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Kirkland-Rodriguez v. Cooper University Health Care

United States District Court, D. New Jersey

November 29, 2017


          ADAM S. MALAMUT, LIEBLING MALAMUT & SUNKETT, LLC, On behalf of Plaintiffs

          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.


          NOEL L. HILLMAN, U.S.D.J.

         This is 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, [2] Dr. Raymond Green, Dr. Joseph Lombardi, Dr. Anthony Colacino, and Dr. Koko move for summary judgment based on an allegedly insufficient Affidavit of Merit.[3] 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.


         Plaintiffs 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, 2016.

         On 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] Kirkland-Rodriguez.

         On 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.

         On 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.


         The 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 Constitution.

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).

         “[W]here 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.


         Summary 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).

         An 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).

         Initially, 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)).

         Once 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 257.


         The Court initially notes Defendants' summary judgment motion is unopposed.[4] 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 ...

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