United States District Court, D. New Jersey
JERRYLINN KIRKLAND-RODRIGUEZ and DAVID ARCHORO VALENTIN, h/w, Plaintiffs,
COOPER UNIVERSITY HEALTH CARE; COOPER UNIVERSITY HOSPITAL; DR. EYTAN R. BARNEA, M.D.; DR. RAYMOND H. GREEN, D.O.; DR. JOSEPH V. LOMBARDI, M.D.; DR. DHRUV RATHOD, M.D.; DR. ANTHONY COLACINO, M.D.; and DR. KIAVASH KOKO, M.D., Defendants.
S. MALAMUT, LIEBLING MALAMUT & SUNKETT, LLC, On behalf of
CAROLYN R. SLEEPER, PARKER MCCAY P.A., On behalf of
Defendants Cooper University Health Care, Cooper University
Hospital, Raymond H. Green, D.O., Joseph V. Lombardi, M.D.,
Anthony Colacino, M.D., and Kiavash Koko, M.D.
L. HILLMAN, U.S.D.J.
a medical malpractice action in which Plaintiff Jerrylinn
Kirkland-Rodriguez alleges she suffered a bowel and aortic
injury from a hysteroscopy and a diagnostic laparoscopy
performed by the defendant physicians on November 5, 2013.
Defendants Cooper University Health Care, Cooper University
Hospital,  Dr. Raymond Green, Dr. Joseph Lombardi,
Dr. Anthony Colacino, and Dr. Koko move for summary judgment
based on an allegedly insufficient Affidavit of
Merit. For the reasons that follow, this Court
will grant summary judgment in favor of Dr. Green, Dr.
Lombardi, Dr. Colacino, and Dr. Koko. The Court will deny
summary judgment as to the Cooper Defendants.
filed their complaint in the New Jersey Superior Court, Law
Division on November 4, 2015, bringing negligence claims
against Dr. Barnea, Dr. Green, Dr. Lombardi, Dr. Rathod, Dr.
Colacino, and Dr. Koko, as well as against the Cooper
Defendants. This case was removed to federal court on July 1,
March 21, 2016, an Affidavit of Merit was filed by Dr. Gerald
V. Burke, M.D. The Affidavit stated: “I am a licensed
physician specializing in the field of reproductive
endocrinology, infertility and gynecology and I am duly
admitted to practice medicine in the State of New
Jersey.” It concluded:
[I]t is my professional opinion within a reasonable degree of
medical certainty that there is basis to proceed,
investigate, and conclude that the care, skill and knowledge
exercised by Dr. Eytan R. Barnea, the residents, and the
hospital staff in his treatment of Jerrylin[n]
Kirkland-Rodriguez fell outside of the accepted professional
standards and that such conduct was a substantial
contributing factor in bringing about the harm to Jerrylin[n]
August 5, 2016, Defendants Dr. Green, Dr. Lombardi, Dr.
Colacino, Dr. Koko, and the Cooper Defendants moved to
dismiss the complaint for failure to provide a sufficient
Affidavit of Merit.
March 16, 2017, this Court found the motion to dismiss for
failure to file an Affidavit of Merit implicated dispositive
factual issues outside of the pleadings and had to be
addressed on a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1.
Thus, the Court denied the motion to dismiss and directed
Defendants to file a motion for summary judgment. On April
13, 2017, Defendants Dr. Green, Dr. Lombardi, Dr. Koko, Dr.
Colacino, and the Cooper Defendants filed a motion for
summary judgment with the Court.
Court will exercise its discretion to decide this motion
under its supplemental jurisdiction. Removal of this case was
based on the substitution of the United States as a defendant
for Dr. Barnea. The Notice of Removal asserted that the
Federal Tort Claims Act was the exclusive remedy for tort
claims against the United States, and that the district
courts have exclusive jurisdiction over tort actions against
the United States under the Federal Tort Claims Act pursuant
to 28 U.S.C.§ 1346(b). Pursuant to the dismissal of the
United States from this action, the claim that formed the
basis of this Court's original jurisdiction is no longer
part of this action. Plaintiffs' remaining claims arise
under state law.
[I]n any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
28 U.S.C. § 1367(a). However, “[t]he district
courts may decline to exercise supplemental jurisdiction over
a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction.”
Id. § 1367(c)(3).
the claim over which the district court has original
jurisdiction is dismissed before trial, the district court
must decline to decide the pendent state claims unless
considerations of judicial economy, convenience, and fairness
to the parties provide an affirmative justification for doing
so.” Borough of W. Mifflin v. Lancaster, 45
F.3d 780, 788 (3d Cir.1995). Given that this case has
remained in federal court for over a year, the original
motion to dismiss was filed shortly after removal, the Court
ordered the submission of the pending summary judgment
motion, and no opposition to the motion has been filed, the
Court will exercise its supplemental jurisdiction to resolve
this motion. If the Court were to decline to resolve the
pending motion it seems beyond contention that the same
motion would simply be refiled in state court for
adjudication. Resolving the pending motion on the existing
record promotes judicial economy, convenience, and fairness
to the parties.
judgment is appropriate where the Court is satisfied that
“'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any, ' . . . demonstrate the absence of a
genuine issue of material fact” and that the moving
party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986) (citing Fed.R.Civ.P. 56).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. “In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in
his favor.'” Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004) (citing Anderson,
477 U.S. at 255).
the moving party bears the burden of demonstrating the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ' which it
believes demonstrate the absence of a genuine issue of
material fact.”); see Singletary v. Pa. Dep't
of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of
material fact, ‘the burden on the moving party may be
discharged by “showing” - that is, pointing out
to the district court - that there is an absence of evidence
to support the nonmoving party's case' when the
nonmoving party bears the ultimate burden of proof.”
(citing Celotex, 477 U.S. at 325)).
the moving party has met this burden, the nonmoving party
must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 324. A “party opposing
summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s].'”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001). For “the non-moving party to prevail, [that
party] must ‘make a showing sufficient to establish the
existence of [every] element essential to that party's
case, and on which that party will bear the burden of proof
at trial.'” Cooper v. Sniezek, 418 F.
App'x 56, 58 (3d Cir. 2011) (citing Celotex, 477
U.S. at 322). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party. Anderson, 477 U.S. at
Court initially notes Defendants' summary judgment motion
is unopposed. A plaintiff's “failure to
respond ‘is not alone a sufficient basis for the entry
of a summary judgment.'” Muskett v. Certegy
Check Servs., Inc., No. 08-3975, 2010 WL 2710555, at *3
(D.N.J. July 6, 2010) (quoting Anchorage Assocs. v. V.I.
Bd. of Tax Review, 922 F.3d 168, 175 (3d Cir. 1990)).
“The Court must still determine, even for an unopposed
summary judgment motion, whether the motion for summary
judgment has been properly made and supported and whether
granting summary judgment is ‘appropriate, ' as
required” by the ...