MENDEZ et al v. UNITED STATES OF AMERICA et al

Filing 52

OPINION. Signed by Judge Noel L. Hillman on 8/5/2015. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
MARY O. MENDEZ, et al.,
Plaintiffs,

Civil No. 14-7778 (NLH/KMW)

v.
OPINION
UNITED STATES OF AMERICA, et al.,
Defendants.
__________________________________
APPEARANCES:
Loren T. Finesmith, Esquire
2915 North 5th Street
Philadelphia, Pennsylvania 19133
Counsel for Plaintiffs
Jordan Milowe Anger, Assistant U.S. Attorney
Office of the U.S. Attorney
970 Broad Street
7th Floor
Newark, New Jersey 07102
Counsel for Defendant United States of America
Carolyn R. Sleeper, Esquire
Parker McCay PA
9000 Midlantic Drive
Suite 300
Mount Laurel, New Jersey 08054-5054
Counsel for Defendants Dhiren Soni, D.O., Cooper Anesthesia
Associates, P.C., Cooper University Hospital, and Cooper
University Physicians
HILLMAN, District Judge:
This case presents a medical malpractice claim in which
Plaintiffs, Mary O. Mendez, individually and as the Executor of
1

the Estate of Bryan Jadiel Mendez, and Miletzy Hernandez, allege
that Bryan Jadiel Mendez died within a minute of being delivered
by cesarean section due to the negligence of the defendants.
Because this case involves allegations of professional
negligence, Plaintiffs were required to obtain an Affidavit of
Merit pursuant to New Jersey law.

Presently before the Court

are a number of motions relating to Plaintiffs’ efforts to
obtain such Affidavit of Merit, including Plaintiffs’ motion
[Doc. No. 23] for expedited discovery to assist them in
obtaining an Affidavit of Merit, Plaintiffs’ motion [Doc. No.
26] for an extension of time to file an Affidavit of Merit, a
motion [Doc. No. 45] to dismiss by Defendant Dhiren Soni, D.O.
based upon Plaintiffs’ failure to timely obtain an Affidavit of
Merit, and Plaintiffs’ second motion [Doc. No. 50] for an
extension of time to obtain an Affidavit of Merit.
The Court has considered the submissions of the parties and
decides the motions pursuant to Fed. R. Civ. P. 78.

For the

reasons that follow, Plaintiffs’ motion for expedited discovery
will be denied as moot.
time will be granted.

Plaintiffs’ motions for an extension of
Dr. Soni’s motion to dismiss will be

denied without prejudice.
I.

JURISDICTION
This Court exercises jurisdiction on grounds that the

United States is a defendant and that the federal district
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courts “have exclusive jurisdiction of civil actions on claims
against the United States, for money damages, accruing on and
after January 1, 1945, 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.”
1346(b)(1).

See 28 U.S.C. §

The Court exercises supplemental jurisdiction over

Plaintiffs’ state law claims against the non-federal defendants
pursuant to 28 U.S.C. § 1367.
II.

BACKGROUND
Plaintiffs initiated an action relating to the claims in

this case in 2012 by filing a complaint in the Superior Court of
New Jersey.

In that action, Plaintiffs alleged, inter alia,

that Dr. Soni, an anesthesiologist who participated in the
delivery of the decedent, was negligent in the manner in which
anesthesia was administered to Plaintiff Mary Mendez, including
ordering and administering spinal anesthesia when the
circumstances warranted a faster form of anesthesia,
administering anesthesia at the wrong spinal level, failing to
administer anesthesia in a timely manner, and administering
inadequate doses of anesthesia.

Plaintiffs obtained an
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Affidavit of Merit from James F. Noone, M.D., which was filed in
the state court action on November 13, 2012, and which states
that “the care, skill or knowledge exhibited by Dhiren Soni,
M.D., in the treatment he rendered . . . fell outside acceptable
professional standards.”

(Aff. of Merit [Doc. No. 35-1] ¶ 4.)

On April 11, 2013, the action was removed to the United
States District Court for the District of New Jersey, under
Civil Action Number 13-2274 (RMB/JS), when the United States was
substituted as a party for a number of the defendants.

