(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 October 21, 1996 -- Decided February 5, 1997
STEIN, J., writing for a unanimous Court.
The issue addressed by the Court is whether pre-suit depositions may be authorized pursuant to the
Rules Governing Civil Practice to aid plaintiffs contemplating filing malpractice actions in complying with the
requirements of the recently-enacted Affidavit of Merit Statute (AMS).
The AMS applies to actions for damages for personal injury, wrongful death or property damage
resulting from malpractice or negligence by a licensed person engaged in his or her profession or occupation.
The AMS requires that a plaintiff file, within 60 days of each defendant's answer to a malpractice complaint,
an affidavit by a qualified expert stating that there exists a reasonable probability that the service performed
by the professional who is the subject of a complaint deviated from accepted professional or occupational
standards or treatment practices.
The alleged malpractice is based on the following facts. On August 15, 1995, Woodrow Hall was
admitted to the emergency room at Burdette Tomlin Memorial Hospital (BTMH) with a lacerated jugular
vein on the left side of his neck. During surgery to repair the laceration, Hall suffered cardiac arrest and
was without oxygen for more than ten minutes, resulting in permanent and severe brain damage.
Shortly after surgery, Hall's surgeon informed members of Hall's family that he believed that the
cardiac arrest during surgery was caused by a faulty endotracheal tube that was inserted into Hall during
anesthesia. Based on that information, Hall's family retained an attorney to determine whether Hall's
permanent brain damage was caused by the negligence of any of the health care professionals who
participated in the surgical procedure.
Sandra Hall, guardian ad litem of Woodrow Hall, petitioned the trial court, pursuant to Rule 4:11-1,
for permission to take pre-suit depositions of various health care professionals. The petition asserted that
the depositions were necessary in order to comply with the provisions of the AMS and to ascertain why Hall
suffered cardiac arrest during surgery. The trial court granted the petition and ordered that depositions be
conducted within twenty days. The prospective deponents appealed to the Appellate Division, which denied
a stay of the depositions pending appeal. The Supreme Court, however, granted a stay.
The Appellate Division granted Woodrow Hall's motion for summary disposition, affirming the
order of the trial court granting pre-suit depositions. The Supreme Court granted the petition for
certification filed by the prospective deponents, and again stayed the depositions.
Subsequently, in February 1996, suit was instituted on behalf of Woodrow Hall and his dependents
(plaintiffs) against BTMH and various health care providers. In the course of that litigation, plaintiffs
deposed the prospective defendants that previously had been ordered to give their depositions before suit was
filed. In addition, after several defendants filed answers to the complaint, counsel for Woodrow Hall sought
an order declaring that the requirement to file an affidavit of merit was waived because of defendants' failure
adequately to provide requested medical records, or in the alternative, extending the time to file the
affidavits. The trial court declined to excuse filing of the affidavits, but did extend the time for filing. The
Appellate Division denied leave to appeal. The Supreme Court stayed the order of the Law Division
requiring filing of the affidavits of merit in the pending action.
The underlying legal issue on appeal has been rendered moot by the filing of the complaint.
Nonetheless, with the concurrence of the parties, the Court chooses to address the issue because it is one of
substantial importance, is likely to recur, and is capable of evading review.
HELD: A plaintiff's possible inability to plead a cause of action, or to comply with the mandate of an
Affidavit of Merit Statute, does not constitute an adequate showing to justify the grant of a petition
for pre-suit discovery pursuant to Rule 4:11-1.
