United States District Court, D. New Jersey
June 8, 2004.
MEDICAL SOCIETY OF NEW JERSEY, Plaintiff,
MARY LOU MOTTOLA, Executive Director of the Medical Practitioner Review Panel, and RENI ERDOS, Director of the Division of Consumer Affairs, Defendant(s), and NORTH JERSEY MEDIA GROUP, INC. d/b/a THE RECORD, Intervener-Defendant
The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
This matter comes before the Court on the motion of plaintiff
Medical Society of New Jersey ("MSNJ" or "Plaintiff") for an
order enjoining Mary Lou Mottola, Executive Director of the
Medical Practitioner Review Panel, and Reni Erdos, Director of
the Division of Consumer Affairs, both sued in their official
capacities (collectively "Defendants"), from publishing
information regarding settlement agreements of malpractice claims
entered into by New Jersey doctors. Specifically, Plaintiff's
motion seeks two forms of relief from this Court. First,
Plaintiff seeks to enjoin Defendants from enforcing the New
Jersey Health Care Consumer Information Act, N.J.S.A. §
45:9-22.21, et seq. ("NJHCCIA"), which was enacted by the New
Jersey Legislature on June 23, 2003 and is scheduled to become
effective June 23, 2004. Second, Plaintiff seeks to enjoin
Defendants from disclosing to North Jersey Media Group, Inc.,
d/b/a The Record ("The Record") certain information contained
on medical malpractice payment notices submitted to the State of
New Jersey ("the State" or "New Jersey") pursuant to N.J.S.A. §
Defendants oppose the motion for preliminary injunction and
cross-move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) & (6).
The Record, a daily newspaper with circulation in northern
New Jersey, moved to intervene in this action and filed
opposition to Plaintiff's request for injunctive relief.
This Court properly exercises jurisdiction over Plaintiff's
federal claims pursuant to 28 U.S.C. § 1331. Venue is proper
pursuant to 28 U.S.C. § 1391(b).
This Court held oral argument on June 7, 2004 and issued an
oral Opinion from the bench as well as a written Order. This
Opinion supercedes the Court's oral Opinion on June 7th.
For the reasons stated below, Plaintiff's motion for
preliminary injunctive relief is denied. Defendants' motion to
dismiss pursuant to Rule 12(b)(1) is denied, and the motion
pursuant to Rule 12(b)(6) is granted.
MSNJ was founded in 1766 and is the nation's oldest state
society of physicians. Approximately 8,000 physicians hold
individual memberships in MSNJ, and MSNJ is one of New Jersey's
leading voices representing doctors in the health care field.
MSNJ moves for a preliminary injunction on two distinct
grounds. First, MSNJ seeks to enjoin Defendants from enforcing
the NJHCCIA, in particular the section mandating that medical
malpractice data be made available to the public through the
Internet and a toll-free consumer phone line. Second, MSNJ seeks to enjoin Defendants from complying with a March 9, 2004 Order of
the Honorable Sybil R. Moses, Assignment Judge, Superior Court of
New Jersey, Bergen County, which ordered Defendants to disclose
to The Record certain information contained on medical
malpractice payment notices submitted to the State Board of
Medical Examiners pursuant to New Jersey law.
I. STATUTORY FRAMEWORK
A. Federal Law
In 1986, Congress passed the Health Care Quality Improvement
Act of 1986 ("HCQIA"), 42 U.S.C. § 11101, et seq. The HCQIA
requires that certain information regarding malpractice payments,
sanctions, and professional review actions taken with respect to
medical professionals be reported to the federal government.
42 U.S.C. § 11131-7 (Subchapter II). Specifically, the HCQIA
requires that "[e]ach entity (including an insurance company)
which makes payment under a policy of insurance, self-insurance,
or otherwise in settlement (or partial settlement) of, or in
satisfaction of a judgment in, a medical malpractice action or
claim shall report . . . information respecting the payment and
circumstances thereof." 42 U.S.C. § 11131(a). The information
reported pursuant to the HCQIA includes:
(1) the name of any physician or licensed health
care practitioner for whose benefit the payment is
(2) the amount of the payment,
(3) the name (if known) of any hospital with which
the physician or practitioner is affiliated or
(4) a description of the acts or omissions and
injuries or illnesses upon which the action or
claim was based, and
(5) such other information as the Secretary
determines is required for appropriate
interpretation of information reported under this
Id. § 11131(b).
The regulations promulgated pursuant to the HCQIA established
the National Practitioner Data Bank ("Data Bank") to collect and
organize the reported information as required by the HCQIA.
45 C.F.R. § 60.1. The Data Bank created a centralized clearinghouse
for state licensing boards, hospitals and other healthcare
entities to obtain relevant background information about
physicians. An insurer must, within 30 days of payment, directly
report to the Data Bank all medical malpractice payments,
including settlements and partial settlements, made with respect
to each insured physician. 45 C.F.R. § 60.7.
Hospitals are required to request information from the Data
Bank with respect to each physician or health care practitioner
who applies for staff membership or clinical privileges.
42 U.S.C. § 11135. Insurance carriers are required not only to make
reports to the Data Bank but also to the appropriate state
licensing board. 42 U.S.C. § 11134(c); 45 C.F.R. § 60.7.
Moreover, the Data Bank makes the information it collects
available "to State licensing boards, to hospitals, and to other health care entities (including health maintenance organizations)
that have entered (or may be entering) into an employment or
affiliation relationship with the physician or practitioner or to
which the physician or practitioner has applied for clinical
privileges or appointment to the medical staff."
42 U.S.C. § 11137(a).
Section 11137 outlines the confidentiality provisions
applicable to the information collected pursuant to the HCQIA.
Specifically, the HCQIA mandates:
Information reported under this subchapter is
considered confidential and shall not be disclosed
(other than to the physician or practitioner
involved) except with respect to professional review
activity . . . or in accordance with regulations of
the Secretary promulgated pursuant to subsection (a)
of this section. Nothing in this subsection shall
prevent the disclosure of such information by a party
which is otherwise authorized, under applicable State
law, to make such disclosure. Information reported
under this subchapter that is in a form that does not
permit the identification of any particular health
care entity, physician, other health care
practitioner, or patient shall not be considered
42 U.S.C. § 11137(b)(1) (emphasis added). Accordingly, unless
otherwise provided by state law, all information collected by the
Data Bank and "reported under this subchapter" is presumed
confidential and is released only as specifically mandated by the
B. New Jersey Reporting Requirements and the Medical
Practitioner Review Panel
The Division of Consumer Affairs is a division of the Department of Law and Public Safety of the State of New Jersey.
The Medical Practitioner Review Panel ("the Panel") is a
component of the Division of Consumer Affairs.*fn1
In 1983, three years before Congress passed the HCQIA, the New
Jersey Legislature enacted N.J.S.A. § 17:30-D17, which created
reporting requirements similar to those in what would become the
HCQIA. The original version of N.J.S.A. § 17:30-D17 required
notice of malpractice settlements over $25,000 to be sent to the
State Board of Medical Examiners within seven (7) days of
settlement. N.J.S.A. § 17:30D-17 (Historical and statutory
In 1989, N.J.S.A. § 17:30D-17 was amended and other notable
changes were made to the statutory framework. First and foremost,
the Panel was created pursuant to N.J.S.A. § 45:9-19.8. The Panel
is authorized and required to receive notices from health care
facilities or health maintenance organizations detailing actions
those entities may take against practitioners, as well as notices
"from an insurer or insurance association or a practitioner, . . .
regarding a medical malpractice claim settlement, judgment or
arbitration award or a termination or denial of, or surcharge on,
the medical malpractice liability insurance coverage of a practitioner. . . ." N.J.S.A. §§
45:9-19.9(a)(1)-(2). The Panel is empowered to investigate all
notices and complaints received and to recommend appropriate
action to the State Board of Medical Examiners. Id. at
The 1989 amendments also changed the reporting requirements
outlined in N.J.S.A. § 17:30D-17, which requires insurance
companies and individual practitioners to report to the Panel any
malpractice claim settlement, judgment or award.
Any insurer or insurance association authorized to
issue medical malpractice liability insurance in the
State shall notify the Medical Practitioner Review
Panel established pursuant to section 8 of P.L. 1989,
c.300 (C.45:9-19.8) in writing of any medical
malpractice claim settlement, judgment or arbitration
award involving any practitioner licensed by the
State Board of Medical Examiners and insured by the
insurer or insurance association. Any practitioner
licensed by the board who is not covered by medical
malpractice liability insurance issued in this State,
who has coverage through a self-insured health care
facility or health maintenance organization, or has
medical malpractice liability insurance which has
been issued by an insurer or insurance association
from outside the State shall notify the review panel
in writing of any medical malpractice claim
settlement, judgment or arbitration award to which
the practitioner is a party.
N.J.S.A. § 17:30D-17.
In addition to these reporting requirements, New Jersey law
requires that the Panel maintain records of all such notices.
N.J.S.A. § 45:9-19.10(a) ("The review panel shall maintain
records of all notices and complaints it receives and all actions
taken with respect to the notices and complaints."). Currently,
these records are protected by certain privacy provisions, namely N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c).*fn2
A main point of disagreement between the parties in this action
is how the HCQIA interacts, if at all, with the State reporting
requirements. The parties agree that the information at issue,
namely data regarding malpractice claim settlements and the
amount of those settlements, is reported to the federal
government pursuant to the HCQIA and to the State pursuant to its
statutory framework. Therefore, the HCQIA requires insurers to
provide to the federal government the very same information that N.J.S.A. § 17:30D-17 requires that they submit to the State. In
practice, insurance companies routinely comply with their State
law reporting obligation by providing the Panel with a paper copy
of the report that the insurance carrier submits to the Data
Bank, pursuant to the HCQIA. (Mottola Cert. ¶ 4.)
Although the parties agree that the data collected by both the
HCQIA and N.J.S.A. § 17:30D-17, with regards to medical
malpractice information, is identical, the parties' respective
interpretations of the interplay between the two statutory
frameworks is significantly different. Plaintiff contends that
the HCQIA amounts to a federal protection of privacy that
supercedes rights afforded under the State statute, while
Defendants and The Record argue that the two statutes set forth
obligations that are separate and distinct.
C. New Jersey Health Care Consumer Information Act
In this action Plaintiff also challenges the constitutionality
of the NJHCCIA, N.J.S.A. § 45:9-22.21, et seq., which was
enacted into law on June 23, 2003, to be effective upon the
365th day following enactment.*fn3 The NJHCCIA requires
the Division of Consumer Affairs to create profiles for all licensed
physicians and podiatrists in New Jersey and to make these
profiles available to the public, both by electronic and other
means. Id. § 45:9-22.22(a). The profiles will include, inter
alia, the medical school education and post-graduate medical
training of each practitioner, the year of initial licensure in
New Jersey or elsewhere, the location of office practice sites,
and certain information concerning criminal convictions, board
disciplinary actions, and hospital privilege actions. Id. §
In addition, the NJHCCIA provides for the disclosure of medical
malpractice judgments and settlements as part of each
practitioner's profile. The NJHCCIA mandates the publication of:
All medical malpractice court judgments and all
medical malpractice arbitration awards reported to
the board, in which a payment has been awarded to the
complaining party during the most recent five years,
and all settlements of medical malpractice claims
reported to the board, in which a payment is made to
the complaining party within the most recent five
years. . . .
Id. § 45:9-22.23(a)(10).
The NJHCCIA provides that pending medical malpractice claims
shall not be included in the practitioner profiles, and
information about these pending claims will not be disclosed to
the public. Id. § 45:9-22.23(a)(10)(a). In addition, the
profiles will identify those judgments that are being appealed.
Id. § 45:9-22.23(a)(10)(b). Each profile shall place the number of judgments, arbitration
awards and settlements against each physician or podiatrist into
one of three graduated categories: average, above average and
below average number of judgements, settlements and awards. Id.
§ 45:9-22.23(a)(10)(c). "These groupings shall be arrived at by
comparing the number of an individual physician's or podiatrist's
medical malpractice judgments, arbitration awards and settlements
to the experience of other physicians or podiatrists within the
same speciality." Id.
Finally, the NJHCCIA provides that each profile shall include
the a statement instructing consumers not to make negative
inferences from the information published in the profile:
The following statement shall be included with the
information concerning medical malpractice judgments,
arbitration awards and settlements: "Settlement of a
claim and, in particular, the dollar amount of the
settlement may occur for a variety of reasons, which
do not necessarily reflect negatively on the
professional competence or conduct of the physician
(or podiatrist). A payment in settlement of a medical
malpractice action or claim should not be construed
as creating a presumption that medical malpractice
Id. § 45:9-22.23(a)(10)(d).
The very purpose behind the NJHCCIA is to make certain
information about physicians more accessible to members of the
public.*fn4 As a result, the privacy provisions outlined in N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c), which currently provide
limited confidentiality protection to information released to the
Panel pursuant to N.J.S.A. § 17:30D-17, are not applicable to the
information included in the practitioner profiles under the
NJHCCIA. Moreover, on the date the NJHCCIA becomes operative, the
following language will be added to N.J.S.A. §§ 45:9-19.3 &
45:9-19.10(c) to provide an exception for information included in
the profiles: "The provisions in this section shall not apply to
information that the division, or its designated agent, is
required to include in a physician's or podiatrist's profile
pursuant to P.L. 2003, c. 96."
The NJHCCIA provides that the Director of the Division of
Consumer Affairs, "in consultation with the State Board of
Medical Examiners, shall adopt regulations pursuant to the
`Administrative Procedure Act,' P.L. 1968, c. 410 (C.52:14B-1,
et seq.) necessary to effectuate the purposes of this act."
N.J.S.A. § 45:9-22.25. Practitioners were advised in writing of the manner in which information concerning malpractice histories
shall be set forth in the profiles. In a letter dated April 26,
2004 the Director of the Division of Consumer Affairs, defendant
Reni Erdos, advised licensed physicians and podiatrists in New
Jersey as to the impending effective date of the NJHCCIA.
(Kornett Decl., Ex. C.) The letter also included information
regarding the database of practitioner profiles that will be
available to consumers both over the Internet at
www.njdoctorlist.com or by writing or calling the Division of
Consumer Affairs' Profile Call Center.*fn5 (Id.) The April
26th letter encouraged practitioners to update their personal
and professional information in order to ensure the most accurate
II. PRIOR STATE COURT ACTION
The Record is a daily newspaper with circulation in northern
New Jersey, specifically the City of Hackensack as well as Bergen
and Passiac Counties. In March 2003, The Record began gathering
information regarding medical malpractice payments made by or on
behalf of medical practitioners licensed in New Jersey. During
this process, The Record learned of the existence of the Panel
and the requirements under N.J.S.A. § 17:30D-17 that notices of
any medial malpractice claim settlement, judgment or arbitration award involving any practitioner licensed by the State Board of
Medical Examiners be submitted to the Panel. (Lesser Decl. ¶ 3.)
On April 11, 2003, a specialty writer with The Record
submitted a written request pursuant to the New Jersey Open
Public Records Act, N.J.S.A. § 47:1A-1, et seq. ("OPRA"), to
the Division of Consumer Affairs for, inter alia, every notice
submitted pursuant to N.J.S.A. § 17:30D-17 by malpractice
insurers or any other responsible body to the Panel notifying the
Panel of malpractice payments. (Sforza Decl., Ex. C., 1/23/04 Tr.
at 13 ("J. Moses Op."); Lesser Decl. ¶ 5, Ex. A.) The Record's
OPRA request was denied by the Division of Consumer Affairs on
April 23, 2003 based in part on the fact that the confidentiality
provisions contained in N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c)
allegedly exempted the notices from disclosure under OPRA. (J.
Moses Op. at 13; Lesser Decl. ¶ 6.)
In August 2003, The Record brought an action, by way of order
to show cause, in the Superior Court of New Jersey, Law Division,
Bergen County, against the State of New Jersey, Division of
Consumer Affairs and Medical Practitioner Review Panel
(collectively "State Defendants").*fn6 The State action was
captioned North Jersey Media Group, Inc. v. State of New Jersey,
Division of Consumer Affairs and the Medical Practitioner Review Panel, Docket No. BER-L-5771-03.
In its complaint, The Record sought to compel the disclosure
of the payment notices submitted by malpractice insurers or any
other responsible body to the Panel notifying the panel of
malpractice payments. The Record sought the disclosure of this
information both pursuant to OPRA and to the common law right to
In September 2003, State Defendants submitted opposition to
The Record's application, and The Record learned, for the
first time, that State Defendants maintained the information
sought in a computer database. (Lesser Decl. ¶ 5.) Thus, concerns
about the costs that State Defendants would bear in turning over
the information to The Record were all but obviated.
Additionally, at that time The Record amended its request to
limit the information sought from the payment notices to the
following four components: (1) name of physician; (2) license
number; (3) date of payment; and (4) amount of payment.
The parties appeared before the Honorable Sybil R. Moses on
October 14, 2003. During the course of the conference, the
parties agreed that certain notices were exempt from disclosure
under OPRA because they were protected by the confidentiality
provision contained in N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c). (J.
Moses Op. at 14-15.) The Record, seeking disclosure of all the
payment notices during the previous five years, proceeded with its common law claim for access, and State Defendants
submitted opposition to that claim. On January 23, 2004, Judge
Moses, in a ruling from the bench, granted The Record's request
for common law access to the payment notices. (Id. at 47-48.)
In her oral opinion, Judge Moses made several key points. First,
Judge Moses found that since insurers are required to submit the
payment notices to the Panel pursuant to N.J.S.A. § 17:30D-17,
the notices are, as a matter of law, common law public records.
(Id. at 32-33.) Second, the court found that The Record had
the requisite interest in the payment notices. (Id. at 33-34.)
Finally, Judge Moses held that the public interest in disclosing
the payment notices outweighed any interest in confidentiality.
(Id. at 34-48.) Judge Moses based her determination of the
public interest in part on the New Jersey Legislature's passage
of the NJHCCIA, which mandates that the payment notices be made
public. (Id. at 47.) ("The Health Care Consumer Information Act
sets forth the Legislature's current intent with respect to the
confidentiality of medical malpractice payment records.")
On March 9, 2004, Judge Moses entered an Order granting access
to the payment notices. (Kornett Decl., Ex. B.) Pursuant to the
March 9th Order, State Defendants were ordered to send to all
affected practitioners copies of the information contained in
State Defendants' files regarding all medical malpractice
payments made on the practitioner's behalf from March 15, 1999 through March 15, 2004, "for the purpose of permitting the
practitioner to review the accuracy of the information therein."
(Id., Ex. B, ¶ 2.) The March 9th Order gave practitioners
until May 10, 2004 to dispute any claimed inaccuracy in the
records collected by State Defendants. Judge Moses ordered the
release to The Record of all undisputed notices and those
notices for which a dispute had been resolved by May 11, 2004.
For those notices for which a dispute had yet to be resolved,
Judge Moses ordered State Defendants to resolve any outstanding
issues and release those notices to The Record by June 10,
2004. If the practitioner requested an extension to submit
supporting information disputing the accuracy of the information
in a disputed notice, the deadline for State Defendants to
release that notice was June 25, 2004.
MSNJ did not take part in the State court action.
III. CURRENT ACTION
On May 6, 2004, three business days before Judge Moses' March
9th Order was to become effective, MSNJ filed the current
action by way of order to show cause. Plaintiff's order to show
cause sought a temporary restraining order and preliminary
injunction enjoining Defendants from: (1) disclosing to The
Record, pursuant to Judge Moses' Order, information contained in
medical malpractice payment notices submitted to the State pursuant to N.J.S.A. § 17:30D-17; and (2) enforcing the
Plaintiff's Complaint contains six counts. Count One alleges,
pursuant to 42 U.S.C. § 1983, that Judge Moses' March 9th
Order will deprive, under color of state law, MSNJ's members of a
right to privacy secured to them under federal law, namely the
HCQIA, and requests injunctive relief. Count Two claims, pursuant
to 42 U.S.C. § 1983, that Judge Moses' March 9th Order will
deprive, under color of state law, MSNJ's members of their rights
under the Fifth and Fourteenth Amendments of the United States
Constitution and requests injunctive relief. Count Three alleges,
under 42 U.S.C. § 1983, that Judge Moses' March 9th Order
will deprive, under color of state law, MSNJ's members of
fundamental privacy rights secured to them by the United States
Constitution and requests injunctive relief. Count Four alleges
that the NJHCCIA violates Article I, Section 10, clause 1 of the
United States Constitution, demands a declaratory judgment
pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, and
requests injunctive relief. Count Five, also brought under
28 U.S.C. § 2201, alleges that the NJHCCIA violates the Fifth and
Fourteenth Amendments of the United States Constitution, and demands a declaratory judgment as well as injunctive relief.
Count Six prays for injunctive relief and demands a declaratory
judgment under 28 U.S.C. § 2201 that the Department of Consumer
Affairs did not properly enact regulations, pursuant to the New
Jersey Administrative Procedures Act, pertaining to the NJHCCIA.
A telephone conference was held before this Court on May 7,
2004. During the conference, the Court posited the option of a
stay, by consent, of Judge Moses' Order to allow this Court
reasonable time to analyze the issues before it. At that time,
The Record was not a party to the current action and had not
been served with MSNJ's Complaint or supporting motion papers.
The Court contacted counsel for The Record, Dina L. Sforza,
Esq., and Ms. Sforza, on behalf of her client, consented to a
temporary stay of Judge Moses' March 9th Order.
Thereafter, this Court ordered Defendants and The Record to
file opposition papers by May 21, 2004 and MSNJ to file reply
papers by May 28, 2004. The Court scheduled oral argument for
June 7, 2004.
On May 21, 2004, The Record filed its opposition papers to
Plaintiff's motion for a preliminary injunction and concurrently
moved to intervene in this action, pursuant to Fed.R.Civ.P.
24(a)(2). The Court granted The Record's motion to intervene.
Along with its opposition to Plaintiff's motion, also filed May
21st, Defendants cross-moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) & (6). MSNJ opposed
Defendants' cross-motion in its reply papers filed on May
The Court heard argument on June 7, 2004 and issued an oral
Opinion and a written Order summarizing the rulings made. The
Court issued this Opinion thereafter.
I. JURISDICTION AND JUSTICIABILITY ISSUES
Before the Court addresses the merits of Plaintiff's claims,
the Court must first determine whether it may even hear the case
MSNJ alleges that, as an association, it has standing to bring
this action on behalf of its members. In Hunt v. Washington
State Apple Advertising Comm'n, 432 U.S. 333 (1977), the Supreme
Court outlined the standard for association standing.
[A]n association has standing to bring suit on behalf
of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim
asserted nor the relief requested requires the
participation of individual members in the lawsuit.
Id. at 343. Typically, if the individuals that make up the body
of an association cannot show cognizable harm, the association
cannot have standing. In other words, if there is no individual
standing there is no association standing.
As discussed, MSNJ brings the current action on various grounds, including alleged violations of federal rights pursuant
to the HCQIA and alleged violations of constitutional principles
such as a fundamental right to privacy, equal protection, and the
right to form contracts under United States Constitution, Article
I, Section 10, clause 1. It is this last ground, the Contract
Clause, to which Defendants claim MSNJ does not have standing.
Citing Hunt, Defendants object to MSNJ's standing to raise
claims based on allegations that contractual rights of
individuals would be impaired by the disclosure of medical
malpractice payment notices.*fn8 Defendants argue that
MSNJ's claim does not satisfy Hunt's third factor for
associational standing: that neither the claim asserted nor the
relief requested must require the participation of individual
members in the action. See Hunt, 432 U.S. at 343. Defendants
allege that the individual members' presence in court is
necessary because it would be pure speculation to attempt to
analyze how individual members' rights would be affected by this
action without having these individuals appear in court and
without examining the terms of their individual settlement
This claim is without merit. MSNJ does not ask this Court to
foresee with particularity how each individual settlement
contract entered into by MSNJ members will be affected by the outcome of this action. MSNJ simply asserts is that it is
standard procedure for medical malpractice settlement contracts
to include confidentiality provisions, and that Judge Moses'
Order and the NJHCCIA, once in effect, would void these
It is safe to assume that every New Jersey physician who
entered into a medical malpractice settlement agreement that
includes a confidentiality provision has a real interest in an
action bearing upon the effectiveness of that confidentiality
provision. Therefore, the doctrine of associational standing
provides MSNJ the right to seek injunctive relief in order to
defend its members' interest, and there is no need to require
every individual member to appear before this Court. See Warth
v. Seldin, 422 U.S. 490, 515 (1975) ("If in a proper case the
association seeks a declaration, injunction, or some other form
of prospective relief, it can reasonably be supposed that the
remedy, if granted, will inure to the benefit of those members of
the association actually injured. Indeed, in all cases in which
we have expressly recognized standing in association to represent
their members, the relief sought has been of this kind.").
The Court finds that MSNJ has standing to bring this action.
B. Eleventh Amendment and Abstention
In its opposition brief and cross-motion to dismiss the
Complaint, Defendants assert various rationales for this Court to decline to hear this case on jurisdictional grounds.
1. Eleventh Amendment
First, Defendants assert that this action should be dismissed
because the Eleventh Amendment precludes federal jurisdiction
over a state absent the state's consent to suit. Seminole Tribe
v. Florida, 517 U.S. 44, 54 (1997). This immunity from suit
extends to agencies or departments of the state as well.
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,
At oral argument, the initial question before the Court
concerned MSNJ's failure to name the individual State officers
responsible for turning over the confidential information
pursuant to Judge Moses' Order and for enforcing the NJHCCIA.
MSNJ originally named the State of New Jersey, Division of
Consumer Affairs and Medical Practitioner Review Panel as
defendants in this action. Under well-established case law, a
plaintiff may only avoid the Eleventh Amendment bar to suit by
naming a state officer as a defendant instead of the state
government itself. Ex Parte Young, 209 U.S. 123, 159-160 (1908)
(holding that the Eleventh Amendment does not preclude suits
against state officers for injunctive relief).
The Court addressed this issue at length during oral argument
on June 7th. Upon consent of Defendants, the Court permitted
Plaintiff to amend its Complaint to properly name Mary Lou Mottola, Executive Director of the Medical Practitioner
Review Panel, and Reni Erdos, Director of the Division of
Consumer Affairs, in their official capacities as Defendants. The
defendants originally named by Plaintiff were thereafter deleted
from the case caption.
With the Complaint properly amended to name State officials
instead of the State itself, the Court may address Defendants'
claim that Eleventh Amendment immunity precludes this action.
MSNJ correctly states that its claim for injunctive relief
against Defendants falls under Ex Parte Young's exception to
the Eleventh Amendment. Ex Parte Young, 209 U.S. 123 (1908).
"In determining whether the doctrine of Ex Parte Young avoids
an Eleventh Amendment bar to suit, a court need only conduct a
`straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly
characterized as prospective.'" Verizon Maryland Inc. v. Pub.
Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002) (quoting
Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296
(1997)). MSNJ alleges that the disclosure of confidential
information with regard to medical malpractice payment notices
would constitute a violation of federal law, namely the HCQIA, as
well as a constitutional violation of its members' due process,
privacy, equal protection and Contract Clause rights. These
allegations meet Verizon's "straightforward inquiry"
requirement. The Record and Defendants suggest that MSNJ's claim does not
satisfy Ex Parte Young because Judge Moses' Order of March 9,
2004 and the NJHCCIA are not inconsistent with the HCQIA and
therefore no violation of federal law exists. However, even if
this allegation is true, the "inquiry into whether suit lies
under Ex Parte Young does not include an analysis of the merits
of the claim." Verizon, 535 U.S. at 646 (citation omitted)
Therefore, the Ex Parte Young exception to the Eleventh
Amendment applies to this action, Defendants are not immune from
this suit, and this Court is not precluded from hearing this
It should be noted, however, that an exception to the Ex Parte
Young doctrine and therefore an Eleventh Amendment bar to suit
does apply to certain aspects of Plaintiff's Complaint. In
Pennhurst State School & Hospital v. Halderman, the Supreme
Court held that the Eleventh Amendment bars federal courts from
enjoining state officers from violating state laws. 465 U.S. at
121. The Supreme Court found: "[A] claim that state officials
violated state law in carrying out their official
responsibilities is a claim against the State that is protected
by the Eleventh Amendment. . . . We now hold that this principle
applies as well to state law claims brought into federal court
under pendent jurisdiction." Id.
Accordingly, while Plaintiff's federal claims against Defendants fall under Ex Parte Young and are therefore
permissible, Plaintiff's State law claims against New Jersey
officials are barred by the Eleventh Amendment and may not be
entertained by this Court.
2. Younger abstention
Defendants also argue that this Court should abstain from
hearing this action pursuant to Younger v. Harris, 401 U.S. 37
(1971). Younger outlines two primary reasons equitable
principles and federalism or comity for federal courts to
abstain from hearing a case when there are pending state
proceedings. A federal court should abstain under this doctrine
when: (1) there is an ongoing state proceeding which is judicial
in nature; (2) the proceeding implicates important state
interests; and (3) there will be an opportunity at some stage of
the proceeding to raise constitutional challenges. Middlesex Co.
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431-432
Defendants' argument fails on two grounds. First, the State
proceeding is no longer ongoing. Judge Moses' March 9th Order
signified the final action in the case and Defendants chose not
to file to appeal.
Second, Defendants contend that Younger and its progeny do
not require the state court action to be currently pending at the
time the federal action is filed. Rather, it is sufficient that the federal plaintiff has had an adequate opportunity to resolve
the federal issues in state court. O'Neill v. City of
Philadelphia, 32 F.3d 785, 790-791 (3d Cir. 1994). This argument
also fails. MSNJ was not a party to the State action, therefore
it had no opportunity to present its federal claims in State
court. Defendants contend that MSNJ should have intervened in
the State court action but points to no authority requiring
MSNJ to intervene in order to protect its rights to bring the
federal claims included in this action.
Therefore, this Court will not abstain, pursuant to Younger,
from deciding the current action.
3. The Rooker-Feldman doctrine
Defendants further allege that Plaintiff's Complaint is barred
by the Rooker-Feldman doctrine. Defendants overstate the scope
of the Rooker-Feldman doctrine and employ a flawed analysis.
The Rooker-Feldman doctrine bars federal jurisdiction if the
claim was "actually litigated" in state court or if the claim is
"inextricably intertwined" with the state adjudication. Desi's
Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir.
2003) (citation omitted). The Third Circuit has consistently held
that for the Rooker-Feldman doctrine to bar a plaintiff from
bringing an action in federal court, the plaintiff must have been
a party to the state court proceeding or must have, at the very least, been in privity with a party to the state court action.
Nat'l Railroad Passenger Corp. v. Pennsylvania Public Utility
Comm'n, 342 F.3d 242, 257 (3d Cir. 2003); Exxon Mobil Corp. v.
Saudi Basic Indus., 364 F.3d 102, 105 (3d Cir. 2004). In this
case, MSNJ was neither a party, nor in privity with a party, to
the action before Judge Moses and therefore cannot be barred by
the Rooker-Feldman doctrine.
Defendants argue that the case at bar is "inextricably
intertwined" with claims that were already litigated. To support
their argument, Defendants cite a recent Third Circuit opinion.
See ITT Corp. v. Intelnet Int'l, 366 F.3d 205, 211 (3d Cir.
2004) ("State and federal claims are inextricably intertwined (1)
when in order to grant the federal plaintiff the relief sought,
the federal court must determine that the state court judgment
was erroneously entered or (2) when the federal court must 
take action that would render [the state court's judgment]
ineffectual.") (internal quotation marks and citations omitted).
Defendants' reliance on ITT Corp. is misplaced. First, the
plaintiff in ITT Corp. was a party to the state court
proceeding. Second, this Court need not determine that Judge
Moses' Order was erroneously entered to find for Plaintiff in
this case. None of the constitutional claims presented in this
action were before Judge Moses.
Accordingly, the Court finds that the Rooker-Feldman doctrine does not bar this action from proceeding.
II. MOTION FOR PRELIMINARY INJUNCTION
A. Standard for preliminary injunction
The standard for granting an application for a preliminary
injunction is well established in this Circuit.
[W]hen ruling on a motion for preliminary injunctive
relief, a district court must be convinced that
consideration of the four following factors favors
the granting of preliminary relief: (1) the
likelihood that the moving party will succeed on the
merits; (2) the extent to which the moving party will
suffer irreparable harm without injunctive relief;
(3) the extent to which the nonmoving party will
suffer irreparable harm if the injunction is issued;
and (4) the public interest.
Shire US Inc. v. Barr Laboratories, Inc., 329 F.3d 348
, 352 (3d
Cir. 2003) (citations omitted). Whether or not a court should
grant a preliminary injunction under the four factor test is
committed to the sound discretion of the trial court. Id. at
352 (citing Duraco Prods., Inc. v. Joy Plastic Enters.,
40 F.3d 1431
, 1438 (3d Cir. 1994)). However, a court must always be
mindful that an injunction is "an extraordinary remedy which
should be granted only in limited circumstances." Instant Air
Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797
, 800 (3d
Cir. 1989) (citation omitted).
Unlike a motion to dismiss, in considering a motion for a
temporary restraining order and preliminary injunction, the Court
may considers affidavits in support of and in opposition to the
application for injunctive relief. Fed.R.Civ.P. 65(b). B. Application for preliminary injunctive relief with
respect to the New Jersey Health Care Consumer Information Act
Plaintiff claims that the NJHCCIA is in direct violation of
federal law, namely the HCQIA. Furthermore, Plaintiff alleges
that the NJHCCIA violates constitutional principles as well. The
Court rejects Plaintiff's challenges to the law on both grounds.
1. The NJHCCIA does not violate federal law
Plaintiff claims that the NJHCCIA, in conjunction with the
reporting requirements of N.J.S.A. § 17:30D-17, violates a
federal right to privacy provided medical practitioners by the
HCQIA. The crux of Plaintiff's argument is that confidentiality
provisions contained in the HCQIA, 42 U.S.C. § 11137, preclude
Defendants from releasing information about malpractice
settlements under New Jersey Law.
Plaintiff assumes that since the information collected pursuant
to both statutory frameworks is the same, the federal privacy
provisions trump State privacy provisions. This is not the case.
There is no provision in the HCQIA that makes information
independently collected by a state agency confidential. Both
federal law and New Jersey law require insurance companies to
report information concerning malpractice payments.
42 U.S.C. § 11134(c) ("Information required to be reported under [the HCQIA]
shall all be reported to the appropriate State licensing board
(or boards) in the State in which the medical malpractice claim arose"); N.J.S.A. § 17:30D-17
(Insurers "shall notify the Medical Practitioner Review Panel . . .
in writing of any medical malpractice claim settlement,
judgment or arbitration award involving any practitioner licensed
by the State Board of Medical Examiners"). Therefore, the
obligation on an insurance carrier to report information to the
Panel is imposed as a dual requirement of both State and federal
law. The information at issue is reported directly to the Panel
by insurance carriers to comply with both federal and State law
and is not information that the Panel obtains from the Data Bank
itself. Accordingly, the confidentiality provisions in the HCQIA
have no applicability to the information reported to the Panel,
given that the information at issue is received directly by the
Panel from insurance companies and not through the Data Bank.
This Court need not consider the privacy protections afforded
by the HCQIA with regards to information sent directly to the
Panel. Again, upon a clear reading of the HCQIA, there is simply
no provision in the federal law deeming information that is
independently collected by a state agency confidential. Without a
consideration of the HCQIA, what remains is purely a question of
New Jersey law.
Furthermore, Section 11137(b)(1) of the HCQIA provides a
specific carve out for state law: "Nothing in this subsection
shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such
disclosure." 42 U.S.C. § 11137(b)(1). Once the NJHCCIA becomes
effective, it is clear that New Jersey law will not preclude the
public dissemination of medical malpractice information,
specifically that information setting forth the dates on which
malpractice payments were made by a practitioner and the amount
of those payments.
Plaintiff agrees that once the NJHCCIA goes into effect,
malpractice settlements will no longer be confidential under New
Jersey law and will fall under the carve out provision in Section
11137(b)(1). (Pl. Reply Br. at 17.) However, MSNJ points to two
sections of the New Jersey code that currently place restrictions
on the dissemination of medical malpractice information, N.J.S.A.
§§ 45:9-19.3 & 45:9-19.10(c). As discussed above, once the
NJHCCIA becomes effective, these two sections will not apply to
information contained in the published practitioner profiles.
However, Plaintiff argues that the operation of these two privacy
provisions currently, and for years past, cuts against the
retroactive nature of the NJHCCIA, which requires disclosure of
malpractice information from the past five years. MSNJ asserts
that medical professionals have had an expectation of privacy
during this five year period and many have entered into
settlement agreements only because of the confidentiality clauses
contained therein. (E.g., G.F., M.D. Decl. ¶ 3.) Plaintiff contends that the confidentiality clauses contained in settlement
agreements have been effectively protected by N.J.S.A. §§
45:9-19.3 & 45:9-19.10(c).
This argument presents an issue of New Jersey law that this
Court may not consider. By objecting to the retroactive nature of
the NJHCCIA, Plaintiff shifts from arguing that the information
is protected under the HCQIA to claiming that the five year
disclosure requirement under the NJHCCIA is inappropriate given
that N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c) protected the
information during that five year period. Given this Court's
finding that the information in question is collected pursuant to
State law and not pursuant to the HCQIA, Plaintiff's argument
that the retroactive nature of the NJHCCIA violates doctors'
expectation of privacy is really a question of State law. As
stated above, the Eleventh Amendment bars federal courts from
enjoining state officers from violating state laws. Pennhurst,
465 U.S. at 121. Therefore, this Court may not entertain
questions purely of State law.*fn9 2. The NJHCCIA in not unconstitutional
Plaintiff also alleges that the NJHCCIA violates various
provisions of the United States Constitution. First, Plaintiff
claims that the NJHCCIA violates the Contract Clause of the
Constitution. U.S. CONST., Art. I, § 10, cl. 1. Plaintiff further
claims that the NJHCCIA violates MSNJ members' fundamental right
to privacy. Finally, Plaintiff claims that the NJHCCIA violates
equal protection principles.
a. Contract Clause claim
Plaintiff's main argument with respect to the NJHCCIA is that
it is unconstitutional because it violates Article I, Section 10,
clause 1 of the United States Constitution by requiring the
disclosure of information subject to confidentiality agreements
in existing contracts. This claim is wrong for multiple reasons.
First, New Jersey law provides that information about any
malpractice judgment, award or settlement must be disclosed to
the State Board of Medical Examiners. N.J.S.A § 17:30D-17.
Section 17:30D-17 specifically provides that settlements that
preclude the disclosure of such information to the Board are void
and unenforceable. Thus, the confidentiality requirement in
existing medical malpractice settlements may bind the parties to
the agreement, however, it certainly does not bind the State
Board of Medical Examiners. Because the NJHCCIA seeks to disclose information legally obtained by the Panel, it cannot be
viewed as "impairing the Obligation of Contracts." U.S. CONST.,
Art. I, § 10, cl. 1.
Second, the magnitude of the NJHCCIA's impairment effect on
medical malpractice agreements does not meet the constitutional
threshold as provided by existing case law. In Energy Reserves
Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983),
the Supreme Court enunciated a three-part test to determine
whether a state's exercise of its police power violates the
impairment of contracts clause in the Constitution. "The
threshold inquiry is `whether the state law has, in fact,
operated as a substantial impairment of a contractual
relationship.'" Id. at 411 (quoting Allied Structural Steel
Co. v. Spannaus, 438 U.S. 234, 244 (1978)). If this threshold is
met and "the state regulation constitutes a substantial
impairment, the State, in justification, must have a significant
and legitimate public purpose behind the regulation, such as the
remedying of a broad and general social or economic problem."
Id. at 411-412 (citations omitted). If the court finds that a
legitimate public purpose exists, "the next inquiry is whether
the adjustment of `the rights and responsibilities of contracting
parties [is based] upon reasonable conditions and [is] of a
character appropriate to the public purpose justifying [the
legislation's] adoption.'" Id. at 412 (quoting United States
Trust Co. v. New Jersey, 431 U.S. 1, 22 (1977)).
Plaintiff fails to meet the first factor of the Energy
Reserves test. The primary purpose of medical malpractice
settlements is to resolve disputes between the parties.
Confidentiality is only a collateral aspect of the settlement.
Plaintiff failed to show how this collateral aspect is a
fundamental and necessary part of medical malpractice
Finally, even if the NJHCCIA did cause a substantial impairment
to existing contracts, this disservice does not amount to a
violation of the Contract Clause because the State has "a
significant and legitimate public purpose" behind the
legislation. Id. at 411-412. It is clear that providing
consumers with relevant information about physicians' backgrounds
helps consumers to make informed choices with regard to medical
services. Because the NJHCCIA is grounded in a legitimate public
purpose and the State is not a party to the medical malpractice
agreements, this Court must respect the New Jersey Legislature's
policy-making authority with regards to the necessity and the
reasonableness behind disclosure of statutorily mandated medical
malpractice information.*fn10 Accordingly, Plaintiff's constitutional claim for violation of
the Contract Clause fails.
b. Right to privacy
Citing Roe v. Wade, 410 U.S. 113 (1973), MSNJ claims that
enforcement of the NJHCCIA and Judge Moses' Order would amount to
a constitutional infringement on the fundamental privacy rights
of New Jersey's physicians. Plaintiff does not demonstrate how
Roe is applicable to this claim. Roe held that the
Constitution protects certain "fundamental privacy rights" from
governmental acts. Roe described these fundamental privacy
rights as rights "implicit in the concept of ordered liberty."
Id. at 153. The Supreme Court found that these rights "ha[ve]
some extension to activities relating to marriage . . .
procreation, contraception . . . family relationships . . . child
rearing and education." Id. (citation omitted). Plaintiff makes
no showing that the right to privacy alleged here amounts to a
fundamental privacy right. In addition, Plaintiff admitted at
oral argument on June 7, 2004 that it had, in effect, abandoned this claim.
Accordingly, Plaintiff's claim that the NJHCCIA violates
medical practitioners' fundamental right to privacy must fail.
c. Equal protection
MSNJ further claims that the NJHCCIA improperly distinguishes
between physicians and podiatrists on the one hand, and other
types professionals on the other hand It further argues that the
State has no compelling reason to require the disclosure of
information concerning settlements of cases involving doctors,
while permitting settlements involving other professionals to
remain confidential. MSNJ does not provide any support for this
claim, and the briefs submitted by Defendants and The Record do
not address this issue.
The Third Circuit held that in order to state an equal
protection claim, a claimant must show that others similarly
situated have not been treated in the same manner, and that the
State's decisions were made pursuant to "an unjustifiable
standard . . . `such as race, religion, or other arbitrary
classification' . . . or to prevent [the plaintiff's] exercise of
a fundamental right." Gov't of the Virgin Islands v. Harrigan,
791 F.2d 34, 36 (3d Cir. 1986) (quoting Oyler v. Boles,
368 U.S. 448, 456 (1962) (other citations omitted)). New Jersey's
physicians do not fall under any of the categories enumerated in
Given that the constituents represented by MSNJ do not fall into one of these specifically delineated groups, MSNJ's equal
protection argument must fail.
3. No preliminary injunction
Because Plaintiff fails to assert a cognizable claim that the
NJHCCIA violates federal law, Plaintiff does not meet the first
requirement of the preliminary injunction standard. See Shire
US, 329 F.3d at 352 (holding that a party moving for injunctive
relief must first show a likelihood of success on the merits).
In addition, the extent to which the nonmoving party will
suffer irreparable harm if the injunction is issued outweighs the
extent to which the moving party will suffer irreparable harm
without injunctive relief. Id. Plaintiff cannot be heard to
complain of disclosure of judgments since, by their very nature,
judgments are public records. Any claim to irreparable injury
with respect to the release of malpractice settlement information
pursuant to the NJHCCIA is attenuated by the following statement
in each physician's profile:
"Settlement of a claim and, in particular, the dollar
amount of the settlement may occur for a variety of
reasons, which do not necessarily reflect negatively
on the professional competence or conduct of the
physician (or podiatrist). A payment in settlement of
a medical malpractice action or claim should not be
construed as creating a presumption that medical
malpractice has occurred."
N.J.S.A. § 45:9-22.23(a)(10)(d).
Moreover, the non-moving party would suffer irreparable harm if
this Court were to grant the injunction. The State's interest in protecting consumers of medical services could be impaired by
a patient choosing a doctor whose performance has been serious
compromised. The public would be deprived of information that
could be vital in making an informed decision in one of the most
important areas of life: one's health.
Finally, public policy weighs in favor of the NJHCCIA. Id.
(holding the fourth factor in the preliminary injunction analysis
consists of the court weighing public policy considerations).
Federal courts must give deference to laws passed by the state
legislature. O'Neill, 32 F.3d at 790-91.
For the foregoing reasons, Plaintiff's motion to enjoin the
enforcement of the NJHCCIA is DENIED.
C. Application for preliminary injunctive relief with
respect to Judge Moses' March 9th Order
1. Violation of due process
MSNJ contends that Judge Moses' March 9th Order should not
be enforced against it because MSNJ was not a party to the State
action. Plaintiff claims that its members cannot be bound by a
State court order when they were not a party to the case.
In support of its position, MSNJ provides two anonymous
declarations of doctors who entered into malpractice settlement
agreements. One doctor declared that he settled a particular suit
for a sum of $35,000 rather that go through the time and expense
of trial. (G.F., M.D. Decl. ¶ 3.) The doctor stated that he would
not have settled the case but for the clause requiring the
parties to keep confidential the settlement and its terms, including the amount paid. The doctor declared that he
only recently became aware of the action before Judge Moses.
(Id. ¶ 4) ("I was given no notice of this lawsuit and no
opportunity to participate in any way. I was greatly distressed
to learn that a judge of the Superior Court decided to, in
effect, remove the confidentiality clause which had been an
important part of my agreement to settle the case.") An anonymous
declaration from a second doctor contained similar statements.
(R.H., M.D. Decl. ¶ 5.)
Although the Court is sympathetic to the doctors' plight,
Plaintiff's arguments do not rest on a sound statement of the
law. MSNJ alleges that because it was not a party to the State
court action, Judge Moses' Order violates the due process rights
of its members. Plaintiff cites no authority for this claim.
Plaintiff was aware of the State litigation that lasted for more
than five months, yet made no attempt to intervene in that
action, or to challenge its outcome or the constitutionality of
the NJHCCIA on which the judgment partially relied in State
court. Further, Judge Moses found that The Record's request was
limited to information held by the State, and that this
information, under the common law, is a public record. The
Record did not seek the disclosure of any information solely
under the control of MSNJ, New Jersey's physicians, or any other
non-governmental party. There is no due process violation because
Judge Moses ordered the release of information that the Panel
collects, not a release of information from the doctors themselves. Thus, The Record had no reason, and was under no
obligation, to join MSNJ in the State action.
In addition, by refuting Defendants' arguments regarding
Younger abstention and the Rooker-Feldman doctrine, discussed
above, MSNJ emphasized that it was not bound to intervene in the
action before Judge Moses. Plaintiff cannot on the one hand claim
it was not forced to intervene and on the other hand claim the
rights of its members were violated because it did not choose to
2. Information at issue in the March 9th Order is not
confidential pursuant to the HCQIA.
Plaintiff contends that the information The Record sought
released in the State court action is information gathered and
maintained by the federal government pursuant to the HCQIA and is
therefore subject to the confidentiality protections outlined in
the HCQIA. However, in truth, The Record sought disclosure of
malpractice payment notices required to be provided by insurers
to the Panel pursuant to N.J.S.A. § 17:30D-17.
As discussed above, while the HCQIA and Section 17:30D-17
require disclosure of the same type of information, the two
statutory obligations are separate and distinct.
Moreover, in granting The Record's application for access to
the documents, Judge Moses held that the payment notices
constituted common law public records. Judge Moses made this
finding based on the fact that insurers are required to submit
the notices to the Panel pursuant to New Jersey statute, N.J.S.A. § 17:30D-17.
Judge Moses based her decision on a sound interpretation of New
Jersey common law principles. Therefore, even if this Court were
to look to the plain language of the HCQIA, which it does not
need to do given that the information in question is reported
directly to the Panel, it is clear that the HCQIA does not apply.
The confidentiality provision of the HCQIA states that "[n]othing
in this subsection shall prevent the disclosure of such
information by a party which is otherwise authorized, under
applicable State law, to make such disclosure."
42 U.S.C. § 11137(b)(1) (emphasis added). Here, Judge Moses has made the
determination that the information may be disclosed under
applicable New Jersey common law. Therefore, even pursuant to the
framework of the HCQIA, the information ordered released to The
Record by Judge Moses clearly falls under the carve out
provision of Section 11137(b)(1).
3. No preliminary injunction
MSNJ has failed to satisfy the first factor required for a
preliminary injunction: Plaintiff has not shown a likelihood of
success on the merits. See Shire US, 329 F.3d at 352. In
addition, the other factors required for a preliminary
injunction, as previously discussed, weigh in favor of
Defendants' compliance with the Order of the Superior Court.
Because there is no federal statutory or constitutional
impediment to releasing the information at issue pursuant to
Judge Moses' March 9th Order, Plaintiff's motion for an injunction is DENIED.
II. MOTION TO DISMISS
Defendants cross-move to dismiss MSNJ's Complaint pursuant to
Fed.R.Civ.P. 12(b)(1) & (6).
A. Fed.R.Civ.P. 12(b)(1)
Defendants move to dismiss Plaintiff's Complaint for lack of
subject matter jurisdiction. To support their contention,
Defendants allege: (1) this action is barred by the Eleventh
Amendment; (2) the Court should abstain from hearing the case
pursuant to Younger v. Harris, 401 U.S. 37 (1971); (3) the
action is barred by the Rooker-Feldman doctrine; and (4) MSNJ
does not have standing to bring this action.
All four of these claims were discussed above, and the Court
found all four to be without merit. Accordingly, Defendants'
motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) is DENIED.
B. Fed.R.Civ.P. 12(b)(6)
A court may grant a motion to dismiss for failure to state a
claim only if, accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to
the plaintiff, the plaintiff is entitled to no relief. See Doe
v. Delie, 257 F.3d 309, 313 (3d Cir. 2001) (citations omitted).
Accordingly, this Court may grant Defendants' motion to dismiss
the Complaint only if it appears that Plaintiff can prove no set
of facts in support of its claims that would entitle MSNJ to
relief. Id.; Conley v. Gibson, 355 U.S. 41, 45 (1957). In considering Defendants' Rule 12(b)(6) motion, the Court limited
its examination to only the pleadings. See Fed.R.Civ.P.
12(b)(6) (excluding matters outside the pleadings on a motion to
dismiss for failure to state a claim upon which relief can be
Viewing Plaintiff's claims in the most favorable light,
Plaintiff, as previously discussed, is not entitled to any
federal or statutory relief. The balance of the relief sought
presents solely a question of State law. Therefore, Plaintiff's
Complaint must be dismissed for failure to state a claim.
Moreover, Defendants raise an additional question as to
Plaintiff's ability to bring Count One of the Complaint, in which
Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that Judge
Moses' March 9th Order will deprive, under color of state
law, MSNJ's members of a right to privacy secured to them by the
HCQIA. (Compl. ¶ 30.) The Complaint also alleges that MSNJ's
members would suffer immediate, irreparable harm by reason of a
breach of their reasonable expectation of privacy and requests
injunctive relief. (Id. ¶ 30-31.)
Plaintiff may only maintain a Section 1983 action where the
rights sought to be vindicated are unambiguously conferred.
Gonzaga Univ. v. Doe, 536 U.S. 273, 291 (2002) ("The ultimate
question, in respect to whether private individuals may bring a
lawsuit to enforce a federal statute, through 42 U.S.C § 1983 or
otherwise, is a question of congressional intent") (Breyer, J.,
concurring); see also Sabree ex rel. Sabree v. Richman, 367
F.3d 180, 189-190 (3d Cir. 2004).
Plaintiff fails to demonstrate that Congress intended the HCQIA
to provide private individuals with the right to bring § 1983
actions. Upon a plain reading, the language of the statute does
not provide such a right. See Bonneville Intern. Corp. v.
Peters, 347 F.3d 485, 491 (3d Cir. 2003) (holding that when a
court interprets a statute, it must first look to the plain
meaning of the text) (citation omitted). Furthermore, there is no
case law that this Court has found interpreting the HCQIA to
provide such right. Finally, since MSNJ fails to demonstrate that
Judge Moses' Order would violate unambiguous constitutional or
federal rights of its members, Section 1983 cannot apply to this
Accordingly, for the reasons stated above, Defendants' motion
to dismiss for failure to state a claim pursuant to Rule 12(b)(6)
is GRANTED. CONCLUSION
For the foregoing reasons, Plaintiff's motion for preliminary
injunctive relief is denied. Defendants' motion to dismiss for
lack of subject matter jurisdiction is denied. Defendants'
motion to dismiss for failure to state a claim is granted.
Plaintiff's Complaint is dismissed in full.
An appropriate Order encapsulating rulings made both in this
Opinion and during oral argument was issued on June 7th,