MACK v. THE TOWN OF MORRISTOWN et al

Filing 27

OPINION. Signed by Judge Madeline Cox Arleo on 5/24/17. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KIM Y. MACK,
Plaintiff,
v.

Civil Action No. 15-2946
OPINION

THE TOWN OF MORRISTOWN, et al.,
Defendants.
ARLEO, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant The Housing Authority of the Town of
Morristown’s (“MHA”) motion for summary judgment.

Dkt. No. 23.

In this disability

discrimination case, Plaintiff Kim Mack, who suffers from diabetes and foot issues, claims that
MHA failed to grant her a reasonable accommodation when it denied her request to delay her
transfer from one rental unit to another. MHA moves for summary judgment on the grounds that
her claims are time-barred and her request was neither necessary nor reasonable. The Court finds
that all claims except one are time-barred, and fact issues preclude summary judgment on the
remaining claim. The motion is GRANTED IN PART and DENIED IN PART.
I.

BACKGROUND
In April 2011, Mack and her two daughters moved from Virginia to a three-bedroom

townhouse in Morristown, New Jersey. 1 She leased the unit from MHA, a housing authority that
provides public housing to residents in Morristown. Although she signed a lease for that unit,

1

Unless stated otherwise, the following facts are taken from the undisputed portions of MHA’s
Local Civil Rule 56.1(a) Statement of Material Facts. See L.Civ.R. 56.1(a); R.56 Stmt., Dkt. No.
23-9. This includes statements that Mack contests without citing to evidence that establishes a
genuine factual dispute.

MHA had the power to transfer her to a smaller unit if a “decrease in family size creates . . . the
underutilization of [her current] unit.” Gross Aff. Ex. 1, Lease §§ 4(c), 16(i). If that happened,
she would have 30 days to change apartments. Id. § 4(c). She could dispute the transfer by filing
a grievance and participating in an internal review process. See id. § 13.
In October 2011, Mack’s daughters told MHA that she “threw them out” of the house.
They moved back to Virginia, leaving Mack by herself in the three-bedroom unit.
In February 18, 2013, Mack stepped on a nail, injuring the third toe on her left foot. She
was treated in the emergency room at Morristown Medical Center. Harrison Cert. Ex. F, Medical
Records from Morristown Medical Center (“MMC Records”) at 8, Dkt. No. 23-3. Mack left the
hospital that day with instructions to clean and treat the cut. Id. at 9.
A week later, on February 25, she visited her podiatrist, Dr. Angelo Del Priore, for followup treatment on her toe. Dr. Del Priore noted that her emergency room exams did not reveal an
infection “at that time” but that she now had an ulcer and “erythematous and edema to the base of
the 3rd toe.” Harrison Cert. Ex. J, Medical Records from Dr. Angelo Del Priore, D.P.M. (“Del
Priore Records”), at 1, Dkt. No. 23-3. Dr. Del Priore’s records indicate that he told Mack to return
for another follow-up in a week. Id. at 2. When Mack did not schedule the visit, Dr. Del Priore
noted that he called her to come back in because she had a staph infection. Id. Mack declined,
saying her “toe was doing better and [she] felt no rush to come in.” Id.
On March 13, roughly a year and a half after Mack’s daughters moved out, MHA sent
Mack a written notice to transfer units. The letter stated that MHA was transferring her to a onebedroom unit down the street due to the change in her family composition.
Notice of Transfer Letter dated March 13, 2013 at 1, Dkt. No. 23-3.

Gross Aff. Ex. 3,

According to the letter, she

had to move on April 15. Id. If she did not agree to move, the letter stated that MHA would

