Preview
BUR-L-000679-23 08/17/2023 8:05:18 AM Pg 1 of 4 Trans ID: LCV20232359918
Parker McCay P.A.
9000 Midlantic Drive, Suite 300
Mount Laurel, NJ 08054
P: 856-596-8900
F: 856-596-9631
www.parkermccay.com
Andrew S. Winegar , Esquire
P: 856 985-4034
F: 856 596-7203
awinegar@parkermccay.com
August 16, 2023
File No.: 30580-2-LMF/ASW
VIA E-FILING
The Honorable Aimee R. Belgard, P.J. Cv.
SUPERIOR COURT OF NEW JERSEY
49 Rancocas Road
P. O. Box 6555
Mount Holly, NJ 08060
Re: Choates, Darrell v. Deborah Heart & Lung Center, and David Dovel, RN
Docket No. BUR-L-0679-23
Dear Judge Belgard:
This office represents Defendant Deborah Heart and Lung Center in the above captioned
matter. Our Motion to Dismiss the Complaint is currently pending before Your Honor and is
presently returnable August 25, 2023. Please accept this letter brief in lieu of a more formal reply
to Plaintiff’s opposition.
Initially, it must be remembered that this Motion concerns the Complaint filed on April 1,
2023. Plaintiff’s opposition makes reference to an Amended Complaint, which is the subject of a
Motion for Leave to File an Amended Complaint that is returnable August 25, 2023. However,
as leave has not been granted, the contents of that proposed Amended Complaint and any
potential merit is a separate issue from the present Motion, which only concerns the original
Complaint. Defendant will be addressing the Motion for Leave to File an Amended Complaint
by way of separate filing.
Mount Laurel, New Jersey | Hamilton, New Jersey | Atlantic City, New Jersey | Camden, New Jersey
BUR-L-000679-23 08/17/2023 8:05:18 AM Pg 2 of 4 Trans ID: LCV20232359918
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In opposition, Plaintiff essentially makes three arguments that address each individual
count: (1) Plaintiff argues that the defamation claim is not time barred due to application of the
discovery rule; (2) that the intentional infliction of emotional distress claim is separate from
defamation; and (3) Plaintiff has standing to assert claims for Sandra Choates due to a power of
attorney.
First, defamation claims are not subject to the discovery rule. In NuWave Investment
Corp. v. Hyman Beck & Co., Inc., the New Jersey Supreme Court confirmed that defamation
actions are subject to the one-year limitations period under N.J.S.A. 2A:14-3. That statute
confirms that all defamation claims must be brought within one year of publication. The Court
specifically declined to permit the discovery rule based on the clear language of the statute,
regardless of the merits of any equitable arguments for extension. 221 N.J. 495, 500-01 (2015).
As previously held by the Supreme Court in Lawrence v. Bauer Publishing & Printing, the cause
of action for defamation arises at the time of publication, rather than a cause of action that
accrues from another set of circumstances. Accordingly, it cannot be extended under the
discovery rule or other principle of equitable tolling. 78 N.J. 317, 373-74 (1979). Thus, the
discovery rule has no application in this case. No amendment to the Complaint will change that
the limitations period has run and that defamation is barred as a result.
Moreover, even to the extent the discovery rule could apply, Plaintiff’s argument would
not satisfy the requirements of the doctrine. To this point, Plaintiff makes vague references to
other litigation having occurred in the previous eighteen months, but does not explain how that
litigation affected the present matter from being filed. Additionally, the discovery rule would
only apply where a plaintiff would be unaware of a cause of action and, thus, could not timely
BUR-L-000679-23 08/17/2023 8:05:18 AM Pg 3 of 4 Trans ID: LCV20232359918
Page 3
file. It does not permit a party to delay filing due to other litigation. While the doctrine does not
apply regardless, there does not appear to be any argument that Plaintiff was somehow unaware
of the alleged publication that triggered the cause of action.
