A.T., an Infant by Her Mother and Natural Guardian
Argued January 20, 2016 – Decided April 27, 2016
Before Judges Fisher, Espinosa, and Currier.
Alan Roth argued the cause for appellants (Bendit Weinstock, P.A. and Gary P. Falkowitz (Parker Waichman LLP), attorneys; Mr. Roth, on the briefs).
Lauren M. Strollo argued the cause for respondents (Vasios, Kelly & Strollo, P.A., attorneys; Ms. Strollo, of counsel and on the brief; Linda Fulop-Slaughter, on the brief).
The opinion of the court was delivered by
CURRIER, J.S.C. (temporarily assigned).
The issue in this medical malpractice case is whether the minor plaintiff can take a voluntary dismissal without prejudice to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit (AOM) within the required timeframe. We conclude that
T.T. brought this action individually and on behalf of her daughter A.T., asserting medical malpractice claims against all defendants. The complaint alleges that A.T. suffers from Erb‘s palsy as the result of a brachial plexus injury caused at her birth in 2011. An answer was filed on December 5, 2013 on behalf of all defendants with the exception of Savaged.
On April 7, 2014, defendants moved for summary judgment on the grounds
Present counsel entered an appearance as co-counsel for plaintiff and filed a motion for a voluntary dismissal under
The judge denied the additional adjournment and granted summary judgment to defendants, ruling that plaintiff‘s failure to file an AOM within the statutory period required the dismissal of her complaint with prejudice. She stated:
The plaintiff seeks a dismissal without prejudice, on terms that if it gets re-filed then the Affidavit of Merit would be with it. That‘s . . . engaging in a fiction to make it look like I‘d be doing something that . . . really wasn‘t allowed, which would be extending the time beyond the 120 days. . . . I would be extending the time for the Affidavit of Merit beyond the time set forth in the statute.
The judge also noted there was no vehicle in which to consider the constitutionality of the statute as no motion had been presented to her on that issue. She, therefore, declined to address that argument.
Plaintiff moved for reconsideration. In counsel‘s supporting certification, he sought a review of the judge‘s previous decision or “in the alternative to have the [c]ourt declare the Affidavit of Merit Statute unconstitutional.” In denying the motion, the judge reiterated her reasoning expressed during her original ruling and found that no new information had been presented to her. In addressing the constitutionality argument, she stated:
If anybody wanted to raise that, you should have made a motion before I dismissed the case, notice to the defendant, opportunity to reply, notice to the Attorney General . . . . None of that happened.
And it‘s not appropriate to raise it, even as minimally as it was raised in the papers, on a Motion for Reconsideration.
This appeal followed.
On appeal, plaintiff argues that (1) the judge erred in dismissing the case with prejudice; and (2) the AOM statute is unconstitutional as it invades the judiciary‘s power to regulate practice and procedure. We do not address the merits of plaintiff‘s constitutionality argument as we find it was not properly raised to the trial judge.7 This court will “decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.” Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Plaintiff does not contest that her failure to file an AOM within the statutory timeframe required a dismissal of the complaint; rather, she argues that the judge should have granted a dismissal without prejudice under
A failure to comply with the AOM statute “generally requires dismissal with prejudice because the absence of an affidavit strikes at the heart of the cause of action.” Paragon Contractors, Inc. v. Peachtree Condo. Ass‘n, 202 N.J. 415, 422 (2010); see
Plaintiff does not assert the existence of extraordinary circumstances; she merely states that her failure to provide an AOM within the required statutory timeframe was an “oversight.” The Supreme Court has determined that attorney inadvertence falls short of establishing extraordinary circumstances required to avoid a dismissal with prejudice. Palanque v. Lambert-Woolley, 168 N.J. 398, 405 (2001). See also Burns v. Belafsky, 326 N.J. Super. 462, 470 (App. Div. 1999) (“Carelessness, lack of circumspection, or lack of diligence on the part of counsel are not extraordinary circumstances which will excuse missing a filing deadline.“) (quoting Hyman Zamft and Manard v. Cornell, 309 N.J. Super. 586, 593 (App. Div. 1998)).
Nonetheless, plaintiff asks us to circumvent the finality of the AOM statute by utilizing
The decision whether to dismiss a matter without prejudice under
Facing defendants’ motion for summary judgment and the expiration of the statutory timeframe within which to file an AOM, plaintiff moved for a voluntary dismissal. Counsel candidly explained that this would provide him the opportunity to review and investigate the matter and, if appropriate, re-file the complaint with an AOM. Since A.T. was a minor, counsel reasoned that the new complaint would be filed within the statute of limitations, therefore causing no prejudice to defendants.
We find that permitting a voluntary dismissal in these circumstances would render the AOM statute meaningless in the case of a minor plaintiff. The purpose underlying the statute has been oft explained. “It was designed as a tort reform measure and requires a plaintiff in a malpractice case to make a threshold showing that the claims asserted are meritorious. It is designed to weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward.” Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001) (citing Cornblatt, supra, 153 N.J. at 242).
