IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
April 20, 2009
KEVIN MCHUGH & JENEEN MCHUGH, PLAINTIFFS,
JUANITA JACKSON, ET AL., DEFENDANTS.
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.
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 to compel and request sanctions.
(Pls.' Br. Ex. L at 1.) Upon Gambro's continued noncompliance, Mr. Bender sent a similar letter on September 2, 2008, (Pls.' Br. Ex. N at 1), and, finally, on September 5, 2008, Mr. Gebauer sent to Plaintiffs copies of "the only relevant policies dealing with the issues of our case."*fn4 (Pls.' Br. Ex. P at 1.)
C. Affidavit of Merit
After more than a year of discovery non-compliance, on October 9, 2008, Gambro filed a motion to dismiss and/or for summary judgment [Docket Item 27],*fn5 arguing that Plaintiffs' claim against it fails as a matter of law on account of Plaintiffs' failure to file an affidavit of merit in accordance with N.J.S.A. 2A:53A-26, et seq. On October 17, 2008, Plaintiffs filed a sworn statement in lieu of an affidavit of merit pursuant to N.J.S.A. 2A:53A-28, in which they summarized the history of discovery problems reviewed above and stated that "Defendant's excessive delays have prevented Plaintiffs from procuring a timely Affidavit of Merit, despite Plaintiffs' many efforts to obtain this discovery earlier." (Bender Aff. ¶ 24.) On October 23, 2008, Plaintiffs filed the affidavit of Cheryl L. Lachman, a registered nurse, in which Ms. Lachman states that Gambro's conduct at issue herein "fell outside acceptable professional standards."*fn6 (Lachman Aff. ¶ 2.)
A. Standard of Review
Defendant Gambro has styled the motion presently under consideration alternatively as a motion to dismiss and as a motion for summary judgment. As the Court explained in Note 2, supra, both parties have treated the motion as one for summary judgment, submitting evidence outside the pleadings in support of their respective positions. As the parties themselves have treated Defendant's motion as a summary judgment motion, the Court follows their lead and will review the motion as one seeking summary judgment.
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Gambro argues that it is entitled to summary judgment as to Plaintiffs' claims against it because Plaintiffs failed to submit within sixty days of the filing of Gambro's Answer "an affidavit 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," in accordance with New Jersey's Affidavit of Merit statute. N.J.S.A. 2A:53A-27. For the reasons now explained, Gambro's motion will be denied.
The Affidavit of Merit statute's "essential goal is to put to rest unmeritorious and frivolous malpractice lawsuits at an early stage of litigation while allowing worthy claims to proceed through discovery and, if warranted, to trial." Knorr v. Smeal, 178 N.J. 169, 176 (2003). As the New Jersey Supreme Court has explained:
The statute imposes a set of procedural requirements in order for a plaintiff to maintain a professional malpractice action. First, the plaintiff must show that the complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to the "reasonable probability" of professional negligence. Second, the affidavit must be provided to the defendant within sixty days of the filing of the answer or, for good cause shown, within an additional sixty-day period. Third, the plaintiff's failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice.
Ferreira, 178 N.J. at 149-50 (citations omitted).
Critically, for purposes of deciding Defendant's motion, "[t]he statute also places certain burdens on the defendant to provide the documents necessary for the preparation of the affidavit by the plaintiff's expert." Id. at 150. Pursuant to N.J.S.A. 2A:53A-28,*fn7 "[i]n the absence of [a defendant's] compliance with a document request, the plaintiff may provide a sworn statement, in lieu of the affidavit, certifying that the necessary records were not made available." Ferreira, 178 N.J. at 150. As New Jersey courts have recognized, the statute's "safety valve" provision is necessary to prevent a defendant from "us[ing], as both a sword and shield, the absence of the very records it has failed to divulge" when seeking the dismissal of a complaint. Aster ex rel. Garofalo v. Shoreline Behavioral Health, 346 N.J. Super. 536, 543 (App. Div. 2002).
It is precisely this sort of impermissible dual use that underlies Gambro's motion for summary judgment. Between September 2007 and October 2008, Gambro failed to timely produce Ms. Jackson's medical records and its policies "regarding dialysis treatment and procedures at the facility, including transportation provisions . . . [and] schedules," (Pls.' Br. Ex. I at 3),*fn8 necessitating no fewer than nine letters from Plaintiffs' counsel repeatedly requesting that Gambro comply with its basic discovery obligations, and requiring Plaintiffs to file a motion to compel Gambro to produce the withheld documents. After more than a year of failing to timely produce the information Plaintiffs had requested, and before it had even complied in full (albeit exceedingly belatedly) with its obligations under Magistrate Judge Donio's March 31, 2008 Amended Scheduling Order, see Note 4, supra, Gambro filed the instant motion seeking dismissal based upon the absence of an affidavit of merit.
