MENDOZA v. INSPIRA MEDICAL CENTER VINELAND et al

Filing 41

OPINION. Signed by Judge Noel L. Hillman on 11/13/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GLADYS MENDOZA, personal
representative of ELIAS
MENDOZA,

No. 1:16-cv-1337 (NLH/KMW)
OPINION

Plaintiff,
v.
INSPIRA MEDICAL CENTER
VINELAND, et al.,
Defendants. 1

APPEARANCES:
JAMES R. RADMORE
LAW OFFICES OF JAMES R. RADMORE, P.C.
TWO PENN CENTER PLAZA, SUITE 520
1500 JFK BOULEVARD
PHILADELPHIA, PA 19102
On behalf of Plaintiff
ELIZABETH A. WILSON
GROSSMAN, HEAVEY & HALPIN, P.C.
BRICK PROFESSIONAL COMPLEX
1608 HIGHWAY 88 WEST, SUITE 200
BRICK, NEW JERSEY 08724
On behalf of Defendant Inspira Medical Centers, Inc.
STEVEN F. DRAKE
DRAKE LAW FIRM, P.C.
29 NORTH SHORE ROAD
ABSECON, NEW JERSEY 08201
On behalf of Defendants Naeem Amin, M.D. and Kidney and
Hypertension Specialists, P.A.

1

Defendant Inspira Medical Centers, Inc. (“Inspira”) states
it was improperly pleaded as “Inspira Medical Center Vineland,
South Jersey Health Care, and Inspira Health Network, Inc.”

HILLMAN, District Judge
This is a medical malpractice action in which Plaintiff
asserts Decedent Elias Mendoza was negligently treated by
various physicians and medical providers.

On March 30, 2017,

this Court granted summary judgment in favor of Defendants Naeem
Amin, M.D., Kidney and Hypertension Specialists, P.A., and
Inspira.

Plaintiff argues for reconsideration of both motions.

For the reasons that follow, this Court will deny Plaintiff’s
Motion for Reconsideration.
I.
The Court takes its facts from its March 30, 2017 Opinion
granting summary judgment in favor of Defendants Dr. Amin,
Kidney and Hypertension Specialists, and Inspira.

On March 10,

2014, Decedent arrived in the Emergency Room of Inspira Medical
Center, complaining of shortness of breath.
admitted into the Intensive Care Unit.

Decedent was

While at Inspira,

Decedent underwent a cardiology consultation performed by
Defendant Andrew Zinn, M.D. 2 and a nephrology consultation
performed by Defendant Dr. Amin.

Dr. Amin is board certified in

Internal Medicine with a subspecialty in nephrology.
Plaintiff’s case largely rests on the following note entered in

2

Dr. Zinn did not move for summary judgment with the other
defendants and is not subject to this Motion for
Reconsideration.
2

Decedent’s Discharge Summary:
HOSPITAL COURSE: Over the course of the patient’s
hospital stay, he tolerated BiPAP and required dialysis.
Unfortunately he was unable to tolerate full treatments
and continued to build up fluid.
The patient
unfortunately had some difficulty receiving dialysis in
our intensive care unit due to staffing limitations,
which continued to exacerbate his continued difficulties
with his fluid overload state.
Plaintiff claims Decedent was negligently treated, which
resulted in brain and heart damage, eventually leading to
Decedent’s death on February 23, 2015.

As to Dr. Amin and

Defendant Kidney and Hypertension Specialists, the theory of
Plaintiff’s case appears to be that Dr. Amin’s “failure to
properly monitor” Decedent and “provide the necessary dialysis
on a timely basis” resulted in Decedent’s death.

As to Inspira,

Plaintiff’s theory appears to be that inadequate staffing
resulted in Decedent not timely receiving dialysis, which
constituted a deviation from the standard of care.
Plaintiff provided an Affidavit of Merit from Bruce D.
Charash, M.D.

The Affidavit of Merit stated Dr. Charash is “a

licensed, board certified Cardiologist and Internist” and that
his practice “has been substantially devoted to this specialty
for greater than five years.”

In the Affidavit of Merit, Dr.

Charash opined all Defendants’ treatment “fell outside
acceptable professional standards and treatment practices.”
The Court determined summary judgment was appropriate as to

3

Dr. Amin, Kidney and Hypertension Specialists, and Inspira.
Court summarizes its March 30, 2017 decision as follows.

