C.B.R. v. HACKENSACK MERIDIAN HEALTH SOUTHERN OCEAN MEDICAL CENTER (L-1160-19, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1606-20

C.B.R. and R.E.R., JR., h/w,

Plaintiffs-Appellants,

v.

HACKENSACK MERIDIAN
HEALTH SOUTHERN OCEAN
MEDICAL CENTER, RWJ
BARNABAS HEALTH
PSYCHIATRIC EMERGENCY
SCREENING SERVICE AT
MONMOUTH MEDICAL
CENTER SOUTHERN CAMPUS, 1
ANNE MARIE SACCO,
individually, and ANITA
RAINFORD,2 individually,

Defendants-Respondents.
_____________________________

Argued April 26, 2022 – Decided October 18, 2022

Before Judges Currier and DeAlmeida.

1
Incorrectly pled as RJW Barnabas Health Psychiatric Emergency Screening
Service at Monmouth Medical Center Southern Campus.
2
Incorrectly pled as Anita Rainfold.
 On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1160-19.

Gary R. Katz argued the cause for appellant C.B.R.

Russell J. Malta argued the cause for respondents
Hackensack Meridian Health Southern Ocean Medical
Center and Anne Marie Sacco (Orlovsky Moody
Schaaff Conlon Bedell McGann & Gabrysiak,
attorneys; Erin A. Bedell and Russell J. Malta, of
counsel and on the brief).

John M. Hockin, Jr. argued the cause for respondents
RWJ Barnabas Health Psychiatric Emergency
Screening Service at Monmouth Medical Center
Southern Campus and Anita Rainford (Ronan, Tuzzio
& Giannone, attorneys; John M. Hockin, of counsel and
on the brief).

The opinion of the court was delivered by

DeALMEIDA, J.A.D.

Plaintiff C.B.R. (Carla)3 appeals from the January 22, 2021 order of the

Law Division dismissing her complaint with prejudice pursuant to R. 4:5-1(b)(2)

and the entire controversy doctrine. We reverse.

I.

Carla alleges the following facts, which we assume to be true for purposes

of this appeal. Carla is married to plaintiff R.E.R., Jr. (Roland). In May 2017,

3
We use initials and pseudonyms to identify the parties and witnesses to protect
the confidentiality of Carla's medical records.
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Roland was bitten by an unvaccinated cat belonging to their neighbor G.B.

(Gail). Just prior to the incident, Roland received a kidney transplant and was

on anti-rejection medication. As a result, it was not clear if he would tolerate

the anti-rabies treatment protocol for the cat bite.

An Ocean County Animal Control official ordered Gail to quarantine the

cat. She failed to comply. Gail instead intentionally, and on a regular basis, fed

the cat along the property line between her residence and Carla and Roland's

home in order to antagonize them.

On June 3, 2017, Carla and Roland arrived home to find an effigy of a cat

hanging on the mailbox of their neighbors R.C. (Robert) and J.C. (Jane). Carla

and Gail thereafter engaged in a heated argument about Gail's cat and the effigy.

During the argument, Carla told Gail that if anything happened to Roland as a

result of the cat bite, Gail "would be dead meat." Carla claims this statement

was not meant as a threat of physical harm, but as "an innocuous warning" to

Gail that she would be held responsible in a civil suit for any harm to Roland

from the cat bite.

Later that evening, Gail called the Little Egg Harbor Township Police

Department (LEHPD) to report that Carla had "threatened to kill her." A police

report was generated, but never acted on because Gail refused to sign it.

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 The following morning, Carla and Roland got into a verbal argument with

Robert and Jane, who called the LEHPD. Officer Christopher Costa responded

to the scene. Robert and Jane told Costa that during the argument Carla made

terroristic, suicidal, or homicidal threats. After viewing a video recording of the

altercation on a cellphone, Costa transported Carla to defendant Hackensack

Meridian Health Southern Ocean County Medical Center (Meridian Health) for

psychiatric emergency screening services and evaluation.

A police report indicates that "neighbors stated that [Carla] threatened to

shoot them or herself and has been acting in an erratic manner the past several

months." Although the report states that Carla was taken into custody for

harassment, no criminal charges were filed against her.

At the hospital, Carla was screened by defendant Anne Marie Sacco, an

employee of both Meridian Health and defendant RWJ Barnabas Health

Psychiatric Emergency Screening Service at Monmouth Medical Center

Southern Campus (RWJ). Sacco held herself out as a certified psychiatric

screener but did not hold that qualification.

Sacco spoke to Costa, who told her Carla had threatened Gail and told a

neighbor that if something happened to Roland, she would kill her neighbors or

herself. He also stated that Carla told police that if something happened to

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Roland "I'm going to shoot them myself" and told him she was depressed about

her son's death thirteen years prior, Roland's health, and her strained relationship

with her neighbors.

Sacco also telephoned Gail and Jane. Gail told Sacco that during the June

3, 2017 dispute Carla: (1) threatened to kill Gail and, if something happened to

Roland, to kill the entire neighborhood; and (2) said, "I want to die; I want to be

with my son; I don't care anymore." In addition, Gail said that Carla had been

aggressive and harassing toward her for the past several weeks, but had not

previously threatened to hurt anyone or herself.

Jane told Sacco that Carla "went off" on neighbors, saying "fuck you, fuck

you assholes," and said to Robert, "why don't you go blow your head off in the

woods." Jane confirmed that Carla said that "if anything happens to my

husband, I am going to kill you all" and opined that Carla "is very paranoid that

the neighborhood is talking about her" and "planning to kill" her. She stated

that the neighborhood was afraid of Carla.

On the basis of the information gathered by Sacco, Carla was held for

involuntary commitment for five and half hours until defendant Anita Rainford,

a certified psychiatric screener, came on duty. Rainford is employed by

Meridian Health and RWJ. Rainford did not conduct the psychiatric screening

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required by statutes and regulations and did not speak with Carla. She instead

transcribed Sacco's notes onto a document recommending involuntary

commitment that she then gave to a psychiatrist affiliated with Meridian Health.

Carla later spoke to the psychiatrist during a telepsychiatry evaluation,

telling him there was nothing wrong with her and that she had been transported

to the hospital as the result of a neighborhood dispute. The psychiatrist reviewed

the document prepared by Rainford, and told Carla that he did not believe her

version of events but "believed them," referring to Gail, Jane, and Costa.

Carla was involuntarily committed and transported to a behavioral health

center. She remained at the facility from June 4, 2017 to June 9, 2017.

On or about June 4, 2018, Carla and Roland filed a complaint in the Law

Division against Gail, Robert, Jane, LEHPD, and Costa. Carla alleged: (1)

defamation and abuse of process against Gail, Robert, and Jane for the false and

defamatory statements they made to Costa and Meridian Health personnel that

harmed Carla and caused her involuntary commitment; (2) civil conspiracy and

intentional infliction of emotional distress against Gail, Robert, Jane, and Costa

for false statements they made to Meridian Health personnel that harmed Carla

and caused her involuntary commitment; and (3) defamation and false

imprisonment against LEHPD and Costa for defamatory statements Costa made

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to Meridian Health personnel that harmed Carla and caused her involuntary

commitment. Roland alleged loss of consortium against all defendants. In the

complaint, Carla's counsel certified pursuant to R. 4:5-1(b)(2) that Carla was not

aware of any other party that should be joined to the action.

On December 21, 2018, the trial court dismissed the complaint against

LEHPD and Costa with prejudice because Carla and Roland had not filed a

timely notice of claim pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:8-1

to 8-11. The claims against the other defendants remain pending. 4

On May 13, 2019, Carla initiated the present action through the filing of

a complaint in the Law Division against Meridian Health, RWJ, Sacco, and

Rainford. In an amended complaint, Carla alleged: (1) negligence against Sacco

because she was not certified to screen Carla for involuntary commitment and

conducted the screening negligently, including by failing to accurately

document Costa's statements, and in a manner not in compliance with statutes

and regulations; (2) negligence against Rainford for recommending Carla's

4
Carla and Roland subsequently filed a complaint against LEHPD, Costa, and
another LEHPD officer in the United States District Court, alleging claims under
42 U.S.C.A. § 1983 relating to Carla's involuntary commitment. In the federal
complaint, Carla's counsel certified that the subject matter of the complaint was
not the subject of any other action pending in any court.

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involuntary commitment without screening her in compliance with statutes and

regulations and instead relying only on Sacco's notes; and (3) vicarious liability

against Meridian Health and RWJ.5 In the amended complaint, Carla's counsel

certified pursuant to R. 4:5-1(b)(2) that Carla was aware of no other party who

should be joined to the action and did not disclose the pending 2018 action.

RWJ and Rainford moved to dismiss the 2019 complaint pursuant to R.

4:5-1(b)(2) and the entire controversy doctrine. They argued that Carla should

have asserted her claims against them in the 2018 action because those claims

are based on the same transactional facts that underlie the claims she alleged in

the 2018 complaint against the other defendants. In addition, they asserted that

had Carla named them in the R. 4:5-1(b)(2) certification, they could have moved

to intervene in the 2018 action. They assert that because Costa was dismissed

from the 2018 action before they had a chance to allege cross-claims against, or

obtain discovery from, him their ability to defend against Carla's claims in the

2019 action was substantially prejudiced. Meridian Health and Sacco joined the

motion.

5
Roland alleged loss of consortium against all defendants in the second
complaint. He later agreed to the voluntary dismissal of his claims.
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 Carla opposed the motion, arguing that: (1) the two actions do not arise

from the same transactional facts; (2) she was not aware of her claims against

defendants until after the 2018 complaint had been filed; and (3) defendants

were not substantially prejudiced by her failure to name them in the 2018

certification.

The trial court granted the motion. In a written opinion, the court found:

(1) the 2019 action is a successive action to the 2018 action because Carla's

claims in both arise from the same transactional facts and "[w]ithout Costa's

involvement . . . there would be no claims against these . . . defendants. [Carla]

only arrived [at Meridian Health] because of Costa's conduct[;]" (2) Carla's

failure to identify defendants as parties who should be joined in the 2018 action

was inexcusable; and (3) Carla's omission substantially harmed defendants

because her claims against Costa had been dismissed with prejudice in the 2018

action. A January 22, 2021 order dismissed the complaint with prejudice. 6

This appeal follows. Carla argues the trial court erred with respect to each

of its findings and that dismissal of her complaint was not warranted.

II.

6
The body of the order is dated January 22, 2020. The parties agree , however,
that the trial court filed the order on January 22, 2021.
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 The entire controversy doctrine "seeks to impel litigants to consolidate

their claims arising from a single controversy whenever possible."

Dimitrakopoulos v. Borrus, Goldin, Vignuolo, Hyman and Stahl, P.C., 237 N.J.

91, 98 (2019) (quoting Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5 (1983)).

The doctrine is designed to promote fairness to the parties, judicial efficiency,

and complete and final dispositions by avoiding piecemeal litigation. DiTrolio

v. Antiles, 142 N.J. 253, 267 (1995). The underpinning of the doctrine "are the

twin goals of ensuring fairness to parties and achieving economy of judicial

resources." Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428,

443 (2011).

Because the doctrine is equitably rooted, its applicability is left to judicial

discretion based on the particular circumstances in a given case. Mystic Isle

Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 323 (1995). We review a trial

court's dismissal of a complaint based on the entire controversy doctrine under

an abuse of discretion standard. See Paradise Entrps., Ltd. v. Sapir, 356 N.J.

Super. 96, 102 (App. Div. 2002) (analogously applying an abuse of discretion

standard to the trial court's application of the equitable principles of forum non

conveniens).

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 R. 4:5-1(b)(2) "implement[s] the philosophy of the entire controversy

doctrine." Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:5-

1(b)(2)(2023). The rule provides, in relevant part:

Each party shall include with the first pleading a
certification as to whether the matter in controversy is
the subject of any other action pending in any court . . .
or whether any other action . . . is contemplated; and, if
so, the certification shall identify such actions and all
parties thereto. Further, each party shall disclose in the
certification the names of any non-party who should be
joined in the action pursuant to R. 4:28 or who is
subject to joinder pursuant to R. 4:29-1(b) because of
potential liability to any party on the basis of the same
transactional facts. Each party shall have a continuing
obligation during the course of the litigation to file and
serve on all other parties and with the court an amended
certification if there is a change in the facts stated in the
original certification. The court may require notice of
the action to be given to any non-party whose name is
disclosed in accordance with this rule or may compel
joinder pursuant to R. 4:29-1(b).

