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Estate of Yearby v. Middlesex County

Superior Court of New Jersey, Appellate Division

February 27, 2018

ESTATE OF DAVID ERIC YEARBY and VERONICA YEARBY, individually, and as Administratrix of the ESTATE OF DAVID ERIC YEARBY, Plaintiffs-Respondents,

          Submitted September 13, 2017

         On 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).

          The 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).

          Kelso and Bradshaw, attorneys for respondent County of Middlesex (Patrick J. Bradshaw, on the statement in lieu of brief).

          Dvorak & Associates, LLC, attorneys for respondent Township of Piscataway (Marc D. Mory, on the statement in lieu of brief).

          Before Judges Fuentes, Koblitz and Manahan.


          FUENTES, P.J.A.D.

         Twenty-seven-year-old 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.

         After 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.

         Nearly 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 prejudice.

         The 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.

         By 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.[1] 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.

         Likewise, 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.

         We are 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.

         We recite only the facts necessary to decide the discrete issue raised in this appeal.


         On the 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 here.'"

         We describe what allegedly occurred next by quoting directly from the trial judge's letter-opinion dated September 16, 2016:

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.

         On 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.

         Plaintiffs 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."[2] Plaintiffs further allege that nurse Thuo provided "improper nursing care" that resulted in "damages suffered" by decedent.

         With 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."[3]

         The 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?"

         On 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 Statutes, ...

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