WASHINGTON v. ELLIS et al
OPINION filed. Signed by Judge Peter G. Sheridan on 02/19/2020. (jdb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 17-7243 (PGS) (TJB)
CHARLES ELLIS, et al.,
PETER G. SHERIDAN, U.S.D.J.
Plaintiff Randy Washington (“Plaintiff” or “Washington”) is a state inmate proceeding
with an amended civil complaint. Presently pending before this Court is defendant Dr. Michael
Deehan’s (“Deehan”) motion for summary judgment. (See ECF 91). For the following reasons,
Deehan’s motion for summary judgment will be granted.
FACTUAL AND PROCEDURAL BACKGROUND
Washington’s amended complaint alleges a claim of medical malpractice against Deehan.
(See ECF 38 at 14). Washington’s hand was injured while at the Mercer County Courthouse that
resulted in Deehan performing hand surgery on him in 2017. (See id. at 5, 13-14). Deehan put
pins and screws in Washington’s hand. (See ECF 98 at 1). Plaintiff states that Deehan told him
that the pins would be permanent. (See ECF 38 at 13). However, sixty days after surgery,
Washington was given an X-ray and Deehan took the pins and screws out. (See ECF 98 at 1).
Washington was provided a soft cast for his hand by Deehan, despite Deehan purportedly
knowing that Washington’s hand was still broken. (See ECF 98 at 1).
Deehan answered the amended complaint on June 28, 2019. (See ECF 81). Thereafter,
Magistrate Judge Bongiovanni notified Washington of the need to serve an affidavit of merit
pursuant to N.J. Stat. Ann.
(See ECF 82 at 1). Judge Bongiovanni noted in her
letter order that Washington needed to serve an affidavit of merit within sixty days of Deehan’s
answer. (See id.) She also noted that this deadline could be extended by an additional sixty days
upon a showing of good cause by Washington. (See id.) Subsequently, Judge Bongiovanni
granted Washington’s request for that sixty-day extension. (See ECF 85).
After the 120-day period for Washington to submit an affidavit of merit expired without
one being served, Deehan submitted a motion for summary judgment. (See ECF 91). Washington
submitted a response in opposition to the motion (see ECF 98), and Deehan submitted a reply.
(See ECF 99). The matter is now ripe for disposition.
Federal Rule of Civil Procedure 56 permits a court to award a party summary judgment if
“the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine if
supported by evidence such that a reasonable jury could return a verdict in the non-movant’s
favor. See Anderson v. Liberty Lobby, inc., 477 U.S. 242, 248, 25 1—52 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Kaucher v. County ofBucks, 455
F.3d 418, 422—23 (3d Cir. 2006). A fact is material if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. See Anderson, 477 U.S. at 248;
Kaucher, 455 F.3d at 423. In determining whether a genuine dispute of material fact exists, the
Court must view the facts and all reasonable inferences drawn from those facts “in the light most
favorable to the [non-movant].” Matsushita Elec. indus. Co., 475 U.S. at 587.
A movant for summary judgment “bears the initial responsibility of informing the district
court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U. S. 317, 323 (1986). While a
defendant moving for summary judgment must support assertions by “citing to particular parts of
materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), the movant is not required to “support its
motion with affidavits or other similar materials negating the opponent’s claim,” Celotex Corp.,
477 U.S. at 323. Instead, “the burden on the moving party may be discharged by ‘showing’—that
is, pointing out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. If the movant has shown an absence of material factual
dispute, the non-movant then bears the burden to “designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). Moreover, the non-movant
may not rest upon the mere allegations or denials of the pleadings. Id. at 324; Maidenbaum v.
Bally’s ParkPlace, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994), aff’d67 F.3d 291 (3d Cir.
1995). The non-movant must “do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586. A mere “scintilla of
will be insufficient.” Anderson, 477 U.S. at 252.
Local Civil Rule 56.1 requires that a motion seeking summary judgment include a
statement of material facts not in dispute and that an opponent of summary judgment shall file “a
responsive statement of material facts, addressing each paragraph of the movant’s statement,
indicating agreement or disagreement and, if not agreed, stating each material fact in dispute and
citing to the affidavits and other documents submitted in connection with the motion.” L. Civ. R.
