                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5023-12T1

JOHNNY MEDINA,

      Plaintiff-Appellant,
                                         APPROVED FOR PUBLICATION
v.                                           August 11, 2015

CEASAR G. PITTA, M.D.,                     APPELLATE DIVISION
ANTHONY L. PANARIELLO, M.D.,
BETTY A. CERVENAK, M.D. and
PALISADES EYE ASSOCIATES,

      Defendants-Respondents,

and

RIVERSIDE SURGERY &
LASER CENTER and CLARA
MAASS MEDICAL CENTER,

      Defendants.1

________________________________________________________________

           Argued October 6, 2014 – Decided August 11, 2015

           Before   Judges   Espinosa,    St.    John    and
           Rothstadt.

           On appeal from Superior Court of New Jersey,
           Law Division, Hudson County, Docket No. L-
           5532-11.

           Paul F. O'Reilly argued the cause for
           appellant (The Law Offices of James Vasquez,

1
    According to the case information statement, plaintiff's
claims against these defendants were dismissed without prejudice
by agreement.
           P.C., attorneys; James               Vasquez       and     Mr.
           O'Reilly, on the briefs).

           Christine M. Jones argued the cause for
           respondent Ceasar G. Pitta, M.D. (Farkas &
           Donohue, LLC, attorneys; Evelyn C. Farkas,
           of counsel; Ms. Jones, on the brief).

           Erica C. Avondoglio argued the cause for
           respondents Anthony L. Panariello, M.D.,
           Betty A. Cervenak, M.D. and Palisades Eye
           Associates (Giblin & Combs, LLC, attorneys;
           Ms. Avondoglio, on the brief).

    The opinion of the court was delivered by

ESPINOSA, J.A.D.

    In this medical malpractice action, plaintiff retained an

expert   who    was    "fully     retired"    before   any     of    the    defendant

physicians      treated     him.      Plaintiff    appeals          from    an   order

granting   summary      judgment     to   defendants     on    the    ground     that,

pursuant       to     the   New     Jersey     Medical        Care     Access       and

Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37

to -42, his proposed expert was not qualified to give expert

testimony on the appropriate standard of care.                      He also appeals

from the denial of his motion for reconsideration.                           For the

reasons that follow, we conclude the proposed expert did not

meet the qualification requirements of the PFA.                            We further

consider plaintiff's argument that the doctrines of substantial

compliance and extraordinary circumstances should preclude the

dismissal of his complaint.               We conclude that these doctrines




                                          2                                   A-5023-12T1
are inapplicable when summary judgment is sought based upon a

plaintiff's     failure      to   secure       an    expert      witness   who      is

"statutorily authorized to testify" about the standard of care

in a medical malpractice case.                 Therefore, a        dismissal with

prejudice was appropriate.

                                         I.

                                         A.

      Plaintiff,     a     diabetic,     was    referred      to    defendants      in

October 2007 by his endocrinologist because he was seeing spots.

The vision in his right eye was 20/40 and in his left eye was

20/50.        He     was     diagnosed        with    proliferative        diabetic

retinopathy, which means he had retinal changes in both eyes due

to diabetes.

      It is unnecessary to give a detailed account of plaintiff's

treatment history with defendants.              Over the course of the years

following plaintiff's first appointment on October 10, 2007, Dr.

Ceasar G. Pitta performed a number of procedures on plaintiff,

beginning with a vitrectomy on the left eye and laser treatment

on the right eye on October 16, 2007.                He later performed these

procedures on the right eye on multiple occasions: November 17,

2009, January 19, 2010, April 20, 2010, and January 25, 2011.

Dr.   Anthony   L.   Panariello     performed        what   he     described   as    a

"complex cataract surgery" on plaintiff's right eye on January




                                         3                                 A-5023-12T1
5,    2011.     There   were     no   complaints        relative    to     a   retinal

detachment in the first post-operative visit.                       However, when

plaintiff saw Dr. Leonard Feiner on March 30, 2011, a B-Scan2

revealed      that   plaintiff    had    developed      a    retinal      detachment.

Plaintiff now has no vision in his right eye.

                                         B.

       The amended complaint, filed in November 2011, alleged that

Dr.    Pitta,    Dr.    Panariello,      Betty     A.       Cervenak,     M.D.,      and

Palisades Eye Associates were negligent in the care provided to

plaintiff during the time period from 2007 to 2011.3

       In his October 24, 2011 expert report, Dr. Peter H. Morse

opined, "Mr. Medina lost the sight in his right eye because of

inadequate and dilatory treatment by Dr. Pitta.                    Drs. Panariello

and Cervenak were also negligent in caring for the patient but

to a lesser degree."           He stated that, as of plaintiff's first

appointment     with    Dr.   Pitta     in    October    2007,     "his    eyes    were

eminently salvageable with adequate and timely treatment" and

remained so in January 2009.            At his deposition, Dr. Morse also


2
   Plaintiff's expert testified, "B-scan is an ultrasound . . .
[that] can detect patterns in the back of the eye when you can't
see in clearly."
3
   Although there are some differences in the dates of treatment
identified by plaintiff and defendants, these discrepancies are
immaterial because it is undisputed that none of the defendants
treated plaintiff before October 2007.



