NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0337-14T3
RACHELE LOUISE CASTELLO, APPROVED FOR PUBLICATION Plaintiff-Appellant, June 20, 2016 v. APPELLATE DIVISION
ALEXANDER M. WOHLER, M.D.,
Defendant-Respondent. __________________________________
Argued May 16, 2016 – Decided June 20, 2016
Before Judges Lihotz, Fasciale and Higbee.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8850-11.
Lewis Stein argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, P.A., attorneys; Mr. Stein, on the briefs).
Charles E. Murray, III, argued the cause for respondent (Farkas & Donohue, L.L.C., attorneys; Mr. Murray, on the brief).
Abbott S. Brown argued the cause for amicus curiae The New Jersey Association for Justice (Lomurro, Munson, Comer, Brown and Schottland, L.L.C., attorneys; Mr. Brown, on the brief).
The opinion of the court was delivered by
FASCIALE, J.A.D. In this medical negligence case, plaintiff appeals from two
orders dated August 29, 2014: one order granting defendant's
motion to dismiss the complaint with prejudice; and one order
denying plaintiff's cross-motion to adjourn the trial date and
reopen discovery to obtain a new expert.
Defendant is a board-certified cardiothoracic and general
surgeon. Plaintiff retained Dr. John E. Edoga, a general
surgeon, to prepare an affidavit of merit (AOM) and expert
report. Plaintiff's attorney used a copy of Dr. Edoga's
curriculum vitae (the original CV) he had in his office and
simultaneously served defendant with the complaint, AOM, and
original CV.
In his AOM, Dr. Edoga stated he had been in "surgical
practice for more than [thirty-five] years[,] which is set forth
in my [CV] attached hereto." The original CV attached to the
AOM reflected Dr. Edoga was an attending surgeon. Defendant's
attorney waived the need for a Ferreira1 conference and signed a
consent order waiving "any objection" to Dr. Edoga's
qualifications.
In discovery, plaintiff's counsel produced Dr. Edoga's
updated CV (the updated CV) and expert report. The updated CV
stated that Dr. Edoga was an attending surgeon since 1976. This
1 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
2 A-0337-14T3 information was generally consistent with Dr. Edoga's statement
in his AOM that he had been in surgical practice for
approximately thirty-five years.
Defendant's counsel deposed Dr. Edoga and learned, contrary
to the information in the AOM and original and updated CVs, he
had been retired for approximately five years before the medical
procedure in question was performed. Three months after the
deposition and weeks after the January 4, 2014 discovery end
date (DED), defendant's counsel moved to bar Dr. Edoga's
testimony for failure to comply with the New Jersey Medical Care
Access and Responsibility and Patients First Act (PFA), N.J.S.A.
2A:53A-37 to -42, primarily arguing Dr. Edoga was unqualified to
testify because he retired from the practice of medicine. The
motion was returnable approximately two weeks before trial. The
court independently adjourned the trial date to resolve
defendant's motion to bar Dr. Edoga's testimony, as well as
other related motions.
There is no credible evidence that plaintiff or plaintiff's
counsel had knowledge that Dr. Edoga had been retired from the
practice of medicine. Had such information been apparent from
the AOM and original CV during the 120-day period, the parties
would have participated in the Ferreira conference and
identified the problem. At that time, plaintiff would have had
3 A-0337-14T3 ample opportunity to obtain and timely serve a new AOM from a
different expert witness.
Under these facts, we agree that the judge properly barred
Dr. Edoga's testimony because he had been retired for several
years and otherwise failed to meet the statutory requirements of
the PFA. However, we conclude dismissal of the complaint with
prejudice ignored the purposes of the AOM statute (AMS),
N.J.S.A. 2A:53A-26 to -29.2 In our view, and in light of the
strong preference for adjudication on the merits, we conclude
that an extension of discovery was warranted.
We hold, in medical negligence cases, where a plaintiff's
counsel timely serves an AOM and reasonably relies on the AOM
and expert's CV, which erroneously reflects that the witness is
actively practicing medicine, and, through no fault of the
plaintiff's counsel, the error is first discovered after the
expiration of the 120-day deadline imposed under the AMS,
exceptional circumstances exist requiring the judge to allow a
plaintiff sufficient time to retain a different expert witness
who is qualified under the PFA, issue a new AOM, and serve a
corresponding expert report. If warranted, the judge may
2 We note that pursuant to N.J.S.A. 2A:53A-27, "the person executing the [AOM] shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in [the PFA]."
4 A-0337-14T3 include other procedures or requests for relief related to the
extension of discovery and service of a new AOM and expert
report.
We therefore reverse the orders dismissing the complaint
with prejudice and denying plaintiff's cross-motion to reopen
discovery. We remand and direct the court to extend discovery,
allow plaintiff sufficient time to retain a new expert, address
any related discovery issues, and address whether other
appropriate relief is warranted.
