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Estate of Bowser v. Atlantic County

United States District Court, D. New Jersey

March 19, 2019

THE ESTATE OF TROY BOWSER, et. al., Plaintiffs,
v.
ATLANTIC COUNTY, et al., Defendants.

          OPINION

          ROBERT B. KUGLER, United States District Judge

         This 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.

         I. BACKGROUND

         At all 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 therein.

         The 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).

         Plaintiff 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.

         As to 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.

         As to 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 issue.

         CFG's 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).

         II. JURISDICTION

         This 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. § 1367.

         III. STANDARD OF REVIEW

         A court 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.

         If the 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).

         A 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 ...


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