Opinion
CIVIL ACTION No. 02-8402.
August 26, 2004
MEMORANDUM and ORDER
Plaintiff, Lorraine McCrossan, brings this suit as administratrix ad prosequendem of the estate of Joseph L. San Giorgio, Jr., deceased, against Charles E. Wiles, M.D., Carl M. Adolph, M.D., James H. Carson, M.D., Paul Carroll, M.D., Richard S. Altman, M.D., Carl G. Colton, M.D., Regional Gastroenterology Associates of Lancaster, Ltd., Orthopedic Associates of Lancaster, and Lancaster General Hospital, asserting claims for wrongful death and for a survival action. All of these defendants, in turn, bring suit against Joseph P. Jacob, M.D., Nithyashuba B. Khona, M.D., Joseph J. Savon, M.D., Garden State Rehabilitation Medicine, P.C., B.Z. Gastrointestinal, P.A., and West Jersey/Mediplex Rehabilitation, L.P., d/b/a Mediplex Rehabilitation Hospital for Marlton, asserting claims for contribution and/or indemnity for any liability incurred by defendants/third-party plaintiffs. Currently pending before the court are cross-motions for partial summary judgment regarding the law to be applied to the various actions and a motion to dismiss by third-party defendant Savon. As explained below, I will rule in the following manner. For the survival claims and the claims for contribution and/or indemnity grounded in plaintiff's survival claims, as well as for causation/apportionment of damages, New Jersey law will be applied to the claims of defendants/third-party plaintiffs against third-party defendants and Pennsylvania law will be applied to plaintiff's claims against defendants/third-party plaintiffs. Additionally, third-party defendant Savon's motion to dismiss will be denied.
BACKGROUND
The facts as alleged are as follows. On February 26, 2002, plaintiff's decedent, Joseph San Giorgio, Jr. ("decedent"), was involved in an automobile accident in Lancaster County, Pennsylvania. At the time of the accident (and ultimately his death), decedent was a citizen of New Jersey, although he was a full-time student at Saint Joseph's University in Philadelphia, Pennsylvania. Decedent was brought to Lancaster General Hospital ("LGH") for treatment. While at LGH, decedent was examined and/or treated by the following named medical personnel: Charles E. Wiles, M.D., Carl M. Adolph, M.D. James H. Carson, M.D., Paul Carroll, M.D., Richard S. Altman, M.D., Carl G. Colton, M.D., Regional Gastroenterology Associates of Lancaster, Ltd. ("RGA"), and Orthopedic Associates of Lancaster ("Orthopedic Associates"). Other real and/or ostensible agents of LGH also cared for decedent. Decedent remained at LGH until March 8, 2003, when he was discharged to the Mediplex Rehabilitation Hospital ("Mediplex") in Marlton, New Jersey. During his stay at Mediplex, decedent was treated by the following named medical personnel: Joseph P. Jacob, M.D., Nithyashuba B. Khona, M.D., Joseph J. Savon, M.D., Garden State Rehabilitation Medicine, P.C. ("Garden State Rehabilitation"), and B.Z. Gastrointestinal, P.A. ("B.Z."). In the early morning hours of March 12, 2002, decedent was emergently transferred to West Jersey Hospital, and died soon thereafter.
Although two of the motions presently before the court are purportedly for summary judgment, they are, in reality, motions to determine choice of law. Hence, an evidentiary record has not been produced by any of the parties.
Plaintiff is Lorraine McCrossan, administratrix ad prosequendem of decedent's estate, and a citizen of New Jersey. She brings this suit, containing claims for a survival action and for wrongful death, against all those who treated decedent in Pennsylvania, namely Wiles, Adolph, Carson, Carroll, Altman, Colton, RGA, Orthopedic Associates, and LGH (collectively, "Pennsylvania defendants"). Plaintiff claims Pennsylvania defendants' negligence caused decedent's death. Plaintiff has filed a separate action in New Jersey state court against those who treated decedent in New Jersey in order to maintain diversity and this court's jurisdiction. However, Pennsylvania defendants have filed third-party complaints asserting claims for contribution and/or indemnity against those who treated decedent in New Jersey, namely Jacob, Khona, Savon, Garden State Rehabilitation, B.Z., and Mediplex (collectively, "New Jersey defendants"). Pennsylvania defendants claim New Jersey defendants' negligence caused, or at least contributed to, decedent's death.
Pennsylvania defendants are split into three distinct groups: (1) Adolph, Carson, Carroll and Orthopedic Associates (hereinafter "Adolph et al."); (2) Wiles, Altman, Colton and RGA (hereinafter "Wiles et al."); and (3) LGH. Hence, there are three different third-party complaints and amendments thereto.
DISCUSSION
I. Motions and Cross-Motion for Partial Summary Judgment — Choice of Law
Third-party defendant Mediplex, the first to raise the choice of law issue, argues in its "motion for partial summary judgment" that New Jersey law regarding damages for survival actions should apply to New Jersey defendants. Third-party defendants Jacob and Garden State Rehabilitation simply join Mediplex's motion. Third-party defendant Savon, however, adds significantly to Mediplex's motion. First, Savon also argues that New Jersey law regarding causation/apportionment of damages with reference to preexisting conditions should apply. More importantly, though Savon argues that New Jersey law on both these issues should apply to New Jersey defendants and Pennsylvania defendants in order to avoid confusion. As the New Jersey law in these respects is more favorable to defendants than the comparable Pennsylvania law, Pennsylvania defendants LGH and Adolph et al. join Savon's motion (although with no argument or analysis). Plaintiff, of course, objects to the application of New Jersey law, arguing in her cross-motion for partial summary judgment that Pennsylvania law should apply to all claims, but especially her claims against Pennsylvania defendants.
It is well settled that a federal court sitting in diversity must apply the choice of law rules of the state in which it sits when determining which state's substantive law to apply to the case. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941). Since this court is in the Eastern District of Pennsylvania, the Commonwealth of Pennsylvania's choice of law rules will determine whether New Jersey or Pennsylvania law applies to each of the claims in the instant case. It is important to remember that the choice of law analysis must be conducted with respect to the particular issues presented, such that different law may apply to different causes of action. See generally DuSesoi v. United Ref. Co., 540 F. Supp. 1260, 1266-68, 1272-73 (W.D. Pa. 1982) (analyzing choice of law separately as to breach of written contract, breach of oral contract, and fraud); RESTATEMENT (SECOND) CONFLICTS OF LAW §§ 145 (limiting tort analysis to the "particular issue"), 188 (limiting contract analysis to the "particular issue"). Hence, in the instant case, it is possible that Pennsylvania law will apply to plaintiff's claims against Pennsylvania defendants and New Jersey law will apply to Pennsylvania defendants' claims against New Jersey defendants.
Pennsylvania law requires a two part inquiry to determine which state's law should apply to particular causes of action. The first step requires determining whether an actual conflict exists. Where the different laws do not produce different results, there is no actual conflict and courts presume that the law of the forum state shall apply. Where the different laws produce different results, I must determine whether a false conflict exists. See LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir. 1996) (citing Cipolla v. Shaposka, 267 A.2d 854 (Pa. 1970)). "A false conflict exists if only one jurisdiction's governmental interests would be impaired by application of the other jurisdiction's law." See Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991). If a false conflict exists, I must apply the law of the jurisdiction whose interests would be impaired. See Lacey, 932 F.2d at 187.
Where the different laws would produce different results and the application of the law of either state would impair the interests of the other, the court should move to the second prong of the inquiry. See LeJeune, 85 F.3d at 1071-72; Lacey, 932 F.2d at 187; Cipolla, 267 A.2d at 855-56. The second prong requires a qualitative analysis of the contacts between the parties, the causes of action, and the several states, as well as analysis of the interests of the several states. See LeJeune, 85 F.3d at 1072. As the Pennsylvania Supreme Court has made clear:
Pennsylvania courts generally use § 145 of the RESTATEMENT (SECOND) OF CONFLICT OF LAWS as a guide regarding contact analysis. See Troxel v. A.I. duPont Institute, 636 A.2d 1179, 1180-81 (Pa.Super. 1994). This section lists as relevant considerations: "(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145.
Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome.Commonwealth v. Sanchez, 716 A.2d 1221, 1223-24 (Pa. 1998) (citing Griffith v. United Air Lines, 203 A.2d 796, 805 (Pa. 1964)). Contact analysis is not necessary where the different laws do not lead to different results because the law of the forum state is presumed to apply. See McFadden v. Burton, 645 F. Supp. 457, 461 (E.D. Pa. 1986). Contact analysis also is not required where there is a false conflict because courts apply the law only of the state whose interests will be impaired if its law is not applied. See Lacey, 932 F.2d at 187.