                                         4                                     A-5023-12T1
stated    that    plaintiff's       eye    was          still   "eminently      salvageable

with laser treatment" in July 2009.

       Dr.   Morse      acknowledged      that          Dr.    Pitta's      treatment     notes

from July 2009 reflect that he recommended laser treatment to

plaintiff and that "[p]atient wishes to defer treatment."                                   Dr.

Morse agreed that plaintiff did not want laser treatment at that

time and did not return to Dr. Pitta until November 2009.                                   Dr.

Morse    testified       he    thought     plaintiff's             eye      still    remained

salvageable      in     November    2009.           He        stated   further      that    the

vitrectomy       with    laser     treatment            performed      by     Dr.   Pitta    in

November 2009 was the proper treatment and, in fact, there was

some    restoration       of   vision     as       of    December      2009.        Dr.   Morse

testified that his report contained all his opinions with regard

to deviations from the standard of care.

       Dr. Morse was also questioned about the earliest dates that

Dr. Panariello and Dr. Cervenak deviated from accepted standards

of care.      He identified October 25, 2010 as the date of Dr.

Panariello's first deviation from standards of medical care.                                 He

did not find any deviations in care in the cataract surgery

performed by Dr. Panariello on January 5, 2011.                              Turning to Dr.

Cervenak, Dr. Morse stated, "essentially, she only had one visit

on the 20th of October 2010."                      He testified that, despite Dr.

Cervenak's       recommendation         that        plaintiff          have     a    cataract




                                               5                                      A-5023-12T1
extraction, she deviated from accepted standards of medical care

because she failed to order a B-scan and make sure plaintiff had

follow-up for the inflammation in his eye.

                                        C.

     In December 2011, each of the defendants filed answers and

demanded an affidavit of merit (AOM), N.J.S.A. 2A:53A-27.                     Dr.

Pitta's answer complied with the requirement established by the

Supreme Court in Buck v. Henry, 207 N.J. 377 (2011)4 to "include

in his answer the field of medicine in which he specialized, if

any, and whether his treatment of the plaintiff involved that

specialty."     Id. at 396.          His answer states, "Dr. Pitta is an

ophthalmologist   with    a    specialty       in   retinal   disease   who   has

provided care and treatment to Plaintiff . . . ."                   In addition,

Dr. Pitta demanded answers to Form A(1) Uniform Interrogatories,

Interrogatory   Forms,    Pressler      &     Verniero,   Current    N.J.   Court

Rules, Appendix II to R. 4:17-1(b) at 2604-06 (2015), which

include   a   request    for     a    copy     of   the   current    resume    of

plaintiff's expert.

     Plaintiff served an AOM, dated November 7, 2011, prepared

by Dr. Morse, along with a copy of his curriculum vitae.                      Dr.

Morse's   curriculum     vitae       states    he   is    board   certified    in


4
   Buck was decided on August 22, 2011, approximately four months
before the answers were filed in this case.



                                        6                               A-5023-12T1
ophthalmology.         The     list   of     hospital   and   administrative

appointments ends with the following:

           1993-Present        Staff Physician
                               McKennan Hospital
                               Sioux Falls, SD

           1993-Present        Staff Physician
                               Sioux Valley Hospital
                               Sioux Falls, SD

However, Dr. Morse was not a staff physician at either hospital

at the time his curriculum vitae was provided to defendants as a

"current resume."

      According to the parties, the trial court held a Ferreira5

conference     on   February    15,     2012,   where   plaintiff's    counsel

represented that he served an AOM and expert report written by

Dr.   Morse,   a    board   certified    ophthalmologist,     and   defendants

posed no objections to his report or qualifications.6

      Dr. Panariello and Dr. Cervenak did not identify themselves

as specialists in their answers.             The curriculum vitae provided

with their answers to interrogatories stated they were board

certified in ophthalmology.           Those answers were served on March

16, 2012, approximately one month after plaintiff was required

to serve an AOM.      N.J.S.A. 2A:53A-27.

5
    Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
6
   We have not been provided with an order from the Ferreira
conference and rely upon the representations contained in the
parties' briefs.



                                         7                            A-5023-12T1
      A case management order, dated July 26, 2012, set September

2, 2012 as the final date for the service of expert reports on

behalf of plaintiff.

      At his deposition on January 10, 2013, Dr. Morse testified

he had "fully retired" on January 1, 2007.          Since that time, he

had not treated any patients or had privileges at any hospitals.

He had not instructed any students in an accredited medical

school,     health    professional   school,   accredited      residency     or

clinical research program for six months to one year before his

retirement.        When asked for an updated curriculum vitae, Dr.

Morse replied, "There has not been an updating in 20 years, and

there isn't going to be."

                                     D.

      Plaintiff did not file any motion to be permitted to obtain

a new expert or extend the discovery end date.                 A motion for

summary judgment was filed on behalf of Dr. Cervenak and Dr.

Panariello on or about January 24, 2013, arguing that Dr. Morse

did   not   meet     the   qualification   requirements   of    the   PFA    to

provide expert testimony on the applicable standard of care.

