January 9, 2012
REBECCA A. VARES-EBERT, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF PATRICIA VARES, PLAINTIFF-APPELLANT,
BERNARD KELBERG, D.O., DEFENDANT-RESPONDENT,
AND MICHAEL GERSTEN, M.D., DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-156-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 21, 2011
Before Judges Cuff, Waugh and St. John.
Plaintiff Rebecca A. Vares-Ebert, individually and as executrix of the estate of Patricia Vares, filed a complaint seeking damages for the wrongful death of Patricia Vares, plaintiff's mother. She alleged that defendants Bernard Kelberg, D.O., and Michael Gersten, M.D., misdiagnosed her mother's medical condition. The matter settled prior to trial. Plaintiff appeals from the April 12, 2010 order that permitted defendant Kelberg to deposit in court the funds to effectuate the settlement, dismissed the complaint, and enforced the settlement. The order also directed that plaintiff could withdraw the settlement funds when she signed the Stipulation of Dismissal and Release in the form attached to the order.*fn1
On appeal, plaintiff argues that the parties never agreed on the terms of the settlement. She also contends that the conditions contained in the settlement agreement restricting her ability to provide details of the case are unenforceable because the conditions are an unconstitutional prior restraint of her right of free speech. Plaintiff also contends that the terms of the release are not consistent with the terms of the settlement agreement.
The confidentiality provisions of the settlement agreement are inconsistent with N.J.S.A. 45:9-22.21 to -22.25, specifically, N.J.S.A. 45:9-22.23a(10) and Rule 1:38, which permit free access by the public to the information sought to be concealed. Severance of these provisions ordinarily would not permit enforcement of the agreement. Defendant, however, advised this court at oral argument that the provisions are not central to the settlement and urged enforcement of the settlement as modified by elimination of the confidentiality provisions.
Although the confidentiality provisions cannot be enforced and are severed from the settlement agreement, we discern no discrepancy between the terms of the settlement agreement and the release. We, therefore, affirm the April 12, 2010 order as modified.