MENDOZA v. INSPIRA MEDICAL CENTER VINELAND et al

Filing 75

OPINION. Signed by Judge Noel L. Hillman on 4/24/2019. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GLADYS MENDOZA, personal
representative of ELIAS
MENDOZA,
Plaintiff,

Civil No. 16-1337 (NLH/KMW)
OPINION

v.
INSPIRA MEDICAL CENTER
VINELAND, SOUTH JERSEY HEALTH
CARE, INSPIRA HEALTH NETWORK,
INC., ANDREW ZINN, M.D., THE
HEART HOUSE, NAEEM M. AMIN,
M.D., and KIDNEY AND
HYPERTENSION SPECIALISTS,
P.A.
Defendants.

APPEARANCES:
JAMES R. RADMORE
TWO PENN CENTER, SUITE 312
1500 JFK BOULEVARD
PHILADELPHIA, PA 19102
Attorney for Plaintiff Gladys Mendoza.
THOMAS J HEAVEY
GROSSMAN & HEAVEY
1608 HIGHWAY 88 WEST, SUITE 200
BRICK, NJ 08724
Attorney for Defendants Inspira Medical Center Vineland,
South Jersey Health Care, and Inspira Health Network, Inc.
DAVID P. BRIGHAM
STAHL & DELAURENTIS
10 E. CLEMENTS BRIDGE ROAD
RUNNEMEDE, NJ 08078
Attorney for Andrew Zinn, M.D. and The Heart House.

HILLMAN, District Judge
This is a medical malpractice action against a hospital and
a cardiologist for their care of Elias Mendoza in March 2014.
Presently before the Court are four motions: (1) Inspira
Defendants’ 1 Motion to Preclude the Expert Testimony of Drs.
Bruce D. Charash and T. Anthony Cumbo (“Motion to Preclude”),
(2) Plaintiff’s Partial Motion for Summary Judgment as to IHN,
(3) Inspira Defendants’ Cross-Motion to Amend the Caption of the
Amended Complaint (“Motion to Amend”), and (4) Andrew Zinn, M.D.
and The Heart House’s (collectively, the “Cardiology
Defendants”) Motion for Summary Judgment.
For the following reasons, the Motion to Preclude will be
granted, in part, and denied, without prejudice, in part;
Plaintiff’s Partial Motion for Summary Judgment will be denied,
without prejudice; the Motion to Amend will be denied, in part,
with prejudice and in part, without prejudice; and the
Cardiology Defendants’ Motion for Summary Judgment will be
denied, without prejudice.
BACKGROUND
The Court takes its facts from Plaintiff’s Amended
Complaint, the parties’ various filings, and the procedural

1

The Inspira Defendants include Inspira Medical Center Vineland,
South Jersey Health Care (“SJHC”), and Inspira Health Network,
Inc. (“IHN”). The Inspira Defendants claim that the real party
in interest is Inspira Medical Center, Inc. (“IMC”).
2

history of the case.

On March 11, 2014, Elias Mendoza went to

the Emergency Room at the Inspira Medical Center in Vineland,
New Jersey complaining of shortness of breath and admitted to
the Intensive Care Unit.

According to the expert reports 2 of

Bruce D. Charash, M.D., F.A.C.C. (the “Charash Reports”), Mr.
Mendoza was visiting New Jersey from Georgia, and had
proactively scheduled dialysis sessions during the time he was
in New Jersey.
Mr. Mendoza was not only suffering from end-stage renal
disease (requiring the previously mentioned dialysis) but also
insulin dependent diabetes mellitus, coronary artery disease,
and congestive heart failure.

It appears that a chest x-ray

taken that day showed a fluid overload in Mr. Mendoza’s lungs.
Mr. Mendoza was given a cardiology consultation by Zinn and a
nephrology consultation by Naeem M. Amin, M.D.
On March 15, 2014, Mr. Mendoza suffered both a respiratory
and cardiac arrest which led to a permanent anoxic brain injury
caused by lack of oxygen.

Mr. Mendoza passed away less than a

year later from acute respiratory failure, stemming from a
cardiac arrest, and coronary artery disease.

