DIANA et al v. UNITED STATES OF AMERICA
LETTER OPINION & ORDER granting 47 Motion to Dismiss ***CIVIL CASE TERMINATED. Signed by Judge Madeline C. Arleo on 2/20/15. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARTIN LUTHER KING
50 WALNUT ST.
NEWARK, NJ 07101
MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE
February 20, 2015
AnnMarie Mulcahey Leikauf, Esq.
Counsel for Plaintiff
Michael E. Campion, Esq.
Counsel for Defendant
LETTER OPINION & ORDER
Diana v. United States
Civil Action No. 12-7790
Before the Court is the United States’ motion for judgment on the pleadings pursuant to
Federal Rules of Civil Procedure 12(c) and 12(h)(2) [Dkt. No. 47]. The Court held oral argument
on February 11, 2015, and granted the United States’ motion. This Letter Opinion & Order
supplements the Court’s oral ruling.
Richard D. Diana (“Plaintiff”) alleges in this case that Department of Veterans Affairs (the
“VA”) doctors committed medical malpractice in connection with his hip replacement surgery
performed on or about August 21, 2007. (See Dkt. No. 1, Compl., at ¶¶ 1-54). Plaintiff is a
military veteran residing in Saddle Brook, New Jersey. (Id. at ¶¶ 3, 11). The VA is an agency
of the United States that provides medical care to veterans, and Plaintiff sought treatment at the
VA’s East Orange, NJ, Medical Center (the “East Orange Facility”) for his right hip condition.
(Id. at ¶¶ 6, 11). On or about August 21, 2007, Plaintiff alleges that he underwent hip replacement
surgery at the East Orange Facility, which resulted in the implantation of a “metal-on-metal” cup
device manufactured by Zimmer. (Id. at ¶¶ 12-14). Plaintiff alleges on information and belief
that it was common knowledge within the medical community that this particular hip implant
suffered from serious difficulties and, further, that the device used in Plaintiff’s surgery was both
voluntarily recalled and subjected to mandatory recall by the FDA. (Id. at ¶¶ 15-17). Plaintiff
additionally claims that VA doctors did not sufficiently apprise him of the risks associated with
the implant and that he did not consent to its implantation. (See id. at ¶¶ 18-19, 46-49).
Plaintiff further alleges that, immediately following the surgery, he suffered significant
blood loss, experienced “pain, difficulty walking, sensation of movement of the device, unsteady
gait,” and had a right leg that was now shorter than his left. (Id. at ¶¶ 21-23, 26). Plaintiff claims
that although the VA doctors assured him that he simply needed time to heal, he eventually was
forced to undergo corrective surgery on or about August 29, 2008, to replace the implant as a result
of “right total hip loosening.” (Id. at ¶¶ 27-31). Plaintiff states that the complications arising
from his right hip replacement have resulted in, inter alia, (1) termination from his employment;
(2) multiple subsequent surgeries; (3) infections and continued pain; and (4) inability to pay
medical bills and other expenses. (See id. at ¶¶ 33-45).
Prior to bringing suit, Plaintiff timely pursued his claims via the administrative process,
and his claims were ultimately denied on June 20, 2012. (Id. at ¶¶ 8-9). Plaintiff then filed the
instant Complaint on December 20, 2012. The United States ultimately answered the Complaint
on December 10, 2013. (Dkt. No. 31, Answer). The instant motion was then filed on September
11, 2014. The United States asserts that the Complaint must be dismissed with prejudice in light
of Plaintiff’s failure to file an affidavit of merit as required by New Jersey law under N.J.S.A. §
2A:53A-26-29 in any case involving a claim of professional malpractice. Plaintiff argues in
opposition that he was not required to file an affidavit of merit because, inter alia: (1) the United
States had actual knowledge of the malpractice; (2) under the common knowledge doctrine, no
affidavit was needed because the malpractice would be apparent to a layperson; and (3)
extraordinary circumstances excuse the failure to file the affidavit. For the reasons that follow,
this Court agrees with the United States, and this case must therefore be dismissed with prejudice.
A. Standard of Review Under Rule 12(c)
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the
pleadings after pleadings have closed. Rule 12(h)(2)(B), in turn, allows a defendant to raise the
defense of failure to state a claim on which relief can be granted “by a motion under Rule 12(c).”
Accordingly, when a defendant moves for judgment on the pleadings on the basis of that defense,
the motion “is analyzed under the same standards that apply to a Rule 12(b)(6) motion.” Revell
v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010).
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading is sufficient so long as it
includes “a short and plain statement of the claim showing that the pleader is entitled to relief” and
provides the defendant with “fair notice of what the . . . the claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)) (internal quotations omitted). In considering a Rule 12(b)(6) motion to
dismiss, the court accepts as true all of the facts contained in the complaint and draws all reasonable
inferences in favor of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008). While this standard certainly places a considerable burden on the party seeking dismissal,
the facts alleged must be “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. That is, the allegations
in the complaint “must be enough to raise a right to relief above the speculative level.” Id.
Accordingly, a complaint will survive a motion to dismiss if it provides a sufficient factual basis
such that it states a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In any case involving allegations of medical malpractice, the New Jersey Affidavit of Merit
Statute requires the plaintiff to provide each defendant with an affidavit from a licensed physician
stating “that there exists a reasonable probability that the care, skill or knowledge exercised or
exhibited . . . fell outside acceptable professional or occupational standards or treatment practice.”
N.J.S.A. 2A:53A-27. The plaintiff must file the affidavit within sixty days of the filing of the
defendant’s answer. Id. The court may, however, grant a single extension of up to sixty
additional days upon a showing of good cause. Id. The affidavit of merit is a substantive
requirement. See Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 246-47 (1998). Accordingly,
the failure to provide an affidavit of merit within the 120-day timeframe generally “requires
dismissal with prejudice because the absence of an affidavit of merit strikes at the heart of the
cause of action.” Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415, 422 (2010);
see also Vitale v. Carrier Clinic, Inc., 409 F. App’x 532, 534 (3d Cir. 2010).
In certain cases, however, a plaintiff may be able to avoid dismissal with prejudice. First,
a plaintiff may be excused from his or her failure to file the affidavit upon a showing that
extraordinary circumstances prevented its filing. Paragon, 202 N.J. at 422-23. Importantly, the
New Jersey Supreme Court has held that attorney inadvertence does not constitute an extraordinary
circumstance. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 152 (2003). Moreover,
New Jersey Supreme Court case law demonstrates that a plaintiff claiming extraordinary
circumstances faces an exceedingly high burden in proving such circumstances. See, e.g.,
Tischler v. Watts, 177 N.J. 243, 244-47 (2003) (attorney’s failure to identify deficiencies in
doctor’s affidavit of merit was excused in light of her ongoing radiation and chemotherapy
treatment for terminal lung cancer).
In this case, Plaintiff fails to demonstrate that extraordinary circumstances prevented the
filing of the affidavit of merit. Plaintiff’s argument on that ground consists of a single paragraph
at the end of his brief that does not address any facts that would be relevant in the analysis.
Plaintiff merely recites various allegations contained in the Complaint and argues that the case
itself represents an “extraordinary situation.” In other words, Plaintiff seems to argue that the
self-perceived merit of his case presents an extraordinary situation that relieves him of the duty to
file an affidavit of merit. Plaintiff simply fails to identify any facts that would suggest the
existence of the kind of difficulty that the New Jersey Supreme Court has identified as an
extraordinary circumstance. Therefore, the Court finds that there did not exist extraordinary
circumstances that prevented the filing of an affidavit of merit.
Second, the need for an affidavit of merit may be obviated entirely upon a showing that
jurors would possess sufficient common knowledge as laypeople such that they would be able “to
determine a defendant’s negligence without the benefit of the specialized knowledge of experts.”
Estate of Chin ex rel. Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999). This “common
knowledge doctrine” may only be invoked in cases in which the defendant’s carelessness “is
readily apparent to anyone of average intelligence and ordinary experience.” Rosenberg ex rel.
Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). In other words, the doctrine will only apply in
cases where the defendant’s negligence can be determined without any reliance whatsoever on
expert testimony. See Chin, 160 N.J. at 470. The doctrine’s application is therefore exceedingly
narrow, and it should only be invoked “in exceptionally obvious cases.” Small v. Lanigan, No.
11-2565, 2013 WL 5530010, at *2 (D.N.J. Oct. 4, 2013) (citing Hubbard v. Reed, 168 N.J. 387
The Court is also convinced that the alleged malpractice in this case is not so obvious that
invocation of the common knowledge doctrine would be warranted. Plaintiff’s medical
malpractice claim rests on theories of lack of informed consent, negligent implantation of the hip
device, and negligent treatment of the hip following surgery. As to lack of informed consent, the
Third Circuit has held in no uncertain terms that an affidavit of merit is always required in order
to maintain a medical malpractice action under such a theory. See Mulholland v. Thomas
Jefferson Univ. Hosp., Inc., 491 F. App’x 300, 302 (3d Cir. 2012); Chamberlain v. Giampapa, 210
F.3d 154, 161-62 (3d Cir. 2000). With respect to Plaintiff’s negligent implantation theory, the
Court finds Plaintiff’s argument for application of the common knowledge doctrine to be entirely
without merit. Plaintiff simply offers the unsupported conclusion that “it is common knowledge
among the public at large that ‘metal-on-metal’ hip replacements cause injuries.” Even assuming,
however, that metal-on-metal hip replacements were prone to causing injuries and that the public
was aware of that fact, the common knowledge doctrine would still not apply. This is because
Plaintiff has proffered no evidence demonstrating that the use of a metal-on-metal hip implant
would be obviously negligent under any circumstances. Plaintiff would still be required to
provide expert testimony tending to show that it would be malpractice for a doctor to use a metalon-metal hip implant either under any circumstances or under the specific circumstances presented
in Plaintiff’s case. This same analysis applies to Plaintiff’s theory of malpractice with respect to
his post-surgery treatment. Accordingly, the Court rejects the application of the common
knowledge doctrine in this case.
Third, this Court is equally unconvinced that an affidavit of merit is not required because
a doctor at the VA allegedly made an admission of medical malpractice. Even if there were some
statement by a VA doctor that could be construed as an admission of malpractice—and the United
States vigorously disputes that there was—that admission would not obviate the need for an
affidavit of merit. Plaintiff was still required to obtain the opinion of an independent doctor
stating that there existed a reasonable probability that medical malpractice had occurred. To hold
otherwise would be to open the door to malpractice plaintiffs who could avoid their duty to provide
an affidavit of merit simply by alleging in the complaint that the defendant doctor admitted to the
malpractice. The Court cannot sanction such a result. Accordingly, Plaintiff’s argument is
For the reasons set forth above, and for the reasons set forth on the record during the
February 11, 2015, hearing before the Court, the United States’ motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) is hereby GRANTED. Plaintiff’s
case is therefore DISMISSED WITH PREJUDICE.
s/Madeline Cox Arleo
MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE
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