PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 11-1957

______________

INES 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)

______________
2

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 08-4177)

Honorable Freda L. Wolfson, District Judge

______________

Submitted under Third Circuit LAR 34.1(a)

October 6, 2011

BEFORE: McKEE, Chief Judge, and FUENTES and 

GREENBERG, Circuit Judges

(Filed: December 30, 2011)

______________

Anthony A. Lenza, Jr.

Law Offices of Carl M. Erman

618 Newark Avenue

Elizabeth, NJ 07208

 Attorneys for appellant

Tony West 

Assistant Attorney General

Paul J. Fishman

United States Attorney 

Karen H. Shelton

Office of the United States Attorney

402 East State Street

Trenton, NJ 08608
3

Mark B. Stern

Helen L. Gilbert

Attorneys, Appellate Staff,

Court Division

United States Department of Justice

Appellate Section

Room 7261

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0000

 Attorneys for appellee United States of America

George H. Cortelyou

Mark A. Petraske

Buckley & Theroux

932 State Road

Princeton, NJ 08540-0000

 Attorneys 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

P.O. Box 820

Oakhurst, NJ 07755

 Attorney for David Hyppolite, M.D.

______________

OPINION OF THE COURT
4

______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

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 administratix 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. 

II. FACTUAL and PROCEDURAL HISTORY

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. 
5

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

 1

Initially, Lomando filed suit in the New Jersey Superior Court, 

 She named the following 
6

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 

 

 

but that court dismissed the case without prejudice on October 

31, 2008. 

2

Lomando since has filed suit in the New Jersey Superior Court 

against Dr. Hyppolite.
7

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. 
8

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

 3

As we have indicated, Parker Health predicated its uncontested 

successful motion for summary judgment on its claim to 

immunity under the NJCIA. Lomando does not challenge that 

disposition on this appeal. 

4

A firm decision on the issue of whether the United States is 

entitled to assert its deemed employees’ defenses under 28 

U.S.C. § 2674 would have been necessary if the Court had 
9

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 medicallyrecognized 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 

 

predicated the United States’ immunity on the VPA, because 

that act differs from the NJCIA in that it grants immunity only to 

volunteers of nonprofit organizations and not to the 

organizations themselves. 42 U.S.C. § 14503(a). 
10

rejected.5

Lomando asserts that the District Court erred in holding 

that the United States is immune from suit under the NJCIA, as 

she contends that: (1) the physicians at Parker Health were not 

“volunteers” for purposes of the NJCIA because they were 

“employees” of the Public Health Service and (2) the decision 

permitting the United States to avail itself of the NJCIA 

immunity conflicted with the scheme that the FTCA envisioned 

and thus created a conflict between state and federal law. 

Lomando also argues that the Court erred in its conclusion that 

N.J. Stat. Ann. § 2A:53A-41 applies to the present case, and 

contends that Drs. Reynolds and Talbert provided care that did 

not involve the practice of emergency medicine. Alternatively, 

Lomando asserts that even if that statute applies, Dr. Fialk’s 

qualifications were sufficient for him to give expert testimony in 

this case. Finally, Lomando challenges the Court’s decision not 

to consider treatment that Ms. Biedenbach provided to Laura in 

 In granting Emergency Physician Associates 

summary judgment, the Court declined to consider statements 

that Lomando’s experts submitted alleging deviations from the 

applicable standard of care by Emergency Physician Associates’ 

employee, Ms. Biedenbach, because Lomando “ha[d] not named 

[Ms. Biedenbach] as a defendant.” Lomando, 2011 WL 

1042900, at *10 n.10. 

 5

Because Lomando had not made specific allegations against 

Emergency Physician Associates apart from those predicated on 

the treatment by the individual practitioners that it employed, the 

Court “treat[ed] all arguments applicable to the doctors as 

equally applicable to the group.” Lomando, 2011 WL 1042900, 

at *10 n.10. 
11

support of Lomando’s claims against Emergency Physician 

Associates. 

III. JURISDICTION and STANDARD of REVIEW

The District Court had jurisdiction over Lomando’s 

FTCA claims pursuant to 28 U.S.C. § 1346(b), and over her 

state law claims pursuant to 28 U.S.C. § 1367(a). We have 

jurisdiction under 28 U.S.C. § 1291. 

We exercise plenary review over the order granting 

appellees summary judgment, applying the same standard that 

the District Court applied. See Knopick v. Connelly, 639 F.3d 

600, 606 (3d Cir. 2011); Azur v. Chase Bank, USA, Nat’l Ass’n, 

601 F.3d 212, 216 (3d Cir. 2010). In this plenary review, we 

can affirm the summary judgment only if “there [wa]s no 

genuine issue as to any material fact and the [prevailing 

defendants were] entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a); see also Melrose, Inc. v. City of Pittsburgh, 613 

F.3d 380, 387 (3d Cir. 2010). A genuine dispute is one that 

“may reasonably be resolved in favor of either party.” Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 

(1986). A material fact is one “that might affect the outcome of 

the suit under the governing law.” Id. at 248, 106 S.Ct. at 2510. 

We must view the record in the light most favorable to 

Lomando as the non-moving party, and we must draw all 

reasonable inferences that the record supports in her favor. See

Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). 

To the extent that the District Court’s opinion contains 
12

conclusions of law, our review is de novo. See Azur, 601 F.3d 

at 216. 

IV. DISCUSSION and ANALYSIS

(1) Whether the District Court erred as a matter of law in 

determining that the United States is immune from suit 

under the NJCIA, N.J. Stat. Ann. § 2A:53A-7(a), and 28 

U.S.C. § 2674?

(a) The Role of the United States under the FTCA and 42 

U.S.C. § 233(o)

Under 42 U.S.C. § 254b(c)(1)(A), the government “may 

make grants to public and nonprofit private entities for projects 

to plan and develop health centers which will serve medically 

underserved populations.” As the court described in Wilson v. 

Big Sandy Health Care, Inc., 576 F.3d 329, 333 (6th Cir. 2009), 

“[i]n part due to the relatively high cost of obtaining malpractice 

insurance for treatment of . . . high-risk patients . . . the efforts to

provide necessary medical care in . . . underserved areas initially 

faced significant roadblocks.” In response, Congress passed the 

Federally Supported Health Centers Assistance Act of 1992 

(“1992 Act”), Pub. L. No. 102-501, 106 Stat. 3268 (codified as 

amended at 42 U.S.C. §§ 201, 233). 

The 1992 Act created a process by which “public and 

nonprofit private entities” receiving federal funds pursuant to 42 

U.S.C. § 254b(c)(1)(A) and health practitioners that such entities

employ “shall be deemed to be [employees] of the Public Health 
13

Service.” 42 U.S.C. § 233(g)(1)(A). This treatment of health 

care centers receiving section 254b funding and practitioners at 

them is highly significant, for an action against the United States 

under the FTCA is the exclusive remedy for persons alleging 

“personal injury, including death, resulting from the 

performance of medical . . . or related functions” by Public 

Health Service employees acting within the scope of their 

employment. 42 U.S.C. § 233(a); see also 42 U.S.C. § 

233(g)(1)(A) (reiterating subsection 233(a)’s exclusivity clause). 

In 1996 in an effort to “expand access to health care 

services to low-income individuals in medically underserved 

areas,” H.R. Rep. No. 104-736, at 234 (1996) (Conf. Rep.), 

reprinted in 1996 U.S.C.C.A.N. 1990, 2091, Congress conferred 

the same deemed “employee” status and attendant FTCA 

coverage on a second and distinct category of persons: health 

practitioners who volunteer at free clinics. See Health Insurance 

Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. 

No. 104-191, § 194, 110 Stat. 1936, 1988-91 (1996) (codified as 

amended at 42 U.S.C. § 233(o)). Congress did not condition the 

award of this immunity on the government making grants to the 

clinics. Under the HIPAA, volunteer health practitioners who at 

free clinics provide a “qualifying health service” “shall in 

providing services for the free clinic, be deemed to be 

[employees] of the Public Health Service.” 42 U.S.C. § 

233(o)(1).6

 6

Unlike a health care center receiving section 254b funding 

which may be deemed an employee of the PHS under 42 U.S.C. 

