United States District Court, D. New Jersey
before the Court are five motions to dismiss the Second
Amended Complaint of Dr. Richard Arjun Kaul. Kaul brings
fourteen causes of action against the 25 remaining defendants
in this case. For the reasons set forth below, I grant the
Omnibus Motion to Dismiss, and dismiss all federal claims
with prejudice. The state law claims I dismiss on
jurisdictional grounds, without prejudice. Two additional
motions, one to further amend the Second Amended Complaint to
add a defendant and the other for a default judgment against
defendant Lewis Stein, Esq., are denied.
Richard A. Kaul, originally trained as an anesthesiologist,
performed procedures known as minimally invasive spine
surgeries. In March 2014, the New Jersey State Board of
Medical Examiners (the "Board") revoked his medical
license, finding that his performance of spine surgeries on
11 patients without proper training and experience
constituted gross and repeated malpractice, negligence, and
incompetence. From Dr. Kaul's perspective, a network of
politically connected neurosurgeons were threatened by and
jealous of his success. With the assistance of a cabal of
politicians, the judiciary, lawyers, hospitals, insurance
companies, and media figures, they engineered the revocation
of his license. Dr. Kaul broadly asserts that he brings this
action against all 25 remaining defendants, and a number of
John and Jane Doe defendants, to redress economic and
reputational injuries caused by their "scheme to
permanently eliminate [him] from the practice of medicine
anywhere in the world." (2AC, vi).
section, I review the decision revoking Dr. Raul's
medical license that is the subject of the complaint
(see Section I.A., infra); identify the
parties (Section I.B); summarize the factual allegations
(Section I.C); and review pertinent procedural history
Disciplinary Proceedings and Revocation of Medical
heart of this complaint is an attack on the disciplinary
proceedings that culminated in the revocation of Dr.
Raul's license to practice medicine. Before delving into
the allegations, I review those proceedings. This discussion
is essentially adapted from my earlier opinion dismissing the
First Amended Complaint. The decisions of the ALJ and the
Board are cited
because the allegations here are unintelligible without this
their existence and legal effect. (See n.1,
13, 2012, the AG initiated administrative disciplinary
proceedings against Dr. Kaul. The matter was referred to the
Office of Administrative Law as a contested matter. ALJ
Solomon presided over 23 days of hearings, running from April
9, 2013, to June 28, 2013. Drs. Kaufman and Przybylski
testified on behalf of the Board. (ALJ Op. 1-44).
Solomon issued his initial decision on December 31, 2013.
Here are a few of his findings of fact:
2. [Dr. Raul's] education, training, internships,
residencies and fellowships were insufficient to prepare him
for surgeries of the spine, whether minimally invasive or
3. The CME courses he took were insufficient to provide such
education and training. If hands-on training were offered, it
was, in most instances, done on cadavers. In others, he was
primarily an observer.
4. In addition to his lack of sufficient education and
training in spinal surgeries, he did not receive sufficient
monitoring by a trained overseer. For instance, he was on his
own the first time he inserted a pedicle screw in a live
patient, without the presence of any trained monitor.
5. Respondent's treatment included, but was not limited
to, inserting pedicle screws into the spinal canal; failing
to immediately remove a stimulator after the onset of
infection, thereby risking paralysis; using OptiMesh
an interbody structural device; and performing a staged
fusion, as well as other acts as discussed above.
6. Some of his patient consents were unsigned. . . .
9. He used allograft bone in patients who were
10. He failed to advise patients who were smokers of the
risks associated with smoking and allograft bone.
11. He misrepresented his qualifications, not only on his
website, but also in discussions with his patients.
12. None of his certifications were recognized by the
American Board of Medical Specialties, with the exception of
his board-certification in anesthesiology. Non-recognition
included his certification by the American Board of
Interventional Pain Management.
(ALJ Op. 80-81).
infractions, the ALJ found, went far beyond mere puffery or
resume-fudging. To the contrary, over the course of 94 pages,
ALJ Solomon detailed the physical and emotional harm Dr. Kaul
inflicted on 11 patients.
one example, patient T.Z.:
The next patient called by petitioner was T.Z., a
forty-year-old woman. In the latter part of 2009, she began
experiencing pain in her neck and back following an
automobile accident. A neighbor, who had been a patient of
respondent, recommended [Dr. Kaul]. T.Z. then checked
respondent's website, where he represented that he was a
board-certified minimally invasive spine specialist. T.Z. was
under the clear impression that if she decided to treat with
him, any surgery, if one were required, would be minimal, and
nothing more ....
