THE ESTATE OF MEGAN MOORE et al v. CUMBERLAND COUNTY et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 5/7/2018. (rtm, )
UNPUBLISHED OPINION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
THE ESTATE OF MEGAN MOORE, et al.,
Plaintiff,
v.
CUMBERLAND COUNTY, et al.,
Defendants.
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Civil No. 17-2839 (RBK/KMW)
OPINION
KUGLER, United States District Judge:
This matter comes before the Court on the Motion for Summary Judgment of Defendant
CFG Health Systems, LLC (“CFG” or “Defendant”). (ECF No. 35.) Defendant argues that Plaintiff
Megan Moore and her estate (“Plaintiffs”) have failed to comply with New Jersey’s Affidavit of
Merit statute, a prerequisite to her tort claims. We agree, and Defendant’s motion is GRANTED.
I.
BACKGROUND
Megan Moore committed suicide, by hanging, in the Cumberland County Jail on February
20, 2017. Her estate has named, among others, CFG Health Systems, LLC as a defendant in this
action. CFG is a New Jersey corporation that provided health care services to inmates at the
Cumberland County Jail. (Compl. at ¶ 12.) Plaintiff’s bare-bones complaint—previously found
insufficient against another defendant in this case (see ECF No. 47)—alleges that Moore’s death
is attributable to the actions of CFG’s agents or employees. But the complaint does not set forth
any particularized facts, nor does it identify those employees of CFG who were allegedly
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negligent. Instead, it states that “representatives of CFG” breached their duty to diligently and
faithfully screen Megan Moore for any psychological risks, including her risk of suicide.
Plaintiffs first filed their complaint on April 25, 2017. Three counts of the complaint are
relevant to this motion: wrongful death (Count V), a survival action (Count VI), and a negligence
claim (Count VII). CFG filed its answer on May 23, 2017. Within the sixty days that followed,
Plaintiffs did not submit an Affidavit of Merit (“AOM”) establishing the existence of a valid claim,
but on September 1, 2017, Plaintiffs did submit one. This was within 120 days of CFG’s answer.
At no point did Plaintiffs seek leave of Court to submit the AOM.
The AOM was completed by Dr. Lawrence J. Guzzardi. (ECF No. 35-5.) Dr. Guzzardi is
a licensed physician in the Commonwealth of Pennsylvania who is currently board certified in
medical toxicology. (Id.) In the last five years he has testified to the standards of care in
correctional medicine and has limited his practice to testimony in emergency medicine, medical
toxicology, correctional care, and substance abuse. (Id.) The AOM states that he has expertise in
problems encountered during drug withdrawal and in the evaluation of potentially suicidal inmates.
(Id.) Dr. Guzzardi avers there is a reasonable probability that the care, skill, or knowledge
exercised or exhibited by CFG through its employees or agents while Moore was at the
Cumberland County Jail lead to her death on February 20, 2017. (Id.) As with the complaint, the
AOM does not indicate the nature of the alleged professional negligence and does not identify
CFG’s employees.
Defendant’s answer, in its “Fifteenth Separate Defense,” asserts that Plaintiffs have failed
to file an appropriate AOM against CFG itself for its alleged vicarious liability, premised on the
acts of nurses not named in the complaint.
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II.
JURISDICTION
This case is before the Court in its federal-question jurisdiction, as Plaintiffs have brought
this suit under 42 U.S.C. § 1983. See 18 U.S.C. § 1331. The tort claims that are the focus of this
motion are before the Court in its supplementary jurisdiction pursuant to 18 U.S.C. § 1367.
III.
THE SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex
Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine dispute of material fact exists if the evidence
is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When a court weighs the evidence presented by the parties, “[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255.
The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).
The moving party may satisfy its burden either by “produc[ing] evidence showing the absence of
a genuine issue of material fact” or by “‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive
summary judgment, the nonmoving 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.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen opposing summary
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judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify those facts
of record which would contradict the facts identified by the movant.’” Corliss v. Varner, 247 F.
App’x 353, 354 (3d Cir. 2002).
A failure to file a timely AOM is properly the subject of a motion for summary judgment
under Rule 56 because the Court must necessarily consider “matters outside the pleadings” when
considering the applicability of the AOM statute and timely filing of the AOM. 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 pleading requirement, this language merely
provides that the consequences of not filing a timely affidavit are the same as failing to state a
claim.” Nuveen Mun. Trust v. WithumSmith Brown, P.C., 692 F.3d 283, 303 n.13 (3d Cir. 2012).
IV.
DISCUSSION
CFG appears to be a Defendant in this case on a theory of vicarious liability. In such cases,
an AOM “is still required when the plaintiff’s claim of vicarious liability hinges upon allegations
of deviation from professional standards of care by licensed individuals who worked for the named
defendant.” McCormick v. State, 446 N.J. Super. 603, 615 (App. Div. 2016). The parties do not
contest that the only CFG employees potentially involved in this matter are nurses.
