BROWN v. UNITED STATES OF AMERICA et al

Filing 60

OPINION FILED. Signed by Judge Renee Marie Bumb on 3/21/17. (js)

[Docket Nos. 30, 38, 59]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ANDREW BROWN,
Plaintiff,

Civil No. 15-7734 (RMB/JS)
OPINION

v.
UNITED STATES OF AMERICA,
Defendant.

APPEARANCES:
Andrew Brown
Pro Se Plaintiff
Anne B. Taylor, Esq.
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorney for Defendant United States of America
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment by pro se Plaintiff Andrew Brown (the
“Plaintiff”) [Docket No. 30], the Motion for Summary Judgment by
Defendant United States of America (the “Defendant”) [Docket
No. 38], and the Motion for “Leave to Depose & Supplement” by
Plaintiff [Docket No. 59].

For the reasons set forth herein,

Plaintiff’s Motion for Summary Judgment will be denied,
Defendant’s Motion for Summary Judgment will be denied without

1

prejudice, and Plaintiff’s Motion for Leave to Depose &
Supplement will be administratively terminated as premature.
I.

FACTUAL AND PROCEDURAL BACKGROUND1
This matter stems from the medical treatment Plaintiff

received for an inguinal hernia while incarcerated, which
Plaintiff claims was deficient.

Throughout the relevant time

period, Plaintiff was a federal inmate at FCI Fairton.

Def.

SOMF ¶ 1 [Docket No. 38-1].
Plaintiff first complained of pain caused by a hernia in
his left groin on January 29, 2013.

Id. ¶ 2.

The medical staff

at FCI Fairton provided Plaintiff with a hernia belt “to prevent
progression of hernia” and instructed Plaintiff on how to use
the belt.

Id.

On March 5, 2013, Plaintiff was medically

evaluated for reports of pain due to his hernia.

The medical

records note that Plaintiff complained of pain and “wants
[hernia] repaired.”

Def. Ex. A p. 33 [Docket No. 56].

Plaintiff was referred for evaluation of the “need for surgical
repair of inguinal hernia.”

Id. p. 34.

Thereafter, on March

14, 2015, the Fairton Utilization Review Committee (the “URC”)
referred Plaintiff’s initial surgical consultation to the
Fairton clinical director for evaluation.

1

Def. SOMF ¶ 5.

To the extent that the parties agree on particular facts,
the Court relies upon Defendant’s Statement of Material Facts
Not in Dispute [Docket No. 38-1]. The Court will rely upon the
record for disputed facts.
2

Upon examination on April 5, 2013, Plaintiff complained of
“pain on hernia” and “insist[ed] on getting surgery.”
Ex. A p. 29.

Def.

The medical records indicate that Plaintiff was

told to wear his hernia belt at all times and perform certain
prescribed exercises.

He was also advised that “this surgery is

elective; it will be prioritized based on presentation.
monitor hernia on a regular basis.”

Id.

Will

On April 29, 2013, the

URC considered Plaintiff as a candidate for surgical
consultation.

Def. SOMF ¶ 8.

The following day, the clinical

director decided to defer any referral.

Id.

On June 6, 2013, Plaintiff complained that his hernia was
“killing” him and that he was “in a great deal of pain [and]
need[ed] surgery to fix this problem and improve [his] quality
of life.”

Def. Ex. B p. 55.

He was advised that he would be

seen shortly and to keep an eye on the call out list.
¶¶ 9-10.

Plaintiff was examined on June 13, 2013.

Def. SOMF

He

complained of pain in his left groin area from his hernia.

He

reported that the hernia caused him pain when he sneezed and
exercised and that the pain affected his quality of life.
Ex. A p. 23.

The medical records state: “Educated about plan.

As of now surgery consult was deferred.
monitoring.

Def.

Will continue

Encouraged to use hernia belt.”

Id. p. 24.

Plaintiff continued to complain of pain and discomfort
associated with his hernia throughout July 2013.

3

Def. SOMF

¶¶ 12-15.

On July 14, 2013, Plaintiff requested surgery and was

advised that he would be seen in one week.

Id. ¶ 13.

Upon

examination on July 24, 2013, Plaintiff complained of daily pain
in the left groin area.

The medical report states that the

hernia remained without obstruction or gangrene, that it was
reducible, and that a surgical consult would be done again.
¶ 16.

Id.

Two days later, the URC found that Plaintiff’s hernia

presented a medically necessary, non-emergent health concern.
Plaintiff’s case was referred to the Fairton clinical director
for evaluation.
29, 2013.

Id. ¶ 17.

