Douglas et al v. Sblm Architects et alREPLY BRIEF to Opposition to MotionD.N.J.June 9, 201718168.00160 (WFW) MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Timothy Ryan, Esq. Attorney I.D. No. 904482012 425 Eagle Rock Avenue, Suite 302 Roseland, NJ 07068 973-618-4100 973-618-0685 trryan@mdwcg.com ATTORNEYS FOR DEFENDANTS – DLB Associates Consulting Engineers IN THE DISTRICT COURT OF NEW JERSEY "Electronically Filed" PETER DOUGLAS and GINGER DOUGLAS, husband and wife, Plaintiffs v. SBLM ARCHITECTS, HUNTER ROBERTS CONSTRUCTION GROUP, CAMBRIDGE ARCHITECTURAL, MODERN ELECTRIC COMPANY,THE HOME DEPO, DLB ASSOCIATES CONSULTING ENGINEERS; ANDREW MAXX INSTALLATION a/t/a ANDREW MAXX CONSTRUCTION COMPANY, INC.; JOHN DOES; JANE DOES, ABC CORP. 1-5 AND XYZ CORP. 1-5 (fictitious names/entities); JOHN DOES, JANE DOES, ABC CORP 6-10 and XYZ CORP., 6-10 (fictitious names/entities), Defendants. CASE: 2:15-cv-06436-JMV-JBC REPLY BRIEF IN SUPPORT OF DLB CONSULTING ENGINEERS' MOTION TO DISMISS WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 12(b)(6) Of Counsel and on the Brief: On the Brief: William F. Waldron, Jr. Timothy Ryan Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 1 of 18 PageID: 817 i TABLE OF CONTENTS Table of Authorities ii I. LEGAL ARGUMENT 3 A. DLB IS A LICENSED ENGINEER PURSUANT TO N.J.S.A. § 2A:53A-26 3 B. INCOMPLETE DISCOVERY 6 C. THE PLAINTIFF REQUIRES EXPERT TESTIMONY 9 D. THE PLAINTIFF HAS NOT SATISFIED ANY EXCEPTIONS TO N.J.S.A. § 2A:53A-27 10 II. CONCLUSION 13 Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 2 of 18 PageID: 818 ii TABLE OF AUTHORITIES Cases Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998)…………………………… 8 Aster v. Shoreline Behavioral Health, 788 A.2d 821 (App. Div. 2002)………….. 7,8 Brach, Eichler, Rosenberg, Sigler, Bernstein, Hammer & Gladstone, P.L. v. Ezekwo, 345 N.J. Super. 1 (App. Div. 2001)………………………………. 11 Couri v. Gardner, 172 N.J. 328 (2002)…………………………………………… 3,4 Davis v. Pine Acres Convalescent Ctr., 2015 N.J. Super. Unpub. LEXIS 2380… 4,10 Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003)………………. 10,11,13 Fink v. Ritner, 318 F. Supp. 2d 225 (D.N.J. 2004)………………………………. 5 Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001)……………………………. 10,11 Guzman v. Jersey City Medical Center, 356 N.J. Super. 37 (App. Div. 2002)….. 8 Hill Intern, Inc. v. Atlantic City Bd. Of Educ., 438 N.J. Super. 562 (App. Div. 2014)…………………………………………………………………..… 12 Hubbard v. Reed, 331 N.J. Super. 283 (App. Div. 2000)…………………………….. 10 Martin v. Perinni Corp., 37 F. Supp. 2d 362 (D.N.J. 1999)……………………… 5 Murphy v. New Road Const., 378 N.J. Super. 238 (App. Div. 2005)…………… 5,6 Nuveen Mun. Trust v. Withumsmith Brown, P.C., 692 F.3d 283 (3rd Cir. 2012)… 10,11,12 Palanaque v. Lambert-Wooley, 327 N.J. Super. 158 (App. Div. 2000)……………. 11 Paragon Contractors, Inc. v. Peachtree Condominium Ass'n, 202 N.J. 415 (2010)………………………………………………………………………….. 12 Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 3 of 18 PageID: 819 iii Sirianni v. Network Management, 2012 N.J. Super. Unpub. LEXIS 1882 (App. Div. 2012)…………………………………………………..………………….. 8,9,10 Statutes Fed. R. Civ. P. 12(b)(6)…………………………………………………………… 13 N.J.S.A. § 2A:53A-26…………………………………………………………….. 3,6,8,12 N.J.S.A. § 2A:53A-27…………………………………………………………….. 3,9,10 N.J.S.A. § 2A:53A-28……………………………………………………………… 6,7,8,9 N.J.S.A. § 2A:53A-29……………………………………………………………… 8 N.J.R.E 702………………………………………………………………………… 9 Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 4 of 18 PageID: 820 1 RESPONSE TO PLAINTIFF'S COUNTERSTATEMENT OF FACTS 1. Admitted that a Joint Discovery Plan was entered into by the original defendants, and that the plan was filed on November 25, 2015, nearly a year before DLB filed an Answer in this matter. DLB was not an original defendant, and thus was not a party to nor a signator of the Joint Discovery Plan. 2. Admitted. 3. Admitted that the plaintiff sent an affidavit of merit as against co-defendant, SBLM Architects, prepared and affirmed to by an architect, after DLB had filed the instant motion. The plaintiff did not file with the affidavit of merit with the Court. 4. Denied as this is a legal conclusion and not a statement of fact, and thus should be disregarded by the Court. As this is not a statement of fact, a response is not required. 5. Denied as this is a legal conclusion and not a statement of fact, and thus a response is not required. Notwithstanding this denial and without waiving it thereto, DLB is a professional engineering firm and was retained by the Architect of Record for the project in question, SBLM Architects. Thus it is denied that the professional engineering services rendered by DLB and the professional architectural services rendered by SBLM were duplicative in any way. 6. Admitted. 7. Denied as this is a legal conclusion relating to the Federal Rules of Civil Procedure and not a statement of fact, and thus should be disregarded by the Court. As this is not a statement of fact, a response is not required. 8. Admitted. 9. Admitted, though DLB served its Rule 26 disclosures on March 3, 2017, consisting of the entirety of the project file of this defendant which included 1,968 pages of documents and records relating to the project in question. Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 5 of 18 PageID: 821 2 10. Denied as this is a legal conclusion relating to the Federal Rules of Civil Procedure and not a statement of fact, and thus should be disregarded by the Court. As this is not a statement of fact, a response is not required. 11. Admitted. 12. Admitted that a Case Management Letter was entered into by the Court, denied as to all else as unsupported and/or irrelevant to the instant motion. Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 6 of 18 PageID: 822 3 I. LEGAL ARGUMENT A. DLB is a Licensed Engineer Pursuant to N.J.S.A. § 2A:53A-26, et seq. DLB is a licensed professional engineer pursuant to N.J.S.A. § 2A:53A-27 et seq. and was retained by co-defendant and Architect of Record, SBLM Architects, as its subconsultant to render professional engineering and design services relating to the project in question. Specifically, DLB submitted a proposal for HVAC, Electrical and Plumbing (MEP) Engineering services to SBLM relating to the project in question. DLB Motion, Exhibit B. Accordingly, any and all claims which arise out of its rendering of HVAC, electrical, and plumbing engineering services on the project in question are subject to the statutory requirements of N.J.S.A. § 2A:53A-27 et seq. Any argument by the plaintiff that SBLM and DLB had overlapping duties is not only entirely inaccurate, but irrelevant to the instant motion based on the Affidavit of Merit Statute. The plaintiff's argument that DLB engaged in certain services that are "construction-related" and thus not governed by the Affidavit of Merit Statute is baseless. DLB was retained by SBLM to serve as the MEP engineer on the project in question, and render professional engineering services related to same. DLB Motion, Exhibit B. The plaintiff does not dispute that DLB is a licensed engineering firm – governed by the Affidavit of Merit Statute – and was retained to act as a professional engineer on the project in question. DLB's contract with SBLM is clear in this regard. The untenable position of the plaintiff does not alter the analysis required pursuant to the Affidavit of Merit Statute, that the Court must look to legal inquiry of the plaintiff's claims and not the label. Here, the plaintiff msut prove that DLB, as a professional engineer, deviated from the standard of care applicable to professional engineers in rendering all engineering services which form its scope of work. The New Jersey Supreme Court's decision in Couri v. Gardner, 172 N.J. 328 (2002), squarely supports such a position. The Supreme Court held that when deciding whether an affidavit of merit is required, the Court should focus on the nature of the legal inquiry rather than on the label placed on the Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 7 of 18 PageID: 823 4 action. Couri, supra. "Rather than focusing on whether the claim is denominated as tort or contract… Courts should determine if the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession." Id. The plaintiff misguidedly attempts to argue that the form of certain, limited language within its Second Amended Complaint weighs more heavily than the legal basis for such allegations, and thus removes these allegations from the governance of the Affidavit of Merit Statute. As such, the plaintiff is attempting to bypass its statutory obligations under the Affidavit of Merit Statute by claiming the statute is inapplicable, without providing any factual allegations or evidence supporting an assertion that any negligence by DLB does not arise out of its rendering of professional engineering services on the project in question. In Davis v. Pine Acres Convalescent Ctr., 2015 N.J. Super. Unpub. LEXIS 2380, the Appellate Division rejected a plaintiff's claim that because it only alleged ordinary negligence against a licensed professional the Affidavit of Merit Statute did not apply. After the plaintiff failed to serve an affidavit of merit, she argued that an affidavit of merit was not required because she was only alleging ordinary negligence against the professional defendant. Id. The Appellate Division rejected this argument holding that it could not discern an ordinary negligence cause of action from the record, even after an indulgent reading of the complaint. Id. In this matter, DLB's proposal and contract with SBLM was for the rendering of professional engineering services on the project in question. DLB's Motion, Exhibit B. The plaintiff does not present any specific facts to support any argument or claims that DLB was acting outside of its scope as an engineer, or that DLB was acting without utilizing specialized engineering knowledge. For these reasons, the label the plaintiff places on its claims are irrelevant, and must be disregarded. Such a position ignores the undisputed fact that DLB is a licensed engineering firm and is a licensed engineer for purposes of the Affidavit of Merit Statute. Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 8 of 18 PageID: 824 5 The New Jersey District Court's ruling in Martin v. Perinni Corp., 37 F. Supp.2d 362 (D.N.J. 1999) holds that despite any involvement by non-licensed employees, an affidavit of merit as to the licensed company is still required. In Martin, the District Court rejected a plaintiff's argument that the Affidavit of Merit Statute only governs alleged acts of negligence committed by licensed persons and does not apply to cases involving the negligence of unlicensed employees of those persons. Id. The District Court further stated that due to the doctrine of respondeat superior, an affidavit must be provided where a negligent act committed by an unlicensed person in the course of his employment may be imputed to a licensed person. Id. The same rationale applies in this matter wherein DLB is a licensed engineering firm and was retained to render professional engineering services. Accordingly, the plaintiff's argument that DLB may not be covered by the Affidavit of Merit Statute due to its employ or usage of non-licensed individuals is meritless. The plaintiff's citation of Murphy v. New Road Const., 378 N.J. Super. 238 (App. Div. 2005) and Fink v. Ritner, 318 F. Supp. 2d 225 (D.N.J. 2004), in support of its claim that certain of its allegations against DLB are not governed by the Affidavit of Merit Statute is misapplied. In Fink, the plaintiff asserted fraud claims against the professional defendants. Fink, supra. There is no doubt that fraud claims require additional analysis and do not fall under the Affidavit of Merit Statute. The plaintiff in this matter has not asserted fraud claims against DLB, and thus the Court's ruling in Fink is inapplicable. In Murphy, the professional defendant had a dual role on the project, one in a professional design capacity and one as roofing construction consultant. Id. The Court denied the professional defendant's dispositive motion so as the parties could further explore the professional defendant's dual roles in the project, and better determine which of the two roles caused the plaintiff's injuries, if at all. Id. However, the plaintiff's reliance on this opinion is inapplicable to the instant matter. In Murphy, the professional defendant clearly had dual roles on the project, one professionally-based and the other not, which may have caused the plaintiff's injuries, thus prompting the Court to permit additional time to ascertain which Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 9 of 18 PageID: 825 6 of the roles led to the injuries. Id. Importantly, the Murphy Court definitively held that any claims for professional negligence against the architectural defendant were denied with prejudice due to the plaintiff's failure to serve an affidavit of merit. Id. Furthermore, in Murphy, the architectural defendant, in its non-professional role, sent retired roofers to perform duties directly related to the construction project. Id. In the instant matter, DLB did not operate under a dual-capacity role whereby its duties and obligations were pursuant to two separate contracts. Instead, DLB entered into a single agreement with SBLM to act as a professional engineering firm rendering professional engineering services utilizing specialized engineering knowledge and experience in large building projects. This is not a case wherein the plaintiff requires further discovery so as determine which of DLB's roles caused the plaintiff's alleged damages, as is the case in Murphy. B. Incomplete Discovery The instant motion to dismiss must respectfully be granted as the plaintiff has had ample time and opportunity to satisfy its requirements under the Affidavit of Merit Statute. The plaintiff admits that it received nearly 2,000 pages of documents encompassing the entirety of this defendant's project file pursuant to DLB's Rule 26 disclosures on March 3, 2017. The affidavit of merit was due at the latest on March 16, 2017. The plaintiff does not dispute that it received those documents nearly two months before the instant motion to dismiss was filed and prior to the expiration of the time to file and serve an affidavit of merit or a sworn statement in lieu of an affidavit of merit. The plaintiff was in possession of all relevant documents it would need in the preparation of an affidavit of merit. The plaintiff also admits that it had been in possession of all documents produced by SBLM, the Architect of Record, which would have included the professional engineering services rendered by DLB. Within this time, the plaintiff did not serve or file an affidavit of merit as to DLB. Moreover, the plaintiff never at any time filed or served a sworn statement in lieu of an affidavit of merit pursuant to Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 10 of 18 PageID: 826 7 N.J.S.A. § 2A:53A-28. Plainly, despite being in possession of necessary construction documents – or having access thereto by way of the City of Jersey City Building Department – the plaintiff never satisfied a single provision of the Affidavit of Merit Statute as to DLB. The plaintiff's arguments in opposition regarding the status of discovery are insufficient and invalid as reasons for denial of the instant motion to dismiss. In an attempt to shift the burden of compliance with N.J.S.A. § 2A:53A-26 et seq. onto DLB, the plaintiff argues that DLB failed to produce discovery responses which are necessary and have substantial bearing on the plaintiff's preparation of an affidavit of merit. The plaintiff cites Aster v. Shoreline Behavioral Health in support of its argument. Importantly, however, the facts and circumstances of the instant matter are distinguishable from those in Aster, and thus the Court's ruling in Aster is inapplicable. In Aster, the Court ruled that the defendant's intentional unwillingness to produce medical records within its possession and its failure to set forth why the records did not have a substantial bearing on the plaintiff's preparation of the affidavit, permitted the Court to presume that the records had a substantial bearing on the preparation of the affidavit. Aster, 788 A.2d at 826-827. Accordingly, the Court did not hold that a defendant's lack of response to a discovery demand eliminates the plaintiff's obligations under the statute and automatically entitles the plaintiff to file a statement in lieu of an affidavit outside of the time prescribed. Rather, the Court's holding focused on the fact that the requested documents had a "substantial bearing" on the plaintiff's ability to prepare an affidavit of merit, and without those documents the plaintiff could in no way prepare a sufficient affidavit. Id. The plaintiff's assert that the construction documents received by the plaintiff from DLB and the other co-defendants are apparently so voluminous that it requires DLB's interrogatory answers to help narrow down the pertinent documents. The plaintiff's argument that it is in possession of too many documents to prepare an affidavit or sworn statement is strikingly novel, but is also completely at odds with the facts in Aster whereby the plaintiff was denied any documents or records. The plaintiff's Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 11 of 18 PageID: 827 8 inability or unwillingness to review the documents produced by all parties, including DLB, is neither sufficient for satisfying the Affidavit of Merit Statute nor constitutes "substantial compliance". Furthermore, the plaintiff's interrogatories are generic in nature, and seek information that is either objectionable on the grounds that it calls for a legal conclusion and expert testimony or seeks information that can be determined through review of the project file previously produced by DLB. Plaintiff's Opposition, Exhibit 4. N.J.S.A. § 2A:53A-28 permits a plaintiff to file a sworn statement in lieu of an affidavit of merit if the plaintiff is unable to obtain certain requested documents within forty-five (45) days of the discovery demand. Notably, however, is the statute's caveat that the documents sought must have a substantial bearing on the plaintiff's preparation of the affidavit, and that the records or information have been specifically identified in writing. Id. In satisfying the prerequisites for N.J.S.A. § 2A:53A-28 and to avoid the necessity of serving an affidavit of merit, the plaintiff cannot request documents and information that it does not reasonably believe is necessary for the preparation of the affidavit. Guzman v. Jersey City Medical Center, 356 N.J.Super. 37 (App. Div. 2002). Notwithstanding, the sworn statement in lieu of must still be served within the 120 day deadline prescribed by N.J.S.A. § 2A:53A-26 et seq.; see also N.J.S.A. § 2A:53A-29. The plaintiff has not filed or served a sworn statement in lieu of an affidavit of merit. Furthermore, the plaintiff asserts that it is unable to prepare a sworn statement in lieu of an affidavit of merit without DLB's interrogatory responses (which are not client documents, but litigation responses). N.J.S.A. § 2A:53A-28 provides a very low threshold option for a plaintiff who claims to have not received the documents needed to prepare an affidavit of merit. Importantly, here the plaintiff does not even assert that submission of a sworn statement was ever contemplated by the plaintiff. Moreover, the plaintiff's argument that a dismissal at this time would be premature as discovery is ongoing is baseless and without merit. Such an exception to the timeframes set forth in N.J.S.A. § Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 12 of 18 PageID: 828 9 2A:53A-27 et seq. does not exist. The Affidavit of Merit Statute and the relevant New Jersey case law set forth explicit exceptions to the deadlines imposed by the statute, of which insufficient discovery is not one of them. Rather, the New Jersey legislature enacted N.J.S.A. § 2A:53A-28, permitting a plaintiff to file a certification in lieu of an affidavit of merit certifying that the plaintiff is not in possession of sufficient documentation or information so as to appropriately serve a truthful affidavit of merit. N.J.S.A. § 2A:53A-28. In Sirianni, supra, the Appellate Division rejected the plaintiff's argument that it was unable to prepare an affidavit of merit because it did not have sufficient discovery to make a determination regarding the professional defendant's license status and its involvement in the project in question. Additionally, the Davis Court, supra, held that "[w]ere the plaintiff in doubt regarding the need for an affidavit of merit, a request for a Ferreira conference would have resolved any question and would have allowed the parties and the trial judge to define the contours of the matter." Davis, 2015 N.J. Super. at 14 supra. C. The Plaintiff Requires Expert Testimony The plaintiff's allegations against the moving defendant clearly require the plaintiff to present expert testimony in support. See N.J.R.E. 702. The plaintiff's allegations that DLB negligently designed the building, or components of the building, which created a dangerous condition and caused injuries to the plaintiff are not within the knowledge of a lay juror. While the plaintiff argues that the theory is simple – that the plaintiff was improperly caused to come in contact with a light fixture resulting in electrocution – determining the allocation of liability amongst all the defendants, if any, and between the plaintiff requires expert testimony. The common knowledge exception to the Affidavit of Merit requirement is to be narrowly construed. Hubbard v. Reed, 168 N.J. 387 (2001). To determine the liability allocated to each defendant, if any, requires an expert to explain how the defendants failed to perform the contractual obligations and Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 13 of 18 PageID: 829 10 duties contained within the various commercial contracts. The instant matter is not as simple as the fact pattern presented in Hubbard. In Hubbard, the professional defendant was a single dentist who extracted the wrong tooth from the plaintiff. Hubbard, supra. The fact finder in Hubbard did not have to parse through multiple defendants performing services pursuant to commercial construction contracts. Commercial contracts for both building and design services and the interpretation thereto are outside the common knowledge and experience of lay jurors. The skill and judgment exercised by an MEP engineer are not within the knowledge of the average juror. Therefore, proving a prima facie case against DLB requires expert testimony to identify the professional standard of care appropriate to DLB as well as an expert opinion as to DLB's alleged breach of said professional standard of care. The facts and legal issues of this case are not so straightforward as to eliminate the need for expert testimony, nor are the allegations of negligence against DLB so egregious or extreme so as to not require expert testimony. The facts and legal issues of the present matter are not within the purview of a layperson so as to satisfy the common knowledge exception. D. The Plaintiff Has Not Satisfied any Exceptions to N.J.S.A. § 2A:53A-27 New Jersey case law has set forth a five-part test for determining whether a plaintiff has satisfied the "substantial compliance" exception to the Affidavit of Merit Statute. In Nuveen Mun. Trust. v. Withumsmith Brown, P.C. 692 F.3d 283 (3rd Cir. 2012), the five-part test as established by the New Jersey Supreme requires the plaintiff to prove the following: (1) The lack of prejudice to the defending party; (2) A series of steps taken to comply with the statute; (3) A general compliance with the purpose of the statute; (4) A reasonable notice of a petitioner's claim; (5) Reasonable explanation why there was not a strict compliance with the statute. Id. citing Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001). Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 14 of 18 PageID: 830 11 In Galik, supra, the New Jersey Supreme Court noted that establishing the elements of substantial compliance "is a heavy burden". Galik at 1152; see also Nuveen, supra. In the instant matter, the plaintiff has not satisfied the five elements of the test for substantial compliance. Principally, DLB would be prejudiced by being forced to defend claims which are not statutorily permitted, and incur defense costs against claims that are not permitted. The plaintiff has not taken any steps whatsoever to actually satisfy the statute as to DLB. New Jersey case law "discussing substantial compliance reveals that the 'series of steps' element requires some effort by the plaintiff to provide the defendant with a statement of a professional discussing the merits of the action by the expiration of the 120-day period." Nuveen, supra, at 307. An example of substantial compliance includes a plaintiff who obtained an expert report but failed to provide the report to the licensed defendant. Palanque v. Lambert-Woolley, 168 N.J. 398 (N.J. 2001). The plaintiff in this matter has not taken any action that could be deemed a "series of steps" sufficient to satisfy this prong of the test. Moreover, the plaintiff cannot satisfy the remaining prongs of the substantial compliance exception. "[T]he purpose of the [Affidavit of Merit] Statute is to identify frivolous malpractice actions by requiring independent verification of the validity of the claims. Regardless of how detailed a complaint is, a pleading is self-serving and cannot be substituted for this independent verification." Nuveen, supra, at 308. The plaintiff has taken no definitive actions to comply with the statute. The plaintiff's affidavit of merit as to SBLM is not sufficient to satisfy the Affidavit of Merit Statute as against DLB. N.J.S.A. § 2A:53A-27 requires that a plaintiff provide "each defendant with an affidavit of an appropriately licensed person…" (Emphasis added). The statute does not permit a plaintiff to file a single affidavit of merit addressing all of the defendants collectively, as the plaintiff is required to prove a prima facie case against each defendant separately. Furthermore, a plaintiff requires an affidavit of merit from an affiant who is licensed in the same profession as the defendant. As SBLM is an architectural firm and the plaintiff's affidavit of merit was prepared by Thomas Pienciak, AIA, an Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 15 of 18 PageID: 831 12 architect, the affidavit of merit was not prepared by an engineer and thus is not valid as against DLB. See Hill Intern., Inc. v. Atlantic City Bd. of Educ., 438 N.J. Super. 562 (App. Div. 2014). Additionally, it is unclear where the plaintiff derives support for its assertion that the SBLM affidavit of merit provides "reasonable notification" to DLB, and thus constitutes "substantial compliance" under the Affidavit of Merit Statute. Within Section III(D)(iii), the plaintiff asserts that the filing of the SBLM affidavit of merit provides "reasonable notification to defendant, DLB". The plaintiff does not cite any case law or statutory authority to support such a position. The Affidavit of Merit Statute imposes obligations on plaintiffs when bringing claims of negligence or malpractice against licensed professionals. No where within N.J.S.A. § 2A:53A-26, et seq., does it indicate that the legislative intent of the statute is to be put licensed defendants on notice of claims against – a complaint will do just that. The Affidavit of Merit Statute places affirmative obligations on plaintiffs that must be satisfied before being permitted to maintain claims against licensed defendants. Based upon the foregoing reasons, the defendant, DLB Associates Consulting Engineers, P.C., respectfully requests the instant motion to dismiss be granted in its entirety. Regarding the "extraordinary circumstances" exception, the plaintiff's argument that DLB failed to abide by the Joint Discovery Plan and that lack of a Ferreira conference are wholly baseless. In Paragon Contractors, Inc. v. Peachtree Condominium Ass'n, 202 N.J. 415 (2010), the New Jersey Supreme Court clarified that the absence of a Ferreira conference will not preclude dismissal of a complaint pursuant to N.J.S.A. § 2A:53A-27. Additionally, the Ferreira decision does not impose any duty on a defendant to notify a plaintiff that an affidavit of merit is required. Nuveen, supra, at 310; see also Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). Instead, Ferreira "establishes that the state court must inquire about the status of the affidavit if it has not been filed, not that the defendant must notify the plaintiff of the requirement." Id. Thus, pursuant to New Jersey case law, the fact that the plaintiff slept on its rights and failed to file and serve an affidavit of merit does not constitute extraordinary Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 16 of 18 PageID: 832 13 circumstances. The lack of a Ferreira conference is not sufficient to put this matter into the "extraordinary circumstances" exception of the Affidavit of Merit Statute. Notably, DLB was not a defendant at the time this Joint Discovery Plan was agreed to, and thus is not a signator thereto. Additionally, as written, Paragraph 17 of the Joint Discovery Plan does not place any affirmative obligations on any defendant regarding affidavits of merit. Rather, it states that the plaintiff will request an additional conference. Thus, without any statutory duty or without a duty agreed to by the parties, DLB was not and is not obligated to notify the plaintiff that it requires an affidavit of merit or that the time do so was soon expiring. Simply, the plaintiff slept on its rights and failed to satisfy the Affidavit of Merit Statute. Based upon the foregoing reasons, the defendant, DLB Associates Consulting Engineers, P.C., respectfully requests the instant motion to dismiss be granted in its entirety. IV. CONCLUSION For the foregoing reasons, the defendant, DLB Associates Consulting Engineers, respectfully requests that its instant Motion to Dismiss be granted and an Order entered thereby dismissing the Second Amended Complaint in its entirety as against the defendant, DLB Associates Consulting Engineers, with prejudice for failure to state a cause of action pursuant to N.J.S.A. § 2A:53A-27, et seq. and Fed. R. Civ. P. 12(b)(6). Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorneys for Defendant, DLB Associates Consulting Engineers By: Timothy Ryan /s/ TIMOTHY RYAN DATED: June 9, 2017 Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 17 of 18 PageID: 833 14 Case 2:15-cv-06436-JMV-JBC Document 47 Filed 06/09/17 Page 18 of 18 PageID: 834 No Shepard’s Signal™ As of: June 9, 2017 8:24 PM Z Davis v. Pine Acres Convalescent Ctr. Superior Court of New Jersey, Appellate Division September 21, 2015, Argued; October 19, 2015, Decided DOCKET NO. A-2148-14T2 Reporter 2015 N.J. Super. Unpub. LEXIS 2380 *; 2015 WL 6113143 VIOLA DAVIS AND STANFORD DAVIS, Plaintiffs- Respondents, v. PINE ACRES CONVALESCENT CENTER AND HALLMARK HEALTH CARE, LLC, Defendants-Appellants, and MADISON NEW JERSEY PROPERTY, LLC, Defendant. Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS. Prior History: [*1] On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2270-14. Core Terms affidavit of merit, common knowledge, licensed, ordinary negligence, expert testimony, requirements, allegations, professional negligence, cause of action, quotation marks, injuries Counsel: Eugene M. Purcell argued the cause for appellants (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys; Mr. Purcell, of counsel and on the brief; Alyssa K. Weinstein, on the brief). Randall Bass argued the cause for respondents (Freeman & Bass, P.C., attorneys; Mr. Bass, on the brief). Judges: Before Judges Lihotz and Nugent. Opinion PER CURIAM Defendant Hallmark Health Care, LLC is a licensed healthcare facility, as defined in N.J.S.A. 2A:53A-26(j), and the owner of defendant Pine Acres Convalescent Center (collectively defendant). Defendant moved for summary judgment dismissal of this negligence action because plaintiff Viola Davis1 failed to comply with the requirements of the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29. The November 21, 2014 Law Division order partially granted defendant's motion, dismissing any claim or "theory of a case that requires expert testimony"; however, plaintiff was permitted to proceed with "a common knowledge case." On our leave granted, we limited review "to address whether an Affidavit of Merit is required under these facts." Following our consideration of the arguments presented, in light of the record, including the motion judge's amplification of his oral opinion, R. 2:5-1(b), and applicable law, we reverse and remand for entry of an order dismissing plaintiff's action. These facts are gleaned from the record. Following her hospital discharge in March 2013, plaintiff entered defendant's rehabilitation facility to undergo physical therapy. On April 8, 2013, Stanford Davis visited plaintiff and found her unable to speak. Upon examination by defendant's staff, plaintiff was hospitalized. The underlying complaint, as amended, alleged while plaintiff was a patient in defendant's facility, "defendant[] did maintain, operate, control, inspect and use [its] premises in a careless and negligent manner, in a dangerous and hazardous manner and due 1 Also a party plaintiff is Viola Davis' husband Stanford Davis, who filed per quod claims and represented his wife's estate following her death on April 23, 2014. In our [*2] opinion, we refer to Viola Davis as plaintiff. Case 2:15-cv-06436-JMV-JBC Document 47-1 Filed 06/09/17 Page 1 of 5 PageID: 835 Page 2 of 5 to the negligence . . . plaintiff . . . sustained severe injuries on April 8, 2013." No additional certifications, affidavits, documents or admissible evidence elaborate on an alleged act or omission, the nature of causation, [*3] or the explicit injuries plaintiff suffered. Despite defendant's demand for an affidavit of merit, plaintiff took no action.2 Following expiration of 120 days, but before the discovery end date,3 defendant moved for summary judgment, asserting it was a licensed facility; therefore, any alleged claim of negligence must be supported by an affidavit of merit. In opposition, plaintiff presented documents verifying plaintiff's death and sought the appointment of an administrator ad prosequendum. During oral argument, discussion centered on a theory of plaintiff's [*4] case and counsel suggested plaintiff fell from her bed while in defendant's facility because the guard rails were not fully raised, suffering a fractured wrist or arm.4 Plaintiff maintained no expert was necessary to prove negligence as the matter involved common knowledge, thus obviating the need for an affidavit of merit. Defendant countered by referencing an investigation summary by its insurance carrier, showing plaintiff's hospital admission was on April 15, 2013 to determine whether she suffered a stroke. X-rays taken in the hospital suggested a possible elbow fracture; however, plaintiff denied feeling pain, falling, or suffering any injury. Relying on plaintiff's arguments regarding the possible nature of the action, the judge agreed plaintiff's lapse in failing to provide an affidavit of merit precluded a professional negligence action, but would not bar a 2 An initial request for an affidavit of merit was made seven months before plaintiff initiated suit, in a September 13, 2013 letter by Patricia Meany, a claims specialist for defendant's liability carrier, denying plaintiff's insurance claim. Also in its answer to the amended complaint, defendant affirmatively pleaded plaintiff's failure to submit a timely affidavit of merit precluded relief. 3 Plaintiff apparently did not serve formal discovery requests upon defendant, nor did she request defendant's case file or records regarding plaintiff's rehabilitative stay. The record does not include hospital records supporting her alleged injury. 4 The record makes clear plaintiff's death was unrelated to this possible injury. basic fall claim that could proceed without expert testimony. Defendant appealed. Whether plaintiff's complaint is exempt from the affidavit of merit requirement based on the common knowledge doctrine is a legal issue subject to our de novo review. [*5] See Triarsi v. BSC Grp. Servs., L.L.C., 422 N.J. Super. 104, 113, 27 A.3d 202 (App. Div. 2011). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not established to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995). The affidavit of merit statute requires a plaintiff who alleges professional negligence to provide an expert's affidavit stating the action has merit. N.J.S.A. 2A:53A- 27. The statute is consistent with the general requirement that expert testimony is required to establish the standard of care, which is an essential element of a plaintiff's professional negligence claim. Specifically, the statute states in pertinent part: 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 [*6] 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. [N.J.S.A. 2A:53A-27.] Generally, "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 v. Reed, 168 N.J. 387, 394, 774 A.2d 495 (2001) (internal quotation marks and citation omitted). The underlying rationale of the statute is "to 2015 N.J. Super. Unpub. LEXIS 2380, *2 Case 2:15-cv-06436-JMV-JBC Document 47-1 Filed 06/09/17 Page 2 of 5 PageID: 836 Page 3 of 5 require plaintiffs . . . to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of the litigation." Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 421, 997 A.2d 982 (2010) (internal quotation marks and citation omitted). Expert testimony about an alleged deviation from a reasonable standard of care is required whenever a licensed person exercised professional responsibilities and judgment before acting or failing to act. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 542 n.4, 788 A.2d 821 (App. Div. 2002). A plaintiff's failure to provide an affidavit of merit within the prescribed statutory period generally requires dismissal of the underlying action with prejudice, as the plaintiff is deemed to have failed to state a cause of action. N.J.S.A. 2A:53A-29; Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247, 708 A.2d 401 (1998) (requiring dismissal [*7] with prejudice for failure to comply with the affidavit of merit statute). The procedural exceptions to timely compliance are inapplicable to the facts at issue. See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151, 836 A.2d 779 (2003) ("[T]wo equitable remedies . . . temper the draconian results of an inflexible application of the statute. A complaint will not be dismissed if the plaintiff can show . . . he has substantially complied with the statute. Moreover, a complaint will be dismissed without prejudice if . . . extraordinary circumstances . . . explain noncompliance.") (citations omitted). Another circumstance where an affidavit of merit is not required results when the matter is guided by the common knowledge doctrine. The common knowledge doctrine applies in circumstances "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.'" Hubbard, supra, 168 N.J. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469, 734 A.2d 778 (1999)). Also, an affidavit of merit is unnecessary in actions advanced against a licensed person claiming ordinary negligence, not malpractice. Palanque v. Lambert-Woolley, 168 N.J. 398, 406, 774 A.2d 501 (2001). Where "defendant's careless acts are quite obvious, a plaintiff need not present expert testimony at trial to [*8] establish the standard of care." Ibid. Determining whether a matter alleges professional negligence, ordinary negligence, or otherwise fits within the common knowledge exception, demands scrutiny of the legal claims alleged. Couri v. Gardner, 173 N.J. 328, 340-41, 801 A.2d 1134 (2002) ("It is not the label placed on the action that is pivotal but the nature of the legal inquiry."). "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." Hubbard, supra, 168 N.J. at 395. Accordingly, a judge must consider "whether a claim's underlying factual allegations require proof of a deviation from a professional standard of care," or ordinary negligence, as only the former claims are subject to the statutory requirements. Couri, supra, 173 N.J. at 341. Our Supreme Court offers this guidance: There are three elements to consider when analyzing whether the statute applies to a particular claim: (1) whether the action is for damages for personal injuries, wrongful death or property damage (nature of injury); (2) whether the action is for malpractice or negligence (cause of action); and (3) whether the care, skill or knowledge exercised [*9] or exhibited in the treatment, practice or work that is the subject of the complaint [] fell outside acceptable professional or occupation standards of treatment practices (standard of care). [Id. at 334 (alteration in original) (internal citation and quotation marks omitted).] Common knowledge cases involve obvious or extreme error. For example, the defendant dentist in Hubbard pulled the wrong tooth, Hubbard, supra, 168 N.J. at 396, and the defendant doctor in Palanque performed unnecessary surgery because he read the wrong patient's lab report, Palanque, supra, 168 N.J. at 407-08. "The basic postulate for application of the doctrine therefore is that the issue of negligence is not related to technical matters peculiarly within the knowledge of medical or dental practitioners." Estate of Chin, supra, 160 N.J. at 470 (internal citation and quotation marks omitted). The nature of the negligence does not trigger the primary goal of requiring an affidavit of merit, "that is, to weed 2015 N.J. Super. Unpub. LEXIS 2380, *6 Case 2:15-cv-06436-JMV-JBC Document 47-1 Filed 06/09/17 Page 3 of 5 PageID: 837 Page 4 of 5 out meritless malpractice lawsuits at an early stage and to prevent frivolous litigation." Palanque, supra, 168 N.J. at 406. See also Bender v. Walgreen Eastern Co., Inc., 399 N.J. Super. 584, 590-91, 945 A.2d 120 (App. Div. 2008) (finding pharmacist filling prescription with wrong drug was subject to "common knowledge" exception"); Jones v. Stess, 111 N.J. Super. 283, 289-90, 268 A.2d 292 (App. Div. 1970) (finding common knowledge exception applicable where podiatrist dropped instrument on patient's leg resulting [*10] in amputation). In an effort to avoid unnecessary delay and resolve disputes between the parties regarding the need to provide an affidavit of merit, and to avoid dismissal of meritorious claims brought in good faith, Ferreira, supra, 178 N.J. at 150-51, the court has "developed a prophylactic measure to encourage the timely filing of affidavits." Paragon, supra, 202 N.J. at 423 (citing Ferreira, supra, 178 N.J. at 154-55). A Ferreira Conference is "an accelerated case management conference [to] be held within ninety days of the service of an answer" in all professional negligence cases 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 - to shepherd legitimate claims expeditiously to trial[.]" Id. at 423 (alteration in original) (internal citation and quotation marks omitted). In this way, any factual question regarding a defendant's status as related to the allegations of negligence in a plaintiff's complaint can be resolved. Murphy v. New Road Const., 378 N.J. Super. 