Plaintiff asserts,

as Mr. Mendoza’s personal representative, that Mr. Mendoza’s

2

Charash prepared two reports for this case, one on July 23,
2018 and one on October 10 or 15, 2018.
3

allegedly negligent treatment at the Inspira Medical Center in
Vineland was a contributing factor to his death.
Plaintiff filed a complaint on March 9, 2016.
filed an amended complaint on March 22, 2016.

Plaintiff

The Amended

Complaint asserts claims against three sets of Defendants, the
Inspira Defendants and Cardiology Defendants mentioned supra, as
well as Amin and the Kidney and Hypertension Specialists, P.A.
(the “Nephrology Defendants”).

Plaintiff asserts direct

liability claims of negligence against the Inspira Defendants,
Zinn, and Amin.

Plaintiff also asserts vicarious liability

claims of negligence against the Inspira Defendants, The Heart
House, and the Kidney and Hypertension Specialists, P.A.
An Affidavit of Merit, as required by New Jersey law, was
filed with the Court on April 27, 2016 by Plaintiff’s expert
Charash.

This was challenged in August 2016 Motions for Summary

Judgment brought by the Nephrology Defendants and IMC.

After

full briefing, this Court decided these motions on March 30,
2017.

The Court granted Defendants’ Motions for Summary

Judgment.

Plaintiff’s claims against Nephrology Defendants were

dismissed, with prejudice, for failure to comply with the
Affidavit of Merit requirements.

The same reasoning applied to

IMC’s Partial Motion for Summary Judgment, which focused solely
on the direct claims of negligence brought against IMC.

4

Of central importance to the present motions was the
contours of the Court’s decision as to the Inspira Defendants.
The Court notes here and discusses further infra that the
Partial Motion for Summary Judgment discussed supra was brought
by IMC, at least on its face.

The Court also notes that the

Inspira Defendants answer to Plaintiff’s Amended Complaint
stated that the Inspira Defendants were wrongly named, and that
the only party correctly before this Court was IMC, which
operated the hospital at-issue in Vineland, New Jersey.
Plaintiff timely filed a Motion for Reconsideration, or in
the alternative, a motion to certify the March 30, 2017 Order
for interlocutory appeal.

After full briefing, Plaintiff’s

requests were denied by this Court on November 13, 2017.
Discovery continued.
On September 6, 2018, the Inspira Defendants filed the
pending Motion to Preclude.

On October 10, 2018, Plaintiff

filed a Partial Motion for Summary Judgment solely against IHN.
On November 1, 2018, the Inspira Defendants filed a crossmotion, the Motion to Amend, and response.

On January 11, 2019,

Cardiology Defendants filed their Motion for Summary Judgment.
On January 30, 2019, Plaintiff filed a letter requesting leave
to file an attached proposed sur-reply brief to the Cardiology
Defendants’ Motion for Summary Judgment.

5

Cardiology Defendants

filed no response.

Accordingly, all motions have been fully

briefed and are ripe for adjudication.
ANALYSIS
A.

Subject Matter Jurisdiction

This Court possesses subject matter jurisdiction over this
case pursuant to 28 U.S.C. § 1332.
B.

Motion to Preclude Expert Testimony

IMC 3 has moved to preclude plaintiff’s experts, Dr. Charash
and Dr. Cumbo, from testifying as to any direct or vicarious
liability claims against IMC that have already been dismissed by
this Court.

IMC argues that all direct claims against it have

been dismissed and that only one claim of vicarious liability –
based on the actions of Zinn and the Heart House - remains.
Therefore, any expert testimony relevant only to direct claims
or the vicarious liability claim based on the Nephrology
Defendants conduct is irrelevant and should be barred.
To provide appropriate context, the Court notes here that
the dismissal of the claims discussed supra was based on the
Affidavit of Merit Statute.

N.J. STAT. ANN. §§ 2A:53A-26-29.

