Ines Lomando As Adm'x Ad Prosequendum Of The Estate Of Laura Lomando v. U.S.A

Decision Date18 March 2011
Docket NumberCivil No. 08-4177 (FLW)
PartiesINES LOMANDO as Administratrix Ad Prosequendum of the Estate of Laura Lomando, deceased, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
CourtU.S. District Court — District of New Jersey



WOLFSON, United States District Judge:

Presently before the Court are several motions for summary judgment brought by Defendants Riverview Medical Center, the United States, and, collectively, by Drs. Reynolds, Talbert, and Emergency Physician Associates of North Jersey, P.C., pursuant to Federal Rule of Civil Procedure 56(c), to dismiss the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., medical malpractice, and wrongful death claims brought by Plaintiff Ines Lomando, as administratrix ad prosequendum for the estate of Laura Lomando. For the reasons that follow, the Court grants each summary judgment motion. Granting of the United States' motion deprives this Court of federal question jurisdiction over the sole remaining defendant, Dr. Hyppolite, who has not moved for summary judgment. TheCourt declines to exercise supplemental jurisdiction over that defendant.


The following facts are undisputed by the parties. In August and September of 2006, Laura Lomando ("Laura"), daughter of Plaintiff, sought and received treatment at the Parker Family Health Center ("Parker Health"), a New Jersey non-profit health clinic, for an enlarged gland in her neck. The treatment she received was provided by Drs. Zaven Ayanian, Lynn Helmer, and Timothy Sullivan, who each served as volunteer physicians at the clinic. On September 12, 2006, one of these doctors recommended that Laura undergo a biopsy of her enlarged gland in order to determine if it was cancerous. Unfortunately, before the biopsy was completed, Laura passed away on September 21, 2006, while under the care of a local hospital, the Riverview Medical Center ("Riverview"). She died of complications of Non-Hodgkins Lymphoma, a form of cancer.

Prior to her death, in September 2006, Laura also received treatment at Riverview's emergency room. She visited the emergency room on September 3, 5, 15, and 20, 2006. During those emergency room visits, she was treated by Theresa Biendenbach, P.A., Dr. Stephanie Reynolds, and Dr. Trevor Talbert. Laura presented with several symptoms on these dates, including chest tightness, nausea, diarrhea, chest pain, fever, swelling, and an enlarged lymph node on the left side of her neck. During the September 3, 5, and 15th visits, no doctor or physician assistant diagnosed her with cancer. Rather, several otherdiagnoses were offered, including meningitis. At her final visit on September 20, 2006, she presented with symptoms attributable to spontaneous tumor lysis syndrome. Dr. Reynolds ordered diagnostic tests for Laura and admitted her into the hospital under Dr. David Hyppolite's care. Dr. Hyppolite treated her on September 20 and 21st, until her death.

Plaintiff, as administratix for the estate of her daughter, Laura, subsequently brought the instant malpractice and wrongful death action, asserting a claim under the FTCA against the United States along with claims against Riverview Medical Center, Dr. Reynolds, Dr. Talbert, Dr. Hyppolite, Parker Family Health Center, and Emergency Physician Associates of North Jersey, P.C.. In support of her claims, Plaintiff retained two experts: Drs. Fialk and Hayes. Dr. Failk, an internal medicine, hematology, and oncology specialist, prepared an expert report opining that the acts and omissions of Drs. Ayanian, Helmer, Talbert, and Reynolds contributed to Laura Lomando's death. See Sarrol Cert., Exh. S. Dr. Hayes, an otolaryngology specialist, prepared a report focusing on the acts and omissions of Dr. Sullivan. See id. at Exh. U.

Each of the remaining defendants, with the exception of Dr. Hyppolite, have moved for summary judgment on Plaintiff's claims. 1 The Court previously granted summary judgment in favor of Parker Family Health Clinic. The Court now rules upon the motionsbrought by Riverview Medical Center, the United States, and, collectively, by Drs. Reynolds, Talbert, and Emergency Physician Associates of North Jersey, P.C.. Each of these motions will be granted, for the reasons that follow.


"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56(c). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.


There are several pending motions for summary judgment. First, Defendant Riverview Medical Center moves for summary judgment based on Plaintiff's failure to provide expert reports or testimony in support of Plaintiff's claim against it. Second, the United States moves on immunity grounds. Finally, Drs. Reynolds and Talbert, along with Emergency Physician Associates of North Jersey, P.C. (collectively, "ER Defendants") move for failure to comply with N.J.S.A. 2A:53A-41 or, in the alternative, move to disqualify Plaintiff's expert reports on net opinion grounds. I address each motion in the order in which they were filed.

A. Riverview Medical Center's Motion for Summary Judgment

Defendant Riverview Medical Center moves for summary judgment on Plaintiff's claim for failure to provide expert reports. As Defendant correctly argues, to establish a prima face case of malpractice in New Jersey, "a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury." Gardner v. Pawliw, 150 N.J. 359, 376 (1997). See also Gonzalez v. Silver, 407 N.J.Super. 576, 587 (App. Div. 2009). The same holds true for a wrongful death claim. See Phillips v. Gelpke, 190 N.J. 580, 591 (2007) (citing with approval case holding that expert testimony is necessary in wrongful death action). The only exception to this rule is where the breach of duty is not "so esoteric that jurors of common judgment and experience [can] form a valid judgment" without the need of experttestimony. Id. (quoting Scully v. Fitzgerald, 179 N.J. 114, 127 (2004)).

Plaintiff does not dispute that she has failed to provide any expert testimony against Riverview. Indeed, Plaintiff does not substantively challenge Riverview's motion in any way. Nor does she assert that the common knowledge exception applies. Rather, in her opposition papers, Plaintiff sought leave to complete depositions of the experts before Riverview's motion was decided.2 The date for completing expert depositions has now passed, and the Court has not received any further submission from Plaintiff suggesting that any deposition testimony supports Plaintiff's claim against Riverview. Accordingly, Riverview's motion for summary judgment is granted.

B. The United States' Motion for Summary Judgment

The United States asserts two immunities in support of its motion for summary judgment—the New Jersey Charitable Immunities Act, N.J.S.A. 2A:53A-7, et seq. ("NJCIA"), and the federal Volunteer Protection Act, 42 U.S.C. §§ 14501-14505. In connection with both immunities, the United States contends that, pursuant to 28 U.S.C. § 2674, it is entitled to claim any immunity available to the volunteer physicians at Parker Health. For the reasons that follow, the Court agrees that the United States may claim anysuch immunities and, specifically, finds that the United States is entitled to immunity under the NJCIA.

1. The United States as the Physicians' Deemed Employer

Plaintiff's FTCA claim is based on the role of the United States as employer, for FTCA purposes, of the volunteer physicians at Parker Health. This mechanism is concisely explained by the Sixth Circuit in Wilson v. Big Sandy Health Care, Inc., 576 F.3d 329 (6th Cir. 2009), an opinion in which the court details how the Federally Supported Health Centers Assistance Act of 1992 operates to create the legal fiction of federal employee status for volunteer physicians:

Pursuant to the provisions of 42 U.S.C. § 254b(c)(1)(A), the government "may make grants to public and nonprofit private entities for projects to plan and develop health centers which will serve medically underserved populations." In part due to the relatively high cost of obtaining malpractice insurance for treatment of such high-risk patients, however, the efforts to provide necessary medical care in such underserved areas initially faced significant roadblocks. To alleviate the financial burden on the medical providers, Congress passed the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233, through which practitioners at certain health centers providing necessary medical services "shall be deemed to be... employee[s] of the Public Health Service." 42 U.S.C. § 233(g)(1)(A). By virtue of being "deemed" federal employees, personal injury, negligence, and malpractice suits against such individuals and centers are circumscribed...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT