The opinion of the court was delivered by: JOSEPH IRENAS, District Judge
Currently before this Court is Plaintiff's Motion for
Reargument of the Court's Order dated October 12,*fn1
2004.*fn2 For the reasons set forth below, the Court will
grant Plaintiff's motion, vacate the Order of October 12, 2004,
and deny Defendants' motion to dismiss Plaintiff's state law
Plaintiff Debra Bryan ("Plaintiff" or "Bryan") filed a
complaint (the "Complaint") against Prison Health Services
("PHS")*fn3 and Dr. Amira Shah ("Shah"),*fn4 in state
court on December 18, 2003. The case was removed to federal court
on February 13, 2004. Plaintiff amended her complaint (the
"Amended Complaint") on September 28, 2004, to include Steinenger
Behavioral Care Services ("SBCS") as an additional
The Complaint alleges violations of both state and federal
law.*fn6 On October 12, 2004, this Court issued an Opinion
and Order in which we dismissed, with prejudice, Plaintiff's
state law claims against Defendants Shah and PHS*fn7 for
failure to provide an Affidavit of Merit in conformity with
N.J.S.A. 2A:53A-27 (the "Statute"). Bryan v. Shah, No.
04-0629, 2004 WL 2326383 (D.N.J. Oct. 12, 2004).
The Statute mandates that a plaintiff serve an Affidavit of
Merit ("Affidavit") on the defendant(s) in all cases alleging
medical malpractice under state law. Service must be made within
a period of at most 120 days after the filing of the Answer.
N.J.S.A. 2A:53A-27; see also Burns v. Belafsky, 166 N.J. 466,
473-77, 766 A.2d 1095, 1099-1101 (2001) (holding that while the
Statute provides an initial 60 day window, one 60 day extension
may be granted by a court for good cause shown and the plaintiff
may apply for the extension even after the initial 60 days have
run, but before the full 120 days has expired).
If a plaintiff fails to file the Affidavit in the appropriate
manner, the defendant may move to dismiss the cause of action. If
the motion is granted, the state claims should be dismissed with
prejudice. Tischler v. Watts, 177 N.J. 243, 246, 827 A.2d 1036,
1038 (2003) (reaffirming that non-compliance with the Statute
shall result in a dismissal with prejudice); see also N.J.S.A.
2A:53A-29 (failure to comply with the Statute is deemed a failure
to state a cause of action).
Defendants PHS and Shah filed their Answer to the Complaint on
February 26, 2004. Defendants PHS and Shah moved to dismiss the
state law claims after the 120 days had run. In her Response,
Plaintiff conceded that the Affidavit was filed late, but argued
that her cause of action should not be dismissed with prejudice
because (1) she had substantially complied with the Statute;
and/or (2) some other equitable doctrine applied. This Court
found that Plaintiff did not substantially comply with the
Statute. Furthermore, this Court held that the doctrines of
estoppel, laches and waiver did not apply. Accordingly, we
dismissed the state law claims against PHS and Shah with
In reaching that decision, we did not consider the common
knowledge exception, as it was not raised in the parties' papers.
After receiving Plaintiff's Notice of Motion for Reargument and
Defendants' Opposition, this Court, by letter dated November 4,
2004, requested full briefing on the applicability of the common
knowledge exception. At this time, Plaintiff requests that this
Court withdraw its dismissal of her state claims, because, she
contends, her case falls under the common knowledge exception.
Under the common knowledge exception, if the professional
negligence would be obvious to a layperson, the Statute does not
require an Affidavit. Risko v. Ciocca, 356 N.J. Super. 406,
409, 812 A.2d 1138, 1140 (App.Div. 2003). The New Jersey courts
have concluded that the Legislature did not intend for the
Statute to apply in cases where "jurors, using ordinary
understanding and experience and without the assistance of an
expert, can determine whether a defendant has been negligent."
Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001)
(case in which the defendant dentist allegedly pulled the wrong
While such an exception is viable, its application is limited
as the negligence must be so apparent that "an expert will not be
called to testify as to the standard of care." Id. at 390,
774 A.2d at 497. The New Jersey Supreme Court has held that "the
threshold of merit should be readily ...