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terminate her lease and could evict her. Id. The letter also explained that she had the right to
contest the transfer under MHA’s grievance procedures, and she would not have to move during
the pendency of that process. Id. at 2.
Soon after receiving the letter, Mack spoke with her assigned MHA contact, Assistant
Protect Manager Cynthia Sargent, to seek additional time to move out. Mack says she spoke with
Sargent “several times,” though her deposition testimony, which is largely disjointed, does not
indicate when they spoke or the specifics of their conversations. Harrison Cert. Ex. E, Deposition
of Kim Mack (“Dep. Tr.”) 132:13-18, Dkt. No. 23-3. For example, Mack stated in her deposition
that she first requested an extension from Sargent sometime in March and gave Sargent a letter
from her doctor; but Mack does not say when that meeting occurred or remember what the letter
said. Dep. Tr. 117:20-120:9. At some point, Sargent told Mack that “she thought she would be
able to give [Mack] more time,” but she would let Mack know. Dep. Tr. 125:4-10. At another
point—again, Mack does not say when—Mack asked for “at least a couple of months” of extra
time “because that’s what [her doctor] said. My foot needed a couple months to heal.” Dep. Tr.
125:19-22.
On April 8, 2013 Mack spoke with a new doctor, Dr. Felsen, who provided Mack a second
letter. Dep. Tr. 121:18-21, 137:9-138:3. The letter stated:
Ms. Kim Mack . . . is an established patient of our office. She has a
history of insulin dependent type 2 diabetes, with associated Charcot
deformity of her right foot and severe peripheral neuropathy
(numbness in both legs). She also has a history of multiple diabetic
ulcers on both feet. Ms. Mack will need surgery for her right foot
and also follows regularly with a podiatrist. As a result of her
medical conditions, she should not have to move at this time. If there
are any questions, please call our office . . . .
Ex. D Attachment, Letter dated April 8, 2013 (“Felsen Letter”). Mack gave Sargent the Felsen
Letter. Dep. 123:13-19. Sargent responded the same day (April 8) that MHA would grant Mack
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a two-week extension on the April 15 move-out day, allowing her to move on April 29. Dep. Tr.
124:16-125:3. Mack said that would not be enough time, but Sargent said there was “nothing she
could do” to push the move date any farther; Mack had to be out by the 29th. Dep. Tr. 124:23125:3, 125:15-19. Mack did not request a hearing, despite reading the original notice of transfer
letter’s grievance procedures, because she “thought it was pointless.” Dep. Tr. 132:19-134:6.
That same day, Mack visited Dr. Del Priore again, who noted that her third toe was still
infected but “resolving,” and that Mack “never went for an MRI as instructed by her medical
doctor.” Del Priore Records at 2. He scheduled a follow-up appointment with her, but she missed
it again. Id.
Mack moved out of her townhouse the last weekend in April. She could not afford a
moving company, so she sought help from her family. Dep. Tr. 147:2-19. On Friday, April 26,
her father and his friend moved the large items to her new unit located a little over 500 feet away.
They were not available the next two days, leaving Mack alone to carry over the smaller items by
foot, which required her to make 20 to 30 trips on Saturday and Sunday. Dep. Tr. 153:8-154:23.
On Monday, April 29, 2013, Mack turned in the keys to her old unit. Dep. Tr. 146:14-21.
On May 16, 2013, a month and a half since her last visit and two weeks since moving out,
Mack returned to Dr. Del Priore. He noticed that the infection in her third toe increased and the
tip of the toe was necrotic, with a “[d]arkening pre-gangrenous appearance.” Del Priore Records
at 2. He sent Mack to the emergency room. Two days later, Mack underwent surgery to partially
amputate her third toe. Culture swabs of the toe returned positive for MRSA, a bacterial staph
infection. She was discharged with a diagnosis of uncontrolled diabetes and MRSA. Her
discharge papers noted that Mack had issues with the toe “since the middle of March in 2013,” she

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“was not compliant with office visit instructions”; and she “was supposed to get an MRI of the
foot which was not done.” MMC Records at 1.
Mack filed this lawsuit against MHA on April 27, 2015—over two years since the final
meeting with Sargent on April 8, 2013, but under two years since Mack gave up her apartment on
April 29, 2013. Dkt. No. 1. She asserted claims under (1) negligence; (2) the Federal Fair Housing
Act (“FHA”), 42 U.S.C. §§ 3601, et seq.; (3) the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, et seq.; (4) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); (5)
the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. § 10:5-12(g)(2) and the
administrative rules promulgated thereunder, N.J.A.C. § 13:13-3.4(f)(2); and (6) intentional
infliction of emotional distress.

The claims stem from the same basic allegations: MHA

discriminated against Mack based on her disability by failing to grant her a reasonable
accommodation to move out later than April 29, 2013.
MHA filed the instant motion for summary judgment. In her opposition papers, Mack
agreed to dismiss the negligence, ADA, and intentional infliction claims. Opp’n Br. at 2, Dkt. No.
24. Only the FHA, Rehabilitation Act, and NJLAD claims remain.
II.

LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 56(c), a motion for summary judgment will be granted if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with available
affidavits, show that there is no genuine dispute as to any material fact and that the moving party
is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment may be granted
only if there exists no genuine issue of material fact that would permit a reasonable jury to find for
the nonmoving party.” Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and

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inferences must be construed in the light most favorable to the non-moving party. Peters v. Del.
River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994).
III.

ANALYSIS
MHA moves for summary judgment on the FHA, Rehabilitation Act, and NJLAD claims

because (1) the claims are time-barred; (2) the requested accommodation was not necessary or
reasonable; (3) Mack has not provided expert testimony to support her theory that her injury was
caused by the denial of accommodations; and (4) MHA did not engage in sufficiently egregious
conduct to support punitive damages. The Court will address each in turn.
A. Statute of Limitations
First, MHA argues that the FHA, Rehabilitation Act, and NJLAD claims are barred by the
relevant two-year statutes of limitations. They argue that the limitations periods accrued on April
8, 2013 when MHA denied Mack’s request, and therefore the claims are untimely. The Court
agrees, but only for the FHA and Rehabilitation Act claims (i.e., the federal claims).
All three statues have the same two-year limitations period. “The FHA explicitly sets forth
a two-year statute of limitations.” Braun v. Gonzales, 557 F. App’x 176, 179 (3d Cir. 2014) (citing
42 U.S.C. § 3613(a)(1)(A)) (“An aggrieved person may commence a civil action . . . not later than
2 years after the occurrence or termination of an alleged discriminatory housing practice . . . .”).
The Rehabilitation Act and NJLAD are governed by New Jersey’s two-year statute of limitations
for personal injury actions.

N.J. Stat. Ann. § 2A:14-2(a); see also Disabled in Action of

Pennsylvania v. Se. Pennsylvania Transp. Auth., 539 F.3d 199, 208 (3d Cir. 2008) (explaining
application of state statute of limitations period to Rehabilitation Act claims); D.G. v. Somerset
Hills Sch. Dist., 559 F. Supp. 2d 484, 495 n.4 (D.N.J. 2008) (applying 2 year limitations period to
Rehabilitation Act and NJLAD claims).

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The key dispute here is when the statute of limitations began to run for the FHA,
Rehabilitation Act, and NJLAD claims. Because the federal and state claims accrue at different
times, the Court will address them separately. 2
MHA has identified the correct accrual date for the federal claims. In Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980) and Chardon v. Fernandez, 454 U.S. 6, 8 (1981) the
Supreme Court explained that discrimination claims under federal law accrue at “the time of the
discriminatory act, not the point at which the consequences of the act become painful.” Chardon,
454 U.S. at 8. So for example, in Chardon, the plaintiffs’ wrongful termination claim accrued on
the date the employer told the plaintiffs they were going to be fired, not on the date the plaintiffs
were actually fired, because the illegal act was the decision to fire the plaintiffs, not the firing
itself. Id. at 7-8.
The same reasoning applies here. The thrust of Mack’s FHA and Rehabilitation Act claims
are the same: Morristown should have accommodated Mack’s disability by granting her more time
to move. The operative illegal act, as understood by Chardon and Ricks, was MHA’s decision to
deny her request to delay the move. Since Sargent told Mack about MHA’s final decision on April
8, 2013, that is when the federal claims accrued.
Mack responds that MHA’s decision did not become final on April 8 because she and MHA
continued to discuss delaying the move after that date. Opp’n Br. at 4 (citing Compl. ¶ 16). But
her argument is not supported by evidence. In support of her claim that their discussions continued,
she cites to her Complaint, which was not a verified or sworn document; to her deposition
testimony that she spoke with Sargent “several times,” but it does not say when; and to her

2

Although the Rehabilitation Act claim borrows the statute of limitation from state law, “the
accrual date is a matter of federal law.” Disabled in Action, 539 F.3d at 209 (quoting Romero v.
Allstate Corp., 404 F.3d 212, 221 (3d Cir. 2005)).
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Responsive Rule 56.1 statement, but the relevant paragraph does not cite to anything at all. See
Opp’n Br. at 4-5; Resp. R.56 Stmt ¶¶ 8-9, Dkt. No. 25. There also is no evidence that MHA
reached out to her after April 8 to say they were willing to reconsider the move date. Rather,
Mack’s deposition testimony states that Sargent said on April 8 there was nothing more she could
do. Mack has therefore failed to create a fact issue over whether the federal claims accrued on
April 8. Since Mack filed this action more than two years later, the FHA and Rehabilitation Act
claims are time-barred.
The accrual date for the NJLAD claim is less clear. NJLAD claims accrue on the
occurrence of the “complained-of discriminatory act.” Roa v. Roa, 200 N.J. 555, 566 (2010).
MHA claims that the rule in Ricks and Chardon applies to the NJLAD claim, just as it did for the
FHA and Rehabilitation Act claims above.

