Failure to Submit Affidavit of Merit Timely Does Not Always Call for Dismissal With Prejudice

A.T v. M. Cohen, M.D., 231 N.J. 237 (2017).  “This was an appeal as of right in a medical malpractice case in which plaintiff was a minor.  Due to counsel’s oversight, plaintiff failed to file an affidavit of merit within the required time, although plaintiff did provide one shortly thereafter.  The Law Division granted summary judgment in favor of defendant, denied plaintiff’s motion for a voluntary dismissal without prejudice to allow plaintiff to avoid summary judgment and start again, and dismissed the case with prejudice.  On plaintiff’s appeal, the Appellate Division affirmed by a 2-1 vote.

Judge Fisher, in dissent, advocated that the dismissal should have been without prejudice, given the extraordinary circumstances present here.  Those circumstances included plaintiff’s status as a minor, counsel’s error regarding the affidavit of merit, which Judge Fisher found should not have been visited upon plaintiff, and the relatively little prejudice that defendant suffered, since plaintiff did provide an affidavit of merit not long after the deadline to do so, and before the summary judgment motion was decided.

Plaintiff appealed to the Supreme Court, and Justice LaVecchia wrote a unanimous opinion agreeing with Judge Fisher.  In addition to the factors that Judge Fisher emphasized, the Supreme Court cited the Law Division’s failure to convene a conference regarding discovery issues, including the affidavit of merit, under Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).  In Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415 (2010), the Court stated that a Ferreira conference is to be held unless the parties waive it, but here, Justice LaVecchia said, “appears to have been overlooked,” since neither the Law Division nor counsel sought to schedule a conference, and no one ever waived it.  Thus, plaintiff’s situation was in part a product of the court’s own failure to act as a “backstop” by following the Supreme Court’s directive to conduct a conference at which the affidavit of merit issue would have been timely brought to the fore.

Though the Court had previously ruled that failure to provide an affidavit of merit should result in dismissal with prejudice, Ferreira later tempered that idea, “recogniz[ing] equitable exceptions to temper the draconian results of an inflexible application of the statute.”  The present case fell into that equitable exception category, based on the “confluence of factors” present.  The failure to hold a Ferreira conference would not necessarily suffice by itself to call for dismissal without prejudice.  Nor, standing alone, would attorney failures.  But those factors, together with plaintiff’s status as a minor and the lack of real prejudice to defendant, required reversal.

Justice LaVecchia went on to rule that there was no error in denying plaintiff’s request for a voluntary dismissal.  She noted that our appellate courts “frown on the use of a dismissal without prejudice under Rule 4:37-1(b) as a mechanism for salvaging a case that has run aground on requirements established in statutes or in the Rules of Court.”  Allowing voluntary dismissals where plaintiffs fail to satisfy the affidavit of merit requirement would “prolong litigation and potentially eviscerate the [affidavit of merit statute’s] policy of weeding out, early on, non-meritorious malpractice cases.”  Here, the “extraordinary circumstances” idea on which the Court rested was sufficient to achieve a fair and proper result.

This case teaches, among other things, that trial level courts have a responsibility to follow Court Rules and the procedural mandates of the Supreme Court, and that the Supreme Court will step in to avoid injustice where trial courts fail in that responsibility.  Here, plaintiff’s counsel erred, but the need for the Court to intervene in particular cases where a trial court fails to follow proper procedures and the parties and their attorneys are blameless is even more acute.