The opinion of the court was delivered by: Hillman, District Judge
Plaintiff, Serena Thomas, brings this wrongful death and survival action on behalf of decedent, Cornell W. Thomas ("Thomas"), alleging that Defendants were negligent and deliberately indifferent to Thomas's serious medical needs by failing to inform him of his diagnosis and treat his hepatitis C ("HCV") while he was incarcerated. Before the Court is a motion for summary judgment filed by Defendants Correctional Medical Services, Inc., William Andrade, James J. Neal, M.D., James Ruman, R.N., Rock Welch, Abu Ashan, M.D., Manuel Veloso, M.D., and Carol Gallagher N.P. (collectively, "CMS Defendants").*fn1
Their motion was joined by Defendant Alyn R. Caulk, M.D. (together with CMS Defendants, "Defendants"). For the reasons explained below, CMS's motion is granted in part and denied in part, and Dr. Caulk's motion is granted.
Plaintiff has alleged that Defendants were deliberately indifferent to Thomas's serious medical needs in violation of his Eighth Amendment rights and, therefore, this Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). We exercise supplemental jurisdiction over Plaintiff's related state law claims pursuant to 28 U.S.C. § 1367.
Thomas began serving a life sentence on November 4, 1977 at the age of twenty-six. While incarcerated, Thomas was diagnosed with diabetes and was required to take insulin on a daily basis. His medical history shows that his diabetes was poorly controlled. Tests taken in 1997 and 1998 showed that Thomas had elevated hemoglobin levels. By 1999, his lab results indicated a risk of serious complications from his diabetes such as nephropathy. In addition, Thomas had a history of anxiety, depression and cardiac problems.
On December 16, 1996, Thomas was diagnosed with HCV, but was not informed of his diagnosis at that time. He also tested positive for HCV again in February and May 1998. It was not until January 20, 2000, that Thomas was informed by Dr. Nicollette Turner that he had HCV. At that time, Dr. Turner discussed Thomas's HCV with him, as well as his elevated liver function test and a plan for additional testing. On February 3, 2000, Thomas was seen by Dr. Alyn Caulk who noted that Thomas had HCV and active liver disease. During this time, Thomas's tests continued to show that he had protein in his liver which is an indication of diabetic nephropathy.
On August 4, 2000, Thomas's test results showed evidence of cirrhosis of the liver. Although Thomas's liver function tests showed slight improvement on August 17, 2000, by October 2000, the results of an ultrasound showed that he had an enlarged spleen secondary to HCV. On February 14, 2001, Thomas was counseled about his HCV by a CMS nurse. Thereafter, on March 21, 2001, Thomas was seen again by Dr. Turner.
By March 2001, Thomas's liver function worsened and by April 26, 2001, a CT scan of Thomas's abdomen revealed cirrhosis with ascites*fn2 and liver masses. On June 5, 2001, Thomas met with Dr. Caulk and discussed his recent lab results and a proposed treatment plan. Dr. Caulk noted a possible mass but a follow-up CT directed biopsy did not reveal any lesion. A gastrointestinal consult was scheduled for June 20, 2001.
In January 2002, Dr. Caulk's notes indicate that Thomas had end stage liver disease and ascites. In March 2002, an ultrasound showed multiple masses in the liver and Thomas was seen by Dr. Gersten for cirrhosis and possible malignancy. On May 1, 2002, Thomas was seen by Dr. Ronayros who diagnosed him with liver cancer. The next day a CT scan was taken that showed multiple lesions. On July 5, 2002 after a phone consultation with Dr. Gersten, Dr. Ronsayro noted that the only plan of treatment was a liver transplant, and on July 11, 2002, Dr. Gersten recommended a "Levine shunt."*fn3 On July 18, 2002, Thomas was found unresponsive and was sent to Cooper Hospital where he died later that day.
The three-count Complaint in this action alleges claims for violation of Section 1983 against all Defendants, negligence against Defendants CMS, Andrade, Neal, Ruman, Welch, and Ahsan, and medical malpractice against Defendants Caulk, Veloso, and Gallagher.*fn4 Defendants now move for summary judgment on all three counts.