The

United States then moved to dismiss the action based upon
Plaintiffs’ failure to exhaust administrative remedies.

By

Memorandum Opinion and Order dated October 23, 2013, the
District Court granted the United States’ motion to dismiss and
declined to exercise supplemental jurisdiction over the
remaining state law claims.

The state law claims were thus

remanded to New Jersey state court.
Plaintiffs thereafter sent an administrative claim to the
United States Department of Health & Human Services.

On June

12, 2014, Plaintiffs received a final agency denial of their
claim and were advised of their right to file suit against the
United States in federal district court within six months.

On

June 23, 2014, an Order was entered in the state court action
which dismissed Plaintiffs’ complaint without prejudice by
agreement of the parties, so that Plaintiffs could pursue their
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claims against all defendants in one action.

Plaintiffs then

instituted this new suit against the United States, as well as
other defendants, on December 12, 2014.

Several of the

defendants, including Dr. Soni, Cooper University Hospital,
Cooper University Physicians, and Cooper Anesthesia Associates,
P.C., filed an answer on February 11, 2015.

The United States

filed an answer on March 5, 2015.
On February 26, 2015, shortly after Dr. Soni and the Cooper
Defendants filed their answer, Plaintiffs filed the motion for
discovery that is presently before this Court.

In the motion,

Plaintiffs concede that they are in possession of the relevant
medical records, but they contend that such records are
insufficient for them to obtain an Affidavit of Merit. 1
Plaintiffs assert, for example, that the records do not identify
the chemical agents used, the amounts used, clear information
concerning the time when anesthesia was administered, or whether
Plaintiff Mary Mendez was sufficiently anesthetized for the
cesarean section.

In particular, Plaintiffs assert that the

medical records indicate that 4:11 a.m. was the time of
“Anesthesia Ready” and the time of “Induction.”

1

According to

Although Dr. Noone provided an Affidavit of Merit when
Plaintiffs initially filed an action in state court in 2012,
Plaintiffs represent that when asked to provide another
Affidavit of Merit for this action, Dr. Noone would not do so.
Plaintiffs do not explain why Dr. Noone has declined to provide
an Affidavit of Merit in this case.
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Plaintiffs, this entry is not self-explanatory, because
“Induction” could refer to the time that anesthesia was
commenced or the time it was completed, and the recollections of
Dr. Soni and Dr. Chang -- the attending physician for the labor
and delivery 2 -- are purportedly required for clarification.
Plaintiffs thus prepared and served interrogatories upon
Dr. Soni, the United States, and two nurses who were the
circulating nurses in the delivery room, addressing these
factual issues.

Plaintiffs requested in the motion that the

interrogatories be answered within thirty days, so as to enable
Plaintiffs to timely obtain the requisite Affidavit of Merit.
Plaintiffs also filed a motion to extend time to obtain an
Affidavit of Merit.
Dr. Soni responded to the interrogatories on March 16,
2015, indicating that 4:11 a.m. was the time that anesthesia was
completed.

The United States, and the delivery room nurses have

not yet responded to the interrogatories.

Although no

explanation is provided for the nurses’ failure to respond to
discovery, Plaintiffs’ counsel represents that Dr. Chang has
provided draft answers to counsel for the United States, but the
draft answers had to be sent to CAMcare Health Corporation, the

2

Dr. Chang was allegedly acting within the course and scope of
his employment and in furtherance of the interests of the United
States. Accordingly, the United States is named as a defendant
based upon the alleged wrongdoing of its agent, Dr. Chang.
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corporation through which Dr. Chang was deemed to have been an
employee of the United States, for verification.

Plaintiffs’

counsel nonetheless indicates, based upon information provided
by counsel for the United States, that anesthesia may not have
been ready until a point in time approximately fourteen minutes
later than the time indicated by Dr. Soni in his answers to
interrogatories.
Before the Court ruled on Plaintiffs’ motions for expedited
discovery and to extend time to obtain an Affidavit of Merit,
Dr. Soni moved for dismissal of the complaint based upon
Plaintiffs’ failure to timely serve the Affidavit.

