A divided state Supreme Court took a hard line Tuesday on what "extraordinary circumstances" justify late filing of a notice under the Tort Claims Act.
In a 3-2 ruling, the justices disagreed with two lower courts that extended the 90-day period based on the plaintiff’s medical problems and her attorney’s alleged inattentiveness.
If the court were to agree with the plaintiff, "it would create an entirely new rule that would permit wide latitude to claimants and counsel to circumvent the statute’s clear commands," Justice Helen Hoens wrote in D.D. v. UMDNJ, A- 29/30-11. That would be incompatible with legislative intent that "the circumstances be not merely sufficient excuses, but extraordinary ones," she added.
In addition, the majority rejected the idea that the notice requirement could be accomplished without a writing if the information required by the notice was conveyed orally within the 90 days.
The plaintiff, identified as D.D. and founder of a nonprofit community organization that promotes health awareness, sought to assert an invasion of privacy claim.
D.D. had been invited to speak at a Dec. 1, 2009, World AIDS Day event sponsored by Robert Wood Johnson Hospital.
She alleges that during an October or November 2009 meeting with Rutgers University and University of Medicine and Dentistry of New Jersey staff to prepare for the event, she disclosed information about her personal health, asking it be kept private.
The case does not say what that information was, but D.D.’s attorney, Susan Schleck Kleiner, says her client revealed at the meeting that she has AIDS.
D.D. claims that during an Internet search on or about Nov. 24, 2009, she came across a press release that revealed her health condition and believed the source was someone from the meeting.
She sent a cease-and-desist letter to Rutgers and UMDNJ, telling them to remove the information from the Internet and stop distributing the press release.
In December 2009, D.D. and Dwayne Warren, who she says was her lawyer, met with representatives from the schools.
She claims they apologized, asked what they could do to ameliorate the situation and assured her policies had been implemented to ensure it would not happen again.
Allegedly, no one at the meeting mentioned the 90-day notice requirement nor did Warren advise her of it.
She claims that she was distressed over the disclosure — with symptoms like anxiety, depression, high blood pressure and insomnia — and that Warren asked her for information about the impact, which she provided, but then failed to return at least 10 calls to his office and cellphone.
By the time D.D. gave up on him and hired Kleiner, the 90 days had passed. In mid-April 2010, Kleiner sent tort claims notices to Rutgers and UMDNJ general counsel asking them to waive any lateness issues.
Rutgers asked for more details while UMDNJ said the notice was untimely and the claim barred, leading D.D. to seek leave to file a late notice.
Middlesex County Superior Court Judge Alberto Rivas granted the request, finding extraordinary circumstances and lack of prejudice to the defendants based on the meeting and the cease-and-desist letter.
The Appellate Division affirmed. Judges Victor Ashrafi and Richard Newman rejected the defense argument that D.D.’s physical symptoms were not debilitating and thus not severe enough to keep her from filing timely notice.
They found the proper approach should be the totality of the circumstances, rather than an examination of the factors in isolation.
They also held that whether D.D. had the alternate remedy of suing Warren for malpractice was irrelevant to deciding whether extraordinary circumstances excused the late notice.
Dissenting Judge Jose Fuentes said D.D.’s ability to hire a lawyer, provide him information and persist in efforts to contact him, as well as meet with the defendants, showed she was "not physically or emotionally incapacitated during the critical window of time." In his view, it was her lawyer’s alleged neglect that was the issue, and attorney neglect or incompetence does not comprise extraordinary circumstances.
Hoens agreed with Fuentes that D.D. was not "psychologically stymied" by her medical or emotional complaints, saying D.D. "not only was able to pursue her complaint but was diligent in her efforts."
She further concluded that "neither inattention nor incompetence of counsel meets the extraordinary circumstances test" even when it amounts to malpractice. Otherwise, "any plaintiff, merely by pointing to a lawyer’s failings, could bypass the statutory test for timeliness."
Hoens was joined by Chief Justice Stuart Rabner and Justice Anne Patterson.
Justice Jaynee LaVecchia, in a dissent joined by Justice Barry Albin, called the holding "so unduly restrictive that it subordinates the interests of justice to a mere technicality."
LaVecchia asked "since when did we become inured to utter neglect by an attorney?" and said Warren’s alleged failure to advise of the 90-day deadline was akin to receiving incorrect advice rather than misplacement of a file.
Plaintiff lawyer Kleiner, who heads a Metuchen firm, calls it unfortunate that the majority chose to look at the medical and attorney factors separately rather than at their combined impact.
She terms it unconscionable that Rutgers and UMDNJ never told D.D. about the notice, lulled her into a sense of security and then "were able to point to the absence of a piece of paper."
Nevertheless, D.D. still has a remedy, and not just the potential legal malpractice claim mentioned by the court.
A separate suit filed in 2011 asserts claims not subject to the notice requirement — under New Jersey’s Law Against Discrimination, Civil Rights Act and Acquired Immune Deficiency Syndrome Act, as well as violation of the constitutional right to privacy.
Rutgers’ lawyer, Nicholas Pellitta of Norris McLaughlin & Marcus in Bridgewater, calls the decision "significant from a public entity standpoint in that it brings some clarity to those cases involving the late-notice provision under the Tort Claims Act and particularly cases that involve allegations of physical or emotional incapacity and attorney neglect."
Division of Law Director Christopher Porrino said the decision "makes plain that public entities should only have to defend timely-filed claims, or claims that meet the strictly defined exceptions to the 90-day filing requirement."
Assistant Attorney General Stuart Feinblatt argued before the court on behalf of UMDNJ.
E. Drew Britcher of Glen Rock’s Britcher Leone & Roth, who submitted a brief for the amicus New Jersey Association for Justice, finds the decision troubling because "there is nothing that a written notice would have reasonably done that the meeting between the plaintiff, the school representatives and their respective counsel wouldn’t have done."
Noting that the dissent mentioned that the majority seemed to have an "overriding concern about opening the floodgates" to late notices, Britcher says that the facts of D.D.’s case are so unique it "would not have opened up a faucet, let alone a drop, never mind a floodgate."
Warren, now mayor of Orange, says he was never D.D.’s attorney and attended the meeting with her in his capacity as a member of an NAACP committee on discrimination.