AGOSTINO FERREIRA AND MARGARIDA FERREIRA, H/W, PLAINTIFFS-APPELLANTS, v. RANCOCAS ORTHOPEDIC ASSOCIATES AND BRUCE W. WULFSBERG, M.D., DEFENDANTS-RESPONDENTS.
Supreme Court of New Jersey
November 24, 2003
Reargued September 22, 2003
178 N.J. 144, 836 A.2d 779
Jeremy P. Cooley, argued the cause for respondents (Lenox, Socey, Wilgus, Formidoni, Brown, Giordano & Casey, attorneys).
Abbott S. Brown, argued the cause for amicus curiae, Association of Trial Lawyers of America-New Jersey (Bendit Weinstock, attorneys).
The Affidavit of Merit statute,
Beginning with Cornblatt, we have fashioned equitable remedies to mitigate the harshness of a rigid application of the statute that would result in the dismissal of an otherwise meritorious cause of action. In this case, plaintiff‘s attorney possessed an affidavit of merit ten days after the receipt of the answer well-within the time permitted by the statute to serve the affidavit on opposing counsel. The validity of the complaint is not at issue. Due to inadvertence, plaintiff‘s attorney served the affidavit eighteen days out-of-time, but before defendants moved to dismiss the complaint for failure to comply with the statutory deadline. We hold that this case is a suitable candidate for equitable relief.
This case brings to mind the adage that an ounce of prevention is worth a pound of cure. Therefore, going forward, we will require case management conferences in the early stage of malpractice actions to ensure compliance with the discovery process, including the Affidavit of Merit statute, and to remind the parties of the sanctions that will be imposed if they do not fulfill their obligations.
I.
Plaintiff Agostino Ferreira, represented by Mark Cuker, Esq., filed a medical malpractice complaint against defendants Dr. Bruce Wulfsberg and Rancocas Orthopedic Associates. The complaint alleged that defendants’ negligent treatment of plaintiff for a fractured left heel caused an infection and the fracture not to heal properly. As a consequence, plaintiff suffered pain and economic hardship. The complaint, which detailed with specificity the acts of malpractice, alleged that defendants failed to use due care in (1) performing the surgery on plaintiff‘s left leg; (2) diagnosing the infection and bone fragments impinging on nerves; (3) removing bone fragments during surgery; (4) closing the wound; (5) prescribing antibiotics; (6) not consulting an appropriate infectious disease specialist; and (7) instructing the physical
Several months before filing suit, Cuker retained Dr. Gregory B. Shankman, a board certified orthopedic surgeon, to review plaintiff‘s medical records and determine whether the care defendants and others rendered to plaintiff fell outside acceptable professional standards. In the pre-suit stage, Dr. Shankman advised Cuker by telephone that, in his opinion, there was a reasonable probability that only defendants were negligent in their care of plaintiff, thereby eliminating two other potential defendants from being named in the complaint. During this period, Cuker sent Dr. Shankman an affidavit of merit to review and sign.
On May 31, 2000, the complaint was filed. On August 17, 2000, defendants filed their answer, which asserted several affirmative defenses and demanded the production of a “medical expert affidavit.” Cuker claims that the answer and the case information statement were misfiled in his office and not reviewed by him until January 2001. Within ten days of the filing of the answer, Cuker received Dr. Shankman‘s signed affidavit of merit, which, due to inadvertence, he failed to forward to defense counsel.
Discovery proceeded in the ordinary course. Plaintiff had 120 days after the filing of the answer in which to forward to defendants the affidavit of merit. During this 120-day period, defense counsel made no further request for the “medical expert affidavit” and did not participate in a telephonic case management conference. On January 3, 2001, eighteen days after the statutory deadline for delivering the affidavit of merit, Cuker had a telephone conversation with defense counsel, who brought to Cuker‘s attention that defendants had not received a medical affidavit. Within hours of that conversation, Cuker faxed Dr. Shankman‘s affidavit to defense counsel.
On January 17, 2001, defendants moved to dismiss the complaint with prejudice for failure to comply with the Affidavit of Merit statute. The trial court granted the motion to dismiss, and the Appellate Division affirmed in an unpublished decision. We
II.
The Affidavit of Merit statute provides:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
[
N.J.S.A. 2A:53A-27 .]
The statute was one of five bills passed as part of a 1995 tort reform package designed to “‘strike[ ] a fair balance between preserving a person‘s right to sue and controlling nuisance suits.‘” Palanque v. Lambert-Woolley, 168 N.J. 398, 404, 774 A.2d 501, 505 (2001) (quoting Office of the Governor, News Release 1 (June 29, 1995)); Cornblatt, supra, 153 N.J. at 228, 708 A.2d at 405-06.1 The statute imposes a set of procedural requirements in order for a plaintiff to maintain a professional malpractice action. Cornblatt, supra, 153 N.J. at 228-29, 708 A.2d at 405-06. First, the
The statute also places certain burdens on the defendant to provide the documents necessary for the preparation of the affidavit by the plaintiff‘s expert. In the absence of compliance with a document request, the plaintiff may provide a sworn statement, in lieu of the affidavit, certifying that the necessary records were not made available.
Our cases have repeatedly emphasized the dual purpose of the Affidavit of Merit statute: “to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court.” Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001); see Palanque, supra, 168 N.J. at 404, 774 A.2d at 505 (stating that Legislature intended “to curtail frivolous litigation without preventing access to the courts for meritorious claims“); Galik v. Clara Maass Medical Center, 167 N.J. 341, 359, 771 A.2d 1141, 1152 (2000) (“there is no legislative interest in barring meritorious claims
We have recognized—consistent with our understanding of its legislative intent—two equitable remedies that temper the draconian results of an inflexible application of the statute. A complaint will not be dismissed if the plaintiff can show that he has substantially complied with the statute. Palanque, supra, 168 N.J. at 405-06, 774 A.2d at 505-06; Fink v. Thompson, 167 N.J. 551, 561-65, 772 A.2d 386, 392-95 (2001); Galik, supra, 167 N.J. at 351-59, 771 A.2d at 1147-53; Cornblatt, supra, 153 N.J. at 239-42, 708 A.2d at 411-13. Moreover, a complaint will be dismissed without prejudice if there are extraordinary circumstances to explain noncompliance. Palanque, supra, 168 N.J. at 404-05, 774 A.2d at 505-06; Cornblatt, supra, 153 N.J. at 246-47, 708 A.2d at 414-15.
In Cornblatt, supra, we first applied the doctrine of substantial compliance in the context of the Affidavit of Merit statute. 153 N.J. at 239-42, 708 A.2d at 411-13. The doctrine is invoked so that technical defects will not defeat a valid claim. Id. at 239, 708 A.2d at 411; see also Galik, supra, 167 N.J. at 352, 771 A.2d at 1148 (“It is a doctrine based on justice and fairness, designed to avoid technical rejection of legitimate claims.“) The doctrine requires the moving party to show: “(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner‘s claim; and (5) a reasonable explanation why there was not strict compliance with the statute.” Galik, supra, 167 N.J. at 353, 347-48, 771 A.2d at 1149, 1144-46 (finding substantial compliance where plaintiff did not file affidavit within statutory time frame, but plaintiff‘s counsel, before initiating suit, provided defendants’ insurance carriers with two detailed expert‘s reports that estab-
In the present case, plaintiff‘s counsel was in possession of the affidavit of merit within ten days of the filing of the answer. Moreover, plaintiff‘s counsel had complied with the underlying legislative purpose by having an expert verify the meritorious nature of the malpractice claims at an early stage of the case. Defendants do not contend that they suffered prejudice by the eighteen-day late service of the affidavit. There was no delay in the proceedings or unnecessary expense incurred by defendants as a result of the affidavit‘s tardy arrival. Defendants did not request the affidavit at any point between the filing of the answer and the end of the 120-day statutory period. Significantly, it was not until after the receipt of the affidavit that defendants filed the motion to dismiss.
Although this case satisfies most of the factors necessary to establish substantial compliance with the statute, it nevertheless falls short of the mark. As in Palanque, supra, plaintiff‘s counsel did not, within the statutory time frame, take steps to forward the
This plaintiff possessed the affidavit of merit almost at the time the clock began to run and served the affidavit before defendants filed a motion to dismiss. In that respect, he stands apart from the plaintiffs in Palanque; Fink, and Galik, who did not serve affidavits that conformed to the statute until after defendants had filed motions to dismiss. Ordinarily, one would expect the defendant who claims to be prejudiced by the failure to receive discovery to file an appropriate motion based on its absence, not on the occasion of its receipt. We do not fault defendants for attempting to enforce the time requirements of the Affidavit of Merit statute to their advantage. However, principles of equity and the essential goal of the statute—to eliminate frivolous lawsuits—are not advanced by dismissing the complaint. Plaintiff‘s malpractice action was verified by an expert as meritorious within 120 days of the filing of defendants’ answer and served on defendants only eighteen days later. Defendants waited until after they received the affidavit to file the dismissal motion. Under those circumstances, we conclude that defendants should be estopped from claiming entitlement to dismissal as a remedy.