Plaintiffs

oppose the motion, arguing that they require the United States’
answers to interrogatories regarding when the anesthesia was
ready to be able to obtain an Affidavit of Merit.

Because they

continue to await the United States’ interrogatory answers,
Plaintiffs ask that the motion to dismiss be denied, and they
have also filed a second motion for an extension of time to
obtain an Affidavit of Merit.
III. DISCUSSION
A.

Motion for Expedited Discovery

As soon as Dr. Soni and the Cooper Defendants filed an
answer in this case, Plaintiffs served discovery requests and a
motion for expedited discovery to enable them to procure an
Affidavit of Merit.

In the motion, Plaintiffs asked that Dr.
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Soni, the United States, and Defendants Susan Ward, R.N. and
Beryl Kelley, R.N. be directed to answer interrogatories within
thirty days of February 24, 2015.

Pursuant to the Local Civil

Rules of New Jersey, the motion for expedited discovery was made
returnable on April 6, 2015.

Plaintiffs did not request that

the motion be heard on short notice.
A party may not seek discovery until the parties have met
and conferred as required by Fed. R. Civ. P. 26(f), unless
otherwise authorized by court order.

Fed. R. Civ. P. 26(d).

Plaintiffs represent that the parties met and conferred pursuant
to Fed. R. Civ. P. 26(f) on March 31, 2015.

Therefore, as of

that date, Plaintiffs were entitled to serve discovery in the
general course.

Plaintiffs’ request that discovery be permitted

on an expedited basis is therefore moot at this time, and the
motion will be denied.
Although the motion is moot to the extent it seeks
expedited discovery, the Court notes that the United States and
Defendants Ward and Kelley do not appear to have yet responded
to the interrogatories, even though the time to respond has
expired.

Plaintiffs did not move to compel answers to these

discovery requests, nor do they contend in their most recentlyfiled motion that interrogatory responses from Defendants Ward
or Kelley are necessary to obtain an Affidavit of Merit.
Plaintiffs do assert that they require the United States’
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interrogatory responses to procure an Affidavit of Merit, and in
light of the overdue nature of the United States’ responses, the
Court will require the United States to provide such answers
within fifteen days hereof.

Indeed, although Plaintiffs

consented to provide the United States additional time to
respond to the interrogatories, such time has now expired, and
the Court sees no reason why the United States should not be
compelled at this time to respond to discovery served more than
four months ago.
B.

Motions for Extension of Time to Obtain Affidavit of
Merit

An Affidavit of Merit is a legislative tool crafted for use
by the courts to halt unmeritorious and frivolous professional
malpractice lawsuits at an early stage of litigation.

Buck v.

Henry, 207 N.J. 377, 382-83, 25 A.3d 240 (N.J. 2011); Cornblatt
v. Barow, 153 N.J. 218, 242, 708 A.2d 401 (N.J. 1998).
of the Affidavit of Merit statute provides as follows:
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
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The text

occupational standards or treatment
practices. The court may grant no more than
one additional period, not to exceed 60
days, to file the affidavit pursuant to this
section, upon a finding of good cause.
N.J. Stat. Ann. § 2A:53A-27.
Because the Affidavit of Merit is a substantive rather than
a procedural requirement of a professional malpractice suit,
failing to submit an Affidavit of Merit after sixty days, or
after an extension for good cause to 120 days, will usually
result in a dismissal with prejudice.

Ferreira v. Rancocas

Orthopedic Assoc’s, 178 N.J. 144, 154, 836 A.2d 779 (N.J. 2003);
Cornblatt, 153 N.J. at 247, 708 A.2d 401.
The main purpose of the Affidavit of Merit statute is to
“‘weed out frivolous lawsuits early in the litigation while, at
the same time, ensuring that plaintiffs with meritorious claims
will have their day in court.’”

Couri v. Gardner, 173 N.J. 328,

340, 801 A.2d 1134 (N.J. 2002) (quoting Hubbard v. Reed, 168
N.J. 387, 395, 774 A.2d 495 (N.J. 2001)).

