KRAUS v. COUNTY OF SALEM et al

Filing 55

MEMORANDUM ORDER granting 29 Defendants' Motion for Partial Summary Judgment. Signed by Judge Renee Marie Bumb on 2/8/2017. (tf, )

[Dkt. No. 29]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CHRISTOPHER KRAUS,
Plaintiff,

Civil No. 15-2312 (RMB/AMD)
MEMORANDUM ORDER

v.
RAYMOND C. SKRADZINKSI, et al.,
Defendants.

This matter comes before the Court upon the Motion for
Partial Summary Judgment and Dismissal of Medical Malpractice/
Professional Negligence Claims for Failure to Timely Provide an
Affidavit of Merit Pursuant to N.J.S.A. 2A:53A-29 [Dkt. No. 29]
by Defendants CFG Health Systems, LLC (“CFG”) and Jan Segal,
PhD.

For the reasons set forth herein, the Motion is GRANTED.
Plaintiff Christopher Kraus filed an Amended Complaint on

December 4, 2015 alleging, in relevant part, a medical
negligence claim against CFG only in Count 6 [Dkt. No. 12].
There is no allegation of medical negligence against Defendant
Segal and, therefore, summary judgment as to Count 6 against her
is GRANTED.1

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While Defendants assume in their Motion that Plaintiff has
alleged such claim against Defendant Segal in Count 6, there is
no reason for such assumption, as Count 6 makes no mention
whatsoever of Defendant Segal.
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Defendants filed an Answer on February 10, 2016 [Dkt.
No. 19].

In relevant part, Defendant CFG pleaded the failure to

state a claim and demanded the service of an Affidavit of Merit.
By statute, the 120-day time period for service of a timely and
appropriate Affidavit of Merit in this matter expired on June 9,
2016.

On June 13, 2016, a day after Defendants filed the

instant motion, and four days beyond the 120-day period,
Plaintiff served an Affidavit of Merit [Dkt. No. 30].
The New Jersey “Affidavit of Merit” statute,
N.J.S.A. 2A:53A-26 through 29, provides in pertinent part:
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 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.S.A. 2A:53A-27 (emphasis added).
The 60-day extension for good cause permissible under the
statute must be applied for and granted, and the Affidavit of
Merit must be served within 120 days of the filing of the

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Answer.

Lee v. Thompson, 163 F. App’x 142, 143 (3d Cir. 2006)

(citing Burns v. Belafsky, 166 N.J. 466, 473-77 (2001)).
There is no dispute that Plaintiff filed the Affidavit of
Merit outside the 120-day period.

Further, there is no dispute

that Plaintiff did not seek a 60-day extension within the
120-day period.
extension.

Indeed, Plaintiff has never sought such

Rather, Plaintiff responds with three arguments.

First, he substantially complied with the provisions; second, an
Affidavit of Merit is not required as a matter of law; and
third, CFG must answer to Plaintiff’s civil rights claim anyway
so the purpose of an Affidavit of Merit “will not be advanced.”
The Court rejects the last argument outright.
As for the substantial compliance argument, Plaintiff’s
efforts to lay the blame at the feet of CFG are without merit.
The record reveals the following events.

On March 15, 2016,

Plaintiff served a subpoena for medical records; Plaintiff’s
counsel’s cover letter indicated that the subpoena was addressed
to “Custodian of Records, Camden County Correctional Facility.”
The subpoena was returnable April 5, 2016.
No. 33-4].

Pl. Opp. Ex. A [Dkt.

That same day, counsel for CFG, via e-mail, stated

to Plaintiff’s counsel: “If and when you provide a signed HIPAA
authorization form for release of records, I will obtain and
provide records from Camden County.”

Pl. Opp. Ex. B.

On April

13, 2016, Plaintiff’s counsel advised that the records were

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“vital to the preparation of Plaintiff’s Affidavit of Merit.”
Pl. Opp. Ex. C.

Plaintiff did not seek a 60-day extension as

required under the statute.

Plaintiff’s counsel further stated

“I assume you have no problem with Plaintiff supplying the
Affidavit of Merit within forty-five (45) days after receipt of
those records.”

Id.

Counsel for CFG responded, in relevant

part, “With respect to time-frame for service of the Affidavit
of Merit, that is a matter of statutory law.”

Pl. Opp. Ex. D.

One week later, on April 20, 2016, - with the medical records in
Plaintiff’s possession - Plaintiff’s counsel wrote that he was
having difficulty reviewing some of the notes and that he may
need transcriptions by CFG, but that he would go through the
records “[p]robably over the weekend” and get back to CFG’s
counsel.

Pl. Opp. Ex. E; Defs. Reply Ex. 10 [Dkt. No. 34-5].

Yet Defendants heard no word from Plaintiff or his counsel
between April 20, 2016 and June 9, 2016.

Even assuming a 60-day

extension, the 120-day period expired June 9, 2016.

The day

after the expiration of the 120-day period, Plaintiff’s counsel
provided CFG’s counsel with a few pages that needed
transcription.

Pl. Opp. Exs. G-H.

Three days later, on June

13, 2016, Plaintiff filed the Affidavit of Ryan D. Herrington,
MD/MPH [Dkt. No. 30].

CFG’s counsel sent Plaintiff’s counsel

the requested transcriptions on June 13 and 14, 2016.
Reply Exs. 19-21 [Dkt. No. 34-8].

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Defs.

It is clear that had Plaintiff promptly advised CFG of the
records requiring transcription, more than enough time existed
to file the Affidavit of Merit, again assuming Plaintiff sought
a 60-day continuance, which he did not.

There is no evidence in

the record to account for the extensive delay between April 20,
2016, when Plaintiff advised that he would tell CFG which
transcriptions were necessary, and June 9, 2016.

Moreover, CFG

provided the transcriptions within three days once it received
the request.

Clearly, CFG acted promptly, and the record is

devoid of any evidence to support Plaintiff’s position for the
delay.

Finally, Plaintiff has produced no evidence to support

the notion that the transcriptions were key to the preparation
of the Affidavit of Merit.

The record suggests they were not.

For these reasons, Plaintiff’s argument as to substantial
compliance fails.
Plaintiff’s argument that no Affidavit of Merit is required
as a matter of law fares no better.

There is a “common

knowledge” exception to New Jersey’s Affidavit of Merit
requirement.

Bender v. Walgreen E. Co., 399 N.J. Super. 584,

590 (App. Div. 2008).

“The [common knowledge] doctrine . . . is

appropriately invoked when the ‘carelessness of the defendant is
readily apparent to anyone of average intelligence and ordinary
experience.’”

Id. (quoting Estate of Chin ex rel. Chin v.

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St. Barnabas Med. Ctr., 160 N.J. 454, 469-70 (1999) (quoting
Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 325 (1985))).
Defendants argue that it is not common knowledge that
mental health providers in a jail setting are responsible for
continuing drug withdrawal regimens, especially given that such
providers cannot lawfully prescribe medications.

In other

words, this is not a situation where jurors, using ordinary
experience and understanding, would be able to determine a
defendant’s negligence without the benefit of the specialized
knowledge of experts.

The Court agrees and rejects Plaintiff’s

argument that, even if the Affidavit of Merit was untimely, no
such Affidavit is needed.
ACCORDINGLY, for the foregoing reasons, IT IS HEREBY, on
this 8th day of February 2017,
ORDERED that Defendants’ Motion for Partial Summary
Judgment [Dkt. No. 29] is GRANTED.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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