United States District Court, D. New Jersey
THE ESTATE OF TROY BOWSER, et. al., Plaintiffs,
ATLANTIC COUNTY, et al., Defendants.
B. KUGLER, United States District Judge
matter comes before the Court by way of Plaintiffs, the
Estate of Troy S. Bowser, by and through its
Administrator Ad Prosequendum, Sandra D. Trettner,
and Ms. Trettner, in her own right's (hereinafter
referred to in the singular) Complaint under 42 U.S.C. §
1983. Presently before the Court is Defendant CFG Health
Systems, LLC's (“CFG”) motion for partial
summary judgment (ECF No. 17). For the reasons set forth
below, the Court will GRANT IN PART, CFG's motion.
times relevant to the allegations in the Complaint, Decedent
Troy S. Bowser was a pre-trial detainee at the Atlantic
County Correctional Facility. On April 13, 2016, jail staff
discovered Mr. Bowser hanging in his cell from a bedsheet
tied to an overhead sprinkler. (ECF No. 1, at ¶ 45).
Following that discovery, staff took Mr. Bowser to
Atlanticare Regional Medical Center, where he remained until
his death on April 19, 2016. (Id. at ¶ 46).
Officials determined that Mr. Bowser's cause of death was
suicide by hanging. (Id.). As this motion only
contests the actions of CFG and its employees, the Court will
only articulate those facts necessary to address the issues
Complaint alleges that the actions of CFG's agents or
employees, among others, caused Mr. Bowser's death, but
does not identify those employees or how they were negligent
with particularized facts. More specifically, CFG's
employees knew or should have known about Mr. Bowser's
heroin and alcohol withdrawal symptoms and should not have
transferred him out of suicide watch “until Mr. Bowser
was no longer an imminent suicide risk or they were to
arrange for his transfer to a mental healthcare
facility.” (ECF No. 1, at ¶ 31). Further, in
failing to properly evaluate Mr. Bowser for transfer, those
employees also failed to dispense proper medical and mental
health care, or otherwise take any measures to keep Mr.
Bowser free from harm. (Id. at ¶ 47). Plaintiff
also contends more generally, that CFG failed to maintain or
enforce effective policies for potentially suicidal inmates.
(Id. at ¶ 74).
filed her Complaint on April 5, 2018, alleging three counts
relevant to this motion: wrongful death (Count V); a survival
action (Count VI); and negligence (Count VII). CFG filed its
Answer on April 24, 2018. Within the sixty days that
followed, Plaintiff submitted an Affidavit of Merit (AOM)
from Lawrence J. Guzzardi, MD, on April 30, 2018, and within
120 days of CFG's Answer, Plaintiff submitted an AOM from
Dale Panzer, MD, on August 22, 2018.
Dr. Guzzardi, his AOM states that he is a licensed physician
in the Commonwealth of Pennsylvania who is currently board
certified in medical toxicology. (ECF No. 17-5, at 2). In the
last five years he has limited his practice to testifying to
the standards of care in correctional medicine and in matters
related to emergency medicine, medical toxicology,
correctional care, and substance abuse. (Id.). The
AOM states that he has expertise in problems involving drug
withdrawal and in the evaluation of potentially suicidal
inmates. (Id.). Dr. Guzzardi avers that there is a
reasonable probability that the care, skill, or knowledge
exercised or exhibited by CFG through its employees or agents
while “Mr. Bowser was at the Atlantic County Jail lead
to [Mr. Bowser's] death on or about April 13[sic],
2016.” (Id. at 2-3). As with the Complaint,
this AOM does not allege any particularized acts of
professional negligence and does not identify the negligent
employees at issue.
Dr. Panzer, his AOM states that he is a licensed physician in
the Commonwealth of Pennsylvania who is currently board
certified in psychiatry, with extensive expertise in
assessing patient safety and making appropriate
recommendations for patient care. (ECF No. 17-5, at 5).
Further, Dr. Panzer has continuously practiced psychiatry for
over twenty years, which has required him to regularly assess
patient safety and make appropriate treatment and clinical
care recommendations. Dr. Panzer avers that there is a
reasonable probability that CFG's employees provided
unreasonable psychiatric and psychological care that lead to
Mr. Bowser's “death on or about April 13 [sic],
2016.” (Id. at 6). As with the Complaint, this
AOM does not allege any particularized acts of professional
negligence and does not identify the negligent employees at
Answer, in its “Fifteenth Separate Defense, ”
lists the relevant employees in this action, which include a
variety of nurses, medical technicians, and a psychologist,
and asserts that Plaintiff has failed to file an appropriate
AOM for these individuals. (ECF No. 10, at 3-4).
case is before the Court in its federal-question
jurisdiction, as Plaintiff has brought this suit under 42
U.S.C. § 1983. See 18 U.S.C. § 1331. The
tort claims that are the focus of this motion are before the
Court in its supplementary jurisdiction pursuant to 18 U.S.C.
STANDARD OF REVIEW
should grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Tolan v. Cotton, 572
U.S. 650, 656-57 (2014). In deciding a motion for summary
judgment, a court must construe all facts and inferences in
the light most favorable to the nonmoving party. See
Cotton, 572 U.S. at 657. The moving party bears the
burden of establishing that no genuine issue of material fact
remains. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). “[W]ith respect to an issue on which the
nonmoving party bears the burden of proof, ” the moving
party may discharge its burden “by
‘showing'-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case.” Id. at 325.
moving party meets its threshold burden, the opposing party
must present actual evidence that creates a genuine issue as
to a material fact for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Fed. R. Civ. P. 56(c) (setting forth types of evidence that
may show that genuine issues of material fact exist). The
non-moving party must at least present probative evidence
from which the jury might return a verdict in his favor.
Anderson, 477 U.S. at 257. Where the non-moving
party fails to “make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial, ” the movant is entitled to summary judgment.
Celotex, 477 U.S. at 322. “[Unsupported
allegations . . . and pleadings are insufficient to repel
summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990);
see also Scheidemantle v. Slippery Rock Univ. State Sys.
of Higher Educ, 470 F.3d 535, 538 (3d Cir. 2006).
failure to file an appropriate AOM is properly the subject of
a motion for summary judgment under Rule 56 because the Court
must necessarily consider “matters outside the
pleadings” when considering the applicability of the
AOM Statute. Nuveen ...