Hodges v. United States of America
ORDER ADOPTING REPORT AND RECOMMENDATION in its entirety and dismiss the plaintiff's complaint without prejudice. Ordered by Judge Ann M. Donnelly on 9/26/2017. (Greene, Donna)
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SEP 2 6 2017
TERRAIN£ HODGES ,
ORDER ADOPTING REPORT
l 6-CV-1339 (AMD) (SJB)
-againstUNITED STATES OF AMERICA.
Ann M. Donnelly, United States District Judge:
On March 16, 2016, the prose plaintiff, Terraine Hodges, commenced this action against
the defendant, The United States of America, alleging medical malpractice in connection with
surgery conducted at a Veteran's Administration hosp ital in East Orange, New Jersey. (ECF No.
I.) The plaintiff brought thi s claim under the Federal Tort Claims Act ("FTCA"), seeking
declaratory relief, compensatory damages, and costs for injuries. (ECF No. 1.) On February 24,
2017, the defendant fi led a motion to dismiss, or alternatively, summary judgment to dismiss the
action with prejudice; the plaintiff responded on March 3, 20 17. I referred this matter to Chief
Magistrate Judge Roanne L. Mann on March 6, 2017, who issued a report and recommendation
("R&R") on April 5, 2017, granting the defendant's motion in part and dismissing the complaint
without prejudice. (ECF No. 31.) Both the plaintiff and the defendant filed objections. On
September 1, 20 17, this matter was reassigned to Magistrate Judge Sanket J. Bulsara.
I have reviewed the plaintiffs complaint, the defendant's motion papers and the
plaintiffs opposition, Judge Maim' s R&R, ai1d the pai·ties' objections. For the reasons discussed
below, I adopt Judge Ma1m' s thorough and well-reasoned R&R in its entirety, and dismiss the
plaintiffs complaint without prejud ice.
below, I adopt Judge Mann' s thorough and well-reasoned R&R in its entirety, and dismiss the
plaintiff s complaint without prejudice.
The facts of this matter are discussed in greater detail in Judge Mann's R&R. The
relevant facts are as follows: To limit meritless and frivolous claims, pursuant to New Jersey's
affidavit of merit statute ("AOM Statute"), all medica l malpractice suits resulting from conduct
in New Jersey require a plaintiff to fil e an affidavit from a qualified physician (not necessarily
the treating physician) affirming that there is a " reasonable probability that the care, skill or
knowledge exerci sed or exhibited in the treatment, practice or work that is the subj ect of the
complaint, fell outside acceptable professional or occupational standards or treatment practices."
(N .J. Stat. Ann. § 2A:53A-27). The AOM should be filed within 60 days after the defendant
answers the complaint. Id. Here, after the plaintiff unsuccessfully attempted to get an AOM
within the allotted time, Judge Mann held a conference with the parties on December 12, 2016 to
discuss how to proceed. Following the conference, Judge Mann decided that, in view of the
plaintiffs prose status, the diligent effort she made to get the AOM, and the treating physician ' s
alleged refusal to cooperate, "extraordinary circumstances" warranted an extension of the
plaintiffs dead line to file the AOM until January 27, 2017. (ECF No. 24.) Judge Mann ruled
that if the plaintiff had not fi led the required AO M by the new date, the defendant would be
allowed to file its dispositi ve motion. (ECF No. 24.)
The plaintiff did not file her AOM by January 27, 2017, and the defendant fil ed its
dispositive motion on February 24, 20 17. (ECF No. 25.) The plaintiff has yet to file her AOM.
In considering an R&R, a district court "may accept, reject, or mod ify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(C).
When a magistrate judge makes a recommendation that is dispositive of a party's claim, the
district judge must review de nova any part of the magistrate judge's decision to which a party
properly objects. Fed. R. Civ. P. 72(b)(3). The court may adopt any sections of the magistrate's
report to which a party did not object, as long as the magistrate's decision was not "facially
erroneous." Markey v. Lapolla Indus. , Inc., No. 12-cv-4622-JS-AKT, 2016 WL 324968, at *3
(E.D.N.Y. Jan . 26, 20 16) (citation omitted).
The defendant asserted that the plaintiff could not maintain her cause of action without an
AOM. (ECF No. 25 -3 at 9.) In opposition, the plaintiff acknowl edged that she did not submit
the affidavit, but asked Judge Mann to waive the AOM requirement because of her prose status
and her efforts to obtain the affidavit. (ECF No. 27 at 4-5.) The defendant responded that the
plaintiffs case was not covered by any of the four limited exceptions that courts have applied to
excuse the AOM requirement.
Judge Mann carefully analyzed the four exceptions to the AOM Statute, and determined
that the plaintiff did not quali fy for any of the exceptions. (ECF No. 3 1 at 6-17.) Judge Mann
had already granted the plaintiff one "ex traordinary circumstances" extension; she was "aware of
no authority permitting an additional extension of time." (ECF No. 31 at 17.) Under the
circumstances of this case, however, Judge Mann recommended that the plainti ffs claim be
dismi ssed without prejudice, so that the plaintiff could renew the action if she obtained an AOM
before the expiration of the statute of limitations. (ECF No. 31 at I 7.)
The defendant objects to Judge Mann 's recommendati on that the dismissal be without
prejudice, on the grounds that it "effecti vely provid[es] the plaintiff with another chance to
renew [her] action and produce an [AOM]". (ECF No. 33 at 4.) The defendant contends that
there is no evidence that extraord inary circumstances prevented the plaintiff from filing an
AOM. (ECF No . 33 at 4-5.) Rather, the defend ant claims that the plaintiff's fa ilure to file an
AOM was "due to her unjustified insistence" that the AOM come from her treating phys ician even though the plaintiff was aware that the affidavit could come from any medical provider.
(ECF No. 33 at 5-6.) Further, the defendant argues that even if the dismissal without prejudice
were upheld, future litigation would involve the very same question of "extraordi nary
circumstances" under the equitable tolling doctrine, because the plaintiffs cla im would be barred
by the FTCA's six-month statute of limitati ons. (ECF No. 33 at 4.) For the below reasons, I
adopt Judge Mann' s recommendation to dismiss the plaintiff' s complaint without prejudice.
" Where a pl aintiff cannot establish substan tial compliance with the AOM Statute, the
New Jersey Supreme Co urt has held that dismissal of the plaintiff's complaint should be with
prejudice in all but extraordinary circumstances." Nuveen Mun. ex rel Nuveen High Mun. Bond
Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 308-09 (3 rd Cir. 2012) (internal citations
omitted). Though a fi nding of extraordinary circumstances does not waive the AOM
requirement, it does allow a plaintiff to refile an action. See id; Ferreira v. Rancocas Orthopedic
Assoc. , 178 N.J. 144, 15 1 (2003). T he extraordinary circumstances analysis is a fact-specific,
case-by-case analysis, and is intended to "temper the draconi an results of an inflexible
application of the statute." Ferreira, 178 N.J. at 15 1; see also Tischler v. Walls, 177 N.J. 243,
246 (2003). The Supreme Co urt of New Jersey has explained that while the "core purpose" of
the statute is to mini mize the number of meritless lawsuits, the "purpose [is] not to create a
minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious
claims." Paragon Contractors, Inc. v. Peachtree Condominium Ass 'n., 202 N.J. 415 , 421-22
(2010). Nevertheless, New Jersey courts considering the issue of extraordinary circumstances
agree that " [c]arelessness, lack of circumspection, or lack of diligence on the part of counsel are
not extraordinary circum stances which will excuse missing a filing deadline." See, e.g. , Burns v.
Belafsky, 326 N J.Super. 462, 469-70 (App. Div. 1999) (internal quotation marks and citation
omitted); Medina v. Pitta, 442 N.J.Super. 1, 21 (App. Div. 20 15); see also Paragon Contractors,
202 N.J. at 422-23.
A finding of extraordinary circumstances is fact-specific, and designed to allow plaintiffs
to bring meritorious claims in "good faith." See Paragon Contractors, 202 N.J . at 421-22. In
this case, I agree with Judge Maru1 that the p laintiff should be allowed to refile her action if she
can comply with the AOM Statute. Of co urse, as the defendant points out, even if the plaintiff
were to obtain an AOM, she will have to establish either that her claim has been filed within the
statute of limitations period, or that extraordinary circumstances warrant an equitable tolling of
The plaintiff also objects to the R&R, arguing that requiring an AOM violates her
constitutional rights to due process and equal protection, because it "deprives [her] access to the
courts." (ECF No. 32 at 1.) I find that the plaintiffs objection is without sufficient legal merit
or particularity. See, e.g., Balthazar v. Atlantic City Medical Center, 358 NJ.Super. 13, 19, n.6
(App. Div. 2003) (finding the plaintiffs constitutionali ty argument did not have "suffici ent
merit" to warrant substantive discussion); Ferreira, 178 N.J. at n. 1. (the statute's
constitutionality has not been questioned in "more than half-dozen cases" before New Jersey' s
Supreme Court); Petrovic v. Commissioner o,/Social Security, No. 15-cv-2 194-KMK-PED, 2016
WL 6082038, at *1 (S.D.N.Y. Oct. 14, 2016)(finding no clearerror where pro se plaintiffs
objections to an R&R - even broadly construed - were conclusory and vague, and therefore not
entitled to de nova review). In any event, because I adopt the R&R dismissing the plaintiffs
claim without prejudice, the plaintiffs assertion - that she is deprived of access to the court-is
Accordingly, I adopt the R&R in its entirety and dismiss the plaintiffs complaint
s/Ann M. Donnelly
United States District Judge
Dated: Brooklyn, New York
September 26, 2017
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