GARCIA v. CORRECTIONAL MEDICAL SERVICE INC. et al

Filing 197

OPINION filed. Signed by Judge Anne E. Thompson on 10/5/2017. (km)

RECEIVED

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

OCT O5 2017
AT 8:30
WILLIAM T. WALSH
CLERK

AGUSTIN GARCIA,
Plaintiff,

v.
Civ. No. 13-1250
CORRECTIONAL MEDICAL SERVICE,
INC; RALPH WOODWARD, M.D.,
individually and in his official capacity;
ABU AHSAN, M.D., individually and in his
official capacity; DR. NUGGEN, M.D.,
Urologist, individually and in her official
capacity; DESPINA TERRIS, M.D.,
Oncologist, individually and in her official
capacity; SAINT FRANCIS MEDICAL
CENTER; CHARLES WARREN, JR.,
N.J.S.P. ADMINISTRATOR, individually
and in his official capacity; NEW JERSEY
STATE PRISON; GARY LANIGAN,
N.J.D.O.C. COMMISSIONER; NEW
JERSEY DEPARTMENT OF
CORRECTION; NEW JERSEY
DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONAL SERVICES; JOHN
AND JANE DOES 1-30, individually and in
their official capacities,
Defendants.

OPINION

M

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THOMPSON, U.S.D.J.
This matter comes before the Court upon Motion for Summary Judgment by Defendant
Dr. Abu Ahsan ("Defendant Ahsan"). (ECF No. 188.) Plaintiff Agustin Garcia ("Plaintiff')
opposes the motion. (ECF No. 195.) The Court has issued the opinion below based on the
written submissions of the parties and without oral argument pursuant to Local Civil Rule
78.l{b). For the reasons stated below, the motion will be denied.

BACKGROUND
This case involves medical treatment provided to Plaintiff for his prostate cancer while he
was in the custody of the New Jersey Department of Corrections. Plaintiff raises claims for an
Eighth Amendment denial of adequate medical care, negligence, and medical malpractice against
Dr. Ahsan (Def.'s Statement of Material Facts, 3, ECF No. 188), a board certified Internal
Medicine physician who provided treatment to inmates at the infirmary at New Jersey State
Prison (id. , 7). Plaintiff claims that Defendant Ahsan breached his duty of care by failing to
conduct a urological consultation between February 2002 and July 2011 and by providing
inadequate treatment, therapies, and post-surgical care. (Id.

mf 5--6.)

Plaintiff has not served

Defendant Ahsan with an Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27. (Id. , 9.)
Defendant Ahsan has already moved for summary judgment in this case. Most recently, on June

15, 2017, the Court denied Defendant Ahsan's motion, which argued for summary judgment
based both on Plaintiff's failure to file an affidavit of merit for the negligence and medical
malpractice claims and for his Eighth Amendment claims. (ECF Nos. 176, 177.) The Court
also directed Plaintiff to file an affidavit of merit. (Id.) On June 29, 2017, Defendant Ahsan
filed his answer to Plaintiff's most recent amendment complaint, and then on August 4, 2017,
filed this Motion for Summary Judgment, arguing that Plaintiff's procedural failure to file an
affidavit of merit warrants summary judgment in his favor. (ECF No. 188.)
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LEGAL STANDARD
Summary judgment shall be granted if "the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is "genuine" if it could lead
a "reasonable jury [to] return a verdict for the nonmoving party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it will "affect the outcome of the suit
under the governing law." Id. When deciding the existence of a genuine dispute of material fact,
a court's role is not to weigh the evidence; all reasonable "inferences, doubts, and issues of
credibility should be resolved against the moving party." Meyer v. Riegel Prods. Corp., 720
F.2d 303, 307 n.2 (3d Cir. 1983). In resolving a motion for summary judgment, a district court
considers the facts drawn from ''the pleadings, the discovery and disclosure materials, and any
affidavits." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (internal quotations omitted).
The court must determine ''whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). The Court must grant summary

judgment against any party ''who fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will bear the burden of proof at

trial." Celotex, 477 U.S. at 322.

ANALYSIS
Defendant Ahsan filed the instant motion due to Plaintiff's failure to file an Affidavit of
Merit pursuant to N.J.S.A. 2A:53A-27. Defendant Ahsan argues once again that the medical
malpractice and negligence claims in the amended complaint should be dismissed with prejudice
for Plaintiff's failure to comply with New Jersey's affidavit of merit statute, N.J.S.A. 2A:53A-27
("AOM statute") and the Court's June 15, 2017 Opinion directing Plaintiff to file an affidavit of

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merit (ECF No. 176 at 4). Plaintiff argues that this motion is premature and untimely. The
Court's June 15, 2017 Opinion already discussed the AOM statute and its requirements.
Therefore, this Opinion will only address the law most relevant to the arguments advanced by the
parties.
Plaintiff's first responsive argument contends that Defendant Ahsan's motion is
premature because discovery has not yet determined the facts and possible disputes of fact
surrounding Defendant Ahsan's alleged negligence. (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 45, ECF No. 195.) The AOM statute is a gatekeeper used "to identify and eliminate
unmeritorious claims against licensed professionals and to permit meritorious claims to proceed
efficiently through the litigation process." Meehan v. Antonellis, 141 A.2d 1162, 1170 (N.J.
2016). As the Court already indicated, "[t]he submission of an appropriate affidavit of merit is
considered an element of the claim. Failure to submit an appropriate affidavit ordinarily requires
dismissal of the complaint with prejudice." (ECF No. 176 at 3 (citing Meehan, 141 A.2d at
1169).) The AOM statute is explicitly designed to avoid discovery and the rest of the litigation
process if a plaintiff's claim as alleged in the complaint is meritless. See Chamberlain v.
Giampapa, 210 F.3d 154 (3d Cir. 2010) (noting that the federal court must apply this New Jersey
statutory pleading requirement to avoid forum shopping such that illegitimate claimants could
"be able to survive beyond the pleading stage and secure discovery"). The Court rejects
Plaintiffs argument-Defendant Ahsan' s Motion is not premature in this respect.
Next, Plaintiff addresses the main argument put forth in Defendant's brief, arguing that
he has not yet missed the AOM deadline. Plaintiff cites the Court's discussion in the June 15,
2017 Opinion for the proposition that the AOM period does not begin to run until the last
defendant files its answer, and thus has not yet run here. (Pl.'s Opp'n to Def.'s Mot. Summ. J. at

