Legal Document: Choates Sr Darrell Vs Deborah Hospital

On April 01, 2023 a OPPOSITION TO MOTION submitted by D'AVERSA, JOSEPH, A of DE NITTIS OSEFCHEN AND PRINCE PC on behalf of DARRELL CHOATES SR, DEBORAH HOSPITAL, CHOATES SANDRA against DAVID A DOVEL, MARISSA DOVELL *LINKED FILING* was filed involving a dispute between Darrell Choates Sr, and David A Dovel, Deborah Hospital, Dovel A David, Marissa Dovell, for Defamation in the District Court of Burlington County.

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DeNITTIS OSEFCHEN PRINCE, P.C.
Stephen P. DeNittis, Esq. (031981997)
Joseph A. D’ Aversa, Esq. (046641995)
5 Greentree Centre
525 Rt. 73 North, Suite 410
Marlton, NJ. 08053
Phone (856) 797-9951
Fax (856) 797-9978
Email jdaversa@denittislaw.com
Attorney for Defendant/Counterclaimant David Dovell and Intervenor/Counterclaimant
Marissa Dovell

DARRELL CHOATES, SR., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, BURLINGTON COUNTY

Vs. DOCKET NO.: BUR-L-000679-23

DEBORAH HOSPITAL and DAVID A. Civil Action
DOVELL,
Defendant. BRIEF IN OPPOSITION OF PLAINTIFF’S
MOTION FOR RECONSIDERATION

PRELIMINARY STATEMENT

Plaintiff Darrell Choates, Sr. has asked this Court to reconsider its November 8, 2023

order granting Intervenor/Counterclaimant Marissa Dovell’s motion to intervene in her husband

Defendant/Counterclaimant David Dovell’s amended counterclaim. The arguments relied upon

by Plaintiff in support of his motion are the exact same arguments he made in his opposition to

Ms. Dovell’s motion to intervene. This Court, after briefing and argument, determined Marissa

Dovell was entitled to join in David Dovell’s amended counterclaim to assert a claim for loss of

consortium resulting from the injuries sustained by her husband because of Plaintiff's actions.

Because Plaintiff has provided no basis whatsoever warranting reconsideration, Marissa Dovell

respectfully requests this Court deny Plaintiffs motion to reconsider the granting of Marissa

Dovell’s motion to intervene.
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FACTUAL AND PROCEDURAL BACKGROUND

On November 18, 2021, David Dovell, a registered nurse, was injured in the course of his

employment when Plaintiff grabbed his wrist causing him to twist away to protect himself. On

April 1, 2023, Plaintiff filed a complaint against Defendant Deborah Heart and Lung Center

(improperly pled as Deborah Hospital) and David Dovell arising from the above incident

alleging claims of defamation, intentional infliction of emotional distress and medical

malpractice and discrimination against Plaintiff's mother, Sandra Choates, who was David

Dovell’s patient on November 18, 2021.

Deborah Heart and Lung Center filed an answer to Plaintiffs complaint on May 9, 2023.

R. James Kravitz, Esquire from Fox Rothschild LLP filed an answer and counterclaim against

Plaintiff on behalf of David Dovell on July 7, 2023 with the counterclaim alleging negligence

against Plaintiff for the injuries he sustained on November 18, 2021. On July 10, 2023, DeNittis

Osefchen Prince, P.C. assumed representation of David Dovell for his counterclaim only with

Fox Rothschild remaining as his defense counsel for the claims made against him by Plaintiff.

On July 19, 2023, Marissa Dovell filed her motion to intervene in her husband’s amended

counterclaim to assert a claim for the deprivation of the care, services and consortium of her

husband due to the injuries he sustained on November 18, 2021 (see Marissa Dovell’s motion to

intervene attached as Exhibit A). David Dovell and Marissa Dovell were married on July 2,

2021. On July 23, 2023, Plaintiff filed an opposition to Marissa Dovell’s motion (see Plaintiff's

opposition attached as Exhibit B). On July 31, 2023, Marissa Dovell filed her reply to Plaintiff's

opposition (see Marissa Dovell’s reply letter brief attached as Exhibit C).

Oral argument on Marissa Dovell’s motion to intervene was held before the Honorable

Richard L. Hertzberg, J.S.C. on November 3, 2023 and, pursuant, thereto, an order granting

Marissa Dovell’s motion was entered on November 8, 2023 (see order attached as Exhibit D).
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AL ARt UMENT.

PLAINTIFF HAS FAILED TO MEET THE STANDARDS REQUIRED FOR A MOTION
FOR RECONSIDERATION TO BE GRANTED.

