United States District Court, District of New Jersey
July 16, 2003
DAISY LOVE, PLAINTIFF,
RANCOCAS HOSPITAL, STEVEN OXLER, M.D., SUNSET ROAD MEDICAL ASSOC., P.A., JOSEPH B. LEVIN, D.O., GARY D. GREENBERG, P.A.-C., JOHN DOE, MARY DOE, ABC PARTNERSHIPS, AND XYZ CORPORATIONS, DEFENDANTS.
The opinion of the court was delivered by: Joseph E. Irenas, District Judge
Several days before the statute of limitations expired, Plaintiff, Daisy Love, amended her claim of medical malpractice to include the physician, Andrew J. Blank, M.D., whom she mistakenly believed treated her just days before she suffered a debilitating stroke. By the time the mistake was discovered and Plaintiff amended her complaint to include the proper defendant, Joseph B. Levin, M.D., the statute of limitations had passed by more than four months. On that basis, Dr. Levin has now moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff, however, contends that her claims against Levin are safeguarded under the "relation-back" doctrine.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, based upon complete diversity of citizenship between the parties and the requisite amount in controversy. Oral arguments on this matter were held on July 14, 2003. For the reasons that follow, this Court shall grant Dr. Levin's motion for summary judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual background of this case is somewhat obscured by several tragic circumstances. First, Plaintiff's counsel, Stuart Agins, Esq., who had handled this case from its inception, passed away on July 1, 2003. As a result, Mr. Agins' partner, Richard S. Seidel, Esq., has had to step in without Mr. Agin's intimate knowledge of the details of the case. Second, Plaintiff's debilitating condition has left her in a state where, according to Mr. Seidel, she has been and still is unable to communicate the circumstances under which her claims arose. The factual record, therefore, has been built from the recollection of Plaintiff's family members.
After experiencing a fainting spell on March 9, 2000, Plaintiff went to see her family practitioner, Andrew J. Blank, M.D. at Sunset Road Medical Associates, P.A. Because Dr. Blank was unavailable at the time, Plaintiff was instead seen by Joseph B. Levin, M.D. and Gary D. Greenberg, P.A.-C. Plaintiff was diagnosed with high blood pressure and sent home.
On March 10, 2000, Plaintiff called an ambulance after she experienced episodes of syncope and falling. Plaintiff was taken to Defendant Rancocas Hospital's Emergency Department and was seen by Defendant Steven Oxler, M.D. Plaintiff was once again diagnosed with high blood pressure and discharged from the hospital.
On March 12, 2000, Plaintiff again was taken to the Rancocas Hospital Emergency Department after experiencing similar symptoms, as well as experiencing weakness on her right side, slurred speech, and "facial drop." After hospital staff determined that she had suffered a stroke, she was admitted as an inpatient until March 16, 2000. On March 16, 2000, she was transferred to Our Lady Lourdes for rehabilitation.
Plaintiff alleges that as a result of the stoke and its symptoms, she has had to undergo extensive rehabilitation therapy. Moreover, she asserts that she is permanently disabled throughout the right side of her body and has difficulty with speech.
On November 28, 2001, Plaintiff brought this medical malpractice action against Defendants, Rancocas Hospital and Steven Oxler, M.D., as well as several fictitious defendants, John Doe, Mary Doe, ABC Partnerships, and XYZ Corporations, who Plaintiff described as "employees, servants, and agents" of Rancocas Hospital. Thereafter, on March 7, 2002, Plaintiff amended the complaint naming as additional parties Sunset Road Medical Association, P.A., Andrew J. Blank, M.D., and Gary D. Greenberg, P.A.-C. Plaintiff's counsel, Mr. Agins, filed the claims against Dr. Blank because Plaintiff's family mistakenly believed that Plaintiff had seen Dr. Blank, her regular physician. Once Plaintiff's counsel discovered the mistake, on July 16, 2002, Plaintiff filed a second amended complaint in which she added as a defendant Dr. Levin, and she dismissed as a defendant Dr. Blank.*fn1
Dr. Levin has now moved for summary judgment pursuant to Fed.R.Civ.P. 56, contending that because he was not named as a defendant until nearly eight months after Plaintiff filed her original complaint and approximately four months after the two- year statute of limitations expired under N.J.S.A. 2A:14-2, he is entitled to judgment as a matter of law.
II. LEGAL STANDARD GOVERNING SUMMARY JUDGMENT
A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Abramsom v. William Paterson Coll. of N.J., 260 F.3d 265, 276 (3d Cir. 2001). In deciding whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See, e.g., Abramsom, 260 F.3d at 276 (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000)).
