RICHARDS et al v. WONG, M.D. et al

Filing 46

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/28/2015. (kas, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DORIS RICHARDS, LINDSAY BARBER;
ESTATE OF JOAN BARBER,

Civil Action No. 14-3353 (PGS)

Plaintiff(s),
MEMORANDUM OPINION
v.
CHRISTOPHER WONG, M.D; COUNTY
OF MERCER, JOHN AND JANE DOES I,
II AND III, UNNAMED PHYSICIANS
AND MEDICAL PERSONNEL;
CHARLES ELLIS; CFG HEALTH
SYSTEMS, LLC; AND GRACIANO
ZARA, M.D.
Defendants.

BONGIOVANNI, Magistrate Judge
Currently pending before the Court is Plaintiffs’ (Doris Richards, Lindsay Barber, and the
Estate of Joan Barber) motion to extend the statutory period for serving an Affidavit of Merit.
[Docket Entry No. 21]. Defendants (Christopher Wong, M.D., County of Mercer, John and Jane
Does I, II, and III, Unnamed Physicians and Medical Personnel, Charles Ellis, CFG Health
Systems, LLC, and Graciano Zara, M.D.) oppose Plaintiffs’ motion. [Docket Entry Nos. 27, 35,
and 36]. The Court has fully reviewed the papers submitted in support of and in opposition to
Plaintiffs’ motion. The Court considers Plaintiffs’ motion without oral argument pursuant to
L.Civ.R. 78.1(b). For the reasons set forth below, Plaintiffs’ motion is DENIED.
I.

Background and Procedural History

This matter arises out of Plaintiffs’ motion to preserve the right to seek a statutory 60-day
extension of the deadline for serving Defendants an Affidavit of Merit, pursuant to N.J.S.A.
2A:53A-27. (See Motion for Extension of Time; Docket Entry No. 21). On or about December

24, 2013, Plaintiffs Doris Richards, Lindsay Barber and the Estate of Joan Barber (hereinafter
“Plaintiffs”) filed a Complaint pro se in the Superior Court of New Jersey, Law Division,
Mercer County, docketed at MER-L-2774-13. The Complaint was filed against the County of
Mercer, Charles Ellis, Christopher Wong, M.D., Graciano Zara, M.D., and CFG Health Systems,
LLC. On April 23, 2014, Roger Martindell, Esquire was substituted into the New Jersey
Superior Court action on behalf of the pro se Plaintiffs.
On May 14, 2014, Defendant Christopher Wong, M.D., filed an Answer. Subsequently,
Defendants CFG Health Systems, LLC and Graciano Zara, M.D., filed their Answer and a
Notice of Removal on May 27, 2014. [Docket Entry No. 1]. The case was removed from State to
Federal District Court. On June 30, 2014, Defendants County of Mercer and Charles Ellis filed
an Answer [Docket Entry No. 7], including separate defenses and an Answer to the crossclaims
against the other Defendants. In their Answers, Defendants specifically pleaded both failure to
state a claim and failure to serve an Affidavit of Merit, pursuant to N.J.S.A. 2A:53A-27. Id.
On December 5, 2014, Plaintiffs filed the motion at hand to extend the time to file an
Affidavit of Merit.
II.

ARGUMENTS
A. PLAINTIFFS’ ARGUMENTS
In their Complaint, Plaintiffs rely on N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-28, to put

forth three arguments to show that good cause exists for granting a 60-day extension of time to
serve an Affidavit of Merit: First, Plaintiffs claim that they have yet to receive the institutional
medical records of the deceased after requesting the records. (See Motion for Extension of Time;
Docket Entry No. 21 at 5). Plaintiffs cite to N.J.S.A. 2A:53A-28, and state that a failure to
disclose medical records after being served with a copy of a request for those records would be

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grounds to excuse compliance with the Affidavit of Merit statute. (Id.) Second, Plaintiffs’
counsel was diagnosed with cancer and was undergoing chemotherapy treatments. As such,
Plaintiffs seek an additional 60 days to accommodate the medical condition and treatments of
their counsel. Third, Plaintiffs argue that Defendants remained silent on the issue of submitting a
timely Affidavit of Merit, despite the Court’s repeated instructions to raise and confer on pretrial
matters before filing motions. (Id. at 5-6). Therefore, Plaintiffs argue that Defendants’ silence
lulled them into inaction until after the expiration period of 120 days. For these reasons,
Plaintiffs argue good cause exists to warrant a 60-day extension of time to serve the Affidavit of
Merit.
B. DEFENDANTS’ ARGUMENTS
Defendants oppose Plaintiffs’ motion on the grounds that the Plaintiffs have exceeded the
deadline to file an Affidavit of Merit. (See Brief in Opposition; Docket Entry Nos. 27, 35 and
36). Defendants first cite to N.J.S.A. 2A:53A-27, which states in relevant part that:
“Plaintiff shall, within 60 days following the date of filing of the
answer…provide each defendant with an affidavit of an
appropriate licensed person…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.”
Defendants argue that this 120-day statutory period is a “drop-dead” date by which a
plaintiff must serve an appropriate Affidavit of Merit. (Id. at Docket Entry Nos. 27, 35 and 36).
This 120-day period encompasses the 60-day period to provide an affidavit of an appropriate
licensed person, and the 60-day extension. Since Plaintiffs failed to serve an appropriate
Affidavit of Merit within 120 days of the filing of the Answer, Defendants argue the Complaint
should be dismissed. Additionally, Defendants address the issue of Plaintiffs’ counsel’s medical
condition with regards to timely filing the Affidavit of Merit. Defendants argue that although

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Plaintiffs’ counsel had medical issues, there was another counsel of record, Mr. Martindell, who
could have filed the Affidavit of Merit on time. (Id. at Docket Entry Nos. 27, 35 and 36).
Second, Defendants argue that the running of the Affidavit of Merit statute has not been
tolled. (Id.). Even though the Court has not scheduled an Affidavit of Merit conference,
Defendants contend this does not toll the running of the Affidavit of Merit statute. Additionally,
Defendants argue the Court’s decision to stay discovery was not intended to toll the running of
the Affidavit of Merit statute. Defendants contend that since it was a stay on discovery and not
pleadings, Plaintiffs’ argument is not applicable. (Id., citing Cornblatt v. Barow, 153 N.J. 218
(1998)). Furthermore, Defendants assert that Plaintiffs’ claim that they were lulled into inaction
by Defendants is not applicable because case law states: “ignorance of the law or failure to seek
legal advice will not excuse failure to meet the filing deadline.” (Docket Entry No. 35 at 8, citing
Hyman Zamft and Manard v. Cornell, 309 N.J. Super. 586 (App. Div. 1998)). Therefore, it was
Plaintiffs’ responsibility to know the law to prevent the statute from running. It is neither
Defendants’, nor the Courts’ responsibility to educate and bring to Plaintiffs’ attention the 60day deadline for filing an Affidavit of Merit. Therefore, Defendants argue that Plaintiffs ought
not to be given an extension of time to file the appropriate Affidavit of Merit.
III.

ANALYSIS
A. STANDARD OF REVIEW
In professional malpractice actions plaintiffs are required to provide an affidavit from an

appropriate licensed professional attesting to the merit of plaintiff’s claims. Palanque v. Lambert
Wooley, 168 N.J. 398, 404 (2001). This requirement was intended by the Legislature to curtail
frivolous litigation without preventing access to the courts for meritorious claims. Id. The
Affidavit of Merit Statute provides:

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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.
N.J.S.A. 2A:53A-27.
A plaintiff’s failure to serve an appropriate Affidavit of Merit within the 120 days of the
filing of the answer is considered tantamount to the failure to state a cause of action, subjecting
the complaint to dismissal. See N.J.S.A. 2A:53A-29.
B. DISCUSSION
Through their motion [Docket Entry No. 21], Plaintiffs seek permission to extend the
time for serving an Affidavit of Merit for an additional 60 days. Defendants assert that
Plaintiffs’ motion for an extension to serve the Affidavit of Merit should be denied because they
seek an extension beyond the 120-day maximum limit. The Court agrees.
N.J.S.A. 2A:53A-27 requires plaintiffs in medical malpractice actions to provide the
defendant, within 60 days of the filing of defendant’s answer, an affidavit of “an appropriate
licensed person that there exists a reasonable probability” that the care that is the subject of the
action falls outside the accepted professional standard. N.J.S.A. 2A:53-27. One additional 60day extension may be granted upon a finding of good cause. Id. As noted by the New Jersey
Appellate Division in Familia v. University Hosp. of University of Medicine and Dentistry of
New Jersey, 350 N.J. Super. 563, 569 (App. Div. 2002), it is “significant that the statute speaks
of granting ‘no more than one additional period,’ rather than in terms of “no more than one
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additional extension.’ N.J.S.A. 2A:53A-27. We construe the language ‘one additional period’
to indicate that the concern of the Legislature was to set an outer time limit of one hundred
twenty days, beyond which no extension could be granted, rather than to limit the number of
times an extension could be sought.“ As the New Jersey Supreme Court forewarned in
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003):
If defense counsel files a motion to dismiss after the 120-day deadline
and before plaintiff has forwarded the affidavit, the plaintiff should
expect that the complaint will be dismissed with prejudice. Id. at 154.
Thus, this 120-day period has been deemed a “drop-dead” date with which a plaintiff must serve
an appropriate Affidavit of Merit. See Douglass v. Obade, 359 N.J. Super. 159 (App. Div.
2003).
In the matter at hand, Plaintiffs failed to serve the required Affidavit of Merit within 60
days of Defendants’ Answers being filed. Additionally, Plaintiffs failed to seek a 60-day
extension for good cause before the 120-day period expired. While the Court is sympathetic to
Plaintiffs’ counsel’s medical condition, it does not constitute an extraordinary circumstance
warranting an extension, especially given that counsel was not the only attorney of record at the
time. Plaintiffs’ argument, that an extension of time should be granted because Plaintiffs did not
receive the institutional medical records of the deceased, also fails. Although Plaintiffs made
demands upon Defendants for the deceased’s medical records, Defendants could not comply
without an appropriate HIPAA authorization. See 45 C.F.R. 160. Moreover, Plaintiffs’ could
have themselves sought production from the medical providers and/or intervention from the
Court. They did not.
Finally, Plaintiffs’ argument that the running of the Affidavit of Merit statute should have
been tolled fails. The Affidavit of Merit is not a discovery mechanism controlled by court rules,

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but rather is a statutory requirement pursuant to N.J.S.A. 2A:53A-26. Thus, when the Court
issued a stay on discovery, it did not toll the time for the filing of the Affidavit of Merit.
Notably, during the telephone conference held on November 21, 2014, the Court questioned
whether it could, if so inclined, toll the time to file. In any event, the Court specifically advised
that the tolling of discovery did not apply to the time to file an Affidavit of Merit.
IV.

CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to extend the statutory period for serving

an Affidavit of Merit is DENIED. An appropriate Order follows.

Dated: April 28, 2015

s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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