He told her that he was going to insert two screws and scrape
a disc that appeared to be bulging, that the surgery would
last approximately forty-five minutes, and would only involve
a small incision, about one inch in length. The patient
stated that it was her clear understanding was that this was
going to be a minor procedure, nothing more, and that she
would be discharged the same day, followed by a minimal
recovery period of about a week or so. The patient stated
that she made it very clear to respondent that she would not
agree to anything more significant. Although she smoked a
pack of cigarettes a day, she stated that respondent never
mentioned anything about smoking or its risks associated with
On September 19, 2011, respondent performed a fusion at L3-L4
with the insertion of five screws. . . .
On the date of the surgery, she and her husband arrived at
the surgical center early in the morning for what was thought
to be a forty-five-minute procedure. Instead, she left the
surgery center around 5:00 or 6:00 p.m. Her husband told her
that she was in surgery for about six to seven hours. The
ride home was excruciating-she was in extreme pain and felt
nauseous. . . . Upon arriving home, she could not walk
because the pain was so intense. Her husband called his
father and together they placed her in a plastic chair and
lifted her up the ten to twelve steps into her home. Once she
was inside, she was placed in a recliner. . . .
On December 24, 2011, T.Z. was taken to Pocono Hospital,
where she was admitted, because she had severe difficulty
walking. The pain and numbness to the inside of her legs and
buttocks was worsening. . . . [W]hile at Pocono Hospital, she
was informed that the entire disc had been removed. She also
learned that five screws, instead of two, had been inserted.
From Pocono Hospital, she was transferred by ambulance to
Lehigh Valley Hospital .... It was then that she learned that
respondent was not an orthopedist, as she had initially
thought, but an anesthesiologist.
On October 14, 2011, after noticing oozing from one of the
incisions left by respondent, she consulted Brian Morse,
D.O., who performed nerve testing on her legs. They did not
respond. He recommended that she see George Naseef, M.D., an
orthopedic surgeon. She saw Dr. Naseef on November 17, 2011,
complaining of difficulty in walking, leg numbness, her right
ankle giving out (going off to the side), and loss of
balance, particularly on non-flat surfaces . . . Dr. Naseef
told her that two screws had penetrated the nerve in her
spine and that she needed surgery. . . .
On January 30, 2012, Dr. Naseef performed a revision surgery
at Morristown Memorial Hospital.
During these proceedings, T.Z. was asked to display the scars
left by respondent. One scar was vertical at the midline of
the low back, and measured approximately eight inches. There
was also a horizontal scar to the left of the eight-inch
scar, which measured about two inches. . . .
As the result of respondent's surgery, she had to use a
walker for about six months for balance, which she began
using immediately following the surgery. After six months,
she used a cane daily, also for balance. For months, her
husband had to escort her to the bathroom, where she used a
specially raised toilet seat. This lasted for several months.
In addition, her feet have become positioned outward. The
inner sides of her legs remain numb and she continues to have
back pain. She stated that no day is a good day. Her pain
starts upon awakening and worsens as the day progresses.
It was noted by the undersigned that when she approached and
left the witness stand, she used a cane and ambulated very
slowly. She also brought a pillow to sit on and was sobbing
throughout most of her testimony.
Her husband, M.Z., also testified. He accompanied T.Z. to her
initial consultation with respondent. He specifically
recalled respondent telling them that the procedure would
last about forty-five minutes and would involve a
three-quarter-inch incision. . . .
He stated that T.Z. is now essentially confined to a
recliner. She does not even sleep in bed. . . .
Petitioner called George S. Naseef III, M.D., a
board-certified orthopedic surgeon, to testify. Dr. Naseef. .
. performed corrective surgery on T.Z. . . .
Dr. Naseef determined that the L-3 screws were not in proper
line and the right S-1 screw was in the S-1 nerve root, not
in the pedicle. Both L-3 screws and the right S-1 screw had
perforated the bone and were in the nerve canal. . . .
During surgery on January 30, 2012, Dr. Naseef noted that the
right and left L-3 screws were in the canal, and the right
S-1 screw was grossly malpositioned and in the canal. . . .
Once the right S-1 screw was removed, nerve function
immediately returned to the patient's leg. ... He stated
that of the five screws inserted, only one was positioned
(ALJ Op. 53-57).
the evidence in the record,  ALJ Solomon concluded that the
Attorney General "prove[d]  well beyond a
preponderance of the credible evidence" that Dr. Kaul
"never should have performed any spinal surgeries,
whether they were called minimally invasive or open, given
his lack of education and training." "[T]hat he
performed such surgeries, without the requisite education and
training, and in disregard for the safety of several patients
who testified on behalf of petitioner, . . . warrant[s]
nothing less than the revocation of his medical
license." (ALJ Op. 93).
March 12, 2014, the Board adopted ALJ Solomon's opinion
and order in its entirety. It then considered the appropriate
penalty for Dr. Kaul's conduct. Observing that Dr. Kaul,
rather than acknowledging wrongdoing or demonstrating
contrition, had instead lobbed "broad allegations of
altered court transcripts, interference with legal evidence
and political influence," the Board struggled to
"find any mitigating factors in this
matter." Indeed, the Board found Dr. Kaul's
lack of remorse "disturbing." (Board Order
Board also considered that this was not Dr. Kaul's first
offense. About ten years earlier, the Board had suspended Dr.
Kaul's medical license based on his failure to disclose
in various credentialing applications that he had been
convicted of manslaughter based on the death of one of his
patients in England. Despite his failure to be forthright, the
Board was lenient. The tragic incident in England, it
reasoned, appeared to be no more than a regrettable mistake,
the repetition of which could be avoided with the exercise of
due care. It therefore "eschewed a more stringent
penalty with the hope and expectation that respondent will
resolve to practice with the vigilance that he has
promised." Under the circumstances, the Board found a
two-year suspension to be a sufficient sanction. But
"[f]uture transgressions," it warned, would
"not be deserving of leniency." (Board Order
that backdrop-Dr. Kaul's lack of remorse, his intent to
continue to perform spine surgeries, and his failure to
"turn over a new leaf to practice medicine
responsibly"-the Board adopted the ALJ's
recommendation to revoke Dr. Kaul's license, effective
February 12, 2014. It further imposed the statutory maximum
fine of $20, 000 for each of the 15 counts of malpractice and
misconduct charged, as well as attorneys' fees and costs.
All told, the Board imposed $475, 422.32 in civil penalties,
fees, and costs. (Board Order 28-29).
Kaul did not appeal the Board's final decision to the New
Jersey Superior Court, Appellate Division. Instead, he filed
this action alleging that there was a conspiracy against him
involving the Governor, various state officials, the ALJ, the
Board of Medical Examiners, various doctors, a lawyer, a
bank, a professional association, hospitals, insurance
carriers, and the media.
Kaul was formerly licensed to practice medicine in the State
of New Jersey. (2AC ¶ 1). When this cause of action
accrued, Dr. Kaul was a "resident of the State of New
Allstate New Jersey Insurance Company ("Allstate")
is the New Jersey subsidiary of Allstate Insurance Company.
TD Bank, N.A., is a Canadian bank with a United States
headquarters located in Cherry Hill, New Jersey. (2AC ¶
5). Divyesh Kothari, ("Kothari," and, collectively
with TD Bank, N.A., the "TD Bank Defendants") is
the Vice-President of TD Bank, N.A. (Id. ¶ 22).
Lindy Washburn ("Washburn") is an individual
located in Woodland Park, New Jersey. (2AC ¶ 19).
Defendant Fourth Edition Inc. f/k/a North Jersey Media Group
Inc. ("Fourth Edition," and, collectively with
Washburn, the "Newspaper Defendants") employs
Washburn as a journalist. (Id.). Fourth Edition,
which publishes The Record of Bergen County, is a
corporation located in Woodland Park, New Jersey.
(Id. ¶ 20).
Dr. Robert Heary ("Dr. Heary") is the director of
the Neurological Institute of the New Jersey Spine Center and
Neurosurgical Intensive Care Unit in Newark, New Jersey. (2AC
¶ 9). Dr. Heary is also an attending at Hackensack
University Medical Center ("Hackensack UMC").
Dr. William Mitchell ("Dr. Mitchell) is an attending
neurosurgeon at JFK Medical Center in Edison, New Jersey.
(2AC ¶ 11).
Lewis Stein, Esq. ("Stein") is a medical
malpractice attorney based in Morris County, New Jersey. (2AC
Dr. Gregory Przyblski ("Dr. Przyblski") is the
director of neurosurgery at the New Jersey Neuroscience
Institute at JFK Medical Center in Edison, New Jersey. (2AC
Dr. Marc Cohen ("Dr. Cohen") is an orthopedic spine
surgeon with a medical office in Morristown, New Jersey. (2AC
the American Society of Interventional Pain Physicians
("ASIPP") is a professional medical society with a
business address in Paducah, Kentucky. (2AC ¶ 15).
Dr. Andrew Kaufman ("Dr. Kaufman") is an individual
with a business located in Newark, New Jersey. He is a senior
member of ASIPP. (2AC ¶ 18).
Dr. Peter Staats ("Dr. Staats") was the 2015
president of ASIPP and is the editor of Pain Medicine News.
(2AC at 13).
Hackensack UMC is a "900-bed private hospital located
seven miles west of New York City" (in New Jersey). (2AC
Robert Garrett ("Garrett") is an individual located
in Hackensack, New Jersey. (2AC ¶ 23). He is the
president of Hackensack UMC. (Id.).
Thomas Peterson ("Dr. Peterson") is a neurosurgeon.
(2AC ¶ 12). Dr. Peterson engages in healthcare business
with Hackensack UMC. (Id.).
the Congress of Neurological Surgeons ("CNS") is a
professional medical society with a business address in
Washington, D.C. (2AC ¶ 16). Doctors Heary, Przybylski,
Mitchell and Person are members of CNS. Id.).
Christopher Wolfla ("Dr. Wolfla") is a neurosurgeon
in Washington, D.C. (2AC ¶ 17). Dr. Wolfla is the
Chairman of Professional Conduct Committee at CNS.
Atlantic Health System ("AHS") is a private
healthcare company with headquarters in Morristown, New
Jersey. (2AC ¶ 6). Doctors Cohen, Heary, and Kaufman
engage in healthcare business with AHS.
James Gonzalez ("Gonzalez") is an individual
located in Newark, New Jersey. (2AC ¶ 21). Gonzalez was
the president of Rutgers University Hospital.
University Hospital was the teaching hospital for the
University of Medicine and Dentistry of New Jersey, the
state-run health sciences institution for New Jersey. (2AC
¶ 7). I take judicial notice of the fact that University
Hospital is now part of Rutgers, The State University.
18A:65-94(f) ("whenever, in any . . .judicial . . .
proceeding . . . reference is made to the University of
Medicine and Dentistry of New Jersey . . . the same shall
mean and refer to Rutgers, The State University.").
Doctors Heary and Kaufman engage in healthcare business with
University Hospital. (Id.).
Government Employees Insurance Company, GEICO Indemnity,
GEICO General Insurance Company, and GEICO Casualty
(collectively, "GEICO"), provide auto insurance in
New Jersey. (2AC ¶ 4).
John Roe 1-50, John Doe 1-50, ABC Corp. 1-50 and/or XYZ P.C.
1-50 are as yet unidentified individuals and companies who
have assisted the named defendants in the commission of their
alleged crimes. (2AC ¶¶ 23, 24).
Allegations of the Second Amended Complaint
attempted to organize the allegations of the Second Amended
Complaint into five categories: (1) the "New Jersey
Neurosurgical Community"; (2) the Professional
Societies; (3) the Carriers; (4) the OAL and Medical Board
proceedings; and (5) other events and
The "New Jersey Neurosurgical Community"
Kaul identifies himself as a minimally invasive spine
surgeon. (2AC ¶ 66). In August 1996, Dr. Kaul obtained
his license to practice medicine and surgery in New Jersey.
(Id. ¶ 67). In September 1996, he became board
certified by the American Board of Anesthesiology.
2002 to 2012, Dr. Kaul performed 800 minimally invasive spine
surgeries and 6, 000 spine procedures. (2AC ¶ 69).
Beginning in 2002, he alleges, he developed an enviable
reputation in the field of minimally invasive spine surgery
and frequently taught his techniques to other physicians.
