A.T. v. Cohen

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                     A.T. v. M. Cohen, M.D. (A-12-16) (077821)

Argued September 25, 2017 -- Decided December 14, 2017

LaVECCHIA, J., writing for the Court.

           In this appeal as of right, R. 2:2-1(a)(2), the Court considers whether, under the circumstances of this case,
the trial court properly dismissed the action with prejudice because plaintiff failed to serve a timely affidavit of merit.
The Court also considers whether recourse to a voluntary dismissal without prejudice under Rule 4:37-1(b) is an
appropriate avenue for addressing failures to comply with the affidavit of merit requirement.

         T.T. gave birth to A.T. at Newark Beth Israel Hospital (the Hospital) on May 19, 2011. At the Hospital,
T.T. and A.T. (collectively, plaintiff) were under the care of Morris Cohen, M.D., Khalid Savaged, M.D., Cindy
Galeota, C.N.M., Julio Caban, M.D., and Bauhuong Tran, M.D. (collectively, with the Hospital, defendants). In her
amended complaint filed on September 25, 2013, plaintiff alleges that defendants’ treatment of T.T. and A.T. fell
below the accepted standard of care and caused A.T.’s injury and birth defects. Plaintiff further alleges that
defendants’ negligence caused T.T. the loss of A.T.’s society, companionship, and support.

          Defendants filed an answer on December 5, 2013, denying the allegations set forth in the amended
complaint and demanding, among other things, that plaintiff produce an affidavit of merit (AOM) pursuant to the
Affidavit of Merit Statute (AMS), 
N.J.S.A. 2A:53A-26 to -29. Under the statute, plaintiff had sixty days from that
date -- or 120 with leave of the court -- to file an AOM with respect to each defendant. By February 3, 2014, sixty
days had elapsed since defendants filed their answer, and plaintiff had not served defendants with an AOM. At no
time prior to the sixty-day mark or at any time thereafter did any court personnel attempt to convene a Ferreira
conference, and at no time was one requested or waived by counsel.

          On April 7, 2014, defendants filed a motion for summary judgment. In support, defendants relied on
plaintiff’s failure to produce an AOM within the statutorily mandated time frame and claimed entitlement to
dismissal with prejudice. Plaintiff opposed defendants’ motion and submitted an AOM dated May 22, 2014.

         Prior to argument on the underlying motion, plaintiff’s counsel made an oral application for a voluntary
dismissal without prejudice pursuant to Rule 4:37-1(b). Counsel revealed, for the first time, that plaintiff’s failure to
timely submit an AOM was due to counsel’s own oversight, which stemmed from plaintiff’s stipulation granting
defendants extra time to file an answer. The court denied plaintiff’s motion for a voluntary dismissal, granted
defendants’ motion for summary judgment, and dismissed the action with prejudice.

         Plaintiff appealed. A majority of the Appellate Division panel rejected the assertion that attorney oversight
was sufficient reason to grant a voluntary dismissal under the circumstances. 
445 N.J. Super. 300, 306-07 (App.
Div. 2016). The panel affirmed the order granting summary judgment to defendants and dismissing the matter with
prejudice. The dissent asserted that a finding of exceptional circumstances would have been appropriate here. Id. at
313. The dissent would have ordered entry of a dismissal without prejudice in light of A.T.’s minor status, her
attorney’s mishandling of the AOM, and the relatively little prejudice defendants have suffered, and would have
allowed the trial court the ability to impose conditions on the re-filing of plaintiff’s claims.

HELD: The Court reverses the grant of summary judgment to defendants and remands the matter for further
proceedings, finding that the equities militate in favor of permitting a facially meritorious action to proceed here. The
Court declines to approve recourse to a voluntary dismissal without prejudice under Rule 4:37-1(b) as an appropriate
avenue for addressing failures to comply with the affidavit of merit requirement, including when a minor is involved.
Rather, the Court will require modification of the Judiciary’s electronic filing and notification case management system
to ensure that, going forward, necessary and expected conferences are scheduled to enhance parties’ compliance with
requirements under the Affidavit of Merit Statute, in furtherance of the statutory policy goals.



                                                            1
1. The failure to provide an AOM is “deemed a failure to state a cause of action,” 
N.J.S.A. 2A:53A-29, requiring
dismissal with prejudice, Alan J. Cornblatt, P.A. v. Barow, 
153 N.J. 218, 247 (1998). However, the Court has
recognized equitable exceptions to “temper the draconian results of an inflexible application of the statute,” Ferreira
v. Rancocas Orthopedic Assocs., 
178 N.J. 144, 151 (2003), and has created mechanisms to draw attention to and
facilitate satisfaction of this statutory obligation and its goals, id. at 154-55 (establishing discovery-stage case
management conference to encourage and facilitate compliance with AMS requirements, to avoid dismissal of
meritorious claims due to inadvertence, and to promote goal of weeding out insubstantial claims). (pp. 11-12)

2. The Ferreira conference was designed to be the Judiciary’s key tool to promote satisfaction of the AMS’s
salutary policy goals. The Court mandated the conference and imposed requirements on both courts and defendants
to discover and address issues as to the sufficiency of a plaintiff’s AOM. Id. at 155. In 2010, the Court wrestled
with the fact that mandatory Ferreira conferences were not being routinely conducted as expected. In Paragon
Contractors, Inc. v. Peachtree Condominium Ass’n, 
202 N.J. 415, 424 (2010), the Court clarified that, “[a]lthough
Ferreira conferences should be held as a matter of course, they may be omitted [upon submission of a proposed
consent order indicating that] 'the [AOM] has been provided by plaintiff and all defendants have waived any
objections to its adequacy.’” The Court added that, “going forward, reliance on the scheduling of a Ferreira
conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll
the statutory time frames.” Id. at 426. (pp. 12-15)

3. The Court’s warning in Paragon that the failure to conduct a Ferreira conference would not routinely toll the time
for submission of an AOM was not meant to foreclose the finding of extraordinary circumstances when a
combination of events occurred. Here, just such circumstances occurred. While “attorney inadvertence” will not,
standing alone, support a finding of extraordinary circumstances, in this case, the Judiciary failed to do what the
Court expected, namely to act as a backstop. No Ferreira conference was scheduled, which would have assisted in
keeping the parties focused on the timing of the necessary affidavit. Counsel here did secure an affidavit when
defendants filed a motion for summary judgment. The Court presumes from plaintiff’s swift compliance upon the
filing of the motion that it is dealing with a non-frivolous matter, not the type of case that the AMS intended to weed
out. There is no prejudice to defendants that the equitable powers of our courts cannot address. The trial court has
the discretion to require plaintiff to reimburse defendants for the costs incurred in the extra proceedings that took
place as a result of the delayed compliance with the AMS, which can mitigate prejudice to defendants. Although
this matter does not fit neatly into the factual scenarios of past extraordinary-circumstances cases, the Court is
persuaded that equitable relief should be afforded to plaintiff. (pp. 15-18)

4. Except in certain types of actions inapplicable here, “an action shall be dismissed at the plaintiff’s instance only
by leave of court and upon such terms and conditions as the court deems appropriate.” R. 4:37-1(b). Reviewing
courts of this state frown on the use of a dismissal without prejudice under Rule 4:37-1(b) as a mechanism for
salvaging a case that has run aground on requirements established in statutes or in the Rules of Court. Cracking
open the use of dismissals of actions without prejudice to allow more time whenever a plaintiff runs aground on the
requirements of the AMS would prolong litigation and potentially eviscerate the AMS policy of weeding out, early
on, non-meritorious malpractice cases. The Court declines to send the matter back for entry of a dismissal without
prejudice and instead relies on the presence of extraordinary circumstances to reverse the dismissal entered below.
The Court cautions courts to adhere to the spare use of dismissals without prejudice as prior case law instructs. See
Shulas v. Estabrook, 
385 N.J. Super. 91, 102-03 (App. Div. 2006). (pp. 18-22)

5. Going forward, advancements in the automated case management system will permit electronic notification of
(1) the AOM filing obligation and (2) the scheduling of a Ferreira conference. The electronic case management
system will be updated to issue notices to counsel and accomplish those tasks. Further details concerning those
improvements will be provided through the Administrative Office of the Courts. With the Court’s announcement of
those improvements comes a cautionary note. Counsel are on notice that disregarding the scheduling of the
conference, or waiving the conference, will not provide a basis for relief from AMS obligations. (pp. 22-23)

         The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for
further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, AND
TIMPONE join in JUSTICE LaVECCHIA’s opinion.




                                                           2
                                     SUPREME COURT OF NEW JERSEY
                                       A-
12 September Term 2016
                                                077821

A.T., an infant by her mother
and natural guardian, T.T.,
and T.T., individually,

    Plaintiffs-Appellants,

         v.

M. COHEN, M.D., KHALID
SAVAGED, M.D., CINDY GALEOTA,
C.N.M., JULIO CABAN, M.D.,
BAOHUONG TRAN, M.D., and
NEWARK BETH ISRAEL MEDICAL
CENTER,

    Defendants-Respondents.


         Argued September 25, 2017 – Decided December 14, 2017

         On appeal from the Superior Court, Appellate
         Division, whose opinion is reported at 445
         N.J. Super. 300 (App. Div. 2016).

         Alan W. Roth argued the cause for appellants
         (Bendit Weinstock, attorneys; Alan W. Roth
         and Nikhil S. Agharkar, on the briefs).

         Lauren M. Strollo argued the cause for
         respondents (Vasios, Kelly & Strollo,
         attorneys; Lauren M. Strollo, of counsel and
         on the briefs, and Douglas M. Singleterry,
         on the briefs).

         Thomas M. Comer argued the cause for amicus
         curiae New Jersey Association for Justice
         (Lomurro, Munson, Comer, Brown & Schottland,
         attorneys; Thomas M. Comer and Abbott S.
         Brown, of counsel and on the brief, and
         Christina Vassiliou Harvey, on the brief).



                                1
          Eric S. Poe argued the cause for amicus
          curiae New Jersey Physicians United
          Reciprocal Exchange (Eric S. Poe, of counsel
          and on the brief, and Abbey True Harris, on
          the brief).

     JUSTICE LaVECCHIA delivered the opinion of the Court.

     T.T., individually and on behalf of her three-year-old

daughter, A.T., filed this medical malpractice action seeking

damages from a hospital and several medical professionals for

injuries caused during the child’s birth.1   The trial court

granted summary judgment to defendants and dismissed the action

with prejudice because plaintiff failed to serve a timely

affidavit of merit.   The Appellate Division affirmed, rejecting

plaintiff’s argument that the circumstances should have

supported entry of a dismissal without prejudice under Rule

4:37-1(b).   A.T. ex rel. T.T. v. Cohen, 
445 N.J. Super. 300, 303

(App. Div. 2016).

     One panel member dissented, maintaining that a dismissal

based on a failure to comply with the affidavit of merit

requirement should not invariably be with prejudice when

appropriate circumstances are present.   Id. at 310 (Fisher,

P.J.A.D., dissenting).   The dissent found appropriate




1  The Court adopts the terminology used in the published
Appellate Division opinion and refers to T.T. and A.T.
collectively as “plaintiff,” notwithstanding their individual
claims.
                                 2
circumstances present in respect of the tort claims involving

this minor child.

    We now reverse the grant of summary judgment to defendants

and remand the matter for further proceedings.       A combination of

circumstances, not the least of which was the failure to

schedule a pretrial conference to address the affidavit of merit

requirement as our case law directed, warrants allowing the

untimely affidavit to be filed.       The equities militate in favor

of permitting a facially meritorious action to proceed here,

particularly because any prejudice to defendants may be

addressed through costs imposed by the trial court.

    We decline to approve recourse to a voluntary dismissal

without prejudice under Rule 4:37-1(b) as an appropriate avenue

for addressing failures to comply with the affidavit of merit

requirement, including when a minor is involved.       Rather, we

will require modification of the Judiciary’s electronic filing

and notification case management system to ensure that, going

forward, necessary and expected conferences are scheduled to

enhance parties’ compliance with requirements under the

Affidavit of Merit Statute (AMS or the statute), 
N.J.S.A.

2A:53A-26 to -29, in furtherance of the statutory policy goals.

                                  I.

    As alleged in the complaint, T.T. gave birth to A.T. at

Newark Beth Israel Hospital (the Hospital) on May 19, 2011.         At

                                  3
the Hospital, T.T. and A.T. were under the care of Morris Cohen,

M.D., Khalid Savaged, M.D., Cindy Galeota, C.N.M., Julio Caban,

M.D., and Bauhuong Tran, M.D. (collectively, with the Hospital,

defendants).   As a result of defendants’ care, A.T. suffered a

birth injury known as Erb’s Palsy, also described as a right

brachial plexus injury.   In her amended complaint filed on

September 25, 2013, plaintiff alleges that defendants’ treatment

of T.T. and A.T. fell below the accepted standard of care and

caused A.T.’s injury and birth defects.   Plaintiff further

alleges that defendants’ negligence caused T.T. the loss of

A.T.’s society, companionship, and support.

     Defendants2 filed an answer on December 5, 2013, denying the

allegations set forth in the amended complaint and demanding,

among other things, that plaintiff produce an affidavit of merit

(AOM) pursuant to the AMS.3   Under the statute, plaintiff had

sixty days from that date -- or 120 with leave of the court --

to file an AOM with respect to each defendant.

     By February 3, 2014, sixty days had elapsed since

defendants filed their answer, and plaintiff had not served




2  Dr. Savaged was not included in the answer filed, and the
record does not disclose any other pleading on his behalf.

3  A filing complication with the answer was corrected by
submission of confirmation that plaintiff had consented to
additional time for the filing of defendants’ answer.


                                 4
defendants with an AOM.   In the interim, plaintiff never sought

leave of the trial court to extend the AOM deadline.    At no time

prior to the sixty-day mark or at any time thereafter did any

court personnel attempt to convene a Ferreira4 conference, and at

no time was one requested or waived by counsel.    This Court’s

direction that such a conference be conducted unless waived by

the parties, see Paragon Contractors, Inc. v. Peachtree Condo.

Ass’n, 
202 N.J. 415, 424 (2010), appears to have been

overlooked.   By April 4, 2014, 120 days had elapsed since

defendants filed their answer, and plaintiff still had not

supplied defendants with an AOM.

