Estate of Jenifer S. Towle v. Hudson County ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0279-22
ESTATE OF JENIFER S. TOWLE
and BRICE TOWLE, as
administrator of the estate of
JENIFER S. TOWLE,
Plaintiffs-Appellants,
v.
HUDSON COUNTY, HUDSON
COUNTY DEPARTMENT OF
CORRECTIONS, and GD
CORRECTIONAL SERVICES,
LLC,
Defendants,
and
CFG HEALTH SYSTEMS, LLC,
Defendant-Respondent.
______________________________
Submitted December 12, 2023 – Decided January 24, 2024
Before Judges Rose and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2674-19.
The Marchese Law Firm, LLC, attorneys for appellants
(Daniel G. Marchese, of counsel and on the brief).
Holtzman, McClain & Londar, PC, attorneys for
respondent CFG Health Systems, LLC (Stephen D.
Holtzman, of counsel; Jeffrey S. McClain, on the brief).
PER CURIAM
Plaintiffs, the Estate of Jenifer S. Towle and her father Brice Towle, in his
capacity as administrator of the estate, appeal from a May 12, 2020 Law
Division order granting reconsideration of a March 9, 2020 order and dismissing
their complaint against defendant CFG Health Systems, Inc. The motion court
found plaintiffs failed to comply with the affidavit of merit statute, N.J.S.A.
2A:53A-26 to -29. For the following reasons, we affirm.
I.
Jennifer Towle died on July 14, 2017, while in the custody of Hudson
County Department of Corrections and under the care of CFG Health Systems,
LLC (CFG), a private correctional healthcare provider. Plaintiffs allege Towle
suffered from severe psychiatric and mental health issues, causing her to be
admitted to the jail's infirmary and placed on suicide watch. Plaintiffs further
allege that hours before her death, Towle complained of excruciating stomach
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pain to CFG staff. An autopsy revealed Towle had ingested foreign items such
as Styrofoam, plastic wrappers, drink cartons, paper, and a nail clipper. The
foreign material resulted in a perforated gastric ulcer and ultimately sepsis.
Plaintiffs filed their complaint on July 1, 2019, alleging failure to properly
monitor Towle's eating behaviors, address Towle's mental health issues, or
provide appropriate medical care to Towle. On the case information sheet,
plaintiffs categorized the case as "Tort-Other."
CFG filed its answer on August 9, 2019, asserting as a defense failure to
file an appropriate affidavit of merit for a claim of professional negligence as
required by N.J.S.A. 2A:53A-26. Its answer also provided the names and
specialties of potentially liable healthcare providers. 1 CFG's case information
sheet identified the case type as medical malpractice.
On November 1, 2019, plaintiffs timely filed and served on CFG the
affidavit of merit of Dr. Kevin J. Kikta, DO, a physician board certified in
emergency medicine. Although the court did not schedule a Ferreira2
1
The potentially liable physicians identified by CFG were advanced nurse
practitioners, psychologists, and medical doctors board-certified in psychiatry,
family medicine, internal medicine, and infectious diseases.
2
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 147 (2003).
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3
conference, neither party requested one. The 120-day statutory window for
timely submission of affidavits of merit expired on December 7, 2019.
On December 17, CFG moved to dismiss the complaint. It argued plaintiff
failed to timely serve an affidavit from a qualified person as required by the
statute. Plaintiffs filed a cross-motion to extend time to serve an appropriate
affidavit. The motion court denied CFG's motion in a written opinion and
extended discovery by sixty days to allow plaintiffs additional time to file
appropriate affidavits. The court found that while the affidavit of merit statute
applied and that Dr. Kikta's affidavit of merit was inadequate, 3 extraordinary
circumstances warranted denial of CFG's motion, namely: the merit of
plaintiffs' claim; plaintiffs' counsel filed an AOM (albeit insufficient) within the
120-day deadline; the court's failure to schedule a Ferreira conference; and the
lack of prejudice to CFG given the early stage of litigation. Plaintiffs later
submitted additional affidavits of merit by a nurse practitioner, a board-certified
psychiatrist, and a board-certified internal medicine specialist on May 8, 12, and
14, 2022, respectively.
