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Macedo v. Russo3/27/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 30, 2002
Plaintiffs filed a class action complaint against defendant Joseph Dello Russo, a licensed physician specializing in ophthalmology and laser surgery; his practice entity, a professional association which trades as the New Jersey Eye Center, Medical Care, P.L.L.C., and does business as Dello Russo Laser Vision; and William T. Kellogg, M.D., an employee of Dello Russo. As later amended, the complaint is in six counts alleging battery stemming from willful misrepresentation of the treating physician's identity; common law fraud; violation of the Consumer Fraud Act (the Act), N.J.S. A. 56:8-1 to -106; negligent misrepresentation; lack of informed consent; and vicarious liability.
The complaint contains no allegations of physical injury to the plaintiffs; rather, the claims are based on "mental anguish, loss of enjoyment of life, medical bills, and economic damages." The complaint seeks "compensatory damages, punitive damages, attorneys fees, interest, costs."
Without joining issue, defendants moved pursuant to R. 4:6- 2(e) to dismiss the complaint for failure to state a claim upon which relief can be granted. After oral argument, the trial court granted the motion as to the Consumer Fraud Act claim only. The remaining counts of the complaint were not dismissed on the R. 4:6-2(e) motion.
Plaintiffs moved for leave to appeal the interlocutory order dismissing the consumer fraud count. We granted the motion and now reverse that determination. None of the trial court's rulings on the remaining five counts is before us in this appeal.
For the purposes of this appeal, we take the allegations of the complaint to be true, as the trial court correctly did. See Lemelledo v. Beneficial Mgmt. Corp., 150 N.J. 255, 263 (1997); Feinberg v. Department of Environmental Prot., 137 N.J. 126, 129 (1994).
The motion judge based his ruling on the perception that plaintiffs' consumer fraud claim must be seen in "the totality of the circumstances" to implicate the provision of medical services. Despite plaintiffs' "attempt to distinguish the business aspect of the [defendants]," the judge held the Consumer Fraud Act inapplicable to "the practice of medicine as presented under the facts of this case." In reaching that conclusion, the motion judge relied on Hampton Hospital v. Bresan, 288 N.J. Super. 372 (App. Div. 1996), and two Illinois cases cited therein, Frahm v. Urkovich, 447 N.E. 2d 1007 (1983), and Feldstein v. Guinan, 499 N.E. 2d 535, 538 (Ill. Ct. App. 1986), and rejected plaintiffs' invocation of our reasoning in Blatterfein v. Larkin Assocs., 323 N.J. Super. 167, 175-83 (App. Div. 1999).
In Blatterfein, we affirmed a trial court ruling declining to dismiss a Consumer Fraud Act claim against an architect, observing that even if the "learned profession" bar against consumer fraud claims referred to in dictum in Neveroski v. Blair, 141 N.J. Super. 365, 379 (App. Div. 1976), had any continuing validity, it could not be successfully asserted where the professional's conduct alleged as the basis of the claim implicated his commercial activity, such as the advertising of services, as distinguished from the rendition of the professional services themselves. It is worth noting that the trial judge in Blatterfein distinguished Hampton Hospital; and we, in affirming his ruling, noted that Hampton Hospital had substantially qualified the limiting dictum of Neveroski, if not entirely vitiating it. See Blatterfein, supra, 323 N.J. Super. at 178. Morover, the ruling in Blatterfein eventuated in the context of a motion for summary judgment where th
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