     Three days later, on April 7, 2014, defendants filed a

motion for summary judgment.   In support, defendants relied on

plaintiff’s failure to produce an AOM within the statutorily

mandated time frame and claimed entitlement to dismissal with

prejudice.    Plaintiff opposed defendants’ motion.   In opposition

papers filed on May 30, 2014, plaintiff claimed that the need to

obtain medical records, which she did not receive in full until

May 5, 2014 according to attached emails, impeded her ability to

secure a timely AOM.    With those papers, plaintiff submitted an

AOM dated May 22, 2014.


4  Ferreira v. Rancocas Orthopedic Assocs., 
178 N.J. 144, 154-55
(2003) (directing that accelerated case management conference be
held in malpractice actions to address discovery issues,
including AOM requirements).
                                   5
       A hearing was held on defendants’ motion on June 20, 2014.

Prior to argument on the underlying motion, plaintiff’s then-

current counsel made an oral application for a voluntary

dismissal without prejudice pursuant to Rule 4:37-1(b).     Counsel

revealed, for the first time, that plaintiff’s failure to timely

submit an AOM was due to counsel’s own oversight, which stemmed

from plaintiff’s stipulation granting defendants extra time to

file an answer.   After a colloquy between counsel and the court,

the court carried defendants’ summary judgment motion in order

to permit the engagement of a co-counsel, who was present but

not yet retained and who was experienced in handling medical

malpractice matters involving New Jersey’s AMS requirements.

Thereafter, present counsel, Alan Roth, Esq., entered an

appearance for plaintiff and filed a written motion for

voluntary dismissal without prejudice.

       On July 25, 2014, the court heard argument on both

plaintiff’s motion for dismissal without prejudice to permit the

matter to be refiled with an AOM and defendants’ motion for

summary judgment based on plaintiff’s failure to submit a timely

AOM.    With regard to the former, plaintiff argued that the

failure to hold a Ferreira conference and the former attorney’s

oversight were extraordinary circumstances that would justify

the court’s use of its discretion to grant a voluntary dismissal

without prejudice.   Plaintiff also advanced a constitutional

                                  6
argument, contending that the AMS constitutes a violation of the

principle of separation of powers.    In response, defendants

noted that if the court were to permit voluntary dismissal

without prejudice, the court would be enabling a circumvention

of the AMS, which requires the court to dismiss with prejudice

when a plaintiff has failed to timely submit an AOM.

       The court declined to rule on the constitutionality issue

and denied plaintiff’s motion for a voluntary dismissal.     The

court granted defendants’ motion for summary judgment and

dismissed the action with prejudice.

       In explaining its finding that no extraordinary

circumstances excused the noncompliance in this matter, the

court interpreted Paragon to foreclose the possibility that

failure to conduct a Ferreira conference ever would amount to an

extraordinary circumstance unless the circumstances of the case

demonstrated some substantial attempt at compliance with the

AMS.    Moreover, the court reasoned that neither an attorney’s

admitted confusion about the time requirements of the AMS nor

the minor status of plaintiff A.T. gave rise to an extraordinary

circumstance.   Determining that there was no attempt to comply

substantially with the AMS, the court rejected the request for a

dismissal without prejudice:

           The plaintiff seeks a dismissal without
           prejudice, on terms that if [the case] gets
           re-filed then the [AOM] would be with it.

                                  7
         That’s basically . . . engaging in a fiction
         to make it look like I’d be doing something
         that was allowed, that really wasn’t allowed,
         which would be extending the time beyond the
         120 days. And no matter how you dressed it up
         and no matter how many orders I put around it,
         that   is   essentially   what  I   would   be
         doing. . . . And so the [c]ourt believes that
         to grant the plaintiff’s motion of a dismissal
         without prejudice, would essentially be to
         engage in a fictional practice aimed at making
         it look like the [c]ourt was complying with
         the legislative directive, when in fact it was
         not.

    Plaintiff filed a motion for reconsideration, reiterating

that a dismissal without prejudice was appropriate given A.T.’s

minor status and suggesting that the court set conditions for

re-filing in order to mitigate potential prejudice to

defendants.   The court rejected those arguments and again

declined to reach plaintiff’s argument that the AMS is

unconstitutional, noting the argument was not properly before

the court.

    Plaintiff appealed, arguing that (1) the trial court erred

in dismissing the case with prejudice; and (2) the AMS is

unconstitutional.   Plaintiff asserted that the trial court

should have granted a dismissal without prejudice under Rule

4:37-1(b) because there were many years remaining on the statute

of limitations for the minor’s claim and there had been no

prejudice to defendants because they had expended no resources

on discovery.


