Hubbard ex rel. Hubbard v. Reed

• Decision Date: 21 June 2001
• Citation: 168 N.J. 387,774 A.2d 495
• Parties: Nina HUBBARD, as Guardian Ad Litem of Nia HUBBARD, her minor child, Plaintiff-Appellant, v. Dr. Joseph REED, D.D.S., Defendant-Respondent, and Dr. Robert Kardon, D.D.S., Defendant.
• Court: New Jersey Supreme Court

774 A.2d 495

168 N.J. 387

Nina HUBBARD, as Guardian Ad Litem of Nia HUBBARD, her minor child, Plaintiff-Appellant, v. Dr. Joseph REED, D.D.S., Defendant-Respondent, and Dr. Robert Kardon, D.D.S., Defendant.

Supreme Court of New Jersey.

Argued January 29, 2001.

Decided June 21, 2001.

Edward J. Crisonino, Cherry Hill, argued the cause for appellant.

Timothy P. Mullin argued the cause for respondent (Mintzer, Sarowitz, Zeris & Ledva, attorneys; Mr. Mullin and Kimberly A. Jubanyik, on the briefs).

William L. Gold, South Orange, submitted a brief on behalf of amicus curiae, Association of Trial Lawyers—New Jersey (Bendit Weinstock, attorneys; Mr. Gold and Abbott S. Brown, on the brief).

The opinion of the Court was delivered by PORITZ, C.J.

This case and Palanque v. Lambert-Woolley, 168 N.J. 387, 774 A.2d 501 (2001), also decided today, are the seventh and eighth malpractice actions to require intervention by this Court for a determination of the meaning and applicability of the Affidavit of Merit Statute enacted six years ago. Plaintiffs have raised numerous issues in a variety of factual settings that implicate both the language of the statute and the Legislature's intent. In our opinions we have focused on the legislative goals, and on the words and phrases used by the Legislature to carry out those goals. Where we have found ambiguity, we have looked to the legislative purpose underlying the statute, but we have also sought to eliminate any remaining confusion and to provide guidance for the future. At issue in this case is whether a plaintiff in a common knowledge malpractice action must comply with the affidavit requirement of the statute. Under the statute, a plaintiff who brings a malpractice action against a licensed professional must provide the defendant with the affidavit of an appropriate expert stating that the action has merit. N.J.S.A. 2A:53A-27. Because we do not believe that the Legislature intended to burden a plaintiff with the affidavit requirement when expert testimony is not required at trial to establish the defendant's negligence, we hold that an affidavit need not be provided in common knowledge cases when an expert will not be called to testify "that the care, skill or knowledge ... [of the defendant] fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27.

I

On August 9, 1996, an orthodontist referred sixteen-year-old plaintiff Nia Hubbard to defendant Robert Kardon, D.D.S., with instructions to extract her mandibular left lateral incisor. Dr. Kardon, in turn, referred plaintiff to his associate, Joseph Reed, D.D.S, who extracted her mandibular left second bicuspid instead. Plaintiff and her mother as guardian ad litem filed a complaint for dental malpractice on July 6, 1998 against Drs. Reed and Kardon. In his answer to the complaint, Dr. Kardon denied any negligence and requested that plaintiffs provide him with an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Dr. Reed also filed an answer denying negligence and cross-claiming against Dr. Kardon.

Plaintiffs did not file the affidavit within the sixty-day time period prescribed by N.J.S.A. 2A:53A-27. On April 20, 1999, Dr. Kardon filed a motion to dismiss based on that failure and six days later Dr. Reed filed a similar motion. Plaintiffs responded on May 5, 1999, asserting that they were not obligated to provide an affidavit of merit because they intended to rely at trial upon the common knowledge doctrine and res ipsa loquitur.¹ Finding that plaintiffs are required to comply with the Affidavit of Merit Statute even in common knowledge cases, the trial court granted defendants' motions.

Plaintiffs appealed and the Appellate Division affirmed. Hubbard v. Reed, 331 N.J.Super. 283, 751 A.2d 1055 (2000). We granted certification on September 8, 2000, 165 N.J. 527, 760 A.2d 781, and now reverse.

II

N.J.S.A. 2A:53A-27 states:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

Defendants argue that the clear and unambiguous language of N.J.S.A. 2A:53A-27 requires that an affidavit of merit be filed in all malpractice cases. Defendants contend that only after a plaintiff has made a threshold showing of merit by way of an expert affidavit can he or she then select a theory of liability under which to seek damages. Without that affidavit, according to defendants, attorneys would be attesting to the merits of their clients' claims.