Dr. Pitta's motion for summary judgment was filed on or about

February 22, 2013.           Plaintiff's opposition was limited to a

letter in which he merely asserted that Dr. Morse's credentials

satisfied the requirements of N.J.S.A. 2A:53A-41 because he "is




                                      8                               A-5023-12T1
. . . board certified" in ophthalmology, "has held privileges at

hospitals     regarding           ophthalmology,            and    he    has     also    held

positions     in      teaching     schools       on    ophthalmology."            (Emphasis

added).

       By orders dated March 8, 2013, defendants' motions were

granted.      The motion judge noted plaintiff's failure to comply

with   Rule   4:46-2,7       but    addressed         the     motion     on    the   merits.

Citing    Ryan     v.    Renny,    203     N.J.   37        (2010),     the    motion   judge

stated N.J.S.A. 2A:53A-41 required a "degree of contemporaneity"

in the qualifications of the expert.                        The judge noted Dr. Morse

testified he was no longer credentialed by a hospital to treat

patients, had not been in active clinical practice since his

retirement       in     January    2007,    and       had    not   instructed        students

since sometime before that date.                        The judge concluded, "The

expert witness was not credentialed nor specialized at the time

of the alleged deviation as required under N.J.S.A. 2A:53A-41."

The judge noted further that "plaintiff has not requested a

waiver of the specialty provision, N.J.S.A. 2A:53A-41(c), nor




7
   Plaintiff did not file a responding statement that admitted or
disputed each of the facts in the movant's statement of material
facts as required by Rule 4:46-2(b). His counsel stated at oral
argument on the motion for reconsideration that he did not
dispute any of the facts.




                                             9                                       A-5023-12T1
argued that the affidavit of merit substantially complies with

the statute."

     Plaintiff filed a motion for reconsideration in which he

maintained   Dr.       Morse    was      qualified    to      testify    as    an     expert

witness.     He       also    contended,      for    the      first    time,   that       the

doctrines        of      substantial          compliance         and     extraordinary

circumstances warranted a dismissal without prejudice.                              At oral

argument    on    this       motion,     plaintiff's         counsel    stated      he    had

intended to raise these issues at oral argument of the summary

judgment    motions,         which     he   did   not      attend.       Counsel         also

admitted that when he first called him, Dr. Morse advised him

that he was retired "somewhere around 2007" and asked if that

would be a problem.            Counsel replied that he would look into it

but that he did not think so.8

     The motion judge denied the motion for reconsideration and

set forth his reasons in a written opinion.

                                            II.

     Plaintiff         raises        a      number      of     arguments       for        our

consideration in his appeal.                 We turn to the central question


8
   Plaintiff provided the court with conflicting accounts as to
his knowledge regarding Dr. Morse's qualifications.      In his
motion for reconsideration, plaintiff's counsel stated he was
surprised by Dr. Morse's deposition testimony that he stopped
practicing on January 1, 2007, and that all his hospital
privileges ended around that time.



                                             10                                     A-5023-12T1
here,     whether    Dr.    Morse      was     qualified,       pursuant    to     the

requirements of the PFA, to testify on the appropriate standard

of care applicable to each of these defendants.                       We conclude

that he was not.

    The qualification and competency of a witness to provide

expert    testimony       are   matters       that    lie   within    "the       sound

discretion    of    the    trial      court.      Absent    a    clear     abuse   of

discretion,    an    appellate        court    will   not   interfere      with    the

exercise of that discretion."             Carey v. Lovett, 132 N.J. 44, 64

(1993).    The trial court's discretion "can, of course, be guided

by statute."       Ryan, supra, 203 N.J. at 50.

    Any expert testimony proffered by plaintiff was subject to

the PFA, which established enhanced qualification requirements

for experts who provide testimony or execute AOMs in medical

malpractice    cases.9          The    requirements     vary,     depending       upon

whether the defendant physician is a specialist, board certified

in a specialty or a general practitioner.                   A witness who does

not meet those qualifications is not "statutorily authorized to

testify" as to the standard of care, even if the witness meets

the qualifications set by the AOM statute, Ryan supra, 203 N.J.


9
   In Khan v. Singh, 200 N.J. 82, 100 (2009), the Supreme Court
expressly noted that these additional requirements applied to
causes of action arising after July 7, 2004.




                                         11                                 A-5023-12T1
at    52,    or    the    standard      set       by     N.J.R.E.    702.      Nicholas      v.

Mynster, 213 N.J. 463, 468, 478-79 (2013).

                                                  A.

       We first consider the qualification requirements for expert

testimony against Dr. Pitta.                  Plaintiff argues that the PFA does

not define "specialized" and does not require experts to be

credentialed by a hospital, engaged in active clinical practice

or involved in the instruction of students to testify against

specialists, such as Dr. Pitta, who are not board certified.

Therefore, he contends Dr. Morse satisfies the requirements of

the PFA.      This argument lacks merit.

