Opinion
DOCKET NO. A-3018-14T2
08-12-2016
SOON BOK KIM, Plaintiff-Appellant, v. RICHARD D. SCIARETTA and JEONGHO PARK, Defendants-Respondents.
Andrew Park, P.C., attorneys for appellant (Steve Jungsuk Park, of counsel and on the brief). Zirulnik, Sherlock & DeMille, attorneys for respondent Richard D. Sciaretta (Margaret A. Sherlock, on the brief). Law Office of Eric H. Bennett, attorneys for respondent Jeongho Park (Katherine M. Romanek, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5338-12. Andrew Park, P.C., attorneys for appellant (Steve Jungsuk Park, of counsel and on the brief). Zirulnik, Sherlock & DeMille, attorneys for respondent Richard D. Sciaretta (Margaret A. Sherlock, on the brief). Law Office of Eric H. Bennett, attorneys for respondent Jeongho Park (Katherine M. Romanek, on the brief). PER CURIAM
Plaintiff Soon Bok Kim appeals from the January 23, 2015 summary judgment dismissal of her automobile negligence complaint against defendants Richard D. Sciaretta and Jeongho Park. Because plaintiff inexcusably failed to comply with the physician certification requirement, N.J.S.A. 39:6A-8(a), dismissal was appropriate, but should have been without prejudice.
We discern the following facts from the record, extending all favorable inferences to plaintiff as the non-movant. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In July 2012, plaintiff was injured in an accident when Sciaretta's vehicle struck the vehicle that she occupied, which her husband Park was driving. At the time, plaintiff and Park were named insureds under a personal motor vehicle insurance policy issued by GEICO.
Plaintiff filed a complaint against Sciaretta in November 2012, asserting a single count of negligence. In May 2013, Sciaretta filed an answer and third-party complaint against Park. Plaintiff amended her complaint on July 28, 2014 to add a claim against Park. He filed his answer to the amended complaint on August 11, 2014.
Meanwhile, in February 2014, plaintiff was examined by Mark S. McMahon, M.D., a licensed, board-certified orthopedist. In a report dated February 3, 2014, Dr. McMahon wrote that plaintiff complained of back pain, pain and stiffness in her neck and shoulders, and numbness and tingling in her left arm. His report stated that plaintiff had a herniated disc at C4-5, "disc bulges with thecal sac impingement" at C5-6 and C6-7, a lumbar spine injury, and supraspinatus and infraspinatus tendinosis in both shoulders. He opined that her injuries were caused by the July 2012 car accident. He concluded that her condition was "permanent" and "interferes with her quality of life and her activities of daily living." He wrote that plaintiff "would benefit from a C4-5 discectomy and fusion using instrumentation and bone graft." He also recommended MRIs, and wrote that plaintiff "is a candidate for arthroscopic subacromial decompression."
The record includes no competent evidence that Dr. McMahon ever actually treated plaintiff, or that plaintiff was referred to Dr. McMahon by a treating physician. In her July 2013 answers to Form A Uniform Interrogatories, plaintiff stated that she had been treated by Doshi Diagnostic Imaging Services, North East Empire Medical, P.C., and Hong's Physical Therapy, P.C. Her answers stated that, upon information and belief, she was still treating with them. She did not identify Dr. McMahon as a treating physician, nor does the record indicate that she amended her answers to add him as a treating physician. See R. 4:17-7. At her May 2014 deposition, plaintiff identified Dr. Jean Compas as the physician who provided follow-up treatment after the accident, and stated that she was receiving ongoing acupuncture treatment at Hyo Ahn Acupuncture.
We attribute these answers to plaintiff, although we note that the answers lacked the required certification.
Plaintiff testified that she only saw Dr. McMahon once, in February 2014, and did not plan "to go back to Dr. McMahon." She stated that he did not prescribe any medicine, therapy, or tests. There is no evidence in the record that one of her other health care providers referred her to Dr. McMahon. Dr. McMahon's February 2013 report was addressed only to plaintiff's attorney, and not to any health care providers.
After discovery ended on October 6, 2014, Sciaretta filed a motion for summary judgment on the ground that plaintiff had not provided a physician certification attesting that she met the verbal threshold requirement contained in N.J.S.A. 39:6A-8(a). That statute provides that, in cases where the plaintiff is subject to the limitation on lawsuit option in subsection (a), she must produce, "within 60 days following the date of the answer to the complaint by the defendant," a certification attesting that she suffered a permanent injury. The certification must be prepared by "the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician." Ibid.
Park joined in Sciaretta's motion.
Plaintiff filed her opposition on January 15, 2015. She admitted that her suit was subject to the limitation on lawsuit option, see N.J.S.A. 39:6A-8(a), and that she had "failed to provide a certification of permanency [as required by] N.J.S.A. 39:6A-8 in a timely manner (60 days)." She attached an undated "Certification Pursuant to N.J.S.A. 39:6A-8a of the Automobile Insurance Cost Reduction Act of 1998," executed by Dr. McMahon.
The certification stated that based on Dr. McMahon's "clinical findings" and tests performed on February 3, 2014, he concluded plaintiff had "sustained a permanent injury to her neck, back, and both shoulders." The certification stated that he "examined" plaintiff, but made no mention of treating her. The certification was made under penalty of perjury. Plaintiff served the certification on defendants' attorneys on January 14, 2015. She had previously served Dr. McMahon's February 3 report on Sciaretta's counsel on February 20, 2014. Relying on this certification, plaintiff argued Dr. McMahon was a treating physician, but provided no competent evidence to that effect.
The court granted defendants' motion on January 23, 2015, and dismissed the complaint with prejudice. In an oral decision, the court held that plaintiff had not complied with N.J.S.A. 39:6A-8(a), since the certification was not filed within 60 days of the answer, and Dr. McMahon was not "the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician." The court noted that Dr. McMahon only examined plaintiff, and was not referred to her by a treating physician.
On appeal, plaintiff argues that her failure to comply with N.J.S.A. 39:6A-8(a) does not bar her claim, since she produced Dr. McMahon's certification as soon as she realized her error, and she had previously produced his February 3 report. She renews her argument that Dr. McMahon was a treating physician, and, if not, contends there was a factual dispute regarding whether she was referred to him by a treating physician. She relies on Casinelli v. Manglapus, 181 N.J. 354, 365-66 (2004), which held that the late filing of "an otherwise acceptable physician certification" is not automatic grounds for dismissal.
We are unpersuaded. In Casinelli, the plaintiff produced two certifications, one of which was by her treating physician, after the statutory deadline. Id. at 358. The Court reasoned that the certification "is not a fundamental element" of the cause of action, and is "akin to a discovery violation." Id. at 355-56. Accordingly, the mere late filing of a certification because an attorney "simply slipped up" does not compel dismissal, but is rather "subject to the arsenal of remedies" for "failure to make discovery." Id. at 365. The Court stressed, however, that dismissal is still appropriate in cases where "a plaintiff is unwilling or unable to produce a physician certification." Id. at 364-65.
This is such a case. In addition to missing the filing deadline, plaintiff did not provide a certification from "the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician." N.J.S.A. 39:6A-8(a). Plaintiff provided no competent evidence that Dr. McMahon ever treated her, or that a treating physician referred plaintiff to him. Because a certification from Dr. McMahon, even if timely, did not satisfy the statute, the deficiency here is not merely the late filing of "an otherwise acceptable physician certification." Casinelli, supra, 181 N.J. at 365.
Given these facts, we need not address the fact that Dr. McMahon's certification was served almost a year after he saw plaintiff. Cf. Tierra v. Salazar, 356 N.J. Super. 586, 588 (App. Div. 2003) (suggesting that certification must be prepared by a physician "who was 'treating' [the] plaintiff on the date of the certification").
Plaintiff's non-compliance with the statute bears more directly on the merits of her claim. A key purpose of the certification requirement is "to supply evidence that a plaintiff has, in fact, sustained an injury" that satisfies the verbal threshold. Id. at 362. As the Casinelli Court explained, in "legitimate cases" where the only deficiency is a late filing, mandatory dismissal "does nothing but guarantee the random elimination of meritorious cases." Id. at 366. In other words, the mere fact that the certification was filed late does not raise doubt as to the merits of the underlying claim. Equating the late filing with a discovery violation is thus consistent with the statute's "fundamental purpose of disposing of non-meritorious cases expeditiously." Ibid.
Plaintiff's complete failure to obtain a certification that complies with the statute is more than a mere discovery violation. It raises a question about whether plaintiff can surmount the verbal threshold. As the Court emphasized, dismissal is warranted in "cases in which a plaintiff is unwilling or unable to produce a physician certification." Id. at 364-65.
Although plaintiff now argues that she intends to furnish a compliant physician certification if given an opportunity, she provides no competent evidence to support that claim. Moreover, even if true, through her counsel, she had ample opportunity to cure the oversight, yet inexcusably failed to do so. --------
Given the substantive deficiency in plaintiff's physician certification, to treat this as a discovery violation would not further the statute's purpose "to cull out those non-meritorious matters in which the new [verbal] threshold cannot be met and to counter fraud." Id. at 366. Because plaintiff was unable to produce a certification meeting the requirements of N.J.S.A. 39:6A-8(a), "the litigation cannot go forward and thus the complaint should be dismissed." Id. at 365. Accordingly, the trial court was correct to dismiss the complaint.
The court erred, however, in dismissing the complaint with prejudice. In Watts v. Camaligan, 344 N.J. Super. 453, 461 (App. Div. 2001), we held that "dismissal is warranted where there is a failure to comply with the physician certification filing requirements." However, having found that the Legislature did not intend the requirement "to go to the establishment of a cause of action," we concluded that a failure to comply does not "preclude future suits . . . ." Id. at 467. We established the general rule that "the inability to comply with the production of a physician certification" should result in dismissal without prejudice. Id. at 468.
Casinelli overruled Watts to the extent it viewed the physician certification as akin to a pleading, requiring dismissal in every case of non-compliance. 181 N.J. at 364. Rather, dismissal is one of a range of remedies for non-compliance with the statute, "depending on the facts." Id. at 366. Casinelli thus holds that when dismissal is appropriate, it should be without prejudice.
We recognize that dismissal without prejudice may have the practical effect of dismissal with prejudice if defendants successfully assert a statute of limitations defense. However, we also recognize that if plaintiff refiles, principles of equitable estoppel may apply to bar assertion of that defense. See Konopka v. Foster, 356 N.J. Super. 223, 230-33 (App. Div. 2002); Casinelli v. Manglapus, 357 N.J. Super. 398, 412-17 (App. Div.), rev'd on other grounds, 181 N.J. 354 (2004).
In sum, the trial court correctly dismissed plaintiff's complaint, but should have done so without prejudice.
Affirmed as modified. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION