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Janelli v. Keeper6/5/1998
This matter comes before the court on defendant's motion to dismiss plaintiff's complaint for failure to comply with the affidavit of merit statute N.J.S.A. 2A:53A-26 to -29.
The plaintiff's complaint alleges that on September 3, 1996, the defendant used excessive force which resulted in two left-sided ribs being fractured during a chiropractic manipulation. Plaintiff has asserted the doctrine of res ipsa loquitur and contends that a chiropractic expert is unnecessary given the facts of this case.
It is undisputed that the affidavit of merit as required under N.J.S.A. 2A:53A-27 was not provided within sixty days after the filing of the answer. The defendant filed a motion to dismiss for that failure on July 22, 1997. The plaintiff filed a motion to extend the sixty day requirement on August 6, 1997, along with an affidavit of merit from a chiropractor on the same date. Those motions were held in abeyance pending the Supreme Court's ruling in Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 708 A.2d 401 (1998).
During the pendency of those motions, defendant filed a motion seeking summary judgment as the plaintiff did not produce an expert report by the discovery end date in November 1997. That motion was heard by the court in December 1997. The plaintiff argued that he was ready to proceed to trial under a theory of res ipsa loquitur or the common knowledge doctrine. The court denied defendant's motion and determined that an expert was not necessary under the facts of this case. The court ruled that based on Klimko v. Rose, 84 N.J. 496, 422 A.2d 418 (1980) and Mascarenas v. Gonzales, 83 N.M. 749, 497 P.2d 751, 753 (N.M.Ct.App.1972) a jury could use common knowledge and experience to enable them to conclude that a duty of care had been breached. Klimko, supra 84 N.J. at 504, 422 A.2d 418. In Mascarenas, supra 497 P.2d at 754, the court held that in a malpractice action against a chiropractor in which a patient's ribs had been broken, expert testimony was not needed to prove the standard of care required of the defendant, or to establish the causal connection between the injury and the patient's pain and suffering. The court held that should the condition be such that knowledge about it is peculiarly within that of medical men, a court should not allow a jury to conjecture or speculate about the matter. A manipulation of the spine which results in four fractured ribs, is not a condition peculiarly within the knowledge of medical men. Id. at 752.
In the present summary judgment motion, defendant seeks to have the complaint dismissed, since the plaintiff did not file the affidavit of merit within the initial sixty days after the answer was filed. At the oral argument heard on May 29, 1998, counsel for the plaintiff stated unequivocally that he intended to try this case to a jury without the use of an expert in accordance with the denial of the summary judgment motion previously filed by the defendant on those grounds. The primary issue before the court is whether a plaintiff who does not intend to utilize an expert in a malpractice case but intends to rely upon common knowledge or res ipsa loquitur is required to comply with the affidavit of merit statute. A secondary issue is whether or not a plaintiff who does not file the affidavit of merit within sixty days after filing of an answer is required to seek an extension within that initial sixty day time period. The issues both appear to be one of first impression under the affidavit of merit statute. That statute states:
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 occupa
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