BORNSTEIN et al v. COUNTY OF MONMOUTH et al
Filing
47
OPINION filed. Signed by Judge Peter G. Sheridan on 9/24/2013. (mmh)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ISRAEL BORNSTE1N,
Civil Action No. 11-5336 (PGS)
Plaintiff,
v.
.
OPINION
CNTY. OF MONMOUTH, et al.,
Defendants.
APPEARANCES:
MICHAEL N. DAVID, Counsel for Plaintiff
82 Wall Street
New York, N.Y. 10005
ANDREW BAYER, Counsel for County Defendants
Gluck Wairath, LLP
428 Riverview Plaza
Trenton, N.J. 08611
CHARLES C. KOERNIG, Counsel for Defendant Correct Care Solutions, LLC
Stahl & DeLaurentis
10 E. Clements Bridge Road
Runnemede, NJ 08078
SHERIDAN, District Judge
Plaintiff Israel Bornstein, as the administrator of the estate of Amit Bornstein, brings this
42 U.S.C.
§
1983 action against Defendants Donald Bennett, Thomas Bollaro, County of
Monmouth, Bernard Fisher, Leo Hafner, Daniel Hansson, Timothy Huddy, Rick Lombardo,
David Millard, Monmouth County Correctional Institution, Monmouth County Sheriffs Office,
Kenneth Noland, Raymond Paul, Christopher Piney, Thomas Ricchiuti, Jamielyn Roosback, Sara
M. Sturt, George Theis, Tracey Tift, Steven Young, John Does 1-10 (“County Defendants”) and
Correct Care Solutions LLC (“CC S”) for violation of the constitutional rights of the nowdeceased Amit Bornstein. This matter comes before the Court on Defendant CCS’ motion to
dismiss the complaint. There was no oral argument. FED.R.CIv.P. 78(b). For the reasons set
forth below, Defendant CCS’ motion is DENIED.
I. BACKGROUND
The complaint alleges that Defendants are responsible for the death of Amit Bomstein,
who died while incarcerated in the Monmouth County jail. Specifically, on July 29, 2010, Mr.
Bornstein was arrested by Marlboro Township police officers and brought to the Monmouth
County Correctional Institution.
(Am. Compi.
¶
8.)
According to the allegations of the
complaint, while at the jail, Mr. Bomstein was “assaulted and battered [by the County
Defendants]. .resulting in his death.” (Id. at
.
¶ 9.)
The amended complaint further alleges that
CCS “did not use reasonable or proper skill in their efforts to cure plaintiffs decedent of such
ailment in that they negligently and carelessly failed to treat, attend and delayed in performing
the necessary treatment causing plaintiffs decedent to sustain severe personal injury and his
death on July 29, 2010.” (Ama Compl.
¶ 37.)
On September 9, 2011, Plaintiff filed the original complaint in this case. (ECF No. 1.)
Only the County Defendants were named in that complaint. (Id.) On April 20, 2012, Plaintiff
filed an amended complaint, which names both the County and CCS Defendants. (ECF No. 12.)
On January 7, 2013, Defendant CCS filed the instant motion. (ECF No. 20.) CCS argues that
Plaintiffs claims against it should be dismissed with prejudice for failure to comply with the
“affidavit of merit” requirement. Specifically, CCS argues that the affidavit of merit provided by
Plaintiff is defective for two reasons: (1) the affidavits by Dr. Baden were not entered into under
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oath; and (2) the affidavits of merit by Dr. Baden do not comply with the requirements of
N.J.S.A. 2A:53A-41 as the treatment-at-issue is unrelated to pathology. (Id.) Both the County
Defendants and Plaintiff have opposed the motion. (ECF Nos. 23 & 28.)
II. DISCUSSION
A. Legal Standard
On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the
Court is required to accept as true all allegations in the complaint and all reasonable inferences
that can be drawn therefrom, and to view them in the light most favorable to the non-moving
party. See, e.g., Ashcrofl v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949—50, 173 L.Ed.2d 868
(2009); Bell Ati. Corp.
V.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);
Oshiver v. Levin, Fishbein, Se1ran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint
should be dismissed only if the alleged facts, taken as true, fail to state a claim. Iqbal, 129 S.Ct.
at 1950. The question is whether the claimant can prove any set of facts consistent with his or
her allegations that will entitle him or her to relief, not whether that person will ultimately
prevail. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).
B. Analysis
1. Certification
CCS’ first ground for dismissal of the complaint is that the “affidavits” provided by Dr.
Baden are not actually affidavits, but are certifications and therefore Plaintiff has not complied
with the New Jersey Affidavit of Merit statute. The County Defendants and Plaintiff argue that
pursuant to New Jersey case law and court rules, the certification provided by Dr. Baden is
sufficient to meet the requirements of the statute.
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The New Jersey Affidavit of Merit (“AOM”) Statute is “substantive state law that must
be applied by federal courts sitting in diversity.” Chamberlain v. Giampapa, 210 F.3d 154, 161
(3d Cir. 2000). The AOM Statute provides, in relevant part:
In any action for damages for personal injuries, wrongftil death or property
damage resulting from an alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff shall, within 60 days
following the date of filing of the answer to the complaint by the defendant,
provide each defendant with an affidavit of an appropriate licensed person that
there exists a reasonable probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the subject of the complaint,
fell outside acceptable professional or occupational standards or treatment
practices.
N.J.S.A.
