A case argued Tuesday at the state Supreme Court is testing whether a plaintiff should be held responsible if her lawyer blows the 90-day notice period mandated in the New Jersey Tort Claims Act for suits against public entities.
Late filings can be excused in cases of “extraordinary circumstances,” and the question in D.D. v. University of Medicine and Dentistry of New Jersey, A-29/30-11, is whether a lawyer’s defalcation meets that standard.
Two lower courts have answered yes, in view of the plaintiff’s repeated yet unsuccessful efforts to contact her attorney as the deadline loomed.
D.D. met with UMDNJ officials in November 2009 to discuss her participation in an upcoming World AIDS Day program. She disclosed information about her personal health that she said should be kept confidential. But later that month, D.D. learned that UMDNJ and Rutgers University had included the information in press releases.
D.D. immediately sent letters to UMDNJ and Rutgers demanding that they stop disseminating the information. That December, she and her attorney, Dwayne Warren, met with school officials. She apparently believed the issue would be resolved informally, but in the weeks following the meeting, she said, she tried on multiple occasions to reach Warren without success.
In the meantime, D.D. allegedly suffered from severe stress, anxiety, hypertension, insomnia, respiratory insufficiency, blurred vision and lack of concentration.
In April 2010, with no word from Warren and no resolution in sight, D.D. hired a new lawyer, Susan Kleiner, whose first move was to try to file a notice of claim on April 15. When told it was time-barred, she moved in court for permission to file a late claim.
Middlesex County Superior Court Judge Alberto Rivas ruled D.D. could file out of time because of the extraordinary-circumstances exception of the TCA, N.J.S.A. 59:8-9. An Appellate Division panel concurred, though a dissenter said attorney negligence does not extraordinary circumstances make.
On Tuesday, Rutgers’ lawyer told the court that allowing the exception would “eviscerate” the Tort Claims Act. “There is nothing extraordinary about the circumstances in this case,” said Nicholas Pellitta, of Bridgewater’s Norris, McLaughlin & Marcus. “There are no facts that support such a finding. The plaintiff was not incapacitated.”
Justice Barry Albin asked Pellitta if he was saying that Rutgers and UMDNJ would be unable to defend themselves if D.D. were allowed to file late.
Pellitta said that was not his argument. Rather, he said, the rule is clear that the notice of claim must be filed within 90 days of the alleged tort. In this case, the date when D.D. learned that her personal health information had been released against her expressed wishes.
Albin pointed out that the December 2009 meeting put the defendants on notice of the possibility of legal action.
Pellitta said there was no indication — either from D.D. or Warren — that she was contemplating legal action.
“Is attorney negligence ordinary these days?” Albin asked. “It sounds like she was abandoned by her attorney.”
The record “shows she did everything she could,” Albin said, pointing to her deteriorating health and her unsuccessful attempts to reach Warren.
“I don’t believe any of those circumstances are extraordinary,” Pellitta replied. “She was competent to retain counsel and attend the meeting.”
Justice Anne Patterson suggested the presence of an attorney at the meeting should have alerted the defendants about the possibility of a claim.
Pellitta countered, “He could have been there to help ameliorate the situation.”
Chief Justice Stuart Rabner asked Pellitta what more D.D. could have done.
“If she was dissatisfied, she could have sought out other counsel within 90 days,” Pellitta replied.
Albin said it appeared that Pellitta was saying the average person should know about the 90-day deadline.
“Case law is replete that ignorance of the law is not extraordinary circumstances,” said Pellitta.
UMDNJ’s lawyer, Assistant Attorney General Stuart Feinblatt added, “The statute is pretty unforgiving.”
Albin asked Feinblatt what else D.D. should have done.
“She had an obligation to do something else,” Feinblatt said. “The attorney abandoned her, but there are not cases that have held that to be extraordinary circumstances.”
Kleiner, who has a firm in Metuchen, accused Rutgers and UMDNJ of “not turning square corners.”
“They are attempting to shield themselves from their own recklessness,” she said. “They are trying to use the law as it was not intended.”
Kleiner said the TCA makes it clear that trial judges have the discretion to allow for late filings of notices of claim based on the totality of the circumstances. “Notice provisions are not intended to be a trap for the unwary,” she said.
“Does the degree of attorney neglect make a difference?” Albin asked.
“It can’t be attorney negligence alone,” Kleiner acknowledged. But here, she said, D.D. did not let the matter lie. She made repeated attempts to contact Warren to find out what was going on. “This is not a case where plaintiff sat on her rights,” Kleiner concluded.