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 7/18/2018. (rss, )
NOT FOR PUBLICATION
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 upon the Motion for Reconsideration (Doc. No. 55)
filed by the Estate of Megan Moore (“Plaintiff”) of this Court’s May 7, 2018 Opinion and Order
(Doc. Nos. 53 and 54) granting the Motion for Summary Judgment (Doc. No. 35) of CFG Health
Systems, LLC (“Defendant”). For the reasons set forth below, Plaintiff’s Motion for
Reconsideration is DENIED.
I.
BACKGROUND AND PROCEDURAL HISTORY
The facts of this case have not changed since this Court’s opinion granting Defendant’s
Motion for Summary Judgment. See Estate of Megan Moore v. Cumberland Cty., Civ. No.
17-2839, 2018 WL 2095593, at *1 (D.N.J. May 7, 2018) (providing a thorough description of all
pertinent facts). In brief, Megan Moore committed suicide in prison and her estate claims that her
death is directly attributable to the actions of Defendant and its employees. (Id.)
The issue before the Court is the sufficiency of Plaintiff’s Affidavit of Merit (“AOM”).
Plaintiff filed a complaint (Doc. No. 1) on April 25, 2017 to which Defendant submitted an answer
(Doc. No. 19) on May 23, 2017. Plaintiff filed an AOM (Doc. No. 33), completed by Dr. Lawrence
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J. Guzzardi, on September 1, 2017. Defendant filed a Motion for Summary Judgment on the AOM
issue on September 25, 2017. In her opposition, Plaintiff asserted, among other things, that there
was “a question of fact regarding the proper target of the AOM” and that summary judgment was
inappropriate. (Opp’n at 5.) We disagreed: the sufficiency of an AOM is a matter of law. See
Meehan v. Antonellis, 226 N.J. 216, 228, 141 A.3d 1162, 1169 (2016) (“The submission of an
appropriate affidavit of merit is considered an element of the claim . . . Failure to submit an
appropriate affidavit ordinarily requires dismissal of the complaint with prejudice.”). We found
that Plaintiff’s AOM was deficient because it did not identify whose professional negligence was
relevant to Plaintiff’s claims. The Court thus granted Defendant’s Motion for Summary Judgment
in an opinion and order (Doc. Nos. 53, 54) dated May 7, 2018.
Plaintiff has responded to the Court’s order by filling a Motion for Reconsideration (Doc.
No. 55), asking this Court to reverse its decision to grant summary judgment based on Plaintiff’s
failure to comply with the AOM requirements under New Jersey state law.
II.
THE MOTION FOR RECONSIDERATION STANDARD
Motions for reconsideration are filed pursuant to Federal Rule of Civil Procedure 59(e) and
are governed by Local Civil Rule 7.1(i), which allows a party to seek reconsideration by the court
in matters that the party believes the judge has “overlooked.” Carney v. Pennsauken Twp. Police
Dep’t., Civ. No. 11-7366, 2013 WL 4501454, at *1 (D.N.J. Aug. 21, 2013); Church & Dwight Co.
v. Abbott Labs., 545 F. Supp. 2d 447, 449 (D.N.J. 2008). “The standard for reargument is high and
reconsideration is to be granted only sparingly.” Yarrell v. Bartkowski, Civ. No. 10-5337, 2012
WL 1600316, at *3 (D.N.J. May 7, 2012) (citing United States v. Jones, 158 F.R.D. 309, 314
(D.N.J. 1994)). To be successful on a motion for reconsideration, a petitioner has the burden to
demonstrate: (1) an intervening change in the controlling law; (2) the availability of new evidence
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that was not available when the court issued its order; or (3) the need to correct a clear error of law
or fact or to prevent manifest injustice. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999). A motion under Rule 7.1(i) may address only those matters of fact
or issues of law which were presented to, but not considered by, the court in the course of making
the decision at issue. See, e.g., Fellenz v. Lombard Inv. Corp., 400 F. Supp. 2d 681, 683 (D.N.J.
2005). A motion for reconsideration is not a vehicle for raising new arguments.
III.
DISCUSSION
Plaintiff asserts that this Court erred in granting Defendant’s Motion for Summary
Judgment. Plaintiff advances several arguments in support of her contention that this Court ruled
incorrectly. First, Plaintiff argues that the Court was incorrect in finding that Dr. Guzzardi was not
qualified as an affiant. Second, Plaintiff asserts that she did, in fact, comply with the statutory
requirements for filing an AOM. Finally, Plaintiff argues in the alternative that even if she did not
comply with every single requirement for filing an AOM, that she substantially complied, which
is enough to meet the standard set forth by the New Jersey Supreme Court. While Dr. Guzzardi
may be qualified to submit the AOM, a question we need not resolve to decide this matter today,
the Court disagrees with Plaintiff’s second and third arguments. We address each argument in turn.
Dr. Guzzardi Is Qualified to Provide an AOM
The AOM statute requires that a plaintiff who sues alleging “malpractice or negligence by
a licensed person in his profession or occupation . . . shall . . . provide each defendant” with an
AOM by an “appropriate licensed person.” N.J. Stat. Ann. § 2A:53A-27. Section 27 “requires no
more than that the person submitting an affidavit of merit . . . have particular expertise in the
general area or specialty involved in this action.” Meehan v. Antonellis, DMD, 226 N.J. 216, 237
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(2016). See also Cornblatt v. Barow, 708 A.2d 401, 411 (N.J. 1998) (holding that the submission
of a certificate instead of, or in addition to, the affidavit does not violate the AOM statute).
This Court previously expressed its skepticism that Dr. Guzzardi was qualified; Plaintiff
contends that he is. Attached to her Motion for Reconsideration as Exhibit F is a Certification of
Dr. Guzzardi. The Certification sets forth Dr. Guzzardi’s relevant experience and knowledge about
prisons, intake-screening processes, and drug-related psychological problems. Dr. Guzzardi
certifies that he has “written a text and prepared a videotape series to train Correctional Officers
in the Screening of Inmates for Common Medical Problems” under a grant from the Department
of Justice. (Pl. Br. Ex. F.) Additionally, Dr. Guzzardi has inspected correctional institutions for the
Department of Justice in several states, and is an expert in “the initial screening of inmates,
specifically the evaluation of potentially suicidal inmates and inmates suffering from drug
withdrawal . . . .” (Id.)
While the information provided by Dr. Guzzardi in the initial AOM alone was insufficient
to demonstrate his qualifications, the supplemental facts provided in Plaintiff’s Motion for
Reconsideration are enough to recognize Dr. Guzzardi as an “appropriate licensed person” in the
“general area or specialty involved in the action” to complete an AOM in the case at hand. See
N.J. Stat. Ann. § 2A:53A-26; Meehan, 226 N.J. at 237. It appears from the record that Defendant
had access to the certification form in advance of filing its Motion for Summary Judgment. If so,
Defendant would not be unduly prejudiced by the lack of explicit qualifications listed in the AOM,
as Defendant would have had ready access to the relevant qualifications anyway. But there remains
the basis for this Court’s skepticism of his qualifications: Dr. Guzzardi’s qualifications depend on
whose professional negligence he purports to review. And that question remains as uncertain as
before.
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Plaintiff Failed to Meet the Requirements for Filing an AOM
“[A]n AOM must be submitted addressing an institution’s agents who are not sued but
whose alleged negligence forms the basis of the action against the institution.” Johnson v. Handler,
No. A-3862-13T3, 2015 WL 10677203, at *6 (N.J. Super. Ct. App. Div. Apr. 15, 2016); cf.
McCormick v. State, 446 N.J. Super. 603, 613–14 (2016) (finding that an AOM is required when
suing a public entity, “regardless of whether the plaintiff chooses to name the negligent
professionals as co-defendants”). As this Court noted in its opinion granting Defendant’s Motion
for Summary Judgment, the AOM’s failure to address who was negligent is problematic. Plaintiff
has sued Defendant, not its employees, but New Jersey law makes clear that it must still produce
an AOM showing an appropriate qualified person scrutinized each relevant employee’s alleged
professional negligence.
The Court noted in its prior opinion that Plaintiff’s complaint—no model of clarity or
drafting—appeared to be premised on a theory of respondeat superior, or vicarious liability,
against Defendant for the actions of its employees.1 But to the extent that there is a negligent
supervision claim raised in the complaint, it is subject to the same AOM requirement whenever
the cause of action implicates the standards of care within a given profession. See McCormick, 446
N.J. Super. at 613–14. For both respondeat superior and negligent supervision, the standard of
care that will be relevant to the success of such a claim requires identifying a specific party who
“[R]epresentatives of CFG, were charged with the duty [sic] diligently and faithfully carry out
the functions of their respective jobs . . .” (Compl. at 4); “Representatives of Defendant CFG failed
to properly screen Megan Moore for any suicidal tendencies . . .” (Id.); and “[I]t is my opinion that
there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the
treatment of Megan Moore . . . by CFG Health Systems, LLC, by and through its employees, agents
and/or workman [sic] fell outside the professional care and treatment standards for prison
inmates.” (AOM ¶ 6.)
