Lomando v. United States

Citation667 F.3d 363
Decision Date30 December 2011
Docket NumberNo. 11–1957.,11–1957.
PartiesInes LOMANDO, as Administratrix Ad Prosequendum of the Estate of Laura Lomando, deceased, Appellant v. UNITED STATES of America; Stephanie Reynolds, D.O.; Trevor Talbert, M.D.; David Hyppolite, M.D.; Parker Family Health Center; Riverview Medical Center; Emergency Physician Associates North Jersey, PC; John Doe, # 1 Through # 5, Mary Moe # 1 through # 5, and XYZ Corporation # 1 through # 5 (fictitious names representing unknown physicians, nurses, technicians, medical groups, medical facilities).
CourtU.S. Court of Appeals — Third Circuit


Anthony A. Lenza, Jr., Law Offices of Carl M. Erman, Elizabeth, NJ, for appellant.

Tony West, Assistant Attorney General, Paul J. Fishman, United States Attorney, Karen H. Shelton, Office of the United States Attorney, Trenton, NJ, Mark B. Stern, Helen L. Gilbert, Attorneys, Appellate Staff, Court Division, United States Department of Justice, Appellate Section, Washington, DC, for appellee United States of America.

George H. Cortelyou, Mark A. Petraske, Buckley & Theroux, Princeton, NJ, for David Hyppolite, M.D. and for appellees Stephanie Reynolds, D.O., Trevor Talbert, M.D., and Emergency Physician Associates of North Jersey.Martin J. McGreevy, Oakhurst, NJ, for David Hyppolite, M.D.Before: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges.


GREENBERG, Circuit Judge.


This matter comes on before this Court on appeal from the District Court's March 18, 2011 order implementing a comprehensive opinion granting motions that certain defendants, now the appellees in this appeal, brought seeking summary judgment. See Lomando v. United States, No. 08–4177, 2011 WL 1042900 (D.N.J. Mar. 18, 2011). Appellant Ines Lomando (Lomando), as administratrix ad prosequendum of the estate of her daughter, Laura Lomando (“Laura”), brought this medical malpractice and wrongful death action against parties involved in Laura's health care that culminated in her death on September 21, 2006. For the reasons that follow, we will affirm in part, reverse in part, and remand the case to the District Court for further proceedings with respect to one defendant.


On August 23, August 28, September 9, and September 11, 2006, Laura sought and received treatment at the Parker Family Health Center (“Parker Health”), a free New Jersey nonprofit health clinic, for an area of swelling on the left side of her neck. Three volunteer physicians at Parker Health, Drs. Zaven Ayanian, Lynn Helmer, and Timothy Sullivan, none of whom has been a party in this case, cared for Laura during these visits. Effective in January 2006, and during all periods that Laura received treatment from Parker Health, the United States Department of Health and Human Services deemed those physicians to be Public Health Service (“PHS”) employees pursuant to a provision of the Public Health Service Act (“PHSA”), as amended, 42 U.S.C. § 233( o ). By virtue of that designation, the physicians fell within the scope of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671–2680, which precluded a suit against them individually for their services at Parker Health and substituted a suit against the United States as the exclusive remedy for their alleged malpractice.

In September 2006, Laura also sought treatment for her swollen neck and other symptoms at the Riverview Medical Center's Emergency Room Department, a facility where the physicians did not enjoy the PHSA and FTCA protections from litigation shielding the Parker Health physicians. Specifically, Laura visited Riverview on September 3, 5, 15, and 20, 2006, where Ms. Theresa Biedenbach, a physician assistant, and Drs. Stephanie Reynolds, Trevor Talbert, and David Hyppolite evaluated her. Laura's September 20 visit to Riverview would be her last, for the next day she died of spontaneous tumor lysis syndrome caused by an underlying condition of non-Hodgkins lymphoma.

Lomando filed suit under the FTCA and New Jersey law in the District Court on August 20, 2008, and filed an amended complaint on September 30, 2008. 1 She named the following defendants in the action: the United States, Parker Health, Riverview Medical Center, Drs. Reynolds, Talbert, and Hyppolite, and Emergency Physician Associates of North Jersey, P.C. (“Emergency Physician Associates), the employer of the three individual defendants and Ms. Biedenbach. Lomando, however, did not include Ms. Biedenbach as a defendant, an omission that, as we shall see, had significant consequences in this litigation.

On February 23, 2011, the District Court granted Parker Health's unopposed motion for summary judgment predicated on its claim of immunity under the New Jersey Charitable Immunity Act, which we discuss at length below. Inasmuch as Lomando is not challenging this disposition Parker Health is not participating in this appeal. On March 18, 2011, the District Court granted summary judgment to all remaining defendants except Dr. Hyppolite who did not seek summary judgment, but in the exercise of its discretion the Court declined to exercise supplemental jurisdiction over the claims against him and therefore the action was terminated in the District Court.2

The District Court had different reasons for granting the contested motions for summary judgment to different defendants. The Court granted summary judgment to Riverview Medical Center because Lomando failed to provide expert testimony against Riverview as required to establish a prima facie case of liability for medical malpractice under New Jersey law. We, however, are not concerned with this disposition as Lomando does not challenge it on this appeal. Thus, Riverview, like Parker Health, is not participating in this appeal.

The District Court addressed two distinct but related questions in dealing with Lomando's FTCA claim against the United States. The United States contended that because a provision of the FTCA, 28 U.S.C. § 2674, provides that the United States “shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim,” the United States was entitled to claim any immunity available to the volunteer physicians of Parker Health. In support of this claim of immunity, the United States invoked the Volunteer Protection Act of 1997 (“VPA”), 42 U.S.C. § 14503(a), which immunizes volunteers of nonprofit organizations and governmental entities from claims alleging negligence based on acts committed within the scope of such volunteerism, and the New Jersey Charitable Immunity Act (“NJCIA”), N.J. Stat. Ann. § 2A:53A–7 (West 2011), which immunizes charitable nonprofit entities and their volunteers from liability for negligence in similar circumstances. Lomando countered that 28 U.S.C. § 2674 did not permit the United States to rely on immunities available to the volunteer physicians at Parker Health because under the FTCA “the [U]nited States stands in the shoes of the nonprofit health center and may assert only those immunities available to such centers under federal and state law.” Lomando, 2011 WL 1042900, at *5.

The parties' contentions thus raised the independent but intertwined questions of: first, whether under the FTCA the United States assumes the role of a similarly-placed private employer or stands in the shoes of the immunized employee, and, second, whether under the FTCA the United States can assert its employees' immunities and defenses. The District Court dealt with these questions first by citing variant case law that illustrated that the United States has been equated to both a private employer and an immunized employee in FTCA cases. Shifting its analysis, the Court then examined section 2674, and stated that the text “strongly suggests that it permits the United States to assert immunities available to its employees.” Id. at *6. Ultimately, however, the Court did not rule on either issue, but, instead, held that under the NJCIA both Parker Health, as a nonprofit health center, and Drs. Ayanian, Helmer, and Sullivan, as volunteer physicians at Parker Health, are immune from suit.3 Accordingly, the Court concluded that pursuant to section 2674 the United States is entitled to the immunity from suit that the NJCIA granted, regardless of whether it derived that immunity from the immunity of Parker Health or the individual physicians.4

The District Court held that Drs. Reynolds and Talbert, physicians who evaluated Laura at Riverview, were entitled to summary judgment because Lomando's experts' qualifications failed to meet the requirements of N.J. Stat. Ann. § 2A:53A–41 (West 2011) with respect to witnesses in medical malpractice actions. That statute ordinarily requires that in cases alleging medical malpractice by a health practitioner in a medically-recognized specialty where the care at issue involved that specialty, a plaintiff must offer expert testimony from a practitioner in that same specialty. In this regard, the Court held that because Drs. Reynolds and Talbert are board-certified specialists in emergency medicine, a specialty that the American Board of Medical Specialties recognizes, and Laura's care involved emergency medicine, Lomando was required to produce expert testimony from specialists in emergency medicine. Thus, statements that Lomando's experts, Drs. Mark Fialk and James Hayes, neither of whom is an emergency medicine specialist, submitted were insufficient to satisfy N.J. Stat. Ann. § 2A:53A–41.

Finally, the Court concluded that Emergency Physician Associates was entitled to summary judgment because Lomando had not produced any expert statements alleging that it had deviated from the applicable standard of care, apart from the testimony against Drs. Reynolds and Talbert that the Court had...

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