United States District Court, D. New Jersey
September 22, 2005.
DAVID L. NASH, Plaintiff,
DEVON BROWN, et al., Defendants.
The opinion of the court was delivered by: MARY COOPER, District Judge
The defendants George Achebe ("Achebe") and Ellen Warner
("Warner") move pursuant to Federal Rule of Civil Procedure
("Rule") 56(c) for summary judgment as to the claims asserted
against them for (1) medical malpractice and negligence brought
under state law, and (2) punitive damages pursuant to § 1983. The
Court, for the reasons stated herein, will grant the motion in
part and deny the motion in part.
The parties are familiar with the background of this action.
(See 8-2-04 Mem. Op. & Ord.) Plaintiff, David Nash ("Nash"), is
a prisoner at New Jersey State Prison ("NJSP"). He has been
incarcerated at NJSP since November 5, 1995. (Crammer Cert., Ex.
A.) On October 17, 2000, Nash was struck in the face by a fellow
inmate, and sustained an orbital fracture to the left eye.
(Id., Ex. B, at 2.) II. Procedural History
Plaintiff filed a pro se complaint on November 6, 2002,
alleging, inter alia, violations of the Eighth Amendment.
(Dkt. entry no. 2.) He seeks relief pursuant to 42 U.S.C. § 1983.
Id. Specifically, plaintiff contends the defendants failed to
protect his safety and acted with deliberate indifference to his
serious medical needs. (Id. at ¶¶ 27-29, 30-31, 33-34.)
Previously, Achebe and Warner moved for summary judgment
contending they were entitled to judgment as a matter of law.
(8-2-04 Mem. Op. & Ord., at 1.) The motion was denied because the
Court found that Nash had produced enough evidence to satisfy a
prima facie case for deliberate indifference. (8-2-04 Mem. Op.,
Achebe and Warner now move for summary judgment as to the
claims asserted against them for (1) medical malpractice and
negligence under state law, and (2) punitive damages pursuant to
I. Standard for Summary Judgment
Rule 56(c) provides that summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
The party moving for summary judgment bears the initial burden of showing that there is no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Once the summary judgment movant has met this prima
facie burden, the nonmovant "must set forth specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e). A nonmovant must present actual evidence that raises a
genuine issue of material fact and may not rely on mere
allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
The Court must view the evidence in the light most favorable to
the nonmovant when deciding a summary judgment motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). At the summary judgment stage, the Court's role
is "not . . . to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial." Anderson, 477 U.S. at 249. "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 for summary judgment; the requirement
is that there be no genuine issue of material fact." Id. at
247-48 (emphasis in original). A fact is material only if it
might affect the action's outcome under governing law. Id. at
248. "[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party. If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Id. at 249-50
A. Medical Malpractice and Negligence Claims Under State Law
Achebe and Warner argue that judgment should be entered in
their favor on the medical malpractice claims against them
because Nash failed to file an affidavit-of-merit pursuant to
N.J.S.A § 2A:53A-27. (Defs. Br., at 3.) Nash opposes, arguing
that he requested an expert report on March 1, 2004, and received
no response. (Pl. Ans., at ¶¶ 1-3; 3-1-04 Ltr. to Dr. Razvi.)
Further he argues the assertions by Achebe and Warner are
predicated on erroneous facts and conclusions of law. (Pl. Ans.,
at ¶¶ 1-3.)
The Court will apply New Jersey's affidavit-of-merit statute to
medical malpractice claims that accrue in New Jersey and are
brought in federal court. See Chamberlain v. Giampapa,
210 F.3d 154, 161 (3d Cir. 2000). The statute 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 this 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 merit 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.
N.J.S.A § 2A:53A-27. Failure to comply is deemed to be a failure
to state a cause of action. N.J.S.A. § 2A:53A-29. "[A] dismissal
for failure to comply with the statute should be with prejudice
in all but extraordinary circumstances." Cornblatt v. Barow,
708 A.2d 401
, 415 (N.J. 1998). "Ignorance of the law or failure
to seek legal advice will not excuse failure to meet the filing
deadline." Taylor v. Plousis, 101 F.Supp.2d 255
, 270 (D.N.J.
2000) (citation omitted).
Plaintiffs can rely upon the doctrine of substantial compliance
to excuse technical noncompliance with the statute. Galik v.
Clara Maass Med. Ctr., 771 A.2d 1141, 1149 (N.J. 2001). The
Court evaluates the following criteria when considering
(1) the lack of prejudice to the defending party; (2)
a series of steps taken to comply with the statute
involved; (3) a general compliance with the purpose
of the statute; (4) a reasonable notice of
petitioner's claim; and (5) a reasonable explanation
why there was not a strict compliance with the
Nash has neither provided an affidavit-of-merit, nor
substantially complied with the statute. Defendants filed their
answer to the complaint on January 17, 2003. (1-17-03 Defs. Ans.)
Nash should have filed an affidavit-of-merit within 60 days of
that date. It was not until March 1, 2004, well beyond the prescribed statutory period for filing an affidavit, that
Nash made an effort to secure an expert report. (See 3-1-04
Ltr. to Dr. Razvi.) To date, Nash has filed neither an
affidavit-of-merit nor an expert report. Nash has not provided
any certification or information in lieu of the affidavit, nor
has he explained his failure to comply. For these reasons, the
Court will grant the motion by Achebe and Warner for summary
judgment as to the state medical malpractice and negligence
claims asserted against them.
B. Punitive Damages Claim
Achebe and Warner argue that judgment should be entered in
their favor as to Nash's claim for punitive damages for
violations of his Constitutional rights because he has failed to
demonstrate that their conduct was wanton and willful. (Defs.
Br., at 7.) Nash argues that such an assertion is based upon
erroneous facts and conclusions of law. (Pl. Ans., at ¶ 3.)
Punitive damages can be assessed in an action brought pursuant
to § 1983 when "the defendant's conduct is shown to be motivated
by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others." Smith
v. Wade, 461 U.S. 30, 56 (1983). This Court previously
determined that Nash has demonstrated a prima facie case for the
deliberate indifference of Achebe and Warner to his serious
medical need. (See 8-2-04 Mem. Op. & Ord., at 16-18.) Achebe and Warner have not demonstrated that there is an absence
of material fact as to whether they violated Nash's
Constitutional rights. The existence of genuine issues of
material fact prevents the entry of summary judgment as to Nash's
claim for punitive damages against Achebe and Warner. Thus, that
part of the motion to will be denied.
The Court, for the reasons stated supra, will (1) grant the
part of the motion by Achebe and Warner for summary judgment as
to the medical malpractice and negligence claims under state law,
and (2) deny the part seeking summary judgment as to the claim
for punitive damages. An appropriate order will be issued.
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