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Ines Lomando As Administratrix Ad Prosequendum of the Estate of v. United States of America

March 18, 2011


The opinion of the court was delivered by: Wolfson, United States District Judge:



Presently before the Court are several motions for summary judgment brought by Defendants Riverview Medical Center, the United States, and, collectively, by Drs. Reynolds, Talbert, and Emergency Physician Associates of North Jersey, P.C., pursuant to Federal Rule of Civil Procedure 56(c), to dismiss the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., medical malpractice, and wrongful death claims brought by Plaintiff Ines Lomando, as administratrix ad prosequendum for the estate of Laura Lomando. For the reasons that follow, the Court grants each summary judgment motion. Granting of the United States' motion deprives this Court of federal question jurisdiction over the sole remaining defendant, Dr. Hyppolite, who has not moved for summary judgment. The Court declines to exercise supplemental jurisdiction over that defendant.


The following facts are undisputed by the parties. In August and September of 2006, Laura Lomando ("Laura"), daughter of Plaintiff, sought and received treatment at the Parker Family Health Center ("Parker Health"), a New Jersey non-profit health clinic, for an enlarged gland in her neck. The treatment she received was provided by Drs. Zaven Ayanian, Lynn Helmer, and Timothy Sullivan, who each served as volunteer physicians at the clinic. On September 12, 2006, one of these doctors recommended that Laura undergo a biopsy of her enlarged gland in order to determine if it was cancerous. Unfortunately, before the biopsy was completed, Laura passed away on September 21, 2006, while under the care of a local hospital, the Riverview Medical Center ("Riverview"). She died of complications of Non-Hodgkins Lymphoma, a form of cancer.

Prior to her death, in September 2006, Laura also received treatment at Riverview's emergency room. She visited the emergency room on September 3, 5, 15, and 20, 2006. During those emergency room visits, she was treated by Theresa Biendenbach, P.A., Dr. Stephanie Reynolds, and Dr. Trevor Talbert. Laura presented with several symptoms on these dates, including chest tightness, nausea, diarrhea, chest pain, fever, swelling, and an enlarged lymph node on the left side of her neck. During the September 3, 5, and 15th visits, no doctor or physician assistant diagnosed her with cancer. Rather, several other diagnoses were offered, including meningitis. At her final visit on September 20, 2006, she presented with symptoms attributable to spontaneous tumor lysis syndrome. Dr. Reynolds ordered diagnostic tests for Laura and admitted her into the hospital under Dr. David Hyppolite's care. Dr. Hyppolite treated her on September 20 and 21st, until her death.

Plaintiff, as administratix for the estate of her daughter, Laura, subsequently brought the instant malpractice and wrongful death action, asserting a claim under the FTCA against the United States along with claims against Riverview Medical Center, Dr. Reynolds, Dr. Talbert, Dr. Hyppolite, Parker Family Health Center, and Emergency Physician Associates of North Jersey, P.C.. In support of her claims, Plaintiff retained two experts: Drs. Fialk and Hayes. Dr. Failk, an internal medicine, hematology, and oncology specialist, prepared an expert report opining that the acts and omissions of Drs. Ayanian, Helmer, Talbert, and Reynolds contributed to Laura Lomando's death. See Sarrol Cert., Exh. S. Dr. Hayes, an otolaryngology specialist, prepared a report focusing on the acts and omissions of Dr. Sullivan. See id. at Exh. U.

Each of the remaining defendants, with the exception of Dr. Hyppolite, have moved for summary judgment on Plaintiff's claims.*fn1 The Court previously granted summary judgment in favor of Parker Family Health Clinic. The Court now rules upon the motions brought by Riverview Medical Center, the United States, and, collectively, by Drs. Reynolds, Talbert, and Emergency Physician Associates of North Jersey, P.C.. Each of these motions will be granted, for the reasons that follow.


"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56(c). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.


There are several pending motions for summary judgment. First, Defendant Riverview Medical Center moves for summary judgment based on Plaintiff's failure to provide expert reports or testimony in support of Plaintiff's claim against it. Second, the United States moves on immunity grounds. Finally, Drs. Reynolds and Talbert, along with Emergency Physician Associates of North Jersey, P.C. (collectively, "ER Defendants") move for failure to comply with N.J.S.A. 2A:53A-41 or, in the alternative, move to disqualify Plaintiff's expert reports on net opinion grounds. I address each motion in the order in which they were filed.

A. Riverview Medical Center's Motion for Summary Judgment

Defendant Riverview Medical Center moves for summary judgment on Plaintiff's claim for failure to provide expert reports. As Defendant correctly argues, to establish a prima face case of malpractice in New Jersey, "a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury." Gardner v. Pawliw, 150 N.J. 359, 376 (1997). See also Gonzalez v. Silver, 407 N.J.Super. 576, 587 (App. Div. 2009). The same holds true for a wrongful death claim. See Phillips v. Gelpke, 190 N.J. 580, 591 (2007) (citing with approval case holding that expert testimony is necessary in wrongful death action). The only exception to this rule is where the breach of duty is not "so esoteric that jurors of common judgment and experience [can] form a valid judgment" without the need of expert testimony. Id. (quoting Scully v. Fitzgerald, 179 N.J. 114, 127 (2004)).

Plaintiff does not dispute that she has failed to provide any expert testimony against Riverview. Indeed, Plaintiff does not substantively challenge Riverview's motion in any way. Nor does she assert that the common knowledge exception applies. Rather, in her opposition papers, Plaintiff sought leave to complete depositions of the experts before Riverview's motion was decided.*fn2 The date for completing expert depositions has now passed, and the Court has not received any further submission from Plaintiff suggesting that any deposition testimony supports Plaintiff's claim against Riverview. Accordingly, Riverview's motion for summary judgment is granted.

