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MER-L-001599-22 02/14/2023 9:18:27 AM Pg 1 of 20 Trans ID: LCV2023539671
LEWIS BRISBOIS BISGAARD & SMITH, LLP
Andrew F. Albero, Esq. (Identification No. 016542009)
550 E. Swedesford Road, Suite 270
Wayne, Pennsylvania 19087
T: (215) 977-4100
F: (215) 977-4101
andrew.albero@lewisbrisbois.com
Attorney for Defendants, Capital Health System, Inc. (improperly pled as multiple defendants,
Capital Medical Center – Hopewell and Capital Health Regional Medical Center), Richelle
Kozak, RN, Dana Tinney, RN, Brianna Acacia, RN, Prabhjot Pandher, RN, Shrijana Banjara,
RN, and Inessa Chaykovska, RN
JOHN MAXWELL, Individually and as Attorney in SUPERIOR COURT OF
Fact for NANCY MAXWELL NEW JERSEY –
Plaintiff(s), MERCER COUNTY
v.
LAW DIVISION
CAPITAL HEALTH SYSTEM, INC. d/b/a CAPITAL
HEALTH MEDICAL CENTER – HOPEWELL; DOCKET NO. MER-L-1599-22
CAPITAL HEALTH MEDICAL CENTER –
HOPEWELL; RICHELLE KOZAK, RN; DANA ANSWER TO PLAINTIFFS’
TINNEY, RN; BRIANNA ACACIA, RN; COMPLAINT, AFFIRMATIVE
PREFERRED CARE ARE MERCER, LLC d/b/a AND SEPARATE DEFENSES,
PREFERRED CARE AT MERCER; PREFERRED CROSS-CLAIM FOR
CARE AT MERCER; CAPITAL HEALTH SYSTEM, INDEMNIFICATION, CROSS-
INC. d/b/a CAPITAL HEALTH REGIONAL CLAIM FOR CONTRIBUTION,
MEDICAL CENTER; CAPITAL HEALTH ANSWER TO CROSSCLAIMS,
REGIONAL MEDICAL CENTER; PRABHJOT REQUEST FOR ALLOCATION,
PANDHER, RN; SHRIJANA BANJARA, RN; and REQUEST FOR STATEMENT
INESSA CHAYKOVSKA, RN; MORRIS HALL/ST. OF DAMAGES, DEMAND FOR
LAWRENCE, INC. d/b/a ST. LAWRENCE REHAB AFFIDAVIT OF MERIT,
CENTER; ST. LAWRENCE REHAB CENTER; DEMAND FOR UNIFORM
JANE DOE NURSES 1-50; JANE ROE INTERROGATORIES,
TECHNICIANS, CNA’S AND PARAMEDICAL DEMAND FOR DISCOVERY
EMPLOYEES 1-50; JOHN DOE PHYSICIANS 1-50; AND DOCUMENTS,
ABC CORPORATION and ABC PARTNERSHIP (the RESERVATION OF RIGHTS,
aforesaid names being fictitious and their true names DEMAND FOR JURY TRIAL,
being unknown) AND DESIGNATION OF TRIAL
COUNSEL
Defendants
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Defendants, Capital Health System, Inc. (improperly pled as multiple defendants, Capital
Medical Center – Hopewell and Capital Health Regional Medical Center), Richelle Kozak, RN,
Dana Tinney, RN, Brianna Acacia, RN, Prabhjot Pandher, RN, Shrijana Banjara, RN, and Inessa
Chaykovska, RN (hereinafter referred to as “Answering Defendants”), by and through undersigned
counsel, Lewis Brisbois Bisgaard & Smith, LLP, hereby file this Answer to Plaintiffs’ Complaint
and aver as follows:
ALLEGED PARTIES
1. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
2. Admitted that Plaintiffs filed a purported affidavit of merit of Ms. Charlotte
Sheppard with their Complaint.
3. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it
is a not for profit corporation organized under the laws of the State of New Jersey and that its
principal place of business is located at One Capital Way, Pennington, New Jersey, 08534.
Answering Defendant also admits that it owned and operated a licensed acute care hospital known
as Capital Health Medical Center – Hopewell, located at One Capital Way, Pennington, New
Jersey, 08534. Answering Defendant denies the remaining allegations as phrased and refers all
questions of law and fact to the Court, and leaves Plaintiffs to their proofs.
4. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it
is a not for profit corporation organized under the laws of the State of New Jersey and that its
principal place of business is located at One Capital Way, Pennington, New Jersey, 08534.
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Answering Defendant also admits that it owned and operated a licensed acute care hospital known
as Capital Health Medical Center – Hopewell, located at One Capital Way, Pennington, New
Jersey, 08534. Answering Defendant denies the remaining allegations as phrased and refers all
questions of law and fact to the Court, and leaves Plaintiffs to their proofs.
5. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it
is a not for profit corporation organized under the laws of the State of New Jersey and that its
principal place of business is located at One Capital Way, Pennington, New Jersey, 08534.
Answering Defendant also admits that it owned and operated a licensed acute care hospital known
as Capital Health Medical Center – Hopewell, located at One Capital Way, Pennington, New
Jersey, 08534. Answering Defendant denies the remaining allegations as phrased and refers all
questions of law and fact to the Court, and leaves Plaintiffs to their proofs
6. Admitted in part; denied in part. It is admitted only that, during the relevant time
period, Richelle Kozak, RN, Dana Tinney, RN, and Brianna Acacia, RN were licensed registered
nurses in the State of New Jersey who provided nursing care at Capital Health Medical Center –
Hopewell, located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendants
deny the remaining allegations as phrased and refer all questions of law and fact to the Court, and
leave Plaintiffs to their proofs.
7. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
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8. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
9. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
10. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it
is a not for profit corporation organized under the laws of the State of New Jersey and that its
principal place of business is located at One Capital Way, Pennington, New Jersey, 08534.
Answering Defendant also admits that it owned and operated a licensed acute care hospital known
as Capital Health Regional Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638.
Answering Defendant denies the remaining allegations as phrased and refers all questions of law
and fact to the Court, and leaves Plaintiffs to their proofs.
11. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it
is a not for profit corporation organized under the laws of the State of New Jersey and that its
principal place of business is located at One Capital Way, Pennington, New Jersey, 08534.
Answering Defendant also admits that it owned and operated a licensed acute care hospital known
as Capital Health Regional Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638.
Answering Defendant denies the remaining allegations as phrased and refers all questions of law
and fact to the Court, and leaves Plaintiffs to their proofs.
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12. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it
is a not for profit corporation organized under the laws of the State of New Jersey and that its
principal place of business is located at One Capital Way, Pennington, New Jersey, 08534.
Answering Defendant also admits that it owned and operated a licensed acute care hospital known
as Capital Health Regional Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638.
Answering Defendant denies the remaining allegations as phrased and refers all questions of law
and fact to the Court, and leaves Plaintiffs to their proofs.
13. Admitted in part; denied in part. It is admitted only that, during the relevant time
period, Prabhjot Pandher, RN, Shrijana Banjara, RN, and Inessa Chaykovska, RN were licensed
registered nurses in the State of New Jersey who provided nursing care at Capital Health Regional
Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638. Answering Defendants
deny the remaining allegations as phrased and refer all questions of law and fact to the Court, and
leave Plaintiffs to their proofs.
14. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
15. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
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16. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
17. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
18. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
19. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
20. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
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ALLEGED FACTS RELEVANT TO ALL CAUSES OF ACTION
21. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
22. Denied as stated. Answering Defendants are without sufficient knowledge or
information to form a belief as to the truth of the allegations contained in this paragraph.
Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to
their proofs.
23. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs
24. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs
25. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph, and each of its subparts, constitute conclusions of law to which no response is required
and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability
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of Answering Defendants are specifically denied. Answering Defendants also refer all questions
of law and fact to the Court, and leave Plaintiffs to their proofs.
26. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
27. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
28. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
FIST COUNT AS TO PREFERRED CARE & ST. LAWRENCE
(PURSUANT TO N.J.S. 30:13 ET SEQ. AND OBRA)
1. The preceding paragraphs are incorporate by reference.
2. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
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3. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
4. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
5. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
6. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
7. Denied. Answering Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegations contained in this paragraph as they are not directed
to Answering Defendants. Answering Defendants also refer all questions of law and fact to the
Court, and leave Plaintiffs to their proofs.
WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’
Complaint and award costs and fees in favor of Answering Defendants.
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SECOND COUNT AS TO ALL DEFENDANTS
(ALLEGED MEDICAL MALPRACTICE AND PROFESSIONAL NEGLIGENCE)
1. The preceding paragraphs are incorporated by reference.
2. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
3. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
4. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
5. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph, and each of its subparts, constitute conclusions of law to which no response is required
and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability
of Answering Defendants are specifically denied. Answering Defendants also refer all questions
of law and fact to the Court, and leave Plaintiffs to their proofs.
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6. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
7. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’
Complaint and award costs and fees in favor of Answering Defendants.
THIRD COUNT AS TO ALL DEFENDANTS
(ALLEGED GROSS NEGLIGENCE)
1. The preceding paragraphs are incorporated by reference.
2. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs
3. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
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are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
4. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
5. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
6. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
7. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
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WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’
Complaint and award costs and fees in favor of Answering Defendants.
FOURTH COUNT AS TO ALL DEFENDANTS
(ALLEGED NEGLIGENCE)
1. The preceding paragraphs are incorporated by reference.
2. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
3. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
4. Denied, insofar as it refers to Answering Defendants. The allegations in this
paragraph constitute conclusions of law to which no response is required and are deemed denied.
Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants
are specifically denied. Answering Defendants also refer all questions of law and fact to the Court,
and leave Plaintiffs to their proofs.
WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’
Complaint and award costs and fees in favor of Answering Defendants.
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AFFIRMATIVE AND SEPARATE DEFENSES
Answering Defendants hereby reserve the right to amend this Answer to assert additional
Affirmative and Separate Defenses as revealed or suggested by the completion of on-going
investigation and discovery.
1. Answering Defendants were not negligent.
2. Answering Defendants did not proximately cause the injuries of which Plaintiffs
complain.
3. Answering Defendants owed no duty to the Plaintiffs at the time and place alleged.
Alternatively, there is no breach of that duty by the Answering Defendants.
4. Plaintiffs are guilty of contributory/comparative negligence, thus this action is
subject to and governed by the provisions of N.J.S.A. 2A:15-5.1, et seq.
5. Any conditions of which Plaintiffs complain or from which Plaintiffs presently
suffer is unrelated to any of the incidents referred to in the Complaint or to actions or treatments
that were performed or ordered by Answering Defendants, either by causation, exacerbation, or
both.
6. Answering Defendants aver that with respect to any treatment proposed or rendered
to the Plaintiff, that they did exercise every degree of care requisite in any hospital-patient
relationship and that the patient was informed of all information of which the Plaintiffs should
have been informed, and that in so informing the Plaintiff, Answering Defendants acted within
accepted standards recognized and followed by others in the same profession and specialty.
7. Answering Defendants avers that whatever duties were required of Answering
Defendants by and for Plaintiffs that they were performed properly, and that Answering
Defendants employed and demonstrated in performing such duties, the requisite skill, discretion,
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and judgment in accordance with the accepted standards and practices recognized and followed by
others of like profession and specialty.
8. Answering Defendants demand credit for any and all payments by way of insurance
or other medical benefits received by the Plaintiffs as against any award made to Plaintiffs as a
result of this action.
9. Pursuant to Rule 4:7-5, Answering Defendants reserve the right to seek a credit
reducing the amount of Plaintiffs’ Judgment, if any, to reflect the degree of fault allocated by the
jury to any co-defendant(s), regardless of any settlement by co-defendant(s). Answering
Defendants assert that the liability of any settling co-defendant(s) shall be an issue at the time of
trial.
10. Plaintiffs’ condition is the direct and proximate result of the natural degenerative
changes of the human body, and have “and would have” occurred despite any and all intervention,
prescription and treatment, or lack thereof, by Answering Defendants.
11. Any damages awarded against Answering Defendants are precluded or otherwise
limited pursuant to New Jersey’s Charitable Immunity Act, N.J.S.A. 2A:53A-7.
12. Any and all damages alleged to have been suffered by Plaintiffs are not causally
related to any act or omission alleged on the part of Answering Defendants.
13. The incidents referred to in the Complaint were the result of the negligence of third
parties over whom Answering Defendants exercised no control.
14. Plaintiffs’ claims are barred by the Doctrines of Laches, Estoppel, Unclean Hands
and Waiver.
15. Plaintiffs’ claims are barred by reason of the Doctrines of Res Judicata and/or
Collateral Estoppel.
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16. Plaintiffs assumed all inherent risks.
17. Plaintiffs’ claims are barred by the failure of Plaintiffs to timely assert same in
accordance with the requirements of the Entire Controversy Doctrine.
18. Plaintiffs’ Complaint fails to state a cause of action upon which relief may be
granted against the Answering Defendants, and Answering Defendants reserve their rights to move
at the time of trial or prior thereto to dismiss Plaintiffs’ Complaint.
19. Plaintiffs have failed to state a claim for vicarious liability and/or apparent agency.
20. Plaintiffs have failed to state or support a claim for Punitive Damages.
21. Plaintiffs have failed to state or support a claim for Negligent Hiring.
22. Plaintiffs have failed to state or support a claim for Negligent Supervision.
23. Plaintiffs have failed to state or support a claim for Negligent Training.
24. Plaintiffs have failed to state or support a claim for Lack of Informed Consent.
25. Plaintiffs have failed to mitigate damages.
26. Plaintiffs’ claims may be barred by the applicable Statute of Limitations and must
be dismissed with prejudice in accordance with same.
27. Plaintiffs’ Complaint must be dismissed for failure to comply with the New Jersey
Affidavit of Merit Statute N.J.S.A. 2A:53A-27 et seq and N.J.S.A. 2A:53A-29 et seq.
28. Plaintiffs’ Complaint must be dismissed as Answering Defendants have Federal
Immunity 42 U.S.C. § 247d-6d(a)(1), the PREP Act.
29. The claims asserted by Plaintiffs are barred pursuant to Exec. Order No. 2020 – 112
signed by New Jersey Governor Philip D. Murphy on or about April 1, 2020.
30. Answering Defendants are immune from liability pursuant to the civil immunity
afforded to healthcare professionals and health care facilities based P.L. 2020, c.18, signed into
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law on or about April 14, 2020 by New Jersey Governor Philip D. Murphy, because the acts and/or
omissions alleged in the Complaint occurred in the course of Answering Defendants’ provision of
medical services in support of the State’s response to the outbreak of COVID-19 during the period
in which this civil immunity was in effect.
31. The claims asserted by Plaintiffs are barred pursuant to the Emergency Health
Powers Act, N.J.S.A. 26:13-1 et al.
32. The claims asserted by Plaintiffs are barred pursuant to the Good Samaritan Act,
N.J.S.A. 2A:62A-1.
33. Answering Defendants incorporate the Consent Order entered by the Court on
February 8, 2023 by reference as if fully set forth herein. Pursuant to the Consent Order, any and
all claims within Plaintiffs’ Complaint regarding alleged violations of New Jersey’s Nursing Home
Responsibilities and Rights of Residents Act (“NHA”), N.J.S.A. 30:13, et seq., noncompliance
with the federal Requirements for Long Term Care Facilities or “OBRA regulations”, 42 C.F.R. §
483, and other federal and New Jersey statutes and administrative regulations have been dismissed
with prejudice as to Answering Defendants. Further, pursuant to the Consent Order, any and all
demands for punitive damages and allegations of reckless, willful, wanton, deliberate, malicious
and/or intentional conduct within Plaintiffs’ Complaint asserted against Answering Defendants are
dismissed with prejudice.
WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’
Complaint and award costs and fees in favor of Answering Defendants.
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REQUEST FOR ALLOCATION PURSUANT TO RULE 4:7-5(c)
If any Co-defendant settles prior to verdict, Answering Defendants will seek an allocation
by the fact finder of the percentage of negligence against the settling defendant(s). Answering
Defendants will seek this allocation, whether or not Answering Defendants have formally filed
Cross-Claims against settling defendant(s). Answering Defendants will rely upon the direct
examination and cross-examination of the Plaintiffs’ expert witnesses, and any and all other
witnesses at the time of trial, in support of this allocation and specifically reserve the right to call
any and all such witnesses. All parties are being apprised of this pursuant to Rule 4:7-5(c) and
Young v. Latta, 123 N.J. 584 (1991).
REQUEST FOR STATEMENT FOR AMOUNT OF DAMAGES CLAIMED
Pursuant to Rule 4:5-2, Answering Defendants hereby request that Plaintiffs furnish a
written statement in the amount of damages claimed.
DEMAND FOR AFFIDAVIT OF MERIT
Answering Defendants demand that Plaintiffs produce an Affidavit of Merit pursuant to
N.J.S.A 2A:53A-26, et seq., within sixty days.
DEMAND FOR UNIFORM INTERROGATORIES
Answering Defendants hereby demands, pursuant to R. 4:17-1 et seq., that Plaintiffs
provide complete, certified answers to Form A and A(1)interrogatories which are located in
Appendix II to the Rules Governing the Courts of the State of New Jersey.
DEMAND FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 4:18-2, Answering Defendants hereby demand that Plaintiffs serve any
and all discoverable documents.
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RESERVATION OF DEFENSES AND OBJECTIONS
Answering Defendants hereby reserves the right to interpose such other defenses and
objections as a continuing investigation may disclose.
JURY DEMAND
Please take notice that Answering Defendants hereby demand a trial by jury on all issues.
DESIGNATION OF TRIAL COUNSEL
Andrew F. Albero, Esquire, of Lewis Brisbois Bisgaard & Smith, LLP is hereby designated
as trial counsel.
CERTIFICATION PURSUANT TO RULE 4:5-1
Pursuant to Rule 4:5-1, I certify that I am not aware of the matter in controversy being the
subject of any other action pending in any court or arbitration forum. I certify that no such action
or arbitration proceeding is presently contemplated.
CERTIFICATION
The undersigned certifies that the within pleading was served within the time period
allowed by Rule 4:6-1 or by an extension with consent under Rule 4:6-1(c).
Lewis Brisbois Bisgaard & Smith, LLP
By: s/ Andrew Albero_________
Andrew F. Albero, Esquire
Attorney for Defendants, Capital
Health System, Inc. (improperly pled as
multiple defendants, Capital Medical
Center – Hopewell and Capital Health
Regional Medical Center), Richelle
Kozak, RN, Dana Tinney, RN, Brianna
Acacia, RN, Prabhjot Pandher, RN,
Shrijana Banjara, RN, and Inessa
Date: February 14, 2023 Chaykovska, RN
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CERTIFICATE OF SERVICE
I, the undersigned, certify that a true and correct copy of the Answer to the Complaint was
served upon the following parties by electronic filing on the date listed below:
Deborah R. Gough, Esquire
Jennifer Wilson, Esquire
THE GOUGH LAW FIRM, LLP
411 Hackensack Avenue, 2nd Floor
Hackensack, NJ 07601
Counsel for Plaintiff
MaryAnn Nobile Wilderotter, Esquire
RONAN, TUZZIO & GIANNONE
4000 Route 66
Tinton Falls, NJ 07753
Counsel for Defendants, Morris Hall/St. Lawrence, Inc. d/b/a St. Lawrence Rehab Center
and St. Lawrence Rehab Center
Lewis Brisbois Bisgaard & Smith, LLP
By: s/ Andrew Albero_________
Andrew F. Albero, Esquire
Attorney for Defendants, Capital
Health System, Inc. (improperly pled as
multiple defendants, Capital Medical
Center – Hopewell and Capital Health
Regional Medical Center), Richelle
Kozak, RN, Dana Tinney, RN, Brianna
Acacia, RN, Prabhjot Pandher, RN,
Shrijana Banjara, RN, and Inessa
Date: February 14, 2023 Chaykovska, RN
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Civil Case Information Statement
Case Details: MERCER | Civil Part Docket# L-001599-22
Case Caption: MAXWELL JOHN VS CAPITAL HEALTH Case Type: MEDICAL MALPRACTICE
SYSTE M INC. Document Type: Answer W/CrossClaim W/Jury Demand
Case Initiation Date: 09/15/2022 Jury Demand: YES - 6 JURORS
Attorney Name: ANDREW F ALBERO Is this a professional malpractice case? YES
Firm Name: LEWIS BRISBOIS BISGAARD & SMITH LLP Related cases pending: NO
Address: 550 E SWEDESFORD ROAD SUITE 270 If yes, list docket numbers:
WAYNE PA 19087 Do you anticipate adding any parties (arising out of same
Phone: 2159774100 transaction or occurrence)? NO
Name of Party: DEFENDANT : CAPITAL HEALTH Does this case involve claims related to COVID-19? NO
REGIONAL MEDICA
Name of Defendant’s Primary Insurance Company Are sexual abuse claims alleged by: JOHN MAXWELL? NO
(if known): None
Are sexual abuse claims alleged by: JOHN MAXWELL? NO
THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE
CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION
Do parties have a current, past, or recurrent relationship? NO
If yes, is that relationship:
Does the statute governing this case provide for payment of fees by the losing party? NO
Use this space to alert the court to any special case characteristics that may warrant individual
management or accelerated disposition:
Do you or your client need any disability accommodations? NO
If yes, please identify the requested accommodation:
Will an interpreter be needed? NO
If yes, for what language:
Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO
I certify that confidential personal identifiers have been redacted from documents now submitted to the
court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b)
02/14/2023 /s/ ANDREW F ALBERO
Dated Signed
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MER-L-001599-22 02/14/2023 9:18:27 AM Pg 1 of 20 Trans ID: LCV2023539671 LEWIS BRISBOIS BISGAARD & SMITH, LLP Andrew F. Albero, Esq. (Identification No. 016542009) 550 E. Swedesford Road, Suite 270 Wayne, Pennsylvania 19087 T: (215) 977-4100 F: (215) 977-4101 andrew.albero@lewisbrisbois.com Attorney for Defendants, Capital Health System, Inc. (improperly pled as multiple defendants, Capital Medical Center – Hopewell and Capital Health Regional Medical Center), Richelle Kozak, RN, Dana Tinney, RN, Brianna Acacia, RN, Prabhjot Pandher, RN, Shrijana Banjara, RN, and Inessa Chaykovska, RN JOHN MAXWELL, Individually and as Attorney in SUPERIOR COURT OF Fact for NANCY MAXWELL NEW JERSEY – Plaintiff(s), MERCER COUNTY v. LAW DIVISION CAPITAL HEALTH SYSTEM, INC. d/b/a CAPITAL HEALTH MEDICAL CENTER – HOPEWELL; DOCKET NO. MER-L-1599-22 CAPITAL HEALTH MEDICAL CENTER – HOPEWELL; RICHELLE KOZAK, RN; DANA ANSWER TO PLAINTIFFS’ TINNEY, RN; BRIANNA ACACIA, RN; COMPLAINT, AFFIRMATIVE PREFERRED CARE ARE MERCER, LLC d/b/a AND SEPARATE DEFENSES, PREFERRED CARE AT MERCER; PREFERRED CROSS-CLAIM FOR CARE AT MERCER; CAPITAL HEALTH SYSTEM, INDEMNIFICATION, CROSS- INC. d/b/a CAPITAL HEALTH REGIONAL CLAIM FOR CONTRIBUTION, MEDICAL CENTER; CAPITAL HEALTH ANSWER TO CROSSCLAIMS, REGIONAL MEDICAL CENTER; PRABHJOT REQUEST FOR ALLOCATION, PANDHER, RN; SHRIJANA BANJARA, RN; and REQUEST FOR STATEMENT INESSA CHAYKOVSKA, RN; MORRIS HALL/ST. OF DAMAGES, DEMAND FOR LAWRENCE, INC. d/b/a ST. LAWRENCE REHAB AFFIDAVIT OF MERIT, CENTER; ST. LAWRENCE REHAB CENTER; DEMAND FOR UNIFORM JANE DOE NURSES 1-50; JANE ROE INTERROGATORIES, TECHNICIANS, CNA’S AND PARAMEDICAL DEMAND FOR DISCOVERY EMPLOYEES 1-50; JOHN DOE PHYSICIANS 1-50; AND DOCUMENTS, ABC CORPORATION and ABC PARTNERSHIP (the RESERVATION OF RIGHTS, aforesaid names being fictitious and their true names DEMAND FOR JURY TRIAL, being unknown) AND DESIGNATION OF TRIAL COUNSEL Defendants 1 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 2 of 20 Trans ID: LCV2023539671 Defendants, Capital Health System, Inc. (improperly pled as multiple defendants, Capital Medical Center – Hopewell and Capital Health Regional Medical Center), Richelle Kozak, RN, Dana Tinney, RN, Brianna Acacia, RN, Prabhjot Pandher, RN, Shrijana Banjara, RN, and Inessa Chaykovska, RN (hereinafter referred to as “Answering Defendants”), by and through undersigned counsel, Lewis Brisbois Bisgaard & Smith, LLP, hereby file this Answer to Plaintiffs’ Complaint and aver as follows: ALLEGED PARTIES 1. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 2. Admitted that Plaintiffs filed a purported affidavit of merit of Ms. Charlotte Sheppard with their Complaint. 3. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it is a not for profit corporation organized under the laws of the State of New Jersey and that its principal place of business is located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant also admits that it owned and operated a licensed acute care hospital known as Capital Health Medical Center – Hopewell, located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant denies the remaining allegations as phrased and refers all questions of law and fact to the Court, and leaves Plaintiffs to their proofs. 4. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it is a not for profit corporation organized under the laws of the State of New Jersey and that its principal place of business is located at One Capital Way, Pennington, New Jersey, 08534. 2 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 3 of 20 Trans ID: LCV2023539671 Answering Defendant also admits that it owned and operated a licensed acute care hospital known as Capital Health Medical Center – Hopewell, located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant denies the remaining allegations as phrased and refers all questions of law and fact to the Court, and leaves Plaintiffs to their proofs. 5. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it is a not for profit corporation organized under the laws of the State of New Jersey and that its principal place of business is located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant also admits that it owned and operated a licensed acute care hospital known as Capital Health Medical Center – Hopewell, located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant denies the remaining allegations as phrased and refers all questions of law and fact to the Court, and leaves Plaintiffs to their proofs 6. Admitted in part; denied in part. It is admitted only that, during the relevant time period, Richelle Kozak, RN, Dana Tinney, RN, and Brianna Acacia, RN were licensed registered nurses in the State of New Jersey who provided nursing care at Capital Health Medical Center – Hopewell, located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendants deny the remaining allegations as phrased and refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 7. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 3 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 4 of 20 Trans ID: LCV2023539671 8. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 9. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 10. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it is a not for profit corporation organized under the laws of the State of New Jersey and that its principal place of business is located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant also admits that it owned and operated a licensed acute care hospital known as Capital Health Regional Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638. Answering Defendant denies the remaining allegations as phrased and refers all questions of law and fact to the Court, and leaves Plaintiffs to their proofs. 11. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it is a not for profit corporation organized under the laws of the State of New Jersey and that its principal place of business is located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant also admits that it owned and operated a licensed acute care hospital known as Capital Health Regional Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638. Answering Defendant denies the remaining allegations as phrased and refers all questions of law and fact to the Court, and leaves Plaintiffs to their proofs. 4 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 5 of 20 Trans ID: LCV2023539671 12. Denied as stated. Answering Defendant, Capital Health System Inc., admits that it is a not for profit corporation organized under the laws of the State of New Jersey and that its principal place of business is located at One Capital Way, Pennington, New Jersey, 08534. Answering Defendant also admits that it owned and operated a licensed acute care hospital known as Capital Health Regional Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638. Answering Defendant denies the remaining allegations as phrased and refers all questions of law and fact to the Court, and leaves Plaintiffs to their proofs. 13. Admitted in part; denied in part. It is admitted only that, during the relevant time period, Prabhjot Pandher, RN, Shrijana Banjara, RN, and Inessa Chaykovska, RN were licensed registered nurses in the State of New Jersey who provided nursing care at Capital Health Regional Medical Center, located at 750 Brunswick Avenue, Trenton NJ 08638. Answering Defendants deny the remaining allegations as phrased and refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 14. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 15. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 5 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 6 of 20 Trans ID: LCV2023539671 16. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 17. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 18. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 19. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 20. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 6 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 7 of 20 Trans ID: LCV2023539671 ALLEGED FACTS RELEVANT TO ALL CAUSES OF ACTION 21. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 22. Denied as stated. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 23. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs 24. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs 25. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph, and each of its subparts, constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability 7 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 8 of 20 Trans ID: LCV2023539671 of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 26. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 27. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 28. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. FIST COUNT AS TO PREFERRED CARE & ST. LAWRENCE (PURSUANT TO N.J.S. 30:13 ET SEQ. AND OBRA) 1. The preceding paragraphs are incorporate by reference. 2. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 8 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 9 of 20 Trans ID: LCV2023539671 3. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 4. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 5. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 6. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 7. Denied. Answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph as they are not directed to Answering Defendants. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’ Complaint and award costs and fees in favor of Answering Defendants. 9 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 10 of 20 Trans ID: LCV2023539671 SECOND COUNT AS TO ALL DEFENDANTS (ALLEGED MEDICAL MALPRACTICE AND PROFESSIONAL NEGLIGENCE) 1. The preceding paragraphs are incorporated by reference. 2. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 3. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 4. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 5. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph, and each of its subparts, constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 10 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 11 of 20 Trans ID: LCV2023539671 6. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 7. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’ Complaint and award costs and fees in favor of Answering Defendants. THIRD COUNT AS TO ALL DEFENDANTS (ALLEGED GROSS NEGLIGENCE) 1. The preceding paragraphs are incorporated by reference. 2. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs 3. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants 11 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 12 of 20 Trans ID: LCV2023539671 are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 4. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 5. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 6. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 7. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 12 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 13 of 20 Trans ID: LCV2023539671 WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’ Complaint and award costs and fees in favor of Answering Defendants. FOURTH COUNT AS TO ALL DEFENDANTS (ALLEGED NEGLIGENCE) 1. The preceding paragraphs are incorporated by reference. 2. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 3. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. 4. Denied, insofar as it refers to Answering Defendants. The allegations in this paragraph constitute conclusions of law to which no response is required and are deemed denied. Further, all allegations of negligence, direct liability or vicarious liability of Answering Defendants are specifically denied. Answering Defendants also refer all questions of law and fact to the Court, and leave Plaintiffs to their proofs. WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’ Complaint and award costs and fees in favor of Answering Defendants. 13 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 14 of 20 Trans ID: LCV2023539671 AFFIRMATIVE AND SEPARATE DEFENSES Answering Defendants hereby reserve the right to amend this Answer to assert additional Affirmative and Separate Defenses as revealed or suggested by the completion of on-going investigation and discovery. 1. Answering Defendants were not negligent. 2. Answering Defendants did not proximately cause the injuries of which Plaintiffs complain. 3. Answering Defendants owed no duty to the Plaintiffs at the time and place alleged. Alternatively, there is no breach of that duty by the Answering Defendants. 4. Plaintiffs are guilty of contributory/comparative negligence, thus this action is subject to and governed by the provisions of N.J.S.A. 2A:15-5.1, et seq. 5. Any conditions of which Plaintiffs complain or from which Plaintiffs presently suffer is unrelated to any of the incidents referred to in the Complaint or to actions or treatments that were performed or ordered by Answering Defendants, either by causation, exacerbation, or both. 6. Answering Defendants aver that with respect to any treatment proposed or rendered to the Plaintiff, that they did exercise every degree of care requisite in any hospital-patient relationship and that the patient was informed of all information of which the Plaintiffs should have been informed, and that in so informing the Plaintiff, Answering Defendants acted within accepted standards recognized and followed by others in the same profession and specialty. 7. Answering Defendants avers that whatever duties were required of Answering Defendants by and for Plaintiffs that they were performed properly, and that Answering Defendants employed and demonstrated in performing such duties, the requisite skill, discretion, 14 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 15 of 20 Trans ID: LCV2023539671 and judgment in accordance with the accepted standards and practices recognized and followed by others of like profession and specialty. 8. Answering Defendants demand credit for any and all payments by way of insurance or other medical benefits received by the Plaintiffs as against any award made to Plaintiffs as a result of this action. 9. Pursuant to Rule 4:7-5, Answering Defendants reserve the right to seek a credit reducing the amount of Plaintiffs’ Judgment, if any, to reflect the degree of fault allocated by the jury to any co-defendant(s), regardless of any settlement by co-defendant(s). Answering Defendants assert that the liability of any settling co-defendant(s) shall be an issue at the time of trial. 10. Plaintiffs’ condition is the direct and proximate result of the natural degenerative changes of the human body, and have “and would have” occurred despite any and all intervention, prescription and treatment, or lack thereof, by Answering Defendants. 11. Any damages awarded against Answering Defendants are precluded or otherwise limited pursuant to New Jersey’s Charitable Immunity Act, N.J.S.A. 2A:53A-7. 12. Any and all damages alleged to have been suffered by Plaintiffs are not causally related to any act or omission alleged on the part of Answering Defendants. 13. The incidents referred to in the Complaint were the result of the negligence of third parties over whom Answering Defendants exercised no control. 14. Plaintiffs’ claims are barred by the Doctrines of Laches, Estoppel, Unclean Hands and Waiver. 15. Plaintiffs’ claims are barred by reason of the Doctrines of Res Judicata and/or Collateral Estoppel. 15 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 16 of 20 Trans ID: LCV2023539671 16. Plaintiffs assumed all inherent risks. 17. Plaintiffs’ claims are barred by the failure of Plaintiffs to timely assert same in accordance with the requirements of the Entire Controversy Doctrine. 18. Plaintiffs’ Complaint fails to state a cause of action upon which relief may be granted against the Answering Defendants, and Answering Defendants reserve their rights to move at the time of trial or prior thereto to dismiss Plaintiffs’ Complaint. 19. Plaintiffs have failed to state a claim for vicarious liability and/or apparent agency. 20. Plaintiffs have failed to state or support a claim for Punitive Damages. 21. Plaintiffs have failed to state or support a claim for Negligent Hiring. 22. Plaintiffs have failed to state or support a claim for Negligent Supervision. 23. Plaintiffs have failed to state or support a claim for Negligent Training. 24. Plaintiffs have failed to state or support a claim for Lack of Informed Consent. 25. Plaintiffs have failed to mitigate damages. 26. Plaintiffs’ claims may be barred by the applicable Statute of Limitations and must be dismissed with prejudice in accordance with same. 27. Plaintiffs’ Complaint must be dismissed for failure to comply with the New Jersey Affidavit of Merit Statute N.J.S.A. 2A:53A-27 et seq and N.J.S.A. 2A:53A-29 et seq. 28. Plaintiffs’ Complaint must be dismissed as Answering Defendants have Federal Immunity 42 U.S.C. § 247d-6d(a)(1), the PREP Act. 29. The claims asserted by Plaintiffs are barred pursuant to Exec. Order No. 2020 – 112 signed by New Jersey Governor Philip D. Murphy on or about April 1, 2020. 30. Answering Defendants are immune from liability pursuant to the civil immunity afforded to healthcare professionals and health care facilities based P.L. 2020, c.18, signed into 16 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 17 of 20 Trans ID: LCV2023539671 law on or about April 14, 2020 by New Jersey Governor Philip D. Murphy, because the acts and/or omissions alleged in the Complaint occurred in the course of Answering Defendants’ provision of medical services in support of the State’s response to the outbreak of COVID-19 during the period in which this civil immunity was in effect. 31. The claims asserted by Plaintiffs are barred pursuant to the Emergency Health Powers Act, N.J.S.A. 26:13-1 et al. 32. The claims asserted by Plaintiffs are barred pursuant to the Good Samaritan Act, N.J.S.A. 2A:62A-1. 33. Answering Defendants incorporate the Consent Order entered by the Court on February 8, 2023 by reference as if fully set forth herein. Pursuant to the Consent Order, any and all claims within Plaintiffs’ Complaint regarding alleged violations of New Jersey’s Nursing Home Responsibilities and Rights of Residents Act (“NHA”), N.J.S.A. 30:13, et seq., noncompliance with the federal Requirements for Long Term Care Facilities or “OBRA regulations”, 42 C.F.R. § 483, and other federal and New Jersey statutes and administrative regulations have been dismissed with prejudice as to Answering Defendants. Further, pursuant to the Consent Order, any and all demands for punitive damages and allegations of reckless, willful, wanton, deliberate, malicious and/or intentional conduct within Plaintiffs’ Complaint asserted against Answering Defendants are dismissed with prejudice. WHEREFORE, Answering Defendants hereby request the Court dismiss Plaintiffs’ Complaint and award costs and fees in favor of Answering Defendants. 