§ 233(g), a free clinic is not deemed an employee of the PHS 

 The HIPAA likewise made explicit that an FTCA 
14

action against the United States is the sole remedy through 

which medical malpractice and similar claims may be brought 

on account of the services of such volunteers. See 42 U.S.C. § 

233(o)(5). In this case, the physicians who treated Laura at 

Parker Health were deemed employees of the Public Health 

Service pursuant to 42 U.S.C. § 233(o) because Parker Health is 

a free clinic and the physicians there provided their services as 

volunteers.7

Subject to exceptions not at issue in this case, the FTCA 

waives the sovereign immunity of the United States in its district 

courts for tort claims “caused by the negligent or wrongful act or 

 See app. at 215 (Letter from Department of Health 

and Human Services to Volunteers in Health (Jan. 27, 2006) 

(deeming Parker Health physicians employees of PHS pursuant 

to 42 U.S.C. § 233(o))).

 

and thus the FTCA did not preclude Lomando’s suit against 

Parker Health. See 42 U.S.C. § 233(o)(5)(B) (The subsection 

extending FTCA coverage to volunteers at free clinics “may not 

be construed as deeming any free clinic to be an employee of the 

Public Health Service.”). 

7

42 U.S.C. § 233(o) specifies the criteria for an entity to be 

regarded as a “free clinic,” what conditions must be met in order 

for a health care practitioner to be considered a “free clinic 

health professional,” and what constitutes a “qualifying health 

service.” See 42 U.S.C. § 233(o)(2)-(o)(4). Because the parties 

do not dispute that Parker Health is a free clinic, and that the 

Secretary of Health and Human Services deemed the volunteer 

physicians who treated Laura at Parker Health to be federal 

employees, we do not set forth those provisions. 
15

omission of any employee of the Government while acting 

within the scope of his office or employment, under 

circumstances [in which] the United States, if a private person, 

would be liable to the claimant in accordance with the law of the 

place where the act or omission occurred.” 28 U.S.C. § 

1346(b)(1). Section 1346 contains two basic principles that 

govern FTCA claims. 

First, “the FTCA does not itself create a substantive 

cause of action against the United States; rather, it provides a 

mechanism for bringing a state law tort action against the 

federal government in federal court.” In re Orthopedic Bone 

Screw Prod. Liab. Litig., 264 F.3d 344, 362 (3d Cir. 2001); see

also CNA v. United States, 535 F.3d 132, 141 (3d Cir. 2008) 

(“The cause of action in an FTCA claim . . . must come from 

state tort law.”). Accordingly, “the extent of the United States’ 

liability under the FTCA is generally determined by reference to 

state law.” In re Orthopedic, 264 F.3d at 362 (internal quotation 

marks and citation omitted); see also Santos ex rel. Beato v. 

United States, 559 F.3d 189, 193 (3d Cir. 2009) (noting that 

“substantively the FTCA follows state liability law”). The 

parties agree that because Laura’s treatment and death were in 

New Jersey, the law of that state is applicable here. 

Second, the United States is liable only to the extent that 

in the same circumstances the applicable local law would hold 

“a private person” responsible. 28 U.S.C. § 1346(b)(1). 

Congress reiterated that precept in 28 U.S.C. § 2674, which 

provides that the United States is answerable under the FTCA 

“in the same manner and to the same extent as a private 

individual under like circumstances.” See also United States v. 
16

Olson, 546 U.S. 43, 46, 126 S.Ct. 510, 512 (2005) (“Our cases 

have consistently adhered to this ‘private person’ standard.”). 

The FTCA’s provision that the United States shall be liable to 

the same extent as “a private person” or “private individual” 

does not specify whether the United States is liable to the extent 

that a similarly-placed private employer would be liable or to the 

extent its employee if not an employee of the federal 

government would be liable. Seemingly, this omission has 

engendered the variant case law that the District Court cited.

We addressed this distinction between employer and 

employee in McSwain v. United States, 422 F.2d 1086, 1087-88 

(3d Cir. 1970), in which we clarified that the United States 

occupies the role of a similarly-placed private employer under 

the FTCA: 

Under the Federal Tort Claims Act, 28 

U.S.C. §§ 1346(b), 2674, the United States is 

liable for injury caused by the negligent act of a 

government employee to the same extent a private 

employer would be liable. Such liability for the 

acts or omissions of a civilian or military federal 

employee is determined by the law of respondeat

superior of the state in which the act or omission 

occurred.

(citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100 

(1955)); see also Matsko v. United States, 372 F.3d 556, 561 (3d 

Cir. 2004) (distinguishing plaintiff’s claim that United States 

failed to protect him from an intentional tort by a government 

employee from traditional FTCA “respondeat superior claim 
17

for” the government employee’s actions).8

 8

Most courts of appeals have determined consistently with this 

view that the FTCA imposes liability on the United States to the 

extent that a private employer would be liable in similar 

circumstances in the pertinent locality. See Haceesa v. United 

States, 309 F.3d 722, 729 (10th Cir. 2002) (“[T]he 

Government’s liability under the FTCA is limited to that of a 

private employer under like circumstances.”); Day v. 

Massachusetts Air Nat’l Guard, 167 F.3d 678, 681 (1st Cir. 

1999) (The United States has consented to be sued under the 

FTCA “provided that in the same circumstances a private 

employer would be liable for the acts of his employee under the 

local law.”); Taber v. Maine, 67 F.3d 1029, 1048 (2d Cir. 1995) 

(“Pursuant to the FTCA, courts merely determine whether 

analogous behavior by a private-sector employee would give 

rise to some form of fault-based vicarious liability on the part of 

a private-sector employer.”); Johnson v. Sawyer, 47 F.3d 716, 

730 (5th Cir. 1995) (en banc) (“All FTCA liability is respondeat 

superior liability. . . . Under the FTCA, the United States is not 

liable if the private employer would not be liable pursuant to 

local law.”). But courts do not always follow this approach for 

in Knowles v. United States, 91 F.3d 1147, 1150 (8th Cir. 1996),

the court held that the United States is liable to the extent the 

immunized employee would be liable under local law. But see

St. John v. United States, 240 F.3d 671, 676 (8th Cir. 2001) 

(“The FTCA is a limited waiver of sovereign immunity, 

allowing the federal government to be sued for the actions of 

‘any employee of the Government while acting within the scope 

of his office or employment’ under circumstances where the 

 
18

The Supreme Court likewise has described the United 

States’ role under the FTCA as equivalent to that of an employer 

answering under respondeat superior liability. In Gutierrez de 

Martinez v. Lamagno, 515 U.S. 417, 427, 115 S.Ct. 2227, 2232 

(1995), the Court observed that where the United States certifies 

in response to an FTCA claim that an employee was acting 

within the scope of his employment with respect to his actions 

concerning the claim, “the United States, by certifying, is . . . 

exposing itself to liability as would any other employer at 

common law who admits that an employee acted within the 

scope of his employment.” (citing Restatement (Second) of 

Agency § 219 (1958)) (emphasis added); Lamagno, 515 U.S. at 

420, 115 S.Ct. at 2229 (“Generally, [FTCA] cases unfold much 

as cases do against other employers who concede respondeat 

superior liability.”); see also Laird v. Nelms, 406 U.S. 797, 801, 

92 S.Ct. 1899, 1901-02 (1972) (“Congress intended to permit 

liability essentially based on the intentionally wrongful or 

careless conduct of Government employees, for which the 

Government was to be made liable according to state law under 

the doctrine of respondeat superior . . . .”).

Looking to the text of the FTCA, we note that the act 

shadows precisely the common law of respondeat superior

liability, providing that the United States is subject to suit for the 

negligent acts of “any employee of the Government while acting 

within the scope of his office or employment.” 28 U.S.C. § 

1346(b)(1) (emphasis added); see 1 S. Speiser, C. Krause, & A. 

