P.C.

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

P.C.,

Civil Action No. 25-739

Plaintiff,

v. OPINION

PETER V. DRISCOLL, M.D. et al.,

March 12, 2026

Defendants.

SEMPER, District Judge

The current matter before the Court comes upon three motions to dismiss, or in the

alternative, compel arbitration, filed by Defendant NYC Medical Practice, P.C. (“NYCMP”) d/b/a

Goals Aesthetics & Plastic Surgery (ECF 147), Defendant Ella Voskresenskiy also known as Ella

Voskin1 (ECF 148), and Defendant My Goals Solutions, Inc., Perkins Medical Care N.J., P.C.,

Sergey Voskin, M.D., NYCMPA, and Ella Voskin (ECF 149). Plaintiff opposed the motions.

(ECF 153; ECF 154; ECF 154.) Defendants filed a consolidated reply brief. (ECF 155.) The

Court has decided this motion upon the submission of the parties, without oral argument, pursuant

to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons stated below,

Defendants’ motions are GRANTED in part and DENIED in part.

1 Defendant Ella Voskresenskiy avers that her name is Ella Voskin, not Ella Voskresenskiy. (ECF

148-2 ¶ 4) (“I legally changed my name a very long time ago.”) The Court will refer to this

Defendant as Ella Voskin herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

For purposes of the instant motion, the Court does not retrace this case’s full factual and

procedural history. The Honorable Lewis J. Liman’s January 15, 2025 Opinion, transferring the

case from the Southern District of New York to the District of New Jersey, includes a detailed

recounting of the factual background of this matter. (See ECF 107, “January Opinion” or “Op.”)

To the extent relevant to the instant motion, the Court incorporates the factual and procedural

history from the January Opinion herein.

This case arises from Plaintiff’s allegations of sexual assault committed by Dr. Peter

Driscoll during a scheduled surgery for liposuction of the abdomen and a double Brazilian Butt

Lift performed on June 7, 2022 at a Goals Aesthetics and Plastic Surgery2 medical facility located

in Ridgefield, New Jersey. (ECF 154 at 1; see ECF 146, “SAC” ¶ 20.) Plaintiff alleges that the

sexual assault, which occurred while she was anesthetized, was “the direct and tragic result of

Defendants’ reckless indifference and willful failure to protect their patients, including Plaintiff.”

(ECF 154 at 1; SAC ¶ 28.) Despite “a well-documented history of misconduct3—including

multiple licensing suspensions and prior incidents of misconduct during surgeries (including

2 Plaintiff alleges that Defendants Perkins Medical Care, My Goals Solutions, and NYCMP hold

themselves out to the public to be Goals Aesthetics and Plastic Surgery. (ECF 146 ¶ 13.)

3 “In August 2015, the State of Texas medical board placed DRISCOLL on probation for

unprofessional or dishonorable conduct and for malpractice he committed; one of the stipulations

was that DRISCOLL had to be monitored by another physician while with clients to practice

medicine; In August 2016, the State of Texas medical board filed a complaint against DRISCOLL

for failing to comply with rules related to office-based anesthesia services, in addition to other

claims; In April 2017, the State of Texas medical board filed a complaint against DRISCOLL for

malpractice because he moved and did not inform patients, in addition to other claims…In March

or April of 2017, the State of California medical board placed DRISCOLL on probation for

malpractice…In September 2019, the State of California medical board filed an amended

accusation and petition for revocation complaint against DRISCOLL for several incidents of

malpractice; and On February 7, 2020, the State of California medical board entered an order for

the surrender of DRISCOLL’s California medical license.” (SAC ¶ 34.)

listening to pornography)—Dr. Driscoll was hired, retained, and left unsupervised by

Defendants[.]” (ECF 154 at 1; see SAC ¶ 34.)

Plaintiff’s Second Amended Complaint states seven causes of action against Defendants,

including medical malpractice, intentional infliction of emotional distress, negligent infliction of

emotional distress, vicarious liability, negligent hiring, retention, and supervision, and a violation

of the Consumer Fraud Act, see N.J. Stat. Ann. § 56:8-1 et seq. (SAC ¶¶ 48-105.) Defendants

move to dismiss Counts three through seven of the Second Amended Complaint for failure to state

a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF 149 at 2-13.) Defendants Ella

Voskin and NYCMP also move to dismiss the Second Amended Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. (ECF 148 at 3-11; ECF 147 at

3-11.) Defendants each argue that in the alternative, the Court should compel arbitration arising

out of Plaintiff’s contract with Defendant NYCMP. (ECF 147 at 12-13; ECF 148 at 12-14; ECF

148 at 15-17.)

II. LEGAL STANDARD

A. 12(b)(2) Motion to Dismiss

The Court must grant a defendant’s motion to dismiss under Rule 12(b)(2) if it does not

maintain personal jurisdiction over the defendant. See Fed. R. Civ. P. 12(b)(2). Once a defendant

challenges personal jurisdiction in this manner, the burden of establishing personal jurisdiction

shifts to the plaintiff. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)

(citations omitted). A federal court typically must conduct a two-step analysis to ascertain whether

personal jurisdiction exists: first, whether the forum state’s long arm statute permits jurisdiction

and second, whether assertion of personal jurisdiction violates due process. IMO Indus., Inc. v.

Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998). New Jersey’s long arm statute permits the exercise

of personal jurisdiction “to the uttermost limits permitted by the United States Constitution,” and

thus, the typical two-part inquiry may be collapsed into a single step addressing due process

requirements. Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 (3d Cir. 2002).

A district court may exercise either general or specific personal jurisdiction over a

defendant. Abel v. Kirbaran, 267 F. App’x 106, 108 (3d Cir. 2008). General jurisdiction exists

where the defendant maintains “continuous and systematic” contacts with the forum “as to render

[it] essentially ‘at home’ in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 122 (2014).

“For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s

domicile[.]” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). For

general jurisdiction purposes, a partnership takes on the citizenship of each of its partner members.

Zambelli Mfg. Co., Inc. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010). To establish that Defendants

are subject to specific personal jurisdiction, Plaintiff must show: (1) Defendants “purposefully

directed [their] activities at [New Jersey],” (2) Plaintiff’s claims “arise out of or relate to at least

one of those activities,” and (3) “the exercise of jurisdiction otherwise comport[s] with fair play

and substantial justice.” O’Connor, 496 F.3d at 317 (internal quotations and citations omitted).

Under the first prong of this analysis, Plaintiff must establish that Defendants had sufficient

minimum contacts with New Jersey. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). A

finding of minimum contacts requires the defendant to have “purposefully avail[ed]” itself of the

laws and benefits of conducting business in New Jersey. Burger King Corp. v. Rudzewicz, 471

U.S. 462, 475 (1985). Plaintiff must establish that Defendants purposefully availed themselves of

the forum to a degree “such that he should reasonably anticipate being haled into court there.”

World–Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980). Parties who “reach out beyond

one state and create continuing relationships and obligations with citizens of another state” are

subject to personal jurisdiction in the other state. Burger King Corp., 471 U.S. at 473. A

defendant’s actions must “create a ‘substantial connection’ with the forum State” by engaging in

“significant activities within a State,” or creating “continuing obligations” between itself and

forum residents. Id. at 475–76 (citations omitted).

B. 12(b)(6) Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to

dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a

motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

complaint is plausible on its face when there is enough factual content “that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does not impose a probability

requirement, it does require a pleading to show more than a sheer possibility that a defendant has

acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal

quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise

a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.

In evaluating the sufficiency of a complaint, a district court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.

Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is “not

compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions

disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,

after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no

relief could be granted under any set of facts consistent with the allegations, a court may dismiss

the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., 2010 WL

5146765, at *1 (D.N.J. Dec.13, 2010).

III. ANALYSIS

Defendants’ three motions to dismiss contain overlapping arguments regarding personal

jurisdiction, Plaintiff’s failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)

in Counts Three through Seven of the Second Amended Complaint, and that in the alternative,

Plaintiff’s claims must be submitted to arbitration. The Court will address each of these arguments

in turn.

A. Personal Jurisdiction

Defendants NYCMP and Ella Voskin argue that this Court lacks general and specific

jurisdiction over them and that they must be dismissed from the case. (ECF 147 at 7-11; ECF 148

at 6-11.) Plaintiff maintains that Defendants are judicially estopped from making such arguments,

because when Defendants moved to transfer the case from the Southern District of New York to

the District of New Jersey, they argued that “this case…belongs in New Jersey” and therefore “the

entire matter” should be “tried in New Jersey, where this case should have been brought in the first

place.” (ECF 72 at 10, 19) (see ECF 154 at 4.) Plaintiff also argues that this Court has specific

jurisdiction over Defendant Ella Voskin, and general and specific jurisdiction over Defendant

NYCMP. (ECF 154 at 5; ECF 153 at 7, 9.)

First, Defendants are not judicially estopped from arguing that this Court lacks personal

jurisdiction over them because they had previously argued for transfer of venue from the Southern

District of New York to the District of New Jersey. “The basic principle [of judicial estoppel]…is

that absent any good explanation, a party should not be allowed to gain an advantage by litigation

on one theory and then seek an inconsistent advantage by pursuing an incompatible theory.” Ryan

Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir. 1996) (citation

omitted). The personal jurisdiction arguments currently before the Court are not irreconcilable

with Defendants’ prior arguments that the Southern District of New York was not the proper venue

for this action. Indeed, dismissal for improper venue and for lack of personal jurisdiction are

subject to analysis under different rules. Compare Fed. R. Civ. P. 12(b)(2) with Fed. R. Civ. P.

12(b)(3). Moreover, Judge Liman explicitly did not make any findings related to personal

jurisdiction in the January Opinion when he determined that the Southern District of New York

was not the proper venue for this action. (See Op. at 8) (“the Court does not address the parties’

claims with respect to personal jurisdiction, subject matter jurisdiction, or the legal sufficiency of

Plaintiff’s claims to relief.”)

Defendant Ella Voskin is the wife of Defendant Dr. Sergey Voskin, M.D., who is the sole

shareholder of NYCMP and My Goals Solutions, Inc. (ECF 148-2, “E. Voskin Decl.” ¶ 3.)

Defendant Voskin is a resident of New York, and the Second Amended Complaint alleges that she

is “a principal and supervisor for advertising and social media” of My Goals Solutions. (SAC ¶

8.) Defendant Voskin avers that she “sometimes help[s] around the office of my husband’s

businesses” but she is “not employed by NYC Medical Practice, P.C. or My Goals Solutions, Inc.”

and has “no involvement at all with Perkins Medical[.[]” (E. Voskin Decl. ¶ 6.) Indeed, her

husband is the sole shareholder of NYCMP and My Goals Solutions, Inc. (Id. ¶ 3.) She also avers

that she “was not involved in any of the day-to-day operations, nor was I involved with the subject

matter of the instant dispute.” (Id. ¶ 9.)

Though the Second Amended Complaint alleges that Defendant Ella Voskin “transacted,

solicited, and conducted business in and from the State of New Jersey including marketing for”

My Goals Solutions, and managed or directed day-to-day duties of the Goals Aesthetics and Plastic

Surgery medical facility in Ridgefield, where Plaintiff underwent her surgery (SAC ¶¶ 8, 10), the

record before this Court does not demonstrate such an involved role. To support her arguments

for personal jurisdiction over Ella Voskin, Plaintiff cites to excerpts from the deposition of her

husband, Dr. Sergey Voskin, as proof that employees identified her “as a person of authority for

day-to-day operations and compliance issues.” (ECF 154 at 6.) However, that deposition

testimony demonstrates only that Plaintiff’s counsel asked if Dr. Voskin was aware that an

employee of My Goals Solutions, Nicole, “cited both you and your wife as people that they would

get reported to if they did not comply with directives” to which Dr. Voskin responded “Yeah.”

(See ECF 154-2.) This alone is not enough to establish that Defendant Ella Voskin, who held no

official role with nor was employed by My Goals Solutions, Perkins Medical, or NYCMP,

purposefully availed herself of the laws and benefits of conducting business in New Jersey, such

that she should “reasonably anticipate being haled into court” here. World–Wide Volkswagen, 444

U.S. at 297. Defendant Ella Voskin is therefore dismissed from this action without prejudice.

Defendant NYCMP is a corporate entity organized and authorized to do business under the

laws of the State of New York with a principal executive office address of 251 W 135th Street,

New York, NY 10030. (SAC ¶ 5.) Plaintiff argues that Defendant NYCMP “held themselves out

to the public as Goals Aesthetics and Plastic Surgery” and that Dr. Driscoll, who in the course of

performing surgery on Plaintiff sexually assaulted her, “was contracted to perform these surgical

services by NYCMP.” (ECF 153 at 7) (citing SAC ¶¶ 5-13.) Plaintiff also argues that NYCMP

provided administrative and management services for Defendant Perkins Medical Care, which is

based in New Jersey and oversaw Plaintiff’s surgery. (ECF 153 at 7-8.)

Defendant NYCMP argues that it is a dormant corporation formed under the laws of the

State of New York and “does not actively conduct any business whatsoever – it exists solely to

service various debts and obligations (and potential receivables) from which it cannot escape.”

(ECF 147 at 7.) However, Defendant NYCMP’s own declaration avers that it “remains active as

it has existing liabilities and outstanding debts that prevent a full winddown of the company.”

(ECF 147-3, 147-3, “NYCMP Decl.” ¶ 8.) Defendant NYCMP concedes that Plaintiff underwent

an elective surgical procedure at Perkins Medical Care, “which is branded as a ‘Goals Aesthetics

and Plastic Surgery ®’ medical practice in Ridgefield, New Jersey” and that Perkins Medical Care

“licenses the Goals Aesthetics and Plastic Surgery® branding from Defendant My Goals Solutions,

Inc.” (Id.) However, Defendant argues that “none of the named Defendants associated with the

brand (Defendant My Goals Solutions, Inc., Defendant NYC Medical Practice, P.C., and

Defendant Sergey Voskin, M.D.) were involved with Plaintiff’s procedure other than Dr. Voskin

having reviewed medical records and submitted to confirm eligibility for the surgery.” (Id.) (citing

NYCMP Decl. ¶¶ 7-9.)

NYCMP is listed on the contract that Plaintiff signed for her surgery at the Goals Solution

facility. Defendant’s own motion to dismiss includes this contract as an exhibit. (See ECF 147-4,

“Exhibit 1” at 9-13) (listing “NYC Medical Practice, P.C. d/b/a Goals Aesthetics & Plastic Surgery”

at the top of each page) (“I authorize NYC Medical Practice, P.C., d/b/a Goals Aesthetics and

Plastic Surgery (“Goals”) to use and disclose my name, photographic/video images, and/or written

testimonials (collectively, “Materials”) for marketing purposes.”) (“I AUTHORIZE NYC

MEDICAL PRACTICE, P.C. TO CHARGE THE CREDIT CARD INDICATED…I

AUTHORIZE NYC MEDICAL PRACTICE, P.C. TO COLLECT ANY REQUIRED SALES

TAX IN COMPLIANCE WITH NEW YORK STATE’S DEPARTMENT OF TAXATION.”)

Defendant NYCMP “admits that its name was contained on the contract between Plaintiff

and the GOALS Defendants.” (ECF 147 at 7-8.) But Defendant NYCMP argues that it was

“dormant at all pertinent times and was included as a party to Plaintiff’s contract as an error[.]”

(Reply at 11.) Though Defendant NYCMP argues that “[t]he sole element tying Defendant

NYCMP to this State is the contract signed by Plaintiff and Defendant NYCMP for a procedure

that was performed by a separate entity, Defendant Perkins Medical Care N.J.,” that procedure

occurred in New Jersey and gave rise to this litigation. This is sufficient for finding minimum

contacts to establish specific jurisdiction. Moreover, the Court rejects Defendants’ argument that

the inclusion of NYCMP’s name on Plaintiff’s contract over ten times is a mere “scrivener’s error.”

(Id. at 12.) Defendant NYCMP has directed its activities at New Jersey and “purposefully avail[ed]

itself of the privilege of conducting activities within the forum State, thus invoking the benefits

and protections of its laws.” Asahi Metal Indus. Co. v. Superior Cour of California, Solano Cnty.,

480 U.S. 102, 109 (1987) (quoting Burger King, 471 U.S. at 475). Defendant NYCMP’s motion

to dismiss for lack of personal jurisdiction is therefore denied.

B. 12(b)(6) Motion to Dismiss

i. Count Three (Medical Malpractice)

Defendants argue that Plaintiff’s medical malpractice claim must be dismissed because the

pleadings fail to indicate “what, exactly, the Defendants failed to do and how any such action was

malpractice or proximately caused any injuries.” (ECF 149 at 7.) Defendant argues that the

pleadings indicate that “the surgery itself was without error and successful, and Plaintiff’s

complaints are for being sexually assaulted by Dr. Driscoll.” (Id.)

Plaintiff brings a medical malpractice claim against Defendants Voskin, Perkins, Goals

Aesthetics, Goals Solutions, and Perkins Medical. (SAC ¶¶ 66-69.) Under New Jersey law, a

plaintiff seeking damages for medical malpractice must prove three elements: that “(1) there is an

applicable standard of care, (2) a deviation from that standard occurred, and (3) the deviation was

the proximate cause of the harm sustained by the plaintiff.” Hottenstein v. City of Sea Isle City,

977 F. Supp. 2d 353, 367 (D.N.J. 2013). The Second Amended Complaint alleges that Defendants

“owed the Plaintiff a duty to use care and caution in treating Plaintiff; to observe all applicable

standards; and to otherwise avoid injuring or attempting to injure Plaintiff.” (SAC ¶ 39.) The

Second Amended Complaint also alleges that a deviation from that standard of care occurred, and

that such a deviation caused Plaintiff’s injuries. (Id. ¶¶ 68, 69.) Specifically, Plaintiff alleges that

Defendants “failed to properly hire, train, and supervise Dr. Driscoll, failed to obtain informed

consent, failed to keep proper medical records, failed to properly staff its medical facility, failed

to carry required insurance, failed to offer Plaintiff a chaperone, and failed to have and implement

proper policies and procedures.” (ECF 152 at 7) (see also SAC ¶ 68.) Plaintiff also alleges that

Defendants were on notice of Dr. Driscoll’s past sexual misconduct, and “despite Defendants’ own

directive that DRISCOLL should not be left alone with female patients,” Defendants nevertheless

left him alone with Plaintiff in the operating room.4 (SAC ¶ 68(ee).)

4 In addition to Dr. Driscoll’s past misconduct allegations in other states (see supra fn. 2), Plaintiff

alleges that:

On or about March 3, 2022, DRISCOLL left a patient on the surgical table in the

operating room for an extended time and staff could not locate him; On or about

March 23, 2022, DRISCOLL left a patient alone prior to discharge; On or about

April 26, 2022, DRISCOLL performed a follow-up procedure on a GOALS staff

member where the staff member felt uncomfortable being alone with DRISCOLL,

and shortly thereafter, a notice was sent to the surgical supervisor and DRISCOLL

that DRISCOLL should never be left alone with a patient without a female

employee present; In or about May 2022, DRISCOLL had his phone connected to

the Bluetooth speakers in a GOALS operating room and went to the bathroom and

while he was in the bathroom, staff hear sexual pornography play from his phone

to the Bluetooth speakers for an extended period of time; this was reported by staff

to occur multiple times even before this incident in May 2022 but DRISCOLL was

not disciplined or fired; In or about May 2022, a female employee or agent of

GOALS was sexually harassed by DRISCOLL and reported the incident to

management, but again DRISCOLL was not disciplined or terminated; and [a]fter

each of these incidents, GOALS did not terminate DRISCOLL from employment.

Defendants also argue that dismissal of Plaintiff’s medical malpractice claim is appropriate

under Rule 12(b)(6) because Plaintiff has failed to comply with New Jersey’s Affidavit of Merit

Statute. (ECF 149 at 7) (“Plaintiff’s Second Amended Complaint contains absolutely no affidavit

of merit whatsoever!”) New Jersey law requires that a plaintiff provide the defendant such an

affidavit in actions of professional or medical malpractice or negligence. N.J. Stat. Ann. 2A:53A–

27. Under state practice, noncompliance with the statute is deemed a failure to state a cause of

action. Id., A–29. Plaintiff filed an Affidavit of Merit, signed by Dr. Howard Neil Langstein,

when filing her original complaint on April 4, 2024. (See ECF 1-1.) The Affidavit states that

based on Dr. Langstein’s review of the medical records, it “is my opinion, there exists a reasonable

probability that the care provided to P.C. by the named Defendants fell outside the scope of

accepted professional standards as alleged in P.C.’s complaint.” (Id. ¶ 3.) The Affidavit also states:

If any defendant contends that this Affidavit of Merit fails to completely satisfy

the requirements of the Affidavit of Merit Statute in any way, demand is hereby

made that the defendant immediately notify the plaintiff of any such alleged

deficiencies in writing so that same may be corrected if necessary and within

the time constraints of NJ.S.A.2A:53A-26, et seq.

(ECF 1-1.) Defendants’ argument that no Affidavit of Merit was filed, because it is attached to

the original complaint and not the Second Amended Complaint, is unavailing, as are any

arguments taking issue with such an Affidavit given the above notice concerning any deficiencies.

Accordingly, Defendants’ motion to dismiss Count Three is denied.

ii. Count Four (Negligent Infliction of Emotional Distress)

New Jersey courts recognize the tort of negligent infliction of emotional distress in the

medical malpractice context. See Giardina v. Bennett, 545 A.2d 139, 143 (N.J. 1988). Such claims

(SAC ¶ 36(h)-(m).)

can be either “direct,” in which a person is the direct object of a tortfeasor’s negligence and

experiences resulting severe emotional distress, or “indirect,” in which a person, not otherwise a

direct object of the tortfeasor’s negligence, experiences severe emotional distress as a “bystander”

of the victim’s injury. Kaye v. Nussey, 670 F. Supp. 3d 149, 157 (D.N.J. 2023). The elements of

a direct claim are as follows: the defendant owed the plaintiff a duty of care, the defendant breached

that duty, the plaintiff suffered severe emotional distress, and the breach proximately caused that

distress. Moses v. Sood, No. 20-1025, 2024 WL 5264477, at *4 (D.N.J. Dec. 30, 2024) (citing

Johnson v. City of Hoboken, 476 N.J. Super. 361, 375-76 (App. Div. 2023)).

As discussed above, Plaintiff has sufficiently alleged that Defendants owed her a duty of

care and breached that duty. Plaintiff also alleged that she had to endure “inappropriate sexual

conduct, sexual commentary and unwanted sexual touching” during her physician/patient

relationship that resulted in “serious emotional distress to Plaintiff beyond what a normal person

could be expected to endure.” (SAC ¶ 73.) Thus, Plaintiff has sufficiently stated a claim for

negligent infliction of emotional distress and Defendants’ motion is denied.

iii. Count Five (Vicarious Liability)

Plaintiff has asserted a vicarious liability claim against Defendants in Count Five. (SAC

¶¶ 73-90.) While the general rule is that “sexual harassment by a supervisor is not conduct within

the scope of employment[,] [s]cope of employment does not define the only basis for employer

liability under agency principles.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 757-58 (1998).

“In limited circumstances, agency principles impose liability on employers even where employees

commit torts outside the scope of employment.” Id. These principles are set out in Section 219(2)

of the Restatement (Second) of Agency.5 Specifically, Section 219(2)(d) “concerns vicarious

liability for intentional torts committed by an employee when the employee uses apparent authority

(the apparent authority standard), or when the employee was aided in accomplishing the tort by

the existence of the agency relation.” Id. at 759 (citation omitted). “When a party seeks to impose

vicarious liability based on an agent’s misuse of delegated authority, the Restatement’s aided in

the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form

of analysis.” Id. at 759-60.

Plaintiff alleges that Defendants are vicariously liable for the acts of Dr. Driscoll under the

doctrines of apparent authority and aided-by-agency. (SAC ¶ 76.) Under New Jersey law, “a

principal is liable for the tortious acts of an agent acting within the scope of his or her authority.”

Baldasarre v. Butler, 625 A.2d. 458, 463 (N.J. 1993). “An agency relationship can be established

through apparent authority.” Jarrah v. Trump Hotels & Casino Resorts, Inc., 487 F. Supp. 2d 522,

529 (D.N.J. 2007). New Jersey courts have recognized that “[a]pparent authority arises in those

situations where the principal causes persons with whom the agent deals to reasonably believe that

the agent has authority.” Dymburt v. Rao, 881 F. Supp. 942, 945 (D.N.J. 1995) (citing Arthur v.

St. Peters Hospital, 405 A.2d 443, 446 (Law Div. 1979)). “Apparent authority arises when a

principal ‘acts in such a manner as to convey the impression to a third party that the agent has

certain power which he may or may not possess.’” Jarrah, 487 F. Supp. 2d at 529 (quoting

5 (2) A master is not subject to liability for the torts of his servants acting outside the scope of their

employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

(d) the servant purported to act or to speak on behalf of the principal and there was reliance

upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency

relation.

Lampley v. Davis Mach. Corp., 530 A.2d 1254, 1259 (N.J. Super. Ct. App. Div. 1987)). “In

addition, the ‘essential element of reliance’ must exist before apparent authority can be found.”

Bahrle v. Exxon Corp., 652 A.2d 178, 188 (N.J. Super. Ct. App. Div. 1995) (quoting Wilzig v.

Sisselman, 506 A.2d 1238, 1244 (N.J. Super. Ct. App. Div. 1986)).

In Arthur v. St. Peters Hospital, plaintiff sued the hospital and various doctors after an

emergency room physician misread his x-ray. 405 A.2d at 444. The hospital claimed that the

physicians were independent contractors. Id. The Law Division judge applied the doctrine of

apparent authority to deny the hospital’s motion for summary judgment. Id. at 447 ( “it is the

opinion of this court that there are facts here which permit the inference that the hospital held these

physicians out as its employees.”) The Arthur court noted “generally people who seek medical

help through the emergency room facilities of modern-day hospitals are unaware of the status of

the various professionals working there” and that “it is the reputation of the hospital itself upon

which he would rely.” Id. Thus, the court found the patient would assume the physicians were

employees of the hospital. Id. In contrast, in Jarrah v. Trump Hotels & Casino Resorts, the Court

determined that Trump Hotels & Casino Resorts was “not a provider of medical services” and thus

it “would be unreasonable for a person who gambles at the casino to rely on Trump to provide

quality medical service.” 487 F. Supp. 2d at 530 (citing Neal ex rel. Scott v. New Jersey State

Dept. of Corrections, No. A-3885-01T3, 2002 WL 31741497 (N.J. Super. App. Div. Oct. 24, 2002))

(provider of medical personnel to prison was not a hospital; therefore inmates were not relying on

its reputation and could not establish apparent authority).

Plaintiff alleges that “[b]y allowing DRISCOLL to represent Defendants’ business,

Defendants create[d] the impression that its doctors, including DRISCOLL, were Defendants’

employees or agents” and that Plaintiff relied on these representations, including (i) that

Defendants operated as Goals Aesthetics & Plastic Surgery and by no other name or entity, (ii)

only Goals Aesthetics & Plastic Surgery signs appeared throughout the medical facility where the

surgery took place, (iii) that staff wore uniforms with the logo for Goals Aesthetics & Plastic

Surgery, (iv) that Defendants represented Dr. Driscoll as a surgeon for Goals Aesthetics & Plastic

Surgery on social media and on the Goals Aesthetics & Plastic Surgery website, (v) the contract

Plaintiff signed with NYCMP and Goals Aesthetics’ names, and (vi) by verbal representations

from staff members leading up to Plaintiff’s surgery. (SAC ¶¶ 85, 88.)

Like in Arthur and unlike in Jarrah, it would be reasonable for Plaintiff to have assumed

that Dr. Driscoll was an employee of Goals Aesthetics & Plastic Surgery. Plaintiff’s claim also

finds support in Estate of Cordero ex rel. Cordero v. Chris Hospital, a case relied on by Defendants.

(See ECF 149 at 12) (citing 958 A.2d 101, 108 (N.J. Super. Ct. App. Div. 2008)). There, the Court

found that Christ Hospital “held out [a] doctor as its agent” (and thus the apparent authority

exemption from liability for the conduct of an independent contractor applied), relying on the legal

standard that “[w]hen a hospital provides a doctor for a patient under circumstances in which a

reasonable patient would believe the service is rendered in [sic] behalf of the hospital, a strong

inference arises that a patient who accepts the doctor’s care does so in that reasonable belief.” 958

A.2d at 108. The circumstances surrounding Plaintiff’s surgery as alleged in her pleadings allow

for the inference that Dr. Driscoll was an employee of the Goals Aesthetics & Plastic Surgery

medical office, and accordingly Plaintiff’s claim survive at this stage under the doctrine of apparent

authority.6 Defendants’ motion to dismiss Count Five is denied.

6 Because the Court has found that the apparent authority exemption to vicarious liability is

applicable here, the Court need not address the parties’ aided-by-agency arguments.

iv. Count Six: (Negligent Hiring, Retention, and Supervision)

Plaintiff alleges in Count Six that Defendants “failed to exercise reasonable care in hiring,

supervising and retaining DRISCOL, when they knew or should have reasonably known [about]

DRISCOLL’s unfitness, incompetence, or dangerous attributed.” (SAC ¶ 96.) In general, “when

a person engages an independent contractor to do work that is not itself a nuisance, he is not

vicariously liable for the negligent acts of the contractor in the performance of the contract.”

Puckrein v. ATI Transp., Inc., 897 A.2d 1034, 1041 (2006). To that general rule of non-liability,

however, there are two relevant exceptions: (1) where the principal retains control of the manner

and means of doing the work subject to the contract; and (2) where the principal engages an

incompetent contractor. Maran v. Victoria’s Secret Stores, LLC, 417 F. Supp. 3d 510, 529 (D.N.J.

2019) (citing Majestic Realty Assocs. v. Toti Contracting Co., 153 A.2d 321, 324 (N.J. 1959)).

For the second exception of hiring an incompetent contractor, “a plaintiff must show that the

contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired,

that the harm that resulted arose out of that incompetence, and that the principal knew or should

have known of the incompetence.” Puckrein, 897 A.2d at 1042. Importantly, the “selection of a

competent contractor who negligently causes injury, does not render a [principal] liable” because

there is “[n]o presumption as to the negligence of an employer in hiring an independent contractor”

from negligence in the performance of his duties or injuries that take place “after being hired[.]”

Mavrikidis v. Petullo, 707 A.2d 977, 986 (N.J. 1998).

Under New Jersey law, the tort of negligent hiring, supervision, and retention requires the

satisfaction of two elements. See Hottenstein v. City of Sea Isle City, 977 F. Supp. 2d 353, 369

(D.N.J. 2013), amended, No. 11-740, 2013 WL 12152481 (D.N.J. Oct. 16, 2013). First, the

plaintiff must demonstrate that the employer “knew or had reason to know of the particular

unfitness, incompetence or dangerous attributes of the employee and could reasonably have

foreseen that such qualities created a risk of harm to other persons.” Di Cosala v. Kay, 450 A.2d

508, 516 (N.J. 1982). Second, the plaintiff must show that as a result of the employer’s negligent

hiring and supervision, the employee’s “incompetence, unfitness or dangerous characteristics”

were the proximate cause of the plaintiff’s injuries. Id.

Plaintiff argues that “Defendants hired, supervised, and retained Dr. Driscoll despite his

multiple past licensing suspensions (in at least two states) and multiple past sexual misconduct

incidents in the workplace with female patients.” (ECF 152 at 12.) Plaintiffs also point the fact

that “Defendants even found Dr. Driscoll playing pornography in the surgical room during prior

surgeries, but retained him nevertheless.” (Id. at 12-13.) Finally, Plaintiff argues that her injuries

were caused by Defendants’ failure to properly hire and supervise Dr. Driscoll. (Id. at 13.)

Therefore, Plaintiff has sufficiently pleaded the elements of negligent hiring, retention, and

supervision, because based on these allegations, Defendants certainly at minimum had reason to

know of Dr. Driscoll’s unfitness given his past transgressions in other states as well as in their

facilities, and that they reasonably could have foreseen that these qualities created a risk to patients.

Plaintiff has also sufficiently alleged past complaints or evidence of incompetence,

including a documented history of medical license suspensions in Texas and California, see supra

fn. 2, and reports of misconduct in prior surgeries and patient interactions at Defendants’ facilities

(see SAC ¶ 36). C.f. Maran, 417 F. Supp. 3d at 530 (“The record contains no serious complaints

or evidence of incompetence… [Plaintiff] relied here on just two negative reports” in prior work

history as a DJ, including once instance of showing up late and one of forgetting a power cord for

his iPod). Thus, the exception of engaging an incompetent contractor applies, and Plaintiff’s cause

claim can move forward past the motion to dismiss stage. Defendants’ motion to dismiss Count

Six is denied.

v. Count Seven (NJCFA)

Plaintiff alleges in Count Seven that Defendants violated New Jersey’s Consumer Fraud

Act (“NJCFA”), see N.J. Stat. Ann. § 56:8-1 et seq., by engaging in deception, fraud, false pretense,

false promises and representations and unconscionable business practices. (SAC ¶ 102.)

Specifically, Plaintiff alleges that Defendants represented to her and the public that Goals

Aesthetics & Plastic Surgery’s surgeons were “double if not triple board-certified plastic surgeons”

and that “patient safety is a top priority” in their practice, even though Dr. Driscoll “was not double

or triple board certified and has his license suspended in other states[.]” (Id. ¶¶ 103, 104.)

Defendants argue that Plaintiff’s NJCFA claim should be dismissed because it is not pleaded with

particularity, the NJCFA does not apply to medical doctor advertising, and the claim is based on

mere puffery. (ECF 149 at 3-7.)

To state a claim under the NJCFA, a plaintiff must allege that the defendant engaged in an

unlawful practice that caused an ascertainable loss to the plaintiff. Frederico v. Home Depot, 507

F.3d 188, 202 (3d Cir. 2007) (citing Cox v. Sears Roebuck & Co., 647 A.2d 454, 462–465 (N.J.

1994)). However, “learned professionals” who render services to the public are “beyond the reach

of the [CFA] so long as they are operating in their professional capacities.” Macedo v. Dello Russo,

840 A.2d 238, 242 (N.J. 2004); see also DiCarlo v. St. Mary Hosp., 530 F.3d 255, 267 (3d Cir.

2008) (“New Jersey courts have consistently held that professionals are not covered by the

Consumer Fraud Act.”) Indeed, it is well-established that “advertisements by learned

professionals in respect of the rendering of professional services are insulated from the CFA.”

Macedo, 840 A.2d at 242. “The rationale underlying the learned professionals exception is that

uniform regulation of an occupation, where such regulation exists, could conflict with regulation

under the CFA.” Lee v. First Union Nat. Bank, 971 A.2d 1054, 1062 (N.J. 2009). Moreover, “the

exception extends to matters ‘affecting’ professional services.” In re Am. Med. Collection Agency,

Inc. Customer Data Sec. Breach Litig., No. 19-2904, 2021 WL 5937742, at *23 (D.N.J. Dec. 16,

2021) (citation omitted). This includes activities such as billing and advertising. See Macedo, 840

A.2d at 241-42 (advertising); DiCarlo, 530 F.3d at 267-68 (billing). “Those who have been

exempted from NJCFA claims include physicians, lawyers, dentists, accountants, and engineers.”

Riad v. Dey Equine Veterinarians, P.A., No. 22-6927, 2023 WL 7648714, at *9 (D.N.J. Nov. 15,

2023).

Though Plaintiff argues that Macedo does not preclude consumer fraud claims “against the

corporate Defendants, who are not individual professionals” (ECF 152 at 5), this argument is

contrary to prevailing law, and it implicitly concedes that Plaintiff’s NJCFA claim is not viable

against the individual Defendants Dr. Voskin nor Dr. Perkins. “Medical diagnostic providers

qualify as “learned professionals” eligible for the exemption.” In re Am. Med. Collection Agency,

2021 WL 5937742, at *23 (citing Leslie v. Quest Diagnostics, Inc., No. 17-1590, 2019 WL

4668140, at *4 (D.N.J. Sept. 25, 2019) (“Quest ... qualifies as a learned professional covered by

other state regulation rendering a claim under the New Jersey or North Carolina consumer

protection statutes incognizable.”)). In Emerson v. Andover Subacute Rehab. Ctr. I, the Honorable

Julien Neals dismissed plaintiff’s NJCFA claim against a nursing home facility under the learned

professionals exception. No. 20-20066, 2025 WL 3089804, at *9 (D.N.J. Nov. 5, 2025) (“To start,

in New Jersey, the learned professionals exception does encompass nursing homes.”) (emphasis

in original). The corporate Defendants here are medical offices and professionals that provide

medical services and thus qualify as learned professionals for the purposes of the NJCFA

exemption. See DiCarlo, 530 F.3d at 268 (affirming dismissal of NJCFA claim against defendants

St. Mary Hospital, Bon Secours New Jersey Health System, Inc., and Bon Secours Health System,

Inc. under learned professionals exception).

The cases that Plaintiff cites for support are inapposite, since they apply to NJCFA claims

where the defendant-professionals were sued regarding fraudulent activities outside their

professional class. (See ECF 152 at 6) (See Gilmore v. Berg, 761 F. Supp. 358, 375–76 (D.N.J.

1991) (lawyer and accountant were answerable under CFA for efforts to sell real estate);

Blatterfein v. Larken Associates, 732 A.2d 555 (App. Div. 1999) (false representations by an

architect performing marketing services was covered by CFA).)

Accordingly, Plaintiff’s NJCFA claim against all Defendants is barred by the learned

professionals exception is dismissed with prejudice. In re Am. Med. Collection Agency, 2021 WL

5937742, at *23 (“Plaintiffs’ NJCFA [] claim[] against LabCorp and Quest are barred and

dismissed with prejudice.”).

C. Motion to Compel Arbitration

Finally, Defendants argue that in the alternative, the Court should refer this matter to

arbitration pursuant to the Federal Arbitration Act (“FAA”) in accordance with the contract

executed between Plaintiff and Defendant NYCMP. (ECF 147 at 12; ECF 148 at 12; ECF 149 at

15.) In 2022, the FAA was amended by the Ending Forced Arbitration of Sexual Assault and

Sexual Harassment Act (“EFAA”) as follows:

Notwithstanding any other provision of this title, at the election of the person

alleging conduct constituting a sexual harassment dispute or sexual assault

dispute,...no predispute arbitration agreement ... shall be valid or enforceable with

respect to a case which is filed under Federal, Tribal, or State law and relates to the

sexual assault dispute or sexual harassment dispute.

9 U.S.C. § 402(a). This language has been interpreted broadly. In Johnson v. Everyrealm, Inc.,

the Honorable Paul Engelmayer held that where a case includes both sexual harassment claims

and other related claims, the EFAA bars arbitration of the entire case, not merely the harassment

counts. 657 F. Supp. 3d 535, 540 (S.D.N.Y. 2023) (“the Court construes the EFAA to render an

arbitration clause unenforceable as to the entire case involving a viably pled sexual harassment

dispute, as opposed to merely the claims in the case that pertain to the alleged sexual harassment.”)

Judge Engelmayer concluded the statutory text is “clear, unambiguous, and decisive” because it

renders a pre-dispute arbitration agreement unenforceable “with respect to a case which is filed

under Federal, Tribal, or State law and relates to the ... sexual harassment dispute.” Id. at 558

(emphasis in original) (quoting 9 U.S.C. § 402(a)). The ordinary meaning of “case,” the court

explained, refers to an “undivided whole” that “does not differentiate among causes of action

within it.” Id. at 558-59 (quoting Black’s Law Dictionary (11th ed. 2019)).

Courts in this Circuit have adopted Judge Engelmayer’s reasoning in Johnson. See, e.g.,

Michael v. Bravo Brio Restaurants LLC, No. CV 23-3691, 2024 WL 2923591, at *6 (D.N.J. June

10, 2024) (dismissing Defendant’s motion to compel arbitration where Plaintiff alleged a hostile

work environment claim that implicates the EFAA “rendering the otherwise valid arbitration

agreement unenforceable); Sheehan v. Everstory Partners, 804 F. Supp. 3d 498, 518 (E.D. Pa.

2025) (“Plaintiffs’ Arbitration Agreements are … invalid and unenforceable with respect to the

entire case asserted in the Amended Complaint.”) Last month, the Sixth Circuit also adopted this

interpretation of the EFAA. See Bruce v. Adams & Reese, LLP, No. 25-5210, 2026 WL 523180,

at *9 (6th Cir. Feb. 25, 2026) (“[T]he EFAA’s text renders an arbitration agreement

‘[un]enforceable with respect to’ a plaintiff’s entire case, or action, and not only with respect to

certain claims therein.”).

The Court rejects Defendants’ argument that “[t]he EFAA is plainly inapplicable” because

“Plaintiff has failed to plead a claim for sexual harassment and/or assault” and that her claims

against the moving Defendants (who do not include Dr. Driscoll) sound in “entirely separate,

distinct bodies of law” such as medical malpractice, negligent hiring, negligent infliction of

emotional distress, and violations of the Consumer Fraud Act. (ECF 155 at 16.) The pleadings in

the Second Amended Complaint explicitly include allegations of sexual harassment and assault.

(See e.g., SAC ¶¶ 28) (“DRISCOLL committed medical malpractice and willfully and maliciously

sexually harassed, sought, and solicited sexual contact with Plaintiff, and engaged in non-

consensual sexual contact with Plaintiff”). Moreover, in accordance with the statutory text of the

EFAA, this is “a case which is filed under Federal, Tribal, or State law and relates to the sexual

assault dispute or the sexual harassment dispute.” 9 U.S.C. § 402(a) (emphasis added).

Accordingly, Defendants’ motion in the alternative to compel arbitration is denied. See

Mitura v. Finco Servs., No. 23-2879, 2024 WL 232323, at *5 (S.D.N.Y. Jan. 22, 2024) (denying

motion to compel arbitration because the “allegations plausibly state a claim that relates to sexual

harassment as required by the EFAA.”)

VI. CONCLUSION

For the foregoing reasons, Defendant Ella Voskin’s motion to dismiss (ECF 148) is

GRANTED and all claims against her are dismissed without prejudice. Defendant NYCMP’s

motion to dismiss (ECF 147) is DENIED. Defendants’ motion to dismiss (ECF 149) is

GRANTED in part and DENIED in part; Count Seven of the Second Amended Complaint is

DISMISSED with prejudice, and all remaining claims survive at this stage of litigation. An

appropriate order follows.

/s/ Jamel K. Semper .

HON. JAMEL K. SEMPER

United States District Judge

Orig: Clerk

cc: Jose R. Almonte, U.S.M.J.

Parties