DESIREE WHYTE AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN POITRAS et al v. THE COUNTY OF MONMOUTH et al

Filing 31

MEMORANDUM OPINION and ORDER that Plaintiff's Motion to waive the same specialty requirement of the New Jersey Affidavit of Merit Statue (dkt. no. 26 ) is DENIED. Signed by Magistrate Judge Douglas E. Arpert on 5/19/2014. (mmh)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESTATE OF JOHN POITRAS BY ITS
GENERAL ADMINISTRATRIX DESIREE
WHYTE, DESIREE WHYTE AS
ADMINISTRATRIX AD PROSEQUENDUM
OF THE EST ATE OF JOHN POITRAS,
AND DESIREE WHYTE, INDIVIDUALLY,

Civ. No. 13-5476 (FLW) (DEA)

Plaintiffs,

v.

MEMORANDUM OPINION AND
ORDER

THE COUNTY OF MONMOUTH,
MONMOUTH COUNTY SHERIFF'S
OFFICE, SHERIFF SHAUN GOLDEN,
MONMOUTH COUNTY CORRECTIONAL
INSTITUTE, WARDEN BRIAN ELWOOD,
CORRECT CARE SOLUTIONS, LLC,
KABEERUDDIN S. HASHIM!, M.D.,
JOHN DOES, M.D.1-10, PATRICIA
STAGER, L.P.N., JANE DOES 1-10,
RICHARD ROES, M.D. 1-10, ABC
ASSOCIATES 1-20, AND PETER POES
1-10,

RECE\VED
MAY 2 0 2014
.

M

Defendants.

ARPERT, U.S.M.J:
This matter comes before the Court on a Motion by Plaintiffs Estate of John Poitras, et al.
to waive the "same specialty" requirement of the New Jersey Affidavit of Merit Statute, N.J.S.A.
§ 2A:53A-27 [dkt. no. 26].

Defendants have opposed Plaintiffs' Motion [dkt. no. 29]. For the

reasons specified below, Plaintiffs' Motion is DENIED.

I.

BACKGROUND
Plaintiffs brought this medical malpractice suit against Defendant Kabeeruddin Hashmi,

M.D., among others, which arises from the death of the decedent, John Poitras, while he was

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under Dr. Hashmi' s care as an inmate at the Monmouth County Correctional Institution
("MCCI"). Dr. Hashmi specializes in Correctional Healthcare and is board certified in Internal
Medicine. See Pis.' Brief, p. 1, dkt. no. 26. According to Plaintiffs, despite a "good faith effort",
they have been unable to locate an expert willing to testify in this matter who meets the criteria
specified in New Jersey's Affidavit of Merit Statute, N.J.S.A. § 2A:53A-27, particularly the
"same specialty" requirement. Id. at p. 4. Accordingly, Plaintiffs seek a waiver of the "same
specialty" requirement.

II.

LEGAL STANDARD
In any action for damages for personal injury or wrongful death resulting from an alleged

medical malpractice, New Jersey law requires the plaintiff to produce an Affidavit of Merit.
N.J.S.A. 2A: 53A-27. This Affidavit must be completed by "an appropriate licensed person" and
certify "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 for treatment practices." ld.

Further, the

person executing the Affidavit must "have particular expertise in the general area or specialty in
the action, as evidenced by board certification or by devotion of the person's practice
substantially to the general area of specialty involved in the action for at least five years." Id. A
plaintiff has 60 days from the filing of the Answer to produce such an Affidavit, although the
court may grant one 60-day extension for good cause. N.J.S.A. § 2A:53A-27.
According to the New Jersey Supreme Court, the Affidavit of Merit Statute was designed
"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 J. Comblatt, P.A. v. Barow, 153 N.J. 218, 242 (N.J. 1998) (quoting In re

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Petition of Hall, 147 N.J. 379, 391, 688 A.2d 81 (1997)). Indeed, the 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., 167 N.J. 341, 350 (2001).
Despite the requirements of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-41(c)
provides that "[a] court may waive the same specialty or subspecialty ... and board certification
requirements of this section, upon motion by the party seeking a waiver, if, after the moving
party has demonstrated to the satisfaction of the court that a good faith effort has been made to
identify an expert in the same specialty or subspecialty, the court determines that the expert
possesses sufficient training, experience and knowledge to provide the testimony as a result of
active involvement in, or full-time teaching of, medicine in the applicable area of practice or a
related field of medicine."

