Opinion
Civil Action No. 04-0629 (JEI).
October 12, 2004
SUFRIN ZUCKER, SAUL J. STEINBERG, Esq., Camden, NJ, Counsel for Plaintiff.
WHITE AND WILLIAMS, KEVIN W. LYNCH, Esq., Cherry Hill, NJ, Counsel for Defendants.
OPINION
Currently before the Court is Defendants' Motion to Dismiss Plaintiff Debra Bryan's state law claims of medical malpractice based on Plaintiff's failure to timely serve the Affidavit of Merit ("Affidavit") required by the Affidavit of Merit Statute, N.J.S.A. 53A-27, et seq. (the "Statute"). For the reasons set forth below, the Court will grant Defendants' motion and dismiss Plaintiff's state law claims with prejudice.
I. Introduction
On December 18, 2003, Plaintiff Bryan ("Bryan") filed a complaint against Prison Health Services ("PHS") and Dr. Amira Shah, in state court alleging state and federal law violations. Specifically, Bryan alleged that Defendants committed medical malpractice under New Jersey law when Defendants failed in assessing her condition, monitoring her condition, administering medication, providing care and monitoring her blood levels while she was incarcerated at the Camden County Correctional Facility. (P. Compl.) In addition, Bryan alleged that Defendants' conduct violated 42 U.S.C. § 1983 and the Eighth and/or the Fourteenth Amendment, because they demonstrated a willful or deliberate indifference to Bryan's serious medical needs. (P. Compl.) The case was removed to federal court on February 13, 2004. Plaintiff amended her complaint on September 28, 2004 to include Steinenger Behavioral Care Services ("SHCS") as an additional defendant.
PHS is contracted by Camden County to provide health related services at the Camden County Correctional Facility.
Dr. Shah is believed by Plaintiff to be the person in charge of her medical care while she was at the Camden County Correctional Facility. (P. Compl.) He is an employee of PHS.
Plaintiff alleges that SBCS is responsible for the diagnosis, treatment and medical management for inmates at the Camden County Correctional Facility with mental health and mental medical issues. (P. Am. Cmpl.)
Defendants PHS and Shah filed their Answer to the Complaint on February 26, 2004. In the instant motion, Defendants move to dismiss the state law claims because Bryan did not serve the Affidavit within 120 days of the Answer, as required by the Statute. Bryan does not contest that the Affidavit was filed late; she contends, however, that her cause of action should not be dismissed with prejudice because she substantially complied with the Statute or because some other equitable doctrine offers her protection from dismissal.
"Defendants" in this Opinion refers only to the Defendants who moved for a dismissal and for summary judgement, namely PHS and Shah.
Counsel does not articulate with any particularity the equitable claims, but rather makes vague assertions regarding fairness, notice and prejudice. This Court will address the available forms of equitable relief in turn.
II. Facts
On August 13, 2002, Bryan was lodged in the Camden County Correctional Facility. She advised the intake personnel during her admission of her medical condition and needs. (P. Compl., at p. 1.) Bryan was diagnosed at age 16 with bipolar disorder and was taking lithium as part of her treatment regime. (D. Mot. For Summ. J.) After some time at the Camden County Correctional Facility, Bryan complained of various symptoms, including but not limited to nausea, vomiting, swollen ankles, aches and pains, confusion, pressure behind her eyes and ears, rapid and unexplained weight gain, and acute abdominal pain. ( Id.) Bryan was transferred by PHS to Our Lady of Lourdes Medical Center where blood and laboratory tests determined that her lithium level was three times the accepted maximum safe level and that she was suffering from lithium toxicity. (P. Counter-Statement to D. Statement of Material Facts, at ¶ 14.) Bryan also suffered heart failure, renal compromise and mental anquish. (P. Compl.) Bryan was released from the hospital before Christmas 2002. (D. Mot. for Summ. J.) On December 18, 2003, Bryan filed a complaint against PHS and Shah. On February 26, 2004, Defendants filed their Answer.In a letter dated February 26, 2004 addressed to Defendants, Bryan's counsel requested Bryan's medical files. On two earlier occasions, prior to filing the complaint, Bryan's counsel asserts that he requested Bryan's medical files, but, after reviewing the responses to both requests, counsel was not confident that he had the complete files. (P. Counter-Statement to D. Statement of Material Facts, at ¶¶ 1-2.) On February 26, 2004, Bryan's counsel also advised Magistrate Judge Joel Rosen, by letter, that he was attempting to obtain the documents necessary to complete the Affidavit. By letter dated March 3, 2004, Defendants forwarded the requested documents. On March 25, 2004, after reviewing the files, Bryan's counsel sent them to an expert so that an Affidavit could be prepared on Bryan's behalf.