3

The

IMC has been previously defined as “incorrectly pled on
Complaint as ‘Inspira Medical Center Vineland’, ‘South Jersey
Health Care’, and ‘Inspira Health Network, Inc.’” (IMC Answer
1.) The Court will discuss this in more detail, infra.
Initially, the Court notes that it is IMC who filed the instant
motion, although in its reply brief, IMC counsel specifies it is
on behalf of all Inspira Defendants.
6

direct and vicarious (to the extent they were asserted)
liability claims based on the Nephrology Defendants actions were
dismissed because Plaintiff did not present an expert within the
appropriate specialty who could provide an affidavit of merit.
The direct and vicarious (to the extent they were asserted)
liability claims based on inadequate staffing were also
dismissed because Plaintiff did not present an expert within the
appropriate specialty who could provide an affidavit of merit.
This motion was filed by and granted for IMC. 4
Complicating any decision on this motion is Plaintiff’s
opposition.

Plaintiff does not disagree that using this expert

testimony against IMC would be improper based on the Court’s
previous rulings.

But, Plaintiff asserts two other arguments:

(1) IMC’s previous partial motion for summary judgment was not
brought on behalf of Inspira Health Network, Inc. (“IHN”) and
(2) the expert testimony may be used to support a claim based on
inadequate staffing against IHN because IHN does not fall under
the Affidavit of Merit Statute.
Which Defendants filed what motions and are the
beneficiaries of the relief previously granted by this Court is
a threshold question.

The answer, this Court finds, is unclear.

4

As discussed more fully infra, the Court does not here decide
whether IMC’s filings or this Court’s Opinion and Order were
limited to IMC or were actually applicable to all Inspira
Defendants.
7

It is undeniable that IMC has represented to Plaintiff on
multiple occasions that Plaintiff’s caption was incorrect.

The

first such occasion of record is IMC’s Answer. (IMC Answer 1
(defining IMC as “incorrectly pled on Complaint as ‘Inspira
Medical Center Vineland’, ‘South Jersey Health Care’, and
‘Inspira Health Network, Inc’”).)

It also appears that IMC

stated in an interrogatory response on September 7, 2016 that
the Inspira Defendants’ correct corporate name is IMC.
Reply Br., Ex. A ¶ 1.)

(IMC

Other instances likely exist, but these

are the most important examples cited by Plaintiff.
On the other hand, Plaintiff is correct that IMC’s briefing
has not been precise.

The previous motion for partial summary

judgment did not state whether it was brought on behalf of
Inspira Defendants or just IMC.

While one may assume, based on

IMC’s previous representations, that it was, it is not clear
from the face of the papers.

This Court’s corresponding Opinion

and Order only explicitly referenced IMC.

Even IMC’s instant

motion was not clearly brought on behalf of all Inspira
Defendants until IMC clarified its position in its reply brief. 5

5

If it is Plaintiff’s position that it has always thought IHN
was not subject to this Court’s Opinion and Order and that
summary judgment is appropriate, Plaintiff should set forth the
undisputed facts and case law which cogently explain why IHN is
liable to Plaintiff. Moreover, absent compelling circumstances
to which this Court is presently unaware, the Court will not
permit any further discovery on this issue.
8

Moreover, IMC cannot state, unilaterally, which entities
Plaintiff intended to sue or not to sue.
master of his own complaint.

Plaintiff is the

Judon v. Travelers Prop. Cas. Co.

of Am., 773 F.3d 495, 505 (3d Cir. 2014).

While there are many

situations in which Defendants’ informal response may be
appropriate (e.g., misspelling of a name), it is not appropriate
here. 6

IMC does not state that IHN is not a real entity or that

its name has been misspelled.
have solely sued IMC.

It merely states Plaintiff should

Saying it does not make it so.

Plaintiff has been similarly imprecise in its briefing,
failing to bring up this issue in opposition briefs or in its
motion for reconsideration.

Plaintiff has been silent on this

issue until over a year and a half after the facts animating
this argument arose.

Ultimately, this Court does not here

decide who has the better of the argument.
Clearly, precision has been lacking by both Plaintiff and
IMC.

Since it appears Plaintiff does not disagree, this Court

will bar expert testimony – except on the issue of cardiology –
against IMC.

The Court’s decisions on this point and the

parties’ respective positions place this issue beyond dispute.

6

That is not to say it was wholly inappropriate here. Based on
the facts provided by the parties, IMC is incorrectly pled as
“Inspira Medical Center Vineland.” Proper procedure would
require Plaintiff to amend their caption to reflect this error.
9

Accordingly, on those grounds, the Court will grant the Motion
to Preclude as to IMC.
However, that is not the case as to IHN (or even to South
Jersey Health Care (“SJHC”)).