Gans, The American Law of Torts § 4.3, pp. 581-82 (2003) 

(“[I]t is hornbook law that the doctrine of respondeat superior 

 

United States would be liable if it were a private employer.”).
19

renders an employer or master vicariously liable for a tort 

committed by his employee or servant while acting within the 

scope of employment.”); Restatement (Third) of Agency § 2.04 

(“An employer is subject to liability for torts committed by 

employees acting within the scope of their employment.”). 

Thus, the plain language of the FTCA, which treats the United 

States as liable for the tortious actions of its employees, creates 

a remedial scheme under which the United States would be 

liable as an employer in like circumstances. See also 28 U.S.C. 

§ 2671 note (“The United States, through the Federal Tort 

Claims Act, is responsible to injured persons for the common 

law torts of its employees in the same manner in which the 

common law historically has recognized the responsibility of an 

employer for torts committed by its employees within the scope 

of their employment.”) (emphasis added). 

In sum, the FTCA provides that the United States will be 

liable to the extent that a private employer would be liable in 

similar circumstances in the same locality. In this case, then, the 

United States stands in the shoes that a similarly-placed private 

employer of the physicians, i.e., a free non-profit health center, 

would stand and answers for the allegedly tortious conduct of 

the United States’ deemed employees, the volunteer physicians 

at that health center.9

 9

This case appears to be the first precedential opinion to address 

squarely the interaction of 42 U.S.C. § 233(o) and the FTCA. 

The District Court stated that Knowles v. United States, 29 F.3d 

1261 (8th Cir. 1994), stands for the proposition that the United 

States “stands in the shoes of both health institutions and 

physicians” in cases such as this one. Lomando, 2011 WL 

 We turn now to the question of what 
20

defenses the United States may invoke in that position. 

(b) The Defenses of the United States under the FTCA

In 1988, Congress clarified the terms of the United 

States’ waiver of sovereign immunity under the FTCA through 

the Federal Employees Liability Reform and Tort Compensation 

 

1042900, at *5 n.6 (citing Knowles, 29 F.3d at 1265 (“In this 

case, the United States is standing in the shoes of a hospital, a 

doctor, two nurses, and the [Medical Service Specialists].”)). 

We think, however, that Knowles is of limited precedential 

value here as it did not deal with private physicians who were 

“deemed” federal employees under 42 U.S.C. § 233(o), but 

rather involved a suit against a military base hospital and its 

employees. See 29 F.3d at 1262-63. Though there is a dearth 

of guidance on the issue of how to characterize a similarlyplaced private employer of a volunteer physician deemed an 

employee of the PHS under 42 U.S.C. § 233(o), it seems that 

equating the United States to a free clinic, rather than a hospital 

or practice group that employs the physicians for compensation, 

is the only way to ensure that the United States’ liability under 

the FTCA is the same as that of a “private person” in similar 

circumstances. If the United States is treated as a paying 

employer, the entire statutory predicate of this case, that the 

physicians were deemed employees precisely because they were 

volunteers at a free clinic, must be ignored, and, further, the 

United States’ liability would be expanded beyond that of a 

similarly-placed entity, simply by virtue of application of the 

FTCA. 
21

Act of 1988 (“Westfall Act”), Pub. L. No. 100-694, 102 Stat. 

4563 (codified as amended at scattered portions of the United 

States Code). The Westfall Act provided for absolute immunity 

to federal employees in the wake of Westfall v. Erwin, 484 U.S. 

292, 108 S.Ct. 580 (1988), by making suit against the United 

States under the FTCA the exclusive remedy for negligent or 

wrongful acts by federal employees committed within the scope 

of employment.10

With respect to any claim under [the FTCA], 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, as 

well as any other defenses to which the United 

States is entitled. 

 As significant to this case, the Westfall Act 

also added the following provision to the FTCA: 

28 U.S.C. § 2674. The text of section 2674 is straightforward, 

and its import clear. See United States v. Gregg, 226 F.3d 253, 

257 (3d Cir. 2000) (“If the language of the statute expresses 

Congress’s intent with sufficient precision, the inquiry ends 

 10In Westfall, the Court held that government employees were 

absolutely immune only from suits based on acts that were both 

within the scope of employment and discretionary in nature. 

484 U.S. at 300, 108 S.Ct. at 585. The Westfall Act eliminated 

the requirement that for the employee to have immunity the 

allegedly wrongful acts must have involved the exercise of 

discretion. 
22

there and the statute is enforced according to its terms.”). The 

United States as the employer may assert any defense rooted in 

judicial or legislative immunity which would have been 

available to its employee had he not been a deemed employee of 

the PHS and, instead, had been a defendant in the action at hand. 

In this case, section 2674 thus allows the United States to avail 

itself of any judicially- or legislatively-based immunity to which 

the individual physicians — its employees for purposes of the 

FTCA — would have been entitled if they were the defendants. 

This provision for immunity is superimposed on Congress’s 

intent in enacting the FTCA to position the United States for 

liability purposes in the position of a private employer.

It is important to note that section 2674 does not state 

exhaustively those defenses to which the United States is 

entitled; rather, it reserves explicitly the United States’ right to 

assert “any other defenses to which [it] is entitled.” The “other 

defenses” to which the United States is entitled include not only 

those defenses the United States may invoke independently, but 

also any defenses available to a similarly-placed private 

employer answering for the alleged torts of its employee. In this 

vein, Congress clarified in the report accompanying the Westfall 

Act that “the specific designation of these immunities does not 

imply that traditional common law defenses are not available. . . 

. [O]rdinary tort defenses, such as contributory negligence, 

assumption of risk, estoppels, waiver and res judicata, as 

applicable, continue to be available to the United States.” H.R. 

Rep. No. 100-700, at 4 (1988), reprinted in 1988 U.S.C.C.A.N. 

5945, 5948; see also id., at 7, 1988 U.S.C.C.A.N. at 5952 (28 

U.S.C. § 2674 “would authorize the United States to utilize all 

of the defenses to which it is independently entitled.”). 
23

Defenses available to a similarly-placed employer may be rooted 

in the common law, or they may be created statutorily, as in the 

case of the immunity conferred on charitable nonprofit entities 

and their volunteers under the NJCIA. Of course, the actual 

availability, vel non, of these defenses generally will depend on 

the law of the state in which the allegedly wrongful act occurred 

because the applicable state law defines the scope of the United 

States’ liability under the FTCA. See, e.g., Rodriquez v. United 

States, 823 F.2d 735, 741-44, 745 (3d Cir. 1987) (New Jersey 

law on comparative negligence established extent to which

recovery by plaintiffs against United States could be limited in 

FTCA case). 

Having determined the scope of the defenses available to 

the United States in an action under the FTCA, we decide now 

whether the NJCIA provides an immunity defense in this case. 

The NJCIA, N.J. Stat. Ann. § 2A:53A-7, confers immunity on 

nonprofit entities organized for a charitable purpose as well as 

on the volunteers of those entities. The act reads, in pertinent 

part: 

No nonprofit corporation, society or association 

organized exclusively for . . . charitable . . . 

purposes or its . . . volunteers shall . . . be liable to 

respond in damages to any person who shall 

suffer damage from the negligence of any agent 

or servant of such corporation . . . where such 

person is a beneficiary, to whatever degree, of the 

works of such nonprofit corporation . . . .

N.J. Stat. § 2A:53A-7(a). A further provision of the NJCIA 
24

provides similarly that “no person who provides volunteer 

services or assistance for any nonprofit corporation . . . shall be 

liable in any action for damages as a result of his acts of 

commission or omission arising out of and in the course of his 

rendering the volunteer service or assistance.” N.J. Stat. § 

2A:53A-7.1(b).11

Lomando concedes that if the volunteer physicians “were 

not deemed federal employees and if they were named 

defendants in a state court action [for the injuries involved in 

this case] they would be immune from liability under [the 

NJCIA].” Appellant’s br. at 13.

 

12

 11Although Parker Health is a free clinic, there is no requirement 

in the NJCIA that an entity must be free to be organized for a 

charitable purpose.

 Nevertheless, Lomando 

contends that “once [the volunteer physicians] are deemed 

federal employees, they should no longer be viewed as 

volunteers.” Id. at 12. Lomando bases this argument on the 

theory that “the definition of an employee is directly contrary to 

that of a volunteer,” with the former expecting some form of 

compensation and the latter rendering his or her services without 

such an expectation. Id. Lomando asserts, as well, that a 

decision applying the statutory immunity derived from the 

12Because Lomando does not dispute that all aspects of the 

NJCIA would have been satisfied here in the absence of the 

deemed employee designation, we do not review the District 

Court’s conclusion that the requirements of the NJCIA were 

satisfied. Consequently, we treat Parker Health and its 

volunteers as being immune from suit under New Jersey law. 
25

NJCIA in this case would contravene the Supremacy Clause of 

the United States Constitution, U.S. Const. art. VI cl. 2, because 

the NJCIA provides an immunity defense that is inconsistent 

with the remedial scheme of recovery in 42 U.S.C. § 233 and the 

FTCA. Id. at 16. We find both of these contentions 

unpersuasive. 

Lomando fundamentally misapplies the effect of the 

physicians’ “deemed” employee designation. Under 42 U.S.C. § 

233(o), a volunteer physician is “deemed to be an employee of 

the Public Health Service” but only “[f]or purposes of [42

U.S.C. § 233].” Section 233 does not provide for remuneration 

for employees of the PHS; rather, that section addresses only 

“[c]ivil actions or proceedings against commissioned officers or 

employees” of the PHS, and provides that an action under the 

FTCA is the exclusive basis for such suits. See 42 U.S.C. § 

233(a). Accordingly, persons “deemed” to be employees of the 

PHS under 42 U.S.C. § 233(o) are not federal employees 

receiving compensation for their work by the federal 

government to the end that they are no longer rendering their 

services as “volunteers” at a free clinic. To the contrary, the 

employee designation is a legal construct effective only for the 

purposes of section 233. In addressing the status of health care 

practitioners at clinics receiving section 254b funding who 

similarly are deemed PHS employees, we have noted that 

“[h]ealth care workers at private clinics, even ones receiving 

some federal aid, are not federal employees in the usual sense. 

After all, they do not perform a traditional government function 

or work in a government building, and they are not on the 

federal payroll.” Santos, 559 F.3d at 200 (quoting Santos ex rel. 

Beato v. United States, 523 F. Supp. 2d 435, 442 (M.D. Pa. 
26

2007)) (internal quotation marks omitted).13

Lomando’s contention that the Supremacy Clause 

abrogates the NJCIA in the context of this case likewise fails. 

The Supremacy Clause invalidates state law that “interferes with 

or is contrary to federal law.” Free v. Bland, 369 U.S. 663, 666, 

82 S.Ct. 1089, 1092 (1962) (citing Gibbons v. Ogden, 22 U.S. (9 

Wheat.) 1, 210, 6 L.Ed. 23 (1824)). Federal law can supersede 

state law in three ways: (1) express preemption, (2) field 

preemption, and (3) conflict preemption. Farina v. Nokia Inc., 

625 F.3d 97, 115 (3d Cir. 2010) (citing Hillsborough Cnty. v. 

Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 

2375 (1985)). Lomando bases her Supremacy Clause argument 

on conflict preemption, which “nullifies state law inasmuch as it 

conflicts with federal law, either where compliance with both 

laws is impossible or where state law erects an ‘obstacle to the 

accomplishment and execution of the full purposes and 

objectives of Congress.’” Farina, 625 F.3d at 115 (quoting 

Hillsborough Cnty., 471 U.S. at 713, 105 S.Ct. at 2375). 

Lomando urges that under 42 U.S.C. § 233(a) Congress 

intended to provide a means of financial recovery for tort 

victims injured by volunteer physicians and “[r]ecoveries that 

 13This is, of course, to say nothing of the fact that Lomando’s 

position on this point, if accepted, would render null the entirety 

of 42 U.S.C. § 233(o) dealing with volunteers at free clinics. 

Under 42 U.S.C. § 233(o)(2)(D), an individual must not receive 

recompense, i.e., he or she must render “[v]olunteer services,” to 

be deemed an employee of the PHS. In Lomando’s view, 

however, once deemed an “employee” by virtue of such 

volunteerism, the individual is no longer a “volunteer.” 
27

are allowed under [s]ection 233(a) should not be immunized by 

state law,” because that immunization leaves victims without a 

remedy. Appellant’s br. at 17. 

It is true that Congress has waived the sovereign 

immunity of the United States for tort actions against volunteer 

physicians “deemed” federal employees under 42 U.S.C. § 

233(o), and thereby has provided that a claim against the United 

States under the FTCA is an injured party’s exclusive remedy in 

such circumstances. However, 28 U.S.C. § 2674, which permits 

the United States to invoke the defense provided by the NJCIA, 

circumscribes that waiver. See United States v. Jicarilla Apache 

Nation, __ U.S. __, __, 131 S.Ct. 2313, 2323 (2011) (“The 

Government consents to be liable to private parties ‘and may 

yield this consent upon such terms and under such restrictions as 

it may think just.’” (quoting Murray’s Lessee v. Hoboken Land 

& Improvement Co., 59 U.S. 272, 283 (1856)). Section 2674 

clearly expresses Congress’ objectives in this regard, and that 

intent is made all the more forceful by the legislative history 

surrounding the enactment of 42 U.S.C. § 233(o). In addressing 

subsection 233(o), Congress stated: 

The Committee is aware that each of the 

50 states have passed laws to limit the liability of 

volunteers in a variety of circumstances. This 

provision does not preempt those laws beyond the 

preemption provided in the Federal Tort Claims 

Act. Instead, the United States shall be liable in 

the same manner and to the same extent as a 

private individual in the same circumstances 

under State law.
28

H.R. Rep. No. 104-736, at 279, 1996 U.S.C.C.A.N. at 2092 

(emphasis added).

Application of the NJCIA coupled with the exclusive 

force of the FTCA preclude Lomando from making a recovery 

from the United States predicated on the alleged malpractice of 

the Parker Health volunteer physicians. Contrary to Lomando’s 

contentions, however, this outcome is not at all inconsistent with 

Congress’ objectives. See H.R. Rep. No. 100-700, at 6, 1988 

U.S.C.C.A.N. at 5950 (“The ‘exclusive remedy’ provision of 

[the FTCA] is intended to substitute the United States as the 

solely permissible defendant . . . . Therefore, suits against 

Federal employees are precluded even where the United States 

has a defense which prevents an actual recovery.”) (emphasis 

added); see also United States v. Smith, 499 U.S. 160, 166, 111 

S.Ct. 1180, 1185 (1991) (“Congress recognized that the required 

substitution of the United States as the defendant in tort suits 

filed against Government employees would sometimes foreclose 

a tort plaintiff’s recovery altogether.”). Accordingly, in 

upholding the District Court decision applying the NJCIA to bar 

this action against the United States, we are not making a ruling 

in any way contrary to the terms or intent of 42 U.S.C. § 233(o) 

or the FTCA. Therefore, the Supremacy Clause does not bar the 

result we reach in this case. 

In summary, we hold that the District Court did not err in 

holding that the United States was immune from this suit. The 

United States is entitled to the protection of the immunity the 

NJCIA provides because a similarly-placed private employer 
29

would be entitled to that defense and the United States’ deemed 

employees in this case, the individual physicians, would be 

entitled to that defense as well.14

(2) Whether the District Court erred in deciding that the 

treatment provided to Laura by Drs. Reynolds and 

Talbert constituted emergency medicine such that N.J. 

Stat. Ann. § 2A:53A-41 applies? If the Court did not so 

err, did one of Lomando’s experts, Dr. Fialk, satisfy N.J. 

Stat. Ann. § 2A:53A-41?

To state a prima facie case of medical malpractice in 

New Jersey, ordinarily “a plaintiff must present expert testimony 

establishing (1) the applicable standard of care; (2) a deviation 

from that standard of care; and (3) that the deviation proximately

caused the injury.” Gardner v. Pawliw, 696 A.2d 599, 608 (N.J. 

1997) (citations omitted). As part of an effort at comprehensive 

tort reform and to counter a severe increase in medical 

malpractice liability insurance premiums, in 2004 the New 

Jersey Legislature enacted the New Jersey Medical Care Access 

and Responsibility and Patients First Act (“Access and 

Responsibility Act”), N.J. Stat. Ann. §§ 2A:53A-37 to -42 (West 

2011). Among other things, the Access and Responsibility Act 

“provides more detailed standards for a testifying expert . . . , 

generally requiring the challenging expert to be equivalentlyqualified to the defendant.” Ryan v. Renny, 999 A.2d 427, 436 

 14Inasmuch as we conclude that the United States is immune 

from suit under the NJCIA, we need not determine whether the 

VPA also may have provided it with an immunity defense. 
30

(N.J. 2010).15

The legislature set forth these standards in N.J. Stat. Ann. 

§ 2A:53A-41, which provides, in relevant part: 

 

In an action alleging medical malpractice, 

a person shall not give expert testimony . . . on the 

appropriate standard of practice or care unless the 

person is licensed as a physician or other health 

care professional in the United States and meets 

the following criteria:

(a) If the party against whom or on 

whose behalf the testimony is offered is a 

specialist or subspecialist recognized by 

the American Board of Medical Specialties 

[‘ABMS’] or the American Osteopathic 

Association [‘AOA’] and the care or 

treatment at issue involves that specialty or 

subspecialty recognized by the [ABMS] or 

[AOA], the person providing the testimony 

shall have specialized at the time of the 

occurrence that is the basis for the action 

in the same specialty or subspecialty, 

recognized by the [ABMS] or the [AOA], 

 15These standards apply also to an affidavit of merit supporting a 

malpractice claim that a New Jersey statute requires for the 

initiation of a malpractice action, N.J. Stat. Ann. § 2A:53A-27 

(West 2011), but compliance with that statute is not raised as an 

issue in this case. 
31

as the party against whom or on whose 

behalf the testimony is offered, and if the 

person against whom or on whose behalf 

the testimony is being offered is board 

certified and the care or treatment at issue 

involves that board specialty or 

subspecialty recognized by the [ABMS] or 

the [AOA], the expert witness shall be:

(1) a physician credentialed by a 

hospital to treat patients for the 

medical condition, or to perform 

the procedure, that is the basis for 

the claim or action; or 

(2) a specialist or subspecialist 

recognized by the [ABMS] or the 

[AOA] who is board certified in the 

same specialty or subspecialty 

recognized by the [ABMS] or the 

[AOA], and during the year 

immediately preceding the date of 

the occurrence that is the basis for 

the claim or action, shall have 

devoted a majority of his 

professional time to either: 

(a) the active clinical 

practice of the same health 

care profession in which the 

defendant is licensed, and if 
32

the defendant is a specialist 

or subspecialist recognized 

by the [ABMS] or the 

[AOA], the active clinical 

practice of that subspecialty 

recognized by the [ABMS] 

or the [AOA]; or

(b) [the instruction of 

students in an accredited 

medical school, accredited 

health professional school, 

accredited residency 

program or research 

program] in the same health 

care profession in which the 

defendant is licensed, and, if 

that party is a specialist or 

subspecialist recognized by 

the [ABMS] or the [AOA] 

[one of the aforementioned 

programs] in the same 

specialty or subspecialty 

recognized by the [ABMS] 

or the [AOA]; or

(c) both.

N.J. Stat. Ann. § 2A:53A-41(b) also governs the scenario in 

which the defendant health-care provider is a “general 

practitioner.” Thus, “[t]he statute sets forth three distinct 
33

categories embodying this kind-for-kind rule: (1) those who are 

specialists in a field recognized by the [ABMS or AOA] but 

who are not board certified in that specialty; (2) those who are 

specialists in a field recognized by the ABMS [or AOA] and 

who are board certified in that specialty; and (3) those who are 

‘general practitioners.’” Buck v. Henry, 25 A.3d 240, 247 (N.J. 

2011). 

Drs. Reynolds and Talbert are board-certified specialists 

in emergency medicine, a specialty that the ABMS and the AOA 

recognize.16 Lomando submitted statements by two experts, 

Drs. Fialk and Hayes, neither of whom is a specialist in the field 

of emergency medicine, in the District Court. Lomando 

contended, however, that N.J. Stat. Ann. § 2A:53A-41 did not 

apply to her claims against Drs. Reynolds and Talbert because 

they provided care that did not “involve” their specialty of 

emergency medicine. The Court rejected this argument, finding 

that they rendered care on September 5, 15, and 20 that 

constituted the practice of emergency medicine, as the ABMS 

and American Board of Emergency Medicine (“ABEM”) define 

that field.17

 16Dr. Reynolds is a doctor of osteopathic medicine; thus, the 

AOA certified her in emergency medicine. 

 Lomando contends that the Court erred in making 

17As noted, Laura visited the Riverview Medical Center’s 

Emergency Room Department on September 3, 5, 15, and 20, 

2006. Ms. Biedenbach evaluated Laura on September 3, see

appellant’s br. at 5, and because the District Court refused to 

consider the treatment Ms. Biedenbach provided, the Court did 

not include the events of September 3 in its discussion of N.J. 
34

this finding, and argues that the physicians’ treatment of Laura 

on September 5 and 15 “involved [the] general skill and 

knowledge of a physician and did not require the specialized 

training of an emergency department physician.” Appellant’s 

br. at 9.18

Lomando now raises an additional argument that she did 

not present squarely to the District Court. Lomando contends 

that because Dr. Fialk “is board certified in oncology and has 

hospital appointments to treat patients with cancer” and because 

“the basis” for Lomando’s claim is the “failure to diagnose 

lymphoma,” Dr. Fialk’s qualifications satisfy N.J. Stat. Ann. § 

2A:53A-41(a)(1). Appellant’s br. at 18-19. We address these 

arguments in turn.

 

19

 

Stat. Ann. § 2A:53A-41.

18Lomando seemingly has abandoned her contention that the 

care rendered on September 20 did not constitute emergency 

medicine. See appellant’s br. at 9, 23. 

19“‘Generally, failure to raise an issue in the District Court 

results in its waiver on appeal.’” Webb v. City of Philadelphia, 

562 F.3d 256, 263 (3d Cir. 2009) (quoting Huber v. Taylor, 469 

F.3d 67, 74 (3d Cir. 2006)). Nonetheless, the waiver rule “is 

one of discretion rather than jurisdiction,” and “it may be 

relaxed whenever the public interest . . . so warrants.” Barefoot 

Architect, Inc. v. Bunge, 632 F.3d 822, 834-35 (3d Cir. 2011) 

(internal quotation marks and citations omitted); see also Webb, 

562 F.3d at 263. When considering whether to address an issue 
35

(a) The Care Provided by Drs. Reynolds and Talbert 

Involved Emergency Medicine.

The ABMS defines the specialty of emergency medicine 

as:

the immediate decision making and action 

necessary to prevent death or any further 

 

not previously raised, a court considers whether the issue is “a 

pure question of law . . . where refusal to reach the issue would 

result in a miscarriage of justice or where the issue’s resolution 

is of public importance.” Huber, 469 F.3d at 74-75. In 

considering a waiver claim, a court takes into account also the 

dual purposes of the doctrine: “ensuring that the necessary 

evidentiary development occurs in the trial court, and preventing 

surprise to the parties when a case is decided on some basis on 

which they have not presented argument.” Barefoot, 632 F.3d at 

835 (citing Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 

719, 721 (1941)); see also Huber, 469 F.3d at 75. 

It would not serve the purposes of the waiver rule to 

apply it in this case. Evidentiary development is largely 

irrelevant to the question of law at issue here, and appellees 

were on notice from the inception of this case that the 

application of N.J. Stat. Ann. § 2A:53A-41 was at issue, even if 

Lomando did not invoke the specific paragraph we now 

consider. In this vein, appellees explicitly argued in the District 

Court that Lomando’s experts did not satisfy N.J. Stat. Ann. § 

2A:53A-41(a)(1). See app. at 300. 
36

disability in both the pre-hospital setting by 

directing emergency medical technicians and in 

the emergency department. This special[ty 

involves] immediate recognition, evaluation, care, 

stabilization and disposition of a generally 

diversified population of adult and pediatric 

patients in response to acute illness and injury. 

