THE ESTATE OF ALISSA MARIE ALLEN et al v. CUMBERLAND COUNTY et al

Filing 83

OPINION. Signed by Judge Jerome B. Simandle on 6/27/2017. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

THE ESTATE OF ALISSA MARIE
ALLEN, et al.,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

Civil Action No.
15-6273 (JBS-AMD)

v.
CUMBERLAND COUNTY, A. GARCIA,
RN, et al.,
Defendants.

APPEARANCES:
Conrad J. Benedetto, Esq.
Danielle Marie Key, Esq.
John E. Kusturiss, Jr., Esq.
Kimmo Z. Hussain Abbasi, Esq.
LAW OFFICES OF CONRAD J. BENEDETTO
1814 East Route 70, Suite 350
Cherry Hill, NJ 08003
-andMelissa Yvette Hoffman, Esq.
LAW OFFICES OF CONRAD J. BENEDETTO
1405 Chews Landing Road, Suite 21
Laurel Springs, NJ 08021
Attorneys for the Plaintiffs
Daniel Edward Rybeck, Esq.
WEIR & PARTNERS, LLP
215 Fries Mill Road, Second Floor
Turnersville, NJ 08012
-andStephen D. Holtzman, Esq.
Jeffrey S. McClain, Esq.
HOLTZMAN & MCCLAIN, PC
524 Maple Avenue, Suite 200
Linwood, NJ 08221
Attorneys for Defendant A. Garcia, RN

OPINION

SIMANDLE, District Judge:
This matter comes before the Court on Defendant Amber
Garcia, RN’s motion for partial summary judgment. [Docket Item
42.] On August 18, 2015, Plaintiff Christine Allen, both as the
administrator of the estate of Alissa Marie Allen and in her own
right, filed a complaint in this Court against several
defendants, alleging a variety of claims arising from the
unfortunate death of Alissa Allen on March 22, 2015 in the
Cumberland County Jail. [Docket Item 1.]
Defendant Amber Garcia, RN (“Garcia”) argues that
Plaintiff’s professional negligence claims (including those
which could have been brought based on Garcia’s alleged
professional negligence must be dismissed with prejudice (or, in
the alternative, that Garcia be granted partial summary judgment
as to those claims) for Plaintiff’s failure to timely obtain and
serve an Affidavit of Merit from a qualified affiant as required
by N.J.S.A. 2A:53A-27 through -29, and that Plaintiff only be
permitted to proceed as to Garcia with regard to their claims of
violations of federal and state civil rights. [Docket Item 42 at
1-2.] Plaintiff argues in response that no such affidavit is
required in this case. [Docket Item 47.]
The principal issue to be determined is whether New Jersey
law requires an affidavit of merit to be filed by one pursuing a

2

claim of professional negligence of a nurse who allegedly
conducted a deficient psychological examination of an arrestee,
or whether the circumstances fall into the common knowledge
exception to the affidavit of merit statute.
For the reasons discussed below, the Court finds that such
an affidavit was required for this professional negligence claim
against Nurse Garcia. Accordingly, the Court will grant the
relief requested by Defendant Garcia and grant summary judgment
to her with regard to Plaintiff’s claims of professional
negligence.

I. FACTUAL AND PROCEDURAL BACKGROUND
The instant action arises out of the death of Alissa Marie
Allen on March 22, 2015 in the Cumberland County Jail. Her
mother, as administrator of Ms. Allen’s estate and in her own
right, is the named plaintiff in this action.
On March 20, 2015, Ms. Allen was arrested by Millville, New
Jersey police officers who transported her to and booked her
into the Cumberland County Jail in the early morning hours of
March 21, 2015. [Docket Item 14 at ¶¶ 14-15.] Plaintiff alleges
that Garcia, among other jail personnel “were required to screen
Ms. Allen not only for any physical problems, but also to
determine if Ms. Allen presented a risk for any psychological