The

The

Court found Dr. Charash had a subspecialty in cardiology,
whereas Dr. Amin had a subspecialty in nephrology.

The Court

held that the “kind-for-kind” requirement of N.J.S.A. 2A:53A-41
is equally applicable to subspecialties.

Accordingly, the Court

determined that, since Dr. Amin and Dr. Charash were not equally
credentialed, Plaintiff could not rely on Dr. Charash to
establish Dr. Amin and Kidney and Hypertension Specialists’
alleged deviation from the standard of care.
As to Plaintiff’s claim against Inspira, the Court
determined the “common knowledge” exception to the Affidavit of
Merit requirement did not apply.

The Court found “[i]t is not

within a lay person’s knowledge as to what an adequately staffed
intensive care unit looks like” and that “decisions concerning
staffing involve specialized knowledge.”
Plaintiff filed a Motion for Reconsideration on April 13,
2017.
II.
A motion for reconsideration may be treated as a motion to
alter or amend judgment under Federal Rule of Civil Procedure
59(e), or as a motion for relief from judgment or order under
Federal Rule of Civil Procedure 60(b), or it may be filed
pursuant to Local Civil Rule 7.1(i).
4

The purpose of a motion

for reconsideration “is to correct manifest errors of law or
fact or to present newly discovered evidence.”

Max’s Seafood

Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999).

A judgment may be altered or amended only if the

party seeking reconsideration shows: (1) an intervening change
in the controlling law; (2) the availability of new evidence
that was not available when the court rendered its decision; or
(3) the need to correct a clear error of law or fact or to
prevent manifest injustice.

Id.

A motion for reconsideration may not be used to re-litigate
old matters or argue new matters that could have been raised
before the original decision was reached.

P. Schoenfeld Asset

Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 3d 349, 352 (D.N.J.
2001).

Mere disagreement with the Court will not suffice to

show that the Court overlooked relevant facts or controlling
law, United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339,
345 (D.N.J. 1999), and should be dealt with through the normal
appellate process, S.C. ex rel. C.C. v. Deptford Twp. Bd. of
Educ., 248 F. Supp. 2d 368, 381 (D.N.J. 2003).
III.
Plaintiff argues the Court erred in not holding a Ferreira
conference.

In Ferreira v. Rancocas Orthopedic Associates, 836

A.2d 779 (N.J. 2003), the Supreme Court held:
To

ensure

that

discovery

related
5

issues,

such

as

compliance with the Affidavit of Merit statute, do not
become sideshows to the primary purpose of the civil
justice
system
–
to
shepherd
legitimate
claims
expeditiously to trial – we propose that an accelerated
case management conference be held within ninety days of
the service of an answer in all malpractice actions.
Our
rules
already
provide
for
case
management
conferences in civil cases. Expediting the schedule in
malpractice cases will further the intent of our Best
Practice rules: to resolve potential discovery problems
before they become grist for dueling motions. At the
conference, the court will address all discovery issues,
including whether an affidavit of merit has been served
on defendant. If an affidavit has been served, defendant
will be required to advise the court whether he has any
objections to the adequacy of the affidavit. If there
is any deficiency in the affidavit, plaintiff will have
to the end of the 120-day time period to conform the
affidavit to the statutory requirements.
If no
affidavit has been served, the court will remind the
parties of their obligations under the statute and case
law.
Id. at 785 (citation omitted).

In Buck v. Henry, 25 A.3d 240

(N.J. 2011), the New Jersey Supreme Court referred to the
Ferreira conference as a “require[ment],” adding that “the
complexity of the amended statutes governing affidavits of merit
in medical malpractice cases – a statute enacted since Ferreira”
makes the Ferreira conference “even more vital today.”

Id. at

250.
The Court finds Plaintiff’s argument unconvincing for
several reasons.

First, as far as the Court can tell, Plaintiff

did not advance such an argument in her opposition briefs to the
underlying summary judgment motions.

“A motion for

reconsideration may not be used to . . . argue new matters that

6

could have been raised before the original decision was
reached.”
352.

