Newell v Ruiz, 041002 FED3, 00-2091

Docket Nº:00-2091
Party Name:Newell v Ruiz
Case Date:April 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




No. 00-2091


Argued April 5, 2001

April 10, 2002

On Appeal from the United States District Court for the District of New Jersey D.C. Civil Action No. 99-cv-02323 (Honorable Katharine S. Hayden)

Elise Dinolfo, Esquire (argued) Elliott Abrutyn, Esquire Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski 651 West Mount Pleasant Avenue, Suite 200 Livingston, New Jersey 07039-1673, for Appellant.

Philip F. Mattia, Esquire (argued) Philip F. Mattia & Associates 401 Hamburg Turnpike, Suite 205 Wayne, New Jersey 07470, for Appellees.

Before: Scirica, Ambro and GIBSON,(FN2) Circuit Judges


Scirica, Circuit Judge.

Romona Newell appeals the dismissal with prejudice of her medical malpractice claim for failure to timely file an Affidavit of Merit in accordance with N.J. Stat. Ann. SS 2A:53A-26-29 (the Affidavit of Merit Statute). The issue on appeal is whether Newell's compliance with New York's Civil Practice Law and Rules S 3012-a (N.Y. C.P.L.R. S 3012-a, the Certificate of Merit Statute) satisfied New Jersey's requirements because her action was transferred from New York to New Jersey.(FN3) We will reverse.

Newell makes two arguments on appeal -- first, that she substantially complied with the Affidavit of Merit Statute; second, that extraordinary circumstances warrant relaxation of the statutory requirements of N.J. Stat. Ann. S 2A:53A-27.(FN4)


Romona Newell, a New York resident, commenced this medical malpractice action in the United States District Court for the Southern District of New York on March 24, 1999. She alleges Abraham Ruiz, M.D., and the Radiology Professional Association committed malpractice by failing to properly read and interpret her mammograms in June 1997. Newell, who previously had cancer in her right breast, alleges defendants failed to detect abnormal changes in the mammography of her left breast. As a result, she claims a delay in diagnosis and treatment caused the cancer to spread in her left breast and metastasize to other parts of her body. Romona Newell died of cancer in March 2001.

Complying with New York's C.P.L.R. S 3012-a, which seeks to weed out frivolous malpractice claims, Newell submitted a "Certificate of Merit," attesting her attorney discussed the case with a physician, who advised there was reason to believe defendants committed malpractice. Dr. Ruiz filed an answer on April 16, 1999 and an amended answer on May 5, 1999. The Radiology Professional Association filed an answer on May 5, 1999. On May 7, 1999, the case was transferred to the United States District Court for the District of New Jersey.

On January 18, 2000, more than eight months after filing their answers in New York, defendants filed a motion to dismiss Newell's complaint for failure to comply with New Jersey's Affidavit of Merit Statute, N.J. Stat. Ann.S 2A:53A- 27. Both the New Jersey and the New York statutes share the same purpose of winnowing out frivolous claims by requiring plaintiffs to make a threshold showing of merit. On February 11, 2000, Newell responded to the defendant's motion and supplied an Affidavit of Merit from a Board Certified Radiologist.(FN5)



N.J. Stat. Ann. S 2A:53A-27 provides:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. The person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

When construing a statute, "our 'overriding goal must be to determine the Legislature's intent.' " Hubbard v. Reed, 774 A.2d 495, 498 (N.J. 2001) (citations omitted). As the New Jersey Supreme Court has observed:

The first step in determining the Legislature's intent is to look at the plain language of the statute. 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. 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. 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. Id. (quotations and citations omitted).

Newell contends she has a meritorious claim and that she substantially complied with New Jersey's Affidavit of Merit Statute. Because the statute does not address its applicability to cases transferred from another jurisdiction, she argues a narrow interpretation would thwart the legislature's intent of barring only frivolous claims.


In several recent decisions, the New Jersey Supreme Court held that if "reasonable effectuation of the statute's purpose has occurred," the Affidavit of Merit Statute does not require strict compliance. Galik v. Clara Maass Med. Ctr., 771 A.2d 1141, 1148 (N.J. 2001); see also Fink v. Thompson, 772 A.2d 386 (N.J. 2001); Cornblatt v. Barrow, 708 A.2d 401, 411 (N.J. 1998). In appropriate cases, "[c]courts invoke the doctrine of substantial compliance to 'avoid technical defeats of valid claims.' " Cornblatt, 708 A.2d at 412 (quoting Zamel v. Port of N.Y. Auth., 264 A.2d 201, 203 (N.J. 1970)).

The doctrine of substantial compliance requires the defaulting party to show: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim; and (5) a reasonable explanation why there was not strict compliance with the statute. Id. This equitable doctrine "requires a fact-sensitive analysis involving the assessment of all the idiosyncratic details of a case to determine whether 'reasonable effectuation of the statute's purpose' has occurred." Galik, 771 A.2d at 1151 (citation omitted).

There is no legal prejudice to the defendants. Newell's complaint, filed in New York federal court on March 24, 1999, was accompanied by a Certificate of Merit attesting to the validity of her claim. Furthermore, Newell supplied defendants with copies of her mammograms and "took a series of steps that notified the defendants about the merits of the malpractice...

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