The Affidavit of Merit Was Timely Filed
New Jersey’s AOM Statute was enacted “as part of a tort reform package designed to strike
a fair balance between preserving a person’s right to sue and controlling nuisance suits.” Nuveen,
692 F.3d at 290 (quoting Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 579 (3d Cir. 2003)).
For any professional malpractice action, the AOM Statute requires a plaintiff, “within 60 days
following the date of filing of the answer to the complaint by the defendant provide each defendant
with an affidavit . . . The court may grant no more than one additional period, not to exceed 60
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days, to file the affidavit pursuant to this section, upon a finding of good cause.” N.J. Stat. Ann. §
2A:53A-27. These two 60 day periods must run consecutively, and they are not to exceed 120 days
total from the date the defendant’s answer is filed. Douglass v. Obade, 819 A.2d 445, 446 (N.J.
Super. Ct. App. Div. 2003) (The “end of the line . . . the drop-dead date, is 120 days”). Plaintiffs
submitted an AOM for the tort claims brought against CFG on September 1, 2017, well beyond
the 60-day requirement. Plaintiffs also did not seek leave to file after this date, but did file the
AOM within 120 days of CFG’s answer.
Defendant argues that Plaintiffs’ AOM is untimely because Plaintiffs failed to ask the Court
for leave to file beyond the first 60-day period. We disagree. First, “the Affidavit of Merit Statute
does not include language requiring a plaintiff to seek an extension within sixty days of a
defendant’s answer.” Burns v. Belafsky, 166 N.J. 466, 476 (2001). Plaintiffs were not obliged to
seek an extension within that period. Furthermore, “an affidavit submitted within the sixty-day
extension period should be considered timely filed so long as good cause is found by the trial
court.” Burns v. Belafsky, 166 N.J. 466, 470-71 (2001). Good cause is a low bar: “attorney
inadvertence,” i.e., an attorney forgetting to do something, is sufficient when “the delay does not
prejudice the adverse party” and when it would be improper “to visit the sins of the attorney upon
his or her blameless client.” Id. at 478 (citations and internal marks omitted). For example, the
Plaintiffs in Burns had in their possession a copy of their doctor’s report even before they filed
their lawsuit, but apparently forgot to include it in their submissions. Id. The court, relying on their
attorney’s statement that he had inadvertently omitted it, found that the lateness of the submission
was for “good cause” and permitted the case to proceed, noting the lack of prejudice. Id.
Plaintiffs have, bafflingly, not even attempted to show good cause here. Even after briefing,
the Court is left without an explanation for why this happened. We find, however, that “attorney
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inadvertence” may be inferred and conclude that, under the generous standard set by the New
Jersey Supreme Court, Plaintiffs have established “good cause” for purposes of the 60-day
extension under the AOM Statute. We note that the delay here did not prejudice Defendant—“it is
simply too early in the litigation for that claim to be credible.” Burns, 166 N.J. at 478. Thus,
because the AOM was submitted before the close of the 120-day period on September 20, 2017,
we find that it was timely filed. See also Szemple v. Univ. of Med. & Dentistry of New Jersey, 162
F. Supp. 3d 423, 429 (D.N.J. 2016) (finding, as a practical matter, that the AOM Statute’s “deadline
is 120 days, not 60”).
Dr. Guzzardi Is Not Qualified to Provide an Affidavit of Merit
Defendant also challenges the qualifications of Dr. Guzzardi to be an affiant under the
AOM Statute. Section 26 of the AOM Statute, N.J. Stat. Ann. § 2A:53A-26, enumerates various
professions covered by the statute, including, as relevant here, registered professional nurses. To
satisfy the Statute, a plaintiff bringing a professional malpractice or negligence claim must
. . . 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 . . .
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 section [N.J. Stat. Ann. § 2A:53A-41 (“section 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.
N.J. Stat. Ann. § 2A:53A-27.
Defendant’s primary argument is that Dr. Guzzardi cannot offer an opinion as to the
relevant standard of care because he is not qualified to opine on the standard of care for nurses.
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Although the basis for the suit against CFG is unclear because of the paucity of the complaint, it
appears CFG has been sued under a theory of vicarious liability for the acts of its employee nurses.
For liability to attach to CFG, its employees would have to be liable themselves, which would
entail analysis of the standard of care for nursing. Thus, Defendant argues, the AOM is deficient
because Dr. Guzzardi is not a registered nurse and only registered nurses can opine on the standards
of care for nursing. Defendant relies on Hill International, Inc. v. Board of Education for this
proposition, which found that section 26’s treatment of engineers and architects as “distinct
professional identities” barred an engineer from providing an AOM against an architect. 438 N.J.
