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New Jersey Institute for Continuing Legal Education A Division of the State Bar Association NJICLE.com

HOW TO PREPARE

AND TRY A MEDICAL

MALPRACTICE CASE

S0185.17

c

HOW TO PREPARE

AND TRY A MEDICAL

MALPRACTICE CASE

Moderator/Speaker William L. Brennan, Esq. Law Office of William L. Brennan (Shrewsbury)

Speakers Honorable John E. Harrington, P.J.Cv. (Mt. Holly) April M. Gilmore, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney The Epstein Law Firm (Rochelle Park) Michael R. Ricciardulli, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Ruprecht Hart Weeks & Ricciardulli, LLP (Westfield) MaryAnn Nobile Wilderotter, Esq. Ronan, Tuzzo & Giannone, P.C. (Tinton Falls)

In cooperation with the New Jersey State Bar Association Senior Lawyers

Special Committee S0185.17

Darryl L. Zaslow, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Eichen Crutchlow Zaslow & McElroy, LLP (Edison, Red Bank, Toms River)

© 2017 New Jersey State Bar Association. All rights reserved. Any copying of material

herein, in whole or in part, and by any means without written permission is prohibited.

Requests for such permission should be sent to NJICLE, a Division of the New Jersey

State Bar Association, New Jersey Law Center, One Constitution Square, New

Brunswick, New Jersey 08901-1520.

Table of Contents Page A Plaintiff’s Perspective April Gilmore 1 Client Intake 1 Affidavit of Merit Statute – Transitions, Interpretations and Pitfalls 5 Same Specialty Requirement 8 Good Faith Waiver of N.J.S.A. 2A:53A-41(c) 11 Application of N.J.S.A. 2A:53A-28 12 Extraordinary Circumstances 14 Common Knowledge 15 Substantial Compliance 16 Exceptional Circumstances 17 Important Cases/Information for All Medical Malpractice Cases William L. Brennan, Esq. 21 Designation of Trial Counsel 21 Affidavit of Merit Statute 21 Surveillance 21 Pre-Existing Conditions 21 Opinions of Non-Testifying Doctors 21 Expert Discovery 21 Material Changes in Testimony 21 Voir Dire 21 What is a Proper Motion in Limine? 22 Attachments N.J.S.A. 4:25-4 23 N.J.S.A. 2A:53A-26 25 N.J.S.A. 2A:53A-27 29 N.J.S.A. 2A:53A-28 31 N.J.S.A. 2A:53A-29 32 Pre-Existing Condition – Increased Risk/Loss of Chance- Proximate Cause 33 Charge 5.50E – Interrogatories 41 Form A(1) Interrogatories 45 Form C(3) Interrogatories 51 Directive 04-07 57 Definition: Motion in Limine 63 Cases [see downloadable material] List of Relevant Cases Michael R. Ricciardulli, Esq. 65 Self Critical Analysis Privilege 65 Motions in Limine 65 Scafidi 65 Opinions from Non-Testifying Treaters 65

Calling Adversary’s Expert to Testify 65 Adverse Inference for Not Calling Expert to Testify 65 Material Change in Testimony of Witness 65 Expert Testimony Outside Four Corners of Report 65 Calling More Than One Expert to Testify in Same Specialty 65 Hearsay Within Hearsay 65 Learned Treatises 65 Attachments N.J.R.E. 703 67 N.J.R.E. 808 69 Cases [see downloadable material] Stele v. Goloub Brief 71 Brief re: Experts’ Access to Medical Records 79 Townsend v. Pierre, et al. 85 Pannacciulli v. Belof, et al. (Denial of Motion) 91 About the Panelists… 97

A Plaintiff’s Perspective

by April Gilmore

Client Intake:

There are several considerations when reviewing a potential medical malpractice

case. Every case brings with it a host of different facts and circumstances. When

reviewing a matter, one of the first questions to ask the prospective client is when did the

alleged malpractice take place?

The Statute of Limitations for a Medical Malpractice is two years from the date of

the accrual of the cause of action.

N.J.S.A. 2A:14-2: Actions for injury caused by wrongful act, appointment of

guardian ad litem.

a. Every action at law for an injury to the person caused by the wrongful act,

neglect or default of any person within this State shall be commenced within two

years next after the cause of any such action shall have accrued; except that an

action by or on behalf of a minor that has accrued for medical malpractice for

injuries sustained at birth shall be commenced prior to the minor’s 13th birthday.

b. In the event that an action by or on behalf of a minor that has accrued for

medical malpractice for injuries sustained at birth is not commenced by the

minor’s parent or guardian prior to the minor’s 12th birthday, the minor or a

person 18 years of age or older designated by the minor to act on the minor’s

behalf may commence such an action. For this purpose, the minor or designated

person may petition the court for the appointment of a guardian ad litem to act

on the minor’s behalf.

Thus, if a plaintiff suffers injuries at the hand of a medical practitioner, and he or she knows

of both the injuries and the cause of his or her injuries, the cause of action accrues two

years from the date of the procedure or treatment that caused the injury.

Sometimes, the cause of action can be deemed to have accrued at a later date when

the plaintiff failed to discover the injury or cause of the injury until sometime after that two

years has run. For example, in the case in which a foreign object has been left behind in

someone’s body, but that person does not discover it until after the statute has run, he or

she is granted the equitable relief of the “discovery rule” and is able to bring the action

within two years of the discovery of the malpractice.

The discovery rule balances the need to protect the injured person who is unaware

that they might have a cause of action against the injustice of making a defendant defend

an old or stale claim.

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The discovery rule was first announced by the New Jersey Supreme Court in

Fernandi v. Strully, 35 N.J. 434 (1961). In that case a wing nut was left in a patient

following a hysterectomy. The plaintiff in that case underwent the surgery in 1955 and

followed up with her surgeon for about six months concerning the hysterectomy.

Thereafter, she saw the referring and assisting surgeon several times complaining of pain

in her back. Finally in 1958, she requested x-rays be taken, which revealed the existence

of what looked like a wing nut in her abdomen. She then took the x-rays to the surgeons,

who confirmed that the wing nut was the missing wing nut from the retractor used during

surgery, but she was told not to worry about it because it was sterile. She filed suit in 1959

against the surgeons for negligence, fraud and concealment, and failure to properly

diagnose the existence of the wing nut sooner, despite her continuing complaints of pain in

her back.

The judge in the Law Division dismissed the case on summary judgment based

upon the expiration of the statute of limitations, strictly applying the statutory language.

While the appeal was pending, the Supreme Court of New Jersey certified the case for

appeal and reversed and remanded for a trial. The Court held that the plaintiff did not sit

on her rights and should be “afforded a day in court.” The Court also found that her claims

did not rely on questions of her credibility, nor on matters of professional diagnosis,

judgment or discretion. The Court stated:

Justice cries out that she fairly be afforded a day in court and it appears evident to

us that this may be done, at least in this highly confined type of case, without undue

impairment of the two-year limitation or the considerations of repose which

underlie it. If as is to be hoped, the resulting jeopardy to defendants produces a

greater measure of care in connection with surgical operations, so much the better.

Id. at 451.