N.J. Ct. R. 4:49-2 requires that a motion for reconsideration of a court order, “state with

specificity the basis on which it is made, including a statement of the matters or controlling

decision that counsel believes the court has overlooked or as to which it has erred, and shall have

annexed thereto a copy of the judgment or final order sought to be reconsidered.” In Capital Fin.

Co. of Delaware Valley. Inc. v. Asterbadi, 398 N.J.Super. 299, 310 (App.Div.2008) the

Appellate Division held:

Motions for reconsideration are governed by Rule 4:49-2. Reconsideration is a
matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop
Strapping Corp. ,220 N.J. Super. 250, 257, 531 A.2d 1078 (App. Div. 1987), certif.
denied, 110 N.J. 196, 540 A.2d 189 (1988). "A litigant should not seek
reconsideration merely because of dissatisfaction with a decision of the [cJourt."
D’Atria v. D’Atria, 242 N.J. Super. 392, 401, 576 A.2d 957 (Ch, Div.1990).
"Reconsideration should be utilized only for those cases . . . that fall within that
narrow corridor in which either 1) the [c]ourt has expressed its decision based upon
a palpably incorrect or irrational basis, or 2) it is obvious that the [court either did
not consider, or failed to appreciate the significance of probative, competent
evidence." Ibid.

In D’Atria, the court held, “... a litigant must initially demonstrate that the Court acted in an

arbitrary, capricious, or unreasonable matter, before the Court should engage in the

reconsideration process.” D’Atria v. D’Atria, 242 N.J.Super. at 401-02. Further, “It is well-

settled that a motion for reconsideration is not warranted where the movant merely recapitulates

the arguments or cases previously analyzed by the court. DelVecchio v. Hemberger, 388

N.J.Super 179, 188-89, 906 A.2d 1117 (App.Div.2006).” Ghobrial v. EInashfan, 2018

N.J.Super. LEXIS 179.

In his motion to reconsider this Court’s decision to grant Marissa Dovell’s motion to

intervene in David Dovell’s amended counterclaim against Plaintiff to assert a loss of consortium

claim, Plaintiff satisfies none of the criteria set forth above. Plaintiff fails to state with
3
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specificity the basis upon which his motion is made but merely reiterates the arguments he made

in his opposition to Marissa Dovell’s motion to intervene. Plaintiff also fails to even allege, let

alone demonstrate, this Court’s decision was made on a palpably incorrect or irrational basis or

in an arbitrary, capricious or unreasonable manner. Conversely, as stated in Marissa Dovell’s

motion to intervene, N.J. Ct. R. 4:28-3(b) mandates that her claim for loss of consortium and her

husband David Dovell’s claims against Plaintiff be joined in a single action, while N.J. Ct. R.

4:7-6 permits parties other than those part of the original action to be made a party to a

counterclaim in accordance with the provisions of N.J. Ct. R. 4:28. Further, Marissa Dovell

clearly meets the criteria of 4:33-1 necessary to intervene in her husband’s counterclaim.

Finally, Plaintiff has not alleged this Court failed to consider or appreciate the significance of

probative, competent evidence. It is clear Plaintiff is seeking reconsideration for no reason other

than his dissatisfaction with this Court’ decision to grant Marissa Dovell’s motion to intervene.

Therefore, Plaintiffs motion must be denied.

CONCLUSION

For the foregoing reasons, Plaintiff Darrell Choates, Sr.’s motion for reconsideration of

this Court’s granting of Intervenor/Counterclaimant Marissa Dovell’s motion to intervene in

Defendant/Counterclaimant David Dovell’s amended counterclaim must be denied.

DeNITTIS OSEFCHEN PRINCE, P.C.
Attorneys for Defendant
nen
\

\
BY:
JOSEPH A. D’AVERSA
Dated: December 21, 2023
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Exhibit A
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DeNITTIS OSEFCHEN PRINCE, P.C
Stephen P. DeNittis, Esq. (031981997)
Joseph A. D’ Aversa, Esq. (046641995)
5 Greentree Centre
525 Rt. 73 North, Suite 410
Marlton, NJ 08053
Phone (856) 797-9951
Fax (856) 797-9978
Email jdaversa@denittislaw.com
Attorney for Defendant/Counterclaimant David Dovell and Intervenor/Counterclaimant
Marissa Dovell

DARRELL CHOATES, SR., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, BURLINGTON COUNTY

VS. DOCKET NO.: BUR-L-000679-23

DEBORAH HOSPITAL and DAVID A. Civil Action
DOVELL,
NOTICE OF MOTION TO INTERVENE
Defendant. AND JOIN IN COUNTERCLAIM

To: Clerk of Burlington County
Superior Court of New Jersey
Burlington County Courts Facility
49 Rancocas Rd.
Mt. Holly, NJ 08060

Darrell K. Choates, Sr.
122 Danton Ln.
Mullica Hill, NJ 08062

Lora M. Foley, Esq.
Parker McKay P.A.
9000 Midlantic Dr., Suite 300
P.O. Box 5054
Mt. Laurel, NJ 08054

R. James Kravitz, Esquire
Fox Rothschild LLP
997 Lenox Dr., Building 3
Lawrenceville, NJ 08648-2311
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Please take notice that, on August 4, 2023, or as soon thereafter as counsel may be heard,

the undersigned, attorney for Intervenor/Counterclaimant Marissa Dovell, will apply to the

above-named court at the Burlington County Courts Facility, 49 Rancocas Rd., Mt. Holly, New

Jersey for an order permitting her to intervene in the above-captioned matter and join in her

husband, David Dovell’s counterclaim to pursue a loss of consortium claim against Plaintiff for

the injuries sustained by David Dovell on November 18, 2021 in accordance with N.J. Ct. Rules

4:33-1, 4:7-6 and 4:28-3.

Intervenor/Counterclaimant Marissa Dovell will rely upon the attached Certification and

Brief of Counsel in support of her Motion.

The undersigned does not request oral argument at this time unless an opposition is filed.

These matters are not currently scheduled for a trial.

DeNITTIS OSEFCHEN PRINCE, P.C.
Attorneys for Defendant/Counterclaimant and
Intervenor/Counterclaimant

BY:
\C
JOSEPH A. D’AVERSA
Dated: July 19, 2023
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DARRELL CHOATES, SR., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, BURLINGTON COUNTY

vs. DOCKET NO.: BUR-L-000679-23

DEBORAH HOSPITAL and DAVID A. Civil Action
DOVELL,

Defendant. ORDER

THIS MATTER, being brought before the Court on the motion of Intervenor/

Counterclaimant Marissa Dovell by and through her counsel DeNittis Osefchen Prince, P.C. for

an Order allowing her to intervene in the above-captioned matter for the purpose of joining in

Defendant/Counterclaimant David Dovell’s counterclaim to pursue her loss of consortium claim

against Plaintiff arising from the injuries sustained by David Dovell on November 18, 2021, and

the Court having considered the matter and for good cause shown:

IT IS on this day of August, 2023,

ORDERED that Marissa Dovell is hereby permitted to intervene in the above-captioned

matter for the purpose of joining Defendant/Counterclaimant David Dovell’s counterclaim to
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assert a loss of consortium claim against Plaintiff for the injuries sustained by David Dovell on

November 18, 2021.

IT IS FURTHER ORDERED that this Order shall be served upon Darrell K. Choates,

Sr., Lora M. Foley, Esquire and R. James Kravitz, Esquire within seven (7) days of the date of

this Order or as otherwise set forth in this Order.

Hon. JSC
Opposed

Unopposed
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DeNITTIS OSEFCHEN PRINCE, P.C
Stephen P. DeNittis, Esq. (031981997)
Joseph A. D’ Aversa, Esq. (046641995)
5 Greentree Centre
§25 Rt. 73 North, Suite 410
Marlton, NJ 08053
Phone (856) 797-9951
Fax (856) 797-9978
Email jdaversa@denittislaw.com
Attorney for Defendant/Counterclaimant David Dovell and Intervenor/Counterclaimant
Marissa Dovell

DARRELL CHOATES, SR., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, BURLINGTON COUNTY

vs. DOCKET NO.: BUR-L-000679-23

DEBORAH HOSPITAL and DAVID A. Civil Action
DOVELL,
CERTIFICATION OF COUNSEL
Defendant. IN SUPPORT OF MOTION TO
INTERVENE AND JOIN IN
COUNTERCLAIM

I, Joseph A. D’ Aversa, Esquire, certify as follows:

1 1 am an attorney at law in the State of New Jersey and partner of DeNittis

Osefchen Prince, P.C., counsel for Defendant/Counterclaimant David Dovell (hereinafter

referred to as “David Dovell”) for his counterclaim against Plaintiff only and his wife,

Intervenor/Counterclaimant Marissa Dovell (hereinafter referred to as “Marissa Dovell”) in the

above-captioned matter. I am fully familiar with the facts of this action and make this

certification in support of Marissa Dovell’s motion to intervene in the above-captioned matter

and join in David Dovell’s counterclaim.
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2 On November 18, 2021, David Dovell, a registered nurse, was injured in the

course of his employment when Plaintiff grabbed his wrist causing him to twist away in order to

protect himself.