56.1(a). The rule further provides that “any material fact not disputed shall be deemed
undisputed for purposes of the summary judgment motion.” Id.
As noted by the United States Court of Appeals for the Third Circuit, the affidavit of
merit statute in New Jersey:
requires the plaintiff in a malpractice action to file “an affidavit of
an appropriate licensed person [stating] 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. Stat. Ann. § 2A:53A—27.
The penalty for not following the statute is severe: absent a
showing of extraordinary circumstances, the failure to file the
affidavit within sixty days of the filing of the answer “shall be
deemed a failure to state a cause of action.” § 2A:53A—29. This
requirement “curtail[s] frivolous litigation without preventing
access to the courts for meritorious claims.” Pa/anque [v. Lambert
Woolley], 774 A.2d  at 505 [N.J. 2001)].
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 579—80 (3d Cir. 2003).
It is undisputed in this case that Washington has not submitted an affidavit of merit
within the time allotted. This failure usually results in the dismissal of a plaintiff’s medical
malpractice claims. See Olivares v. United States, 447 F. App’x 347, 353 (3d Cir. 2011) (“In
New Jersey, allegations of medical malpractice require, with few exceptions, the submission of
an affidavit of merit as a precondition to filing suit. Failure to file ‘shall be deemed a failure to
state a cause of action.”) (quoting N.J. Stat. Ann.
2A:53A-27 through 29)). Washington
though asserts that he should be relieved from submitting an affidavit of merit because of the
common knowledge exception to the affidavit of merit requirement.
common knowledge makes apparent a claim’s merit, an expert’s affidavit is
unnecessary.” Natale, 318 F.3d at 580. “The common knowledge exception applies in cases
where ‘jurors’ common knowledge as lay persons is sufficient to enable them, using ordinary
understanding and experience, to determine a defendant’s negligence without the benefit of
expert knowledge.” Richards v. Wong, No. 14-3353, 2015 WL 4742344, at *6 (D.N.J. Aug. 10,
2015) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 734 A.2d 778, 785 (N.J. 1999)). The
New Jersey Supreme Court has held that the common knowledge exception should be narrowly
construed. See Hubbard ex rel. Hubbardv. Reed, 774 A.2d 495, 501 (N.J. 2001). This Court has
noted some instances where the common knowledge exception to the affidavit of merit
in Hubbard, supra, a dentist removed the wrong tooth. In.
Palanque v. LambertWoolley, a physician misread test results
which lead to unnecessary major surgery. 168 N.J. 398, 774 A.2d
501, 503 (N.J. 2001). In yet another seminal case, Bender v.
Waigreen Eastern Co., Inc., a pharmacist filled a prescription with
the wrong drug. 399 N.J. Super. 584, 945 A.2d 120, 122 (N.J.
Super. Ct. App. Div. 2008). [In] Jackson v. Fauver, 334 F. Supp.
2d 697 (D.N.J. 2004)... all of the allegations involved the failure
to provide plaintiffs with medical care that had already been
prescribed to them by specialists. Id. at 743; see also Grimes v.
Corr. Med. Servs., 2010 WL 50301 (D.N.J. Feb. 8, 2010) (holding
that failure to deliver prescribed medication in a timely manner
falls within the common knowledge exception).
Richards, 2015 WL 4742344, at *6.
Washington has not demonstrated the obviousness of Deehan’s asserted negligence. His
claim is based on the purported negligence of Deehan who he admits performed an x-ray,
removed the pins and screws from Washington’s hand that he had previously placed there with
surgery and gave Washington a soft cast to wear. Expert testimony would be needed to
determine the appropriateness of these post-surgical actions by Deehan. It is not within a lay
person’s knowledge as to whether Deehan’s post-surgical treatment of Washington was
negligent. See, e.g., Davis v. Pine Acres Convalescent Ctr., A-2 148-1 4T2, 2015 WL 6113143, at
*5 (N.J. Sup. Ct. App. Div. Oct. 19, 2015) (where issue implicates defendant’s
judgment, claim is beyond the common knowledge exception). Therefore, this case does not fall
within the common knowledge exception. Summary judgment is therefore appropriate.
For the foregoing reasons, Deehan’s motion for summary judgment is granted. An
appropriate order will be entered.
PETER G. SHERIDAN
United States District Judge
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