This Court has not been provided with any documentation regarding the first two requests for documents. There is no mention of to whom the requests were sent or for what the requests specifically asked. Moreover, there is no discussion or supporting evidence as to what records were received by Bryan's counsel and what, if anything, they revealed.
There was a conference before Judge Rosen on April 21, 2004, at which time Bryan's counsel alleges that the Affidavit was discussed, although there is no mention of the Affidavit in Judge Rosen's order pertaining to that conference. Bryan provides no evidence of additional communication with opposing counsel, Judge Rosen or the expert regarding production of the Affidavit.
Plaintiff's statutory time period to file the Affidavit ended on June 25, 2004, and on June 28, 2004 Defendants moved for partial summary judgment and to dismiss the state law claims with prejudice. Bryan's counsel served Defendants with the Affidavit on July 7, 2004.
III. Applicable Law
This Court has supplemental jurisdiction over Bryan's state claims and is bound by New Jersey law, including the N.J.S.A. 2A:53A-27, commonly known as the Affidavit of Merit Statute. Chamberlain v. Giampapa, 210 F.3d 154, 160-63 (3d Cir. 2000); see also Doe v. Div Youth Family Sys., 148 F. Supp. 2d 462, 493-96 (D.N.J. 2001); Boody v. Cherry Hill, 997 F. Supp. 562, 568-69 (D.N.J. 1997).
IV. Discussion
A. New Jersey Tort Reform
New Jersey statutory tort reform attempted to "bring common sense and equity to the state's civil litigation system" with the Statute. Cornblatt v. Barow, 708 A.2d 401, 405 (N.J. 1998) (citation and quotation omitted). The Statute applies to plaintiffs alleging professional negligence or malpractice by health care professionals, including but not limited to physicians, nurses and health care facilities. N.J.S.A. 2A:53A-27. Such plaintiffs must provide an Affidavit to the defendant(s) within a period of at most 120 days. Id. The purpose of the Affidavit requirement is to dispose of "frivolous litigation without preventing access to the court for meritorious claims." Palanque v. Lambert-Woolley, 774 A.2d 501 (N.J. 2001) (citation omitted).
The Affidavit must be signed by an appropriate licensed professional (usually plaintiff's expert) and must state "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." N.J.S.A. 2A:53A-27. This requirement aids the defendant by "insur[ing] that a plaintiff would be able to produce expert testimony that the defendant breached a duty of care before compelling defendant doctor to defend." Risko v. Ciocca, 812 A.2d 1138, 1140 (N.J. App. Div. 2003).
The Statute provides that the Affidavit be submitted to the defendant within 60 days of the defendant filing an Answer. The Statute allows only one 60 day extension to be granted by a court for good cause shown, equaling a maximum of 120 days from the date of the filling of the Answer. The New Jersey Supreme Court has held that a plaintiff may apply for an extension even after the initial 60 days have run, but before the full 120 days has expired. Burns v. Belafsky, 766 A.2d 1095, 1099-1101 (N.J. 2001). If a plaintiff fails to file the Affidavit in the appropriate manner, the defendant may move to dismiss the cause of action. If granted, a court will dismiss the cause of action with prejudice. Tischler v. Watts, 827 A.2d 1036, 1038 (N.J. 2003) (reaffirming that non-compliance with the Statute shall result in a dismissal with prejudice); see also N.J.S.A. 2A:53A-29 (failure to comply with the Statute is deemed a failure to state a cause of action).
In her opinion in Ferreira v. Ranoocas Orthopedic Assoc., 836 A.2d 779, 786 (N.J. 2003), Justice Long argued for a modification its mandate that when a plaintiff fails to properly provide the Affidavit, the case must be dismissed with prejudice. Id. (Long, J., concurring in part, dissenting in part). The new standard proposed would limit the mandatory dismissal only "to those cases in which a plaintiff cannot or will not produce an affidavit of merit at all." Id. at 787. Justice Long argued that "trial judges should have available to them a full panoply of discretionary remedies for procedural deficiencies . . ., including dismissal with or without prejudice and discovery — type sanctions. . . ." Id.
