United States District Court, D. New Jersey
JOHN G. COSTINO, Plaintiff,
POLICE OFFICER TONYA ANDERSON, et al., Defendants.
H. RODRIGUEZ U.S.D.J.
matter is before the Court on motions for summary judgment
pursuant to Fed.R.Civ.P. 56 filed by remaining Defendants
Little Egg Harbor Township and its Police Officer Tonya
Anderson [Doc. 63] and Cape May County Prosecutor's
Office Detective George Hallett [Doc. 64]. The Court has
reviewed the submissions and decides the matter based on the
briefs pursuant to Fed.R.Civ.P. 78(b). For the reasons stated
here, the motions will be granted.
facts of this case have been outlined in prior opinions of
this Court. For more than 30 years, Plaintiff John G. Costino
was a practicing physician treating patients in his North
Wildwood office. (Am. Compl., ¶1 & 18.) In 2007,
when the events giving rise to this lawsuit began, Costino
maintained a successful North Wildwood medical practice
including general internal medicine, sports medicine, pain
management, acute care for injured patients, and workers
compensation related injuries. (Am. Compl., ¶19.) At
that time, Costino was the only pain management physician in
the Wildwoods; one of only two pain management physicians in
all of Cape May County. (Am. Compl., ¶20.) Costino's
multiple board certifications included being a Fellow of the
American Academy of Pain Management. (Am. Compl., ¶21.)
Costino was certified through the Drug Enforcement
Administration to treat patients with opioid (heroin)
addiction, and he was permitted to prescribe Suboxone to
treat patients with opioid addiction. (Am. Compl., ¶22.)
By virtue of Costino's training, skill and reputation, he
often received referrals from other physicians to provide
treatment for pain management to patients. (Am. Compl.,
¶23.) Costino's medical practice came under the
scrutiny of the Cape May County Prosecutor's office in
2005, as a result of a statistical report identifying Costino
as prescribing excessive amounts of addictive pain
medications. (Am. Compl., ¶24.) The fact that Costino
was prescribing a significant amount of addictive pain
medications was explained by Plaintiff as: (a.) A substantial
portion of his practice was dedicated to pain management
patients and to the treatment of patients addicted to
opioids; and (b.) On three occasions in 2004 and 2005,
prescription pads were stolen from Costino's office and
used illegally to obtain addictive pain medications. On each
such occasion, Costino reported these thefts and the
perpetrators were prosecuted by the authorities. (Am. Compl.,
December 2005, the Cape May County Prosecutor's office
sent an undercover detective to Costino's office, posing
as a heroin addict. (Am. Compl., ¶27.) The detective
attempted obtain a prescription for pain medication.
(Id.) Costino refused to prescribe the medication
because the patient presented as a heroin addict.
(Id.) Instead, Costino urged the patient to enter
the Suboxone program for treatment of the heroin addiction.
(Id.) The detective therefore wrote a report
favorable to Costino, indicating that there was no evidence
to support an allegation that Costino improperly prescribed
April 12, 2007, Defendant Little Egg Harbor Township Police
Officer Tonya Anderson, wired with a recording device, sought
treatment from Costino. (Am. Compl., ¶2 & 29.) She
posed as an exotic dancer who had been taking Percocet for
pain without a valid prescription. (Id.) Anderson
told Plaintiff that she was on her feet all day and it was
hard for her to “unwind” at the end of the day.
(Tr. from Audio of Anderson's 4/12/07 Undercover Visit at
¶¶ 45-48.) She also said that “one of the
girls that I work with at a previous place had told me to
come here she . . . she I think she had given me percocets
and I, I had taken a few um just to kind of unwind after
work[.]” (Id. at ¶¶ 50-52.)
Plaintiff told Anderson that Percocet was a pain medication
that was “not for relaxation, ” and that she
should not “want something for pain which is addictive
unless you've really got a real problem.”
