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Kim v. Ahn

Superior Court of New Jersey, Appellate Division

August 2, 2013

BYOUNG J. KIM, Administrator Ad Prosequendum for the Estate of GYE JA KIM, Deceased and BYOUNG J. KIM, Individually, Plaintiff-Appellant,
v.
PAUL AHN, D.O. and JAMES ZU, M.D., Defendants-Respondents, and JONG Y. MOON, M.D., ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL AT RAHWAY and PRADIP SHAH, M.D, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2013

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8268-06.

Adam L. Rothenberg argued the cause for appellant (Levinson Axelrod, P.A., attorneys; Mr. Rothenberg, of counsel and on the brief; Matthew P. Pietrowski, on the briefs).

Charles E. Murray, III, argued the cause for respondent Paul Ahn, D.O. (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Mr. Murray, on the brief).

Heather M. LaBombardi argued the cause for respondent James Zu, M.D. (Giblin & Combs, LLC, attorneys; Ms. LaBombardi, on the brief).

Before Judges Graves, Espinosa and Guadagno.

PER CURIAM

After five years of litigation in which no objection was made to the sole expert witness produced against him, defendant Paul Ahn, D.O., moved for the exclusion of the expert's testimony during trial on the ground that the witness lacked the enhanced credentials required by N.J.S.A. 2A:53A-41. Plaintiff appeals from an order that barred his expert's testimony and dismissed his complaint against Ahn. For the reasons that follow, we affirm the order barring the expert's testimony, reverse the order dismissing the complaint, and remand this matter to the trial court to permit plaintiff a reasonable amount of time to produce a report by an expert who meets the qualification requirements of N.J.S.A. 2A:53A-41.

Plaintiff, Byoung J. Kim, brought this medical malpractice, wrongful death, and survivorship action as administrator of his wife's estate and on his own behalf (collectively, plaintiff) against Ahn, Jong Y. Moon, M.D., Pradip Shah, M.D., James Zu, M.D., and Robert Wood Johnson University Hospital (RWJUH).

The New Jersey Medical Care Access and Responsibility and Patients First Act (the Patients First Act), N.J.S.A. 2A:53A-37 to -42, became effective in July 2004. N.J.S.A. 2A:53A-41 established qualification requirements, in addition to those contained in N.J.R.E. 702, for experts who provide testimony or execute affidavits of merit in medical malpractice cases. Among the requirements, the statute prohibits any person from giving expert testimony or executing an affidavit of merit against a board-certified specialist unless that person is board-certified in the same specialty. N.J.S.A. 2A:53A-41(a); see also, Ryan v. Renny, 203 N.J. 37, 43 (2010). In Khan v. Singh, 200 N.J. 82 (2009), the Supreme Court expressly noted that these additional requirements applied to causes of action arising after July 7, 2004. Id . at 100. The medical treatment complained of here was provided in October to December 2004.

In November 2006, two years after N.J.S.A. 2A:53A-41 became effective, plaintiff filed a complaint. In answers to interrogatories, plaintiff stated that Gye Ja Kim began having complaints of nausea, headache, and neck pain with vomiting in October 2004. She was seen at RWJUH on October 18, 2004 and then followed up with Moon. She was referred to Ahn at the end of November 2004. Her complaints of headaches, vomiting, vision loss, difficulty drinking, and dehydration persisted through the end of November into the beginning of December. Ms. Kim was admitted to RWJUH on December 2, 2004, where she was treated by Shah and Zu. She died in the hospital on December 21, 2004. The final diagnosis was death due to tuberculosis meningitis.

