Robert Melber v. United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3271
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ROBERT MELBER,
Appellant
v.
UNITED STATES OF AMERICA, as substituted for Keegan Johnson, M.D.;
SCOTT M. WALSMAN, M.D.; and JUNG S. LEE, M.D.;
NEELAKSHI BHAGAT, M.D.; AMIR COHEN, M.D.;
JOHN DOE, M.D. I-V (said names being fictitious, true identities presently unknown);
XYZ CORROPORATIONS I-V (said names being fictitious,
true identities presently unknown)
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-11-cv-03510)
District Judge: Honorable Esther Salas
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Argued April 17, 2013
Before: AMBRO, HARDIMAN, and COWEN, Circuit Judges
(Opinion filed: May 31, 2013)
Thomas C. Martin, Esquire
Michael J. Noonan, Esquire (Argued)
Nowell, Amoroso, Klein & Bierman
155 Polifly Road
Hackensack, NJ 07601
Counsel for Appellant
Michael Campion, Esquire
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee United States of America
Gary L. Riveles, Esquire (Argued)
Dughi, Hewit & Domalewski
340 North Avenue, Suite 2
Cranford, NJ 07016
Counsel for Appellees Neelakshi Bhagat and Amir Cohen
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OPINION
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AMBRO, Circuit Judge
Plaintiff-Appellant Robert Melber appeals the District Court’s dismissal of his
medical malpractice action for failure to comply with the requirements of the New Jersey
Tort Claims Act, N.J.S.A. 59:1-1 et seq., (the “New Jersey Act,” or simply the “Act”).
Though this is a sympathetic case, New Jersey law, which governs this case, would
stretch too far were we to reverse.
In May and June of 2009, Melber—a veteran of the United States Navy—received
two eye surgeries at the U.S. Veteran’s Administration Hospital in East Orange, New
Jersey. He subsequently lost vision in his right eye and filed malpractice claims against,
among others, the two surgeons who performed the operations, Drs. Neelakshi Bhagat
and Amir Cohen (the “Doctors”). The Doctors, however, were employees of the State of
New Jersey through the University of Medicine and Dentistry of New Jersey
2
(“UMDNJ”). Because sovereign immunity would ordinarily preclude tort claims made
against these state employees, Melber had to satisfy procedural requirements of the Act to
abrogate their sovereign immunity.
Those procedures were not satisfied. Although Melber filed notice of his federal
tort claims, he never filed the notice required by the New Jersey Act. See N.J.S.A. 59:8-
8(a) (“The claimant shall be forever barred from recovering against a public entity or
public employee if . . . [h]e failed to file his claim with the public entity within 90 days of
accrual of his claim except as otherwise provided . . . .”); see also id. at 59:8-9 (“A
claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8
of this act . . . may, in the discretion of a judge of the Superior Court, be permitted to file
such notice at any time within one year after the accrual of his claim[,] provided that the
public entity or the public employee has not been substantially prejudiced thereby[]” and
there are “sufficient reasons constituting extraordinary circumstances for his failure to
file notice of claim within the period of time prescribed”). Because no required notice
was ever supplied, the District Court granted dismissal as to the Doctors for lack of
subject matter jurisdiction.1 Fed. R. Civ. P. 12(b)(1).
Melber argues that it was impossible for him to supply timely notice under the Act
because he was led to believe that the Doctors were federal—not state—employees
throughout the entire statutory notice period. He points to a July 29, 2010 letter from the
1
The District Court had jurisdiction pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2679. We have jurisdiction under the interlocutory appeal
provision of 28 U.S.C. § 1292(b), and exercise plenary review of the District Court’s
dismissal under Federal Rule of Civil Procedure 12(b)(1), In re Kaiser Group Int’l Inc.,
399 F.3d 558, 561 (3d Cir. 2005).
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Department of Veterans Affairs as the first indication that he “was notified that Drs.
Bhagat and Cohen may have a relationship with UMDNJ.” Melber’s Br. at 4. The
District Court, however, acknowledged this, and concluded that the date of claim accrual
tolled until July 29, 2010 (the date of the letter). We agree. “The discovery rule provides
that in an appropriate case a cause of action will be held not to accrue until the injured
party discovers, or by an exercise of reasonable diligence and intelligence should have
discovered[,] that he may have a basis for an actionable claim.” McDade v. Siazon, 32
A.3d 1122, 1131 (N.J. 2011) (citation and internal quotation marks omitted).
Specifically, where a plaintiff-patient had no reason to believe that his physician was a
public employee, this presents “unique circumstances” that allow the time bar to toll.
Eagan v. Boyarsky, 731 A.2d 28, 34 (N.J. 1999). Here, the July 29, 2010 letter explained
that the Doctors “are contract physicians and not employees of the [federal] Agency,” and
goes on to name “the contractor” as “UMDNJ.” J.A. at 38. Even if this was not full
notice, reasonable diligence required additional inquiry at that point. Therefore, because
Melber did not file any tort claim notice in the year following the July 29, 2010 accrual
date—or at any time for that matter—his claim is barred under the terms of the Act.
Melber contends that he should be excused from his failure to file notice. In
support of his position, he relies on Eagan, where the Supreme Court of New Jersey
excused a plaintiff’s failure to file on similar facts. 731 A.2d at 34. Although facially
analogous, Eagan does not control here. In concluding that tolling was warranted for
obscured public employee status, Eagan forgave the failure to file because the plaintiff
“undoubtedly believed that a late notice would be barred by the one-year time barrier of
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N.J.S.A. 59:8–9,” and because he “nonetheless acted promptly to protect his rights.” Id.
at 33. Neither rationale applies to the facts before us. First, because Eagan clearly
established that tolling applies under these very circumstances, the justification for
Eagan’s failure to file—legal uncertainty as to the viability of tolling—no longer exists.
See, e.g., D.D. v. Univ. of Med. & Dentistry of New Jersey, 61 A.3d 906, 921 (N.J. 2013)
(allowing extraordinary circumstances based on “a reasonable, albeit ultimately mistaken,
perception of the Act’s requirements,” but not on “an attorney’s inattention to a file, or
even ignorance of the law”). The bigger problem is that we know of no indication that
Melber acted promptly to protect his rights on learning that the Doctors were state
employees.
Melber’s arguments aimed at the sufficiency of the evidence establishing the
Doctors as UMDNJ employees are also unavailing. As explained, even if the July 29,
2010 letter did not itself constitute notice, it should have invited additional inquiry. And,
there is no serious contention that the Doctors were not actually UMDNJ employees. See
J.A. at 181–82 (Doctors’ employment letters).
Finally, to the extent Melber argues that his federal tort claims notice should
suffice to provide the notice required by the New Jersey Act, we find no compelling
support for this proposition. Instead, the Supreme Court of New Jersey appears to have
implicitly declined to equate the two unrelated forms of notice. Cf. Ventola v. New
Jersey Veteran’s Mem’l Home, 751 A.2d 559, 563–64 (N.J. 2000) (failing to adopt
federal notice as a timely substitute for state-law notice, but noting that allowing
substitute notice between state agencies counseled in favor of applying the extended one-
5
year filing period pursuant to N.J.S.A. 59:8-9). Ventola is not our case, and, moreover,
we are beyond the one-year period after July 29, 2010.
In this context, because notice was not properly supplied under the Act, we have
no choice but to affirm the District Court’s order dismissing Melber’s complaint as to
Drs. Bhagat and Cohen.2
2
The parties dispute whether an answer was filed containing the affirmative defense of
failure to provide notice under the Act. After considering the submissions of the parties,
we are satisfied that—whatever transpired before the Superior Court prior to removal—
Melber’s counsel at least received a copy of the answer submitted to the state trial court
and was on notice of this defense. See Reale v. Twp. of Wayne, 332 A.2d 236, 240 (N.J.
Super. Ct. Law Div. 1975) (concluding that a failure to provide notice of tort claims “may
be excused by the court under appropriate circumstances,” and so excusing where
“[p]laintiffs . . . complained of no surprise or prejudice and the court perceive[d] none”).
Moreover, the Appellate Division of the New Jersey Superior Court has also suggested
that tort claim notice is jurisdictional by describing it as “an indispensable jurisdictional
prerequisite to the prosecution of common law tort claims against a public entity.” State
v. J.R.S., 939 A.2d 226, 229 (N.J. Super. Ct. App. Div. 2008). Finally, to the extent this
requirement is not jurisdictional, we also deem Melber’s argument that the Doctors failed
to plead this affirmative defense waived because “ordinarily ‘an appellant’s failure to
identify or argue an issue in his opening brief [the case here] constitutes waiver of that
issue on appeal.’” United States v. Andrews, 681 F.3d 509, 532 (3d Cir. 2012) (quoting
United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005)).
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