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Estate of Conroy v. Cumberland County

United States District Court, D. New Jersey

September 21, 2018

THE ESTATE OF DAVID CONROY, et al., Plaintiffs,
v.
CUMBERLAND COUNTY, et al., Defendants.

          Conrad J. Benedetto, Esq. And John E. Kusturiss, Esq. Attorneys for Plaintiffs

          Shanna McCann, Esq. CHANCE & MCCANN LLC Attorney for County Defendants

          Stephen D. Holtzman, Esq. Jeffrey S. McClain, Esq. HOLTZMAN & MCCLAIN, PC Attorneys for Defendant CFG Health Systems LLC

          OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         I. INTRODUCTION

         This matter arises from the most recently-filed of six federal cases involving the unfortunate suicide death of an inmate, here David Conroy, while detained at the Cumberland County Jail.[1] In this case, Mr. Conroy's sister, Jenny Ferguson (“Plaintiff”), filed an action, as administrator of Mr. Conroy's estate and in her own right, against several defendants, including, CFG Health Systems, LLC (“CFG Health” or “CFG”), a medical health care provider at the Cumberland County Jail. As relevant here, the Complaint alleges, among other things, that CFG Health failed to properly screen Mr. Conroy for suicidal tendencies or other psychological and emotional problems and failed to properly monitor Mr. Conroy during his incarceration, which resulted in his tragic death.

         Pending before the Court is CFG Health's motion for summary judgment on Plaintiff's medical malpractice/professional negligence claims against CFG Health for failure to comply with New Jersey's Affidavit of Merit Statute (“the AOM Statute”), N.J.S.A. §§ 2A:53A-26 through -29, and the Patients First Act, N.J.S.A. § 2A:53A-41. The principal issues to be determined are: (1) whether Plaintiff's affiant, Dr. Lawrence J. Guzzardi, is an “appropriate licensed professional” under the AOM Statute and Patients First Act; and (2) if so, whether Dr. Guzzardi's affidavit is sufficient as to CFG Health. For the reasons discussed below, the Court finds that Dr. Guzzardi is an “appropriate licensed professional” and that his affidavit is sufficient. Accordingly, CFG Health's motion for summary judgment will be denied.

         II. BACKGROUND

         The relevant facts are not in dispute.[2] Prior to May 29, 2017, David Conroy was incarcerated at the Cumberland County Jail. [Docket Item 1 at ¶ 16.] On May 29, 2017, he was found “hanging” in his jail cell by another inmate. [Id. at ¶ 19.]

         On September 18, 2017, Plaintiff initiated this law suit against Cumberland County, Warden Richard T. Smith, Former Warden Robert Balicki, [3] John Doe Corrections Officers 1-10, and CFG Health. [See generally id.] In the Complaint, Plaintiff claims that, “upon the booking of David Conroy into the Cumberland County Jail, Defendants[, ] John Doe Corrections Officers 1-10, and representatives and/or employees of CFG were charged with the duty to diligently and faithfully carry out the functions of their respective jobs, training and skills and obligations to screen Mr. Conroy, not only for physical problems, but also to determine if Mr. Conroy presented a risk for any psychological and/or emotional problems, including suicide.” [Id. at ¶ 17.] Plaintiff also avers that, “Defendants, John Doe Corrections Officers 1 - 10, and representatives of Defendant CFG failed to properly screen David Conroy for any suicidal tendencies or any other psychological and/or emotional problems, and also failed to properly monitor Mr. Conroy during his incarceration. In doing so, the Defendants breached their legal duty to maintain a safe and suitable environment, and failed to keep David Conroy safe from injury and harm, thus causing David Conroy's death.” [Id. at ¶ 20.] According to the Complaint, “[t]he above-described acts and omissions by Defendants, John Doe Corrections Officers 1-10, and representatives of CFG demonstrated a deliberate indifference and conscious disregard for the psychological needs and overall safety of David Conroy, of which they were aware, or with the exercise of reasonable and appropriate care pursuant to their respective responsibilities should have been aware.” [Id. at ¶ 22.]

