PHILIP E. HAHN v. JOHNSON & JOHNSON INC

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0738-10T4

PHILIP E. HAHN,

Plaintiff-Appellant,

v.

JOHNSON & JOHNSON, INC.,

ORTHO-McNEIL-JANSSEN

PHARMACEUTICALS, INC., PFIZER, INC.,

TENAFLY POLICE DEPARTMENT,

PARAMUS POLICE DEPARTMENT, CAREPLUS1,

BERGEN REGIONAL MEDICAL CENTER,

BRISTOL MYERS SQUIBB, and

OTSUKA AMERICA PHARMACEUTICAL, INC.,

Defendants-Respondents.

____________________________________

October 3, 2011

 

Argued September 13, 2011 - Decided

 

Before Judges Payne, Reisner and Hayden.

 

On appeal from New Jersey Superior Court, Law Division, Bergen County, Docket No. L-3935-09.

 

Philip E. Hahn, appellant, argued the cause pro se.

 

Christopher D. Liwski argued the cause for respondents Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals, Inc., and Pfizer, Inc. (Drinker, Biddle & Reath L.L.P, attorneys; Michael C. Zogby, on the brief).

 

Ruby Kumar-Thompson argued the cause for respondent Tenafly Police Department (Thomas B. Hanrahan & Associates, L.L.C., attorneys; Mr. Hanrahan, of counsel and on the brief; Ms. Kumar-Thompson, on the brief).

 

Brian T. Giblin argued the cause for respondent Paramus Police Department (Giblin & Giblin, attorneys; Mr. Giblin, on the brief).

 

William J. Rudnick argued the cause for respondent Care Plus NJ, Inc. (Gebhardt & Kiefer, attorneys; Mr. Rudnick, on the brief).

 

Samuel M. Goffinet argued the cause for respondent Bergen Regional Medical Center (Ahmuty, Demers & McManus, attorneys; Mr. Goffinet, on the brief).

 

Sara F. Merin argued the cause for respondent Bristol-Myers Squibb (McCarter & English, L.L.P., attorneys; David R. Kott, of counsel and on the brief; Ms. Merin, on the brief).

 

James S. Richter argued the cause for respondent Otsuka America Pharmaceutical, Inc. (Winston & Strawn, L.L.P., attorneys; Timothy M. Broas and Matthew A. Campbell, of counsel and on the brief).

PER CURIAM

Plaintiff Philip E. Hahn appeals from a series of trial court orders dismissing his complaint against defendants.2 To summarize, in connection with his temporary psychiatric commitment to the Bergen Regional Medical Center (BRMC or hospital) in March 2008, plaintiff sued BRMC; the Tenafly and Paramus police departments, which were involved, respectively, in telephoning a screening service and transporting plaintiff to BRMC; Care Plus NJ, Inc., the designated screening service that evaluated him for the psychiatric commitment; and several pharmaceutical companies that manufactured medications administered to him during his hospitalization. Most of plaintiff's claims were dismissed with prejudice on dispositive motions. His claims against three of the drug companies were dismissed without prejudice for failure to provide discovery, R. 4:23-5(a)(1), and his motions to reinstate those claims were denied.3 Having reviewed the record, we affirm all of the orders on appeal.

I

Although this appeal concerns Mr. Hahn's 2008 psychiatric commitment, he asserted very similar claims in several earlier lawsuits, based on his previous psychiatric commitments to BRMC in 2005 and 2007. The factual background concerning that litigation is detailed in our opinion affirming the dismissal of those claims. Hahn v. Bergen Regional Medical Center, No. A-2869-09; A-6282-09; A-1924-10 (App. Div. June 23, 2011). Notably, before the earlier litigation was dismissed by orders issued in 2009 and 2010, Mr. Hahn amended his complaint several times without including his claims based on the 2008 commitment. Instead, he withheld those claims and asserted them in this lawsuit, which he filed on April 28, 2009.

This is the factual record concerning the 2008 commitment. On March 5, 2008, Rosemarie Merino reported to the Tenafly Police Department that her husband, Donald Merino, had received a threatening letter from Mr. Hahn. The letter requested that Mr. Merino submit to a deposition, and included a list of questions he would be asked. The queries covered varied subject matter, including: requesting Mr. Merino's tax information; asking if Mr. Merino ever threatened Mr. Hahn verbally; asking if Mr. Merino arranged for him to be followed, tortured by his dentist, or run out of Hoboken; and asking if Mr. Merino had information about various flights, fires, and terrorist attacks. Because BRMC was listed as a defendant in Mr. Hahn's letter regarding his civil action, Tenafly Police Lieutenant Siegel called the hospital's help line and spoke with a representative from Care Plus about the situation. She stated that the organization knew Mr. Hahn, and would send a screener to his home.

After unsuccessfully attempting to locate plaintiff on March 5, Maksym Lider, a certified Care Plus screener, arrived at plaintiff's parents' home on March 6, 2008, in the company of several Paramus Police Department officers. Mr. Lider conducted a screening of Mr. Hahn, and also spoke to his parents. Although Mr. Hahn was responsive to Mr. Lider's initial questions, he quickly became uncooperative and began to suspiciously look out of the windows, as if someone were following him. Plaintiff's parents told Mr. Lider that he was not complying with his drug treatment regimen, and had become withdrawn and paranoid. Plaintiff, who had been increasingly ill and delusional for sixteen years, had a history of assaulting both himself and his parents.

Following the in-person evaluation, Mr. Lider determined that plaintiff needed further assessment and treatment, and required hospitalization to achieve a measure of psychiatric stability. As a result of that determination and pursuant to the civil commitment statute, Mr. Lider authorized the Paramus police to transport Mr. Hahn to the BRMC emergency room. One hour later, Mr. Lider completed the adult screening document, recommending commitment because a less restrictive treatment option was not available or appropriate.

When plaintiff arrived at the BRMC emergency room, he was given the Care Plus Consumer Handbook and Privacy Policy, and was offered treatment and crisis intervention counseling. Dr. Anthony Varriano, a BRMC employee authorized to issue screening certificates pursuant to a contract between Care Plus and the Division of Mental Health Services, evaluated Mr. Hahn and found that he was a danger to himself and others if left untreated. Dr. Varriano diagnosed him with paranoid schizophrenia, and executed the statutory Screening Certificate for Involuntary Commitment of Mentally Ill Adults certifying his conclusions at 10:40 p.m. Dr. Stephanie Barnes likewise diagnosed Mr. Hahn as paranoid schizophrenic and admitted him to BRMC.

On March 7, 2008, Mr. Hahn was evaluated by Dr. Michelle Ruvolo, a psychologist on his treatment team, who agreed with the prior determinations that he was a paranoid schizophrenic who posed a danger to himself or others if his condition was left untreated. Dr. Ruvolo executed the statutory Clinical Certificate for Involuntary Commitment of Mentally Ill Adults certifying her conclusions.

Plaintiff's Clinical and Screening Certificates were presented to Judge John J. Langan, Jr., who issued an order temporarily committing him to BRMC. A second follow-up hearing was scheduled for March 27, 2008, but never took place because Mr. Hahn was released on March 18.

In the days immediately following his commitment, Mr. Hahn remained paranoid, delusional and withdrawn, refusing to cooperate with hospital staff or take any medication. Consequently, he was placed on a "three-step" program designed for patients who refuse to accept treatment voluntarily. In accordance with the program, Dr. Ruvolo met Mr. Hahn to discuss the prescribed treatment and recommend that he comply; his treatment team met with him and explained the benefits and urged compliance with the treatment plan when he refused. The hospital's Medical Director authorized involuntary administration of medication when Mr. Hahn again refused to cooperate. Plaintiff received an injection of the antipsychotic medication Abilify over his objection on March 13, 2008.

After Mr. Hahn received the injection, his delusions decreased and he became compliant with his medication over the next few days. Mr. Hahn "stated [to his therapists] that he did well on Abilify and [agreed] to take that." He showed "significant improvement with no delusions elicited." On March 17, 2008, he executed a voluntary admission request. Because he was no longer an immediate danger to himself or to others while his schizophrenia was under control, Mr. Hahn was discharged on March 18, with a prescription for Abilify and a follow up treatment plan. However, according to his deposition testimony, Mr. Hahn stopped taking his medication soon after his release.

In April 2009, plaintiff filed a complaint challenging his psychiatric commitment as unjustified; asserting that he was medicated with Haldol and Benadryl, which he claimed were defective products; and contending that Abilify was a defective product and administered against his will.4

II

On this appeal, Mr. Hahn primarily contends that summary judgment should not have been granted to defendants, he was entitled to a jury trial, and he should have been permitted to amend his complaint. He presents the following twenty-three points of argument for our consideration:

ISSUE I: THE GRANTING OF SUMMARY JUDGMENT IS IN ERROR IF A RATIONAL JURY CAN FIND IN THE PLAINTIFF'S FAVOR GIVEN ALL FAVORABLE INFERENCES AND THE EVIDENCE IN RECORD.

 

ISSUE II: ISSUES OF FACT ARE A JURY ISSUE IN THE MATTERS THE PLAINTIFF SOUGHT TO BRING TO THE BAR IN THE LOWER COURT.

 

ISSUE III: SUMMARY JUDGMENT FOR THE FAILURE TO PROVIDE AN AFFIDAVIT OF MERIT CANNOT BE GRANTED IF A JURY TRIAL HAS BEEN DEMANDED IF THERE IS ANY EVIDENCE IN RECORD.

ISSUE IV: SUMMARY JUDGMENT VIA AN IMMUNITY DEFENSE CANNOT BE GRANTED IF A JURY TRIAL HAS BEEN DEMANDED IF THERE IS ANY EVIDENCE IN RECORD.

 

ISSUE V: JUDGES CANNOT WRITE LAW.

 

ISSUE VI: THE PRINCIPAL OF STARE DECISIS APPLIES TO THE MATTERS THE PLAINTIFF SEEKS TO BRING TO THE BAR.

 

ISSUE VII: ANY DISCREPANCIES WITH REGARD TO THE APPLICATION OF N.J.S.A. 30:4-27 ARE TO BE RESOLVED IN THE PLAINTIFF'S FAVOR.

 

ISSUE VIII: THE PLAINTIFF IS DUE VERDICT VIA FACTS IN EVIDENCE FOR COMPLAINTS #1 OR #2.

 

ISSUE IX: THE PLAINTIFF IS DUE VERDICT VIA FACTS IN EVIDENCE FOR COMPLAINT #3.

 

ISSUE X: THE PLAINTIFF CAN PREVAIL IN COMPLAINT #4 AND THEREFORE GRANTING OF SUMMARY JUDGMENT WAS IN ERROR.

 

ISSUE XI: THE PLAINTIFF CAN PREVAIL IN COMPLAINT #5 AND THEREFORE GRANTING OF SUMMARY JUDGMENT WAS IN ERROR.

 

ISSUE XII: THE PLAINTIFF CAN PREVAIL IN COMPLAINT #6 AND THEREFORE GRANTING OF SUMMARY JUDGMENT WAS IN ERROR.

 

ISSUE XIII: THE PLAINTIFF IS DUE VERDICT VIA FACTS IN EVIDENCE FOR COMPLAINT #7.

 

ISSUE XIV: THE PLAINTIFF CAN PREVAIL IN COMPLAINT #8 AND THEREFORE GRANTING OF SUMMARY JUDGMENT WAS IN ERROR.

 

ISSUE XV: THE PLAINTIFF IS DUE VERDICT VIA FACTS IN EVIDENCE FOR COMPLAINT #9.

 

ISSUE XVI: THE PLAINTIFF IS DUE VERDICT VIA FACTS IN EVIDENCE FOR COMPLAINT #10 AND THEREFORE DISMISSAL WAS IN ERROR.

 

ISSUE XVII: THE PLAINTIFF IS DUE VERDICT VIA FACTS IN EVIDENCE FOR COMPLAINT #11.

ISSUE XVIII: THE PLAINTIFF CAN PREVAIL IN COMPLAINT #12 AND THEREFORE GRANTING OF SUMMARY JUDGMENT WAS IN ERROR.

 

ISSUE XIX: THE PLAINTIFF CAN PREVAIL IN COMPLAINT #13 AND THEREFORE GRANTING OF SUMMARY JUDGMENT WAS IN ERROR.

 

ISSUE XX: THE PLAINTIFF CAN PREVAIL IN COMPLAINT #14 AND THEREFORE GRANTING OF SUMMARY JUDGMENT WAS IN ERROR.

 

ISSUE XXI: THE FAILURE OF THE COURT TO ALLOW THE MARCH 5, 2010 AMENDMENT TO THE COMPLAINT TO INCLUDE ADDITIONAL PARTIES WAS IN ERROR.

 

ISSUE XXII: THE FAILURE OF THE COURT TO ALLOW THE COMPLAINT TO BE AMENDED TO INCLUDE THE BOROUGH OF PARAMUS AND THE PARAMUS BOARD OF EDUCATION WAS IN ERROR.

 

ISSUE XXIII: THE FAILURE OF THE COURT TO ALLOW ADDITIONAL CAUSES OF ACTION VERSUS BRISTOL-MYERS SQUIBB AND OTSUKA PHARMACEUTICAL WAS IN ERROR.

Although defendant's statement of facts contains no citations to the record, contrary to Rule 2:6-2(a)(4), we have nonetheless reviewed the record and considered all of his arguments. Based on that review, we conclude that his appellate contentions are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the orders on appeal, substantially for the reasons stated by Judge Mark M. Russello in the oral opinions and written statements of reasons that he issued for each order. We add the following comments.

Plaintiff asserted professional negligence claims against BRMC and Care Plus, contending that he was falsely imprisoned because he did not need to be committed, and that he was given unnecessary medication. With very limited exceptions, short-term psychiatric care facilities and screening services are entitled to statutory immunity in connection with psychiatric commitments of patients. N.J.S.A. 30:4-27.7; Ziemba v. Riverview Medical Center, 275 N.J. Super. 293, 300 (App. Div. 1994). Plaintiff did not provide any legally competent evidence that could overcome that immunity. Plaintiff also failed to file affidavits of merit to support his claims, as required by the Affidavit of Merit statute, N.J.S.A. 2A:53A-27.

Nor did plaintiff serve an expert report challenging the commitment procedures used, the need for the commitment, or the appropriateness of his psychiatric treatment. As we held in our prior opinion, expert reports were required because none of plaintiff's professional negligence claims is of the type that falls within the common knowledge of jurors. Hahn, supra, slip op. at 10-11. See Hubbard v. Reed, 168 N.J. 387, 394 (2001). In support of its summary judgment motion, BRMC submitted an extensive expert report, opining that the entire commitment process was handled correctly and plaintiff received appropriate treatment during his stay at the hospital. Plaintiff failed to submit an expert report refuting that submission. Nor did he submit any other legally competent evidence establishing a basis for these defendants' liability, and therefore summary judgment was properly granted. See R. 4:46-2(c).

Nor did plaintiff provide expert reports or other legally competent evidence concerning the medications at issue. Plaintiff is not an expert, and his purported self-authored "expert reports" about Haldol, Abilify and Benadryl would not satisfy the requirement for expert testimony concerning alleged defects in those drugs. The common knowledge doctrine does not apply to those claims either. Hahn, supra, slip op. at 10-11; Hubbard, supra, 168 N.J. at 394.

Plaintiff's claims against Bristol Myers and Otsuka, the manufacturers of Abilify, were also properly dismissed with prejudice under the entire controversy and res judicata doctrines. Plaintiff should have included in the previous litigation all of his claims concerning his 2005 and 2008 treatments with Abilify. In that prior lawsuit, he made the same claim that Abilify exacerbated his detached retina, a condition that was diagnosed in 2005. See Hahn, supra, slip op. at 5. And he amended his complaint several times in that previous action, including amendments filed after his 2008 hospitalization. Plaintiff's subsequent, repetitious 2009 lawsuit was properly dismissed. See Ditroliio v. Antiles, 142 N.J. 253, 267-68 (1995); Brown v. Brown, 208 N.J. Super. 372, 381-82 (App. Div. 1986).5 We affirm the dismissal of the complaint against Bristol Myers and Otsuka for these reasons as well as the reasons stated in Judge Russello's oral opinion issued January 8, 2010.

Plaintiff did not oppose the summary judgment motion filed by the Paramus Police Department, which resulted in the dismissal of his complaint against the Department by order dated August 14, 2009. Having failed to oppose the summary judgment motion, he cannot challenge the August 14 order on this appeal. We will not consider arguments on appeal that were not presented to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). But even if we consider the merits, the unopposed certification of the Paramus Police Chief provided ample factual support for the summary judgment dismissal.

Plaintiff's false imprisonment complaint against the Tenafly Police Department was properly dismissed for lack of evidence. That defendant introduced undisputed evidence that its staff had no personal contact with Mr. Hahn. A Tenafly police officer called Care Plus to report a possible need for the screening service to evaluate Mr. Hahn. The Tenafly Police Department is entitled to statutory immunity for that activity, pursuant to N.J.S.A. 30:4-27.7a.

Affirmed.

1 The correct name of this party is Care Plus NJ, Inc.

2 The orders on appeal are as follows: August 14, 2009 (granting summary judgment to Paramus Police Department); December 11, 2009 (granting summary judgment in favor of Tenafly Police Department); January 8, 2010 (dismissing complaint against Bristol-Myers Squibb Company); January 8, 2010 (dismissing complaint against Otsuka America Pharmaceutical, Inc.); May 3, 2010 (granting summary judgment to Care Plus NJ, Inc.); June 11, 2010 (dismissing complaint against Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals, Inc. and Pfizer, Inc. for discovery violations); August 6, 2010 (denying motion to reinstate and amend complaint against Bristol-Myers Squibb and Otsuka); and September 16, 2010 (denying motion to reconsider and reinstate complaint against Johnson & Johnson, Ortho, and Pfizer).

3 We conclude that the without-prejudice dismissals were properly granted and the reinstatement motions were properly denied, because plaintiff never provided the requested discovery. The record does not indicate whether these defendants subsequently moved for a dismissal with prejudice pursuant to Rule 4:23-5(a)(2). Our decision does not preclude them from filing such a motion.

4 Among other things, the complaint asserted that "the chloride ions" in Haldol and Abilify reacted with ions in plaintiff's retina "to form 'soap.'"

5 On March 9, 2010, the Bergen County Assignment Judge entered two orders requiring that any future complaints filed by Mr. Hahn against Bristol Myers or Otsuka "be reviewed by the Assignment Judge and be barred from filing where repetitive."