NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4725-16T1
ALI BADR,
Plaintiff-Appellant,
v.
LUIS E. COLON,
Defendant-Respondent. _____________________________
Argued May 30, 2018 – Decided June 21, 2018
Before Judges Carroll and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L- 2747-15.
Greg D. Shaffer argued the cause for appellant (Brandon J. Broderick, attorney; Brandon J. Broderick, on the brief).
Thomas F. McGuane argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Thomas F. McGuane and Joseph G. Fuoco, of counsel and on the brief.
PER CURIAM
Plaintiff Ali Badr appeals an order entered by the Law
Division on May 12, 2017, denying his motion for reconsideration of an order denying his motion to reinstate his complaint, which
was dismissed for failure to comply with the physician's
certification requirement in N.J.S.A. 39:6A-8(a). We reverse and
remand.
I.
Plaintiff alleges that he was injured in a motor vehicle
accident as a result of the negligent acts of defendant Luis E.
Colon. Plaintiff's insurance coverage is subject to a limited
threshold option that exempts a negligent driver from tort
liability for non-economic injuries unless plaintiff "has
sustained . . . a permanent injury within a reasonable degree of
medical probability . . . ." N.J.S.A. 39:6A-8(a). "An injury
shall be considered permanent when the body part or organ, or
both, has not healed to function normally and will not heal to
function normally with further medical treatment." Ibid.
To maintain a claim for non-economic damages, plaintiff is
required to produce a physician's certification of permanency of
injury. N.J.S.A. 39:6A-8(a) provides, in pertinent part:
In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within [sixty] days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from a licensed treating physician or a board- certified licensed physician to whom the plaintiff was referred by the treating physician. The certification shall state,
2 A-4725-16T1 under penalty of perjury, that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence . . . . The court may grant no more than one additional period not to exceed 60 days to file the certification pursuant to this subsection upon a finding of good cause.
A person is guilty of a crime of the fourth degree if that person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any certification filed pursuant to this subsection.
On June 26, 2015, plaintiff filed a complaint against
defendant alleging that he suffered serious and permanent injuries
as a result of defendant's negligent operation, maintenance, or
repair of his vehicle on June 28, 2013. The complaint alleges
that plaintiff complied with the requirements of N.J.S.A. 39:6A-
8(a) and that a "copy of the Physician's Certificate of Merit is
attached" to the complaint. There was, however, no attachment to
the complaint.
On September 8, 2015, defendant filed an answer. Plaintiff
did not file a physician's certification of permanency of injury
within 60 days of the filing of defendant's answer. Nor did
plaintiff seek an extension of the filing deadline.
Discovery proceeded in the ordinary course. Ultimately, the
court set a discovery end date of September 2, 2016. On August
3 A-4725-16T1 11, 2016, plaintiff produced the report of a physician designated
by plaintiff as a potential expert witness. The report is not in
certification form. In addition, the author is not a treating
physician or a board-certified physician to whom plaintiff was
referred by a treating physician, but is a physician designated
to serve as plaintiff's expert witness. However, the report
describes some of plaintiff's injuries as permanent, details the
clinical data on which it is based, and ends with a statement that
the physician is aware that it is a fourth degree crime to
purposely and knowingly made a false statement in the report.
On October 27, 2016, the matter was submitted to non-binding
arbitration. The arbitrator found no cause of action because of
plaintiff's failure to submit a physician's certification of
permanency of injury pursuant to N.J.S.A. 39:6A-8(a).
Approximately two months later, plaintiff still had not
submitted a physician's certification. As a result, on December
21, 2016, defendant moved to dismiss the complaint for plaintiff's
failure to comply with N.J.S.A. 39:6A-8(a).
