FRANK RUBURY v. ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4453-16T2
FRANK RUBURY,
Plaintiff-Appellant,
v.
ROBERT WOOD JOHNSON UNIVERSITY
HOSPITAL, RONALD BAGNER, MD,
ANN JEANETTE GEIB, MD, JOSHUA
HONEYMAN, RN, DARNELL J. BROWN, RN,
FRANK E. CHIARAPPA, RN, JUDITH K.
AMOROSA, MD, PHILIP G. MURILLO, MD,
MARK P. BRAMWIT, MD, ROBERT AZIZI, MD,
IRWIN A. KELLER, MD, and BOB CHAI, MD,
Defendants-Respondents,
and
ROBERT BROWN, RN, ARIANNE
ZAGNIT, RN, JOHNNY BERGACS, RN,
and VICTORIA MICHAEL,
Defendants.
__________________________________________
Submitted September 13, 2018 – Decided January 10, 2019
Before Judges Simonelli and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-11363-14.
Dunne, Dunne & Cohen, LLC, attorneys for appellant
(Frederick R. Dunne, III, of counsel and on the briefs).
Law Offices of Joseph A. DiCroce, LLC, attorneys for
respondent Robert Wood Johnson University Hospital
(Regina G. DiStefano, on the brief).
Krompier & Tamn, LLC, attorneys for respondent
Ronald J. Bagner, MD (Jeffrey A. Krompier, of counsel
and on the brief; Valerie N. Smaldone, on the brief).
Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys
for respondents Ann-Jeannette Geib, MD, Joshua
Honeyman, MD, Darnell Brown, MD, Frank
Chiarappa, MD, Philip Murillo, MD, and Robert Azizi,
MD (David Parker Weeks, of counsel and on the brief;
Jessica J. Mahony, on the brief).
Marshall Dennehey Warner Coleman and Goggin,
attorneys for respondents Judith K. Amorosa, MD,
Mark P. Bramwit, MD, Irwin Keller, MD, and Bob
Chai, MD (Walter F. Kawalec, III, and Ryan T.
Gannon, on the brief).
PER CURIAM
Plaintiff Frank Rubury appeals from four orders of the Law Division that
collectively resulted in the dismissal with prejudice of his claims of medical
malpractice. We affirm.
A-4453-16T2
2
I.
We derive the following facts from the record. Rubury alleges that on
May 29, 2014, he was injured in a motor vehicle accident. He was transported
by ambulance from the scene of the accident to the emergency department at
Robert Wood Johnson University Hospital (RWJ Hospital). Plaintiff alleges
that he was treated by a number of physicians, nurses, and other health care
professionals, who diagnosed him as having sustained minor injuries and
discharged him later that day.
Rubury alleges that the following day he was rushed by ambulance to the
emergency department of Morristown Medical Center (MMC). There, Rubury
alleges, he was diagnosed with several fractured ribs, a fractured sternum, and
a rupture in his chest, which filled with blood. He alleges that he underwent
emergency thoracic surgery to remove two liters of fluid from his chest , was
hospitalized for ten days, and received six blood transfusions. After being
discharged from MMC, Rubury spent twenty-two days in a medical facility
recovering.
On December 2, 2014, Rubury filed a complaint alleging medical
malpractice against only RWJ Hospital and fictitious defendants. On September
8, 2015, he filed an amended complaint alleging medical malpractice against
A-4453-16T2
3
RWJ Hospital and fifteen individual defendants he alleges were involved in
providing him medical care on May 29, 2014. Rubury's claims against RWJ
Hospital and eleven of the individual defendants are before us. For our
purposes, the individual defendants can be placed into three categories: (1) Ann-
Jeannette Geib, M.D., Joshua Honeyman, M.D., Darnell Brown, M.D., Frank
Chiarappa, M.D., Philip Murillo, M.D., and Robert Azizi, M.D. (collectively the
State employee defendants); (2) Ronald Bagner, M.D.; and (3) Judith K.
Amorosa, M.D., Mark P. Bramwit, M.D., Irwin A. Keller, M.D., and Bob Chai,
M.D. (the University Radiology Group defendants). 1 On October 1, 2015,
Rubury executed a stipulation of dismissal with prejudice of all direct claims
against RWJ Hospital, while preserving his allegations of vicarious liability
against that defendant.
On February 3, 2016, the State employee defendants filed an answer. On
February 5, 2016, Bagner filed an answer. No answer was filed by the
University Radiology Group defendants.
1
Rubury also named as defendants Arianne Zagnit, R.N., Victoria Michael,
E.M.T., H. Robert Brown, R.N., and Johnny Bergacs, R.N. On May 4, 2016,
the trial court entered an order dismissing the claims asserted against those
defendants. Rubury did not appeal from the May 4, 2016 order.
A-4453-16T2
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On February 26, 2016, a court-generated notice was sent to all counsel
stating that the amended complaint against the University Radiology Group
defendants was subject to administrative dismissal for lack of prosecution
because those defendants had not filed an answer and Rubury had not moved for
entry of default against them. Counsel was given sixty days to take action
required by Rule 1:13-7 or Rule 4:43-2 to avoid dismissal of the amended
complaint against the University Radiology Group defendants.
During the sixty-day period that followed, no action was taken by the
parties pursuant to Rule 1:13-7 or Rule 4:43-2. As a result, on April 29, 2016,
the court administratively dismissed the amended complaint against the
University Radiology Group defendants.
A. Notice of Tort Claim.
On February 3, 2016, the State employee defendants moved to dismiss the
claims alleged against them in the amended complaint because of Rubury's
failure to comply with the notice requirements of the Tort Claim Act (TCA),
N.J.S.A. 59:8-1 to -11. On September 12, 2016, Judge Arnold L. Natali, Jr.,
issued a comprehensive written opinion granting the motion. The court
concluded that Rubury failed to serve a notice of claim within ninety days of the
accrual of his cause of action, despite having been on notice that the State
A-4453-16T2
5
employee defendants were State employees. See N.J.S.A. 59:8-8(a). Judge
Natali rejected Rubury's argument that he substantially complied with the statute
by sending an August 12, 2014 letter to the RWJ Hospital legal department. The
court found that RWJ Hospital was not the State employee defendants'
employer. See Caporusso v. N.J. Dep't of Health and Senior Servs., 434 N.J.
Super. 88, 99 (App. Div. 2013) (noting that "the TCA requires that a claim be
presented to a public agency within ninety days after accrual of the cause of
action.") (quoting Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546, 552
(2000)); see also N.J.S.A. 59:8-8. In addition, the court observed that the letter
misspelled Rubury's name, did not identify the State employee defendants by
name, provided no meaningful details with respect to Rubury's alleged injuries,
did not identify the date of his treatment, and omitted other information required
by N.J.S.A. 59:8-4.
Finally, the court noted that Rubury did not seek leave to file a late notice
of tort claim within a year of the accrual of his claims pursuant to N.J.S.A. 59:8-
9. Thus, Judge Natali concluded, the court lacked jurisdiction to consider a
request for leave to file a late notice of claim. See Iaconianni v. N.J. Tpk. Auth.,
236 N.J. Super. 294, 298 (App. Div. 1979). Moreover, the court concluded that
if Rubury had filed such a motion in a timely fashion the record would not
A-4453-16T2
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support a finding of extraordinary circumstances warranting leave to file a late
notice. See N.J.S.A. 59:8-9. The court, therefore, dismissed the claims against
the State employee defendants in the amended complaint with prejudice in an
order filed on September 12, 2016.
B. Affidavit of Merit.
On June 15, 2016, Bagner moved to dismiss the claims alleged against
him in the amended complaint because of Rubury's failure to comply with the
Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29. On June 21,
2016, the State employee defendants also moved to dismiss the claims alleged
against them in the amended complaint because of Rubury's failure to comply
with the AOM statute.
On September 13, 2016, Judge Natali issued a comprehensive written
opinion granting the two motions. The court concluded that at the time
defendants filed their motions, Rubury had not yet served an AOM on any of the
individual defendants. At that point, both the sixty-day period for service of the
affidavits and the one additional sixty-day period that may be granted by the
court on good cause shown (for which Rubury had not applied) had expired. See
N.J.S.A. 2A:53A-27. It was only after the defendants moved for dismissal of
the amended complaint that Rubury served two AOMs on the defendants. Thus,
A-4453-16T2
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Judge Natali concluded that Rubury had failed to comply with the statutory time
period for filing the affidavits.
