United States District Court, D. New Jersey
GLADYS MENDOZA, personal representative of ELIAS MENDOZA, Plaintiff,
INSPIRA MEDICAL CENTER VINELAND, SOUTH JERSEY HEALTH CARE, INSPIRA HEALTH NETWORK, INC., ANDREW ZINN, M.D., THE HEART HOUSE, NAEEM M. AMIN, M.D., and KIDNEY AND HYPERTENSION SPECIALISTS, P.A. Defendants.
R. RADMORE TWO PENN CENTER, SUITE 312 Attorney for Plaintiff
J HEAVEY GROSSMAN & HEAVEY Attorney for Defendants
Inspira Medical Center Vineland, South Jersey Health Care,
and Inspira Health Network, Inc.
P. BRIGHAM STAHL & DELAURENTIS Attorney for Andrew Zinn,
M.D. and The Heart House.
L. HILLMAN, U.S.D.J.
a medical malpractice action against a hospital and a
cardiologist for their care of Elias Mendoza in March 2014.
Presently before the Court are four motions: (1) Inspira
Defendants' Motion to Preclude the Expert Testimony of
Drs. Bruce D. Charash and T. Anthony Cumbo (“Motion to
Preclude”), (2) Plaintiff's Partial Motion for
Summary Judgment as to IHN, (3) Inspira Defendants'
Cross-Motion to Amend the Caption of the Amended Complaint
(“Motion to Amend”), and (4) Andrew Zinn, M.D.
and The Heart House's (collectively, the
“Cardiology Defendants”) Motion for Summary
following reasons, the Motion to Preclude will be granted, in
part, and denied, without prejudice, in part; Plaintiff's
Partial Motion for Summary Judgment will be denied, without
prejudice; the Motion to Amend will be denied, in part, with
prejudice and in part, without prejudice; and the Cardiology
Defendants' Motion for Summary Judgment will be denied,
Court takes its facts from Plaintiff's Amended Complaint,
the parties' various filings, and the procedural history
of the case. On March 11, 2014, Elias Mendoza went to the
Emergency Room at the Inspira Medical Center in Vineland, New
Jersey complaining of shortness of breath and admitted to the
Intensive Care Unit. According to the expert
reports of Bruce D. Charash, M.D., F.A.C.C. (the
“Charash Reports”), Mr. Mendoza was visiting New
Jersey from Georgia, and had proactively scheduled dialysis
sessions during the time he was in New Jersey.
Mendoza was not only suffering from end-stage renal disease
(requiring the previously mentioned dialysis) but also
insulin dependent diabetes mellitus, coronary artery disease,
and congestive heart failure. It appears that a chest x-ray
taken that day showed a fluid overload in Mr. Mendoza's
lungs. Mr. Mendoza was given a cardiology consultation by
Zinn and a nephrology consultation by Naeem M. Amin, M.D.
March 15, 2014, Mr. Mendoza suffered both a respiratory and
cardiac arrest which led to a permanent anoxic brain injury
caused by lack of oxygen. Mr. Mendoza passed away less than a
year later from acute respiratory failure, stemming from a
cardiac arrest, and coronary artery disease. Plaintiff
asserts, as Mr. Mendoza's personal representative, that
Mr. Mendoza's allegedly negligent treatment at the
Inspira Medical Center in Vineland was a contributing factor
to his death.
filed a complaint on March 9, 2016. Plaintiff filed an
amended complaint on March 22, 2016. The Amended Complaint
asserts claims against three sets of Defendants, the Inspira
Defendants and Cardiology Defendants mentioned
supra, as well as Amin and the Kidney and
Hypertension Specialists, P.A. (the “Nephrology
Defendants”). Plaintiff asserts direct liability claims
of negligence against the Inspira Defendants, Zinn, and Amin.
Plaintiff also asserts vicarious liability claims of
negligence against the Inspira Defendants, The Heart House,
and the Kidney and Hypertension Specialists, P.A.
Affidavit of Merit, as required by New Jersey law, was filed
with the Court on April 27, 2016 by Plaintiff's expert
Charash. This was challenged in August 2016 Motions for
Summary Judgment brought by the Nephrology Defendants and
IMC. After full briefing, this Court decided these motions on
March 30, 2017. The Court granted Defendants' Motions for
Summary Judgment. Plaintiff's claims against Nephrology
Defendants were dismissed, with prejudice, for failure to
comply with the Affidavit of Merit requirements. The same
reasoning applied to IMC's Partial Motion for Summary
Judgment, which focused solely on the direct claims of
negligence brought against IMC.
central importance to the present motions was the contours of
the Court's decision as to the Inspira Defendants. The
Court notes here and discusses further infra that
the Partial Motion for Summary Judgment discussed
supra was brought by IMC, at least on its face. The
Court also notes that the Inspira Defendants answer to
Plaintiff's Amended Complaint stated that the Inspira
Defendants were wrongly named, and that the only party
correctly before this Court was IMC, which operated the
hospital at-issue in Vineland, New Jersey.
timely filed a Motion for Reconsideration, or in the
alternative, a motion to certify the March 30, 2017 Order for
interlocutory appeal. After full briefing, Plaintiff's
requests were denied by this Court on November 13, 2017.
