Attorney Failure to Take Any Action Regarding Affidavit of Merit is Not “Extraordinary Circumstance” That Defeats Dismissal With Prejudice

Estate of Yearby v. Middlesex County, 453 N.J. Super. 388 (App. Div. 2018).  Today’s snowstorm offered the opportunity to circle back, belatedly, to this opinion by Judge Fuentes, which was issued on February 27. Plaintiffs’ decedent, who was allegedly mentally ill, was arrested for assault and resisting arrest.  Placed in the Middlesex County Adult Correctional Facility, he died there, 24 hours after his arrest, while strapped to a “restraint chair.”

Plaintiffs sued nineteen defendants, including three nurses at the Correctional Facility.  But plaintiffs’ original attorney did not take any action to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29.  The attorney did not obtain an affidavit of merit, which the statute required in order for claims of professional negligence or malpractice to proceed against the nurses.  When the nurses moved to dismiss those claims for failure to provide the affidavit of merit, the attorney did not oppose that motion, and dismissal was granted.

New counsel entered the case for plaintiffs.  Those counsel procured an affidavit of merit from a nurse, though far past the time for such an affidavit to be offered.  They then sought to reinstate the dismissed claims, contending that the failures of original counsel constituted “extraordinary circumstances,” and that plaintiffs had exhibited “substantial compliance.”  The statute allows equitable relief from its strict enforcement if either of those standards were satisfied.

The Law Division granted the motion and restored the dismissed claims.  That court found both “substantial compliance” and “extraordinary circumstances.”  The nurses moved unsuccessfully for reconsideration and then sought leave to appeal.  The Appellate Division granted leave and reversed.

Near the start of his opinion, Judge Fuentes expressed frustration that this issue “comes before this court with disturbing regularity.”  He then recapped the facts at length and concluded that neither “substantial compliance” nor “extraordinary circumstances” had been shown here.

The “substantial compliance” analysis proceeded from the five-part test of Palanque v. Lambert-Woolley, 168 N.J. 398 (2001).  Judge Fuentes found that four of the five criteria had not been satisfied. The Law Division had also cited an unpublished Appellate Division opinion in its analysis, and Judge Fuentes, citing Rule 1:36-3, “remind[ed] our trial court colleagues that unpublished opinions from this court do not constitute precedent and are therefore not binding upon any court.”

“Extraordinary circumstances” too were not demonstrated.  Judge Fuentes summarized that “[t]he record here shows an undisputed pattern of inattentiveness coupled with outright ignorance of the legal requirements of the Affidavit of Merit statute by plaintiffs’ original counsel. ”  Those facts simply did not constitute “extraordinary circumstances.”  The panel was not free to “disregard clearly defined statutory requirements absent evidence supporting grounds for equitable relief.”

As Judge Fuentes said, the courts are “loath to visit the sins of the lawyer upon the innocent client.”  But harsh as it might seem, to some, in these circumstances, that did not justify the Law Division’s ruling.