The Appellate Division, in Yerzy v. Levine, 108 N.J. Super. 222 (App. Div. 1970)

allowed plaintiff’s claim against her surgeon to proceed, despite her complaint being filed

30 months after she underwent gall bladder surgery when the surgeon completely severed

the common bile duct. While she continued to follow up with other physicians following

the initial surgery, she was not advised that the common duct was severed until after the

statute of limitations had expired.

In Yerzy, the Appellate Division was called upon to review the issue regarding

whether the two year period began to run from the date of the operation or from the day

plaintiff first knew or should have known of her condition and defendant’s alleged

responsibility for it. The court found that

The severing of the common duct and the closing of the operative site without

repairing it, like the leaving of the wing nut in Fernandi, were actions which

themselves bespoke negligence. Mrs. Yerzy's claim does not raise questions as to

her credibility, nor does it rest on matters of professional diagnosis, judgment or

discretion. Rather, it depends upon proof of the severance during surgery of a

portion of her anatomy which was not supposed and never intended by defendant

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to be the object of such surgery. The finding of the severed bile duct is undisputed,

so that the lapse of time does not entail the danger of a false or frivolous claim, or

one which is speculative or uncertain. The circumstances alleged by plaintiffs, if

established at trial, do not permit the suggestion that they slept on their rights.

The Appellate Division held that the case should be remanded so that a jury could

consider whether the discovery rule would allow plaintiffs’ case to proceed and the extent

of plaintiffs’ damages arising out of the negligence, already found to exist by the jury at

the trial level.

The Supreme Court was faced again with a question of the discovery rule in Lopez

v. Swyer, 62 N.J. 267 (1973). In Lopez, the plaintiff underwent a radical mastectomy for

breast cancer, followed by radiation by Alfred Swyer, M.D., a radiologist in 1962. The

plaintiff had severe adverse reactions to the radiation therapy including burns, necrotic

ulcers, radiation fibrosis of the lung and spontaneous rib fractures. She required 15

additional surgeries as a result of her reaction to the radiation. In 1967, while undergoing

reconstructive surgery, the plaintiff overheard an examining doctor state “And there you

see, gentlemen, what happens when the radiologist puts a patient on the table and goes out

and has a cup of coffee.” Id. at 271. Suit was commenced in 1967, five years after the

treatment had been completed. All of the defendants moved for summary judgment on

the basis of the statute of limitations, which was granted as to one defendant (Dr. Swyer,

who performed the radiation). The Appellate Division reversed and remanded for the

purpose of taking defendants’ depositions and reargument of the issue by the trial judge.

The trial judge thereafter granted summary judgment as to all defendants, the Appellate

Division reversed and remanded, and Dr. Swyer sought certification on the issue.

The Supreme Court agreed with the Appellate Division, and ordered a remand and

trial, holding that a cause of action "will be held not to accrue until the injured party

discovers, or by an exercise of reasonable diligence and intelligence should have

discovered that he may have a basis for an actionable claim." 62 N.J. at 272. Contrary to

the directive of Appellate Division, instead of having the jury hear the issue, the Court held

that “whenever a plaintiff claims a right to relief from the bar of the statute of limitations

by virtue of the so-called “discovery” rule, the question as to whether such relief is properly

available shall be deemed an issue for determination by the court rather than by the jury.”

Id at 272. The Court’s reasoning was as follows:

In the first place the question as to the application of the statute of limitations is

ordinarily a legal matter and as such is traditionally within the province of the court.

Furthermore, submission of the issue to a jury is in every sense awkward. It is true

that the time of discovery is a question of fact, and so could be left to a jury. But,

as we have indicated, the matter does not rest there. It is not every belated discovery

that will justify an application of the rule lifting the bar of the limitations statute.

The interplay of the conflicting interests of the competing parties must be

considered. The decision requires more than a simple factual determination; it

should be made by a judge and by a judge conscious of the equitable nature of the

issue before him. Id at 274-75.

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In so holding, the Court established that the determination of the viability of discovery rule

doctrine should be made at a preliminary hearing out of the presence of the jury. The Court

found that in cases in which the credibility of the parties is involved, live testimony, not

simply affidavits or depositions should be presented by the parties, but it was for the trial

court to decide what showing was necessary. “The issue will be whether or not a party,

either plaintiff or counterclaimant, is equitably entitled to the benefit of the discovery rule,”

taking into consideration all relevant facts and circumstances. Id. at 275-76. The factors

to be considered should include “the nature of the alleged injury, the availability of

witnesses and written evidence, the length of time that has elapsed since the alleged

wrongdoing, whether the delay has been to any extent deliberate or intentional, whether

the delay may be said to have peculiarly or unusually prejudiced the defendant.” Id. at 276.

The burden is on the party claiming application of the doctrine.

Other interesting cases on the discovery rule in the Medical Malpractice context:

• Alfone v. Sarno, 139 N.J. Super. 518 (App. Div. 1976).

• Moran v. Napolitano, 71 N.J. 133 (1976).

• Lowe v. Zarghami, 158 N.J. 606 (1999).

• Gallagher v. Burdette-Tomlin Mem Hospital, 163 N.J. 38 (2000).

• Guichardo v. Rubinfeld, 177 N.J. 45 (2003).

• Lyons v. Mohr, 2013 N.J. Super. Unpub. LEXIS 2860 (App. Div. 2013).

In addition to when the potential cause of action may have accrued against the

various medical practitioners, we also consider the following (among several others) when

determining whether to take on a potential malpractice claim:

Age of the patient;

Medical history of the patient;

Condition for which the plaintiff is or was being treated;

Length of time for which the condition had been treated;

What lead to the need for the medical treatment;

How the outcome was different than anticipated;

How many and types of physicians/medical practitioners are involved in care;

How many Affidavits of Merit will be necessary;

The client’s recovery or anticipated recovery;

The anticipated costs of the case (expert witnesses, depositions costs, etc.);

Do the damages suffered justify the anticipated costs of the case; and

Is the client likeable?

4

Affidavit of Merit Statute – Transitions, Interpretations and Pitfalls

In order to proceed with a professional malpractice action, the plaintiff is required

to obtain and serve an affidavit of merit within 60 days of defendant’s filing of the answer

to the complaint.

The Affidavit of Merit statute (N.J.S.A. 2A:53A-27) provides as follows:

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 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). In all other

cases, the person executing the affidavit shall be licensed in this or any other state;

have particular expertise in the general area or specialty involved in the action, as

evidenced by board certification or by devotion of the person’s practice

substantially to the general area or specialty involved in the action for a period of

at least five years. The person shall have no financial interest in the outcome of the

case under review, but this prohibition shall not exclude the person from being an

expert witness in the case.

According to N.J.S.A. 2A:53A-28:

An affidavit shall not be required pursuant to section 2 of this act if the plaintiff

provides a sworn statement in lieu of the affidavit setting forth that: the defendant

has failed to provide plaintiff with medical records or other records or information

having a substantial bearing on preparation of the affidavit; a written request

therefor along with, if necessary, a signed authorization by the plaintiff for release

of the medical records or other records or information requested, has been made by

certified mail or personal service; and at least 45 days have elapsed since the

defendant received the request.