I.
Plaintiff presented to defendant with difficulty breathing.
Defendant examined plaintiff and diagnosed a giant
paraesophageal hernia. A computerized tomogram showed that
plaintiff's stomach was located in her chest, as opposed to its
usual place below the diaphragm. Plaintiff's medical condition
warranted immediate attention. In June 2010, with plaintiff's
consent, defendant performed surgery to repair the hernia.
Plaintiff experienced post-operative discomfort and her
condition worsened. As a result, defendant performed an
exploratory laparotomy and repaired a tear to the gastro-
esophageal junction. Defendant discharged plaintiff to acute
rehabilitation, but readmitted her to the hospital because of
further complications. Plaintiff remained there until defendant
5 A-0337-14T3 granted plaintiff's request to transfer her to a hospital in
Pittsburgh.
An esophageal surgeon examined plaintiff at the Pittsburgh
hospital, diagnosed an esophageal leak, and performed various
medical procedures, including an esophagectomy, thoracotomy, and
laparotomy. In October 2010, plaintiff was discharged to a
rehabilitation facility. Plaintiff returned home in December
2010, almost six months after defendant performed the hernia
repair operation.
In October 2011, plaintiff filed a complaint against
defendant alleging that he deviated from accepted standards of
medical care and performed the hernia repair negligently, which,
purportedly, caused multiple additional medical procedures and
substantial pain and suffering.
In addition to serving Dr. Edoga's AOM with the complaint,
plaintiff's counsel served defendant with a copy of Dr. Edoga's
original CV, which plaintiff's counsel had retrieved from files
located in his law firm. The original CV stated Dr. Edoga was
an attending surgeon at Morristown Memorial Hospital from "1976
to present," and an assistant clinical professor of surgery from
"1985 to present." The information in the original CV
corroborated Dr. Edoga's statement in his AOM that he had been
in surgical practice for more than thirty-five years.
6 A-0337-14T3 In December 2011, defendant filed his answer to the
complaint, and denied any negligence. The court scheduled the
Ferreira conference, which prompted a letter from plaintiff's
counsel seeking input as to how defendant intended to proceed.
Defendant's counsel initially intended to object to the AOM
because "[defendant] is a cardiac and thoracic surgeon[,] and
given the fact that this matter would fall within that specialty
or sub-specialty, Dr. Edoga's qualifications do not suffice
under the [PFA]."
Plaintiff's counsel responded by advising that general
surgeons, like Dr. Edoga, also perform laparoscopic repairs of
paraesophageal hernias, especially because the surgery here was
in the abdomen. He referred to the original CV, which also
listed Dr. Edoga's 1997 publication pertaining to laparoscopic
repair of paraesophageal hernias. Defendant's counsel wrote to
plaintiff's counsel, stating "[m]y client advises that some
hospitals do permit general surgeons to perform this procedure."
Defendant's counsel withdrew the objection, waived the need
for the Ferreira conference, and confirmed in a March 14, 2012
consent order that defendant waived "any objection" to the
adequacy of the AOM. Based on the contents of the AOM and
original CV, the parties had no reason to believe that Dr. Edoga
had retired from the practice of medicine, and therefore they
7 A-0337-14T3 did not pursue the Ferreira conference to resolve whether the
retirement rendered Dr. Edoga unqualified pursuant to the
requirements enunciated in case law and the PFA. Consequently,
plaintiff's counsel continued using Dr. Edoga as plaintiff's
expert.
Over the next three years, the parties engaged in extensive
discovery. They propounded interrogatories, produced document
demands, served subpoenas, and deposed several fact witnesses.
Experts on both sides then reviewed the information obtained
during the pretrial discovery.
Plaintiff's counsel served Dr. Edoga's expert report, dated
May 21, 2013, well within the DED. Dr. Edoga opined that
defendant's surgical technique caused esophageal perforations,
which defendant purportedly missed, misinterpreted, or ignored;
defendant used covered stents in a manner well below accepted
standards of care; and defendant failed to properly monitor
plaintiff and seek timely consultations with other doctors. In
his expert report, Dr. Edoga stated that he had published
medical journal articles "on this subject," he had produced
instructional videos and trained surgical residents and
attending surgeons "to safely perform the surgery in question,"
and he had given lectures "dealing with the subject matter at
hand."
8 A-0337-14T3 Along with Dr. Edoga's expert report, plaintiff's counsel
served defendant's counsel with a copy of the updated CV, which
repeated that Dr. Edoga was an attending surgeon at Morristown
Memorial Hospital from "1976 to present," and an assistant
clinical professor of surgery from "1985 to present." The
updated CV listed Dr. Edoga as the president and chief operating
officer of a company from "2002 to present" and referenced his
teaching assignments, including training in surgical
technologies and techniques.
Defendant's counsel deposed Dr. Edoga on November 1, 2013.
