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McCabe v. Wallace & Legome, LLP

Superior Court of New Jersey, Appellate Division

July 5, 2013

DR. CHARLES McCABE, Plaintiff-Appellant,


Argued January 24, 2013

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-758-11.

David T. Lewis argued the cause for appellant (Lewis & Forrey, L.L.C., attorneys; Mr. Lewis, on the briefs).

Robert C. Neff, Jr., argued the cause for respondents (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Maxwell W. Billek, of counsel and on the brief; Mr. Neff, on the brief).

Before Judges Grall and Accurso.


Plaintiff Charles McCabe appeals from an August 19, 2011 final order dismissing his complaint with prejudice for failure to comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27. Plaintiff acknowledges his failure to file the affidavit, but contends the common knowledge exception applies. We disagree and affirm.

Plaintiff is a chiropractor who retained defendants to prosecute "more than one hundred" personal injury protection (PIP) suits on behalf of his practices, United Medical Center, L.L.P. and Pennsauken Chiropractic Center, P.A. that had previously been filed by the law firm of Liebling & Malamut, L.L.C. In his malpractice complaint he alleged that defendants

negligently failed to properly protect his rights, insomuch that they failed to properly institute PIP suits and keep him apprised and subsequently blew PIP Statutes and/or in the alternative allowed through negligence and/or standard of practice to protect plaintiff's statutory rights to the collection of money which fell below an acceptable legal standard of care.

Shortly after the complaint was filed, plaintiff sought an order to show cause to recover his PIP files from defendants. Judge Richmond signed an order on April 15, 2011 requiring their production. On June 24, 2011, a little more than a month after the answer was filed, plaintiff moved pursuant to N.J.S.A. 2A:53A-28 to compel the production of the PIP files as previously ordered and to extend the deadline for filing an affidavit of merit until after they had been produced. The court conducted a Ferreira[1] conference on July 11, 2011. The judge thereafter issued an order noting plaintiff's withdrawal of his motion to compel production of the PIP files and ordering defendants to turn over "any and all of plaintiff's files" no later than July 25, 2011, with plaintiff's affidavit of merit to follow within sixty days.

Defendants produced the files on August 2, 2011.[2] On August 5, 2011, plaintiff's counsel filed a motion to be relieved, contending in a certification that plaintiff had threatened him with physical violence and that their relationship had so "completely broken down" that he could no longer continue as plaintiff's counsel. Plaintiff did not oppose the motion and the court granted it on September 2, 2011. Plaintiff thereafter proceeded pro se. On October 24, 2011, defendants filed a motion to dismiss for failure to file an affidavit of merit. Plaintiff failed to file opposition and the court entered an order dismissing the complaint with prejudice on November 18, 2011.

On January 3, 2012, plaintiff's current counsel filed a notice of appeal and requested that the court file a statement of reasons pursuant to Rule 2:5-1(b). Judge Richmond placed her reasons on the record on February 3, 2012. The judge found that the allegations of the complaint, which included claims that defendants deviated from acceptable professional standards of conduct by "'blowing' [] the statute of limitations, not keeping the plaintiff advised of the status of his matters, and otherwise impairing his rights to collect moneys allegedly due to him, " could not be prosecuted in the absence of an affidavit of merit. The judge noted that an "affidavit of merit is required by the statute, it was required by the management order, and it has not been provided." Plaintiff never argued to the trial court that no affidavit of merit was required on the facts alleged, and thus the judge did not address the common knowledge exception in her opinion.

On appeal, however, plaintiff urges only that no affidavit was required as the common knowledge exception applies here. We disagree.

The affidavit of merit statute requires a plaintiff filing suit against a licensed professional to have the case evaluated by an appropriately licensed person who will then attest under oath, "that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. The purpose of the 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 ex rel. Hubbard v. Reed, 168 N.J. 387, 395 (2001). The statute is not concerned with whether a plaintiff can actually prove the allegations of the complaint, but only whether a threshold showing of merit can objectively be made. Id. at 394.