Plaintiff was examined again on July

The medical record for this visit states: “Case

discussed in URC and was decided to have an evaluation by CD to
determine need for surgery.

Left inguinal hernia is small,

easily reducible and no report that the condition has interfered
with his activities of daily living.
condition in 6 months.”

Will re evaluate [sic]

Def. Ex. A p. 19.

On September 14, 2013, Plaintiff requested surgical repair
of his hernia because it was affecting his ability to exercise
and because the “only cure is surgery.”

Def. SOMF ¶ 20.

The

following week, Plaintiff was examined and complained “that his
hernia is affecting the quality of his life.”

Id. ¶ 21.

The

hernia was observed to be reducible and without obstruction.
Id.

On October 13, 2013, Plaintiff again complained of pain due

to his hernia.

Id. ¶ 22.

Plaintiff was seen the following

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week, “complaining about his hernia.”

Id. ¶ 23.

The medical

records indicate that Plaintiff “was evaluated by the CD who did
not recommend further treatment.

Plaintiff was referred to the

clinical director again because his surgery evaluation had been
denied twice even though Plaintiff believed he should get the
operation.”

Id.

On October 29, 2013, the clinical director

evaluated Plaintiff and recommended a surgical consultation for
repair.

Id. ¶ 24.

On December 9, 2013, Plaintiff was advised

that his medical consult for surgical repair of his hernia was
referred to the regional reviewer for approval.

Id. ¶ 28.

On

December 31, 2013, Plaintiff’s medical consult for hernia repair
was approved by the regional reviewer and the consult was
prioritized as “medically necessary – non-emergent.”

Def. Ex. F

p. 145.
Upon examination on January 15, 2014, Plaintiff’s hernia
was noted to be “inguinal, w/o obstruction or gangrene.”
SOMF ¶ 30.

Def.

At that visit, Plaintiff was “educated that the

request for hernia repair surgery has been approved by regional
reviewer, pending scheduling, advised to watch call out.”

Id.

On March 5, 2014, Plaintiff was once again told that his hernia
repair had been approved and was pending scheduling.

Id. ¶ 32.

On April 7, 2014, Plaintiff was examined for his hernia pain.
He was advised that his consultation with an outside specialist
was being scheduled.

Id. ¶ 34.

On May 8, 2014, Dr. Nauveed

5

Iqbal examined Plaintiff upon referral by the FCI Fairton
clinical director.

Dr. Iqbal noted that Plaintiff had a hernia

“which will require surgical intervention.

The procedure was

discussed in detail and all questions and concerns addressed.
Surgery will be scheduled on an outpatient basis.”

Def. Ex. D

p. 134.
On June 25, 2014, Plaintiff visited health services to
inquire as to his hernia repair.

Plaintiff continued to

complain of pain and was advised to continue taking pain
medications and wear his hernia belt at all times.

Def. SOMF

¶ 39.

Plaintiff continued to complain of hernia pain in July

2014.

Id. ¶ 40.

On August 8, 2014, the URC designated

Plaintiff’s surgical consult as “medically necessary – routine”
and informed Plaintiff that the consult had been approved at the
local level.

Id. ¶ 42.

On or around September 16, 2014, Plaintiff’s hernia repair
surgery was scheduled for October 3, 2014.

Id. ¶ 44.

Plaintiff

underwent surgical repair of his inguinal hernia on October 3,
2014.

Id. ¶ 46.

On October 10, 2014, Plaintiff’s staples were

removed and his wound site appeared to be healing well.
¶ 49.

Id.

On October 15, 2014, Plaintiff reported blood at the

incision site, but examination revealed that the site continued
to heal well.

Id. ¶ 50.

According to Plaintiff, he began

experiencing pain in his left testicle, directly below the

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location of his hernia, since the hernia repair surgery.
Aff. ¶ 13 [Docket No. 45].

Pl.

Plaintiff did not suffer from such

pain prior to the hernia repair surgery and the pain persists to
date.

Id. ¶¶ 15-16.
On or around November 10, 2014, Plaintiff filed an

administrative tort claim related to his allegedly inadequate
medical treatment.

Def. SOMF ¶ 51.

On October 27, 2015,

Plaintiff filed the instant action in federal court, along with
an application to proceed in forma pauperis and an application
for appointment of pro bono counsel [Docket No. 1].

This Court

screened the Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B),
and permitted Plaintiff’s Federal Tort Claims Act (“FTCA”) claim
against the United States of America to proceed, but dismissed
all other claims [Docket Nos. 2, 3].

The Court granted

Plaintiff’s request to proceed in forma pauperis, but denied
Plaintiff’s request for pro bono counsel without prejudice.

Id.

