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A.T. v. Cohen

Supreme Court of New Jersey

December 14, 2017

A.T., an infant by her mother and natural guardian, T.T., and T.T., individually, Plaintiffs-Appellants,
v.
M. COHEN, M.D., KHALID SAVAGED, M.D., CINDY GALEOTA, C.N.M., JULIO CABAN, M.D., BAOHUONG TRAN, M.D., and NEWARK BETH ISRAEL MEDICAL CENTER, Defendants-Respondents.

          Argued September 25, 2017

         On appeal from the Superior Court, Appellate Division, whose opinion is reported at 445 N.J.Super. 300 (App. Div. 2016) .

          Alan W. Roth argued the cause for appellants (Bendit Weinstock, attorneys; Alan W. Roth and Nikhil S. Agharkar, on the briefs).

          Lauren M. Strollo argued the cause for respondents (Vasios, Kelly & Strollo, attorneys; Lauren M. Strollo, of counsel and on the briefs, and Douglas M. Singleterry, on the briefs).

          Thomas M. Comer argued the cause for amicus curiae New Jersey Association for Justice (Lomurro, Munson, Comer, Brown & Schottland, attorneys; Thomas M. Comer and Abbott S. Brown, of counsel and on the brief, and Christina Vassiliou Harvey, on the brief).

          Eric S. Poe argued the cause for amicus curiae New Jersey Physicians United Reciprocal Exchange (Eric S. Poe, of counsel and on the brief, and Abbey True Harris, on the brief).

          LaVECCHIA, J., writing for the Court.

         In this appeal as of right, R 2:2-1(a)(2), the Court considers whether, under the circumstances of this case, the trial court properly dismissed the action with prejudice because plaintiff failed to serve a timely affidavit of merit. The Court also considers whether recourse to a voluntary dismissal without prejudice under Rule 4:37-l(b) is an appropriate avenue for addressing failures to comply with the affidavit of merit requirement.

         T.T. gave birth to A.T. at Newark Beth Israel Hospital (the Hospital) on May 19, 2011. At the Hospital, T.T. and A.T. (collectively, plaintiff) were under the care of Morris Cohen, M.D., Khalid Savaged, M.D., Cindy Galeota, C.N.M., Julio Caban, M.D., and Bauhuong Tran, M.D. (collectively, with the Hospital, defendants). In her amended complaint filed on September 25, 2013, plaintiff alleges that defendants' treatment of T.T. and A.T. fell below the accepted standard of care and caused A.T.'s injury and birth defects. Plaintiff further alleges that defendants' negligence caused T.T. the loss of A.T.'s society, companionship, and support.

         Defendants filed an answer on December 5, 2013, denying the allegations set forth in the amended complaint and demanding, among other things, that plaintiff produce an affidavit of merit (AOM) pursuant to the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29. Under the statute, plaintiff had sixty days from that date ~ or 120 with leave of the court - to file an AOM with respect to each defendant. By February 3, 2014, sixty days had elapsed since defendants filed their answer, and plaintiff had not served defendants with an AOM. At no time prior to the sixty-day mark or at any time thereafter did any court personnel attempt to convene a Ferreira conference, and at no time was one requested or waived by counsel.

         On April 7, 2014, defendants filed a motion for summary judgment. In support, defendants relied on plaintiff's failure to produce an AOM within the statutorily mandated time frame and claimed entitlement to dismissal with prejudice. Plaintiff opposed defendants' motion and submitted an AOM dated May 22, 2014.

         Prior to argument on the underlying motion, plaintiff's counsel made an oral application for a voluntary dismissal without prejudice pursuant to Rule 4:37-l(b). Counsel revealed, for the first time, that plaintiff's failure to timely submit an AOM was due to counsel's own oversight, which stemmed from plaintiff's stipulation granting defendants extra time to file an answer. The court denied plaintiffs motion for a voluntary dismissal, granted defendants' motion for summary judgment, and dismissed the action with prejudice.

         Plaintiff appealed. A majority of the Appellate Division panel rejected the assertion that attorney oversight was sufficient reason to grant a voluntary dismissal under the circumstances. 445 N.J.Super. 300, 306-07 (App. Div. 2016). The panel affirmed the order granting summary judgment to defendants and dismissing the matter with prejudice. The dissent asserted that a finding of exceptional circumstances would have been appropriate here. Id. at 313. The dissent would have ordered entry of a dismissal without prejudice in light of A.T.'s minor status, her attorney's mishandling of the AOM, and the relatively little prejudice defendants have suffered, and would have allowed the trial court the ability to impose conditions on the re-filing of plaintiff's claims.

         HELD: The Court reverses the grant of summary judgment to defendants and remands the matter for further proceedings, finding that the equities militate in favor of permitting a facially meritorious action to proceed here. The Court declines to approve recourse to a voluntary dismissal without prejudice under Rule 4:37-l(b) as an appropriate avenue for addressing failures to comply with the affidavit of merit requirement, including when a minor is involved. Rather, the Court will require modification of the Judiciary's electronic filing and notification case management system to ensure that, going forward, necessary and expected conferences are scheduled to enhance parties' compliance with requirements under the Affidavit of Merit Statute, in furtherance of the statutory policy goals.