The Statute does allow one exception to the Affidavit requirement; in situations where the records necessary for the Affidavit (i.e., records "having a substantial bearing on preparation of the affidavit") are not made available to the plaintiff by the defendant, the plaintiff may produce a sworn statement in lieu of the Affidavit. N.J.S.A. 2A:53-28. Before filing the alternative sworn statement, forty-five days must have elapsed since the plaintiff requested the documents. Id.
Due to the fatal consequences for a party who does not adhere to its rigid requirements, the Statute has sparked much litigation and debate. New Jersey courts have responded by upholding its constitutionality, while also allowing some flexibility in how plaintiffs can comply. The New Jersey Superior Court, Appellate Division, has noted that "[t]he purpose of the statute, . . ., is not to afford malpractice defendants with a sword to fight off a malpractice action," but rather to "provide a shield against meritless litigation." Barreiro v. Morais, 723 A.2d 1244, 1248 (N.J. App. Div. 1999).
In Cornblatt, the New Jersey Supreme Court discussed the constitutional issues in dicta only, noting that it did not find that the Statute interfered with the doctrine of separation of powers. Cornblatt v. Barrow, 708 A.2d 401, 415-26 (N.J. 1998) (dicta). Noteworthy is a recent New Jersey Supreme Court decision that included an opinion by two of the seven justices, concurring in part and dissenting in part, calling for a re-examination of the constitutionality of the Statute. Ferreira, 336 A.2d at 788 (Zazzall, J., concurring in part, dissenting in part) ("writ[ing] separately to express my reservations about [the Statute's] constitutionality).
Under the common knowledge exception, if the professional negligence would be obvious to a layman, then the Statute does not require an Affidavit. When the Statute does apply, the New Jersey courts allow exceptions to the Statute's technical and formal requirements under the equitable doctrines of (I) extraordinary circumstances; (II) substantial compliance and (III) other doctrines of equity, such as estoppel, waiver and laches.
Risko v. Ciocca, 812 A.2d 1138, 1140 (N.J. App. Div. 2003) (holding under this exception that "there is no need for expert testimony and hence no need for an affidavit of merit"); see also Palanque v. Lambert Woolley, 274 A.2d 501 (N.J. 2001). This Court did not consider the common knowledge exception in the instant case as it was not briefed by the parties.
New Jersey courts allow for a dismissal without prejudice in cases where the Affidavit was not filed due to extraordinary circumstances. Cornblatt v. Barow, 708 A.2d 401 (N.J. 1998).
The doctrine of substantial compliance was specifically allowed in the Affidavit of Merit context in Cornblatt. 708 A.2d at 411-12.
While the courts refer to the doctrines of extraordinary circumstances and substantial compliance as "two equitable remedies," other equitable remedies may also be available. Ferreira, 836 A.2d 779, 783-84 (N.J. 2003) (finding doctrine of estoppel applicable); see also Knorr v. Smoal, 836 A.2d 794 (N.J. 2003) (examining equitable doctrines of waiver, estoppel and laches).
Therefore, unless the common knowledge exception applies, an Affidavit conforming with the Statute is required. Any defaults or flaws in obtaining or serving an Affidavit will only be excused under the above mentioned equitable doctrines; otherwise, the cause of action must be dismissed with prejudice.
B. Extraordinary Circumstances
Where a plaintiff fails to timely file an Affidavit due to extraordinary circumstances, a court may grant a dismissal without prejudice. Cornblatt v. Barow, 708 A.2d 401 (N.J. 1998). The standard for extraordinary circumstances is very high — inter alia but for the compelling circumstances, the Affidavit would have been filed. See Tischler v. Watts, 837 A.2d 1036, 1038 (N.J. 2003).
Plaintiff did not allege extraordinary circumstances; indeed she did not clearly articulate why the Affidavit was filed twelve days after the deadline. Therefore, this exception cannot apply.
C. Substantial Compliance
Plaintiff argues that she substantially complied with the Statute, even if there were technical deficiencies. Under the doctrine of substantial compliance, the courts will allow a plaintiff to proceed with the cause of action, despite any failings with regards to the procedural requirements of a statute, so "to `avoid technical defeats of valid claims.'" Palanque v. Lambert Wooley, 774 A.2d 501, 505 (N.J. 2001) (citation omitted). The moving party must 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) reasonable notice of petitioner's claim; and (5) a reasonable explanation of why there was not strict compliance with the statute." Ferreira v. Rancocas Orthopedic Assoc., 836 A.2d 779, 783 (N.J. 2003) (citation omitted).