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6-7.) The Court's last Opinion addressed affidavits of merit in multi-defendant cases, citing

Snyder v. Pascack Valley Hospital, 303 F.3d 271 (3d Cir. 2002). There the Third Circuit
observed that the AOM statute is unclear as to the appropriate construction; it leaves open
whether the applicable time period "begins 'when the last answer is filed' or 'at a different time
for each defendant based on the time each filed its respective answer."' (ECF No. 176 at 5
(citing Snyder, 303 F.3d at 276).) Because this issue was not dispositive at Defendant Ahsan's
last motion for summary judgment, the Court did not delve into relevant case law from New
Jersey and within this Circuit.
"[T]here is at least an ambiguity in the statute as to whether the deadline runs from each
defendant's answer, or from the time that all defendants have jointly answered." Szemple v.

Univ. ofMed. and Dentistry ofN.J., 162 F. Supp. 3d 423, 429 (D.N.J. 2016). New Jersey state
courts, however, have taken a more definitive approach. Although originally regarded as New
Jersey Supreme Court dicta in In re Petition ofHall, 688 A.2d 81, 87 (N.J. 1997), New Jersey
courts generally agree that ''the time period under the Affidavit of Merit statute begins to run on
the date that each defendant filed an answer, not on the date that the last answer was filed."

Watts v. Centrastate Med. Ctr., 2014 WL 2114834, at *2 (D.N.J. May 21, 2014) (collecting
cases); see also Kubiack v. Robert Wood Jonhson Univ. Hosp., 753 A.2d 166, 169 (N.J. Super.
Ct. App. Div. 2000) (noting In re Petition ofHall's dicta later embraced as binding by the
Superior Court, but raising doubts). More specifically, the AOM statute begins to run upon the
date a defendant answers the most recent amended complaint. Szemple, 162 F. Supp. 3d at 4293'0. Without more clarity, the Court will follow this approach for the sake of consistency.
Defendant Patricia Wood, the last Defendant to answer in this litigation, received an
extension of time to file her answer until September 29, 2017. (ECF No. 194.) Although

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Plaintiff contends that Defendant Patricia Wood's date of filing will begin the clock for his time
to file the affidavit of merit, based on preceding discussion this is not the case. Defendant
Ahsan's Answer to Plaintiff's Amended Complaint on June 29, 2017 (Def. Ahsan Answer Am.
Compl., ECF No. 180) is the dispositive pleading, beginning the clock for the AOM statute. See

Watts, 2014 WL 2114834;.Szemp/e, 162 F. Supp. 3d at 429-30.
With this framework in mind, the Court considers whether the time period for filing an
affidavit of merit has passed. The statute expressly provides that the affidavit of merit should be
filed within 60 days, but permits an extension of an additional 60 days upon a showing of good
cause. N.J.S.A. 2A:53A-27. Consistent with the "liberal spirit" of AOM statute case law,

Szemple, 162 F. Supp. 3d at 430, '[t]he good cause standard is a forgiving one, and as a practical
matter, the deadline is very often 120 days," End/ v. New Jersey, 2016 WL 1224133, at *5
(D.N.J. Mar. 29, 2016). A plaintiff need not move the court for an extension of time-courts can
extend the deadline as appropriate to best implement the purpose of the statute. Costa v. Cty. of

Burlington, 556 F. Supp. 2d 360, 362 (D.N.J. 2008). After the 120-day deadline has passed, the
plaintiff can avoid dismissal with prejudice for limited reasons, including a showing of
extraordinary circumstances. See Hyman Zamft and Manadrad, LLC v. Cornell, 707 A.2d 1068,
1071 (N .J. Super. Ct. App. Div. 1998) ("Carelessness, lack of circumspection, or lack of
diligence on the part of counsel are not extraordinary circumstances which will excuse missing a
filing deadline.")
Here, Plaintiff has missed the 60-day deadline to file his affidavit of merit with respect to
Defendant Ahsan, but the Court declines to find this untimely to justify judgment in favor of
Defendant Ahsan with prejudice to Plaintiff at this time. Liberally construing this standard as
other courts have, Plaintiff is afforded an additional 60 days to file an affidavit of merit.

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Although Plaintiff has not moved for an extension or made a showing of good cause for this
extension, his reliance on the unclear application of the AOM statute to a multiple-defendant
case is understandable. Plaintiff is directed to file an affidavit of merit, consistent with this
Opinion and the Court's Opinion of June 15, within sixty (60) days of the date of this Opinion
and corresponding Order.

CONCLUSION
For the reasons stated above, summary judgment will be denied without prejudice. An
accompanying Order will follow.

Date:

iO / s-/ 11

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