If a plaintiff fails to obtain an appropriate Affidavit of Merit within the time frame

set forth in N.J.S.A. 2A:53A-27, “it shall be deemed a failure to state a cause of action”

(N.J.S.A. 2A:53A-29); and the case will be dismissed with prejudice.

5

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In a medical malpractice case, the parties must also comply with the New Jersey

Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37

through N.J.S.A. 2A:53A-42. That legislation sets forth more specific requirements for

the Affidavit of Merit necessary to proceed with a case against a physician. N.J.S.A.

2A:52A-41 provides that the prospective expert who executes the affidavit of merit must

be a licensed as a physician or other health care professional in the United States and:

a. If 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 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 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

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 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

6

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.

b. If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, 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:

1. Active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the

procedure, that is the basis of the claim or action; or

2. The instruction of students in an accredited medical school, health professional school or accredited residency or clinical research program in

the same health care profession in which the party against whom or on

whose behalf the testimony is licensed; or

3. Both.

c. 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.

For a list of specialties/subspecialties recognized by The American Board of

Medical Specialties see http://www.abms.org/member-boards/specialty-subspecialty-

certificates/.

For a list of specialties/subspecialties recognized by The American Osteopathic

Association see http://www.osteopathic.org/inside-aoa/development/aoa-board-

certification/Pages/specialty-subspecialty-certification.aspx.

Certain procedural requirements have been implemented by the New Jersey

Supreme Court “to ensure that discovery related issues, such as compliance with New

Jersey's Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to 2A:53A-29, do not become

sideshows to the primary purpose of the civil justice system--to shepherd legitimate claims

7

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expeditiously to trial.” Ferreira v. Rancocas Orthopedic Assocs, 178 N.J. 144 (2003).

First, R. 4:5-3 provides in pertinent part that

A physician defending against a malpractice claim who admits to treating

the plaintiff must include in his or her answer the field of medicine in which

he or she specialized at that time, if any, and whether his or her treatment

of the plaintiff involved that specialty.

In addition, the Court in Ferreira directed trial courts to conduct a case management

conference within 90 days of the service of the answer in medical malpractice actions in

order to address all discovery issues, including whether an affidavit of merit has been

served on the defendant. At that time, it is incumbent on the defendant to advise the court

if there are any objections to the adequacy of the affidavit. If so, the plaintiff will have

until the expiration of the 120 day time period set forth in N.J.S.A. 2A:53A-27 to conform

the affidavit to the statutory requirements. The Ferreira conference was created to remind

parties of their obligations under the Affidavit of Merit Statute, and to assist in the

avoidance of dismissal of meritorious claims by lack of diligence or inadvertence. The

conference will not toll the requirements, but will give the parties an opportunity to

recognize any deficiencies at a stage in which there will still be time to correct it.

Hopefully.

➢ Same Specialty Requirement:

The statute makes clear that, with the exception of N.J.S.A. 2A:53A-41(c), when

the defendant physician is a specialist, and the basis of the malpractice alleged involves the

defendant’s specialty, the plaintiff’s expert must practice in the same specialty. Nicholas

v. Mynster 213 N.J. 463, 481-82 (2013); Mazur v. Crane’s Mill Nursing Home, 441 N.J.

Super.168, 175 (App. Div. 2015).

If the defendant physician is board certified and the care he or she provided to the

patient involves that board specialty, the expert witness must be (1) either credentialed by

a hospital to treat the condition of the patient at issue or be board certified in the same

specialty in the year preceding the occurrence that is the basis for the cause of action; and

(2) must have “have devoted a majority of his professional time in the preceding year to

either clinical practice in the specialty or to teaching at an accredited medical school in that

specialty.” Nicholas, 213 N.J. Super. at 482.

In Nicholas, the plaintiff, who was operating a gas-powered saw in the basement of

a home on which he was performing work, was exposed to noxious fumes and became ill.

He was taken to the hospital and treated on an emergency basis for suspected carbon

monoxide poisoning. Upon his arrival at the emergency room, he was treated by a doctor

who was board certified in emergency medicine (Christopher Mynster, M.D.) and an

attending physician who was board certified in the practice of family medicine (Rekha

Sehgal, M.D.). He was transferred to the Intensive Care Unit and continued a regimen to

address the carbon monoxide poisoning. Plaintiff suffered brain damage, including seizure

8

disorder, and other bodily injuries because of the carbon monoxide poisoning. Id. at 469-

70.

Plaintiffs sued claiming that Drs. Mynster and Sehgal failed to order proper testing,

to administer proper amounts of oxygen, failed to refer him to proper specialists and a

facility with a hyperbaric chamber so that he could be appropriately treated for carbon

monoxide poisoning. Id. at 470. Plaintiffs obtained affidavits of merit from two doctors.

The first, Lindell Weaver, M.D., was board certified in the medical specialty of internal

medicine, pulmonary diseases, critical care and undersea & hyperbaric medicine. The

second doctor, James Doghramji, M.D., was board certified in internal medicine.

Plaintiffs obtained an expert report from Dr. Weaver only, who testified during his

deposition that, notwithstanding that he neither practiced nor was board certified in the

specialties of emergency medicine or family medicine, Dr. Sehgal and Mynser deviated

from the accepted standard of care by not referring Nicholas to a facility that provided

hyperbaric oxygen therapy. Id. at 473. Defendants moved to bar plaintiffs from using Dr.

Weaver as an expert witness (and thus, for summary judgment) because he did not have

the requisite credentials to testify to the standard of care applicable to defendants’ board

certifications, pursuant to N.J.S.A. 2A:53A-41. The trial judge allowed Dr. Weaver’s

testimony finding that his lack of applicable board certification goes to his credibility, not

admissibility. Id. at 474. The Appellate Division denied leave to appeal, but the Supreme

Court granted it.

The Court reviewed the expert requirements in two steps - first, when a specialty is

involved, and then when a specialty, coupled with board certification in that specialty is

involved. As to the first, the Court found that

A medical expert must be a specialist in the same field in which the

defendant physician specializes; there are no exceptions to that requirement

other than the waiver provision of N.J.S.A. 2A:53A-41(c), which is

inapplicable in this case.” Id. at 481.

In addition, if the expert is also board certified, and the care involved that board specialty,

there were added requirements, namely that the expert witness must be

either credentialed by a hospital to treat the condition at issue or be board

certified in the same specialty in the year preceding the occurrence that is

the basis for the claim. Id. at 482.

While the Court recognized that Dr. Weaver’s qualifications as an expert on the

subject of carbon monoxide poisoning and the use of hyperbaric oxygen as a treatment

modality appeared to have met the requirements of N.J.R.E. 702, it found his qualifications

must comport with the requirements of N.J.S.A. 2A:53A-41(a), which governs when a

defendant physician is board certified in a specialty and the care of the plaintiff involved

that specialty.

9

The Patients First Act provides that an expert must have the same type of practice

and possess the same credentials as the defendant, unless waived by the court. Id. at 479.

