JACKSON v. MILLER

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ANTHONY MAURICE JACKSON,

Plaintiff, Case No. 2:21-cv-09404 (BRM)

v. OPINION

DR. SCOTT MILLER, et al.,

Defendants.

MARTINOTTI, DISTRICT JUDGE

Before the Court is a Motion for Partial Summary Judgment filed by Defendants Barrington

Lynch, M.D. (“Lynch”) and Alejandrina Sumicad, APN (“Sumicad”) (collectively, “Defendants”)

seeking to dismiss Anthony Maurice Jackson’s (“Plaintiff”) state law medical

malpractice/negligence claims against them pursuant to Federal Rule of Civil Procedure 56(c) for

failure to comply with New Jersey’s Affidavit of Merit (“AOM”) Statute, N.J.S.A.

§§ 2A:53A-26 through -29. (ECF No. 69.) Plaintiff filed a response (ECF No. 72), Defendants

filed a reply (ECF No. 73), and Plaintiff filed a sur-reply (ECF No. 74). Having reviewed the

parties’ submissions filed in connection with the Motion and having declined to hold oral argument

pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below, and for good

cause having been shown, the Motion for Partial Summary Judgment is GRANTED IN PART

and DENIED IN PART.

I. BACKGROUND

In April 2021, Plaintiff, a prisoner confined at East Jersey State Prison, filed his initial

Complaint alleging Defendants acted with deliberate indifference to his serious medical needs in

violation of 42 U.S.C. § 1983 and committed medical malpractice in the follow up treatment to

Plaintiff’s knee replacement surgery. (See ECF No. 1.) On August 3, 2021, Plaintiff filed an

application to proceed in forma pauperis (“IFP”). (See ECF No. 9.) On October 5, 2021, the Court

granted Plaintiff’s IFP application and screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2)

and 1915A. (See ECF Nos. 12 and 13.) The Court dismissed the Complaint without prejudice for

failure to state a claim upon which relief can be granted. (See id.) Plaintiff moved to amend the

Complaint and on June 28, 2022, Honorable James B. Clark, III, U.S.M.J. permitted Plaintiff’s

Amended Complaint to proceed as to his medical claims against Defendants and dismissed

Plaintiff’s remaining claim. (See ECF No. 19.) Judge Clark instructed Plaintiff to “file and serve

the Amended Complaint, as modified by [Judge Clark’s] Opinion and Order, within thirty (30)

days.” (Id. at 12.) Although Plaintiff failed to file his Amended Complaint as instructed, he did

complete service of the Amended Complaint as to Defendants, and Defendants filed an Answer

on September 22, 2022. (ECF No. 24.) In their Answer, Defendants included a demand that

Plaintiff provide an AOM pursuant to N.J.S.A. 2A:53A-27 et seq. (Id. at 15.) Defendants further

alleged the following with respect to their medical specialties: “Defendant, Barrington Lynch,

M.D. is a licensed physician specializing in Internal Medicine. Defendant Alejandrina Sumicad,

APN is a licensed Advanced Practice Nurse. The care and treatment rendered to Plaintiff in this

action by these defendants was within their aforementioned medical specialties.” (Id. at 14.)

On January 25, 2023, following several requests for extension of time from Plaintiff, Judge

Clark issued a Letter Order in which the Court (1) vacated its prior directive for Plaintiff to file the

Amended Complaint, instead directing the Clerk of the Court to file the Amended Complaint that

was annexed to Plaintiff’s motion to amend; and (2) noted that the only remaining Defendants in

the instant matter were Defendants Lynch and Sumicad, who served their Answer to the Amended

Complaint on September 22, 2022. (ECF No. 31.) The same day, the Clerk of the Court filed

Plaintiff’s Amended Complaint. (ECF No. 32.)

