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McHugh v. Jackson

April 20, 2009


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


This matter is before the Court upon the motion of Defendant Gambro Healthcare, Inc. ("Gambro") to dismiss Plaintiffs' Complaint and/or for summary judgment on account of Plaintiffs' failure to timely file an affidavit of merit in accordance with N.J.S.A. 2A:53A-26, et seq. [Docket Item 27]. As the following discussion makes clear, Gambro filed this motion after its protracted failure, over the course of more than a year, "to provide plaintiff[s] with medical records or other records or information having a substantial bearing on preparation of the affidavit," N.J.S.A. 2A:53A-28, notwithstanding Plaintiffs' extensive efforts to secure such discovery from Gambro. Mindful of the recognition by the New Jersey Supreme Court that "[t]he Legislature did not intend to give medical malpractice defendants the power to destroy a [potentially] meritorious malpractice action by refusing to provide the very records the expert would need to prepare [an] affidavit [of merit]," Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 150 (2003), and for the reasons explained below, the Court will deny Gambro's motion.


A. Plaintiffs' Allegations

This case arises out of a motor vehicle accident that took place on July 6, 2005 in Cherry Hill, New Jersey. (Compl. ¶ 9.) According to the Complaint, Plaintiff Kevin McHugh was traveling southbound on the highway when Defendant Juanita Jackson, also driving southbound, "violently struck the rear of the plaintiff's vehicle[,] causing severe, permanent damages and injuries to the plaintiff." (Id.) Just prior to this accident, Plaintiffs allege, Ms. Jackson had been receiving dialysis treatment at Defendant Gambro's Cherry Hill facility, and prior to leaving Gambro's facility, she exhibited "signs and symptoms of being woozy, dizzy, and otherwise unable or unfit to drive a motor vehicle." (Id. at ¶ 13.) Plaintiffs allege that the car accident occurred as a result of Ms. Jackson's and Gambro's negligence.

B. Discovery

Plaintiffs commenced this action on June 26, 2007, asserting claims of negligence and loss of consortium against Ms. Jackson and Gambro.*fn1 Plaintiffs issued their interrogatories and document production requests to Gambro on August 20, 2007, and Gambro filed its Answer to the Complaint on September 27, 2007. (Bender Aff. ¶¶ 5-6.)*fn2 On September 20, 2007, approximately thirty days after Gambro was served with Plaintiffs' interrogatories and document requests,*fn3 Lee S. Bender, Esq., counsel for Plaintiffs, wrote to Jay A. Gebauer, Esq., counsel for Gambro, to remind Gambro that its responses were due, requesting that they be provided "within ten (10) days." (Pls.' Br. Ex. F at 1.) On October 2, 2007, having not received Gambro's discovery responses, Mr. Bender again wrote to Mr. Gebauer, stating that Gambro's responses were overdue, again requesting that they be provided "within ten (10) days in order to avoid the necessity of filing a motion." (Id. at 2.) Fifteen days later, on October 17, 2007, Mr. Gebauer responded to Mr. Bender's letter, stating, inter alia, that he believed that Gambro's "answers to interrogatories are not yet technically due in this case." (Id. at 3.) On October 22, 2007, Mr. Bender replied to Mr. Gebauer's letter, explaining:

Interrogatories and Request for Production of Documents were forwarded to you on August 20, 2007. I have written several letters requesting same. In order to avoid the necessity of filing a motion, please provide same within fifteen (15) days.

(Id. at 4.)

Gambro failed to provide the requested discovery within fifteen days. In addition, Mr. Gebauer failed to respond to Mr. Bender's multiple letters (of January 24, 2008 and February 12, 2008) seeking to schedule a deposition date with Gambro's corporate designee. (Id. at 5-6.) By February 29, 2008, Gambro still had not provided Plaintiffs with any of the requested discovery, and Mr. Bender again wrote to Mr. Gebauer, stating "if I am not in receipt of the discovery requested (and a deposition date for your corporate designee) in my letters of January 24th and February 12th and telephone calls to your office on February 1st and 13th by Friday, March 7, 2008, I will contact the Judge to set up a Motion to Compel and for Sanctions." (Id. at 7.)

Gambro provided none of the requested discovery by March 7, 2008, and Plaintiffs filed a motion seeking to compel discovery on that same date. (Pls.' Br. Ex. G at 1.) In response to Plaintiffs' motion, Magistrate Judge Donio convened a telephone conference on March 26, 2008, following which Judge Donio issued an Amended Scheduling Order on March 31, 2008, requiring Gambro to produce Ms. Jackson's medical file by April 9, 2008 and extending all pretrial factual discovery until May 30, 2008. (Docket Item 18 at 1.) On March 26, 2008, Plaintiffs issued a Supplemental Request for Production of Documents to Gambro, seeking, inter alia, all forms and literature provided by Gambro to Ms. Jackson "regarding dialysis treatment and procedures at the facility, including transportation provisions . . . [and] schedules," and Gambro's "policies and procedures for dialysis treatment at the facility . . . including transportation policies and procedures . . ." (Pls.' Br. Ex. I at 3.)

On April 8, 2008, Mr. Gebauer provided Plaintiffs with Ms. Jackson's medical file, but not with the remaining requested documents. (Pls.' Br. Ex. J at 1.) Following an exchange of telephone calls and letters in April and May, 2008, (Pls.' Br. Ex. K at 1), Mr. Bender wrote to Mr. Gebauer on August 5, 2008 regarding Gambro's failure to produce the documents requested in Plaintiffs' Supplemental Request for Production of Documents, stating:

It has been over four (4) months since court[-]ordered Supplemental Discovery Requests were propounded upon you.

We have received no responses. If I am not in receipt of answers within seven (7) days I will immediately file a motion ...

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