       The     PFA       explicitly         refers       to    specialties      and      board

certifications           "recognized        by     the    American     Board   of     Medical

Specialties        [(ABMS)]       or   the       American      Osteopathic     Association

[(AOA)]."         N.J.S.A. 2A:53A-41(a).                 When the physician defendant

is a specialist, but is not board certified in the specialty, a

proposed expert must be licensed as a physician in the United

States and "shall have specialized at the time of the occurrence

that is the basis for the action in the same specialty . . . as

the   party       against    whom      or    on    whose      behalf   the   testimony       is

offered."         Ibid. (emphasis added).                     In Nicholas, the Supreme

Court described this requirement as follows: "When a physician

is    a     specialist      and     the      basis       of    the   malpractice       action




                                                  12                                  A-5023-12T1
'involves'     the     physician's       specialty,      the      challenging      expert

must practice in the same specialty."                  Nicholas, supra, 213 N.J.

at   481-82    (emphasis        added).       Based     upon      both    the    commonly

understood     meaning     of    the   term     "specialize"        and    the    Supreme

Court's description of the statutory requirement, it is clear

that "specialize" as used in N.J.S.A. 2A:53A-41 means "practice

in a specialty" recognized by the ABMS or AOA.

      Further, we agree with the motion judge that the statute

requires    "contemporaneity,"           meaning      the    proposed      expert      must

actively practice in the specialty at the time of the alleged

deviation      to      satisfy     the     qualification            requirements        of

subsection      (a).       In     Ryan,    the     Court       explained        what   the

requirements        were   for    application      of       the   waiver    provision,

N.J.S.A. 2A:53-41(c),10 and noted that the waiver provision did

not contain the "strict time limit[]" element common to all the

10
    N.J.S.A. 2A:53A-41(c) permits a court to waive the                                 same
specialty or subspecialty requirement upon motion

              if, after the moving party has demonstrated
              to the satisfaction of the court that a good
              faith effort has been made to identify an
              expert    in    the   same    specialty    or
              subspecialty, the court determines that the
              expert    possesses   sufficient    training,
              experience and knowledge to provide the
              testimony as a result of active involvement
              in, or full-time teaching of, medicine in
              the applicable area of practice or a related
              field of medicine.




                                           13                                    A-5023-12T1
sections   of   the   PFA   that    define   qualification     requirements.

Ryan, supra, 203 N.J. at 57.

           For example, where the defendant is a
           specialist or subspecialist, the person
           providing the testimony against him "shall
           have   specialized   at   the   time   of   the
           occurrence that is the basis for the action
           in the same specialty or subspecialty[.]"
           N.J.S.A.   2A:53A-41(a)    (emphasis    added).
           Further,   where   the   defendant   is   board
           certified, the witness against him must also
           be board certified in the same specialty or
           subspecialty     and    "during    the     year
           immediately   preceding   the   date   of   the
           occurrence that is the basis for the claim
           or action, shall have devoted a majority of
           his professional time to" active clinical
           practice or teaching of the specialty or
           subspecialty.     N.J.S.A.     2A:53A-41(a)(2)
           (emphasis   added).    Likewise,   where    the
           defendant is a general practitioner, the
           expert witness, "during the year immediately
           preceding the date of the occurrence that is
           the basis for the claim or action, shall
           have devoted a majority of his professional
           time to" teaching or to active clinical
           practice as a general practitioner or in a
           practice   that    encompasses   the    medical
           condition or includes performance of the
           procedure at issue.     N.J.S.A. 2A:53A-41(b)
           (emphasis added).

           [Id. at 57-58.]

      To satisfy the "strict time limit" requirement applicable

for   testimony   against    Dr.    Pitta,   a   proposed     expert   had    to

practice in the specialty of ophthalmology at the time of the

alleged    deviation.       Dr.    Morse   was   vague   as   to   when    such

deviation occurred, stating plaintiff's vision loss was caused




                                      14                               A-5023-12T1
by Dr. Pitta's "inadequate and dilatory treatment," but conceded

that plaintiff's vision remained salvageable as late as November

2009.        Even if plaintiff is afforded all favorable inferences,

the alleged delay in treatment could occur no earlier than Dr.

Pitta's first appointment with plaintiff in October 2007.                        It is

undisputed       that   Dr.   Morse   was    no    longer    practicing     in     the

specialty of ophthalmology at that time.                  Therefore, he did not

meet    the     qualification    requirements        to     testify   as    to     the

standard of care applicable to Dr. Pitta.

                                       B.

       Under the PFA, additional qualification requirements apply

if     the    defendant   physician,        like   Dr.      Panariello     and     Dr.

Cervenak, is board certified.

               [I]f the person against whom or on whose
               behalf the testimony is being offered is
               board certified and the care or treatment at
               issue involves that board specialty or
               subspecialty . . . the expert witness shall
               be:

               (1) a physician credentialed by a hospital
               to treat patients for the medical condition,
               or to perform the procedure, that is the
               basis for the claim or action; or

               (2) a specialist or subspecialist . . . who
               is board certified in the same specialty or
               subspecialty . . . and during the year
               immediately   preceding  the   date of  the
               occurrence that is the basis for the claim
               or action, shall have devoted a majority of
               his professional time to either:




                                       15                                  A-5023-12T1
                  (a) the active clinical practice of the
                  same health care profession in which
                  the defendant is licensed, and, if the
                  defendant    is    a   specialist    or
                  subspecialist . . . the active clinical
                  practice    of   that    specialty   or
                  subspecialty . . . or

                  (b) the instruction of students in an
                  accredited   medical    school,    other
                  accredited health professional school
                  or accredited residency or clinical
                  research program in the same health
                  care profession in which the defendant
                  is licensed, and, if that party is a
                  specialist or subspecialist . . . an
                  accredited   medical   school,    health
                  professional   school   or    accredited
                  residency or clinical research program
                  in the same specialty or subspecialty .
                  . . or

                  (c) both.