Plaintiffs respond that when a defendant's negligence is so apparent that expert testimony will not be needed at trial, the purpose of the statute—to reduce frivolous lawsuits—would not be furthered by requiring an affidavit of merit. Plaintiffs further assert that the cost of obtaining an affidavit in a common knowledge case involving minor injuries would make bringing an action for recovery, no matter how meritorious, too expensive.

III

Because this case requires us to engage in statutory construction, our "overriding goal must be to determine the Legislature's intent." State, Dep't of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 627, 667 A.2d 684 (1995) (citing Young v. Schering Corp., 141 N.J. 16, 25, 660 A.2d 1153 (1995)). The first step in determining the Legislature's intent is to look at the plain language of the statute. State v. Butler, 89 N.J. 220, 226, 445 A.2d 399 (1982); see also Merin v. Maglaki, 126 N.J. 430, 434-35, 599 A.2d 1256 (1992) (holding that statute's "language should be given its ordinary meaning, absent a legislative intent to the contrary"). As a general rule, when the language of a statute is clear on its face, "`the sole function of the courts is to enforce it according to its terms.'" Sheeran v. Nationwide Mut. Ins. Co., 80 N.J. 548, 556, 404 A.2d 625 (1979) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442, 452 (1917)). Nevertheless, we also have stressed that "where a literal interpretation would create a manifestly absurd result, contrary to public policy, the spirit of the law should control." Turner v. First Union Nat. Bank, 162 N.J. 75, 84, 740 A.2d 1081 (1999) (citing Watt v. Mayor of Franklin, 21 N.J. 274, 278, 121 A.2d 499 (1956)). Thus, when a "`literal interpretation of individual statutory terms or provisions' " would lead to results "`inconsistent with the overall purpose of the statute,' " that interpretation should be rejected. Cornblatt v. Barow, 153 N.J. 218, 242, 708 A.2d 401 (1998) (quoting Young, supra, 141 N.J. at 25, 660 A.2d 1153).

A

The Affidavit of Merit Statute, on its face, applies to "any action" involving professional malpractice. N.J.S.A. 2A:53A-27. No express exception is made for common knowledge cases, nor does the legislative history specifically address the question. Even so, plaintiffs argue that it makes no sense to burden them in common knowledge cases with the affidavit of merit requirement. In support, they point to the concurrence in Levinson v. D'Alfonso & Stein, 320 N.J.Super. 312, 727 A.2d 87 (App.Div.1999), and to Janelli v. Keeper, 317 N.J.Super. 309, 721 A.2d 1036 (Law Div.1998).

In Janelli, supra, the plaintiff alleged that "the defendant [chiropractor] used excessive force which resulted in two left-sided ribs being fractured during a chiropractic manipulation." Id. at 310, 721 A.2d 1036. After the plaintiff failed to provide an affidavit of merit, the defendant moved to dismiss. The trial court determined that an affidavit of merit need not be provided when a plaintiff does not intend to rely upon experts at trial, and denied the defendant's motion. Id. at 311, 721 A.2d 1036. The court explained: "It would seem redundant and unnecessary to require a plaintiff to spend the funds necessary to hire such an expert when he or she never intends to utilize that expert at the time of trial." Id. at 313, 721 A.2d 1036.

In Levinson, supra, the plaintiff claimed that the defendant law firm settled his case without authorization. 320 N.J.Super. at 316, 727 A.2d 87. The Appellate Division held that the Affidavit of Merit Statute did not apply because the plaintiff had presented a "classic contract claim ... asserting damages alleged to arise because [defendants] breached [plaintiff's] written contract of employment." Id. at 317, 727 A.2d 87. Judge Wecker, concurring, also found that an affidavit was not required, but for the reason that "the affidavit-of-merit statute cannot apply to those professional negligence claims that can proceed without expert testimony." Id. at 321, 727 A.2d 87 (citing Janelli, supra, 317 N.J.Super. at 313, 721 A.2d 1036). In Judge Wecker's view, when an expert is not needed "to withstand a summary judgment motion, or a motion to dismiss at trial under R. 4:37-2(b) or R. 4:40-1, it would be unreasonable to require an affidavit of merit as a condition of proceeding with the malpractice action." Id. at 321, 721 A.2d 1036.

We agree. The primary purpose of the Affidavit of Merit Statute "is `to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation.'" Cornblatt, supra, 153 N.J. at 242,708 A.2d 401 (quoting In re Petition of Hall, 147 N...