On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9231-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically October 27, 2010
Before Judges Payne, Baxter and Koblitz.
Defendant, counterclaimant and third-party plaintiff, Peter Res, appeals from an order dismissing his counterclaim against Hackensack Anesthesiology Associates, P.A. (HAA) and his third-party complaint against Dr. Ali Seckin alleging medical malpractice. The dismissal occurred as the result of the failure by Res to timely file an affidavit of merit as required by N.J.S.A. 2A:53A-27. On appeal, Res makes the following arguments:
I. THE COURT BELOW ERRED IN DISMISSING THE MALPRACTICE CLAIM FOR FAILURE TO PROVIDE AN AFFIDAVIT OF MERIT BECAUSE A FERREIRA CONFERENCE WAS NOT HELD.
A. The Ruling in Paragon Which
Clarifies the Purpose of the Ferreira Conference is Prospective. As This Case Was Filed Prior to this Opinion It Must be Remanded to the Superior Court Consistent with the Paragon Jurisprudence.
B. The Decision in Paragon Does Not
Bar the Court from Reversing the Decision Below Because the Underlying Facts Are Distinguishable from Paragon and Subject to the Elements of Ferreira Which Remain Intact.
II. THE COURT MUST DENY THE MOTION TO DISMISS WITH PREJUDICE BECAUSE APPELLANT'S FAILURE TO SUPPLY AN AFFIDAVIT OF MERIT IS EXCUSED BY EXTRAORDINARY CIRCUMSTANCES.
III. THE COURT MUST DETERMINE THAT APPELLANT SUBSTANTIALLY COMPLIED WITH N.J.S.A. 2A:53A-28 BY CONSTRUING APPELLANT'S ACTIONS SUFFICIENT TO CONSTITUTE A SWORN STATEMENT.
IV. THE COURT MUST NOT ALLOW APPELLANT'S GOOD FAITH EFFORT TO COMPLY WITH THE ENTIRE CONTROVERSY DOCTRINE [TO] INADVERTENTLY DEFEAT HIS MERITORIOUS MALPRACTICE CLAIM.
V. THERE IS NO REQUIREMENT FOR A PLAINTIFF TO FILE AN AFFIDAVIT OF MERIT FOR A CASE FILED IN SPECIAL CIVIL PART, THEREFORE THE DEADLINES ESTABLISHED FOR THE FILING OF THE AFFIDAVIT ARE INCORRECT AND THE DISMISSAL MUST BE VACATED FOR ERROR.
VI. THE DOCTRINE OF ESTOPPEL BARS COUNTER-DEFENDANT FROM SEEKING DISMISSAL OF RES'S CASE BASED UPON HIS TACIT AGREEMENT TO DELAY THE FILING OF THE AFFIDAVIT OF MERIT.
VII. THE PROSPECTIVE RULING OF PARAGON WHICH ELIMINATES THE MANDATE FOR A FERREIRA CONFERENCE RENDERS THE STATUTE UNCONSTITUTIONAL AND IT MUST BE OVERTURNED.
A. The Affidavit of Merit Statute Creates a Pleading Requirement Which is Constitutionally Infirm.
B. The Affidavit of Merit Statute is Unconstitutional Because it Denies Victims of Malpractice in New Jersey the ...