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Owens v. Feigin

June 21, 2007

BRIAN SCOTT OWENS, SR., AND SHANNON EILEEN OWENS, HUSBAND AND WIFE, AS INDIVIDUALS, AS GUARDIANS AD LITEM FOR THEIR MINOR CHILDREN, BRIAN SCOTT OWENS, JR., B. MONTANA OWENS, AND LANE FINLEY OWENS, AS GENERAL ADMINISTRATORS OF THE ESTATE OF MATTHEW OWENS, AND AS ADMINISTRATORS AD PROSEQUENDUM FOR THE ESTATE OF MATTHEW OWENS, DECEASED, PLAINTIFFS-APPELLANTS,
v.
GERALD FEIGIN, M.D., DEFENDANT-RESPONDENT, AND WILLIAM D. BOLLETINO, JR., WILLIAM D. BOLLETINO, SR., SUSAN D. BOLLETINO, THEODORE WOODSIDE, WOODSIDE FUNERAL HOME, HONDA NORTH AMERICA, INC., DEFENDANTS.*FN1



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1318-06.

The opinion of the court was delivered by: Weissbard, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 15, 2007

Before Judges Kestin, Weissbard and Graves.

This interlocutory appeal presents the narrow, but important, question of whether the notice requirements of the Tort Claims Act (TCA), N.J.S.A. 59:1-1, apply to claims asserted under the New Jersey Constitution and the New Jersey Civil Rights Act of 2004 (CRA), N.J.S.A. 10:6-2. We conclude that the TCA does not apply. As a result, the dismissal of plaintiffs' action must be reversed.

The limited nature of the issue before us makes it unnecessary to set out the details of plaintiffs' complaint, in which the "facts" underlying the several causes of action were set out in ninety-eight numbered paragraphs. It suffices for our purposes to note that plaintiffs' claims arose out of the tragic and untimely death of thirteen-year-old Matthew Owens on February 9, 2005. Defendant, Dr. Feigin was the medical examiner in Salem County and performed an autopsy on Matthew's body the day following his death. He concluded that the manner of death was "natural," caused by "cardiac arrhythmia" resulting from "congenital malformation of the left anterior descending coronary artery." Plaintiffs contend, however, that defendant "unilaterally botched the autopsy to help cover for a state trooper who was allegedly trying to avoid liability in connection with the decedent's death." In fact, Matthew collapsed while at the home of a friend whose father was the state trooper in question.

On January 22, 2006, slightly less than a year after Matthew's death, his parents, plaintiffs Brian and Shannon Owens, filed a Notice of Tort Claim (Notice) directed to the "New Jersey Department of Law and Public Safety, Division of State Police," and the "New Jersey Department of Law and Public Safety, Division of Consumer Affairs, New Jersey State Board of Medical Examiners." The Notice contained considerable detail, and with respect to defendant Feigin, stated the following:

Furthermore, based upon the conclusions reached by independent experts, information and belief, Brian and Shannon Owens believe that Gerald Feigin, M.D. conducted a deficient autopsy, lacking in detail and specificity, failing to search for all possible causes of Matthew Owens' death. Upon information and belief, Claimants believe that Dr. Feigin knew or should have known that Matthew Owens did not die of a congenital heart defect but of a separate and identifiable cause which demonstrated that he had suffered an injury at the home of, or while under the supervision of [State Trooper] Bolletino. Upon information and belief, Claimants believe that, for reasons unknown to Claimants at this time, Dr. Feigin acted to protect those who were potentially responsible for that death by issuing a false opinion and/or disposing of the brain stem, cerebellum and a part of the cerebrum. Whether acting alone or in concert with Trooper Bolletino and/or others, these acts and omissions resulted in preventing Mr. and Mrs. Owens from ascertaining the actual cause of the death of their son. Furthermore, this false and misleading finding has caused them additional distress, as they have been greatly concerned about the health of their three surviving sons and the possibility of them suffering the same fate as Matthew's, had Matthew actually had a congenital heart defect.

Plaintiffs' complaint was filed on February 9, 2006. It contained eight counts asserting the following claims: "negligence, recklessness, willful, wanton, intentional and malicious conduct" by all defendants except Honda Corporation (count one); defective product liability against Honda (count two); violation of plaintiff's civil rights under the CRA (count three); violation of the Consumer Fraud Act by certain defendants (count four); "emotional distress under circumstances of outrage" against all defendants other than Honda (count five); "suppression and spoliation" of evidence by defendants other than Honda (count six); loss of companionship (count seven); wrongful death (count eight).

Feigin moved to dismiss the complaint based upon plaintiffs having failed to file a Notice against him. That motion was granted by order of May 12, 2006, which also dismissed the wrongful death claims of all plaintiffs except the named administrator ad prosequendum. In granting the motion, the judge rendered a thoughtful and lengthy oral opinion, relying primarily on Velez v. City of New Jersey, 180 N.J. 284 (2004). Plaintiffs sought leave to appeal, which we denied on June 28, 2006. However, on September 21, 2006, the Supreme Court granted plaintiffs' motion for leave to appeal and summarily remanded the matter for us "to consider the appeal on the merits."

As we noted, plaintiffs' Notice was filed well beyond the ninety days allowed by the statute. N.J.S.A. 59:8-8. Further, plaintiffs never moved within the time allowed to file a late Notice. N.J.S.A. 59:8-9. Most importantly, the Notice was not directed to or served upon Feigin, the Salem County Medical Examiner's Office or Salem County. Thus, if the TCA notice requirements were applicable, plaintiffs' complaint was properly dismissed, including the count alleging violation of the CRA.

On appeal, plaintiffs argue that the TCA notice provisions do not apply to claims under our State Constitution or the CRA, while defendant contends that those time strictures do apply. No New ...


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