Dr. Edoga's supplemental CV (the supplemental CV) was produced
and marked as an exhibit during the deposition. The
supplemental CV, like the original CV and updated CV, stated
that Dr. Edoga was an attending surgeon at Morristown Memorial
Hospital from "1976 to present," and assistant clinical
professor of surgery from "1985 to present."
In response to questions during his deposition, Dr. Edoga
testified he was affiliated with Columbia University as an
assistant clinical professor, where he "gave a couple lectures"
in 2009 and 2010. He also stated he was on the attending staff
at Morristown Memorial Hospital, where he had privileges as an
emeritus professor. Dr. Edoga admitted, however, that he
retired from the active practice of medicine in 2005 and
9 A-0337-14T3 conceded he volunteered to teach two or three hours per week,
which was not with an accredited medical school. Upon
retirement, Dr. Edoga pursued medical device inventions and
development, which was consistent with the additional reference
to training in the updated CV.
Defendant's counsel did not move to disqualify Dr. Edoga
before the expiration of the DED. Rather, in January 2014,
approximately three months after Dr. Edoga's deposition and well
after the expiration of the DED, defendant's counsel filed a
motion to bar Dr. Edoga's testimony. The motion was returnable
approximately seventeen days before the first trial date.
Defendant's counsel argued in part that Dr. Edoga failed to
satisfy the requirements of the PFA because he was not actively
practicing surgery at the time of the alleged malpractice, a
fact that defendant's counsel urged was not clear until after
Dr. Edoga's deposition.
Plaintiff opposed the motion, in part, by arguing that the
court should waive the "same specialty or subspecialty"
requirement under the PFA, N.J.S.A. 2A:53A-41(c). Plaintiff
maintained there existed a limited availability of surgeons with
defendant's specialty who have surgically repaired giant
paraesophageal hernias. Alternatively, plaintiff's counsel
requested, in the event the judge was inclined to bar Dr.
10 A-0337-14T3 Edoga's testimony, a reasonable time in which to obtain another
On March 17, 2014, the court granted defendant's motion and
entered an order barring the testimony of Dr. Edoga. The court
did not fully consider the merits of plaintiff's waiver argument
because plaintiff failed to formally file a motion seeking
waiver from compliance with the PFA, pursuant to N.J.S.A.
2A:53A-41(c). Rather, the judge disqualified Dr. Edoga from
acting as an expert witness, concluding that plaintiff failed to
satisfy the requirements of N.J.S.A. 2A:53A-41(a)(1) or (2),
which sets forth the requirements for an expert's testimony
under the PFA.
Discussing whether defendant's objection was timely, the
judge concluded that defendant's counsel was not placed on
"adequate notice of Dr. Edoga's qualifications." She found Dr.
Edoga's original CV "misrepresented his current status and
qualifications at the time it was served." As a result, the
judge determined defendant's counsel was unable to object to Dr.
Edoga's qualifications until after the deposition. Although the
court acknowledged plaintiff's equitable argument and "concerns
. . . in light of the timing of th[e] [motion to bar Dr.
Edoga]," and although she recognized the "apparent prejudice
plaintiff will suffer . . . on the eve of the impending trial
11 A-0337-14T3 date," the court did not grant plaintiff's request for a
reasonable amount of time to obtain another expert. The court
adjourned the trial date, however, from March 2014 to April 28,
2014.
Because plaintiff was without an expert to support her
allegations of medical negligence, defendant's counsel filed a
motion for summary judgment, returnable April 25, 2014. While
that motion was pending, plaintiff moved for reconsideration of
the March 17, 2014 order barring Dr. Edoga's testimony and
sought to adjourn the April 28, 2014 trial date and reopen
discovery. The court denied defendant's motion for summary
judgment without prejudice pending resolution of plaintiff's
motion for reconsideration. The court also independently
adjourned the trial date until October 14, 2014. On June 25,
2014, the court denied plaintiff's motion for reconsideration.
Defendant then filed his "motion to dismiss" plaintiff's
complaint for failure to comply with the PFA. Plaintiff filed a
cross-motion to reopen discovery, adjourn the trial date, and
permit plaintiff an opportunity to provide a new expert.
In plaintiff's motion to reopen discovery to obtain a new
expert, plaintiff's counsel addressed the court's finding that
Dr. Edoga's original CV was misleading on its face. He
reiterated
12 A-0337-14T3 [t]he [d]efendant is quick to attribute an inference of deliberate misrepresentation on Dr. Edoga's qualification by virtue of the [CVs] presented. As indicated [previously,] the CVs were delivered . . . not by virtue of any effort by Dr. Edoga to misrepresent his status – much less an effort by the [p]laintiff to misrepresent [Dr. Edoga's] status.[3]
The judge concluded that plaintiff failed to demonstrate
exceptional circumstances to allow extended discovery, found
that defendant's counsel moved to bar Dr. Edoga's testimony
"immediately and expeditiously" after taking his deposition, and
determined defendant would be prejudiced as a result of
prolonged litigation. On August 29, 2014, the judge entered the
orders under review.