                                 8
       A majority of the Appellate Division panel concluded that

“permitting a voluntary dismissal in these circumstances would

render the AOM statute meaningless in the case of a minor

plaintiff.”   A.T., 
445 N.J. Super. at 308.      Seeing no

substantial compliance or extraordinary circumstances, the

Appellate Division rejected the assertion that attorney

oversight was sufficient reason to grant a voluntary dismissal

under the circumstances.     Id. at 306-07.    Moreover, the majority

found it significant that the Legislature opted not to carve out

an explicit exception for minors in the AOM time frames.         Id. at

309.   Accordingly, the Appellate Division majority declined to

accept the proposition that A.T.’s minor status warranted

protection from the AMS beyond the protections afforded by the

tolling of the statute of limitations.       Ibid.   The panel

affirmed the order granting summary judgment to defendants and

dismissing the matter with prejudice.       Ibid.5

       Judge Fisher dissented.    The dissent took issue with the

majority’s reliance on an earlier decision of the Appellate

Division that had addressed a failure to comply with the AMS in

a similar factual setting.       Id. at 311 (Fisher, P.J.A.D.,

dissenting) (citing Kubiak v. Robert Wood Johnson Univ. Hosp.,




5  The panel declined to address plaintiff’s argument concerning
the constitutionality of the AMS because it was not properly
raised before the trial court. Id. at 305.
                                    9

332 N.J. Super. 230, 238 (App. Div. 2000) (holding that failure

to comply with AMS must result in dismissal with prejudice, even

where plaintiff is a minor)).   The dissent viewed Kubiak’s

holding as inconsistent with the protective care courts of this

state have traditionally accorded the tort claims of minors.

Id. at 310.   The dissent disputed Kubiak’s premise that “[a]

dismissal for failure to comply with the [AMS] is not any

different than a dismissal after plenary or summary

adjudication” because the purpose of the AMS is to require

plaintiffs merely to make a facial showing of a meritorious

claim and not to demonstrate any likelihood of success on the

merits.   Id. at 311 (first alteration in original) (quoting

Kubiak, 
332 N.J. Super. at 238).

    Moreover, the dissent asserted that a finding of

exceptional circumstances would have been appropriate here,

notwithstanding plaintiff’s failure to advance that claim, and

that such a finding in this case would not be disproportionate

to other cases in which courts have found extraordinary

circumstances.   Id. at 313.   The dissent compared the minor’s

attorney’s “fumbling of the [AOM] requirement” here to the

attorney’s failure in Paragon, and argued that it should have

been within the trial court’s discretion to either find

extraordinary circumstances on the facts of this case or to have

granted a dismissal without prejudice, particularly because

                                 10
defendants have suffered little by way of prejudice.     Id. at

313-14.   Thus, the dissent would have reversed the judgment of

the trial court in order to “foster[] disposition of cases on

their merits rather than on procedural missteps.”     Id. at 314.

In sum, the dissent would have ordered entry of a dismissal

without prejudice in light of A.T.’s minor status, her

attorney’s mishandling of the AOM, and the relatively little

prejudice defendants have suffered, and would have allowed the

trial court the ability to impose conditions on the re-filing of

plaintiff’s claims.

    This matter is now before us on an appeal as of right from

the dissent.   R. 2:2-1(a)(2).   In this appeal, the parties

repeat arguments they advanced below.     We also granted amicus

curiae status to the New Jersey Association for Justice and the

New Jersey Physicians United Reciprocal Exchange.

                                 II.

    The AMS requires a plaintiff to serve an affidavit of merit

within sixty days of the filing of defendant’s answer; an

additional sixty days may be granted by a court upon good cause

found.    
N.J.S.A. 2A:53A-27.   The affidavit was identified early

on by this Court as a required “threshold showing” that a

malpractice claim is not frivolous.     In re Petition of Hall, 
147 N.J. 379, 391 (1997).    We have recognized the Legislature’s

intent that the statute facilitate the weeding-out of frivolous

                                  11
lawsuits.   Galik v. Clara Maass Med. Ctr., 
167 N.J. 341, 350

(2001); accord Alan J. Cornblatt, P.A. v. Barow, 
153 N.J. 218,

242 (1998).

    The failure to provide the affidavit or its legal

equivalent is “deemed a failure to state a cause of action,”


N.J.S.A. 2A:53A-29, and, not long after the AMS was enacted,

this Court construed the statute to require dismissal with

prejudice for noncompliance, Cornblatt, 
153 N.J. at 247.

However, we have recognized equitable exceptions to “temper the

draconian results of an inflexible application of the statute,”

Ferreira, 
178 N.J. at 151 (acknowledging applicability of

doctrine of substantial compliance and extraordinary

circumstances), and we have created mechanisms to draw attention

to and facilitate satisfaction of this statutory obligation and

its goals, id. at 154-55 (establishing discovery-stage case

management conference to encourage and facilitate compliance

with AMS requirements, to avoid dismissal of meritorious claims

due to inadvertence, and to promote AMS’s goal of weeding out

insubstantial claims).