(1) Plaintiff must demonstrate that defendant did not suffer prejudice as a result of the non-compliance.
A short delay will not amount to prejudice if it has not significantly affected the length or cost of the matter. In Ferreira, the court noted that the defendants did not "contend that they suffered prejudice by the eighteen day late service of the affidavit." 836 A.2d at 784. The court also noted that "[t]here was no delay in the proceedings or unnecessary expense incurred by defendants as a result of the affidavit's tardy arrival." Id.
Defendants have not suffered prejudice due to Plaintiff's delay. The Affidavit was filed twelve days after the deadline. Bryan claims that Defendants knew or were aware of the Plaintiff's medical history and the claims that she was asserting. Moreover, Defendants do not even claim that they have been prejudiced by the late filing of the Affidavit. There was no increased delay or expense in trial preparation due to the `tardy' Affidavit and therefore no prejudice.
(2) Plaintiff must demonstrate that a series of steps were taken to comply with the applicable statute.
Bryan did make some effort to obtain the Affidavit by (1) taking steps to obtain the medical records (requesting them on three different occasions); (2) reviewing and copying the records; (3) sending the files to the expert; and (4) advising opposing counsel about the status of the Affidavit. Even if these four steps would constitute sufficient steps to obtain the Affidavit, and this Court does not find that it does, more is required to find substantial compliance.
For a plaintiff to take sufficient steps that would amount to substantial compliance, she must not only take steps towards obtaining expert verification of the merit of the claims in a timely manner, but she also must make an effort to timely convey that documentation to the defendant. Even when a plaintiff succeeds in obtaining expert verification of her claim in a timely manner, this does not demonstrate a sufficient action to comply with the Statute. In Ferreira, plaintiff's counsel had the Affidavit in his hands well before the deadline, but due to carelessness and whatever other reasons, he failed to forward the Affidavit to opposing counsel. Ferreira, 836 A.2d at 784. The court found that plaintiff's case for substantial compliance "fell short of the mark" because "plaintiff's counsel did not, within the statutory time frame, take steps to forward the affidavit to opposing counsel." Id.
Similarly, in Palanque, the court found that plaintiff had not taken sufficient steps towards compliance because while she obtained an expert report, she did not take any steps to provide the report or an Affidavit to the defendant. The Palanque court went on to distinguish successful and unsuccessful claims by noting that in cases making successful claims of substantial compliance, "the plaintiffs took a series of steps that notified the defendants about the merits of the malpractice claims against them." Palanque, 774 A.2d at 506 (emphasis added).
While courts are flexible as to what constitutes actual notice. Plaintiff in this case took no steps within the 120 day statutory period to advise Defendants that an expert had found merit to the claim. Indeed, she could not have done so, because no expert had so opined before the expiration of the 120 days.
Fink v. Thompson, 772 A.2d 386, 394-95 (N.J. 2001) (finding substantial compliance in the face of technical issues with the Affidavit); Galik v. Clara Maass Medical Center, 771 A.2d 1141, 1147-48 (N.J. 2001) (finding substantial compliance where plaintiff obtained initial and supplementary expert reports and forwarded those reports to defendants' insurance carriers); Cornblatt, 708 A.2d at 422 (noting that there might be substantial compliance where there was "limely filling of a certification . . . containing the quality and level of information contemplated by the affidavit requirement," rather than the filing of an Affidavit).
(3) Plaintiff must demonstrate that there was general compliance with the purpose of the statute.
While Bryan may have tried to comply with the Statute, she in fact did not accomplish its two key goals. First, she never obtained any type of expert report, certification, or verification during the 120 day period. Cf. Ferreira, 774 A.2d at 784 (finding "plaintiff's counsel had complied with the underlying legislative purpose of having an expert verify the meritorious nature of the malpractice claims at an early stage of the case"). Even construing the definition of an "Affidavit" loosely, as the New Jersey courts have done, there is no evidence that merits of Bryan's claim were ever verified by an expert before the expiration of the 120 day period. When she finally obtained an Affidavit it was dated July 7, 2004. Second, she did not (because she could not) convey an Affidavit or its equivalent to the Defendants until twelve days after the statutory period expired. This is not a case where a plaintiff obtains an expert verification of merit that is somehow technically flawed, but is nonetheless served within the requisite time. Bryan failed to achieve either goal of the statute within the 120 day period; she did not obtain an expert's verification of the merits of her claim and thus was unable to convey this information in a timely fashion.
