The New Jersey Supreme Court/photo by Carmen Natale
The "common knowledge" exception to the affidavit of merit statute and a manufacturer's duty to warn of asbestos in replacement parts made by another company will be examined in upcoming cases at the state Supreme Court.
In Cowley v. Virtua Health System, granted certification on Jan. 18, the court will consider whether the common knowledge exception to the affidavit of merit statute applies to plaintiffs' claims of medical malpractice under the circumstances presented, thereby relieving plaintiffs of their obligation to serve an affidavit of merit on the defendants.
Plaintiff Linda Cowley was admitted to Virtua Voorhees Hospital for removal of gallstones in 2014 when a physician ordered the insertion of a nasogastric tube, which goes through the nose, down the throat and into the stomach. Two days after it was inserted, Cowley pulled out the tube and refused to have it replaced, the court said, noting that the order did not address reinsertion of the tube if it fell out or was removed.
Cowley claimed the defendants were liable for failing to comply with the order for the neurogastric tube and for "failure to properly treat … diagnose … and monitor Linda…." It also alleged "defendants failed in their duty to plaintiff including failing to properly care for her, follow policies and procedures," and failure to notify the treating doctor that the patient removed the tube and to ask whether it should be re-inserted. The suit apparently did not address whether Cowley's removal of the tube made her partly liable.
The malpractice suit, filed in October 2016, alleged that nurses Robert Gribbon and Helene Curran did not reinsert the tube or call anyone for instructions. Later, Cowley suffered from numerous complications that she claimed resulted from failures by Virtua, Gribbon and Curran to comply with the order.
Cowley filed a medical malpractice suit but did not file an affidavit of merit. The defendants moved to dismiss based on the failure to submit an affidavit.
Case law has applied a common knowledge exception to the AOM requirement in discrete situations where expert testimony is not needed to establish whether the defendants' "care, skill or knowledge … fell outside acceptable professional or occupational standards or treatment practices."
In April 2017, Camden County Superior Court Judge Christine Orlando granted the motion to dismiss, finding that an affidavit of merit was required because the jury would have to determine the proper standard of care for when the nasogastric tube became dislodged.
On appeal, Appellate Division Judges Michael Haas, Garry Rothstadt and Greta Gooden Brown reinstated the case in September 2018, finding the common knowledge exception to the affidavit of merit statute applies.
The appeals court noted that the circumstances of the case constitute an act of omission, rather than an affirmative act. Other courts have applied the common knowledge exception to such cases, the panel said.
The appeals court concluded that the common knowledge exception applied based on a line of cases concerning the failure to continually fulfill a doctor's orders. The appeals court concluded that a layperson, without expert assistance, could determine that plaintiff's claim, based on the nurses' failure to take any action when the tube became dislodged, has merit in light of the fact that a physician ordered that it remain inserted, the appeals court said.
Randi Greenberg of Sachetta & Baldino in Woodbury, representing the plaintiff, and Mary Kay Wysocki of Parker McCay in Mount Laurel, representing defendant Virtua Health, did not return calls about the case.
In Whelan v. Armstrong International, also granted certification on Jan. 18, the justices will consider whether a manufacturer has a duty to warn about the risk of harm from exposure to asbestos in replacement parts that are needed for a product, but are manufactured and distributed by another company.
The case concerns Arthur Whelan, who worked as a residential and commercial plumber and an auto mechanic during his professional career, which extended from 1952 to 1996. He developed a specialty in cleaning boilers. Whelan was diagnosed with mesothelioma in 2008 and has since died.
Several dozen companies are named as defendants in the suit. One group of defendants—Armstrong International Inc., Burnham LLC, Carrier Corp., Cleaver-Brooks Inc., Crown Boiler Co., Ford Motor Co., Johnson Controls Inc., NIBCO Inc., and Oakfabco Inc., filed summary judgment motions, claiming the plaintiff had not demonstrated exposure to friable asbestos on a regular and frequent basis from a product it sold, manufactured, supplied, or distributed. The trial judge found defendants were not liable for asbestos-containing replacement parts they did not manufacture or place into the stream of commerce.
Because plaintiff could not identify an exposure to asbestos from a product actually manufactured or distributed by defendants, the court granted summary judgment to each defendant. But an appeals court reinstated the complaints against those companies. The panel found that a manufacturer's product includes any replacement parts necessary to its function, and therefore defendants' duty to warn extends to any danger created by those replacement parts. The appeals court said that the imposition of such a duty does not offend basic principles of fairness and public policy that must be accorded to all parties.
Among the products at issue are materials used to construct fireboxes on oil-fired boilers made by Cleaver-Brooks that Whelan cleaned a number of times in the 1950s. Whelan testified that he could not identify the manufacturer of the asbestos-laden materials in the boilers.
Another such product is the replacement gaskets he installed on about 20 Armstrong steam traps installed on commercial boilers. The gaskets, which were made with asbestos, were made by another company but Whelan was unable to identify it.
Defendants have not said they were unaware that these component parts would be replaced regularly as part of routine maintenance on their products, but they assert that the duty to warn does not extend to replacement parts they did not manufacture or distribute.
The New Jersey Supreme Court/photo by Carmen Natale