§ 2A:53A—27. A “licensed person” includes physicians, and a failure to provide an
AOM ordinarily results in dismissal of the complaint. N.J.S.A.
§ 2A:53A—26--27.
The overall purpose of the AOM Statute is “to require plaintiffs in malpractice cases to
make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily
could be identified at an early stage of litigation.” Alan I Cornblatt, P.A. v. Barow, 708 A.2d
401 (N.J. 1998). To that end, the AOM Statute is “designed to weed out frivolous lawsuits at an
early stage and to allow meritorious cases to go forward.” Galik v. Clara Maass Med. Ctr., 771
A.2d 1141, 1147 (N.J. 2001).
In Cornblatt, the New Jersey Supreme Court stated the following with regard to
certifications:
Thus, we recognize that, under certain circumstances, a certification could satisfy
the purpose of the affidavit requirement as well as the general purpose of the
statute. Those circumstances would also include at the very least the timely filing
of a certification otherwise complying with all of the specifications for an
affidavit of merit; an adequate and reasonable justification and a convincing
explanation of just cause and excusable neglect for submitting a certification
rather than an affidavit; and, further, that the adverse party was not prejudiced and
obtained the requisite notice in that the certification contained the quality and
level of information contemplated by the affidavit requirement. Further, a relevant
circumstance would involve the plaintiff undertaking prompt measures to comply
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an affidavit or the
fully with the statute including specifically the filing of
ed fully meets the
agreement of an adversary that the certification provid
that under such
substantive requirements of the statute. We determine
of merit would be
circumstances, the statutory requirement for the affidavit
instead of an
deemed to have been met by the initial filing of a certification
affidavit of merit.
708 A.2d at 412.
the following statement: “I
Here, Plaintiff filed a timely certification which contained
true. I understand that if any of the
hereby certify that the above statements made by me are
ment.” (CCS’ Br. Supp. Mot.,
statements made by me are willfully false, I am subject to punish
ation necessary to demonstrate
Ex. D.) The certification also contained the substantive inform
the complaint on the basis that it is
that Plaintiffs claim is not frivolous. CCS’ motion to dismiss
a certification and not an affidavit is therefore denied.
2. Dr. Baden’s Qualifications
is not qualified to render
In its second ground for dismissal, CCS argues that Dr. Baden
CCS because “at the time of
an expert opinion as to the treatment Mr. Bornstein received from
as a pathologist. Said speciality
the occurrence and for at least a year prior, he was practicing
] employees, including initial
[sic] would not involve the treatment-at-issue rendered by [CCS’
dosage and administration of
inmate medical evaluation, treatment for cuts or bruises, or
ants and Plaintiff argue that
Ativan.” (CCS’ Br. Supp. Mot. 11.) In response, the County Defend
sudden or suspicious deaths.
Dr. Baden is a forensic pathologist whose expertise is investigating
type of expert required in
Given the nature of the claims at issue, a pathologist is precisely the
this case.
qualifications of an
N.J.S.A. § 2A:53A—41 sets forth the relevant requirements for the
expert:
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give expert testimony
In an action alleging medical malpractice, a person shall not
95, c. 139 (C.2A:53Apursuant
1
or execute an affidavit to the provisions of P.L.19
unless the person is
26 et seq.) on the appropriate standard of practice or care
United States and
licensed as a physician or other health care professional in the
meets the following criteria:
ny is offered is a
b. If the party against whom or on whose behalf the testimo
preceding the
general practitioner, the expert witness, during the year immediately
shall have devoted
date of the occurrence that is the basis for the claim or action,
a majority of his professional time to:
l practice that
(1) active clinical practice as a general practitioner; or active clinica
ance of the
encompasses the medical condition, or that includes perform
procedure, that is the basis of the claim or action; or
professional
(2) the instruction of students in an accredited medical school, health
same health
school, or accredited residency or clinical research program in the
whose behalf the testimony
care profession in which the party against whom or on
is licensed; or
(3) both.
usually in cases
The purpose of the affidavit of merit is to weed out frivolous litigation,
ctice claim. Here, there
where a plaintiff has been unable to retain an expert to support a malpra
probability” that the
is an affidavit by physician indicating that there exists a “reasonable
is sufficient to show that
treatment by CCS was “outside acceptable standards of practice.” This
the suit was not frivolously brught.
he was not engaged in
CCS argues that Dr. Baden is not an appropriate affiant because
l school during the
active practice as a general practitioner or instructing students at a medica
as a pathologist with
year prior to the date of the occurrence, however, Dr. Baden was serving
of Plaintiff’s death is at
the New York state police at the time of the occurrence. Since the issue
d with discovery. If
the heart of this matter, the Court will allow the case to move forwar
propriety of Plaintiffs
appropriate, and with the benefit of discovery, the parties may revisit the
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I
affidavit of merit in conjunction with summary judgment. See Santiago v. Hudson Cnly., Civil
Action No. 10-3059 (PGS), 2011 WL 1885411 (D.N.J. May 18, 2011); Logue v. Capital Health
Systems, Inc., Civil Action No. 12-3367 (MAS), 2013 WL 3288155 (D.N.J. June 28, 2013);
Jorden v. Glass, Civil Action No. 09-1715 (JS), 2010 WL 786533 (D.N.J. Mar. 5, 2010).
III. CONCLUSION
For the reasons stated above, Defendant CCS’ motion to dismiss the complaint with
prejudice is denied. An appropriate order follows.
Dated:
PETER G. SHERIDAN
United States District Court
.
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