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This case can also be found at 178 N.J. 144, 836 A.2d 779.
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued March 3, 2003 -- Decided November 24, 2003
ALBIN, J., writing for a majority of the Court.
In this matter, the Court considers whether plaintiff is entitled to equitable relief from the dismissal of his complaint following his failure to timely serve an affidavit of merit that he had in his possession a few days after receipt of the defendant's answer.
Plaintiff's attorney filed a medical malpractice complaint against defendants alleging negligent treatment
of plaintiff's fractured left heel. Several months before filing suit, plaintiff's attorney retained
a board certified orthopedic surgeon to review plaintiff's records and provide an affidavit,
pursuant to the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to 29, attesting to
the merits of the claim. After receiving a verbal opinion from the surgeon,
plaintiff's attorney filed the complaint on May 31, 2000. On August 17, 2000,
defendants filed and served their answer and demanded, in part, the production of
a medical expert affidavit. Plaintiff's attorney claimed that the answer was incorrectly filed
in his office and that he did not see it until January 2001.
The Affidavit of Merit statute requires service of an affidavit on the defendant
with 120-days of the filing of the answer. Within ten days of the
filing of the answer, plaintiff's attorney received the signed affidavit of merit from
the surgeon, but he inadvertently failed to provide it to defense counsel. Discovery
proceeded. Defense counsel made no further request for the affidavit during the 120-day
Eighteen days after the statutory deadline, plaintiff's attorney was advised by defense counsel
during a telephone conversation that no affidavit had been served. Plaintiff's attorney faxed
the affidavit to defense counsel the same day. Approximately two weeks later, defendants
moved to dismiss the complaint with prejudice for failing to comply with the
Affidavit of Merit statute. The trial court granted the motion and the Appellate
1. Pursuant to the Affidavit of Merit statute, plaintiff must show that the
complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting
to the reasonable probability of professional negligence. The statute further requires that the
plaintiff provide the affidavit to the defendant within sixty days of the filing
of the answer or, for good cause shown, within an additional sixty-day period.
Finally, plaintiff's failure to serve the affidavit within 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 with prejudice. (Pp. 6 8).
2. The Affidavit of Merit statute has dual purposes. Those purposes are to
weed out frivolous lawsuits early in the litigation while, at the same time,
ensuring that plaintiffs with meritorious claims will have their day in court. The
legislative purpose was not to create a minefield of hyper-technicalities in order to
doom innocent litigants possessing meritorious claims. Therefore, the Court has recognized two equitable
remedies that temper the results of an inflexible application of the statute. A
complaint will not be dismissed if the plaintiff can show that he or
she substantially complied with the statute. Further, a complaint will be dismissed without
prejudice if there are extraordinary circumstances to explain noncompliance. (Pp. 8 9).
3. Plaintiff's counsel did not meet the requirements of substantial compliance, nor did
the misfiling of the answer and failure to calendar the matter constitute extraordinary
circumstances. However, plaintiff's counsel complied with the underlying purpose of the statute by
having an expert verify the meritorious nature of the claim at an early
stage of the case. Defendants do not contend that they suffered prejudice by
the late service of the affidavit. Nor did defendants request the affidavit at
any point between the filing of the answer and the end of the
120-day statutory period. It was not until after the receipt of the affidavit
that defendants filed the motion to dismiss. Under those circumstances, the Court concludes
that defendants should be estopped from claiming entitlement to dismissal as a remedy.
(Pp. 9 12).
4. The Affidavit of Merit statute was intended to flush out insubstantial and
meritless claims that have created a burden on innocent litigants and detracted from
the many legitimate claims that require the resources of the civil justice system.
The statute was not intended to encourage gamesmanship or a slavish adherence to
form over substance. The statute was not intended to reward defendants who wait
for a default before requesting that the plaintiff turn over the affidavit of
merit. In a case where the plaintiff has in hand an affidavit within
the 120-day statutory period and serves the affidavit on defense counsel outside that
time frame but before defense counsel files a motion to dismiss, the defendant
shall not be permitted to file such a motion based on the late
arrival of the affidavit. 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 provided the doctrines of
substantial compliance and extraordinary circumstances do not apply. (Pp. 12 13).