17 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 18 of 20 Trans ID: LCV2023539671 REQUEST FOR ALLOCATION PURSUANT TO RULE 4:7-5(c) If any Co-defendant settles prior to verdict, Answering Defendants will seek an allocation by the fact finder of the percentage of negligence against the settling defendant(s). Answering Defendants will seek this allocation, whether or not Answering Defendants have formally filed Cross-Claims against settling defendant(s). Answering Defendants will rely upon the direct examination and cross-examination of the Plaintiffs’ expert witnesses, and any and all other witnesses at the time of trial, in support of this allocation and specifically reserve the right to call any and all such witnesses. All parties are being apprised of this pursuant to Rule 4:7-5(c) and Young v. Latta, 123 N.J. 584 (1991). REQUEST FOR STATEMENT FOR AMOUNT OF DAMAGES CLAIMED Pursuant to Rule 4:5-2, Answering Defendants hereby request that Plaintiffs furnish a written statement in the amount of damages claimed. DEMAND FOR AFFIDAVIT OF MERIT Answering Defendants demand that Plaintiffs produce an Affidavit of Merit pursuant to N.J.S.A 2A:53A-26, et seq., within sixty days. DEMAND FOR UNIFORM INTERROGATORIES Answering Defendants hereby demands, pursuant to R. 4:17-1 et seq., that Plaintiffs provide complete, certified answers to Form A and A(1)interrogatories which are located in Appendix II to the Rules Governing the Courts of the State of New Jersey. DEMAND FOR PRODUCTION OF DOCUMENTS Pursuant to Rule 4:18-2, Answering Defendants hereby demand that Plaintiffs serve any and all discoverable documents. 18 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 19 of 20 Trans ID: LCV2023539671 RESERVATION OF DEFENSES AND OBJECTIONS Answering Defendants hereby reserves the right to interpose such other defenses and objections as a continuing investigation may disclose. JURY DEMAND Please take notice that Answering Defendants hereby demand a trial by jury on all issues. DESIGNATION OF TRIAL COUNSEL Andrew F. Albero, Esquire, of Lewis Brisbois Bisgaard & Smith, LLP is hereby designated as trial counsel. CERTIFICATION PURSUANT TO RULE 4:5-1 Pursuant to Rule 4:5-1, I certify that I am not aware of the matter in controversy being the subject of any other action pending in any court or arbitration forum. I certify that no such action or arbitration proceeding is presently contemplated. CERTIFICATION The undersigned certifies that the within pleading was served within the time period allowed by Rule 4:6-1 or by an extension with consent under Rule 4:6-1(c). Lewis Brisbois Bisgaard & Smith, LLP By: s/ Andrew Albero_________ Andrew F. Albero, Esquire Attorney for Defendants, Capital Health System, Inc. (improperly pled as multiple defendants, Capital Medical Center – Hopewell and Capital Health Regional Medical Center), Richelle Kozak, RN, Dana Tinney, RN, Brianna Acacia, RN, Prabhjot Pandher, RN, Shrijana Banjara, RN, and Inessa Date: February 14, 2023 Chaykovska, RN 19 MER-L-001599-22 02/14/2023 9:18:27 AM Pg 20 of 20 Trans ID: LCV2023539671 CERTIFICATE OF SERVICE I, the undersigned, certify that a true and correct copy of the Answer to the Complaint was served upon the following parties by electronic filing on the date listed below: Deborah R. Gough, Esquire Jennifer Wilson, Esquire THE GOUGH LAW FIRM, LLP 411 Hackensack Avenue, 2nd Floor Hackensack, NJ 07601 Counsel for Plaintiff MaryAnn Nobile Wilderotter, Esquire RONAN, TUZZIO & GIANNONE 4000 Route 66 Tinton Falls, NJ 07753 Counsel for Defendants, Morris Hall/St. Lawrence, Inc. d/b/a St. Lawrence Rehab Center and St. Lawrence Rehab Center Lewis Brisbois Bisgaard & Smith, LLP By: s/ Andrew Albero_________ Andrew F. Albero, Esquire Attorney for Defendants, Capital Health System, Inc. (improperly pled as multiple defendants, Capital Medical Center – Hopewell and Capital Health Regional Medical Center), Richelle Kozak, RN, Dana Tinney, RN, Brianna Acacia, RN, Prabhjot Pandher, RN, Shrijana Banjara, RN, and Inessa Date: February 14, 2023 Chaykovska, RN 20 MER-L-001599-22 02/14/2023 MER-L-001599-22 02/14/20239:18:27 9:17:29AM AM Pg 1 of 2 Trans TransID: ID:LCV2023539671 LCV2023539671 Civil Case Information Statement Case Details: MERCER | Civil Part Docket# L-001599-22 Case Caption: MAXWELL JOHN VS CAPITAL HEALTH Case Type: MEDICAL MALPRACTICE SYSTE M INC. Document Type: Answer W/CrossClaim W/Jury Demand Case Initiation Date: 09/15/2022 Jury Demand: YES - 6 JURORS Attorney Name: ANDREW F ALBERO Is this a professional malpractice case? YES Firm Name: LEWIS BRISBOIS BISGAARD & SMITH LLP Related cases pending: NO Address: 550 E SWEDESFORD ROAD SUITE 270 If yes, list docket numbers: WAYNE PA 19087 Do you anticipate adding any parties (arising out of same Phone: 2159774100 transaction or occurrence)? NO Name of Party: DEFENDANT : CAPITAL HEALTH Does this case involve claims related to COVID-19? NO REGIONAL MEDICA Name of Defendant’s Primary Insurance Company Are sexual abuse claims alleged by: JOHN MAXWELL? NO (if known): None Are sexual abuse claims alleged by: JOHN MAXWELL? NO THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION Do parties have a current, past, or recurrent relationship? NO If yes, is that relationship: Does the statute governing this case provide for payment of fees by the losing party? NO Use this space to alert the court to any special case characteristics that may warrant individual management or accelerated disposition: Do you or your client need any disability accommodations? NO If yes, please identify the requested accommodation: Will an interpreter be needed? NO If yes, for what language: Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b) 02/14/2023 /s/ ANDREW F ALBERO Dated Signed MER-L-001599-22 02/14/2023 MER-L-001599-22 02/14/20239:18:27 9:17:29AM AM Pg 2 of 2 Trans TransID: ID:LCV2023539671 LCV2023539671