3

problems, including suicide[,]” and “had a legal duty to
maintain a safe and suitable environment where Alissa Marie
Allen could be kept free from injury, harm and death.” [Id. at
¶¶ 16-17.]
On March 22, 2015, Ms. Allen “was discovered ‘hanging’ in
her cell” at the jail; emergency medical personnel responded to
a cardiac arrest complaint but, tragically, Ms. Allen was
pronounced dead at the scene. Her death certificate identifies
hanging as the immediate cause of death. [Id. at ¶¶ 18-21.]
Plaintiff alleges that Garcia, along with other Defendants,
“failed to properly screen Alissa Marie Allen for any suicidal
tendencies, or any other psychological problems, and also failed
to properly monitor Alissa Marie Allen.” [Id. at ¶ 22.]
Plaintiff’s claims in the Amended Complaint filed on
February 8, 2016 include common law claims for wrongful death
(Count V) and a survival action (Count VI). [Id. at 11-13.]
On February 18, 2016, an Answer was filed on behalf of
numerous Cumberland County defendants, which mistakenly included
Garcia. [Docket Item 15.] On March 31, 2016, a stipulation by
all parties consenting to the filing of an Amended Answer on
behalf of moving defendant Garcia was filed [Docket Item 16]
along with a copy the proposed Amended Answer [Docket Item 17].
The Court subsequently granted leave to file an Amended Answer

4

within 14 days on April 1, 2016. [Docket Item 18.] A
Substitution of Attorney with regard to Garcia was prepared and
signed by John C. Eastlack, Jr. as withdrawing attorney and
Stephen D. Holtzman as superseding attorney and was entered onto
the docket on April 27, 2016. [Docket Item 26.] On April 27,
2016, Garcia’s Amended Answer was filed nunc pro tunc to April
1, 2016. [Docket Items 27, 30.]
Garcia’s Amended Answer includes separate defenses for
failure to state a claim and failure to file an appropriate
Affidavit of Merit (“AOM”) pursuant to N.J.S.A. 2A:53A-26, et
seq. [Docket Item 27 at 7, 8.]
Plaintiff did not obtain or serve an AOM on Defendant
Garcia on or before June 26, 2016 or before August 25, 2016.1

II.

STANDARD OF REVIEW2

1

Defendant asserted this fact in the Statement of Material Facts
in support of her Motion for Partial Summary Judgment. [Docket
Item 42-4 at ¶¶ 13-16.] Plaintiff failed to respond to
Defendant’s Statement of Material Facts as required by L. Civ.
R. 56.1(a), including an admission or denial of this fact.
Plaintiff did submit her own supplemental Statement of Material
Facts, wherein she did not deny this fact. [Docket Item 47-1.]
Accordingly, the Court shall deem this assertion admitted and
therefore undisputed.
2 The Court exercises jurisdiction over this action pursuant to
28 U.S.C. §§ 1331 & 1343(3) and pendent jurisdiction over
Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367.
5

At summary judgment, the moving party bears the initial
burden of demonstrating that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for
summary judgment, the court is required to examine the evidence
in light most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Hunt v. Cromartie,
526 U.S. 541, 552 (1999); Wishkin v. Potter, 476 F.3d 180, 184
(3d Cir. 2007). Credibility determinations are not appropriate
for the court to make at the summary judgment stage. Davis v.
Portlines Transportes Maritime Internacional, 16 F.3d 532, 536
n.3 (3d Cir. 1994).
Under Nuveen Mun. Trust v. WithumSmith Brown, P.C., 692
F.3d 283, 303 n.13 (3d Cir. 2012), a failure to file a timely
AOM is properly the subject of “a motion for summary judgment
under Rule 56”; although “the AOM Statute directs courts to
dismiss actions in which a timely affidavit has not been filed
for ‘failure to state claim,’ because the affidavit is not a

6

pleading requirement, this language merely provides that the
consequences of not filing a timely affidavit are the same as
failing to state a claim[,]” especially because the court must
necessarily consider “matters outside the pleadings” when
considering the applicability of the AOM statute and timely
filing of the AOM.

III. ANALYSIS
Defendant Garcia argues that N.J.S.A. 2A:53A-26 through -29
(“the AOM Statute” or “the Statute”) applies to Plaintiff’s
claims of professional negligence against her. [Docket Item 42-5
at 12.] Plaintiff alleges, in response, that an AOM “is not
required in the instant case, as common knowledge makes apparent
the merit of Plaintiff’s negligence claims against” Garcia,
“without the need of expert testimony.” [Docket Item 47 at 7.]
The AOM statute provides:
In any action for damages for personal injuries [or]
wrongful death . . . 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 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