A. Survival Actions
All parties agree that the survival statutes of Pennsylvania and New Jersey conflict, specifically in the damages they allow plaintiffs to recover. The Pennsylvania Survival Act, 20 PA. CONS. STAT. § 3373, "permits an estate to recover not only for the decedent's pain and suffering, but also for the prospective net earning capacity of the decedent." Capone v. Nadig, 963 F. Supp. 409, 412-13 (D.N.J. 1997) (citing Skoda v. W. Penn. Power Co., 191 A.2d 822, 829 (Pa. 1963)). In contrast, under New Jersey's Survival Act, N.J. STAT. ANN. § 2A:15-3, recovery is limited "to the pain and suffering experienced by the decedent from the time of the alleged negligence and resulting injury until the time of death." Id. at 412 (citing Eyoma v. Falco, 589 A.2d 653 N.J. Super. 1991)). Despite this glaring difference, it is clear that in the instant case the purported conflict is a false one in regard to both plaintiff's claims against Pennsylvania defendants and Pennsylvania defendants' claims against New Jersey defendants.
The parties agree that there is no conflict between Pennsylvania and New Jersey law for wrongful death claims.
Pennsylvania's "liberal damage policy," Blakesley v. Wolford, 789 F.2d 236, 240 (3d Cir. 1986), serves a dual purpose: deter tortious conduct within its borders, see Arcila v. Christopher Trucking, 195 F. Supp. 2d 690, 694 (E.D. Pa. 2002), and protect the estates and creditors of decedents. See Meisenhelder v. Sunbury Transport, Ltd., 2002 WL 32308675, at *4 (E.D. Pa. 2002); Silverstein v. Solomon, 1989 WL 23075, at * 3 (E.D. Pa. 1989). As the Pennsylvania Supreme Court has explained, "[Pennsylvania] is vitally concerned with the administration of decedent's estate and the well-being of the surviving dependents to the extent of granting full recovery, including expected earnings. This policy is so strong that it has been embodied in the Constitution of Pennsylvania." Griffith v. United Air Lines, Inc., 203 A.2d 796, 807 (Pa. 1964). In contrast, courts addressing this dichotomy have routinely recognized that "the New Jersey Legislature, in providing for such limited recovery under the Survival Act, was expressing its interest in protecting New Jersey defendants." Capone, 963 F. Supp. at 413 (internal quotations and citations omitted); see also Arcila, 195 F. Supp. 2d at 694; Meisenhelder, 2002 WL 32308675, at *4; Silverstein, 1989 WL 23075, at *2. It is important to keep in mind, though, that "New Jersey is not interested in protecting all defendants but only its own residents." Colley v. Harvey Cedars Marina, 422 F. Supp. 953, 955 (D.N.J. 1976).
1. Plaintiff's Claims Against Pennsylvania Defendants
Plaintiff's decedent was a New Jersey citizen at the time of his death, but he was also a full-time student at Saint Joseph's University in Philadelphia, Pennsylvania. He was injured in Pennsylvania and brought to a Pennsylvania hospital for treatment. Plaintiff brings these claims against the Pennsylvania hospital and the doctors who treated decedent while he was at that hospital. The basis of plaintiff's claims against Pennsylvania defendants is negligence contributing to decedent's death, all of which would have occurred in Pennsylvania. There is absolutely no connection to New Jersey other than the citizenship of the plaintiff's decedent. As another court in this jurisdiction has noted, Pennsylvania defendants "should not be accorded rights not given them by their home state simply because the victim, . . . a resident of a state offering greater protection to its defendants, happened to visit Pennsylvania." Silverstein, 1989 WL 23075, at *3. New Jersey does not have any interest in protecting these Pennsylvania defendants, especially when all allegedly tortious actions occurred in Pennsylvania. In contrast, Pennsylvania has an interest in deterring similar tortious conduct within its borders and in promoting recovery for decedents' estates and creditors. Hence, it is clear that the relevant differences in Pennsylvania's and New Jersey's law governing damages available for a survival action constitute a false conflict for plaintiff's claims. Since "application of Pennsylvania law would not only promote Pennsylvania's interest, but it would also avoid any deleterious impact on New Jersey's policy," Arcila, 195 F. Supp. 2d at 694, Pennsylvania law will be applied to plaintiff's claims against Pennsylvania defendants.
2. Defendants'/Third-party Plaintiffs' Claims Against Third-party Defendants
Pennsylvania defendants bring a claim against New Jersey defendants for contribution and/or indemnity for any liability incurred by Pennsylvania defendants on the claims asserted by plaintiff. All the Pennsylvania defendants, the hospital and medical staff who treated decedent from February 26 to March 8, 2002, are Pennsylvania residents. New Jersey defendants, the medical facility and staff who treated decedent from March 8 to March 12, 2002, are all New Jersey residents. The basis of Pennsylvania defendants' claims against New Jersey defendants is negligence that would have contributed to decedent's death, thereby making New Jersey defendants liable to Pennsylvania defendants for contribution and/or indemnity for any liability Pennsylvania defendants incurred. This negligence would have necessarily occurred in New Jersey.
There is considerable confusion in the parties' briefs regarding the identity of the plaintiff for these claims. The plaintiff is not McCrossan, the mother and administratrix of decedent's estate. Rather, plaintiffs are those who cared for decedent in Pennsylvania prior to his transfer to New Jersey medical facilities. Hence, Pennsylvania's interest in deterring tortious conduct within its borders and protecting the estates and creditors of decedents are not implicated here. The damages plaintiff can recover if she succeeds in her claims against Pennsylvania defendants are not affected by what damages Pennsylvania defendants can or cannot recover from New Jersey defendants in indemnity or contribution. In contrast, New Jersey's interest in protecting its residents from large recoveries is directly implicated since New Jersey defendants are New Jersey residents who may be held liable for indemnity for or contribution to an award to a decedent's survivors. Since "application of [New Jersey] law would not only promote [New Jersey]'s interest, but it would also avoid any deleterious impact on [Pennsylvania]'s policy," Arcila, 195 F. Supp. 2d at 694, New Jersey law will be applied to Pennsylvania defendants' claims against New Jersey defendants. Accordingly, the motions of third-party defendants Mediplex, and Jacob and Garden State Rehabilitation will be granted, the motion of third-party defendant Savon will be granted in part, and the motion of plaintiff McCrossan will be denied.
Although certainly open to further discussion, it appears to the court that this issue can be easily differentiated for the jury at trial by having the jury separately itemize damages under the survival action. The court will instruct the jury on those items of survival act damages common to both states and the amount will be set forth in one line. It will then instruct the jury on those items of survival act damages that apply only in Pennsylvania which will be set forth in a separate line item. If the original defendants are successful in their action for contribution and/or indemnity, the award, i.e. the damages for which New Jersey defendants are responsible, would be determined based only on the former line item, and not the latter.
Savon's motion to apply New Jersey law will be granted as to the survival act damages issue, but denied to the extent that it requests that New Jersey law apply to all parties in this action.
B. Causation/Apportionment of Damages
Third-party defendant Savon argues that although both Pennsylvania and New Jersey apply the "substantial factor" test to determine causation in cases involving a preexisting condition, these two states differ on the type and amount of damages recoverable in such situations. More specifically, Savon alleges New Jersey limits damages in the case of preexisting conditions "to the value of the lost chance of recovery attributable to defendant's negligence," Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990), while Pennsylvania does not appear to do the same. See Beswick v. City of Philadelphia, 185 F. Supp. 2d 418, 434-35 (E.D. Pa. 2001). He avers there is no Pennsylvania case law specifically on point. I need not determine the specifics of New Jersey law at this juncture. To the extent that New Jersey law regarding preexisting conditions differs from that of Pennsylvania, New Jersey law will be applied to Pennsylvania defendants' claims against New Jersey defendants for the reasons stated above. Accordingly, Savon's motion to apply New Jersey law will be granted as to the causation/apportionment of damages issue with reference to preexisting conditions, but denied to the extent that it requests that New Jersey law apply to all parties in this action.
Certain Pennsylvania defendants join this argument. They do so on the premise that if New Jersey law on this issue is going to be applied to New Jersey defendants, it should also be applied to Pennsylvania defendants for the sake of consistency (which Savon also argues). They do so without any analysis or argument and without citing any authority to support their position. Savon's motion in this respect is similarly deficient. The position is rejected as without merit.
II. Motion to Dismiss — Affidavit of Merit
New Jersey defendant Savon argues that New Jersey's statute requiring plaintiffs in professional malpractice actions to submit an affidavit of merit within 120 days of the defendant's answer to the complaint, see N.J. STAT. ANN. 2A:53A-26 through 53A-29, is applicable to Pennsylvania defendants' claims against New Jersey defendants. Savon then argues that Pennsylvania defendants have failed to comply with the requirements of the statute (as interpreted by New Jersey courts) and that the action against him should be dismissed with prejudice. Pennsylvania defendants respond by (1) contending that New Jersey law should not apply in this respect (for a variety of reasons) and (2) even if this New Jersey law does apply, Pennsylvania defendants have complied with the statute, or at least, the time limit for complying with the statute has not yet expired. I agree with Savon that the New Jersey affidavit of merit statute is applicable to the claims asserted against him, but agree with Pennsylvania defendants that they still have time to comply with the requirements of that statute.
The relevant portion of the New Jersey affidavit of merit statute, i.e. the only portion that arguably affects the outcome of the instant case, reads:
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. 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.
N.J. STAT. ANN. § 2A:53A-27.