            [N.J.S.A. 2A:53A-41(a) (emphasis added).]

       Plaintiff acknowledges that Dr. Morse would not satisfy the

PFA's   additional     requirements    for   testifying   against   a   board

certified specialist, such as Dr. Panariello and Dr. Cervenak.

However, he contends these defendants should have been estopped

from    raising      their    specialty      to   challenge   Dr.   Morse's

qualifications because they failed to list their specialty in

their answers.       Again, we disagree.

       Plaintiff's estoppel argument was raised for the first time

in     plaintiff's     motion    for      reconsideration.      This      was

inappropriate.       To properly contest the motions on this ground,




                                       16                           A-5023-12T1
plaintiff was required to present his argument in his written

opposition to the motions.                Pressler & Verniero, supra, comment

2   on       R.    1:6-2    ("[R]esponsive          papers   must   not    only      object

generally to the relief sought but must state with particularity

the basis, whether legal, factual or both, of such opposition.")

         Reconsideration is to be utilized only in those cases "in

which either 1) the [c]ourt has expressed its decision based

upon     a    palpably      incorrect     or   irrational      basis,     or   2)     it   is

obvious that the [c]ourt either did not consider, or failed to

appreciate the significance of probative, competent evidence."

D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

In short, a motion for reconsideration provides the court, and

not the litigant, with an opportunity to take a second bite at

the apple to correct errors inherent in a prior ruling.                              Filing

a motion for reconsideration does not provide the litigant with

an opportunity to raise new legal issues that were not presented

to the court in the underlying motion.                       See Cummings v. Bahr,

295    N.J.        Super.    374,   384    (App.      Div.   1996).        Despite         the

procedural infirmity, we consider plaintiff's estoppel argument

and find it inapplicable to the facts in this case.

         Just as "it is the duty of litigants to make a good faith

effort        to     obtain    an    equivalently-qualified             expert        in     a

malpractice case," Ryan, supra, 203 N.J. at 56, a defendant




                                               17                                   A-5023-12T1
physician must comply with the requirement established in Buck,

supra, 207 N.J. at 396, to alert the plaintiff to the higher

standard     to        be     met    by        identifying           their     specialty,        if

applicable,       in    the    answer.              R.    4:5-3.11      We    note      that   Buck

concerned     the      sufficiency             of    an    affiant's        qualifications        to

author an AOM and that the remedy ordered by the court, albeit

before R. 4:5-3 was amended, was to reverse the dismissal of the

plaintiff's complaint and remand with instructions to provide

the    plaintiff        with    additional               time   to    obtain       an   AOM    that

complied with the statute's requirements.                             Buck, supra, 207 N.J.

at    395.    The       Court       did    not       instruct        what    remedy     would     be

appropriate in cases thereafter in which a physician defendant

failed to provide the necessary information regarding specialty

in his or her answer.                 Although it is unlikely that such an

omission     could      warrant       scuttling           the   Legislature's           scheme   of

enhanced qualification requirements for a testifying expert, we

conclude it is unnecessary in this case to consider what remedy

is appropriate.

       This is not a case in which the deficiency in Dr. Morse's

qualifications          relates           to        one    of    the        more     specialized

requirements applicable to a board certified specialist.                                         The

11
     The rule was amended, effective September 1, 2012, in
response to the court's direction in Buck, supra, 207 N.J. at
396.



                                                    18                                    A-5023-12T1
deficiency lies in the fact he was retired and not practicing at

the time of the alleged deviations in care by Dr. Panariello and

Dr. Cervenak.

       As we have noted, the PFA imposes "strict time limits" tied

to    the   date   of    the     occurrence         that      is       the    basis        for   the

malpractice action for each of the categories of physicians.

See Ryan, supra, 203 N.J. at 57.                     In the case of a specialist

who is not board certified, the expert must "have specialized at

the   time   of    the   occurrence     .       .    .     in   the      same           specialty."

N.J.S.A.     2A:53A-41(a)        (emphasis          added).             If        the    defendant

physician    is    board    certified,      the          statute        requires          that   the

proposed     expert      "shall     have        devoted            a    majority           of    his

professional time to . . . active clinical practice" or teaching

of the specialty or subspecialty "during the year immediately

preceding the date of the occurrence."                        N.J.S.A. 2A:53A-41(a)(2)

(emphasis added).          The strict time limit applicable to general

practitioners similarly requires that the proposed expert "shall

have devoted a majority of his professional time to" teaching or

to    "active      clinical      practice       as        a     general            practitioner"

performing the relevant procedure "during the year immediately

preceding the date of the occurrence."                             N.J.S.A. 2A:53A-41(b)

(emphasis    added).        No    matter    what         category            of    physician      is

applied, Dr. Morse's qualifications come up short.                                      Therefore,




                                           19                                              A-5023-12T1
he    was    not     statutorily          authorized        to     testify         against   Dr.

Panariello and Dr. Cervenak.

                                             III.

      Plaintiff          also   argues     that      the    doctrines         of    substantial

compliance         and    extraordinary          circumstances           should      apply    to

reverse      the    dismissal       with    prejudice.             Plaintiff        raised   the

issues of substantial compliance and extraordinary circumstances

for    the       first     time     in     his       motion       for    reconsideration. 12

Nonetheless, we address plaintiff's contention to clarify that

the    doctrines         of     substantial          compliance         and    extraordinary

circumstances do not apply when the qualifications of a witness

to "give expert testimony" are measured under the PFA.

      The        enhanced       qualification           requirements           of     the    PFA

explicitly apply to both the affiant for an AOM and the expert

witness      a   plaintiff        seeks    to    rely      upon    at   trial.         N.J.S.A.

2A:53A-41 ("In an action alleging medical malpractice, a person

shall not give expert testimony or execute an affidavit pursuant

to the [AOM statute] on the appropriate standard of practice or

care unless" the enumerated criteria are satisfied).                                   However,


12
   Plaintiff contended that he intended to raise these issues at
oral argument on the summary judgment motions.         Like his
estoppel argument, these issues were not properly presented to
the motion judge. Pressler & Verniero, supra, comment 2 on R.
1:6-2.




                                                20                                     A-5023-12T1
the analysis required to determine the appropriate disposition

when the sufficiency of a proposed expert's qualifications is

challenged differs sharply depending upon whether the issue is

raised within a challenge to the sufficiency of the AOM or in a

summary judgment motion.

      "The   core    purpose   underlying     the   [AOM]     statute     is   to

require plaintiffs . . . to make a threshold showing that their

claim is meritorious, in order that meritless lawsuits readily

could be identified at an early stage of litigation."                      Ryan,

supra, 203 N.J. at 51 (citation and internal quotation marks

omitted).     A "plaintiff's failure to serve the affidavit within

120 days of the filing of the answer is considered tantamount to

the failure to state a cause of action, subjecting the complaint

to dismissal with prejudice."            Ferreira v. Rancocas Orthopedic

Assocs., 178 N.J. 144, 150 (2003) (citing N.J.S.A. 2A:53A-29;

Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001); Alan J.

Cornblatt,    P.A.   v.   Barow,   153    N.J.   218,   247   (1998)).         The

exceptions     of    extraordinary       circumstances      and   substantial

compliance13 are intended to "temper the draconian results of an


13
     To seek relief under the doctrine of substantial compliance,

             a plaintiff must show: a series of steps
             were taken to comply with the statute;
             general compliance with the purpose of the
             statute; the defendant had reasonable notice
                                                        (continued)


                                     21                                 A-5023-12T1
inflexible application of the statute" that would extinguish a

meritorious      claim   in    its       infancy.       Id.   at   151.       Even    so,

"carelessness, lack of circumspection, or lack of diligence on

the part of counsel are not extraordinary circumstances which

will excuse missing a filing deadline."                       Palanque, supra, 168

N.J. at 404-05 (quoting Burns v. Belafsky, 326 N.J. Super. 462,

470 (App. Div. 1999), aff’d, 166 N.J. 466 (2001)).

    The AOM must be served "[i]n the early stages of a medical

malpractice      action,"     and    a    Ferreira      conference,      held   "within

ninety    days   of   the     service      of    an   answer,"     was   "intended     to

resolve    questions     concerning         the       propriety    of    an   affidavit

before the end of the statutory time limit . . . ."                                Buck,

supra, 207 N.J. at 382-83 (citing Ferreira, supra, 178 N.J. at

154-55).     If an AOM was deemed to be deficient, the plaintiff

would "have to the end of the 120-day time period to conform the



(continued)
          of the plaintiff's claim; a reasonable
          explanation   for  plaintiff's failure  to
          strictly comply with the statute; and lack
          of prejudice to the defendant.

            [Stoecker v. Echevarria, 408 N.J. Super.
            597, 612 (App. Div.) (citing Ferreira,
            supra, 178 N.J. at 151), certif. denied, 200
            N.J. 549 (2009).]

See also Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353
(2001).




                                            22                                  A-5023-12T1
affidavit to the statutory requirements."                            Ferreira, supra, 178

N.J.   at    155.     Although       the    goal       is      to   safeguard     "otherwise

worthy      causes    of    action     .         .    .     [from      being]     needlessly

dismissed,"     Buck,      supra,     207    N.J.         at    383     (citing    Ferreira,

supra, 178 N.J. at 154-55), it is understood that under the AOM

statute, "the failure to file an appropriate affidavit within

the    statutory     time   limits         may       result     in    dismissal     of   even

meritorious cases."            Id. at 382 (citing Ferreira, supra, 178

N.J. at 154).

