                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2000

Chamberlain v Giampapa
Precedential or Non-Precedential:

Docket 99-5069




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Filed March 28, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5069

ROBIN CHAMBERLAIN,
       Appellant

v.

VINCENT C. GIAMPAPA, M.D., individually and dba
PLASTIC SURGERY CENTER INTERNATIONALE

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 98-cv-01048)
District Judge: Honorable Maryanne Trump Barry

Argued: November 16, 1999

BEFORE: ALITO and STAPLETON, Circuit Judges, and
FEIKENS,* District Judge

(Filed: March 28, 2000)



_________________________________________________________________
*Honorable John Feikens, Senior United States District Judge for the
Eastern District of Michigan, sitting by designation.


       Howard B. Felcher (Argued)
       20 Northfield Avenue
       West Orange, NJ 07052
        Attorney for Appellant

       Stephen O. Mortenson (Argued)
       Mortenson & Pomeroy
       155 Morris Avenue
       Springfield, NJ 07081
        Attorney for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Robin Chamberlain appeals from the dismissal of her
medical malpractice complaint filed in the United States
District Court of New Jersey. Count I of the complaint
alleged negligent medical treatment and care by the
defendant physician, and Count II alleged a failure to
properly advise and inform the plaintiff of the nature and
extent of a surgical procedure the defendant performed on
her. Jurisdiction was based on the diversity of the
citizenship of the parties. The District Court dismissed both
counts of Chamberlain's complaint with prejudice for failure
to file a timely affidavit of merit pursuant to N.J. Stat. Ann.
SS 2A:53A-26 to -29 (West 1987) ("the New Jersey affidavit
of merit statute").1
_________________________________________________________________

1. Section 2A:53A-27 provides:

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

                                 2


Chamberlain also appeals the denial of her cross-motion
for (1) a sixty-day extension in which to file the affidavit of
merit; or (2) an order allowing the affidavit of merit to be
filed nunc pro tunc; or (3) permission to amend the
complaint and attach the affidavit of merit; and/or (4) an
order striking defendant's answer as untimely and granting
plaintiff a default judgment.

We address five distinct issues in the disposition of this
appeal:

         1) Whether the New Jersey affidavit of merit statute
         can properly be applied by a federal court sitting in
         diversity;

         2) Whether the New Jersey affidavit of merit statute
         applies to a claim based on the absence of informed
         consent;

         3) If the New Jersey statute does apply in diversity
       actions, whether Chamberlain's complaint was properly
       dismissed with prejudice for failure tofile an affidavit of
       merit;

       4) Whether the District Court erred in dismissing the
       entire complaint, when one or more of the alleged acts
       of negligence may have occurred before the effective
       date of the New Jersey affidavit of merit statute;

       5) Whether the District Court abused its discretion in
       denying Chamberlain's motion for default judgment.

We hold that the New Jersey affidavit of merit statute
does not conflict with the Federal Rules of Civil Procedure
and must be applied by federal courts sitting in diversity;
the District Court did not plainly err in applying the
affidavit of merit statute to the lack of informed consent
cause of action; there are no extraordinary circumstances
that would warrant dismissal without prejudice; and the
denial of a default judgment was not an abuse of discretion.
However, we further conclude that the District Court erred
in dismissing the plaintiff's case when the record indicates
that one or more of the alleged negligent acts occurred
before the effective date of the affidavit of merit statute.
Accordingly, we will reverse the judgment of the District

                               3


Court and remand for further proceedings consistent with
the opinion.

I.

The New Jersey affidavit of merit statute applies to
medical malpractice causes of action that "occur" on or
after June 29, 1995, the effective date of the statute.2 It
requires that the plaintiff file an affidavit of a licensed
physician within 60 days of the date the answer isfiled or
face dismissal of the complaint. In the affidavit, the
physician must state that a "reasonable probability" exists
that the care that is the subject of the complaint falls
outside acceptable professional standards. N.J. Stat. Ann.
S 2A:53A-27. In lieu of an affidavit, the plaintiff may provide
a sworn statement that, after written request, the defendant
failed to provide the plaintiff with records that have a
substantial bearing on preparation of the affidavit.3 N.J.
Stat. Ann. S 2A:53A-28. Failure to provide either the
affidavit or the sworn statement within 60 days, or 120
days if the court grants an extension for good cause, results
in dismissal for "failure to state a cause of action."4 N.J.
Stat. Ann. S 2A:53A-29.
_________________________________________________________________
2. "This act shall take effect immediately[June 29, 1995] and shall apply
to causes of action which occur on or after the effective date of this
act."
Affidavit of Merit Bill, Act of June 29, 1995, ch. 139, S 5, 1995 N.J.
Laws

457.