3 On April 1, 2023, Plaintiff filed a complaint against David Dovell and Defendant

Deborah Heart and Lung Center (improperly pled as Deborah Hospital) (hereinafter referred to

as “Deborah”) arising from the above November 18, 2021 incident wherein he alleged claims of

defamation, intentional infliction of emotional distress and medical malpractice and

discrimination against Plaintiff's mother Sandra Choates who was David Dovell’s patient on

November 18, 2021.

4. My firm was retained by David Dovell and Marissa Dovell to represent them for

the aforementioned injuries sustained by David Dovell on November 18, 2021.

5 At all times herein, David Dovell and Marissa Dovell were husband and wife.

6 Deborah filed an answer to Plaintiff's complaint on May 9, 2023.

7 On July 6, 2023, R. James Kravitz, Esquire from Fox Rothschild LLP filed an

answer and counterclaim on David Dovell’s behalf alleging negligence against Plaintiff for the

injuries David Dovell sustained on November 18, 2021.

8 On July 10, 2023, a substitution of attorney was filed in the above-captioned

matter whereby Fox Rothschild withdrew as counsel for David Dovell’s counterclaim only and

my firm assumed representation of David Dovell for his counterclaim only.

9 Marissa Dovell seeks to intervene in the above-captioned matter in order to join

David Dovell’s counterclaim and pursue a loss of consortium claim against Plaintiff relative to

the injuries David Dovell sustained on November 18, 2021.
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10. Marissa Dovell’s application is timely as Plaintiff's complaint was filed

approximately three-and-one half months ago, Deborah’s answer was filed ten (10) weeks ago,

David Dovell’s answer and counterclaim was filed thirteen (13) days ago, there have been no

substantive rulings, the discovery end date is currently more than a year from now, no trial date

has been set and Plaintiff has advised the Court that he intends to retain an attorney to represent

him in this matter. As such, the intervention into the within matter by Marissa Dovell will

certainly not unduly delay or prejudice the adjudication of the rights of Plaintiff or Deborah.

il. In addition to filing a timely application, Marissa Dovell otherwise satisfies the

criteria to intervene under N.J. Ct. R. 4-33-1.

12. Further, N.J. Ct. R. 4:28-3(b) states, “Mandatory Joinder of Spouses in Certain

Negligence Actions. All claims by spouses for physical injury and consortium losses resulting

from the same course of negligent conduct of others shall be joined in a single action and shall be

deemed to have been waived if not so joined unless the court, for good cause shown, otherwise

orders.”

13. Finally, N.J. Ct. R. 4:7-6 states, “persons other than those made parties to the original

action may be made parties to a counterclaim or cross-claim in accordance with the provisions of

R, 4:28 and 4:29.”

14, Based on the foregoing, it is respectfully requested that Marissa Dovell be

permitted to intervene in the above-captioned matter and join in David Dovell’s counterclaim.

15. Submitted with this motion as Exhibit A is proposed amended counterclaim

adding Marissa Dovell’s loss of consortium count thereto in accordance with N.J. Ct. R. 4:33-3

should she be permitted to intervene in the above-captioned matter.
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16. Because Plaintiff has yet to file an answer to David Dovell’s counterclaim, N.J.

Ct. R. 4:9-1 permits Marissa Dovell’s counterclaim to be amended without the need for a motion

I certify that the foregoing statements made by me are true, I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

DeNITTIS OSEFCHEN PRINCE, P.C.
Attorneys for Defendant/Counterclaimant and
Intervenor/Counterclaimant

BY:
JOSEPH A. D’AVERSA
Dated: July 19, 2023
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Exhibit A
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DeNITTIS OSEFCHEN PRINCE, P.C.
Stephen P. DeNittis, Esq. (031981997)
Joseph A. D’ Aversa, Esq. (046641995)
5 Greentree Centre
525 Rt. 73 North, Suite 410
Marlton, NJ 08053
Phone (856) 797-9951
Fax (856) 797-9978
Email jdaversa@denittislaw.com
Attorney for Defendant/Counterclaimant David Dovell and Intervenor/Counterclaimant
Marissa Dovell

DARRELL CHOATES, SR., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, BURLINGTON COUNTY

vs. DOCKET NO.: BUR-L-000679-23

DEBORAH HOSPITAL and DAVID A. Civil Action
DOVELL

Defendant, AMENDED COUNTERCLAIM

and

MARISSA DOVELL,

Intervenor/Counterclaimant.

