NOT FOR PUBLICATION [Docket No. 68]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

BORIS SHUSTER,

Plaintiff,

v.

DR. ROBERT CABANAS, DR. ABIGAIL 

LOPEZ DE LASALLE,IBE CHIGOZIE, 

P.A., LIEUTENANT KENNETH PERNELL,

and UNITED STATES OF AMERICA,

Defendants.

Civil Action No.

11-1764(RMB/JS)

OPINION

Appearances: 

Charles P. Montgomery

Earp Cohn P.C. 

20 Brace Road, 4th Floor

Cherry Hill, NJ 08034

Attorneys for the Plaintiff

Colette R. Buchanan

Office of the United States Attorney

970 Broad Street, Suite 700

Newark, NJ 07102

Attorneys for Defendants

BUMB, UNITED STATES DISTRICT JUDGE:

I. Introduction

This matter comes before the Court upon a motion by 

Defendant, the United States of America, for summary judgment 

(Docket No. 68). For the reasons set forth below, Defendant’s 

motion will be denied. 

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II. Factual and Procedural Background1

Plaintiff, Boris Shuster, is a former inmate at the Federal 

Correctional Institution at Fort Dix, New Jersey (“FCI”). 

(Def.’s R. 56.1 at ¶ 1). The only remaining claim in this case 

alleges medical malpractice by the Defendant in the treatment of 

a dental problem Plaintiff experienced while imprisoned at FCI. 

(Id. at ¶2). All other Defendants and Plaintiff’s other claims 

were dismissed by this Court on July 19, 2013 [Docket Nos. 52 

and 53]. 

Plaintiff’s medical malpractice claim alleges negligence by 

Bureau of Prison health care providers in the performance of a 

dental procedure performed by Dr. Cabanas on December 10, 2008,

and in the care Plaintiff received following that procedure. 

(Def.’s R. 56.1 at ¶ 3). This claim is brought pursuant to the 

Federal Tort Claims Act, 28 U.S.C. §§ 346(b), 2671 et seq. (Id. 

at 4). 

1 Where there are significant factual disputes between the 

parties, the facts should be construed in favor of the nonmoving party. See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 

2004), cert. denied, 543 U.S. 956 (2004). That said, Plaintiff 

does not dispute the Defendant’s submitted Local Rule 56.1 

statement and the Court relies on that submission as 

appropriate. See Local Civ. R. 56.1 “any material fact not 

disputed shall be deemed undisputed for purposes of the summary 

judgment motion.” To the extent that additional facts were 

required to resolve this motion, this Court has relied in 

Plaintiff’s pleading. 

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Plaintiff alleges that, as a consequence of the procedure, 

he experienced post-operative pain and swelling, but he was not 

seen for a follow-up appointment despite reporting “severe postoperative pain” until hospitalization became necessary on 

December 17, 2008. (First Amended Complaint at ¶¶ 21-22). 

Plaintiff avers that Dr. Cabanas refused to see him despite his 

post-operative pain because “he had to go to a funeral.” (Id.

at ¶ 20). Once hospitalized, the Plaintiff was diagnosed with 

an infection and had two teeth extracted. (Id. at ¶ 23). 

Plaintiff also alleges that he was provided a prescription for 

antibiotics on December 5, 2008 but that prescription was not 

filled until December 16th despite Plaintiff’s complaints of 

pain and swelling. (Id. at 21).2 

In a previous Opinion, Docket No. 52, this Court discussed 

Plaintiff’s opposition to the Defendant’s motion for summary 

judgment as to his medical negligence claim, and found that 

under Federal Rule of Civil Procedure 56(d), Plaintiff had 

properly indicated that he needed additional discovery to 

2 Plaintiff’s First Amended Complaint also contains 

additional allegations of medical negligence – e.g., that 

instruments used for his dental procedure were not sterile, that 

he was not provided pain medication or a dental appliance to 

alleviate pain, and that intravenous antibiotics were improperly 

administered and had a deleterious effect on his stomach lining. 

(FAC at ¶¶ 19, 32, 36-38). From his opposition brief, however, 

Plaintiff appears to have abandoned these allegations and is 

pursuing only those allegations specifically discussed below. 

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properly oppose summary judgment. The Court also noted that 

Plaintiff “will also be required to timely submit an affidavit 

of merit.” (Docket No. 52. At 12 n. 1) (citing Olivares v. 

United States, 447 F. App’x 347, 353 (3d Cir. 2011)(requiring 

affidavit of merit for FTCA medical malpractice claim)). 

The parties later agreed to provide Plaintiff with more 

time to obtain an affidavit of merit. (See Docket No. 63). It 

is undisputed that Plaintiff has not provided the affidavit of 

merit, and this failure forms the basis for Defendant’s instant 

motion for summary judgment. 

III. Applicable Standard

Summary judgment shall be granted if “the movant shows that 

there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). A fact is “material” if it will “affect the 

outcome of the suit under the governing law . . . .” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is 

“genuine” if it could lead a “reasonable jury [to] return a 

verdict for the nonmoving party.” Id. When deciding the 

existence of a genuine dispute of material fact, a court’s role 

is not to weigh the evidence; all reasonable “inferences, 

doubts, and issues of credibility should be resolved against the 

moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 

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n.2 (3d Cir. 1983). However, a mere “scintilla of evidence,” 

without more, will not give rise to a genuine dispute for trial. 

Anderson, 477 U.S. at 252. Further, a court does not have to 

adopt the version of facts asserted by the nonmoving party if 

those facts are “utterly discredited by the record [so] that no 

reasonable jury” could believe them. Scott v. Harris, 550 U.S. 

373, 380 (2007). In the face of such evidence, summary judgment 

is still appropriate “where the record . . . could not lead a 

rational trier of fact to find for the nonmoving party . . . .” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). 

IV. Analysis

As stated above, it is undisputed that Plaintiff has failed 

to provide an affidavit of merit with respect to his medical 

negligence claim. Typically, as pointed out by Defendant, this 

failure could result in a dismissal of Plaintiff’s medical 

malpractice claims. See Olivares, 447 F. App’x at 353 (“In New 

Jersey, allegations of medical malpractice require, with few 

exceptions, the submission of an affidavit of merit as a 

precondition to filing suit. Failure to so file "shall be deemed 

a failure to state a cause of action.") (citing N.J. Stat. Ann. 

§ 2A:53A-27 through 29). 

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There are, however, exceptions to this general rule, as 

noted by the Olivares court. Here, Plaintiff asserts that an 

affidavit of merit is not necessary because Plaintiff’s 

allegations that he was not examined for six days following the 

procedure and that the prescribed post-operative antibiotics 

were not properly administered fall within the “common 

knowledge” exception to the affidavit of merit rule.3 

Per the common knowledge exception, “[w]here . . . common 

knowledge makes apparent a claim’s merit, an expert’s affidavit 

is unnecessary.” Natale v. Camden County Correctional Facility, 

318 F.3d 575, 580 (3d Cir. 2003). “The common knowledge 

exception only applies where jurors common knowledge suffices to 

enable [the jurors], using ordinary understanding and 

experience, to determine a defendant's negligence without the 

benefit of the specialized knowledge of experts.” Fontanez v. 

United States of America et al., No. 11-2573, 2014 U.S. Dist. 

LEXIS 75831, at *10 (D.N.J. May 30, 2014) (internal quotations 

and citations omitted). Plaintiff contends that it is widely 

known that prompt follow-up care is necessary where there are 

3 Based on Plaintiff’s representations in his brief, this 

Court finds that he has abandoned his other allegations, which 

would require the filing of an affidavit of merit, as the common 

knowledge exception is not asserted by Plaintiff to apply to 

said allegations of medical negligence. 

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complaints of post-operative pain and that failure to administer 

antibiotics constitutes an error. 

In reply, the Defendant argues that the common knowledge 

exception should only be applied in “exceptionally obvious cases 

of medical malpractice.” (Doc. No. 71 at 2). Defendant further 

argues that Plaintiff’s allegations “- that Dr. Cabanas failed 

to examine plaintiff for six days following a dental procedure 

and that he failed to ensure that plaintiff was administered the 

prescribed antibiotics – are not analogous to the situations in 

which the courts have applied the common knowledge exception.”

Id. at 2. 

This Court disagrees. In this case, a reasonable jury 

could conclude that Defendant was negligent absent expert 

testimony. Other courts have held that the common knowledge 

exception applies based upon similar allegations. 

See e.g., Jackson v. Fauver, 334 F. Supp. 2d 697, 743 (D.N.J. 

2004)(applying the common knowledge exception where plaintiffs 

complained, inter alia, that they were not provided with 

prescribed medications in a timely fashion); Grimes v. 

Correctional Medical Servs., No. 08-567, 2010 U.S. Dist. LEXIS 

10536, at *11-13 (D.N.J. Feb. 8, 2010)(finding that failure to 

provide plaintiffs with medications prescribed by their doctors 

“falls into the common knowledge exception to the affidavit of 

merit requirement, and summary judgment cannot be granted. . . 

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.”); Hernandez v. Cullison, No. 05-3038, 2006 U.S. Dist. LEXIS 

45505, at *50 n. 9 (D.N.J. June 26, 2006)(finding allegations 

that recommended surgical treatment was improperly delayed 

required no affidavit of merit and allowing plaintiff’s medical 

malpractice claim to proceed). 

Because the threshold merit of Plaintiffs allegations, as 

now specifically limited by Plaintiff to the failure to properly 

administer a prescription and failure to provide a prompt postoperative follow-up, are readily apparent from a reading of the 

Plaintiff’s First Amended Complaint, the common knowledge 

exception applies and Plaintiff’s medical negligence claim may 

proceed.4

V. Conclusion 

For the reasons set forth above, this Court finds that 

Defendant’s motion for summary judgment shall be denied. An 

appropriate Order will issue this date. 

 s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: September 10, 2014

4 Like the Court in Hernandez, 2006 U.S. Dist. LEXIS 45505, 

at * 50 n. 9, this Court notes that “while the common knowledge 

doctrine relieves Plaintiff of his obligation to comply with the 

Affidavit of Merit Statute, it does not relieve him of the 

burden of proving his case at trial.” 

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