ABBOTT v. HACKENSACK MEDICAL CENTER et al

Filing 41

OPINION. Signed by Judge Claire C. Cecchi on 8/22/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PATRICIA HALL ABBOTT, as Decedent’s
Representative,

Civil Action No.: 16-cv-693

Plaintiff,

OPINION

v.
ABBOTT LABORATORIES, HACKENSACK
UNIVERSITY MEDICAL CENTER, and
RICHARD RO$ENBLUTH, M.D.,
Defendants.
CECCHI, District Judge.
I.

INTRODUCTION

This matter comes before the Court on the motions of Defendants Hackensack University
Medical Center (“HUMC”) (ECF Nos. 20, 24) and Richard Rosenbiuth, M.D. (“Rosenbluth”)’
(ECF No. 23) to dismiss the Amended Complaint for lack of standing under Fed. R. Civ. P.
12(b)(l) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Plaintiff Patricia Hall
Abbott (“Plaintiff’) is proceeding p

.

The Court has considered the submissions made in

support of and in opposition to the instant motions. The motions are decided without oral argument
under fed. R. Civ. P. 78(b).2 For the reasons set forth below, the motions to dismiss for lack of
standing are GRANTED, mooting the motions to dismiss for failure to state a claim.

In certain papers, Defendants HUMC and Rosenbiuth are incorrectly sued herein as “Hackensack
Medical Center” and “Robert Rosenbiuth, M.D.” respectively.
2

The Court considers any new arguments not presented by the parties to be waived. See Brenner
v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991).
1

II.

BACKGROUND

This case concerns the death of Plaintiffs father (“Decedent”), a New Jersey resident who
died allegedly because Rosenbluth injected him with Lupron, a drug manufactured by Defendant
Abbott Laboratories (“Abbott Laboratories”),3 while Decedent was hospitalized at HUMC. (Am.
Compi. at 1). Plaintiff brings claims including wrongful death, “failure to produce medical
records” “[p]ursuant to N.J.A.C.8:43G-15.3 and NJAC.13:35-6.5” (id. at 6), and various statutory
and common law torts. Plaintiff commenced this action as a pç se litigant on February 8, 2016.
(ECF No. 1). On April 15, 2016, an attorney filed a notice of appearance on Plaintiffs behalf.
(ECF No. 3). Plaintiff, through this attorney, filed the Amended Complaint on September 6, 2016.
Plaintiff is no longer represented by this attorney, and is proceeding p

.

(ECF No. 19).

In the Amended Complaint, Plaintiff purports to bring this action solely on behalf of the
Decedent, rather than in her individual capacity. Plaintiff is captioned “Patricia Hall Abbott, as
Decedent’s Representative,” and she claims to be “authorized to bring this action on Decedent’s
behalf by Bergen County Surrogate’s Court Order.” (Am. Compl. at 1). The reference to a court
order appears to refer to a “Judgment of Legal Incapacity and Consent Judgment Appointing
Guardians” issued on April 6, 2015 by Judge Robert F. Contillo of the Superior Court of New
Jersey, Bergen County, Chancery Division, Probate Part. (ECF No. 25-2 Ex. A). This order
appoints several co-guardians for Plaintiffs mother, an incapacitated person, including Plaintiff
herself. (Id.) Specifically, it appoints Plaintiff “Special Guardian for the sole and limited purpose
of commencing and participating in a claim or lawsuit on behalf of [Plaintiffs mother] against the
manufacturer of the drug Lupron to the extent that it had a causal relationship to the damages
related to the medical decline of the husband of [Plaintiffs mother], [Decedent].”

( ¶ 2).

Abbott Laboratories has not appeared in this case and is not a party to the present motions.
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It is undisputed that Plaintiff is not the executor or administrator of Decedent’s estate.
(ECF No. 32 (“[A]t no time have I or my attorney.

.

.

ever stated or suggested that I am the executor

of my father’s estate; that was never the legal basis of this suit[.]”); accord ECF No. 38).
The parties appear to agree New Jersey state substantive law applies to this action.
III.

LEGAL STANDARD
A motion to dismiss for lack of standing is properly brought pursuant to Federal Rule of

Civil Procedure 12(b)(1), because standing is a matter ofjurisdiction. Ballentine v. United States,
486 f.3d $06, $10 (3d Cir. 2007).
“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.” Lance v. Coffman, 549 U.S. 437, 439 (2007). One key aspect of this case-orcontroversy requirement is standing. Iç “The standing inquiry focuses on whether the party
invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Constitution
Party of Pa. v. Aichele, 757 F.3d 347, 360 (3d Cir. 2014). To establish standing, a plaintiff must
satisfy a three-part test, showing: (1) an ‘injuryin fact,’ i.e., an actual or imminently threatened
injury that is ‘concrete and particularized’ to the plaintiff; (2) causation, i.e., traceability of the
injury to the actions of the defendant; and (3) redressability of the injury by a favorable decision
by the Court. Nat’l Collegiate Athletic Ass’n v. Gov. of N.J., 730 F.3d 208, 218 (3d Cir. 2013)
(citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). “The party invoking federal
jurisdiction bears the burden of establishing” the elements of standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). Injury is the “[f]irst and foremost” of these three elements.
Steel Co. v. Citizens for Better Environment, 523 U.S. $3, 103 (1998). An injury “must affect the
plaintiff in a personal and individual way[,]” and “must actually exist[,]” that is, be “real, and not
abstract.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (internal quotations omitted).