1. Rule 4:11-1 is substantially identical to, and was based on, Rule 27(a) of the Federal Rules of Civil
Procedure (FRCP). Thus, reference to federal decisions addressing the scope and application of FRCP 27(a)
informs this courts understanding of the intended use of Rule 4:11-1. (pp. 7-9)
2. Federal court decisions applying FRCP 27(a) uniformly hold that the rule's authorization of pre-suit
depositions was not designed to help plaintiffs in framing a cause of action, but was intended for cases in
which there exists a genuine risk that testimony will be lost or evidence destroyed before suit can be filed
and in which an obstacle beyond the litigant's control prevents suit from being filed immediately. The only
other reported decision in this State to consider the appropriate use of Rule 4:11-1 applied the rule in a
manner consistent with the analogous federal and out-of-state decisions. (pp. 9-16)
3. The AMS provides that, for good cause, a court may grant one extension of time to file an affidavit of
merit, not to exceed sixty days. Failure to file an affidavit of merit concerning a specific defendant
constitutes a failure to state a cause of action against that defendant. No affidavit of merit is required to be
filed if the plaintiff files a sworn statement certifying that, by certified mail or personal service, the plaintiff
requested the defendant in question to deliver appropriate medical records or information and that the
defendant has failed to deliver the requested records or information beyond 45 days since service of the
request. The legislative history of the statute demonstrates that its purpose was to require plaintiffs in
malpractice cases to make a threshold showing that their claim is meritorious, thereby facilitating the early
and easy identification of meritless lawsuits. (pp. 15-17)
4. Federal cases applying FRCP 27(a) and analogous state cases demonstrate that Rule 4:11-1 was not
intended to authorize pre-suit discovery for the sole purpose of assisting a prospective plaintiff in acquiring
facts necessary to frame a complaint. Thus, the trial court's application of Rule 4:11-1 in order to facilitate
plaintiffs' compliance with the AMS was inconsistent with the prevailing understanding of the rule's intended
use. (pp. 17-18)
5. Despite the historical understanding of the appropriate use of FRCP 27(a) and its state counterparts, and
although it is assumed that such pre-suit discovery will be essential only in exceptional circumstances, the
Rules Governing Civil Practice should be sufficiently flexible to avoid the risk of the dismissal of meritorious
claims based on noncompliance with the statute. Thus, the Civil Practice Committee is asked promptly to
evaluate and determine whether, and if so under what circumstances and conditions, trial courts should be
authorized to permit pre-suit discovery in order to prevent unjustified dismissals of meritorious malpractice
suits. Pending receipt and implementation of the Committee's recommendations, trial courts are authorized,
in exceptional circumstances, to grant petitions for pre-suit discovery in malpractice cases if in their
discretion they are persuaded that such relief is essential in order to permit the plaintiff to comply with the
provisions of the AMS. Such orders should be issued pursuant to Rules 4:11-1 and 1:1-2. (pp. 18-21)
The legal issue that was subject of the Court's grant of certification having been rendered moot, the
judgment of the Appellate Division is neither affirmed nor reversed. The order staying the Law Division's
order requiring filing of the affidavits of merit in the pending action is VACATED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN's opinion .
SUPREME COURT OF NEW JERSEY
A-
17 September Term 1996
IN RE: PETITION OF WOODROW HALL
BY AND THROUGH HIS GUARDIAN AD
LITEM, SANDRA HALL
Argued October 21, 1996 -- Decided February 5, 1997
On certification to the Superior Court,
Appellate Division.
Timothy M. Crammer argued the cause for
appellants Burdette Tomlin Memorial Hospital,
Dr. Anshook Patel, Dr. Baltazar Rodericks and
John Marstella (Paarz, Master, Koernig,
Crammer, O'Brien & Bishop, attorneys).
Michael S. Berger argued the cause for
respondent, Woodrow Hall (Mr. Berger,
attorney; Kevin Haverty, on the briefs).
Abbott S. Brown argued the cause for amicus
curiae, New Jersey State Bar Association
(Brown & Gold, attorneys; Mr. Brown and
William L. Gold, on the brief).
The opinion of the Court was delivered by
STEIN, J.
This appeal invites our consideration of whether pre-suit depositions may be authorized pursuant to the Rules Governing Civil Practice to assist plaintiffs contemplating filing
malpractice actions in complying with the requirements of the
recently-enacted Affidavit of Merit Statute. L. 1995, c. 139
(codified at N.J.S.A. 2A:53A-26 to -29).
On the petition of Sandra Hall, guardian ad litem of Woodrow
Hall, the Law Division ordered pre-suit depositions of various
health care professionals pursuant to Rule 4:11-1. The Appellate
Division summarily affirmed. We granted certification,
143 N.J. 517 (1996), and stayed the depositions. While the appeal was
pending, Sandra Hall, individually and as guardian ad litem for
Woodrow Hall and their minor children, filed suit against
Burdette Tomlin Medical Center, several health care
professionals, and various fictitious-name defendants. In the
course of that litigation, plaintiffs have already deposed Dr.