[R. 4:5-1(b)(2).]

The Rule authorizes sanctions for a failure to comply with its certification

requirement:

If a party fails to comply with its obligations under this
rule, the court may impose an appropriate sanction
including dismissal of a successive action against a
party whose existence was not disclosed or the
imposition on the noncomplying party of litigation
expenses that could have been avoided by compliance
with this rule. A successive action shall not, however,

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 be dismissed for failure of compliance with this rule
unless the failure of compliance was inexcusable and
the right of the undisclosed party to defend the
successive action has been substantially prejudiced by
not having been identified in the prior action.

[Ibid.]

"The intent of this rule is to provide notice to all parties in each action that there

are other actions pending involving the same controversy." Pressler & Verniero,

Current N.J. Court Rules, cmt. 2 on R. 4:5-1(b)(2)(2023).

Whether a violation of R. 4:5-1(b)(2) warrants barring a successive claim

requires a four-step, fact-sensitive inquiry. 700 Highway 33 LLC v. Pollio, 421

N.J. Super. 231, 236 (App. Div. 2011). The court "must first determine from

the competent evidence before it whether a [R.] 4:5-1(b)(2) disclosure should

have been made in a prior action because a non-party was subject to joinder

pursuant to [R.] 4:28 or [R.] 4:29-1(b)." Ibid. If so, R. 4:5-1(b)(2) allows a

court to consider dismissal if the actions are successive, the party's failure to

disclose was inexcusable, and the undisclosed party has been substantially

prejudiced as a result of the non-disclosure. Ibid. "Dismissal is a sanction of

last resort." Id. at 237. The party asserting the entire controversy doctrine as a

defense bears "the burden of establishing both inexcusable conduct and

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substantial prejudice." Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J.

Super. 229, 242 (App. Div. 2002). We address these factors in turn.

(1) Whether defendants were subject to joinder in the 2018 action

pursuant to R. 4:28 or R. 4:29-1(b).

The trial court did not engage in an explicit analysis of this factor. Our

review of the record, however, reveals sufficient support for the conclusion that

defendants were subject to joinder in the 2018 action.

According to R. 4:28-1(a), a person shall be

joined as a party to the action if (1) in the person's
absence complete relief cannot be accorded among
those already parties, or (2) the person claims an
interest in the subject of the action and is so situated
that the disposition of the action in the person's absence
may either (i) as a practical matter impair or impede the
person's ability to protect that interest or (ii) leave any
of the persons already parties subject to a substantial
risk of incurring double, multiple, or other inconsistent
obligations by reason of the claimed interest.

R. 4:29-1(a) provides that all persons may

be joined as defendants jointly, severally, in the
alternative, or otherwise, if the right to relief asserted
by the plaintiffs or against the defendants arises out of
or in respect of the same transaction, occurrence, or
series of transactions or occurrences and involves any
question of law or fact common to all of them.

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For purposes of the entire controversy doctrine, it is "the factual circumstances

giving rise to the controversy itself, rather than the commonality of claims,

issues or parties, that triggers the requirement of joinder to create a cohesive and

complete litigation." Mystic Isle, 142 N.J. at 323.

It is evident that defendants were subject to joinder in the 2018 action

under either R. 4:28-1(a) or R. 4:29-1(a) because Carla's claims against them

arise from the same factual circumstances as the claims she asserted in the 2018

complaint. The factual predicate of Carla's claims against Gail, Robert, Jane,

LEHPD, and Costa are the statements those parties made to Costa and hospital

personnel resulting in her involuntary commitment. Carla's claims against

defendants, sounding in negligence and vicarious liability, are also based, in

part, on statements made to Sacco by Gail, Jane, and Costa during the evaluation

process resulting in Carla's involuntary commitment.

(2) Whether the 2019 action is a successive action to the 2018 action.