P. Schoenfeld Asset Mgmt., L.L.C., 161 F. Supp. 3d at

Plaintiff is not citing new law, and there was nothing

preventing Plaintiff from advancing this argument before.
In any event, the Third Circuit has held that a Ferreira
conference is not required to be held by a federal district
court.

In Nuveen Municipal Trust v. Withumsmith Brown, P.C.,

692 F.3d 283 (3d Cir. 2012), the Third Circuit conducted an Erie
analysis to determine whether a district court must afford a
plaintiff a “protection[] the New Jersey Supreme Court has
established to cut back the severe consequences of the failure
to file a timely affidavit of merit – the accelerated case
management conference.”

Id. at 304.

The Third Circuit

determined that “[t]he timing of a conference that will not
affect the outcome of a proceeding is unlikely to promote forum
shopping and will not result in inequitable administration of
the Statute.”

Id. at 305.

Further, the Court found “a

defendant has no incentive to remove a case from state to
federal court solely to prevent the accelerated conference from
being held because the plaintiff already will have been reminded
of the affidavit requirement when it filed the Civil Case
Information Sheet along with its complaint.”

Id.

Thus, the Third Circuit found this procedural requirement
in New Jersey courts does not “further[] the ‘twin aims’ of
7

discouraging forum shopping and preventing the inequitable
administration of state laws.”

Id.

As the protections are

procedural, a district court is “not required . . . to hold an
accelerated conference.”

Id.; accord Vitale v. Carrier Clinic,

Inc., 409 F. App’x 532, 534-35 (3d Cir. 2010) (holding that,
while “New Jersey’s Affidavit of Merit must be applied by
federal courts sitting in diversity,” the plaintiffs “offer[ed]
no authority for the contention that a federal district court
sitting in diversity is required to follow case management
procedures imposed on New Jersey trial courts by the New Jersey
Supreme Court”); Szemple v. Univ of Med. & Dentistry of N.J.,
162 F. Supp. 3d 423, 430 (D.N.J. 2016) (“Those state-law
procedural safeguards do not apply in federal court.”); N.H.
Ins. Co. v. Diller, 678 F. Supp. 2d 288, 311 (D.N.J. 2009) (“In
spite of this directive to New Jersey state courts, Diller does
not present any case law to support his contention that case
management conferences, which are procedural in nature, must be
utilized in federal court however beneficial.”).
Further, even “assuming arguendo that the district court
should have held a Ferreira conference, the failure to hold such
a conference does not provide [plaintiffs] with any relief.”
Vitale, 409 F. App’x at 535.

This is because the New Jersey

Supreme Court has held the failure to hold a Ferreira conference
has no effect “on the time limits prescribed in the statute.”
8

Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 997 A.2d
982, 987 (N.J. 2010).

The New Jersey Supreme Court has held

that its “creation of a tickler system to remind attorneys and
their clients about critical filing dates plainly cannot trump
the statute.

In other words, the absence of a Ferreira

conference cannot toll the legislatively prescribed time
frames.”

Id.

The Supreme Court instructed that “lawyers and

litigants should understand that, going forward, reliance on the
scheduling of a Ferreira conference to avoid the strictures of
the Affidavit of Merit statute is entirely unwarranted and will
not serve to toll the statutory time frames.”

Id. at 988.

Further, it is not clear to this Court that such a
conference was not in fact held or otherwise waived by
Plaintiff.

On May 19, 2016, 3 an initial conference was held

before Magistrate Judge Karen M. Williams.

In a May 23, 2016

letter to counsel for Dr. Amin and Kidney and Hypertension
Specialists, Plaintiff’s counsel acknowledged this conference,
acknowledged a due date of July 28, 2016 for an Affidavit of
Merit from a nephrologist, and stated that Plaintiff “will waive
the necessity of [a Ferreira] hearing.” 4

3

This conference was held well within the ninety days
required by Ferreira.
4

In a letter from counsel for Inspira to Plaintiff’s
counsel, Inspira’s counsel also acknowledged the initial
9

Plaintiff also argues this Court “ignored” relevant New
Jersey Supreme Court precedent, namely Meehan v. Antonellis, 141
A.3d 1162 (N.J. 2016).

This case was not “ignored” by this

Court and moreover does not warrant reconsideration of the
Court’s summary judgment decisions.

Rather, Meehan is a dental

malpractice case which highlights the heightened standards
imposed in medical malpractice cases.

