MYERS v. ATLANTIC HEALTH SYSTEMS et al
OPINION. Signed by Judge John Michael Vazquez on 6/30/17. (DD, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 13-47 12
ATLANTIC HEALTH SYSTEMS, et al,
John Michael Vazguez, U.S.D.J.
This matter comes before the Court by way of a motion for reconsideration filed by Plaintiff
Corinne Myers. D.E. 126. Defendants Atlantic Health System (“Atlantic”), Joseph Pasquarosa
and Dorothy Zarillo filed a brief in opposition. D.E. 12$. The Court reviewed the submissions
made in support and in opposition to the motion, and considered the motion without oral argument
pursuant to fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below, Plaintiffs
motion is DENIED.
This case arose afler Plaintiff, a nurse, was terminated from her position at Morristown
Medical Center (“MMC”) due to a suspicion by Defendants that Plaintiff was diverting drugs.
MMC is owned by Defendant Atlantic. Plaintiff contends that she was actually terminated in
retaliation for whistleblowing activities.
Plaintiffs second amended complaint (the “SAC”) asserted claims for (1) perceived
disability under the Americans with Disabilities Act and the New Jersey Law Against
Discrimination based on allegations that Defendants’ perceived Plaintiff to be a drug addict; (2)
wrongful termination under the New Jersey Conscientious Employee Protection Act (“CEPA”)
due to the alleged whistleblowing activities; and (3) multiple tort claims. D.E. 17. Defendants
filed a motion for summary judgment as to all claims in the SAC, which the Court granted in its
entirety. D.E. 125. Through this motion, Plaintiff requests that the Court reconsider its decision
pertaining to one aspect of the CEPA claim.
In the District of New Jersey, motions for reconsideration can be made pursuant to Local
Civil Rule 7.1(i). The rule provides that such motions must be made within fourteen days of the
entry of an order. Substantively, a motion for reconsideration is viable when one of three scenarios
is present: (1) an intervening change in the controlling law, (2) the availability of new evidence
not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.
Carmichael v. Everson, No. 03-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004) (citations
omitted). A motion for reconsideration, however, does not entitle a party to a second bite at the
apple. Therefore, a motion for reconsideration is inappropriate when a party merely disagrees with
a court’s ruling or when a party simply wishes to reargue or revisit its original motion. Sch.
Specialty, Inc. v. Ferrentino, No. 14-4507, 2015 WL 4602995, *2.3 (D.N.J. July 30, 2015); see
also Florham Park Chevron, Inc. v. Chevron U$.A., 680 F. Supp. 159, 162 (D.N.J. 1988).
In its summary judgment opinion, the Court concluded that Plaintiff failed to establish a
primafacie CEPA claim for two separate whistleblowing activities. One activity involved the care
of an elderly patient, specifically, whether medical staff provided an appropriate level of care while
obtaining a Do Not Resuscitate order (“DNR”). The other involved Plaintiffs refusal to work in
the “step-down” unit. Opinion at 11-12, D.E. 124. Plaintiff only seeks reconsideration as to
whether she established aprimafacie claim for the elderly patient incident.
Plaintiff argues that the Court erred in concluding that she failed to satisfy the first element
of aprimafacie claim. Plfs Br. at 2. To satisfy the first element of aprimafacie case for a CEPA
claim “a plaintiff must identify the authority that provides a standard against which the conduct of
the defendant may be measured.” Tinio v. Saint Joseph Reg ‘1 Med. Ctr., 645 F. App’x 173, 178
(3d Cir. 2016) (quoting Hitesman v. Bridgeway, Inc., 218 N.J. 8, 31(2014)). A licensed health
care professional may satisfy this element by demonstrating that a defendant’s conduct or policy
“constitutes ‘improper quality of patient care’, that is, ‘violates any law or any rule, regulation or
declaratory ruling adopted pursuant to law, or any professional code of ethics.” Klein v. Univ. of
Med. & Dentistry of N.i, 377 N.J. Super. 28, 42 (App. Div. 2005) (citing N.J.S.A. 34:19-
3(c)(1), -2(f)). A plaintiff may also satisfy this standard by identifying “a clear mandate of public
policy concerning the public health, safety, or welfare.” Hitesman, 218 N.J. at 33 (citing N.J.S.A.
