By: Philip A. Garubo, Jr. Esq. and James B. Johnston, Esq.
Recently, in A.T. v. Cohen et al., Docket No. A-0589-14T1; 2016 N.H. Super. LEXIS 62, the Appellate Division addressed the issue of whether a minor plaintiff can move to voluntarily dismiss his/her Complaint without prejudice in a medical malpractice case under Rule 4:37-2(b) of the New Jersey Court Rules merely to circumvent the Affidavit of Merit requirement. The Court‘s answer was a resounding NO.
Generally, in professional malpractice cases, a plaintiff has sixty days from the date of the defendant’s answer to file an Affidavit of Merit. The affidavit requirement is codified in N.J.S.A. 2A: 53A-27. The purpose of the Affidavit of Merit requirement for professional malpractice litigation is to require a plaintiff to make a “threshold showing that the claims are meritorious.” The Court may grant the plaintiff an additional sixty days, upon a finding of good cause. Thus, the plaintiff, in a professional malpractice case has up to 120 days to file the Affidavit of Merit.
The goal of the Affidavit of Merit requirement is to dismiss “frivolous lawsuits at an early stage and to allow meritorious cases to go forward.” Galik v. Clara Maas Med. Ctr., 167 N.J. 341, 350 (2001). In essence, the Affidavit of Merit requirement is designed to protect defendants against frivolous litigation. The Court noted that the absence of the required Affidavit of Merit “strikes at the heart of the cause of action.” Failing to comply with the Affidavit of Merit statute requires dismissal with prejudice. Id.
In the instant matter, the mother of A.T. filed a medical malpractice suit on behalf of her daughter alleging that A.T. suffers from Erb’s Palsey due to an injury caused at her birth in 2011. Counsel for A.T. failed to file an Affidavit of Merit within 120 days after Answers to the suit were filed. The Answers were filed on December 5, 2013.
Counsel candidly blamed this miscue due to an “oversight” and nothing more. Defendants filed motions for summary judgment to dismiss Plaintiff’s Complaint due to their failure to timely file an Affidavit. In response, Plaintiff’s counsel filed opposition. In addition, he submitted an Affidavit of Merit dated May 22, 2014; over one month after the 120 day requirement had expired.
During oral argument, Plaintiff’s counsel asked the Court for leave to file a motion to voluntarily dismiss the complaint without prejudice pursuant to Rule 4:37-2(b). Under Rule 4:37-2(b) a plaintiff can voluntarily dismiss his own complaint without prejudice but only “by leave of court and upon such terms and conditions as the Court deems appropriate.” The Trial Judge granted Plaintiff’s request, and reserved judgment of defendants’ summary judgment motion.
Plaintiff reasoned that by voluntarily dismissing the Complaint, he would revisit the viability of the case, and if appropriate, he would re-file the suit and trigger another 120 day Affidavit of Merit. Since A.T. was a minor, there were no Statute of Limitations issues to contend. As such, plaintiff’s counsel felt he had time to properly file a second suit, with the requisite Affidavit of Merit. Plaintiff’s counsel further raised the constitutionality of the Affidavit of Merit statute.
The Trial Court was unmoved by Plaintiff’s ploy to circumvent the Affidavit of Merit statute, and granted defendants’ Summary Judgment motion. In a stinging rebuke to plaintiff’s attempt to bypass the “120 rule”, the Trial Court held that “plaintiff seeks a dismissal without prejudice, on terms that if it gets re-filed then the Affidavit of Merit would be with it. That’s …engaging in a fiction to make it look like I’d be doing something that…really wasn’t allowed, which would be extending the 120 days…I would be extending the time in the Affidavit of Merit beyond the time set forth in the statute. “
Plaintiff ultimately moved for reconsideration, seeking a review of the trial Court’s prior decisions. Plaintiff further argued that the Affidavit of Merit statute declared unconstitutional. His motion failed, and Plaintiff’s Appeal followed.
The Appellate Division held that attorney oversight is hardly a reason to trigger the “extraordinary circumstances” requirement and extend the 120 Affidavit of Merit rule. Thus, permitting a voluntary dismissal like the one proposed by the plaintiff would render the Affidavit of Merit requirement meaningless. The Appellate Division further rejected bypassing the “120 day rule” merely because plaintiff is a minor.
As a result of the Appellate Division’s holding, plaintiffs who file professional malpractice claims must submit their Affidavit of Merit in line with the “120 day rule” absent extraordinary circumstances. Alternatively, counsel for defendants who face claims of professional malpractice must monitor plaintiff’s submission of same and when necessary move with the Court to dismiss the complaint with prejudice on their client’s behalf.
The Appellate Division has revealed the Court’s commitment to remove frivolous suits that have no basis in fact from the Courts’ dockets.
 Philip A. Garubo, Jr., Esq. is a Shareholder in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Phil can be reached at email@example.com
 James B. Johnston, Esq. is an Associate in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Jim can be reached at firstname.lastname@example.org.