       When the challenge targets the qualifications of a witness

to    testify   regarding      the    standard            of    care,    the    analysis   is

governed by the summary judgment rule, R. 4:46-2.                               Like the AOM

statute,     the     summary     judgment            rule      serves     "two     competing

jurisprudential philosophies."                   Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 541 (1995).                     While "every litigant who has

a bona fide cause of action or defense [should be afforded] the

opportunity to fully expose his case," it is equally important

to provide protection "against groundless claims and frivolous

defenses, not only to save antagonists the expense of protracted

litigation but also to reserve judicial manpower and facilities

to cases which meritoriously command attention."                               Id. at 541-42

(citation and internal quotation marks omitted); cf. Ferreira,

supra, 178 N.J. at 150 (stating "the dual purpose" of the AOM




                                            23                                      A-5023-12T1
statute     is    "to       weed       out    frivolous        lawsuits    early      in    the

litigation while, at the same time, ensuring that plaintiffs

with meritorious claims will have their day in court" (citation

and   internal        quotation        marks    omitted)).         However,      there      are

fundamental differences between the "weeding" performed under

the AOM statute and that accomplished through summary judgment

practice.

      The   AOM       statute's         procedural      requirements       apply      in    the

earliest    stage       of     the      litigation,      when     discovery      is    almost

certainly incomplete, and a dismissal for non-compliance may be

warranted    even       if     a   claim      has    merit.       In   summary      judgment

motions, the determination as to whether a bona fide cause of

action exists is made after the parties have had an opportunity

to develop the evidence they will rely upon at trial.                              See James

v. Bessemer Processing Co., 155 N.J. 279, 310-11 (1998) (holding

summary     judgment         was       premature       because     plaintiff       had      not

"engaged     in       extensive          discovery");          Velantzas    v.      Colgate-

Palmolive Co., 109 N.J. 189, 193 (1988) (finding it "especially

inappropriate"         to    grant       summary       judgment     when    discovery        is

incomplete).          The court reviews a record that includes "the

pleadings,        depositions,               answers      to      interrogatories           and

admissions on file, together with the affidavits, if any," R.

4:46-2(c),       to     make       a    determination      whether        the    claim      has




                                                24                                    A-5023-12T1
substantive merit.          The motion judge must "consider whether the

competent      evidential    materials        presented,     when    viewed     in    the

light most favorable to the non-moving party in consideration of

the applicable evidentiary standard, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party."                 Brill, supra, 142 N.J. at 523.

Because summary judgment is denied if the evidence meets this

standard, it is intended that meritorious claims will not be

dismissed.      See id. at 540-42.

       The summary judgment motions here were filed well after the

exchange of interrogatories and expert reports and the deadline

set    in   the     case    management        order    for    the     production       of

plaintiff's expert reports.              The motions followed the deposition

of    plaintiff's    sole    expert      as     to   the   standard      of   care    and

alleged     deviations      in   care.        There   was    no   motion      filed    by

plaintiff to extend discovery or to seek an alternative expert.

It    cannot   be   disputed     that    the     record     was   ripe   for   summary

judgment.

       Similarly, there is no question that expert testimony was

required for plaintiff's claims to succeed.                         "To establish a

prima facie case of negligence in a medical-malpractice action,

a plaintiff must present expert testimony establishing (1) the

applicable standard of care; (2) a deviation from that standard




                                           25                                  A-5023-12T1
of   care;    and    (3)       that   the   deviation        proximately    caused      the

injury."     Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (citations

omitted); accord Nicholas, supra, 213 N.J. at 478.

             It is generally recognized that in the
             ordinary   medical   malpractice    case   the
             standard   of   practice    to   which    [the
             defendant-practitioner]   failed   to   adhere
             must be established by expert testimony, and
             that a jury generally lacks the requisite
             special knowledge, technical training and
             background to be able to determine the
             applicable standard of care without the
             assistance of an expert.

             [Rosenberg v. Cahill,                  99 N.J.         318, 325
             (1985) (citation and                   internal        quotation
             marks omitted).]

       The need for expert testimony regarding deviation from the

appropriate standard is not limited to medical malpractice, but

applies "in nearly all malpractice cases."                           Garcia v. Kozlov,

Seaton,     Romanini       &    Brooks,     P.C.,      179   N.J.    343,   362   (2004);

accord Brach, Eichler, P.C. v. Ezekwo, 345 N.J. Super. 1, 12

(App. Div. 2001).              Moreover, "[a] party cannot defeat a motion

for summary judgment merely by submitting an expert's report in

his or her favor.               In order for such a report to have any

bearing     on     the   appropriateness          of   summary      judgment,     it   must

create a genuine issue of material fact."                            Brill, supra, 142

N.J.   at    544    (citation         omitted)    (declaring        an   expert   opinion

"based on erroneous or nonexistent facts is worthless"); see,

e.g., Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002) ("The



                                             26                                   A-5023-12T1
very   object       of   the   summary      judgment     procedure         .   .   .     is    to

separate real issues from issues about which there is no serious

dispute.          Sham   facts   should       not   subject     a    defendant          to    the

burden of a trial."); Kaplan v. Skoloff & Wolfe, P.C., 339 N.J.

Super.      97,    104   (App.    Div.      2001)     (finding       summary       judgment

appropriate where net opinion by expert failed to establish a

standard by which to judge the defendant's conduct).

       Without      testimony    from     a    statutorily          authorized         expert,

plaintiff       cannot    establish      the       applicable       standard       of     care.

