BORNSTEIN et al v. COUNTY OF MONMOUTH et al

Filing 160

MEMORANDUM ORDER denying 50 Motion for Reconsideration ; denying 57 Motion for Summary Judgment. Signed by Judge Peter G. Sheridan on 9/25/2014. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ISRAEL BORNSTE1N,
Civil Action No.

11-5336 (PGS)

Plaintiff,
v.

:

MEMORANDUM ORDER

CNTY. OF MONMOUTH, et al.,
Defendants.

This matter has come before the Court on Defendant Correct Care Solution’s (‘CCS”)
motion for reconsideration of the Court’s September 25, 2013 Opinion and Order denying CCS’
motion to dismiss the complaint (ECF No. 50) and a motion for summary judgment (ECF No. 57).
The Court held oral argument in this matter on August 28, 2014.
It appearing that:
1. In both motions, Defendant CCS is seeking relief on essentially the same ground: As a
board-certified pathologist, Plaintiff’s expert, Dr. Baden, is not qualified to author an Affidavit of
Merit or serve as an expert witness under N.J.S.A. 2A:53A-41.
2. More specifically, Defendant CCS argues that pursuant to recent New Jersey Supreme
Court case law, see Nicholas v. Mynsier, 213 N.J. 463 (2013), ‘when a physician is a specialist
and the basis of the malpractice action ‘involves’ the physician’s specialty, the challenging expert
must practice in the same specialty.” (Def. CCS’ Mot. Summ. J. 12-13, ECF No. 57.) CCS
argues that Dr. Baden, a well-known pathologist, is not a sufficient expert, for either authoring an
Affidavit of Merit or testifying at trial, because the treatment at issue does not involve pathology
and the doctor involved with the treatment, Dr. Hashmi, is a board certified internist. (I)ef. CCS’
Mot. Recon. 7, ECF No. 50.)

2
3. In opposition to the motion for reconsideration, Plaintiff argues that a pathologist is a
proper expert because ‘this case does not involve Dr. Hashmi’s initial medical evaluation.
decedent’s treatment for cuts and bruises, and the administration of Ativan.

It involves a complete

disregard of the duties it undertook when it agreed to provide medical assistance to inmates, which
resulted in decedent’s death.”

(Pl.’s Recon. Opp’n 7, ECF No. 58.)

Plaintiff argues in his

opposition to the summary judgment motion that “this is not a medical malpractice case. The
plaintiff’s theory of liability against CCS was its deliberate indifference to the decedents
immediate medical needs.” (Pl.’s Summ. J. Opp’n 16. ECF’ No. 87.)
4. Also in opposition, Defendants County of Monmouth, Monmouth County Sheriffs
Office, Monmouth County Correctional Institution, Lt. Thomas Bollaro, Sgt. Kenneth Noland,
Ofc. Tracey Tift, Ofc. Thomas Ricchiuti, Ofc. Timothy Huddy, Ofc. Daniel Harisson, Ofc.
Raymond Paul, Ofc. Rick Lombardo, Ofc. Steven Young. Ofc. George Theis, Ofc. Donald
Bennett, Ofc. Christopher Piney, Ofc. William Fancher, Ofc. Sara M. Sturt. Ofc. Jamielynn
Roosbach, Ofc. Leo Hafner, Ofc. David Millard, and Sgt. Richard Vilacoba’s (collectively referred
to as the “County Defendants”) argue that the “equivalency requirement” for medical malpractice
expert testimony only applies to doctors and therefore even if the Court finds that he is not qualified
to serve as an expert regarding Dr. Hashmi’s actions, Dr. Baden is still qualified to serve as an
expert regarding the nurses’ actions. (County Defs.’ Opp’n 16, ECF No. 84.)
5.

CCS supplemented both motions with additional arguments after it conducted a

deposition of Dr. Baden.

(ECF Nos. 146, 147.) CCS further argued that during his deposition,

Dr. Baden actually testified that he is not alleging deviations from the standard of care as to specific

3
individuals in this case and that he is not an expert in deviations as to the standard of care. (Def.
CCS’ Supp. Reply 2-3, ECF No. 146.)
6. In his supplemental opposition, Plaintiff again argued that Ihis is an action to recover
damages for violations of 42 USC

§ 1983. The plaintiffs claims against CCS are that it was

deliberately indifferent to the decedent’s immediate needs [and] CCS has consistently
mischaracterized plaintiffs action against it as simply one for medical negligence...” (P1’s Supp.
Opp’n l,ECFNo. 152.)
7. At the outset, it is clear that Plaintiffs claims against Defendant CCS are for medical
malpractice. The court finds nothing in the Amended complaint to indicate that Plaintiff raised
any

§ 1983 claims against Defendant ccs.
8. With regard to Defendant CCS’ motions for reconsideration and summary judgment,

the court will deny both without prejudice. Based on the current record, the court is unwilling
to find that Dr. Baden is an insufficient expert pursuant under N.J.S.A. 2A:53A-41. The Court
will instead permit Defendant

ccs

to raise his arguments regarding the appropriateness of Dr.

Baden serving as an expert witness pursuant to N.J.S.A. 2A:53A-41, via a motion in lirnine. At
that time, should the court determine that Dr. Baden is not an appropriate expert, Defendant

ccs

will be permitted to renew its motion to dismiss and/or summary judgment.
IT IS THEREFORE on this

)

day

,

2014,

ORDERED that Defendant CCS’ motion for reconsideration of the Court’s September
25, 2013 Opinion and Order denying CCS’ motion to dismiss the complaint (ECF No. 50) and

motion for summary judgment (ECF No. 57) are hereby DENIED without prejudice.

fAvL
eter G. Sheridan. U.S.D.J.