238, 241-42, 875 A.2d 955 (App. Div.), certif. denied, 185 N.J. 391, 886 A.2d 661 (2005). In the absence of the court initiating a Ferreira conference, plaintiff's counsel should seek its scheduling. Otherwise, "[b]y not producing an affidavit of merit, plaintiff may be seen to have placed all his eggs in the ordinary [*11] negligence basket without alleging professional negligence as well." Murphy, supra, 378 N.J. Super. at 243. Although a plaintiff aware of the affidavit of merit requirements is free to conclude an affidavit of merit is not necessary, if that conclusion is incorrect and the requisite time period for filing has passed, the complaint must be dismissed. Paragon, supra, 202 N.J. at 423 (stating "attorney's inadvertence in failing to timely file an affidavit will generally result in dismissal with prejudice") (citation omitted); Triarsi, supra, 422 N.J. Super. at 121. Plaintiff insists this is an ordinary negligence case and has styled the complaint as a premises liability action, suggesting plaintiff fell in defendant's facility. However, evidential material describing the circumstances of a fall, the nature of defendant's alleged negligence, the extent of plaintiff's injuries, if any, or causation are conspicuously absent. At argument before the trial judge, plaintiff's counsel offered his view of possible scenarios supporting the elements of defendant's liability, but these unsubstantiated assertions are insufficient to support a purported cause of action. The limited established facts only show plaintiff was confined to defendant's professional facility for care and rehabilitation, was later [*12] found to need hospitalization, and during that hospital stay was diagnosed with a possible fracture. There is no timeframe of when the injury occurred. Assuming counsel's supposition plaintiff fell because bedrails were not properly employed, that claim implicates professional judgment of the licensed professionals charged with determining plaintiff's needed level of care. See Aster, supra, 346 N.J. Super. at 542 n.4 (advising the use of restraints in a hospital setting "entail[ed] the care with which licensed professionals were exercising their professional responsibility and judgment."). In fact, defendant orally responded to this supposed allegation of negligence, by asserting defendant made an assessment upon plaintiff's admission concluding she was not at high risk of falling and therefore was permitted conveniences to allow mobility. Thus, determinations of whether and how to continue monitoring plaintiff, including the use of full bedrails, and whether defendant's staff was negligent in deciding a full-rail was unnecessary, implicate professional judgment, and are beyond the common knowledge exception and require expert testimony. Our decision does not accept the broad proposition advocated by defendant that any action against [*13] a licensed professional mandates an affidavit of merit be supplied. Rather, it centers on the limited facts at hand and accepts what plaintiff has offered as the theory of her negligence case, which we conclude is a matter of professional judgment. Contrary to the motion judge's decision, we cannot discern an ordinary negligence cause of action from this record. Even after an indulgent reading of this complaint and all evidence of record, there are no facts supporting 2015 N.J. Super. Unpub. LEXIS 2380, *9 Case 2:15-cv-06436-JMV-JBC Document 47-1 Filed 06/09/17 Page 4 of 5 PageID: 838 Page 5 of 5 a legally sufficient cause of action. Green v. Morgan Props., 215 N.J. 431, 451-452, 73 A.3d 478 (2013). In fact, an ordinary negligence cause of action is not "suggested" by these facts. Velantzas v. Colgate- Palmolive Co., 109 N.J. 189, 192, 536 A.2d 237 (1988). No evidence is offered to show plaintiff slipped on liquid not properly cleaned-up or tripped on an errant object dropped in her room by a staff member. Frankly, the record is devoid of evidential support, facts, or even certified allegations plaintiff's fall occurred within defendant's facility or that a fall caused alleged injury. See Hubbard, supra, 168 N.J. at 395, ("[T]he threshold of merit should be readily apparent from a reading of the plaintiff's complaint."). Reliance on counsel's speculative and unsupported arguments was erroneous. See, e.g., Sellers v. Schonfeld, 270 N.J. Super. 424, 427, 637 A.2d 529 (App. Div. 1993) (stating "only the affidavit together with properly certified depositions, answers [*14] to interrogatories, or admissions can supply facts outside the record that are not judicially noticeable[]" on summary judgment). Plaintiff's criticism of such a result as one shielding defendant from likely ordinary negligence is rejected. Were plaintiff in doubt regarding the need for an affidavit of merit, a request for a Ferreira conference would have resolved any question and would have allowed the parties and the trial judge to define the contours of the matter. Triarsi, supra, 422 N.J. Super. at 118-22. Reversed. End of Document 2015 N.J. Super. Unpub. LEXIS 2380, *13 Case 2:15-cv-06436-JMV-JBC Document 47-1 Filed 06/09/17 Page 5 of 5 PageID: 839 No Shepard’s Signal™ As of: June 9, 2017 8:25 PM Z Sirianni v. Network Mgmt. Superior Court of New Jersey, Appellate Division July 24, 2012, Submitted; August 6, 2012, Decided DOCKET NO. A-2313-11T3 Reporter 2012 N.J. Super. Unpub. LEXIS 1882 *; 2012 WL 3155531 GENNARO SIRIANNI, Plaintiff-Respondent, v. NETWORK MANAGEMENT, LTD., IFCO SYSTEMS NORTH AMERICA, INC., JOSEPH WESLEY, and MARION WESLEY, Defendants, and KMB DESIGN GROUP, LLC and VOLVER ENGINEERING, LLC, Defendants-Appellants.NETWORK MANAGEMENT, LTD, JOSEPH WESLEY and MARION WESLEY, Third-Party Plaintiffs, v. MEDIA FLO, a/k/a FLO TV and ADMIRAL INSURANCE CO., Third-Party Defendants. Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS. Prior History: [*1] On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0458-11. Core Terms affidavit of merit, engineering, defendants', deadline, days, expired, tower, motion to dismiss, cell, drawings, interrogatories, licensed, requires, exceptional circumstances, circumstances, allegations, services, answers Counsel: Milber, Makris, Plousadis & Seiden, L.L.P., attorneys for appellants (David J. Montag and Joshua A. Druck, on the briefs). LaBarbiera & Martinez, attorneys for respondent (Luis A. Martinez, on the brief). Judges: Before Judges Lihotz and Baxter. Opinion PER CURIAM By leave granted, defendants KMB Design Group, L.L.C. (KMB) and Volver Engineering, L.L.C. (Volver) appeal from a December 2, 2011 Law Division order that denied their motion to dismiss plaintiff's complaint for failure to provide an affidavit of merit. The judge recognized that plaintiff did not supply an affidavit of merit until after defendants filed their motion, and that the affidavit of merit was supplied 108 days beyond the 120 day limit established by the applicable statute. Nonetheless, the judge excused the late submission of the affidavit of merit, reasoning that plaintiff did not know, and had no ability to promptly ascertain, that defendants were engineers and that an affidavit of merit was therefore required. The judge's conclusion is contradicted by documents in the record -- including defendants' answers to interrogatories -- that [*2] unequivocally informed plaintiff of defendants' profession before the 120-day time limit expired. We reverse the denial of defendants' motion to dismiss. I. On February 27, 2009, while in the scope of his employment with Priore Construction (Priore), plaintiff Gennaro Sirianni was performing repairs to a cell tower and building owned by defendant Network Management, LTD. Defendant Flo TV (Flo), used the cell tower to transmit its signal. Flo hired defendants KMB and Volver to provide engineering services in connection with planned alterations to the cell tower. KMB and Volver then hired Epic Construction (Epic) as Case 2:15-cv-06436-JMV-JBC Document 47-2 Filed 06/09/17 Page 1 of 5 PageID: 840 Page 2 of 5 the general contractor. Plaintiff's employer, Priore, was a subcontractor. On the day in question, after completing repairs on the cell tower, plaintiff exited the platform of the tower through the opening. As he exited, the hatch door suddenly and without warning fell onto his head, causing him serious injuries. On January 21, 2011, plaintiff filed suit against KMB and Volver, asserting, in relevant part, that the two entities "were actively engaged in the business of designing, manufacturing, distributing and/or selling cell towers, doors, latches and/or accessories for the [*3] cell tower where the plaintiff was working." KMB and Volver filed their answer on April 15, 2011. In their answer, KMB and Volver denied ownership or control of the premises, and, as to the remainder of the allegations, asserted that they lacked sufficient knowledge or information to form a belief as to the truth of the allegations. On July 13, 2011, plaintiff filed an amended complaint against KMB and Volver, again asserting that the two defendants negligently "designed . . . the door of the cell tower[.]" On May 11, 2011, shortly after receiving KMB's and Volver's answer to plaintiff's complaint, plaintiff's counsel wrote to the attorney representing KMB asking him if KMB and Volver were "alleging that plaintiff's claim requires an Affidavit of Merit." Counsel for KMB did not issue a written reply to plaintiff's May 11, 2011 letter until three months later, on August 10, 2011, at which time counsel wrote: As you are aware, we represent defendants KMB Design Group, LLC and Volver Engineering, LLC in the above-referenced action. I am writing in response to your letter, dated May 11, 2011, in which you inquired whether my clients are alleg[ing] that plaintiff's claim requires an Affidavit [*4] of Merit. As you know, my clients are engineering firms and any claim for negligent design, as is alleged in the complaint, necessarily requires an Affidavit of Merit. We had tried contacting you by phone several times regarding this, but have not had the courtesy of a received return phone call. By our calculations, the time to file an Affidavit of Merit will expire on August 23, 2011 [sic].1 [(Emphasis added).] Counsel for KMB sent his August 10, 2011 letter to plaintiff's counsel by both regular mail and by fax. In their July 6, 2011 answers to plaintiff's interrogatories, KMB and Volver stated that they had been hired by Flo: to perform engineering and building services to an existing cell tower and building owned by defendant/third party plaintiff, Network Management, Ltd. . . . . Defendant[s] did not perform any actual work on the site [and] only provided engineering plans. [(Emphasis added).] On November 14, 2011, when KMB and Volver had still not received an affidavit of merit, they [*5] moved for dismissal of plaintiff's complaint "based upon plaintiff's failure to provide an affidavit of merit as required under N.J.S.A. 2A:53A-26 et seq." In support of their motion, KMB and Volver argued that because the allegations against them included claims for professional negligence in connection with the design of the hatch door, an affidavit of merit was required. They also argued that the due date for plaintiff's affidavit of merit was, as set forth in N.J.S.A. 2A:53A-27, sixty days after KMB and Volver filed their answer to plaintiff's complaint on April 15, 2011. KMB and Volver acknowledged that the applicable statute permits a court, upon motion, to extend the sixty- day requirement for an additional sixty days, so that an affidavit of merit would be due no later than 120 days after a defendant served its answer. Defendants asserted that if plaintiff were to be given the benefit of the extension, plaintiff had failed to satisfy even the extended deadline, as the 120-day deadline would have expired on August 13, 2011, and, no affidavit of merit had been supplied by the time KMB and Volver filed their motion to dismiss on November 14, 2011. Plaintiff filed no affidavit or [*6] certification in opposition to defendants' motion to dismiss for failure to serve an affidavit of merit. Instead, on November 29, 1 Defendants' attorney's statement that the 120-day deadline expired on August 23, 2011 was an error, as 120 days from April 15 -- when the answer was filed -- was August 13, 2011, not August 23, 2011. 2012 N.J. Super. Unpub. LEXIS 1882, *2 Case 2:15-cv-06436-JMV-JBC Document 47-2 Filed 06/09/17 Page 2 of 5 PageID: 841 Page 3 of 5 2011, three days before the December 2, 2011 return date of defendants' motion, plaintiff submitted to the judge, and to defendants' counsel, an executed affidavit of merit. In plaintiff's cover letter, he asked the judge to deny defendant's motion to dismiss now that he had submitted the required affidavit of merit. During the December 2, 2011 hearing on defendants' motion to dismiss, plaintiff argued, for the first time, that he was not aware until he received the letter from defendants' attorney on August 10, 2011, that defendants KMB and Volver were engineering firms, as to whom an affidavit of merit was required. Plaintiff also argued that although he had consulted experts before the 120-day deadline expired, he "did not have information at all in [his] file" such as "drawings or anything else that an expert could actually look at to determine whether this was potentially a professional malpractice case against these named defendants." Plaintiff noted that he "ultimately" received the design drawings, "not from the defendants," "but from another source," [*7] the workmen's compensation carrier. Plaintiff also argued that because he supplied an affidavit of merit before the return date of the motion, although after the motion was filed, the judge should deny defendants' dismissal motion. Defendants KMB and Volver urged the judge to reject plaintiff's argument that he had no way to determine that defendants were engineers, or that an affidavit of merit was therefore required. Defendants pointed to their attorney's May 11, 2011 letter, and to their July 6, 2011 answers to plaintiff's interrogatories. Defendants also argued that plaintiff's counsel was aware that his allegations against defendants constituted professional negligence because KMB and Volver were represented by two different attorneys, one assigned by their general liability carrier and one assigned by their professional liability carrier. The judge denied defendants' motion, reasoning that because plaintiff did not know that KMB and Volver were engineering firms who provided professional services, plaintiff had demonstrated "exceptional circumstances" that required the judge to deny defendants' dismissal motion. The judge stated: [I]s this what would be termed by the Court as, and [*8] I'm looking at the Paragon[ Contractors, Inc. v. Peachtree Condominium Ass'n, 202 N.J. 415, 997 A.2d 982 (2010)] case, as an extraordinary circumstance, I mean it is exceptional circumstances that we're -- we're dealing with and whether or not I consider those to be the case here. I mean clearly if someone doesn't know what a -- what professional the -- the defendant is, and you're saying its obvious that they were engineers? . . . . [W]e have caselaw that's questioning whether or not something is specific enough, you know, and I'm referring to Buck v. Henry, [207 N.J. 377, 25 A.3d 240 (2011),] and whether or not you have the appropriate affidavit of merit. And we're also talking in litigation as to whether or not, you know, unnecessary expense, you know, goes into it. We have to be reasonable and realistic in these matters. We're not talking about a situation where counsel is here saying we still don't have an affidavit of merit and they're arguing for the court to allow them to file one . . . . I'm not going to dismiss it on that basis, I'm going to, you know, keep you in the litigation at this time. On appeal, defendants argue: 1) plaintiff did not provide an affidavit of merit within the time prescribed by N.J.S.A. 2A:53A-27, [*9] and his complaint should therefore be dismissed with prejudice; and 2) plaintiff has neither argued nor demonstrated either substantial compliance or exceptional circumstances that would excuse the violation of the statutory deadline. II. The Affidavit of Merit Act (Act), which is codified at N.J.S.A. 2A:53A-26 to -29, was enacted in 1995 "to weed out frivolous lawsuits at an early stage." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350, 771 A.2d 1141 (2001). The Act requires a plaintiff suing a licensed professional for professional malpractice to submit an affidavit of merit, from a licensed professional in the same field, certifying that the defendant-professional deviated from the applicable standard of care.2 N.J.S.A. 2A:53A-27. Requiring a plaintiff to provide an affidavit of merit establishes that 2 Engineers are licensed professionals as defined by the Act. N.J.S.A. 2A:53A-26. 2012 N.J. Super. Unpub. LEXIS 1882, *6 Case 2:15-cv-06436-JMV-JBC Document 47-2 Filed 06/09/17 Page 3 of 5 PageID: 842 Page 4 of 5 the malpractice claim "is meritorious, in order that meritless lawsuits [can] readily be identified at an early stage of litigation." Burns v. Belafsky, 166 N.J. 466, 470, 766 A.2d 1095 (2001) (internal quotation marks and citation omitted). Here, because plaintiff does not deny that an affidavit of merit was required, we focus our attention [*10] upon the statutory deadline for doing so. N.J.S.A. 2A:53A-27 states in pertinent part: In any action for damages for personal injuries . . . 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 . . . work that is the subject of the complaint[] fell outside acceptable professional or occupational standards . . . . 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. [(Emphasis added).] Defendants argue -- and plaintiff does not dispute -- that plaintiff provided his affidavit of merit on November 29, 2011, which was 228 days after the filing of defendants' answer, or 108 days beyond the 120-day statutory deadline. At the time plaintiff submitted his untimely affidavit of merit in response to defendants' dismissal motion, he presented no affidavit that offered an excuse or justification for [*11] the extraordinary delay, confining his opposition merely to the submission of the affidavit of merit itself. If a plaintiff fails to file the affidavit of merit within 120 days, his "complaint will be dismissed with prejudice unless extraordinary circumstances prevented [a timely] filing." Palanque v. Lambert-Woolley, 168 N.J. 398, 404, 774 A.2d 501 (2001). Although "[a]ttorney inadvertence is considered good cause within th[e] sixty-one to 120-day period" established by N.J.S.A. 2A:53A-27, "[n]eglecting to provide an affidavit of merit after the expiration of 120 days has different consequences and generally requires dismissal with prejudice because the absence of an affidavit of merit strikes at the heart of the cause of action." Paragon, supra, 202 N.J. at 422. After the 120-day statutory deadline has passed, attorney inadvertence is not a circumstance entitling a plaintiff to avoid the dismissal of his complaint with prejudice. Id. at 423. We turn now to an analysis of the "extraordinary circumstances" upon which plaintiff relied in urging the judge to deny defendants' dismissal motion, namely, that plaintiff was unaware that defendants KMB and Volver were engineering firms who provided professional [*12] services and against whom an affidavit of merit was required. In support of his claim that he satisfied the "exceptional circumstances" requirement of Paragon, plaintiff relies upon the Court's opinion in Buck, supra, 207 N.J. at 382-83, in which the Court held that the plaintiff's failure to submit an affidavit of merit "from an equivalently credentialed physician" was excusable because of the plaintiff's legitimate "confusion" about the "particular specialty" of the defendant physician. The Court observed that the defendant physician was board certified in emergency medicine, and the plaintiff filed two affidavits of merit, one from a psychiatrist and another from a specialist in emergency medicine, who both opined that the defendant physician negligently prescribed plaintiff the sleep medication Ambien. Id. at 382. The trial court dismissed the plaintiff's complaint because defendant certified in his motion for summary judgment that he treated plaintiff "in his role as a practitioner in family medicine" and plaintiff had not provided an affidavit of merit from "an equivalent specialist." Id. at 383. The Court held that in such circumstances, where the plaintiff could not reasonably [*13] ascertain the defendant physician's particular medical specialty, strict compliance with the filing requirements of the affidavit of merit statute should not be required. Id. at 392-93. The Court also reasoned that the plaintiff had not been "sleeping on his rights and ignoring statutorily imposed deadlines," nor was there any attorney "inadvertence," but rather a plaintiff "who ha[d] made good-faith attempts to satisfy the statute" but was prevented from doing so by the uncertainty of the medical specialty of the defendant physician at the time in question. Id. at 395. This is not such a case. Here, no confusion existed about the fact that KMB and Volver were engineers who 2012 N.J. Super. Unpub. LEXIS 1882, *9 Case 2:15-cv-06436-JMV-JBC Document 47-2 Filed 06/09/17 Page 4 of 5 PageID: 843 Page 5 of 5 provided engineering plans. Within the 120-day period after defendants filed their answer, defendants provided plaintiff with interrogatory answers in which they stated that at the time in question they performed "engineering . . . services" to the existing cell tower by providing the owner of the cell tower with "engineering plans." Unlike the circumstances in Buck, where the plaintiff was legitimately confused about the defendant physician's medical specialty, ibid., here it was abundantly clear that defendants [*14] were engineers. Moreover, as defendants noted in the Law Division and argue again on appeal, the name of one of the parties -- Volver Engineering -- left no doubt as to their profession. Additionally, within the 120-day period of N.J.S.A. 2A:53A-27, defendants' attorney definitively notified plaintiff's counsel that an affidavit of merit was required. While plaintiff complains that defense counsel waited too long to respond to plaintiff's letter of inquiry on that subject, we agree with defendants that it is not the responsibility of a defendant to remind a plaintiff that an affidavit of merit is required. Instead, the responsibility for complying with the affidavit of merit statute lies squarely with a plaintiff. Paragon, supra, 202 N.J. at 421. We reject plaintiff's assertion that he was lulled into a false sense of security because defendants' attorney did not respond to plaintiff's letter of inquiry for three months. We emphasize that at the time plaintiff received defense counsel's August 10, 2011 letter advising plaintiff that an affidavit of merit was required, three days still remained before the 120- day deadline expired on August 13, 2011. Similarly, we reject plaintiff's assertion [*15] that because defendants never supplied engineering drawings, it was impossible for plaintiff to submit those drawings to a licensed engineer for the purpose of obtaining an affidavit of merit. Plaintiff's argument ignores the fact that plaintiff did not ask defendants to supply a copy of the engineering drawings. We have carefully reviewed both sets of interrogatories plaintiff served on defendants before the 120-day deadline expired. Nowhere in those interrogatories does plaintiff demand that defendants supply the engineering drawings. Not until September 25, 2011 did plaintiff demand that defendants produce "[a]ny and all reports regarding the construction, inspection and maintenance at the subject premises . . . on the date in question." Even assuming that the term "reports" would encompass engineering drawings, it is beyond dispute that by the time plaintiff made that demand on September 25, 2011, the 120-day deadline had long since expired. Unlike Aster ex rel. Garofalo v. Shoreline Behavioral Health, 346 N.J. Super. 536, 539, 788 A.2d 821 (App. Div. 2002), in which the defendant physician refused to provide the medical records that plaintiff had timely requested, and where we held that the [*16] defendant physician's refusal to do so excused the plaintiff's failure to provide an affidavit of merit, here, plaintiff never asked defendants to provide engineering drawings. For that reason, we reject plaintiff's contention that defendants' "failure" to provide the engineering drawings constitutes exceptional circumstances justifying plaintiff's late submission of his affidavit of merit. Finally, we reject plaintiff's argument that by waiting until November 14, 2011 to file their dismissal motion, defendants waived the right to do so. The 120-day deadline expired on August 13, 2011. Defendants filed their motion on November 14, three months later. We reject plaintiff's reliance on Knorr v. Smeal, 178 N.J. 169, 179-80, 836 A.2d 794 (2003), in which the defendants waited more than fourteen months after the deadline had expired to file their motion. In sum, because defendants' July 6, 2011 interrogatory answers and the August 10, 2011 letter from defendants' attorney both alerted plaintiff that defendants were engineers -- and because both the letter and the interrogatory answers were provided to plaintiff before the 120-day deadline expired -- we reject the judge's conclusion that plaintiff's late [*17] filing of the affidavit of merit should be excused. The circumstances presented here required the timely filing of an affidavit of merit. The failure to do so obligated the judge to dismiss plaintiff's complaint against KMB and Volver with prejudice. See N.J.S.A. 2A:53A-29 (stating that if a plaintiff fails to timely serve an affidavit of merit in accordance with N.J.S.A. 2A:53A-27 or N.J.S.A. 2A:53A-28 "it shall be deemed a failure to state a cause of action"). See also Palanque, supra, 168 N.J. at 404. Reversed. End of Document 2012 N.J. Super. Unpub. LEXIS 1882, *13 Case 2:15-cv-06436-JMV-JBC Document 47-2 Filed 06/09/17 Page 5 of 5 PageID: 844