The Supreme Court has recognized an exception to the affidavit requirement in professional negligence cases in which it is not necessary for plaintiff to present an expert to establish the standard of care or a deviation from that standard. Id. at 390. In common knowledge cases, the alleged negligence is unrelated to technical matters peculiarly within the knowledge of practitioners within the defendant's field. Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961). Common knowledge cases are thus treated as ordinary negligence actions in which the jury can supply the applicable standard of care "from its fund of common knowledge" and assess "the feasibility of possible precautions which the defendant might have taken to avoid injury to the plaintiff." Id. at 141-42. The common knowledge exception allows meritorious claims to go forward without forcing a plaintiff to incur the expense of hiring an expert to submit an affidavit when no expert is needed at trial. Hubbard, supra, 168 N.J. at 395.

The Supreme Court has cautioned, however, that the exception must be construed "narrowly in order to avoid non-compliance with the statute." Id. at 397. Accordingly, the doctrine has been applied only

in circumstances involving obvious errors: a dentist's extraction of the wrong tooth, Hubbard, supra, 168 N.J. at 396; the erroneous hookup of equipment that resulted in the pumping of gas, rather than the fluid that ought to have been used, into the patient's uterus, [Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 460, 471 (1999)]; and the use of caustic solution, rather than the soothing medication intended, to treat a patient's nose after surgery, Becker v. Eisenstodt, 60 N.J.Super. 240, 242-46 (App. Div. 1960).
[Bender v. Walgreen E. Co., 399 N.J.Super. 584, 590 (App. Div. 2008) (holding common knowledge exception applies to pharmacist filling prescription with a drug other than the one prescribed).]

Plaintiff asserts that his case fits squarely within those holdings that a lawyer's failure to file a complaint within the statute of limitations is "so basic that it may be determined by the court as a matter of law." Brizak v. Needle, 239 N.J.Super. 415, 429 (App. Div.), certif. denied, 122 N.J. 164 (1990). Although Brizak is not an affidavit of merit case, it does stand for the proposition that expert testimony is not necessary to establish negligence against an attorney who has failed to file a claim within the statute of limitations. Here, however, plaintiff has failed to identify any particular claim he alleges was lost because defendants failed to file it within the statute. Instead, plaintiff claims that defendants were substituted as his counsel in over one hundred existing PIP suits. While contending that defendants failed to institute unspecified PIP suits, he also alleged that defendants failed to keep him apprised of the status of the files and "fell below an acceptable legal standard of care" in protecting his "statutory rights to the collection of money" against his patients' insurance carriers resulting in his failure to recover "adequate value for his suits, his collections and/or money owed" to him.

In our view this case has less in common with Brizak than it does with Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 416 N.J.Super. 1 (App. Div. 2010). There, we rejected the plaintiff's claim that the affidavit of merit statute did not apply to an attorney's failure to tender renewal fees necessary to maintain the plaintiff's patent to the United States Patent and Trademark Office. We reasoned with the trial court that given the complex regulatory scheme governing patent grants, the applicable standard of care was well beyond the ken of the average juror. Shamrock Lacrosse, supra, 416 N.J.Super. at 28.

A health care professional's contract right to seek PIP reimbursement against an insurance carrier by assignment of benefits from a patient treated as a result of an automobile accident is likewise subject to a complex regulatory scheme. See N.J.S.A. 39:6A-1 to -35; see also Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. & Physical Therapy, 210 N.J. 597, 608-09 (2012). Plaintiff is not claiming that defendants failed to file a particular identified claim within the applicable statute of limitations. He charges that defendants mishandled hundreds of claims entrusted to them, many of which were already in suit.

In our view the standard of care for an attorney charged with the evaluation and maintenance of PIP claims on behalf of a health care provider against its patients' automobile insurers is not something the average jury could supply from its fund of common knowledge. Unlike a dentist extracting the wrong tooth, Hubbard, supra, or a pharmacist providing a person with the wrong drug, Bender, supra, this is patently not a case where the alleged error, if indeed there was one, was self-evident and could be evaluated by a jury using its common knowledge. How to go about professionally recovering PIP benefits from automobile insurers on behalf of a health care professional is simply not something within the ken of the average juror. Affirmed.

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