5. To ensure that discovery related issues, such as compliance with the Affidavit
of Merit statute, do not become sideshows to the primary purpose of the
civil justice systemto shepherd legitimate claims expeditiously to trialthe Court proposes that an
accelerated case management conference be held within ninety days of the service of
an answer in all malpractice actions. At the conference, the court will address
all discovery issues, including whether an affidavit of merit has been served on
defendant. If an affidavit has been served, defendant will be required to advise
the court whether he or she has any objections to the adequacy of
the affidavit. If there is any deficiency in the affidavit, plaintiff will have
to the end of the 120-day time period to conform the affidavit to
the statutory requirements. If no affidavit has been served, the court will remind
the parties of the obligation. Early court intervention in the discovery process will
permit the Affidavit of Merit statute to fulfill its true purpose. This proposal
does not restrict the flexibility of trial courts to convene additional case management
conferences to facilitate the discovery process and motion practice. (Pp. 13 15).
The decision of the Appellate Division is REVERSED and the matter is REMANDED.
JUSTICE LONG wrote a separate opinion, concurring in part and dissenting in part,
in which JUSTICE ZAZZALI and JUDGE PRESSLER join, agreeing with the majority's decision
to reinstate the complaint, but disagreeing with the majority's rationale. Justice Long contends
that Cornblatt v. Barow,
153 N.J. 218 (1998), should be modified to limit
a dismissal with prejudice to those cases in which a plaintiff cannot or
will not produce an affidavit of merit, and to permit trial judges a
panoply of discretionary remedies to address procedural deficiencies in complying with the Affidavit
of Merit statute.
JUSTICE ZAZZALI wrote a separate opinion concurring in part and dissenting in part,
joined by JUDGE PRESSLER, expressing reservations about the constitutionality of the Affidavit of
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA and WALLACE join in JUSTICE ALBIN's
opinion. JUSTICE LONG filed a separate opinion, concurring in part and dissenting in
part, in which JUSTICE ZAZZALI and JUDGE PRESSLER, temporarily assigned, join. JUSTICE ZAZZALI
filed a separate opinion concurring in part and dissenting in part in which
JUDGE PRESSLER joins. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
Argued March 3, 2003 Decided November 24, 2003
On certification to the Superior Court, Appellate Division.
Mark R. Cuker argued the cause for appellants (Williams Cuker & Berezofsky, attorneys).
Jeremy P. Cooley argued the cause for respondents (Lenox, Socey, Wilgus, Formidoni, Brown,
Giordano & Casey, attorneys).
Abbott S. Brown argued the cause for amicus curiae, Association of Trial Lawyers
of America-New Jersey (Bendit Weinstock, attorneys).
Justice ALBIN delivered the opinion of the Court.
Plaintiff Agostino Ferreira, represented by Mark Cuker, Esq., filed a medical malpractice complaint against defendants Dr. Bruce Wulfsberg and Rancocas Orthopedic Associates. The complaint alleged that defendants negligent treatment of plaintiff for a fractured left heel caused an infection and the fracture not to heal properly. As a consequence, plaintiff suffered pain and economic hardship. The complaint, which detailed with specificity the acts of malpractice, alleged that defendants failed to use due care in (1) performing the surgery on plaintiffs left leg; (2) diagnosing the infection and bone fragments impinging on nerves; (3) removing bone fragments during surgery; (4) closing the wound; (5) prescribing antibiotics; (6) not consulting an appropriate infectious disease specialist; and (7) instructing the physical therapists on post-operative care. Additionally, plaintiffs wife asserted a per quod claim for loss of consortium.
Several months before filing suit, Cuker retained Dr. Gregory B. Shankman, a board certified orthopedic surgeon, to review plaintiffs medical records and determine whether the care defendants and others rendered to plaintiff fell outside acceptable professional standards. In the pre-suit stage, Dr. Shankman advised Cuker by telephone that, in his opinion, there was a reasonable probability that only defendants were negligent in their care of plaintiff, thereby eliminating two other potential defendants from being named in the complaint. During this period, Cuker sent Dr. Shankman an affidavit of merit to review and sign.