On appeal, plaintiff argues that Dr. Edoga satisfied the
requirements of N.J.S.A. 2A:53A-41(a)(1) and (2); the judge
erred in not applying N.J.S.A. 2A:53A-41(c); and the judge
abused her discretion by failing to adjourn the trial date,
extend discovery, and allow plaintiff an opportunity to retain a
new expert.
3 Although the judge focused on the original CV, the record establishes that the contents of all the CVs and the AOM erroneously suggested Dr. Edoga was actively practicing medicine. On this record, there are no credible facts to suggest plaintiff's counsel knew before the deposition that Dr. Edoga had been retired for approximately five years before the procedure in question.
13 A-0337-14T3 In June 2015, we granted The New Jersey Association for
Justice (NJAJ) amicus curiae status and permission to
participate in oral argument. NJAJ challenges the
constitutionality of the PFA, argues that the PFA was an
improper exercise of legislative authority, contends that Dr.
Edoga was qualified to testify, and, alternatively, asserts the
judge abused her discretion by failing to give plaintiff time to
replace Dr. Edoga.
II.
We begin by addressing the merits of the order dismissing
the complaint with prejudice. The court granted defendant's
motion to dismiss based on plaintiff's failure to comply with
the PFA. We afford this decision no deference, reviewing all
decisions on motions to dismiss de novo. Giannakopoulos v. Mid
State Mall, 438 N.J. Super. 595, 599 (App. Div. 2014), certif.
denied, 221 N.J. 492 (2015). Our focus here is on whether Dr.
Edoga satisfied the statutory and case law requirements to
testify as an expert.
Plaintiff contends that Dr. Edoga was qualified to testify
as an expert because he satisfied the PFA, particularly the
additional statutory requirements enumerated in N.J.S.A. 2A:53A-
41(a)(1) and (2). In the alternative, plaintiff argues the
judge erred by refusing to waive the expert qualification
14 A-0337-14T3 requirements imposed by the PFA, as permitted by N.J.S.A.
2A:53A-41(c). We address these contentions in turn.
A.
The PFA establishes certain qualifications that expert
witnesses in medical malpractice actions must possess. Nicholas
v. Mynster, 213 N.J. 463, 479 (2013). N.J.S.A. 2A:53A-41
provides, in pertinent part:
In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L. 1995, c. 139 (C. 2A:53A- 26 et seq.) on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:
a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on
15 A-0337-14T3 whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties
16 A-0337-14T3 or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(c) both.
[(Emphasis added).]
In Nicholas, the Court provided critical guidance for the
bench and practitioners when applying these provisions. Supra,
213 N.J. at 479-88. Specifically, the Court explained N.J.S.A.
2A:53A-41(a) imposes certain preliminary qualifications of an
17 A-0337-14T3 expert who seeks to testify against a defendant physician who
practices a specialty, but who is not otherwise board certified.
Nicholas, supra, 213 N.J. at 481-82. Experts must satisfy these
minimum requirements as a prerequisite to presenting testimony.
Moreover, if a defendant is board certified, N.J.S.A. 2A:53A-
41(a) requires that the testifying expert satisfy additional
qualifications set forth in subsections (a)(1) or (a)(2). Id.
at 482.
In her argument that the judge erred by barring Dr. Edoga
from testifying, plaintiff focuses primarily on the added
qualifications enumerated in N.J.S.A. 2A:53A-41(a)(1) (requiring
the expert be credentialed) and (a)(2)(b) (generally requiring
the expert devote a majority of his/her professional time
towards instruction of students in an accredited school).
Certainly, Dr. Edoga needed to meet the additional
qualifications of (a)(1) or (a)(2) because defendant was board
certified. But before we reach whether Dr. Edoga satisfied the
added statutory qualifications, we address whether he met the
preliminary qualifications mandated by N.J.S.A. 2A:53A-41(a).
(i)
As to the preliminary qualification of specialization, the
expert "shall have specialized [in the same specialty as a
defendant physician] at the time of the occurrence." N.J.S.A.
18 A-0337-14T3 2A:53A-41(a). Moreover, "[w]hen a physician is a specialist and
the basis of the malpractice action 'involves' the physician's
specialty, the challenging expert must practice in the same
specialty." Nicholas, supra, 213 N.J. at 481-82 (citing Buck v.
Henry, 207 N.J. 377, 391 (2011)) (emphasis added).
It is undisputed that Dr. Edoga retired from the practice
of medicine in 2005, approximately five years before defendant
performed the hernia repair operation. Dr. Edoga testified that
the last time he performed a paraesophageal hernia repair was in
2005. He also testified that the last time he was involved in
repairing a tear of the esophagus was in 2005. In his marketing
material, Dr. Edoga advertised that he was "retired from the
active practice of surgery [as early as] November of 2004 and
now function[ed] as the Chief Executive Officer of a start-up
surgical device company."