That is, they argue that the “complained-of

discriminatory act” was the decision to deny the second extension on April 8, not the fact that she
had to move on April 29. The Court disagrees.
MHA contends that the Ricks and Chardon apply to the NJLAD claim because the New
Jersey Supreme Court has “adopted the federal framework for determining when an NJLAD claim
accrues.” Def.’s Br. at 5. That is true for most NJLAD issues, but it is not always so. As the New
Jersey Supreme Court has stated, “federal case law is merely a guide” for analyzing NJLAD
claims, it is not dispositive. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 20 (2002);
see also State v. Cooke, 163 N.J. 657, 670 (2000) (“Although federal decisional law may serve to
guide us in our resolution of New Jersey issues, we bear ultimate responsibility for the safe passage
of our ship.”) (internal citation omitted). That means that the rule in Ricks and Chardon could
apply to NJLAD claims, but only if the New Jersey Supreme Court explicitly says so.

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It does not appear that the Supreme Court has. MHA has not provided any decision by the
high court that expressly adopts Ricks and Chardon for NJLAD claims in general or under the
specific failure to accommodate provisions asserted here, N.J.S.A. § 10:5-12(g)(2) and N.J.A.C. §
13:13-3.4(f)(2). In support of its argument, MHA cites to Roa, 200 N.J. at 568. But Roa does not
support the proposition that Ricks and Chardon apply here. Rather, in that case, the New Jersey
Supreme Court explained why it adopted the United States Supreme Court’s analysis of continuing
violations under Title VII for NJLAD claims. Id. at 567-68 (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002)). And the Roa decision does not discuss Ricks or Chardon at
all.
Absent a binding decision on point, the Court must predict whether the New Jersey
Supreme Court would apply Ricks and Chardon to the instant NJLAD claims. The Court predicts
that it would not. The few times New Jersey courts addressed this particular federal accrual rule,
they expressed disagreement. In Alderiso v. Med. Ctr. of Ocean County, Inc., 167 N.J. 191, 199200 (2001), for example, the state Supreme Court rejected the application of Ricks and Chardon
to a wrongful discharge claim under New Jersey Conscientious Employee Protection Act
(“CEPA”), finding the accrual date was the day the employee received her last pay check, not the
earlier date she was told she would be fired. The court found Ricks and Chardon unpersuasive,
and the later accrual date a more “sensible” rule, because “[p]rior to that date, the allegedly
wrongful act is subject to change; more importantly, the effective discharge date is the date which
can normally be identified with the least difficulty or dispute.” Id. at 201-02 (quoting Ricks, 449
U.S. at 265 (Stevens, J., dissenting)).
The New Jersey Superior Court, Appellate Division, rejected Ricks and Chardon in a fraud
case for similar reasons, stating that the federal accrual rule was “arbitrary,” encouraged needless

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litigation when the decision could be reversed or reconsidered, and resulted in “tortuous”
determinations about what the plaintiff knew and when. Holmin v. TRW, Inc., 330 N.J. Super.
30, 46 (App. Div. 2000). The court further stated that accrual based on the date of termination
“conforms with a basic proposition of our law: a cause of action accrues when a plaintiff has been
injured or damaged. Prior to that date, he or she is faced only with an anticipation of possible
injury, which may or may not occur, depending upon whether the employee is actually
terminated.” Id. That decision was unanimously affirmed by the New Jersey Supreme Court in a
brief per curiam decision. Holmin v. TRW, Inc., 167 N.J. 205, 205 (2001) (per curiam).
These cases strongly suggest that the rule in Ricks and Chardon would not apply to Mack’s
NJLAD claim. 3 Those cases concern discrimination in the employment—not housing—context,
but they express a generally applicable proposition: New Jersey courts are not persuaded by the
federal case law’s focus on the date of the discriminatory decision as the moment of accrual. Based
on practical considerations and the broad remedial purpose of NJLAD, discrimination claims
accrue when the discriminatory decision causes damage. As such, the Court will assume that
NJLAD claims like this one for failure to provide reasonable accommodations accrue on the day

