TAKEETA JENNINGS v. BAP GINDHART, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0372-06T10372-06T1

TAKEETA JENNINGS,

Plaintiff-Appellant,

v.

BAP GINDHART, M.D.,

Defendant,

and

CAPITAL HEALTH SYSTEM AT FULD,

Defendant-Respondent.

_________________________________

 

Argued September 24, 2007 Decided October 29, 2007

Before Judges Graves and Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Camden County,

Docket No. L-3600-06.

J. Craig Currie argued the cause for

appellant (Currie & McLafferty, attorneys;

Mr. Currie, of counsel and on the brief).

Stacy L. Moore, Jr., argued the cause for

respondent (Parker & McCay, attorneys;

Lora M. Foley, of counsel; Mr. Moore,

on the brief).

PER CURIAM

This appeal by plaintiff Takeeta Jennings, is from summary judgment entered in favor of defendants, Bap Gindhart, M.D., Helene Fuld Medical Center and Capital Health Systems, Inc., dismissing plaintiff's medical malpractice complaint as time-barred pursuant to N.J.S.A. 2A:14-2, despite the tolling provisions of N.J.S.A. 2A:14-21. We affirm.

The facts are undisputed. Plaintiff was born April 5, 1984; her birth was attended by Bap Gindhart, M.D., now deceased. Shortly after birth she displayed only minimal movement of her right arm and was soon thereafter diagnosed as suffering from brachial plexus palsy. Plaintiff's complaint against the medical providers was filed April 5, 2006, the day she turned twenty-two.

The statute of limitations applicable to plaintiff's claim is two years, as set forth in N.J.S.A. 2A:14-2. The running of the statute is tolled until a claimant's "coming of age" pursuant to N.J.S.A. 2A:14-21. In 1973, when the age of majority was lowered from twenty-one to eighteen, N.J.S.A. 9:17B-1, no amendment was made to the tolling statute. This age of majority statute "generated twenty years of uncertainty over the question whether that enactment was intended to change from twenty-one years to eighteen years the age until which that statute of limitations is tolled." Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 592 (1992). In Green, the Court decided the relevant statutes of limitation are tolled only until a plaintiff attains the age of eighteen, and the holding was given prospective application. Id. at 600. The "prospective application" question itself then generated litigation. In Standard v. Vas, we found prospective application meant a claimant had "two years from the date of Green, two years from the date of accident, or two years from attaining the age of eighteen, whichever is the later," to file a complaint. 279 N.J. Super. 251, 256 (App. Div. 1995).

Plaintiff contends that Prescott v. PNC Bank Corp., 332 N.J. Super. 530 (App. Div. 2000), and not Standard, should control the determination of whether this plaintiff's cause of action is in fact time-barred. The Prescott Court stated that when a court addresses the retroactivity of its decisions, it has four options:

"(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted."

[Supra, 332 N.J. Super. at 534 (quoting Coons v. Am. Honda Motor Co., Inc., 96 N.J. 419, 425 (1984), cert. denied, 469 U.S. 1123, 105 S. Ct. 808, 83 L. Ed. 2d 800 (1985)).]

The Prescott court maintained that Standard's decision about prospective application actually "changed the purely prospective option chosen by the Green Court to one of limited prospectivity." Id. at 536. Prescott, however, was decided in an entirely different context.

Prescott concerned a sexual harassment complaint under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, as did Montells v. Haynes, 133 N.J. 282 (1993). Montells found that a single statute of limitations should apply to all LAD claims, as these causes of action "are most like personal-injury claims." Supra, 133 N.J. at 286. Accordingly, the Court decided the two-year statute of limitations for personal injury claims, and not the general six-year statute of limitations, applied. Id. at 285-86. Because of the lack of clarity in prior law, Montells directed that its holding should be applied only prospectively. In other words, this rule "applie[d] only to cases in which the operative facts arise after the date of the decision." Id. at 298. Prior law "was sufficiently murky" to warrant a purely prospective application in the interest of justice. Ibid.

In Prescott, we chose not to follow the Standard analysis in the LAD context when considering changes in statutes of limitations and questions of prospectivity. Prescott, supra, 332 N.J. Super. at 537. In Prescott, this court stated "we do not quarrel with the logic . . . or reasonableness of [Standard's] conclusion." Ibid. However, in the interest of protecting a LAD claimant whose cause of action accrued before the Montells decision, Prescott found that "elemental fairness require[d] that the plaintiff have a hearing on the merits of" her complaint. Ibid.

Montells concluded that "a liberal reading of LAD" was required in order to fulfill the legislative mandate to afford special protection to victims of discrimination. Montells, supra, 133 N.J. at 298. No such public policy applies to personal injury claims.

Furthermore, as Judge Orlando said in granting summary judgment to the defendants in this case:

[T]here is a distinct difference between the language the Supreme Court used in Green and language the Supreme Court used in Montel[l]s. The Supreme Court in Green stated that we are satisfied that the interest of justice will be better served by prospective application . . . . The Court did not go on to explain what it meant

. . . . In Montel[l]s, the court very clearly determined what it meant by the prospective application.

Green required some interpretation of what prospective meant; Montells did not. Green, supra, 127 N.J. at 601; Montells, supra, 133 N.J. at 298. Green's focus is on the balancing of timely and efficient litigation of claims against equitable considerations; in Montells, the protection of the victim is paramount. Green, supra, 127 N.J. at 600-01; Montells, supra, 133 N.J. at 297. Montells reduced the time in which a claimant could pursue a cause of action from six years to two, while Green reduced the time frame from age twenty-three to age twenty. Montells, supra, 133 N.J. at 286; Green, supra, 127 N.J. at 600. Claims brought for injuries inflicted during infancy run the risk of even greater loss of potential witnesses and evidence due to the mere passage of time. It is essential that this court discourage stale claims, encourage repose, and consider the effect of time on witness availability and memory. Standard, supra, 279 N.J. Super. at 255.

Therefore, we decline plaintiff's suggestion that Prescott be applied to this and similar cases. There is no genuine issue as to any material fact challenged. The moving parties are entitled to a judgment as a matter of law.

We affirm Judge Orlando's order that the plaintiff's cause of action expired on April 5, 2004.

Capital Health System at Fuld was improperly named as Helene Fuld Medical Center and Capital Health Systems, Inc. in the complaint.

(continued)

(continued)

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A-0372-06T1

October 29, 2007