303 F.3d 271 | 3rd Cir. | 2002
WEIS, Circuit Judge:(cid:13) New Jersey legislation requires the plaintiff in a(cid:13) malpractice suit to provide an affidavit of merit within 120(cid:13) days after defendant’s answer is filed. Using the date(cid:13) defendant filed his answer to the first amended complaint(cid:13) as the beginning point, the District Court found that(cid:13) plaintiff ’s affidavit was untimely and dismissed the suit. We(cid:13) conclude that the time limit began to run on the date the(cid:13) defendant filed his answer to the second amended(cid:13) complaint and, therefore, was timely. Accordingly, we will(cid:13) reverse and remand for further proceedings.(cid:13) On February 11, 1999, plaintiff ’s husband, Stanley(cid:13) Snyder, became ill while on a business trip in New Jersey.(cid:13) He was taken to Pascack Valley Hospital, where defendant(cid:13) Dr. Mardik Donikyan diagnosed Mr. Snyder’s condition as(cid:13) cardiac arrhythmia, pneumonia, hypoglycemia, and(cid:13) dehydration. The patient was released that day and(cid:13) returned to his home in Pennsylvania.(cid:13) Two days later, on February 13, 1999, he entered the(cid:13) Chester County Hospital, where doctors discovered that he(cid:13) was suffering from a pulmonary embolism. He was(cid:13) evacuated to the University of Pennsylvania Medical Center,(cid:13) where he died the following day. In September 1999,(cid:13) plaintiff ’s counsel obtained an opinion from a pulmonary(cid:13) specialist that "there had been a deviation from the(cid:13) acceptable standards of care in treating Mr. Snyder at the(cid:13) Pascack Valley Hospital . . . ."(cid:13) In May 2000, plaintiff began a wrongful death action in(cid:13) the United States District Court for the District of New(cid:13) Jersey, alleging malpractice against Dr. Donikyan, the(cid:13) hospital, and Directcare Medical Services, L.L.C. After the(cid:13) parties filed various pleadings, defendants Donikyan and(cid:13) the hospital moved to dismiss the suit because plaintiff had(cid:13) failed to timely file an affidavit of merit certifying the(cid:13) validity of her claims, as required by a New Jersey statute.(cid:13) 3(cid:13) After reviewing the text and purposes of the New Jersey(cid:13) legislation, the District Court concluded that the statute’s(cid:13) time limits began to run when the various defendants filed(cid:13) their original answers, rather than their subsequent(cid:13) answers to an amended complaint. On that basis, the(cid:13) Court found plaintiff ’s affidavit of merit untimely and(cid:13) dismissed the case with prejudice.(cid:13) While the Court deliberated the timeliness issue, plaintiff(cid:13) requested permission to dismiss her case without prejudice(cid:13) so that she could file another suit and comply with the(cid:13) affidavit of merit requirement in a timely fashion. After(cid:13) dismissing the suit, the District Court denied that motion,(cid:13) reasoning that plaintiff ’s plans to refile her suit amounted(cid:13) to an attempted evasion of the statute. Plaintiff has(cid:13) appealed both rulings.(cid:13) Because plaintiff is a Pennsylvania citizen and the(cid:13) defendants are citizens of New Jersey, we have jurisdiction(cid:13) under 28 U.S.C. S 1332. This Court reviews de novo the(cid:13) District Court’s determinations of New Jersey state law.(cid:13) Grimes v. Vitalink Communications Corp., 17 F.3d 1553,(cid:13) 1557 (3d Cir. 1994).(cid:13) In an effort to discourage the filing of frivolous(cid:13) malpractice suits, New Jersey enacted legislation in 1995(cid:13) requiring plaintiffs to make a threshold showing that their(cid:13) claims are meritorious. The legislative history of this statute(cid:13) and its accompanying provisions is reviewed in some detail(cid:13) in Alan J. Cornblatt, P.A. v. Barow, 708 A.2d 401 (N.J.(cid:13) 1998), and need not be repeated here.(cid:13) The part of the statute pertinent to this case sets out the(cid:13) obligation of the plaintiff in a malpractice suit as follows:(cid:13) "[t]he plaintiff shall, within 60 days following the date(cid:13) of filing of the answer to the complaint by the(cid:13) defendant, provide each defendant with an affidavit of(cid:13) an appropriate licensed person that there exists a(cid:13) reasonable probability that the care, skill or knowledge(cid:13) exercised or exhibited in the treatment, practice or(cid:13) work that is the subject of the complaint, fell outside(cid:13) acceptable professional or occupational standards or(cid:13) treatment practices. The court may grant no more than(cid:13) one additional period, not to exceed 60 days, to file the(cid:13) 4(cid:13) affidavit pursuant to this section, upon a finding of(cid:13) good cause."(cid:13) N.J. Stat. Ann. 2A:53A-27.