Super. 562, 585 (App. Div. 2014). So too, Defendant argues, with doctors and nurses, who also
have distinct professional identities under section 26.
The New Jersey Supreme Court has recently clarified the law in this area. In Meehan, the
court expressly rejected the notion that section 41’s “like-qualified” requirements—i.e., that only
similarly credentialed professionals may opine on the actions of other professionals—“apply only
to physicians in medical malpractice actions.” 226 N.J. at 234. For “all other cases,” the Court
held that “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 237. “In other words, a person may submit an affidavit of merit if
the affiant has particular expertise in the general area involved in the action or in the specialty
involved in the action. . . . Such particular expertise may be evidenced by board certification or by
devotion of his practice substantially to the general area or specialty involved in the action for at
least five years.” Id. at 238. Applying this standard, Meehan concluded that an AOM provided by
a licensed dentist with over twenty years of experience in sleep apnea was sufficient in a case
against an orthodontist who had treated the plaintiff’s sleep apnea. Id. at 239. Perfect identity of
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specialization was not required, provided the areas of expertise overlapped to some degree: the
Court noted that “the treatment of sleep apnea is not exclusive to a single dental specialty or
subspecialty” and that a “variety of professionals” could treat the disorder. Id. As the Court
summarized:
In most instances, we anticipate that the affiant and the professional defendant will
be similarly licensed. However, there may be circumstances when the alleged
departure from the professional standard of care is within the particular expertise
of two licensed professions. In such cases, in assessing the sufficiency of the
affidavit of merit, a court must focus . . . on the specific allegations of professional
negligence.
Meehan, 226 N.J. at 238.
In light of this precedent, the Court rejects Defendant’s argument that the mere fact that
Dr. Guzzardi is not a registered nurse categorically prevents him from providing an AOM in any
case involving a nurse. Such a formalistic argument holds, at essence, that a license imputes
knowledge, instead of the other way around—reasoning that Meehan appears to have rejected. Cf.
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154, 836 A.2d 779, 784-85 (2003) (“The
[AOM] statute was not intended to encourage gamesmanship or a slavish adherence to form over
substance.”). But even so, we agree that Dr. Guzzardi is not qualified as an affiant because he is
not an “appropriate licensed person,” i.e., he is not someone who “has particular expertise in the
general area involved in the action or in the specialty involved in the action.” Meehan, 226 N.J. at
238. A medical toxicologist does not have any obvious, let alone particular, expertise in evaluating
the conduct of nurses during the intake-screening process of a correctional facility. Furthermore,
Dr. Guzzardi’s experience in medical toxicology appears to be, by his own admission in the AOM,
solely confined to expert testimony over the last five years, further undermining the relevance of
his expertise to this action. Most problematic, though, is that Plaintiffs’ AOM does not even
address who Dr. Guzzardi purports to review. It merely recites the language of the statute and
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provides little else on which to establish a reasonable probability that the care, skill, or knowledge
exercised by CFG or its “employees, agents, and/or workman [sic]” was deficient. The New Jersey
Supreme Court has cautioned against such blanket statements, noting that “[i]f a plaintiff were
permitted to name fifteen defendants and provide each with an affidavit specifying only that a
claim against one defendant is meritorious, the statutory purpose of reducing frivolous lawsuits
would be subverted or circumvented.” Fink v. Thompson, 167 N.J. 551, 560 (2001). As such, we
find that Plaintiffs have not complied with the AOM Statute.
“The penalty for not following the AOM Statute is severe. Absent a showing of one of four
limited exceptions, the failure to file the affidavit ‘shall be deemed a failure to state a cause of
action.’” Nuveen, 692 F.3d at 290-91 (quoting N.J. Stat. Ann. § 2A:53A–29). The four limited
exceptions are: (i) where the defendant has failed to provide the plaintiff requested medical
information, N.J. Stat. Ann. § 2A:53A-28; (ii) a narrow class of cases where professional
negligence can be demonstrated as a matter of “common knowledge,” Hubbard v. Reed, 774 A.2d
495, 501 (N.J. 2001) (finding that a layperson could find professional negligence absent AOM
where dentist pulled the wrong tooth); (iii) where the plaintiff has substantially complied with the
affidavit-of-merit requirement, Cornblatt v. Barow, 708 A.2d 401, 411-12 (N.J. 1998); or (iv)
where the plaintiff can show “extraordinary circumstances” that warrant equitable relief, Ferreira
v. Rancocas Orthopedic Assocs., 836 A.2d 779, 782-83 (N.J. 2003). See also Nuveen, 692 F.3d at
291 n.3. None of these exceptions apply, nor have they been invoked. The tort claims against CFG
are therefore dismissed.
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V.
CONCLUSION
Plaintiffs’ Affidavit of Merit is insufficient. Defendant’s motion for summary judgment is
GRANTED. An order follows.
Dated: May 7, 2018
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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