MENDEZ et al v. UNITED STATES OF AMERICA et al

Filing 113

OPINION. Signed by Judge Noel L. Hillman on 2/3/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARY O. MENDEZ, ET AL.,
Plaintiffs,
v.

CIVIL NO. 14-7778(NLH/KMW)
OPINION

UNITED STATES OF AMERICA,
ET AL.,
Defendants.
APPEARANCES:
LOREN T. FINESMITH
1521 LOCUST STREET
10TH FLOOR, SUITE 1001
PHILADELPHIA, PA 19102
On behalf of Plaintiffs Mary O. Mendez,
Estate of Bryan Jadiel Mendez
JARAD L. SILVERSTEIN
CAROLYN R. SLEEPER
PARKER MCCAY PA
9000 MIDATLANTIC DRIVE
SUITE 300
MOUNT LAUREN, NJ 08054
856-596-8900
On behalf of Defendants Cindy Aves, Beryl Kelley, Christine
Ward, Cooper Anesthesia Associates, Cooper University Hospital,
and Cooper University Physicians
HILLMAN, District Judge
Initially before the Court was the motion (Docket No. 96)
of Defendants1 Cindy Aves, Beryl Kelley, Christine Ward, Cooper

Co-Defendant, the United States of America, did not join in
this motion.
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Anesthesia Associates, Cooper University Hospital, and Cooper
University Physicians (“Defendants”) for partial summary
judgment as to any and all claims for punitive damages made by
Plaintiff Mary Mendez both individually in her own right and as
the Administrator of the Estate of her son, the Estate of Brian
Janiel Mendez, Deceased (“Plaintiffs”).

Defendants also moved

for partial summary judgment as to Plaintiffs’ claim for
intentional misrepresentation in Count 7.2
For the reasons described below, Defendant Kelley
(“Defendant”) is now the only Defendant moving for partial
summary judgment as to punitive damages and the punitive damages
claims in Counts 6 and 13 are now the only claims contested in
this motion.3

Defendant Kelley’s motion will be granted.

The parties use Roman numerals to denominate the various
counts in the Amended Complaint. We use Arabic numerals.
2

Defendants’ initially sought partial summary judgment on
two grounds. First, referencing Counts 5, 6, 7, 9, 10, 12, and
13, they sought to dismiss all claims for punitive damages.
Plaintiffs in their opposition contested Defendants’ motion
“only as to the punitive damages claims against Defendant Kelley
for Plaintiff Mary Mendez individual emotional distress claim
and the estate’s Survival statute claim.” (Docket No. 98, n. 1.)
Plaintiffs state “these claims,” are set forth in Counts 6 and
13. (Docket No. 98, at 2.) Plaintiffs have represented to the
Court that they will circulate a stipulation to dismiss the
other punitive damage claims in question. (Id.) The Court is
awaiting the filing of the stipulation on the Docket.
Defendants also sought in their initial papers to dismiss
Count 7 in its entirety. Plaintiffs did not respond to the
Defendants’ assertion that there is no basis in law to sustain
Plaintiffs’ claim of “intentional misrepresentation,” alleged in
Count 7. At this juncture, the Court assumes that Plaintiff
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2

FACTUAL AND PROCEDURAL BACKGROUND
This Court laid out the facts of this action in depth in
its Opinion of December 7, 2016. (Docket No. 103.)

To

summarize, this is an obstetrics medical malpractice action
involving the death of a newborn baby, Bryan Jadiel Mendez, and
emotional and physical pain to his mother, Mary O. Mendez.

In

the accompanying Order of December 7, 2016, we granted
Defendants’ motion for partial summary judgment and dismissed
any and all claims of the sister of Mary Mendez, Miletzy
Hernandez, who had claimed negligent infliction of emotional
distress. (Docket Nos. 103 (Opinion) and 104 (Order).)
Presently before the Court is Defendant Kelley’s

motion for

partial summary judgment as to any and all claims made by
Plaintiffs for punitive damages.
JURISDICTION AND CHOICE OF LAW
This Court has jurisdiction over this action pursuant to 28
U.S.C. § 1346(b) and 28 U.S.C. § 1367(a) in that one of the
Defendants is the United States.

The United States has

sovereign immunity except where it consents to be sued. U.S. v.
Bormes, --- U.S. ---, 133 S.Ct. 12, 16, 184 L.Ed.2d 317 (2012).
The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671
et seq., provides for a limited waiver of the sovereign immunity

withdraws Count 7 and a voluntary dismissal of Count 7 will be
addressed in the forthcoming stipulation.
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of the United States. 28 U.S.C. § 2679(b)(1); White–Squire v.
U.S. Postal Service, 592 F.3d 453, 456 (3d Cir. 2010).
The FTCA gives a federal district court exclusive
jurisdiction over civil actions
on claims against the United States, for money damages
. . . for injury or loss of property, or personal
injury or death caused by the negligent or wrongful
act or omission of any employee of the Government
while acting within the scope of his office or
employment, under circumstances where the United
States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b); CNA v. U.S., 535 F.3d 132, 141 (3d Cir.
2008)(citing FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996,
127 L.Ed.2d 308 (1994)).
FTCA claims are governed by the substantive tort law of
the state where the acts or omissions occurred. See FDIC v.
Meyer, 510 U.S. at 477–78; Ciccarone v. United States, 486 F.2d
253, 257 (3d Cir. 1973).

We therefore apply New Jersey

substantive law to this motion for partial summary judgment.
LEGAL STANDARD: MOTION FOR SUMMARY JUDGMENT
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 judgment as a matter of law.’” Celotex Corp. v. Catrett, 477

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U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)(quoting
Fed.R.Civ.P. 56.)

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. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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 weigh evidence or determine credibility; instead, the
nonmoving party's evidence ‘is to be believed and all
justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323 (“[A] party seeking summary judgment always bears
the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.”)(citation omitted); see also Singletary v. Pa.
Dept. of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2001)(“Although
the initial burden is on the summary judgment movant to show the

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absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by “showing” — that is, pointing
out to the district court - that there is an absence of evidence
to support the nonmoving party's case’ when the nonmoving party
bears the ultimate burden of proof.”)(quoting Celotex, 477 U.S.
at 325).
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. Celotex, 477
U.S. at 324.

A “party opposing summary judgment may not rest

upon the mere allegations or denials of the ... pleading[s].”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001)(internal quotations omitted).

To withstand a properly

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence contradicting
those offered by the moving party, Anderson, 477 U.S. at 256-57,
and do more than solely rest upon mere allegations, general
denials, or vague statements, Saldana, 260 F.3d at 232.
ANALYSIS
The issue before the Court is whether Plaintiffs’ punitive
damages claim against Kelley should be dismissed.

In support of

her motion for partial summary judgment, Defendant Kelly argues
that Plaintiffs have produced no evidence to support their claim
that Kelley was “motivated by intent or accompanied by a willful

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and wanton disregard” of Plaintiffs’ rights and therefore, under
the Punitive Damages Act (“Act”), N.J.S.A. 2A:15-5.12, no
punitive damages should be allowed. (Docket No. 96 at 5.)
Plaintiffs respond that Defendant Kelley failed to comply
with the standard of care required of a labor and delivery nurse
and the standard of care due a mother and fetus. (Docket No. 98
at 3.)

Plaintiffs argue that their evidence establishes that

Kelley’s activities equaled a “continuous pattern of negligence”
toward both mother and fetus. (Id. at 4.)

They contend that “in

light of this pervasive pattern of negligence,” the fact finder
may reasonably conclude that clear and convincing evidence
exists that Kelley was “acting with conscious disregard for the
well-being of Ms. Mendez and the fetus and that a reasonable
obstetrical nurse in her position should have recognized that
her conduct toward the fetus in the operating room was extremely
dangerous to the well-being and survival” of the baby and his
mother. (Id. at 5-6.)

For that reason, Plaintiffs conclude the

fact finder could reasonably find Defendant Kelley liable for
punitive damages. (Id. at 6.)
To support their argument, Plaintiffs submitted expert
testimony from obstetrical nursing expert Robin A. Thompkins,
R.N. (“Thompkins Expert Report”) that Kelley failed to correctly
care for Mendez in a number of ways including failing to: (1)
properly monitor Mendez’s blood pressure; (2) take actions to

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improve her blood pressure; (3) report to physicians that her
blood pressure had entered a severe range; (4) properly monitor
her blood sugar levels and (5) timely report her findings to the
physicians. (Docket No. 98 at 3)(citing Thompkins Expert Report,
Docket No. 98 at Exhibit “C”.)
As to the care owed the fetus, Thompkins stated Kelley’s
care in the labor and delivery room was deficient for a number
of reasons including her failure to: (1) improve the condition
of the uterus; (2) properly determine the fetal heart rate
(“FHR”) and (3) order actions to improve the fetal heart rate.
(Id.)

In the operating room, according to Thompkins, Kelley

failed to report to the physicians the absence of variability of
fetal heart rate monitor tracings. (Id. at 3-4.)

Thompkins

concluded this was “well below the standard of care.” (Id.)
Plaintiffs obstetrical expert, John Stack, M.D., stated in
his report (“Stack Expert Report”) that Kelley and others failed
to report to the “physicians that the FHR tracing had
deteriorated to Category II tracings.” (Docket No. 98 at 4.)
(citing the Stack Expert Report, Docket No. 98 at Exhibit “D.”)
With this information, Dr. Stack contended the physicians would
have been alerted to the need “to begin the caesarian section by
4:13 to 4:14 a.m. rather than 4:25 a.m.” (Id. at 4.)

He said he

would have expected a nurse in “Kelley’s position in the
operating room to have reported to him the absence of

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variability in the FHR tracing.” (Id.)

In his opinion, Kelley’s

failures to comply with the standard of care as to the fetus
resulted in the baby’s death after his birth. (Id.)

He also

concluded that all of Kelley’s errors “decreased the baby’s
likelihood of survival and were the causes of his death.” (Id.
quoting Stack Expert Report.)

He did not render an opinion upon

whether Kelley had deviated from the standard of care; his
opinion on standard of care was limited to a review of the
physicians’ care.
The Punitive Damages Act
The Punitive Damages Act (“Act”), a New Jersey state law,
provides that plaintiff may be awarded punitive damages only if
plaintiff proves, by clear and convincing evidence,
that the harm suffered was the result of 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.
N.J.S.A. 2A:15-5.12.
“Actual malice” is defined under the Act as, “intentional
wrongdoing in the sense of an evil-minded act.” N.J.S.A. 2A:155.10.

“Wanton and willful disregard” means “a deliberate act or

omission with knowledge of a high degree of probability of harm
to another and reckless indifference to the consequences of such
act or omission.” N.J.S.A. 2A:15-5.10.

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Negligence or Gross Negligence
Plaintiffs’ expert concluded that Kelley’s actions were
“well below the standard of care.” (Docket No. 98 at 4.)
However, negligence, even gross negligence is an insufficient
basis for punitive damages under the statute. See N.J.S.A.
2A:15-5.12; see also Edwards v. Our Lady of Lourdes Hosp., 217
N.J. Super. 448, 460, (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.”).
Actual Malice or a Wanton and Willful Disregard of Persons
Nothing in the evidence produced by Plaintiffs suggests
Kelley acted with “actual malice.”

Plaintiffs did not provide

evidence of intentional wrongdoing.

Nor did they show Kelley

was evil-minded.

Plaintiffs produced no evidence Kelley acted

with “wanton and willful disregard” toward Plaintiffs.

There is

no evidence of her deliberately acting or failing to act while
knowingly risking harm to another.

Nothing in Plaintiffs’

reports intimates Kelley acted with reckless indifference to the
consequences of her actions to Mendez and Bryan.
Furthermore, as to Plaintiffs’ argument that a “continuous
pattern of negligence” and “pervasive pattern of negligence”
constitute a basis for punitive damages, there is no statutory

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authority for the legal conclusion that a pattern of negligence
satisfies the Legislature’s narrow definition.

As stated above,

the statute is clear; Plaintiffs must show Kelley acted with
actual malice or wanton and willful disregard of the persons who
might be harmed in order to be awarded punitive damages.

The

“continuous pattern” and “pervasive pattern” of actions, do not
in these circumstances, rise to the levels of “willful and
wanton disregard” or “actual malice” required by statute.
Citing McLaughlin v. Rova Farms, 56 N.J. 288, 306 (1970),
Plaintiffs argue, “It is not necessary, however, that the
defendant know that his or her conduct is ‘extremely dangerous.’
It is sufficient that a reasonable person in defendants’
position should know this.” (Docket No. 98 at 5.)

In Rova

Farms, the Supreme Court of New Jersey affirmed the trial court
judgment, finding there was willful and wanton misconduct by the
lake operator in an action involving a diving accident.

In Rova

Farms, the unclear lake water off the end of the diving platform
was extremely shallow.

The Court explained that

a jury would be warranted in finding that any
reasonably prudent operator of the lake would be or
should be aware of the danger. In fact, once a jury
found that the location and appearance of the
structure gave an invitation to dive therefrom into
the three or four feet of water, a sequential
conclusion seems inescapable, I.e., (sic) that injury
to a diver who yielded to the invitation was probably
inevitable. Plaintiffs' expert said the facility was
the most dangerous he had ever seem (sic), and that
diving from it never should have been allowed.

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Id. at 309.

The Court concluded that

defendants' affirmative action in creating what a
reasonably prudent person would or should know was a
highly dangerous hazard, coupled with its omission to
notify the injured plaintiff of the danger or to
prevent him from subjecting himself to it, justified a
finding of such a reckless indifference to the
probability of injury as to constitute willful and
wanton misconduct.”
Id.
There is no parallel between the actions of the defendant
in Rova Farms and the actions of Kelley.

In Rova Farms

defendant affirmatively created a “highly dangerous hazard” and
a facility that was the “most dangerous” the expert had ever
seen. Id.

The lake operator essentially “invited” persons to

dive into such shallow water and that injuring themselves was
“probably inevitable.” Id.

Creating the obvious danger and

failing to warn about it constituted willful and wanton
misconduct.

By contrast, the evidence Plaintiffs have presented

here, the failure of Kelley to perform a number of her
responsibilities, shows at most, negligence or gross negligence,
neither rising to the level of willful and wanton disregard of
persons described in Rova Farms.
Aggravating Circumstances
Punitive damages are not to be assessed lightly.

The Act

says punitive damages are awarded “because of aggravating

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circumstances in order to penalize and to provide additional
deterrence against a defendant to discourage similar conduct in
the future.” N.J.S.A. 2A:15-5.10.
Plaintiffs cite in passing Pavlova v. Mint Management
Corp., 375 N.J. Super. 397 (2005), an action in which the
Appellate Division of the Superior Court of New Jersey
determined there were no aggravating circumstances and no basis
for punitive damages.

Pavlova involved a suit against the owner

of a senior citizen housing complex following the death of a
resident whose towel caught fire after she hung it on a towel
rack located near a wall mounted heater.

The plaintiff argued

the building owner failed to provide adequate notice of the
potential danger.

The Court ruled against awarding punitive

damages because “[A]bsent here is the blatantly egregious,
deliberate conduct that was practically certain to cause both
imminent and serious harm.” Id. at 407.

The Court added “Nor

does the evidence admit of the likelihood of serious and
imminent harm, much less of defendant’s awareness of that
likelihood.” Id. at 407-08.
The Court distinguished the facts before it from the facts
in two other actions where punitive damages were allowed: “The
aggravating circumstances that evidence an utter disregard for
others, which were so critical to the decisions in Smith and
Dong, and are meant to be punished and deterred by punitive

13

damages, are absent in this case.” Id. at 408-09 (internal
citations omitted).
In Smith v. Whitaker, 313 N.J. Super. 165, 191,
(App.Div.1998), aff’d, 160 N.J. 221, (1999) a motorist was
killed after the defendant oil company knowingly and
deliberately allowed an inexperienced and virtually untrained
driver to drive an oil truck with severely defective brakes.
In Dong v. Alape, 361 N.J. Super. 106, 121-22 (App. Div.
2003), a pedestrian was killed by a defendant who: (1) knew he
was an alcoholic; (2) knew he frequently blacked out from
drinking; (3) was extremely intoxicated the day of the accident
and (4) drove erratically at a high speed on a busy street
during rush hour.
The evidence Plaintiffs presented as to Kelley’s care of
Mendez and her son, in contrast with the evidence in Smith and
Dong, does not show “aggravating circumstances that evidence an
utter disregard for others.” See Pavlova, 375 N.J. Super. at
408.

Nor here is there evidence of “blatantly egregious,

deliberate conduct.” See id. at 407.

There is no evidence

before this Court that Kelley was aware of the likelihood that
her actions would result in serious imminent harm to Plaintiffs.
See id. at 407-08.

Thus, the evidence does not rise to a level

of aggravating circumstances under the Act.

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CONCLUSION
Plaintiffs’ expert Thompkins concludes Kelley’s actions
were well below the standard of care due Plaintiffs.

However,

under the Act, neither negligence nor gross negligence is a
sufficient basis for punitive damages.

Plaintiffs’ evidence

does not establish that Kelley’s actions were motivated by
actual malice or willful and wanton conduct.

Therefore,

Plaintiffs have not met the statutory threshold allowing for
punitive damages only when plaintiff proves by clear and
convincing evidence actual malice or a wanton and willful
disregard of foreseeable persons who might be harmed.
Nor does Plaintiffs’ evidence show the required aggravating
circumstances.

Punitive damages are not to be assessed lightly

but are to be awarded because of aggravating circumstances so as
to penalize and to discourage future similar conduct.

Even

assuming the truth of Plaintiffs’ evidence, Plaintiffs have
failed to offer sufficient proofs to meet the burden of proof
for an award of punitive damages.

Therefore, this Court grants

Defendant’s motion for partial summary judgment.

An appropriate

Order will be entered.

Dated:

February 3, 2017

s/ Noel L. Hillman
Noel L. Hillman, U.S.D.J.

At Camden, New Jersey

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