Second, in the opposition, Plaintiff incorrectly asserts that Defendant has argued that
New Jersey does not recognize intentional infliction of emotional distress. Respectfully, this is
not Defendant’s argument. Defendant does not contend that intentional infliction of emotional
distress is not a valid tort under New Jersey law. Rather, Defendant contends that Plaintiff is
pleading the same conduct—i.e. an alleged false allegation of assault by Nurse Dovell—as both
defamation and intentional infliction of emotional distress. Indeed, this allegation is the only fact
pleaded in the Complaint concerning either tort. As noted in the moving papers, Plaintiff cannot
argue that the same conduct falls under both torts. Instead, New Jersey law recognizes that an
allegation of injury due to a false statement can only be defamation and cannot be
simultaneously pleaded as intentional infliction of emotional distress. Again, Plaintiff’s
references to clarifying the nature of his claims in an amended complaint is a separate issue. As it
presently stands in the Complaint, Plaintiff has attempted to plead factual allegations that fall
under defamation as intentional infliction of emotional distress. New Jersey law does not allow
Plaintiff to do so.
Finally, Plaintiff argues that he has standing to pursue medical malpractice claims
because he has power of attorney for Sandra Choates. This argument is meritless on two fronts.
First, Sandra Choates is not even a Plaintiff under the Complaint. Thus, regardless of power of
attorney, Plaintiff has no standing to sue for a non-party’s medical care under a medical
malpractice theory. Secondly, even to the extent Plaintiff has power of attorney, he still may not
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pursue claims for another person as a pro se plaintiff. Instead, only a licensed attorney may
represent the interests of another. No amendment to the Complaint will change that Plaintiff
cannot proceed pro se for claims regarding his mother, regardless of whether she is a named
party or whether Plaintiff is her power of attorney.
The remaining references in Plaintiff’s opposition refer to collateral estoppel and issue
preclusion. These references are confounding given that Defendant has not made such arguments
in the moving papers. Defendant was not even aware of the prior litigation and, accordingly,
made no references to that action. Similarly, Plaintiff’s references to N.J.A.C. 1:1-16.1 and -16.3
are also irrelevant as those regulations apply to agency proceedings under New Jersey
Administrative Law, not civil litigation in the Superior Court.
For the reasons, explained above and in the moving papers, Defendant’s Motion should
be granted and the Complaint should be dismissed. Any issues regarding an Amended Complaint
should be dealt with separately in the context of Plaintiff’s Motion for Leave to File an Amended
Complaint.
Respectfully submitted,
s/Andrew S. Winegar
ANDREW S. WINEGAR
ASW/nnp
Preview
BUR-L-000679-23 08/17/2023 8:05:18 AM Pg 1 of 4 Trans ID: LCV20232359918 Parker McCay P.A. 9000 Midlantic Drive, Suite 300 Mount Laurel, NJ 08054 P: 856-596-8900 F: 856-596-9631 www.parkermccay.com Andrew S. Winegar , Esquire P: 856 985-4034 F: 856 596-7203 awinegar@parkermccay.com August 16, 2023 File No.: 30580-2-LMF/ASW VIA E-FILING The Honorable Aimee R. Belgard, P.J. Cv. SUPERIOR COURT OF NEW JERSEY 49 Rancocas Road P. O. Box 6555 Mount Holly, NJ 08060 Re: Choates, Darrell v. Deborah Heart & Lung Center, and David Dovel, RN Docket No. BUR-L-0679-23 Dear Judge Belgard: This office represents Defendant Deborah Heart and Lung Center in the above captioned matter. Our Motion to Dismiss the Complaint is currently pending before Your Honor and is presently returnable August 25, 2023. Please accept this letter brief in lieu of a more formal reply to Plaintiff’s opposition. Initially, it must be remembered that this Motion concerns the Complaint filed on April 1, 2023. Plaintiff’s opposition makes reference to an Amended Complaint, which is the subject of a Motion for Leave to File an Amended Complaint that is returnable August 25, 2023. However, as leave has not been granted, the contents of that proposed Amended Complaint and any potential merit is a separate issue from the present Motion, which only concerns the original Complaint. Defendant will be addressing the Motion for Leave to File an Amended Complaint by way of separate filing. Mount Laurel, New Jersey | Hamilton, New Jersey | Atlantic City, New Jersey | Camden, New Jersey BUR-L-000679-23 08/17/2023 8:05:18 AM Pg 2 of 4 Trans ID: LCV20232359918 Page 2 In opposition, Plaintiff essentially makes three arguments that address each individual count: (1) Plaintiff argues that the defamation claim is not time barred due to application of the discovery rule; (2) that the intentional infliction of emotional distress claim is separate from defamation; and (3) Plaintiff has standing to assert claims for Sandra Choates due to a power of attorney. First, defamation claims are not subject to the discovery rule. In NuWave Investment Corp. v. Hyman Beck & Co., Inc., the New Jersey Supreme Court confirmed that defamation actions are subject to the one-year limitations period under N.J.S.A. 2A:14-3. That statute confirms that all defamation claims must be brought within one year of publication. The Court specifically declined to permit the discovery rule based on the clear language of the statute, regardless of the merits of any equitable arguments for extension. 