For that reason, the Court will

deny this part of Inspira Defendants’ Motion to Preclude,
without prejudice.

Instead, the lack of clarity from the

parties necessitates, unfortunately, more briefing.

Now that

the issues have come into focus, the Court will direct the
parties specifically on what is required.

Counsel for Inspira

Defendants may file a motion for summary judgment showing why –
as a matter of law, and, if applicable, as a matter of
undisputed fact – direct or vicarious liability claims must be
dismissed against IHN and SJHC, to the same extent they were
dismissed against IMC. 7

Specifically, Inspira Defendants should

consider legal arguments beyond those of preclusion. 8

In this

motion, counsel will also fully brief the issue of whether the

7

This does not limit the grounds on which Inspira Defendants may
move. If they believe another substantive ground exists that
may dismiss all claims or less than all claims, those grounds
may also be asserted. Separately, the Court encourages the
parties to consider a stipulation of dismissal as to SJHC to
mirror the status of IMC. It appears neither Plaintiff nor
Inspira Defendants believe SJHC is central to this case.
8

Because this is a denial without prejudice the Court does not
decide the merits of IMC’s arguments. IMC is free to raise
these arguments once again. But, this Court believes more
fulsome briefing on what it finds to be the other relevant
issues at stake is also required.
10

Affidavit of Merit statute applies to IHN or SJHC.

Plaintiff

will respond appropriately.
C.

Plaintiff’s Motion for Partial Summary Judgment
against IHN and Inspira Defendant’s Cross-Motion to
Amend

Obviously, the Court’s decision supra affects other pending
motions.

Plaintiff has filed a Partial Motion for Summary

Judgment against IHN only.

The basis: IHN was not subject to

this Court’s March 30, 2018 Opinion and Order, only Plaintiff
has provided expert testimony as to inadequate staffing, and,
because expert testimony is required as a matter of law,
Plaintiff’s Partial Motion for Summary Judgment must be granted.
The basis for Plaintiff’s Partial Motion for Summary Judgment,
therefore, is a particular interpretation of IMC’s Partial
Motion for Summary Judgment and this Court’s March 30, 2018
Order and Opinion granting it.

Because the Court will not

decide that issue until the briefing described supra has been
submitted, this Court will also deny Plaintiff’s Partial Motion
for Summary Judgment, without prejudice. 9
Inspira Defendants have also filed a Cross-Motion to Amend
the Caption.

Inspira Defendants ask this Court to amend the

caption of Plaintiff’s Amended Complaint to only include IMC and

9

As with this Court’s decision on IMC’s Motion to Preclude, this
Court notes explicitly that Plaintiff may reargue these points,
but must also address the additional substantive issues noted by
the Court.
11

delete all reference to IHN and SJHC.

This will be denied, with

prejudice, in part, and without prejudice, in part.

Inspira

Defendants may not re-file this type of motion as it is not
contemplated by the rules.

Federal Rule of Civil Procedure 15,

which controls the amendment of pleadings only allows a party to
“amend its pleading.”

FED. R. CIV. P. 15(a)(1), (a)(2).

Inspira

Defendants may not amend Plaintiff’s Amended Complaint, as Rule
15 only allows amendment of a party’s own pleadings. 10
Accordingly, this Court will deny this Cross-Motion to Amend
with prejudice on these grounds.

The Court does not intend this

decision to be one on the merits, so to the extent Inspira
Defendants present substantive argument, that argument is
dismissed without prejudice and may be re-argued in subsequent
motions.
D.

Motion for Summary Judgment Standard

Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,’ . . . demonstrate the absence of a genuine

10

The Court notes the proper motion at the outset of this case –
which Inspira Defendants never filed – would have been a motion
to dismiss, a motion for judgment on the pleadings, or a motion
for summary judgment. Absent consent, it is a dispositive
motion, not amendment, which is a defendant’s tool to shape a
plaintiff’s pleadings into proper form by obtaining a ruling as
to which defendants are subject to suit.
12

issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing FED. R. CIV. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

“In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
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.”); see Singletary v. Pa.
13

Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although
the initial burden is on the summary judgment movant to show the
absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by “showing” — that is, pointing
out to the district court — that there is an absence of evidence
to support the nonmoving party’s case’ when the nonmoving party
bears the ultimate burden of proof.” (citing Celotex, 477 U.S.
at 325)).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324.

