On certification to the Superior Court, Appellate Division.
In this matter, the Court considers whether the remedies of waiver, equitable estoppel or laches barred defendant's right to bring a dismissal motion, pursuant the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, fourteen months after the deadline for service of the affidavit had passed and after the merits of plaintiffs' claims had been established.
After a series of surgeries and hospitalizations between 1997 and 1999, plaintiffs' counsel filed this medical malpractice action in July 1999, alleging negligence by two doctors and the hospital. Defendants filed answers in which each demanded service of an affidavit of merit. One of the doctors and the hospital moved in December 1999 or January 2000 to dismiss the complaint for failure to serve an affidavit. The court granted the doctor's motion and denied the hospital's motion because it had failed to supply requested medical records. The third defendant, Dr. Smeal (defendant), did not file a motion despite having not been served with an affidavit. Instead, defendant continued with the discovery process, including receiving plaintiffs' expert report detailing how defendant's conduct deviated from the standard of care, deposing plaintiffs, and requiring the plaintiff to undergo a physical examination by defendant's expert.
On March 2, 2001, fourteen month after plaintiffs' deadline for filing an affidavit of merit and four months after the deadline for filing dispositive motions, defendant moved to dismiss the complaint based on plaintiffs' failure to comply with the Affidavit of Merit statute. The trial court granted defendant's motion and the Appellate Division affirmed. This Court granted plaintiffs' petition for certification on the limited issue of whether the doctrines of waiver, estoppel or laches barred defendant's belated motion to dismiss the complaint.
HELD: The doctrines of equitable estoppel and laches bar defendant's late motion to dismiss for plaintiffs' failure to timely file an affidavit of merit.
1. The essential goal of the Affidavit of Merit statute is to put to rest unmeritorious and frivolous malpractice lawsuits at an early stage of litigation while allowing worthy claims to proceed through discovery and, if warranted, to trial. To that end, a plaintiff must file an affidavit of merit within 120 days of the filing of the answer or face dismissal of the complaint with prejudice absent some equitable justification. The salutary benefit to both sides in eliminating a non-genuine malpractice claim early on is the conservation of resources. Plaintiffs and defendants should not be dragged through an expensive and burdensome discovery process if the plaintiffs cannot produce an expert to support their claims. It is unlikely that the Legislature, in enacting the statute, contemplated that a defendant would run a plaintiff through the discovery process, learn that the complaint was supported by competent evidence and an expert's report, and only then move to dismiss on the technical ground that the plaintiff failed to clothe the expert opinion in the form of an affidavit. (Pp. 6 - 7).
2. In respect of the doctrine of waiver, plaintiffs contend that defendant waived his right to enforcement of the statute by his inordinate delay in filing the dismissal motion. Waiver is the voluntary and intentional relinquishment of a known right. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it either by design or indifference. Although defense counsel clearly was aware of his client's right to file the motion, the Affidavit of Merit statute places no obligation on a defendant to file a dismissal motion within a set timeframe. The Court cannot find on this record that defendant intentionally elected to forgo his right to seek the remedy of dismissal by his tardy filing of the motion, therefore the doctrine of waiver does not apply to the circumstances of this case. (Pp. 8 - 9).
3. The equitable doctrine of estoppel is founded on the fundamental duty of fair dealing. The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party relied to his detriment. To establish estoppel, plaintiffs must show that defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment. Here, defendant did not act on plaintiffs' failure to file an affidavit of merit until more than fourteen months after the filing deadline, despite knowing that his co-defendant had filed a timely motion and was granted relief. Defendant's failure to file a dismissal motion induced plaintiffs to believe that the case was on course. Certainly, plaintiffs would not have engaged in extensive discovery, incurring significant expert and deposition costs, if they knew their cause of action was doomed due to their earlier failure to serve a timely affidavit. It makes no difference that defendant did not intend to mislead or cause plaintiffs to continue with discovery. Because of defendant's belated filing of the motion, and plaintiffs' reliance on his failure to do so timely, defendant is equitably estopped from gaining a dismissal. To rule otherwise would work an injustice by ridding the system not of an unmeritorious claim, but a meritorious one. (Pp. 9 - 13 ).
4 The doctrine of laches denies a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party. Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in a proper forum and the prejudiced party acted in good faith believing that the right had been abandoned. The key factors in determining whether to apply the doctrine are the length of the delay, the reasons for the delay, and the changing circumstances of either or both parties during the delay. Here, defendant slept on his right and plaintiffs were harmed by the delay. Defendant has offered no plausible justification for the unreasonable delay in filing his motion. Defendant, by his inexcusable delay, caused plaintiffs to believe to their detriment that he had abandoned the dismissal motion. Plaintiffs were harmed by the significant costs and emotional burden borne during the fourteen months of discovery. By application of the doctrine of laches, defendant forfeited his right to pursue the motion. (Pp. 13 - 14 ).
5. The application of these equitable remedies is consistent with the Legislature's intent in enacting the statute. The stated intent of the statute was to screen out meritless malpractice lawsuits at an early stage in the litigation. With defendant's possession of full discovery and an expert's report establishing the merits of plaintiffs' action, an affidavit of merit would have added nothing to defendant's knowledge of the case, therefore, defendant has no claim of prejudice. The Legislature could not have intended to allow an otherwise meritorious claim to proceed indefinitely at great expense to both parties, only to have defendant obtain a dismissal on procedural grounds that should have been asserted much earlier in the process. The Court refers to its requirement of an accelerated case management conference for malpractice actions, as discussed in Ferreira v. Rancocas Orthopedic Associates, ___ N.J. ___ (2003), decided also this day, in determining that the circumstances of this case are unlikely to recur. (Pp. 14 - 16 ).
The judgment of the Appellate Division is REVERSED and the matter is REMANDED.
JUSTICE LONG, concurring in part and dissenting in part, joined by JUSTICE ZAZZALI and JUDGE PRESSLER, concurs in the majority's decision to reinstate the complaint, but disagrees with the proposed accelerated case management methodology.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE LONG filed a separate opinion, concurring in part and dissenting in part, in which JUSTICE ZAZZALI and JUDGE PRESSLER, ...