We do not condone the misfiling of pleadings by plaintiff‘s counsel or his failure to use the simple expedient of a calendar as a guard against inadvertence. The Association of Trial Lawyers of America-New Jersey, as amicus curiae, has urged this Court to adopt a rule that would require, as a condition of the filing of a malpractice action, the contemporaneous attachment of an affidavit of merit to the complaint. That would appear to be a disheartening concession that not all plaintiffs’ counsel can be expected to follow the time restrictions in the Affidavit of Merit statute. We cannot rewrite the statute, eliminating the time afforded to the
The Affidavit of Merit statute was intended to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims that require the resources of our civil justice system. The statute was not intended to encourage gamesmanship or a slavish adherence to form over substance. The statute was not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit.
The rule we announce in this case will further the fundamental purpose of the Affidavit of Merit statute. In a case where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file such a motion based on the late arrival of the affidavit. If defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply. That formulation places strong incentives on both plaintiffs’ and defense counsel to act diligently.
III.
To ensure that discovery related issues, such as compliance with the Affidavit of Merit statute, do not become sideshows to the primary purpose of the civil justice system—to shepherd legitimate claims expeditiously to trial—we propose that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions. Our rules already provide for case management conferences in civil cases. See
Our proposal does not restrict the flexibility of trial courts to convene additional case management conferences to facilitate the discovery process and motion practice. Our Best Practices rules contemplate that case management conferences should be held when “something can be gained from it.” 2 New Jersey Practice, Court Rules Annotated, Comment on
IV.
Diligence and attentiveness in the practice of law will spare plaintiffs’ attorneys from later seeking an equitable remedy that may not be available. Those members of the plaintiffs’ bar who follow the simple dictates of the statute will find no impediment to championing the causes of their clients.
The decision of the Appellate Division is reversed and the matter remanded for further proceedings.
I have no quarrel with the court‘s ultimate disposition of this matter. Reinstatement of the complaint is the obviously correct outcome. My point of departure from my colleagues is a global one. I am no longer willing to pen or join in the reasoning of yet another opinion that limns excessively fine distinctions solely to avoid the injustice that necessarily flows from the holding of Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 708 A.2d 401 (1998), that all deviations from the Affidavit of Merit statute warrant dismissal with prejudice except for the narrowly prescribed category of “exceptional circumstances.” I therefore write separately to express my view that it is time for Cornblatt to be modified.
When the Legislature enacted the Affidavit of Merit statute,
In Cornblatt, this Court held that deviation from the Affidavit of Merit statute should result in a dismissal with prejudice except in extraordinary circumstances. Cornblatt, supra, 153 N.J. at 247, 708 A.2d at 415 (citing Hartsfield v. Fantini, 149 N.J. 611, 618, 695 A.2d 259, 263 (1997)). In line with the legislative intent, Cornblatt was on firm legal ground in concluding that, if a plaintiff is unable to provide an affidavit of merit in a malpractice case, a fundamental element necessary to the ultimate rendering of a
However, experience over the past eight years has taught us that there are two distinct classes of cases arising under
The vastly more common category is entirely different. It does not involve the inability of a plaintiff to produce an affidavit regarding deviation, but arises out of procedural slip-ups in filing or service or out of curable technical deficiencies. Such defects do not “go to the heart of the cause of action.” Indeed, because they do not reflect negatively on the merits of a plaintiff‘s malpractice claim, dismissing the complaint does nothing to advance the legislative goal of ridding the system of frivolous cases. On the contrary, it thwarts the stated aim of allowing meritorious cases to go forward. That was never the intention of the Legislature when it enacted the Affidavit of Merit statute.
Accordingly, Cornblatt‘s mandatory dismissal with prejudice rule should be limited to those cases in which a plaintiff cannot or will not produce an affidavit of merit at all. Con-comitantly, trial judges should have available to them a full panoply of discretionary remedies for procedural deficiencies in complying with the Affidavit of Merit statute, including dismissal with or without prejudice and discovery-type sanctions such as reasonable expenses incurred in obtaining the affidavit along with counsel fees. See
Modifying Cornblatt will not offend notions of stare decisis. Certain expectations about Affidavit of Merit litigation, particularly that it would spring from cases in which plaintiffs could not support their claims of deviation, obviously underpinned Cornblatt and directed its result. Those expectations have not materialized. In fact, the heartland of Affidavit of Merit cases involves nothing more than procedural mistakes that are entirely irrelevant to the legitimacy of the cause of action. That reality not only justifies but requires a modification of Cornblatt.
Stare decisis operates to control change, not to prevent it. Fox v. Snow, 6 N.J. 12, 23, 76 A.2d 877, 883 (1950) (Vanderbilt, J., dissenting). Indeed, as Justice Vanderbilt observed in Fox, that doctrine does not require us “to adhere blindly to rules that have lost their reason for being.” Ibid. The broad mandatory dismissal with prejudice language of Cornblatt falls into that category. Until it is modified, we will be required to continue on our course of painstakingly deconstructing the facts in every single Affidavit of Merit case in order to find some basis on which to escape Cornblatt and achieve a just result. Stare decisis does not require that of us.
One final note. The preventive case management scheme the majority has put into place essentially carves a class of cases out of the template for case management set forth in
Justice ZAZZALI and Judge PRESSLER (temporarily assigned) join in this opinion.
Justice ZAZZALI, concurring in part and dissenting in part.
The majority and concurring opinions represent positive efforts to address an intractable problem. I agree with the result reached by Justice Albin on behalf of the majority, a result that will salvage yet another meritorious claim from dismissal under the Affidavit of Merit statute. Although I concur in the majority‘s granting of relief to plaintiff, as to future cases I prefer the approach taken by Justice Long in her concurring opinion.
I recognize that the Affidavit of Merit statute has important objectives, but I write separately to express my reservations about its constitutionality. Because the parties have not briefed nor argued the issue, it would be inappropriate to speak conclusively on the subject. Nonetheless, the question, which is a profound one, remains unresolved. I offer these observations.
In Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 248, 708 A.2d 401, 415-16 (1998), this Court discussed, but did not decide, whether the Affidavit of Merit statute impermissibly invades our exclusive power to regulate practice and procedure. In dicta, we suggested that the statute does not violate the doctrine of separation of powers. Ibid. Underlying that suggestion were two observations. First, we stated that “[i]t is within the Legislature‘s
Five years later, and after extensive litigation over strict application of the statute, one fairly can say that the affidavit-of-merit requirement has engendered significant concerns that call for a more thorough exploration of the statute‘s constitutionality. Indeed, numerous courts have struggled with the statute when its application would bar an apparently meritorious claim. See, e.g., Burns v. Belafsky, 166 N.J. 466, 478, 766 A.2d 1095, 1101 (2001) (reasoning that because statute was not intended to bar meritorious claims, lawyer‘s inadvertent failure to file timely affidavit of merit did not preclude plaintiff from establishing good cause for sixty-day extension); Mayfield v. Cmty. Med. Assocs., 335 N.J.Super. 198, 209, 762 A.2d 237, 244 (App.Div.2000) (finding, under circumstances, that “it would be wholly counter to the remedial purpose of the statute to dismiss [an] apparently meritorious action based on what would be no more than a merely mechanical application of the dry statutory words“).
Whether the struggle encountered by our courts demonstrates that the Legislature has impinged on powers reserved to the judiciary remains an open question. Because the parties have not raised the matter, the well-intentioned majority opinion does not address it. Confined by our decision in Cornblatt, the majority attempts to reduce litigation over the statute by mandating a case-management conference, a measure that I hope will succeed on a practical level. However, I agree with Justice Long that the case-
I.
Article VI, section 2, paragraph 3 of the New Jersey Constitution provides that “the Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.” In Winberry v. Salisbury, 5 N.J. 240, 247, 255, 74 A.2d 406, 410, 414 cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950), this Court interpreted that provision as providing the judicial branch with exclusive authority over court administration, including court practice and procedure. In reaching that determination, we observed that “[r]ules of the court are made by experts who are familiar with specific problems to be solved and the various ways of solving them.” Id. at 253, 74 A.2d at 413. Underlying our holding in Winberry was the doctrine of separation of powers and its recognition that each branch of government is suited to make certain types of decisions and should “exercise fully its own powers without transgressing upon the powers rightfully belonging to a cognate branch.” Knight v. City of Margate, 86 N.J. 374, 388, 431 A.2d 833, 840 (1981).