221 N.J. 495, 500-01 (2015). As previously held by the Supreme Court in Lawrence v. Bauer Publishing & Printing, the cause of action for defamation arises at the time of publication, rather than a cause of action that accrues from another set of circumstances. Accordingly, it cannot be extended under the discovery rule or other principle of equitable tolling. 78 N.J. 317, 373-74 (1979). Thus, the discovery rule has no application in this case. No amendment to the Complaint will change that the limitations period has run and that defamation is barred as a result. Moreover, even to the extent the discovery rule could apply, Plaintiff’s argument would not satisfy the requirements of the doctrine. To this point, Plaintiff makes vague references to other litigation having occurred in the previous eighteen months, but does not explain how that litigation affected the present matter from being filed. Additionally, the discovery rule would only apply where a plaintiff would be unaware of a cause of action and, thus, could not timely BUR-L-000679-23 08/17/2023 8:05:18 AM Pg 3 of 4 Trans ID: LCV20232359918 Page 3 file. It does not permit a party to delay filing due to other litigation. While the doctrine does not apply regardless, there does not appear to be any argument that Plaintiff was somehow unaware of the alleged publication that triggered the cause of action. Second, in the opposition, Plaintiff incorrectly asserts that Defendant has argued that New Jersey does not recognize intentional infliction of emotional distress. Respectfully, this is not Defendant’s argument. Defendant does not contend that intentional infliction of emotional distress is not a valid tort under New Jersey law. Rather, Defendant contends that Plaintiff is pleading the same conduct—i.e. an alleged false allegation of assault by Nurse Dovell—as both defamation and intentional infliction of emotional distress. Indeed, this allegation is the only fact pleaded in the Complaint concerning either tort. As noted in the moving papers, Plaintiff cannot argue that the same conduct falls under both torts. Instead, New Jersey law recognizes that an allegation of injury due to a false statement can only be defamation and cannot be simultaneously pleaded as intentional infliction of emotional distress. Again, Plaintiff’s references to clarifying the nature of his claims in an amended complaint is a separate issue. As it presently stands in the Complaint, Plaintiff has attempted to plead factual allegations that fall under defamation as intentional infliction of emotional distress. New Jersey law does not allow Plaintiff to do so. Finally, Plaintiff argues that he has standing to pursue medical malpractice claims because he has power of attorney for Sandra Choates. This argument is meritless on two fronts. First, Sandra Choates is not even a Plaintiff under the Complaint. Thus, regardless of power of attorney, Plaintiff has no standing to sue for a non-party’s medical care under a medical malpractice theory. Secondly, even to the extent Plaintiff has power of attorney, he still may not BUR-L-000679-23 08/17/2023 8:05:18 AM Pg 4 of 4 Trans ID: LCV20232359918 Page 4 pursue claims for another person as a pro se plaintiff. Instead, only a licensed attorney may represent the interests of another. No amendment to the Complaint will change that Plaintiff cannot proceed pro se for claims regarding his mother, regardless of whether she is a named party or whether Plaintiff is her power of attorney. The remaining references in Plaintiff’s opposition refer to collateral estoppel and issue preclusion. These references are confounding given that Defendant has not made such arguments in the moving papers. Defendant was not even aware of the prior litigation and, accordingly, made no references to that action. Similarly, Plaintiff’s references to N.J.A.C. 1:1-16.1 and -16.3 are also irrelevant as those regulations apply to agency proceedings under New Jersey Administrative Law, not civil litigation in the Superior Court. For the reasons, explained above and in the moving papers, Defendant’s Motion should be granted and the Complaint should be dismissed. Any issues regarding an Amended Complaint should be dealt with separately in the context of Plaintiff’s Motion for Leave to File an Amended Complaint. Respectfully submitted, s/Andrew S. Winegar ANDREW S. WINEGAR ASW/nnp