METH v. THOMAS JEFFERSON UNIVERSITY HOSPITALS, INC. et al

Filing 15

OPINION filed. Signed by Judge Anne E. Thompson on 7/20/2018. (mmh)

Case 3:17-cv-13323-AET-TJB Document 15 Filed 07/23/18 Page 1 of 4 PageID: 163

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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FRANCIE METH,

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Plaintiff,

Civ. No. 17-13323

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v.

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OPINION

THOMAS JEFFERSON UNIVERSITY
HOSPITALS, INC.; DR. COURTNEY
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PENDLETON, M.D.; DR. DONALD YE,
M.D.; DR. SUSAN E. WEST, M.D.; JOHN
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AND JANE DOES 1-10; and ABC ENTITIES
. 1-10,
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Defendants.

THOMPSON. U.S.D.J.
This matter comes before the Court upon a motion for summary judgment by the sole
remaining Defendant, Thomas Jefferson University Hospitals, Inc. ("Defendant"). (See ECF
Nos. 11, 13.) The Motion is unopposed. The Court has issued the opinion below based upon the
written submissions and without oral argument pursuant to Local Civil Rule 78.1 (b ). For the
reasons stated herein, Defendant's Motion is granted.

BACKGROUND
This case concerns allegations of professional negligence. On April 25, 2015, Plaintiff
Francie Meth ("Plaintiff') was admitted to the Defendant hospital with a diagnosis of frontal
opercular meningioma and underwent a left frontal craniotomy surgery. (Compl. <J[ 8, ECF No. 1L) She was discharged on April 27, 2015. (Id.

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9.) On May 31, 2015, Plaintiff was readmitted

for a revision surgery which required significant removal of additional bone from her head. (Id.
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10-11.) She was discharged on June 4, 2015. (Id.
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12.) By letter dated June 10, 2015,

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Defendants notified Plaintiff that she had acquired a hospital infection which necessitated the
revision surgery. (Id.

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13.) In Count I, Plaintiff alleges that her doctors breached their

professional duty of care in their treatment, admission, and discharge of Plaintiff, causing serious
and painful injuries of a permanent and disabling nature. (Id. <Jr][ 15-17.) In Count II, she alleges
that Defendant is vicariously liable for this breach because the physicians were its agents or
employees acting within the scope of their employment. (Id. <Jr][ 18-21.)
On May 26, 2017, Plaintlff filed this professional negligence action in New Jersey state
court, seeking damages, costs, interest, and counsel fees for the defendant physicians' alleged
malpractice and Defendant's vicarious liability. (ECF No. 1-1.) After being served in November
2017, Defendants removed the state case to federal court on December 20, 2017 on the basis of
diversity jurisdiction. (ECF No. 1.) On December 28, 2017, the physician defendants moved to
dismiss for lack of personal jurisdiction (ECF Nos. 3, 4 ), which the Court granted without
prejudice on February 9, 2018 (ECF Nos. 7, 8). Under the Scheduling Order issued by
Magistrate Judge Tonianne Bongiovanni, Plaintiff was required to file an Affidavit of Merit by
May 26, 2018. (See ECF No. 10.) To date, Plaintiff has not filed an Affidavit of Merit with the
Court. On June 22, 2018, Defendant filed a Motion to Dismiss the Complaint for failure to file an

Affidavit of Merit. (ECF Nos. 11, 12.) By Letter Order on June 27, 2018, the Court notified the
parties that it was converting the Motion to a motion for summary judgment and adjourned the
briefing schedule by one week. (ECF No. 27.) Plaintiff has not filed opposition within that
extended deadline. The Court now considers the Motion.

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 of law." Fed. R. Civ. P.

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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., 120 F.2d
303, 307 n.2 (3d Cir. 1983); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). In resolving a
motion for summary judgment, a district court considers the facts drawn from "materials in the
record," including depositions, documents, affidavits, and declarations. Fed. R. Civ. P.
56(c)(l)(A). 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, 411 U.S. at 251-52.

ANALYSIS
Pursuant to New Jersey statutory law, a plaintiff in a professional negligence action must
provide each defendant with an Affidavit of Merit ("AOM"), which states "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.S.A. 2A:53A-27. Per statute, the plaintiff
shall provide the AOM within 60 days following the defendant's answer, with the potential for a
one-time 60-day extension thereafter, authorized by court upon a finding of good cause. Id.
Because the purpose of the AOM is for a plaintiff to demonstrate a threshold showing of a
meritorious claim, the AOM must be provided by an "appropriate licensed person." Id.; see also

A.T. v. Cohen, 175 A.3d 932, 937 (N.J. 2017). "[T]he New Jersey affidavit of merit statute is

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substantive state law that must be applied by federal courts sitting in diversity." Chamberlain v.

Giampapa, 210 F.3d 154, 161 (3d Cir. 2000). The New Jersey Supreme Court has interpreted
failure to file an AOM under N.J.S.A. 2A:53A-29 to require dismissal with prejudice, absent
extraordinary circumstances, see A. T., 175 A.3d at 937 (citing Alan J. Comblatt, P.A. v. Barrow,
708 A.2d 401, 415 (N.J. 1998)), or substantial compliance with the statute, see Ferreira v.

Rancocas Orthopedic Assocs., 836 A.2d 779, 783 (N.J. 2003) (collecting cases).
It is beyond dispute that the instant case sounds in professional negligence, asserting tort
causes of action for medical malpractice against physician providers and their hospital employer.

(See generally Compl.) Further, this Court sits in diversity and thus must apply New Jersey law,
as Plaintiff is a citizen of New Jersey and Defendant is a citizen of Pennsylvania (id.<][<][ 1, 5).
Defendant answered Plaintiffs Complaint on December 28, 2017. (ECF No. 5.) Therefore, under
New Jersey law, Plaintiff should have filed an AOM by the end of February 2018, or at the outer
limit, the end of April 2018 with a one-time 60-day extension. Pursuant to Judge Bongiovanni's
Scheduling Order, Plaintiff was granted even more time to prepare and file the A OM-until May
26, 2018. To date, Plaintiff has not filed an AOM, nor has she communicated any extraordinary
circumstances or efforts at substantial compliance with this threshold statutory requirement.
Plaintiff's failure to satisfy N.J.S.A. 2A:S3A-27 or to establish the existence of any disputed

facts with respect to compliance requires the Court to enter summary judgment in favor of
Defendant.
CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted. A

n.

corresponding order will follow.

Dated:

.2.

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