Plaintiff Permitted to Obtain New Affidavit of Merit When It Was Unknown That Original Expert Had Retired – Castello v. Wohler, 2016 WL 3369247 (N.J. App. June 20, 2016)

By Michael Zerres

This is a medical malpractice matter where the plaintiff’s counsel timely served an Affidavit of Merit (“AOM”) and reasonably relied on the AOM and the expert’s curriculum vitae, which erroneously stated that the witness is currently practicing medicine. Plaintiff’s counsel later discovers that error, through no fault of his own, after the 120 day deadline, set forth in N.J.S.A. §§ 2A:53A-26 to 2A:53A-29, expired. Under those circumstances, the Appellate Division held that exceptional circumstances existed permitting a discovery extension so that plaintiff has sufficient time to hire a different expert witness who is qualified under the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. §§ 2A:53A-37 to 2A:53A-42 to issue a new AOM, and to serve a corresponding expert report.

While the trial judge had properly barred plaintiff’s expert Dr. Edoga’s testimony because he had in fact been retired from practice for several years, and, thus failed to meet the requirements of the AOM statute, the Appellate Division found that dismissing the Complaint with prejudice was in contravention of the purposes of the AOM statute and Ferreira conferences, and, the strong preference for adjudication on the merits. The AOM statute serves to discard frivolous suits in the early stages of litigation and to ensure meritorious claims will be heard in court. Here, there was no evidence to suggest that plaintiff’s suit was frivolous or that plaintiff knew their expert no longer actively practiced medicine. Ferreira conferences ensure that affidavits are timely served, defendant’s objections regarding AOMs are timely heard, and any discovery issues are dealt with efficiently. Defendant understandably waived the Ferreira conference because counsel relied on the AOM and Dr. Edoga’s CV, which misrepresented his current status as a practicing physician. The Court also found that, had defendant’s counsel known that Dr. Edoga retired five years before the date of the malpractice, counsel would have participated in a Ferreira conference, after which plaintiff would have had an opportunity to retain a different expert and serve a corresponding AOM before the 120 day deadline. The Court also notes that plaintiff’s counsel only learned of defendant’s objection to Dr. Edoga’s qualifications after the discovery end date and, therefore, had no reason to request an extension earlier. Now, denying a discovery extension, or an opportunity for plaintiff to retain a different expert, will inevitably result in the dismissal of plaintiff’s claim despite the fact that there is no evidence that the claim is frivolous. Thus, the court ultimately remanded and directed the Trial Court to extend discovery so that plaintiff has sufficient time to hire a new expert.

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