On May 31, 2000, the complaint was filed. On August 17, 2000, defendants filed their answer, which asserted several affirmative defenses and demanded the production of a medical expert affidavit. Cuker claims that the answer and the case information statement were misfiled in his office and not reviewed by him until January 2001. Within ten days of the filing of the answer, Cuker received Dr. Shankmans signed affidavit of merit, which, due to inadvertence, he failed to forward to defense counsel.
Discovery proceeded in the ordinary course. Plaintiff had 120 days after the filing of the answer in which to forward to defendants the affidavit of merit. During this 120-day period, defense counsel made no further request for the medical expert affidavit and did not participate in a telephonic case management conference. On January 3, 2001, eighteen days after the statutory deadline for delivering the affidavit of merit, Cuker had a telephone conversation with defense counsel, who brought to Cukers attention that defendants had not received a medical affidavit. Within hours of that conversation, Cuker faxed Dr. Shankmans affidavit to defense counsel.
On January 17, 2001, defendants moved to dismiss the complaint with prejudice for failure to comply with the Affidavit of Merit statute. The trial court granted the motion to dismiss, and the Appellate Division affirmed in an unpublished decision. We granted certification, 174 N.J. 193 (2002), and now reverse.
The Affidavit of Merit statute provides:
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.
The statute was one of five bills passed as part of a 1995
tort reform package designed to strike a fair balance between preserving a persons
right to sue and controlling nuisance suits. Palanque v. Lambert-Woolley,
168 N.J. 398,
404 (2001) (quoting Office of the Governor, News Release 1 (June 29, 1995));
Cornblatt, supra, 153 N.J. at 228.
See footnote 1 The statute imposes a set of procedural
requirements in order for a plaintiff to maintain a professional malpractice action.
supra, 153 N.J. at 228-29. First, the plaintiff must show that the complaint
is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to
the reasonable probability of professional negligence. N.J.S.A. 2A:53A-27; Palanque, supra, 168 N.J. at
404. Second, the affidavit must be provided to the defendant within sixty days
of the filing of the answer or, for good cause shown, within an
additional sixty-day period. N.J.S.A. 2A:53A-27; Burns v. Belafsky,
166 N.J. 466, 470-71 (2001).
Third, the plaintiffs failure to serve the affidavit within 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 with prejudice. N.J.S.A. 2A:53A-29; Palanque,
supra, 168 N.J. at 404; Cornblatt, supra, 153 N.J. at 247.
To ensure that discovery related issues, such as compliance with the Affidavit of Merit statute, do not become sideshows to the primary purpose of the civil justice system ¾ to shepherd legitimate claims expeditiously to trial ¾ we propose that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions. Our rules already provide for case management conferences in civil cases. See R. 4:5B-1; R. 4:5A-1 (exempting civil commitment). Expediting the schedule in malpractice cases will further the intent of our Best Practice rules: to resolve potential discovery problems before they become grist for dueling motions. At the conference, the court will address all discovery issues, including whether an affidavit of merit has been served on defendant. If an affidavit has been served, defendant will be required to advise the court whether he has any objections to the adequacy of the affidavit. If there is any deficiency in the affidavit, plaintiff will have to the end of the 120-day time period to conform the affidavit to the statutory requirements. If no affidavit has been served, the court will remind the parties of their obligations under the statute and case law.
Our proposal does not restrict the flexibility of trial courts to convene additional case management conferences to facilitate the discovery process and motion practice. Our Best Practices rules contemplate that case management conferences should be held when something can be gained from it. 2 New Jersey Practice, Court Rules Annotated, Comment on R. 4:5B-2 (John H. Klock) (5th ed. Supp.2003-2004). The painful experience of our affidavit of merit jurisprudence reveals the compelling need for such conferences at an early stage before problems arise. Indeed, our proposal serves the very goal of case management; it will assist discovery...[and] promote the orderly and expeditious progress of the case. R. 4:5B-2. We trust that early court intervention in the discovery process will permit the Affidavit of Merit statute to fulfill its true purpose ¾ to bring a swift demise to frivolous lawsuits while allowing meritorious ones to have their day in court.
