COWARD v. LANIGAN et al
Filing
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MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 12/4/2014. (kas, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES COWARD,
Plaintiff,
Civil Action No. 13-2222 (MAS)
v.
GARY M. LANIGAN, et al.,
MEMORANDUM OPINION
Defendants.
SHIPP, District Judge
This matter comes before the Court upon the motion of Defendant, Abu Ahsan, M.D., to
dismiss Plaintiffs claim of medical malpractice because Plaintiff did not serve an Affidavit of .
Merit as required under N.J.S.A. 2A:53A-29. (ECF No. 29.) There has been no opposition filed
by Plaintiff. For good cause shown, the motion is granted, and the medical negligence claim
asserted against Defendant Dr. Ahsan shall be dismissed accordingly.
I.
Background
Plaintiff, Charles Coward, is a state inmate currently confined at the New Jersey State
Prison ("NJSP") in Trenton, New Jersey. The incidents at issue in this action occurred during
Plaintiffs incarceration at NJSP.
On or about April 9, 2013, Plaintiff filed a civil Complaint alleging violations of his civil
rights under 42 U.S.C. § 1983. (ECF No. 1.) In his Complaint, Plaintiff alleges that he is a
pretrial detainee incarcerated at NJSP, and on July 9, 2012, he was placed on suicide watch in a
feces-stained cell without any bed or furniture. Plaintiff further alleges that Defendant Charles
E. Warren, Administrator ofNJSP, authorized Plaintiffs placement in a restraint chair. Plaintiff
asserts that Defendants Warren and Dr. Ahsan provided inadequate medical care with deliberate
indifference to Plaintiffs life threatening infection contracted while confined under such
unsanitary conditions. Specifically, Plaintiff alleges that Defendants failed to provide adequate ·
medical treatment for large black scabs that had erupted over Plaintiffs body due to an injury
caused by a suicide attempt and a bacterial infection caused by the arm injury. (Id.)
In an Order entered on May 2, 2013, this Court allowed Plaintiffs Fourteenth
Amendment due process deprivation of liberty and denial of medical care claims to proceed
against Defendants Warren and Dr. Ahsan. (ECF No. 2, Order at if 4.) However, the Court
dismissed the Complaint, without prejudice, as to Defendant Gary M. Lanigan, Commissioner of
the New Jersey Department of Corrections ("NJDOC"), because the Complaint did not allege
any facts to show Lanigan was personally involved in any of the alleged wrongful conduct,
pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) and Bistrian v. Levi, 696 F.3d 352, 366
(3d Cir. 2012). (ECF No. 2, Order at if 6.) Defendant St. Francis Medical Center also was
dismissed from the action because Plaintiff had not alleged any facts showing that there was a
relevant custom or policy of St. Francis Medical enter that caused a violation of Plaintiffs
constitutional rights under § 1983. (Id. at if7.)
Initially, the Complaint had named "Dr. Hassan" as a defendant, and a summons was
issued as to "Dr. Hassan" accordingly. On December 18, 2013, default was entered against "Dr.
Hassan." It was then discovered that Plaintiff had intended to name and serve Abu Ahsan, M.D.,
so a motion to vacate entry of default was filed on January 22, 2014. (ECF No. 14.) The motion
was granted by Letter Order entered on February 11, 2014. (ECF No. 15.) Defendant Dr. Ahsan
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thereafter filed an Answer to the Complaint on February 25, 2014.
(ECF No. 16.) In the
Answer, Dr. Ahsan issued a Demand for and Affidavit of Merit. (Id.)
On July 29, 2014, Defendant Dr. Ahsan filed this motion to dismiss the claim of medical
negligence asserted against him because Plaintiff has failed to timely serve an Affidavit of Merit
by a qualified physician asserting a reasonable probability that the care rendered by Dr. Ahsan
deviated from accepted standards of medical care, as required under N.J.S.A. 2A:53A-27. (ECF
No. 29.) There has been no response filed by Plaintiff with regard to Dr. Ahsan's motion to
dismiss.
II.
Legal Standard & Analysis
Defendant Dr. Ahsan asserts that this action must be dismissed because Plaintiff failed to
serve an Affidavit of Merit as required by N.J.S.A. 2A:53A-29 ("If the plaintiff fails to provide
an affidavit or a statement in lieu thereof, pursuant to section 2 or 3 of this act, it shall be deemed
a failure to state a cause of action."). Specifically, this statute provides:
In any action for damages for personal injuries, wrongful 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. The court may grant no more than one additional period, not to
exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
In the case of an action for medical malpractice, the person executing the affidavit shall
meet the requirements of a person who provides expert testimony or executes an affidavit
as set forth in section 7 of P.L.2004, c. 17 (C.2A:53A-41). In all other cases, the person
executing the affidavit shall be licensed in this or any other state; have particular
expertise in the general area or specialty involved in the action, as evidenced by board
certification or by devotion of the person's practice substantially to the general area or
specialty involved in the action for a period of at least five years. The person shall have
no financial interest in the outcome of the case under review, but this prohibition shall not
exclude the person from being an expert witness in the case.
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N.J.S.A. 2A:53A-27. However, under certain circumstances, a sworn statement by the plaintiff
may be provided in lieu of an affidavit of merit. N.J.S.A. 2A:53A-28. 1
The affidavit of merit statute therefore requires "plaintiffs to make a threshold showing"
of merit, Vitale v. Carrier Clinic, Incorporated, 409 F. App'x 532, 533 (3d Cir. 2010) (citation
omitted), in order '"to dispose of meritless malpractice claims early in the litigation"' and '"to
allow meritorious claims to move forward unhindered.'" Snyder v. Pascack Valley Hosp., 303
F.3d 271, 274 (3d Cir. 2002) (quoting Burns v. Belafsky, 166 N.J. 466, 766 A.2d 1095, 1099 ·
(2001)). See also Fontanez v. US., --- F. Supp.2d ----, 2014 WL 2608386, *2 (D.N.J. May 30,
2014). The affidavit of merit statute also requires that the affidavit be filed within sixty days of
the answer, but permits an extension of time "not to exceed [sixty] days" for "good cause[.]"
N.J.S.A. 2A:53A-27.
Failure to file a timely affidavit of merit generally "requires dismissal of the action with
prejudice." Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. Withum-Smith
Brown, P.C., 692 F.3d 283, 305 (3d Cir. 2012); see also N.J.S.A. 2A:53A-29 (setting forth the
consequence for a plaintiffs failure to provide an affidavit of merit). However, "four limited
exceptions[,]" where applicable, excuse a plaintiff's failure to comply with the affidavit of merit
statute.
Nuveen, 692 F.3d at 305.
The limited exceptions are: "(i) a statutory exception
regarding lack of information; (ii) a 'common knowledge' exception; (iii)" an exception
N.J.S.A. 2A:53A-28 provides: "An affidavit shall not be required pursuant to section 2 of this
act if the plaintiff provides a sworn statement in lieu of the affidavit setting forth that: the
defendant has failed to provide plaintiff with medical records or other records or information
having a substantial bearing on preparation of the affidavit; a written request therefor along with,
if necessary, a signed authorization by the plaintiff for release of the medical records or other
records or information requested, has been made by certified mail or personal service; and at
least 45 days have elapsed since the defendant received the request."
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predicated upon "substantial compliance with the affidavit-of-merit requirement;" or (iv)
"'extraordinary circumstances' that warrant equitable relief." Id. (citations omitted).
In this case, Plaintiff has failed to allege or support any of the four limited exceptions to
preclude dismissal with prejudice of his medical negligence claim. Further, the mere fact of
Plaintiffs pro se status does not constitute extraordinary circumstances to overcome the
Affidavit of Merit requirement. See Kant v. Seton Hall University, Civil No. 00-5204, 2009 WL
2905610 (D.N.J. Sep. 9, 2009). See also Lee v. Thompson, 163 F. App'x 142, 144 (3d Cir. 2006)
(holding that plaintiffs status as a pro se litigant does not excuse his failure to file an Affidavit
of Merit); Allah v. MHSM, Inc., Civil No. 07-2916, 2008 WL 5115889, *3 (D.N.J. Dec. 2, 2008)
(same as applied to a prose prisoner litigant).
Therefore, because Plaintiff has not filed an Affidavit of Merit, a substantial equivalent,
or any response to Dr. Ahsan's motion, and because the time to file an Affidavit of Merit has
now expired, the Court will grant Defendant Ahsan's motion to dismiss the medical malpractice
claim. The Court notes, however, that Plaintiffs Complaint alleges facts that, if true, may
support his Fourteenth Amendment due process claims asserting deprivation of liberty and denial
of medical care under 42 U.S.C. § 1983.
(See ECF No. 2, May 2, 2013 Order at
if 4.)
Accordingly, Plaintiffs Fourteenth Amendment claims against Dr. Ahsan and Administrator
Warren are not dismissed at this time.
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IV.
Conclusion
For the reasons set forth above, and for other good cause shown, it is hereby ordered that
Defendant Dr. Ahsan' s motion to dismiss Plaintiffs medical malpractice claim in this action for
failure to file an Affidavit of Merit is granted, and such claim is dismissed accordingly. The
remaining Fourteenth Amendment due process claims against Defendants Dr. Ahsan and
Administrator Warren are not dismissed at this time. An Order consistent with this opinion will
be entered.
MICHAEL A. suli>P
UNITED STATES DISTRICT JUDGE
Dated:
If
/1-/J-
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