KIM GLUCKER VS. ROBERT BARBALINARDO, M.D.Â (L-2373-13, ESSEX COUNTY AND STATEWIDE), A-3567-15T2

Background

Plaintiff Kim Glucker underwent a routine colonoscopy on Dec. 5, 2011, performed by defendant Dr. Robert Barbalinardo, a board‑certified general surgeon; plaintiff alleges the colonoscopy ruptured her spleen, requiring splenectomy and ICU care.
Plaintiffs timely served an affidavit of merit (AOM) from a general surgeon (Dr. Sarnelle) and a gastroenterologist (Dr. Chait); the court accepted only the general surgeon AOM.
Dr. Sarnelle later withdrew for health reasons; plaintiffs then served reports from Dr. Chait and another expert, but defendants moved to bar Dr. Chait as not meeting the board‑certification/specialty requirement in N.J.S.A. 2A:53A‑41.
Plaintiffs sought a waiver under the Patients First Act waiver provision (N.J.S.A. 2A:53A‑41(c)), certifying extensive efforts to locate a same‑specialty expert (contacting colleagues, attorney organizations, and two expert‑referral services); many potential physicians were excluded because they did not perform screening colonoscopies or were sub‑specialized.
The first judge denied the waiver as insufficiently detailed but allowed supplemental certification and discovery; after supplementation, the first judge again denied the waiver. A second judge, who agreed the record supported a waiver under the statute, nonetheless denied the waiver and granted summary judgment, citing the law‑of‑the‑case as binding.
The Appellate Division reversed, holding the waiver should have been granted because plaintiffs made a good‑faith effort and the second judge erred by declining to exercise discretion and treating the earlier interlocutory ruling as binding.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs satisfied the "good faith effort" requirement of N.J.S.A. 2A:53A‑41(c) to obtain a same‑specialty, board‑certified expert, permitting a waiver	Glucker: counsel made extensive, documented, good‑faith efforts (contacts with colleagues, attorney organizations, and two expert‑referral services) and thus satisfied the waiver statute; court should focus on the effort, not reasons experts declined	Barbalinardo: plaintiffs failed to show why each contacted expert could not testify; lack of detail means no good‑faith showing and waiver should be denied	Held: Plaintiffs satisfied the statute's focal "effort" requirement; the record showed extensive, adequate attempts to find a same‑specialty expert and a waiver was proper.
Whether the law‑of‑the‑case doctrine barred the second judge from granting the waiver after the first judge denied it	Glucker: law‑of‑the‑case does not bind a co‑equal judge to an interlocutory ruling, especially where the prior ruling was clearly erroneous or the record changed; the second judge should have exercised discretion	Barbalinardo: the first judge denied the waiver; the second judge was bound to follow that ruling	Held: The second judge erred by treating the prior interlocutory denial as binding; law‑of‑the‑case is discretionary and does not preclude reconsideration where the earlier ruling was clearly erroneous and the record supported a waiver.

Key Cases Cited

Ryan v. Renny, 203 N.J. 37 (2010) (interpreting the waiver provision of N.J.S.A. 2A:53A‑41(c) and emphasizing that the court should focus on the movant's "effort" to obtain a same‑specialty expert)
Nicholas v. Mynster, 213 N.J. 463 (2013) (explaining the affidavit‑of‑merit and expert‑qualification framework under the Patients First Act)
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995) (standard for reviewing summary judgment motions)
Lombardi v. Masso, 207 N.J. 517 (2011) (describing the law‑of‑the‑case doctrine and its scope)
State v. Reldan, 100 N.J. 187 (1985) (noting the law‑of‑the‑case doctrine is discretionary and should be applied flexibly)