Celotex, 477

A “party opposing summary judgment ‘may not rest

upon the mere allegations or denials of the . . . pleading[s].’”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

For

“the non-moving party[] to prevail, [that party] must ‘make a
showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”

Cooper v. Sniezek, 418 F.

App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party.

Anderson, 477 U.S. at 257.

14

E.

Motion for Summary Judgment – Cardiology Defendants 11

The Cardiology Defendants argue summary judgment should be
granted in their favor because Plaintiff cannot establish
through expert testimony the requisite elements of medical
malpractice.

Specifically, the Cardiology Defendants argue that

neither of Plaintiff’s expert witnesses, Dr. Cumbo and Dr.
Charash, offers any expert opinion as to medical malpractice of
the Cardiology Defendants.

Plaintiff argues, through citing to

statements in the Charash Reports and at Charash’s deposition
that Charash did actually opine on the Cardiology Defendants
deviations from the accepted medical standard.
To prove medical malpractice, a plaintiff must prove,
through expert testimony: “(1) the applicable standard of care .
. . ; (2) a deviation from that standard of care . . . ; and (3)
that the deviation proximately caused the injury . . . .”
Gardner v. Pawliw, 696 A.2d 599, 608 (N.J. 1997) (citations
omitted).

In other words, the law imposes upon a doctor:

the duty to exercise in the treatment of his patient the
degree of care, knowledge and skill ordinarily possessed
and exercised in similar situations by the average
member of the profession practicing in his field.
Failure to have and to use such skill and care toward
11

The Court notes that Plaintiff also filed a sur-reply brief.
Cardiology Defendants did not file any opposition to this brief
being filed and considered by the Court. For that reason, the
Court will order that the sur-reply brief by filed and will
consider those arguments – to the extent they are different than
argued in Plaintiff’s response – in deciding Cardiology
Defendants’ Motion for Summary Judgment.
15

the patient as a result of which injury or damage results
constitutes negligence.
Schueler v. Strelinger, 204 A.2d 577, 584 (N.J. 1964).
“Absent competent expert proof of these three elements, the
case is not sufficient for determination by the jury.”
Rosenberg v. Tavorath, 800 A.2d 216, 225 (N.J. Super. Ct. App.
Div. 2002) (citing Sanzari v. Rosenfeld, 167 A.2d 625, 628 (N.J.
1961)).

It is to this aspect that this Court now turns.

First, the Court considers the issue of whether Plaintiff
has provided expert testimony on the appropriate level of care.
Plaintiff has provided such testimony.

In the July 23, 2018

Charash Report, Dr. Charash opines that “the standard of care
required treating Mr. Mendoza as if he could be impacted by an
acute coronary event, which further placed him at risk for acute
decompensation.”

(Pl.’s Opp’n Br., Ex. C 3.)

In Dr. Charash’s

deposition, he states: “[f]rom a cardiac point of view this
patient was drowning and a cardiologist would have the
responsibility to protect the airway and to get the patient
dialyzed.”

(Cardiology Defs.’ Reply Br., Ex. A 32:7-10.)

Defendant is correct that the standard stated by Dr.
Charash in his deposition is not explicitly contained in either
of the Charash Reports (created on July 23 and October 10 or 15,
2018).

But, on balance, it is clear that Dr. Charash has held

and disclosed to defendants the belief that a cardiologist under

16

similar circumstances should have required an intubation and
dialysis to safeguard Mr. Mendoza’s heart.
Second, the Court considers the issue of whether Plaintiff
has provided evidence of breach of that standard of care.

It is

possible that Plaintiff has provided that expert testimony.
This conclusion requires a more fulsome explanation.