Robert Salasin, John D. Marstella, C.R.N.A., Dr. Baltazar
Rodericks, and Dr. Ashokkumar Patel, the prospective defendants
that previously had been ordered to give their depositions before
suit was filed. The underlying legal issue in this appeal, the
propriety of the Rule 4:11-1 order granting pre-suit depositions,
has therefore been rendered moot. However, with the concurrence
of the parties, we elect to address it because the issue is one
of substantial importance, is likely to reoccur, and is capable
of evading review. See Zirger v. General Acc. Ins. Co.,
144 N.J. 327, 330 (1996).
The medical malpractice action filed subsequent to the Rule
4:11-1 petition for pre-suit depositions involves injuries
sustained by plaintiff Woodrow Hall during surgery at Burdette
Tomlin Memorial Hospital (BTMH) in August 1995. Hall was
admitted to the emergency room at BTMH on August 15, 1995, after
a surfing accident in which he lacerated the jugular vein on the
left side of his neck. During the surgery to repair the
laceration, Hall suffered cardiac arrest and was without oxygen
for more than ten minutes. Hall currently is a patient at
Mediplex Rehabilitation Center in Camden and remains in a low-level cognitive state.
Shortly after surgery, Dr. Robert Salasin, Hall's surgeon,
informed members of Hall's family that he believed the cardiac
arrest during surgery was caused by a problem with the
endotracheal tube inserted in Hall to facilitate anesthesia.
Hall's family then retained counsel in order to determine whether
Hall's permanent brain damage was caused by the negligence of any
of the health care professionals who participated in the surgical
procedure. Hall's counsel obtained the BTMH operative records,
that were stamped "incomplete," and contained an anesthesia
record that was substantially illegible. The anesthesia record
contained no legible indication of any irregularity concerning
the endotracheal tube and the operative records did not explain
why cardiac arrest occurred during surgery. Hall's counsel
attempted to meet with Dr. Salasin, but Dr. Salasin's attorney
advised him not to discuss the matter.
In September 1995, Hall's counsel filed a petition pursuant
to Rule 4:11-1 in support of an order to compel the pre-suit
depositions of Drs. Salasin, Patel, and Rodericks, and of John D.
Marstella, C.R.N.A. The petition specifically asserted that the
depositions were essential because of the provisions of the
Affidavit of Merit Statute. Those provisions require the filing
within sixty days of each defendant's answer to a malpractice
complaint of an affidavit by a qualified expert stating that
there exists a reasonable probability that the professional
service that is the subject of the complaint deviated from
acceptable professional standards. The relevant statutory
language provides:
2A:53A-27. Affidavit required in certain
actions against licensed persons
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 person executing the affidavit shall be licensed in this or any other state; have
particular expertise in the general area or
specialty involved in the action, as
evidenced by board certification or by
devotion of the person's practice
substantially to the general area or
specialty involved in the action for a period
of at least five years. The person shall
have no financial interest in the outcome of
the case under review, but this prohibition
shall not exclude the person from being an
expert witness in the case.
2A:53A-28 Sworn statement in place of
affidavit permitted
An affidavit shall not be required
pursuant to section 2 of this act if the
plaintiff provides a sworn statement in lieu
of the affidavit setting forth that: the
defendant has failed to provide plaintiff
with medical records or other records or
information having a substantial bearing on
preparation of the affidavit; a written
request therefor along with, if necessary, a
signed authorization by the plaintiff for
release of the medical records or other
records or information requested, has been
made by certified mail or personal service;
and at least 45 days have elapsed since the
defendant received the request.
2A:53A-29 Failure to provide affidavit or
statement
If the plaintiff fails to provide an
affidavit or a statement in lieu thereof,
pursuant to section 2 or 3 of this act, it
shall be deemed a failure to state a cause of
action.
[N.J.S.A. 2A:53A-27 to -29 (footnotes
omitted).]