The gravamen of Plaintiff’s Amended Complaint is that Defendants provided inadequate

medical care and were deliberately indifferent to his medical needs following a total left knee

replacement. (See generally id.) The Amended Complaint submits that following Plaintiff’s knee

replacement surgery, he developed an infection. (Id. at ¶ 27-28.) Plaintiff submits that, as a result

of Defendants’ deliberate indifference for over a year, Plaintiff experienced “pain and suffering”

from a “serious infection and nearly lost his life because his blood was infected.” (Id. at ¶ 30.) As

a result of these symptoms, Plaintiff was required to undergo several additional medical procedures

on his left knee, including the insertion of a spacer into his knee on October 19, 2019, another

medical procedure on August 5, 2020, and finally another total knee replacement and removal of

the spacer on August 6, 2020. (Id. at ¶¶ 32-35.)

On February 10, 2023, Plaintiff requested “a time extension for the purpose of seeking

professional representation.” (ECF No. 37.) Prior to the Court receiving Plaintiff’s letter,

Defendants filed their first motion for partial summary judgment, arguing Plaintiff’s medical

malpractice claims must be dismissed for failure to serve an AOM within the statutorily prescribed

window of 120 days after Defendants’ Answer was served on September 22, 2022. (ECF No. 36.)

On March 9, 2023, Plaintiff filed a motion for denial or stay of Defendants’ first motion for partial

summary judgment and for the appointment of pro bono counsel for the limited purpose of helping

Plaintiff obtain an AOM. (ECF Nos. 38, 39.) Judge Clark denied Defendants’ first motion for

partial summary judgment without prejudice as premature and appointed pro bono counsel for the

limited purpose of assisting Plaintiff in determining whether he could obtain an AOM. (See ECF

No. 42.) Judge Clark also extended the time in which Plaintiff had to file a timely AOM until sixty

days from the date pro bono counsel made an appearance in this matter. (See id. at 10.)

On July 11, 2023, pro bono counsel was appointed to represent Plaintiff. (ECF No. 46.) On

September 13, 2023, Plaintiff was granted forty-five (45) more days to engage an expert to sign

an AOM. (ECF No. 69-3, Def. Stat. of Mat. Facts (“DSOMF”), ¶ 8.) On October 31, 2023,

Defendants filed their second motion for partial summary judgment as an AOM had not been

served on them. (Id. at ¶ 9.) On November 16, 2023, a status conference was entertained by Judge

Clark, at which time Defendants’ October 31, 2023 second motion for partial summary judgment

was administratively terminated and the statutory deadline for the AOM was stayed. (Id. at ¶ 10.)

The parties participated in a settlement conference on February 5, 2024. (Id. ¶ 13.) On

March 25, 2024, during a status conference, pro bono counsel advised that multiple providers in

New Jersey had refused to sign an AOM, but counsel found an expert in Florida, specializing in

Orthopedic Surgery, willing to sign an AOM. (Id. at ¶ 14.) At that time, the deadline for an AOM

was further stayed. (Id. at ¶ 16.)

Defendants submit that on November 16, 2023 and February 4, 2024, Defendants advised

pro bono counsel that the requisite specialties for an AOM were Internal Medicine and Nursing.

(DSOMF at ¶¶ 11, 13.) On March 25, 2024, in response to pro bono counsel’s statement that he

intended to procure an AOM from an Orthopedic Surgeon, defense counsel objected, reminding

pro bono counsel that Defendants are an Internal Medicine doctor and an Advanced Practice Nurse.

(Id. at ¶ 15.) Plaintiff indicates that he does not have reliable information, nor can he investigate

Defendants claims that they repeatedly informed defense counsel of the requisite specialties. (ECF

No. 72 at 3-4.)

On April 22, 2024, another status conference resulted in a Letter Order dated April 22,

2024, setting an April 26, 2024 deadline for serving an AOM. (Id. at ¶ 17.) No AOM was served

on Defendants by April 26, 2024. (Id. at ¶ 19.) On April 30, 2024, pro bono counsel served an

AOM by Dr. Omar D. Hussamy, M.D. on Defendants. (Id. at ¶ 20.)