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "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." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
B. Statute of Limitations
Defendants argue that Thomas's claims should be dismissed because they are barred by New Jersey's two-year statute of limitations. See N.J.S.A. 2A:14-2 (establishing that a personal injury action must be commenced within two years after the cause of action has accrued); O'Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir. 2006) (statute of limitations applied in a 42 U.S.C. § 1983 case depends upon the underlying state statute governing personal injury claims). Specifically, they argue that as of 2000, but no later than 2001, Thomas knew or had reason to know that he had contracted HCV, but did not file his lawsuit until July 16, 2004. Plaintiff argues that Thomas's claims should not be dismissed because they were tolled by the class action lawsuit, Bennett v. CMS, No. 02-4993 (NLH), and the discovery rule. These arguments will be addressed in turn.
1. Tolling of Statute of Limitations Due to Filing of Class Action Lawsuit
The parties agree that the limitations period for Thomas's survival action is two years. Thomas does not dispute that his complaint was filed beyond the applicable limitations period, but argues that the statute of limitations was tolled by the filing of the class action lawsuit, Bennett v. CMS, on October 16, 2002.*fn5
Counsel for Thomas previously raised the same tolling argument in a prior case before this Court, Smart-El v. CMS, 04-3414 (NLH). In that case, the Court discussed the development of the tolling requirement. In American Pipe & Const. Co. v. Utah, the Supreme Court held that the filing of a class action complaint tolls the statute of limitations for all purported members of the class who timely intervene "where class action status has been denied solely because of failure to demonstrate that 'the class is so numerous that joinder of all members is impracticable.'" 414 U.S. 538, 552-53 (1974). This rule was extended in Crown, Cork & Seal Co., Inc. v. Parker to toll the statute of limitations "for all members of the putative class until class certification is denied." 462 U.S. 345, 354 (1983). "At that point, class members may choose to file their own suits or to intervene as Plaintiffs in the pending action." Id.; see also Yang v. Odom, 392 F.3d 97, 111 (3d Cir. 2004) (holding that "where class certification has been denied solely on the basis of the lead Plaintiffs' deficiencies as class representatives, and not because of the suitability of the claims for class treatment, American Pipe tolling applies to subsequent class actions"), cert. denied, Odom v. Yang, 544 U.S. 1048 (2005).
Here, a class action complaint was filed in Bennett v. CMS in which Thomas was a purported member of the requested class. The motion for class certification was denied by Order of this Court, dated May 14, 2008. American Pipe and Crown instruct us that after the denial of class certification, class members may be able to either file their own lawsuits or intervene.*fn6 Thomas, however, filed his complaint on July 16, 2004, almost four years before the Court denied class certification.
In Wyser-Pratte Management Co., Inc. v. Telxon Corp., the Sixth Circuit noted that "a number of district courts have held that a plaintiff who chooses to file an independent action without waiting for a determination on the class certification issue may not rely on the American Pipe tolling doctrine." 413 F.3d 553, 568 (6th Cir. 2005). The Sixth Circuit referred to this scenario as a "forfeiture" of the class action tolling doctrine and found that the purposes of American Pipe tolling are not furthered when plaintiffs file independent actions before a decision on the issue of class certification.*fn7 Id. at 569.
Among the decisions relied upon by the Sixth Circuit was In re WorldCom, Inc. Sec. Litig., 294 F. Supp. 2d 431, 452 (S.D.N.Y. 2003), which extolled the benefits of preventing the filing of additional lawsuits while a class certification is pending. Indeed, as the In re Worldcom court noted,
[m]any good purposes are served by such forbearance, as American Pipe and Crown, Cork themselves spell out. The parties and courts will not be burdened by separate lawsuits which, in any event, may evaporate once a class has been certified. At the point in a litigation when a decision on class certification is made, [plaintiffs] usually are in a far better position to evaluate whether they wish to proceed with their own lawsuit, or to join a class, if one has been certified. 294 F. Supp. 2d at 452, reconsid. denied, 308 F. Supp. 2d 214, 230 (S.D.N.Y. 2004); see also Yang, 392 F.3d at 111 (finding that "it has been well-settled that would be class members are justified --- even encouraged ...