Chamberlain v. Giampapa

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

3-28-2000

Chamberlain v Giampapa

Precedential or Non-Precedential:

Docket 99-5069

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation

"Chamberlain v Giampapa" (2000). 2000 Decisions. Paper 68.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/68

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed March 28, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5069

ROBIN CHAMBERLAIN,

Appellant

v.

VINCENT C. GIAMPAPA, M.D., individually and dba

PLASTIC SURGERY CENTER INTERNATIONALE

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civil Action No. 98-cv-01048)

District Judge: Honorable Maryanne Trump Barry

Argued: November 16, 1999

BEFORE: ALITO and STAPLETON, Circuit Judges, and

FEIKENS,* District Judge

(Filed: March 28, 2000)

_________________________________________________________________

*Honorable John Feikens, Senior United States District Judge for the

Eastern District of Michigan, sitting by designation.

Howard B. Felcher (Argued)

20 Northfield Avenue

West Orange, NJ 07052

Attorney for Appellant

Stephen O. Mortenson (Argued)

Mortenson & Pomeroy

155 Morris Avenue

Springfield, NJ 07081

Attorney for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Robin Chamberlain appeals from the dismissal of her

medical malpractice complaint filed in the United States

District Court of New Jersey. Count I of the complaint

alleged negligent medical treatment and care by the

defendant physician, and Count II alleged a failure to

properly advise and inform the plaintiff of the nature and

extent of a surgical procedure the defendant performed on

her. Jurisdiction was based on the diversity of the

citizenship of the parties. The District Court dismissed both

counts of Chamberlain's complaint with prejudice for failure

to file a timely affidavit of merit pursuant to N.J. Stat. Ann.

SS 2A:53A-26 to -29 (West 1987) ("the New Jersey affidavit

of merit statute").1

_________________________________________________________________

1. Section 2A:53A-27 provides:

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 occupation,

the

plaintiff shall, within 60 days following the date of filing of the

answer to the complaint by the defendant, provide each defendant

with an affidavit of an appropriate licensed person that there

exists

a reasonable probability that the care, skill or knowledge

exercised

or exhibited in the treatment, practice or work that is the subject

of

the complaint, fell outside acceptable professional or occupational

standards or treatment practices. The court may grant no more than

one additional period, not to exceed 60 days, tofile the affidavit

pursuant to this section, upon a finding of good cause.

2

Chamberlain also appeals the denial of her cross-motion

for (1) a sixty-day extension in which to file the affidavit of

merit; or (2) an order allowing the affidavit of merit to be

filed nunc pro tunc; or (3) permission to amend the

complaint and attach the affidavit of merit; and/or (4) an

order striking defendant's answer as untimely and granting

plaintiff a default judgment.

We address five distinct issues in the disposition of this

appeal:

1) Whether the New Jersey affidavit of merit statute

can properly be applied by a federal court sitting in

diversity;

2) Whether the New Jersey affidavit of merit statute

applies to a claim based on the absence of informed

consent;

3) If the New Jersey statute does apply in diversity

actions, whether Chamberlain's complaint was properly

dismissed with prejudice for failure tofile an affidavit of

merit;

4) Whether the District Court erred in dismissing the

entire complaint, when one or more of the alleged acts

of negligence may have occurred before the effective

date of the New Jersey affidavit of merit statute;

5) Whether the District Court abused its discretion in

denying Chamberlain's motion for default judgment.

We hold that the New Jersey affidavit of merit statute

does not conflict with the Federal Rules of Civil Procedure

and must be applied by federal courts sitting in diversity;

the District Court did not plainly err in applying the

affidavit of merit statute to the lack of informed consent

cause of action; there are no extraordinary circumstances

that would warrant dismissal without prejudice; and the

denial of a default judgment was not an abuse of discretion.

However, we further conclude that the District Court erred

in dismissing the plaintiff's case when the record indicates

that one or more of the alleged negligent acts occurred

before the effective date of the affidavit of merit statute.

Accordingly, we will reverse the judgment of the District

3

Court and remand for further proceedings consistent with

the opinion.

I.

The New Jersey affidavit of merit statute applies to

medical malpractice causes of action that "occur" on or

after June 29, 1995, the effective date of the statute.2 It

requires that the plaintiff file an affidavit of a licensed

physician within 60 days of the date the answer isfiled or

face dismissal of the complaint. In the affidavit, the

physician must state that a "reasonable probability" exists

that the care that is the subject of the complaint falls

outside acceptable professional standards. N.J. Stat. Ann.

S 2A:53A-27. In lieu of an affidavit, the plaintiff may provide

a sworn statement that, after written request, the defendant

failed to provide the plaintiff with records that have a

substantial bearing on preparation of the affidavit.3 N.J.

Stat. Ann. S 2A:53A-28. Failure to provide either the

affidavit or the sworn statement within 60 days, or 120

days if the court grants an extension for good cause, results

in dismissal for "failure to state a cause of action."4 N.J.

Stat. Ann. S 2A:53A-29.

_________________________________________________________________

2. "This act shall take effect immediately[June 29, 1995] and shall apply

to causes of action which occur on or after the effective date of this

act."

Affidavit of Merit Bill, Act of June 29, 1995, ch. 139, S 5, 1995 N.J.

Laws

457.

3. "An affidavit shall not be required pursuant to [N.J. Stat. Ann.

S 2A:53A-27] if the plaintiff provides a sworn statement in lieu of the

affidavit setting forth that: the defendant has failed to provide

plaintiff

with medical records or other records or information having a

substantial bearing on preparation of the affidavit; a written request

therefor along with, if necessary, a signed authorization by the plaintiff

for release of the medical records or other records or information

requested, has been made by certified mail or personal service; and at

least 45 days have elapsed since the defendant received the request."

N.J. Stat. Ann. S 2A:53A-28.

4. "If the plaintiff fails to provide an affidavit or a statement in lieu

thereof, pursuant to [N.J. Stat. Ann. S 2A:53A-27 or S 2A:53A-28], it

shall

be deemed a failure to state a cause of action." N.J. Stat. Ann. S 2A:53A-

29.

4

In January of 1994, Dr. Vincent C. Giampapa performed

plastic surgery on the plaintiff's nose. Thereafter, he

injected cortisone in her nose on several occasions. On

August 20, 1995, the plaintiff visited Dr. Giampapa for a

checkup and, at his suggestion, she allowed him to perform

a second plastic surgery, which she expected to be minor.

The plaintiff claims Dr. Giampapa instead performed

extensive surgery without properly advising her about, and

obtaining consent for, the procedure. The plaintiff

experienced problems after the August 20 surgery, and, as

a result, Dr. Giampapa performed additional plastic surgery

on March 20, 1996. When the plaintiff continued to

experience problems, she sought medical care and

treatment from another plastic surgeon and underwent

extensive reconstructive surgery.

The plaintiff sued Dr. Giampapa on March 10, 1998,

alleging negligence with respect to her medical care and

treatment. The defendant's answer, filed on May 8th,

responded to the complaint in full but did not include a

demand for an affidavit of merit from the plaintiff.

The Magistrate Judge issued a Pre-Trial Scheduling

Order on June 10th and the defendant provided the

plaintiff with her medical records on June 17th, three

weeks before the deadline for filing an affidavit of merit. The

plaintiff did not file an affidavit of merit within 60 days of

the answer being filed and did not request an extension

before the 60-day statutory period expired. The plaintiff

made no attempt to file the affidavit or request an extension

until the defendant filed his motion to dismiss in November

1998.

The scheduling order did not mention the affidavit

requirement and, according to the parties, no discussion of

the affidavit of merit took place at the June 10 scheduling

conference. Nevertheless, as part of the scheduling order,

the plaintiff was directed to serve an expert report on the

defendant no later than September 30, 1998, which she

did. In the report, the expert stated his opinion that the

treatment by the defendant deviated significantly from the

accepted standards of medical care and that the plaintiff

suffered permanent nasal deformity and associated

breathing difficulties as a result.

5

The defendant thereafter filed a motion to dismiss based

on the plaintiff's failure to file an affidavit of merit. On the

same day, the plaintiff filed her cross-motion. The District

Court denied the plaintiff's cross-motion in its entirety and

granted the defendant's motion to dismiss. Both counts of

the complaint were dismissed with prejudice. The plaintiff

appeals both the dismissal of her complaint and the denial

of her cross-motion.

II.

A. The Choice Of Law Issue

A federal court sitting in diversity must apply state

substantive law and federal procedural law. See Erie

R.R. v. Tompkins, 304 U.S. 64, 78 (1938). This

substantive/procedural dichotomy of the "Erie rule" must

be applied with the objective that "in all cases where a

federal court is exercising jurisdiction solely because of the

diversity of citizenship of the parties, the outcome of the

litigation in the federal court [will] be substantially the

same, so far as legal rules determine the outcome of a

litigation, as it would be if tried in a State court." Guaranty

Trust Co. v. York, 326 U.S. 99, 109 (1945). This focus on

whether application of a state rule will or may affect the

outcome is intended to serve "twin aims":"discouragement

of forum shopping and avoidance of inequitable

administration of the laws." Hanna v. Plummer , 380 U.S.

460, 468 (1965). Accordingly, the outcome determinative

test should not produce a decision favoring application of

the state rule unless one of these aims will be furthered:

Erie and its progeny make clear that when a federal

court sitting in a diversity case is faced with a question

of whether or not to apply state law, the importance of

a state rule is indeed relevant, but only in the context

of asking whether application of the rule would make

so important a difference to the character or result of

the litigation that failure to enforce it would unfairly

discriminate against citizens of the forum State, or

whether application of the rule would have so

important an effect upon the fortunes of one or both of

6

the litigants that failure to enforce it would be likely to

cause a plaintiff to choose the federal court.

Hanna, 380 U.S. at 468 n. 9.

The Supreme Court has added two caveats to these Erie

principles. First, even though application of the state rule

may hold some potential for affecting the outcome, a strong

countervailing federal interest will dictate recourse to the

federal rule. Byrd v. Blue Ridge Rural Electric Coop, Inc.,

356 U.S. 525 (1958). Second, the Erie rule may not be

"invoked to void a Federal Rule" of Civil Procedure. Hanna

v. Plummer, 380 U.S. 460, 470 (1965). Where a Federal

Rule of Civil Procedure provides a resolution of an issue,

that rule must be applied by a federal court sitting in

diversity to the exclusion of a conflicting state rule so long

as the federal rule is authorized by the Rules Enabling Act

and consistent with the Constitution. Id.

Under Hanna, a federal court sitting in diversity first

must determine whether a Federal Rule directly "collides"

with the state law it is being urged to apply. See id. at 470-

74. If there is such a direct conflict, the Federal Rule must

be applied if it is constitutional and within the scope of the

Rules Enabling Act. See Gasperini v. Center for Humanities,

Inc., 518 U.S. 415, 427 n. 7 (1996). If a "direct collision"

does not exist, then the court applies the Erie rule to

determine if state law should be applied. Hanna , 380 U.S.

at 470.

In deciding whether a Federal Rule "directly collides" with

a state law, the federal court sitting in diversity must

consider whether the scope of the Federal Rule is

"sufficiently broad to control the issue before the Court,"

Walker v. Armco Steel Corp., 446 U.S. 740, 749-50 (1980),

"thereby leaving no room for the operation of[the state]

law," Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 4-

5 (1987). Although the Rules should be given their plain

meaning and are not to be construed narrowly in order to

avoid a direct collision, see Walker, 446 U.S. at 750 n. 9,

"a broad reading that would create significant disuniformity

between state and federal courts should be avoided if the

text permits." Stewart Org., Inc. v. Ricoh, 487 U.S. 22, 37-

38 (1988). "Federal courts have interpreted the Federal

7

Rules, however, with sensitivity to important state interests

and regulatory policies." Gasperini, 518 U.S. at 427 n.7.

In the case at hand, the plaintiff argues the New Jersey

affidavit of merit statute conflicts with Federal Rules 8 and

9, which govern the content of pleadings in federal actions.

Rule 8 requires only "a short and plain statement of the

claim showing that the pleader is entitled to relief." Fed. R.

Civ. P. 8(a). The only situations that require pleading with

particularity are specified in Fed. R. Civ. P. 9, and a

malpractice claim is not one of the situations listed in that

rule. There is, of course, no contention that Federal Rules

8 and 9 are beyond the scope of the Rules Enabling Act or

inconsistent with the Constitution.

