A lawyer’s failure to file an affidavit of merit in a nursing malpractice suit is not an extraordinary circumstance warranting relief from filing deadlines, a New Jersey appeals court has ruled.
The appeals court affirmed the dismissal of claims against three jailhouse nurses in the death of a prisoner. In a published ruling, the court said in Yearby v. Middlesex County that a judge below erroneously reinstated claims against the nurses in connection with the death of a mentally ill prisoner, David Yearby, in November 2014.
Yearby, 27, arrested on charges of assaulting a Piscataway police officer, died while strapped into a restraint chair at the Middlesex County Adult Corrections Center. Guards placed a hood over his head to prevent him from spitting, but the suit says that was dangerous because he suffered from asthma. He apparently suffered a broken neck when guards forcibly removed him from his cell.
Attorney Gregg Zeff of the Zeff Law Firm in Mount Laurel, New Jersey, filed suit on behalf of Yearby’s estate, naming the nurses, several police officers and prison guards, and Piscataway Township and Middlesex County as defendants. A motion by the nurses—Angela Ward, Gideon Thuo and Nicole Tuesday—for dismissal based on the failure to file an affidavit of merit in their case was granted by Superior Court Judge Vincent Leblon. Then substitute counsel for the plaintiffs, Newark attorney Brooke Barnett, moved to reinstate the charges.
She claimed that Zeff’s failure to take any action to comply with the affidavit of merit statute, including his failure to oppose the nurses’ motion to dismiss, constituted “extraordinary circumstances” warranting a break from the sanction of dismissal. Leblon granted her motion, but on appeal, Judges Jose Fuentes, Ellen Koblitz and Thomas Manahan reversed in a published decision.
Fuentes, writing for the court, said Zeff “failed to take any measures to comply with the clear, time-sensitive requirements of the Affidavit of Merit statute. In fact, from his earliest interactions with the judicial system, counsel behaved as if the civil complaint he prepared and filed did not raise any claims based on the tort of professional malpractice. The doctrine of substantial compliance is not applicable when the record shows a complete failure to take any measures to comply.”
What’s more, “the equitable concept of ‘extraordinary circumstances’ has never been used to relieve an attorney from the legal and ethical consequences of failing to competently perform his or her professional responsibilities,” Fuentes wrote for the court.
“We are keenly aware of the seriousness of the allegations raised in this civil action. The circumstances that plaintiffs allege caused this young man’s death are unimaginably horrific. Those who are found civilly liable should be held accountable. However, as established by the legislature and recognized by the Supreme Court, an affidavit of merit strikes at the heart of the cause of action. Thus, neglecting to provide an affidavit of merit after the expiration of the 120-day time period generally requires dismissal with prejudice,” Fuentes wrote.
Plaintiff lawyer Barnett said she respectfully disagreed with the ruling. “Because of Mr. Zeff failing to see this case having a medical malpractice cause of action, it’s unfortunate that my client has to suffer for that. In the end, there’s culpability there,” she said.
Barnett said the case would proceed against the remaining defendants.
Zeff did not return a call seeking comment. Stephen Holtzman and Jeffrey McClain of Holtzman McClain in Linwood, New Jersey, who represented the nurses, also did not return calls.