In response to the motion, on January 17, 2017, plaintiff
submitted what purported to be a physician's certification of
permanency of injury. The certification, signed by a chiropractor,
stated, in relevant part:
4 A-4725-16T1 The [p]laintiff, Ali Badr, as a result of a motor vehicle accident on 06/28/2013, sustained the following injuries: See diagnosis in my attached report. Such injuries have resulted in permanent injury. Permanent injury means a body part or organ or both has not healed to function normally and to medical probability will not heal to function normally with further medical treatment.
This certification is based upon the following objective clinical evidence: See my attached narrative report which I hereby incorporate by reference.
There was, however, no report attached to the certification.
On January 18, 2017, plaintiff served an amended physician's
certification from the chiropractor. The only change from the
prior version of the certification is that "See diagnosis in my
attached report" was redacted and replaced with the handwritten
notation "Disc Herniation C5-6 Disc Bulging C4-5." The amended
certification still stated that it was "based on the following
objective clinical evidence: See my attached narrative report
which I hereby incorporate by reference." No report, however, was
attached.
On January 20, 2017, the trial court granted defendant's
motion and dismissed the complaint without prejudice.
On February 21, 2017, plaintiff moved to reinstate the
complaint. The motion papers did not include a new physician's
5 A-4725-16T1 certification. Instead, plaintiff reiterated that the amended
certification had been submitted in response to the motion.
On March 17, 2017, the trial court denied plaintiff's motion.
The court stated its reasoning as follows:
Plaintiff failed to satisfy the requirements of N.J.S.A. 39:6A-8. Plaintiff failed to timely submit a Certificate of Merit within the applicable time period. Certificate of merit was submitted over an entire year past due and as such [p]laintiff did not comply with the statute.
On April 7, 2017, plaintiff moved for reconsideration. In
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4725-16T1
ALI BADR,
Plaintiff-Appellant,
v.
LUIS E. COLON,
Defendant-Respondent. _____________________________
Argued May 30, 2018 – Decided June 21, 2018
Before Judges Carroll and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L- 2747-15.
Greg D. Shaffer argued the cause for appellant (Brandon J. Broderick, attorney; Brandon J. Broderick, on the brief).
Thomas F. McGuane argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Thomas F. McGuane and Joseph G. Fuoco, of counsel and on the brief.
PER CURIAM
Plaintiff Ali Badr appeals an order entered by the Law
Division on May 12, 2017, denying his motion for reconsideration of an order denying his motion to reinstate his complaint, which
was dismissed for failure to comply with the physician's
certification requirement in N.J.S.A. 39:6A-8(a). We reverse and
remand.
I.
Plaintiff alleges that he was injured in a motor vehicle
accident as a result of the negligent acts of defendant Luis E.
Colon. Plaintiff's insurance coverage is subject to a limited
threshold option that exempts a negligent driver from tort
liability for non-economic injuries unless plaintiff "has
sustained . . . a permanent injury within a reasonable degree of
medical probability . . . ." N.J.S.A. 39:6A-8(a). "An injury
shall be considered permanent when the body part or organ, or
both, has not healed to function normally and will not heal to
function normally with further medical treatment." Ibid.
To maintain a claim for non-economic damages, plaintiff is
required to produce a physician's certification of permanency of
injury. N.J.S.A. 39:6A-8(a) provides, in pertinent part:
In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within [sixty] days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from a licensed treating physician or a board- certified licensed physician to whom the plaintiff was referred by the treating physician. The certification shall state,
2 A-4725-16T1 under penalty of perjury, that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence . . . . The court may grant no more than one additional period not to exceed 60 days to file the certification pursuant to this subsection upon a finding of good cause.
A person is guilty of a crime of the fourth degree if that person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any certification filed pursuant to this subsection.
On June 26, 2015, plaintiff filed a complaint against
defendant alleging that he suffered serious and permanent injuries
as a result of defendant's negligent operation, maintenance, or
repair of his vehicle on June 28, 2013. The complaint alleges
that plaintiff complied with the requirements of N.J.S.A. 39:6A-
8(a) and that a "copy of the Physician's Certificate of Merit is
attached" to the complaint. There was, however, no attachment to
the complaint.
