A.T., an Infant by Her Mother and Natural Guardian, 137 A.3d 1218

Mother T.T. sued individually and on behalf of her infant daughter A.T. for medical malpractice alleging birth-related brachial plexus injury (Erb's palsy) from 2011.
Defendants answered (December 2013); statutory deadline to file an affidavit of merit (AOM) was April 4, 2014; no timely AOM was served.
Defendants moved for summary judgment for failure to file an AOM; plaintiff later produced an AOM dated May 22, 2014 and sought to avoid dismissal by moving under Rule 4:37-1(b) for a voluntary dismissal without prejudice to permit refiling with an AOM.
Trial judge adjourned, then denied a further adjournment, denied the voluntary dismissal, and granted summary judgment, dismissing the malpractice complaint with prejudice for failure to comply with the AOM statute; the judge declined to rule on the statute’s constitutionality as not properly raised.
Plaintiffs appealed arguing the court should have allowed a voluntary dismissal without prejudice (given A.T. is a minor and the statute of limitations is tolled) and that the AOM statute is unconstitutional; the Appellate Division affirmed the dismissal with prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 4:37-1(b) allows voluntary dismissal without prejudice to avoid dismissal with prejudice for failing to file a timely AOM	Rule 4:37-1(b) should permit dismissal without prejudice so plaintiff (a minor) can refile later within the tolled limitations period; no prejudice to defendants	Allowing dismissal would circumvent the AOM statutory timeframes and undermine the statute’s purpose of weeding out frivolous suits; dismissal with prejudice is required	Trial court and Appellate Division: Rule 4:37-1(b) cannot be used to evade AOM statutory deadlines; dismissal with prejudice affirmed
Whether the AOM statute is unconstitutional as invading judicial power to regulate practice and procedure	Plaintiff contends the statute is unconstitutional	Defendants defended the statute; trial court found constitutional challenge not properly presented	Court declined to address constitutionality on appeal because the issue was not properly raised below

Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415 (2010) (AOM statute purpose: weed out frivolous malpractice suits; equitable relief only in exceptional circumstances)
Cornblatt v. Barow, 153 N.J. 218 (1998) (failure to file AOM strikes at the heart of the cause of action; generally requires dismissal with prejudice)
Kubiak v. Robert Wood Johnson Univ. Hosp., 332 N.J. Super. 230 (App. Div. 2000) (minor plaintiff bound by guardian’s litigation omissions; failure to timely file AOM requires dismissal with prejudice)
Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001) (AOM statute is a threshold showing to identify nonfrivolous malpractice claims)