Diligence and attentiveness in the practice of law will spare plaintiffs attorneys from later seeking an equitable remedy that may not be available. Those members of the plaintiffs bar who follow the simple dictates of the statute will find no impediment to championing the causes of their clients.
The decision of the Appellate Division is reversed and the matter remanded for further proceedings.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, and WALLACE join in JUSTICE ALBINs opinion. JUSTICE LONG filed a separate opinion concurring in part and dissenting in part in which JUSTICES ZAZZALI and JUDGE PRESSLER join. JUSTICE ZAZZALI filed a separate opinion concurring in part and dissenting in part in which JUDGE PRESSLER joins. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A- 151 September Term 2001
AGOSTINO FERREIRA and
MARGARIDA FERREIRA, h/w,
Justice LONG, concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
A- 151 September Term 2001
AGOSTINO FERREIRA and MARGARIDA FERREIRA, h/w,
Justice ZAZZALI, concurring in part and dissenting in part.
Article VI, section 2, paragraph 3 of the New Jersey Constitution provides that the Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts. In Winberry v. Salisbury, 5 N.J. 240, 247, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950), this Court interpreted that provision as providing the judicial branch with exclusive authority over court administration, including court practice and procedure. In reaching that determination, we observed that [r]ules of the court are made by experts who are familiar with specific problems to be solved and the various ways of solving them. Id. at 253. Underlying our holding in Winberry was the doctrine of separation of powers and its recognition that each branch of government is suited to make certain types of decisions and should exercise fully its own powers without transgressing upon the powers rightfully belonging to a cognate branch. Knight v. City of Margate, 86 N.J. 374, 388 (1981).
Winberry and its progeny instruct that whether a legislative enactment impermissibly overrides a court rule depends on the character of the enactment. If the statute in question involves procedural as opposed to substantive rights, the court rule generally prevails. See, e.g., Winberry, supra, 5 N.J. at 255 (concluding that court rules requiring appeal from final judgment within forty-five days prevailed over statute authorizing appeal within one year after judgment); Borough of New Shrewsbury v. Block 115, Lot 4, 74 N.J. Super. 1, 8 (App. Div. 1962) (holding that court rule, not statute, controls motions to reopen judgment under law governing tax foreclosures); In re J.M., 273 N.J. Super. 593, 599600 (Ch. Div. 1994) (finding that court rule mandating credit for time served must yield to statute authorizing denial of credit because statute addressed extent of punishment imposed for crime, a matter of substantive law for Legislature); cf. McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 557-58 (1993) (construing statute that permitted award of attorney fees against nonprevailing party for frivolous litigation as applying only to parties and not attorneys to avoid declaring statute unconstitutional under Winberry).
In Winberry, we distinguished between substantive and procedural laws by their primary effects on the parties. Substantive law defines the parties rights and duties, whereas procedural law regulates the means through which those rights and duties are enforced. Winberry, supra, 5 N.J. at 247-48. In other words, [i]f it is but one step in the ladder to final determination and can effectively aid a court function, it is procedural in nature and within the Supreme Courts power of rule promulgation. Suchit v. Baxt, 176 N.J. Super. 407, 427 (App. Div. 1980).
Although Winberry expressed the substantive/procedural divide in rather clear terms, that distinction has been difficult to apply because statutes and rules can have both procedural and substantive implications. Knight, supra, 86 N.J. at 388-89. It occasionally happens that an underlying matter defies exact placement or neat categorization. Ibid. Adding to the complexity of the task is the fact that the separation between the legislative and judicial branches has never been watertight. Id. at 388 (quoting In re Salaries for Prob. Officers, 58 N.J. 422, 425 (1971)). Indeed, our precedent makes clear that, in the spirit of comity, we at times have shared authority over administration of the judicial system with the Legislature. See, e.g., id. at 391 (upholding statute prohibiting judicial employees from casino employment). In doing so, we have observed that the doctrine of separation of powers was never intended to create, and certainly never did create, utterly exclusive spheres of competence. In re Salaries for Prob. Officers, supra, 58 N.J. at 425.
Thus, our jurisprudence since Winberry demonstrates that the procedural characteristics of a legislative enactment do not necessarily determine the enactments fate. Knight, supra, 86 N.J. at 389 (recognizing that our post-Winberry decisions have made clear that [although] the judicial power is paramount and exclusive, it need not in every context or application be preclusive). Rather, judicial toleration of legislative intrusion has pivoted on a two-prong analysis. Initially, we have considered whether the judiciary has fully exercised its power with respect to the matter at issue. Id. at 389-90. In the absence of complete judicial action, we then have inquired into whether the statute serves a legitimate legislative goal, and, concomitantly, does not interfere with judicial prerogatives or only indirectly or incidentally touches upon the judicial domain. Id. at 391; cf. Suchit, supra, 176 N.J. Super. at 427 (finding court rule establishing medical malpractice panel was procedural device in view of its incidental effect on substantive rights and express purpose -- i.e., expediting the disposition of cases). In other words, we have accommodated legislative enactments touching on integral areas of the judicial system only when those enactments have not in any way interfered with this Courts constitutional obligation to insure a proper administration of the court system. Passaic Cty. Prob. Officers Assn v. County of Passaic, 73 N.J. 247, 255 (1977) (emphasis added); see also Knight, supra, 86 N.J. at 391 (upholding statutory prohibition on employment of members of judiciary by casino licensees based on finding that statute dealt with important legislative concern and did not conflict with Courts exercise of judicial powers).
In the context of this case, the relevant question, and my concern, is whether the statute, which not only declares an affidavit of merit to be an element of a professional malpractice cause of action but also requires it to be filed and served within a specific and strict period of time, impinges upon this Courts constitutional power to regulate practice and procedure. See footnote 2
I do not believe the Affidavit of Merit statute is akin to a statute of limitations, which would be within the Legislatures province. Rather, in my view, the mandatory time constraints at the heart of the statute are clearly procedural and were recognized as such by the Legislature itself, which described the statute as establishing new procedures. Assembly Insurance Committee, Statement to Senate Bill No. S-1493, at 1 (June 1, 1995); Senate Commerce Committee, Statement to Senate Bill No. S-1493, at 1 (Nov. 10, 1994).
As we observed in Cornblatt, supra, 153 N.J. at 238, the provision for filing an affidavit of merit imposes a pleading requirement. Pleading requirements fall clearly within this Courts rule-making prerogatives. See generally R. 4:5 to 4:9. However, our court rules may be regarded as not specifically addressing affidavits of merit despite Rule 4:5-1s interdiction of any pleadings other than those enumerated therein. It is thus debatable whether this Court has fully occupied the pleading field precluding legislative action. If we assume that legislative action is not entirely prohibited, either because the statute blends substance and procedure or because the Court has not fully occupied the field, we then would have to determine whether the legislative action meets the second prong of the Knight analysis. That requires balancing the legitimacy of the governmental purpose with the extent of the statutes burden on the exercise of our judicial authority over court practice and procedure.
As we have said on numerous occasions, the Legislature enacted the Affidavit of Merit statute to weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward by requiring plaintiffs to make a threshold showing of the merits of their claim during the pleading stage. E.g., Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001). Reducing the number of frivolous claims is a commendable governmental purpose that is closely linked to the efficient administration of justice.
Notwithstanding the legitimacy of the legislative objective, it may be difficult to reconcile the strict pleading requirements contained in the statute with our flexible approach to pleading, a keystone of our procedural jurisprudence that is reflected in both our court rules and case law. See footnote 3 That irreconcilability may result in an untenable burden on the exercise of our judicial authority over practice and procedure.
For example, as we interpreted the statute in Cornblatt, failure to comply with the strict temporal requirements of the statute requires dismissal with prejudice except in extraordinary circumstances. That result is contrary to our rules of practice and their spirit in several respects. It is incompatible with our aversion to dismissing complaints for failure to state a claim pursuant to Rule 4:6-2(e). It conflicts with Rule 4:37-2(a), which provides that dismissal for failure to comply with a procedural rule is presumptively without prejudice. And, it is inconsistent with our liberal approach to amendments to pleadings pursuant to Rule 4:9-1. See Pressler, Current N.J. Court Rules, supra, comment on R. 4:9-1 (explaining that [t]he motion for leave to amend is required by the rule to be liberally granted and without consideration of the ultimate merits of the amendment).
Moreover, dismissing a claim for failure to comply with a procedural hurdle disserves both the legislative goal of preserving meritorious malpractice actions and the broader raison d être of our court rules -- achieving substantial justice on the merits. As Justice Long notes in her concurrence, procedural slip-ups in filing or service . . . do not go to the heart of a professional malpractice claim. Slip op. at 3. Instead, those slip-ups should properly be regarded as curable deficiencies in pleadings that are traditionally left to a courts discretion under our court rules.
Finally, there is an apparent conflict between the affidavit-of-merit requirement and the express instruction of Rule 4:5-7 that no technical forms of pleading are required . Pleadings are formal allegations by the parties . . . of their respective claims and defenses, with the intended purpose being to provide notice of what is to be expected at trial. Blacks Law Dictionary 1152 (6th ed. 1990). By requiring plaintiffs to provide an affidavit demonstrating the strength of their negligence claim in order to state a claim for professional malpractice, the statute appears to impose a technical pleading requirement. As a result, courts adhering to the Affidavit of Merit statute, in turn, may violate the provisions of Rule 4:5-7.
In sum, the conflicts between our rules and the Affidavit of Merit statute, coupled with the fine distinctions that we have drawn to avoid the injustice that flows from the statutes strict application, suggest a possible constitutional infirmity.
We would not be alone in concluding that an affidavit-of-merit statute is an improper legislative incursion into the judicial domain. In Hiatt v. Southern Health Facilities, Inc., 626 N.E.2d 71, 72 (Ohio 1994), the Supreme Court of Ohio reached a similar conclusion. The Ohio Constitution, like ours, vests exclusive power over practice and procedure with the judiciary. Id. at 72 n.1. In Hiatt, the Supreme Court of Ohio considered a statute that required a plaintiff in a malpractice action to attach to the complaint an affidavit, in which either the plaintiff or his or her attorney verified that the plaintiff had attempted to obtain medical records. Id. at 73. The court found that the statutory requirement conflicted with a court rule that expressly provided that pleadings did not have to be verified or accompanied by an affidavit. Ibid. Citing to the constitutional provision vesting Ohios judiciary with exclusive power over practice and procedure, the court held that the court rule prevailed, rendering the statute invalid. Ibid. Thus, at least one other court has concluded that an affidavit-of-merit statute raises separation-of-powers concerns.
Fifty years ago we warned that [i]t would . . . defeat the desired objectives of simplicity and flexibility in procedure, if statutory procedures might be grafted on the rules of the court. State v. Otis Elevator Co., 12 N.J. 1, 17 (1953). Experience has affirmed the Otis fears: conditions have become more complex and less flexible. If the Legislature simply had required that plaintiffs file an affidavit of merit early in the process subject to the Rules of the Supreme Court, there would be less conflict with our procedural rules. Our Legislature wisely has followed that course in a number of contexts. See, e.g., N.J.S.A. 2A:34-9 (providing that jurisdiction in nullity-of-marriage proceedings may be acquired when [p]rocess is served upon the defendant as prescribed by the rules of the supreme court [sic]); N.J.S.A. 27:23-34.3(d) (providing that service of complaints and summonses charging violation of toll-collection monitoring system may be made by means provided by the Rules Governing the Courts of the State of New Jersey); N.J.S.A. 39:6A-28 (providing that [c]ompensation for arbitrators [under the New Jersey Reparation Reform Act] shall be set by the Rules of the Supreme Court of New Jersey). Those statutes demonstrate that a revised Affidavit of Merit statute and our constitutionally prescribed rule-making power can co-exist in a similar manner.
The Affidavit of Merit statute has important and laudable goals and should not be disregarded without due consideration. Were we to conclude that the statute is constitutionally suspect, it may be subject to judicial surgery. We have engaged in surgery to excise constitutional defects while preserving legislative intent. Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 280 (1998), cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed.2d 770 (1999). In this instance, however, it may be more prudent for the Legislature to take corrective action, following the examples set forth in the prior paragraph. Such action would obviate the constitutional concerns that I have expressed.
In the eight years following the enactment of the Affidavit of Merit statute, we have interpreted and applied the statute on numerous occasions. During those years, we have not addressed comprehensively the statutes constitutionality. In the meantime, the public, the parties, and the courts have dealt with a torrent of litigation that unduly has burdened litigants as well as our trial and appellate courts. We could not have forecasted that flood five years ago when, in Cornblatt, we found it unnecessary and inappropriate to deal conclusively with the issue. Cornblatt, supra, 153 N.J. at 248. And, what is past being prologue, the burden on our courts may worsen. It is never too late to address a constitutional problem. As we have noted in other contexts, [w]isdom too often never comes, and so one ought not to reject it merely because it comes late. Immer v. Risko, 56 N.J. 482, 495 (1970) (quoting Hensell v. Union Planters Natl Bank, 335 U.S. 595, 600, 66 S. Ct. 290, 293, 93 L. Ed. 259, 264 (1949) (Frankfurter, J., dissenting)).
Judge Pressler joins in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-151 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
AGOSTINO FERREIRA and
DECIDED November 24, 2003
Footnote: 1 Justice Zazzalis concurring opinion suggests that the Affidavit of Merit statute is unconstitutional because it violates the separation of powers. That issue was not raised before this Court or below by the parties to this case. We do not consider Justice Zazzalis constitutional analysis because it would be unfair to the defendant who has never had the opportunity to address the issue. We note that in Cornblatt this Court rejected the notion that the Legislature lacked constitutional authority to enact the Affidavit of merit statute. Cornblatt, supra, 153 N.J. at 248 ([T]he constitutional principle of separation of powers in this context is not implicated. It is within the Legislatures authority to define a cause of action to include a limitations period within which the plaintiff must act.)(citation omitted). In the more than half-dozen cases in which this Court has grappled with the Affidavit of Merit statute since Cornblatt, no one has questioned, and this Court has never revisited, the statutes constitutionality.
Footnote: 2 It is noteworthy that an editorial published in the New Jersey Law Journal after the enactment of the Affidavit of Merit statute characterized the affidavit requirement as an unmistakable legislative attempt to control practice and procedure in a lawsuit already before the court. A Litigators Predicament, 142 N.J.L.J. 24 (Dec. 11, 1995). Observing that [p]redicament is defined as a troublesome, embarrassing or ludicrous situation, the editorial concluded that all three adjectives appropriately described the legislatively mandated affidavit of merit. Ibid. The editorial expressed hope that the dangerous legislation would attract [our] attention soon and that when it did, we would seize upon the Winberry violation as a means to rid [malpractice litigators] of this entire unfortunate enactment. Ibid.
Footnote: 3 Rule 4:5-7 provides that [e]ach allegation of a pleading shall be simple, concise and direct, and no technical forms of pleading are required. All pleadings shall be liberally construed in the interest of justice. (Emphasis added). Our general reluctance to dismiss complaints for failure to state a claim pursuant to Rule 4:6-2(e) further evinces our liberal approach to pleadings. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989) (requiring courts to accord a meticulous and indulgent examination to complaint when determining whether to dismiss for failure to state claim); Pressler, Current N.J. Court Rules, comment 4.1 on R. 4:6-2 (2004) (instructing that if a cause of action can be gleaned from even an obscure statement, a claim should not be dismissed). Read together, the rules on pleadings reflect our overall goal of accomplishing substantial justice on the merits by not closing the courtroom doors to a party whose only failure is a procedural or technical mistake that causes no prejudice to other litigants. See Melone v. Jersey Cent. Power & Light Co., 18 N.J. 163, 174 (1955) (emphasizing that the aim of [our court] rules is substantial justice); Handelman v. Handelman, 17 N.J. 1, 11 (1954) (describing general purpose of rules as an effort to broaden the procedural powers of our courts to the end that just dispositions on the merits may be facilitated and determinations on the basis of procedural niceties may be avoided).
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