In addition, the court reviewed the late served affidavits and determined
that they did not comply with N.J.S.A. 2A:53A-41, at least with respect to
Bagner. The court concluded that the affiants were not certified specialists in
the same field as Bagner, rendering the affidavits deficient as to him. Judge
Natali also rejected Rubury's claim that he substantially complied with the AOM
statute, finding the affidavits to have been "exceedingly untimely" and
substantively insufficient. The court entered an order granting defendants'
motions on September 13, 2016.
C. Vicarious Liability.
RWJ Hospital thereafter moved to dismiss the vicarious liability claims
alleged against it in the amended complaint. RWJ Hospital argued that in light
of the dismissal of all claims against the individual defendants, it was not
possible for Rubury to establish vicarious liability on the part of the hospital. In
addition, RWJ Hospital argued that Rubury failed to produce an expert report
during discovery establishing negligence by any healthcare provider at the
hospital and did not comply with the AOM statute as to RWJ Hospital.
A-4453-16T2
8
On January 11, 2017, Judge Natali issued a comprehensive written
opinion granting RWJ Hospital's motion. The court concluded that Rubury
failed to satisfy the AOM statute with respect to his vicarious liability claims.
See McCormick v. State, 446 N.J. Super. 603, 614-15 (App. Div. 2016). Thus,
the court concluded, Rubury was precluded from pursuing those claims. In
addition, each of the claims against the individual defendants had already been
dismissed, negating Rubury's ability to establish malpractice by the individual
defendants for which RWJ Hospital could be found to be vicariously liable. As
a result, on January 11, 2017, the court entered an order granting RWJ Hospital's
motion.
D. Motion to Reinstate Amended Complaint.
On February 3, 2017, Rubury moved to reinstate the amended complaint
against the University Radiology Group defendants. As noted above, the court
administratively dismissed the amended complaint against those defendants for
lack of prosecution. Rubury argued that exceptional circumstances justified
reinstating the amended complaint because his counsel was ill and unable to
work for identified periods while Rubury's amended complaint was pending. In
the alternative, Rubury argued that the court should relax the exceptional
A-4453-16T2
9
circumstances requirement of Rule 1:13-7(a), and reinstate the amended
complaint for good cause.
On June 7, 2017, Judge Natali issued a comprehensive written opinion
denying Rubury's motion. The court concluded that Rubury did not establish
extraordinary circumstances justifying his "extensive delay" in seeking
reinstatement of the amended complaint. The court found that Rubury's counsel
was absent from his office for short, intermittent periods, and that he actively
represented Rubury in this matter both before and after those periods. In
addition, the court found that it would be fundamentally unfair to reinstate the
amended complaint because of the significant amount of time that had elapsed
since Rubury's treatment at RWJ Hospital, and because Rubury's claims against
the other individual defendants had been dismissed for his failure to comply with
statutory requirements. Finally, Judge Natali declined to relax the extraordinary
circumstances requirement of Rule 1:37-1(a) because "a reasonable
interpretation of the complex of directly applicable rules meets the problem at
hand." See Robertelli v. N.J. Office of Atty. Ethics, 224 N.J. 470, 483 (2016).
On June 7, 2017, the court entered an order denying Rubury's motion.
This appeal followed. Rubury appeals the orders dated September 12,
2016, September 13, 2016, January 11, 2017, and June 7, 2017.
A-4453-16T2
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II.
We review the trial court's interpretation of the law and legal conclusions
de novo. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552-53
(2014). The trial court's findings of fact will not be disturbed "when supported
by adequate, substantial and credible evidence." Zaman v. Felton, 219 N.J. 199,
215 (2014) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549
(2002)). We review an order denying a motion to reinstate a complaint for lack
of prosecution under the abuse of discretion standard. Baskett v. Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011).
Having carefully reviewed the arguments in light of the record and
applicable legal principles, we affirm the orders under appeal for the reasons
stated in the thorough and well-reasoned written opinions of Judge Natali filed
September 12, 2016, September 13, 2016, January 11, 2017, and June 7, 2017.
Affirmed.
A-4453-16T2
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