Dr. Hussamy’s AOM is dated April 22, 2024. (ECF No. 69-2 at 64-65, Plaintiff’s AOM.)

According to Plaintiff’s AOM, Dr. Hussamy, is an Orthopedist licensed in Florida, New York,

California, and Texas. (Id. at ¶ 2.) Dr. Hussamy received his M.D. from University of Virginia

Medical School in 1988 and completed his Orthopedic Surgery residency at University of North

Carolina at Chapel Hill. (Id.) Dr. Hussamy completed a fellowship in Sport Medicine and Hand

Surgery and is board certified in foot surgery. (Id. at ¶¶ 2-3.) Dr. Hussamy “devoted [his] practice

substantially to orthopedics for the last 35 years” and had “performed the same surgery involved

in this matter many times.” (Id. at ¶ 3.) Dr. Hussamy averred that his “education, training, and

expertise clearly relate to the general area or specialty involved in this action.” (Id. at ¶ 4.) Dr.

Hussamy reviewed Plaintiff’s medical records and opined:

[T]here exists a reasonable probability that the care, skill, or

knowledge exercised by his physician, Dr. Scott Miller, M.D. and

St. Francis Medical Center and Dr. Lynch of East Jersey State

Prison, fell outside of acceptable professional standards of medical

care or the accepted treatment practices, in that he failed to

appropriately perform the surgery, which led to multiple

complications and in that they failed to properly address his

post-surgical complaints, leading to additional pain, suffering, and

the need to additional surgeries.

(Id. at ¶ 6.)

In a letter dated May 1, 2024, defense counsel objected to the AOM, noting that Dr.

Hussamy is a specialist in Orthopedic Surgery and Defendant Lynch is a specialist in Internal

Medicine. (Id. at ¶ 22, citing ECF No. 69-2 at 67, Ex. H.) Defense counsel submitted that Dr.

Hussamy did not meet the statutory requirements of the AOM statute because Plaintiff’s “affiant

must specialize in the same specialty as the defendant upon whom he is opining.” (ECF No. 69-2

at 67.)

On May 17, 2024, Defendants filed the instant motion for partial summary judgment. (ECF

No. 69.) Defendants argue that they are entitled to summary judgment on Plaintiff’s medical

malpractice claims because (1) Plaintiff failed to serve Defendants with a timely AOM, and (2)

the AOM fails to comply with the same specialty requirement of N.J.S.A. 2A:53A-41. (See

generally ECF No. 69-3.) Plaintiff filed an opposition (ECF No. 72), Defendants filed a reply (ECF

No. 73), and Plaintiff filed a sur-reply (ECF No. 74.)

II. LEGAL STANDARD

A court shall grant summary judgment under Rule 56 of the Federal Rules of Civil

Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits . . . show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986). The mere existence of an alleged disputed fact is not enough. Rather,

the opposing party must prove there is a genuine issue of a material fact. Id. An issue of material

fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. at 248. A fact is material if, under the governing substantive law, a dispute

about the fact might affect the outcome of the lawsuit. Id. Factual disputes that are irrelevant or

unnecessary will not preclude summary judgment. Id.

On a summary judgment motion, the moving party must first show that no genuine issue

of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts

to the nonmoving party to present evidence that a genuine issue of material fact compels a trial.

Id. at 324. To meet its burden, the nonmoving party must offer specific facts that establish a

genuine issue of material fact, not just “some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Thus, the

nonmoving party cannot rely on unsupported assertions, bare allegations, or speculation to defeat

summary judgment. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.

1999). The Court must, however, consider all facts and their reasonable inferences in the light

most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.

1995).

In a precedential decision, the Third Circuit expressly held that “the affidavit of merit is

not a pleading requirement” in federal court (citing Chamberlain v. Giampapa, 210 F.3d 154, 160,

3d Cir. 2000), and instructed that such motions for dismissal are properly brought under Fed. R.

Civ. P. 56 as motions for summary judgment.1 See Nuveen Mun. Tr. v. Withumsmith Brown, P.C.,

692 F.3d 283, 303 n.13 (3d Cir. 2012) (“That the affidavit [of merit] is not a pleading requirement

counsels that a defendant seeking to ‘dismiss’ an action based on the plaintiff’s failure to file a

timely affidavit should file a motion for summary judgment under Rule 56, and not a motion to

dismiss for failure to state a claim under Rule 12(b)(6).”).

1 The affidavit of merit statute states that failure to provide an affidavit of merit “shall be deemed

a failure to state a cause of action,” N.J.S.A. 2A:53A-29, but the timeline for filing an affidavit of

merit is triggered by defendant’s filing of an answer. Though state courts construe the failure to

file an affidavit as the failure to state a claim at the pleading stage, see Ferreira v. Rancocas

Orthopedic Assocs., 178 N.J. 144, 150 (2003) (“the plaintiff’s failure to serve an affidavit within

120 days of the filing of the answer is considered tantamount to the failure to state a cause of

action, subjecting the complaint to dismissal with prejudice.”), the Third Circuit does not consider

the affidavit of merit a pleading requirement or cause for dismissal under Rule 12(b)(6) because

the affidavit of merit requirement is triggered only after the answer is filed.

III. DECISION

Defendants argue Plaintiff’s state tort claims must be dismissed because Plaintiff did not

comply with New Jersey’s AOM Statutes, N.J.S.A. § 2A:53A-27 and N.J.S.A. § 2A:53A-41. (See

ECF No. 69-3.)

A. The AOM Statutory Scheme

In an action alleging professional malpractice, New Jersey requires an AOM. See AOM

Statute, N.J.S.A. §§ 2A:53A–26 to 29.2 The AOM is a statement by an expert that the defendant

professional breached an applicable duty of care. N.J.S.A. § 2A:53A-27. See generally Ryan v.

Renny, 203 N.J. 37 (2010); Szemple v. Univ. of Med. & Dentistry of N.J., 162 F. Supp. 3d 423, 426

(D.N.J. 2016). “The stated purpose of the AOM statute, is laudatory—to weed out frivolous claims

against licensed professionals early in the litigation process.” Meehan v. Antonellis, 141 A.3d

1162, 1169 (N.J. 2016) (internal citation omitted).

The AOM statute states in relevant part:

In any action for damages for personal injuries, wrongful death or

property damage resulting from an alleged act of malpractice or

negligence by a licensed person in his profession or occupation, the

plaintiff shall, 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.

2 A federal court must apply the AOM requirement to malpractice claims under New Jersey law,

whether under diversity jurisdiction or the Federal Tort Claims Act. See Kindig v. Gooberman,

149 F.Supp.2d 159, 163 (D.N.J. 2001) (diversity case (citing Chamberlain, 210 F.3d at 157));

Fontanez v. United States, 24 F.Supp.3d 408, 411 (D.N.J. 2014) (FTCA case (citing Staub v.

United States, No. 08–2061, 2010 WL 743926, at *2 (D.N.J. Mar. 3, 2010))). A fortiori, it applies

to state law claims brought in their own right, pursuant to the Court’s supplemental jurisdiction.

28 U.S.C. § 1367.

N.J.S.A. § 2A:53A–27. “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.” Id. “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, 141 A.3d at 1169.

The AOM statute defines the class of cases in which an AOM must be filed. An AOM is

required in “all actions for damages based on professional malpractice,” Ryan, 999 A.2d at 435,

brought against “a licensed person in his profession or occupation,” N.J.S.A, § 2A:53A-27. The

AOM statute specifies sixteen such professions and occupations. See N.J.S.A. § 2A:53A-26.

Relevant here, a covered professional includes “a physician in the practice of medicine or surgery

pursuant to [N.J.S.A. § 45:9-1 to -58]” and “a registered professional nurse pursuant to [N.J.S.A.

§ 45:11-23 to -67.]” N.J.S.A. § 2A:53A-26.

The AOM statute also sets out who is qualified to be an affiant of an AOM. See N.J.S.A.

§ 2A:53A-27. In medical malpractice cases, such as this one, N.J.S.A. § 2A:53A-41 (“Section 41”)

controls and sets a “kind-for-kind” standard of eligibility to be an AOM affiant, which imposes

various criteria depending on the level of specialization. Section 41 “generally requir[es] that the

challenging expert be equivalently-qualified to the defendant.” Lomando v. United States, 667 F.3d

363, 382–83 (3d Cir. 2011); see also Nicholas v. Mynster, 213 N.J. 463, 467 (2013) (explaining

that plaintiff’s medical experts must possess the statutory credentials necessary to testify against

defendant physicians”). In other words, if the allegedly negligent doctor was a specialist in a

recognized specialty and the care or treatment at issue involves that specialty, the affiant must be

a specialist in that specialty; if the allegedly negligent doctor was board certified in a recognized

specialty and the care or treatment at issue involves that specialty, the affiant must be board

certified in that specialty. See N.J.S.A. 2A:53A-41(a). Furthermore, N.J.S.A. 2A:53A-41(a)

“requires that plaintiff[’s] medical expert must ‘have specialized at the time of the occurrence that

is the basis for the [malpractice] action in the same specialty or subspecialty’ as defendant[’s]

physicians.” Nicholas, 213 N.J. at 468. Moreover, “a defendant physician must indicate in [her]

answer, if [s]he acknowledges treating the patient, the specialty, if any, in which [s]he was

involved when rendering treatment.” Buck v. Henry, 207 N.J. 377, 383 (2011); see also N.J. Ct. R.

4:5-3 (codifying that disclosure requirement).

B. Timeliness

Defendants first argue that Plaintiff’s state law medical malpractice claims should be

dismissed because Plaintiff’s AOM was not timely. (ECF No. 69-3 at 6-11.) Defendants claim that

Plaintiff failed to serve this AOM on Defendant Lynch by the April 26, 2024 Court issued deadline.

Additionally, Defendants argue that at this time Plaintiff has still failed to serve Defendant

Sumicad with an AOM. (See id.)

As noted above, pursuant to the AOM statute, the affidavit of merit “must be provided

within 60 days after the defendant files its answer.” Nuveen Mun. Tr., 692 F.3d at 290 (citing

N.J.S.A. § 2A:53A-27). However, “[f]or good cause shown, the Statute provides one extension

period of an additional 60 days contiguous to the initial 60-day period.” Id. (citing N.J.S.A.

§ 2A:53A-27). As explained by the Third Circuit, “[t]he penalty for not following the . . . Statute

is severe. Absent a showing of one of four limited exceptions, the failure to file the affidavit ‘shall

be deemed a failure to state a cause of action.’” Id. at 290-91 (quoting N.J.S.A. § 2A:53A-29).

“The four limited statutory exceptions are (i) a statutory exception regarding lack of information;

(ii) a ‘common knowledge’ exception; (iii) substantial compliance with the affidavit of merit

requirement; or (iv) ‘extraordinary circumstances’ that warrant equitable relief.” Id. at 305

(citations omitted); see N.J.S.A. § 2A:53A-28.

First, Defendants argue that to date Plaintiff has failed to procure an AOM relevant to

Defendant Sumicad. Magistrate Judge Clark set a deadline of April 26, 2024 for Plaintiff to serve

a timely AOM on Defendants. (See ECF No. 68.) Dr. Hussamy authored an AOM on April 22,

2024. (See ECF No. 69-2 at 64-65.) However, the AOM does not implicate Defendant Sumicad.