34:19-3(c)(3)). The public policy “must be clearly identified and firmly grounded.” Id. at 34
(quoting Mehiman v. Mobil Oil Corp., 153 N.J. 163, 181 (1993)); see also Tinio, 645 F. App’x at
178 (“In order for a substantial nexus to exist, the mandate of public policy “cannot be vague” and
must “provide [al standard by which.. a deficiency can be ascertained.”).
Plaintiff contends that Provision One of the American Nurses Association (“ANA”) Code
of Ethics, and the related Interpretive Statement 1.4 support her whistleblowing claim. Plf s Br.
at 2-3. Plaintiff, however, made the same argument in opposition to Defendants’ motion for
PWs $J Br. at 6-7.
Thus, Plaintiff merely reasserts the argument she
previously made in the motion for summary judgment.
As the Court stated in its summary
The ANA Code does not provide any general standards for obtaining
a DNR or treating patients while a DNR is obtained, and it does not
govern Atlantic’s policies as to patient care. Thus, “it provides no
standard under which a factfinder could determine whether plaintiff
held an objectively reasonable belief that [Atlantic] delivered an
‘improper quality of patient care.”
Opinion at 11 (citing Hitesman, 218 N.J. at 37). In her motion for reconsideration, Plaintiff does
not assert that the Court overlooked any critical authorities or that it committed a manifest error of
law in concluding that the ANA code did not support her CEPA claim. Thus, Plaintiff does not
assert a proper basis upon which the Court could reconsider its decision regarding the ANA Code.
See, e.g., In re Hlywiak, 573 F. Supp. 2d 871, 873 (D.N.J. 2008) (“Mere disagreement with a
court’s decision should be raised through the appellate process and is inappropriate on a motion
for reargument.”); Schiano v. MBNA Coip., No. 05-1771, 2006 WL 3831225, at *2 (D.N.J. Dec.
28, 2006) (“Mere disagreement with the Court will not suffice to show that the Court overlooked
relevant facts or controlling law.”).
Plaintiff also contends that she properly asserted a clear public policy regarding the State’s
interest to preserve life, such that she satisfied the first element for a prima fade whistleblowing
claim. Pif’s Br. at 3. In making this same argument in opposition to Defendants’ motion for
summary judgment, Plaintiff maintained that In re Quinlan, 70 N.J. 10 (1976), and Betancourt v.
Trinitas Hosp., 415 N.J. Super. 301 (App. Div. 2010), were the source of this public policy. Ph’s
SJ Br. at 6. The Court determined that
[w]hile Qttilan and Betancojirt do generally address patients’ right
to life neither discusses the parameters of DNR orders. Therefore,
neither case is a sufficient expression of a clear public policy
regarding procedures for obtaining a DNR or specific aspects of
patient treatment. “[MJerely couching complaints in terms of a
broad-brush allegation of a threat to patients’ safety is insufficient
to establish the first prong of a CEPA claim.”
Opinion at 12 (citing Klein, 377 N.J. Super. at 42). Plaintiff argues that these cases must be read
in conjunction with new authorities. Plfs Br. at 3. However, Plaintiffs additional authorities
largely address circumstances in which life-sustaining care was stopped. See, e.g., In re Conroy,
486 A.2d 1209, 1217 (1985) (addressing who may decide to remove a feeding tube that would
likely lead to individual’s death in one week and the procedures for making such a decision). The
additional cases support the general proposition that there is a public policy regarding the
preservation of life, but they fail to provide the Court with any clear parameters as to how medical
professionals should obtain DNRs or the care that should be provided when a DNR is obtained.
The specific DNR standard is the issue rather than broader and more general policies.1 Moreover,
the cases cited by Plaintiff were not issued after the Court’s prior decision and could have been
cited and relied on in the motion for summary judgment. Therefore, Plaintiff fails to point the
Court to any legal authority that it overlooked such that there is a need to fix a clear error of law.
Consequently, Plaintiff fails to meet the standard for reconsideration regarding her CEPA claim
and her motion is denied.
Plaintiff also contends that the Court “incorrectly analyzed” the allegations in her Complaint and
that her concern regarding the elderly patient was in regards to the fact that the patient was not
given care while the DNR was obtained. PH’s Br. at 3. Plaintiff did not make this argument in
her opposition to Defendants’ motion for summary judgment. Pit’s SJ Br. at 3, 6-7. The Court
finds this claim to be without merit.
For the foregoing reasons and for good cause shown, Plaintiffs motion for reconsideration
(DiE. 126) is DENIED. An appropriate form of order accompanies this opinion.
Dated: June 30, 2017
John Michael Vazque, U.D.J.
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