We find no direct conflict between the New Jersey

affidavit of merit statute and Federal Rules 8 and 9. Rules

8 and 9 dictate the content of the pleadings and the degree

of specificity that is required. The rules' overall purpose is

to provide notice of the claims and defenses of the parties.

The affidavit of merit statute has no effect on what is

included in the pleadings of a case or the specificity thereof.

The required affidavit is not a pleading, is notfiled until

after the pleadings are closed, and does not contain a

statement of the factual basis for the claim. Its purpose is

not to give notice of the plaintiff's claim, but rather to

assure that malpractice claims for which there is no expert

support will be terminated at an early stage in the

proceedings. This state policy can be effectuated without

compromising any of the policy choices reflected in Federal

Rules 8 and 9. In short, these Federal Rules and the New

Jersey Statute can exist side by side, "each controlling its

own intended sphere of coverage without conflict." Walker

v. Armco Steel Corp., 446 U.S. 740, 752 (1980). 5

_________________________________________________________________

5. Affidavit of merit (or similar) statutes have been applied by federal

courts in many states without finding a direct collision with Federal

Rules. See Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247

(W.D.N.Y. 1998) (holding that state statute requiring that complaint in

medical malpractice action be accompanied by certificate of merit is a

substantive law that applies in a federal diversity action); Connolly v.

Foudree, 141 F.R.D. 124 (S.D. Iowa 1992) (finding no direct conflict

between state statute requiring early disclosure of expert witnesses in

8

In reaching our conclusion that there is no direct

collision here, we are not unmindful of the stipulation in

the New Jersey statute that a failure to file the required

affidavit "shall be deemed a failure to state a cause of

action." N.J. Stat. Ann. 2A:53A-29. Contrary to the

plaintiff's suggestion, we do not read this stipulation as

implying that a failure to file the required affidavit somehow

renders pleadings insufficient that would otherwise be

sufficient. We read the "deeming" language to be no more

than the New Jersey legislature's way of saying that the

consequences of a failure to file shall be the same as those

of a failure to state a claim. See Cornblatt v. Barow, 708

A.2d 401, 415 (N.J. 1998) (interpreting "deeming" test to

mean that the failure to file must result in a dismissal with

prejudice unless extraordinary circumstances are shown).

Finding no direct collision, we proceed to the second part

of the Hanna analysis. Applying traditional Erie principles,

_________________________________________________________________

professional liability cases and FED. R. CIV. P. 26(b)(4)(A)(i),

concluding

the state statute went beyond the requirements of the Federal Rule, but

did not conflict with it); Hill v. Morrison, 870 F. Supp. 978 (W.D. Mo.

1994) (finding Missouri statute requiring plaintiff to file affidavit of

merit

within 90 days of filing complaint goes beyond requirements of FED. R.

CIV. P. 11 but does not conflict with the Federal Rule, and therefore both

state and federal rules may be given effect in federal court in diversity

action); Trierweiler v. Croxton and Trench Holding Corp., 90 F.3d 1523

(10th Cir. 1996) (finding no collision between Colorado statute requiring

plaintiff or attorney to file certificate within 60 days of filing

complaint

and FED. R. CIV. P. 11, noting similar intent of the state and federal

rules, but concluding the state rule is more narrowly tailored and

assesses penalties on plaintiff not attorney, so it can co-exist with Rule

11). But see, Boone v. Knight, 131 F.R.D. 609 (S.D. Ga. 1990) (finding a

conflict between Federal Rule 8 and a Georgia statute requiring the filing

of an affidavit with the complaint setting forth the facts upon which the

claim is based).

Similar statutes in other states have been routinely applied by federal

courts sitting in diversity without specifically going through the Hanna

analysis. See, e.g., Morlan v. Harrington, 658 F. Supp. 24 (D.N.D. 1986)

(applying North Dakota expert affidavit statute that requires expert

opinion within three months of filing medical malpractice action); Law v.

Greenwich Hosp., No. CIV. 396CV2147(AHN), 1997 U.S. Dist. WL 695506

(D. Conn. Oct. 21, 1997) (applying Connecticut statute requiring

certificate to be filed with complaint in medical malpractice actions).