Winberry and its progeny instruct that whether a legislative enactment impermissibly overrides a court rule depends on the character of the enactment. If the statute in question involves procedural as opposed to substantive rights, the court rule generally prevails. See, e.g., Winberry, supra, 5 N.J. at 255, 74 A.2d at 414 (concluding that court rules requiring appeal from final judgment within forty-five days prevailed over statute authorizing appeal within one year after judgment); Borough of New Shrewsbury v. Block 115, Lot 4, 74 N.J.Super. 1, 8, 180 A.2d 387, 391 (App.Div.1962) (holding that court rule, not statute, controls motions to reopen judgment under law governing tax foreclosures);
In Winberry, we distinguished between substantive and procedural laws by their primary effects on the parties. Substantive law defines the parties’ rights and duties, whereas procedural law regulates the means through which those rights and duties are enforced. Winberry, supra, 5 N.J. at 247-48, 74 A.2d at 410. In other words, “[i]f it is but one step in the ladder to final determination and can effectively aid a court function, it is procedural in nature and within the Supreme Court‘s power of rule promulgation.” Suchit v. Baxt, 176 N.J.Super. 407, 427, 423 A.2d 670, 680 (Law Div.1980).
Although Winberry expressed the substantive/procedural divide in rather clear terms, that distinction has been difficult to apply because statutes and rules can have both procedural and substantive implications. Knight, supra, 86 N.J. at 388-89, 431 A.2d at 840-41. “It occasionally happens that an underlying matter defies exact placement or neat categorization.” Ibid. Adding to the complexity of the task is the fact that the separation between the legislative and judicial branches has “never been watertight.” Id. at 388, 431 A.2d at 840 (quoting In re Salaries for Prob. Officers, 58 N.J. 422, 425, 278 A.2d 417, 418 (1971)). Indeed, our precedent makes clear that, in the spirit of comity, we at times have shared authority over administration of the judicial system with the Legislature. See, e.g., id. at 391, 431 A.2d at 842 (upholding statute prohibiting judicial employees from casino employment). In doing so, we have observed that “the doctrine of
Thus, our jurisprudence since Winberry demonstrates that the procedural characteristics of a legislative enactment do not necessarily determine the enactment‘s fate. Knight, supra, 86 N.J. at 389, 431 A.2d at 841 (recognizing that our post-Winberry decisions “have made clear that [although] the judicial power is paramount and exclusive, it need not in every context or application be preclusive“). Rather, judicial toleration of legislative intrusion has pivoted on a two-prong analysis. Initially, we have considered whether the judiciary has fully exercised its power with respect to the matter at issue. Id. at 389-90, 431 A.2d at 841. In the absence of complete judicial action, we then have inquired into whether the statute serves a legitimate legislative goal, and, “concomitantly, does not interfere with judicial prerogatives or only indirectly or incidentally touches upon the judicial domain.” Id. at 391, 431 A.2d at 842; cf. Suchit, supra, 176 N.J.Super. at 427, 423 A.2d at 680 (finding court rule establishing medical malpractice panel was procedural device in view of its incidental effect on substantive rights and express purpose—i.e., “expediting the disposition of cases“). In other words, we have accommodated legislative enactments touching on integral areas of the judicial system only when those enactments “have not in any way interfered with this Court‘s constitutional obligation” to “insure a proper administration of the court system.” Passaic Cty. Prob. Officers’ Ass‘n v. County of Passaic, 73 N.J. 247, 255, 374 A.2d 449, 453 (1977) (emphasis added); see also Knight, supra, 86 N.J. at 391, 431 A.2d at 842 (upholding statutory prohibition on employment of members of judiciary by casino licensees based on finding that statute dealt with important legislative concern and did not conflict with Court‘s exercise of judicial powers).
II.
In the context of this case, the relevant question, and my concern, is whether the statute, which not only declares an affida-
I do not believe the Affidavit of Merit statute is akin to a statute of limitations, which would be within the Legislature‘s province. Rather, in my view, the mandatory time constraints at the heart of the statute are clearly procedural and were recognized as such by the Legislature itself, which described the statute as establishing “new procedures.” Assembly Insurance Committee, Statement to Senate Bill No. S-1493, at 1 (June 1, 1995); Senate Commerce Committee, Statement to Senate Bill No. S-1493, at 1 (Nov. 10, 1994).