Defendant/Counterclaimant David A. Dovell (hereinafter referred to as

“Defendant/Counterclaimant”), and his wife, Intervenor/Counterclaimant Marissa Dovell

(hereinafter referred to as “Intervenor/Counterclaimant”), residing at 124 Haines Rd. in the

Township of Mount Laurel, County of Burlington and State of New Jersey by way of

counterclaim against Plaintiff, Darrell Choates, Sr. (hereinafter referred to as “Plaintiff’), say:

THE PARTIES

1 Defendant/Counterclaimant is an individual residing at 124 Haines Rd., Mt.

Laurel, NJ 08054.
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2. Intervenor/Counterclaimant is an individual residing at 124 Haines Rd., Mt.

Laurel, NJ 08054 and the wife of Defendant/Counterclaimant.

3 Plaintiff is an individual residing at 122 Danton Lane, Mullica Hill, NJ 08062

whose mother, Sandra Choates was a patient at Defendant Deborah Heart and Lung Center

(hereinafter referred to as “Defendant, Deborah”).

4 At all times herein, Defendant/Counterclaimant, was a registered nurse employed

by Defendant Deborah and assigned to the care of Sandra Choates.

FACTS GIVING RISE TO THE COUNTERCLAIM

5 On or about November 18, 2021, Defendant/Counterclaimant was assigned to

Sandra Choates, a patient at Defendant Deborah in room number 3409B.

6 During Defendant/Counterclaimant’s shift, he was advised by another registered

nurse that Ms. Choates was agitated and asking for him by name.

7. When Defendant/Counterclaimant presented to room 3409B, he observed Ms.

Choates standing in the doorway with the intravenous pole and the intravenous tubing connected

to her PICC line wrapped several times around the pole.

8, Defendant/Counterclaimant asked Ms. Choates, categorized as a fall risk, if he

could help her back to her bed to discuss her concerns.

9 Ms. Choates refused Defendant/Counterclaimant’s offer, at which time

Defendant/Counterclaimant requested help from additional staff member.

10. Ms. Choates continued to stand in the doorway, began making some

incomprehensible statement, was clearly confused and stated to the effect that, “they are sending

me to a mental institution.”
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11. Defendant/Counterclaimant again tried to deescalate, reorient and comfort Ms.

Choates and again asked her to return to her bed or a chair for her safety.

12, When Ms. Choates refused to return to her bed or a chair, she was placed on one

to one supervision to prevent her from injuring herself.

13. Plaintiff then entered the unit where Ms. Choates’ room was located and moved to

assist Ms. Choates from the doorway of room 3409B to her bed.

14, Defendant/Counterclaimant held the room door open with his left hand while

Plaintiff and Ms. Choates moved into the room advising caution should be taken with the PICC

line.

15, Plaintiff then advised Defendant/Counterclaimant that he was going to close the

door and calm down Ms. Choates at which time Defendant/Counterclaimant advised Plaintiff

that, because of the tangled intravenous tube and Ms. Choates clinical status requiring one to one

supervision, a member of Defendant Deborah’s staff had to be in the room with Ms. Choates.

16. Plaintiff then grabbed Defendant/Counterclaimant by the left wrist and stated he

was closing the door or there was going to be a problem,

17. Defendant/Counterclaimant then reached across his body with his right arm in

order to break Plaintiff's grasp at which time Plaintiff yanked Defendant/Counterclaimant

towards him.

18. Concerned that Plaintiff was going to pull him in the room, Defendant/

Counterclaimant twisted hard to his right and immediately felt a pull in his back.

19. Defendant/Counterclaimant was able to free himself from Plaintiff's grasp and

move into the hallway at which time Plaintiff slammed the door of room 3409B shut.
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20. As a result of the actions of Plaintiff, Defendant/Counterclaim sustained severe,

debilitating and permanent injuries including, but not limited to, herniated discs and annular tears

in his lumbar spine and thoracic spine.

21. Also as a result of his actions, Plaintiff was charged with one count of N.J.S.A.

2C:12-1b(5)(j), aggravated assault upon a health care worker, and was indicted on such charge in

the Superior Court of New Jersey.

22. On October 11, 2022, Plaintiff entered a plea of guilty to N.J.S.A. 2C:33-4C,

harassment by engaging in alarming conduct, a petty disorderly persons offense.

FIRST COUNT

23. Defendant/Counterclaimant and Intervenor/Counterclaimant incorporate all

preceding paragraphs as though fully set forth at length herein.

24, Plaintiff was negligent in that by grabbing Defendant/Counterclaimant’s left wrist

and pulling Defendant/Counterclaimant towards him in what appears to be an attempt to shut the

door of room 3409B and Defendant/Counterclaimant responding by twisting away from Plaintiff,

Plaintiff caused Defendant/Counterclaimant to suffer severe injuries.

25. Plaintiff's actions were negligent and/or consisted of willful or wanton behavior,

as he knew or had reason to know of the circumstances that would cause a reasonable person to

realize this his actions were highly dangerous and could result in serious injury despite his

intention.

26. As a direct and proximate cause of Plaintiffs negligence and/or willful or wanton

conduct, Defendant/Counterclaimant has suffered severe injuries causing him permanent

disability, permanent significant disfigurement and permanent loss of bodily function; has

incurred and in the future will continue to incur medical expenses in the treatment of said
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injuries; has been disabled and in the future will be disabled and unable to perform his usual

occupations and duties; has been unable and may in the future be unable to pursue his normal

business and social activities thereby resulting in a loss of income; has been caused and will in

the future be caused great pain and suffering, all to his loss and damage.

WHEREFORE, Defendant/Counterclaimant and Intervenor/Counterclaimant demand

judgment against Plaintiff for damages, together with interest, attorneys’ fees and costs of suit.

SECOND COUNT.

27. Defendant/Counterclaimant and Intervenor/Counterclaimant incorporate all

preceding paragraphs as though fully set forth at length herein.

28. At all times relevant hereto, Intervenor/Counterclaimant is Defendant/

Counterclaimant’s wife and entitled to the care, services and consortium of her husband.

29. Asa further result of the Plaintiffs negligence and/or willful or wanton conduct,

Intervenor/Counterclaimant has been deprived of the care, services and consortium of her

husband.

WHEREFORE, Defendant/Counterclaimant and Intervenor/Counterclaimant

demand judgment against Plaintiff for damages, together with interest, attorneys’ fees and costs

of suit.

DeNITTIS OSEFCHEN PRINCE, P.C.
Attorneys for Defendant/Counterclaimant and
Intervenor/Counterclaimant
ey

BY
JOSEPH A. D’AVERSA
Dated: July 19, 2023
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DEMAND FOR TRIAL BY JURY CERTIFICATION
& DESIGNATION OF TRIAL COUNSEL

Plaintiffs hereby demand trial by jury of six on all issues.

Thereby certify, pursuant to R. 4:5-1, that to the best of my knowledge, information and

belief at this time the matter in controversy is not the subject of any other action pending in any

Court, nor of any pending arbitration proceeding, that no other action or arbitration is contemplated,

and further that there are no other parties who should be joined in this action.

Pursuant to R. 4:25-4, Stephen P. DeNittis, Esquire, is designated as trial counsel.

DeNITTIS OSEFCHEN PRINCE, P.C.
Attorneys for Defendant/Counterclaimant and
Intervenor/Counterclaimant

BY:
QO
JOSEPH A. D’AVERSA
Dated: July 19, 2023
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CERTIFICATION OF FILING AND SERVICE

I certify that this pleading has been filed and served as allowed by the New Jersey Court

Rules, by service of a copy on Lora M. Foley, Esquire, counsel for Defendant Deborah Heart and

Lung Center and R. James Kravitz, Esquire, counsel for David Dovell as Defendant in this action

via eCourts and email and to Plaintiff Darrell K Choates, Sr. via U.S. regular and certified

(R.R.R.) mail at the following address:

Darrell K. Choates, Sr., Pro Se
122 Danton Lane
Mullica Hill, NJ 08062

I certify that the foregoing statements made by me are true. | am aware that if any of the

foregoing statements made by me are willfully false, | am subject to punishment.

DeNITTIS OSEFCHEN PRINCE, P.C.
Attorneys for Defendant/Counterclaimant and
Intervenor/Counterclai mant
cy

BY:
\A
NX )
JOSEPH A. D’AVERSA
Dated: July 19, 2023
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AM_ P 22 of 46 Trans ID: LCV20233688658
BUR-L-000679-23 0//19/2023 2:50:2/ PM g1ote Irans 1D: LOV2U232124452

DARRELL CHOATES, SR., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, BURLINGTON COUNTY

VS. DOCKET NO.: BUR-L-000679-23

DEBORAH HOSPITAL and DAVID A. Civil Action
DOVELL,
Defendant. BRIEF IN SUPPORT OF MOTION
TO INTERVENE AND JOIN IN
COUNTERCLAIM

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On November 18, 2021, Defendant/Counterclaimant David Dovell (hereinafter referred

to as “David Dovell”), a registered nurse, was injured in the course of his employment when

Plaintiff grabbed his wrist causing him to twist away in order to protect himself. On April 1,

2023, Plaintiff filed a complaint against Defendant Deborah Heart and Lung Center (improperly

pled as Deborah Hospital) (hereinafter referred to as “Deborah”) and David Dovell arising from

the above November 18, 2021 incident wherein Plaintiff alleged claims of defamation,

intentional infliction of emotional distress and medical malpractice and discrimination against

Plaintiff's mother, Sandra Choates, who was David Dovell’s patient on November 18, 2021.

Deborah filed an answer to Plaintiff's complaint on May 9, 2023. R. James Kravitz,

Esquire from Fox Rothschild LLP filed an answer and counterclaim against Plaintiff on behalf of
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David Dovell on July 7, 2023 with the counterclaim alleging negligence against Plaintiff for the

injuries he sustained on November 18, 2021. On July 10, 2023, DeNittis Osefchen Prince

assumed representation of David Dovell for his counterclaim only with Fox Rothschild

remaining as his defense counsel for the claims made against him by Plaintiff.

David Dovell and Intervenor/Counterclaimant Marissa Dovell (hereinafter referred to as

“Marissa Dovell”) were married on July 2, 2021 and remain married at all times herein. As a

result of Plaintiff's carelessness, recklessness and negligence in causing David Dovell’s injuries,

Marissa Dovell has been deprived of the care, services and consortium of her husband and,

therefore, is seeking to intervene in this action in order to join in David Dovell’s counterclaim

and pursue a loss of consortium claim against Plaintiff.

LEGAL ARGUMENT

MARISSA DOVELL’S MOTION TO INTERVENE MUST BE GRANTED AS OF
RIGHT PURSUANT TO N.J. Ct. R. 4:33-1.

N.J. Ct. R. 4:33-1 entitled, “Intervention as of Right,” states:

Upon timely application anyone shall be permitted to intervene in an action if the
applicant claims an interest relating to the property or transaction which is the
subject of the action and is so situated that the disposition of the action may as a
practical matter impair or impede the ability to protect that interest, unless the
applicant’s interest is adequately represented by the existing parties.

To intervene under Rule 4:33-1, the movant must:

(1) claim “an interest relating to the property or transaction which is the subject of
the transaction,” (2) show [that the movant] is “so situated that the disposition of
the action may as a practical matter impair or impede its ability to protect its
interest,” (3) demonstrate that the “[movant’s] interest” is not “adequately
represented by existing parties,” and (4) make a “timely” application to intervene.

American Civil Liberties Union of New Jersey. Inc. v. County of Hudson, 352 N.J.Super. 44, 67

(App.Div.2002), citing Meehan v. K.D. partners. L.P., 317, N.J.Super. 563, 568 (App.Div.1998)

If the four (4) criteria are met, the Court has no choice but to grant the motion to intervene as the

tule is not discretionary. Id. at 568.
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Moreover, the test is whether the granting of the motion will unduly delay or prejudice

the right of the original parties. Atl. Emplrs. Ins. Co. v. Tots & Toddlers Pre-School Day Care

Ctr., 239 N.J.Super. 276, 280 (App.Div.1990). Finally, a motion for leave to intervene as of right

should be liberally construed (emphasis added). Id. The application of the above four (4)

criteria to the facts herein dictates that Marissa Dovell’s motion to intervene and amend the

counterclaim be granted.

Applying the first criteria, Marissa Dovell, without question, has an interest in the subject

matter of the within litigation. As David Dovell’s wife at all times herein, Marissa Dovell is

entitled to pursue a loss of consortium claim as a result of the injuries her husband sustained on

November 18, 2021 due to Plaintiff's negligence.

The second criteria that Marissa Dovell must demonstrate the disposition of the within

litigation may impair or impede her interest is similarly met. N.J. Ct. R. 4:28-3 entitled, “Claims

By or Against Spouse,” states:

(b) Mandatory Joinder of Spouses in Certain Negligence Actions. All claims by
spouses for physical injury and consortium losses resulting from the same course
of negligent conduct of others shall be joined in a single action and shall be deemed
to have been waived if not so joined unless the court, for good cause shown,
otherwise orders.

Furthermore, “A per quod claim is only maintainable by reason of a spouse’s personal injury. It

depends upon as is incidental to the personal injury action. (cite omitted). Our courts have

characterized it as a derivative claim, not a separate cause of action (cites omitted). Such claims

must be joined with the primary claim in a single action. R. 4:28-3. (cites omitted).” Tichenor v.

Santillo, 218 N.J.Super 165, 173 (App.Div.1987).

Marissa Dovell is seeking to intervene in the within matter and join in David Dovell’s

counterclaim for the sole purpose of pursuing a loss of consortium claim arising from the injuries

suffered by David Dovell on November 18, 2021 due to Plaintiff's negligence. Marissa Dovell’s
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failure to join in this action will likely preclude her from ever pursuing her loss of consortium

claim.

