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The Estate of Bevelyn D. Cole By Her Administratrix Ad Prosequendum v. Morristown Memorial Hospital

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 15, 2013

THE ESTATE OF BEVELYN D. COLE BY HER ADMINISTRATRIX AD PROSEQUENDUM GWENDOLYN COLE HOOVER, GWENDOLYN COLE HOOVER, INDIVIDUALLY, FRANCINE COLE, GEORGE JOHNSON COLE AND JOSEPH COLE, PLAINTIFFS-APPELLANTS,
v.
MORRISTOWN MEMORIAL HOSPITAL, LEONARD J. MOSS, D.O., RICHARD S. ROSENBERG, M.D., STEWART W. FOX, M.D., IRA P. MONKA, D.O., NEWARK BETH ISRAEL MEDICAL CENTER, DAVID BARAN, M.D., LOUIS ARROYO, M.D., DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1703-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2012

Before Judges Yannotti and Harris.

Plaintiffs appeal from an order entered by the Law Division on April 2, 2012, denying their motion to reinstate their complaint. We affirm.

On June 18, 2007, plaintiffs filed a complaint in the trial court, naming Morristown Memorial Hospital (MMH), Leonard J. Moss, D.O. (Moss), Richard S. Rosenberg, M.D. (Rosenberg), Stewart W. Fox, M.D. (Fox), Ira P. Monka, M.D. (Monka), Newark Beth Israel Medical Center (NBI), David Baran, M.D. (Baran), and certain fictitious parties as defendants. Plaintiffs' complaint arose out of the treatment that defendants allegedly provided to decedent Bevelyn D. Cole (Cole).

According to the complaint, Cole was admitted to MMH on June 17, 2005. Plaintiffs alleged that on June 17, 2005, Cole fell on MMH's premises. Cole was admitted to NBI on June 20, 2005, and died on June 24, 2005. Plaintiffs alleged that defendants deviated from accepted standards of medical care in their treatment of Cole.

NBI and Baran filed an answer on July 26, 2007. Rosenberg filed an answer on July 24, 2007, and Fox filed an answer on August 16, 2007. In addition, MMH filed its answer on August 31, 2007.*fn1 Moss and Monka filed an answer on October 3, 2007.

On October 19, 2007, after Baran submitted an affidavit of non-involvement in Cole's care pursuant to N.J.S.A. 2A:53A-40, plaintiffs voluntarily dismissed their claims against him. In addition, with leave of court, plaintiffs filed an amended complaint which added Luis Arroyo, M.D. (Arroyo) as a defendant.

On November 8, 2007, plaintiffs' attorney, Herbert M. Korn (Korn), filed a motion seeking an extension of time for the service of affidavits of merit on defendants pursuant to N.J.S.A. 2A:53A-27. At this time, Korn also filed a motion seeking to be relieved as counsel, for what he claimed were personal reasons.

Thereafter, the trial court entered orders dated November 23, 2007, extending the time in which plaintiffs were required to furnish their affidavits of merit. The orders stated that the affidavits of merit were due 120 days after defendants filed their respective answers.

The court also entered an order dated November 23, 2007, which granted Korn's motion to be relieved as counsel for plaintiffs. The order stated that plaintiffs had thirty days from the date of a November 21, 2007 conference call to obtain new counsel. They were also required to provide the affidavits of merit within the time required by N.J.S.A. 2A:53A-27.

It is undisputed that plaintiffs did not retain new counsel within the time required by the court's November 23, 2007 order. It is also undisputed that plaintiffs did not serve their affidavits on the remaining defendants within one hundred twenty days after these defendants filed their respective answers.

Thereafter, Rosenberg, Fox, NBI and Arroyo filed motions seeking dismissal of the claims against them with prejudice for failure to provide the affidavits of merit, as required by N.J.S.A. 2A:53A-27. The motions were not opposed. The court entered orders dated February 1, 2008, dismissing the claims against these defendants with prejudice.

It appears that Monka had filed an affidavit of non-involvement in Cole's care pursuant to N.J.S.A. 2A:53A-40, and filed a motion seeking dismissal of the claims against him on that basis. The motion was unopposed. The court entered an order dated March 3, 2008, dismissing the claims against Monka with prejudice.

In addition, Monka and Moss filed a motion seeking dismissal of the claims against them for failure to furnish them with affidavits of merit. The motion was unopposed. The court entered an order dated March 14, 2008, dismissing the claims against Monka and Moss with prejudice.

MMH also sought dismissal of the claims against it because plaintiffs had not complied with the affidavit of merit statute. The motion was not opposed. The court entered an order dated April 17, 2008, dismissing the claims against MMH with prejudice.

On June 23, 2008, an attorney filed a complaint against AHS and NBI on behalf of the Estate of Bevelyn D. Cole (Estate) and Gwendloyn Cole-Hoover (Hoover) in the United States District Court for the Western District of New York. In that complaint, the Estate and Hoover alleged, among other things, that AHS and NBI wantonly, recklessly and carelessly caused and conspired to cover up Cole's death "solely on account of her race and sex."

In February 2009, the federal action was transferred to the United States District Court for the District of New Jersey. In April 2010, AHS moved to dismiss the complaint for failure to state a claim. On June 23, 2010, the attorney for the Estate and Hoover executed a stipulation, which dismissed the claims against AHS with prejudice, including any claims arising out of Cole's admission to MMH in June 2005 and her death.*fn2

On or about March 14, 2012, plaintiffs filed a motion in the Law Division seeking to restore their complaint that had been filed in June of 2007. In a supporting certification, Hoover stated that on February 28, 2012, she retained James C. Dezao (Dezao) as the attorney for plaintiffs. She stated that Korn had filed the complaint but the court granted his motion to be relieved as counsel on November 23, 2007.

Hoover said that she had "been in search of an attorney to take over the case for quite some time." She stated that every attorney she contacted appeared to be interested in taking the case, but refused to do so after speaking with Korn. Hoover did not identify the attorneys she contacted, nor did she specify when she contacted these attorneys.

Dezao also submitted a certification in support of plaintiffs' motion. He stated that after reviewing the file and speaking with Hoover and a doctor, he believed "there is a case" and that the negligence on the part of MMH, NBI and their respective employees led to Cole's death. Dezao said that the court should restore the complaint in the interests of fairness and justice. He stated that it would be "unfair to deny" plaintiffs their day in court, because Hoover was "clearly not at fault" and plaintiffs should not be "prejudiced by the actions of others."

The motion judge considered the matter on April 2, 2012, and placed her decision on the record on that date. The judge stated that the court had properly dismissed plaintiffs' complaint with prejudice because plaintiffs had not complied with the affidavit of merit statute and there was no evidence of extraordinary circumstances. The judge noted that plaintiffs had not explained the four-year delay in retaining new counsel and had not provided any basis for relief from the dismissal orders. The judge entered an order dated April 2, 2012, denying plaintiffs' motion. This appeal followed.

Plaintiffs argue that the motion judge erred by refusing to restore their complaint. They assert that some of the claims asserted "sounded in traditional negligence" and as to those claims, an affidavit of merit was not required. They also contend that dismissal of the complaint with prejudice was not warranted because the trial court purportedly did not conduct a case management conference addressing the need to comply with the affidavit of merit statute, as required by Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

In addition, plaintiffs contend that the trial court's "inflexible application" of the affidavit of merit statute was erroneous because plaintiffs had substantially complied with the statute. Plaintiffs further contend there were extraordinary circumstances that explained their non-compliance with the affidavit of merit statute. Plaintiffs claim that they have meritorious claims that should be considered on the merits, and restoration of the complaint is warranted because defendants failed to show that they would be prejudiced thereby.

We initially note that many of the arguments raised by plaintiffs are arguments that should have been presented when defendants filed their motions seeking dismissal of the claims against them for failure to comply with the affidavit of merit statute. Plaintiffs did not oppose those motions, and never filed timely motions for reconsideration of the orders dismissing their complaint with prejudice. Moreover, plaintiffs never appealed to this court from the dismissal orders.

Thus, the orders entered by the trial court on February 1, 2008, March 14, 2008, and April 17, 2008, dismissing their complaint with prejudice are final judgments and relief from those judgments may only be secured pursuant to Rule 4:50-1. The rule states that such relief may be granted for the following reasons:

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic); misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

In addition, Rule 4:50-2 provides that a motion for relief under Rule 4:50-1 must be made within a reasonable time; however, a motion seeking relief for reasons (a), (b) or (c) must be made "not more than one year after the judgment, order or proceeding was entered or taken."

Here, plaintiffs did not seek relief from the trial court's dismissal orders entered on February 1, 2008, March 14, 2008, and April 17, 2008, until they filed their motion to restore their complaint on March 14, 2012. This delay precludes plaintiff from seeking relief for the reasons stated in subsections (a), (b) and (c) of Rule 4:50-1. Furthermore, plaintiffs' extensive delay in seeking relief from the dismissal orders cannot be considered reasonable under the circumstances.