CFG filed a motion for reconsideration. At the motion hearing, plaintiffs'
counsel explained that the suit "was inadvertently mislabeled." On May 12,
3
The court found that Dr. Kitka was not qualified in the same specialties as the
potentially liable physicians identified by defendant.
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2020, the court granted reconsideration and dismissed plaintiffs ' claims in a
written opinion. The court found it had "erred only with respect to its analysis
in finding extraordinary circumstances by undervaluing the plain allegations of
the [c]omplaint with respect to medical malpractice and overvaluing both
[p]laintiff[s'] uncertainty that an [affidavit of merit] was required and the
absence of a Ferreira conference." The court acknowledged CFG filed a timely
answer, raising the affidavit of merit statute as a defense and providing the
names and specialties of the medical professionals involved. Citing Paragon
Contractors, Inc. v. Peachtree Condominium Association, 202 N.J. 415, 423, 426
(2010), the court reasoned "neither attorney inadvertence nor the court's failure
to hold a Ferreira conference warrant[ed] a finding of extraordinary
circumstances" and that plaintiffs "cannot create the extraordinary
circumstances upon which [they rely]."
On appeal of the court's May 12 order granting reconsideration of the
court's order dismissing plaintiffs' complaint with prejudice, plaintiffs argue the
following:
I. THE LOWER COURT IMPROPERLY REVERSED
ITS OWN DECISION ON
DEFENDANT/RESPONDENT'S MOTION FOR
RECONSIDERATION.
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II. PLAINTIFFS SHOULD NOT BE PENALIZED
BECAUSE A TIMELY AFFIDAVIT OF MERIT WAS
INITIALLY FILED, BUT NO FERREIRA
CONFERENCE WAS SCHEDULED OR
OTHERWISE HELD BY THE COURT BEFORE
DEFENDANT/RESPONDENT'S FILED ITS INITIAL
MOTION TO DISMISS.
II.
A decision on a motion for reconsideration is reviewed under the abuse of
discretion standard. See Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582
(2021). An abuse of discretion is a ruling that "represents a manifest denial of
justice." In re Estate of Lash, 329 N.J. Super. 249, 263 (App. Div. 2000).
We review de novo a trial court's decision to dismiss a complaint under
the affidavit of merit statute. Castello v. Wohler, 446 N.J. Super. 1, 14 (App.
Div. 2016). We also review de novo a trial court's determination of whether the
plaintiff has demonstrated extraordinary circumstances as a defense to the
affidavit of merit statute. Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super. 104,
113 (App. Div. 2011).
III.
We first consider whether the motion court abused its discretion by
granting reconsideration of its March 9, 2020 order. Plaintiffs contend CFG did
not argue the court's decision was arbitrary, capricious, or unreasonable, and
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that CFG only presented a general dissatisfaction with the court's order which is
not sufficient grounds for reconsideration under Rule 4:49-2. CFG argues that
Rule 4:49-2 applies only to final orders or judgments, and that the applicable
rule in this case is Rule 4:42-2 which applies to interlocutory orders.
As a preliminary matter, we address the appropriate standard. We recently
explained and distinguished the two discrete standards a trial court employs in
reconsideration. Lawson v. Dewar, 468 N.J. Super. 128 (App. Div. 2021).
"Rule 4:49-2 applies only to motions to alter or amend final judgments and final
orders, and [it] doesn't apply when an interlocutory order is challenged."
Lawson, 468 N.J. Super. at 134. A motion for reconsideration of a final order
pursuant to Rule 4:49-2 is considered under a more demanding standard that
requires a showing "that the challenged order was the result of a 'palpably
incorrect or irrational' analysis or of the judge's failure to 'consider' or
'appreciate' competent and probative evidence." Ibid. (quoting Cummings v.
Bahr, 295 N.J. Super. 374, 384 (1996)). On the other hand, reconsideration of
interlocutory orders under Rule 4:42-2 has a "far more liberal approach" in
comparison:
Rule 4:42-2 declares that interlocutory orders
"shall be subject to revision at any time before the entry
of final judgment in the sound discretion of the court in
the interest of justice." A motion for reconsideration
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does not require a showing that the challenged order
was "palpably incorrect," "irrational," or based on a
misapprehension or overlooking of significant material
presented on the earlier application. Until entry of final
judgment, only "sound discretion" and the "interest of
justice" guides the trial court, as Rule 4:42-2 expressly
states.