Along with the complaint, plaintiff served an affidavit of merit prepared by Alexander Ackley, Jr., M.D., dated October 12, 2006, on all defendants. In the affidavit of merit, Ackley stated he was a physician, licensed to practice medicine in the State of New Jersey since 1976. He stated further that he has been Board Certified in internal medicine since 1974 and maintained a practice in internal medicine in Princeton, New Jersey. He stated further that, based upon his review of the medical records, there existed "a reasonable probability that the care, skill or knowledge exercised or exhibited by" RWJUH, Ahn, Shah, and Zu "while plaintiff was a patient at [RWJUH] fell outside acceptable, professional or occupational standards for treatment practices." The affidavit also contained the following language:

If any defendant has any objection to the sufficiency of this Affidavit of Merit; demand is hereby made that the defendant immediately notify the plaintiff of any such alleged deficiencies so that same may be corrected if necessary and within the time constraint of N.J.S.A. 2A:53A-26 et seq.

Ahn filed an answer on January 12, 2007. As a result, pursuant to the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, plaintiff's deadline for filing an affidavit of merit as to Ahn's alleged negligence that complied with applicable legal requirements was 120 days following receipt of this answer, or approximately May 12, 2007.

Ahn did not pose any objection to the sufficiency of Ackley's affidavit of merit within that time, and so, plaintiff was not alerted to the deficiency in Ackley's credentials before the expiration of the 120-day period. Moreover, in February 2007, Ahn provided plaintiff with a signed Waiver of the Affidavit of Merit. As the other defendants provided similar waivers, there was no conference pursuant to Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).[1]

In Ahn's answer, he admitted he was "a physician licensed to provide medical care" but did not identify any specialty. This answer was filed three years before the Supreme Court decided Buck v. Henry, 207 N.J. 377 (2011), in which it stated,

From this point forward, a physician defending against a malpractice claim (who admits to treating the plaintiff) must include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty.

[Id. at 396.]

Ahn provided answers to interrogatories in March 2007, and a copy of his curriculum vitae in April 2007. Upon receipt, plaintiff's counsel wrote to Ahn's counsel, requesting more specific answers to several interrogatories:

Please state what issue you wish to raise regarding the Affidavit of Merit. A waiver was filed in this matter and it is believed that this is a non-issue with respect to your client.

In response to this request, defense counsel wrote,

You are correct. The waiver has been filed relative to the affidavit of merit and governs accordingly.

In November 2008, plaintiff amended answers to interrogatories to identify Ackley as an expert witness and supply his report, dated November 25, 2008, and curriculum vitae. Ackley's curriculum vitae identified one certification, by the American Board of Internal Medicine. In his report, Ackley offered opinions regarding four doctors with varying specialties. Ackley was board-certified in the same specialty as Moon, internal medicine, and had experience in Shah's specialty, infectious diseases. But Ackley also offered opinions regarding Ahn, who was board-certified in family medicine, and Zu, a neurologist.[2] Ackley opined that each of these doctors had violated the applicable standard of practice. There was, however, no pretrial motion to bar Ackley's expert testimony pursuant to N.J.S.A. 2A:53A-41.

In January 2009, two expert reports were produced on behalf of Ahn: one by Donald T. Allegra, M.D., who was board-certified in infectious diseases, and the second by Robert L. Perkel, M.D., a specialist in family medicine. Perkel's report included the following:

I respectfully but strongly disagree with Dr. Ackley. Dr. Ackley is not a primary care physician. Instead, Dr. Ackley practices as a specialist in infectious diseases. By the time Dr. Ackley is involved in the care of a patient, an infectious cause of the patient's symptoms is either known or is suspected. Thus, Dr. Ackley does not provide initial evaluation of patients with headache. Because of this issue of point of view (specialist vs. generalist), Dr. Ackley's criticism of Dr. Ahn are inherently unfair.

After receiving this report, Ahn did not move to exclude Ackley's testimony and plaintiff did not attempt to amend interrogatories to name an expert who was board-certified as a family medicine specialist like Ahn.

An order was entered, granting summary judgment to RWJUH in February 2009. All parties voluntarily dismissed claims against Moon and Shah, leaving Ahn and Zu as the only defendants for trial.

Prior to trial, the parties served Pretrial Information Exchanges upon each other pursuant to Rule 4:25-7(b). The rule requires attorneys to confer and exchange pretrial information including, "[a]ny in limine or trial motions intended to be made at the commencement of trial, with supporting memoranda." Pretrial Information Exchange, Pressler & Verniero, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b) at 2652 (2013). The rule provides that "[f]ailure to exchange and submit all the information required by this rule may result in sanctions as determined by the trial judge." R. 4:25-7(b). Plaintiff identified several in limine motions; Ahn identified none.

Immediately prior to trial, the court held a conference to discuss various legal issues. In discussing the witnesses identified in the Pretrial Information Exchanges, counsel for Ahn stated it was her intention to call Allegra, who was board-certified in infectious diseases, as her expert, and not to call Perkel, the expert in family medicine. She identified no motions to be made on behalf of Ahn.

A jury was selected on November 16, 2011 and opening statements were given on November 29, 2011. In her opening statement, counsel for Ahn introduced a theme of Ahn's defense that highlighted the difference between infectious disease specialists and family medicine practitioners:

TB meningitis . . . is so rare that most doctors will not see a case, at least most family doctors will not see a case in their entire medical careers.
In fact, even infectious disease doctors, doctors who specialize in conditions like this may see one.
In fact, plaintiff's own infectious disease expert in this case has only seen one in his entire medical career.

Testimony began on November 30, 2011, with plaintiff's direct testimony. Prior to the luncheon recess, plaintiff's counsel advised the court that he intended to call Ackley the following day and hoped to conclude his testimony in one day. Stating, "[w]e've got something that's critical for tomorrow[, ]" plaintiff's counsel asked to know "[i]f there's some motions coming . . . counsel needs to tell us what's coming down the pike and . . . this is really unfair surprise."

In response, counsel for Ahn explained she "mentioned to counsel this morning that there . . . may be motions regarding Dr. Ackley tomorrow morning." She was unable to represent whether such motions would be forthcoming because she was "waiting for the brief, " which she wanted to see before making her "final determination as to whether [she was] even going to raise it." Upon questioning by the court, counsel stated she would be making the decision during lunch.

However, it was not until the end of the day, after the jury was excused, that counsel for Ahn advised that she was filing a motion. She stated she intended to object to Ackley's "qualifications to testify against a family physician" because he was not a family physician. She stated her belief that such an objection would ordinarily be made after voir dire of the witness and said she was voicing her objection a day earlier "as a courtesy." The trial judge noted that no motion had been filed after the affidavit of merit was supplied by Ackley. Faced with this objection for the first time on the literal eve of his expert's testimony, plaintiff's counsel stated, erroneously, that this matter was filed before the Patients First Act was enacted. Counsel for Ahn corrected him and stated, "clearly the [A]ct applies." Plaintiff's counsel objected to the delayed objection to Ackley's qualifications, noting that the case had been in litigation for five years, and that precedent prohibited a party from lying in wait "like a snake in the grass and wait until trial . . . to pop it on someone that you object to the qualifications of the person who gave the affidavit of merit." The court found it "curious" that this issue was not raised earlier but ordered a hearing pursuant to N.J.R.E. 104 for the following morning at which plaintiff's counsel could attempt to qualify Ackley as an expert witness in the case.

Following the N.J.R.E. 104 hearing, the trial judge noted that the allegation against Ahn was that he was negligent in the practice of family medicine. Because Ackley lacked the qualifications required by N.J.S.A. 2A:53A-41, his testimony was barred.

Counsel for Ahn then asked if she had "to sit through the rest of plaintiff's case" or if the court would entertain her motion for a directed verdict. Plaintiff's counsel acknowledged that, following the court's ruling, he had no expert testimony to offer, but argued that the case could be proven based upon common knowledge. The trial judge rejected this argument, found waiver was not applicable, and granted Ahn's motion to dismiss plaintiff's case as to him. Plaintiff and Zu, the remaining defendant, agreed that the claims against Zu would be dismissed pending the result of this appeal; if the court was reversed, the claims against Zu would continue in force.

Plaintiff presents the following arguments for our consideration in this appeal:

POINT I
THE TRIAL COURT ABUSED ITS DISCRETION IN PRECLUDING THE PLAINTIFF'S EXPERT FROM TESTIFYING BECAUSE THE DEFENDANT WAIVED HIS OBJECTIONS TO THE QUALIFICATIONS OF THE PLAINTIFF'S EXPERT TO GIVE TESTIMONY UNDER N.J.S.A. 2A:53A-41 WHEN HE FORMALLY WAIVED ANY CHALLEN[]GE TO THE AFFIDAVIT OF MERIT.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN PRECLUDING THE PLAINTIFF'S EXPERT FROM TESTIFYING BECAUSE HE WAS QUALIFIED TO RENDER AN OPINION ON THE STANDARD OF CARE APPLICABLE TO DEFENDANT AHN.
POINT III
THE DEFENDANTS SHOULD BE PRECLUDED FROM ARGUING THAT THE DOCTORS THAT WERE VOLUNTARILY DISMISSED BY ALL PARTIES WERE NEGLIGENT OR HAVE THEM ON THE VERDICT SHEET ON REMAND.
A. THE JURY CANNOT CONSIDER THE FAULT OF THE DISMISSED DEFENDANTS BECAUSE THEY ARE NO LONGER PARTIES TO THE ACTION.
B. THE DEFENDANTS SHOULD NOT BE ALLOWED TO ARGUE THAT THE DISMISSED DEFENDANTS WERE NEGLIGENT OR ADOPT THE OPINIONS OF THE PLAINTIFF'S EXPERT REGARDING BECAUSE THEY FAILED TO SET FORTH THEIR INTENTIONS IN THEIR ANSWERS TO INTERROGATORIES.
POINT IV
THE LOWER COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANTS COULD CROSS-EXAMINE PLAINTIFF'S EXPERT ABOUT OPINIONS CONCERNING THE DISMISSED DEFENDANTS BECAUSE IT WOULD CONFUSE THE JURY, SUGGEST IMPROPER ASSERTIONS, BE OUTSIDE THE SCOPE OF DIRECT EXAMINATION AND BE UNDULY PREJUDICIAL.
POINT V
THE TRIAL COURT'S PRELIMINARY CHARGE TO THE JURY WAS IMPROPER BECAUSE IT WAS SPECIFICALLY CRAFTED TO HIGHLIGHT NEGLIGENCE AND WAS ONLY A PARTIAL STATEMENT OF THE LAW AND SHOULD NOT BE REPEATED ON REMAND.
POINT VI
DEFENSE COUNSEL'S OPENING STATEMENT THAT ACCUSED PLAINTIFF'S COUNSEL OF BEING UNFAIR TO THE DEFENDANT WAS IMPROPER AND SHOULD NOT BE REPEATED ON REMAND.

After reviewing these arguments in light of the record and applicable legal principles, we conclude that Points I and II lack merit. The arguments set forth in Points III through VI concern alleged trial errors, which we need not address. We view the central issue here to be the conflict between the fact that plaintiff's expert was prohibited from providing expert testimony in this case pursuant to the enhanced qualification requirements of the Patients First Act and the unreasonable delay by Ahn in challenging Ackley's ability to testify.

I.

In the companion cases of Ferreira, supra, and Knorr v. Smeal, 178 N.J. 169 (2003), the Supreme Court articulated principles related to enforcement of the Affidavit of Merit statute which inform our review.

The Affidavit of Merit statute was intended to weed out meritless claims early in the process, but "was not intended to encourage gamesmanship or a slavish adherence to form over substance [and] not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit." Ferreira, supra, 178 N.J. at 154. To facilitate the statute's purpose, the Court required case management conferences in the early stage of malpractice actions. Id . at 147. Describing the matters to be discussed at the conference, the Court instructed,

If an affidavit has been served, defendant will be required to advise the court whether he has any objections to the adequacy of the affidavit. If there is any deficiency in the affidavit, plaintiff will have to the end of the 120-day time period to conform the affidavit to the statutory requirements.

[Id. at 155 (emphasis added).]