The petition further alleged that the purpose of the depositions was to ascertain why Hall suffered cardiac arrest during surgery. The Law Division granted the petition, ordering that the depositions be conducted within twenty days. The prospective deponents appealed to the Appellate Division, which denied a stay
of the depositions pending appeal. This Court, however, granted
a stay. (Apparently, Dr. Salasin did not seek a stay of his
deposition, which was taken on October 18, 1995.) The Appellate
Division granted Woodrow Hall's motion for summary disposition,
affirming the order of the Law Division granting pre-suit
depositions. We granted the petition for certification filed by
the prospective deponents, and again stayed the depositions.
Subsequently, in February 1996, suit was instituted on
behalf of Woodrow Hall and his dependents against BTMH and
various health care providers. In that proceeding, the
deposition of defendant John D. Marstella began on March 29,
1996; the deposition of Dr. Roderick was taken on April 28, 1996;
and the deposition of Dr. Patel was taken on July 1, 1996.
Although the hospital records are silent about any problem
concerning fluid replacement during surgery, counsel for Woodrow
Hall asserts that both Dr. Rodericks and Nurse Marstella
testified that Hall needed fluid replacement during surgery, and
that Dr. Salasin ordered that blood sent to the operating room
for Hall be returned to the blood bank. Dr. Rodericks expressed
the view that Hall's blood loss and lack of fluid replacement
contributed to his cardiac arrest.
In addition, Hall's counsel alleges that although the
hospital records omit any mention of replacement of the
endotracheal tube during surgery, both Dr. Salasin and Dr. Patel,
the anesthesiologist who entered the operating room during Hall's
surgery, confirmed that the tube was replaced. Dr. Patel
testified that he changed the tube because the carbon dioxide
monitor registered a zero reading and he detected no breath
sounds from Hall's lungs. Marstella and Rodericks confirmed that
the tube was replaced during surgery because it developed a leak
in the cuff, which they attributed to a possible puncture caused
by the surgeon.
After several of the health care defendants filed answers to
the complaint, counsel for Woodrow Hall sought an order declaring
that the requirement to file an affidavit of merit was waived
because of defendants' failure adequately to provide requested
medical records, or extending the time to file the affidavits.
The Law Division declined to excuse filing of the affidavits of
merit, but extended the time for filing. The Appellate Division
denied leave to appeal. This Court stayed the order of the Law
Division requiring filing of the affidavits of merit in the
pending action.
A. Rule 4:11-1
Relying on Rule 4:11-1, the Law Division ordered pre-suit
depositions of several health care providers identified by
plaintiff's counsel as individuals likely to possess knowledge
about whether Woodrow Hall's injuries were caused by malpractice.
The petition alleged that plaintiff was unable to file suit
without ascertaining in advance through depositions what had
transpired in the operating room, and that compliance with the
affidavit of merit statute would be extremely difficult without
pre-suit depositions.
Rule 4:11-1 provides in part as follows:
(a) Petition. A person who desires to
perpetuate his or her own testimony or that
of another person or preserve any evidence or
to inspect documents or property or copy
documents pursuant to R. 4:18-1 may file a
verified petition, seeking an appropriate
order, entitled in the petitioner's name,
showing: (1) that the petitioner expects to
be a party to an action cognizable in a court
of this State but is presently unable to
bring it or cause it to be brought; (2) the
subject matter of such action and the
petitioner's interest therein; (3) the facts
which the petitioner desires to establish by
the proposed testimony or evidence and the
reasons for desiring to perpetuate or inspect
it; (4) the names or a description of the
persons the petitioner expects will be
opposing parties and their addresses so far
as known; (5) the names and addresses of the
persons to be examined and the substance of
the testimony which the petitioner expects to
elicit from each; and (6) the names and
addresses of the persons having control or
custody of the documents or property to be
inspected and a description thereof.
. . . .