If plaintiff were permitted to take a voluntary dismissal, the timeframes in the AOM statute and the purpose behind it would be defeated. Defendants would be faced with waiting indefinitely for a resolution of the litigation against them, incurring costs to defend each newly filed action.8 The statute would be rendered moot.
We have previously addressed this issue and rejected the argument that justice requires a dismissal without prejudice due to the plaintiff‘s status as a minor. As we stated in Kubiak v. Robert Wood Johnson University Hospital, 332 N.J. Super. 230, 238 (App. Div. 2000):
[W]here, as here, a guardian ad litem pursues a child‘s claim on behalf of the minor, the guardian steps into the shoes of the minor and is obligated to comply with court rules and the applicable statutes. In short, a minor is protected from a parent‘s or guardian‘s inaction, but not from their improvident actions in the course of litigation.
Our dissenting colleague posits that the dismissal of A.T.‘s complaint under these circumstances is “illogical and inconsistent with other recognized instances of ‘extraordinary circumstances‘” and “fails to respect the solicitude the law affords minors.” Plaintiff, however, does not assert the existence of extraordinary circumstances nor does she argue substantial compliance; just that it was “an oversight” not to file the AOM. And we agree with our colleague that the tolling of the statute of limitations in tort cases for minors has afforded them protection. However, those exceptions were put into place as a result of legislative action. The Legislature did not choose to carve out an
We affirm the denial of the voluntary dismissal motion, the grant of summary judgment to defendants, and the dismissal with prejudice of the complaint.
Affirmed.
FISHER, P.J.A.D., dissenting.
As my colleagues have thoroughly explained, plaintiff commenced this medical malpractice action on behalf of a child against defendants regarding their participation in the child‘s 2011 birth. When plaintiff‘s counsel, a New York practitioner apparently unfamiliar with
In my view, Kubiak‘s brightline rule — that a dismissal based on a failure to comply with the affidavit of merit statute must always be with prejudice even if the claim belongs to a minor — is illogical and inconsistent with other recognized instances of “extraordinary circumstances” that have alleviated others from the consequences of their similar failure; in particular, Kubiak fails to respect the solicitude the law affords minors. Accordingly, unlike my colleagues, I would not adhere to Kubiak and dissent for the following reasons.
To be fair to the motion judge, I would observe that she was required to follow our earlier decision in Kubiak, see Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40 (App. Div. 2003), and cannot be faulted for failing to exercise the discretion otherwise afforded by
In the present circumstances, a suit brought on behalf of an adult would rightly be finally terminated. But the affidavit of merit statute, although admittedly silent on its application to minors — just as the Wrongful Death Act is similarly silent — does not suggest a guardian‘s procedural missteps must be fatal to a minor‘s claim any more than was the case in LaFage.
Indeed, it seems to me that the Kubiak holding rests on the false premise that “[a] dismissal for failure to comply with the [affidavit of merit statute] is not any different than a dismissal after plenary or summary adjudication.” 332 N.J. Super. at 238. This assertion misinterprets everything the Supreme Court has said about the intent of that statute. For example, the Court has held that the affidavit of merit statute was designed only to compel a plaintiff to make “a threshold showing” that a malpractice claim is not frivolous, In re Petition of Hall, 147 N.J. 379, 391 (1997); a failure to make that showing only permits an inference — perhaps true, perhaps not — that the claim is frivolous. In other words, the affidavit of merit statute was designed to “identif[y]” “meritless lawsuits . . . at an early stage of the litigation,” Paragon Contractors, Inc. v. Peachtree Condo. Ass‘n, 202 N.J. 415, 421 (2010); the statute does not require proof the claim will succeed nor does compliance guarantee an adjudication on the merits. That is, experience and common sense suggest that a failure to comply does not mean a claim lacks merit or will not succeed if submitted to a factfinder. A litigant may fail to comply for reasons having nothing to do with a claim‘s merits, such as negligence, inadvertence, or ignorance of the law. Thus, I disagree with Kubiak‘s premise that the failure to serve an affidavit of merit is the equivalent of an adjudication of a case on its merits. Because this faulty premise seems to be the linchpin to Kubiak‘s elimination of a minor‘s opportunity to commence suit later — i.e., how can one later sue on a claim already adjudicated on its merits? — I would depart from Kubiak and reaffirm that trial judges possess the discretion to preserve for the future a minor‘s malpractice action in circumstances such as those at hand.
I also reach this conclusion because the consequences of counsel‘s oversight here are disproportionate both when compared to circumstances previously found excusable or exceptional and when compared to the harm, if any, incurred by defendants.
The pivotal question in any application for a voluntary dismissal centers, often exclusively, on the prejudice to adverse parties. See Shulas v. Estabrook, 385 N.J. Super. 91, 97 (App. Div. 2006); Burke v. Central R. Co., 42 N.J. Super. 387, 398 (App. Div. 1956). Here, the harm or prejudice to defendants is minimal, arguably nonexistent. Defendants are now aware of the minor‘s claim, which could have otherwise lain dormant for many years in light of the tolling provision legislatively created for minors. See
I respectfully dissent for these reasons.