Before Judges Stern, Braithwaite *fn1 and Wecker.
The opinion of the court was delivered by: Stern, P.j.a.d.
 Argued October 15, 1998
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Plaintiff appeals from a judgment entered on July 16, 1997 dismissing her complaint with prejudice on statute of limitations grounds because the action "was filed more than two years after the plaintiff knew of a potential cause of action." The complaint was filed on April 29, 1992.
Plaintiff contends that defendant waived the statute of limitations defense by failing to assert it before the day of trial, that the Judge was wrong on the merits, and that even if the Judge was correct with respect to barring her claim for orthodontic malpractice, there was never any statute of limitations defense asserted with respect to the root canal and bridge work performed by defendant.
We initially reject plaintiff's claim that the statute of limitations defense was waived because it was not raised until immediately before trial. The defense was expressly noted as a separate defense in the answer, answers to interrogatories, and in correspondence between defense counsel and plaintiff's former attorney. *fn2 In any event, as we will further develop, the merits of the statute of limitations defense in a case such as this, involving the discovery rule, depend upon the unique facts of the case regarding when the cause of action "accrued." The factual issue can generally be resolved only after discovery is completed. For that reason, the statute of limitations, at least if asserted as an affirmative defense, may be addressed in a "discovery rule" case just before trial "at a preliminary hearing and out of the presence of the jury." See Lopez v. Swyer, 62 N.J. 267, 275 (1973). Cf. Williams v. Bell Tel. Lab. Inc., 132 N.J. 109, 118-20 (1993); Fees v. Trow, 105 N.J. 330, 335 (1987); O'Connor v. Altus, 67 N.J. 106, 115-16 (1975) (not involving the "discovery rule"). The preferable practice, however, would be for a defendant to file a timely notice pursuant to R. 4:46, thereby allowing the plaintiff and the court to consider whether and when a Lopez hearing would be appropriate.
After a Lopez hearing, the trial Judge concluded "that the statute of limitations bars this action because the complaint was filed more than two years after the plaintiff knew of a potential cause of action."
Only plaintiff testified at the hearing. According to plaintiff, she first went to defendant on January 25, 1988 "experiencing pain in the upper left side of her mouth." Defendant "removed her bridge and inserted a new bridge." The next month defendant "performed root canal work on a tooth (#15) associated with the bridge," but could not find the "distal buccal canal," and about five months later, "permanently recemented [her] bridge." Plaintiff was not referred to a specialist.
In December 1988, as a result of plaintiff's concern "that her front tooth was starting to overlap the tooth next to it," defendant commenced orthodontic treatment on plaintiff. "Plaintiff complained to Dr. Mully throughout her treatment of problems including pain in her jaw and the opening of her bite, and protruding cuspids, etc." She asserts, however, that while "she began to believe that Dr. Mully may have done something wrong or made a mistake in view of what was happening," "[i]t wasn't until July-August 1990 when plaintiff finally learned that Dr. Mully indeed had maltreated her."
In June 1989, plaintiff consulted Dr. Langer because she "thought [Dr. Mully] might have made a mistake and [she] wanted to see if another orthodontist thought he was making a mistake." She wanted a second opinion because defendant insisted her teeth would eventually "settle back into place" and she "had doubts" as to what defendant was saying. She even thought he "was doing something wrong" in the treatment. According to plaintiff, Dr. Langer asked whether her visit related to litigation, and despite her negative response, he said "he did not want to get involved." According to plaintiff, Dr. Langer advised plaintiff "to go back to Dr. Mully and to let him complete his job."
Plaintiff subsequently visited a Dr. Halpern who gave her similar advice. Dr. Halpern, however, told plaintiff "he didn't handle TMJ problems" and suggested she might want to see a TMJ-orthodontic specialist. Plaintiff thereafter consulted a Dr. Rosenbloom, whom she saw because she "still felt that Dr. Mully did something wrong." In her depositions, plaintiff admitted she believed defendant was "getting in deeper and deeper and he really didn't know himself what was happening." *fn3 In order to avoid producing her dental records, which would have required telling Dr. Rosenbloom she was seeking another opinion, plaintiff told Dr. Rosenbloom that her dentist had died. Dr. Rosenbloom advised plaintiff that he could not "help [her] out" without seeing "all the molds, x-rays [and dental] records." It is not clear from the record when plaintiff visited Dr. Halpern or Dr. Rosenbloom.
In July 1990, plaintiff visited Dr. Fisher for another "opinion," *fn4 because she still felt defendant "had done something wrong." Plaintiff admittedly lied to Dr. Fisher about the name of her dentist and additionally stated that he had been deceased for five years, so that she would not have to provide Dr. Fisher with her dental records. Plaintiff contends that it was not until meeting with Dr. Fisher that she "finally learned that Dr. Mully indeed had maltreated her." She further asserts that it was not until March of 1992, when she consulted an expert for purposes of litigation, that ...