(See id.) In the AOM, Dr. Hussamy opined “there exists a reasonable probability that the care,

skill, or knowledge exercised by his physician, Dr. Scott Miller, M.D. and St. Francis Medical

Center and Dr. Lynch of East Jersey State Prison, fell outside of acceptable professional standards

of medical care or the accepted treatment practices.” (Id. at 65.) The AOM offers no opinion on

the actions of Defendant Sumicad. Therefore, the Court finds Plaintiff has failed to timely serve

Defendant Sumicad with an AOM and Plaintiff’s state law tort claims against Defendant Sumicad

are dismissed with prejudice.

Next, Defendants argue that the AOM was untimely served on Defendant Lynch.

Defendants argue that even though the Magistrate Judge provided Plaintiff with extensions and

stayed the AOM deadline, Plaintiff failed to serve his AOM by the Court ordered April 26, 2024

deadline. On March 31, 2023, Magistrate Judge Clark found the pleadings here were not fixed

until January 25, 2023, when the Magistrate Judge ordered the Clerk of the Court to file Plaintiff’s

Amended Complaint and deemed the Amended Complaint as answered by Defendants’ September

22, 2022 filing. (See ECF No. 42 at 5.) Accordingly, the 120-day period to file a AOM was not set

to expire until May 25, 2023.

The Magistrate Judge then appointed pro bono counsel to assist Plaintiff in obtaining an

AOM. It was determined Plaintiff was diligent in requesting the appointment of pro bono counsel

and that the factual investigation and analysis that was necessary for Plaintiff to secure an AOM

appeared to “go beyond Plaintiff’s abilities while he is incarcerated.” (Id. at 5-8.) It was also noted

that Plaintiff had repeatedly represented he had not been able to obtain medical record and was

therefore hindered in conducting factual investigation. (Id. at 8, citing ECF Nos. 28, 30, 37 and

39.) The Magistrate Judge explained it would take time for counsel to be appointed and based on

Plaintiff’s diligence is attempting to comply with the AOM statute, extraordinary circumstances

existed to warrant an extension of time beyond the 120-day statutory period to file the required

AOM. (Id. at 9-10.)

The Magistrate Judge extended the time to comply with the AOM statute for sixty days

from the date pro bono counsel entered his appearance in this matter. (Id. at 10.) On July 11, 2023,

counsel was appointed to represent Plaintiff. (ECF No. 46.) On September 13, 2023, the Magistrate

Judge granted pro bono counsel a 45-day extension of time to engage an expert to sign an AOM.

(DSOMF at ¶ 8.) Defendants acknowledge that following a status conference the Magistrate Judge

stayed Plaintiff’s time for serving Defendants with an AOM, while the parties attended a settlement

conference. (Id. at ¶ 13.) Defendants also note that following March 2024 and April 2024 status

conferences, Plaintiff’s time for serving an AOM was extended until the final court issued deadline

of April 26, 2024. (Id. at ¶¶ 14, 16, 17.) Defendants did not appeal or object to any of the Magistrate

Judge’s extension decisions to this Court.

Although Dr. Hussamy’s AOM is dated April 22, 2024 (ECF No. 69-2 at 65), Plaintiff did

not serve Defendants with the AOM until April 30, 2024, four days after the April 26, 2024

deadline. (DSOMF at ¶¶ 19-20.)

New Jersey favors deciding cases on their merits, and the “substantial compliance”

exception aims to “temper the draconian results of an inflexible application of the statute.”

Ferreira, 836 A.2d at 783. The New Jersey Supreme Court has established a five-part test to

determine whether the equitable doctrine of substantial compliance excuses noncompliance with

the AOM Statute:

(1) the lack of prejudice to the defending party; (2) a series of steps

taken to comply with the statute involved; (3) a general compliance

with the purpose of the statute; (4) a reasonable notice of petitioner’s

claim[;] and (5) a reasonable explanation why there was not a strict

compliance with the statute.

Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 771 A.2d 1141, 1149 (2001) (quoting Bernstein v.

Bd. of Trs. of Tchrs’ Pension & Annuity Fund, 151 N.J. Super. 71, 376 A.2d 563, 566

(App.Div.1977)). “Satisfying those elements guarantees that the underlying purpose of the statute

is met and that no prejudice is visited on the opposing party.” Id.

In Ferreira, the New Jersey Supreme Court considered facts similar to the ones here: the

plaintiff received an AOM prior to the expiration of the time limits for serving a timely AOM,

which, due to inadvertence of counsel, was not forwarded to defense counsel. 178 N.J. at 148.

Plaintiff’s counsel forwarded the AOM to defense counsel eighteen days after the statutory

deadline for delivering the AOM had past, but before defense counsel filed a motion to dismiss

the complaint for failure to comply with the AOM statute. Id. The New Jersey Supreme Court

explained that plaintiff’s counsel had complied with the “underlying legislative purpose by having

an expert verify the meritorious nature of the malpractice claims at an early stage” and the

defendants did not “contend that they suffered prejudice by the eighteen-day late service of the

affidavit.” Id. at 152. The Supreme Court noted that it was not until after defense counsel receive

the AOM that a motion to dismiss was filed. Id. On these facts, the Ferreira court announced the

following rule:

In a case where the plaintiff has in hand an affidavit within the

120-day statutory period and serves the affidavit on defense counsel

outside that time frame but before defense counsel files a motion to

dismiss, the defendant shall not be permitted to file such a motion

based on the late arrival of the affidavit. If defense counsel files a

motion to dismiss after the 120–day deadline and before plaintiff has

forwarded the affidavit, the plaintiff should expect that the

complaint will be dismissed with prejudice provided the doctrines

of substantial compliance and extraordinary circumstances do not

apply. That formulation places strong incentives on both plaintiffs’

and defense counsel to act diligently.

Id. at 154.

Similar here, Plaintiff had a signed AOM prior to the Court issued April 26, 2024 deadline

for serving a timely AOM. (See ECF No. 69-2 at 65.) Counsel served the AOM on Defendants on

April 30, 2024. Thereafter, on May 17, 2024, Defendants filed the instant motion for summary

judgment. Following the rule announced in Ferreira, Defendants are not entitled to summary

judgment here, as Plaintiff served his AOM prior to Defendants filing of their motion for summary

judgment. Therefore, the Court finds that Defendant Lynch’s AOM is not untimely and the motion

for summary judgment is denied as to this issue.

C. Eligibility of Dr. Hussamy as AOM Affiant

Defendants’ motion also argues that Dr. Hussamy is not a qualified affiant under N.J.S.A

§ 2A:53A-41. (ECF No. 69-3 at 12-16.) Defendants submit Defendant Lynch is a “licensed

physician practicing medicine in the specialty of Internal Medicine, who practiced within that

specialty when he rendered care and treatment to Plaintiff.” (Id. at 14.) Defendants further submit

that Dr. Hussamy is a Board-Certified Orthopedic Surgeon, with additional specialization in Sports

Medicine, hand surgery, and foot surgery. (Id.) Therefore, Defendants argue that Dr. Hussamy has

a different board certification than Defendant Lynch. (Id.)

As explained above, in medical malpractice cases, such as this one, Section 41 controls and

sets a “kind-for-kind” standard of eligibility to be an AOM affiant, which “generally requir[es]

that the challenging expert be equivalently-qualified to the defendant.” Lomando, 667 F.3d at

382–83. Where the physician alleged to be at fault practices in a specialty recognized by the

American Board of Medical Specialties, the plaintiff’s AOM affiant must practice in the same

specialty. See Nicholas, 64 A.3d at 539. As explained by the Supreme Court in Buck:

Under N.J.S.A. 2A:53A–41, the first inquiry must be whether a

physician is a specialist or general practitioner. If the physician is a

specialist, then the second inquiry must be whether the treatment

that is the basis of the malpractice action “involves” the physician’s

specialty. When the treatment “involves” the physician’s specialty

the equivalency requirements apply, otherwise the specialist is

subject to the same affidavit requirements as if he were a general

practitioner. See ibid. [citation omitted.] . . . . In the case of a general

practitioner, an affidavit from another general practitioner or from a

physician experienced with the treatment performed will satisfy the

statute. See ibid.

