DORVAL v. AHSAN et al

Filing 46

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 1/30/2017. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JEAN DORVAL,

Civil Action No. 14-3271 (FLW)

Plaintiff,
v.

MEMORANDUM OPINION

ABU AHSAN, IHUOMA NWACHUKWA
AND DONIQUE IVERY
Defendants.

BONGIOVANNI, Magistrate Judge
Currently pending before the Court is Plaintiff Jean Dorval’s (“Plaintiff”) motion for an
extension of time to file Affidavits of Merit. (Docket Entry No. 43). Defendants Abu Ahsan,
Ihuoma Nwachukwa and Donique Ivery oppose Plaintiff’s motion. (Docket Entry No. 44). The
Court has fully reviewed the papers submitted in support of and in opposition to Plaintiff’s
motion. The Court considers Plaintiff’s motion without oral argument pursuant to L.Civ.R.
78.1(b). For the reasons set forth below, Plaintiff’s motion is DENIED.
I.

BACKGROUND AND PROCEDURAL HISTORY

On May 22, 2014, Plaintiff filed a complaint against Abu Ahsan, Ihuoma Nwachukwa,
Donique Ivery, UMDNJ (UCHC) and New Jersey Department of Corrections alleging violations
of the Eighth Amendment and claims of Deliberate Indifference. (Docket Entry No. 1). Plaintiff
alleges that he was denied required medical treatment to prevent further damage to a spinal
injury that he sustained while unloading boxes during his assigned work detail. On May 30,
2014, after a sua sponte screening of the complaint, the District Court dismissed the claims
against UMDNJ (UCHC) and New Jersey Department of Corrections. (Docket Entry No. 2). On
January 12, 2015, Defendants filed a motion to dismiss Plaintiff’s claims of medical and nursing

malpractice for failure to provide an affidavit of merit (Docket Entry No. 19) which was
subsequently denied without prejudice by the District Court on August 3, 2015 (Docket Entry
No. 30). Defendants then filed a motion for partial summary judgment on September 11, 2015
(Docket Entry No. 34), which was denied without prejudice by the District Court on April 28,
2016 (Docket Entry Nos. 39 and 40). The District Court ordered that pro bono counsel be
appointed with the limited purpose of determining whether Plaintiff can obtain affidavits of merit
and extended the time for filing the affidavits of merit for 60 days from the date pro bono
counsel was assigned. (Docket Entry No. 40). Pro bono counsel was assigned on August 29,
2016 making the affidavits of merit due on October 28, 2016. On October 25, 2016, Plaintiff
filed the instant motion.
Plaintiff is requesting an additional ninety days to determine whether Plaintiff can obtain the
necessary affidavits of merit. (Pl.’s Br. in Supp. of Mot. at 2). Plaintiff’s counsel, Vincent P.
Rao II (Mr. Rao) states that around the time of his appointment as pro bono counsel, he was
diagnosed with a serious medical condition that required immediate surgical intervention. (Id. at
1). Mr. Rao underwent surgery on September 12, 2016 and returned to work full time on
October 10, 2016. (Id.) Plaintiff argues that Mr. Rao has been “incapacitated for almost the full
amount of time initially allotted by this Court to complete the task of determining whether
Plaintiff may obtain Affidavits of Merit.” (Pl.’s Reply Br. at 2). Plaintiff argues that it is
irrelevant that it has obtained extensions in the past as this is Mr. Rao’s first request for an
extension. (Id.) Plaintiff further argues that Mr. Rao’s request for an extension is based on good
cause. (Id.) Plaintiff notes that the request for a ninety day extension is “not for the purposes of
undue delay or harassment, but rather, to allow Plaintiff…to properly address the task assigned
by this Court.” (Id.)

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Defendants argues that “they have already been prejudiced by being required to litigate a
meritless case for more than two years.” (Defs.’ Br. in Opp. at 1). Defendant further argues that
to grant another extension would unnecessarily delay the case. (Id.)
II.

ANALYSIS
A. STANDARD OF REVIEW
In professional malpractice actions plaintiffs are required to provide an affidavit from an

appropriate licensed professional attesting to the merit of plaintiff’s claims. Palanque v. Lambert
Wooley, 168 N.J. 398, 404 (2001). This requirement was intended by the Legislature to curtail
frivolous litigation without preventing access to the courts for meritorious claims. (Id.) The
Affidavit of Merit 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.
N.J.S.A. 2A:53A-27.
A plaintiff’s failure to serve an appropriate Affidavit of Merit within the 120 days of the
filing of the answer is considered tantamount to the failure to state a cause of action, subjecting
the complaint to dismissal. See N.J.S.A. 2A:53A-29.
B. DISCUSSION
Plaintiff seeks permission to extend the time for serving an Affidavit of Merit for an
additional 90 days. Defendants assert that Plaintiff’s motion for an extension to serve the
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Affidavit of Merits should be denied because it seeks an extension beyond the 120-day
maximum limit. The Court agrees.
Pursuant to N.J.S.A. 2A:53A-27 plaintiffs in medical malpractice actions are required to
provide the defendant, within 60 days of the filing of defendant’s answer, an affidavit of “an
appropriate licensed person that there exists a reasonable probability” that the care that is the
subject of the action falls outside the accepted professional standard. N.J.S.A. 2A:53-27. One
additional 60-day extension may be granted upon a finding of good cause. (Id.) As noted by
the New Jersey Appellate Division in Familia v. University Hosp. of University of Medicine
and Dentistry of New Jersey, 350 N.J. Super. 563, 569 (App. Div. 2002), it is “significant that
the statute speaks of granting ‘no more than one additional period,’ rather than in terms of “no
more than one additional extension.’ N.J.S.A. 2A:53A-27. We construe the language ‘one
additional period’ to indicate that the concern of the Legislature was to set an outer time limit
of one hundred twenty days, beyond which no extension could be granted, rather than to limit
the number of times an extension could be sought.“ As the New Jersey Supreme Court
forewarned in Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003):
If defense counsel files a motion to dismiss after the 120-day deadline
and before plaintiff has forwarded the affidavit, the plaintiff should
expect that the complaint will be dismissed with prejudice. Id. at 154.
Thus, this 120-day period has been deemed a “drop-dead” date with which a plaintiff must serve
an appropriate Affidavit of Merit. See Douglass v. Obade, 359 N.J. Super. 159 (App. Div.
2003).
In the matter at hand, Plaintiff failed to serve the required Affidavits of Merit within 120
days of Defendants’ Answers being filed. Moreover, while the Court is sympathetic to
Plaintiff’s counsel’s medical condition, it does not constitute an extraordinary circumstance
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warranting an extension. The Court notes that even if the motion is granted, the ninety days that
Plaintiff requests has already elapsed.
III.

CONCLUSION
For the reasons stated above, Plaintiff’s Motion for an extension of time to file Affidavits

of Merit is DENIED. An appropriate Order follows.

Dated: January 30, 2017

s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
.

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