(c) Order and Examination. If the court finds that the perpetuation of the testimony or evidence or the inspection may prevent a failure or delay of justice, it shall make an order designating or describing the evidence to be preserved, or the documents or property to be inspected or the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions or inspection may then be taken
in accordance with these rules; and the court
may make such orders as are provided for by
R. 4:18 and R. 4:19.
We note that Rule 4:11-1 is substantially identical to Rule
27(a) of the Federal Rules of Civil Procedure (FRCP), its
principal difference from FRCP 27(a) deriving from its
authorization to perpetuate documentary evidence as well as
testimony. Because our Rule 4:11-1 was based on FRCP 27(a),
reference to federal decisions addressing the scope and
application of FRCP 27(a) informs our understanding of the
intended use of Rule 4:11-1. See Freeman v. Lincoln Beach Motel,
182 N.J. Super. 483, 485 (App. Div. 1981).
The federal court decisions applying FRCP 27(a) uniformly
hold that the rule's authorization of pre-suit depositions was
not designed to assist plaintiffs in framing a cause of action,
but was intended for cases in which there existed a genuine risk
that testimony would be lost or evidence destroyed before suit
could be filed and in which an obstacle beyond the litigant's
control prevents suit from being filed immediately. Thus, in In
re Ferkauf,
3 F.R.D. 89 (S.D.N.Y. 1943), the petitioner alleged
an intention to file suit against his former employer to recover
unpaid overtime as well as minimum wages, and sought pre-suit
depositions to ascertain the dates and times that he had worked
in order to acquire the facts necessary to permit the filing of a
complaint. In denying the petition, the court noted that the
Advisory Committee that drafted the Federal Rules of Civil
Procedure intended FRCP 27(a)
to apply to situations where, for one reason
or another, testimony might be lost to a
prospective litigant unless taken
immediately, without waiting until after a
suit or other legal proceeding is commenced.
Such testimony would thereby be perpetuated
or kept in existence and, if necessary, would
be available for use at some subsequent time.
In addition, the court rejected the contention that FRCP
27(a) could be used to assist a litigant in discovering facts
necessary to plead a cause of action:
From the foregoing it seems clear that
rule 27 was not intended to be used as a
discovery statute; that its purpose was not
to enable a prospective litigant to discover
facts upon which to frame a complaint. Rule
26, and not rule 27, provides the method for
discovering facts and that rule may be
availed of only after action has been
commenced.
Similarly, in In re Johanson Glove Co.,
7 F.R.D. 156
(E.D.N.Y. 1945), the petition for pre-suit depositions alleged
that the prospective plaintiff required depositions in advance of
suit to determine whether to file a complaint seeking legal or
equitable relief. Rejecting the petition, the court observed
that
a litigant may perpetuate testimony in a
situation where he has demonstrated that he
cannot commence an action, and therefore may
be the victim of injustice if he cannot guard
against the loss of evidence which is
presently available and would be presently
usable if the obstacle against the
commencement of an action did not exist.
. . . .
As a basis for that privilege the litigant
must not only show that he has a cause of
action, but also that he is presently unable
to commence that action, not because he is
worried about the phraseology of the
complaint, but because there is some obstacle
beyond his control that prevents him from
bringing it.
Thus, the federal courts consistently deny FRCP 27(a) petitions filed to ascertain evidence on which to base a cause of action, and require as a prerequisite to the grant of FRCP 27(a) petitions a showing that testimony is in danger of being lost unless depositions are taken immediately. See, e.g., Ash v. Cort, 512 F.2d 909, 913 (3d Cir. 1975) (affirming denial of FRCP 27(a) petition requesting perpetuation of testimony based only on conclusory allegation that corporate officers and directors of prospective defendant are over fifty years of age with fading memories); In re Sims, 389 F.2d 148, 149-51 (5th Cir. 1967) (reversing denial of FRCP 27(a) petition where petitioners were barred from filing federal habeas corpus petitions until state remedies were exhausted and essential witness was about to depart for long-term stay in Peru); Texaco, Inc. v. Borda, 383 F.2d 607, 609 (3d Cir. 1967) (reversing denial of FRCP 27(a) petition to allow deposition of seventy-one year old witness when civil action stayed indefinitely pending outcome of parallel criminal proceeding); De Wagenknecht v. Stinnes, 250 F.2d 414, 416-18 (D.C. Cir. 1957) (affirming grant of FRCP 27(a) petition to perpetuate testimony of seventy-four year old witness that supported petitioner's claim to recover property vested in
Attorney General where petitioner's suit to recover property is
barred indefinitely by federal legislation); In re Rosario,
109 F.R.D. 368, 370-71 (D. Mass. 1986) (denying FRCP 27(a) petition
based primarily on assertion that pre-suit depositions are needed
because of rapid turnover of personnel at Veteran's
Administration Hospital); In re Boland,
79 F.R.D. 665, 667
(D.D.C. 1978) (denying FRCP 27(a) petition in absence of showing
that prospective deponents will be unavailable to testify after
suit is instituted); In re Wolfson,
453 F. Supp. 1087, 1096
(S.D.N.Y. 1978) (denying FRCP 27(a) petition where petitioner
failed to establish inability to institute suit or likelihood
that testimony is likely to be lost); In re Gurnsey,
223 F. Supp. 359, 360 (D.D.C. 1963) (vacating prior order granting
FRCP 27(a) petition, and observing that FRCP 27(a) procedure "is
not a method of discovery to determine whether a cause of action
exists; and, if so, against whom action should be instituted").