A movant must be awarded summary judgment on all properly supported issues identified in its motion, except those for which the non-moving party has provided admissible evidence or affidavits to show that a question of material fact remains. See, e.g., Gleason v. Norwest Mortgage, Inc., 242 F.3d 130, 138 (3d Cir. 2001) (citing Becton Dickinson & Co. v. Wolckenhauer, 215 F.3d 340, 343 (3d Cir. 2000)). To defeat summary judgment, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). See also Anderson, 477 U.S. at 247-48 ("By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion . . .; the requirement is that there be no genuine issue of material fact.").
The non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). See also Lujan v. Nat'l. Wildlife Fed., 497 U.S. 871, 888 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint . . . with conclusory allegations of an affidavit."). If the non-moving party has the burden of proof at trial, summary judgment will be granted if "the nonmovant fails to make a showing sufficient to establish the existence of an element essential to [its] case." Nebraska, 507 U.S. at 590 (citing Celotex, 477 U.S. at 322). See also Omnipoint Communications Enters., L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed.R.Civ.P. 56(e); see Anchorage Assocs., 922 F.2d at 175.
In his motion for summary judgment, Dr. Levin contends that he was not named as a party until Plaintiff filed a second amended complaint on July 16, 2002, over four months after the expiration of the two-year statute of limitations governing medical malpractice actions. See N.J.S.A. 2A:14-2. Plaintiff, on the other hand, contends that her claims are safeguarded under the "relation-back" doctrine. More specifically, Plaintiff maintains that because she mistakenly filed an amended complaint against the wrong physician, Dr. Blank instead of Dr. Levin, before the expiration of the statute of limitations expired, she is entitled to protection under the "relation-back" provision set forth in Rule 4:9-3 of the New Jersey Rules Governing Civil Practice. Additionally, Plaintiff claims that because she included fictitious party designations in her second amended complaint, she can avail herself of the "discovery rule" set forth under Rule 4:26-4 of the New Jersey Rules Governing Civil Practice.
The circumstances suggest the former, however, that Plaintiff merely made a mistake in filing an amended complaint against the wrong party. It does not appear, for reasons that follow, that Plaintiff's counsel, Mr. Agins, intended to subsume Dr. Levin within the fictitious party designations. Accordingly, the Court shall first determine whether Plaintiff can avail herself of the "relation-back" doctrine under Rule 4:9-3.
A. "Relation-Back" Doctrine
The "relation-back" doctrine was enacted to "ameliorate the harsh result of strict application of statutes of limitations by `preventing part[ies] against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense.'" Yanez v. Columbia Coastal Transport, Inc., 68 F. Supp.2d 489, 492 (D.N.J. 1999) (Debevoise, J.) (quoting Colbert v. City of Phila., 931 F. Supp. 389 (E.D. Pa. 1996)). Rule 4:9-3, modeled after Fed.R.Civ.P. 15, provides in pertinent part: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading . . . ." R. 4:9-3. In addition, "[a]n amendment changing the party against whom a claim is asserted relates back" to the date of the original complaint, provided the party to be added to the pleading "(1) has received such notice of the . . . action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against [it]." Id.
The New Jersey Supreme Court has observed that:
[The relation back rule] should be liberally
construed. Its thrust is directed not toward technical
pleading niceties, but rather to the underlying
conduct, transaction or occurrence giving rise to some
right of action or defense. When a period of
limitation has expired, it is only a distinctly new or
different claim or defense that is barred. Where the
amendment constitutes the same matter more fully or
differently laid, or the gist of the action or the
basic subject of the controversy remains the same, it
should be readily allowed and the doctrine of relation
Harr v. Allstate Ins. Co., 54 N.J. 287
, 299, 255 A.2d 208
(1969). A plaintiff, however, who has mistakenly identified a defendant must also show that the new defendant had notice of the action prior to the running of the statute of limitations, and knew or should have known that, but for the plaintiff's mistake, the action would have been brought against him or her. R. 4:9-3; Otchy v. City of Elizabeth Board of Education, 325 N.J. Super. 98
, 105, 737 A.2d 1151
, 1155 (App.Div. 1999).
The facts in this case are substantially analogous to those presented to the Appellate Division of the Superior Court of New Jersey in Otchy v. City of Elizabeth Board of Education, supra. In Otchy, the plaintiff, after slipping and falling on a sidewalk adjacent to a high school, mistakenly brought a personal injury suit against the City of Elizabeth, New Jersey, instead of the real party in interest, the Elizabeth Board of Education. Upon recognizing her error, plaintiff filed an amended complaint to include the Elizabeth Board of Education after the passing of the statute of limitations. Plaintiff argued that the Board of Education had constructive notice of the institution of the action against the City of Elizabeth because of the "financial and political interdependence of the two entities." Id. at 107, 737 A.2d 1151.
