(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 January 29, 2001 -- Decided June 21, 2001
Poritz, C.J., writing for a unanimous Court.
The issue in this appeal is whether a plaintiff in a common knowledge malpractice action must comply
with the affidavit requirement of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27.
On August 9, 1996, an orthodontist referred plaintiff, age sixteen, to defendant Robert Kardon, D.D.S.,
with instructions to extract a particular incisor. Dr. Kardon referred plaintiff to his associate, defendant Joseph
Reed, D.D.S., who extracted a different tooth than the one directed to be pulled by the orthodontist. Plaintiff and
her mother, as guardian ad litem, filed a complaint against Drs. Reed and Kardon for dental malpractice. In his
answer to the complaint, Dr. Kardon requested that plaintiffs provide him with an affidavit of merit. Plaintiffs failed
to file the affidavit within the time period prescribed by the statute. Defendants moved to dismiss based on that
failure. In response, plaintiffs asserted that they were not obligated to provide an affidavit of merit because they
intended to rely at trial on the common knowledge doctrine and res ipsa loquitur. The trial court granted
defendants' motions, finding that plaintiffs are required to comply with the Affidavit of Merit Statute even in
common knowledge cases. The Appellate Division affirmed. Hubbard v. Reed,
331 N.J. Super. 283 (App. Div.
2000).
HELD: An affidavit of merit need not be provided in common knowledge cases when an expert will not be called
to testify that the defendant's care, skill or knowledge fell outside acceptable professional standards or treatment
practices.
1. In determining the Legislature's intent, the Court looks first to the plain language of the statute. In general,
if the language of a statute is clear on its face, the court must enforce it according to its terms. However, where a
literal interpretation would create a manifestly absurd result, contrary to public policy and the overall purpose of the
statute, the literal interpretation should be rejected. (Pp. 6- 7).
2. On its face, the Affidavit of Merit Statute applies to any action involving professional malpractice and
makes no exception for common knowledge cases. Nor does the legislative history address the question. The
primary purpose of the statute, however, is to require plaintiffs in malpractice cases to make a threshold showing
that their claim is meritorious, so that meritless lawsuits can be identified readily at an early stage of litigation. (Pp.
7-9).
3. The Affidavit of Merit Statute is not concerned with the ability of plaintiffs to prove the allegation
contained in the complaint, but with whether there is some objective threshold merit to the allegation. To
demonstrate the objective threshold of merit, the statute requires plaintiffs to provide an expert opinion, given under
oath, that a duty of care existed and that the defendant breached that duty. Yet, by definition, in common
knowledge cases an expert is not needed to demonstrate that a defendant breached a duty of care. The doctrine
applies where juror common knowledge as lay persons is sufficient to enable them, using ordinary understanding
and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.
Thus, a plaintiff in a common knowledge malpractice case will not need expert testimony at trial to establish the
standard of care or a deviation therefrom. (Pp. 9).
4. In resolving the question of whether an expert is nonetheless required in common knowledge cases to
establish that plaintiff's claims meet the required threshold of merit, the Court considers the statute's purpose 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. If jurors, using ordinary understanding and experience and without the
assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be
readily apparent from a reading of the plaintiff's complaint. In a common knowledge case an expert is no more
qualified to attest to the merit of a plaintiff's claim than a non-expert. ( Pp. 9 -11).
5. Although it is not known whether the drafters of the legislation contemplated a common knowledge
exception, such an exception comports with their likely intent and with a practical common sense interpretation of
the statute. Having considered both the purpose of the statute and its silence on the issue, the Court determines that
an affidavit of merit is not required in common knowledge cases. The Court does not resolve whether a separate
exception exists in respect of the res ipsa loquitur doctrine. (Pp. 11-12).
6. The average layperson could apply his or her general understanding and knowledge to find that the
defendant in this case breached a duty of care by pulling the wrong tooth. Plaintiffs will not present expert
testimony to establish defendant's negligence at trial and, therefore, are not required to obtain an expert's affidavit
prior to trial to demonstrate that their claim has threshold merit. (P. 12-13).
7. Because the Court construes the exception to the Affidavit of Merit Statute narrowly, however, the wise
course of action in all malpractice cases would be for plaintiffs to provide affidavits even when they do not intend to
rely on expert testimony at trial. In most cases, expert testimony will be required to establish both a standard of care
and breach of that standard by the defendant and a plaintiff who fails to present such testimony could be subject to
involuntary dismissal pursuant to Rule 4:37-2(b). As such, there is some uncertainty in relying on common
knowledge in professional malpractice cases and a timely filed affidavit would prevent the risk of a later dismissal.
(Pp. 13-14).
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.
JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA AND ZAZZALI join in CHIEF JUSTICE
PORITZ's opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
6 September Term 2000
NINA HUBBARD, as Guardian Ad
Litem of NIA HUBBARD, her
minor child,
Plaintiff-Appellant,
v.
DR. JOSEPH REED, D.D.S.,
Defendant-Respondent,
and
DR. ROBERT KARDON, D.D.S.,
Defendant.
Argued January 29, 2001 -- Decided June 21, 2001
On certification to the Superior Court,
Appellate Division, whose opinion is
reported
331 N.J. Super. 283 (2000).
Edward J. Crisonino argued the cause for
appellant.
Timothy P. Mullin argued the cause for
respondent (Mintzer, Sarowitz, Zeris &
Ledva, attorneys; Mr. Mullin and Kimberly A.
Jubanyik, on the briefs).
William L. Gold submitted a brief on behalf
of amicus curiae, Association of Trial
Lawyers - New Jersey (Bendit Weinstock,
attorneys; Mr. Gold and Abbott S. Brown, on
the brief).
The opinion of the Court was delivered by
PORITZ, C.J.
This case and Palanque v. Lambert-Woolley, ___ N.J. ___
(2001), also decided today, are the seventh and eighth
malpractice actions to require intervention by this Court for a
determination of the meaning and applicability of the Affidavit
of Merit Statute enacted six years ago. Plaintiffs have raised
numerous issues in a variety of factual settings that implicate
both the language of the statute and the Legislature's intent.
In our opinions we have focused on the legislative goals, and on
the words and phrases used by the Legislature to carry out those
goals. Where we have found ambiguity, we have looked to the
legislative purpose underlying the statute, but we have also
sought to eliminate any remaining confusion and to provide
guidance for the future.
At issue in this case is whether a plaintiff in a common
knowledge malpractice action must comply with the affidavit
requirement of the statute. Under the statute, a plaintiff who
brings a malpractice action against a licensed professional must
provide the defendant with the affidavit of an appropriate expert
stating that the action has merit. N.J.S.A. 2A:53A-27. Because
we do not believe that the Legislature intended to burden a
plaintiff with the affidavit requirement when expert testimony is
not required at trial to establish the defendant's negligence, we
hold that an affidavit need not be provided in common knowledge
cases when an expert will not be called to testify “that the
care, skill or knowledge . . . [of the defendant] fell outside
acceptable professional or occupational standards or treatment
practices.” N.J.S.A. 2A:53A-27.
Plaintiffs did not file the affidavit within the sixty-day time period prescribed by N.J.S.A. 2A:53A-27. On April 20, 1999, Dr. Kardon filed a motion to dismiss based on that failure and six days later Dr. Reed filed a similar motion. Plaintiffs responded on May 5, 1999, asserting that they were not obligated to provide an affidavit of merit because they intended to rely at trial upon the common knowledge doctrine and res ipsa loquitur.See footnote 11 Finding that plaintiffs are required to comply with the Affidavit of Merit Statute even in common knowledge cases, the trial court granted defendants' motions.
Plaintiffs appealed and the Appellate Division affirmed. Hubbard v. Reed, 331 N.J. Super. 283 (2000). We granted certification on September 8, 2000, 165 N.J. 527, and now reverse.
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.
Defendants argue that the clear and unambiguous language of
N.J.S.A. 2A:53A-27 requires that an affidavit of merit be filed
in all malpractice cases. Defendants contend that only after a
plaintiff has made a threshold showing of merit by way of an
expert affidavit can he or she then select a theory of liability
under which to seek damages. Without that affidavit, according
to defendants, attorneys would be attesting to the merits of
their clients' claims.
Plaintiffs respond that when a defendant's negligence is so
apparent that expert testimony will not be needed at trial, the
purpose of the statute -- to reduce frivolous lawsuits -- would
not be furthered by requiring an affidavit of merit. Plaintiffs
further assert that the cost of obtaining an affidavit in a
common knowledge case involving minor injuries would make
bringing an action for recovery, no matter how meritorious, too
expensive.
In Janelli, supra, the plaintiff alleged that “the defendant [chiropractor] used excessive force which resulted in two left-sided ribs being fractured during a chiropractic manipulation.” Id. at 310. After the plaintiff failed to provide an affidavit of merit, the defendant moved to dismiss. The trial court determined that an affidavit of merit need not be provided when a plaintiff does not intend to rely upon experts at trial, and denied the defendant's motion. Id. at 311. The court explained: “It would seem redundant and unnecessary to require a plaintiff to spend the funds necessary to hire such an expert when he or she never intends to utilize that expert at the time of trial.” Id. at 313.
In Levinson, supra, the plaintiff claimed that the defendant law firm settled his case without authorization. 320 N.J. Super. at 316. The Appellate Division held that the Affidavit of Merit Statute did not apply because the plaintiff had presented a “classic contract claim . . . asserting damages alleged to arise because [defendants] breached [plaintiff's] written contract of employment.” Id. at 317. Judge Wecker, concurring, also found that an affidavit was not required, but for the reason that “the affidavit-of-merit statute cannot apply to those professional negligence claims that can proceed without expert testimony.” Id. at 321 (citing Janelli, supra, 317 N.J. Super. at 313). In Judge Wecker's view, when an expert is not needed “to withstand a summary judgment motion, or a motion to dismiss at trial under R. 4:37-2(b) or R. 4:40-1, it would be unreasonable to require an affidavit of merit as a condition of proceeding with the malpractice action.” Id. at 321.