(cid:13) We have held that a district court’s application of this(cid:13) statute does not conflict with the Federal Rules of Civil(cid:13) Procedure and hence is enforceable in the district courts(cid:13) when New Jersey law applies. Chamberlain v. Giampapa,(cid:13) 210 F.3d 154, 157 (3d Cir. 2000).(cid:13) Not infrequently, a statute that seems clear in its text(cid:13) presents unexpected problems in its application. The(cid:13) factual variations and the questions generated by resort to(cid:13) the relatively new statute at issue here are reflected in the(cid:13) number of appeals brought to New Jersey’s intermediate(cid:13) appellate court, as well as its supreme court.(cid:13) Eschewing an overly restrictive interpretation, the(cid:13) Supreme Court of New Jersey undertook to fill gaps in the(cid:13) statute by looking to the legislative objectives that led to its(cid:13) enactment. The Court asserted that the statute’s goals were(cid:13) twofold, intending "not only to dispose of meritless(cid:13) malpractice claims early in the litigation, but also to allow(cid:13) meritorious claims to move forward unhindered." Burns v.(cid:13) Belafsky, 766 A.2d 1095, 1099 (N.J. 2001). In that case,(cid:13) the Court held that the plaintiff was not required to request(cid:13) an extension of time for "good cause" within the original(cid:13) sixty-day period in order to gain the additional sixty days(cid:13) within which to file the affidavit of merit. Id . at 1100-01.(cid:13) The Burns Court also concluded that inadvertence of(cid:13) counsel could constitute good cause for invocation of the(cid:13) sixty-day extension. "Absent demonstrable prejudice, it is(cid:13) neither necessary nor proper to visit the sins of the(cid:13) attorney upon . . . [the] blameless client." Id. at 1101(cid:13) (internal quotations omitted).(cid:13) Only a few months after it published the Burns opinion,(cid:13) the New Jersey Supreme Court reiterated its opposition to(cid:13) a wooden construction of the statute. Galik v. Clara Maass(cid:13) Med. Ctr., 771 A.2d 1141 (N.J. 2001). Galik held that the(cid:13) plaintiff ’s submission of medical reports to the defendants’(cid:13) insurance carrier before trial in an effort to settle the claim(cid:13) constituted substantial compliance with the affidavit of(cid:13) 5(cid:13) merit requirement. Defendants were unable to demonstrate(cid:13) prejudice, and plaintiff had taken steps to comply with the(cid:13) statute by obtaining medical reports even before bringing(cid:13) suit.(cid:13) Galik held that under these circumstances, the untimely(cid:13) filing of an affidavit in proper form was permissible. Again,(cid:13) the Court emphasized that errors of counsel should not be(cid:13) visited on the client. Id. at 1149-52. See also Fink v.(cid:13) Thompson, 772 A.2d 386 (N.J. 2000) (untimely service of(cid:13) affidavit on physician-defendant previously identified in(cid:13) pre-suit report amounted to substantial compliance.).(cid:13) The Appellate Division of New Jersey’s Superior Court(cid:13) has also been confronted with a variety of factual(cid:13) circumstances requiring interpretation of the statute. In(cid:13) Barreiro v. Morais, 723 A.2d 1244 (N.J. Super. Ct. App. Div.(cid:13) 1999), the Court anticipated Galik in holding that the 120-(cid:13) day limitation was not a bright line beyond which(cid:13) extraordinary circumstances could not apply. 723 A.2d at(cid:13) 1249. Concerned that defendants could improperly use(cid:13) such an interpretation of the statute as a sword, the Court(cid:13) viewed the extraordinary circumstances exception as a(cid:13) means of preventing such improper use. Id. at 1248.(cid:13) That is not to suggest, however, that the statute has(cid:13) become a toothless tiger. In many instances, the failure to(cid:13) comply with its requirements has resulted in dismissal.(cid:13) See, e.g., Charles A. Manganaro Consulting Engrs, Inc. v.(cid:13) Carneys Point Twp. Sewerage Auth., 781 A.2d 1116 (N.J.(cid:13) Super. Ct. App. Div. 2001) (negligence counterclaim(cid:13) dismissed for failure to file affidavit of merit); 1 Scaffidi v.(cid:13) Horvitz, 779 A.2d 439 (N.J. Super. Ct. App. Div. 2001)(cid:13) (plaintiff who did not ask for materials for affidavit was not(cid:13) excused for untimely filing thereof); Kritzberg v. Tarsny, 768(cid:13) A.2d 810 (N.J. Super. Ct. App. Div. 2001) (affidavit served(cid:13) _________________________________________________________________(cid:13) 1. We note that the New Jersey Supreme Court, having analyzed(cid:13) Manganaro and other cases, held that a breach of contract claim does(cid:13) not trigger the affidavit of merit statute. Admonishing trial judges to look(cid:13) beyond the labels of "tort" and "contract," the Court concluded that(cid:13) affidavits are required only where the claim requires proof of a deviation(cid:13) from the applicable professional standard of care. Couri v. Gardner, ___(cid:13) A.2d ___, 2002 WL 1732928 (N.J. July 29, 2002).