The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
THE ESTATE OF GREGORY KUBIAK, :
et al., :
:
Plaintiffs, : Civ. No. 20-9478 (NLH) (KMW)
:
v. : OPINION
:
:
CFG HEALTH SERVICES, LLC, :
et al., :
:
Defendants. :
:
______________________________:
APPEARANCES:
Stephen D. Holtzman, Esq.
Jeffrey S. McClain, Esq.
Holtzman McClain & Londar, PC
524 Maple Avenue, Suite 200
Linwood, NJ 08221
Counsel for Defendants CFG Health Systems, LLC and
Gabrielle Frisbey
Conrad J. Benedetto, Esq.
Law Offices of Conrad J. Benedetto
1615 South Broad Street
Philadelphia, PA 19148
Frank R. Schirripa, Esq.
Hillary M. Nappi, Esq.
Hach Rose Schirripa & Cheverie, LLP
112 Madison Avenue, 10th Floor
New York, New York 10016
Counsel for Plaintiffs Estate of Gregory Kubiak and Joseph
Kubiak, As Administrator Ad Prosequendum of The Estate of
Gregory Kubiak
HILLMAN, District Judge
This matter arises out of the unfortunate suicide of
Gregory Kubiak while he was detained at the Cumberland County
Jail. His father and administrator of his estate, Joseph
Kubiak, filed this lawsuit against defendants Cumberland County,
former Cumberland County Jail Warden Richard Smith, CFG Health
Systems (“CFG”), Officer Richard Cotto, and Nurse Gabriella
Frisbey. ECF No. 1.
CFG and Nurse Frisbey move for partial summary judgment on
Plaintiff’s wrongful death and negligence claims. ECF No. 17.
They argue Plaintiff failed to obtain an affidavit of merit
(“AOM”) as required by New Jersey state law. Id. Plaintiff
opposes the motion. ECF No. 19. For the reasons stated below,
the Court will grant the motion in part.
I. BACKGROUND
Gregory Kubiak was arrested and taken to the Cumberland
County Jail on November 15, 2018. Complaint ¶ 13. At that
time, Gabrielle Frisbey worked at the jail as a registered nurse
employed by CFG, the jail’s medical care provider. Defendants’
Statement of Material Facts (“DSOMF”), ECF No. 17-2, ¶¶ 2-3. On
or about November 17, 2018, Mr. Kubiak hanged himself in his
cell. Complaint ¶ 36. He passed away from his injuries three
days later. Id. ¶ 46.
Plaintiffs filed this complaint on July 27, 2020. ECF No.
1. Defendants CFG and Nurse Frisbey filed their answer to the
complaint on September 10, 2020. ECF No. 4. On January 20,
2021, CFG and Nurse Frisbey filed the instant motion for partial
summary judgment on Counts Six and Seven of the Complaint,
alleging wrongful death and negligence, based on Plaintiff’s
alleged failure to comply with New Jersey’s affidavit of merit
statute, N.J.S.A. §§ 2A:53A-27, -29. ECF No. 17. Plaintiffs
argue they were not required to file an AOM for their claims,
or, in the alternative, that the common knowledge exception
applies. ECF No. 19.
II. STANDARD OF REVIEW
Summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56(c). A disputed
fact is material when it could affect the outcome of the suit
under the governing substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party. Id. at 250. The Court should view
the facts in the light most favorable to the non-moving party
and make all reasonable inferences in that party’s favor. Hugh
v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact. See Celotex Corp.
v. Carrett, 477 U.S. 317, 323 (1986). Once the moving party has
satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.” Anderson, 477 U.S. at 257.
“While the evidence that the non-moving party presents may be
either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
If the court determines that “the record taken as a whole
could not lead a rational trier or fact to find for the non-
moving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.
Co., 391 U.S. 253, 289 (1968)). Rule 56 mandates the entry of
summary judgment against the party who 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. Celotex Corp., 477 U.S. at 322.
III. DISCUSSION
A. Application of Statute
Plaintiffs argue that New Jersey’s affidavit of merit
statute does not apply to their wrongful death and negligence
claims. The statute requires, in relevant part, that a
plaintiff bringing a professional malpractice or negligence
claim
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....
N.J.S.A. § 2A:53A-27. “The submission of an appropriate
affidavit of merit is considered an element of the claim.
Failure to submit an appropriate affidavit ordinarily requires
dismissal of the complaint with prejudice.” Meehan v.
Antonellis, 141 A.3d 1162, 1169 (N.J. 2016) (internal citations
omitted). In determining whether the affidavit of merit statute
applies to a particular claim, courts must consider three
elements:
(1) whether the action is for “damages for personal
injuries, wrongful death or property damage” (nature of
injury); (2) whether the action is for “malpractice or
negligence” (cause of action); and (3) whether 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” (standard
of care).
Couri v. Gardner, 801 A.2d 1134, 1137–38, (N.J. 2002) (quoting
N.J.S.A. 2A:53A–27) (alteration in original). Here, the parties
dispute the third element.
The third element requires the Court to “determine if the
claim’s underlying factual allegations require proof of a
deviation from the professional standard of care applicable to
that specific profession. If such proof is required, an
affidavit of merit is required for that claim, unless some
exception applies.” Id. 1141.
[B]y asking whether a claim’s underlying factual
allegations require proof of a deviation from a
professional standard of care, courts can assure that
claims against licensed professionals acting in a
professional capacity that require proof of ordinary
negligence but not of a deviation from professional
standards are not encompassed by the statute. For
example, while the former standard would include
allegations that a psychiatrist failed to diagnose a
patient properly or provide proper treatment, it would
exclude allegations that a psychiatrist negligently
tripped a patient when the patient entered the doctor’s
office, which clearly would be outside the scope of the
statute.
Id.
Plaintiffs allege Gregory Kubiak was under the influence of
drugs or alcohol and suffering “from a serious medical condition
for which he was medicated” when he was booked into Cumberland
County Jail on November 15, 2018. Complaint ¶ 18. They further
allege Nurse Frisbey “reviewed notes that the Decedent was under
the influence of drugs or alcohol and that the Decedent suffered
from a serious medical condition for which he was medicated.”
Id. ¶ 19. “Frisbey either failed to check Decedent’s prior
medical history at the Cumberland County Jail or disregarded
Decedent’s prior medical history.” Id. ¶ 20. According to
Plaintiffs, Gregory Kubiak had been detained at the jail on a
prior occasion and “reported depression and was subsequently
treated for his anxiety with medication at the Cumberland County
Jail” and “CFG employees [] documented Decedent’s receipt of
prior medical treatment at the Cumberland County Jail for mental
health issues.” Id. ¶¶ 16-17.
“New Jersey case law makes clear that the language of the
complaint controls in affidavit of merit determinations . . . .”
Syndicate 1245 at Lloyd’s v. Walnut Advisory Corp., 721 F. Supp.
2d 307, 322 (D.N.J. 2010). Plaintiffs specifically invoke the
professional standard of care in a correctional setting by
citing to the National Commission on Correctional Health Care’s
(“NCCHC”) requirements that “upon arrival at a prison or a jail,
an inmate, or pretrial detainee must be given a psychiatric
screening.” Complaint ¶ 54. “During an appropriate screening,
an inmate’s past and present mental health problems must be
documented and thoroughly assessed. The inmate should be asked
questions that probe at potential mental illness indicators.”
Id. ¶ 57. “Upon information and belief, Decedent was not asked
questions that probed sufficiently to address mental illness
indicators or the Decedent’s responses were disregarded
completely.” Id. ¶ 58. “Upon information and belief, instead
of establishing an adequate screening and evaluation program,
CFG’s policy requires staff members to complete a one (1) or
half (½) page yes or no mental health checklist.” Id. ¶ 63.
The plain language of the Sixth and Seventh Claims also
reference the professional standard of care:
Defendants failed to use the recommended and accepted
standard of care, and/or violated established policies
and procedures with reckless abandon, subjecting the
Decedent to a violation of his constitutional right to
be free from cruel and unusual punishment under the
Eighth and Fourteenth Amendment of the United States
Constitution.
Id. ¶ 145 (Sixth Claim).
Defendants were negligent in their care and treatment of
Decedent in that they failed to care for and treat him
in accordance with the standard of care and skill
required of and ordinarily exercised by average,
qualified healthcare providers engaged in medical
practice in a correctional setting.
Id. ¶ 150 (Seventh Claim). This is “terminology typically
reserved for professional negligence actions.” Syndicate 1245
at Lloyd’s, 721 F. Supp. 2d at 316.
Plaintiffs’ allegations are not the same as ordinary
negligence, like a “psychiatrist negligently tripp[ing] a
patient when the patient entered the doctor’s office . . . .”
Couri v. Gardner, 801 A.2d 1134, 1141 (N.J. 2002). A factfinder
must consider and determine whether the average professional in
CFG and Nurse Frisbey’s position would have acted in such a
manner. Therefore, Plaintiffs must submit an affidavit of merit
on their claims unless some exception applies.
B. Common Knowledge Exception
Plaintiffs assert that the common knowledge exception
applies to their claims. “‘[T]he doctrine of common knowledge
permits exception to the general rule; when it is applied,
expert testimony is not needed to establish the applicable
standard of care.’ This exception applies only when the
defendant’s negligence is obvious ‘to anyone of average
intelligence and ordinary experience.’” Bornstein v. Monmouth
Cty. Sheriff’s Office, 658 F. App’x 663, 669 (3d Cir. 2016)
(quoting Estate of Chin v. St. Barnabas Med. Ctr., 734 A.2d 778,
785–86 (N.J. 1999)). The New Jersey Supreme Court has cautioned
that courts should narrowly construe the exception. Hubbard ex
rel. Hubbard v. Reed, 774 A.2d 495, 501 (N.J. 2001). By way of
example, courts have applied the exception to cases in which the
wrong tooth was extracted, Hubbard, 774 A.2d at 500–01, or in
which a pharmacist filled a prescription with the wrong drug,
Bender v. Walgreen E. Co., 945 A.2d 120, 123 (N.J. Sup. Ct. App.
Div. 2008). See also Est. of Allen v. Cumberland County, 262 F.
Supp. 3d 112, 116 (D.N.J. 2017) (citing cases).
Plaintiffs allege that Nurse Frisbey reviewed notes
indicating Gregory Kubiak was being medicated for an
unidentified medical condition and was under the influence of
drugs or alcohol at the time of his booking. They further
allege that Nurse Frisbey did not review Gregory Kubiak’s prior
medical history at the Cumberland County Jail or disregarded it
entirely despite knowing he had a medical condition and was
under the influence.
Sadly, this is not the first time this District has been
presented with facts like these. Not too long ago, the
Honorable Jerome B. Simandle addressed another case that had
been filed by the estate of a former Cumberland County Jail
detainee who completed suicide. Est. of Allen, 262 F. Supp. 3d
112. There, as here, defendants moved for summary judgment of
the negligence claims based on the lack of an affidavit of
merit. Judge Simandle concluded that the case law did “does not
support the contention that failure to evaluate properly Ms.
Allen’s psychiatric or psychological state upon her admission to
Cumberland County Jail . . . is similarly analogous so as to
fall under the common knowledge exception.” Id. at 117.
[W]ithout an elucidation of what made [Nurse] Garcia’s
evaluation improper, and without clarity as to how that
alleged breach of Garcia’s duty led to the harm
complained of, a jury of laypersons would not be able,
“using ordinary understanding and experience, to
determine [Garcia’s] negligence without the benefit of
specialized knowledge or experts.” An expert, of the
type specified by the AOM Statute, is precisely what lay
finders of fact would need: to describe the standard of
nursing care applicable to the evaluation of Ms. Allen
under these circumstances, and that there is a
reasonable probability that Garcia breached that
standard.
Id. at 117-18 (quoting Estate of Chin v. St. Barnabas Med. Ctr.,
734 A.2d 778, 786 (N.J. 1999))(final alteration in original).
This Court is persuaded that Judge Simandle’s reasoning
applies equally well in this matter. Plaintiffs specifically
allege that the evaluation process failed to comply with
national standards in correctional medicine. Ordinary
understanding and experience are not enough to assist a
factfinder in determining whether a mental health screening in a
correctional setting was conducted “properly”; expert testimony
is needed to establish the applicable standard of care.
Therefore, an affidavit of merit was required within 120 days of
CFG’s and Nurse Frisbey’s answer.
That being said, Judge Simandle specifically noted a
situation in which an affidavit of merit likely would not be
required:
In this case, the sole basis for the allegations of
professional negligence against [Nurse] Garcia appears
to be that she failed to evaluate Ms. Allen “properly”
with respect to her mental health during Ms. Allen’s
intake into Cumberland County Jail, and that Ms. Allen
(presumably) hanged herself between one and two days
later. This is not the case where Garcia failed to
evaluate Ms. Allen at all, or Garcia ignored mention of
or reference to suicidal thoughts or ideation, or
evaluated only Ms. Allen’s physical status and not her
mental health or well-being. Such a claim could,
perhaps, fall under the common knowledge exception.
Est. of Allen, 262 F. Supp. 3d at 117. Judge Simandle later
applied this hypothetical exception to another jail suicide case
out of Cumberland County:
This Court recently examined the common knowledge
exception in light of an analogous fact pattern (the
alleged failure to screen an inmate “properly” for
suicidal ideation and risk of suicide) in Estate of Allen
v. Cumberland County, 262 F. Supp. 3d 112 (D.N.J. 2017).
. . . .
As in Estate of Allen, the basis for the allegations of
professional negligence against the treating medical
personnel appears to be that they failed to evaluate the
decedent properly with respect to his mental health
during his intake into Cumberland County Jail, and that
he (presumably) hanged himself a short time later.
The Court then ruled that an AOM was necessary because
without an elucidation of what made the nurse’s
evaluation improper, and without clarity as to how that
alleged breach of her duty led to the harm complained
of, a jury of laypersons would not be able, using
ordinary understanding and experience, to determine the
nurse’s negligence without the benefit of specialized
knowledge or experts.
However, the Court carefully delineated and excluded the
possibility that the complaint in Estate of Allen
alleged that the nurse failed to evaluate the decedent
at all, or ... ignored mention of or reference to
suicidal thoughts or ideation, or evaluated only the
decedent’s physical status and not her mental health or
well-being, and noted that such a claim could, perhaps,
fall under the common knowledge exception. The same
distinction will apply here between claims of negligence
premised on a healthcare professional’s incomplete,
inadequate or erroneous mental status examination on the
one hand, and failure to make any observations of mental
well-being (or perhaps a disregard of clear mention of
suicidality) on the other.
Accordingly, and in keeping with the Court’s
determination in Estate of Allen, the Court will grant
CFG’s motion to the extent that Plaintiff’s claims of
negligence against CFG are premised upon the failure of
CFG’s agents or employees to “properly” evaluate or
monitor Mr. Lewis, and deny CFG’s motion to the extent
that Plaintiff’s claims of negligence are premised upon
a different theory of liability as described above.
Est. of Lewis v. Cumberland Cty., No. 16-3503, 2018 WL 1317853,
at *6-7 (D.N.J. Mar. 14, 2018) (cleaned up).
Plaintiffs do not only allege that Nurse Frisbey did not
conduct a “proper” mental health screening; they allege that she
did not review Gregory Kubiak’s medical history at all or
ignored it entirely after reviewing it. Complaint ¶ 20. If
true, the average juror could conclude that was negligent
behavior. It does not take an expert for one to know that a
medical professional should review and consider a patient’s
medical history before treatment. The Court is persuaded by
Judge Simandle’s reasoning in Estate of Allen and Estate of
Lewis that this sort of claim would fall within the common
knowledge exception. “Further factual development is needed on
the issue of fact whether any mental health examination and
observations were made by a healthcare professional.” Est. of
Lewis, No. 16-3503, 2018 WL 1317853, at *7.
To summarize, Plaintiffs are barred by New Jersey law from
asserting that CFG and Nurse Frisbey are liable for a deviation
from a standard of care in improperly evaluating Gregory
Kubiak’s suicidality due to failure to supply an AOM within the
statutory 120 days. Plaintiffs’ claims are not barred to the
extent they assert that CFG and its employees failed to perform
any evaluation of Gregory Kubiak’s medical history.
IV. CONCLUSION
For the reasons set forth above, the Court will grant
summary judgment in part. The denial is without prejudice to
Defendants’ ability to seek summary judgment on the merits.
An appropriate Order follows.
Dated: August 25, 2021 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.