We agree. The primary purpose of the Affidavit of Merit Statute “is 'to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation.'” Cornblatt, supra, 153 N.J. at 242 (quoting In re Petition of Hall, 147 N.J. 379, 391 (1997)). As observed by the Appellate Division, “the affidavit of merit statute 'is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint,' but with whether there is some objective threshold merit to the allegations.” Hubbard, supra, 331 N.J. Super. at 292-93 (quoting Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989)). To demonstrate that objective threshold of merit, the statute requires plaintiffs to provide an expert opinion, given under oath, that a duty of care existed and that the defendant breached that duty. Yet, by definition, in common knowledge cases an expert is not needed to demonstrate that a defendant breached a duty of care. The doctrine applies where “jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.” Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999). Thus, a plaintiff in a common knowledge malpractice case will not need expert testimony at trial to establish the standard of care or a deviation therefrom. The question, then, is whether an expert is nonetheless required to establish that plaintiff's claims meet the required threshold.
We consider first the purpose of the statute, 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. If jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be readily apparent from a reading of the plaintiff's complaint. Although the Appellate Division points out that questions relating to evidence at trial and to the basis for the affidavit are quite different, Hubbard, supra, 331 N.J. Super. at 293, broadly speaking, an affidavit serves little purpose when a plaintiff intends to rely on common knowledge at trial. Put another way, in a common knowledge case an expert is no more qualified to attest to the merit of a plaintiff's claim than a non-expert.
In so concluding, we are mindful that other states have enacted affidavit of merit statutes that specifically exempt common knowledge cases from the affidavit requirement. See, e.g., Colo. Rev. Stat. § 13-20-601 (1997) (stating that certificate of review is required in malpractice actions where “expert testimony would be necessary to establish a prima facie case”); Minn. Stat. Ann. § 145.682(2) (West 2000) (stating that affidavit is required in any “cause of action as to which expert testimony is necessary to establish a prima facie case”); N.D. Cent. Code § 28-01-46 (1999) (stating that affidavit requirement “does not apply to alleged lack of informed consent, unintentional failure to remove a foreign substance from the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient's body, or other obvious occurrence”). Cf. N.Y. C.P.L.R. 3012-a(c) (McKinney 1991) (stating that no affidavit is required “[w]here the attorney intends to rely solely on the doctrine of 'res ipsa loquitur'”). Had our Legislature spoken on this issue directly, this case and its companion, Palanque v. Lambert-Woolley, would likely not have come before us. We do not know whether the drafters of this legislation even contemplated a common knowledge exemption,See footnote 22 but believe such an exemption to comport with their likely intent, and with a practical common sense interpretation of the statute. Township of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (stating that “where a statute or ordinance does not expressly address a specific situation, the court will interpret it 'consonant with the probable intent of the draftsman had he anticipated the matter at hand'”) (citation and internal quotation omitted); cf. Amerada Hess Co. v. Director, Div. of Taxation, 107 N.J. 307, 322 (1987) (“We find the doctrine of probable legislative intent a more reliable guide than the so- called doctrine of legislative inaction.”), aff'd, 490 U.S. 66, 109 S. Ct. 1617, 104 L. Ed.2d 58 (1989). Having considered both the purpose of the statute and its silence on this issue, we have determined that an affidavit of merit is not required in common knowledge cases.
The judgment of the Appellate Division is reversed and the matter is remanded to the trial court for proceedings consistent with this opinion.
JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI join in CHIEF JUSTICE PORITZ's opinion. JUSTICE VERNIERO did not participate.
NO. A-6 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
NINA HUBBARD, as Guardian Ad
Litem of NIA HUBBARD, her
minor child,
Plaintiff-Appellant,
v.
DR. JOSEPH REED, D.D.S.,
Defendant-Respondent,
and
DR. ROBERT KARDON, D.D.S.,
Defendant.
DECIDED June 21, 2001
Chief Justice Poritz PRESIDING
OPINION BY Chief Justice Poritz
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1Because we hold today that a plaintiff in a common knowledge case is not required to file an affidavit of merit, we find it unnecessary to resolve whether a separate exception exists in respect of the res ipsa loquitur doctrine. We note, however, that in a res ipsa loquitur action, the jury is allowed to infer a defendant's negligence “'where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'” Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269 (1958)). It may be necessary for a plaintiff in such actions to present “expert testimony to the effect that the medical community recognizes that an event does not ordinarily occur in the absence of negligence,” id. at 527, in order to meet the first prong of the res ipsa loquitur test. An affidavit of merit would be required in those cases. Footnote: 2 2The statute contains one exception to the affidavit requirement when the defendant does not provide records requested by a plaintiff that “hav[e] a substantial bearing on the preparation of the affidavit.” N.J.S.A. 2A:53A-28. This exception relates to information necessary for the expert's evaluation of plaintiff's case and is unrelated in substance or kind to a common knowledge exception.