The court, however, rejected this argument. Rather, it held that the City and the Board of Education were "two distinct legal entities." Id. at 109, 737 A.2d 1151. And because the plaintiff had not only failed to establish proof of notice to the Board of Education, but also "failed to demonstrate a sufficient identity of interest in [the] litigation between the two entities to infer knowledge of the action by the Board [of Education], . . . [a] lack of prejudice cannot be assumed." Id. at 107-09, 737 A.2d 1151. See also Slater v. Skyhawk Transp., Inc., 187 F.R.D. 185 (D.N.J. 1999) (Orlofsky, J.) (holding that a party who simply failed to include a party in his complaint could not avail himself of the "relation-back" doctrine when the defendant did not receive actual or constructive notice of the claim before the expiration of the statute of limitations).
Likewise, in this case, Plaintiff argues that because Dr. Levin was an employee of Sunset Road Medical Associates, P.A., he knew or should have known of the Plaintiff's claims brought against Sunset Road, Dr. Blank, and Gary Greenberg, P.A.-C, on March 7, 2002. The summary judgment record indicates, however, Dr. Levin left the employ of Sunset Road long before that date, even as early as November 27, 2001, the date Plaintiff filed the original complaint against Rancocas Hospital and Steven Oxler, M.D. See Levin Cert. ¶ 2. Accordingly, he maintains that he did not receive notice of the lawsuit before July 16, 2002, the date that Plaintiff filed a second amended complaint adding him as a defendant. Id.
The Court agrees with Dr. Levin that he did not know, nor should he have known, that, but for Plaintiff's mistake, the action would have been brought against him. Plaintiff, therefore, cannot avail herself of the "relation-back" rule. This decision turns on the fact that Plaintiff filed an amended complaint against Sunset Road, Dr. Blank, and Greenberg just days before the expiration of the two-year statute of limitations. Had Plaintiff amended the complaint to add these Defendants months before the statute of limitations ran, the Court's conclusion may be different. It is possible and indeed probable that, given a reasonable amount of time, Sunset Road would have discovered that Dr. Levin and not Dr. Blank was Plaintiff's treating physician and notified Dr. Levin that he may be the subject of a lawsuit. However, because Defendants did not have a reasonable amount of time to discover Plaintiff's mistake before the limitation period ran, the Court cannot assume that Dr. Levin did have or should have had the opportunity to learn of the case.*fn2
Plaintiff also claims that because she used fictitious party designations in her amended complaint, and that those fictitious party designations include Dr. Levin when the amended complaint is read as a whole, her claims against Dr. Levin are protected under New Jersey's "discovery rule."
B. The "Discovery Rule"
First, the Court doubts the applicability of Rule 4:26-4 of the New Jersey Rules Governing Civil Practice, referred to as the "discovery rule," to the issue at bar. As the Court noted during oral arguments, it appears that Plaintiff's counsel, Mr. Agins, intended to include only employees of Rancocas Hospital within the fictitious party designations because it was reasonable to expect that when Plaintiff sought treatment at Rancocas Hospital's Emergency Room, she was seen by numerous, unidentified health care professionals. On the other hand, it appears that Mr. Agins did not intend to subsume Dr. Levin within the fictitious party designations because he reasonably assumed that when Plaintiff sought treatment at Sunset Road, she was seen by her regular physician, Dr. Blank. Nevertheless, the Court will consider Plaintiff's argument that the "discovery rule" safeguards her claims against Dr. Levin.
Rule 4:26-4 provides, in relevant part: "In any action, irrespective of the amount in controversy . . . if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification." The discovery rule allows the plaintiff to amend his complaint after the limitations period has run, even if the defendant did not have notice of the action within the statutory time limit. See Viviano v. CBS, Inc., 101 N.J. 538, 548, 503 A.2d 296 (1986).
The New Jersey Supreme Court has "construed Rule 4:26-4 to permit a plaintiff who institutes a timely action against a fictitious defendant to amend the complaint after the expiration of the statute of limitations to identify the true defendant." Mancuso v. Neckles ex rel. Neckles, 163 N.J. 26, 35 n. 1, 747 A.2d 255, 261 n. 1 (2000). In so construing the rule, the court recognized that "an amended complaint identifying the defendant by its true name relates back to the time of filing of the original complaint, thereby permitting the plaintiff to maintain an action that, but for the fictitious-party practice, would be time-barred." Id.; see also Johnston v. Muhlenberg Regional Med. Ctr., 326 N.J. Super. 203, 206, 740 A.2d 1122, 1124 (App.Div. 1999) ("The Rule applies to assure survival of meritorious causes of action when the party knows or has reason to know her injury has been negligently inflicted but cannot at the time of the injury and within a reasonable time ascertain the wrongdoer."); Gallagher v. Burdette-Tomlin Med. Hosp., 318 N.J. Super. 485, 491, 723 A.2d 1256 (App.Div. 1999).
