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Petition of Hall By and Through Hall

February 5, 1997


On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Stein, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi and Coleman join in Justice STEIN's opinion.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In re: Petition of Woodrow Hall (A-17-96)

Argued October 21, 1996 -- Decided February 5, 1997

STEIN, J., writing for a unanimous Court.

The issue addressed by the Court is whether pre-suit depositions may be authorized pursuant to the Rules Governing Civil Practice to aid plaintiffs contemplating filing malpractice actions in complying with the requirements of the recently-enacted Affidavit of Merit Statute (AMS).

The AMS applies to actions for damages for personal injury, wrongful death or property damage resulting from malpractice or negligence by a licensed person engaged in his or her profession or occupation. The AMS requires that a plaintiff file, within 60 days of each defendant's answer to a malpractice complaint, an affidavit by a qualified expert stating that there exists a reasonable probability that the service performed by the professional who is the subject of a complaint deviated from accepted professional or occupational standards or treatment practices.

The alleged malpractice is based on the following facts. On August 15, 1995, Woodrow Hall was admitted to the emergency room at Burdette Tomlin Memorial Hospital (BTMH) with a lacerated jugular vein on the left side of his neck. During surgery to repair the laceration, Hall suffered cardiac arrest and was without oxygen for more than ten minutes, resulting in permanent and severe brain damage.

Shortly after surgery, Hall's surgeon informed members of Hall's family that he believed that the cardiac arrest during surgery was caused by a faulty endotracheal tube that was inserted into Hall during anesthesia. Based on that information, Hall's family retained an attorney to determine whether Hall's permanent brain damage was caused by the negligence of any of the health care professionals who participated in the surgical procedure.

Sandra Hall, guardian ad litem of Woodrow Hall, petitioned the trial court, pursuant to Rule 4:11-1, for permission to take pre-suit depositions of various health care professionals. The petition asserted that the depositions were necessary in order to comply with the provisions of the AMS and to ascertain why Hall suffered cardiac arrest during surgery. The trial court granted the petition and ordered that depositions be conducted within twenty days. The prospective deponents appealed to the Appellate Division, which denied a stay of the depositions pending appeal. The Supreme Court, however, granted a stay.

The Appellate Division granted Woodrow Hall's motion for summary Disposition, affirming the order of the trial court granting pre-suit depositions. The Supreme Court granted the petition for certification filed by the prospective deponents, and again stayed the depositions.

Subsequently, in February 1996, suit was instituted on behalf of Woodrow Hall and his dependents (plaintiffs) against BTMH and various health care providers. In the course of that litigation, plaintiffs deposed the prospective defendants that previously had been ordered to give their depositions before suit was filed. In addition, after several defendants filed answers to the complaint, counsel for Woodrow Hall sought an order declaring that the requirement to file an affidavit of merit was waived because of defendants' failure adequately to provide requested medical records, or in the alternative, extending the time to file the affidavits. The trial court declined to excuse filing of the affidavits, but did extend the time for filing. The Appellate Division denied leave to appeal. The Supreme Court stayed the order of the Law Division requiring filing of the affidavits of merit in the pending action.

The underlying legal issue on appeal has been rendered moot by the filing of the complaint. Nonetheless, with the concurrence of the parties, the Court chooses to address the issue because it is one of substantial importance, is likely to recur, and is capable of evading review.


A plaintiff's possible inability to plead a cause of action, or to comply with the mandate of an Affidavit of Merit Statute, does not constitute an adequate showing to justify the grant of a petition for pre-suit discovery pursuant to Rule 4:11-1.

1. Rule 4:11-1 is substantially identical to, and was based on, Rule 27(a) of the Federal Rules of Civil Procedure (FRCP). Thus, reference to federal decisions addressing the scope and application of FRCP 27(a) informs this courts understanding of the intended use of Rule 4:11-1. (pp. 7-9)

2. Federal court decisions applying FRCP 27(a) uniformly hold that the rule's authorization of pre-suit depositions was not designed to help plaintiffs in framing a cause of action, but was intended for cases in which there exists a genuine risk that testimony will be lost or evidence destroyed before suit can be filed and in which an obstacle beyond the litigant's control prevents suit from being filed immediately. The only other reported decision in this State to consider the appropriate use of Rule 4:11-1 applied the rule in a manner consistent with the analogous federal and out-of-state decisions. (pp. 9-16)

3. The AMS provides that, for good cause, a court may grant one extension of time to file an affidavit of merit, not to exceed sixty days. Failure to file an affidavit of merit concerning a specific defendant constitutes a failure to state a cause of action against that defendant. No affidavit of merit is required to be filed if the plaintiff files a sworn statement certifying that, by certified mail or personal service, the plaintiff requested the defendant in question to deliver appropriate medical records or information and that the defendant has failed to deliver the requested records or information beyond 45 days since service of the request. The legislative history of the statute demonstrates that its purpose was to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, thereby facilitating the early and easy identification of meritless lawsuits. (pp. 15-17)

4. Federal cases applying FRCP 27(a) and analogous state cases demonstrate that Rule 4:11-1 was not intended to authorize pre-suit discovery for the sole purpose of assisting a prospective plaintiff in acquiring facts necessary to frame a complaint. Thus, the trial court's application of Rule 4:11-1 in order to facilitate plaintiffs' compliance with the AMS was inconsistent with the prevailing understanding of the rule's intended use. (pp. 17-18)

5. Despite the historical understanding of the appropriate use of FRCP 27(a) and its state counterparts, and although it is assumed that such pre-suit discovery will be essential only in exceptional circumstances, the Rules Governing Civil Practice should be sufficiently flexible to avoid the risk of the dismissal of meritorious claims based on noncompliance with the statute. Thus, the Civil Practice Committee is asked promptly to evaluate and determine whether, and if so under what circumstances and conditions, trial courts should be authorized to permit pre-suit discovery in order to prevent unjustified dismissals of meritorious malpractice suits. Pending receipt and implementation of the Committee's recommendations, trial courts are authorized, in exceptional circumstances, to grant petitions for pre-suit discovery in malpractice cases if in their discretion they are persuaded that such relief is essential in order to permit the plaintiff to comply with the provisions of the AMS. Such orders should be issued pursuant to Rules 4:11-1 and 1:1-2. (pp. 18-21)

The legal issue that was subject of the Court's grant of certification having been rendered moot, the judgment of the Appellate Division is neither affirmed nor reversed. The order staying the Law Division's order requiring filing of the affidavits of merit in the pending action is VACATED.


The opinion of the Court was ...

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