7

days, to file the affidavit pursuant to this section,
upon a finding of good cause.
N.J.S.A. 2A:53A-27. New Jersey courts have held that the
“additional period” that may be applied for by a plaintiff to
extend the time period for filing the AOM renders a 120-day
deadline from the filing of the relevant answer (the original 60
day period, plus an additional sought-and-granted-for-good-cause
period not exceeding 60 days) an “end of the line . . . dropdead date,” Douglass v. Obade, 359 N.J. Super. 159, 160 (App.
Div. 2003), or, in other words, “an outer time limit . . .
beyond which no extension could be granted,” Familia v. Univ.
Hosp., 350 N.J. Super. 563, 569 (App. Div. 2002).
The Third Circuit has required the filing of an AOM in
appropriate cases within 120 days of the filing of the relevant
answer, Lee v. Thompson, 163 F. App’x 142, 144 (3d Cir. 2006)
(internal citations omitted), and has ruled that “the
consequences of a failure to file [an AOM] shall be the same as
those of a failure to state a claim[,]” Chamberlain v. Giampapa,
210 F.3d 154, 160 (3d Cir. 2000) (internal citations omitted).
However, as Plaintiff states in her Response, “compliance
with the [AOM] Statute is excused where ‘common knowledge makes
apparent a claim’s merit.’” [Docket Item 47 at 9, citing Kindig
v. Gooberman, 149 F. Supp. 2d 159, 163 (D.N.J. 2001).] AOMs are
“not required in common knowledge cases,” Hubbard v. Reed, 168
8

N.J. 387, 396, where “jurors’ common knowledge as lay persons is
sufficient to enable them, using ordinary understanding and
experience, to determine a defendant’s negligence without the
benefit of specialized knowledge or experts.” Estate of Chin by
Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999). “Only
in the unusual medical malpractice case will the common
knowledge doctrine be invoked.” Id. at 469 (internal citations
omitted). It “is appropriately invoked where the carelessness of
the defendant is readily apparent to anyone of average
intelligence and ordinary experience.” Id. (internal citations
omitted).
Common knowledge doctrine cases have included those: where
a dentist caused a patient’s death by administering anesthesia
without asking about the patient’s history of hypertension,
Sanzari v. Rosenfeld, 34 N.J. 128 (1961); where a doctor failed
to inform a patient about a needle left in the patient’s body
after a medical procedure, Tramutola v. Bortone, 118 N.J. Super
503, 512-13 (App. Div. 1972); where a doctor applied a caustic
liquid in treating a patient after a rhinoplasty, thereby
disfiguring her, Becker v. Eisenstodt, 60 N.J. Super. 240 (App.
Div. 1960); where a dentist extracted the wrong tooth, Steinke
v. Bell, 32 N.J. Super. 67, 70 (App. Div. 1954); where a
pharmacist gave a customer a Prednisone (a steroid) instead of

9

the prescription of Primidone (an anti-seizure medication) that
the customer had presented, Bender v. Walgreen Eastern Co.,
Inc., 399 N.J. Super. 584 (App. Div. 2008); and where a medical
instrument, incorrectly hooked up, introduced air into a
patient’s body and bloodstream, thereby causing a fatal air
embolism, Chin, 160 N.J. at 471.
In Natale v. Camden Cty. Corr. Facility, 318 F.3d 575 (3d
Cir. 2003), the court applied the common knowledge doctrine and
excused the failure to file an AOM where an inmate at the Camden
County Jail alleged medical malpractice when Prison Health
Services at the Jail failed to administer insulin to him, a
diabetic, during the first twenty-one hours of his
incarceration, stating: “While laypersons are unlikely to know
how often insulin-dependent diabetics need insulin, common sense
– the judgment imparted by human experience – would tell a
layperson that medical personnel charged with caring for an
insulin-dependent diabetic should determine how often the
diabetic needs insulin. No special expertise or expert testimony
is needed to show, at the outset of a case, that the claim is
not frivolous.” Id. at 580.
In Mora v. U.S. Dep’t of Homeland Sec. Immigration and
Customs Enforcement, No. 11-3321, 2013 WL 5180041, at *1, *7
(D.N.J. Sept. 13, 2013), the court applied the common knowledge