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IV.

DISCUSSION

Defendants argue Plaintiff lacks standing because she did not personally suffer a legally
coguizable injury. The Court agrees.
It does not appear that the Amended Complaint asserts claims based on legally cognizable
injuries Plaintiff personally suffered. She does not sue in her individual capacity and does not,
except in wholly conclusory fashion, articulate damages specific to her resulting from her father’s
death, such as expenses incurred, or loss of consortium or support.4 Besides Decedent’s death, the
only injury described in the Amended Complaint is Plaintiffs failure to receive Decedent’s
medical records. (Am. Compl. at 6 (“By reason of its breach of duty, [HUMC] actually and
proximately caused harm to Plaintiff by preventing her from filing a lawsuit against Abbott
Labs.”);

at 13-14 (“Plaintiff suffered loss by Decedent’s death as well as by the wron[gjful

refusal to produce medical records.”)).

But even this injury is articulated only in terms of

Plaintiffs inability to pursue a lawsuit to vindicate injuries her father suffered. Therefore, Plaintiff
pleads no “particularized” injury to herself.

Spokeo, Inc., 136 S. Ct. at 154$.

Instead, Plaintiff purports to bring this action on behalf of her father, Decedent, as the real
party in interest. Decedent was undoubtedly injured. However, under the Federal Rules of Civil
Procedure, Plaintiff cannot sue on behalf of the real party in interest unless she is an executor,

The Court expresses no opinion as to whether Plaintiff would state a claim for such damages.
The Court notes that, although the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et seq.,
“seeks recompense for the losses suffered by the survivors as a result of the decedent’s death[,]”
Johnson v. Dobrosky, 187 N.J. 594, 605 (2006), such an action must be brought by either “an
administrator4 proseguendum of the decedent” or the executor or administrator of the decedent’s
estate. N.J.S.A. 2A:31-2; Kern v. Kogan, N.J. Super. 459, 473 (App. Div. 1967). To be an
administrator ad proseguendum, a litigant must be granted “letters of administration ad
proseguendum by the surrogate’s court. N.J.S.A. 3B:10-11; Krishanthi v. Rajaratnam, No. 09-cv5395, 2010 WL 3429529, at *15 (D.N.J. Aug. 26, 2010). Plaintiff does not claim she is an
administrator ad proseguendum or that she was issued the required letters of administration.
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administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a
contract has been made for another’s benefit, or a party authorized by statute. Fed. R. Civ. P.
17(a)(1). Plaintiff is none of these things to Decedent. Moreover, under New Jersey law, any
causes of action Decedent had prior to his death passed to his estate when he died, such that only
the administrator or executor of Decedent’s estate now has standing to bring them.

$ McGhee

v. Sanders, No. 12-cv-7955, 2013 WL 785084, at *2 n.8 (D.N.J. Feb. 28, 2013) (citing N.J.S.A.
2A: 1 5-3); Krishanthi, 2010 WL 3429529, at * 15. Thus, Plaintiff cannot sue on her father’s behalf.
The Amended Complaint cites the order granting Plaintiff co-guardianship of her mother
as “authoriz[ing]” her to bring this action. (Am. Compi. at 1). This order does grant Plaintiff
guardianship for the purposes of “commencing and participating in a claim or lawsuit on behalf of
[Plaintiffs mother].” (ECf No. 25-2 Ex. A

¶ 2). Plaintiff reiterates this argument in opposition

to the present motions. (ECF No. 25-1 at 3 (“In April of 2015, I was awarded guardianship of my
mother along with 3 of my siblings, authorizing me to file a lawsuit as my mother’s guardian with
respect to my father’s death.”)). But Plaintiff brought this lawsuit on behalf of her father, not her
mother—indeed, the Amended Complaint does not purport to bring this action on Plaintiffs
mother’s behalf, or seek damages particular to Plaintiffs mother. Thus, this order grants Plaintiff
no legal status that would allow her to sue on her father’s behalf under fed. R. Civ. P. 17(a)(1).
Accordingly, Plaintiff lacks standing, depriving this Court of subject matter jurisdiction.
V.

CONCLUSION
For the foregoing reasons, the motions ofDefendants HUMC (ECF No. 24) and Rosenbluth

(ECF No. 23) to dismiss for lack of subject matter jurisdiction are GRANTED. The motions to
dismiss for failure to state a claim (ECf Nos. 20, 23) are thus DENIED without prejudice as moot.

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As the Court lacks subject matter jurisdiction over this case, it is obligated to dismiss the
Amended Complaint as to Abbott Laboratories as well. See Fed. R. Civ. P. 12(h)(3).
Plaintiffs Amended Complaint is thus DISMISSED WITHOUT PREJUDICE in its
entirety. However, the Court grants Plaintiff 30 days from the date of this Opinion to file a second
amended complaint to address the pleading deficiencies described herein.
An appropriate Order accompanies this Opinion.

CLAIRE C. CECCHI, U.S.D.J.

Dated:

P’

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