Those states that have adopted a pre-suit deposition rule
patterned after FRCP 27(a) generally have followed the criteria
relied on by federal courts in resolving pre-suit applications to
perpetuate testimony. See, e.g., In re Miranne,
626 So.2d 744,
745 (La. App. 1993) (denying petition to perpetuate testimony
where petitioner's admitted purpose was to use deposition in
effort to establish grounds for suit); Powers v. Planned
Parenthood,
677 A.2d 534, 537-38 (Me. 1996) (affirming order to
perpetuate testimony where prospective plaintiff was afflicted
with cancer, had two weeks to live, and could not file suit until
malpractice pre-litigation screening panel had reviewed claim and
made recommendation); Allen v. Allen,
659 A.2d 411, 418-19 (Md.
Ct. Spec. App. 1995) (denying petition to perpetuate testimony
where petitioner's objective was to establish foundation for suit
and petitioner made insufficient showing that evidence sought
would be unavailable after suit); Sandmann v. Petron,
404 N.W.2d 800, 801-02 (Minn. 1987) (denying petition for pre-suit
deposition alleged to be necessary to comply with statute
requiring affidavit of expert review to be filed simultaneously
with summons and complaint in malpractice action, and holding
that pre-suit deposition of treating chiropractor should not be
permitted where petitioner's purpose is to elicit facts to
provide basis for cause of action); Sunrise Hosp. v. District
Court,
866 P.2d 1143, 1145-46 (Nev. 1994) (reversing grant of
petition for pre-suit depositions, and holding that such
petitions may be granted only to preserve testimony in danger of
loss or destruction, and not for purpose of allowing petitioner
to obtain information with which to formulate complaint); Harmon
v. Mercy Hosp.,
460 N.W.2d 404, 406-07 (N.D. 1990) (reversing
order granting application for pre-suit discovery and holding
that petitioner's application to examine her personnel file to
ascertain reasons for imposition of discipline should be denied
in absence of showing that records would not be available after
institution of suit).
The only other reported decision in this state to consider
the appropriate use of Rule 4:11-1 applied the rule in a manner
consistent with the analogous federal and out-of-state decisions.
In Sturm v. Feifer,
186 N.J. Super. 329 (App. Div. 1982),
decedent's will left his estate to his second wife. Decedent's
children from his first marriage alleged that an agreement
existed between their late father and his second wife to make
reciprocal wills pursuant to which the second wife would leave
her estate to the children. Believing that the second wife would
not fulfill the alleged contract or would change her will to
disinherit them, the children filed a Rule 4:11-1 petition to
depose the drafter of their father's will and a witness who
allegedly had knowledge of the agreement to make reciprocal
wills. The drafter and the witness were the only sources of
evidence that petitioners had to prove the existence of the
agreement. Clearly, petitioners could not file a lawsuit against
the second wife at that time because the second wife had not yet
died. Petitioners claimed that because of the advanced ages of
the drafter and the witness there was a substantial likelihood
that both would die by the time that petitioners could bring an
action against the second wife. Reversing the trial court's
denial of the petition for pre-suit depositions, the Appellate
Division held that because petitioners had clearly demonstrated
(1) that they expected to be parties to a future litigation, (2)
that they could not presently bring that litigation, and (3) that
there was a likelihood that the testimony they sought would be
unavailable by the time the petitioners were able to bring suit,
"the trial judge abused his discretion in barring the
perpetuation of the testimony of the only witnesses, at least two
of them elderly, with direct knowledge as to whether there were
in fact simultaneous reciprocal wills . . . ." Id. at 333-34.