(Id. at ¶ 55; ¶¶ 59-60.) Anderson
said that Percocet worked for her before, and Plaintiff asked
her if she was addicted, to which she replied in the
negative. (Id. at ¶¶ 92-98.) Plaintiff
then asked Anderson if she had any pain. (Id. at
¶ 103.) She responded, “No no I wouldn't say
pain. I don't have any . . . .” (Id. at
¶ 104.) He later asked her if she had any spine issues
or any “major issues at all?” (Id. at
¶¶ 173-74.) She responded, “No.”
(Id. at ¶ 175.) Plaintiff diagnosed Anderson
with “acute lumbar and thoracic strain and
sprain” in Anderson's chart, (see Anderson's
chart notes from 4/12/07 visit), and prescribed her thirty
7.5 mg tablets of Percocet- telling her it should last her
about 6 weeks. Id. 204-205; (see copy of the
prescription dated April 12, 2007).
than three weeks later, on May 2, 2007, Anderson returned for
more Percocet. (Tr. from Audio of Anderson's 5/2/07
Undercover Visit.) Plaintiff wrote her a six week
prescription. (Id.) When asked if she was sore after
a night of dancing, Anderson told Plaintiff that
“it's more the relaxation” and she has no
discomfort. (Id. at 10-16.) During the encounter,
Plaintiff told Anderson, “[y]ou really don't have
any other medical issues I mean you're basically a
healthy gal.” (Id. at 84-85.) He then wrote
her another prescription for thirty 7.5 mg tablets of
Percocet and warned her not to tell her girlfriends that she
has it. (Id. at 121-22; copy of prescription dated
May 2, 2007.) Plaintiff again noted in Anderson's chart
that she suffered from acute lumbar sprain and strain.
(Anderson's chart notes from 5/2/07 visit.)
returned for more drugs on June 7, 2007-this time asking for
a stronger prescription of 10 mg because she wanted something
“a little stronger that lasts a little longer[.]”
(Tr. from Audio of Anderson's 6/7/07 Undercover Visit, p.
1.) Plaintiff responded, “Well you can go to 10s
yeah” (referring to 10 mg). (Id.) Plaintiff
again wrote Anderson a prescription- this time for the 10 mg
strength. (See copy of prescription dated June 7, 2007.)
next undercover visit was on June 26-less than a month later.
Anderson complained that she did not notice a difference
between the 7.5 mg pills and the 10 mg pills. (Tr. from Audio
of Anderson's 6/26/07 Undercover Visit, p. 2.) Plaintiff
responded “you become a little tolerant.”
(Id.) Anderson left with another prescription for
thirty tablets of 10 mg Percocet. (See copy of prescription
dated June 26, 2007.) Two and half weeks later, Anderson left
with another prescription for thirty tablets of 10 mg
Percocet. (See copy of prescription dated June 26, 2007.)
the next visit on August 3, 2007, Anderson was accompanied by
another undercover agent, Margarita Abbattiscianni, who was
posing as a stripper named Maggie Ortiz. During this visit,
Plaintiff asked Abbattiscianni “what's the
matter?” She responded, “Well, I mean it's
basically the same as Tonya here[, ]” (referring to
Anderson), “[j]ust I'm up all night and I just need
something to just bring me down a little bit during the
day.” (Tr. of Audio Recording from 8/3/07 at 48:1-7.)
Later in the examination the following exchange took place
between Plaintiff and Abbattiscianni:
Plaintiff: You're pretty healthy, are you? Well I guess
you are, right?
Abbattiscianni: I sure am. I'm one hundred percent
Plaintiff: No. major issues with the dance?
Abbattiscianni: No, none whatsoever. . . . .
Plaintiff: No. surgery ever, huh?
Abbattiscianni: No. surgery, no.
Plaintiff: And no medical issues or anything?
Abbattiscianni: No, none. . . . .
Plaintiff: Any knee issues or-
Abbattiscianni: Oh, no.
Plaintiff: -ankle issues-
Plaintiff: -or anything like that?