3

One case cuts the other way, but it does not compel a contrary result. In Hanani v. State of New
Jersey Department of Environmental Protections, the Third Circuit applied Chardon to an NJLAD
denial of promotion claim in a non-precedential opinion. 205 F. App’x 71, 76 (3d Cir. 2006)
(internal citations omitted); see also In re Grand Jury Investigation, 445 F.3d 266, 276 (3d Cir.
2006) (explaining persuasive but non-binding value of cases published in Federal Appendix).
There, the court held that the statute began to run on federal and NJLAD claims when the plaintiff
was told she would not be promoted, not when the position was given to someone else. Id. But it
does not appear that the plaintiff in that case raised the argument Mack asserts here—i.e., that
NJLAD claims accrue at a different date than the federal claims—so the court treated the claims
the same. Moreover, the main case on which Hanani relied, Miller v. Beneficial Management,
discussed accrual dates for federal claims only. See 997 F.2d 834, 841 & n.3, 842-43 (3d Cir.
1992) (addressing only ADEA, Title VII, and EPA claims because district court dismissed CEPA
and NJLAD claims on supplemental jurisdiction grounds without reaching them). As such, this
Court’s decision is not incompatible with Hanani.

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the plaintiff was forced to leave her house, not on the earlier date when the defendant denied the
request to stay longer.
Applying that rule here, the NJLAD claim is timely. Including the two-week extension,
Mack had to be out of her apartment by April 29, 2013. She turned in her keys to her old unit on
that day. Mack Dep. 146:17-21. She filed this lawsuit on April 27, 2015, just short of two years
later. Her NJLAD claim can proceed.
B. NJLAD Claim
NJLAD prohibits discrimination by a public entity on the basis of a tenant’s disability.
N.J.S.A. § 10:5-12(g)(2); Oras v. Hous. Auth. of City of Bayonne, 373 N.J. Super. 302, 311 (App.
Div. 2004). The statute is “construed liberally . . . to insure that handicapped persons will have
‘full and equal access to society, limited only by physical limitations they cannot overcome.’”
Franek v. Tomahawk Lake Resort, 333 N.J. Super. 206, 217 (App. Div. 2000) (internal citation
omitted). The Administrative Code accompanying the act makes it unlawful for any person to
“[r]efuse to make reasonable accommodations in rules, policies, practices or services . . . when
such accommodations or modifications may be necessary to afford a person with a disability equal
opportunity to use and enjoy a dwelling.” N.J.A.C. § 13:13–3.4(f)(2).
“A handicapped tenant alleging a wrongful denial of a requested accommodation bears the
initial burden of showing that the requested accommodation is or was necessary to afford him or
her an equal opportunity to use and enjoy a dwelling.” Oras, 373 N.J. Super. at 312 (citing Lapid–
Laurel, L.L.C. v. Zoning Bd. of Adjustment of the Twp. of Scotch Plains, 284 F.3d 442, 457 (3d
Cir. 2002)). If such a showing is made, “the burden of proof shifts to the landlord to show that the
requested accommodation is or was unreasonable.” Id. (internal citation omitted).

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Despite the broad protections afforded by NJLAD, the statute does not create an
“obligation to do everything possible to accommodate such a person.” Estate of Nicholas v. Ocean
Plaza, 388 N.J. Super. 571, 588 (App. Div. 2006). “[C]ost (to the defendant) and benefit (to the
plaintiff) merit consideration as well.” Oras, 373 N.J. Super. at 315 (internal citation omitted).
Under this framework, Mack has created a dispute of material fact sufficient to survive
summary judgment. First, fact issues preclude finding her request was unnecessary. The parties
agree that Mack supplied MHA with a letter from Dr. Felsen, stating that some sort of an extension
was necessary because she could not move “at this time” on account of several debilitating foot
issues. See Felsen Letter at 1. But MHA and Mack interpret “at this time” differently. MHA
claims that the Dr. Felsen’s letter entitled Mack only to two more weeks after April 15 at most,
not the right to stay until her feet healed entirely, which they claim could take years (if her feet
heal at all). 4 Mack, on the other hand, argues that she was entitled to stay for “at least” a few more
months because that is how long it would take her to recuperate from the foot surgery Dr. Felsen
mentioned in her letter. See R.56 Stmt. ¶ 23. A reasonable jury could conclude that, based on Dr.
Felsen’s letter, Mack needed a few more months in her apartment. Thus, Mack has established a
fact dispute over whether it necessary to have more than a fourteen day extension on the move out
date.
The burden then shifts to MHA “to show that the requested accommodation is or was
unreasonable.” Oras, 373 N.J. Super. at 312. MHA claims that the request for a few more months
was unreasonable because her foot issues could last indefinitely. MHA does not explain, however,