B. The United States' Motion for Summary Judgment

The United States asserts two immunities in support of its motion for summary judgment-the New Jersey Charitable Immunities Act, N.J.S.A. 2A:53A-7, et seq. ("NJCIA"), and the federal Volunteer Protection Act, 42 U.S.C. §§ 14501-14505. In connection with both immunities, the United States contends that, pursuant to 28 U.S.C. § 2674, it is entitled to claim any immunity available to the volunteer physicians at Parker Health. For the reasons that follow, the Court agrees that the United States may claim any such immunities and, specifically, finds that the United States is entitled to immunity under the NJCIA.

1. The United States as the Physicians' Deemed Employer

Plaintiff's FTCA claim is based on the role of the United States as employer, for FTCA purposes, of the volunteer physicians at Parker Health. This mechanism is concisely explained by the Sixth Circuit in Wilson v. Big Sandy Health Care, Inc., 576 F.3d 329 (6th Cir. 2009), an opinion in which the court details how the Federally Supported Health Centers Assistance Act of 1992 operates to create the legal fiction of federal employee status for volunteer physicians:

Pursuant to the provisions of 42 U.S.C. § 254b(c)(1)(A), the government "may make grants to public and nonprofit private entities for projects to plan and develop health centers which will serve medically underserved populations." In part due to the relatively high cost of obtaining malpractice insurance for treatment of such high-risk patients, however, the efforts to provide necessary medical care in such underserved areas initially faced significant roadblocks. To alleviate the financial burden on the medical providers, Congress passed the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233, through which practitioners at certain health centers providing necessary medical services "shall be deemed to be ... employee[s] of the Public Health Service." 42 U.S.C. § 233(g)(1)(A). By virtue of being "deemed" federal employees, personal injury, negligence, and malpractice suits against such individuals and centers are circumscribed by the limitations imposed by the Federal Tort Claims Act. See 42 U.S.C. §§ 233(g)(1)(A) and 233(a).

Id. at 333. The Federally Supported Health Centers Assistance Act of 1992 is an amendment to the Public Health Service Act ("PHSA"), which is codified at 42 U.S.C. § 233. Santos ex rel. Beato v. U.S., 559 F.3d 189, 192 (3d Cir. 2009).

At the time of its passage, this statute complemented the 1988 "Westfall Act, also known as the Federal Employees Liability Reform and Tort Compensation Act," which amended the FTCA to "provide[ ] federal employees acting within the scope of their employment absolute immunity from damage liability on state law tort claims." Brumfield v. Sanders, 232 F.3d 376, 379 (3d Cir. 2000). Through the interplay of the FTCA and PHSA, as amended, Congress "direct[s] how suits could be prosecuted against those entities doing the work of the federal government by providing goods and services." Id. at 335; Bogues v. U.S., 703 F.Supp.2d 318, 324 (S.D.N.Y. 2010) (citing 42 U.S.C. § 233(g)-(n)).

The purpose underlying PHSA's extension of FTCA coverage to certain nonprofit health centers that reach medically underserved populations, and their physician volunteers, is to assist nonprofit health centers in reducing their malpractice insurance costs so that "more funds are available for direct service to underserved populations ...." Lacey-Echols v. Murphy, Civ. No. 02-2281, 2003 U.S. Dist. LEXIS 27415, * 13 (D.N.J. Dec. 17, 2003). See also Wilson, 576 F.3d at 333 (noting that the Act was passed "[t]o alleviate the financial burden [of obtaining malpractice insurance] on the [nonprofit health center] medical providers"). Volunteers that serve these nonprofit health centers are deemed employees of the Public Health Service in furtherance of this goal, and to protect the volunteers from suits related to their medical and surgical functions. Cf. Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (discussing general purpose of § 233(a)).

Pursuant to the FTCA, plaintiffs may sue the United States in federal district court for damages: for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b)(1); 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions [of the FTCA] relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ...."). See Santos, 559 F.3d at 193. "In order to bring an FTCA action against the United States for medical malpractice committed by a health center or one of its [volunteer] physicians, the health center or physician must have been deemed to be a federal employee at the time of the alleged wrongful conduct." Bogues, 703 F.Supp.2d at 324.

Here, by way of a letter from the United States Department of Health and Human Services dated January 27, 2006, the aforesaid volunteer physicians were deemed employees of the Public Health Service ("PHS employees") for FTCA purposes. Nicosia Decl., Exh. 6 at 1-2 (stating that Drs. Ayanian, Helmer, and Sullivan are "deem[ed] . . . employees of the [Public Health Service] for purposes of Federal Tort Claims Act (FTCA) medical malpractice liability coverage, effective January 1, 2006 . . . [and] for the remainder of the calendar year ...."). Both parties agree that this designation is permitted by, and consistent with the dictates of, the PHSA.*fn3

The parties, further, agree that the FTCA provides that the governing law is that of where the challenged act occurred; the FTCA does not create a substantive cause of action but "confers a procedural remedy by which substantive state law can be applied against the federal government." Nazzaro v. United States, 304 F.Supp.2d 605, 616 (D.N.J. 2004) (quoting Weber v. United States, 991 F.Supp. 694, 696 (D.N.J. 1998)) (alterations omitted). See FDIC v. Meyer, 510 U.S. 471, ...

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