2004, Dr. Kaul became board certified by the American Academy
of Minimally Invasive Medicine and Surgery. (2AC ¶ 75).
This organization, I note, is distinct from the American
Academy of Minimally Invasive Spinal Medicine and
Surgery. Dr. Kaul points out none of the
defendants are board certified by this latter organization;
neither, apparently, is he. (See Id. ¶¶
75-76). From 2003 to 2012, Dr. Kaul was credentialed by at
least six state surgical centers to perform minimally
invasive spine surgery. (2AC ¶ 72). Dr. Kaul alleges
that, between 2010 and 2012, unidentified persons published
multiple articles about Dr. Kaul's work in minimally
invasive spine surgery. (2AC ¶¶ 39, 47).
2005, Dr. Kaul conducted the first outpatient lumbar spinal
fusion ever performed at the Market Street Surgical Center in
Saddle Brook, New Jersey. (2AC ¶¶ 37, 71). Dr. Kaul
alleges that because this work was innovative it provoked
hostility and envy within the New Jersey neurosurgical
community. (See Id. ¶ 37). That same year, he
alleges, unidentified neurosurgeons influenced the
credentialing committee at Meadowlands Hospital to deny Dr.
Kaul clinical privileges. (2AC ¶ 38). Dr. Kaul came to
learn through conversations with spine device
representatives, patients, and physicians that his
professional and commercial success had caused immense
jealousy in the "medical community." (2AC
¶¶ 39, 41).
2005, Dr. Przybylski began performing minimally invasive
spine surgeries. (2AC ¶ 74).
2008, Dr. Heary allegedly made defamatory comments to Frances
Kuren, one of Dr. Kaul's patients. (2AC ¶ 41).
2010, Dr. Kaufman allegedly made defamatory comments to
another of Dr. Kaul's patients, Corey Johnson. (2AC
¶ 41). In 2012, Dr. Kaufman also allegedly made
defamatory comments to another of Dr. Kaul's patients,
John Zerbini. (Id.). Mr. Zerbini later testified on
behalf of the State in the 2012-2013 disciplinary proceedings
against Dr. Kaul, discussed supra (See
id. ¶ 46).
March 3, 2011, Dr. Kaul opened the NJSR Surgical Center, a
Medicare certified, AAAHC (Accreditation Association for
Ambulatory Health Care) accredited facility in Pompton Lakes,
New Jersey. (2AC ¶ 40). The NJSR Surgical Center is the
facility at which Dr. Kaul performed interventional spinal
procedures and outpatient minimally invasive fusions and
allegedly received favorable publicity. In 2011, The
Record (a newspaper serving Bergen County and Northern
New Jersey) reported that NJSR Surgical Center had a zero
percent post-operative infection rate. (Id. ¶
39). In August 2011, Channel 12 News produced a segment on
Dr. Kaul's work, which allegedly prompted unidentified
members of the "New Jersey neurosurgical community"
to tell non-party Robert McGann that this "was the last
straw." (2AC ¶ 47).
March 2011 to April 2012, Dr. Kaul's practice grew 300%
(from some unspecified baseline). (2AC ¶ 43). Dr. Kaul
summarizes his own skills thus:
[Dr. Kaul] performed cases on an outpatient basis, that[, ]
although termed 'complex' by neurosurgeons, proved to
be simple, because of the surgical techniques employed by
Kaul. Many neurosurgeons do not have good hand-eye
coordination skills, and Kaul observed during many of the CME
courses, that their ability to maneuver minimally invasive
spine instruments was clumsy. ... In the U.S. the completion
of a residency and board certification, do not require the
graduate to pass a technical skills test, but simply a
written and oral examination. That would be akin to issuing a
driver's license without the road test. Thus, the only
way that one could compare the abilities of two surgeons, as
for example with two baseball players, is to observe them in
action. Kaul's videos demonstrate him in action, while no
video evidence exists to support the technical abilities, or
lack thereof, of any of the other physician defendants.
(2AC, ¶ 43-44).
April 2012, Dr. Kaul's medical license was suspended.
(2AC ¶ 44). At that time, he suggested to the medical
board that he be independently observed. This request was
2013, Dr. Peterson allegedly called Dr. Kaul a murderer.
Peterson made that statement to one of Kaul's employees,
Linda Reyes, whose brother Dr. ...