ALI BADR VS. LUIS E. COLON (L-2747-15, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4725-16T1
ALI BADR,
Plaintiff-Appellant,
v.
LUIS E. COLON,
Defendant-Respondent.
_____________________________
Argued May 30, 2018 – Decided June 21, 2018
Before Judges Carroll and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
2747-15.
Greg D. Shaffer argued the cause for appellant
(Brandon J. Broderick, attorney; Brandon J.
Broderick, on the brief).
Thomas F. McGuane argued the cause for
respondent (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; Thomas F. McGuane
and Joseph G. Fuoco, of counsel and on the
brief.
PER CURIAM
Plaintiff Ali Badr appeals an order entered by the Law
Division on May 12, 2017, denying his motion for reconsideration
of an order denying his motion to reinstate his complaint, which
was dismissed for failure to comply with the physician's
certification requirement in N.J.S.A. 39:6A-8(a). We reverse and
remand.
I.
Plaintiff alleges that he was injured in a motor vehicle
accident as a result of the negligent acts of defendant Luis E.
Colon. Plaintiff's insurance coverage is subject to a limited
threshold option that exempts a negligent driver from tort
liability for non-economic injuries unless plaintiff "has
sustained . . . a permanent injury within a reasonable degree of
medical probability . . . ." N.J.S.A. 39:6A-8(a). "An injury
shall be considered permanent when the body part or organ, or
both, has not healed to function normally and will not heal to
function normally with further medical treatment." Ibid.
To maintain a claim for non-economic damages, plaintiff is
required to produce a physician's certification of permanency of
injury. N.J.S.A. 39:6A-8(a) provides, in pertinent part:
In order to satisfy the tort option provisions
of this subsection, the plaintiff shall,
within [sixty] days following the date of the
answer to the complaint by the defendant,
provide the defendant with a certification
from a licensed treating physician or a board-
certified licensed physician to whom the
plaintiff was referred by the treating
physician. The certification shall state,
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under penalty of perjury, that the plaintiff
has sustained an injury described above. The
certification shall be based on and refer to
objective clinical evidence . . . . The court
may grant no more than one additional period
not to exceed 60 days to file the
certification pursuant to this subsection upon
a finding of good cause.
A person is guilty of a crime of the fourth
degree if that person purposefully or
knowingly makes, or causes to be made, a
false, fictitious, fraudulent, or misleading
statement of material fact in, or omits a
material fact from, or causes a material fact
to be omitted from, any certification filed
pursuant to this subsection.
On June 26, 2015, plaintiff filed a complaint against
defendant alleging that he suffered serious and permanent injuries
as a result of defendant's negligent operation, maintenance, or
repair of his vehicle on June 28, 2013. The complaint alleges
that plaintiff complied with the requirements of N.J.S.A. 39:6A-
8(a) and that a "copy of the Physician's Certificate of Merit is
attached" to the complaint. There was, however, no attachment to
the complaint.
On September 8, 2015, defendant filed an answer. Plaintiff
did not file a physician's certification of permanency of injury
within 60 days of the filing of defendant's answer. Nor did
plaintiff seek an extension of the filing deadline.
Discovery proceeded in the ordinary course. Ultimately, the
court set a discovery end date of September 2, 2016. On August
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11, 2016, plaintiff produced the report of a physician designated
by plaintiff as a potential expert witness. The report is not in
certification form. In addition, the author is not a treating
physician or a board-certified physician to whom plaintiff was
referred by a treating physician, but is a physician designated
to serve as plaintiff's expert witness. However, the report
describes some of plaintiff's injuries as permanent, details the
clinical data on which it is based, and ends with a statement that
the physician is aware that it is a fourth degree crime to
purposely and knowingly made a false statement in the report.
On October 27, 2016, the matter was submitted to non-binding
arbitration. The arbitrator found no cause of action because of
plaintiff's failure to submit a physician's certification of
permanency of injury pursuant to N.J.S.A. 39:6A-8(a).
Approximately two months later, plaintiff still had not
submitted a physician's certification. As a result, on December
21, 2016, defendant moved to dismiss the complaint for plaintiff's
failure to comply with N.J.S.A. 39:6A-8(a).
In response to the motion, on January 17, 2017, plaintiff
submitted what purported to be a physician's certification of
permanency of injury. The certification, signed by a chiropractor,
stated, in relevant part:
4 A-4725-16T1
The [p]laintiff, Ali Badr, as a result of a
motor vehicle accident on 06/28/2013,
sustained the following injuries: See
diagnosis in my attached report. Such
injuries have resulted in permanent injury.
Permanent injury means a body part or organ
or both has not healed to function normally
and to medical probability will not heal to
function normally with further medical
treatment.
This certification is based upon the following
objective clinical evidence: See my attached
narrative report which I hereby incorporate
by reference.
There was, however, no report attached to the certification.
On January 18, 2017, plaintiff served an amended physician's
certification from the chiropractor. The only change from the
prior version of the certification is that "See diagnosis in my
attached report" was redacted and replaced with the handwritten
notation "Disc Herniation C5-6 Disc Bulging C4-5." The amended
certification still stated that it was "based on the following
objective clinical evidence: See my attached narrative report
which I hereby incorporate by reference." No report, however, was
attached.