The Court further recognized that the case relied upon by the trial court and plaintiffs, Khan

v. Singh, 200 N.J. 82 (2009), applied to cases in which the cause of action arose prior to

the enactment of the Patients First Act. The Court concluded that because Dr. Weaver

did not practice in the same specialty as defendants, his testimony should have been barred

as not complying with N.J.S.A. 2A:53A-41(c) and summary judgment should have been

granted because plaintiffs could not prove their case without competent expert testimony.

In Buck v. Henry, 207 N.J. 377 (2011), plaintiff, who had been prescribed Ambien

and Zoloft by defendant doctor, shot himself in the face after falling asleep with a gun in

his hand after taking Ambien. Plaintiff sued the prescribing doctor and the

manufacturer/distributor of Ambien. Plaintiff’s complaint was dismissed by the trial court

because plaintiff filed two affidavits, one from a psychiatrist and another from a specialist

in emergency medicine.

Defendant advised plaintiff’s counsel that the psychiatrist’s affidavit was

insufficient because Dr. Henry was treating plaintiff as a family practitioner at the time the

cause of action arose. Dr. Henry was board certified in emergency medicine, and his

website indicated that he specialized in family medicine, but that he was not so board

certified. To correct the deficiency, plaintiff obtained an affidavit from a physician who

was board certified in emergency medicine. The trial court did not conduct a Ferreira

conference so the adequacy of the affidavits of merit provided by plaintiff could not be

tested in a timely manner.

The trial court dismissed on summary judgment holding that neither affidavit was

sufficient because Dr. Henry was not a general physician, so the affidavit of the psychiatrist

was deficient; and he was not practicing emergency medicine at the time so the second

affidavit also did not comport with the requirements of the statute.

In reviewing the matter, the Court simplified the three distinct categories

embodying the “kind for kind rule:”

(1) Those who are specialists in a field recognized by the American Board

of Medical Specialties (ABMS) but who are not board certified in that

specialty;

(2) Those who are specialists in a field recognized by the ABMS and who

are board certified in that specialty; and

(3) Those who are general practitioners.

Id. at 389. The challenging expert who executes an affidavit of merit should be

“equivalently qualified” to the defendant. Thus, if Dr. Henry was providing treatment as a

family practitioner, the affidavit of merit must be from a physician who is like qualified,

namely a family practitioner. The Court directed that the case be remanded to the trial

court for a Ferreira conference to allow the defendant to lodge objections to, and the court

to decide the sufficiency of, plaintiff’s affidavits, and provide the plaintiff with thirty days

10

to cure any deficiencies in his affidavit. Id. at 395. The Court reasoned that the Ferreira

conference was necessary because

the purpose of the Affidavit of Merit statute is to weed out frivolous

complaints, not to create hidden pitfalls for meritorious ones. The Ferreira

conference is intended to resolve questions concerning the propriety of an

affidavit before the end of the statutory time limit so that otherwise worthy

causes of action are not needlessly dismissed.

The Court also again reiterated the directive in Ferreira that mandated that a

physician defending a malpractice claim include in his answer (whether he treated the

plaintiff and) the field of medicine in which he is a specialist and whether his treatment of

plaintiff involved that specialty; and proposed inclusion of the directive in R. 4:5-3 or 4:5-

4. Id. at 396.

• Carr v. Our Lady of Lourdes Med. Ctr., 2015 N.J. Super. Unpub. LEXIS 2157

(App. Div. 2015).

• Williams v. Atlanticare Reg’l Med. Ctr., 2014 N.J. Super. Unpub. LEXIS 2157

(App. Div. 2014).

➢ Good Faith Waiver of N.J.S.A. 2A:53A-41(c)

In the case of Ryan v. Renny, 203 N.J. 37 (2010), the Court was presented with the

opportunity to interpret the waiver provision of N.J.S.A. 2A:53A-41(c) and to determine

whether a showing of a “good faith effort” requires an explanation as to why experts in a

defendant’s field of practice refused to execute an affidavit of merit. In that case, plaintiff

sued defendant doctor after suffering a perforated colon following defendant’s execution

of a routine colonoscopy. Defendant was board certified in gastroenterology and internal

medicine. Plaintiff’s affidavit of merit was executed by a surgeon who had experience

performing colonoscopies, repairing tears relating to colonoscopies and who had published

multiple articles on the subject. Defendant moved to dismiss because the plaintiff’s

proposed expert was not of the same specialty as defendant, and plaintiff cross-moved for

a waiver of the specialty requirement under 41(c) on the basis that he contacted several

potential experts in the same specialty but was unable to secure an affidavit. Ryan, 203

N.J. at 43-44.

Once a plaintiff can demonstrate a good faith showing of the inability to obtain an

expert in the same specialty or subspecialty as defendant, the proposed expert must possess

“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.” Id. at 44. The Court held that the language of the statute does

not require that the proposed expert be engaged in performing the medical procedure at

issue on the date of the occurrence giving rise to the claim, but may have gathered his

training, experience and knowledge as a result of prior practice in the field. The

11

determination of whether good faith exists, and the qualifications of the proposed expert

are sufficient, are within the trial judge’s discretion.

The statute directs the judge to focus on the “‘effort’ the moving party made to

obtain a statutorily authorized expert, and not on the reasons why a particular expert or

experts declined to execute an affidavit,” Id. at 55, which required the proponent to

demonstrate what steps he undertook to obtain an expert qualified according to the statute.

In support of the application for a waiver, the proponent should demonstrate

The number of experts in the field; the number of experts the moving party

contacted; whether and where he expanded his search geographically when

his efforts were stymied; the persons or organizations to whom he resorted

for help in obtaining an appropriate expert; and any case-specific

roadblocks (such as the absence of local sub-specialty experts) he

encountered. However, the expert’s reasons for declining simply do not

bear on the robustness of movant’s efforts. Id.at 55. (emphasis added).

As to defendant’s argument that plaintiff’s proposed expert did not meet the

requirements of section (c) because he no longer performed colonoscopies, the Court found

that the waiver provision provided the judge with the discretion to assess the expert’s

qualifications, taking “into account the passage of time and its relationship to the expert’s

qualifications.” Id. at 60. The Court remanded the case back to the trial court.

• De Laroche v. Advanced Laparoscopic Assoc., 2017 N.J. Super. Unpub. LEXIS 487 (App. Div. 2016).

➢ Application of N.J.S.A. 2A:53A-28

The Appellate Division addressed an application by plaintiff under N.J.S.A.

2A:53A-28 in Scaffidi v. Horvitz, 343 N.J. 552 (App. Div. 2001). In that case, the plaintiff

requested certain records through a notice to produce that were not provided within 45 days

of the request. The court extended the time within which to file the affidavit of merit an

additional 60 days in accordance with N.J.S.A. 2A:53A-27 following the plaintiff’s receipt

of the records requested. However, plaintiff applied for another 60 days, contending that

additional time was necessary for the review of the records, which were not received within

the initial 45 days requested. The trial court held that the plaintiff’s request for a second

extension was not available under the statute and plaintiff failed to make a sufficient

showing that he should be relieved of the obligation of filing an affidavit of merit simply

because the defendant failed to provide the logs of the procedures within 45 days. Id. at

554-556.