Occasional criticism has been expressed about the
restrictive manner in which FRCP 27(a) and its state counterparts
have been applied. See Nicholas A. Kronfeld, The Preservation
and Discovery of Evidence Under Federal Rule of Civil Procedure
27,
78 Geo. L.J. 593, 621 (1990) (urging expanded use of pre-suit
depositions in cases requiring specific allegations of fault in
or contemporaneously with initial pleading and in which requisite
facts cannot be discovered without pre-suit depositions). A
North Dakota Supreme Court Justice has criticized the federal
decisions that preclude use of FRCP 27(a) to establish facts
necessary to frame a cause of action:
Viewed in the light of the historical
development of the Federal Rules of Civil
Procedure, the federal decisions refusing
discovery to aid in preparation of a
complaint seem anomalously hostile to the
basic concept of discovery. The unfavorable
federal decisions are wrong historically and
wrong textually. They should not be
followed."
[Harmon, supra, 460 N.W.
2d at 409 (Meschke,
J., dissenting).]
Similarly, a Minnesota Supreme Court Justice urged that that
state's pre-suit deposition rule be applied more flexibly to
facilitate compliance with Minnesota's affidavit of merit
statute:
The majority places too narrow and too
conservative an interpretation on this rule.
Such barren interpretations of rules promote
more uncertainty and litigation rather than
less. . . . If a chiropractor does not keep
notes or a medical history, taking his
deposition may be the only means of eliciting
the evidence necessary for consultation with
an outside expert.
[Sandmann, supra, 404 N.W.
2d at 803 (Yetka,
J., dissenting).]
B. Affidavit of Merit Statute
The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29,
on which Woodrow Hall relies in asserting the need for pre-suit
depositions in this and similar cases, applies to actions for
damages for personal injuries, wrongful death or property damage
resulting from malpractice or negligence by a licensed person
engaged in his profession or occupation. The term "licensed
person" includes accountants, architects, attorneys, dentists,
engineers, physicians, podiatrists, chiropractors, professional
nurses and health care facilities. See N.J.S.A. 2A:53A-26. The
statute mandates that in suits to which the statute applies the
plaintiff, within sixty days of the filing of an answer to the
complaint by each defendant, must provide that defendant with an
affidavit by a qualified licensed expert in the professional
field involved in the action certifying "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."
N.J.S.A. 2A:53A-27. For good cause, a court may grant one
extension of time for filing the affidavit, not to exceed sixty
days. Ibid. Failure to file an affidavit of merit concerning a
specific defendant constitutes a failure to state a cause of
action against that defendant. N.J.S.A. 2A:53A-29. No affidavit
of merit shall be required if the plaintiff files a sworn
statement certifying (1) that the plaintiff, by certified mail or
personal service, requested the defendant in question to deliver
medical records or information having a substantial bearing on
preparation of the affidavit and enclosed an authorization for
release of the records, and (2) that the defendant failed to
deliver the requested records or information notwithstanding the
passage of forty-five days since service of the request.
N.J.S.A. 2A:53A-28.
The legislative history pertinent to the Affidavit of Merit
Statute supports the conclusion that its purpose was to require
plaintiffs in malpractice cases to make a threshold showing that
their claim is meritorious, in order that meritless lawsuits
readily could be identified at an early stage of litigation.
See Peter Verniero, Chief Counsel to the Governor, Report to the
Governor on the Subject of Tort Reform (Sept. 13, 1994).
Our thorough review of the federal cases applying FRCP 27(a) and the state cases implementing state rules of practice based on FRCP 27(a) demonstrates that Rule 4:11-1 was not intended to
authorize pre-suit discovery for the sole purpose of assisting a
prospective plaintiff in acquiring facts necessary to frame a
complaint. The weight of authority throughout the country
compels the conclusion that the Law Division's pragmatic
application of Rule 4:11-1 in order to facilitate plaintiff's
compliance with the Affidavit of Merit Statute was inconsistent
with the prevailing understanding of the Rule's intended use.
