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Diana v. United States

United States District Court, District of New Jersey

February 20, 2015

United States

AnnMarie Mulcahey Leikauf, Esq. Counsel for Plaintiff

Michael E. Campion, Esq. Counsel for Defendant


MADELINE COX ARLEO United States District Judge

Dear Counsel:

Before the Court is the United States’ motion for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(c) and 12(h)(2) [Dkt. No. 47]. The Court held oral argument on February 11, 2015, and granted the United States’ motion. This Letter Opinion & Order supplements the Court’s oral ruling.

I. Introduction

Richard D. Diana (“Plaintiff”) alleges in this case that Department of Veterans Affairs (the “VA”) doctors committed medical malpractice in connection with his hip replacement surgery performed on or about August 21, 2007. (See Dkt. No. 1, Compl., at ¶¶ 1-54). Plaintiff is a military veteran residing in Saddle Brook, New Jersey. (Id. at ¶¶ 3, 11). The VA is an agency of the United States that provides medical care to veterans, and Plaintiff sought treatment at the VA’s East Orange, NJ, Medical Center (the “East Orange Facility”) for his right hip condition. (Id. at ¶¶ 6, 11). On or about August 21, 2007, Plaintiff alleges that he underwent hip replacement surgery at the East Orange Facility, which resulted in the implantation of a “metal-on-metal” cup device manufactured by Zimmer. (Id. at ¶¶ 12-14). Plaintiff alleges on information and belief that it was common knowledge within the medical community that this particular hip implant suffered from serious difficulties and, further, that the device used in Plaintiff’s surgery was both voluntarily recalled and subjected to mandatory recall by the FDA. (Id. at ¶¶ 15-17). Plaintiff additionally claims that VA doctors did not sufficiently apprise him of the risks associated with the implant and that he did not consent to its implantation. (See id. at ¶¶ 18-19, 46-49).

Plaintiff further alleges that, immediately following the surgery, he suffered significant blood loss, experienced “pain, difficulty walking, sensation of movement of the device, unsteady gait, ” and had a right leg that was now shorter than his left. (Id. at ¶¶ 21-23, 26). Plaintiff claims that although the VA doctors assured him that he simply needed time to heal, he eventually was forced to undergo corrective surgery on or about August 29, 2008, to replace the implant as a result of “right total hip loosening.” (Id. at ¶¶ 27-31). Plaintiff states that the complications arising from his right hip replacement have resulted in, inter alia, (1) termination from his employment; (2) multiple subsequent surgeries; (3) infections and continued pain; and (4) inability to pay medical bills and other expenses. (See id. at ¶¶ 33-45).

Prior to bringing suit, Plaintiff timely pursued his claims via the administrative process, and his claims were ultimately denied on June 20, 2012. (Id. at ¶¶ 8-9). Plaintiff then filed the instant Complaint on December 20, 2012. The United States ultimately answered the Complaint on December 10, 2013. (Dkt. No. 31, Answer). The instant motion was then filed on September 11, 2014. The United States asserts that the Complaint must be dismissed with prejudice in light of Plaintiff’s failure to file an affidavit of merit as required by New Jersey law under N.J.S.A. § 2A:53A-26-29 in any case involving a claim of professional malpractice. Plaintiff argues in opposition that he was not required to file an affidavit of merit because, inter alia: (1) the United States had actual knowledge of the malpractice; (2) under the common knowledge doctrine, no affidavit was needed because the malpractice would be apparent to a layperson; and (3) extraordinary circumstances excuse the failure to file the affidavit. For the reasons that follow, this Court agrees with the United States, and this case must therefore be dismissed with prejudice.

II. Discussion

A. Standard of Review Under Rule 12(c)

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the pleadings after pleadings have closed. Rule 12(h)(2)(B), in turn, allows a defendant to raise the defense of failure to state a claim on which relief can be granted “by a motion under Rule 12(c).” Accordingly, when a defendant moves for judgment on the pleadings on the basis of that defense, the motion “is analyzed under the same standards that apply to a Rule 12(b)(6) motion.” Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010).

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading is sufficient so long as it includes “a short and plain statement of the claim showing that the pleader is entitled to relief” and provides the defendant with “fair notice of what the . . . the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotations omitted). In considering a Rule 12(b)(6) motion to dismiss, the court accepts as true all of the facts contained in the complaint and draws all reasonable inferences in favor of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). While this standard certainly places a considerable burden on the party seeking dismissal, the facts alleged must be “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. That is, the allegations in the complaint “must be enough to ...

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