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acted with professional negligence. Under either articulation of employer liability, then, the AOM
is deficient, because it does not identify anyone other than the employer.
Plaintiff argues this is a harsh result, but that is the purpose of the statute. The Court is
cognizant that the statute should not be construed as a “minefield of hyper-technicalities.” Ryan v.
Renny, 203 N.J. 37, 999 A.2d 427, 435–36 (2010) (internal citations omitted); see also Szemple v.
Univ. of Med. & Dentistry of New Jersey, 162 F. Supp. 3d 423, 426 (D.N.J. 2016). But Plaintiff
has nonetheless flouted the AOM statute’s screening purposes. Put simply, a plaintiff must identify
who was professionally negligent, and then have an “appropriate licensed person” certify that her
claim is meritorious, before she can proceed with a claim of professional negligence. “If 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). Serving fifteen
defendants with an AOM that shows a meritorious claim against only one defendant is improper.
The plain deduction, then, is that an AOM needs to identify the meritorious claims against each
defendant. Here, however, the AOM does not identify anyone save for the employer. That is
insufficient: the affiant must have some way of knowing whether the claim was meritorious or if
he or she was even qualified to opine on the alleged professional negligence. How, indeed, could
Dr. Guzzardi certify that a claim of professional negligence is meritorious if he does not even know
the professions involved? The affiant needs to state whose professional negligence is at the heart
of the lawsuit. That didn’t happen here.
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Plaintiff Failed to Substantially Comply with the Requirements for Filing an
AOM
Plaintiff further contends that, even if this Court were to find that Plaintiff failed to comply
with the statutory requirements for filing an AOM as set forth in N.J. Stat. Ann. § 2A:53A-29, that
they nonetheless “substantially complied” to the extent deemed permissible by the New Jersey
Supreme Court. The doctrine of substantial compliance that Plaintiff argues she has met requires
that she demonstrate:
(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply
with the statute involved; (3) a general compliance with the purpose of the statute;
(4) a reasonable notice of petitioner’s claim, and (5) a reasonable explanation why
there was not a strict compliance with the statute.
Fink, 167 N.J. at 561 (quoting Cornblatt, 708 A.2d at 411). The purpose of the substantial
compliance doctrine is to “avoid technical defeats of valid claims.” Zamel v. Port of New York
Authority, 56 N.J. 1, 6 (1970).
Plaintiff contends that even though the AOM she filed did not name any individual or
employee of Defendant, it will not prejudice Defendant. Plaintiff argues that by simply receiving
the AOM, Defendant was provided fair notice of this and that Defendant would thus be able to
properly prepare a defense. The Court rejects this argument. In essence, Plaintiff asks this Court
to waive an element of a cause of action. See N.J. Stat. Ann. § 2A:53A-29 (“If the plaintiff fails to
provide an affidavit . . . it shall be deemed a failure to state a cause of action.”). This request has
no basis under law or equity; Defendant is entitled to the protections that the New Jersey state
legislature, in its deliberative and collective decision-making, deemed appropriate when it
determined that the AOM would constitute a necessary part of a professional negligence action. It
is not this Court’s place to supersede state law with its own notions of what is best. To do otherwise
would prejudice Defendant.
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Undeterred, Plaintiff argues that the mere act of filing an AOM on time, regardless of its
deficiencies, is enough to show that she has taken “a series of steps to comply with the statute.”
Fink, 167 N.J. at 561. Pursuing Plaintiff’s logic to its natural ends, one would substantially comply
by signing and timely presenting a blank AOM. This formulation of substantial compliance is akin
to a runner taking the first step in a marathon and proclaiming that she has substantially completed
it. But “substantial” performance in such circumstances at least contemplates being closer to the
finish than the starting line. It looks to the “substance” of performance and how much of it was
accomplished; omitting the name of the person whose professional negligence allegedly harmed
Plaintiff simply circumvents the statute entirely.
Having failed to meet either of the first two prongs of the substantial compliance doctrine,
the Court finds that Plaintiff has failed to substantially comply with the AOM statutory
requirements. Substantial compliance requires substance; the AOM lacked it.
IV.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Reconsideration is DENIED. An
order follows.
Dated:
July 18, 2018
/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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