As to the third criteria, it is met for the reasons set forth under the second criteria.

Implicit in N.J. Ct. R. 4:28-3, is David Dovell’s inability to adequately represent Marissa

Dovell’s loss of consortium claim. This is evidenced by the fact that, under said Rule, if

Marissa’s fails to join his counterclaim and pursue a loss of consortium claim, she likely waives

such claim. If David Dovell was able to pursue Marissa Dovell’s claim on her behalf, joinder

under said Rule would not be mandatory.

Further, although a loss of consortium claim is derived from a spouse’s personal injury

claim and, therefore, there would be no independent claim for consortium if the personal injury

claim failed, it is distinct from the personal injury claim and the damage that may be awarded

pursuant to a, “per quod claim are clearly different from the damages which may be awarded to

the spouse suffering the direct injury as a result of the defendants’ alleged negligence.” Hauck v.

Danclar, 262 N.J.Super. 225, 227 (Law.Div.1993). Loss of a spouse’s services, society,

companionship and comfort is personal to the injured party’s spouse. Id.

The fourth criteria that the application to intervene in this action must be timely is also

met. The factors to consider when determining timeliness are whether the timing of the

application prejudices the other parties and the stage of the proceedings. Clark v. Brown, 101

N.J. Super. 404, 411 (Law.Div.1968). Whether or not substantive rulings have been made in the

matter to which movant wants to intervene is also considered in determining timeliness.

American Civil Liberties Union of New Jersey. Inc. v. County of Hudson, 352 N.J.Super. at 66.

Plaintiff's complaint was filed on April 1, 2023, Deborah’s answer was filed on May 9, 2023.

Although he was never served with the complaint, David Dovell’s answer and counterclaim were

filed on July 6, 2023, just two weeks ago. The discovery end date in this matter is currently
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August 1, 2024, more than a year from now. No substantive rulings were made to date. Plaintiff

recently advised this Court that he was seeking counsel in this action.

Moreover, Plaintiff cannot argue that that allowing Marissa Dovell’s application to

intervene and join in David Dovell’s counterclaim would unduly delay or prejudice him since he

has yet to answer to David Dovell’s counterclaim and pursuant to N.J. Ct. R. 4:9-1, he would be

afforded additional time to answer the counterclaim if needed. Therefore, because Marissa

Dovell has clearly demonstrated she has satisfied the four (4) criteria required for intervention as

of right under N.J. Ct. R. 4:33-1, her application to intervene in the within action and join in

David Dovell’s counterclaim must be granted.

I. MARISSA DOVELL MUST BE PERMITTED TO INTERVENE IN THE WITHIN
ACTION AND JOIN IN DAVID DOVELL’S COUNTERCLAIM BECAUSE N.J.
Ct. R. 4:28-3(b) MANDATES HER INCLUSION HEREIN.

As stated earlier, N.J. Ct. R. 4:28-3(b) states:

Moreover, N.J. Ct. R. 4:7-6 states, “persons other than those made parties to the original

action may be made parties to a counterclaim or cross-claim in accordance with the provisions of

R. 4:28 and 4:29.”

Finally, because Plaintiff has yet to file an answer to David Dovell’s counterclaim, said

counterclaim can be amended without a motion for leave to amend pursuant to N.J. Ct. R. 4:9-1.

Based on the foregoing, Marissa Dovell must be joined to this action and added to David

Dovell’s counterclaim in order to pursue her loss of consortium claim against Plaintiff in clearly

proper.
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CONCLUSION
For the foregoing reasons, Marissa Dovell’s motion for leave to intervene in the above-

captioned matter to join in David Dovell’s counterclaim against Plaintiff must be granted.

DeNITTIS OSEFCHEN PRINCE, P.C.
Attorneys for Defendant/Counterclaimant and
Intervenor/Counterclaimant

BY:
wy
JOSEPH A. D’AVERSA
Dated: July 19, 2023
BUR-L-000679-23 12/21/2023 11:18:30AM _ P 28 of 46 Trans ID: LCV20233688658
BUR-L-000679-23 07/19/2023 2:50:27 PM giof1 Trans ID: LCV20232124452

DARRELL CHOATES, SR., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, BURLINGTON COUNTY

vs. DOCKET NO.: BUR-L-000679-23

DEBORAH HOSPITAL and DAVID A. Civil Action

Case Info

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Richard L Hertzberg Track Judge’s New Case

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Document Filed Date

December 21, 2023

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April 01, 2023

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