9

we conclude that the New Jersey affidavit of merit statute

is substantive state law that must be applied by federal

courts sitting in diversity. The state statute is outcome

determinative on its face, and failure to apply it would

encourage forum shopping and lead to the inequitable

administration of the law. Further, we perceive no

overriding federal interest here that would prevent

application of the state law by the federal courts.

By requiring dismissal for failure to adhere to the statute,

the New Jersey legislature clearly intended to influence

substantive outcomes. It sought early dismissal of meritless

lawsuits, not merely to apply a new procedural rule.

Clearly, failure to apply the statute in a federal diversity

action where no affidavit of merit has been filed would

produce a different outcome than that mandated in a state

proceeding.

In addition to undercutting the state's interest in early

dismissal of meritless lawsuits, failure to apply the state

statute in federal courts could promote forum-shopping,

despite the relatively low hurdle the New Jersey affidavit

requirement presents to a legitimate claimant. Plaintiffs

who have been unable to secure expert support for their

claims and face dismissal under the statute in state court

may, by filing in the federal court, be able to survive beyond

the pleading stage and secure discovery. The resulting

opportunity for a "fishing expedition," which would hold the

hope of turning up evidence of a meritorious claim or of a

settlement to save defense litigation costs, can reasonably

be expected to affect the forum choice of these plaintiffs.

Failure to apply the New Jersey affidavit of merit statute

also implicates the second of the "twin aims" of Erie,

avoiding inequitable administration of the laws. A

defendant in a federal court that refused to apply the

affidavit requirement would be unfairly exposed to

additional litigation time and expense before the dismissal

of a non-meritorious lawsuit could be secured, merely

because the plaintiff is a citizen of a different state. Perhaps

more importantly, the reputation of the professional

involved would be more likely to suffer the longer the

lawsuit went on, putting added pressure on the defendant

to settle rather than endure extensive discovery.

10

Finally, we must also consider whether any

countervailing federal interests prevent the state law from

being applied in federal court. The only relevant federal

interest that has been suggested is an interest in

maintaining the integrity of the federal system of pleading

embodied in the Federal Rules of Civil Procedure. We have

previously concluded, however, that the New Jersey statute

can be applied without compromising the federal system of

pleading. Accordingly, we hold that the District Court did

not err in applying the New Jersey affidavit of merit statute.

B. The Informed Consent Issue

The plaintiff argues that, under New Jersey common law,

expert testimony is not required to establish a cause of

action based on lack of informed consent, and that, as a

result, the affidavit of merit statute should not apply to

Count II of her complaint. We disagree.

Under New Jersey's prudent patient standard, a

physician must disclose all information material to a

reasonably prudent patient's decision to undergo the

proposed treatment. See Largey v. Rothman, 540 A.2d 504

(N.J. 1988); Bennett v. Surgidev Corp., 710 A.2d 1023, 1026

(N.J. Super. Ct. App. Div. 1998). Accordingly, under this

"patient-focused" standard, an expert is not required to

establish a standard for disclosure or to prove that a

physician failed to meet the standard. See Tyndall v.

Zabonski, 703 A.2d 980, 982 (N.J. Super. Ct. App. Div.

1997). This does not mean, however, that a plaintiff with a

claim based on lack of informed consent can prevail under

New Jersey law without expert testimony. While expert

testimony is not required to establish the standard for

disclosure or to prove a physician failed to meet that

standard, it is still required to prove other elements of her

cause of action for lack of informed consent. See id. "A

plaintiff alleging lack of informed consent has the burden of

producing expert testimony to establish that the risk cited

was one that the defendant should have been aware of

because it was known to the medical community at the

time." Id. Thus, "proof of a risk recognized by the

professional community must come from a qualified

expert." Id.

11

Because a plaintiff cannot prevail on a lack of informed

consent claim under New Jersey law without expert

testimony that the relevant risk was recognized by the

professional community, we are confident that the New

Jersey courts would find the affidavit of merit statute

applicable to such claims.

C. The "Extraordinary Circumstances" Issue

In Cornblatt v. Barow, 708 A.2d 401, 413 (N.J. 1998), the

Supreme Court of New Jersey held that "a dismissal for

failure to comply with the [affidavit of merit] statute should

be with prejudice in all but extraordinary circumstances."

