                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                       No. 11-3412
                                      ____________

      DAVID MULHOLLAND; MEGAN MULHOLLAND, Husband and Wife,

                                                        Appellants

                                           v.

              THOMAS JEFFERSON UNIVERSITY HOSPITAL, INC.;
               THOMAS JEFFERSON UNIVERSITY PHYSICIANS;
               CATALDO DORIA, MD, individually; JEAN NOVAK,
                   BSN, individually; JAMES F. BURKE, JR., MD,
                individually; GEORGE FRANCOS, MD, individually;
                  JOHN DOES A AND B, physicians, nurses and/or
                                   business entities
                                    ____________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                                (D.C. No. 09-cv-04322)
                      District Judge: Honorable Joel A. Pisano
                                    ____________

                             Argued July 10, 2012
            Before: FUENTES, HARDIMAN and ROTH, Circuit Judges.

                               (Filed: July 30, 2012)

Louis P. McFadden, Jr. [Argued]
Suite 307
222 New Road
Linwood, NJ 08221-0000
            Attorney for Appellants
Daniel F. Ryan, III [Argued]
Jeffrey P. Brien
Anthony P. DeMichele
Stephanie M. Hohing
O’Brien & Ryan
2250 Hickory Road
Suite 300
Plymouth Meeting, PA 19462-0000
              Attorneys for Appellees

                                        ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

       David and Megan Mulholland appeal the District Court’s dismissal of their

complaint for failure to comply with New Jersey’s affidavit-of-merit statute. See N.J.

Stat. Ann. §§ 2A:53A-26 to -29. We will affirm.

                                              I

       Because we write for the parties, who are well acquainted with the case, we recite

only the essential facts and procedural history.

       In 2009, David received a transplanted kidney from a donor who, prior to the

surgery, had tested positive for cytomegalovirus (CMV). David and his wife, Megan,

tested negative for the virus. David could have received a kidney from Megan, but

ultimately chose the other donor so that Megan would be able to donate a kidney to their

son if he someday needed it. Before he consented to the surgery, David had been told of

the serious risk of CMV infection associated with the transplant procedure, but not of the
                                             2
different CMV test results. For more than two years following the transplant, David

suffered complications from a CMV infection, which ended with the removal of the

transplanted kidney. Megan also contracted CMV during this period.

       David and Megan filed a diversity suit against Thomas Jefferson University

Hospital, Inc., where the transplant was performed, and against several medical

professionals who were involved in transplanting the kidney and treating David

(collectively, Defendants). The amended complaint alleges five counts—lack of

informed consent, assault and battery, professional malpractice, negligence, and

fraudulent misrepresentation—but the Mulhollands abandoned all but the first and last

claims during the course of litigation in the District Court. The District Court dismissed

the complaint for failure to satisfy the affidavit-of-merit requirement, 1 and the

Mulhollands timely filed a notice of appeal.



       1
           The affidavit-of-merit statute provides in pertinent part:

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

                                                3
                                              II

       We will affirm largely for the reasons stated by the District Court, whose decision

we subject to plenary review. Newell v. Ruiz, 286 F.3d 166, 167 n.2 (3d Cir. 2002). The

Mulhollands offer two arguments for reversal. First, they contend that under New Jersey

law, an affidavit is not required to proceed with a lack-of-informed-consent or fraudulent-

misrepresentation claim. In the alternative, they assert that they substantially complied

with the affidavit requirement.

       We squarely rejected the first argument in Chamberlain v. Giampapa, 210 F.3d

154, 161–62 (3d Cir. 2000), holding that under New Jersey law, an affidavit is a

necessary predicate to a lack-of-informed-consent action. We are permitted to reconsider

this holding “‘in light of intervening authority,’ including intervening decisions of state

law [by] its highest court.” Covell v. Bell Sports, Inc., 651 F.3d 357, 364 (3d Cir. 2011)

(quoting Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996)). The Mulhollands



       In the case of an action for medical malpractice, the person executing the
       affidavit shall meet the requirements of a person who provides expert
       testimony or executes an affidavit as set forth in section 7 of P.L. 2004, c.
       17 (C.2A:53A-41). In all other cases, the person executing the affidavit
       shall be licensed in this or any other state; have particular expertise in the
       general area or specialty involved in the action, as evidenced by board
       certification or by devotion of the person’s practice substantially to the
       general area or specialty involved in the action for a period of at least five
       years. The person shall have no financial interest in the outcome of the
       case under review, but this prohibition shall not exclude the person from
       being an expert witness in the case.

N.J. Stat. Ann. § 2A:53A-27.
                                              4
proffer a few New Jersey Supreme Court precedents addressing the affidavit requirement

since Chamberlain, see Couri v. Gardner, 801 A.2d 1134 (N.J. 2002); Palanque v.

Lambert-Woolley, 774 A.2d 501 (N.J. 2001); Hubbard ex rel. Hubbard v. Reed, 774 A.2d

495 (N.J. 2001), but none of these cases considered the affidavit requirement as applied

to a lack-of-informed-consent claim. Accordingly, Chamberlain controls our disposition

here. Because the evidence necessary to prove fraudulent misrepresentation in this case

would be nearly identical to that needed to show lack of informed consent, Chamberlain

also disposes of the Mulhollands’ second cause of action.

       As the Mulhollands were subject to the affidavit requirement, the only remaining

question is whether they complied with it. They forthrightly concede that their affidavit

was untimely, and we agree with the District Court that their affiant, a family medicine

practitioner, does not meet the expertise standard found in N.J. Stat. Ann. § 2A:53A-27.

The Mulhollands argue under the New Jersey Supreme Court’s doctrine of “substantial

compliance” that they should be excused from this failure. See Ferreira v. Rancocas

Orthopedic Assocs., 836 A.2d 779, 783 (N.J. 2003) (discussing the five-part substantial-

compliance test). That Court has applied this doctrine where a medical-malpractice

defendant’s name was omitted from the affidavit, which was otherwise “timely served”

and accompanied by “an extensive medical expert’s report that clearly focused on his

conduct and on the totality of the circumstances attending” the alleged tort, Fink v.

Thompson, 772 A.2d 386, 394–95 (N.J. 2001), and in another case where “plaintiff’s

                                             5
counsel obtained a detailed expert’s report verifying the legitimacy of the claim long

before filing the complaint, immediately shared it with defendant’s carriers, and engaged

in settlement discussions with defendants based on the report,” Galik v. Clara Maass

Med. Ctr., 771 A.2d 1141, 1152 (N.J. 2001). Unlike the plaintiffs in those cases, the

Mulhollands can show neither a lack of prejudice to Defendants, who may be held liable

if we accept the substantial-compliance argument and who were not timely “notified . . .

about the merits of the . . . claims filed against them,” Palanque, 774 A.2d at 506, nor a

reasonable explanation for noncompliance. The District Court correctly held that the

Mulhollands did not substantially comply with the affidavit requirement. 2

                                            III

       For the aforementioned reasons, we will affirm.




       2
         The Mulhollands also invoke the “extraordinary circumstances” exception
recognized in Ferreira, 836 A.2d at 783, but because they address it for the first time in
their reply brief, the argument has been waived. E.g., United States v. Pelullo, 399 F.3d
197, 222 (3d Cir. 2005).
                                             6