    The Ferreira conference was designed to be the Judiciary’s

key tool to promote satisfaction of the AMS’s salutary policy

goals.   We mandated the conference and imposed requirements on

both courts and defendants to discover and address issues as to

the sufficiency of a plaintiff’s AOM.   Id. at 155.    In the

                                12
companion case to Ferreira, we stressed that the Ferreira

conference is required and reiterated that defendants must raise

any objections to an AOM that has been served:

         Our decision in Ferreira requires that an
         accelerated case management conference be held
         within ninety days of the service of an answer
         in all malpractice actions. That conference
         will allow the courts to head off potential
         discovery problems before they become the
         stuff of motions.     At the case management
         conference, the defendant will be obliged to
         bring to the plaintiff’s attention any
         deficiency in an affidavit of merit already
         served in order to give the plaintiff the
         opportunity to cure the defect within the 120-
         day period. In the event that the affidavit
         has not been served, the court will remind the
         parties of their respective obligations. We
         trust that early court intervention will make
         the circumstances of this case unlikely to
         recur.

         [Knorr v. Smeal, 
178 N.J. 169, 182 (2003)
         (emphases added).]

See also Saunders ex rel. Saunders v. Capital Health Sys. at

Mercer, 
398 N.J. Super. 500, 510 (App. Div. 2008) (“Contrary to

defendants’ contention and the motion judge’s decision, Ferreira

mandates a case management conference within ninety days of the

filing of an answer in a professional malpractice case.”).

    All that said, in 2010, we wrestled with the fact that

mandatory Ferreira conferences were not being routinely

conducted as expected, which was thwarting the salutary purpose

of the conference requirement.   We had sought in Ferreira “[to]

ensure that discovery related issues, such as compliance with

                                 13
the [AMS], do not become sideshows to the primary purpose of the

civil justice system –- to shepherd legitimate claims

expeditiously to trial.”    Paragon, 
202 N.J. at 423 (quoting

Ferreira, 
178 N.J. at 154).    The conference was designed to

serve as reminder of the obligation and to facilitate early

identification of “any deficiency in [an] affidavit” already

served by a plaintiff.     Id. at 423-24 (quoting Ferreira, 
178 N.J. at 155).   In Paragon, we confronted competing decisions in

the Appellate Division and trial courts over whether the failure

to conduct a Ferreira conference worked a tolling or abeyance of

the time period for assessing the timeliness of a late AOM.

    Ferreira and Knorr indicated that the conferences were

mandatory, but we clarified in Paragon that, “[a]lthough

Ferreira conferences should be held as a matter of course, they

may be omitted [upon submission of a proposed consent order

indicating that] 'the Affidavit of Merit has been provided by

plaintiff and all defendants have waived any objections to its

adequacy.’”   Id. at 424 (emphasis added) (quoting Waiver of

Affidavit of Merit Conference, 
176 N.J.L.J. 1006 (2004)).

Explaining that it is not “a tolling device,” we acknowledged

that the conference “was never intended, nor could it have been,

as an overlay on the statute that would effectively extend the

legislatively prescribed filing period.”    Id. at 419.   Although

extraordinary circumstances were found to exist in Paragon due

                                  14
to confusion about the tolling role of the Ferreira conference,

id. at 425, we offered counsel for the future.    Our decision

added that, “going forward, reliance on the scheduling of a

Ferreira conference to avoid the strictures of the Affidavit of

Merit statute is entirely unwarranted and will not serve to toll

the statutory time frames.”   Id. at 426.

                               III.

                                A.

    No Ferreira conference was conducted in this matter, and,

when defendants filed a motion for summary judgment at the

conclusion of the 120-day period, plaintiff included an AOM with

her response to the motion.   Nevertheless, the trial court felt

constrained to dismiss with prejudice.

    That result worked a double frustration.     The Judiciary’s

key tool to promote satisfaction of the AMS’s salutary policy

goals was not employed.   And the pruning of plaintiff’s claim

was not the pruning that the AMS is intended to achieve.   The

statute’s intended objective -- to curtail insubstantial claims

through the claimant’s inability to present a supportive

affidavit early on, before significant litigation time and

expense are incurred -- was not advanced.

    Although the failure to conduct a Ferreira conference alone

may not demonstrate extraordinary circumstances, a confluence of

factors persuades us to recognize this case as sufficiently

                                15
extraordinary to allow the untimely affidavit to be accepted and

to require that the matter proceed on its merits.

    Our warning in Paragon that the failure to conduct a

Ferreira conference would not routinely toll the time for

submission of an AOM was not meant to foreclose the finding of

extraordinary circumstances when a combination of events

occurred.    Here, just such circumstances occurred, as noted in

the dissent’s distillation of what took place in the early

stages of this proceeding.

    An inexperienced practitioner became confused by timelines

and was “not as assiduous as he could or should have been” in

securing an AOM on a minor’s tort claim, filed well before any

statute of limitations period was close to expiring.     Paragon,


202 N.J. at 425.     While that type of “attorney inadvertence”

will not, standing alone, support a finding of extraordinary

circumstances, see Palanque v. Lambert-Woolley, 
168 N.J. 398,

405 (2001) (citing Cornblatt, 
153 N.J. at 247), in this case,

the Judiciary failed to do what this Court expected, namely to

act as a backstop.    No Ferreira conference was scheduled, which

would have assisted in keeping the parties focused on the timing

of the necessary affidavit.    Counsel here did secure an

affidavit when defendants filed a motion for summary judgment

three days after the time frame for submission of the AOM had

expired.    We presume from plaintiff’s swift compliance upon the

                                  16
filing of the motion that we are dealing with a non-frivolous

matter, not the type of case that the AMS intended to weed out.

    Yet, the harsh consequence of dismissal with prejudice was

meted out in this matter despite the fact that there is no

prejudice to defendants that the equitable powers of our courts

cannot address.   Defendants are aware of the claim, so allowing

it to proceed should not impair their ability to mount a

substantive defense to the merits of this claim.     Permitting the

claim to go forward now, as opposed to proceeding by way of a

voluntary dismissal without prejudice, eliminates the problem of

the future prospect of an action being filed again, at some

indefinite point, before the child’s age of maturity plus the

expiration of the statute of limitation period.     Amicus New

Jersey Physicians United Reciprocal Exchange raised a concern

about the prospect of a minor’s claim, dismissed without

prejudice, being re-raised in the future as posing a problem for

medical professionals required to secure malpractice insurance

as a condition of licensure.    See 
N.J.S.A. 45:9-19.17 (requiring

all physicians who maintain medical practice in New Jersey to

obtain medical malpractice liability insurance); N.J.A.C. 13:35-

6.18 (providing minimum standards of either medical malpractice

liability insurance coverage or letters of credit for physicians

practicing in New Jersey).     And again, the trial court has the

discretion to require plaintiff to reimburse defendants for the

                                  17
costs incurred in the extra proceedings that took place as a

result of the delayed compliance with the AMS, which can

mitigate prejudice to defendants.

    Although this matter does not fit neatly into the factual

scenarios of past extraordinary-circumstances cases, we are

persuaded that equitable relief should be afforded to plaintiff.

We regard the circumstances of this case as extraordinary,

viewed in combination with the Judiciary’s failure here.     The

lack of a scheduled Ferreira conference significantly

contributed to an almost perfect storm of injustice.    Plaintiff

should not be denied the opportunity to have her facially valid

claim move forward and be addressed on its merits.

                               B.

    Notwithstanding our determination to reverse the order of

dismissal entered by the trial court and affirmed by the

Appellate Division, we further determine not to resort to a

voluntary dismissal without prejudice under Rule 4:37-1(b) as an

appropriate avenue for addressing the circumstances presented.

    Except in certain types of actions inapplicable here, a

plaintiff may dismiss voluntarily an action without obtaining a

court order provided that either the dismissal occurs before the

adverse party has filed an answer or a motion for summary

judgment, whichever occurs first, or the plaintiff files a

stipulation signed by all parties who have appeared in the

                               18
action.   R. 4:37-1(a).   Unless otherwise specified, the

dismissal is without prejudice in such circumstances.       Ibid.

Otherwise, “an action shall be dismissed at the plaintiff’s

instance only by leave of court and upon such terms and

conditions as the court deems appropriate.”    R. 4:37-1(b).

Dismissals under subsection (b) are without prejudice unless

directed differently by the court.    Ibid.

    Generally stated, a dismissal with prejudice is regarded as

“on the merits” of the claim, but a dismissal “based on a

court’s procedural inability to consider a case” is entered

without prejudice.   Watkins v. Resorts Int’l Hotel & Casino,

Inc., 
124 N.J. 398, 415-16 (1991); Tsibikas v. Morrof, 
5 N.J.

Super. 306, 310 (App. Div. 1949); cf. R. 4:37-2(d) (“Unless the

order of dismissal otherwise specifies, a[n involuntary]

dismissal under R. 4:37-2(b) or (c) and any dismissal not

specifically provided for by R. 4:37, other than a dismissal for

lack of jurisdiction, operates as an adjudication on the

merits.”).   A dismissal specifying that it is “with prejudice

constitutes an adjudication on the merits 'as fully and

completely as if the order had been entered after trial.’”

Velasquez v. Franz, 
123 N.J. 498, 507 (1991) (quoting Gambocz v.

Yelencsics, 
468 F.2d 837, 840 (3d Cir. 1972)).

    Reviewing courts of this state frown on the use of a

dismissal without prejudice under Rule 4:37-1(b) as a mechanism

                                 19
for salvaging a case that has run aground on requirements

established in statutes or in the Rules of Court.     In rejecting

use of Rule 4:37-1 in such a situation, the Appellate Division

explained the reasons for deterring such interference with the

orderly and efficient administration of litigation:

         [When] plaintiff faced defendants’ motion for
         summary judgment, and moved for a voluntary
         dismissal in response, the discovery end date
         had passed.    At that point, absent court
         order, plaintiff was prohibited from offering
         his late expert report in opposition to
         defendants’ motion for summary judgment and
         from offering expert testimony at the time of
         trial. Instead of confronting this difficulty
         directly -- by seeking an extension of
         discovery pursuant to Rule 4:24-1(c) --
         plaintiff opted for a solution that, when
         granted, severely prejudiced defendants by
         guaranteeing the unnecessary duplication of
         past efforts.

              The permission given to plaintiff to
         pursue a new, identical complaint without
         consequence also served to minimalize the
         central purpose of our court rules: the fair
         and efficient administration of justice. See
         Ragusa v. Lau, 
119 N.J. 276, 283 (1990);
         Handelman v. Handelman, 
17 N.J. 1, 10 (1954).
         Were we to endorse the order in question, we
         would legitimize a gaping loophole in the
         “Best Practices” rule amendments, which were
         intended to “improve” and not frustrate
         “efficiency and expedition of the litigation
         process.” Pressler, Current N.J. Court Rules,
         cmt. on R. 1:1-2 (2006).          The process
         authorized by Rule 4:37-1(b) cannot be the
         means of avoiding the requirements of Rule
         4:24-1(c) or the means for creating a less
         efficient or an uneven method for adjudicating
         disputes.   Our modern procedures could not
         have evolved to the present day only to prove


                               20
         irrelevant and ineffectual when faced with an
         artifice such as plaintiff created here.

              Plaintiff’s claim to relief from his
         “logistics problem” should have been pursued
         directly, not disingenuously.      Instead of
         resorting to the charade of a voluntary
         dismissal coupled with the unveiling of a new
         complaint waiting in the wings, plaintiff
         should have first been obligated to seek
         relief from the discovery end date. Because
         plaintiff opted not to pursue that proper
         course, we conclude that the trial judge erred
         in granting a voluntary dismissal without
         prejudice, which had the undesirable effect of
         unraveling all that had been accomplished in
         this litigation.

         [Shulas v. Estabrook, 
385 N.J. Super. 91, 102-
         03 (App. Div. 2006).]

As Shulas makes evident, dismissal under Rule 4:37-1(b)’s

provisions -- requiring court order and on terms as appropriate

-- serves to protect a defendant from being subjected to

duplicate costs of litigation if forced to defend another action

based on the same set of claims.    See also Union Carbide Corp.

v. Litton Precision Prods., Inc., 
94 N.J. Super. 315, 317 (Ch.

Div. 1967) (recognizing same policy goals).    That said, we

stress that to the extent that Shulas seemed to suggest the

presence of bad faith, that concern is not present here.

    Cracking open the use of dismissals of actions without

prejudice to allow more time whenever a plaintiff runs aground

on the requirements of the AMS would prolong litigation and

potentially eviscerate the AMS policy of weeding out, early on,


                               21
non-meritorious malpractice cases.     While the dissent here did

not suggest such a broad use and emphasized the extraordinary

circumstances present, we decline to send the matter back for

entry of a dismissal without prejudice and instead rely on the

presence of extraordinary circumstances to reverse the dismissal

entered below.   We caution courts to adhere to the spare use of

dismissals without prejudice as prior case law instructs.     See

Shulas, 
385 N.J. Super. at 102-03.

                                C.

    In conclusion, this Court will take additional

administrative steps to promote adherence to the AMS’s salutary

goal of promptly culling frivolous malpractice claims and to

promote the effective use of court and attorney resources so

that meritorious cases may advance efficiently.    We designed our

Ferreira conference requirement to promote such purposes.    We

made the conference mandatory to underscore its importance.       We

imposed the burden of complying with the conference requirement

on both attorneys and the Judiciary.     We created that failsafe

mechanism within our system of case management envisioning that

the required conference would be held unless it were knowingly

waived.   But systems can be imperfect, as this case reflects.

    The failure of the Judiciary’s current mechanisms to ensure

the scheduling of the required Ferreira conference will not be



                                22
permitted to work an injustice in this matter.     More improvement

in our mechanisms is necessary, however.

    Going forward, advancements in our automated case

management system will permit electronic notification of (1) the

AOM filing obligation and (2) the scheduling of a Ferreira

conference.   The electronic case management system will be

updated to issue notices to counsel and accomplish those tasks.

Further details concerning those improvements will be provided

through the Administrative Office of the Courts.

    With our announcement of those improvements comes a

cautionary note.   Counsel are on notice that disregarding the

scheduling of the conference, or waiving the conference, will

not provide a basis for relief from AMS obligations.

                                IV.

    The judgment of the Appellate Division is reversed.       The

matter is remanded to the trial court for further proceedings

consistent with this opinion.



     CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, AND TIMPONE join in JUSTICE LaVECCHIA’s
opinion.




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