10

doctrine where a person held in ICE custody complained that,
after having been assaulted while in custody and sustaining
“serious injuries throughout his entire body,” 2013 WL 5180041
at *1, “he was never treated or given basic medical care for his
injuries,” finding relevant and analogous a precedent holding
that “a physician’s failure to diagnose a plaintiff’s injuries .
. . falls within the common knowledge exception.” 2013 WL
5180041 at *7 (citing Bullock v. Ancora Psychiatric Hosp, No.
10-1412, 2011 WL 3651352, at *12 (D.N.J. Aug. 18, 2011)).
In Grimes v. Corr. Med. Servs., No. 08-567, 2010 WL
503031, at *4 (D.N.J. Feb. 8, 2010), the court ruled that a
group of inmates’ claims of medical malpractice against the
jail’s medical services provider fell “within thecommon
knowledge exception” because each plaintiff alleged “that the
defendants failed to provide them with their prescribed
medication in a timely manner[,]” citing other precedents where
courts found that the common knowledge exception applied where
defendants failed to timely provide plaintiffs with their
prescribed medicines, or failed to follow the medical
instructions of the plaintiffs’ treating specialists. See
Jackson v. Fauver, 334 F. Supp. 2d 697, 743 (D.N.J. 2004); Bryan
v. Shah, 351 F. Supp. 2d 295, 302 (D.N.J. 2005); and Lopez v.

11

Corr. Med. Servs., No. 04-2155, 2006 WL 1722584, at *4 (D.N.J.
June 20, 2006).
However, as Defendant states in her reply [Docket Item 48],
the above precedent does not support the contention that failure
to evaluate properly Ms. Allen’s psychiatric or psychological
state upon her admission to Cumberland County Jail, as the
Amended Complaint alleges Garcia did, is similarly analogous so
as to fall under the common knowledge exception.
The only case which even arguably supports Plaintiff’s
contention that this situation should fall within the common
knowledge doctrine, of which this Court is aware, is Chin. In
Chin, the allegation was that a medical device was hooked up
improperly: it introduced gas rather than liquid into a
patient’s body for the purposes of a diagnostic test. Although
the introduction of liquid would have been safe, the
introduction of gas in its place led to a fatal air embolism.
160 N.J. at 460. However, the Court finds Chin distinguishable
on its facts because (1) the explanation of in what respect the
hook-up of the instrument (a hysteroscope) was improper was
apparent to the laypersons on the jury – it introduced gas
rather than liquid, and (2) the nature of that impropriety was
obviously and clearly connected to the harm suffered by the
decedent.

12

In this case, the sole basis for the allegations of
professional negligence against Garcia appears to be that she
failed to evaluate Ms. Allen “properly” with respect to her
mental health during Ms. Allen’s intake into Cumberland County
Jail, and that Ms. Allen (presumably) hanged herself between one
and two days later. This is not the case where Garcia failed to
evaluate Ms. Allen at all, or Garcia ignored mention of or
reference to suicidal thoughts or ideation, or evaluated only
Ms. Allen’s physical status and not her mental health or wellbeing. Such a claim could, perhaps, fall under the common
knowledge exception. But without an elucidation of what made
Garcia’s evaluation improper, and without clarity as to how that
alleged breach of Garcia’s duty led to the harm complained of, a
jury of laypersons would not be able, “using ordinary
understanding and experience, to determine [Garcia’s] negligence
without the benefit of specialized knowledge or experts.” Chin
at 469. An expert, of the type specified by the AOM Statute, is
precisely what lay finders of fact would need: to describe the
standard of nursing care applicable to the evaluation of Ms.
Allen under these circumstances, and that there is a reasonable
probability that Garcia breached that standard.
Because the Court finds that “jurors, using ordinary
understanding and experience and without the assistance of an

13

expert” would not be able to determine whether Garcia was
negligent, and because the “threshold of merit” called for by
the AOM statute is not “readily apparent from a reading of the
[P]laintiff’s complaint[,]” Hubbard at 395, the Court will
decline to apply the common knowledge.
Accordingly, the Court finds that Plaintiff failed to serve
and file an AOM within 60 days (or 120 days) from the date of
the filing of Garcia’s answer, as she was required to do under
New Jersey law; the Court will not excuse such failure. For that
reason, summary judgment is granted to Garcia with respect to
Plaintiff’s claims based on Garcia’s alleged professional
negligence. Such claims shall be dismissed with prejudice.

IV.

CONCLUSION
For the reasons discussed herein, Defendant’s motion will

be granted. The accompanying Order will be entered.

June 27, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

14