         Plaintiff asserts three claims for relief against CFG Health: Wrongful Death (Count Five) [id. at ¶¶ 49-54]; Survival Action (Count Six) [id. at ¶¶ 55-60]; and Negligence (Count Seven) [id. at ¶¶ 61-64.] With respect to these claims, Plaintiff essentially asserts that CFG Health (and the other Defendants) owed a duty to Mr. Conroy and other inmates at Cumberland County Jail “to properly screen and vet inmates for suicidal tendencies or other psychological problems, to adequately monitor inmates, and to protect inmates from injury, harm or death while in custody at the Jail, ” and that CFG Health (and the other Defendants) breached this duty by “fail[ing] to use the requisite standard of care for vetting, screening, monitoring and supervising inmates while in their custody and control. . . .” [Id. at ¶¶ 50-51; see also id. at ¶¶ 56-57, 62.]

         On October 4, 2017, Plaintiff filed an affidavit of merit signed by Dr. Lawrence J. Guzzardi, MD. [Docket Item 6.] Based upon the records he had reviewed and his own qualifications, which are discussed in more detail below, Dr. Guzzardi opined that “there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment of David Conroy while at the Cumberland County jail leading to his death on or about May 29, 2017, by CFG Health Systems, LLC, by and through it's [sic] employees, agents, and/or workman [sic] fell outside the professional care and treatment standards for prison inmates.” [Docket Item 25-6 at ¶ 6.]

         CFG Health fired an Answer on October 20, 2017. [Docket Item 8.] The Answer included separate defenses for failure to state a claim and for failure to file an appropriate AOM. [Docket Item 25-5 at 5-8.] As relevant here, in the Fifteenth Separate Defense, CFG Health stated:

Defendant asserts that Plaintiff has failed to file an appropriate Affidavit of Merit for claims of professional negligence against employees of CFG who participated in the care of Plaintiff David Conroy, including: April Munson, licensed advanced practice nurse (APN); Dr. Joanne Gonzalez, PHD (psychologist); Dr. Larry Pettis general family practitioner licensed physician in the State of New Jersey; Dr. Edward Hume licensed physician and board certified psychiatrist in the State of New Jersey; Dr. Alan Dias licensed physician in the State of New Jersey and board certified in Emergency Medicine; Amanda Caroccio, a licensed registered nurse (RN) in the State of New Jersey; Kristina Smith, a licensed registered nurse (RN) in the State of New Jersey; Caryn Bryan, a licensed registered nurse (RN) in the State of New Jersey; Holly Reed, a licensed practical nurse (LPN) in the State of New Jersey; Kaitlyn O'Brien, a licensed practical nurse (LPN) in the State of New Jersey; Darlene Cochran, a licensed practical nurse (LPN) in the State of New Jersey; Sherwanda Stewart, a licensed practical nurse (LPN) in the State of New Jersey; Rita Smith, a licensed practical nurse (LPN) in the State of New Jersey; Connie Riley, a licensed practical nurse (LPN) in the State of New Jersey; Jennifer Otera, a licensed practical nurse (LPN) in the State of New Jersey; Allyce Fedd-Haris, a licensed practical nurse (LPN) in the State of New Jersey; Melissa Sammartino, a licensed practical nurse (LPN) in the State of New Jersey; and CFG Health Systems LLC for claims of vicarious liability for professional negligence by licensed persons pursuant to [the AOM Statute] and applicable case law. . . .

[Id. at 7.]

         On February 20, 2018, CFG Health filed a motion for summary judgment on Plaintiff's medical malpractice/professional negligence claims against CFG Health. [Docket Item 25.] Plaintiff filed a brief in opposition [Docket Item 26] and CFG Health submitted a reply brief. [Docket Item 27.] Both parties subsequently filed letters on the electronic docket [Docket Items 48 & 55], alerting the Court to certain filings and decisions in a similar case involving CFG Health that is set before the Honorable Robert B. Kugler, Estate of Megan Moore v. Cumberland County, et al., No. 17-cv-2839-RBK-KMW (D.N.J. filed on April 25, 2017). The pending motions are now fully briefed and ripe for disposition. The Court decides these motions without oral argument pursuant to Fed.R.Civ.P. 78.

         III. STANDARD OF REVIEW

         A purported failure to timely file a proper AOM is appropriately the subject of a motion for summary judgment under Fed.R.Civ.P. 56. As the Third Circuit has explained, “[t]hat the affidavit [of merit] is not a pleading requirement counsels that a defendant seeking to ‘dismiss' an action based on the plaintiff's failure to file a timely affidavit should file a motion for summary judgment under Rule 56, and not a motion to dismiss for failure ...


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