1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

 .

:

JUAN CARLOS RAMADA MORA, : Civil Action No. 11-3321 (ES)

:

Plaintiff, : OPINION

:

v. :

:

UNITED STATES OF AMERICA, :

DEPARTMENT OF HOMELAND :

SECURITY IMMIGRATION AND :

CUSTOMS ENFORCEMENT, ESSEX :

COUNTY, JOSEPH GONZALES, :

CHRISTOPHER HYNICK, CARL :

ULMER, VICTOR MORALES, :

ELENILSON SEGOVIA, JOSEPH :

SCIACCA, GABRIEL HOKE, LEVAN :

MONTELBANO, THEODORE SURICK, :

AND CFG HEALTH SYSTEMS, LLC, :

:

Defendants. :

 :

SALAS, DISTRICT JUDGE

Pending before this Court is Defendant CFG Health Systems, LLC’s (“Defendant” or 

“CFG”) motion to dismiss Plaintiff Juan Carlos Ramada Mora’s (“Plaintiff” or “Mora”) claim 

for medical negligence for failure to comply with New Jersey’s affidavit of merit statute.1 (D.E. 

No. 46, Brief of Defendant CFG Health Systems, LLC, in Support of Motion to Dismiss 

Plaintiff’s Sixth Claim for Failure to Serve an Affidavit of Merit Pursuant to N.J.S.A. 2A:53A-26 

through 29 (“Def. Br.”)). The Court has jurisdiction under 28 U.S.C. § 1331. The Court has 

reviewed the parties’ written submissions, without oral argument, pursuant to Fed. R. Civ. P. 

 1 Plaintiff’s failure to comply with the affidavit of merit statute “shall be deemed a failure to state 

a cause of action.” N.J.S.A. § 2A:53A-29.

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78(b). For the reasons set forth below, the Court DENIES Defendant’s motion to dismiss 

Plaintiff’s negligence claim.

I. Background

Plaintiff is a citizen of Aruba who was deported from the United States following detention 

at the Essex County Correctional Facility (“ECCF”). (D.E. No. 30, Amended Complaint 

(“Compl.”) ¶¶ 18, 21-22). Defendant CFG is the health and medical provider at ECCF. (Id. ¶ 

11; Certification of James R. Varrell, M.D. (“Varrell Cert.”) ¶ 4). Dr. Varrell is a licensed 

physician and the sole member of CFG. (Varrell Cert. ¶¶ 1-2). 

On June 18, 2010, while in custody at ECCF, Plaintiff filed an application for stay of 

deportation with the Department of Homeland Security. (Compl. ¶ 24). Plaintiff stated in his 

application that “a stay of removal was necessary until [he] received proper medical treatment to 

treat the injuries sustained while under “ICE” custody at the [ECCF].” (Id.). Plaintiff’s request 

was subsequently denied and Plaintiff was never given any medical care. (Id.). Plaintiff arrived 

in Aruba on July 6, 2010. (Id. ¶ 25). Plaintiff has remained in Aruba without access to the 

United States since July 2010. (See id. ¶¶ 24-25). 

Plaintiff alleges that he was physically assaulted “on at least three separate occasions” while 

under physical custody and supervision of ECCF, which resulted in “serious injuries throughout 

his entire body.” (Id. ¶ 23). Plaintiff claims he was “denied medical service while in custody at 

[ECCF] despite filling out medical forms requesting such medical service.” (Id.).

Plaintiff’s sixth and sole claim against Defendant CFG is for “negligence due to failure to 

provide medical care.” (Id. ¶¶ 46-49). Plaintiff alleges that he sustained physical and mental 

injuries, which “could have been prevented or cured had Defendants provided proper and timely 

medical care; but for Defendants [sic] failure to do so it is highly believed that such injuries are 

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permanent.” (Id. ¶ 48). Plaintiff names CFG as one of the negligent parties and claims that CFG 

owed him a duty of care. (Id. ¶46). That duty was allegedly breached when CFG failed to 

provide timely medical care. (Id.).

II. Procedural History

Plaintiff filed an Amended Complaint on July 13, 2012, which named CFG as a Defendant. 

(D.E. No. 30, Compl. ¶¶ 11). CFG filed its Answer to Plaintiff’s Amended Complaint on July 

17, 2012. (D.E. No. 31, Answer on Behalf of Defendant CFG Health Systems, LLC, to 

Plaintiff’s Second Amended Complaint (“Ans.”)). CFG filed the instant motion to dismiss on 

January 18, 2013. (D.E. No. 46, Def. Br.). 

III. Standard of Review 

On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), “[c]ourts are required to accept 

all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor 

of the non-moving party.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) 

(internal citations omitted). Courts must “determine whether, under any reasonable reading of 

the complaint, the Plaintiff may be entitled to relief.” Pinker v. Roche Holdings, Ltd., 292 F.3d 

361, 374 n.7 (3d Cir. 2002). However, a complaint must contain sufficient factual matter, 

accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). “Courts are not required to credit bald assertions or legal 

conclusions draped in the guise of factual allegations.” McCargo v. Hall, No. 11-553, 2011 WL 

6725613, *1 (D.N.J. 2011) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 

1429 (3d Cir. 1997)). A pleading that offers “labels and conclusions” or a “formulaic recitation 

of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Twombly, 550 U.S. at 555). 

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Additionally, in evaluating a plaintiff’s claims, generally “a court looks only to the facts 

alleged in the complaint and its attachments without reference to other parts of the record.” 

Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). 

Contradictory factual assertions on the part of defendants must be ignored. Burrell v. DFS 

Servs., LLC, 753 F. Supp. 2d 438, 440 n.1 (D.N.J. 2010). 

Determining whether the allegations in a complaint are “plausible” is “a context-specific task 

that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 

556 U.S. at 679. A complaint satisfies the plausibility standard when the factual pleadings 

“allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This standard requires 

“more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that 

pleads facts “‘merely consistent with a defendant’s liability’ . . . stops short of the line between 

possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

IV. Discussion

Defendant argues that, pursuant to N.J.S.A. § 2A:53A-27, “Plaintiff was required to provide 

Defendant CFG with an affidavit of merit within 120 days of the filing of Defendant CFG’s 

Answer on July 17, 2012, or no later than on or about November 17, 2012.” (Def. Br. 3). To 

date, “Plaintiff has failed to serve the required Affidavit of Merit.” (Id.).

On the other hand, Plaintiff alleges, and CFG does not dispute, that he served CFG with 

numerous medical documents that specify “Plaintiff’s medical injuries, condition, treatment and 

prognosis” beginning in August 2010 and ending in July 2012. (D.E. No. 49, Plaintiff’s Brief in 

Opposition of Defendant’s Affidavit of Merit Motion (“Pl. Opp. Br.”) at 9).

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New Jersey’s affidavit of merit statute, N.J.S.A. 2A:53A-26 to 29 (2010), “impose[s] 

requirements for initiating and maintaining certain professional malpractice actions.” Alan J. 

Cornblatt, P.A. v. Barow, 708 A.2d 401, 403 (N.J. 2001). The statute applies to federal courts 

reviewing New Jersey medical negligence claims. See Chamberlain v. Giampapa, 210 F.3d 154, 

157 (3d Cir. 2000). The affidavit of merit statute provides in relevant part:

In any action for damages for personal injuries, wrongful death or property 

damage resulting from an alleged act of malpractice or negligence by a 

licensed person in his profession or occupation, the plaintiff shall, within 

60 days following the date of filing of the answer to the complaint by the 

defendant, provide each defendant with an affidavit of an appropriate 

licensed person that there exists a reasonable probability that the care, skill 

or knowledge exercised or exhibited in the treatment, practice or work that 

is the subject of the complaint, fell outside acceptable professional or 

occupational standards or treatment practices. The court may grant no more 

than one additional period, not to exceed 60 days, to file the affidavit 

pursuant to this section, upon a finding of good cause.

N.J.S.A. § 2A:53A-27. 

The purpose of “the statute is to require plaintiffs to make a threshold showing that their 

claim is meritorious, in order that meritless lawsuits readily could be identified at an early state 

of the litigation.” Vitale v. Carrier Clinic, Inc., 409 F. App’x 532, 533 (3d Cir. 2010) (quoting 

Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 997 A.2d 982, 985 (N.J. 2010)) (citations 

omitted). “[T]he statute’s goals [are] twofold, intending ‘not only to dispose of meritless 

malpractice claims early in the litigation, but also to allow meritorious claims to move forward 

unhindered.’” Snyder v. Pascack Valley Hosp., 303 F.3d 271, 274 (3d Cir. 2002) (quoting Burns 

v. Balafsky, 766 A.2d 1095, 1099 (N.J. 2001)). Generally, “[f]ailure to comply with the 

[affidavit of merit statute], either strictly or substantially, will result in dismissal with prejudice”

for failure to state a cause of action. Kindig v. Gooberman, 149 F. Supp. 2d 159, 163 (D.N.J. 

2001); see also Cornblatt, 708 A.2d at 415.

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Here, the claim at issue is for damages for mental and physical injuries resulting from an 

alleged act of negligence by CFG. CFG is a licensed physician2 and worked as the health and 

medical provider at the ECCF when Plaintiff was allegedly injured. Accordingly, the affidavit of 

merit statute applies and Plaintiff must comply with its requirements.

a. Strict Compliance

To strictly comply with the affidavit of merit statute, Plaintiff must, within 120 days of the 

Answer being filed,

3 provide Defendant CFG with an affidavit, i.e., “a written or printed 

declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of 

the party making it, taken before a person having authority to administer such oath or 

affirmation.” Cornblatt, 708 A.2d at 410 (quoting Black’s Law Dictionary 58 (6th ed. 1990)). 

The affidavit must be of a licensed physician and address whether there is a reasonable 

probability that CFG’s care or skill fell outside acceptable standards. See id. at 412. 

Plaintiff argues that he timely provided CFG with physician-certified letters and medical 

records, thereby strictly satisfying the affidavit of merit statute. (Pl. Opp. Br. 8-9). Plaintiff’s

letters and medical records merely specify the “medical injuries, condition, treatment, and 

prognosis.” (Id. at 9). They do not include an affidavit from a licensed physician, as the statute 

requires. Because Plaintiff failed to provide an affidavit of merit from a licensed physician 

 2 Under the affidavit of merit statute, a “licensed person” includes any person who is licensed as 

“a physician in the practice of medicine or surgery.” N.J.S.A. § 2A:53A-26(f). James R. 

Varrell, M.D., is a licensed physician and the sole member of CFG. Thus, Plaintiff’s claim 

against CFG is effectively a claim against Dr. Varrell, a licensed person covered by the statute.

3 The statute compels Plaintiff to provide an affidavit of merit within 60 days of the answer being 

filed, but a court may grant Plaintiff an additional 60 days upon a finding of good cause. See

N.J.S.A. § 2A:53A-27. Here, the issue of whether Plaintiff showed good cause for additional 

time beyond the 60-day limitation is immaterial because Plaintiff never sought such additional 

time.

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within 120 days of the Answer being filed,

4 Plaintiff fails to strictly comply with the Affidavit of 

Merit Statute.

b. The Substantial Compliance Doctrine

“[T]he New Jersey Supreme Court has held that the purpose of the affidavit of merit statute 

does not require strict compliance.” Kindig, 149 F. Supp. 2d at 163. “Where there has not been 

strict compliance with the statute, courts” may invoke the substantial compliance doctrine. Id. at 

163-64. When applied, the doctrine allows a plaintiff who substantially complies with the 

requirements of the statute to survive dismissal. Id. To determine whether a plaintiff 

substantially complies with the statute:

courts should apply a five-factor substantial compliance test . . . 

[which] requires that a defaulting party demonstrate the following:

(1) lack of prejudice to the defending party; (2) a series of steps 

taken to comply with the statute involved; (3) a general compliance 

with the purpose of the statute; (4) a reasonable notice of 

petitioner's claim, and (5) a reasonable explanation why there was 

not a strict compliance with the statute.

Id. (citations omitted).

The test “requires a fact-sensitive analysis . . . to determine whether reasonable effectuation 

of the statute’s purpose has occurred.” Id. at 164 (quoting Galik v. Clara Maas Med. Ctr., 771 

A.2d 1141, 1151 (N.J. 2001)) (internal quotations omitted). The court must “assess the facts 

against the clearly defined elements to determine whether technical non-conformity is 

excusable.” Id.

First, Plaintiff demonstrates a lack of prejudice as to Defendant CFG because there has been 

no showing of “loss of evidence or undue additional defense costs . . . [and] . . . no showing of 

 4 Plaintiff filed his Amended Complaint on July 13, 2012 (D.E. No. 30); CFG filed its Answer to 

Plaintiff’s Amended Complaint on July 17, 2012 (D.E. No. 31); CFG moved to dismiss on 

January 18, 2013, (D.E. No. 46). 

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prejudice . . . that would outweigh the strong preference for adjudication on the merits rather 

than final disposition from procedural reasons.” See id. (quoting Mayfield v. Cmty. Medical 

Assocs., 762 A.2d 237, 243 (N.J. Super. Ct. 2000)) (internal quotations omitted). Though CFG 

argues that it has been prejudiced because it has been required to litigate this matter for more 

than a year, (D.E. No. 52, Defendant’s Reply Letter to Pl. Opp. Br. (“Def. Reply”) at 5), merely 

defending “against a potentially meritorious claim” is not legal prejudice. Kindig, 149 F. Supp. 

2d at 164.

Second, Plaintiff demonstrates reasonable notice of his claim against CFG because he served 

CFG with his Complaint and his medical documents in a timely manner. (Pl. Opp. Br. 12). 

Plaintiff, however, does not pass the substantial compliance test because he fails to demonstrate 

both a series of steps taken to comply with the statute and a general compliance with the purpose 

of the statute. The statute demands that Plaintiff show its claim has merit by providing an 

affidavit of a licensed physician to show there “exists a reasonable probability that the care, skill 

or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the 

complaint, fell outside acceptable professional or occupational standards or treatment practices.” 

N.J.S.A. § 2A:53A-27. The statute is “designed as a tort reform measure and requires a plaintiff 

in a malpractice case to make a threshold showing that the claims asserted are meritorious.” 

Galik, 771 A.2d at 1147. 

In Galik, the plaintiff’s attorney provided medical records to a board certified neurosurgeon 

before commencing the suit and received a report in which the neurosurgeon opined “that there 

was a substantial deviation from the standard of medical care given to [the] patient . . . .” 771 

A.2d at 1144. The neurosurgeon provided a supplemental report several months later that set 

forth specific allegations against individual defendants by name. Id. at 1144-46. The Galik court 

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held that the neurosurgeon’s report substantially complied with the purpose of the affidavit of 

merit statute because “they identif[ied] [the defendants] by name and describe[d] their 

malpractice with specificity.” Id. at 1151.

Here, Plaintiff served numerous medical records on CFG that merely “specify Plaintiff’s 

medical injuries, condition, treatment and prognosis.” (Pl. Opp. Br. 9). Plaintiff argues that 

since Plaintiff procured and sent the medical documents to Defendant, Plaintiff demonstrated

reasonable steps to comply with the statute. (Pl. Opp. Br. 11-12; see also D.E. No. 49, Exs. 22-

23, 35, 38-39, 41-44, 46, 48-49, 52, 55). Plaintiff also contends that these records “substantially 

complied with the heartland principle of the statute.” (Pl. Opp. Br. 9). 

The Court disagrees and finds that Plaintiff’s medical documents do not fulfill the reasonable 

effectuation of the statute’s purpose. The statute does not call for a physician’s statement of 

Plaintiff’s medical diagnosis. Rather, it requires an affirmation that specifically addresses

Defendant CFG’s treatment and whether it “fell outside acceptable professional or occupational 

standards or treatment practices.” N.J.S.A. § 2A:53A-27. Notably absent from the documents is 

any statement from a physician about Defendant CFG’s care, skill, knowledge, practice, or work 

that is the subject of the Complaint. The medical documents produced by Plaintiff do not 

mention Defendant CFG’s conduct; in fact, they do not mention CFG at all. The steps taken by 

Plaintiff to procure and produce the documents do not fulfill the statute’s purpose of showing 

that a claim is meritorious against Defendant CFG. 

Thus, Plaintiff’s proffered medical documents fail to comply with the purpose of the statute 

because they neither mention Defendant CFG by name nor describe CFG’s care, skill, 

knowledge, practice, or work with any specificity.

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c. Dismissal with Prejudice and Extraordinary Circumstances

“Failure to comply with the [Affidavit of Merit Statute], either strictly or substantially, will 

result in dismissal with prejudice,” unless extraordinary circumstances justified a failure to 

comply with the procedural requirement, in which case failure to comply will result in dismissal 

without prejudice. Kindig, 149 F. Supp. 2d at 163; see also Tischler v. Watts, 827 A.2d 1036, 

1038 (N.J. 2003). Plaintiff’s failure to comply with the Affidavit of Merit Statute, both strictly 

and substantially, warrants dismissal of his claim. However, the Court will now weigh whether 

extraordinary circumstances entitle Plaintiff to a remedy of dismissal without prejudice. 

“[T]he extraordinary circumstances analysis is fact-specific.” Nuveen Mun. Trust ex rel. 

Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 309 (3d Cir. 

2012). Courts have not defined the full scope of extraordinary circumstances, but have noted 

that extraordinary circumstances must be “exceptional and compelling.” Giampapa, 210 F.3d at 

162. Particularly, “attorney inadvertence is not such a circumstance entitling plaintiff to a 

remedy of dismissal of a complaint without prejudice.” Ferreira v. Rancocas Orthopedic 

Assocs., 836 A.2d 779, 783 (N.J. 2003) (emphasis in original). 

Although courts have not defined the full scope of extraordinary circumstances, they have 

found extraordinary circumstances in cases where a plaintiff’s failure to provide an affidavit of 

merit was beyond his control. See Tischler, 827 A.2d 1036, 1037-38 (finding extraordinary 

circumstances where the plaintiff endured radiation and chemotherapy treatment throughout the 

120-day period); see also Barreiro v. Morais, 723 A.2d 1244, 1249 (N.J. Super. Ct. App. Div. 

1999) (opining that a physician’s indecipherable medical documents would promote the finding 

of an extraordinary circumstance if they had a “substantial bearing on [a physician’s] preparation 

of the affidavit and prevented him from doing so in a timely fashion”). 

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Conversely, courts have declined to find extraordinary circumstances in cases where a 

plaintiff’s failure to provide an affidavit of merit was within his control. See Hartsfield v. 

Fantini, 695 A.2d 259, 264 (N.J. 1997) (finding “an attorney’s failure to supervise staff or heavy 

workload to be insufficient to satisfy the ‘extraordinary circumstances’ requirement”); see also

Ferreira, 836 A.2d at 784 (holding that “counsel’s carelessness in misfiling defendant’s answer 

and failing to calendar [the] matter does not constitute an extraordinary circumstance”); see also

Balthazar v. Atlantic City Med. Ctr., 816 A.2d 1059, 1066 (N.J. Super. Ct. App. Div. 2003) 

(holding that the defendant’s delay in the production of records had no effect on the plaintiff’s 

ability to obtain an affidavit of merit).

Here, Plaintiff points to the fact that he was deported, has not been in the United States 

since filing his Complaint, and is being treated by medical doctors in Aruba, as exceptional and 

compelling circumstances that entitle Plaintiff to dismissal without prejudice. (See Pl. Opp. Br. 

13-14). Although Plaintiff was deported before filing his Complaint and has remained outside of 

the United States throughout this litigation, Plaintiff’s attorney possessed his client’s medical 

records and had the ability to obtain an affidavit of merit from a physician in the United States. 

By Plaintiff’s own admission, he provided Defendant CFG with medical records that specified

his medical injuries, condition, treatment and prognosis. Despite possessing these medical 

records, Plaintiff’s attorney failed to obtain and provide CFG with an affidavit of merit. Because 

Plaintiff’s attorney was able to acquire documents from his client and provide them to a 

physician within the United States for review, notwithstanding the fact that his client was outside 

of the United States, Plaintiff’s deportation does not constitute an extraordinary circumstance 

that entitles Plaintiff to dismissal without prejudice.

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d. Common Knowledge Exception

Notwithstanding the above analysis, Defendant’s motion to dismiss is denied because 

Plaintiff meets the common knowledge exception recognized by the Third Circuit. Natale v. 

Camden Cnty. Corr. Facility, 318 F.3d 575, 580 (3d Cir. 2003) (citing Hubbard v. Reed, 774 

A.2d 495, 499-500 (N.J. 2001)). 5

Compliance with the Affidavit of Merit Statute is excused where “common knowledge 

makes apparent a claim’s merit.” Id. The common knowledge doctrine “applies where ‘jurors’ 

common knowledge as lay persons is sufficient to enable them, using ordinary understanding and 

experience, to determine a defendant’s negligence without the benefit of specialized knowledge 

of experts.’” Hubbard v. Reed, 774 A.2d 495, 499 (N.J. 2001) (quoting Estate of Chin by Chin v. 

St. Barnabas Med. Ctr., 734 A.2d 778, 785 (N.J. 1999)). 

In a common knowledge case, a plaintiff alleging medical malpractice “will not need 

expert testimony at trial to establish” a deviation from the standard of care. Id at 499-500 (ruling

that “the threshold of merit should be readily apparent from a reading of the plaintiff's 

complaint”). Thus, the New Jersey Supreme Court held that “an affidavit of merit is not required 

in common knowledge cases.” Id. at 500. But since the Court must construe the common 

 5 Though the common knowledge exception is not explicitly argued by Plaintiff, the Court notes 

that Plaintiff does indeed cite to Hubbard, the seminal case in New Jersey recognizing the 

common knowledge exception to the affidavit of merit requirement. (Pl. Op. Br. 8, 12). 

Although Defendant attempts to factually distinguish Hubbard, (Def. Reply 4), the Court finds 

such a distinction immaterial in light of Hubbard’s clear ruling that “the doctrine applies where 

jurors' common knowledge as lay persons is sufficient to enable them, using ordinary 

understanding and experience, to determine a defendant's negligence without the benefit of the 

specialized knowledge of experts.” 774 A.2d at 499 (quoting Estate of Chin, 734 A.2d 778 (N.J. 

1999)) (internal quotations omitted). Indeed, an alleged failure to provide medical care by the 

doctor charged with administering such care does not require expert testimony. See Natale, 318 

F.3d at 580. As discussed in Section IV(d) of this Opinion, “no special expertise or expert 

testimony is needed to show, at the outset of a case, that the claim is not frivolous.” Id.

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knowledge exception narrowly, “case history shows that it has only been applied in exceptionally 

obvious cases of medical malpractice.” McBride v. County of Atlantic, No. 10-2773, 2011 WL 

3236212, at *4 (D.N.J. July 28, 2011) (discussing Hubbard, 774 A.2d at 498; Palanque v. 

Lambert-Wooley, 774 A.2d 501, 503-04 (N.J. 2001); Estate of Chin by Chin, 734 A.2d at 780

(N.J. 1999); Bender v. Walgreen Eastern Co., 945 A.2d 120, 122 (N.J. Super. 2008)). 

A physician’s failure to diagnose a plaintiff’s injuries is an obvious case of medical 

malpractice. Bullock v. Ancora Psychiatric Hosp., No. 10-1412, 2011 WL 3651352, at *12 

(D.N.J. Aug. 18, 2011). In Bullock, the plaintiff allegedly fractured his ankle and requested a 

physician to treat the injury. Id. at *1. While the plaintiff failed to submit an affidavit of merit, 

the Court held that a physician’s “failure to observe and diagnose [an] injury” falls within the 

common knowledge exception. Id. at *12. 

Similarly, here, Plaintiff alleges that he “was never treated or given basic medical care for 

his injuries while detained at ECCF even though said injuries were well documented and timely 

reported to the authorities there prior to him being deported.” (Pl. Op. Br. 7). In his Complaint, 

Plaintiff alleges that a “lack of medical care flourished while [he] was detained and defenselessly 

handcuffed at the Essex County Correctional Facility in Newark.” (Compl. ¶ 2). Thus, an

“average layperson could apply his or her general understanding and knowledge to find that the 

defendant in this case . . . breached a duty of care” by failing to tend to Plaintiff’s medical 

injuries. Hubbard, 774 A.2d at 501. Plaintiff will not need to “present expert testimony to

establish [Defendant’s] negligence at trial and, therefore, [is] not required to obtain an expert’s 

affidavit prior to trial to demonstrate that [his] claim has threshold merit.” Id.

Defendant disputes Plaintiff’s claim that the “injuries were well-documented and timely 

reported to the authorities and also claims that “Plaintiff did not seek medical attention at the 

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Essex County Correctional Facility at any time during his detention at that facility.” (Def. Reply

3). Further, Defendant notes that Plaintiff was detained at the “Hudson County Correctional 

Center from approximately June 14 through July 6, 2010” and Defendant did not provide 

medical services at that facility at that time. (Def. Br. 1). 

This Court, however, is to construe all reasonable inferences to the non-moving party—

here, Plaintiff. Rowinski v. Salomon Smith Barney Inc., 398 F.3d 294, 298 (3d Cir. 2005) (citing 

In re Adams Golf, Inc. Secs. Litig., 381 F.3d 267, 273 (3d Cir. 2004)). Moreover, this Court is to 

assume the veracity of the allegations contained in the Complaint when deciding a motion to 

dismiss. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). As such, “any 

contradictory factual assertions on the part of Defendants [will] not [be] credited.” Burrell v. 

DFS Servs., LLC, 753 F. Supp. 2d 438, 440 (D.N.J. 2010).

Thus, taking all the allegations contained in the Complaint as true, and construing the 

common law exception narrowly, this Court finds that a non-expert juror can ascertain whether 

Defendant CFG was negligent in failing “to give basic medical care for [Plaintiff’s] injuries.” 

(Pl. Opp. Br. 7). Thus, Plaintiff’s failure to provide an affidavit of merit is excused by the 

common knowledge exception. 

V. Conclusion

For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss 

Plaintiff’s claim of negligence. Although Plaintiff failed to provide an affidavit of merit 

pursuant to N.J.S.A. § 2A:53A-27, it is well within the purview of the ordinary juror to 

determine whether Defendant’s alleged failure to give basic medical care constitutes 

negligence. 

s/Esther Salas x 

Esther Salas, U.S.D.J.

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