The Court has stated unequivocally that a plaintiff "cannot
establish the standard of care through an expert who does not
practice in the same medical specialties as [a] defendant
physician[]." Nicholas, supra, 213 N.J. at 468. As a result,
Dr. Edoga did not meet the minimum requirement mandated by
N.J.S.A. 2A:53A-41(a).
19 A-0337-14T3 (ii)
Because Dr. Edoga did not actively practice medicine "at
the time of the occurrence" in the same specialty as defendant,
we need not reach whether he met the added qualifications of
(a)(1) or (a)(2) under the PFA. However, we observe that Dr.
Edoga also failed to meet the additional requirements contained
in (a)(1) or (a)(2). The additional requirements under N.J.S.A.
2A:53A-41(a)(1) and (a)(2) apply when the defendant physician is
board certified and the course of treatment in dispute involves
that specialty. In such a case, the expert must meet one of two
criteria.
First, under N.J.S.A. 2A:53A-41(a)(1), an expert may be "a
physician credentialed by a hospital to treat patients for the
medical condition, or to perform the procedure, that is the
basis for the claim or action." This prong is designed to act
as a substitute for board certification. Specifically, although
the expert may not be board certified in the area in question,
he or she may be credentialed by his or her hospital to treat
patients for the medical condition at issue. Nicholas, supra,
213 N.J. at 482. Importantly, "[t]he hospital-credentialing
provision is not an alternative to the same-specialty
requirement." Ibid. However, a necessary precursor to being
20 A-0337-14T3 credentialed by a hospital is that the expert must be actively
practicing and treating the condition at issue.
Here, Dr. Edoga was not credentialed by a hospital to treat
the condition at issue when plaintiff's claim arose. At the
time defendant performed the hernia surgery in 2010, Dr. Edoga
was not privileged to "treat patients for the medical condition,
or to perform the procedure, that is the basis for the claim or
action." N.J.S.A. 2A:53A-41(a)(1). Years before the procedure,
Dr. Edoga failed to maintain his medical malpractice insurance
and forfeited his privileges at Morristown Memorial Hospital.
As a result, Dr. Edoga fails to satisfy the added requirement of
(a)(1).
Second, N.J.S.A. 2A:53A-41(a)(2) requires the expert to be
a board certified specialist or subspecialist in the same
specialty as the defendant physician, and during the year
immediately prior to the occurrence, have devoted the majority
of his or her professional time to active practice in that same
specialty or subspecialty, or the instruction of students in an
accredited medical school, also in the same specialty or
subspecialty, or both.
The undisputed evidence shows Dr. Edoga did not, "during
the year immediately preceding the date of the occurrence,"
devote the majority of his professional time to either active
21 A-0337-14T3 clinical practice or the instruction of students in a
statutorily defined accredited institution. Although Dr. Edoga
stated that he "teaches," he admitted he was not doing so in a
"teaching position . . . or professor[ship]," and he testified
that his instruction amounted to two or three hours per week.
As a result, Dr. Edoga also failed to satisfy the requirements
of N.J.S.A. 2A:53A-41(a)(2).
B.
We reject plaintiff's contention that the judge erred by
refusing to waive the expert qualification requirements imposed
by the PFA. Under certain circumstances, a court may waive
compliance with the PFA pursuant to N.J.S.A. 2A:53A-41(c), which
provides:
A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.
22 A-0337-14T3 A party seeking a waiver must file a motion for that
relief, which plaintiff failed to do. Instead, plaintiff's
counsel informally asked the court to waive the requirements
pursuant to subsection (c). Even though no motion was filed, we
consider the merits of plaintiff's contentions.
The statutory obligation is to demonstrate good faith
efforts to "identify an expert in the same specialty or
subspecialty." Ibid. There is no evidence that plaintiff was
unable to locate an actively practicing cardiothoracic or
general surgeon to review the merits of plaintiff's medical
malpractice allegations. Plaintiff argues counsel was unable to
locate surgeons who have performed the exact procedure defendant
performed in 2010, but the obligation is only to show good faith
efforts to identify an expert in the same specialty or
subspecialty, which plaintiff failed to do.
Even if plaintiff made the requisite showing of good faith,
Dr. Edoga's training, experience, and knowledge are not derived
from his "active involvement in, or full-time teaching of,
medicine in the applicable area of practice or a related field
of medicine." Ibid. As a result, we see no basis for a waiver
under section (c).
23 A-0337-14T3 III.
We now turn to the order denying plaintiff's cross-motion
to adjourn the April 28, 2014 trial date, reopen limited
discovery, and allow plaintiff an opportunity to obtain a new
expert. The request to adjourn the trial date is not an issue
because the court had independently adjourned the trial from
April 2014 to October 2014. We focus on the dismissal of the
complaint with prejudice and whether the court should have
permitted plaintiff to reopen discovery and obtain a new expert.