Lomando, 2011 WL 1042900, at *12; see also Buck, 25 A.3d at 

249 (referencing the ABMS definition of “emergency 

medicine”). The ABEM describes the practice of emergency 

medicine as “begin[ning] with the recognition of patterns in the 

patient’s presentation that points to a specific diagnosis or 

diagnoses. Pattern recognition is both the hallmark and 

cornerstone of the clinical practice of Emergency Medicine, 

guiding the diagnostic tests and therapeutic interventions during 

the entire patient encounter.” Lomando, 2011 WL 1042900, at 

*12 (emphasis in original deleted).20

On September 5, Laura arrived at Riverview Medical 

 Bearing in mind these 

definitions of emergency medicine, we agree with the District 

Court that Drs. Reynolds and Talbert provided Laura with care 

involving the practice of emergency medicine. 

 20The ABEM is “one of 24 medical specialty certification boards 

recognized by the [ABMS]” and is the entity actually 

responsible for certifying physicians in emergency medicine. 

http://www.abem.org/PUBLIC/portal/alias__Rainbow/lang__en

-US/tabID__3333/DesktopDefault.aspx. Because we are not 

aware of an AOA definition of emergency medicine, we 

reference only the ABMS and ABEM definition. 
37

Center’s Emergency Department complaining of the acute 

symptoms of chest pain and tightness, nausea, diarrhea, and 

shortness of breath. In response, Dr. Reynolds examined Laura, 

ordered that she be given medication intravenously for her chest 

tightness, and instructed her to stop taking certain medication, 

the consumption of which coincided with the advent of Laura’s 

chest tightness, nausea, and diarrhea. During the examination, 

Dr. Reynolds became aware that Laura’s left lymph node was 

swollen. Once Laura’s nausea and chest pain improved, she was 

discharged from the hospital with a working diagnosis of 

reaction to medication, muscle strain, and a swollen salivary 

duct. In line with the ABMS definition of emergency medicine, 

Laura’s symptoms on this visit were largely acute, and Dr. 

Reynolds engaged in the task of “evaluation” and “stabilization” 

of Laura in response to those symptoms. 

On September 15, Laura presented to Riverview’s 

Emergency Department with a history of Epstein-Barr 

Syndrome, a fever, and showing signs of dehydration. Laura’s 

incoming patient report notified Riverview that she was 

suspicious for meningitis, had neck pain, and an enlarged lymph 

node on the left side of her neck. Upon examination, Dr. 

Talbert observed that Laura had left anterior adenopathy. Dr. 

Talbert ordered that fluids and medication be given to Laura to 

treat her dehydration and fever, and ordered that she be given a 

mononucleosis test. Once Laura’s fever decreased and she was 

in stable condition, she was discharged from the hospital. 

Again, consistently with the ABMS definition of emergency 

medicine, Dr. Talbert engaged in the “immediate decision 

making and action necessary” to care for and ultimately 

“stabiliz[e]” Laura. Further, based on Laura’s pattern of 
38

symptoms at that visit, Dr. Talbert ordered the diagnostic test for 

mononucleosis. 

Though we do not hold that treatment provided in an 

emergency room necessarily involves the practice of emergency 

medicine, the care that Drs. Reynolds and Talbert provided was 

emergency medicine and falls within the practice of emergency 

care as the applicable certifying bodies define that field. 

Accordingly, the District Court correctly concluded that N.J. 

Stat. Ann. § 2A:53A-41(a) applied. 

(b) Dr. Fialk’s qualifications do not satisfy N.J. Stat. 

Ann. § 2A:53A-41(a)(1).

We turn now to Lomando’s contention, that even if N.J. 

Stat. Ann. § 2A:53A-41(a) applies, Dr. Fialk’s qualifications 

meet the requirements of N.J. Stat. Ann. § 2A:53A-41(a)(1). As 

stated, Drs. Reynolds and Talbert are board-certified specialists 

in emergency medicine; thus, Lomando was required to provide 

testimony prepared by experts who met the requirements 

imposed on experts who testify against board-certified 

specialists. There is a question, however, as to what those 

requirements may be. In Lomando’s view, an expert offering 

testimony against a board-certified specialist need not share that 

specialty, but rather the expert only must satisfy the hospital 

appointment mandate of N.J. Stat. Ann. § 2A:53A-41(a)(1) or 

the board certification plus clinical or instructional experience 

requirements of N.J. Stat. Ann. § 2A:53A-41(a)(2). In this 

regard, Lomando contends that because Dr. Fialk has “hospital 

appointments to treat patients with cancer,” appellant’s br. at 18, 

his qualifications satisfy the mandates of N.J. Stat. Ann. § 
39

2A:53A-41(a)(1). 

The Supreme Court of New Jersey has observed that N.J. 

Stat. Ann. § 2A:53A-41 is “far from a model of clarity.” Buck, 

25 A.3d at 247. In Ryan, however, that court had provided its 

interpretation of the statute, describing it thusly:

[W]here the defendant is a specialist or 

subspecialist, the person providing the testimony 

against him ‘shall have specialized at the time of 

the occurrence that is the basis for the action in 

the same specialty or subspecialty[.]’ N.J. Stat. 

Ann. § 2A:53A-41(a). Further, where the 

defendant is board certified, the witness against 

him must also be board certified in the same 

specialty or subspecialty, [Here, the Court 

inserted the following footnote: ‘Alternatively, 

the witness shall be “a physician credentialed by a 

hospital” to treat the condition or perform the 

procedure that is the basis of the claim. N.J. Stat. 

Ann. § 2A:53A-41(a)(1).’], and ‘during the year 

immediately preceding the date of the occurrence 

that is the basis of the claim or action, shall have 

devoted a majority of his professional time to’ 

active clinical practice or teaching of the specialty 

or subspecialty. N.J. Stat. Ann. § 2A:53A41(a)(2). 

999 A.2d at 440 (original emphasis omitted and current 

emphasis added); see also Buck, 25 A.3d at 247 (labeling the 

requirements imposed by N.J. Stat. Ann. § 2A:53A-41(a)(1) and 
40

-41(a)(2) as “additional qualifications” an expert witness must 

meet beyond those delineated in N.J. Stat. Ann. § 2A:53A41(a)); New Jersey State Bar Ass’n v. State, 902 A.2d 944, 952-

53 (N.J. Super. Ct. App. Div. 2006) (adopting the same 

formulation for N.J. Stat. Ann. § 2A:53A-41). Thus, the 

Supreme Court of New Jersey has construed N.J. Stat. Ann. § 

2A:53A-41(a) to require that an expert offering testimony 

against a board-certified specialist share that specialty and meet 

the requirements of either N.J. Stat. Ann. § 2A:53A-41(a)(1) or -

41(a)(2). In this way, the court made clear that the hospital 

credential provision of N.J. Stat. Ann. § 2A:53A-41(a)(1) is an 

alternative to the board certification plus teaching or clinical 

practice requirements of N.J. Stat. Ann. § 2A:53A-41(a)(2), but 

it is not an alternative to the specialization requirement of N.J. 

Stat. Ann. § 2A:53A-41(a). 

Accordingly, Dr. Fialk may not offer testimony against 

Dr. Reynolds or Dr. Talbert regarding the care provided by those 

physicians to Laura because he is not a specialist in the field of 

emergency medicine. 

(3) Whether the District Court erred in refusing to 

consider the treatment Ms. Biedenbach rendered for 

purposes of Lomando’s claim against Ms. Biedenbach’s 

employer, Emergency Physician Associates? If the Court 

so erred, does N.J. Stat. Ann. § 2A:53A-41 apply to 

testimony concerning Ms. Biedenbach?

(a) Lomando was not required to name Ms. Biedenbach 

as a defendant.
41

The District Court stated that it would “not consider the 

treatment provided by Ms. Biedenbach in connection with” 

Emergency Physician Associates’ summary judgment motion 

solely because Lomando “ha[d] not named [Ms. Biedenbach] as 

a defendant.” Lomando, 2011 WL 1042900, at *10 n.10. 

