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D.D v. University of Medicine and Dentistry of New Jersey; Rutgers

June 27, 2011

D.D., PLAINTIFF-RESPONDENT,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY; RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY,*FN1 DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3171-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2011

Before Judges Fuentes, Ashrafi and Newman.

In these consolidated appeals, defendants University of Medicine and Dentistry of New Jersey (UMDNJ) and Rutgers, The State University of New Jersey (Rutgers) (collectively defendants) appeal from the June 10, 2010 order granting plaintiff D.D. leave to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9.*fn2 We affirm.

The relevant factual background was summarized by Judge Alberto Rivas in his written opinion accompanying the June 10, 2010 order:

[Plaintiff] is the director of a community non-profit health organization. In November of 2009, [plaintiff] met with representatives of UMDNJ regarding her participation in Robert Wood Johnson's AIDS program's upcoming WORLD AIDS day observation in December of 2009. At that meeting, [plaintiff] disclosed personal health information and conveyed that she wanted the information to be kept confidential. She was further asked to be the keynote speaker at the World AIDS Day celebration and to provide a written biography. Although she accepted the invitation to participate, [plaintiff] did not provide the requested biography.

Subsequent to that meeting, in late November 2009, UMDNJ and Rutgers issued press releases regarding plaintiff's participation in the World AIDS day events. On November 24, 2009, [plaintiff] was sent information regarding the upcoming program from Ms. Theresa Fox of Rutgers University. After searching the internet, plaintiff discovered that her personal health information had been included in the press release and widely disseminated via Rutgers' and UMDNJ's websites, various newspapers, and other media sources. The Court notes that neither party has provided a copy of those releases and likely for good reason.

Upon discovering the press releases, [plaintiff] sent a letter to Robert Wood Johnson-UMDNJ and Rutgers ordering that they stop the dissemination of the confidential information. Thereafter, in December of 2009, [plaintiff] met with individuals associated with UMDNJ and Rutgers, including the Dean of Rutgers School of Nursing, William Holzemer, Dr. Argenta and attorneys. [Plaintiff] provides in her reply that she had counsel present with her at that meeting, Mr. Dwayne Warren, Esq. Apparently, [plaintiff] left the meeting with the impression that the parties wished to resolve the issue "informally." That impression was apparently based on apologies from individuals present on behalf of UMDNJ and Rutgers and assurances that the entities were investigating and addressing the issue.

Following the December 2009 meeting, [plaintiff] certifies that she suffered from increased severe stress and anxiety, hypertension, insomnia, respiratory insufficiency, blurred vision and a lack of concentration. [Plaintiff] attached an "order requisition form" from her physician, Dr. Nelson, in support of that representation. She also provides in her reply that she has experienced adverse effects on her personal and business relationships relating to the disclosure including an "exodus of some personnel" and difficulty in recruiting volunteers. Additionally, [plaintiff] certifies in her reply that she attempted to contact Mr. Warren on multiple occasions to no avail. For the record, [plaintiff's] current counsel also represented to the court that she attempted to contact Mr. Warren for purposes of this motion but he did not return her call.

Apparently the issues raised in the December 2009 meeting were not addressed as [plaintiff] expected. On April 7, 2010, she contacted her current counsel, Ms. Kleiner, and met with her on April 14th to discuss potential legal action. On April 15, 2010, Ms. Kleiner attempted to file Tort Claims Act Notices with UMDNJ and Rutgers. By way of letters attached to her certification, Ms. Kleiner was informed that UMDNJ considered the notice late and therefore barred and Rutgers requested additional information. Thereafter, [plaintiff] applied to this court on April 28, 2010 for an order allowing her to file late notices of tort claims with these entities. [(Footnote omitted).]

In addressing whether leave to file a late notice should be granted, the court quoted N.J.S.A. 59:8-9, which provides an exception to the ninety-day time limit from the date that plaintiff became aware of the injury which was fixed as November 24, 2009. N.J.S.A. 59:8-9 provides in relevant part:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8.

The trial court indicated that the motion was filed in April 2010 within the one year window provided by section 59:8-9. The trial court recognized that leave can be granted upon a finding of extraordinary circumstances and a lack of substantial prejudice to the public entities.

The trial court also recited the controlling case law which indicates that a determination of what will constitute extraordinary circumstances should be made on a case-by-case basis. O'Neill v. City of Newark, 304 N.J. Super. 543, 555 (App. Div. 1997).

With respect to plaintiff's cause, the court noted that she did what was expected of her to be done. As the trial court commented:

It appears that as soon as she discovered that UMDNJ and Rutgers had disseminated materials containing her private information, she sent those entities a letter notifying them of her concerns and contacted counsel, Mr. Warren. Counsel accompanied her to a meeting with representatives of those entities shortly thereafter in December of 2009, well within the 90 day notice period. After the meeting, [plaintiff] certifies that Mr.

Warren told her to provide him with certain information and documentation, which she did. She then continually attempted to follow-up with Mr. Warren on the progress.

This court is convinced that in accordance with the case law, [plaintiff] did everything she could to protect her rights and not simply within a reasonable time of the accrual of her claims, but within the 90 day notice period.

The court also pointed out that plaintiff's health condition following the incident deteriorated after the initial shock. She had "increased anxiety, acute stress respiratory insufficiency, insomnia, blurred vision, and a lack of concentration all resulting from the public dissemination of [plaintiff's] personal health information by the public entities." (Internal quotations omitted). This medical evidence was substantiated by her physician who noted "a worsening in her psychological and physical condition."

In evaluating whether or not extraordinary circumstances were present, the court was obliged to look at the totality of the circumstances. See R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006). In so doing, the trial court had this to say:

The collective impact of the circumstances includes the very nature of the injury sustained by [plaintiff] and the resultant impact on her life both personally and professional. Id. The public disclosure of medical information of an individual without consent is a severe violation of that person's right to privacy. This is particularly true when the very nature of that information may generate a strong social stigma against the individual. The court can only infer that the health information disclosed by Rutgers and UMDNJ involves a medical condition that has the potential to invoke public opprobrium. [Plaintiff] represented to the court that she has experienced deterioration in her psychological and physical health resulting from the act of the public entities and substantiated that assertion with some medical evidence. She also represents that she experienced negative impact in her personal and professional relationships with family, friends and colleagues including injury to her non-profit organization in the form of an exodus of some personnel and difficulty recruiting volunteers. [(Internal quotations omitted).]

The court concluded that there were "sufficient reasons to substantiate a finding of exceptional circumstances as required by ...


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