Therefore, summary judgment was appropriate.                             Nicholas, supra,

213 N.J. at 468.

       The doctrine of substantial compliance may be invoked when

dismissal is sought based upon deficiencies in an AOM "so that

technical defects will not defeat a valid claim."                                  Ferreira,

supra, 178 N.J. at 151 (emphasis added).                       It is not intended to

shield      a   plaintiff      from   the      dismissal       of    a    claim     that       is

substantively        defective.          Moreover,       the    application            of     the

doctrine to summary judgment motions would materially erode the

jurisprudence that has developed since Brill and eviscerate the

remedial purpose of the PFA to establish enhanced qualification

requirements for expert witnesses as part of "a comprehensive

set    of   reforms      affecting    the      State's    tort       liability         system,




                                              27                                       A-5023-12T1
health care system and medical malpractice liability insurance

carriers," N.J.S.A. 2A:53A-38(f).

    Similarly,     the       analysis    required          for    a    summary      judgment

motion   does     not        allow      for     a     claim           of     extraordinary

circumstances.     When a party concludes circumstances exist that

would warrant relief, the appropriate course of action is to

pursue remedies such as those afforded by Rules 4:17-7 and 4:24-

1(c).

    Because      the     doctrines       of     substantial                compliance     and

extraordinary circumstances would subvert rather than promote

the remedial purpose of the PFA, we conclude these doctrines are

inapplicable    when     summary     judgment         is     sought         based    upon    a

failure to meet the PFA's enhanced qualification requirements

for testifying experts.

                                         IV.

    After reviewing plaintiff's remaining arguments in light of

the record and applicable legal principles, we conclude that the

arguments     raised    in    Points     I,     V,    VI,        VII       and   VIII   lack

sufficient    merit    to    warrant     more       than    the       following     limited

discussion.     R. 2:11-3(e)(1)(E).

    In Point I, plaintiff cites the requirements of the AOM

statute that an expert be either board certified in the general

area or specialty or have five years' clinical practice in the




                                          28                                        A-5023-12T1
general     area     of      specialty.           He     argues   that        Dr.    Morse     is

qualified to testify pursuant to these requirements because he

is     "currently       a     Board        Certified       Ophthalmologist           and     had

practiced     as    a     Board     Certified        Ophthalmologist          from    1971    to

2007."      In Ryan, supra, 203 N.J. at 52, the Court observed that

the original requirements for the affiant of an AOM set forth in

the AOM statute were modified by the PFA, which "provide[d] more

detailed     standards        for      a   testifying      expert       and    for    one     who

executes      an     affidavit          of      merit,     generally         requiring       the

challenging         expert        to       be    equivalently-qualified               to      the

defendant."        Therefore, plaintiff's effort to cast Dr. Morse as

a     qualified     expert        because       he     meets   the      more      generalized

requirements of the AOM statute is unavailing.

       In   Point       V,    plaintiff          argues     that,       as    a     result    of

defendants'        failure     to      object     to     Dr.   Morse's        qualifications

until February 2013, the proper remedy was to permit him to cure

any     deficiencies         rather        than      dismiss      the        complaint       with

prejudice.         The notion that defendants' objection was untimely

lacks factual support.                 It was not until Dr. Morse's deposition

in January 2013 that defendants first learned Dr. Morse had

"fully retired" in January 2007, before the alleged malpractice,

and did not have any hospital privileges thereafter.                                Defendants

acted promptly after receiving this information.




                                                29                                    A-5023-12T1
      Plaintiff    argues    in   Point   VI    that,    as    a    result    of

defendants' "misfeasance," he was deprived of his right to oral

argument on the summary judgment motions and later held to a

higher standard applicable to his motion for reconsideration.

Plaintiff's counsel, who did not appear for oral argument of the

summary judgment motions, certified he was never informed of the

date and time for oral arguments.         He contends he was denied his

right to oral argument as a result.            However, counsel relocated

his office on March 2, 2013, and did not inform any of the

defendants of his new contact information.              Moreover, plaintiff

was given a full opportunity to present his arguments at the

motion for reconsideration.       We find no error on this record.

      Plaintiff also argues the AOM statute and the PFA violate

the New Jersey Constitution (Point VII) and that the statutes

are   invalid     because   the   Legislature     failed      to   follow    the

procedure for the adoption of rules of evidence set forth in

N.J.S.A. 2A:84A-33 to -44 (Point VIII).              These arguments are

raised for the first time on appeal and do not fall within the

exceptions that would warrant our consideration.                   See US Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449, 483 (2012).                  Moreover,

both statutes have withstood prior constitutional challenges.

See Ferreira, supra, 178 N.J. at 149 n.1 (citing Cornblatt,

supra, 153 N.J. at 248 (noting "[i]n the more than half-dozen




                                     30                                A-5023-12T1
cases in which this Court has grappled with the Affidavit of

Merit statute since Cornblatt, no one has questioned, and this

Court has never revisited, the statute's constitutionality"));

N.J. State Bar Ass'n v. State, 387 N.J. Super. 24 (App. Div.)

(rejecting   challenges   to   the   constitutionality   of   the   PFA),

certif. denied, 188 N.J. 491 (2006).

    Affirmed.




                                     31                         A-5023-12T1
