A.T. v. Cohen
175 A.3d 932
N.J.2017Background
- T.T. sued on behalf of her daughter A.T. for birth injuries (Erb’s Palsy) allegedly caused by hospital and medical providers; amended complaint filed Sept. 25, 2013.
- Defendants answered Dec. 5, 2013 and demanded an Affidavit of Merit (AOM) under the Affidavit of Merit Statute (AMS); plaintiff had 60 days (120 with court leave) to serve AOM.
- No Ferreira (accelerated case management) conference was scheduled or waived by court personnel; plaintiff did not seek an extension and failed to serve a timely AOM within 120 days.
- Defendants moved for summary judgment on April 7, 2014 based on AOM noncompliance; plaintiff submitted an AOM with opposition papers in May 2014 and later sought voluntary dismissal without prejudice under R. 4:37‑1(b).
- Trial court denied voluntary dismissal, granted summary judgment and dismissed with prejudice; Appellate Division affirmed (majority), one judge dissented.
- Supreme Court reversed dismissal with prejudice, holding the combination of attorney error and the Judiciary’s failure to schedule a Ferreira conference constituted extraordinary circumstances permitting the untimely AOM; declined to endorse voluntary dismissal under R. 4:37‑1(b) as the remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to timely serve an AOM required dismissal with prejudice | A.T. argued equities (minor plaintiff, attorney oversight, no prejudice to defendants, no Ferreira conference) warranted allowing late AOM | Defendants argued AMS mandates dismissal with prejudice for noncompliance and voluntary dismissal would circumvent statute | Court reversed dismissal with prejudice—extraordinary circumstances existed (attorney error + Judiciary failed to schedule Ferreira conference), so untimely AOM accepted |
| Whether a voluntary dismissal under R. 4:37‑1(b) was appropriate relief | Plaintiff sought dismissal without prejudice to refile with AOM to avoid prejudice | Defendants contended voluntary dismissal would nullify AMS and permit gamesmanship; would prejudice providers and insurers | Court refused to permit R. 4:37‑1(b) dismissal as the remedy, warning against using it to evade AMS; relied on equitable exception instead |
| Whether failure to hold Ferreira conference tolls or excuses AMS time limits | Plaintiff relied on absence of conference as a factor supporting equitable relief | Defendants contended Ferreira omission does not toll statutory deadlines per Paragon | Court held failure to schedule conference alone does not toll deadlines but, combined with other circumstances, contributed to extraordinary situation justifying relief |
| Whether courts should modify administrative procedures to prevent recurrence | Plaintiff urged system fixes to prevent injustice to minors and counsel errors | Defendants noted statutory clarity and urged strict enforcement | Court ordered improvements to electronic case management to notify parties of AOM obligations and to schedule Ferreira conferences; cautioned that waiver/scheduling will not excuse AMS duties |
Key Cases Cited
- Hall v. N.J. State Bar Ass’n, 147 N.J. 379 (recognizing AOM as required threshold showing)
- Cornblatt v. Barow, 153 N.J. 218 (construing AMS to require dismissal with prejudice for noncompliance, while allowing equitable exceptions)
- Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (mandating accelerated case management conference to address AOM compliance)
- Knorr v. Smeal, 178 N.J. 169 (reinforcing Ferreira conference role and defendant obligations to raise AOM defects)
- Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415 (explaining Ferreira conferences are mandatory but do not toll AMS deadlines; extraordinary circumstances narrowly defined)
- Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (affirming legislative intent to weed out frivolous malpractice suits)
- Palanque v. Lambert‑Woolley, 168 N.J. 398 (attorney inadvertence alone generally insufficient for equitable relief)
- Shulas v. Estabrook, 386 N.J. Super. 91 (discouraging use of voluntary dismissal to evade procedural or statutory requirements; protecting defendants from duplicative litigation)
- Kubiak v. Robert Wood Johnson Univ. Hosp., 332 N.J. Super. 230 (App. Div. decision treating AMS noncompliance as requiring dismissal with prejudice in minor’s case)