As the motion judge noted in her decision, plaintiffs have not provided a credible explanation for the lengthy delay in seeking restoration of their complaint. In the certification submitted in support of her restoration motion, Hoover stated that she had difficulty convincing an attorney to take on the case after Korn withdrew, but she did not explain why it took her about four years to retain a new attorney for this litigation. As we noted previously, in this time, the Estate and Hoover were pursuing similar claims in the federal action.

Even if we were to conclude that plaintiffs filed their motion to restore the complaint within a reasonable time after the entry of the dismissal orders, plaintiffs have not established any basis for relief from those orders for the reasons under the relevant provisions of Rule 4:50-1. The orders are not void, have not been satisfied, and are not based upon a judgment or order that has been reversed. R. 4:50-1(d), and (e). Moreover, plaintiffs have not established that this case presents an exceptional situation for which relief might be available under Rule 4:50-1(f). DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 270 (2009).

The affidavit of merit statute requires a plaintiff to furnish an affidavit of merit where the plaintiff brings an action for damages for personal injuries or wrongful death resulting from an alleged act of malpractice or negligence by a licensed professional. N.J.S.A. 2A:53A-27. The affidavit must be provided for each defendant within sixty days of the filing of that defendant's answer, although the court may extend the time to file for an additional sixty days. Ibid.

Here, plaintiffs were afforded 120 days from the date defendants filed their respective answers to file the affidavits of merit and they failed to do so. Failure to comply with the affidavit of merit statute requires dismissal with prejudice "in all but extraordinary circumstances." Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998).

Plaintiffs argue that, after Korn withdrew as their attorney on November 23, 2007, they were not afforded sufficient time to retain a new attorney and file the affidavits of merit. Plaintiffs insist that these circumstances were extraordinary and their complaint should not have been dismissed with prejudice. We do not agree.

After Korn withdrew on November 23, 2007, plaintiffs did not retain a new attorney and did not furnish the affidavits of merit as required by N.J.S.A. 2A:53A-27. Defendants then filed motions to dismiss the claims against them. We are satisfied that plaintiffs had sufficient time to retain counsel and comply with the statute before the dismissal orders were entered on February 1, 2008, March 14, 2008 and April 17, 2008.

Plaintiffs additionally argue that dismissal of their complaint was not warranted because the trial court never conducted a case management conference specifically addressing the requirements of the affidavit of merit statute. In Ferreira, the Court held that the trial courts should conduct conferences in malpractice cases to resolve all potential discovery issues, including compliance with the affidavit of merit statute. Ferreira, supra, 178 N.J. at 154-55.

It is not clear from the record whether a Ferreira conference was ever held in this case. We note, however, that the court's order of November 23, 2007, which permitted Korn to withdraw as plaintiffs' attorney, refers to a conference call held on November 21, 2007. The order also states that plaintiffs were required to comply with the affidavit of merit statute. It is reasonable to assume that the trial court had addressed the issue of compliance with the affidavit of merit statute in the November 21, 2007 conference call, and the court's order specifically placed plaintiffs on notice of the need to comply with the statute.

Plaintiffs further argue that dismissal of their complaint with prejudice was not warranted because they substantially complied with the statute. To avoid dismissal with prejudice on this basis, a plaintiff must show "(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) reasonable notice of [plaintiff's] claims; and (5) a reasonable explanation why there was not strict compliance with the statute." Galik v. Clara Maass Medical Center, 167 N.J. 341, 353 (2000).

Plaintiffs have not established that they took steps to comply with the statute. Indeed, more than seven years after the events that formed the basis for their claims, and more than four years after the claims were dismissed, plaintiffs still have not produced their affidavits of merit. Furthermore, the purpose of the affidavit of merit statute is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Hubbard v. Reed, 168 N.J. 387, 395 (2001). Plaintiffs did not show that they generally complied with the purpose of the statute, or present a reasonable explanation for their failure to comply.

In addition, plaintiffs contend that the trial court erred by dismissing their "traditional" negligence claims, for which an affidavit of merit purportedly was not required. We note, however, that in their complaint, plaintiffs asserted medical malpractice claims and alleged that defendants deviated from accepted standards of medical care. Furthermore, when plaintiffs sought additional time to furnish the affidavits of merit, they never suggested that they were asserting claims for which an affidavit of merit was not required. Thus, plaintiffs' belated contention that they were not required to serve affidavits of merit with regard to certain claims is meritless.

We note additionally that restoration of any claim that the Estate and Hoover may have had against MMH as a result of Cole's admission and subsequent death also was barred by the stipulation of dismissal entered in the federal court litigation.

Affirmed.


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