The court stated that the plaintiff is not relieved from filing an affidavit simply

because the defendant does not timely provide records unless the plaintiff can demonstrate

that the records or other information withheld has a substantial bearing on the preparation

of the affidavit of merit. Id. at 558. Thus the court held that “N.J.S.A. 2A:53A-28 must

be construed to require a plaintiff to identify with specificity any medical records or other

12

information he believes are needed to prepare the affidavit of merit, in order to trigger the

running of the forty-five day period for a response.” Id. at 559. The court thus affirmed

the trial court’s dismissal.

In the case of Aster ex rel Garofalo v. Shoreline Behavioral Health, 346 N.J. Super.

536 (App. Div. 2002), the court dealt with an application by the plaintiff to file a sworn

statement, in lieu of an affidavit of merit, claiming that defendants failed to provide

requested medical records which had a direct bearing on the affidavit’s preparation, in

accordance with N.J.S.A. 2A:53A-28. In Aster, the Guardian Ad Prosequendum (GAP),

through a power of attorney, requested records from the defendant hospital shortly after

the occurrence of the events giving rise to the complaint. The records request was denied

by the facility. The records were again requested (before the filing of the complaint) with

a copy of the power of attorney attached. The facility again denied the request, demanding

an original of the power of attorney. After the filing of the complaint, the plaintiff again

requested the records via a Notice to Produce. However, the plaintiff neither filed an

affidavit of merit nor an application to the court for leave to file a sworn statement in lieu

of an affidavit of merit within the 120 days after the filing of the answer. Id. at 541. The

trial court dismissed the complaint for failure to provide an affidavit of merit on application

of the defendant.

On appeal, the plaintiff argued that because the records were requested twice before

the complaint was filed and once in a Notice to Produce and had a substantial bearing on

the preparation of the affidavit of merit, she should have been granted leave to submit a

sworn statement in lieu of an affidavit. Defendant responded that the records were properly

withheld due to insufficiencies in the power of attorney and authorizations provided by

plaintiff prior to the institution of the suit. No explanation was provided for its failure to

provide the records in response to the Notice to Produce. Id. at 542.

The court held that plaintiff should have been granted leave to file the sworn

statement in accordance with N.J.S.A. 2A:53A-28 because defendant’s failure to provide

the patient or his legal representative his medical records prevented the GAP from being

able to obtain a review of those records and a valid affidavit of merit. It held that it should

be presumed that the medical records not produced have a substantial bearing on the

preparation of the affidavit and the party opposing such application should have the burden

of establishing otherwise. Id. at 543.

With respect to the timing of the application under N.J.S.A. 2A:53A-28, (which

was made more than 120 days after the filing of the answer) the court found that plaintiff’s

application should “relate back to the beginning of plaintiff’s efforts to obtain the

documents referred to in application.” Id. at 545.

• Davies v. Imbesi, 328 N.J. Super. 372 (App. Div. 2000)(plaintiffs failed to demonstrate extraordinary circumstances for the failure to provide a timely

affidavit of merit as set forth in N.J.S.A. 2A:53A-28, despite not being able

to obtain x-ray films as the affidavit of merit could have been obtained based

upon the x-ray reports alone).

13

• Guzman v. Jersey City Med. Ctr., 356 N.J. Super. 37 (App. Div. 2002)(affirmed trial court’s dismissal because plaintiff could not have

reasonably relied upon defendant’s non-production of medical records

(when plaintiff knew that defendant did not have a record for him) as a basis

for his non-compliance with the requirement to file an affidavit of merit).

• Balthazar v. Atlantic City Med. Ctr., 358 N.J. Super. 13 (App. Div. 2003)(order dismissing plaintiff’s complaint affirmed due to plaintiff’s

failure to show extraordinary circumstances).

• Harper-Mcgill v. Bancroft, 2016 N.J. Super. Unpub. LEXIS 1765 (App. Div. 2016)(affirmed trial court’s dismissal procedurally and substantively,

namely plaintiff failed to request leave provided by N.J.S.A. 2A:53A-28

until after the expiration of the 120 days, and her request for that leave was

not accompanied by any competent evidence demonstrating that the lack of

defendant’s records caused her failure to obtain an affidavit of merit).

➢ Extraordinary Circumstances

In Mazur v. Crane’s Mill Nursing Home, 441 N.J. Super. 168 (App. Div. 2015), the

Appellate Division reversed an order granting summary judgment to a physician who

misrepresented that he had a specialty and was board certified in geriatric medicine in his

Answer. Plaintiff’s affidavit of merit was signed by a doctor who was board certified in

emergency and internal medicine. Contrary to the directive in Ferreira, the court failed to

schedule a case management conference until after the expiration of the 120 days.

Defendants moved to dismiss based upon a certification by the attorney indicating that the

defendant was board certified in geriatrics and plaintiff’s affidavit was insufficient. Neither

the trial court or counsel noticed that the documentation attached to the motion indicated

that the defendant doctor’s board certification expired years before he provided treatment

to the patient at issue. Id. at 174.

The court found that although the plaintiff did not comply with the statute, the

circumstances set forth in the case were extraordinary. The court held that

in cases where an answer states falsely that a medical malpractice defendant

is board certified; the defense attorney does not correct the misstatement,

but repeats it in a certification in support of a motion to dismiss the

complaint and then repeats the false statement throughout the motion brief;

the court does not timely conduct a Ferreira conference; and the court

ultimately dismisses the complaint based upon the misrepresentation;

extraordinary circumstances exist and the statutory timeframe should be

adjusted accordingly. Id. at 181-82.

The court remanded and directed the defendant to file an amended answer within fifteen

days of the opinion. Plaintiff was granted sixty days from the date of the amended answer,

14

extendable to 120 days on good cause to file an affidavit of merit, and the trial court was

directed to hold a Ferreira conference unless the defendant notified the court that there was

no objection to the affidavit of merit filed. Id.

➢ Common Knowledge:

In Janelli v. Keeper, 317 N.J. Super. 309 (L. Div. 1998)(rib fractures suffered by

plaintiff following chiropractic manipulation), the trial court denied summary judgment to

a chiropractor in a chiropractic malpractice case in which the plaintiff failed to obtain an

affidavit of merit. Plaintiffs claimed that they did not need an affidavit of merit, would not

be producing expert testimony at the time of trial, and would rely upon common knowledge

and res ipsa loquitur. The court denied defendant summary judgment holding that “in a

res ipsa loquitur or common knowledge case where expert testimony will not be utilized

and is not required at trial, the affidavit of merit statute does not apply.” Id. At 313. The

court warned that “a plaintiff who does not file an affidavit of merit and is not successful

in persuading a court that an expert is not necessary runs the risk of having their case

dismissed for failure to state a cause of action under N.J.S.A. 2A:53A-29.

While Janelli was reversed by the Appellate Division in Hubbard v. Reed, 331 N.J.