3. "An affidavit shall not be required pursuant to [N.J. Stat. Ann.
S 2A:53A-27] if the plaintiff provides a sworn statement in lieu of the
affidavit setting forth that: the defendant has failed to provide
plaintiff

with medical records or other records or information having a
substantial bearing on preparation of the affidavit; a written request
therefor along with, if necessary, a signed authorization by the plaintiff
for release of the medical records or other records or information
requested, has been made by certified mail or personal service; and at
least 45 days have elapsed since the defendant received the request."
N.J. Stat. Ann. S 2A:53A-28.

4. "If the plaintiff fails to provide an affidavit or a statement in lieu
thereof, pursuant to [N.J. Stat. Ann. S 2A:53A-27 or S 2A:53A-28], it
shall

be deemed a failure to state a cause of action." N.J. Stat. Ann. S 2A:53A-
29.

                               4


In January of 1994, Dr. Vincent C. Giampapa performed
plastic surgery on the plaintiff's nose. Thereafter, he
injected cortisone in her nose on several occasions. On
August 20, 1995, the plaintiff visited Dr. Giampapa for a
checkup and, at his suggestion, she allowed him to perform
a second plastic surgery, which she expected to be minor.
The plaintiff claims Dr. Giampapa instead performed
extensive surgery without properly advising her about, and
obtaining consent for, the procedure. The plaintiff
experienced problems after the August 20 surgery, and, as
a result, Dr. Giampapa performed additional plastic surgery
on March 20, 1996. When the plaintiff continued to
experience problems, she sought medical care and
treatment from another plastic surgeon and underwent
extensive reconstructive surgery.

The plaintiff sued Dr. Giampapa on March 10, 1998,
alleging negligence with respect to her medical care and
treatment. The defendant's answer, filed on May 8th,
responded to the complaint in full but did not include a
demand for an affidavit of merit from the plaintiff.

The Magistrate Judge issued a Pre-Trial Scheduling
Order on June 10th and the defendant provided the
plaintiff with her medical records on June 17th, three
weeks before the deadline for filing an affidavit of merit. The
plaintiff did not file an affidavit of merit within 60 days of
the answer being filed and did not request an extension
before the 60-day statutory period expired. The plaintiff
made no attempt to file the affidavit or request an extension
until the defendant filed his motion to dismiss in November
1998.

The scheduling order did not mention the affidavit
requirement and, according to the parties, no discussion of
the affidavit of merit took place at the June 10 scheduling
conference. Nevertheless, as part of the scheduling order,
the plaintiff was directed to serve an expert report on the
defendant no later than September 30, 1998, which she
did. In the report, the expert stated his opinion that the
treatment by the defendant deviated significantly from the
accepted standards of medical care and that the plaintiff
suffered permanent nasal deformity and associated
breathing difficulties as a result.

                               5


The defendant thereafter filed a motion to dismiss based
on the plaintiff's failure to file an affidavit of merit. On the
same day, the plaintiff filed her cross-motion. The District
Court denied the plaintiff's cross-motion in its entirety and
granted the defendant's motion to dismiss. Both counts of
the complaint were dismissed with prejudice. The plaintiff
appeals both the dismissal of her complaint and the denial
of her cross-motion.

II.