Below is

Dr. Charash’s testimony on the subject:
Q: . . . You would agree with me, would you not, Doctor,
that in your two reports you do not criticize Dr. Zinn
or any member of CADV [(The Heart House)] directly?
A: Correct. Because I was not provided any discovery
deposition testimony I had no foundation to know who was
making clinical decisions.
Q: And is that still true as you sit here today, Doctor?
A: Yes
Q: So as you sit here today you do not have any direct
criticisms of Dr. Zinn or any physician at CADV; correct?
A: I don’t know their specific role in the case. Whoever
was in charge of managing this patient I would be
critical of.
Q: Okay. And you know from your review of the records
that the attending physicians managing this patient were
the internal medicine specialists at Inspira; true?
A: Yes.

I mean some of the day-to-day, yes.

Q: Well, you know that they saw him every day; don’t
you?
A: Yes, I said day-to-day.
Q: Correct.

They were managing him day-to-day; correct?

A: Yes.
(Cardiology Defs.’ Reply Br., Ex. A 28:14-29:16.)
17

Two items are important from this testimony.

First, it

appears this would modify the standard of care Charash listed
above.

It is only in the situation when a cardiologist is also

the individual making overall clinical decisions that a
cardiologist’s standard of care would require considerations of
intubation and dialysis.

Second, Charash has apparently not had

access 12 - for reasons unknown to the Court - to documents which
would allow him to determine who was making clinical decisions.
Without access to those documents, it appears the Court cannot
know Charash’s final opinion on breach.
At this stage in the proceedings, the summary judgment
standard requires this Court to find all reasonable inferences
in favor of the non-moving party, here Plaintiff.

Doing so here

requires the Court to infer that the Cardiology Defendants may
have breached their duty of care to Mr. Mendoza.

The only

testimony of record Cardiology Defendants have presented are the
Charash Reports and his deposition.

Instead of showing the

absence of any factual dispute, it shows the possibility of one.
Cardiology Defendants have not provided any further facts for
this Court to consider. 13

Unfortunately, Cardiology Defendants

12

Cardiology Defendants suggest that Plaintiff’s counsel has not
taken Zinn’s deposition. (Cardiology Defs.’ Reply Br. ¶ 3.)
Why that has not occurred is unknown to the Court.
13

As this Court found, the Charash Reports do not support
finding any breach by the pulmonary or nephrology team. Charash
18

have not provided the Court with what it believes is
indisputable proof that an internal medicine team – not
Cardiology Defendants – dictated the clinical decisions atissue.

If that were the case, the Court might be able to

finally determine whether there is a genuine dispute of material
facts as to breach.
The third issue is causation; that is, whether Plaintiff
has provided expert testimony as to whether the actions of the
Cardiology Defendants led to Mr. Mendoza’s injuries and
allegedly untimely death.

The Charash Reports have done so,

specifically stating that the breaches outlined “were directly
responsible for Mr. Mendoza suffering an otherwise preventable
respiratory and cardiac arrest on 3/15/14 and for his suffering
permanent anoxic brain injury as a result of the same
preventable cardiac arrest.”

(Pl.’s Opp’n Br., Ex. C 1.)

Cardiology Defendants do not present any evidence in opposition.
Cardiology Defendants insist in their reply that Charash’s
expert opinion here is a legally improper “captain of the ship”
argument.

The Court disagrees, in part.

The Court agrees that

one aspect of Cardiology Defendants’ argument rings true.

It is

only if Cardiology Defendants were in charge of day-to-day care

is unable to testify to those alleged deviations, as this Court
has previously ruled. Cardiology Defendants appear to
acknowledge that Charash may testify as to how the intubation
and dialysis issue may have impacted cardiac care.
19

and the nephrology and pulmonary specialists failed to
appropriately treat Mr. Mendoza that Cardiology Defendants could
be said to have breached their duty of care, at least according
to the expert testimony of Charash.

To the extent the

Plaintiff’s case is solely based on this argument of vicarious
liability for the failures of other specialists, it must be
dismissed.

Sesselman v. Muhlenberg Hosp., 306 A.2d 474, 476

(N.J. Super. Ct. App. Div. 1973) (“We have expressly rejected
the ‘captain of the ship’ doctrine as recognized in other
jurisdictions.” (citations omitted)).