Super. 383 (App. Div. 2000), certif. granted, 165 N.J. 527 (2000), the New Jersey Supreme

Court reversed the holding of the Appellate Division. Hubbard v. Reed, 168 N.J. 387

(2001). In Hubbard the plaintiff claimed that the dentist who provided treatment to her

daughter removed the wrong tooth. Id. The Court in Hubbard indicated that the purpose

of mandating an affidavit of merit is to require plaintiffs in malpractice cases to make a

threshold showing that the claim is meritorious so as to mitigate meritless lawsuits at an

early stage. Id. at 394. The Court further stated that

To demonstrate that objective threshold of merit, the statute requires

plaintiffs to provide an expert opinion, given under oath, that a duty of care

existed and that the defendant breached that duty. Yet, by definition, in

common knowledge cases an expert is not needed to demonstrate that a

defendant breached a duty of care. The doctrine applies where "jurors'

common knowledge as lay persons is sufficient to enable them, using

ordinary understanding and experience, to determine a defendant's

negligence without the benefit of the specialized knowledge of experts."

Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469, 734 A.2d

778 (1999). Thus, a plaintiff in a common knowledge malpractice case will

not need expert testimony at trial to establish the standard of care or a

deviation therefrom. The question, then, is whether an expert is nonetheless

required to establish that plaintiff's claims meet the required threshold.

Id. at 395. The Court held that the plaintiff is not required to provide an affidavit of merit

in cases involving common knowledge. Id. at 396.

15

The Court added its warning at the end of the case that even in cases of common

knowledge, it would be prudent for the plaintiff to obtain and serve an affidavit of merit,

even when expert testimony is not anticipated at the time of trial.

• Palanque v. Lambert-Woolley, 168 N.J. 398 (2001) (plaintiff, who underwent an unnecessary surgery as a result of defendant doctor’s misreading of test

results, could proceed on the doctrine of common knowledge).

• Risko v. Ciocca, 356 N.J. Super. 406 (App. Div. 2003)(an affidavit of merit was necessary because expert testimony was needed to show that defendants

breached a duty of care and proximate cause as the issues were complex and

not common knowledge).

➢ Substantial Compliance: (when dismissal is sought based upon technical deficiencies in an affidavit of merit)

In some cases, actions taken by the plaintiff will be considered substantial

compliance providing flexibility in the harsh application of the Affidavit of Merit Statute.

For example, in Galik v. Clara Maass Med Ctr., 167 N.J. 341 (2001), the plaintiff was

found to have substantially complied with the Affidavit of Merit statute when she served

two unsworn expert reports on the defendants’ insurance carrier eight months prior to filing

the litigation. Plaintiff’s attorney forwarded these unsworn expert reports to the carriers in

an attempt to resolve the claim pre-litigation. Efforts were unsuccessful and plaintiff filed

suit, then failed to file affidavits of merit. In discussing the application of the doctrine of

substantial compliance, the court detailed consideration of the following factors:

(1) the lack of prejudice to the defending party; (2) a series of steps taken

to comply with the statute involved; (3) a general compliance with the

purpose of the statute; (4) a reasonable notice of petitioner's claim, and (5)

a reasonable explanation why there was not a strict compliance with the

statute.

Id. at 353. Satisfaction of those considerations guarantees that the purpose of the statute

is being met and the opposing party is not prejudiced by the technical non-compliance.

The Court found that the plaintiff substantially complied with the statute and defendants

were not prejudiced by his technical non-conformity in providing unsworn expert reports.

At the end of the opinion the Court instructed that because demonstration of

substantial compliance is such a heavy burden, “attorneys should file a timely and

substantively appropriate affidavit of merit, not only to avoid litigation like this, but to

avert dismissal of meritorious cases.” Id. at 358.

• Fink v. Thompson, 167 N.J. 551 (2001)(substantial compliance demonstrated where defendant received affidavit of merit, which although didn’t name the

defendant specifically, put the defendant on notice of the claim against him because

16

plaintiff served an expert report which discussed defendant’s role in the alleged

malpractice).

• Palanque v. Lambert-Woolley, 168 N.J. 398 (2001)(retention of an expert prior to filing a complaint and service of an affidavit of merit within the statute of

limitations is insufficient to demonstrate “substantial compliance”).

• Nunez v. St. Mary's Hosp., 2014 N.J. Super. Unpub. LEXIS 2785 (App. Div. 2014).

• Estate of Cole v. Morristown Mem. Hosp., 2013 N.J. Super. Unpub. LEXIS 93 (App. Div. 2013).

• Gilflores v. Choi, 2010 N.J. Super. Unpub. LEXIS 2093 (App. Div. 2010).

➢ Exceptional Circumstances

In the case of Castello v. Wohler, 446 N.J. Super. 1 (App. Div. 2016), plaintiff

provided an affidavit of merit and CV from an expert. Defendant waived the need for a

Ferreira conference and signed a consent order waiving objection to plaintiff’s expert’s

qualifications. However, during a discovery deposition it was discovered that the expert

had not updated his CV, but had retired approximately five years prior to the medical

procedure at issue. Id. at 6-7. This was discovered shortly before the discovery end date

and defendants moved to bar the plaintiff’s expert for failure to comply with the

requirements set forth in N.J.S.A. 2A:53-41. Plaintiff moved to reopen discovery. The

motions were returnable only weeks before the trial date, which was moved so the court

could hear the motions. Id. The trial court dismissed the case with prejudice. The

Appellate Division reversed:

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 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.

17

Id. at 7-8.

The court determined that plaintiff’s expert failed to meet the minimum

requirement mandated by N.J.S.A. 2A:53A-41(a) in that he did not practice in the same

medical specialties as defendant physician because he did not actively practice medicine at

the time of the alleged malpractice. The court further interpreted the requirements of the

statute, utilizing the language of Nicholas v. Mynster, 213 N.J. 463 (2013) for guidance.

It found that if the proposed expert is not board certified in the same specialty, but can

demonstrate that he or she is a physician credentialed by a hospital to treat patients for the

medical condition or to perform the procedure, then he or she does not need to be board

certified. However, that does not relieve the expert from the requirement of being of the

same specialty. Plaintiff’s expert was not credentialed by a hospital to treat the condition

at issue when plaintiff’s claim arose, thus, could not fulfill the requirement of (a)(1). In

addition, plaintiff’s expert would have been unable to demonstrate that he fulfilled the

requirements of (a)(2) because that requires that the expert be a board-certified specialist

or subspecialist as the defendant, and in the year immediate prior to the occurrence have

devoted the majority of his or her professional time to the active practice in that same

specialty or subspecialty or in the instruction of students in an accredited medical school

for that specialty or subspecialty. Because plaintiff’s expert wasn’t even practicing

medicine the year before the occurrence, clearly, he couldn’t satisfy (a)(2). Id. at 16-17.

In so finding that plaintiff’s expert could not have satisfied the requirements of

N.J.S.A. 2A:53A-41, the court then had to turn to the issue regarding whether the dismissal

with prejudice was appropriate, rather than allowing plaintiff to reopen discovery to obtain

a qualified expert. The court reviewed the requirements of a party attempting to satisfy

the exceptional circumstances requirements of R. 4:24-1(c) in an application to extend

discovery:

(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.

Id. at 25, quoting Rivers. V. LSC Partnership, 378 N.J. Super. 68, 79 (App. Div. 2005).