A. The Choice Of Law Issue

A federal court sitting in diversity must apply state
substantive law and federal procedural law. See Erie
R.R. v. Tompkins, 304 U.S. 64, 78 (1938). This
substantive/procedural dichotomy of the "Erie rule" must
be applied with the objective that "in all cases where a
federal court is exercising jurisdiction solely because of the
diversity of citizenship of the parties, the outcome of the
litigation in the federal court [will] be substantially the
same, so far as legal rules determine the outcome of a
litigation, as it would be if tried in a State court." Guaranty
Trust Co. v. York, 326 U.S. 99, 109 (1945). This focus on
whether application of a state rule will or may affect the
outcome is intended to serve "twin aims":"discouragement
of forum shopping and avoidance of inequitable
administration of the laws." Hanna v. Plummer , 380 U.S.
460, 468 (1965). Accordingly, the outcome determinative
test should not produce a decision favoring application of
the state rule unless one of these aims will be furthered:

       Erie and its progeny make clear that when a federal
       court sitting in a diversity case is faced with a question
       of whether or not to apply state law, the importance of
       a state rule is indeed relevant, but only in the context
       of asking whether application of the rule would make
       so important a difference to the character or result of
       the litigation that failure to enforce it would unfairly
       discriminate against citizens of the forum State, or
       whether application of the rule would have so
       important an effect upon the fortunes of one or both of

                                6


       the litigants that failure to enforce it would be likely to
       cause a plaintiff to choose the federal court.

Hanna, 380 U.S. at 468 n. 9.

The Supreme Court has added two caveats to these Erie
principles. First, even though application of the state rule
may hold some potential for affecting the outcome, a strong
countervailing federal interest will dictate recourse to the
federal rule. Byrd v. Blue Ridge Rural Electric Coop, Inc.,
356 U.S. 525 (1958). Second, the Erie rule may not be
"invoked to void a Federal Rule" of Civil Procedure. Hanna
v. Plummer, 380 U.S. 460, 470 (1965). Where a Federal
Rule of Civil Procedure provides a resolution of an issue,
that rule must be applied by a federal court sitting in
diversity to the exclusion of a conflicting state rule so long
as the federal rule is authorized by the Rules Enabling Act
and consistent with the Constitution. Id.

Under Hanna, a federal court sitting in diversity first
must determine whether a Federal Rule directly "collides"
with the state law it is being urged to apply. See id. at 470-
74. If there is such a direct conflict, the Federal Rule must
be applied if it is constitutional and within the scope of the
Rules Enabling Act. See Gasperini v. Center for Humanities,
Inc., 518 U.S. 415, 427 n. 7 (1996). If a "direct collision"
does not exist, then the court applies the Erie rule to
determine if state law should be applied. Hanna , 380 U.S.
at 470.

In deciding whether a Federal Rule "directly collides" with
a state law, the federal court sitting in diversity must
consider whether the scope of the Federal Rule is
"sufficiently broad to control the issue before the Court,"
Walker v. Armco Steel Corp., 446 U.S. 740, 749-50 (1980),
"thereby leaving no room for the operation of[the state]
law," Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 4-
5 (1987). Although the Rules should be given their plain
meaning and are not to be construed narrowly in order to
avoid a direct collision, see Walker, 446 U.S. at 750 n. 9,
"a broad reading that would create significant disuniformity
between state and federal courts should be avoided if the
text permits." Stewart Org., Inc. v. Ricoh, 487 U.S. 22, 37-
38 (1988). "Federal courts have interpreted the Federal

                               7


Rules, however, with sensitivity to important state interests
and regulatory policies." Gasperini, 518 U.S. at 427 n.7.

In the case at hand, the plaintiff argues the New Jersey
affidavit of merit statute conflicts with Federal Rules 8 and
9, which govern the content of pleadings in federal actions.
Rule 8 requires only "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R.
Civ. P. 8(a). The only situations that require pleading with
particularity are specified in Fed. R. Civ. P. 9, and a
malpractice claim is not one of the situations listed in that
rule. There is, of course, no contention that Federal Rules
8 and 9 are beyond the scope of the Rules Enabling Act or
inconsistent with the Constitution.

We find no direct conflict between the New Jersey
affidavit of merit statute and Federal Rules 8 and 9. Rules
8 and 9 dictate the content of the pleadings and the degree
of specificity that is required. The rules' overall purpose is
to provide notice of the claims and defenses of the parties.
The affidavit of merit statute has no effect on what is
included in the pleadings of a case or the specificity thereof.
The required affidavit is not a pleading, is notfiled until
after the pleadings are closed, and does not contain a
statement of the factual basis for the claim. Its purpose is
not to give notice of the plaintiff's claim, but rather to
assure that malpractice claims for which there is no expert
support will be terminated at an early stage in the
proceedings. This state policy can be effectuated without
compromising any of the policy choices reflected in Federal
Rules 8 and 9. In short, these Federal Rules and the New
Jersey Statute can exist side by side, "each controlling its
own intended sphere of coverage without conflict." Walker
v. Armco Steel Corp., 446 U.S. 740, 752 (1980). 5
_________________________________________________________________

5. Affidavit of merit (or similar) statutes have been applied by federal
courts in many states without finding a direct collision with Federal
Rules. See Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247
(W.D.N.Y. 1998) (holding that state statute requiring that complaint in
medical malpractice action be accompanied by certificate of merit is a
substantive law that applies in a federal diversity action); Connolly v.
Foudree, 141 F.R.D. 124 (S.D. Iowa 1992) (finding no direct conflict
between state statute requiring early disclosure of expert witnesses in

                                8


In reaching our conclusion that there is no direct
collision here, we are not unmindful of the stipulation in
the New Jersey statute that a failure to file the required
affidavit "shall be deemed a failure to state a cause of
action." N.J. Stat. Ann. 2A:53A-29. Contrary to the
plaintiff's suggestion, we do not read this stipulation as
implying that a failure to file the required affidavit somehow
renders pleadings insufficient that would otherwise be
sufficient. We read the "deeming" language to be no more
than the New Jersey legislature's way of saying that the
consequences of a failure to file shall be the same as those
of a failure to state a claim. See Cornblatt v. Barow, 708
A.2d 401, 415 (N.J. 1998) (interpreting "deeming" test to
mean that the failure to file must result in a dismissal with
prejudice unless extraordinary circumstances are shown).

Finding no direct collision, we proceed to the second part
of the Hanna analysis. Applying traditional Erie principles,
_________________________________________________________________

professional liability cases and FED. R. CIV. P. 26(b)(4)(A)(i),
concluding

the state statute went beyond the requirements of the Federal Rule, but
did not conflict with it); Hill v. Morrison, 870 F. Supp. 978 (W.D. Mo.
1994) (finding Missouri statute requiring plaintiff to file affidavit of
merit
within 90 days of filing complaint goes beyond requirements of FED. R.
CIV. P. 11 but does not conflict with the Federal Rule, and therefore both
state and federal rules may be given effect in federal court in diversity
action); Trierweiler v. Croxton and Trench Holding Corp., 90 F.3d 1523
(10th Cir. 1996) (finding no collision between Colorado statute requiring
plaintiff or attorney to file certificate within 60 days of filing
complaint
and FED. R. CIV. P. 11, noting similar intent of the state and federal
rules, but concluding the state rule is more narrowly tailored and
assesses penalties on plaintiff not attorney, so it can co-exist with Rule
11). But see, Boone v. Knight, 131 F.R.D. 609 (S.D. Ga. 1990) (finding a
conflict between Federal Rule 8 and a Georgia statute requiring the filing
of an affidavit with the complaint setting forth the facts upon which the
claim is based).

Similar statutes in other states have been routinely applied by federal
courts sitting in diversity without specifically going through the Hanna
analysis. See, e.g., Morlan v. Harrington, 658 F. Supp. 24 (D.N.D. 1986)
(applying North Dakota expert affidavit statute that requires expert
opinion within three months of filing medical malpractice action); Law v.
Greenwich Hosp., No. CIV. 396CV2147(AHN), 1997 U.S. Dist. WL 695506
(D. Conn. Oct. 21, 1997) (applying Connecticut statute requiring
certificate to be filed with complaint in medical malpractice actions).

                                9


we conclude that the New Jersey affidavit of merit statute
is substantive state law that must be applied by federal
courts sitting in diversity. The state statute is outcome
determinative on its face, and failure to apply it would
encourage forum shopping and lead to the inequitable
administration of the law. Further, we perceive no
overriding federal interest here that would prevent
application of the state law by the federal courts.

By requiring dismissal for failure to adhere to the statute,
the New Jersey legislature clearly intended to influence
substantive outcomes. It sought early dismissal of meritless
lawsuits, not merely to apply a new procedural rule.
Clearly, failure to apply the statute in a federal diversity
action where no affidavit of merit has been filed would
produce a different outcome than that mandated in a state
proceeding.

In addition to undercutting the state's interest in early
dismissal of meritless lawsuits, failure to apply the state
statute in federal courts could promote forum-shopping,
despite the relatively low hurdle the New Jersey affidavit
requirement presents to a legitimate claimant. Plaintiffs
who have been unable to secure expert support for their
claims and face dismissal under the statute in state court
may, by filing in the federal court, be able to survive beyond
the pleading stage and secure discovery. The resulting
opportunity for a "fishing expedition," which would hold the
hope of turning up evidence of a meritorious claim or of a
settlement to save defense litigation costs, can reasonably
be expected to affect the forum choice of these plaintiffs.

Failure to apply the New Jersey affidavit of merit statute
also implicates the second of the "twin aims" of Erie,
avoiding inequitable administration of the laws. A
defendant in a federal court that refused to apply the
affidavit requirement would be unfairly exposed to
additional litigation time and expense before the dismissal
of a non-meritorious lawsuit could be secured, merely
because the plaintiff is a citizen of a different state. Perhaps
more importantly, the reputation of the professional
involved would be more likely to suffer the longer the
lawsuit went on, putting added pressure on the defendant
to settle rather than endure extensive discovery.

                                10


Finally, we must also consider whether any
countervailing federal interests prevent the state law from
being applied in federal court. The only relevant federal
interest that has been suggested is an interest in
maintaining the integrity of the federal system of pleading
embodied in the Federal Rules of Civil Procedure. We have
previously concluded, however, that the New Jersey statute
can be applied without compromising the federal system of
pleading. Accordingly, we hold that the District Court did
not err in applying the New Jersey affidavit of merit statute.

B. The Informed Consent Issue

The plaintiff argues that, under New Jersey common law,
expert testimony is not required to establish a cause of
action based on lack of informed consent, and that, as a
result, the affidavit of merit statute should not apply to
Count II of her complaint. We disagree.

Under New Jersey's prudent patient standard, a
physician must disclose all information material to a
reasonably prudent patient's decision to undergo the
proposed treatment. See Largey v. Rothman, 540 A.2d 504
(N.J. 1988); Bennett v. Surgidev Corp., 710 A.2d 1023, 1026
(N.J. Super. Ct. App. Div. 1998). Accordingly, under this
"patient-focused" standard, an expert is not required to
establish a standard for disclosure or to prove that a
physician failed to meet the standard. See Tyndall v.
Zabonski, 703 A.2d 980, 982 (N.J. Super. Ct. App. Div.
1997). This does not mean, however, that a plaintiff with a
claim based on lack of informed consent can prevail under
New Jersey law without expert testimony. While expert
testimony is not required to establish the standard for
disclosure or to prove a physician failed to meet that
standard, it is still required to prove other elements of her
cause of action for lack of informed consent. See id. "A
plaintiff alleging lack of informed consent has the burden of
producing expert testimony to establish that the risk cited
was one that the defendant should have been aware of
because it was known to the medical community at the
time." Id. Thus, "proof of a risk recognized by the
professional community must come from a qualified
expert." Id.

                                11


Because a plaintiff cannot prevail on a lack of informed
consent claim under New Jersey law without expert
testimony that the relevant risk was recognized by the
professional community, we are confident that the New
Jersey courts would find the affidavit of merit statute
applicable to such claims.

C. The "Extraordinary Circumstances" Issue
In Cornblatt v. Barow, 708 A.2d 401, 413 (N.J. 1998), the
Supreme Court of New Jersey held that "a dismissal for
failure to comply with the [affidavit of merit] statute should
be with prejudice in all but extraordinary circumstances."
The District Court in this case acknowledged that it would
be appropriate to grant permission for the filing of the
required affidavit nunc pro tunc if extraordinary
circumstances were present, but found none. Accordingly,
it refused to give such permission and dismissed the case
with prejudice.

What constitutes an "extraordinary circumstance" is a
fact-sensitive analysis. See Hartsfield v. Fantini, 695 A.2d
259 (N.J. 1997). To find extraordinary circumstances, the
court must determine that those circumstances "did not
arise from an attorney's mere carelessness or lack of proper
diligence." Id. (internal quotes omitted). "Generally,
substantial compliance with the filing limitation and
allegations that defendants used negotiations to lull the
plaintiffs into missing the filing date will not constitute
extraordinary circumstances. . . ." Id. In short, the
circumstances must be "exceptional and compelling." Id. at
264.

We agree with the District Court that the circumstances
here fall short of "exceptional and compelling." As it noted,
the plaintiff has provided no adequate excuse for her failure
to comply with the statute, and the most reasonable
inference from the record is that plaintiff's counsel was
simply unaware of the affidavit of merit requirement.

The plaintiff complains that because the defendant did
not request the affidavit in his answer to her complaint and
the District Court did not require it in the pre-trial
scheduling order, she was "lulled" into believing an affidavit

                               12


of merit was not necessary. Neither the defendant nor the
Court had a duty to call the attention of plaintiff's counsel
to the requirements of the statute, however. If counsel had
been aware of the statute, it is difficult to believe that he
would have failed to comply in reliance on the answer and
the scheduling order, and any such reliance, in any event,
would have been unreasonable.6 The New Jersey statute
clearly sets out the filing requirements and makes no
provision for exemptions, except where the attorney applies
for an extension for good cause. The plaintiff herefiled no
motion for an extension and so had no statutory basis for
an exemption from the affidavit requirement.

The plaintiff compares her case to Hyman Zamft and
Manard, L.L.C. v. Cornell, 707 A.2d 1068, 1072 (N.J. Super.
Ct. App. Div. 1998), where the Appellate Division of the
Superior Court of New Jersey found extraordinary
circumstances existed. There, a mediation order implied
that a "time-out" existed for parties to refile pleadings. In
contrast, nothing occurred during this case that would lead
the parties to believe a "time-out" from filing deadlines
existed. It is true the Hyman Zamft Court also noted that
no demand for the affidavit of merit was made in the
responsive pleading, and no case management order of the
trial court required filing of an affidavit of merit. These
factors were cited by the Court in the course of itsfinding
"extraordinary circumstances." See id. at 1071, 1072.
Nevertheless, the Court also noted that the mediation order
alone was sufficient grounds for excusing the failure to file
the affidavit in a timely manner, indicating that this factor
was the most influential in its decision.

The plaintiff here also compares some of the
circumstances of her case to those of Barreiro v. Morrais,
723 A.2d 1244 (N.J. Super. Ct. App. Div. 1999). In Barreiro,
the Court remanded for a hearing on whether extraordinary
circumstances existed because a protracted delay by the
_________________________________________________________________

6. If counsel had focused on the affidavit of merit statute, he would have
been aware that it would be applied by the District Court. Prior to the
filing of the complaint, the District Court had held that a federal court
sitting in a diversity case was bound by that statute. RTC Mortgage Trust
v. Fidelity National Title Insurance Co., 981 F. Supp. 334 (D.N.J. 1997).

                                13


defendants in providing legible hospital records had
prevented timely filing of an affidavit. The plaintiff in
Barreiro first requested medical records before filing the
complaint and was rebuffed. After filing the complaint, the
plaintiff made several requests for records and
transcriptions thereof, since the original records were
indecipherable. The transcriptions were not provided until
130 days after the defendants filed answers. See id. at
1249. The Barreiro Court opined that the purpose of the
60-day filing window is not to afford defendants with "a
sword to fight off action by procrastinating in providing
records and other relevant materials that a competent,
conscientious expert would have to analyze before
submitting an Affidavit of Merit." Id. at 1248.

Unlike the situation in Barreiro, where the defendants
ignored repeated requests for medical records after the
complaint was filed, the defendant here provided the
necessary medical records one week after the pre-trial
scheduling conference and three weeks before the affidavit
of merit had to be filed, sufficient time for the plaintiff to
either obtain the affidavit of merit or file a motion for a 60-
day extension. The repeated delays and indecipherable
records in Barreiro constituted the "sword" the Court
referred to in that case. In contrast, the "sword" the plaintiff
complains about here is a perfectly legitimate motion filed
by the defendant to dismiss the complaint for failure to file
the affidavit of merit.

Because there are no circumstances here that rise to the
"extraordinary" level required by Cornblatt, we must affirm
the District Court's decision to dismiss with prejudice, at
least with respect to the negligent acts that were alleged to
have occurred after June 29, 1995, the effective date of the
affidavit of merit statute.

D. The Pre-Statute Claims Issue

The New Jersey Supreme Court has held that "the
[affidavit of merit] statute does not apply to malpractice
actions filed on or after the effective date of the statute if
the facts giving rise to the malpractice complaint occurred
before that date." Cornblatt, 708 A.2d at 406. The Cornblatt

                                  14


Court found the term "occur" as used in the statute to have
the same meaning as "accrue," so the statute only applies
to causes of action which accrue on or after June 29, 1995.
See id. at 408. A cause of action accrues when the facts
occur which give rise to a right of action.

The complaint in this action refers to three rhinoplasty
proceedings, the first in January of 1994, the second in
August of 1995, and the third in March of 1996. When
deciding the defendant's motion to dismiss, the District
Court looked beyond the complaint to determine whether
the plaintiff had a claim that accrued prior to the effective
date of the affidavit of merit statute. The Court dismissed
the entire case based on the plaintiff's sworn answer to an
interrogatory indicating that she "was satisfied with the
first Rhinoplasty performed by Defendant," the only one
that pre-dated the statute. As the Court correctly noted, "it
is hornbook law that a court need not . . . consider a
statement made to fend off a well supported motion to
dismiss or for summary judgment which contradicts a prior
statement made under oath." Op. at 5-6, n.1. We agree that
the plaintiff is not now in a position to base a malpractice
claim on the January 1994 surgery.

We note, however, that the record at the time of the
dismissal contained sworn allegations, in the form of an
affidavit of the plaintiff and her answers to interrogatories,
that the defendant's negligent treatment of the plaintiff
included the injection of cortisone into her nose prior to the
effective date of the statute. Also included in the record was
a medical report of a licensed physician opining that "the
cortisone injections were contraindicated in her condition."
App. at 61.

We conclude that the District Court, having determined
to go beyond the complaint in deciding defendant's motion
to dismiss, could not, in fairness, ignore this competent
evidence that pre-effective date malpractice occurred.
Accordingly, we will remand for further proceedings on that
claim only.

E. The Default Judgment Issue

In addition to appealing the District Court's dismissal of
her complaint, the plaintiff contends the District Court

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erred in declining to grant plaintiff's motion for default
judgment based on defendant's late answer. Three factors
control whether a default judgment should be granted: (1)
prejudice to the plaintiff if default is denied, (2) whether the
defendant appears to have a litigable defense, and (3)
whether defendant's delay is due to culpable conduct. See
United States v. $55,518.85 in U.S. Currency, 728 F.2d 192,
195 (3d Cir. 1984). The District Court's refusal to enter a
default judgment is subject to review under the abuse of
discretion standard.

We agree with the District Court that a default judgment
was not warranted here. The plaintiff is not prejudiced by
the denial of default judgment because her failure to file the
affidavit of merit on time was not related in any way to the
defendant's late answer. The plaintiff received notice when
the answer was filed May 8, 1998, and knew or should
have known that the 60-day period to file the affidavit of
merit began that day. If the plaintiff wanted to make a
motion for default judgment before the 60-day affidavit of
merit window closed, she could have done so. In addition,
the defendant alleged a litigable defense to both counts of
the complaint, and no record evidence suggests that the
defendant's delay in filing an answer was due to culpable
conduct, which in the Third Circuit is conduct that is
"taken willfully or in bad faith." Gross v. Stereo Component
Sys., Inc., 700 F.2d 120, 124 (3d Cir. 1991).

III.

We will reverse the judgment of the District Court and
remand for further proceedings on the plaintiff's claim that
the defendant was guilty of malpractice with respect to
cortisone injections occurring before June 29, 1995.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               17