4

MHA also claims that Mack requested to stay in her three-bedroom unit permanently. See Def.’s
Br. at 16. It is unclear where that allegation comes from. MHA attributes that fact to paragraph
23 of their Rule 56 Statement, but that paragraph states only that Mack “advised Ms. Sargent that
the extension was insufficient, and that she needed ‘at least’ a couple of months to heal
completely.” R.56 Stmt. ¶ 23.
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why the specific request for a few more months would be unreasonable. For example, MHA does
not explain the costs they would incur by allowing her to holdover, whether she was paying full
rent on her three-bedroom unit, whether they could have assisted her in moving sooner, whether
other tenants were slated to move into the three-bedroom unit, to name a few. Nor has MHA
provided deposition testimony or sworn statements from any employee to explain the
unreasonableness of the request. On the record before the Court, it cannot determine as a matter
of law that an extension of a few more months was unreasonable.
C. Requirement of Expert Report for Causation
MHA offers another theory to reject the NJLAD claim. They argue that Mack has not
offered expert testimony to support her theory that the denied accommodation caused her to lose
her toe, so the NJLAD claim fails. The Court again disagrees.
MHA is correct and Mack must offer expert testimony to establish a causal connection
between the lost toe and the denied accommodation, which she has not done. That is because the
causal connection that Mack intends to prove requires a complex assessment of her medical injury;
such an assessment is beyond a lay person’s ken. Montgomery v. Pinchak, 294 F.3d 492, 504 (3d
Cir. 2002) (recognizing “the need for expert testimony in proving a claim based on medical
injury”). But that fact does not require dismissal of the entire NJLAD claim. Mack has alleged
other non-medical damages that would not require expert testimony. In addition to the medical
injuries, Mack also alleges non-medical injuries like “financial losses” and “emotional distress,”
Compl. ¶ 24 & Count V ¶ 8, which may be established in NJLAD claims “without resort to expert
testimony,” Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 552 (2013) (citing Rendine v.
Pantzer, 141 N.J. 292, 312 (1995); Tarr v. Ciasulli, 181 N.J. 70, 81-82 (2004)). As such, the
NJLAD claim does not fail for lack of expert testimony.

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However, as to any treating physician or expert’s testimony, the Court will entertain a pretrial motion in limine to exclude evidence of the amputated toe to the extent required by the Federal
Rules of Evidence and the substantive rules regarding causation and damages.
D. Punitive Damages
The Court does agree with MHA’s final argument that punitive damages are unwarranted
in this case. Two requirements must be satisfied to award punitive damages under the NJLAD:
(1) upper management’s actual participation in, or willful indifference to, the wrongful conduct;
and (2) evidence that the wrongful conduct is especially egregious. See Cavuoti v. N.J. Transit
Corp., 161 N.J. 107, 113 (1999); see also Abbamont v. Piscataway Twp. Board of Education, 138
N.J. 405, 426 (1994) (permitting punitive damages against public entities).
Here, despite MHA’s opening argument that punitive damages are inappropriate, Mack has
not provided any evidence to establish the two requirements. She has not demonstrated that
Sargent was a member of upper management, or provided any evidence of the tasks she performed,
which could at least allow the Court to infer her upper management role. Nor is there any evidence
that other members of upper management participated in or were indifferent to Mack’s situation.
Mack has also failed to demonstrate that the conduct was especially egregious in light of the fact
that MHA granted Mack an initial extension, and Mack voluntarily chose not to participate in the
agency grievance procedure, despite knowing that it was available to her. Even giving Mack every
favorable inference, Plaintiff’s claims do not rise to a sufficiently egregious level so as to warrant
an award of punitive damages against MHA.
IV.

CONCLUSION
For the reasons set forth herein, MHA’s motion for summary judgment is GRANTED IN

PART and DENIED IN PART. Judgment is entered in MHA’s favor on Counts II (FHA) and

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IV (Rehabilitation Act). Counts I (negligence), III (ADA), and VI (intentional infliction of
emotional distress) are DISMISSED. Count V (NJLAD) survives summary judgment and will
proceed to trial.
Date: May 24, 2017

/s Madeline Cox Arleo______
Hon. Madeline Cox Arleo
United States District Judge

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