United States District Court, D. New Jersey, Camden Vicinage
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon the Motion for Partial
Summary Judgment and Dismissal of Medical Malpractice/
Professional Negligence Claims for Failure to Timely Provide
an Affidavit of Merit Pursuant to N.J.S.A. 2A:53A-29 [Dkt.
No. 29] by Defendants CFG Health Systems, LLC
(“CFG”) and Jan Segal, PhD. For the reasons set
forth herein, the Motion is GRANTED.
Christopher Kraus filed an Amended Complaint on December 4,
2015 alleging, in relevant part, a medical negligence claim
against CFG only in Count 6 [Dkt. No. 12]. There is no
allegation of medical negligence against Defendant Segal and,
therefore, summary judgment as to Count 6 against her is
filed an Answer on February 10, 2016 [Dkt. No. 19]. In
relevant part, Defendant CFG pleaded the failure to state a
claim and demanded the service of an Affidavit of Merit. By
statute, the 120-day time period for service of a timely and
appropriate Affidavit of Merit in this matter expired on June
9, 2016. On June 13, 2016, a day after Defendants filed the
instant motion, and four days beyond the 120-day period,
Plaintiff served an Affidavit of Merit [Dkt. No. 30].
Jersey “Affidavit of Merit” statute, N.J.S.A.
2A:53A-26 through 29, provides in pertinent part:
In any action for damages for personal injuries, wrongful
death or property damage resulting from an alleged act of
malpractice or negligence by a licensed person in his
profession or occupation, the plaintiff shall, within 60 days
following the date of filing of the answer to the complaint
by the defendant, provide each defendant with 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. The court may grant no more than one additional
period, not to exceed 60 days, to file the affidavit pursuant
to this section, upon a finding of good cause.
N.J.S.A. 2A:53A-27 (emphasis added).
60-day extension for good cause permissible under the statute
must be applied for and granted, and the Affidavit of Merit
must be served within 120 days of the filing of the Answer.
Lee v. Thompson, 163 F. App'x 142, 143 (3d Cir.
2006) (citing Burns v. Belafsky, 166 N.J. 466,
is no dispute that Plaintiff filed the Affidavit of Merit
outside the 120-day period. Further, there is no dispute that
Plaintiff did not seek a 60-day extension within the 120-day
period. Indeed, Plaintiff has never sought such extension.
Rather, Plaintiff responds with three arguments. First, he
substantially complied with the provisions; second, an
Affidavit of Merit is not required as a matter of law; and
third, CFG must answer to Plaintiff's civil rights claim
anyway so the purpose of an Affidavit of Merit “will
not be advanced.” The Court rejects the last argument
the substantial compliance argument, Plaintiff's efforts
to lay the blame at the feet of CFG are without merit. The
record reveals the following events. On March 15, 2016,
Plaintiff served a subpoena for medical records;
Plaintiff's counsel's cover letter indicated that the
subpoena was addressed to “Custodian of Records, Camden
County Correctional Facility.” The subpoena was
returnable April 5, 2016. Pl. Opp. Ex. A [Dkt. No. 33-4].
That same day, counsel for CFG, via e-mail, stated to
Plaintiff's counsel: “If and when you provide a
signed HIPAA authorization form for release of records, I
will obtain and provide records from Camden County.”
Pl. Opp. Ex. B. On April 13, 2016, Plaintiff's counsel
advised that the records were “vital to the preparation
of Plaintiff's Affidavit of Merit.” Pl. Opp. Ex. C.
Plaintiff did not seek a 60-day extension as required under
the statute. Plaintiff's counsel further stated “I
assume you have no problem with Plaintiff supplying the
Affidavit of Merit within forty-five (45) days after receipt
of those records.” Id. Counsel for CFG
responded, in relevant part, “With respect to
time-frame for service of the Affidavit of Merit, that is a
matter of statutory law.” Pl. Opp. Ex. D. One week
later, on April 20, 2016, - with the medical records in
Plaintiff's possession - Plaintiff's counsel wrote
that he was having difficulty reviewing some of the notes and
that he may need transcriptions by CFG, but that he would go
through the records “[p]robably over the weekend”
and get back to CFG's counsel. Pl. Opp. Ex. E; Defs.
Reply Ex. 10 [Dkt. No. 34-5].
Defendants heard no word from Plaintiff or his counsel
between April 20, 2016 and June 9, 2016. Even assuming a
60-day extension, the 120-day period expired June 9, 2016.
The day after the expiration of the 120-day period,
Plaintiff's counsel provided CFG's counsel with a few
pages that needed transcription. Pl. Opp. Exs. G-H. Three
days later, on June 13, 2016, Plaintiff filed the Affidavit
of Ryan D. Herrington, MD/MPH [Dkt. No. 30]. CFG's
counsel sent Plaintiff's counsel the requested
transcriptions on June 13 and 14, 2016. Defs. Reply Exs.
19-21 [Dkt. No. 34-8].
clear that had Plaintiff promptly advised CFG of the records
requiring transcription, more than enough time existed to
file the Affidavit of Merit, again assuming Plaintiff sought
a 60-day continuance, which he did not. There is no evidence
in the record to account for the extensive delay between
April 20, 2016, when Plaintiff advised that he would tell CFG
which transcriptions were necessary, and June 9, 2016.
Moreover, CFG provided the transcriptions within three days
once it received the request. Clearly, CFG acted promptly,
and the record is devoid of any evidence to support
Plaintiff's position for the delay. Finally, Plaintiff
has produced no evidence to support the notion that the
transcriptions were key to the preparation of the Affidavit
of Merit. The record suggests they were not. For these
reasons, Plaintiff's argument as to substantial
argument that no Affidavit of Merit is required as a matter
of law fares no better. There is a “common
knowledge” exception to New Jersey's Affidavit of
Merit requirement. Bender v. Walgreen E. Co., 399
N.J.Super. 584, 590 (App. Div. 2008). “The [common
knowledge] doctrine . . . is appropriately invoked when the
‘carelessness of the defendant is readily apparent to
anyone of average intelligence and ordinary
experience.'” Id. (quoting Estate of
Chin ex rel. Chin v. St. Barnabas Med. Ctr., 160 N.J.
454, 469-70 (1999) (quoting Rosenberg by Rosenberg v.
Cahill, 99 N.J. 318, 325 (1985))).
argue that it is not common knowledge that mental health
providers in a jail setting are responsible for continuing
drug withdrawal regimens, especially given that such
providers cannot lawfully prescribe medications. In other
words, this is not a situation where jurors, using ordinary
experience and understanding, would be able to determine a
defendant's negligence without the benefit of the
specialized knowledge of experts. The Court ...