Defendant answered the Complaint on February 29, 2016 [Docket
No. 11].
Plaintiff renewed his motion to appoint pro bono counsel on
March 16, 2016 [Docket No. 14].

On April 20, 2016, Plaintiff

moved to amend his Complaint to reinstate claims that had been
dismissed by this Court upon screening [Docket No. 16].
Thereafter, on May 23, 2016, Plaintiff moved to appoint an
expert witness [Docket No. 19].

The Court denied Plaintiff’s

7

motion to appoint pro bono counsel on August 2, 2016 [Docket
Nos. 25, 26].
Plaintiff filed the instant Motion for Summary Judgment on
August 15, 2016 [Docket No. 30], and renewed his request for the
appointment of pro bono counsel on September 1, 2016 [Docket
No. 35].

On September 9, 2016, Defendant filed its Motion for

Summary Judgment [Docket No. 38].

In connection with its Motion

for Summary Judgment, Defendant submitted an expert report from
Dr. Nathaniel R. Evans II, who opined that the medical treatment
Plaintiff received at FCI Fairton for his inguinal hernia did
not deviate from the applicable standard of care [Docket
No. 38-8].

While Plaintiff’s previous motion to appoint

pro bono counsel remained pending, Plaintiff once again moved to
appoint pro bono counsel on October 11, 2016 [Docket No. 43].
On December 9, 2016, the Court denied Plaintiff’s motions to
appoint pro bono counsel, as well as Plaintiff’s motion to
appoint an expert witness [Docket Nos. 52, 53].

On December 13,

2016, the Court denied Plaintiff’s motion to amend his Complaint
[Docket No. 54].

Subsequently, on January 22, 2017, Plaintiff

notified the Court that he was no longer incarcerated [Docket
No. 57].

On March 9, 2017, Plaintiff submitted a motion for

leave to depose Defendant’s medical expert, Dr. Evans, and to
supplement the summary judgment record [Docket No. 59].

8

The Court now addresses Plaintiff’s Motion for Summary
Judgment and Motion for Leave to Depose & Supplement, as well as
Defendant’s Motion for Summary Judgment.
II.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).2

Fed. R.

A fact is “material” if it will affect the

outcome of the suit under the governing law[.]”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corps., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).

However, a mere

“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

2

The Third Circuit has instructed that challenges based
upon a plaintiff’s failure to timely submit an appropriate
Affidavit of Merit, as required by N.J.S.A. § 2A:53A-29, should
be brought as motions for summary judgment as such challenges
necessarily involve matters outside the pleadings. Nuveen Mun.
Trust ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith
Brown, P.C., 692 F.3d 283, 304 n. 13 (3d Cir. 2012).
9

Furthermore, a court need not adopt the version of facts
asserted by the nonmoving party if those facts are “utterly
discredited by the record [so] that no reasonable jury” could
believe them.

Scott v. Harris, 550 U.S. 372, 380 (2007).

In

the face of such evidence, summary judgment is still appropriate
“where the record . . . could not lead a rational trier of fact
to find for the nonmoving party[.]”

Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “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.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.
P. 56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”

Anderson, 477 U.S. at 250 (citing Fed. R. Civ.

P. 56(e)).

The nonmovant’s burden is rigorous: he “must point

to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
judgment.

Orsatti v. New Jersey State Police, 71 F.3d 480, 484

(3d Cir. 1995); accord Jackson v. Danberg, 594 F.3d 210, 227 (3d

10

Cir. 2010) (citing Acumed LLC v. Advanced Surgical Servs., Inc.,
561 F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and conjecture
may not defeat summary judgment.”).
III.

ANALYSIS
A. Plaintiff’s Motion for Summary Judgment
The FTCA “does not itself create a substantive cause of

action against the United States; rather, it provides a
mechanism for bringing a state law tort action against the
federal government in federal court.

Accordingly, the extent of

the United States’ liability under the FTCA is generally
determined by reference to state law.”

Lomando v. United

States, 667 F.3d 363, 372-73 (3d Cir. 2011) (internal quotations
and citations omitted).

As the actions underlying Plaintiff’s

claim arose in New Jersey, New Jersey state law governs his
claim for medical malpractice/negligence.
“In order to prevail on a negligence claim in New Jersey,
plaintiff must prove (1) a duty of care, (2) a breach of that
duty, (3) proximate cause, and (4) actual damages.”

Smith v.

Sci. Games Corp., 461 F. App’x 151, 153 (3d Cir. 2012) (citing
Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)).

“A medical

malpractice case is a kind of tort action in which the
traditional negligence elements are refined to reflect the
professional setting of a physician-patient relationship.

Thus,

a plaintiff in a malpractice action must prove the applicable

11

standard of care; that a deviation has occurred; and that the
deviation proximately caused the injury.”

Verdicchio v. Ricca,

179 N.J. 1, 23 (2004).
Plaintiff filed a Motion for Summary Judgment on August 15,
2016, seeking the entry of judgment in his favor because “[t]he
undisputed facts of the instant case are that (1) Plaintiff was
diagnosed with an inguinal hernia on January 29, 2013; (2) that
Plaintiff’s inguinal hernia was not repaired until October 3,
2014; and (3) damage resulted from the ‘delayed surgical
intervention.’”

Pl. MSJ Br. at 3 [Docket No. 30].

Plaintiff,

however, has neither addressed nor identified evidence to
establish the elements of ordinary negligence or medical
malpractice under New Jersey state law, as set forth above.
Accordingly, Plaintiff’s Motion for Summary Judgment is denied.3
B. Defendant’s Motion for Summary Judgment
On September 9, 2016, Defendant moved for summary judgment
on two grounds.

First, Defendant seeks dismissal of Plaintiff’s

medical malpractice claim because Plaintiff has not timely filed
an Affidavit of Merit, as required by N.J.S.A. § 2A:53A-29.

3

Additionally, as Plaintiff concedes, see Pl. Opp. Br. at 3
[Docket No. 45], Plaintiff’s Motion for Summary Judgment did not
comply with District of New Jersey Local Civil Rule 56.1(a),
which requires a movant to furnish a statement of material facts
not in dispute in connection with a motion for summary judgment.
“A motion for summary judgment unaccompanied by a statement of
material facts not in dispute shall be dismissed.” L. Civ.
R. 56.1(a).
12

Second, Defendant contends that summary judgment is appropriate
because the evidence establishes that the treatment provided to
Plaintiff for his hernia meets the standard of care and
Plaintiff has not produced any evidence to rebut Defendant’s
expert testimony.
The New Jersey Affidavit of Merit statute, N.J.S.A.
§ 2A:53A-26, et seq., 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.
“Absent the plaintiff’s showing of one of four limited
exceptions, if the affidavit of merit is not filed within 60 (or
120) days, the failure to file requires dismissal of the action
with prejudice.”
§ 2A:53A-29).

Nuveen, 692 F.3d at 305 (citing N.J.S.A.

“The four limited exceptions are: (i) a statutory

exception regarding lack of information; (ii) a ‘common
knowledge’ exception; (iii) substantial compliance with the

13

affidavit-of-merit requirement; or (iv) ‘extraordinary
circumstances’ that warrant equitable relief.”

Id.

Accordingly, barring the application of one of these exceptions,
Plaintiff was required to submit his Affidavit of Merit by
April 29, 2016 (60 days after Defendant filed its Answer) or,
upon a finding of good cause, no later than June 28, 2016 (120
days after Defendant filed its Answer).
To date, Plaintiff has not submitted an Affidavit of Merit.
Plaintiff, however, has repeatedly and consistently requested
the appointment of pro bono counsel for the purpose of assisting
him with securing the requisite affidavit.

See Pl. Motions to

Appoint Pro Bono Counsel [Docket Nos. 1-3, 14, 35, 43].
Plaintiff also has moved for the appointment of an expert
witness to substantiate his claim.
Witness [Docket No. 19].

Pl. Motion to Appoint Expert

Throughout this action, Plaintiff has

explained that his incarceration and indigence have impeded his
ability to obtain an Affidavit of Merit and that the appointment
of counsel would enable him to make this threshold showing.
Accordingly, the Court considers the purpose of the Affidavit of
Merit statute and whether any of the four exceptions excuse
Plaintiff’s timely compliance with the requirement.
“The New Jersey legislature enacted the affidavit of merit
statute as part of a tort reform package ‘designed to strike a
fair balance between preserving a person’s right to sue and

14

controlling nuisance suits.’”

Natale v. Camden Cty. Corr.

Facility, 318 F.3d 575, 579 (3d Cir. 2003) (emphasis added)
(quoting Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001)).
To that end, the Affidavit of Merit statute’s objective is “to
require plaintiffs in malpractice cases to make a threshold
showing that their claim is meritorious, in order that meritless
lawsuits readily could be identified at an early stage of
litigation.”

Nuveen Mun. Trust v. Withumsmith Brown P.C., 752

F.3d 600, 603 (3d Cir. 2014) (quoting Couri v. Gardner, 173 N.J.
328, 333 (2002)); accord Natale, 318 F.3d at 580 (affidavit of
merit requirement “curtail[s] frivolous litigation without
preventing access to the courts for meritorious claims.”).
Accordingly, “[t]he purpose of the Affidavit of Merit statute is
to weed out frivolous complaints, not to create hidden pitfalls
for meritorious ones.”

Buck v. Henry, 207 N.J. 377, 383 (2011).

Moreover, the requirement “was not intended to encourage
gamesmanship or a slavish adherence to form over substance.”
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154
(2003).
There is no evidence or argument to support the application
of the first three exceptions: lack of information, common
knowledge, and substantial compliance.

The Court, therefore,

turns to whether Plaintiff has demonstrated “‘extraordinary

15

circumstances’ that warrant equitable relief.”

Nuveen, 692 F.3d

at 305.
Courts have “yet to define the full scope of extraordinary
circumstances as an equitable remedy for failure to comply with
the statute.”

Vitale v. Carrier Clinic, Inc., 409 F. App’x 532,

534 (3d Cir. 2010) (quoting Paragon Contractors, Inc. v.
Peachtree Condo. Ass’n, 202 N.J. 415, 423 (2010)). It is clear,
however, that “[w]hat constitutes an ‘extraordinary
circumstance’ is a fact-sensitive analysis; in short, the
circumstances must be ‘exceptional and compelling.’”

Seldon v.

Rebenack, Aronow & Mascolo, LLP, 541 F. App’x 213, 215 (3d Cir.
2013) (citing Chamberlain v. Giampapa, 210 F.3d 154, 162
(3d Cir. 2000)).

“‘[E]xtraordinary circumstances’ may justify

an additional extension of time, provided that the circumstances
do not evidence ‘mere carelessness or lack of proper
diligence.’”

Fontanez v. United States, 24 F. Supp. 3d 408, 413

(D.N.J. 2014) (quoting Chamberlain, 210 F.3d at 162).

To excuse

timely compliance with the Affidavit of Merit requirement due to
extraordinary circumstances, “the Court must determine that
Plaintiff ‘has provided [an] adequate excuse for [his] failure
to comply with the [Affidavit of Merit] statute.”

Id. (quoting

Chamberlain, 210 F.3d at 162).
In finding that extraordinary circumstances excused the
timely filing of an Affidavit of Merit by a pro se plaintiff who

16

was incarcerated during the statutory 120-day period but
recently released, the court in Fontanez explained:
In the context of attorney conduct, courts ascertain
whether the failure to provide a timely affidavit arose
out of circumstances beyond or within counsel’s control:
the first supporting an extension, with the second
militating against an extension. Here, the failure to
file a timely affidavit of merit rests solely upon pro se
Plaintiff. Courts in the pro se context have considered
whether the failure to comply with the filing deadline
resulted from ‘carelessness, lack of circumspection,
lack of diligence, [] ignorance of the law[,]’ or failure
to seek legal advice.
None of these reasons alone,
however, suffice to ‘excuse failure to meet the filing
deadline.’ Therefore, pro se status does not, without
more, establish extraordinary circumstances.
Fontanez, 24 F. Supp. 3d at 414 (internal citations omitted).
Here, Plaintiff has not demonstrated carelessness, lack of
circumspection, lack of diligence, ignorance of the law, or
failure to seek legal advice.

To the contrary, Plaintiff has

demonstrated care and attention in his submissions to the Court.
Moreover, Plaintiff has repeatedly and consistently requested
the appointment of pro bono counsel to assist him in obtaining
an Affidavit of Merit and securing expert testimony to pursue
his medical malpractice action.
These requests began during the relevant statutory period.
For example, in his initial application for pro bono counsel,
Plaintiff explained: “I will need a doctor to attest to my
claims having merit: that is, obtaining a certificate of merit
(“COM”).

I cannot present the COM without counsel, as I am not

17

qualified to do that.

It has to be done by a doctor.

counsel is better equipped to handle that.”
Counsel [Docket No. 1-3].

And

Pl. App. Pro Bono

Given the early stage of the case,

the Court denied that request without prejudice to Plaintiff
renewing his request “if it becomes apparent that counsel is
needed.”

Screening Op. at 14 [Docket No. 2].

On March 16,

2016, Plaintiff renewed his application for pro bono counsel
based largely on his inability to obtain an Affidavit of Merit
while incarcerated and without an attorney.
Appoint Pro Bono Counsel [Docket No. 14].

Pl. Motion to

Thereafter, on April

20, 2016, still within the original 60-day statutory period,
Plaintiff filed a motion to amend his complaint [Docket No. 16],
which Plaintiff apparently believes restarted the statutory
period during which he must submit an Affidavit of Merit.
Pl. Opp. Br. at 6, 8-9.

See

Subsequently, on May 23, 2016, while

his motions to appoint pro bono counsel and to amend his
Complaint remained pending, Plaintiff moved for the appointment
of an expert witness to assist in establishing the relevant
standard of care for the treatment of an inguinal hernia [Docket
No. 19].
After the 120-day statutory period elapsed, on August 2,
2016, the Court denied Plaintiff’s motion to appoint pro bono
counsel [Docket Nos. 25, 26].

Shortly thereafter, Plaintiff

filed the instant Motion for Summary Judgment [Docket No. 30].

18

Approximately two weeks later, Plaintiff filed a renewed motion
to appoint pro bono counsel [Docket No. 35], in which he
explained that “[a] lawyer will be best suited . . . for the
task of dealing with an expert witness.
prepared for this type of task.

Plaintiff is ill

Moreover, Plaintiff is not

familiar with the F.Rules Of Evidence [sic].

Thus, PLaintiff

[sic] is in dire need of pro bono counsel in the coming
proceedings.”

On October 11, 2016, Plaintiff filed an

additional motion for appointment of counsel, in which he argued
that his “imprisonment will greatly limited his ability to
litigate” as “[t]he issues involved in this case will require an
affidavit of merit to establish a deviation from the standard of
care.”

[Docket No. 43].

On December 9, 2016, the Court denied

Plaintiff’s motions to appoint pro bono counsel and appoint an
expert witness [Docket Nos. 52, 53].

On December 13, 2016, the

Court denied Plaintiff’s motion to amend [Docket No. 54].
As in Fontanez, “the Court does not construe Plaintiff’s
position to be one of carelessness, lack of circumspection, or
lack of diligence . . . .

Nor does Plaintiff’s proffer

demonstrate the ignorance of the law or simply a failure to
act.”

24 F. Supp. 3d at 415.

Rather, the record establishes

that Plaintiff was limited in his ability to contact and retain
an expert to prepare an Affidavit of Merit due to his
incarceration and indigence throughout the statutory period

19

during which he was required to file an Affidavit of Merit--not
because his claim lacks merit or because of carelessness or lack
of diligence.

Indeed, the record also demonstrates that

Plaintiff diligently and repeatedly requested the appointment of
pro bono counsel in order to obtain the requisite affidavit.

He

consistently explained that his incarceration, indigence, and
unfamiliarity with the law made it difficult for him to find an
expert and obtain an Affidavit of Merit.

Plaintiff was aware of

the requirement and sought reasonable assistance in complying.
It is clear to this Court that Plaintiff’s “incarceration during
the period within which to submit a timely affidavit undoubtedly
frustrated Plaintiff’s ability to acquire an affidavit of
merit.”

Id. at 416.

In determining whether the unique factual pattern of this
case warrants a finding of extraordinary circumstances, this
Court is “guided by the policy of [the Third Circuit] and New
Jersey courts favoring the disposition of cases on their merits
and the New Jersey Supreme Court’s indication that the
‘extraordinary circumstances’ exception aims to temper the
draconian results of an inflexible application of the statute by
granting certain latitude to non-compliant plaintiffs.”
Fontanez, 24 F. Supp. 3d at 416 (internal citations and
quotations omitted); see also In re Princeton Office Park, L.P.,
649 F. App’x 137, 141 n. 3 (3d Cir. 2016) (affirming district

20

court “rul[ing] based on the merits, rather than on a
technicality, which is consistent with our exhortation that
cases should generally be resolved on their merits.”) (citing
Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)).
In light of the unique factual and procedural history of
this matter, including Plaintiff’s diligence in requesting
counsel and the appointment of an expert witness, as well as
Plaintiff’s incarceration and indigence during the relevant
statutory period, the Court finds that extraordinary
circumstances warrant an extension of time to file an Affidavit
of Merit.

See, e.g., Dorval v. Ahsan, 2016 U.S. Dist. LEXIS

57290, *11-13 (D.N.J. Apr. 28, 2016) (“Courts in this district
have found extraordinary circumstances sufficient to permit an
extension of time to file an affidavit [of] merit when plaintiff
is a pro se prisoner, who has also encountered other
obstacles.”) (collecting cases); Ramirez v. Nugent, 2014 WL
7404048, at *4 (D.N.J. Dec. 30, 2014) (noting that “[a]t the
time the first Answer was filed, Plaintiff was proceeding pro
se, which restricted his access to outside medical professionals
who could provide a conforming Affidavit of Merit.”); Fontanez,
24 F. Supp. 3d at 416-17 (holding that “[t]hough neither
Plaintiff’s former incarceration nor pro se status suffice to
warrant an extension, standing alone, the cumulative impact of
Plaintiff’s circumstances--particularly when viewed through the

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lens of Plaintiff’s efforts during the sixty-day extension-support a limited extension of time.”).
To find otherwise would contravene the Affidavit of Merit
statute’s purpose of “curtail[ing] frivolous litigation without
preventing access to the courts for meritorious claims.”
Natale, 318 F.3d at 580.

Thus far, Plaintiff has been

incarcerated and unable to obtain a lawyer or expert to assess
the merits of his case due to no fault of his own.

Equity

dictates that Plaintiff be afforded a genuine opportunity to
present his case.
Additionally, for the following reasons, the Court shall
sua sponte appoint pro bono counsel for the limited purpose of
obtaining the requisite Affidavit of Merit.

Plaintiff’s time to

submit an Affidavit of Merit shall be extended for a sixty-day
period from the date pro bono counsel is assigned and the
appointment is accepted.

See, e.g., Dorval, 2016 U.S. Dist.

LEXIS 57290, *13-14; Robins v. Robins-McCafferty, 2015 WL
6951693, at *5 (D.N.J. Nov. 9, 2015).
The Third Circuit has made clear that “indigent civil
litigants possess neither a constitutional nor a statutory right
to appointed counsel.”
(3d Cir. 2002).

Montgomery v. Pinchak, 294 F.3d 492, 498

Congress, however, has granted district courts

the authority to request appointed counsel for indigent civil
litigants, pursuant to 28 U.S.C. § 1915(e)(1).

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Id.

The Third

Circuit “has interpreted § 1915(e) as affording district courts
‘broad discretion’ to determine whether the appointment of
counsel in a civil case would be appropriate.

The Tabron court

found that the decision to appoint counsel may be made at any
point in the litigation, and may be made by a district court sua
sponte.”

Id. (citing Tabron v. Grace, 6 F.3d 147, 153, 156

(3d Cir. 1993)).
The threshold inquiry in determining whether pro bono
counsel should be appointed is whether Plaintiff’s case has some
arguable merit in fact and law.

Cuevas v. United States, 422

F. App’x 142, 144 (3d Cir. 2011) (citing Tabron, 6 F.3d at 155).
In previous Opinions in this action, this Court has already
concluded that Plaintiff’s case has at least some arguable merit
in fact and law.

See, e.g., Screening Op. at 14; Opinion

Denying Pro Bono Counsel at 6 [Docket No. 52].

Once the

threshold showing has been made, the Court considers the
following factors: “(1) the plaintiff’s ability to present his
or her own case; (2) the difficulty of the particular legal
issues; (3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue
investigation; (4) the plaintiff’s capacity to retain counsel on
his or her behalf; (5) the extent to which a case is likely to
turn on credibility determinations; and (6) whether the case

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will require testimony from expert witnesses.”

Cuevas, 422 F.

App’x at 144-45 (citing Tabron, 6 F.3d at 155-57).
Turning to the first factor, the Court notes that, thus
far, Plaintiff has demonstrated an ability to litigate his own
case by filing motions and briefs, including an opposition brief
to Defendant’s Motion for Summary Judgment that is accompanied
by a properly supported response to Defendant’s statement of
undisputed material facts [Docket No. 45-1].

At this juncture,

however, Plaintiff’s case depends in its entirety upon his
ability to obtain an Affidavit of Merit and expert testimony.
The record demonstrates that Plaintiff has been unable to obtain
expert assistance in the form of an Affidavit of Merit or
testimony without counsel.

While the obstacles Plaintiff faced

while in prison may have been somewhat alleviated upon his
release, the Court nonetheless finds that these tasks may prove
exceedingly difficult for Plaintiff--an indigent pro se litigant
who has only recently been released from prison--without the
assistance of counsel.

See Robins, 2015 WL 6951693, at *4.

Without the assistance of counsel, Plaintiff will be unable to
obtain an Affidavit of Merit and, therefore, will be unable to
present his own case.

This factor, which is arguably the most

significant, Montgomery, 294 F.3d at 501, weighs in favor of the
appointment of pro bono counsel.

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Next, the Court reiterates that the legal issues involved
in this action are not particularly difficult or complex.
Plaintiff has demonstrated an ability to understand the legal
issues involved in this FTCA medical malpractice action.

This

factor weighs against the appointment of pro bono counsel.
Likewise, the degree to which factual will be necessary and
Plaintiff’s ability to pursue investigation weighs against the
appointment of counsel.

The majority of the factual

investigation is complete and Plaintiff was able to obtain his
medical records without counsel.
The Court turns to the fourth factor: whether Plaintiff can
retain counsel on his own behalf.