On January 20, 2017, the trial court granted defendant's
motion and dismissed the complaint without prejudice.
On February 21, 2017, plaintiff moved to reinstate the
complaint. The motion papers did not include a new physician's
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certification. Instead, plaintiff reiterated that the amended
certification had been submitted in response to the motion.
On March 17, 2017, the trial court denied plaintiff's motion.
The court stated its reasoning as follows:
Plaintiff failed to satisfy the requirements
of N.J.S.A. 39:6A-8. Plaintiff failed to
timely submit a Certificate of Merit within
the applicable time period. Certificate of
merit was submitted over an entire year past
due and as such [p]laintiff did not comply
with the statute.
On April 7, 2017, plaintiff moved for reconsideration. In
his moving papers, plaintiff characterized the court's March 17,
2017 order as interlocutory and relied on Rule 4:42-2. He argued
that because his failure to timely submit a physician's
certification was a procedural deficiency, the court should have
imposed a lesser sanction, and allowed his substantive claims to
be heard. In support of its position, plaintiff relied primarily
on our holding in Watts v. Camaligan, 344 N.J. Super. 453 (App.
Div. 2001), and argued, as he had in support of his motion to
reinstate the complaint, that he complied with N.J.S.A. 39:6A-8(a)
when he submitted the amended certification to the court. His
moving papers did not address the deficiency in the amended
certification.
On May 12, 2017, the trial court denied plaintiff's motion
for reconsideration. The court expressed the view that it did not
6 A-4725-16T1
have discretion to impose a sanction other than dismissal of the
complaint. In response to plaintiff's argument that the late
submission of a physician's certification is a procedural lapse
that does not warrant dismissal when a less drastic remedy would
satisfy the statute's objectives, the court stated:
I don't disagree with that assessment, and
. . . perhaps, philosophically, I agree with
you . . . but based upon the case law, and the
rules . . . I do[ not] think I have any
discretion. . . . [N]othing would make me
happier if you take this up and get me
overruled. . . . Because . . . under the
current state of the law, I do[ not] think I
have the discretion. The statute is very
strict that it must be filed within 120 days
or the case must be dismissed. . . . [F]ailure
to file that affidavit of merit within the
strict requirements of [N.J.S.A.] 39:6A-8
warrants a dismissal of this case, and it will
die on a motion based upon that simple fact.
This appeal followed. Plaintiff's notice of appeal was late,
requiring a motion to accept the notice of appeal as if it had
been filed in a timely fashion. On August 10, 2017, this court
granted plaintiff's motion, but limited his appeal to the May 12,
2017 order denying plaintiff's motion for reconsideration. The
court found that plaintiff's notice of appeal was "inexcusably
untimely as to the prior orders" of the trial court.
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II.
We begin our analysis with the observation that the standards
set forth in Rule 4:49-2 and Rule 4:50-1 should have guided
resolution of plaintiff's motion for reconsideration. Plaintiff's
characterization of the March 17, 2017 order as interlocutory was
incorrect. As the Supreme Court explained, “[b]y definition, an
order that ‘does not finally determine a cause of action but only
decides some intervening matter pertaining to the cause[,] and
which requires further steps . . . to enable the court to
adjudicate the cause on the merits[,]’ is interlocutory.” Moon
v. Warren Haven Nursing Home, 182 N.J. 507, 512 (2005) (quoting
Black’s Law Dictionary 815 (6th ed. 1990)); see also Wein v. Morris,
194 N.J. 364 (2008). The March 17, 2017 order, which denied
plaintiff's motion to reinstate the complaint that had been
dismissed without prejudice, resolved all claims as to all parties,
and was a final order.
Rule 4:49-2 provides:
Except as otherwise provided by R. 1:13-1
(clerical errors) a motion for rehearing or
reconsideration seeking to alter or amend a
judgment or order shall be served not later
than 20 days after service of the judgment or
order upon all parties by the party obtaining
it. The motion shall state with specificity
the basis on which it is made, including a
statement of the matters or controlling
decisions which counsel believes the court has
overlooked or as to which it has erred, and
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shall have annexed thereto a copy of the
judgment or order sought to be reconsidered
and a copy of the court’s corresponding
written opinion, if any.
Rule 4:50-1 sets forth the grounds on which a party may be
relieved from operation of a final judgment:
On motion, with briefs, and upon such terms
as are just, the court may relieve a party or
the party’s legal representative from a final
judgment or order for the following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
[R. 4:50-1.]
An application to set aside an order pursuant to Rule 4:50
is addressed to the motion judge's sound discretion, which should
be guided by equitable principles. Hous. Auth. v. Little, 135
N.J. 274, 283 (1994). A trial court's determination under Rule
4:50-1 is entitled to substantial deference and will not be
reversed in the absence of a clear abuse of discretion. US Bank
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Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). To warrant
reversal of the court's order, plaintiff must show that the
decision was "made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible
basis." Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.
