Castello v. Wohler, 446 N.J. Super. 1 (App. Div. 2016). In Medina v. Pitta, 442 N.J. Super. 1 (App. Div. 2015), discussed here, the Appellate Division ruled that a physician who was retired at the time of the occurrence that is the basis for a medical malpractice action cannot serve as an expert witness. That result arose from the Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42 (“PFA”). The PFA goes beyond the requirements of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 (“AOS”).
Judge Fasciale issued an opinion for the Appellate Division today in which the expert that plaintiff named, Dr. John Edoga, had been retired for five years before the occurrence that formed the basis for plaintiff’s medical negligence case. But plaintiff’s counsel did not know that when he retained Dr. Edoga. Counsel relied on a copy of the doctor’s curriculum vitae that counsel had in his office, which stated that Dr. Edoga was an attending surgeon. The doctor gave an affidavit of merit (“AOM”) in which he stated that he had been “in surgical practice” for over 35 years, “as reflected in my [CV] attached hereto.” Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), calls for an early court conference about the qualifications of plaintiffs’ experts in medical negligence cases. Here, however, in light of the AOM, defense counsel waived any objection to Dr. Edoga, and no Ferreira conference was held.
Later, plaintiff’s counsel produced an updated CV for the doctor, which stated that Dr. Edoga had been an attending surgeon since 1976. But when defendant deposed the doctor, it was then revealed (contrary to the CV’s) that Dr. Edoga had been retired for more than five years before the occurrence on which the case rested. “There [was] no credible evidence that plaintiff or plaintiff’s counsel had knowledge that Dr. Edoga had been retired from the practice of medicine.”
Three months after the deposition of Dr. Edoga, and weeks after the discovery end date, defendant moved to bar Dr. Edoga under the PFA and to dismiss the case. That motion was returnable shortly before trial. Plaintiff cross-moved to adjourn the trial and extend discovery so that she could get a new expert. The Law Division granted defendant’s motion and denied that of plaintiff. Today, the Appellate Division affirmed the ruling below that Dr. Edoga could not serve as an expert, but reversed the dismissal of the case and allowed plaintiff to get a new expert.
Judge Fasciale applied the de novo standard of review to the motion to dismiss. He concluded, essentially, that Dr. Edoga was precluded by two prior decisions, Medina and Nicholas v. Mynster, 213 N.J. 463 (2013) (under the PFA, plaintiff’s expert must match defendant “kind-for-kind”), discussed here. Plaintiff had not sought a waiver of the PFA requirements, as the PFA permits in certain circumstances, and even if she had done so, she would not have succeeded in obtaining a waiver.
The question then was whether, with Dr. Edoga precluded, plaintiff’s cross-motion for time to get a new expert should have been granted. Judge Fasciale found that it should have been granted. At this late stage of the case, a discovery extension would have been permitted only on a showing of exceptional circumstances. Review of the Law Division’s decision not to extend discovery to allow plaintiff to retain a new expert was governed by the “deferential” abuse of discretion standard. The panel found an abuse of discretion here.
The Law Division’s action had the effect of barring plaintiff’s claim. That result conflicted with the AMS, whose goal is to “weed out frivolous complaints, not to create hidden pitfalls for meritorious ones.” Plaintiff and her counsel had tried in good faith to comply with the PFA, and there was no carelessness, or even inadvertence, in what they did in relying on Dr. Edoga’s original and revised CV’s, and his sworn affidavit of merit. Had both sides known early in the case, when a Ferreira conference would otherwise have been held, that Dr. Edoga’s ability to testify was in jeopardy, the issue would have been addressed then and plaintiff could have gotten a new expert.
Medina did not call for dismissal. Judge Fasciale emphasized that that case involved only whether the plaintiff’s expert qualified under the PFA, not (as here) the “unintended consequences” that flowed from the reliance of plaintiff and her counsel on Dr. Edoga’s CV’s. The facts were also different, especially the fact that the plaintiff in Medina did not seek to get a new expert, but only to use the expert whom the PFA barred.
Judge Fasciale cited and applied a four-part test for whether exceptional circumstances justifying a discovery extension exist. “(1) [W]hy 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 the litigant seeking the extension of time.” All four criteria were met here. The case was accordingly reversed and remanded.
Finally, Judge Fasciale rejected plaintiff’s argument that the PFA was unconstitutional as violative of Article VI, section 2, paragraph 3 of the New Jersey Constitution, which vests in the Supreme Court the power to “make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.” He noted that the constitutionality of the PFA has long been settled, including by Ferreira and Medina.