207 N.J. at 391.

Here, Defendants argue Dr. Hussamy’s AOM is insufficient because he is not an internal

medicine specialist like Defendant Lynch. Defendants support this argument with Defendant

Lynch’s Answer to the Amended Complaint, which indicates he is a licensed physician specializing

in Internal Medicine. (ECF No. 24 at 14.) Defendants have also attached to their response to

Plaintiff’s opposition, an internet search that indicates Defendant Lynch has a specialty in internal

medicine, with a subspeciality in geriatric medicine. (See ECF No. 73-2 at 49-50.)

While Defendants submit that Defendant Lynch has an internal medicine specialty, the

internet search they provide indicates that Defendant has a subspecialty in geriatric medicine. The

American Board of Medical Specialties defines the subspecialty of geriatric medicine as follows:

Geriatric Medicine

An internist who has special knowledge of the aging process and

special skills in the diagnostic, therapeutic, preventive and

rehabilitative aspects of illness in the elderly. This specialist cares

for geriatric patients in the patient’s home, the office, long-term care

settings such as nursing homes and the hospital.

https://www.abms.org/board/american-board-of-internal-medicine/#abim-gm (last visited

November 23, 2024).

To meet the initial burden on a motion for summary judgment, Defendant must provide

evidence showing that he is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). In

this context, therefore, Defendant must provide evidence supporting his claim that he was acting

in his specialty or subspecialty and that the care or treatment he provided Plaintiff involves his

internal medicine specialty or his geriatric subspecialty.

Defendants fail to brief how Defendant Lynch was acting as an internist with a subspecialty

in geriatric medicine at the time he rendered post-operative knee replacement care to Plaintiff. In

fact, Defendants fail to mention Defendant Lynch’s subspecialty at all. Under the federal summary

judgment standard, Defendants must provide evidence that the treatment Defendant Lynch

provided for Plaintiff’s post-operative knee replacement involved his specialty as a geriatrician or

internist. As Defendants have failed to provide evidence or even briefing on whether the care or

treatment provided to Plaintiff involved Defendant Lynch’s specialty or subspecialty, or was

outside of the specialty, the Court denies summary judgment on that basis. See Celotex, 477 U.S.

at 323 (placing initial summary judgment burden on the moving party).

In his opposition brief, Plaintiff requests that the Court waive the same specialty

requirement. N.J.S.A 2A:53A-41(c) permits a Court to waive the “same specialty or subspecialty”

requirement, if, upon motion “after the moving party has demonstrated to the satisfaction of the

court that a good faith effort has been made to identify an expert in the same specialty or

subspecialty, the court determines that the expert possesses sufficient training, experience and

knowledge to provide the testimony as a result of active involvement in, or full-time teaching of,

medicine in the applicable area of practice or a related field of medicine.” The waiver exception

to the requirements of the Affidavit of Merit statute was “to permit meritorious cases, for which

no equivalently-qualified expert can be obtained to be aired in the courtroom.” Ryan, 203 N.J. at

57. However, to obtain a waiver, Plaintiff must file a formal motion seeking such. Plaintiff has

failed to do so here and, therefore, the Court may not grant his request for a waiver.

IV. CONCLUSION

For the reasons expressed above, Defendants’ Motion for Summary Judgment is

GRANTED IN PART and DENIED IN PART. (ECF No. 69.) Defendants’ motion is granted as

to Defendant Sumicad and Plaintiff’s state law medical malpractice claims against Defendant

Sumicad are dismissed with prejudice. The Court denies the remainder of Defendants’ motion for

summary judgment. An appropriate order follows.

Dated: December 5, 2024 /s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE