United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion to dismiss brought
by Defendant, Taj war Aamir, due to an insufficient Affidavit
of Merit (AOM) (ECF No. 81). On July 7, 2018, this Court
converted the motion to dismiss to a motion for summary
judgment. (ECF No. 94). See Nuveen Mun. Tr. v.
Withumsmith Brown, P.C., 692 F.3d 283, 303 n.13 (3d Cir.
2012). The Court permitted the parties to file additional
briefing on the matter, and the Plaintiffs filed a motion for
summary judgment (ECF No. 95). The Court has jurisdiction
based on diversity of citizenship.
Aamir is a board certified pediatrician who was practicing in
her certified specialty, pediatric medicine, when the alleged
abuse and neglect of decedent, Diamond Smith occurred.
(Def.'s Statement of Undisputed Facts ("SUF")
at 3, ECF No. 95-4). Prior to the decedent's death, Dr.
Aamir attended to decedent on March 3, 2011 at the Lotus
Clinic, a family practice center where Dr. Aamir was
employed. (Def.'s Exhibit L, Diamond Smith Med. Record at
1, ECF No. 95-7; Def.'s SUF at 3). During the March 3,
2011 visit, Dr. Aamir recorded that the decedent had been
suffering from a sore throat for seven days, and strep
throat; and in addition Dr. Aamir prescribed antibiotics.
(Diamond Smith Med. Record at 1). Although Dr. Aamir noted
some type of rash when describing the decedent's skin at
the time, there was no indication of bruising, scarring, or
any other markings associated with abuse. Id.
Diamond Smith later died on or about July 11, 2012 at the age
of five. (Third Amended Complaint ("TAC"), ECF No.
69, at ¶ 3). She was reportedly not breathing the
evening before she died, and was transported to the hospital
for emergency medical attention, but she died at midnight.
Id. at ¶ 8. Decedent was reportedly found with
two "oozing" bruises across the entirety of one
buttock, a bruised right eye and cheek, a circular burn on
her right cheek reminiscent of a cigarette lighter, a
"burn-like mark" on one of her feet, an unspecified
number of nondescript "old" scars on her arms and
legs, "prominent bruising" on her abdomen below the
rib cage, a nondescript "bump" on her forehead, and
evidence of malnutrition, including a distended belly and a
body weight of 40 pounds. Id.
lawsuit, brought by the administrator of the decedent's
estate and the decedent's two minor siblings
(collectively "Plaintiffs"), allege over twenty
causes of action against numerous defendants, including the
State of New Jersey's Division of Child Protection and
Permanency ("DCPP"), the decedent's two
biological parents, several named employees of DCPP, Lotus
Clinic P.C., and several medical professionals, including Dr.
Aamir. Id. at ¶¶ 3-6. The Complaint
generally alleges a cause of action against Dr. Aamir for
medical malpractice as a result of failing to adequately
examine the decedent's body for signs of abuse, and
failure to report suspected abuse to the Division of Child
Protection as required by statute (N.J.S.A.
9:6-8.10). See Id. at ¶¶ 12-13.
the cause of action alleged is medical malpractice, another
statute requires plaintiff to provide an AOM early in the
litigation. N.J. Stat. Ann. §2A:53A-27. More
specifically, the statute requires that in cases of medical
malpractice against "a licensed person in his profession
or occupation, [plaintiffs] shall. . . provide each defendant
with an affidavit of an appropriate licensed person that
there exists a reasonable probability that the care, skill,
or knowledge exercised . . . fell outside acceptable
professional or occupational standards or treatment
practices." N.J. Stat. Ann. § 2A:53A-27. The AOM
must be served within sixty days of the defendant's
answer, though an additional sixty days may be granted by the
court. See N.J. Stat. Ann. § 2A:53A-27.
August 10, 2016, Plaintiffs filed an AOM signed by Dr.
Jeffrey Rednor. More specifically, Dr. Rednor, a practitioner
of family medicine since 1992, swore in his affidavit that
there was reasonable probability that Dr. Aamir's
treatment of the decedent fell below acceptable professional
Aamir moved for summary judgment arguing that the AOM against
her was insufficient. (See ECF Nos. 81, 95). Dr.
Aamir asserts that since she is a board certified
pediatrician, Plaintiffs were required to submit an AOM from
another certified pediatrician to satisfy the statutory
requirements. See N.J. Stat. Ann. § 2A:53A-41.
A family practitioner like Plaintiffs expert Dr. Rednor, she
argues, lacks that expertise since Dr. Rednor is not a
judgment is appropriate under Fed.R.Civ.P. 56(c) when the
moving party demonstrates that there is no genuine issue of
material fact and the evidence establishes the moving
party's entitlement to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
purpose of N.J. Stat. Ann. § 2A:53A-27 is to "weed
out frivolous lawsuits early in the litigation while, at the
same time, ensuring that plaintiffs with meritorious claims
will have their day in court." Hubbard v. Reed,
774 A.2d 495, 500 (N.J. 2001). It was not intended "to
create a minefield of hyper-technicalities in order to doom
innocent litigants possessing meritorious claims."
May field v. Community Medical Associates, 335 A.2d.
237, 244-45 (N.J. App. Div. 2000). Rather, it just
"requires plaintiffs in malpractice cases to make a
threshold showing that their claim is meritorious, in order
that meritless lawsuits readily could be identified at an
early state of litigation." Cornblatt v. Baraw,
708 A.2d 401, 412 (N.J. 1998) (quoting In re Petition of
Hall, 688 A.2d 81 (N.J. 1997)). Generally, the statute
recognizes that the person submitting an AOM must have the
same qualifications as the Defendant physician. N.J. Stat.
Ann. § 2A:53A-41. That provision reads in part:
a. If the party against whom or on whose behalf the testimony
is offered is a specialist or subspecialist. . . and the care
or treatment at issue involves that specialty or
subspecialty. . ., the person providing the testimony shall
have specialized at the time of the occurrence that is the
basis for the action in the same specialty or subspecialty.
statute further recognizes that there are some circumstances
where the same qualification standard is not applicable, and