United States District Court, D. New Jersey
OPINION & ORDER
STANLEY R. CHESLER, U.S.D.J.
matter comes before the Court on the motion for partial
summary judgment, pursuant to Federal Rule of Civil Procedure
56, by Defendants John Hochberg, Valentine Okparaeke,
Sharmalie Perera, Deepa Rajiv, Anasuya Salem, Linda Macri,
and Rutgers-UCHC (collectively, “Defendants.”)
For the reasons stated below, the motion will be denied.
case arises from a dispute between Plaintiff, a prisoner in
the custody of the New Jersey Department of Corrections, and
Defendants, all state entities and employees, over
allegations of medical negligence. The Complaint asserts
three claims, of which two are federal constitutional claims
pursuant to 42 U.S.C. § 1983, and the third, a medical
negligence claim under New Jersey law. Defendants now move
for partial summary judgment on the state law claim,
contending, in short, that the claim is barred because
Plaintiff failed to comply with the requirements of N. J. S.
A. § 2A:53A-27 (the “AOM Statute.”) The AOM
Statute requires a plaintiff, in a professional malpractice
action for damages, to file an affidavit, known as an
affidavit of merit, within 60 days of the filing of the
Answer. There is no dispute that Defendants filed an Answer
in 2016, and Plaintiff has not filed an affidavit of merit.
opposition, Plaintiff makes two kinds of arguments in favor
of denying the motion: 1) the motion must be denied on the
grounds of equitable estoppel as well as laches; and 2) an
affidavit of merit is not required because the negligence
alleged falls within the common knowledge exception to the
affidavit of merit requirement.
outset, the Court notes that the Appellate Division has held
that “ the Affidavit of Merit Statute is not to be read
in a purely mechanical fashion.” Aster ex rel.
Garofalo v. Shoreline Behavioral Health, 346 N.J.Super.
536, 546 ( N.J.Super.Ct.App.Div. Jan. 18, 2002).
first argues that Defendants' motion should be denied on
equitable grounds because of two kinds of delay: 1) delay in
asserting their rights (laches/equitable estoppel); and 2)
delay in providing discovery necessary to obtain the
affidavit of merit. As to laches, Plaintiff observes that
Defendants filed a motion to dismiss in lieu of an Answer on
November 23, 2015 and a motion for summary judgment on August
12, 2016, but did not raise the issue of the missing
affidavit of merit until they filed the instant motion in
June of 2017. Plaintiff argues that Defendants sat on their
right to assert the affidavit of merit defense by waiting a
year and a half to raise it. In reply, Defendants argue that
their Answer, filed July 29, 2016, pleads the AOM Statute as
a defense, and that their delay has no bearing on
Plaintiff's obligations under the AOM Statute.
have either overlooked or misunderstood Plaintiff's
laches argument. Plaintiff cites the New Jersey Supreme
Court's decision in Knorr, where it held:
Additionally, we hold that defendant's motion to dismiss
is barred by the doctrine of laches. That doctrine is invoked
to deny a party enforcement of a known right when the party
engages in an inexcusable and unexplained delay in exercising
that right to the prejudice of the other party. Laches may
only be enforced when the delaying party had sufficient
opportunity to assert the right in the proper forum and the
prejudiced party acted in good faith believing that the right
had been abandoned.
Knorr v. Smeal, 178 N.J. 169, 180-81 (2003).
Defendants' reply brief discusses Knorr, but
overlooks the laches argument. It is true that Defendants
pled the AOM Statute defense in their Answer, but this does
not address their delay in actually asserting the defense in
a dispositive motion. In fact, Defendants' reply brief
offers nothing by way of explanation or excuse for their
delay. Defendants have offered no basis for this Court to
find that their delay is excusable or has a good faith
explanation. Nor do Defendants contend that they lacked
sufficient opportunity to assert the right before they did.
last element of laches required by Knorr is
prejudice to Plaintiff, and that requirement is easily
satisfied: if this Court enters judgment in Defendants'
favor on Plaintiff's claims, he has suffered great
prejudice. The Court finds that Plaintiff has shown that
Defendants have engaged in an inexcusable and unexplained
delay in exercising their rights and, pursuant to
Knorr, their motion for partial summary judgment is
barred by the doctrine of laches. This does not mean that
Plaintiff is excused from compliance with the AOM Statute; it
means only that the Court will not allow Defendants to
enforce their rights under the Statute at this time.
Plaintiff will be granted an additional 60 days from the date
of this Opinion to comply with the AOM Statute.
also argues that he has repeatedly attempted to obtain from
Defendants the records necessary to obtain the affidavit of
merit, and that Defendants only provided these records after
they filed the instant motion. In reply, Defendants do not
disagree with Plaintiff's factual assertions in this
regard. Instead, they point to N. J. S. A. § 2A:53A-28,
which excuses Plaintiff from providing the affidavit of merit
if he files a sworn statement attesting to Defendants'
failure to comply with his discovery request. Defendants
argue that this Court should reject Plaintiff's discovery
delay argument because Plaintiff did not avail himself of the
relief provided by N. J. S. A. § 2A:53A-28.
Court does not see what one has to do with the other.
Plaintiff has made an equitable argument that Plaintiffs
should not be allowed to profit from their delay in complying
with his discovery requests by withholding discovery until
they filed the instant motion for partial summary judgment.
Defendants responded with a legal argument which has
superficial relevance but which fails to address
Plaintiff's equitable point. Defendants have neither
disagreed with Plaintiff's assertion that they are
seeking to profit from their delays in complying with
discovery, nor countered Plaintiff's equitable argument.
Aster, under analogous circumstances, the Appellate
Division stated that:
‘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.” We agree. Indeed, it is [Defendant's]
attempt to use, as both a sword and shield, the absence of