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Costino v. Anderson

United States District Court, D. New Jersey

September 26, 2018

JOHN G. COSTINO, Plaintiff,



         This 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.


         The 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., ¶25.)

         In 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 medication. (Id.)

         On 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).

         Less 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.)

         Anderson 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.)

         The 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.)

         During 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 healthy.
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-
Abbattiscianni: No.
Plaintiff: -or anything like that?
Abbattiscianni: ...

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