Accordingly, this theory

will be dismissed to the extent made.
But, Plaintiff disclaims that he relies on this improper
theory of liability.

And, it appears Charash goes beyond this

vicarious liability theory in his testimony and the Charash
Reports.

Charash specifically testifies that if the Cardiology

Defendants were in charge of day-to-day care, it was a breach of
their standard of care under the circumstances not to order both
intubation and dialysis to protect Mr. Mendoza’s heart.

This

appears to go beyond holding Cardiology Defendants vicariously
liable for the breach of specialists, as Charash asserts the
Cardiology Defendants had an affirmative duty to order these
procedures.
The cases cited by Cardiology Defendants are inapposite.
The Sesselman decision was based on an erroneous jury
20

instruction given by the trial court which instructed the jury
that it could find an obstetrician liable for the negligence of
a nurse anesthesiologist in administering anesthetics.
at 475-77.

306 A.2d

The basis: the nurse “did not become the legal

servant or agent of defendant [obstetrician] merely because she
received instructions from him as to the work to be performed.”
Id. at 476 (citations omitted).

Here, Plaintiff asserts the

failure of the Cardiology Defendants to give the instruction is
the breach, not the negligence in administering the care.

As

such, inserting the instant facts into the analysis undertaken
in Sesselman would not necessarily require the same outcome.
Marek v. Professional Health Services, Inc. similarly does
not compel a different outcome here.
Ct. App. Div. 1981).

432 A.2d 538 (N.J. Super.

In deciding a hospital could be held

vicariously liable for the negligence of an independent
contractor – because its duty of care was nondelegable – the
Court stated the following in dicta:
By today’s holding we do not intend to suggest that a
physician who engages a specialty consultant, such as a
radiologist, pathologist or anesthesiologist or any
other, is vicariously liable for the specialist’s
dereliction.
Id. at 543 n.3.

As with Sesselman, Marek does not compel the

Court to dismiss the instant case.
Even though the Court will not grant summary judgment for
the Cardiology Defendants, it will deny their motion without
21

prejudice.

The case against the Cardiology Defendants appears

to hinge upon whether Zinn was making clinical decisions or
whether those decisions were made by others.

If it does not

hinge upon that, then it certainly hinges upon whether Charash’s
testimony as to standard of care is applicable to all
cardiologists or only those cardiologists that are leading a
treatment group.

Those questions were never asked, nor

answered, because Charash left his deposition early on account
of an emergency and the Cardiology Defendants either chose not
to or could not ask those questions.
The fact that this was not done does not mean that there is
a genuine dispute of material fact.

There are answers to these

questions that Charash can provide.

Or, the Cardiology

Defendants could present documents which would show that Zinn
was not “in charge of managing” Mr. Mendoza during his stay at
IMC.

Those answers and documents are not within the Court’s

possession.

The Court cannot rule in favor of the Cardiology

Defendants on summary judgment on the present record.
The parties will be granted leave to conclude expeditiously
the deposition of Charash (if not already completed), perform a
limited deposition on these issues (if necessary), or provide
the Court with the appropriate documentation which shows Charash
is incorrect (if that is truly the case).

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After doing so,

Cardiology Defendants may wish to file another motion for
summary judgment.
If filed, this motion for summary judgment should address
the following issues: (1) citing case law, whether the standard
of care expressed by Charash is appropriately limited to
cardiology, (2) assuming the veracity of Charash’s expressed
standard of care – whatever that may truly be, whether it is
applicable to the facts of this case, and (3) again assuming the
veracity of Charash’s expressed standard of care, whether any
case law would categorize it as impermissibly imposing vicarious
liability.

Accordingly, this Court will deny the Cardiology

Defendants’ Motion for Summary Judgment, without prejudice.
CONCLUSION
For the reasons expressed, the Motion to Preclude will be
granted, in part, and denied, without prejudice, in part;
Plaintiff’s Partial Motion for Summary Judgment will be denied,
without prejudice; the Motion to Amend will be denied, in part,
with prejudice and in part, without prejudice; and the
Cardiology Defendants’ Motion for Summary Judgment will be
denied, without prejudice.
An appropriate Order will be entered.

Date: April 24th, 2019
At Camden, New Jersey

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

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