September 6, 2018, the Inspira Defendants filed the pending
Motion to Preclude. On October 10, 2018, Plaintiff filed a
Partial Motion for Summary Judgment solely against IHN. On
November 1, 2018, the Inspira Defendants filed a
cross-motion, the Motion to Amend, and response. On January
11, 2019, Cardiology Defendants filed their Motion for
Summary Judgment. On January 30, 2019, Plaintiff filed a
letter requesting leave to file an attached proposed
sur-reply brief to the Cardiology Defendants' Motion for
Summary Judgment. Cardiology Defendants filed no response.
Accordingly, all motions have been fully briefed and are ripe
Subject Matter Jurisdiction
Court possesses subject matter jurisdiction over this case
pursuant to 28 U.S.C. § 1332.
Motion to Preclude Expert Testimony
IMC has moved to preclude
plaintiff's experts, Dr. Charash and Dr. Cumbo, from
testifying as to any direct or vicarious liability claims
against IMC that have already been dismissed by this Court.
IMC argues that all direct claims against it have been
dismissed and that only one claim of vicarious liability -
based on the actions of Zinn and the Heart House - remains.
Therefore, any expert testimony relevant only to direct
claims or the vicarious liability claim based on the
Nephrology Defendants conduct is irrelevant and should be
provide appropriate context, the Court notes here that the
dismissal of the claims discussed supra was based on
the Affidavit of Merit Statute. N.J. Stat. Ann. §§
2A:53A-26-29. The direct and vicarious (to the extent they
were asserted) liability claims based on the Nephrology
Defendants actions were dismissed because Plaintiff did not
present an expert within the appropriate specialty who could
provide an affidavit of merit. The direct and vicarious (to
the extent they were asserted) liability claims based on
inadequate staffing were also dismissed because Plaintiff did
not present an expert within the appropriate specialty who
could provide an affidavit of merit. This motion was filed by
and granted for IMC.
any decision on this motion is Plaintiff's opposition.
Plaintiff does not disagree that using this expert testimony
against IMC would be improper based on the Court's
previous rulings. But, Plaintiff asserts two other arguments:
(1) IMC's previous partial motion for summary judgment
was not brought on behalf of Inspira Health Network, Inc.
(“IHN”) and (2) the expert testimony may be used
to support a claim based on inadequate staffing against IHN
because IHN does not fall under the Affidavit of Merit
Defendants filed what motions and are the beneficiaries of
the relief previously granted by this Court is a threshold
question. The answer, this Court finds, is unclear. It is
undeniable that IMC has represented to Plaintiff on multiple
occasions that Plaintiff's caption was incorrect. The
first such occasion of record is IMC's Answer. (IMC
Answer 1 (defining IMC as “incorrectly pled on
Complaint as ‘Inspira Medical Center Vineland',
‘South Jersey Health Care', and ‘Inspira
Health Network, Inc'”).) It also appears that IMC
stated in an interrogatory response on September 7, 2016 that
the Inspira Defendants' correct corporate name is IMC.
(IMC Reply Br., Ex. A ¶ 1.) Other instances likely
exist, but these are the most important examples cited by
other hand, Plaintiff is correct that IMC's briefing has
not been precise. The previous motion for partial summary
judgment did not state whether it was brought on behalf of
Inspira Defendants or just IMC. While one may assume, based
on IMC's previous representations, that it was, it is not
clear from the face of the papers. This Court's
corresponding Opinion and Order only explicitly referenced
IMC. Even IMC's instant motion was not clearly brought on
behalf of all Inspira Defendants until IMC clarified its
position in its reply brief.
IMC cannot state, unilaterally, which entities Plaintiff
intended to sue or not to sue. Plaintiff is the master of his
own complaint. Judon v. Travelers Prop. Cas. Co. of
Am., 773 F.3d 495, 505 (3d Cir. 2014). While there are
many situations in which Defendants' informal response
may be appropriate (e.g., misspelling of a name), it is not
appropriate here. IMC does not state that IHN is not a real
entity or that its name has been misspelled. It merely states
Plaintiff should have solely sued IMC. Saying it does not
make it so.
has been similarly imprecise in its briefing, failing to
bring up this issue in opposition briefs or in its motion for
reconsideration. Plaintiff has been silent on this issue
until over a year and a half after the facts animating this
argument arose. ...