[Ibid.]
In its motion papers, CFG, despite its contention on appeal that the court
should have decided the motion under Rule 4:42-2, moved for reconsideration
pursuant to Rule 4:49-2. The motion judge, in turn, decided the motion under
the Rule 4:49-2 standard. However, because the March 9 order was not a final
order or judgment, the motion should have been reconsidered as an interlocutory
order under the standard set forth in Rule 4:42-2.
Despite the court's analysis using the heightened Rule 4:42-9 standard, its
conclusion is nonetheless correct. The court went beyond the appropriate, more
liberal Rule 4:42-2 standard, which grants wide discretion to amend
interlocutory orders in the interest of justice and found its own March 9 ruling
"failed to appreciate the significance of probative, competent evidence." The
court found that it erred "with respect to its analysis in finding extraordinary
circumstances by undervaluing the plain allegations of the [c]omplaint with
respect to medical malpractice and overvaluing both [p]laintiff's uncertainty that
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an [affidavit of merit] was required and the absence of a Ferreira conference."
The court identified what it viewed as an error in its analysis and sought to
correct it to conform with the law. Given the liberty our trial courts have to
revisit an interlocutory order in the interest of justice, we conclude the trial
court's order granting reconsideration was not an abuse of discretion.
We now consider the merits of whether plaintiffs' failure to submit a
timely affidavit of merit is excused by extraordinary circumstances. The
affidavit of merit statute requires plaintiffs in professional malpractice actions
to:
within 60 days following the date of filing of the answer
to the complaint by the defendant, provide each
defendant with an affidavit of an appropriate licensed
person that there exists a reasonable probability that the
care, skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional or
occupational standards or treatment practices. The
court may grant no more than one additional period, not
to exceed 60 days, to file the affidavit pursuant to this
section, upon a finding of good cause.
[N.J.S.A. 2A:53-27.]
In medical malpractice actions, N.J.S.A. 2A:53A-41 requires the expert
executing an affidavit of merit to "be equivalently-qualified to the defendant"
physician. Buck v. Henry, 207 N.J. 377, 389 (2011). In other words, when a
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defendant is a board-certified specialist, the plaintiffs must provide an affidavit
of merit from a physician board-certified in the same specialty. See N.J.S.A.
2A:53A-41(a).
"The failure to provide an [affidavit of merit] is considered 'a failure to
state a cause of action' under N.J.S.A. 2A:53A-29 and warrants a dismissal with
prejudice." A.T. v. Cohen, 231 N.J. 337, 346 (2017) (quoting N.J.S.A. 2A:53-
29). "The core purpose underlying the statute is 'to require plaintiffs . . . to make
a threshold showing that their claim is meritorious, in order that meritless
lawsuits readily could be identified at an early stage of the litigation.'" Paragon,
202 N.J. at 421 (quoting Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 242
(1998)).
Recognizing the harsh consequences of failing to comply with the
procedural requirements created by the statute, the Supreme Court in Ferreira
issued a mandate to trial courts to conduct a case management conference
("Ferreira conference") within ninety days of the service of an answer in all
malpractice actions. Ferreira, 178 N.J. at 154. The court explained:
At the conference, the court will address all discovery
issues, including whether an affidavit of merit has been
served on defendant. If an affidavit has been served,
defendant will be required to advise the court whether
he has any objections to the adequacy of the affidavit.
If there is any deficiency in the affidavit, plaintiff will
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have to the end of the 120-day time period to conform
the affidavit to the statutory requirements. If no
affidavit has been served, the court will remind the
parties of their obligations under the statute and case
law.
[Id. at 155.]
In addition to mandating check-in conferences, the Supreme Court has
carved out equitable exceptions to "temper the draconian results of an inflexible
application of the statute." Id. at 151. First, "[a] complaint will not be dismissed
if the plaintiff can show that he [or she] has substantially complied with the
statute." Id. at 155 (citing Palanque v. Lambert-Woolley, 168 N.J. 398, 405-06
(2001)). Second, "[w]here extraordinary circumstances are present, a late
affidavit will result in dismissal without prejudice." Ibid. (citing Cornblatt, 153
N.J. at 414-15). To determine whether extraordinary circumstances are present,
the court must engage in "a fact-sensitive [case-by-case] analysis." Tischler v.