The plaintiff in Meehan

sought treatment from an orthodontist for sleep apnea.
1164.

Id. at

The Affidavit of Merit in Meehan was prepared by a

dentist who specialized in prosthodontics and who had over
twenty years of experience in treating sleep apnea.
1167.

Id. at

The Supreme Court determined that “[a] variety of

professionals can treat sleep apnea, including various types of
dentists and physicians.”

Id. at 1176.

The Court found “[a]

prosthodontist, therefore, is capable of having the ‘particular
expertise’ necessary to prepare an affidavit of merit in support
of a claim regarding negligent dental treatment for sleep
apnea,” even where the treating dentist was an orthodontist.
Id.

The New Jersey Supreme Court found the Affidavit of Merit

thus “satisfied the requirements of section 27.”

Id.

The New Jersey Supreme Court determined “that the enhanced

conference, the issues with Dr. Charash’s Affidavit of Merit,
and a demand for another Affidavit of Merit by July 24, 2016.
10

credential requirements established under section 41 for those
submitting affidavits of merit and expert testimony apply only
to physicians in medical malpractice actions.”

Id. at 1173.

The Court found in cases other than medical malpractice,
“section 27 requires no more than that the person submitting an
affidavit of merit be licensed in this state or another and have
‘particular expertise in the general area or specialty involved
in the action.’”

Id. at 1175 (quoting N.J.S.A. 2A:53A-27).

“Such particular expertise is ‘evidenced by board certification
or by devotion of the person’s practice substantially to the
general area or specialty involved in the action for a period of
at least five years.’”

Id. (quoting N.J.S.A. 2A:53A-27). 5

The

requirement of “particular expertise in the general area or
specialty involved in the action” is a much more lenient
standard than the equivalency requirement for medical
malpractice cases.

5

N.J.S.A. 2A:53A-27 provides:
In the case of an action for medical malpractice, the
person
executing
the
affidavit
shall
meet
the
requirements of a person who provides expert testimony
or executes an affidavit as set forth in [N.J.S.A.
2A:53A-41].
In all other cases, the person executing
the affidavit shall be licensed in this or any other
state; have particular expertise in the general area or
specialty involved in the action, as evidenced by board
certification or by devotion of the person’s practice
substantially to the general area or specialty involved
in the action for a period of at least five years.
11

Finally, as to Inspira, Plaintiff argues the Court’s
conclusion on the common knowledge exception ignored that it was
undisputed that the facility was short staffed. 6

Plaintiff’s

argument that “a lay person understands the serious effect of a
hospital being understaffed” is a reargument to this Court.
This clearly registers mere disagreement with this Court’s
initial decision, which is not an appropriate reason to pursue
reconsideration.

Schiano v. MBNA Corp., No. 05-1771, 2006 WL

3831225, at *2 (D.N.J. Dec. 27, 2006) (“Mere disagreement with
the Court will not suffice to show that the Court overlooked
relevant facts or controlling law, and should be dealt with
through the normal appellate process.”

(citations omitted)

(first citing Compaction Sys. Corp., 88 F. Supp. 2d at 345; and
then citing S.C. ex rel. C.C., 248 F. Supp. 2d at 381)).
“A motion for reconsideration is improper when it is used
‘to ask the Court to rethink what it had already thought through
– rightly or wrongly.’”

Oritani Sav. & Loan Ass’n v. Fidelity &

Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990) (quoting
Above the Belt v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983)).

“Each step of the litigation should build

6

The Court recognized when it issued its March 30, 2017
Opinion, and the Court recognizes now, that it is undisputed
that Decedent’s discharge summary states there were “staffing
limitations.” What this vague reference to the status of the
staff at that particular time means is not undisputed, however.
12

upon the last and, in the absence of newly discovered, noncumulative evidence, the parties should not be permitted to
reargue previous rulings made in the case.”

Id. (citing Johnson

v. Township of Bensalem, 609 F. Supp. 1340, 1342 n.1 (E.D. Pa.
1985)).

Plaintiff’s position amounts to a reargument of her

opposition to the underlying motion.

Accordingly, Plaintiff’s

motion for reconsideration will be denied.
An appropriate Order will be entered.

Date: November 13, 2017
At Camden, New Jersey

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

13