Opinion
CIVIL NO. 98-CV-2648 (JBS).
September 13, 1999
Jacob Sless, Esq., Abramson Deneberg, P.C., Cherry Hill, N.J., Attorney for Plaintiff.
Stephen D. Holtzman, Esq., Lally, Holtzman, Gilligan, Duffin Quasti, P.C., Linwood, New Jersey, Attorney for Defendant Correctional Medical Services, Inc.
O P I N I O N
Presently before the court is the motion of defendant Correctional Medical Services ("CMS") for dismissal of plaintiff Dana Andrews' allegations of negligence and medical malpractice for Andrews' failure to comply with New Jersey's Affidavit of Merit Statute, N.J.S.A. § 2A:53A-27 ("Affidavit of Merit Statute" or "Statute"). For reasons stated herein, the court will grant CMS's motion to dismiss with prejudice plaintiff's claims of negligence and medical malpractice as against CMS and its employees.
I. BACKGROUND
The facts relevant to deciding this motion, taken in a light most favorable to plaintiff as the non-movant, are as follows.
The Court acknowledges that both CMS and the Camden County defendants have filed motions for summary judgment on all aspects of plaintiff's claims in this matter. This Opinion and Order makes no ruling with respect to those motions. The relevant facts as listed here do not constitute findings of fact binding on the remainder of this case, nor do they establish the totality of the facts in this case.
In the underlying suit, Andrews has sued CMS and numerous other defendants under 42 U.S.C. § 1983 and various state law claims, alleging that he was seriously injured by defendants' deliberate indifference to his medical needs while he was incarcerated at the Camden County Corrections Facility ("CCCF"). On June 6, 1996, Andrews was taken into custody by Winslow Township Police Officers for driving while intoxicated and related offenses. (Compl. at 7.) Andrews was held at CCCF pending trial, and on or about June 14, 1996, developed a severe, infected toothache. (Id.) Andrews requested medical attention, but his repeated demands were ignored. (Id.) Camden County released Andrews from its custody on June 21, 1996. Within two hours Andrews was admitted to the intensive care unit of the West Berlin Hospital, where he was diagnosed with sepsis and kidney failure related to the infection. (Id.) Andrews remained hospitalized over six weeks. (Id.)
This court has jurisdiction over questions of federal law pursuant to 28 U.S.C. § 1331, and will exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). Venue is proper under 28 U.S.C. § 1391(b) .
After his release from the hospital, Andrews consulted counsel, and filed a complaint with this court on June 5, 1998 alleging, inter alia, negligence against all defendants in Count IV, and medical malpractice against defendants CMS and the unnamed CCCF Medical Director in Count VII. (Id. at 22, 26.) CMS filed an answer to Andrews' complaint on July 20, 1998, denying all material allegations.
The case was initially assigned to the Honorable Robert B. Kugler, U.S.M.J. Judge Kugler, mindful of the need for expert testimony on the issues of medical negligence and malpractice, issued a September 29, 1998 scheduling order providing that all plaintiff's expert reports be served on counsel no later than March 1, 1999, pursuant to Fed.R.Civ.P. 26(a)(2)(B).
After initial delays, CMS made its initial disclosure to Andrews pursuant to Fed.R.Civ.P. 26(a) on November 20, 1998. Acting on this initial disclosure, Andrews has moved the court for leave to file an amended complaint naming Dr. Ronald Rahman, M.D. as CCCF Medical Director. This opinion and order makes no ruling with respect to that motion.
Currently before the court is CMS's motion to dismiss on the basis of Andrews' failure to file an affidavit of merit in support of his negligence and malpractice claims against CMS and its employees. Andrews responds that New Jersey's affidavit of merit requirement is not applicable to the negligence and malpractice claims in this case. Alternatively, Andrews argues that even if an affidavit of merit is required, CMS's conduct excuses Andrews from compliance with the Statute. Finally, Andrews asserts that Judge Kugler's scheduling order supplants the sixty-day time frame of N.J.S.A. § 2A:53A-27 and allows until March 1, 1999 to provide the required affidavit of merit.
II. DISCUSSION
In its motion to dismiss, CMS argues that because Andrews failed to file an affidavit of merit within sixty days of CMS's answer as required by N.J.S.A. § 2A:53A-27, all claims of negligence and medical malpractice against defendant CMS must now be dismissed with prejudice. (Def's Br. in Supp. of Mot. to Dismiss at 6-7.)
CMS's motion to dismiss counts IV and VII of Andrews' complaint is based on the Affidavit of Merit Statute, N.J.S.A. § 2A:53A-26 et seq. The heart of the statute is N.J.S.A. § 2A:53A-27, which provides:
In any action for damages for personal injuries, wrongful death or property damages 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. The person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.
If plaintiff is unable to provide an affidavit of merit, he may instead provide a sworn statement:
setting forth that: the defendant has failed to provide plaintiff with medical records or information having a substantial bearing on preparation of the affidavit; a written request therefor along with, if necessary, a signed authorization by the plaintiff for release of the medical records or other records or information requested, has been made by certified mail or personal service; and at least 45 days have elapsed since the defendant received the request.
N.J.S.A. § 2A:53A-28. The statute defines "licensed person" to mean any person who is "licensed as," among other things, "a physician in the practice of medicine or surgery," "a registered nurse," an "a health care facility." N.J.S.A. § 2A:53A:26(f); 26(i); 26(j). The statute provides that "failure to provide an affidavit of merit or statement in lieu thereof . . . shall be deemed a failure to state a cause of action." N.J.S.A. § 2A:53A-29.
CMS accurately points out that no affidavit of merit was timely filed with respect to the claims of negligence and malpractice filed against CMS and CCCF's Medical Director. As CMS answered Andrews' complaint on July 20, 1998, the initial sixty-day period would have expired on September 21, 1998. Andrews did not request the sixty-day extension allowable under the statute, nor did CMS file an affidavit within the extension period, which would have ended on or around November 23, 1998.
Andrews admits that he did not timely file an affidavit of merit as required by the statute. He maintains, however, that for various reasons the statute should not be applied to the common law claims in this case. The main thrust of Andrews' argument is that the Affidavit of Merit Statute is simply a procedural device imposing heightened pleading standards. Because the statute is procedural, Andrews argues, the affidavit requirement conflicts with Fed.R.Civ.P. 8 and 11, which control federal pleading standards. Andrews therefore asks the court to disregard the requirements of the Affidavit of Merit Statute and instead find that the plaintiff's complaint has satisfied the "short and plain statement" requirement of Fed.R.Civ.P 8(a)(e), and Fed.R.Civ.P. 11(a), which permits the filing of a complaint without consultation with an expert.
The court must therefore decide whether the requirements of the Affidavit of Merit Statute should be applied to the negligence and malpractice claims in this case. At the outset, the court notes that recently another Judge of this District found the Affidavit of Merit Statute applicable to common law claims in federal court. In RTC Mortgage Trust v. Fidelity National Title Insurance Co., 981 F. Supp. 334 (D.N.J. 1997), the Honorable Stephen Orlofsky explained that an affidavit of merit is not a pleading and therefore the Affidavit of Merit Statute does not conflict with Rule 8. Id. at 344. Judge Orlofsky further explained that Rule 11 allows room for the operation of statutes requiring an affidavit, and thus the Statute does not conflict with Rule 11. Id. at 345. There being no conflict between N.J.S.A. § 2A:53A-27 and any of the Federal Rules of Civil Procedure, the court held, the New Jersey statute is an outcome determinative, substantive rule that must be applied by federal courts considering relevant state law claims. Id. at 347. (citing Hanna v. Plumer, 380 U.S. 460 (1965)).
This court adopts the rationale of the court in RTC and holds that the Affidavit of Merit Statute is a substantive rule of law that does not conflict with the Federal Rules of Civil Procedure and must be applied to relevant state law claims in this case. As Andrews has admittedly failed to file an affidavit of merit as required by the statute, the statute requires that his claims based on professional malpractice and negligence must be dismissed with prejudice. N.J.S.A. § 2A:53A-27. In anticipation of such a finding by the court, Andrews presents two alternative arguments against application of the statute.
Andrews' second argument against dismissal is that, even assuming that the Affidavit of Merit Statute applies, CMS's conduct made it impossible for plaintiff to timely produce the required affidavit of merit. In his November 11, 1998 response to the present motion to dismiss, Andrews asserts that he had not yet received CMS's initial disclosures pursuant to Fed.R.Civ.P. 26(a). (Pl's Ltr. Resp. Br. at 3.) He maintains that CMS's tardy disclosures made it impossible to determine within the appropriate amount of time whether CMS had any "employees, agents, servants, and/or independent contractors" who are "licensed persons" protected by the Affidavit of Merit Statute. Andrews contends that awareness of employees protected by the Statute could not be imputed to plaintiff until November 20, 1998, the date on which CMS made its initial disclosures pursuant to Fed.R.Civ.P. 26(a). Thus, Andrews argues, only after CMS has provided the identities of its licensed "employees, agents, servants, and/or independent contractors" should the statute's sixty-day period have begun to run.
It appears that in limited circumstances the court does have the power to toll the Statute. Although the language of the statute is absolute and allows for no exceptions to the sixty-day requirement, the Supreme Court of New Jersey has held that the presence of "extraordinary circumstances" may relax the timing requirements of a rule or statute. Hartsfield v. Fantini, 149 N.J. 611, 618-19 (1997). However, carelessness, lack of circumspection, or lack of diligence on the part of counsel are not extraordinary circumstances which will excuse missing a filing deadline.Id. Thus, the court may relax the sixty-day requirement of the statute if it finds that CMS's failure to make prompt initial disclosures to Andrews constitutes an "extraordinary circumstance" that should compel the court to disregard the absolute language of the statute and toll the sixty-day limitation.
In this case, Andrews' own pleadings defeat his argument that he had no timely notice of the Statute's applicability. Andrews asserts that, because he knew of no "licensed persons" on CMS's staff, CMS's disclosure delays made it impossible to determine whether an affidavit was required. In his complaint, however, Andrews names as a defendant "Dr. John Doe, Medical Director." Thus, Andrews' complaint alleges negligence and malpractice by the Medical Doctor supervising health care at CCCF. (Complaint at 1, 22, 26.) Medical Doctors clearly are licensed persons protected by the statute's affidavit of merit requirement. N.J.S.A. § 2A:53A-26(f).
In contrast to Andrews' professed lack of notice, his complaint itself states negligence and malpractice claims falling within the ambit of the Affidavit of Merit Statute. As Andrews was aware from the outset of the case that his complaint involved negligence claims against a licensed person, it is unnecessary to decide whether CMS's initial disclosure delays somehow constitute an "extraordinary circumstance" excusing Andrews's noncompliance with the Statute. Instead, the court finds that Andrews' own pleadings triggered application of the statute, and the sixty days began to run as soon as CMS filed its answer on July 20, 1998.
Finally, the court finds that Judge Kugler's scheduling order giving parties a final deadline for expert witness reports in no way shelters Andrews from the demands of the Statute. As provided in the Statute itself, the affidavit of merit is separate and distinct from later expert testimony. See N.J.S.A. § 2A:53A-27 (providing affiant should have no financial stake in case, but "this prohibition shall not exclude the person from being an expert witness in the case")
The terms of Andrews's own complaint obliged him to submit an affidavit of merit within the sixty-day period, or request an extension as authorized by the statute. As he did neither, and has not demonstrated the presence of an "extraordinary circumstance" by means of which the court should disregard the statutory time frame, his complaint must be dismissed with prejudice.
III. CONCLUSION
For the foregoing reasons, defendant CMS's motion for partial dismissal with prejudice of Counts IV and VII as to CMS will be granted. The accompanying order is entered.
O R D E R
This matter having come before the Court upon the motion of defendant, Correctional Medical Services, for dismissal pursuant to the New Jersey Affidavit of Merit Statute, N.J.S.A. § 2A:53A-26 et seq.; and the Court having considered the submissions of the parties; and for the reasons expressed in the Opinion of today's date;
IT IS this ___ day of September, 1999, hereby
ORDERED that defendant CMS's motion for dismissal of Counts IV and VII as to CMS and Dr. John Doe, CCCF Medical Director is GRANTED and Counts IV and VII as to those defendants are hereby DISMISSED WITH PREJUDICE.