That understanding reveals that a plaintiff's possible inability
to plead a cause of action, or to comply with the mandate of an
affidavit of merit statute, does not constitute an adequate
showing to justify the grant of a petition for pre-suit
discovery.
Nevertheless, despite the historical understanding of the
appropriate use of FRCP 27(a) and its state counterparts, we
cannot be indifferent to the concerns expressed by plaintiff's
counsel and by amicus curiae that the Affidavit of Merit Statute
occasionally will impose a burdensome mandate on plaintiffs with
meritorious malpractice claims and that judicial discretion to
authorize pre-suit discovery may be an essential mechanism to
guard against the dismissal of valid claims.
We note that the statute contains built-in safeguards to
prevent deliberate obstruction or frustration of the statutory
mandate. The time for filing the affidavit is calculated not
from the date the complaint is filed but from the date of each
defendant's answer. For good cause the sixty-day period within
which the affidavit must be filed can be extended by an
additional sixty days. Finally, if the plaintiff certifies that
a defendant refused for forty-five days to provide the plaintiff
with medical records or information substantially pertinent to
the required affidavit, the filing of the affidavit is not
required.
We also note that the content of the expert's affidavit is
summary in nature, and that the required statement of opinion
that the defendant's work or treatment fell outside acceptable
professional standards need not be accompanied by the same
detailed explanation and analysis that ordinarily would be
contained in an expert's report required to be furnished pursuant
to Rule 4:17-4(e). In that respect, the statute requires only
that the expert whose affidavit is filed certify that a
reasonable probability exists that the defendant in question
deviated from professional standards. If the affiant is also to
serve as an expert witness at trial, the detailed analysis
supporting that conclusion need not be provided until the
defendant demands production of expert reports.
Defendants contend that pre-trial discovery adequately
provides malpractice plaintiffs with the opportunity to obtain
information sufficient to enable a qualified expert to provide an
affidavit of merit within the statutory time frame. Plaintiff
contends that in unique cases, such as the one before us, even
expedited discovery may not uncover sufficient information about
a deviation from accepted standards to provide a basis for the
timely filing of an affidavit of merit. Moreover, plaintiff and
Amicus contend that dilatory tactics by defense counsel in
malpractice cases could frustrate attempts to conduct and
complete expedited discovery in time to comply with the statutory
mandate.
Although we assume that pre-suit discovery, as a mechanism
for enabling compliance with the Affidavit of Merit Statute, will
be essential only in exceptional circumstances, our Rules
Governing Civil Practice should be sufficiently flexible to avoid
the risk that even a few meritorious cases may be dismissed for
non-compliance with the Statute. Accordingly, we request the
Civil Practice Committee promptly to undertake an evaluation of
the practical implications of the Affidavit of Merit Statute in
order to determine whether, and if so under what terms and
conditions, trial courts should be authorized to permit pre-suit
discovery in order to prevent unjustified dismissals of
meritorious malpractice suits. We anticipate that the Civil
Practice Committee's report will include recommendations, if
appropriate, for amendment to the Rules Governing Civil Practice.
Pending receipt and implementation of the Civil Practice
Committee's recommendations, trial courts are authorized in
exceptional circumstances to grant petitions for pre-suit
discovery in malpractice cases if in their discretion they are
persuaded, notwithstanding the safeguards contained in the
statute, that such relief is essential in order to permit the
plaintiff to comply with the provisions of the Affidavit of Merit
Statute. Any such orders granting pre-suit discovery should be
issued pursuant to Rules 4:11-1 and 1:1-2. We anticipate that
such orders will be issued sparingly and only where necessary to
avoid unjust dismissals.
The legal issue that was the subject of the Court's grant of
certification having been rendered moot, we neither affirm nor
reverse the judgment of the Appellate Division. We vacate the
order staying the Law Division's order requiring filing of the
affidavits of merit in the pending action.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE STEIN's opinion.
NO. A-17 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN RE: PETITION OF WOODROW HALL
BY AND THROUGH HIS GUARDIAN AD
LITEM, SANDRA HALL
DECIDED February 5, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY