210 F.3d 154 (3rd Cir. 2000), 99-5069, Chamberlain v. Giampapa

Docket Nº:99-5069
Citation:210 F.3d 154
Case Date:March 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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210 F.3d 154 (3rd Cir. 2000)




No. 99-5069

United States Court of Appeals, Third Circuit

March 28, 2000

Argued: November 16, 1999

On Appeal From the United States District Court For the District of New Jersey (D.C. Civil Action No. 98-cv-01048) District Judge: Honorable Maryanne Trump Barry

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[Copyrighted Material Omitted]

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Howard B. Felcher (Argued) 20 Northfield Avenue West Orange, NJ 07052 Attorney for Appellant

Stephen O. Mortenson (Argued) Mortenson & Pomeroy 155 Morris Avenue Springfield, NJ 07081 Attorney for Appellee

BEFORE: ALITO and STAPLETON, Circuit Judges, and FEIKENS,[*] District Judge


STAPLETON, Circuit Judge:

Robin Chamberlain appeals from the dismissal of her medical malpractice complaint filed in the United States District Court of New Jersey. Count I of the complaint alleged negligent medical treatment and care by the defendant physician, and Count II alleged a failure to properly advise and inform the plaintiff of the nature and extent of a surgical procedure the defendant performed on her. Jurisdiction was based on the diversity of the citizenship of the parties. The District Court dismissed both counts of Chamberlain's complaint with prejudice for failure to file a timely affidavit of merit pursuant to N.J. Stat. Ann. SS 2A:53A-26 to -29 (West 1987) ("the New Jersey affidavit of merit statute").1

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Chamberlain also appeals the denial of her cross-motion for (1) a sixty-day extension in which to file the affidavit of merit; or (2) an order allowing the affidavit of merit to be filed nunc pro tunc; or (3) permission to amend the complaint and attach the affidavit of merit; and/or (4) an order striking defendant's answer as untimely and granting plaintiff a default judgment.

We address five distinct issues in the disposition of this appeal:

1) Whether the New Jersey affidavit of merit statute can properly be applied by a federal court sitting in diversity;

2) Whether the New Jersey affidavit of merit statute applies to a claim based on the absence of informed consent;

3) If the New Jersey statute does apply in diversity actions, whether Chamberlain's complaint was properly dismissed with prejudice for failure to file an affidavit of merit;

4) Whether the District Court erred in dismissing the entire complaint, when one or more of the alleged acts of negligence may have occurred before the effective date of the New Jersey affidavit of merit statute;

5) Whether the District Court abused its discretion in denying Chamberlain's motion for default judgment.

We hold that the New Jersey affidavit of merit statute does not conflict with the Federal Rules of Civil Procedure and must be applied by federal courts sitting in diversity; the District Court did not plainly err in applying the affidavit of merit statute to the lack of informed consent cause of action; there are no extraordinary circumstances that would warrant dismissal without prejudice; and the denial of a default judgment was not an abuse of discretion. However, we further conclude that the District Court erred in dismissing the plaintiff's case when the record indicates that one or more of the alleged negligent acts occurred before the effective date of the affidavit of merit statute. Accordingly, we will reverse the judgment of the District Court and remand for further proceedings consistent with the opinion.


The New Jersey affidavit of merit statute applies to medical malpractice causes of action that "occur" on or after June 29, 1995, the effective date of the statute.2 It requires that the plaintiff file an affidavit of a licensed physician within 60 days of the date the answer is filed or face dismissal of the complaint. In the affidavit, the physician must state that a "reasonable probability" exists that the care that is the subject of the complaint falls outside acceptable professional standards. N.J. Stat. Ann. S 2A:53A-27. In lieu of an affidavit, the plaintiff may provide a sworn statement that, after written request, the defendant failed to provide the plaintiff with records that have a substantial bearing on preparation of the affidavit.3 N.J.

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Stat. Ann. S 2A:53A-28. Failure to provide either the affidavit or the sworn statement within 60 days, or 120 days if the court grants an extension for good cause, results in dismissal for "failure to state a cause of action."4 N.J. Stat. Ann. S 2A:53A-29.

In January of 1994, Dr. Vincent C. Giampapa performed plastic surgery on the plaintiff's nose. Thereafter, he injected cortisone in her nose on several occasions. On August 20, 1995, the plaintiff visited Dr. Giampapa for a checkup and, at his suggestion, she allowed him to perform a second plastic surgery, which she expected to be minor. The plaintiff claims Dr. Giampapa instead performed extensive surgery without properly advising her about, and obtaining consent for, the procedure. The plaintiff experienced problems after the August 20 surgery, and, as a result, Dr. Giampapa performed additional plastic surgery on March 20, 1996. When the plaintiff continued to experience problems, she sought medical care and treatment from another plastic surgeon and underwent extensive reconstructive surgery.

The plaintiff sued Dr. Giampapa on March 10, 1998, alleging negligence with respect to her medical care and treatment. The defendant's answer, filed on May 8th, responded to the complaint in full but did not include a demand for an affidavit of merit from the plaintiff.

The Magistrate Judge issued a Pre-Trial Scheduling Order on June 10th and the defendant provided the plaintiff with her medical records on June 17th, three weeks before the deadline for filing an affidavit of merit. The plaintiff did not file an affidavit of merit within 60 days of the answer being filed and did not request an extension before the 60-day statutory period expired. The plaintiff made no attempt to file the affidavit or request an extension until the defendant filed his motion to dismiss in November 1998.

The scheduling order did not mention the affidavit requirement and, according to the parties, no discussion of the affidavit of merit took place at the June 10 scheduling conference. Nevertheless, as part of the scheduling order, the plaintiff was directed to serve an expert report on the defendant no later than September 30, 1998, which she did. In the report, the expert stated his opinion that the treatment by the defendant deviated significantly from the accepted standards of medical care and that the plaintiff suffered permanent nasal deformity and associated breathing difficulties as a result.

The defendant thereafter filed a motion to dismiss based on the plaintiff's failure to file an affidavit of merit. On the same day, the plaintiff filed her cross-motion. The District Court denied the plaintiff's cross-motion in its entirety and granted the defendant's motion to dismiss. Both counts of the complaint were dismissed with prejudice. The plaintiff appeals both the dismissal of her complaint and the denial of her cross-motion.


A. The Choice Of Law Issue

A federal court sitting in diversity must apply state substantive law and federal procedural law. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). This substantive/procedural dichotomy of the "Erie rule" must be applied with the objective that "in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of

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the litigation in the federal court [will] be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court." Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945). This focus on whether application of a state rule will...

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