Plaintiff has demonstrated

his indigence and has been granted permission to proceed in
forma pauperis.

Accordingly, this factor weighs in favor of

appointing counsel.

The Court next assesses whether the case

will turn on credibility determinations.

The case is not simply

a “swearing contest”, as the bulk of the evidence in this action
is documentary evidence in the form of Plaintiff’s medical
records.

See Gordon v. Gonzalez, 232 F. App’x 153, 157 (3d Cir.

2007) (noting that, in considering whether a case will turn on
credibility determinations, “courts should determine whether the
case was solely a swearing contest”) (quoting Parham v. Johnson,
126 F.3d 454, 460 (3d Cir. 1997)).

Nevertheless, the Court

notes that, if Plaintiff is able to retain an expert that

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supports his position that the care he received deviated from
the applicable standard of care, the case may very well on the
credibility of the experts involved.

This factor somewhat

favors the appointment of pro bono counsel.

Finally, this

medical malpractice case will clearly require testimony from
expert witnesses, in addition to the Affidavit of Merit.

This

factor weighs in favor of the appointment of pro bono counsel.
See Montgomery, 294 F.3d at 504 (finding that need for medical
expert testimony “weighs heavily in favor of the appointment of
counsel”); Tabron, 6 F.3d at 156 (“appointed counsel may be
warranted where the case will require testimony from expert
witnesses.”).
Having considered the Tabron factors, the Court finds that
the appointment of pro bono counsel is appropriate.

At this

juncture, the Court appoints pro bono counsel only for the
limited purpose of assisting Plaintiff in obtaining an Affidavit
of Merit, if warranted.

If Plaintiff is able to timely secure

an Affidavit of Merit, the Court may then consider whether pro
bono counsel shall continue to represent Plaintiff for all
purposes.

See Dorval, 2016 U.S. Dist. LEXIS 57290, *14 n. 5.

On the other hand, if the investigation of the appointed
attorney reveals that Plaintiff is unable to obtain an Affidavit
of Merit to substantiate his case, the appointment shall not
prevent the attorney from filing a motion to withdraw as

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counsel.

See Robins, 2015 WL 6951693, at *5; Davidson v. Tan,

2011 WL 3841088, at *1 (D.N.J. Aug. 25, 2011).

Finally, if

Plaintiff is unable to timely obtain the requisite Affidavit of
Merit with the assistance of appointed counsel, Defendant may
renew its motion for summary judgment at the appropriate time.
See Dorval, 2016 U.S. Dist. LEXIS 57290, *14 n. 4.
In light of this Court’s ruling on the Affidavit of Merit
issue and the appointment of pro bono counsel, the Court finds
Defendant’s second argument--that the undisputed evidence
establishes that Plaintiff’s treatment met the standard of care
and that Plaintiff has not produced any evidence to rebut
Dr. Evans’ expert opinions--to be premature.

Defendant may

renew the argument at a later date, if appropriate, once the
Affidavit of Merit issue has been resolved.
C. Plaintiff’s Motion for Leave to Depose & Supplement
On or around January 22, 2017, Plaintiff was released from
prison [Docket No. 57].

Thereafter, on March 9, 2017, Plaintiff

filed a motion for “leave to depose & supplement” [Docket
No. 59], by which Plaintiff seeks leave to depose Defendant’s
expert, Dr. Evans, and to supplement the summary judgment
record.

Plaintiff requests “some leeway” from the Court and

notes that he “is no longer incarcerated and is in a better
position to move his case forward with the permission of the
Court.”

Id.

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In light of this Court’s appointment of pro bono counsel
for the purpose of securing an Affidavit of Merit and the
sixty-day extension of time within which to file such affidavit,
the Court will administratively terminate Plaintiff’s Motion for
Leave to Depose & Supplement as premature.

If, for example, no

timely Affidavit of Merit is submitted by Plaintiff’s appointed
counsel, the question of whether Plaintiff should be permitted
to depose Dr. Evans and supplement the record would be moot.
Accordingly, the Court finds that it is in the best interests of
judicial efficiency to defer the resolution of this motion until
such time that an Affidavit of Merit is submitted, demonstrating
that Plaintiff’s case can proceed.
IV.

CONCLUSION
Accordingly, for the foregoing reasons, Plaintiff’s Motion

for Summary Judgment is denied, Defendant’s Motion for Summary
Judgment is denied without prejudice, and Plaintiff’s Motion for
Leave to Depose & Supplement is administratively terminated as
premature.

An appropriate Order shall issue on this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: March 21, 2017

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