(cid:13) 6(cid:13) more than three months late did not relate back nunc pro(cid:13) tunc to answers to interrogatories); Kubiak v. Robert Wood(cid:13) Johnson Univ. Hosp., 753 A.2d 166 (N.J. Super. Ct. App.(cid:13) Div. 2000) (functional equivalent of affidavit that has been(cid:13) obtained but not provided to defendant does not constitute(cid:13) substantial compliance). See also Chamberlain , 210 F.3d at(cid:13) 162-63 (no extraordinary circumstances present).(cid:13) With this brief summary of New Jersey case law, we now(cid:13) consider the facts in the case before us. Because the(cid:13) sequence of the procedural steps is a critical factor in the(cid:13) resolution of this appeal, we set out the chronological(cid:13) history of the pleadings in detail.(cid:13) - Plaintiff filed an amended complaint on May 15,(cid:13) 2000.(cid:13) - Dr. Donikyan filed his answer on June 16, 2000.(cid:13) - Plaintiff attempted to file a second amended(cid:13) complaint on June 29, 2000, but the District Court(cid:13) Clerk’s Office declined to accept the document.(cid:13) - The Hospital filed its answer to the second amended(cid:13) complaint on August 16, 2000.(cid:13) - The Court issued a consent order on August 25,(cid:13) 2000, approving the filing of the second amended(cid:13) complaint.(cid:13) - Directcare Medical Services, L.L.C. filed its answer(cid:13) on August 31, 2000.2(cid:13) - The second amended complaint was filed and(cid:13) docketed on September 5, 2000.(cid:13) - Dr. Donikyan filed his answer to the second(cid:13) amended complaint on September 25, 2000.(cid:13) - Dr. Donikyan filed a motion to dismiss on January(cid:13) 2, 2001.(cid:13) - Plaintiff faxed an affidavit of merit to defendants’(cid:13) attorneys on January 3, 2001 and filed the affidavit(cid:13) with the Court on January 4, 2001.(cid:13) _________________________________________________________________(cid:13) 2. Directcare Medical Services, L.L.C. was later dismissed from the case(cid:13) by stipulation and it is not a party to this appeal.(cid:13) 7(cid:13) - The Hospital filed its motion to dismiss on January(cid:13) 12, 2001.(cid:13) This chronology is unusual in two respects. First, in his(cid:13) opinion dismissing the case, the district judge determined(cid:13) that the Clerk’s Office erred in failing to accept the second(cid:13) amended complaint when it was presented on June 29,(cid:13) 2000. Not until August 25, 2000, some two months later,(cid:13) did the Court enter a Consent Order permitting the second(cid:13) amended complaint to be filed and that was not(cid:13) accomplished until September 5, 2000.(cid:13) Second, the parties had attended a status conference(cid:13) before a magistrate judge on August 9, 2000. All(cid:13) defendants had copies of the proposed second amended(cid:13) complaint at that time. Counsel for the Hospital made it(cid:13) clear that he would file an answer to the second amended(cid:13) complaint, rather than the first amended complaint. He did(cid:13) so one week later, on August 16, 2000, before the(cid:13) magistrate judge had signed the Consent Order for the(cid:13) filing of the second amended complaint. Thus, the Clerk’s(cid:13) Office erred again in accepting an answer before the(cid:13) complaint to which it responded was filed.(cid:13) Unquestionably, the errors of the District Court Clerk(cid:13) affected the orderly progress of the litigation. The confusion(cid:13) generated by these mistakes should not affect the plaintiff ’s(cid:13) right to proceed on a claim that on its face appears(cid:13) meritorious.(cid:13) Dr. Donikyan contends that the 120-day period as to him(cid:13) began to run on June 16, 2000, when he filed his answer(cid:13) to the first amended complaint. He argues that because the(cid:13) second amended complaint did not change the allegations(cid:13) against him, the plaintiff ’s obligation under the statute(cid:13) began when he answered her original allegations of(cid:13) negligence.(cid:13) The statute does not address this issue, referring simply(cid:13) to "the answer to the complaint." The legislation does not(cid:13) purport to resolve all procedural intricacies that might(cid:13) occur during litigation, and it is reasonable to assume that(cid:13) the customary pleading rules would apply. An amended(cid:13) complaint supercedes the original version in providing the(cid:13) blueprint for the future course of a lawsuit.(cid:13) 8(cid:13) Under New Jersey procedural rules, as well as those in(cid:13) the federal system, a defendant is required to answer the(cid:13) amended complaint even if the new version does not change(cid:13) the charges against him. See Fed. R. Civ. P. 15(a) ("A party(cid:13) shall plead in response to an amended pleading .. . .")(cid:13) (emphasis added); N.J. R. Civ. Prac. 4:9-1 (same, except as(cid:13) to number of days within which response is required). It is(cid:13) quite possible, moreover, that an amended complaint (or an(cid:13) answer to it) could affect the content of an affidavit of merit.(cid:13) Thus, it appears that the statute’s purpose is best(cid:13) implemented here by establishing as the beginning point of(cid:13) the 120-day limitations period the date on which a(cid:13) defendant files his answer to the final amended complaint.(cid:13) This construction allows meritorious cases to proceed(cid:13) without opening the door to frivolous claims.3 Cf. Hyman(cid:13) Zamft and Manard, L.L.C. v. Cornell, 707 A.2d 1068, 1072(cid:13) (N.J. Super. Ct. App. Div. 1998) (suggesting that filing of(cid:13) new pleadings would establish "a new sixty-day window" for(cid:13) submitting affidavit).(cid:13) Moreover, we cannot overlook the extraordinary(cid:13) circumstances present here; the errors of the Clerk’s Office(cid:13) contributed to the confusion that marked the early stages(cid:13) of this case. We shall not allow the Clerk’s mistakes, albeit(cid:13) under extremely rare procedural circumstances, to impair(cid:13) the plaintiff ’s right to proceed.(cid:13) Plaintiff candidly concedes inadvertence in failing to file(cid:13) the affidavit of merit within the sixty-day period following(cid:13) Dr. Donikyan’s answer to the second amended complaint.(cid:13) The New Jersey Supreme Court in Burns concluded that an(cid:13) attorney’s honest oversight constituted good cause(cid:13) permitting the sixty-day extension provide by the statute.(cid:13) Accordingly, we conclude that the plaintiff properly filed an(cid:13) affidavit as to Dr. Donikyan within the 120 day period.(cid:13) The Hospital’s position is somewhat different. It never(cid:13) _________________________________________________________________(cid:13) 3. We do not overlook the possibility that plaintiffs could file a series of(cid:13) amended complaints for the sole purpose of garnering additional time for(cid:13) providing an affidavit of merit. We are confident, however, that trial(cid:13) courts would not permit plaintiffs to engage in such tactics simply to(cid:13) evade the statute.(cid:13) 9(cid:13) responded to the first amended complaint, answering only(cid:13) the second. Consequently, we do not have the problem of(cid:13) deciding which answer must be the starting point. That, of(cid:13) course, assumes that the limitations period for filing the(cid:13) affidavit began at a different time for each defendant based(cid:13) on the time each filed its respective answer.(cid:13) On that point, again, the statute does not provide a(cid:13) solution. There is a strong argument that the time for filing(cid:13) the affidavit in a multiple-defendant case begins at the(cid:13) point when the last answer is filed. We alluded to that view(cid:13) in Chamberlain, where we said, "The . . . affidavit is not a(cid:13) pleading, is not filed until after the pleadings are closed,(cid:13) and does not contain a statement of the factual basis for(cid:13) the claim." 210 F.3d at 160.(cid:13) We were not confronted in Chamberlain with the question(cid:13) of whether the last answer filed provided the starting point,(cid:13) and we have found no New Jersey cases ruling squarely on(cid:13) the point. We acknowledge that in In re Petition of Hall, 688(cid:13) A.2d 81, 87 (N.J. 1997), the New Jersey Supreme Court(cid:13) commented that "[t]he time for filing the affidavit is(cid:13) calculated not from the date the complaint is filed but from(cid:13) the date of each defendant’s answer." Although that(cid:13) statement is dicta because the case did not turn on that(cid:13) issue, the Superior Court later treated it as a precedential(cid:13) ruling. Kubiak, 753 A.2d at 168. We have our doubts about(cid:13) that construction of the statute but find it unnecessary to(cid:13) address it in the matter before us.(cid:13) Here, although the Hospital filed its answer on August(cid:13) 16, 2000, the second amended complaint was not filed until(cid:13) September 5 of that year. Only on that latter date did the(cid:13) answer become effective, and we will, therefore, consider it(cid:13) filed as of September 5, 2000. The affidavit faxed to counsel(cid:13) on January 3, 2001 was thus provided within 120 days of(cid:13) the Answer to the second amended complaint in(cid:13) accordance with the statute’s requirements.(cid:13) Because we conclude that the affidavit of merit was(cid:13) timely provided to both defendants, plaintiff complied with(cid:13) the statute. Accordingly, we need not discuss the motion for(cid:13) voluntary dismissal.(cid:13) 10(cid:13) The judgment of the District Court will be reversed and(cid:13) the case remanded for further proceedings.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 11