III.

DISCUSSION

In this case, Plaintiffs seek a waiver of the "same specialty" requirement because they
claim to have been unable to identify a Correctional Healthcare expert, willing to participate in
this case, who is also board certified in Internal Medicine. See Pis.' Brief at p. 1. Indeed,
Plaintiffs explain that they have contacted six physicians and an expert referral service, to no
avail. Id. at pp. 1-2. By Plaintiffs' account, at least some (and perhaps almost all) of these
targeted experts specialize in Correctional Healthcare and are board certified in Internal
Medicine. Id. However, these experts "declined to offer an opinion" on the alleged malpractice
in this case "for various reasons." Id. at p. 2. Moreover, an expert referral service was similarly
unable to locate a qualified expert willing to participate on Plaintiffs' behalf. Id.
More recently, Plaintiffs have identified two proposed experts whom they claim "possess
extensive training, experience, and knowledge as a result of their active involvement in and

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teaching of the practice of Internal Medicine." Id. at p. 2. The first, Arndol Sterne Leff, M.D., is
not board certified in Internal Medicine; however, Plaintiffs assert that he "has extensive
experience in Correctional Healthcare" and "was board certified for ten years by the combined
Internal Medicine and Family Medicine geriatric boards." Id. Dr. Leff was also a Clinical
Professor of Medicine at Stanford University. Id. The second proposed expert, Henry T. Davis,
D.O., is a Certified Correctional Healthcare Professional. Id. at pp. 2-3. He is not board certified
in Internal Medicine by the American Board of Medical Specialties, but is board certified in
Internal Medicine by the American Osteopathic Board.
After reviewing the facts and circumstances surrounding this dispute, the Court concludes
that it would be inappropriate to waive the "same specialty" requirement of the Affidavit of
Merit Statute. As Defendants noted, "[t]his is not a case where similarly situated experts in
terms of specialty and qualifications do not exist." See Defs.' Brief at p. 5. Indeed, Plaintiffs
acknowledge that they have located several experts with the appropriate qualifications to execute
an Affidavit of Merit in this case. While these experts declined to opine on the matter, Plaintiffs'
mere inability to secure an otherwise available, qualified expert is not grounds to loosen the
statute's requirements. Quite the contrary, to allow a waiver of the "same specialty" requirement
here would frustrate the purpose of the Affidavit of Merit Statute, which charges plaintiffs with
finding an appropriate expert at the outset of the litigation process. Given that Plaintiffs have
already identified various experts with the requisite qualifications to execute an Affidavit of
Merit, the Court cannot conclude that individuals possessing the appropriate qualifications are
particularly rare or that Plaintiffs have exhausted their efforts to locate such individuals.

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Plaintiffs' reliance on Ryan v. Renny, 203 N.J. 37 (2010), is misplaced. In Renny, the
Court concluded that Plaintiff had undertaken a "good faith" effort to identify an expert with the
appropriate qualifications to execute an Affidavit of Merit. According to the Court:
[T]o prove a good faith effort, a moving party must show what steps he undertook
to obtain an expert qualified according to N.J.S.A. 2A:53A-41(a) or (b). By way
of example, that would include: the number of experts in the field; the number of
experts the moving party contacted; whether and where he expanded his search
geographically when his efforts were stymied; the persons or organizations to
whom he resorted for help in obtaining an appropriate expert; and any casespecific roadblocks (such as the absence of local sub-specialty experts) he
encountered.
Id. at p. 55. Thus, before entertaining whether Drs. Leff and Davis are appropriately qualified to
serve as experts in the event of a "waiver", Plaintiffs must first demonstrate a good faith effort to
obtain an expert with the appropriate qualifications. The Court finds that Plaintiffs have not
made this showing. Specifically, Plaintiffs have not referenced the number of qualified experts
in the field as compared with the number of experts Plaintiffs have contacted. Accordingly, it
would be inappropriate in this situation to waive the "same specialty" requirement.

IV.

CONCLUSION AND ORDER

The Court has considered the papers submitted pursuant to FED. R. Crv. P. 78 and, for
the reasons set forth above;

IT IS this 19th day of May, 2014,
ORDERED that Plaintiff's Motion to waive the same specialty requirement of the New
Jersey Affidavit of Merit Statute [dkt. no. 26] is DENIED.

s/ Douglas E. Arpert
DOUGLAS E. ARPERT, U.S.M.J.

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