Sesay v. Esiely

• Court: New Jersey Superior Court
• Writing for the Court: PETRILLO, J.S.C.
• Docket Number: ESX-L-7147-21
• Decision Date: 07 October 2025
• Citation: Sesay v. Esiely, ESX-L-7147-21 (N.J. Super. Oct 07, 2025)
• Parties: ADAMA SESAY (individually and as administrator of the estate of Baby Boy Sesay) and LIMAN TARAWALLY, her husband; Plaintiffs, v. MOHAMAD ESIELY, M.D.; MICHELLE BURBANA, RM; KATARINA F. FARINA, &N,; CLARA MAASS MEDICAL CENTER; R WJ BARNABAS HEALTH.; HEALTH WISE WOMEN; JERSEY CITY MEDICAL CENTER; ABC CORPORATIONS 1-10 (fictitious names representing an individual or individuals, corporation, partnership and/or association and was a doctor, intent, resident nurse and/or other care specialist involved in the treatment and/or care of Adama Sesay and Baby Boy Sesay); Defendants.

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ADAMA SESAY (individually and as administrator of the estate of Baby Boy Sesay) and LIMAN TARAWALLY, her husband; Plaintiffs, v. MOHAMAD ESIELY, M.D.; MICHELLE BURBANA, RM; KATARINA F. FARINA, &N,; CLARA MAASS MEDICAL CENTER; R WJ BARNABAS HEALTH.; HEALTH WISE WOMEN; JERSEY CITY MEDICAL CENTER; ABC CORPORATIONS 1-10 (fictitious names representing an individual or individuals, corporation, partnership and/or association and was a doctor, intent, resident nurse and/or other care specialist involved in the treatment and/or care of Adama Sesay and Baby Boy Sesay); Defendants.

No. ESX-L-7147-21

Superior Court of New Jersey, Law Division, Essex Vicinage

October 7, 2025

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

OPINION

PETRILLO, J.S.C.

I. INTRODUCTION

This matter comes before the Court on Plaintiffs' motion for reconsideration pursuant to R, 4:42-2, seeking to vacate this Court's May 9, 2025, Order which denied Plaintiffs' request for leave to amend the Complaint to add Donna M Feinblum, RN; Zaida Victoria, RN; Qin Wang, MD; and RWJBH Medical Group, (hereinafter "non-parties"), as defendants directly and vicariously liable for alleged negligent neonatal resuscitation. For the reasons set forth below, the motion is DENIED.

II. PROCEDURAL HISTORY

Plaintiffs filed this medical malpractice and wrongful death suit on September 22, 2021, arising from the tragic death of Baby Boy Sesay at Clara Maass Medical Center following complicated labor and delivery and unsuccessful neonatal resuscitation occurring on November 10, 2019. Initially named as defendants were the labor and delivery physician (Mohammed Esiely. M.D.), the labor and delivery nursing staff (Michelle Burbana, RN; Katarina F. Farina, RN), the delivering hospital (Clara Maass Medical Center and RWJ Barnabas Health), and the prenatal. office practice (Health Wise Women).

As set forth in the record, Plaintiffs, prior to instituting this lawsuit, obtained a review from an obstetrician-gynecologist, James Tichenor, M.D., who provided an affidavit of merit as to the labor and delivery care and eventually a narrative report dated April 5, 2024 ("Tichenor Report"). Dr. Tichenor did not ascribe any fault to the neonatal resuscitation team, and counsel represents that verbal or written opinions from other consultants similarly did not attribute postnatal misconduct or causation to the resuscitation personnel. Id. Consistent with that, Plaintiffs did not sue or seek expert review in the specialty of neonatology.

During fact and expert discovery, Defendants including Dr. Esiely and Health Wise Women, answered Form C interrogatories and disclosed their defenses in accordance with R. 4:17-7. Plaintiffs also propounded multiple requests for production and supplemental interrogatory responses, and discovery was repeatedly extended and enforced by several court orders.

It was not until Defendants Dr. Esiely and Health Wise Women served the expert report of Jay Goldsmith, MD, on June 17, 2024, approximately two months following Plaintiffs' sendee of the Tichenor Report, that Plaintiffs claim to have first have had any basis to attribute the infant's death to deviations in the resuscitation efforts by neonatal team members, i.e., the non-parties. Plaintiffs thereafter moved to amend, which this Court denied by written opinion, concluding that the action was time-barred under the statute of limitations and that neither the discovery rule, fictitious party rule, nor relation-back doctrine applied under New Jersey law.

Plaintiffs now move for reconsideration under K 4:42-2.

III. STANDARD OF REVIEW

As Plaintiffs correctly point out, reconsideration of interlocutory orders is governed by the more liberal and flexible standard of R, 4:42-2, as articulated in Lawsonv.Dewar, 468 N.J.Super. 128 (App. Div. 2021). Unlike the rigid standard for final judgments under R, 4:49-2, reconsideration here may be granted by the Court in the interests of justice. Id. at 134. Non-parties are incorrect in suggesting a requirement of palpable error; Lawson explicitly rejects that approach for interlocutory orders. Id. Nevertheless, the Court, while empowered to revisit its interlocutory rulings, should do so primarily to correct a clear misapprehension of fact or law, or where new information emerges which could not have been reasonably presented before.

IV. PLAINTIFFS' ARGUMENTS AND OPPOSITION POSITIONS

Plaintiffs rest their request for reconsideration on the assertion that they did not and could not have exercising reasonable diligence, discovered that the resuscitation team's alleged negligence caused harm to their child until Dr. Goldsmith's June 2024 report. They invoke the discover)' rule (see Lopez v. Swyer, 62 N J. 267 (1973)) and urge the Court to apply Gallagher v. Burdette-Tomlin Med. Hosp., 318 N.J.Super. 485 (App. Div. 1999), affd, 163 N.J. 38 (2000) and Mancuso v. Neckles, 163 N.J. 26 (2000), and among others, to permit amendment.

They further contend that the non-party resuscitation team members' names, although present in the records, did not give notice of negligence, and that the defense's failure to amend its interrogatories to disclose a "neonatal theory" should result in tolling and relation back. According to Plaintiffs, Health Wise Women and Dr. Esiely owed them ongoing disclosure of all expert theories as they were being developed by their expert, Dr. Goldsmith, who had not yet been named or identified.

The non-parties' opposition, as well as the Defendant providers Health Wise Women and Dr. Esiely, forcefully rebut these claims, relying on New Jersey precedent holding that the discovery rule, fictitious party rule, and relation-back mechanism only apply where plaintiffs have exercised adequate diligence in timely investigating, pleading, and seeking to join responsible parties. The non-parties underscore the record as detailed below.

V. ANALYSIS

1. Discovery Rule, Diligence, and Accrual

As this Court previously reasoned, and as the non-parties carefully elaborate in both briefs and their sur-reply, the discovery' rule does not permit plaintiffs to indefinitely defer suit or amendment based on the conditional prospect that an expert in a different specialty might someday opine as to a newly discovered theory of liability. See Gallagher v. Burdette-Tomlin Med. Hosp., 318 NJ. Super. 485, 496 (App. Div. 1999). The discovery rule requires only that the plaintiff be aware of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the injury and that comment itself might possibly have been, unreasonable or lacking in due care. See Savage v. Old Bridge-Savreville Med. Grp., P.A., 134 NJ. 241, 252 (1993).

Here, the names, roles, and involvement of the resuscitation team members, including Dr. Wang, RN Feinblum, and RN Victoria, appeared repeatedly in both the typed and handwritten records dozens of times. Wang and Feinblum alone appear over 100 times; Victoria's name on two occasions.

Plaintiffs* counsel and their retained obstetrics expert, Dr. Tichenor, had full access to these records before suit and throughout discovery. Dr. Tichenor specifically commented on the lack of detail in the resuscitation documentation but declined to assign fault. See Tichenor Report at 3 ("The events of the birth and neonatal resuscitation are mostly absent and cause the greatest challenge to evaluate. Only the names of individuals involved, and that intubation was difficult, are noted.... These actions are not recorded and either they were not created or were withheld from counsel").

Notably, he did identify the absent resuscitation record as "the greatest challenge to evaluate." This, as the non-parties contend and Savage compels, constitutes awareness of facts "suggesting the possibility of wrongdoing" such that reasonable diligence required further inquiry-such as consulting or retaining a neonatology expert or propounding more targeted discovery requests.

The non-parties' position is further strengthened by authority directly on point. In Matvnska v. Fried, 175 N.J. 51 (2002), the Supreme Court held the fictitious party rule inapplicable where a provider's name appeared even a handful of times in the records and where the plaintiff could have ascertained the party's involvement by "an adequate investigation and preparation" before expiration of limitations. Id. at 53. Here, not only were the names In the records, but Plaintiffs' own expert flagged the resuscitation as a major unresolved area. By Plaintiffs' own account, no steps were taken-despite this awareness-to obtain a neonatology review, a situation rendering the claimed diligence insufficient under Matynska and the cases it follows.

Plaintiffs reliance on Gallagher and similar cases is unavailing. As the nonparties observe, the plaintiff in Gallagher had no knowledge (or even reason to suspect) that after-care physicians could have played a causal role until the Defendant's expert first identified that theory years later in deposition-and there was "nothing else in the record warranting the conclusion that plaintiff should have made that linkage." 318 N.J. Super, at 496.

To the contrary, in this case, the absence of resuscitation details was crystalized by Plaintiffs' own expert as an area of factual ambiguity, and the Plaintiffs' timeline contains no discernable activity mobilized to address that ambiguity until the defense served Dr. Goldsmith's report years after suit.

As the non-parties note, Gallagher expressly rejected the notion that a limitations period runs only when an expert is found: "[W]here, within the limitations period, a plaintiff knows she has been injured and that her injury is due to the...