The Third Circuit has clearly stated, "[T]he New Jersey affidavit of merit statute is substantive state law that must be applied by federal courts sitting in diversity." Chamberlain v. Giampapa, 210 F.3d 154, 161 (3d Cir. 2000).
New Jersey defendants Mediplex, Jacob and Garden State Rehabilitation submitted a letter to the clerk joining Savon's motion and arguing that Pennsylvania defendants' claims against them should also be dismissed with prejudice. Such letter, when proposed by counsel and not a pro se party, and when not accompanied by any factual analysis of that party's position or any briefing as to the applicable law, are not motions and are not entitled to any consideration.
A. Whether New Jersey Law Applies
First, as Savon points out, Pennsylvania has a similar requirement (although a Rule of Civil Procedure promulgated by the Pennsylvania Supreme Court, not a statute), which similarly requires plaintiffs to file a "certificate of merit" containing an appropriate professional's verification that there is a reasonable probability that defendant's conduct deviated from an acceptable professional standard. See PA. R. CIV. P. 1042.3. Both states enacted their respective requirements to combat the growing malpractice crisis by ensuring that baseless claims would be dismissed early in the litigation process. See Speicher v. Toshok, 63 Pa. D. C. 4th 435, 443 (Pa. Com. Pl. 2003) (noting that the purpose of the certificate of merit rule is "to minimize the costs of defense and the time that a licensed professional must devote to the litigation until the plaintiff has been able to secure a certificate of merit"); Hubbard v. Reed, 774 A.2d 495, 500 (N.J. 2001) (explaining that the purpose of the affidavit of merit statute is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court"). A major difference between the Pennsylvania rule and the New Jersey statute is the date upon which they became effective. The Pennsylvania rule became effective on January 27, 2003, and hence would not be applicable to this case, which was filed on November 8, 2002. See 33 Pa. Bull. 748 ("The new and amended rules shall be applicable to actions commenced on or after the effective date of this Order [January 27, 2003]."). In contrast, the New Jersey statute became effective on June 29, 1995 and is applicable to the present action. So, despite the fact that the rule and statute are very similar and were enacted for the same reason, they are not both applicable to the instant case. Hence, there is an actual conflict between New Jersey law and Pennsylvania law on this issue; the applicable New Jersey law requires an affidavit of merit, while the applicable Pennsylvania law does not require anything that would resemble an affidavit of merit.
Again, though, there is a false conflict between the interests of Pennsylvania and New Jersey. Again, all of the events giving rise to the claims against Savon occurred in New Jersey. It is not clear what Pennsylvania's interest would be in not requiring Pennsylvania defendants to file an affidavit of merit, particularly since Pennsylvania now has a similar requirement itself. Further, Pennsylvania's general interest in protecting plaintiffs injured by professional negligence is not implicated here since, as previously explained, the plaintiffs in the portion of the action at issue here are those who cared for decedent in Pennsylvania prior to his transfer to New Jersey medical facilities and not the mother and administratrix of decedent's estate. Moreover, as the Third Circuit has explained, "the [New Jersey affidavit of merit] statute's goals were twofold, intending `not only to dispose of meritless malpractice claims early in the litigation, but also to allow meritorious claims to move forward unhindered.'" Snyder v. Pascack Valley Hospital, 303 F.3d 271, 274 (3d Cir. 2002) (quoting Burns v. Belafsky, 766 A.2d 1095, 1099 (N.J. 2001)). Hence, according to the New Jersey Supreme Court, Pennsylvania defendants are also protected by enforcement of the statute in the instant case. In contrast, New Jersey's interest in protecting its professionals from litigating frivolous actions is directly implicated since Savon is a New Jersey resident who must defend the claims for contribution and/or indemnity, which are based on allegations of professional negligence or malpractice. New Jersey's interest, thus, would be directly impacted if the affidavit of merit statute was not applied. Since "application of [New Jersey] law would not only promote [New Jersey]'s interest, but it would also avoid any deleterious impact on [Pennsylvania]'s policy," Arcila, 195 F. Supp. 2d at 694, New Jersey law with reference to the affidavit of merit will be applied to Pennsylvania defendants' claims against Savon.
Pennsylvania defendant LGH argues that even if the court rules New Jersey law applies generally, the New Jersey affidavit of merit statute does not apply to cross-claims, such as that asserted by LGH. LGH is correct that a New Jersey appellate court has held that "a defendant in a malpractice action who files a cross-claim against another defendant is not required to file an affidavit of merit." Charles A. Manganaro Consulting Engineers, Inc. v. Carneys Point Tp. Sewerage Authority, 781 A.2d 1116, 1118 (N.J.Super. 2001). However, LGH misclassifies its claims. Although it has consistently classified its claims against Savon and all other New Jersey defendants but one (Khona) as cross-claims, it is clear that they are really third-party actions, like LGH's claim against Khona. LGH is not a co-defendant with Savon or any of the other New Jersey defendants, as McCrossan does not assert claims against any New Jersey defendants in this action. The court in Manganaro explained that although:
a defendant who files a cross-claim generally relies upon the plaintiff's proofs of the codefendant's negligence and thus may justifiably assume that the plaintiff will provide an affidavit of merit supporting its claim against the codefendant[, a] defendant who files a counterclaim against the plaintiff has no comparable basis to assume that any other party will file an affidavit of merit upon which it can rely.Id. Similarly, LGH cannot rely on any other party (besides its co-defendants, who are all in the same position relative to Savon and the other New Jersey defendants as LGH) to file an affidavit of merit upon which it can rely. Further, New Jersey courts have required defendants filing third-party complaints to comply with the affidavit of merit statute. See Nagim v. New Jersey Transit, 848 A.2d 61, 69 (N.J.Super. 2003). LGH and its co-defendants asserting claims against Savon and other New Jersey defendants are the plaintiffs in their respective actions for indemnity and/or contribution, and therefore must abide by the New Jersey affidavit of merit statute.
Although Pennsylvania defendants do not raise the argument, it is important to note the following points. First, since Pennsylvania defendants' claims for contribution and/or indemnity from New Jersey defendants necessarily require Pennsylvania defendants to prove "malpractice or negligence by a licensed person in his profession or occupation," the affidavit of merit statute is applicable. See Couri v. Gardner, 801 A.2d 1134, 1141-42 (N.J. 2002). Next, since the original claims for which Pennsylvania defendants seek contribution and/or indemnification are for personal injuries (via survival actions) and wrongful death, the affidavit of merit statute is applicable. See Nagim, 848 A.2d at 69-70.
LGH also argues that Savon waived his right to dismissal because, inter alia, he "waited many months after LGH's affidavit was purportedly due before seeking dismissal under the Statute." LGH Br. 11. The New Jersey Supreme Court has expressly noted that "the Affidavit of Merit statute places no obligation on a defendant to file a dismissal motion within a set timeframe." Knorr v. Smeal, 836 A.2d 794, 798 (N.J. 2003). The court consequently found that defendant's "tardy filing of the motion [to dismiss]," which was much tardier than that of Savon in the instant case, was insufficient to support a conclusion "that defendant intentionally elected to forgo his right to seek the remedy of dismissal," a finding necessary to support a finding of waiver. Id. at 798-99. In the instant case, Pennsylvania defendants divided into three distinct groups before asserting claims against New Jersey defendants: (1) Adolph, Carson, Carroll and Orthopedic Associates (hereinafter "Adolph et al."); (2) Wiles, Altman, Colton and RGA (hereinafter "Wiles et al."); and (3) LGH. Hence, there are three different third-party complaints to which Savon must have responded, which means there could be three different dates upon which the time limitation period for filing an affidavit of merit began to run. Savon clearly waited until what he believed to be the lapse of the last limitation period for the filing of an affidavit of merit. Considering the New Jersey Supreme Court ruled that a defendant who waited "until after all discovery had been completed and more than a year after his receipt of plaintiffs' expert's report detailing his negligence" did not waive his right to dismissal, Knorr, 836 A.2d at 798, I must find that Savon did not waive his right to dismissal under the New Jersey affidavit of merit statute.
LGH makes one final argument, that the New Jersey affidavit of merit statute conflicts with the Federal Rules of Civil Procedure and is therefore inapplicable to the present case. LGH Br. 4-8. However, as the Third Circuit has said in unmistakable terms, "We have held that a district court's application of this statute does not conflict with the Federal Rules of Civil Procedure and hence is enforceable in the district courts when New Jersey law applies." Snyder, 303 F.3d at 273 (citing Chamberlain v. Giampapa, 210 F.3d 154, 157 (3d Cir. 2000)). Despite LGH's protests, I am bound by this decision.
B. Whether Pennsylvania Defendants Have Complied With or Can Still Comply with the New Jersey Affidavit of Merit Statute
Now that it is clear the New Jersey affidavit of merit statute does apply to the Pennsylvania defendants' claims against Savon, it is necessary to determine whether or not Pennsylvania defendants have complied with its requirements. The New Jersey Supreme Court has made it clear that plaintiff is not required to request an extension of time for "good cause" within the original sixty-day period in order to obtain the sixty-day extension. Burns v. Belafsky, 766 A.2d 1095, 100-01 (N.J. 2001). More importantly, "if a plaintiff files a motion to extend time, establishing good cause for the late filing, and also files an affidavit of merit within the overall 120-day window provided in N.J. STAT. ANN. 2A:53A-27, those actions will be deemed timely." Galik v. Clara Maass Medical Center, 771 A.2d 1141, 1147 (N.J. 2001). However, the court has also explained that even if an extension is granted, the affidavit must be served within 120 days from the date the answer was filed. See Douglass v. Obade, 819 A.2d 445, 446 (N.J.Super. 2003). So, the crucial question in the instant case is whether or not the 120 day period within which Pennsylvania defendants have to file a motion to extend time and serve an affidavit of merit has elapsed.
The procedural history of the instant case makes the determination of this issue slightly confusing. To simplify, I will discuss each group of Pennsylvania defendants and their relevant complaints and Savon's answers thereto separately. Adolph et al. filed their original third-party complaint on May 7, 2003. Savon filed his answer on July 23, 2003. Adolph et al. filed an amended third-party complaint, with approval of the court, on August 28, 2003. Savon answered the amended third-party complaint on September 22, 2003. Adolph et al. filed a second amended third-party complaint, with approval of the court, on March 12, 2004.
LGH filed its "cross-claim," which is really a third-party complaint, on August 1, 2003. Savon filed his answer on August 20, 2003. LGH filed a third-party complaint (which is really an amended third-party complaint), with approval of the court, on March 12, 2004.
Wiles et al. filed their original third-party complaint on January 9, 2004. Savon filed his answer on February 24, 2004. Wiles et al. filed their amended third-party complaint, with approval of the court, on March 31, 2004.
Exactly 120 days from the date he answered the last original third-party complaint, which was that of Wiles et al., Savon filed this motion to dismiss. It is no surprise, then, that Savon argues that the 120 day period for each set of Pennsylvania defendants began when he answered their respective third-party complaints.
As of the time of Savon's motion to dismiss, and Pennsylvania defendants' responses to his motion, Savon had not yet answered any of the final amended third-party complaints. On July 20, 2004, though, Savon filed an "answer to all subsequently amended third-party complaints," in which he "incorporat[ed] by reference his original Answers to the Third Party Complaints." Docket # 130. Presumably this is meant to serve as an answer to all previously amended and unanswered third-party complaints, as well. Pennsylvania defendants contend in opposition that the period does not begin until Savon answered the last amended complaint filed by each group. The Third Circuit agrees with Pennsylvania defendants.
Savon notes in his brief in support of dismissal that LGH's cross-claim is essentially a third-party complaint. Hence, by incorporating his previous answers to third-party complaints in his July 20, 2004 filing, he is impliedly incorporating his answer to LGH's cross-claim against him.
In Snyder v. Pascack Valley Hospital, the Third Circuit first held that "[u]nder New Jersey procedural rules, as well as those in the federal system, a defendant is required to answer the amended complaint even if the new version does not change the charges against him." Snyder, 303 F.3d 271, 276 (3d Cir. 2002). The court then went on to explain, "[I]t appears that the statute's purpose is best implemented here by establishing as the beginning point of the 120day limitations period the date on which a defendant files his answer to the final amended complaint." Id. Savon argues that when the Third Circuit made its decision in Snyder it did not have the benefit of the New Jersey Superior Court decisions in Douglass v. Obade, 819 A.2d 445 (N.J.Super. 2003), and Czepas v. Schenk, 827 A.2d 1080 (N.J.Super. 2003), and would have decided otherwise if it had. Both cases involved situations where the 120-day period had clearly passed before defendant served an affidavit and defendant did not have good cause for the delay. Upon complete review of these cases, it is clear that these decisions would not have changed the Third Circuit's conclusion regarding when the 120-day period begins. In fact, in a footnote, the Third Circuit warned against potential abuse by plaintiffs who "file a series of amended complaints for the sole purpose of garnering additional time for providing an affidavit of merit," Snyder, 303 F.3d at 276 n. 3, a more complicated issue than the abuse involved in Czepas. Savon does not allege, nor does it otherwise appear, that Pennsylvania defendants have engaged in this evasive tactic. Moreover, even if I were to conclude that these later decisions might cause the Third Circuit to reevaluate its position, I am bound by the Third Circuit's decision until it holds otherwise, not by the decision of an intermediate appellate court in New Jersey.
The Third Circuit expressed its confidence that "trial courts would not permit plaintiffs to engage in such tactics simply to evade the statute." Snyder, 303 F.3d at 276 n. 3.
Being bound by the Third Circuit's decision in Snyder, I must conclude that the 120-day period for serving an affidavit of merit (and filing a motion to extend time, establishing good cause for the late filing, if the affidavit is late) has not lapsed for any of the Pennsylvania defendants. Since Savon did not answer the last amended complaints of each group of Pennsylvania defendants until July 20, 2004, the 120-day time limit for filing an affidavit of merit did not begin to run until that date. Accordingly, Savon's motion to dismiss will be denied.
I also note, as the New Jersey Supreme Court did in Ferreira v. Rancocas Orthopedic Assocs., "principles of equity and the essential goal of the statute — to eliminate frivolous lawsuits [early in the litigation process] — are not advanced by dismissing the complaint[s]." Ferreira, 836 A.2d 779, 784 (N.J. 2003). This case is currently set to begin trial on September 13, 2004. Discovery is complete and most pathology and supplemental pathology reports have been filed. Neither Savon nor any other New Jersey defendant has filed a motion for summary judgment on liability, indicating that they do not even feel at this late stage of the litigation process that the lawsuit is completely frivolous. In a situation such as this, like the one in Ferreira, dismissal would not be justified.
CONCLUSION
Despite the complexity of the instant case, the answer to the question posed in the motion presently before the court is fairly clear. First, for the survival claims and the claims for contribution and/or indemnity grounded in plaintiff's survival claims, as well as for causation/apportionment of damages, New Jersey law will be applied to the claims of defendants/third-party plaintiffs against third-party defendants and Pennsylvania law will be applied to plaintiff's claims against defendants/third-party plaintiffs. New Jersey's interests in having its laws applied clearly outweigh Pennsylvania's interests in having it's laws applied in the former instance and the opposite is true in the latter situation. Next, New Jersey's affidavit of merit statute clearly applies to Pennsylvania defendants' claims against third-party defendant Savon, as the rule is substantive, this court is sitting in diversity, and there is a false conflict between the interests of New Jersey and Pennsylvania such that only New Jersey's interests would be affected if its law was not applied. However, Savon's motion to dismiss will be denied because the 120-day time period for filing an affidavit of merit did not begin to run until July 20, 2004. An appropriate order follows.
ORDER
And now, this ____ day of August, 2004, upon consideration of the motions for partial summary judgment of third-party defendant West Jersey/Mediplex Rehabilitation, L.P., d/b/a Mediplex Rehabilitation Hospital for Marlton (Doc. #89), third-party defendants Joseph P. Jacob, M.D. and Garden State Rehabilitation Medicine, P.C. (Doc. #90), third-party defendant Joseph P. Savon (Doc. #91), the response in opposition thereto and cross-motion for partial summary judgment of plaintiff Lorraine McCrossan (Docs. #99, 100), the responses joining third-party defendants' motions of defendant Lancaster General Hospital (Doc. #94) and defendants Carl M. Adolph, M.D., James H. Carson, M.D., Paul Carroll, M.D., Orthopedic Associates of Lancaster, Ltd. (Doc. #101), and the answers to plaintiff's opposition of third-party defendants West Jersey/Mediplex Rehabilitation, L.P., d/b/a Mediplex Rehabilitation Hospital for Marlton (Doc. #105), and Joseph P. Jacob, M.D. and Garden State Rehabilitation Medicine, P.C. (Doc. #103), it is hereby ORDERED that the third-party defendants' motions and plaintiff's motion are GRANTED in part and DENIED in part, as follows:(1) For the survival claims and the claims for contribution and/or indemnity grounded in plaintiff's survival claims, New Jersey law will be applied to the claims of defendants/third-party plaintiffs against third-party defendants and Pennsylvania law will be applied to plaintiff's claims against defendants/third-party plaintiffs; and
(2) For causation/apportionment of damages, New Jersey law will be applied to the claims of defendants/third-party plaintiffs against third-party defendants and Pennsylvania law will be applied to plaintiff's claims against defendants/third-party plaintiffs.
Further, upon consideration of the motion to dismiss of third-party defendant Joseph P. Savon (Doc. #114), the responses in opposition thereto of defendants Carl M. Adolph, M.D., James H. Carson, M.D., Paul Carroll, M.D., Orthopedic Associates of Lancaster, Ltd. (Docs. #119, 131), Lancaster General Hospital (Doc. #120), and Charles E. Wiles, M.D., Richard S. Altman, M.D., Carl G. Colton, M.D., and Regional Gastroenterology Associates of Lancaster, Ltd. (Doc. #122), and the answer to defendants' opposition of Joseph P. Savon, M.D. (Doc. #129), it is hereby ORDERED that third-party defendant Savon's motion to dismiss is DENIED.