A successive action is filed "following the suit in which the [R.] 4:5-

1(b)(2) violation occurred[,]" Alpha Beauty Distribs., Inc. v. Winn-Dixie Stores,

Inc., 425 N.J. Super. 94, 101 (App. Div. 2012), and raises "distinct claims [that]

are aspects of a single larger controversy because they arise from interrelated

facts." Dimitrakopoulos, 237 N.J. at 109 (quoting DiTrolio, 142 N.J. at 271).

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 We agree with the trial court's conclusion that the 2019 action is a

successive action to the 2018 action. The 2019 action was instituted following

the filing of the 2018 action. In addition, as we discussed at length above, the

claims Carla raises against the defendants in the 2018 action and the defendants

in the 2019 action are components of a single larger controversy centered on

Carla's involuntary commitment.

(3) Whether Carla's failure to name defendants as parties who should

be joined in the 2018 action was excusable.

We agree with the trial court's conclusion that Carla's failure to name

defendants in the 2018 certification was inexcusable. Carla claims she was

unaware of defendants' negligence until almost a year after she filed the 2018

action. However, she offered no explanation for not amending the certification

when she became aware of her negligence claims against defendants. R. 4:5-

1(b)(2) imposes a continuing obligation on Carla to amend the certification.

(4) Whether defendants were substantially prejudiced by Carla's failure

to name them in the 2018 certification.

"Substantial prejudice in this context means substantial prejudice in

maintaining one's defense." Mitchell v. Charles P. Procini, D.D.S., P.A., 331

N.J. Super. 445, 454 (App. Div. 2000). Typically, this requirement is met where

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there has been a loss of witnesses, evidence, and the passage of time such that

memories have faded. Ibid. An undisclosed party must proffer "specific

difficulties in mounting a defense" to claims that are "significantly different

from that normally encountered." Id. at 456. Ultimately, "[t]he phrase

'substantial prejudice' is used in [R.] 4:5-1(b)(2) as a limitation on the court's

exercise of the power of dismissal as a sanction" and is therefore, "consistent

with our general preference for addressing disputes on the merits and reserving

dismissal for matters in which those lesser sanctions are inadequate." Kent

Motor Cars, Inc., 207 N.J. at 447.

Our review of the record reveals insufficient support for the trial court's

conclusion that defendants suffered substantial prejudice warranting dismissal

of the complaint. Defendants do not identify any obstacle to obtaining the

discovery they may need to defend against Carla's negligence. Most of those

claims appear to have little to do with Costa. To the extent that Costa was

involved in the involuntary commitment process, he is available to be deposed

and to serve as a witness for trial. Nor do defendants argue that because of

Carla's failure to name them in the 2018 certification evidence useful to their

defense has been lost or the memory of witnesses faded.

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 Instead, defendants' primary argument is that Costa, having been

dismissed from the 2018 action, will not be available to defendants for purposes

of apportionment of damages in the event they and he are found to have

negligently harmed Carla. Costa, however, was dismissed from the 2018 action

because Carla had not filed a timely notice of tort claim. That outcome would

have been the same had defendants been parties to that action. In addition,

Carla's failure to file a timely notice of tort claim precludes defendants'

contribution claim against Costa in any event. See Jones v. Morey's Pier, Inc.,

230 N.J. 142, 148-49 (2017). The trial court, however, could in the 2019 action

mold any judgment entered in Carla's favor pursuant to N.J.S.A. 2A:15-5.2(d) if

defendants are found liable and they prove Costa's negligence was a contributing

cause of Carla's damages. Id. at 149. Defendants, therefore, face no greater

liability as a result of Carla's failure to name them in the 2018 certification.

In addition, any threat of inconsistent findings with respect to the truth

and accuracy of the statements that resulted in Carla's involuntary commitment

could be ameliorated through consolidation of Carla's pending claims in the

2018 and 2019 actions. We note, as well, the trial court's failure to consider

sanctions less drastic than dismissal of the complaint

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 For these reasons, we conclude that the trial court mistakenly exercised

its discretion when it dismissed the complaint.

The January 22, 2021 order is reversed, the complaint is reinstated, and

the matter is remanded for further proceedings consistent with this opinion. On

remand, the trial court shall consider consolidation of the 2018 and 2019 actions

and whether sanctions against Carla less severe than dismissal of the complaint

are warranted. We do not retain jurisdiction.

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