In Knorr, supra, the plaintiffs mistakenly believed that an affidavit of merit had been served, albeit late, upon defendant. 178 N.J. at 175 n.l. In fact, the affidavit was not served. Id . at 175. Defendant failed to make any motion to dismiss the complaint after the deadline for receipt of the affidavit passed. Ibid. Instead, he engaged in discovery, obtained plaintiffs' expert report, and had an independent medical examination of one of the plaintiffs. Ibid. Defendant did not file a motion to dismiss based upon the failure to timely serve an affidavit of merit until fourteen months after the deadline had passed and "after the merits of plaintiffs' claims had been established[.]" Id . at 174. In keeping with the Affidavit of Merit statute's purpose to weed out non-meritorious claims early in the process, the Court noted that "[d]efendants must act timely too; they cannot sleep on their rights." Id . at 173. The Court echoed the sentiments expressed in Ferreira:

Plaintiffs and defendants should not be dragged through an expensive and burdensome discovery process . . . if the plaintiffs cannot produce an expert to support their claims. . . . [W]e place a premium on prompt action by both plaintiffs and defendants. In this way, the resources and time of the parties will not be wasted by the continuation of unnecessary litigation. It is difficult to fathom that the Legislature, in enacting the Affidavit of Merit statute, contemplated that a defendant would run a plaintiff through the discovery process, learn that the complaint was supported by competent evidence and an expert's report, and only then move to dismiss on the technical ground that the plaintiff failed to clothe the expert opinion in the form of an affidavit.

[Id. at 176-77.]

The Court then considered the application of the doctrines of equitable estoppel and laches. "[T]o establish equitable estoppel, plaintiffs must show that defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment." Id . at 178. The Court found these requirements satisfied, noting that defendant's conduct in failing to file the dismissal motion "surely induced plaintiffs to believe that the case was on course" despite the fact that "their cause of action was mortally wounded[.]" Id . at 180. Given the significant costs incurred by the plaintiffs in reliance upon defendant's conduct, it made "no difference that defendant did not intend to mislead or cause plaintiffs to continue with discovery." Ibid. The Court concluded, "because of defendant's belated filing of the motion, and plaintiffs' reliance on his failure to do so timely, defendant is equitably estopped from gaining a dismissal." Ibid. The Court also held that defendant's dismissal motion was barred by the doctrine of laches, which will "deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party." Id . at 181.

II. Both plaintiff and Ahn must be charged with the knowledge that N.J.S.A. 2A:53A-41 applied to this case and that no expert could either execute an affidavit of merit or provide testimony on the standard of care who did not meet its enhanced qualification requirements. Because Ackley's affidavit identified his specialty as internal medicine, both plaintiff and Ahn had the necessary information at that time to determine that he lacked those qualifications.

In providing the affidavit, plaintiff took the additional precaution of demanding notice of any objection to the sufficiency of the affidavit. Ahn made no objection. Moreover, he waived the Ferreira conference where, pursuant to the Court instruction, he would have been "required to advise the court whether he [had] any objections to the adequacy of the affidavit." Ferreira, supra, 178 N.J. at 155. Ahn's failure to object and waiver of the Ferreira conference thus thwarted the purpose of the Affidavit of Merit statute and the procedure required by the Court to weed out meritless claims early in the process. In effect, Ahn's conduct gave plaintiff a green light, inducing him to rely upon the absence of any challenge to his expert.

There was a delay of five years from the time when Ahn had the requisite knowledge regarding Ackley's lack of qualifications until he filed the dismissal motion literally on the eve of Ackley's testimony. During the course of that delay,

Ahn's conduct reflected an apparent continuing acquiescence to Ackley's qualifications as an expert.

When Ahn's answers to interrogatories included a statement that he intended to rely on the Affidavit of Merit statute in his defense, plaintiff's demand for more specific answers to interrogatories included the specific request that Ahn's counsel identify what issue Ahn wished to raise regarding the affidavit of merit. Plaintiff's counsel noted that a waiver had been filed and stated, "it is believed that this is a non-issue with respect to your client." In response, Ahn's counsel stated, "You are correct" and acknowledged that the waiver governed.

The discovery end date expired without any summary judgment motion based upon Ackley's qualifications. Although the parties served Pretrial Information Exchanges upon each other pursuant to Rule 4:25-7(b), Ahn failed to alert the court or plaintiff that a motion having the capacity to extinguish plaintiff's claim was in the offing.

And, most remarkably, Ahn's counsel stated immediately prior to trial that she would rely upon an infectious disease expert, and did not intend to call the defense expert who was board certified in family medicine. There can hardly be more persuasive inducement for the plaintiff to believe he could rely upon Ackley's testimony to prove his case than the statement by

Ahn's counsel that she would rely upon expert testimony from a witness who lacked the qualifications to opine on the standard of care applicable to a family medicine specialist.

Ahn's conduct in nature and duration[3] surely induced plaintiff to believe that he could rely upon Ackley's expert testimony to prove his case. As the Supreme Court observed in Knorr, supra, it makes no difference whether or not Ahn intended to mislead plaintiff or induce him to continue litigating the case. 178 N.J. at 180. We cannot determine whether the fatal deficiency in plaintiff's evidence can be cured but there exists a substantial probability that the opportunity to timely cure such deficiency was lost in reliance upon Ahn's apparent acceptance of Ackley's qualifications. As we have noted, the court was also deprived of the opportunity to address this issue at any time prior to trial, let alone early in the process.

We are satisfied that application of the doctrine of equitable estoppel is appropriate to bar Ahn's motion to dismiss the complaint against him. Further, because Ahn must be charged with the knowledge that Ackley's testimony was prohibited by N.J.S.A. 2A:53A-41 as of 2006, the five-year delay in enforcing his right to exclude Ackley's testimony provides adequate grounds for the application of the doctrine of laches to bar the dismissal motion. See Knorr, supra, 178 N.J. at 180-81.

We note that a significant difference exists between the circumstances in Knorr and those present here. In Knorr, the merits of the plaintiff's case were established and supported by competent expert opinion by the time defendants filed a dismissal motion. Once the dismissal motion was barred, the case could proceed on the merits. That is not the case here.

N.J.S.A. 2A:53A-41 prohibits any person from giving expert testimony or executing an affidavit of merit unless specific criteria for the proffered expert's credentials are met. In Nicholas v. Mynster, 213 N.J. 463 (2013), the Court found that plaintiffs' medical expert was barred from testifying as to the standard of care, stating, "Under a plain textual reading of the Act, plaintiffs cannot establish the standard of care through an expert who does not practice in the same medical specialties as defendant physicians."[4] Id . at 468. In this case, because Ahn is board-certified in family medicine, only a physician similarly credentialed in family medicine can provide the necessary expert testimony to establish the standard of care It is clear that Ackley lacked the qualifications required by NJSA 2A:53A-41 to testify regarding the standard of care applicable to Ahn Because the trial judge was correct in excluding his testimony there was no abuse of discretion See Brenman v Demello 191 N.J. 18 31 (2007); State v Zola 112 N.J. 384 414 (1998) cert denied 489 U.S. 1022 109 S.Ct. 1146 103 L.Ed.2d 205 (1989)

Plainly plaintiff cannot prosecute his malpractice claim without expert testimony to establish the alleged deviation from the applicable standard of care See Gonzalez v Silver 407 N.J.Super. 576 586 (App Div 2009) (citing Gardner v Pawliw 150 N.J. 359 375 (1997)) However dismissal of the complaint on that ground now would "encourage gamesmanship" a result the relevant statutes and cases expressly intended to avoid See Ferreira supra 178 N.J. at 154 Giving due consideration to the equitable doctrines we find applicable we reverse the order dismissing the complaint and remand to the trial court to reinstate the complaint and provide plaintiff with a reasonable amount of time to produce an expert report that complies with the requirements of NJSA 2A:53A-41

Affirmed in part and reversed in part We do not retain jurisdiction I hereby certify that the foregoing


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