“The purpose of the

statute, however, is not to afford malpractice defendants with a
sword to fight off a malpractice action by procrastinating in
providing records and other relevant materials that a competent,
conscientious expert would have to analyze before submitting an
Affidavit of Merit.”

Barreiro v. Morais, 318 N.J. Super. 461,

470, 723 A.2d 1244 (N.J. Super. Ct. App. Div. 1999).
according to the New Jersey Supreme Court:
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Thus,

If defense counsel files a motion to dismiss
after the 120-day deadline and before
plaintiff has forwarded the [Affidavit of
Merit], the plaintiff should expect that the
complaint will be dismissed with prejudice
providing the doctrines of substantial
compliance and extraordinary circumstances
do not apply.
Ferreira, 178 N.J. at 154, 836 A.2d 779 (emphasis supplied).
The doctrine of substantial compliance requires a party to
show “‘(1) the lack of prejudice to the defending party; (2) a
series of steps taken to comply with the statute involved; (3) a
general compliance with the purpose of the statute; (4) a
reasonable notice of petitioner's claim, and (5) a reasonable
explanation why there was not a strict compliance with the
statute.’”

Cornblatt, 153 N.J. at 239, 708 A.2d 401 (quoting

Bernstein v. Bd. of Trustees of Teachers’ Pension & Annuity
Fund, 151 N.J. Super. 71, 76–77, 376 A.2d 563 (N.J. Super. Ct.
App. Div. 1977)).

“[B]ecause the legislature did not intend the

statute to be applied literally and strictly, in each case the
court is ‘required to assess the facts against the clearly
defined elements to determine whether technical non-conformity
is excusable.’”

Kindig v. Gooberman, 149 F. Supp. 2d 159, 164

(D.N.J. 2001) (quoting Galik v. Clara Maass Med. Ctr., 167 N.J.
341, 354, 771 A.2d 1141 (N.J. 2001)).
In this case, Plaintiffs initially filed a request for an
extension of time under the “good cause” standard because their

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time to file an Affidavit of Merit had not yet expired.

Before

the Court ruled on that motion, but after their time to obtain
an Affidavit of Merit expired, Plaintiffs filed another motion
to extend time.

Plaintiffs argue in their latter-filed motion

that “extraordinary circumstances” warrant an extension of time
to file an Affidavit of Merit because the medical records are
not, in themselves, sufficient to obtain an expert opinion, and
interrogatory responses are needed to clarify the medical
records.
In support, Plaintiffs rely on Barreiro, wherein the
medical records provided to the plaintiffs’ expert were
indecipherable, and the proposed expert requested translation
thereof before being able to render an opinion for purposes of
providing an Affidavit of Merit.
A.2d 1244.

318 N.J. Super. at 472, 723

The New Jersey Appellate Division found that

“extraordinary circumstances” may exist and thus remanded for
consideration of whether the requirements of the Affidavit of
Merit statute should be relaxed.

Id.

The Appellate Division

noted as follows:
[Plaintiffs] will be given the opportunity
to present proofs that the hospital records
were indecipherable. Once that
indecipherable nature is established, [their
expert] will be afforded the opportunity to
prove the indecipherable documents had a
substantial bearing on his preparation [of]
the affidavit and prevented him from doing
so in a timely fashion. Assuming the
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evidence presented demonstrates, by its
preponderance, such an obstacle to the
submission of an Affidavit of Merit, the
trial court must determine whether the
delays asserted in the record before us did
in fact occur. Those proofs, and other
relevant facts, must then be considered by
the court to determine whether extraordinary
circumstances existed to justify a dismissal
without prejudice.
Barreiro, 318 N.J. Super. at 472, 723 A.2d 1244.
For reasons explained below, the Court finds that
Plaintiffs are entitled to an extension of time to obtain an
Affidavit of Merit under the circumstances presented here.
Plaintiffs have been diligent in their efforts to obtain an
Affidavit of Merit and were not merely sleeping on their rights.
Ever since Dr. Soni and the Cooper Defendants filed an answer to
the complaint, Plaintiffs have attempted to obtain the
information that they believe is necessary to procure an
Affidavit of Merit to support their claims.
In so finding, the Court initially notes that when the
original motion to extend time was filed, the time to obtain an
Affidavit of Merit had not yet expired.

The Affidavit of Merit

statute states that the Court may grant a sixty-day extension of
time to provide an Affidavit of Merit for “good cause.”
N.J.S.A. § 2A:53A-27.

Dr. Soni and Cooper University Hospital

opposed that motion on the basis that Plaintiffs did not have
good cause for an extension because they have had five years to

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obtain the information necessary to procure an Affidavit of
Merit.

This argument, however, misconstrues the record.

The

incident that gave rise to the claims in this case occurred in
2010, but when Plaintiffs filed the action in 2012 they were
able to obtain an Affidavit of Merit from Dr. Noone.

Thus,

Plaintiffs had no reason to know at that time that further
discovery would be necessary to obtain an Affidavit of Merit for
this federal suit.

Presumably, it was not until at least

December 2014, when this action was filed and Dr. Noone
apparently refused to provide another Affidavit of Merit, that
Plaintiffs learned they would have to identify a new expert.

To

aid in their efforts to obtain a new Affidavit of Merit,
Plaintiffs served interrogatories in February 2015, and they
filed a motion seeking to obtain the interrogatory answers in
expedited fashion so as to timely obtain an Affidavit of Merit.
Given these facts, the Court finds that Plaintiffs demonstrated
good cause for an extension of time to obtain an Affidavit of
Merit, which supports their initial motion.
Moreover, even if the Court considers the elements of
substantial compliance and extraordinary circumstances, which
factors are to be considered when the time for filing an
Affidavit of Merit has already expired, the Court finds that
such factors support a short extension of time.

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With respect to the first and fourth factors of substantial
compliance, Dr. Soni and Cooper University Hospital have been on
notice of the basis of this lawsuit since suit was first filed
in 2012, at which time Plaintiffs obtained an Affidavit of Merit
from Dr. Noone that put these defendants on notice that
Plaintiffs’ claims were not patently frivolous.

Given such

notice, there can be no assertion that Defendants have lost
evidence due to Plaintiffs’ failure to timely obtain an
Affidavit of Merit.

See Kindig, 149 F. Supp. 2d at 164.

Furthermore, Dr. Soni and Cooper University Hospital do not
assert any undue additional defense costs that will arise if
Plaintiffs are granted a short extension of time.

The only

potential prejudice would be that these defendants may have to
defend against a potentially meritorious claim, but such
prejudice is not “legal prejudice” and does not outweigh the
strong preference in this Circuit for adjudication on the merits
rather than disposition on procedural grounds.

See id.

The fact that Plaintiffs obtained an Affidavit of Merit
from Dr. Noone in the 2012 state court action also supports the
second and third considerations in the substantial compliance
inquiry.

Although Plaintiffs agreed to voluntarily dismiss the

state court action with the intention of re-filing their claims
in federal court along with the claims against the United
States, Plaintiffs likely did not anticipate that their expert
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would refuse to provide an Affidavit of Merit when the case was
re-filed.

Thus, but for the procedural circumstances that arose

when the United States was substituted as a defendant,
Plaintiffs would already have the requisite Affidavit of Merit
to support their claims against Dr. Soni and Cooper University
Hospital.

Moreover, within days of Dr. Soni’s and the Cooper

Defendants’ filing of an answer in this case, Plaintiffs served
interrogatories in an effort to obtain the information they
contend is necessary to procure an Affidavit of Merit, as well
as a motion to compel expedited responses to these discovery
requests.

Plaintiffs also sought an extension of time to

provide an Affidavit of Merit well before the time to provide
such affidavit expired.

Under these circumstances, Plaintiffs

have clearly taken steps to comply with the Affidavit of Merit
statute and, correspondingly, have generally complied with the
purpose of the statute.

The Court believes that Plaintiffs have

demonstrated a “desire to fulfill the threshold requirement,
thus complying with the purpose of the statute.”

Kindig, 149 F.