Watts, 177 N.J. 243, 246 (2003) (alteration in original) (quoting Hartsfield v.
Fantini, 149 N.J. 611, 618 (1997)).
Our courts have recognized the affidavit of merit statute "does not impose
overly burdensome obligations. The plaintiff must keep an eye on the calendar
and obtain and serve the expert's report within the statutory timeframe."
Ferreira, 178 N.J. at 146. As such, the Supreme Court has firmly established
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"attorney inadvertence will not support the extraordinary circumstances
standard." Palanque, 168 N.J. at 405; see also Ferreira, 178 N.J. at 152 ("[W]e
do know that attorney inadvertence is not such a circumstance entitling plaintiff
to a remedy of dismissal of a complaint without prejudice."). "[P]arties are
presumed to know the law and are obliged to follow it." Triarsi, 422 N.J. Super.
at 122. Our Supreme Court has also held that despite the court's obligation to
conduct a Ferreira conference, the failure to do so is not by itself extraordinary
circumstances. Paragon, 202 N.J. at 426 ("[G]oing forward, reliance on the
scheduling of a Ferreira conference to avoid the strictures of the Affidavit of
Merit statute is entirely unwarranted and will not serve to toll the statutory time
frames.").
Applying these principles, we conclude the facts presented here do not
rise to extraordinary circumstances. The record can be summarized as
expiration of the 120-day calendar, combined with lack of a Ferreira conference.
The record neither reveals why the court did not schedule a Ferreira conference
nor why plaintiffs' counsel was unable to comply with the statutory burden or
seek a Ferreira conference to clarify their statutory obligation. Nonetheless, it
is well established that the court's oversight in scheduling a Ferreira conference
will not toll the statutory time frame or constitute extraordinary circumstances
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by itself. Paragon, 202 N.J. at 426. Similarly, attorney inadvertence does not
constitute extraordinary circumstances. Palanque, 168 N.J. at 405. These
circumstances, either individually or in combination, have not been recognized
as extraordinary.
Plaintiffs' reliance on Paragon is misplaced. In Paragon, a defendant
raised the affidavit of merit statute as a defense, but a Ferreira conference was
never conducted. 202 N.J. at 420. After the 120-day period, the court granted
defendant's motion to dismiss for failing to comply with the statute. Ibid. The
Supreme Court reversed, finding extraordinary circumstances due to conflicting
Appellate Division decisions regarding the tolling effect of a court's failure to
schedule a Ferreira conference. Id. at 425-26. The Court concluded with the
firm warning that "going forward, reliance on the scheduling of a Ferreira
conference . . . is entirely unwarranted and will not serve to toll the statutory
time frames." Id. at 426. The mixed-signals present in Paragon no longer exist,
and the case cannot be analogized to the circumstances here.
Plaintiffs' reliance on Buck is similarly misplaced. In Buck, the plaintiff
brought a medical malpractice claim against a defendant who was board -
certified in emergency medicine. 207 N.J. at 382. The plaintiff's counsel did
not know the capacity in which the defendant was practicing at the time, and so
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filed two affidavits from physicians board-certified in psychiatry and emergency
medicine. Ibid. No Ferreira conference was held, and the trial court dismissed
the complaint because the defendant certified that he treated plaintiff in his role
as a practitioner of family medicine, and the affidavits filed were not by
equivalent specialists. Id. at 383. The Supreme Court reversed, holding "[t]his
is not a case of a desperate plaintiff unable to find a physician willing to aver to
a claim of malpractice. . . . Rather, this is a case of a plaintiff who has made
good-faith attempts to satisfy the statute." Id. at 395. The Court concluded by
mandating that going forward, physician defendants must include in their answer
"the field of medicine in which he specialized, if any, and whether his treatment
of the plaintiff involved that specialty." Id. at 396.
Here, again plaintiffs' case is distinguishable from Buck. While it is true
a Ferreira conference was not held in either case, the similarities end there. CFG
complied with the mandate issued in Buck and identified the relevant medical
staff by name and specialty. Plaintiffs had every opportunity to produce a timely
filed affidavit by a similarly equivalent specialist. On this record, we discern
no extraordinary circumstances.
Affirmed.
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