat. § 2A:58C-11.
This statute codified existing New Jersey common law
precedent which opposed the imposition of strict liability on
health care providers unless they had control over the design,
manufacturing, packaging, or labeling of the product, created
the defect, or knew or should have known of the product defect.
Seavey v. Globus Med., Inc., No. 11-2240, 2014 WL 1876957, at
*18 (D.N.J. Mar. 11, 2014) (citing Johnson v. Mountainside
Hosp., 239 N.J. Super. 312, 322–23, 571 A.2d 318 (App. Div.
1990); Feldman v. Lederle Labs., 97 N.J. 429, 442, 479 A.2d 374
(1984); Brody v. Overlook Hosp., 66 N.J. 448, 450, 332 A.2d 596
(1975)).
Here, Plaintiff does not allege that Defendants had any
control over the design, manufacture, packaging or labeling of
the Medtronic devices.

Nor does Plaintiff allege that

Defendants caused any defect in the devices.

Rather, Plaintiff

alleges that Defendants should have known that the way in which
Dr. Shah used the Medtronic devices would injure Plaintiff.
Defendants argue that Plaintiff has offered no expert testimony
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regarding what Dr. Shah should have known regarding the use of
Medtronic devices and dispute that they should be held strictly
liable under the New Jersey PLA.
The plaintiff in Seavey v. Globus Med., Inc., No. 11-2240,
2014 WL 1876957 (D.N.J. Mar. 11, 2014), similarly complained
that a medical device was used in an off-label fashion in his
spinal surgery and alleged a products liability claim against
his doctor.

As the court reasoned in Seavy, “Plaintiff's

products liability claim against Dr. Testaiuti constitutes an
attempt to shoehorn a medical malpractice or informed consent
claim into a products liability cause of action by attempting to
characterize off-label use and the risks associated with such
use as a ‘defect.’”

Id. at *19.

The court continued:

Plaintiff has cited no law, and the Court is aware of
none, suggesting that he can use a products liability
claim as a second attempt at a negligence claim
against a physician, without having to demonstrate the
standard of care. To allow such a cause of action to
proceed would be to dispense with the expert testimony
requirement for both medical negligence and informed
consent claims by allowing an analogous claim to
proceed in the guise of a product liability cause of
action. Further, the PLA is a strict liability
statute. Green v. Gen. Motors Corp., 310 N.J. Super.
507, 517, 709 A.2d 205 (App. Div. 1998). To allow a
product liability claim against a surgeon to proceed
past summary judgment based on off-label usage would
allow litigants to hold physicians strictly liable for
harm resulting from any off-label use of a device,
which would be in contravention of established New
Jersey law. Blazoski v. Cook, 346 N.J. Super. 256,
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270-71, 787 A.2d 910 (App. Div. 2002). Summary
judgment will thus be granted in favor of the medical
provider defendants on this claim.
Id. at *19.

The Court agrees with and adopts the analysis of

the Seavy court.

Plaintiff submitted no expert testimony (or

any other evidence) establishing that there was defect in the
Medtronic products that Defendants knew of or should have known
of which caused Plaintiff’s injury.

Additionally, the Court

will not impose strict liability on Defendants for what is at
its core a medical malpractice claim and not a product liability
claim.

Accordingly, Defendants will be granted summary judgment

on Count III.
C. Count VII: Fraudulent Concealment as to Dr. Shah and
Premier Orthopedic
The elements that must be established by a plaintiff in a
fraudulent concealment action are:
(1) That defendant in the fraudulent concealment
action had a legal obligation to disclose evidence in
connection with an existing or pending litigation;
(2) That the evidence was material to the litigation;
(3) That plaintiff could not reasonably have obtained
access to the evidence from another source;
(4) That defendant intentionally withheld, altered or
destroyed the evidence with purpose to disrupt the
litigation;
(5) That plaintiff was damaged in the underlying
action by having to rely on an evidential record that
did not contain the evidence defendant concealed.
Rosenblit v. Zimmerman, 166 N.J. 391, 406-07, 766 A.2d 749, 75758 (2001).

In her third amended complaint, Plaintiff alleges
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that she has not received requested copies of her medical
records and films which are in the possession of Defendants.
(Third Am. Compl. ¶¶ 127, 131.)

Plaintiff also alleges that

records and films from the March 2011 surgery were previously
provided by the former hospital defendants on or about June 26,
2015.

(Id. ¶ 134).

Plaintiff argues in her brief that she has

received discovery in “bits and pieces” and that during Dr.
Shah’s May 16, 2015 deposition she discovered that pictures were
taken during the surgeries which were not produced.
[Doc. No. 182-1].)

(Opp. at 24

Thus, plaintiff alleges the pictures were

“intentionally withheld” and that some X-rays “may not have been
produced.”

(Id. at 25.)

Defendants argue that the medical

records and films were in the custody and possession of the nowdismissed hospital defendants and that nothing has been withheld
or concealed.
Plaintiff has submitted no evidence that she could not have
reasonably obtained access to the evidence from another source
(i.e. the hospital defendants) or that Defendants intentionally
withheld, altered or destroyed the evidence with purpose to
disrupt the litigation.2

2

See Ellison v. Winteringham Associates,

Additionally, the Court notes that L. Civ. R. 37.1 requires the
parties to meet and confer to resolve discovery disputes before
submitting such disputes to the Court.
13

L.P., No. A-1077-13T2, 2014 WL 8132002, at *7 (N.J. Super. Ct.
App. Div. Mar. 17, 2015) (affirming trial court’s order for
summary judgment on fraudulent concealment claim where there was
no showing that defendants intentionally demolished evidence in
order to thwart potential litigation); Lawshe v. Squeri, No. 033506, 2010 WL 276232, at *11 (D.N.J. Jan. 19, 2010) (granting
summary judgment for defendants on fraudulent concealment claims
where plaintiffs failed to show “(i) that Defendants had a legal
obligation to disclose any evidence that was not produced, (ii)
why Plaintiffs could not have obtained the requested evidence
from another source, and (iii) that Defendants intentionally
withheld, altered or destroyed any evidence to disrupt this
litigation.”).

Accordingly, summary judgment will be granted

because Plaintiff has submitted no evidence that the third and
fourth elements of a fraudulent concealment claim have been
satisfied.
D. Punitive Damages
As the Court has determined that summary judgment is
appropriate as to Counts II, III, and VII, the only remaining
claim is for negligence.

Pursuant to N.J. Stat. Ann. § 2A:15-

5.12 (“Punitive Damages”), “[p]unitive damages may be awarded to
the plaintiff only if the plaintiff proves, by clear and
convincing evidence, that the harm suffered was the result of
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the defendant’s acts or omissions, and such acts or omissions
were actuated by actual malice or accompanied by a wanton and
willful disregard of persons who foreseeably might be harmed by
those acts or omissions.

This burden of proof may not be

satisfied by proof of any degree of negligence including gross
negligence.”

See also Edwards v. Our Lady of Lourdes Hosp., 217

N.J. Super. 448, 460, 526 A.2d 242, 248 (App. Div. 1987)
(“Neither mere negligence nor gross negligence can support an
award of punitive damages.”); Smith v. Whitaker, 160 N.J. 221,
242 (1999) (“Mere negligence, no matter how gross, will not
suffice as a basis for punitive damages.”).

Accordingly,

because Plaintiff’s only remaining claim is a claim for
negligence, Plaintiff may not demand punitive damages.
V.

CONCLUSION
Summary judgment will be granted on Counts II, III, and VII for

Defendants.

Plaintiff may not seek punitive damages.

An appropriate

Order will be entered.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
Dated:

March 3, 2016

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