Supp. 2d at 165.
Despite the foregoing, the fifth factor does not support
Plaintiffs’ request for an extension of time to obtain an
Affidavit of Merit.

Specifically, while Plaintiffs contend that

they are unable to obtain an Affidavit of Merit until they
receive interrogatory responses, Plaintiffs have not
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sufficiently demonstrated that the responses are necessary to
obtain the Affidavit.

In Barreiro, the case cited by

Plaintiffs, the trial court was directed to consider both
whether the medical records were indecipherable and, if so,
whether the indecipherable documents had a substantial bearing
on the expert’s preparation of the Affidavit of Merit and
prevented him from doing so in a timely fashion.
Here, Plaintiffs contend that the medical records lack
sufficient clarity as to when the anesthesia was ready because
the records indicate that the time for “Anesthesia Ready” and
“Induction” was the same.

Even assuming that these entries are

unclear, Plaintiffs submit no evidence that this lack of clarity
has any bearing -- let alone a substantial bearing -- on their
inability to obtain an Affidavit of Merit.

In this regard, they

do not assert that Dr. Noone, or any other expert, has reviewed
the medical records and requested more information as to the
time that anesthesia was ready before being able to render an
opinion as to whether Dr. Soni breached the applicable standard
of care. 3

Moreover, Dr. Soni responded to Plaintiffs’

3

Indeed, Dr. Noone was able to render an opinion based upon the
medical records in the state court action in 2012. In the
absence of any explanation as to why Dr. Noone has refused to
provide an Affidavit of Merit at this time, the Court questions
whether his refusal can be ascribed to a lack of merit of
Plaintiffs’ claims, and not a lack of clarity of the medical
records.
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interrogatories in March 2015 and explained the time that the
anesthesia was ready.

With this clarification, Plaintiffs

should have been able to timely obtain an Affidavit of Merit,
but they still have not done so.

Accordingly, Plaintiffs do not

present a reasonable explanation as to why they have been unable
to obtain an Affidavit of Merit. 4
Nevertheless, on balance the Court finds that the factors
of substantial compliance weigh in favor of granting one thirtyday extension of time to obtain an Affidavit of Merit.

While it

is not clear to the Court that interrogatory responses from the
United States will enable Plaintiffs to obtain an Affidavit of
Merit, the Court has now required the United States to provide
interrogatory responses within fifteen days, and Plaintiffs will
soon have the information they purportedly need to obtain an
Affidavit of Merit.

Under these circumstances, and given

Plaintiffs’ apparent efforts to comply with the requirements of
the Affidavit of Merit statute and the dispositive effect that
would result if the extension of time is not granted, the Court
will grant Plaintiffs one short extension of time.

4

Plaintiffs apparently hope that Dr. Chang will provide a
different interrogatory response that pins the time that
anesthesia was completed later than the time identified by Dr.
Soni, in which case they believe they will be able to obtain an
Affidavit of Merit. Plaintiffs, however, provide no evidence to
support their theory that they will be able to procure an
Affidavit of Merit if Dr. Chang identifies a different time for
completion of anesthesia.
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C.

Dr. Soni’s Motion to Dismiss

Because the Court will provide Plaintiffs additional time
to obtain an Affidavit of Merit, Dr. Soni’s motion to dismiss
for failure to obtain an Affidavit of Merit will be denied
without prejudice.

If Plaintiffs fail to obtain an Affidavit of

Merit within thirty days, Dr. Soni may re-file his motion to
dismiss.
IV.

CONCLUSION
For the reasons set forth above, Plaintiffs’ motion for

expedited discovery will be denied as moot.

Plaintiffs’ motions

for an extension of time to serve the Affidavit of Merit will be
granted, and Plaintiffs will have thirty days to serve an
Affidavit of Merit upon Dr. Soni and Cooper University Hospital.
Dr. Soni’s motion to dismiss will be denied without prejudice.
Finally, the United States will be compelled to respond to
Plaintiffs’ interrogatories, which were sent on February 24,
2015, within fifteen days.
An Order accompanying this Opinion will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: August 5, 2015
At Camden, New Jersey

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