We conclude that denying plaintiff's cross-motion, which
led to the dismissal of the complaint with prejudice,
substantially ignored the purposes of the AMS. We reach this
conclusion reemphasizing the important reasons for a Ferreira
conference and the strong preference for adjudication of
disputes on the merits. Under the unique facts of this case, we
conclude that exceptional circumstances existed to extend
limited discovery.
The dual purpose of the AMS is "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." Ferreira, supra, 178 N.J. at 150 (quoting
Hubbard v. Reed, 168 N.J. 387, 395 (2001)); see also Buck,
24 A-0337-14T3 supra, 207 N.J. at 383 (explaining "[t]he purpose of the [AMS]
is to weed out frivolous complaints, not to create hidden
pitfalls for meritorious ones"). Considering the facts of the
case before us, dismissing plaintiff's complaint with prejudice
would not serve these purposes. On this record, there is no
credible evidence to suggest that plaintiff's complaint is
frivolous.
Plaintiff's counsel attempted in good faith to comply with
the PFA and N.J.S.A. 2A:53A-27, which provides, in pertinent
part:
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.
In medical malpractice cases, the AMS requires the affiant to
satisfy the requirements of the PFA, pursuant to N.J.S.A.
2A:53A-27, which further provides in relevant part that
25 A-0337-14T3 [i]n the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L. 2004, c. 17 (C. 2A:53A- 41).
Here, although the judge concluded that the original CV was
misleading on its face, she did not address the root of the
problem. The record reflects plaintiff's counsel produced the
original CV in good faith and there is no reason to believe from
a review of the original CV or AOM that plaintiff or plaintiff's
counsel knew Dr. Edoga had retired from the active practice of
medicine. Moreover, this is not a situation that amounted to
carelessness or inadvertence by plaintiff's counsel in using the
original CV, because the contents of the AOM and updated and
supplemental CVs also suggest that Dr. Edoga was actively
practicing medicine.
In malpractice cases, the qualifications of a plaintiff's
expert are expected to be addressed early in the litigation.
There exists a well-settled procedure to address potential
problems with compliance with the AMS. In Buck, the Court
reaffirmed the Ferreira requirement for courts to conduct a case
management conference within "ninety days of the service of an
answer in all malpractice actions." Supra, 207 N.J. at 394.
26 A-0337-14T3 The Court further noted that "[t]he painful experience of our
[AOM] jurisprudence reveals the compelling need for such
conferences at an early stage before problems arise." Ibid.
(first alteration in original) (quoting Ferreira, supra, 178
N.J. at 155). A Ferreira conference serves to avoid inadvertent
and technical errors in timely service of the affidavit. See
Ferreira, supra, 178 N.J. at 154-55. It also "require[s] [a
defendant] to advise the court whether he [or she] has any
objections to the adequacy of the affidavit." Id. at 155.
Ultimately, the conference serves to resolve potential discovery
issues — including compliance with the AMS — before they result
in "sideshows" of dueling motions. Id. at 154-55.
Here, defendant's counsel understandably waived the
Ferreira conference in part by relying on the AOM, in which Dr.
Edoga stated he had been in surgical practice for thirty-five
years, and the original CV, which indicated Dr. Edoga was an
attending surgeon at Morristown Memorial Hospital from "1976 to
present," and an assistant clinical professor of surgery from
"1985 to present." Counsel's only concern was whether Dr. Edoga
shared the same specialty under the PFA to issue the AOM and
render expert opinion testimony against defendant.
Had defendant's counsel known that Dr. Edoga had been
retired five years before the alleged malpractice, defendant's
27 A-0337-14T3 counsel would have proceeded with the Ferreira conference
challenging Dr. Edoga's qualifications under the AMS and PFA.
Certainly, had the Ferreira conference occurred, plaintiff would
have had the opportunity to comply with the AMS and PFA by
serving an AOM from a different expert witness before the
expiration of the 120—day deadline. Through no fault of either
counsel, Dr. Edoga's retirement was not known during the 120-day
deadline.
In general, to temper an inflexible application of the AMS,
the Supreme Court has carved out exceptions for extraordinary
circumstances, Cornblatt v. Barow, 153 N.J. 218, 246-47 (1998);
Tischler v. Watts, 177 N.J. 243, 246-47 (2003); for substantial
compliance with the statutory requirements, Fink v. Thompson,
167 N.J. 551, 564-65 (2001); Galik v. Clara Maass Med. Ctr., 167
N.J. 341, 357 (2001); for equitable estoppel and laches, Knorr
v. Smeal, 178 N.J. 169, 178-81 (2003); and for technical
deficiencies in the contents or service of the affidavit that
could have been cured within the statutory time limit, Ferreira,
supra, 178 N.J. at 154-55. In the context of the AMS, these
equitable doctrines are not directly implicated on this appeal
because the question is not whether to permit the use of Dr.
Edoga's AOM, but rather, whether to extend discovery so
plaintiff can retain a new expert.
28 A-0337-14T3 To illustrate this point, we turn to defendant's reliance
on Medina v. Pitta, 442 N.J. Super. 1 (App. Div.), certif.
denied, 223 N.J. 555 (2015). Defendant argues that the
doctrines of substantial compliance and extraordinary
circumstances are inapplicable. Defendant contends that once
the court barred Dr. Edoga's testimony, he was entitled to
summary judgment. Based on our reasoning in Medina, he
maintains that dismissal with prejudice is appropriate.
Defendant's reliance on Medina is misplaced. There the
parties were only concerned with whether the plaintiff's expert
satisfied the requirements under the PFA; here, the focus is on
the unintended consequences that flowed from plaintiff's
counsel's reasonable reliance on the AOM and original CV, which
erroneously reflected that Dr. Edoga had been practicing
medicine, not whether these equitable doctrines allowed the
continued use of Dr. Edoga's AOM and expert opinions. The focus
is on whether exceptional circumstances existed to extend
discovery, not to continue with Dr. Edoga as plaintiff's expert.
The facts in Medina are distinguishable. There, before
service of the AOM and expert's CV, the expert told the
plaintiff's attorney he was retired and asked if that would be a
problem. Id. at 14. The plaintiff's attorney replied he would
"look into it," but he did not think it would be a problem.
29 A-0337-14T3 Ibid. Here, there is no evidence in the record to show that
plaintiff's counsel had any reason to know, when he served the
original CV with the AOM and complaint, or even service of the
updated CV with Dr. Edoga's expert report, that Dr. Edoga
retired five years before the alleged malpractice. On the
contrary, Dr. Edoga stated in his AOM he had been involved in
surgical practice for roughly thirty-five years.
Additionally, in Medina, the expert gave deposition
testimony that he had retired, but unlike here, the plaintiff in
Medina did not file a motion to obtain a new expert or extend
the DED. Id. at 12-13. Instead, in opposition to the
defendant's motion for summary judgment, the plaintiff
maintained his expert satisfied the PFA. Id. at 13. The court
disagreed and granted summary judgment to the defendant. Ibid.
On reconsideration, the plaintiff reasserted his expert
satisfied the PFA, and for the first time argued that the
circumstances warranted a dismissal without prejudice. Id. at
14.
We agree with defendant's contention that under the facts
of Medina, the equitable doctrines of substantial compliance and
extraordinary circumstances were unavailable. In Medina, we
rejected the plaintiff's contention that the dismissal should
30 A-0337-14T3 have been without prejudice. Id. at 20-25. We determined that
the doctrine of substantial compliance "may be invoked when
dismissal is sought based upon [technical] deficiencies in an
AOM." Id. at 25. The doctrine is "not intended to shield a
plaintiff from the dismissal of a claim that is substantively
defective." Ibid. We pointed out that application of the
doctrine would erode our summary judgment jurisprudence and
eviscerate the remedial purpose of the PFA, to provide stringent
requirements for expert qualification. Ibid. Similarly, we
stated that a summary judgment analysis does not allow
application of the doctrine of extraordinary circumstances.
Ibid.
Here, however, the question is not whether the doctrines of
substantial compliance and extraordinary circumstances warrant
continued use of Dr. Edoga's testimony; rather, the issue is
whether exceptional circumstances exist allowing for an
extension of discovery permitting plaintiff time to retain a
different expert witness because, unbeknownst to plaintiff and
her attorney, the parties learned after the expiration of the
120-day deadline that the references to Dr. Edoga's active
medical practice in the AOM and original CV were inaccurate.
Therefore, Medina's holding does not govern our review.
31 A-0337-14T3 C.
Our review of the trial judge's decision not to extend
discovery is deferential. Pomerantz Paper Corp. v. New Cmty.
Corp., 207 N.J. 344, 371 (2011). "We generally defer to a trial
court's disposition of discovery matters unless the court has
abused its discretion or its determination is based on a
mistaken understanding of the applicable law." Rivers v. LSC
P'ship, 378 N.J. Super. 68, 80 (App. Div.) (citing Payton v.
N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185
N.J. 296 (2005).
An abuse of discretion "arises when a decision is 'made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'"
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(quoting Achacoso-Sanchez v. Immigration and Naturalization
Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). We respectfully
conclude such an abuse of discretion occurred here.
"The right of a trial court to manage the orderly
progression of cases before it has been recognized as inherent
in its function." Casino Reinvestment Dev. Auth. v. Lustgarten,
332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J.
607 (2000). Rule 4:24-1(c) provides in pertinent part that
"[n]o extension of the discovery period may be permitted after
32 A-0337-14T3 an arbitration or trial date is fixed, unless exceptional
circumstances are shown." The moving party must satisfy four
inquiries to extend discovery based on exceptional
circumstances:
(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.
[Rivers, supra, 378 N.J. Super. at 79.]
As to the first prong, plaintiff's counsel diligently
pursued compliance with the AMS and the PFA. Plaintiff's
counsel produced the AOM timely, defendant's counsel waived the
Ferreira conference and "any objection" to Dr. Edoga, and
plaintiff's counsel produced Dr. Edoga's expert report and
updated CV timely. Plaintiff's counsel did not know about any
objection to Dr. Edoga's qualifications until after the DED
expired.
As to the second prong, the additional discovery sought is
essential to plaintiff's case. Without an expert, plaintiff's
case will be dismissed, even though there is no credible
evidence to suggest that plaintiff's claim is frivolous.
33 A-0337-14T3 As to the third prong, plaintiff's counsel has a reasonable
explanation for not requesting an extension within the DED.
Defendant's counsel did not inform plaintiff's counsel at Dr.
Edoga's deposition that he would be moving to bar the testimony
of Dr. Edoga. Had that occurred, plaintiff's counsel would have
had sufficient time to request an extension of time in which to
retain a new expert. And because a trial date had not yet been
fixed at that point, the standard would have been one of good
cause rather than exceptional circumstances.
As to the fourth prong, the circumstances were beyond
plaintiff's control. There was no need to request an extension
of discovery before the expiration of the DED, even after Dr.
Edoga's deposition, because there was no objection to Dr.
Edoga's qualifications at that point. It was not until after
the DED expired that plaintiff's counsel first learned that
defendant would be seeking to bar Dr. Edoga's testimony.
Certainly, it was reasonable for plaintiff's counsel to rely on
the contents of the AOM and CVs.
We disagree with the finding that defendant's counsel moved
to bar Dr. Edoga's testimony "immediately and expeditiously"
after taking his deposition. The deposition occurred on
November 1, 2013, but the motion was not filed until January 29,
2014. Given the fact that defendant signed the consent order in
34 A-0337-14T3 March 2012, waiving "any objection[s]" to Dr. Edoga's
qualifications, and in light of the fact that defendant did not
object before the DED expired, plaintiff's counsel had no reason
to retain a new expert until defendant filed the motion to bar,
returnable on the eve of trial. Dismissing plaintiff's
complaint with prejudice would encourage procedural gamesmanship
and does not further the purposes of imposing enhanced
qualification requirements for expert witnesses.4 Ferreira,
supra, 178 N.J. at 154.
D.
It is well settled that because "dismissal with prejudice
is the ultimate sanction, it will normally be ordered only when
no lesser sanction will erase the prejudice suffered by the non-
delinquent party." Irani v. K-Mart Corp., 281 N.J. Super. 383,
387 (App. Div. 1995) (quoting Crispin v. Volkswagenwerk, A.G.,
96 N.J. 336, 345 (1984)). "Certainly, there has been no showing
of prejudice to [defendant] that would outweigh the strong
preference for adjudication on the merits rather than final
disposition for procedural reasons, or would warrant visiting on
the innocent client[] an error of [her] attorney." Mayfield v.
Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 207 (App. Div.
4 The judge did not find that defendant's counsel engaged in procedural gamesmanship.
35 A-0337-14T3 2000) (citations omitted). We conclude "[t]his is not a case of
a plaintiff sleeping on [her] rights and ignoring statutorily
imposed deadlines." Buck, supra, 207 N.J. at 395. "Rather,
this is a case of a plaintiff who has made good-faith attempts
to satisfy the statute." Ibid.
IV.
Finally, both plaintiff and the NJAJ argue that the PFA
violates Article VI, Section 2, Paragraph 3 of the New Jersey
Constitution, which states, in part:
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.
Our courts have uniformly recognized the constitutionality of
the PFA. See e.g., Ferreira, supra, 178 N.J. at 149 n.1;
Medina, supra, 442 N.J. Super. at 27. Moreover, to the extent
that NJAJ also argues that the PFA "was an improper exercise of
legislative authority" that "runs afoul of the established
methods for creating new rules of evidence," we conclude this
argument is without sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(1)(E). See N.J.
State Bar Ass'n v. State, 387 N.J. Super. 24, 50 (App. Div.)
(reaffirming the constitutionality of the PFA and explaining it
does not unconstitutionally infringe on the rules of evidence),
certif. denied, 188 N.J. 491 (2006).
36 A-0337-14T3 We reverse the order dismissing the complaint with
prejudice; reverse the order denying plaintiff's cross-motion to
adjourn the trial date and reopen discovery; and remand for
further proceedings consistent with this opinion. We do not
retain jurisdiction. Moreover, the judge has the discretion on
remand to impose, if warranted, other appropriate relief.
37 A-0337-14T3