ESTATE OF DAVID ERIC YEARBY and VERONICA YEARBY, individually, and as Administratrix of the ESTATE OF DAVID ERIC YEARBY, Plaintiffs-Respondents,
MIDDLESEX COUNTY and PISCATAWAY TOWNSHIP, Defendants-Respondents, and ANGELA WARD, R.N.; NICOLE TUESDAY, LPN, and GIDEON THUO, R.N., Defendants-Appellants, and OFFICER MATHEW FINN; OFFICER DANIEL MARCINKO, OFFICER RAYMOND BOBEL; OFFICER KONSTANTINOS TRAVLOS; SERGEANT BRIAN SZUMOWSKI; LIEUTENANT RAYMOND BASON; OFFICER DANE REEVES; OFFICER KRIS PAZINSKI; OFFICER JOHN BARTLINSKI; OFFICER EUGENE MARRA; OFFICER MICHAEL DONLON; OFFICER CASTRO; LIEUTENANT KNIGHT and OFFICER MCGUIRE, Defendants.
Submitted September 13, 2017
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-5825-15.
Holtzman & McClain, PC, attorneys for appellants Angela
Ward, R.N., Nicole Tuesday, LPN and Gideon Thuo, R.N.
(Stephen D. Holtzman and Jeffrey S. McClain, on the brief).
BMB Law Firm, PC, attorneys for respondents Estate of David
Eric Yearby and Veronica Yearby (Daniel A. Malet and Jeffrey
V. Fucci, on the brief).
and Bradshaw, attorneys for respondent County of Middlesex
(Patrick J. Bradshaw, on the statement in lieu of brief).
& Associates, LLC, attorneys for respondent Township of
Piscataway (Marc D. Mory, on the statement in lieu of brief).
Judges Fuentes, Koblitz and Manahan.
David Eric Yearby, an alleged mentally ill man, died strapped
to a "restraint chair" in the Middlesex County
Adult Correctional Facility, approximately twenty-four hours
after he was arrested for assault and resisting arrest by the
local police department. The legal representative of his
estate filed a multi-count civil suit against a number of
public entities and their employees, including three nurses
employed by the Middlesex County Adult Correctional Facility.
joinder of issue, the nurses moved to dismiss with prejudice
the counts in plaintiffs' complaint alleging professional
and/or medical malpractice based on plaintiffs' failure
to file a timely Affidavit of Merit (AOM) as required by the
Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. The
trial court granted the nurses' unopposed motion.
two months later, plaintiffs, represented by substitute
counsel, moved to restore the counts dismissed by the court
based on the doctrine of substantial compliance and due to
"extraordinary circumstances." Plaintiffs'
substitute counsel argued that former counsel's failure
to take any action to comply with the requirements of the
Affidavit of Merit statute, including failing to oppose
defendants' motion to dismiss, constituted
"extraordinary circumstances" warranting a
dispensation from the draconian sanction of dismissal with
trial court granted plaintiffs' motion and restored the
counts in plaintiffs' complaint alleging professional
malpractice against the nurses. The court found plaintiffs
provided sufficient evidence to justify the application of
the equitable doctrine of substantial compliance to relax the
time restrictions of the Affidavit of Merit statute. The
court also found that plaintiffs' original counsel's
failure to comply with the requirements of the Affidavit of
Merit statute, including his failure to oppose the
nurses' motion to dismiss with prejudice the counts in
the complaint alleging professional malpractice, constituted
"extraordinary circumstances, " providing
plaintiffs with an additional, independent basis for relief
under the court's equitable powers.
leave granted, the nurses now appeal arguing the trial court
erred in finding plaintiffs established grounds to warrant
relief from the time restrictions established by the
Legislature in N.J.S.A. 2A:53A-27. We agree and
reverse. The record shows plaintiffs' original
counsel failed to take any measures to comply with the clear,
time-sensitive requirements of the Affidavit of Merit
statute. In fact, from his earliest interactions with the
judicial system, counsel behaved as if the civil complaint he
prepared and filed did not raise any claims based on the tort
of professional malpractice. The doctrine of substantial
compliance is not applicable when the record shows a complete
failure to take any measures to comply.
the equitable concept of "extraordinary
circumstances" has never been used to relieve an
attorney from the legal and ethical consequences of failing
to competently perform his or her professional
responsibilities. As the Supreme Court reaffirmed in its most
recent, comprehensive review of the subject, an
"'attorney inadvertence' will not, standing
alone, support a finding of extraordinary
circumstances[.]" A.T., slip op. at 24.
keenly aware of the seriousness of the allegations raised in
this civil action. The circumstances that plaintiffs allege
caused this young man's death are unimaginably horrific.
Those who are found civilly liable should be held
accountable. However, as established by the Legislature and
recognized by the Supreme Court, "an affidavit of merit
strikes at the heart of the cause of action[.]"