As we observed in Cornblatt, supra, 153 N.J. at 238, 708 A.2d at 411, “the provision for filing an affidavit of merit imposes a pleading requirement.” Pleading requirements fall clearly within this Court‘s rule-making prerogatives. See generally
As we have said on numerous occasions, the Legislature enacted the Affidavit of Merit statute to “weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward” by requiring plaintiffs to make a threshold showing of the merits of their claim during the pleading stage. E.g., Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350, 771 A.2d 1141, 1147 (2001). Reducing the number of frivolous claims is a commendable governmental purpose that is closely linked to the efficient administration of justice.
Notwithstanding the legitimacy of the legislative objective, it may be difficult to reconcile the strict pleading requirements contained in the statute with our flexible approach to pleading, a keystone of our procedural jurisprudence that is reflected in both our court rules and case law.3 That irreconcilability may result in
For example, as we interpreted the statute in Cornblatt, failure to comply with the strict temporal requirements of the statute requires dismissal with prejudice except in extraordinary circumstances. That result is contrary to our rules of practice and their spirit in several respects. It is incompatible with our aversion to dismissing complaints for failure to state a claim pursuant to
Moreover, dismissing a claim for failure to comply with a procedural hurdle disserves both the legislative goal of preserving meritorious malpractice actions and the broader raison d’ etre of our court rules—achieving substantial justice on the merits. As Justice Long notes in her concurrence, “procedural slip-ups in filing or service ... ‘do not go to the heart of’ ” a professional malpractice claim. Op. at 157, 836 A.2d at 786. Instead, those slip-ups should properly be regarded as curable deficiencies in pleadings that are traditionally left to a court‘s discretion under our court rules.
Finally, there is an apparent conflict between the affidavit-of-merit requirement and the express instruction of
In sum, the conflicts between our rules and the Affidavit of Merit statute, coupled with the fine distinctions that we have drawn to avoid the injustice that flows from the statute‘s strict application, suggest a possible constitutional infirmity.
III.
We would not be alone in concluding that an affidavit-of-merit statute is an improper legislative incursion into the judicial domain. In Hiatt v. Southern Health Facilities, Inc., 68 Ohio St.3d 236, 626 N.E.2d 71, 72 (1994), the Supreme Court of Ohio reached a similar conclusion. The Ohio Constitution, like ours, vests exclusive power over practice and procedure with the judiciary. Id. at 72 n. 1. In Hiatt, the Supreme Court of Ohio considered a statute that required a plaintiff in a malpractice action to attach to the complaint an affidavit, in which either the plaintiff or his or her attorney verified that the plaintiff had attempted to obtain medical records. Id. at 73. The court found that the statutory requirement conflicted with a court rule that expressly provided that pleadings did not have to be verified or accompanied by an affidavit. Ibid. Citing to the constitutional provision vesting Ohio‘s judiciary with exclusive power over practice and procedure, the court held that the court rule prevailed, rendering the statute invalid. Ibid. Thus, at least one other court has concluded that an affidavit-of-merit statute raises separation-of-powers concerns.
IV.
Fifty years ago we warned that “[i]t would ... defeat the desired objectives of simplicity and flexibility in procedure, if statutory procedures might be grafted on the rules of the court.” State v. Otis Elevator Co., 12 N.J. 1, 17, 95 A.2d 715, 723 (1953). Experience has affirmed the Otis fears: conditions have become more complex and less flexible. If the Legislature simply had
The Affidavit of Merit statute has important and laudable goals and should not be disregarded without due consideration. Were we to conclude that the statute is constitutionally suspect, it may be subject to judicial surgery. We have engaged in surgery to excise constitutional defects while preserving legislative intent. Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 280, 716 A.2d 1137, 1149-50 (1998), cert. denied, 527 U.S. 1021, 119 S.Ct. 2365, 144 L.Ed. 2d 770 (1999). In this instance, however, it may be more prudent for the Legislature to take corrective action, following the examples set forth in the prior paragraph. Such action would obviate the constitutional concerns that I have expressed.
V.
In the eight years following the enactment of the Affidavit of Merit statute, we have interpreted and applied the statute on numerous occasions. During those years, we have not addressed comprehensively the statute‘s constitutionality. In the meantime, the public, the parties, and the courts have dealt with a torrent of litigation that unduly has burdened litigants as well as our trial
Judge PRESSLER (temporarily assigned) joins in this opinion.
For reversing and remanding—Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and Judge PRESSLER (temporarily assigned)—7.
Concur in part/dissent in part—Justices LONG, ZAZZALI and Judge PRESSLER (temporarily assigned).