          1. The failure to provide an AOM is "deemed a failure to state a cause of action, " N.J.S.A. 2A:53A-29, requiring dismissal with prejudice, Alan J. Cornblatt, P. A. v. Barow, 153 N.J. 218, 247 (1998). However, the Court has recognized equitable exceptions to "temper the draconian results of an inflexible application of the statute, " Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003), and has created mechanisms to draw attention to and facilitate satisfaction of this statutory obligation and its goals, Id. at 154-55 (establishing discovery-stage case management conference to encourage and facilitate compliance with AMS requirements, to avoid dismissal of meritorious claims due to inadvertence, and to promote goal of weeding out insubstantial claims), (pp. 11-12)

         2. The Ferreira conference was designed to be the Judiciary's key tool to promote satisfaction of the AMS's salutary policy goals. The Court mandated the conference and imposed requirements on both courts and defendants to discover and address issues as to the sufficiency of a plaintiff's AOM. Id. at 155. In 2010, the Court wrestled with the fact that mandatory Ferreira conferences were not being routinely conducted as expected. In Paragon Contractors, Inc. v. Peachtree Condominium Ass'n, 202 N.J. 415, 424 (2010), the Court clarified that, "[a]lthough Ferreira conferences should be held as a matter of course, they may be omitted [upon submission of a proposed consent order indicating that] 'the [AOM] has been provided by plaintiff and all defendants have waived any objections to its adequacy.'" The Court added that, "going forward, reliance on the scheduling of a Ferreira conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll the statutory time frames." Id. at 426. (pp. 12-15)

         3. The Court's warning in Paragon that the failure to conduct a Ferreira conference would not routinely toll the time for submission of an AOM was not meant to foreclose the finding of extraordinary circumstances when a combination of events occurred. Here, just such circumstances occurred. While "attorney inadvertence" will not, standing alone, support a finding of extraordinary circumstances, in this case, the Judiciary failed to do what the Court expected, namely to act as a backstop. No Ferreira conference was scheduled, which would have assisted in keeping the parties focused on the timing of the necessary affidavit. Counsel here did secure an affidavit when defendants filed a motion for summary judgment. The Court presumes from plaintiff's swift compliance upon the filing of the motion that it is dealing with a non-frivolous matter, not the type of case that the AMS intended to weed out. There is no prejudice to defendants that the equitable powers of our courts cannot address. The trial court has the discretion to require plaintiff to reimburse defendants for the costs incurred in the extra proceedings that took place as a result of the delayed compliance with the AMS, which can mitigate prejudice to defendants. Although this matter does not fit neatly into the factual scenarios of past extraordinary-circumstances cases, the Court is persuaded that equitable relief should be afforded to plaintiff, (pp. 15-18)

         4. Except in certain types of actions inapplicable here, "an action shall be dismissed at the plaintiff's instance only by leave of court and upon such terms and conditions as the court deems appropriate." IL 4:37-l(b). Reviewing courts of this state frown on the use of a dismissal without prejudice under Rule 4:37-l(b) as a mechanism for salvaging a case that has run aground on requirements established in statutes or in the Rules of Court. Cracking open the use of dismissals of actions without prejudice to allow more time whenever a plaintiff runs aground on the requirements of the AMS would prolong litigation and potentially eviscerate the AMS policy of weeding out, early on, non-meritorious malpractice cases. The Court declines to send the matter back for entry of a dismissal without prejudice and instead relies on the presence of extraordinary circumstances to reverse the dismissal entered below. The Court cautions courts to adhere to the spare use of dismissals without prejudice as prior case law instructs. See Shulas v. Estabrook. 385 N.J.Super. 91, 102-03 (App. Div. 2006). (pp. 18-22)

         5. Going forward, advancements in the automated case management system will permit electronic notification of (1) the AOM filing obligation and (2) the scheduling of a Ferreira conference. The electronic case management system will be updated to issue notices to counsel and accomplish those tasks. Further details concerning those improvements will be provided through the Administrative Office of the Courts. With the Court's announcement of those improvements comes a cautionary note. Counsel are on notice that disregarding the scheduling of the conference, or waiving the conference, will not provide a basis for relief from AMS obligations, (pp. 22-23)

         The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for further proceedings consistent with this opinion.

          OPINION

          LaVECCHIA, JUSTICE

         T.T., individually and on behalf of her three-year-old daughter, A.T., filed this medical malpractice action seeking damages from a hospital and several medical professionals for injuries caused during the child's birth.[1] The trial court granted summary judgment to defendants and dismissed the action with prejudice because plaintiff failed to serve a timely affidavit of merit. The Appellate Division affirmed, rejecting plaintiff's argument that the circumstances should have supported entry of a dismissal without prejudice under Rule 4:37-l(b). A.T. ex rel. T.T. v. Cohen, 445 N.J.Super. 300, 303 (App. Div. 2 016) .

         One panel member dissented, maintaining that a dismissal based on a failure to comply with the affidavit of merit requirement should not invariably be with prejudice when appropriate circumstances are present. Id. at 310 (Fisher, P.J.A.D., dissenting). The dissent found appropriate circumstances present in respect of the tort claims involving this minor child.

         We now reverse the grant of summary judgment to defendants and remand the matter for further proceedings. A combination of circumstances, not the least of which was the failure to schedule a pretrial conference to address the affidavit of merit requirement as our case law directed, warrants allowing the untimely affidavit to be filed. The equities militate in favor of permitting a facially meritorious action to proceed here, particularly because any prejudice to defendants may be addressed through costs imposed by the trial court.

         We decline to approve recourse to a voluntary dismissal without prejudice under Rule 4:37-1(b) as an appropriate avenue for addressing failures to comply with the affidavit of merit requirement, including when a minor is involved. Rather, we will require modification of the Judiciary's electronic filing and notification case management system to ensure that, going forward, necessary and expected conferences are scheduled to enhance parties' compliance with ...


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