The District Court in this case acknowledged that it would

be appropriate to grant permission for the filing of the

required affidavit nunc pro tunc if extraordinary

circumstances were present, but found none. Accordingly,

it refused to give such permission and dismissed the case

with prejudice.

What constitutes an "extraordinary circumstance" is a

fact-sensitive analysis. See Hartsfield v. Fantini, 695 A.2d

259 (N.J. 1997). To find extraordinary circumstances, the

court must determine that those circumstances "did not

arise from an attorney's mere carelessness or lack of proper

diligence." Id. (internal quotes omitted). "Generally,

substantial compliance with the filing limitation and

allegations that defendants used negotiations to lull the

plaintiffs into missing the filing date will not constitute

extraordinary circumstances. . . ." Id. In short, the

circumstances must be "exceptional and compelling." Id. at

264.

We agree with the District Court that the circumstances

here fall short of "exceptional and compelling." As it noted,

the plaintiff has provided no adequate excuse for her failure

to comply with the statute, and the most reasonable

inference from the record is that plaintiff's counsel was

simply unaware of the affidavit of merit requirement.

The plaintiff complains that because the defendant did

not request the affidavit in his answer to her complaint and

the District Court did not require it in the pre-trial

scheduling order, she was "lulled" into believing an affidavit

12

of merit was not necessary. Neither the defendant nor the

Court had a duty to call the attention of plaintiff's counsel

to the requirements of the statute, however. If counsel had

been aware of the statute, it is difficult to believe that he

would have failed to comply in reliance on the answer and

the scheduling order, and any such reliance, in any event,

would have been unreasonable.6 The New Jersey statute

clearly sets out the filing requirements and makes no

provision for exemptions, except where the attorney applies

for an extension for good cause. The plaintiff herefiled no

motion for an extension and so had no statutory basis for

an exemption from the affidavit requirement.

The plaintiff compares her case to Hyman Zamft and

Manard, L.L.C. v. Cornell, 707 A.2d 1068, 1072 (N.J. Super.

Ct. App. Div. 1998), where the Appellate Division of the

Superior Court of New Jersey found extraordinary

circumstances existed. There, a mediation order implied

that a "time-out" existed for parties to refile pleadings. In

contrast, nothing occurred during this case that would lead

the parties to believe a "time-out" from filing deadlines

existed. It is true the Hyman Zamft Court also noted that

no demand for the affidavit of merit was made in the

responsive pleading, and no case management order of the

trial court required filing of an affidavit of merit. These

factors were cited by the Court in the course of itsfinding

"extraordinary circumstances." See id. at 1071, 1072.

Nevertheless, the Court also noted that the mediation order

alone was sufficient grounds for excusing the failure to file

the affidavit in a timely manner, indicating that this factor

was the most influential in its decision.

The plaintiff here also compares some of the

circumstances of her case to those of Barreiro v. Morrais,

723 A.2d 1244 (N.J. Super. Ct. App. Div. 1999). In Barreiro,

the Court remanded for a hearing on whether extraordinary

circumstances existed because a protracted delay by the

_________________________________________________________________

6. If counsel had focused on the affidavit of merit statute, he would have

been aware that it would be applied by the District Court. Prior to the

filing of the complaint, the District Court had held that a federal court

sitting in a diversity case was bound by that statute. RTC Mortgage Trust

v. Fidelity National Title Insurance Co., 981 F. Supp. 334 (D.N.J. 1997).

13

defendants in providing legible hospital records had

prevented timely filing of an affidavit. The plaintiff in

Barreiro first requested medical records before filing the

complaint and was rebuffed. After filing the complaint, the

plaintiff made several requests for records and

transcriptions thereof, since the original records were

indecipherable. The transcriptions were not provided until

130 days after the defendants filed answers. See id. at

1249. The Barreiro Court opined that the purpose of the

60-day filing window is not to afford defendants with "a

sword to fight off action by procrastinating in providing

records and other relevant materials that a competent,

conscientious expert would have to analyze before

submitting an Affidavit of Merit." Id. at 1248.