(4) Plaintiff must provide reasonable notice of the claims.
Bryan argues that defendants were on notice of the claims and that Defendants knew as much about plaintiff's claims through informal means as they would have had they received the Affidavit. Bryan claims that Defendants were aware of her medical situation and had in their possession her entire medical file, and therefore were able to devise a litigation strategy despite the late Affidavit. In almost all causes of action alleging medical malpractice, the defendant will understand the nature of the plaintiff's claims and have access to the medical records. If that alone was sufficient to satisfy the Statute, this prong would be rendered meaningless.
(5) Plaintiff must provide a reasonable explanation for the lack of full compliance.
Plaintiff provides no justification for the delay in timely obtaining the Affidavit, which contained one simple paragraph. The Court notes that Plaintiff's counsel hired an expert in March, but does not see any explanation as to what, if any, action was taken to ensure that the expert would return the Affidavit in a timely manner. Indeed, counsel does not even mention the statutory deadlines in his letter to the expert. Nor is there any indication that Plaintiff's counsel followed up with his chosen expert as the filling date approached in June. Moreover, the record does not reflect any impediment to the ability of Plaintiff's counsel to meet the requirements of the Statute.
The Affidavit of Mark Rubinstein, M.D., dated July 7, 2004, contains five statements, with the first three addressing Dr. Rubinstein's credentials and the last one stating that Dr. Rubinstein has no relationship with the parties and has no financial interest in the outcome of the case. Only one statement deals with the merits of Bryan's claim: "I have preliminary reviewed several medical records of Debra Bryan and state that there is a reasonable probability that the care, skill and knowledge exercised in the treatment of Debra Bryan fell below the acceptable or occupational standards of treatment practices." This one statement relating to the merit of Bryan's claim does not even address the individual. Defendants, and in fact only uses the Defendants' names in the Affidavit caption.
While Bryan may meet the first prong of the substantial compliance test, she ultimately cannot demonstrate that she has satisfied the other four prongs of the Statute. Therefore, unless another form of equitable relief is applicable, this Court must dismiss her medical malpractice claims with prejudice.
D. Additional Equity Doctrines
In Forreira, the majority held that while substantial compliance was not present, it was "not [the] end our equitable analysis." Ferreira, 836 A.2d at 784. The majority articulated an additional exception under the equitable doctrine of estoppel; "[i]n a case where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss" the case will not be dismissed under the Statute. Id. at 785.
Plaintiff in this case did not file the Affidavit until after being served with a dismissal motion. The majority opinion specifically stated that in cases where defense counsel files a motion to dismiss before plaintiff provides the Affidavit, this type of equitable relief will not be available. Id. ("If defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply.").
The equitable doctrine of waiver may be employed when "a party knew of the right and then abandoned it, either by design or indifference." Knorr v. Smeal, 836 A.2d 794, 798 (N.J. 2003). In the Affidavit context, the New Jersey Supreme Court has noted that there is nothing in the Statute that sets forth a lime frame for a defendant to file a motion to dismiss. Id. A defendant need only wait until a default before moving to dismiss. Defendants moved for a dismissal just a few days after the 120 day window closed. Therefore, without any evidence in the record pointing to a Defendant's "intention[al] election to forgo his right to seek the remedy of dismissal by his tardy filing of the motion [to dismiss]," id. at 799, Plaintiff cannot seek protection for a late Affidavit filing under the doctrine of waiver.
However, the court in Knorr declined to find that since the Legislature was silent as to providing a timeframe for a defendant to move to dismiss, there should be no time limits. Indeed, a de facto time limit may be created if a defendant. "sleeps" on his rights in situations where the doctrines of estoppel or laches would apply.
Bryan's counsel contends that he was under the impression that "the instant motion [to dismiss/for summary judgment would not be filed without some further discussion between counsel or further conference before judge Rosen." (P. Counter-Statement of Mat. Facts, ¶ 11.) This Court will not shift the burden of providing the Affidavit from the plaintiff to the defendant by creating a de facto requirement that the defendant request the Affidavit before moving to dismiss. Plaintiff's counsel was well aware of the Affidavit requirement, even referring to it in his letters to opposing counsel and Judge Rosen.
The doctrine of laches may also be applied to benefit a plaintiff who files a late Affidavit. In such cases, the doctrine can be "invoked to deny a party enforcement of a known right [the right to move to dismiss with prejudice] when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party." Knorr, 836 A.2d at 800 (citation omitted).
As discussed above, in this case, Defendants did not delay in filing a motion to dismiss. Even if a few days were considered a "delay," such a wait would by no means qualify as "inexcusable." Furthermore, Bryan still did not have the Affidavit in her hand when Defendants filed the motion to dismiss. There is no possible way that she was prejudiced by the timing of the motion to dismiss, since she had yet to comply with the Statute. The doctrine of laches is not applicable to Bryan under these circumstances.
E. Sworn Statement in Place of the Affidavit, N.J.S.A. 2A:53A-28
In a vague manner, Plaintiff alludes to N.J.S.A. 2A:53A-28, which allows a plaintiff to produce a sworn statement instead of an Affidavit. This provision of the Statute only can apply when (1) "the defendant has failed to provide plaintiff with medical records . . . having substantial bearing on preparation of the affidavit;" (2) a written request for the necessary records has been sent, by certified mail or personal service, along with a signed release for said records; and (3) Forty-five days have passed since the defendant received the written request.
Plaintiff is more than imprecise in her characterization of N.J.S.A. 2A:53-28. Plaintiff asserts that "New Jersey Legislation contains a provision that upon certification of the attorney that the medical records are needed prior to the issuance of an affidavit of Merit, the Court can extend time within which to file the Affidavit to permit first the obtaining of legible medical records and sufficient time for expert review of those records." This provision does not operate to extend the time requirements of the Statute, but it can offer relief against a recalcitrant defendant under limited circumstances. See Aster v. Shoreline Behavioral Health, 788 A.2d 821, 826-29 (N.J. App. Div. 2002) (allowing a request to file a sworn statement to relate back to the date when plaintiff initiated her requests for the medical records, which was prior to filing suit and continued throughout the case, where the defendants stonewalled the plaintiff at every occasion).
In this case, there were three requests for Plaintiff's medical records. Plaintiff received a response on each occasion. Moreover, within days of the filing of the Answer, Plaintiff had the complete medical file. There is no indication of unwillingness or recalcitrance on the part of Defendants. This provision does not apply to Plaintiff's case.
The parties did not provide concrete information on the two earlier requests for documents, so it is pure speculation as to the contents of the responses to those requests. Even were this Court to find that the two earlier responses excluded records that had "a substantial bearing on preparation of the affidavit," the Plaintiff still had a full, complete record within days of the Answer being filed.
V. Conclusions
For the reasons set forth above, the Court will grant Defendants Shah's and PHS' motion and dismiss Plaintiff's state medical malpractice claims with prejudice. The Court will issue an appropriate Order.
Even though an Amended Complaint was filed on September 28, 2004, well after the original 120 day window had expired, an argument might be made that the filing of the Amended Complaint opened a new window for filing the Affidavit of Merit. See, e.g., Snyder v. Pasdack Valley Hospital, 303 F.3d 271 (3d Cir. 2002). As a condition of obtaining leave to file the Amended Complaint, Plaintiff agreed that it would not use such a filing as a basis for arguing there was now a new statutory time period to submit an Affidavit. (Letter from P. Counsel, S. Steinberg to Judge Irenas, dated October 1, 2004; Letter from D. Counsel, P. Bynch to Judge Irenas, dated October 7, 2004.)
In his October 7, 2004 letter to this Court Plaintiff's counsel also sets forth an additional claim. Counsel states that "at the time the Motion [to dismiss/for summary judgement] was filed, a Dismissal could have been taken and the Complaint could have been re-filed within the Statute of Limitations." Plaintiffs generally are empowered under Fed.R.Civ.P. 41(a)(1)(I) to unilaterally dismiss a case without prejudice, but only prior to service of the Answer. Plaintiff's above statement could not be meant to invoke Rule 41(a)(1)(I) as the Answer already had been filed. Plaintiff may have sought a dismissal without prejudice by stipulation under Rule 41(a)(1)(II) at the time the Motion to Dismiss was filed, but that would have required the agreement of all named defendants. Plaintiff may have also sought a court ordered dismissal without prejudice under Rule 41(a)(2), but such action would require a court to agree with Plaintiff's position. There is no basis to assume that Plaintiff could have obtained Defendants consent to a stipulation to dismiss without prejudice, and effectively re start the statutory period. Nor can one assume that, for the express purpose of evading the Statute, Plaintiff could have persuaded a court to enter a dismissal without prejudice, after both an Answer and a Motion to Dismiss had been filed.