Lomando contends that the Court’s refusal to consider treatment 

that Ms. Biedenbach provided in support of Lomando’s claim 

against her employer, Emergency Physician Associates, was 

legal error, and we agree. 

New Jersey courts apply the common law principle of 

respondeat superior liability, and thus in that state “an employer 

can be found liable for the negligence of an employee causing 

injuries to third parties, if, at the time of the occurrence, the 

employee was acting within the scope of his or her 

employment.” Carter v. Reynolds, 815 A.2d 460, 463 (N.J. 

2003) (citing Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 461-

62 (N.J. 1993)). New Jersey law, however, does not include a 

requirement that a litigant include the allegedly negligent 

employee as a defendant in an action seeking to impose 

respondeat superior liability on an employer. See Zukowitz v. 

Halperin, 821 A.2d 527, 530 (N.J. Super. Ct. App. Div. 2003) 

(“The judge erred in dismissing plaintiff’s common law claim 

based upon vicarious liability for the negligence of defendant’s 

employees. See, e.g., Printing Mart-Morristown v. Sharp Elecs. 

Corp., [563 A.2d 31, 47-48 (N.J. 1989)]. Whether the 

[employees] were named as defendants is legally irrelevant to 

defendant’s liability for their conduct under the doctrine of 

respondeat superior. See McFadden v. Turner, [388 A.2d 244 

(N.J. Super. Ct. App. Div. 1978)].”); Marion v. Borough of 

Manasquan, 555 A.2d 699, 702 (N.J. Super. Ct. App. Div. 1989) 
42

(“In cases not involving the [Tort Claims Act, N.J. Stat. Ann. § 

59:2-2 (West 2011)]21 in which a plaintiff seeks recovery on the 

theory of respondeat superior, there is no requirement that the 

plaintiff join as a defendant the individual upon whose act or 

failure to act vicarious liability is predicated. Indeed, the 

plaintiff has the option to sue the party vicariously liable for the 

conduct of an agent in one law suit and thereafter, pursue the 

agent in a separate suit. In such cases, the concept of mandatory 

joinder does not apply.” (citing McFadden, 388 A.2d 245-46)); 

Moss v. Jones, 225 A.2d 369, 372 (N.J. Super. Ct. App. Div. 

1966) (“We conclude that a person injured by the negligence of 

an agent or servant may sue the agent or servant and the 

principal or master in one suit, or may proceed against them in 

separate suits . . . .”); see also Great Northern Ins. Co. v. 

Leontarakis, 904 A.2d 846, 853 (N.J. Super. Ct. App. Div. 2006)

(“The rationale of the rule — ‘that plaintiff is entitled to pursue 

all those who are independently liable to him for his harm until 

one full satisfaction is obtained’ — is equally applicable 

whether the liability is actual or vicarious.” (quoting McFadden, 

388 A.2d at 247)).22

 21 The Tort Claims Act deals with claims against public entities 

and employees and is not applicable here.

 Furthermore, “[i]t is well-established that 

22In Cogdell v. Hospital Center at Orange, 560 A.2d 1169, 1178 

(N.J. 1989), the New Jersey Supreme Court adopted a 

mandatory joinder rule requiring that “to the extent possible” 

New Jersey courts “determine an entire controversy in a single 

judicial proceeding[,]” that determination “necessarily 

embrac[ing] not only joinder of single related claims between 

the parties but also joinder of all persons who have a material 
43

[Federal Rule of Civil Procedure] 19 does not require the joinder 

of joint tortfeasors[;] [n]or does it require joinder of principal 

and agent.” Nottingham v. Gen. Am. Commc’ns Corp., 811 

F.2d 873, 880 (5th Cir. 1987) (per curiam) (citations omitted); 

see also Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 

315, 316 (1990) (“It has long been the rule that it is not 

necessary for all joint tortfeasors to be named as defendants in a 

single lawsuit.”).

Accordingly, we hold that the District Court erred when it

excluded from consideration the care that Ms. Biedenbach 

provided in assessing Lomando’s claim against Emergency 

Physician Associates. The Court was not precluded from taking 

into account Ms. Biedenbach’s care in considering Lomando’s 

claim against her employer notwithstanding Ms. Biedenbach’s 

non-party status. 

(b) N.J. Stat. Ann. § 2A:53A-41 does not apply to 

physician assistants.

We now reach the final issue in this appeal, which also 

relates to Ms. Biedenbach: whether N.J. Stat. Ann. § 2A:53A-41 

applies to expert testimony offered to evaluate the care she 

 

interest in the controversy.” That rule proved to be highly 

controversial and has been replaced by a mechanism of 

disclosure whereby “a party to any litigation is obligated to 

reveal the existence of any non-party who should be joined or 

who might have ‘potential liability to any party on the basis of 

the same transactional facts.’” Kent Motor Cars, Inc. v. 

Reynolds and Reynolds, Co., 25 A.3d 1027, 1037 (N.J. 2011). 
44

provided. Lomando contends that N.J. Stat. Ann. § 2A:53A-41 

does not apply to non-physicians, while appellee Emergency 

Physician Associates asserts that the statute encompasses 

physician assistants. Because the question of whether N.J. Stat. 

Ann. § 2A:53A-41 applies to Ms. Biedenbach is a potentially 

dispositive legal question in this case, we will address the 

matter. 

To the best of our knowledge, the New Jersey Supreme 

Court has yet to confront explicitly the question of whether N.J. 

Stat. Ann. § 2A:53A-41 applies only to physicians, or whether 

its scope is broader.23

 23Notably in Buck the New Jersey Supreme Court appeared to 

assume that the statute applied only to physicians. 25 A.3d at 

247 (“The basic principle behind [N.J. Stat. Ann. § 2A:53A-41] 

is that the challenging expert who executes an affidavit of merit 

in a medical malpractice case, generally, should be equivalentlyqualified to the defendant physician.”) (emphasis added) 

(internal quotation marks and citation omitted); id. at 248 

(“Under [N.J. Stat. Ann. § 2A:53A-41(a)], the first inquiry must 

be whether a physician is a specialist or general practitioner. If 

the physician is a specialist, then the second inquiry must be 

whether the treatment that is the basis of the malpractice action 

‘involves’ the physician’s specialty.”) (emphasis added). But 

we cannot regard Buck as conclusive on the point, as the court’s 

use of the word “physician” merely might reflect the identity of 

the parties in that case.

 “In the absence of a controlling decision 

by the [New Jersey] Supreme Court, we must predict how it 

would rule if faced with the issue.” See Spence v. ESAB Grp., 
45

Inc., 623 F.3d 212, 216 (3d Cir. 2010). In making this 

prediction, we look to “‘decisions of state intermediate appellate 

courts, of federal courts interpreting that state’s law, and of 

other state supreme courts that have addressed the issue,’” as 

well as to “‘analogous decisions, considered dicta, scholarly 

works, and any other reliable data tending convincingly to show 

how the highest court in the state would decide the issue at 

hand.’” Id. at 216-17 (quoting Norfolk S. Ry. Co. v. Basell 

USA Inc., 512 F.3d 86, 92 (3d Cir. 2008)). 

Of course, in interpreting a statute, we first examine its 

text as the Supreme Court of New Jersey would do in any case 

of statutory interpretation.24

 24We are not aware of any precedential opinions by the New 

Jersey Superior Court, Appellate Division, on whether N.J. Stat. 

Ann. § 2A:33A-41 applies to a physician assistant. In 

conformity with the practice of this Court, we will not refer to 

the Appellate Division’s not precedential opinions dealing with 

the issue. 

 DiProspero v. Penn, 874 A.2d 

1039, 1049 (N.J. 2005) (“Our analysis . . . begins with the plain 

language of the statute.”) (citing Miah v. Ahmed, 846 A.2d 

1244, 1249 (N.J. 2004)). “If the language is plain and clearly 

reveals the statute’s meaning, the Court’s sole function is to 

enforce the statute according to its terms.” Frugis v. 