In this case, there are two salient issues that the Court must resolve in order to determine whether the requirements of discovery rule have been satisfied. First, the Court must resolve whether Plaintiff provided an appropriate description sufficient for identification of Dr. Levin in either the original complaint or the first amended complaint (which was filed on March 7, 2002 before the statute of limitations expired). If this can be answered in the affirmative, the Court must determine whether Plaintiff exercised due diligence in identifying the true defendant.
When naming a fictitious defendant, a plaintiff must provide "an appropriate description sufficient for identification" as the discovery rule directs. Otherwise, the principle that a complaint must generally state the facts showing that the pleader is entitled to relief would be frustrated. See R.4:5-2; Rutkowski v. Liberty Mut. Ins. Co., 209 N.J. Super. 140, 147, 506 A.2d 1302 (App.Div. 1986).
[A] general description of the fictitious defendant .
. . would emasculate even [New Jersey's] liberal
pleading rules. See R. 4:5-2. A plaintiff could file a
complaint on the last day before the statute of
limitations would run alleging merely that he was
injured in a particular situation and that "John
Doe(s) were negligent and responsible for plaintiff's
loss." He later could amend to include both the
defendants' names and the bases of responsibility.
Rutkowski, 209 N.J. Super. at 147, 506 A.2d 1302
(holding that plaintiff's description of "John Doe" defendants as being "the designers of, manufacturer of, seller of, distributor of, repairer of, modifier and/or renovator of, or . . . otherwise responsible for" plaintiff's injuries did not include the workers' compensation insurers of plaintiff's employer).*fn3
In her original complaint, Plaintiff specifically described fictitiously named defendants as "employees, servants, and agents" of Rancocas Hospital. Pl.'s Compl. ¶ 10 (filed Nov. 27, 2001). Moreover, although she included Sunset Road, Andrew Blank, D.O. and Gary Greenberg, P.A.-C as defendants in the first amended complaint, she still described "John Does" as "employees, servants, and agents" of Rancocas Hospital, and not of Sunset Road Medical Associates, P.A. Pl.'s Amended Compl. ¶¶ 13, 16 (filed Mar. 7, 2002). Here, Plaintiff did not provide a broad description of fictitious defendants, but rather a specific one which did not include Levin. Indeed, in Lawrence v. Bauer Publishing & Printing, Ltd., 78 N.J. 371, 396 A.2d 569 (1979), the New Jersey Supreme Court held that plaintiffs could not amend their complaint to include a party after the statute of limitations had expired when that party was not subsumed within the fictitious party designation. See also Viviano, 101 N.J. at 555, 503 A.2d 296.
Accordingly, because Plaintiff has not provided an "appropriate description sufficient for identification" of Levin, she cannot now avail herself of the discovery rule. Because her claims against Dr. Levin are therefore barred under N.J.S.A. 2A:14-2, the Court shall grant Dr. Levin's motion for summary judgment pursuant to Fed.R.Civ.P. 56. The Court expresses no opinion as to the merits of Plaintiff's claims against the remaining defendants.
For the reasons set forth above, the Court shall grant the motion of the Defendant, Joseph Levin, M.D., for summary judgment pursuant to Fed.R.Civ.P. 56. The Court shall enter the appropriate form of Order.
This matter having come before the Court on the Motion of Defendant, Joseph B. Levin, M.D., for Summary Judgment, pursuant to Fed.R.Civ.P. 56, Richard S. Seidel, Esq., AGINS, HAAZ & SEIDEL, LLP, appearing on behalf of Plaintiff, Daisy Love, Jennifer L. Parsons, Esq., STAHL & DELAURENTIS, P.C., appearing on behalf of Defendant, Rancocas Hospital, Jay J. Blumberg, Esq., BLUMBERG & LINDNER, LLC, appearing on behalf of Defendant, Steven Oxler, M.D., Timothy P. O'Brien, Esq., Frank Calo, III, Esq., PARKER, MCCAY & CRISCUOLO, appearing on behalf of Defendants, Sunset Road Medical Associates, P.A. and Joseph B. Levin, M.D., and Benjamin H. Haftel, Esq., LAW OFFICE OF FRANCIS E. SCHASCHTELE, appearing on behalf of Defendant, Gary D. Greenberg, P.A.-C; and,
The Court having considered the submissions of the parties;
For the reasons set forth in the Opinion filed concurrently with this Order;
IT IS, on this 16th day of July, 2003, hereby ORDERED that the Motion of Defendant, Joseph B. Levin, M.D., for Summary Judgment is GRANTED.