On September 8, 2015, defendant filed an answer. Plaintiff
did not file a physician's certification of permanency of injury
within 60 days of the filing of defendant's answer. Nor did
plaintiff seek an extension of the filing deadline.
Discovery proceeded in the ordinary course. Ultimately, the
court set a discovery end date of September 2, 2016. On August
3 A-4725-16T1 11, 2016, plaintiff produced the report of a physician designated
by plaintiff as a potential expert witness. The report is not in
certification form. In addition, the author is not a treating
physician or a board-certified physician to whom plaintiff was
referred by a treating physician, but is a physician designated
to serve as plaintiff's expert witness. However, the report
describes some of plaintiff's injuries as permanent, details the
clinical data on which it is based, and ends with a statement that
the physician is aware that it is a fourth degree crime to
purposely and knowingly made a false statement in the report.
On October 27, 2016, the matter was submitted to non-binding
arbitration. The arbitrator found no cause of action because of
plaintiff's failure to submit a physician's certification of
permanency of injury pursuant to N.J.S.A. 39:6A-8(a).
Approximately two months later, plaintiff still had not
submitted a physician's certification. As a result, on December
21, 2016, defendant moved to dismiss the complaint for plaintiff's
failure to comply with N.J.S.A. 39:6A-8(a).
In response to the motion, on January 17, 2017, plaintiff
submitted what purported to be a physician's certification of
permanency of injury. The certification, signed by a chiropractor,
stated, in relevant part:
4 A-4725-16T1 The [p]laintiff, Ali Badr, as a result of a motor vehicle accident on 06/28/2013, sustained the following injuries: See diagnosis in my attached report. Such injuries have resulted in permanent injury. Permanent injury means a body part or organ or both has not healed to function normally and to medical probability will not heal to function normally with further medical treatment.
This certification is based upon the following objective clinical evidence: See my attached narrative report which I hereby incorporate by reference.
There was, however, no report attached to the certification.
On January 18, 2017, plaintiff served an amended physician's
certification from the chiropractor. The only change from the
prior version of the certification is that "See diagnosis in my
attached report" was redacted and replaced with the handwritten
notation "Disc Herniation C5-6 Disc Bulging C4-5." The amended
certification still stated that it was "based on the following
objective clinical evidence: See my attached narrative report
which I hereby incorporate by reference." No report, however, was
attached.
On January 20, 2017, the trial court granted defendant's
motion and dismissed the complaint without prejudice.
On February 21, 2017, plaintiff moved to reinstate the
complaint. The motion papers did not include a new physician's
5 A-4725-16T1 certification. Instead, plaintiff reiterated that the amended
certification had been submitted in response to the motion.
On March 17, 2017, the trial court denied plaintiff's motion.
The court stated its reasoning as follows:
Plaintiff failed to satisfy the requirements of N.J.S.A. 39:6A-8. Plaintiff failed to timely submit a Certificate of Merit within the applicable time period. Certificate of merit was submitted over an entire year past due and as such [p]laintiff did not comply with the statute.
On April 7, 2017, plaintiff moved for reconsideration. In
his moving papers, plaintiff characterized the court's March 17,
2017 order as interlocutory and relied on Rule 4:42-2. He argued
that because his failure to timely submit a physician's
certification was a procedural deficiency, the court should have
imposed a lesser sanction, and allowed his substantive claims to
be heard. In support of its position, plaintiff relied primarily
on our holding in Watts v. Camaligan, 344 N.J. Super. 453 (App.
Div. 2001), and argued, as he had in support of his motion to
reinstate the complaint, that he complied with N.J.S.A. 39:6A-8(a)
when he submitted the amended certification to the court. His
moving papers did not address the deficiency in the amended
certification.
On May 12, 2017, the trial court denied plaintiff's motion
for reconsideration. The court expressed the view that it did not
6 A-4725-16T1 have discretion to impose a sanction other than dismissal of the
complaint. In response to plaintiff's argument that the late
submission of a physician's certification is a procedural lapse
that does not warrant dismissal when a less drastic remedy would
satisfy the statute's objectives, the court stated:
I don't disagree with that assessment, and . . . perhaps, philosophically, I agree with you . . . but based upon the case law, and the rules . . . I do[ not] think I have any discretion. . . . [N]othing would make me happier if you take this up and get me overruled. . . . Because . . . under the current state of the law, I do[ not] think I have the discretion. The statute is very strict that it must be filed within 120 days or the case must be dismissed. . . . [F]ailure to file that affidavit of merit within the strict requirements of [N.J.S.A.] 39:6A-8 warrants a dismissal of this case, and it will die on a motion based upon that simple fact.
This appeal followed. Plaintiff's notice of appeal was late,
requiring a motion to accept the notice of appeal as if it had
been filed in a timely fashion. On August 10, 2017, this court
granted plaintiff's motion, but limited his appeal to the May 12,
2017 order denying plaintiff's motion for reconsideration. The
court found that plaintiff's notice of appeal was "inexcusably
untimely as to the prior orders" of the trial court.
7 A-4725-16T1 II.
We begin our analysis with the observation that the standards
set forth in Rule 4:49-2 and Rule 4:50-1 should have guided
resolution of plaintiff's motion for reconsideration. Plaintiff's
characterization of the March 17, 2017 order as interlocutory was
incorrect. As the Supreme Court explained, “[b]y definition, an
order that ‘does not finally determine a cause of action but only
decides some intervening matter pertaining to the cause[,] and
which requires further steps . . . to enable the court to
adjudicate the cause on the merits[,]’ is interlocutory.” Moon
v. Warren Haven Nursing Home, 182 N.J. 507, 512 (2005) (quoting
Black’s Law Dictionary 815 (6th ed. 1990)); see also Wein v. Morris,
194 N.J. 364 (2008). The March 17, 2017 order, which denied
plaintiff's motion to reinstate the complaint that had been
dismissed without prejudice, resolved all claims as to all parties,
and was a final order.
Rule 4:49-2 provides:
Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and
8 A-4725-16T1 shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.
Rule 4:50-1 sets forth the grounds on which a party may be
relieved from operation of a final judgment:
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
[R. 4:50-1.]
An application to set aside an order pursuant to Rule 4:50
is addressed to the motion judge's sound discretion, which should
be guided by equitable principles. Hous. Auth. v. Little, 135
N.J. 274, 283 (1994). A trial court's determination under Rule
4:50-1 is entitled to substantial deference and will not be
reversed in the absence of a clear abuse of discretion. US Bank
9 A-4725-16T1 Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). To warrant
reversal of the court's order, plaintiff must show that the
decision was "made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible
basis." Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.
88, 123 (2007) (internal quotations omitted)).
The only subsection of Rule 4:50-1 under which plaintiff
arguably could have sought relief is subsection (f). Relief under
subsection (f) is available only when "truly exceptional
circumstances are present." Hous. Auth., 135 N.J. at 286 (citation
omitted). "The movant must demonstrate the circumstances are
exceptional and enforcement of the judgment or order would be
unjust, oppressive or inequitable." Johnson v. Johnson, 320 N.J.
Super. 371, 378 (App. Div. 1999) (citation omitted).
In determining whether a party should be relieved from a
judgment or order, courts must balance "the strong interests in
the finality of litigation and judicial economy with the equitable
notion that justice should be done in every case." Jansson v.
Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App. Div.
1985). Where a procedural violation is involved, additional
considerations are implicated, namely, "'[t]he defendant's right
to have the plaintiff comply with procedural rules[, which]
conflicts with the plaintiff's right to an adjudication of the
10 A-4725-16T1 controversy on the merits.'" Abtrax Pharms. v. Elkins-Sinn, 139
N.J. 499, 513 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 252
(1982)). In all cases, however, "'justice is the polestar and our
procedures must ever be moulded and applied with that in mind.'"
Jansson, 198 N.J. Super. at 195 (quoting New Jersey Highway Auth.
v. Renner, 18 N.J. 485, 495 (1955)).
In addition to reiterating the arguments he made before the
trial court, plaintiff argues for the first time on appeal that
the expert report he produced during discovery, in effect,
satisfied N.J.S.A. 39:6A-8(a). Plaintiff argues the trial court
should have reconsidered its decision not to reinstate the
complaint because he substantially complied with the statute.
Plaintiff also argues that the trial court mistakenly concluded
that it lacked discretion to reinstate a complaint where a
physician's certification was not timely filed.
We agree that the trial court took too narrow a view of its
authority. As the Supreme Court explained in Casinelli v.
Manglapus, 181 N.J. 354, 356 (2004),
we view the late filing of the physician certification as akin to a discovery violation, with respect to which the court may resort to any of a full panoply of remedies, ranging from an order to compel production through dismissal, depending on the facts.
The Court continued,
11 A-4725-16T1 in the vast majority of cases in which an attorney has simply slipped up and missed the filing date for an otherwise acceptable physician certification . . . there is no statutory bar to continuation of the lawsuit. Rather, the physician certification is belatedly produced evidence supporting the otherwise cognizable claims advanced in the complaint. In such circumstances, we can see no warrant for adopting as mandatory the dismissal without prejudice remedy . . . .
[Id. at 365.]
Instead,
the court has available to it, along with dismissal, where warranted, discovery-type sanctions such as orders to compel, the award of reasonable expenses incurred in obtaining the certification, and counsel fees. See R. 4:23-1 to -5. In each case, the court should assess the facts, including the willfulness of the violation, the ability of plaintiff to produce the certification, the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy. That methodology provides judges with discretion to choose a response that is proportionate to the procedural stimulus; saves for trial the meritorious claims of truly injured victims; and allows dismissal of cases in which a plaintiff cannot or will not supply a certification or in which a plaintiff's conduct has irremediably prejudiced the defendant.
The bedrock of our conclusion is the legislative purpose behind the physician certification requirement . . . . [T]he certification serves two purposes; to provide evidence that a plaintiff's claim is meritorious in that he or she has, in fact, sustained an injury that qualifies for the recovery of non-economic damages . . . and to
12 A-4725-16T1 thwart fraud by furnishing a legal foundation for a charge of perjury, should false swearing later be shown. By allowing courts the flexibility to accept belated physician certifications, under appropriate circumstances, both of [the statute's] aims are advanced . . . .
[Id. at 365-66.]
It was, therefore, a mistaken exercise of discretion for the
trial court to have concluded that it could not grant plaintiff's
motion for reconsideration because the late filing of a physician's
certification mandated dismissal of plaintiff's complaint. The
court's decision "rested on an impermissible basis," Guillaume,
209 N.J. at 467, warranting reversal of the May 12, 2017 order,
and "truly exceptional circumstances," Rule 4:50-1(f), warrant
reconsideration of the March 17, 2017 order. The matter,
therefore, is remanded for reconsideration of the March 17, 2017
order.
We do not offer an opinion with respect to whether
reinstatement of the complaint is warranted. When reconsidering
its March 17, 2017 order, the trial court must weigh the factors
set forth in Casinelli, including whether the amended chiropractor
certification was "otherwise acceptable," despite any deficiency
claimed by defendant, and whether a less drastic remedy than
dismissal of the complaint would satisfy the statute's objectives.
In addition, we note that in Casinelli the Supreme Court left open
13 A-4725-16T1 the question of whether a party may avoid dismissal of its
complaint for failure to file a timely physician's certification
under the doctrines of substantial compliance and equitable
estoppel. 181 N.J. at 367. Plaintiff may advance these arguments
based on his production of a physician's expert report during
discovery.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
14 A-4725-16T1