TROILO et al v. MICHNER et al

Filing 63

OPINION. Signed by Judge Renee Marie Bumb on 11/12/2015. (tf, )

[NOT FOR PUBLICATION]

[DOCKET NOS. 51 & 53]

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
DOLORES TROILO and KOREY
:
SLOAN, As Administrators
:
of the Estate of DAVEN
:
SLOAN and DOLORES TROILO
:
in her own right and KOREY :
SLOAN in his own right,
:
:
Plaintiffs,
:
:
v.
:
:
RICHARD MICHNER, D.O.,
:
JOSEPH MILIO, D.O., MARY
:
HERRON, N.P., CATHY GERIA, :
A.P.N., COMPLETE CARE
:
HEALTH NETWORK d/b/a/
:
COMPLETE CARE WOMEN’S
:
CENTER, MICHNER & MILIA,
:
P.A., CAPE REGIONAL
:
MEDICAL CENTER,
:
:
Defendants.
:
___________________________:

HONORABLE RENÉE MARIE BUMB
CIVIL ACTION NO. 13-2012
OPINION

APPEARANCES:
LOCKS LAW FIRM, LLC
By: Jennifer L. Emmons, Esq.
801 N. Kings Highway
Cherry Hill, New Jersey 08034
Counsel for Plaintiffs
DRAKE LAW FIRM, P.C.
By: Steven Drake, Esq.
P.O. Box 345
29 North Shore Road
Absecon, New Jersey 08201
Counsel for Defendant Dr. Richard Michner

1 

CRAMMER, BISHOP & O’BRIEN
By: David J. Bishop, Esq.
508 New Jersey Avenue, Suite B-3
Absecon, New Jersey 08201
Counsel for Defendant Cape Regional Medical Center
OFFICE OF THE UNITED STATES ATTORNEY
By: David V. Bober, Esq.
402 East State Street, Room 430
Trenton, New Jersey 08608
Counsel for the United States
BUMB, United States District Judge:
This medical malpractice suit arises out of the tragic
stillbirth of Plaintiffs’ baby.

“Plaintiffs [Delores Troilo and

Korey Sloan] allege that the Defendants’ violation of the
applicable standard of care resulted in the failure to properly
diagnose [Delores] with intrauterine growth restriction and to
deliver Plaintiffs’ baby in a timely manner to avoid
stillbirth.” (Opposition brief to the United States’ Motion for
Summary Judgment, Docket #60, p. 1).
Troilo received most of her prenatal care at a clinic owned
by Complete Care Health Network.
funded.

Complete Care is federally-

Earlier in this case, the United States was substituted

for Defendant Complete Care and its two nurses, Defendants Mary
Herron and Cathy Geria.

It is undisputed that the provisions of

2 

the Federal Tort Claims Act govern the claims asserted against
these Defendants.1
Before the Court are two Motions filed by the United
States: (1) a Motion to Amend its Answer to include defenses
pursuant to the New Jersey Charitable Immunity Act (“NJCIA”),
specifically N.J.S.A. 2A:53A-7 and -8; and (2) a Motion for
Summary Judgment on those same defenses.2
Plaintiffs oppose the Motion to Amend, and alternatively
request leave to take discovery concerning Complete Care’s
charity status.

Similarly, in opposition to the United States’

Motion for Summary Judgment, Plaintiffs reassert their request
for discovery.
For the reasons stated herein, the Court will grant the
United States’ Motion to Amend its Answer, and will permit
limited discovery concerning Complete Care’s status as a

1

Troilo received other prenatal care, and delivered her baby,
at Defendant Cape Regional Medical Center. Cape Regional’s
pending summary judgment motion will be addressed in a separate
opinion.
Defendants Michner and Milio are doctors employed as
independent contractors at Cape Regional. Dr. Milio was
dismissed from this suit by stipulation dated August 6, 2015.
Dr. Michner remains a Defendant to this suit. He has not
filed a motion for summary judgment. The dispositive motion
deadline has passed.
2

The United States also moves for summary judgment asserting
that Plaintiffs cannot establish that the United States
Defendants’ alleged negligence proximately caused Plaintiffs’
injuries.

3 

charity.

The Motion for Summary Judgment will be

administratively terminated pending completion of discovery.

I.

Background and Procedural History

As stated above, this is a medical malpractice negligence
action.

The complaint was originally filed in January, 2012, in

Cape May County Superior Court, against all of the abovecaptioned non-diverse Defendants.

At the time the suit was

filed, Plaintiffs’ attorney was not aware that Complete Care was
a federally-funded facility.
In March, 2013, the United States entered an appearance on
behalf of Complete Care, and Nurses Herron and Geria, and
removed the suit to this Court pursuant to the Federal Tort
Claims Act’s removal provision, 28 U.S.C. § 2679(d).3
The case then proceeded.

Magistrate Judge Donio entered

the Scheduling Order at issue, setting May 30, 2014 as the
deadline for Amended Pleadings.

3

During the approximately 15 months between the complaint’s
filing in state court and the United States removing the case,
Plaintiffs became aware of Complete Care’s federal status and
pursued their administrative remedies against the United States.
The U.S. Attorney General denied Plaintiffs’ claim on January 8,
2013.
4 

Not long thereafter, Senior United States District Judge
Irenas denied the United States’ Motion to Dismiss.4
On May 6, 2014, the United States filed its Answer.

While

the pleading included various generic statements of defenses-including an assertion that “defendant . . . has, or may have,
additional affirmative defenses that are not known to defendant
at this time” (eighth defense)-- the Answer did not include any
defense specifically based on the NJCIA.
Approximately 10 months after the amended pleading
deadline-- and also, notably after the January 30, 2015 deadline
for fact discovery (Docket #33)5-- the New Jersey Supreme Court
decided Kuchera v. Jersey Shore Family Health Center, 221 N.J.
239 (2015).

In that case the issues before the Court are the

same issues raised here by the United States: “whether [under
the NJCIA] the health care facility is entitled to charitable
immunity . . . , or the limited liability afforded to nonprofit
entities organized exclusively for hospital purposes.”

Kuchera,

4

The United States argued that the Court lacked subject matter
jurisdiction because the Plaintiffs had not exhausted their
administrative remedies. At oral argument on the Motion, Senior
District Judge Irenas held that Plaintiffs had exhausted their
administrative remedies, and an order reflecting his ruling was
entered the same day. (See Docket Entry 19)
Judge Irenas passed away in October, 2015. The case was
reassigned to the undersigned.
5

Counsel for the United States asserts in his brief that
“pretrial fact discovery did not close until August 2015.”
(Moving Brief, Docket #51-1, p. 5) Only expert discovery was
extended until August 2015. (See Docket #s 34, 40, 47)
5 

221 N.J. at 241.

The United States interprets this decision as

expanding the scope of the damages cap provision of the NJCIA.6
According to the United States, “[a]s soon as the Kuchera
decision issued, the Department of Justice revisited its prior
analysis of the applicability of the NJCIA to federally
qualified health centers in New Jersey,” (Moving Brief, Docket
#51, p. 14).

Approximately five weeks later, the United States

stated in a brief filed with the Court that, “the Government
intends to argue in a future dispositive motion that it is
shielded from liability by the New Jersey Charitable Immunity
Statute.”

(Docket #42, p. 19 n.4)

Thereafter, the United States reaffirmed its intentions
with regard to its NJCIA defenses in correspondence with
Plaintiffs’ counsel (see Bober Decl. ¶¶ 2,4,5 and Ex. A & B);
and then filed the instant Motion to Amend on September 14,
2015.
The United States timely filed the instant summary judgment
motion four days later.

6

Plaintiffs contend Kuchera narrowed the scope of the absolute
immunity provision of the NJCIA; a proposition the United States
does not directly dispute. Indeed, it appears that both
parties’ positions could be correct, insofar as the New Jersey
Supreme Court reversed the Appellate Division’s holding that the
defendant-appellee hospital was entitled to absolute immunity,
holding instead that the hospital was only entitled to limited
liability. Kuchera, 221 N.J. at 242.
6 

II.

Legal Standard
A.

Motion to Amend Answer

(1)

Fed. R. Civ. P. 16

A party seeking to amend a pleading after the deadline set
by the applicable scheduling order must demonstrate “good cause”
for modifying the order.

Fed. R. Civ. P. 16(b)(4).

Good cause

may be based upon a “showing that the delay ‘stemmed from any
mistake, excusable neglect, or any other factor which might
understandably account for failure of counsel to undertake to
comply with the Scheduling Order.’”

Merrell v. Weeks Marine,

Inc., 2013 U.S. Dist. LEXIS 107170 at *10 (D.N.J. July 31, 2013)
(quoting Fermin v. Toyota Material Handling, USA, Inc., No. 103722, 2012 U.S. Dist. LEXIS 56422 (D.N.J. April 23, 2012)).

(2)

Fed. R. Civ. P. 15

At this stage of the proceedings, “a party may amend its
pleading only . . . with the court’s leave.

The Court should

freely give leave when justice so requires.”

Fed. R. Civ. P.

15(a)(2).

Leave to amend may be denied upon a finding of: (1)

undue delay; (2) undue prejudice to the non-moving party; (3)
bad faith or dilatory motive; or (4) futility of amendment.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

B.

Motion for Summary Judgment
7 

Federal Rule of Civil Procedure 56(d) provides, “[i]f a
nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or
to take discovery; or (3) issue any other appropriate order.”

III. Analysis
A. Motion to Amend Answer
(1)

Rule 16 analysis

The United States’ reason for seeking to belatedly amend
its Answer is stated clearly and succinctly: “the basis for the
amendment is new case law.”

(Moving Brief, Docket #51, p. 15)

Plaintiffs counter, however, that while Kuchera was
indisputably decided after the relevant deadlines, Kuchera did
not change the law at all with respect to the key question:
whether defenses under the NJCIA were available to the United
States when it filed its Answer.7

The answer to this question

can only be “yes,” the defenses were available; the United
States itself cites a 2011 Third Circuit case for the

7

Cf. Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (“a judgment may be altered or amended
if the party seeking reconsideration shows . . . an intervening
change in the controlling law”)(emphasis added).

8 

proposition that “[the] United States ‘is entitled to the
protection of the immunity the NJCIA provides.’” (Docket #42, p.
19, n.4)(citing Lomando v. United States, 667 F.3d 363, 369-70
(3d Cir. 2011))(see also Docket #51, p. 10-11).
Thus, the Court rejects the United States’ “new case law”
argument.
law.

New case law is not tantamount to a change in the

Kuchera did not make available a new defense that was

previously unavailable.
Nonetheless, nothing before the Court suggests that the
United States’ failure to plead its NJCIA defenses was the
result of anything other than a mistake or excusable neglect.
Mistake and excusable neglect do establish good cause to depart
from the deadline set in the Scheduling Order. Merrell, 2013
U.S. Dist. LEXIS at *10.

Therefore, the Court holds that the

United States has satisfied the requirements of Rule 16(b)(4).

(2)

Rule 15 Analysis

Additionally, the Court holds that justice requires
granting the United States’ leave to amend.

Plaintiffs do not

assert any reason why leave to amend would not be appropriate
under Rule 15 standards.

Indeed, Plaintiffs will not be

prejudiced by the amendment because the Court will grant them
leave to conduct discovery related to the newly-added NJCIA
defenses.
9 

(3)

The United States’ Subject Matter Jurisdiction
Argument

Although the United States’ moving brief cites and applies
the Rule 15 and 16 standards to argue that it should be granted
leave to amend, it also argues that it should be granted leave
to amend because one of the two defenses it seeks to add-- the
absolute immunity defense, N.J.S.A. 2A:53A-7-- is a subject
matter jurisdiction defense, which the United States contends,
may be raised at any time.
The United States’ reasoning is this: the Federal Tort
Claims Act functions as a limited waiver of the United States’
sovereign immunity to suit.

To the extent that the FTCA carves

out from that waiver all immunities to suit that would be
available to it under state law, see 28 U.S.C. § 2674, it has
preserved its sovereign immunity and therefore this Court lacks
subject matter jurisdiction. (See United States’ Summary
Judgment Moving Brief, Docket #53-1, p. 36-39)
Thus, in this case, if the Court were to hold the United
States absolutely immune from suit under the NJCIA, the Court
simultaneously would be holding that the United States has not
waived its sovereign immunity, and therefore the Court lacks
subject matter jurisdiction.

10 

The Court need not decide the issue, however, because it
only pertains to the absolute immunity defense provided by
N.J.S.A. 2A:53A-7, not the limited liability / damages cap
defense provided by N.J.S.A. 2A:53A-8.

Simply put, even if the

United States prevailed on its subject matter jurisdiction
argument, it would only get half of the relief it seeks in its
Motion to Amend.8
The Court has already held, with regard to both defenses,
that the United States has satisfied the requirements of Rules
16 and 15.

Thus, the Court need not rule on the United States’

alternate argument that leave to amend should be granted because
its NJCIA absolute immunity defense is, in the context of this
FTCA action, a subject matter jurisdiction defense.

B. Motion for Summary Judgment
As stated previously, the United States moves for summary
Judgment, asserting three arguments: (1) absolute immunity
pursuant to N.J.S.A. 2A:53A-7; (2) limited liability pursuant to
N.J.S.A. 2A:53A-8; and (3) Plaintiffs cannot establish proximate
causation.

8

There also appears to be some conceptual tension between the
United States’ position that Kuchera broadened the applicability
of the NJCIA limited liability provision, see supra at p. 6 and
n.6, and its position that it is entitled to absolute immunity
under the NJCIA. However, the current disposition of the
motions does not require the Court to reconcile the tension.
11 

Plaintiffs oppose the motion, asserting that they need
discovery concerning Complete Care’s status under the NJCIA.
Alternatively, they argue that only “partial immunity” (i.e.,
limited liability) applies, and that they have put forth
evidence establishing proximate causation.
While Plaintiffs have not filed the affidavit or
declaration required by Fed. R. Civ. P. 56(d), Plaintiffs’
counsel has stated, in her opposition brief, the following:
Plaintiffs
discovery:

request,

at

a

minimum,

the

following

1.
Copies of Complete Care’s Form 990 filings
for the years 2007-2011;
2.
Any
and
all
documents
evidencing
all
fundraising activities conducted by Complete Care
for years 2007-2011;
3.
The identity of all persons who actively
participated
in
any
fundraising
activities
conducted on behalf of Complete Care, or other
similar activities involving the solicitation of
private funds;
4.
Any
and
all
documents
evidencing
the
expenditure of private funds that were received
through fundraising or solicitation activities of
Complete Care for the years 2007-2011, and the
identity of all persons with knowledge of the same;
5.
Copies of every application for funding,
grants, or other contributions and donations
submitted by Complete Care to privately owned
entities, organizations, or foundations for the
years 2007-2011 and the identity of all persons who
handled said applications;
6.
Any and all documents evidencing all income
or other funding received by Complete Care from any
12 

government entity, including but not limited
Medicare and Medicaid, for the years 2007-2011;

to

7.
Any and all documents evidencing all income
or other funding received by Complete Care from any
non-governmental entity for the years 2007 through
2011;
8.
Copies of all contracts and/or agreements
between Complete Care and any hospital, and the
identity of any persons with knowledge of said
contracts and/or agreements.

(Summary Judgment Opposition Brief, Docket #60, p. 11)
Plaintiffs contend they require this information because,
they assert, the relevant legal inquiry is Complete Care’s
“‘aims, [] origins, and [] method of operation,’” not simply
Complete Care’s tax-exempt or non-profit status.

(Plaintiffs’

Summary Judgment Opposition Brief, Docket # 60, p. 7, quoting
Klein v. Bristol Glen, Inc., 2010 WL 3075582 (App. Div. Aug. 4,
2010)); see also Kuchera, 221 N.J. at 253 (“[w]hether a
nonprofit entity, whose certificate of incorporation and by-laws
provide that it is organized exclusively for charitable,
religious, educational, or hospital purposes, actually conducts
its affairs consistent with its stated purpose often requires a
fact-sensitive inquiry.”).
The United States, in response, states, “the Government is
willing to consent to additional discovery that is narrowly
tailored to the charitable-immunity issue for the time period in
question [December 2010 through June 2011].”
13 

It also asserts

that it has produced at least some of the information Plaintiffs
request, in the form of declarations, Articles of Incorporation,
Bylaws, audited financial statements, and annual reports for the
years 2010 and 2011.

(See United States’ Reply Brief, Docket

#61, p. 5-6, n.1).
In light of the parties’ positions, the Court will defer
considering the United States’ Motion for Summary Judgment, and
will order Plaintiffs to file the requisite Rule 56(d) affidavit
or declaration.

Plaintiffs shall specify in their Rule 56(d)

submission why they need the information sought-- particularly
for the years prior to 2010, and why the discovery already
produced by the United States is insufficient.

IV.
For the above-stated reasons, the United States’ Motion to
Amend its Answer will be granted.

The United States’ Motion for

Summary Judgment will be administratively terminated pending
limited discovery related to Complete Care’s charity status
under the NJCIA.

The Court shall determine the scope of that

discovery after Plaintiffs file their Rule 56(d) affidavit or
declaration.

An appropriate order accompanies this opinion.

14 

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: November 12, 2015

15