Is a Ferreira Conference a Pre-Requisite to Moving to Dismiss for Failure to Provide an AOM?
For those attorneys that practice in the area of medical malpractice, a Ferreira conference has become a regular occurrence to review and identify various discovery concerns, including the sufficiency of a plaintiff’s affidavit of merit (AOM). The primary purpose of the AOM is 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.” Fink v. Thompson, 167 N.J. 551, 559 (2001). In actions arising out of professional malpractice, plaintiffs are required to obtain and serve an AOM within a maximum of 120 days from the date of the filing of an answer to a complaint. See N.J.S.A. 2A:53A-27. The sanction for failing to serve an AOM in compliance with the statute is a finding that the complaint “fails to state a cause of action.” N.J.S.A. 2A:53A-29. The New Jersey Supreme Court has held that “[a] dismissal for failure to comply with the statute should be with prejudice in all but exceptional circumstances.” Cornblatt v. Barow, 153 N.J. 218, 242 (1988).
In order to identify and alleviate issues relating to the AOM, the court will hold what is known as a Ferreira conference, which was established in the New Jersey Supreme Court decision of Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). In Ferreira, the New Jersey Supreme Court required that “a case management conference be held within ninety days of the service of an answer in all malpractice actions.” Id. at 154. The purpose of the conference is for the court to address all discovery issues, including the AOM, and to serve as a reminder of the obligation as well as to facilitate early identification of any deficiency in an AOM that has already been served. See id. at 155.
Since the AOM is typically the focus of the Ferreira conference, the question arises as to the procedural impact in those unique cases in which the court does not hold a Ferreira conference within the 120-day statutory period. Moreover, what impact does the failure of the court to hold a Ferreira conference have on a litigant’s rights to move to dismiss a complaint due to plaintiff’s failure to obtain and serve an AOM pursuant to N.J.S.A. 2A:53A-27?
These issues were notably addressed by the New Jersey Supreme Court in Paragon Contrs. v. Peachtree Condo Ass’n, 202 N.J. 415 (2010). The dispute arose over unpaid fees for construction work. The defendant, Peachtree Condominium Association, filed a third-party complaint against Key Engineers, a company that was hired to inspect and supervise the plaintiff’s performance. Notably, Peachtree’s case information statement (CIS) did not respond to the inquiry as to whether the case arose out of professional malpractice. In its answer to the third-party complaint, Key raised the AOM statute as a separate defense and characterized the case as one involving professional malpractice. However, because the case was originally filed as a breach of contract action, a Ferreira conference was never held. More than 120 days after its answer, Key filed a motion to dismiss for failure of Peachtree to comply with the AOM time limits defined in N.J.S.A. 2A:53A-27. Paragon, 202 N.J. at 420. After the motion had been filed, but before oral argument took place, Peachtree filed an AOM.
The trial court dismissed the complaint based upon the untimeliness of the AOM, and the Appellate Division affirmed. Thereafter, the New Jersey Supreme Court granted certification and reversed. While acknowledging that the failure to provide an AOM within the statutory time period normally requires dismissal with prejudice, the Supreme Court found that the filing of a late affidavit constituted extraordinary circumstances to dismiss the matter without prejudice. The reason for leniency in the case, though, was based upon a lack of unanimity amongst New Jersey courts at the time of the decision, and therefore the Supreme Court noted that litigants “may have assumed that the absence of the [Ferreira] conference provided a safe harbor from the [AOM] statute’s requirements.” Id. at 425. However, the Supreme Court went on to state that the failure of the court to hold a Ferreira conference had no impact on the time limits prescribed in the AOM statute, and litigants should not rely upon the scheduling of a conference to toll the statutory time frames from that point forward.
With Paragon serving as a foundation, the New Jersey Appellate Division was recently faced with a similar situation in the context of a case arising out of medical malpractice, in Seyma O. Levine, individually and as Administratrix of the Estate of Bernard Levine v. Kindred Hospital New Jersey – Morris County, et al., 2019 N.J. Super. Unpub. LEXIS 869 (App. Div. 2019). The plaintiff, Seyma O. Levine, filed a medical malpractice action on behalf of her deceased husband against Kindred Hospital New Jersey (“Kindred”) and Select Specialty Hospital-Northeast New Jersey (“Select”). After Select filed an answer, but before Kindred entered an appearance in the case, the trial court held a Ferreira conference. Kindred thereafter filed an answer with a demand for an AOM pursuant to N.J.S.A. 2A:53-27. While the plaintiff provided three separate AOM’s, Kindred took the position that they were each deficient and moved to dismiss the complaint with prejudice after the statutory period to file an appropriate AOM had expired. Notably, the court did not hold a subsequent Ferreira conference to address the AOM’s provided by the plaintiff to Kindred. The trial court concluded that the plaintiff had provided an AOM that was improper and untimely, and no exceptional circumstances existed to warrant an extension.
On appeal, the plaintiff argued, inter alia, that the trial court erred by not holding a second Ferreira conference to address the deficiencies in her expert’s AOM as to Kindred. The Appellate Division rejected this argument, stating: “[T]he Ferreira conference ‘was never intended, nor could it have been, as an overlay on the statute that would effectively extend the legislatively prescribed filing period.’” A.T. v. Cohen, 231 N.J. 337, 346 (2017) (quoting Paragon, supra, 202 N.J. at 419). Accordingly, “the failure to hold [a Ferreira conference] does not toll the time limits of the AOM statute.” Triarsi v. BSC Group Servs., 422 N.J. Super. 104, 121-22 (App. Div. 2011). Thus, “reliance on the scheduling of a Ferreira conference to avoid the strictures of the [AOM] statute is entirely unwarranted and will not serve to toll the statutory time frames.” A.T., 231 N.J. at 348 (quoting Paragon, 202 N.J. at 426)).
Relying upon Paragon and its progeny, the court in Levine illuminated the concept that a Ferreira conference is not a pre-requisite in medical malpractice cases for a defendant to move to dismiss a complaint, with prejudice, for the failure of a plaintiff to provide an appropriate AOM. The impact of decisions such as Paragon and Levine in medical malpractice cases can create a strategic advantage to those savvy defendants that may be up against less-knowledgeable plaintiffs, who sit on their obligations to file and serve an AOM while waiting for the court to hold a Ferreira conference. These decisions also create the potential for a strategic advantage for defendants in those cases where a plaintiff mistakenly believes that the matter is not one arising out of professional malpractice and thus, incorrectly concludes that an AOM is not required.
More specifically, the holding in Levine could be applicable to those cases where a plaintiff does not plead a cause of action for medical malpractice, but the factual allegations of the complaint arise out of claims of malpractice. For example, a plaintiff may assert a cause of action for battery, but the underpinnings that form the claim of battery are a deviation of the standards of care during a physical examination. As explained in cases such as Balthazar v. Atl. City Med. Ctr., 358 N.J. Super. 13, 27 (App. Div. 2003), “causes of action alleging intentional torts that rely for their success upon proof of a deviation from the professional standard of care applicable to the profession are subject to the [AOM] requirement, regardless of their label.”
If a plaintiff fails to identify the matter as a professional malpractice action in their case information statement, the scheduling of a Ferreira conference may be overlooked by a trial court. The decision in Levine could provide the basis needed to move to dismiss a party’s complaint for failing to provide an AOM, even though the plaintiff’s case information statement does not identify the matter as one of medical professional malpractice and the court, in turn, does not hold a Ferreira conference.
Reprinted with permission from the May 09, 2019 issue of the New Jersey Law Journal. © 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.