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Bosco v. C.F.G. Health Systems

June 19, 2007

GARY D. BOSCO, PLAINTIFF,
v.
C.F.G. HEALTH SYSTEMS, LLC; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

C.F.G. Health Systems, LLC, Atlantic County Justice Facility, Gary Merline, Earl Billue, Dr. Colbert, and Dr. Ellen (collectively "Defendants") move for reconsideration of this Court's Opinion and Order, dated October 25, 2006, denying their motion for summary judgment. The motion is premised upon: (1) this Court's alleged oversight of Plaintiff's failure to retain an expert witness as is purportedly necessary to state a claim; and (2) the theory of judicial estoppel arising out of Plaintiff's failure to notify the bankruptcy court of this action, which was filed during the pendency of Plaintiff's Chapter 13 proceedings.*fn1 Based upon the forgoing reasons, Defendants' motion will be denied.

I.

A decision "may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion . . . or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); see also L. Civ. R. 7.1(I).

"To succeed on a motion for reconsideration, a petitioner must present 'something new or something overlooked by the court in rendering the earlier decision.'" Hernandez v. Beeler, 129 F. Supp. 2d 698, 701 (D.N.J. 2001)(quoting Khair v. Campbell Soup Co., 893 F. Supp. 316, 337 (D.N.J. 1995)). "The petitioner should show 'more than a disagreement' with the decision he would like reconsidered." Id. (quoting Anders v. FPA Corp., 164 F.R.D. 383, 387 (D.N.J. 1995)); see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).

II.

In the Complaint, Plaintiff alleges that his Eighth Amendment rights were violated as a result of Defendants' ignoring his heart condition and delaying his medication. This Court held that a reasonable jury could conclude that Defendants were deliberately indifferent toward his medical conditions. Defendants argue that Plaintiff failed to present the requisite expert opinion as to the seriousness of his illness and, thus, Plaintiff's Complaint should be dismissed for failure to state a claim upon which relief may be granted.

As to the severity of Plaintiff's illness, this Court found that Plaintiff established that his heart condition was a "serious medical need." It expressly relied upon "the several medical request forms Plaintiff [] submitted documenting his condition and the pain he endured . . . along with the facts that Plaintiff's heart condition required daily doses of prescription medications and possibly surgery." (Opinion, p.9). Because there has been no intervening change in controlling law, and no claim that new evidence about Plaintiff's illness was discovered after the Opinion was filed, Defendants' motion can only succeed if they demonstrate the need to correct a clear error of law or prevent a manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

Defendants rely upon Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987), in which the Third Circuit affirmed the district court's ruling that because plaintiff did not offer an expert opinion to prove the seriousness of his injuries, he failed to meet his burden of proving deliberate indifference. Boring is distinguishable. Boring's alleged medical condition consisted of: a nerve injury for which a doctor concluded that any surgery would be elective; scaling of his scalp which was deemed an "little more than an annoyance;" temporary filings in his teeth; a knee condition which qualified only for elective surgery; migraine headaches; and the need for a "temporary special diet." Boring, 833 F.2d at 473. The court held that a lay person could not determine whether these alleged injuries were sufficiently "serious."

Here, the injuries about which Plaintiff complained were clearly serious - Plaintiff's heart condition required that he take numerous prescription medications daily, and caused chest tightening, swelling of the legs, and shortness of breath, among other symptoms. The lack of expert testimony confirming the severity of Plaintiff's medical need is not detrimental to his case. The Court committed no error of law or manifest injustice when ruling that Plaintiff's condition was serious and allowing the case to proceed to a jury.

III.

Defendants also move for reconsideration based upon "recently discovered" evidence that Plaintiff failed to disclose the existence of this action during the pendency of his Chapter 13 bankruptcy proceedings. The facts are as follows. On January 22, 2001, Plaintiff filed a voluntary Chapter 13 petition in Bankruptcy Court. (Pl. Ex. A, p. 1). Confirmation was originally scheduled for June 13, 2001, was continued to July 25, 2001, and then moved to September 12, 2001. (Pl. Ex. A). On September 12, 2001, the plan was confirmed at $382.00 per month for fifty-three (53) months. (Pl. Ex. A, p. 6). Plaintiff's cause of action accrued, at the earliest, on May 11, 2004, the day Plaintiff was incarcerated. On June 22, 2004, Plaintiff "paid Trustee $29,993.16 which represents payment in full of Ch. 13 Plan." (Pl. Ex. A, p. 14). On July 26, 2004, Plaintiff commenced this action in this Court. Plaintiff was discharged from bankruptcy on December 27, 2005, and a final decree closing the bankruptcy case was entered on January 19, 2006. (Id.).

In order to prove that the evidence was newly discovered for purposes of a motion for reconsideration, Defendants must show that "through the exercise of due diligence, the evidence was not and could not have been discovered in time to produce it for trial." Hewlett-Packard Fin. Servs. v. Metairie House of Printing, Inc., 2005 U.S. Dist. LEXIS 33464 (D.N.J. 2005)(evidence not newly discovered when it would have been available "well before the action commenced," movant submitted no affidavits or other proof to indicate that they used due diligence to find the documents or that they could not have previously discovered them)(citing Compass Tech. v. Tseng Lab., 71 F.3d 1125, 1130 (3d Cir. 1995)). Defendants have not met their burden. They offer no evidence or explanation to support their assertion that they recently discovered that Plaintiff failed to notify the Bankruptcy Court of this action. Likewise, Defendants fail to provide any reason why this fact was not discovered prior to their motion for summary judgment. The bald assertion that they "recently discovered" records relating to Plaintiff's bankruptcy proceeding is insufficient to meet the standard for a motion for reconsideration based upon newly discovered evidence.

Because Defendants cannot show the evidence was newly discovered, and there has been no intervening change in the law or allegation of a clear legal error, Defendants must rely upon the theory the that the court must vacate its previous decision and dismiss the Complaint in order to prevent a manifest injustice. See North River Ins Co., 52 F.3d at 1218. To this end, ...


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