New Jersey courts have consistently recognized that such tactics cannot be employed to seek dismissal under the Affidavit of Merit statute,*fn9 as the statute's safety valve provision makes plain. See, e.g., Ferreira, 178 N.J. at 150 ("The Legislature did not intend to give medical malpractice defendants the power to destroy a meritorious malpractice action by refusing to provide the very records the expert would need to prepare [an] affidavit [of merit]"); Aster, 346 N.J. Super. at 543 ("A licensed professional should not be permitted to wrongfully withhold records and then also assert that the plaintiff has not stated a cause of action because the plaintiff has failed to provide an affidavit where the records are a necessary component in procuring such an affidavit"). In light of Gambro's failure "to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit," and Mr. Bender's affidavit persuasively attesting thereto, dismissal under N.J.S.A. 2A:53A-27 is inappropriate. See N.J.S.A. 2A:53A-28.
The Court will not dwell long on Gambro's unpersuasive arguments to the contrary. First, Gambro claims that its failure to timely produce the requested discovery was attributable to the fact that "pursuant to HIPPA regulations, Gambro had to obtain authorization from co-defendant, Juanita Jackson, in order to disclose her private medical information," (Def.'s Reply Br. at 1), and suggests that an absence of bad faith is relevant to the N.J.S.A. 2A:53A-28 analysis. The Court is unconvinced. Gambro's argument concerning the significance, for N.J.S.A. 2A:53A-28 purposes, of whether it acted in bad faith is contrary to New Jersey law,*fn10 see Aster, 346 N.J. Super. at 543 ("good faith or not, the end result of [defendant's] non-production was the lack of medical records and the lack of an affidavit of merit"), and, as in Aster, the upshot of Defendant's failure to produce the requested discovery was that Plaintiffs were unable to produce an affidavit of merit.*fn11 This is precisely the type of circumstance to which N.J.S.A. 2A:53A-28 is directed. See Ferreira, 178 N.J. at 154.
Gambro also argues that Plaintiffs should be foreclosed from availing themselves of N.J.S.A. 2A:53A-28 because in the numerous letters and motion practice which Gambro's protracted discovery noncompliance compelled Plaintiffs to undertake, Plaintiffs did not specify that the records they repeatedly asked Gambro to produce were necessary for the preparation of Plaintiffs' affidavit of merit. Gambro relies upon Scaffidi v. Horvitz, 343 N.J. Super. 552, 559 (App. Div. 2001), the first reported case applying N.J.S.A. 2A:53A-28, wherein the Appellate Division found that a plaintiff must "identify with specificity any medical records or other information he believes are needed to prepare an affidavit of merit, in order to trigger the running of the forty-five day period for a response."
A different panel of the Appellate Division later refused to hold a litigant to this requirement, which is not called for by the plain text of the statute itself, explaining that "the type of limitation established in Scaffidi would provide a wholly undeserved windfall to the non-producing party, which surely could have inferred, if not the particular use plaintiff intended to make of . . . [the] medical records, at least that they were being sought in respect of litigation or a claim." Aster, 346 N.J. Super. at 548-49 (emphasis added). In light of the New Jersey Supreme Court's subsequent emphasis on the fact that the Affidavit of Merit statute "places strong incentives on both plaintiffs' and defense counsel to act diligently," and its recognition that "[t]he statute was not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit," Ferreira, 178 N.J. at 785 (emphasis added), this Court predicts that the New Jersey Supreme Court would agree with the Aster court that the Scaffidi rule confers "a wholly undeserved windfall to the non-producing party," Aster, 346 N.J. Super. at 549, and would reject such a rule. The rule formulated in Scaffidi finds no support in the plain language of N.J.S.A. 2A:53A-28, was rejected by Aster, is inconsistent with the New Jersey Supreme Court's approach to the statute in Ferreira and Knorr, and is not called for under the circumstances of this case.
Finally, the Court rejects Gambro's argument that Plaintiffs' N.J.S.A. 2A:53A-28 affidavit is itself untimely. As the Appellate Division has held, "under a sensible reading of the statute, for purposes of determining the timeliness of an application to file a 'sworn statement' under N.J.S.A. 2A:53A-28, the application should relate back to the beginning of plaintiff's efforts to obtain the documents referred to in its application under that provision." Aster, 346 N.J. Super. at 545. Plaintiffs' efforts to obtain the unproduced documents trace back to August 20, 2007 -- before Gambro even filed its Answer to the Complaint -- when Plaintiffs issued their interrogatories and initial document production requests to Gambro. As in Aster, "these efforts, which [Gambro's] stonewalling thwarted, began well before the affidavit of merit filing deadline," id., meaning that Plaintiffs' N.J.S.A. 2A:53A-28 affidavit was timely filed.*fn12
For the reasons explained above, the Court will deny Gambro's motion for summary judgment. The accompanying Order is entered.
JEROME B. SIMANDLE United States District Judge