Bracligliano, 827 A.2d 1040, 1058 (N.J. 2003). “If the statute 

suggests more than one interpretation, the broader legislative 

scheme, its history, and relevant sponsor statements may also 

inform the Court’s interpretation in light of the statute’s overall 

policy and purpose.” Id. In interpreting a statute, the New 
46

Jersey courts’ “overriding goal must be to determine the 

Legislature’s intent.” Frugis, 827 A.2d at 1058 (quoting 

Cornblatt, P.A. v. Barow, 708 A.2d 401, 407 (N.J. 1998)); see

also DiProspero, 874 A.2d at 1048 (“The Legislature’s intent is 

the paramount goal when interpreting a statute.”). 

N.J. Stat. Ann. § 2A:53A-41(a) applies to Ms. 

Biedenbach only if she is “a specialist or subspecialist 

recognized by the [ABMS] or the [AOA] and the care or 

treatment at issue involves that specialty or subspecialty 

recognized by the [ABMS] or [AOA].” N.J. Stat. Ann. § 

2A:53A-41.25

http://abms.org/who_we_help/physicians/specialties.aspx

 The ABMS is made up of Member Boards, 

including the ABEM, which are responsible for “certify[ing] 

physicians.” 

. 

Similarly, the AOA oversees Specialty Certifying Boards, which 

certify doctors of osteopathic medicine. 

http://www.osteopathic.org/inside-aoa/development/aoa-boardcertification/Pages/default.aspx. Thus, it would seem that N.J. 

Stat. Ann. § 2A:53A-41(a) applies only to persons offering 

testimony against specialized or licensed physicians. In this 

vein, we reject Emergency Physician Associates’ argument that 

N.J. Stat. Ann. § 2A:53A-41(a) applies because Ms. Biedenbach 

practices in emergency rooms and because “Ms. Biedenbach’s 

care and treatment of [Laura] involved the ABMS recognized 

 25Emergency Physician Associates does not contend that Ms. 

Biedenbach qualifies as a board-certified specialist in 

emergency medicine. 
47

specialty of Emergency Medicine.” Appellee’s br. at 22.26

Concededly, N.J. Stat. Ann. §§ 2A:53A-41 includes some 

text in tension with our reading of the statute. Paragraph 

41(a)(2)(a) provides that an expert must be engaged in “the 

active clinical practice of the same health care profession in 

which the defendant is licensed,” and paragraph 41(a)(2)(b) 

provides similarly that the expert must have participated in the 

“instruction of students . . . in the same health care profession in 

which the defendant is licensed.” (emphasis added). This 

language, of course, gives rise to the inference that the statute 

encompasses more than one type of health care profession. 

Nevertheless, these provisions apply only in the circumstance 

that the defendant is board-certified in a specialty that the 

ABMS or AOA recognizes, and as explained above, those 

 It 

may be that Ms. Biedenbach practices emergency care as the 

general public understands that term, and it may be that the care 

she provided to Laura involved that practice; however, it cannot 

be said that Ms. Biedenbach is a specialist in emergency 

medicine as the ABMS or AOA define that field or that the 

treatment she rendered to Laura involved that recognized 

specialty because those entities define and recognize specialties 

applicable only to physicians.

 26Emergency Physician Associates appears to argue as well that 

because the training required to become a physician assistant is 

“almost the same at that obtained by physicians,” appellee’s br. 

at 21, N.J. Stat. Ann. § 2A:53A-41(a) applies. The level of 

training required to become a physician assistant is entirely 

irrelevant to whether those professionals are encompassed by 

N.J. Stat. Ann. § 2A:53A-41(a). 
48

entities recognize specialties only for physicians.27

Considering the text of the statute as a whole, we 

conclude that N.J. Stat. Ann. § 2A:53A-41(a) applies only to 

physicians. We note that this conclusion is in line with the New 

Jersey Legislature’s purpose in enacting the Access and 

Responsibility Act. In New Jersey State Bar Ass’n v. State, 888 

A.2d 526, 535 (N.J. Super. Ct. Ch. Div. 2005), the Superior 

Court extensively recounted the legislative history of the Access 

and Responsibility Act, and described the purpose thusly: “The 

overarching concern that came out of the hearings [on the Act] 

and the problem the bill aimed to solve (as noted in the 

legislative purpose) . . . [was that] ‘as a consequence of the cost 

of medical malpractice insurance, many physicians feel they 

cannot afford to practice medicine, and, therefore the medical 

services needed will not be available to [New Jersey’s] 

citizens.’” (quoting August 2002 Hearing (comments of 

 27The ambiguous drafting of N.J. Stat. Ann. § 2A:53A-41 

renders strict reliance on the text problematic. For example, 

paragraphs 41(a)(2)(a) and 41(a)(2)(b) also include language 

that reads “if the defendant is a specialist or subspecialist 

recognized by the [ABMS] or the [AOA]” the clinical practice 

or pedagogical experience must be in that recognized specialty 

or subspecialty. Again, paragraphs 41(a)(2)(a) and 41(a)(2)(b) 

apply only where the defendant is a board-certified specialist in 

a recognized specialty. A board-certified specialist is, 

obviously, a specialist recognized by the ABMS or AOA. 

Accordingly, the purpose of the “if” language of paragraphs 

41(a)(2)(a) and 41(a)(2)(b) is not clear.
49

Assemblyman Edwards)) (emphasis added). In this regard, the 

legislature sought to remedy the situation that the physicians 

being forced out were often specialists in obstetrics and 

gynecology, emergency medicine, and surgery, and that 

“physicians in other specialties report[ed] high double-digit 

premium increases and fewer companies willing to write 

coverage.” 888 A.2d at 535 (emphasis added) (internal 

quotation marks and citation omitted); id. at 536 (“Of particular 

concern was the number of doctors, particularly 

obstetrician/gynecologists, who discontinued parts of their 

practice or retired altogether due to the inability to afford their 

liability coverage.”) (emphasis added). Accordingly, “[t]he 

goals of the final legislation were to ‘reform the State’s ailing 

medical malpractice insurance system to provide insurance relief 

for doctors and ensure that patients in New Jersey’ will be able 

to get the treatment they seek.” Id. at 536 (quoting Press 

Release from offices of Senators Vitale and Lesniak (Mar. 22, 

2004)).

As a physician assistant, Ms. Biedenbach thus is excluded 

from the criteria for testimony that N.J. Stat. Ann. § 2A:53A41(a) specifies. We express no opinion as to whether the expert 

statements that Lomando submitted are otherwise sufficient for 

the case against Emergency Physician Associates to proceed,

and we remand the matter to the District Court so that it may 

determine the course of the case against that defendant.28

 28Of course we do not express an opinion on whether the District 

Court should decline to exercise supplemental jurisdiction over 

the case against Emergency Physician Associates. Assuming 
50

V. CONCLUSION

For the foregoing reasons, we will affirm the order of 

March 18, 2011, in part, will reverse it in part, and will remand 

the case to the District Court for further proceedings but only 

against Emergency Physician Associates as we are affirming the 

summary judgments in favor of all other appellees. Costs are 

allowed on this appeal in favor of all appellees other than 

Emergency Physician Associates against Lomando and in favor 

of Lomando against Emergency Physician Associates.

 

that it retains the case, the question for the Court will remain 

whether the standards applicable to experts offering testimony 

against a “general practitioner,” N.J. Stat. Ann. § 2A:53A-41(b), 

apply to Ms. Biedenbach. So far as we are aware, the New 

Jersey courts have not addressed this question with respect to a 

physician assistant. We note, however, that N.J. Stat. Ann. § 

2A:53A-41(b) does not reference the ABMS or AOA, and 

provides simply that if the defendant “is a general practitioner,” 

the expert, during the year preceding the date of the alleged 

negligence, must have devoted a majority of his professional 

time to “active clinical practice as a general practitioner” or 

active clinical practice encompassing the condition or procedure 

that is the basis for the claim, or the instruction of students in a 

school, residency, or research program “in the same health care 

profession” as the defendant. We do not offer our opinion on 

this point, which the parties have not addressed in their briefs.