Paragon Contrs., Inc. v. Peachtree Condo. Ass'n,
202 N.J. 415, 422 (2009). Thus, neglecting to provide an
affidavit of merit after the expiration of the 120-day time
period in N.J.S.A. 2A:53A-27 "generally requires
dismissal with prejudice[.]" Ibid. Here, there
is no evidential basis to support the trial court's
decision to apply equitable principles to relax this
statutory time restriction.
recite only the facts necessary to decide the discrete issue
raised in this appeal.
evening of October 31, 2014, David Eric Yearby was arrested
by the Piscataway Police Department for assault and resisting
arrest. He was thereafter transported to the Middlesex County
Adult Correctional Facility (MCACF) where he was involved in
some kind of altercation. Once in the cell, Yearby attempted
to clog the toilet, requiring his removal from the cell to
permit maintenance staff to enter and unclog the toilet.
According to MCACF records, Yearby refused to leave the cell.
An "extraction team" consisting of specially
trained Corrections Officers physically removed Yearby from
the cell; he was handcuffed, restrained with a "spit
mask, " and placed in a "watch cell." The
Corrections Officers involved alleged that Yearby "was
throwing feces and urine from his cell toilet, while yelling
'I'll kill all y'all when I get out of
describe what allegedly occurred next by quoting directly
from the trial judge's letter-opinion dated September 16,
After the extraction, Mr. Yearby was placed in an inmate
restraint chair at approximately 7:25 PM and was placed in
the care of the facilit[y's] nursing staff. Defendant
[Angela] Ward, the nurse on duty[, ] stated that they checked
on Mr. Yearby in 15-minute intervals. Watch records indicate
that [d]efendant Ward conducted her last check on Mr. Yearby
at approximately 3:15 AM on November 2, 2014, however the
[c]ourt notes that the times recorded appear to have been
written over and the original time listed on that entry
appears to be 2:55 AM . . . At 3:23 AM a "Code
Blue" alert was called because Mr. Yearby appeared
unresponsive and EMTs were called. . . . The Middlesex County
Medical Examiner later determined the cause of death to be
"blunt force trauma of head and neck with cervical
fracture and spinal cord injury" but was unable to
identify the manner of death.
September 29, 2015, the Estate of David Eric Yearby and
Veronica Yearby individually and as Administratrix of the
Estate filed a complaint and demanded trial by jury against
nineteen individually named defendants, including Registered
Nurses Gideon Thuo and Angela Ward and Licensed Practical
Nurse Nicole Tuesday. All three of these defendants were
employees of the MCACF. Plaintiffs' complaint contained a
total of thirteen numbered counts and named all nineteen
defendants as civilly liable. Counts I to IV alleged
violations of the New Jersey Civil Rights Act, N.J.S.A.
10:6-1 to -2, predicated on defendants' "special
relationship" to and interactions with decedent as an
inmate. Counts V alleged negligence under the Tort Claims Act
(TCA), N.J.S.A. 59:1-1 to 12-3. Count VI alleged negligent
failure to train; Count VII alleged a gross neglect and a
deviation of the standard of care owed to decedent as a
"mentally disabled" individual; and Count VIII
alleged negligent supervision and negligent hiring.
do not make any specific allegations against defendants Thuo
and Ward until Count IX. Plaintiffs allege that Thuo
"represented to [decedent], [d]efendant Middlesex
County, and the general public that he devoted his full time
and professional attention to the use and employment of those
skills, and, applied the skills, judgment and expertise to
the medical needs of the general public and of the [decedent]
in particular." Plaintiffs further allege that nurse Thuo
provided "improper nursing care" that resulted in
"damages suffered" by decedent.
respect to defendant-nurse Ward, plaintiffs allege she
performed "improper nursing care" that caused
decedent to suffer damages. Plaintiffs also claim that
defendant Ward was negligent, careless, and was not
"adequately trained in nursing care, and care for an
inmate in an inmate restraint chair." Defendant Ward
also "[f]ail[ed] to conform with recognized standards of
care, exercised by nurses in the same specialty and the same
area[.]" Plaintiffs allege that these collective acts
and omissions by defendant Ward "constitute negligence
and/or carelessness and/or recklessness[, ]" as may
become apparent through "discovery."
allegations against defendant Nicole Tuesday, a licensed
practical nurse (LPN) are reflected in Count XI of
plaintiffs' complaint. Plaintiffs allege that defendant
Tuesday provided decedent with "improper nursing
care" resulting in damages. Counts XII alleges
"willful disregard" against all of the nineteen
named defendants; Count XIII is based on the Wrongful Death
Act, N.J.S.A. 2A:31-1 to -6, and again names all defendants.
In the Civil Case Information Statement (CIS) filed
contemporaneously with the complaint, plaintiffs' counsel
checked "No" in response to the question: "Is
this a professional malpractice case?"
January 20, 2016, defendants Thuo, Ward, and Tuesday filed an
answer to plaintiffs' complaint denying any civil
liability for the injuries suffered by decedent while in the
custody of the MCACF and asserted twenty-five affirmative
defenses. Of particular relevance to the issue raised in this
appeal, affirmative defense fifteen asserts: "that
[p]laintiff has failed to file an appropriate Affidavit of
Merit for claims of professional negligence against
[d]efendants Angela Ward, RN (Registered Nurse), Nicole
Tuesday, LPN (Licensed Practical Nurse), and Gideon Thuo, RN
(Registered Nurse), licensed persons pursuant to New Jersey