88, 123 (2007) (internal quotations omitted)).
The only subsection of Rule 4:50-1 under which plaintiff
arguably could have sought relief is subsection (f). Relief under
subsection (f) is available only when "truly exceptional
circumstances are present." Hous. Auth., 135 N.J. at 286 (citation
omitted). "The movant must demonstrate the circumstances are
exceptional and enforcement of the judgment or order would be
unjust, oppressive or inequitable." Johnson v. Johnson, 320 N.J.
Super. 371, 378 (App. Div. 1999) (citation omitted).
In determining whether a party should be relieved from a
judgment or order, courts must balance "the strong interests in
the finality of litigation and judicial economy with the equitable
notion that justice should be done in every case." Jansson v.
Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App. Div.
1985). Where a procedural violation is involved, additional
considerations are implicated, namely, "'[t]he defendant's right
to have the plaintiff comply with procedural rules[, which]
conflicts with the plaintiff's right to an adjudication of the
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controversy on the merits.'" Abtrax Pharms. v. Elkins-Sinn, 139
N.J. 499, 513 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 252
(1982)). In all cases, however, "'justice is the polestar and our
procedures must ever be moulded and applied with that in mind.'"
Jansson, 198 N.J. Super. at 195 (quoting New Jersey Highway Auth.
v. Renner, 18 N.J. 485, 495 (1955)).
In addition to reiterating the arguments he made before the
trial court, plaintiff argues for the first time on appeal that
the expert report he produced during discovery, in effect,
satisfied N.J.S.A. 39:6A-8(a). Plaintiff argues the trial court
should have reconsidered its decision not to reinstate the
complaint because he substantially complied with the statute.
Plaintiff also argues that the trial court mistakenly concluded
that it lacked discretion to reinstate a complaint where a
physician's certification was not timely filed.
We agree that the trial court took too narrow a view of its
authority. As the Supreme Court explained in Casinelli v.
Manglapus, 181 N.J. 354, 356 (2004),
we view the late filing of the physician
certification as akin to a discovery
violation, with respect to which the court may
resort to any of a full panoply of remedies,
ranging from an order to compel production
through dismissal, depending on the facts.
The Court continued,
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in the vast majority of cases in which an
attorney has simply slipped up and missed the
filing date for an otherwise acceptable
physician certification . . . there is no
statutory bar to continuation of the lawsuit.
Rather, the physician certification is
belatedly produced evidence supporting the
otherwise cognizable claims advanced in the
complaint. In such circumstances, we can see
no warrant for adopting as mandatory the
dismissal without prejudice remedy . . . .
[Id. at 365.]
Instead,
the court has available to it, along with
dismissal, where warranted, discovery-type
sanctions such as orders to compel, the award
of reasonable expenses incurred in obtaining
the certification, and counsel fees. See R.
4:23-1 to -5. In each case, the court should
assess the facts, including the willfulness
of the violation, the ability of plaintiff to
produce the certification, the proximity of
trial, and prejudice to the adversary, and
apply the appropriate remedy. That
methodology provides judges with discretion to
choose a response that is proportionate to the
procedural stimulus; saves for trial the
meritorious claims of truly injured victims;
and allows dismissal of cases in which a
plaintiff cannot or will not supply a
certification or in which a plaintiff's
conduct has irremediably prejudiced the
defendant.
The bedrock of our conclusion is the
legislative purpose behind the physician
certification requirement . . . . [T]he
certification serves two purposes; to provide
evidence that a plaintiff's claim is
meritorious in that he or she has, in fact,
sustained an injury that qualifies for the
recovery of non-economic damages . . . and to
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thwart fraud by furnishing a legal foundation
for a charge of perjury, should false swearing
later be shown. By allowing courts the
flexibility to accept belated physician
certifications, under appropriate
circumstances, both of [the statute's] aims
are advanced . . . .
[Id. at 365-66.]
It was, therefore, a mistaken exercise of discretion for the
trial court to have concluded that it could not grant plaintiff's
motion for reconsideration because the late filing of a physician's
certification mandated dismissal of plaintiff's complaint. The
court's decision "rested on an impermissible basis," Guillaume,
209 N.J. at 467, warranting reversal of the May 12, 2017 order,
and "truly exceptional circumstances," Rule 4:50-1(f), warrant
reconsideration of the March 17, 2017 order. The matter,
therefore, is remanded for reconsideration of the March 17, 2017
order.
We do not offer an opinion with respect to whether
reinstatement of the complaint is warranted. When reconsidering
its March 17, 2017 order, the trial court must weigh the factors
set forth in Casinelli, including whether the amended chiropractor
certification was "otherwise acceptable," despite any deficiency
claimed by defendant, and whether a less drastic remedy than
dismissal of the complaint would satisfy the statute's objectives.
In addition, we note that in Casinelli the Supreme Court left open
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the question of whether a party may avoid dismissal of its
complaint for failure to file a timely physician's certification
under the doctrines of substantial compliance and equitable
estoppel. 181 N.J. at 367. Plaintiff may advance these arguments
based on his production of a physician's expert report during
discovery.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
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