The court found that plaintiff could demonstrate each of these factors and thus found that

the trial court abused its discretion in failing to grant plaintiff’s motion, and remanded. Id.

at 25-26.

In the earlier case of Medina v. Pitta, 442 N.J. Super. 1 (App. Div. 2015), the court

found that an expert who was fully retired at the time the medical procedures were

performed on the plaintiff, did not satisfy the requirements of the Patients First Act (PFA).

In Medina, while the court held a Ferreira conference, at which time the plaintiff

represented that he served an affidavit of merit and the defendants posed no objections to

his report or qualifications at that time, the expert’s retirement was first “discovered” by

18

the parties at his deposition. Plaintiff did not file a motion for leave to be permitted to

obtain a new expert or to extend the discovery end date. Thus, the defendant doctors filed

for summary judgment on the basis that plaintiff’s expert could not demonstrate

qualifications sufficient for him to provide expert testimony. Id. at 13. Plaintiff’s

opposition to the application by the defendants seemed less than noteworthy (did not even

comply with R. 4:46-2), essentially a letter asserting that the expert was qualified. Thus,

defendants’ motions were granted. Plaintiff filed a motion for reconsideration claiming

substantial compliance and extraordinary circumstances warranted a dismissal without

prejudice. That motion was also denied.

The Appellate Division found that the statute requires contemporaneity (proposed

expert must practice in the specialty at the time of the alleged deviation), and thus plaintiff’s

doctor was not statutorily able to testify against defendants. Id. at 20. In addition, the court

found that the doctrines of substantial compliance and extraordinary circumstances were

inapplicable in an application for summary judgment is sought based upon the lack of

qualification under the PFA of the proposed expert.

.

19

IMPORTANT CASES/INFORMATION FOR ALL MEDICAL MALPRACTICE CASES

A. DESIGNATION OF TRIAL COUNSEL

• RULE 4:25-4

B. AFFIDAVIT OF MERIT STATUTE

• N.J.S.A. 2A:53A-26 to 29 (Enacted 1995)• Ferreira v. Rancocas Ortho. Assoc., 178 N.J. 144 (2003)• Nicholas v. Mynster, 213 N.J. 413 (2013)

C. SURVEILLANCE

• Jenkins v. Ranier, 69 N.J. 50 (1976)• Mernick v. McCutchen, 442 N.J. Super. 196 (App. Div. 2015)

D. PRE-EXISTING CONDITIONS

• See attached Jury Charge• Fosgate v. Corona, 60 N.J. 268 (1974)• Evers v. Dollinger, 95 N.J. 399 (1984)• Scafidi v. Seiler, 119 N.J. 93 (1990)• Gardner v. Pawliw, 150 N.J. 359 (1997)• Reynolds v. Gonzales, 172 N.J. 266 (2002)

E. OPINIONS OF NON TESTIFYING DOCTORS

• Nowacki v. Community Med, Ctr., 279 N.J. Super. 276 (App. Div. 1995)• James v. Ruiz, 440 N.J. Super. 45 (App. Div.)

F. EXPERT DISCOVERY

• Form Interrogatories A(1) #10 and C(3) #13• Dalton v. Crawley

G. MATERIAL CHANGES IN TESTIMONY

• McKenny v. Jersey City Medical Center, 167 N.J. 359 (2001)

H. VOIR DIRE

• AOC Directive 4-07

21

mzumstegTypewritten TextWilliam L. Brennan, Esq.

I. WHAT IS A PROPER MOTION IN LIMINE?

• Cho v. Trinitas

22

4:25-4. Designation of Trial Counsel, NJ R SUPER TAX SURR CTS CIV R. 4:25-4

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

New Jersey Statutes AnnotatedNew Jersey Rules of Court

Part IV. Rules Governing Civil Practice in the Superior Court, Tax Court andSurrogate's Courts

Chapter III. Pretrial Discovery; Pretrial Conference ProcedureRule 4:25. Pretrial Conferences

R. 4:25-4

4:25-4. Designation of Trial Counsel

Currentness

Counsel shall, either in the first pleading or in a writing filed no later than ten days after theexpiration of the discovery period, notify the court that designated counsel is to try the case,and set forth the name specifically. If there has been no such notification to the court, theright to designate trial counsel shall be deemed waived. No change in such designated counselshall be made without leave of court if such change will interfere with the trial schedule. InTrack I or II tort cases pending for more than two years, and in Track III or IV tort cases,other than medical malpractice cases, pending for more than three years, the court, on suchnotice to the parties as it deems adequate in the circumstances, may disregard the designationif the unavailability of designated counsel will delay trial. If the name of trial counsel is notspecifically set forth, the court and opposing counsel shall have the right to expect any partneror associate to proceed with the trial of the case, when reached on the calendar. Designationsof trial counsel shall presumptively expire in all Track III medical malpractice cases pendingfor more than three years.

CreditsNote: Source--R.R. 4:29-3A(a); amended July 13, 1994 to be effective September 1, 1994;amended July 10, 1998 to be effective September 1, 1998; caption and text amended July 5,2000 to be effective September 5, 2000; amended July 12, 2002 to be effective September 3,2002; amended July 9, 2008 to be effective September 1, 2008; amended July 22, 2014 to beeffective January 1, 2015.

R. 4:25-4, NJ R SUPER TAX SURR CTS CIV R. 4:25-4New Jersey rules are current with amendments received through May 1, 2017. New Jerseydirectives are current with amendments received through December 15, 2016.

23

http://www.westlaw.com/Browse/Home/StatutesCourtRules/NewJerseyStatutesCourtRules?transitionType=DocumentItem&contextData=(sc.Search)&rs=clbt1.0&vr=3.0http://www.westlaw.com/Browse/Home/StatutesCourtRules/NewJerseyStatutesCourtRules?guid=NDC6FB3A074CC11DB8397F080969671A4&transitionType=DocumentItem&contextData=(sc.Search)&rs=clbt1.0&vr=3.0http://www.westlaw.com/Browse/Home/StatutesCourtRules/NewJerseyStatutesCourtRules?guid=NFDAE4A9074CC11DB8397F080969671A4&transitionType=DocumentItem&contextData=(sc.Search)&rs=clbt1.0&vr=3.0http://www.westlaw.com/Browse/Home/StatutesCourtRules/NewJerseyStatutesCourtRules?guid=NFDAE4A9074CC11DB8397F080969671A4&transitionType=DocumentItem&contextData=(sc.Search)&rs=clbt1.0&vr=3.0http://www.westlaw.com/Browse/Home/StatutesCourtRules/NewJerseyStatutesCourtRules?guid=N00A0617074CD11DB8397F080969671A4&transitionType=DocumentItem&contextData=(sc.Search)&rs=clbt1.0&vr=3.0http://www.westlaw.com/Browse/Home/StatutesCourtRules/NewJerseyStatutesCourtRules?guid=N04609DC074CD11DB8397F080969671A4&transitionType=DocumentItem&contextData=(sc.Search)&rs=clbt1.0&vr=3.0mcohenTypewritten Text-----Reprinted from Westlaw with permission of Thomson Reuters.

2A:53A-26. “Licensed person” defined, NJ ST 2A:53A-26

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

New Jersey Statutes AnnotatedTitle 2a. Administration of Civil and Criminal Justice (Refs & Annos)

Subtitle 6. Specific Civil ActionsChapter 53A. Negligence and Other Torts (Refs & Annos)

N.J.S.A. 2A:53A-26

2A:53A-26. “Licensed person” defined

Effective: December 12, 2010Currentness

As used in this act, “licensed person” means any person who is licensed as:

a. an accountant pursuant to P. L.1997, c. 259 (C.45:2B-42 et seq.);

b. an architect pursuant to R.S.45:3-1 et seq.;

c. an attorney admitted to practice law in New Jersey;

d. a dentist pursuant to R.S.45:6-1 et seq.;

e. an engineer pursuant to P.L.1938, c. 342 (C.45:8-27 et seq.);

f. a physician in the practice of medicine or surgery pursuant to R.S.45:9-1 et seq.;

g. a podiatrist pursuant to R.S.45:5-1 et seq.;

h. a chiropractor pursuant to P.L.1989, c. 153 (C.45:9-41.17 et seq.);

i. a registered professional nurse pursuant to P.L.1947, c. 262 (C.45:11-23 et seq.);

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j. a health care facility as defined in section 2 of P.L.1971, c. 136 (C.26:2H-2);

k. a physical therapist pursuant to P.L.1983, c. 296 (C.45:9-37.11 et seq.);

l. a land surveyor pursuant to P.L.1938, c. 342 (C.45:8-27 et seq.);

m. a registered pharmacist pursuant to P.L.2003, c. 280 (C.45:14-40 et seq.);

n. a veterinarian pursuant to R.S.45:16-1 et seq.;

o. an insurance producer pursuant to P.L.2001, c. 210 (C.17:22A-26 et seq.); and

p. a certified midwife, certified professional midwife, or certified nurse midwife pursuant toR.S.45:10-1 et seq.

CreditsL.1995, c. 139, § 1, eff. June 29, 1995. Amended by L.2001, c. 372, § 1, eff. Jan. 8, 2002; L.2010,c. 88, § 1, eff. Dec. 12, 2010.

Editors' Notes

ASSEMBLY INSURANCE COMMITTEE STATEMENT

Senate, No. 1493--L.1995, c. 139

The Assembly Insurance Committee reports favorably and with committeeamendments, Senate, No. 1493(1R).

As amended by the committee, this bill establishes new procedures with regard tothe filing of certain malpractice or negligence actions. The bill provides that, within60 days after the filing of the answer to the complaint by the defendant in an actionfor damages for personal injuries, wrongful death or property damage resultingfrom an alleged act of malpractice or negligence by a licensed person, the plaintiffis required to provide to each defendant an affidavit of a qualified person that

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2A:53A-26. “Licensed person” defined, NJ ST 2A:53A-26

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there exists a reasonable probability that the care, skill or knowledge provided fellbelow acceptable professional or occupational standards or treatment practices, ora statement in lieu of the affidavit, which states that the defendant failed to providethe necessary information for completion of the affidavit. The bill provides thatfailure to provide either an affidavit or a statement in lieu of an affidavit would bedeemed a failure to state a cause of action. Under the provisions of the bill, upona finding of good cause, the court may grant one extension period, not to exceed60 days, to file the affidavit.

The qualified person who executes the affidavit must be appropriately licensed inthis or any other state and have particular expertise in the general area or specialtyinvolved in the action, as evidenced by board certification or by the devotion of theperson's practice substantially to the general area or specialty involved in the actionfor at least five years. The qualified person may not have any financial interest inthe outcome of the case under review, but this prohibition shall not exclude thatperson from being an expert witness.

A “licensed person” under this bill is a person who is licensed as an accountantpursuant to P.L.1977, c.144 (C.45:2B-1 et seq.); an architect pursuant to R.S.45:3-1et seq.; an attorney admitted to practice law in New Jersey; a dentist pursuant toR.S.45:6-1 et seq.; an engineer pursuant to P.L.1938, c.342 (C.45:9-1 et seq.); ora physician in the practice of medicine or surgery pursuant to R.S.45:9-1 et seq.Health care facilities licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.) arealso included within the definition of “licensed person.”

The committee amendments:

. change the time frame within which an affidavit is required to be provided to eachdefendant, from 60 days following the service of the complaint on the defendant, to60 days following the date of filing of the answer to the complaint by the defendant;

. provide that the court, upon a finding of good cause, may grant one extension ofup to 60 additional days, for the filing of the affidavit;

. limit the professions to which the bill applies from all professions licensed underTitle 45 of the Revised Statutes, to certain professions including accountants,architects, attorneys, dentists, engineers and physicians and health care facilities;

. with respect to the qualifications of expert witnesses, delete the requirement thatthe person be actively engaged in the practice of his profession at least 80% of his

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2A:53A-26. “Licensed person” defined, NJ ST 2A:53A-26

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professional or occupational time, and change the requirement that the person haveno financial interest in the case, to the requirement that the person have no financialinterest in the outcome of the case.

The bill takes effect immediately and applies to causes of action which occur on orafter the effective date of the bill.

As released by the committee, this bill is identical to Assembly, No. 263(1R).

Notes of Decisions (12)

N. J. S. A. 2A:53A-26, NJ ST 2A:53A-26Current with laws effective through L.2017, c. 87 and J.R. No. 6.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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2A:53A-27. Affidavit required in certain actions against licensed persons, NJ ST 2A:53A-27

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KeyCite Yellow Flag - Negative Treatment

 Proposed Legislation

New Jersey Statutes AnnotatedTitle 2a. Administration of Civil and Criminal Justice (Refs & Annos)

Subtitle 6. Specific Civil ActionsChapter 53A. Negligence and Other Torts (Refs & Annos)

N.J.S.A. 2A:53A-27

2A:53A-27. Affidavit required in certain actions against licensed persons

Effective: July 7, 2004Currentness

In any action for damages for personal injuries, wrongful death or property damage resultingfrom an alleged act of malpractice or negligence by a licensed person in his profession oroccupation, the plaintiff shall, within 60 days following the date of filing of the answer tothe complaint by the defendant, provide each defendant with an affidavit of an appropriatelicensed person that there exists a reasonable probability that the care, skill or knowledgeexercised 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. Thecourt may grant no more than one additional period, not to exceed 60 days, to file theaffidavit pursuant to this section, upon a finding of good cause.

In the case of an action for medical malpractice, the person executing the affidavit shall meetthe requirements of a person who provides expert testimony or executes an affidavit as setforth in section 7 of P.L.2004, c. 17 (C.2A:53A-41). In all other cases, the person executingthe affidavit shall be licensed in this or any other state; have particular expertise in the generalarea or specialty involved in the action, as evidenced by board certification or by devotion ofthe person's practice substantially to the general area or specialty involved in the action fora period of at least five years. The person shall have no financial interest in the outcome ofthe case under review, but this prohibition shall not exclude the person from being an expertwitness in the case.

CreditsL.1995, c. 139, § 2, eff. June 29, 1995. Amended by L.2004, c. 17, § 8.

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