Unlike the situation in Barreiro, where the defendants

ignored repeated requests for medical records after the

complaint was filed, the defendant here provided the

necessary medical records one week after the pre-trial

scheduling conference and three weeks before the affidavit

of merit had to be filed, sufficient time for the plaintiff to

either obtain the affidavit of merit or file a motion for a 60-

day extension. The repeated delays and indecipherable

records in Barreiro constituted the "sword" the Court

referred to in that case. In contrast, the "sword" the plaintiff

complains about here is a perfectly legitimate motion filed

by the defendant to dismiss the complaint for failure to file

the affidavit of merit.

Because there are no circumstances here that rise to the

"extraordinary" level required by Cornblatt, we must affirm

the District Court's decision to dismiss with prejudice, at

least with respect to the negligent acts that were alleged to

have occurred after June 29, 1995, the effective date of the

affidavit of merit statute.

D. The Pre-Statute Claims Issue

The New Jersey Supreme Court has held that "the

[affidavit of merit] statute does not apply to malpractice

actions filed on or after the effective date of the statute if

the facts giving rise to the malpractice complaint occurred

before that date." Cornblatt, 708 A.2d at 406. The Cornblatt

14

Court found the term "occur" as used in the statute to have

the same meaning as "accrue," so the statute only applies

to causes of action which accrue on or after June 29, 1995.

See id. at 408. A cause of action accrues when the facts

occur which give rise to a right of action.

The complaint in this action refers to three rhinoplasty

proceedings, the first in January of 1994, the second in

August of 1995, and the third in March of 1996. When

deciding the defendant's motion to dismiss, the District

Court looked beyond the complaint to determine whether

the plaintiff had a claim that accrued prior to the effective

date of the affidavit of merit statute. The Court dismissed

the entire case based on the plaintiff's sworn answer to an

interrogatory indicating that she "was satisfied with the

first Rhinoplasty performed by Defendant," the only one

that pre-dated the statute. As the Court correctly noted, "it

is hornbook law that a court need not . . . consider a

statement made to fend off a well supported motion to

dismiss or for summary judgment which contradicts a prior

statement made under oath." Op. at 5-6, n.1. We agree that

the plaintiff is not now in a position to base a malpractice

claim on the January 1994 surgery.

We note, however, that the record at the time of the

dismissal contained sworn allegations, in the form of an

affidavit of the plaintiff and her answers to interrogatories,

that the defendant's negligent treatment of the plaintiff

included the injection of cortisone into her nose prior to the

effective date of the statute. Also included in the record was

a medical report of a licensed physician opining that "the

cortisone injections were contraindicated in her condition."

App. at 61.

We conclude that the District Court, having determined

to go beyond the complaint in deciding defendant's motion

to dismiss, could not, in fairness, ignore this competent

evidence that pre-effective date malpractice occurred.

Accordingly, we will remand for further proceedings on that

claim only.

E. The Default Judgment Issue

In addition to appealing the District Court's dismissal of

her complaint, the plaintiff contends the District Court

15

erred in declining to grant plaintiff's motion for default

judgment based on defendant's late answer. Three factors

control whether a default judgment should be granted: (1)

prejudice to the plaintiff if default is denied, (2) whether the

defendant appears to have a litigable defense, and (3)

whether defendant's delay is due to culpable conduct. See

United States v. $55,518.85 in U.S. Currency, 728 F.2d 192,

195 (3d Cir. 1984). The District Court's refusal to enter a

default judgment is subject to review under the abuse of

discretion standard.

We agree with the District Court that a default judgment

was not warranted here. The plaintiff is not prejudiced by

the denial of default judgment because her failure to file the

affidavit of merit on time was not related in any way to the

defendant's late answer. The plaintiff received notice when

the answer was filed May 8, 1998, and knew or should

have known that the 60-day period to file the affidavit of

merit began that day. If the plaintiff wanted to make a

motion for default judgment before the 60-day affidavit of

merit window closed, she could have done so. In addition,

the defendant alleged a litigable defense to both counts of

the complaint, and no record evidence suggests that the

defendant's delay in filing an answer was due to culpable

conduct, which in the Third Circuit is conduct that is

"taken willfully or in bad faith." Gross v. Stereo Component

Sys., Inc., 700 F.2d 120, 124 (3d Cir. 1991).

III.

We will reverse the judgment of the District Court and

remand for further proceedings on the plaintiff's claim that

the defendant was guilty of malpractice with respect to

cortisone injections occurring before June 29, 1995.

16

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17