                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0337-14T3

RACHELE LOUISE CASTELLO,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                            June 20, 2016
v.
                                          APPELLATE DIVISION

ALEXANDER M. WOHLER, M.D.,

     Defendant-Respondent.
__________________________________

          Argued May 16, 2016 – Decided June 20, 2016

         Before Judges Lihotz, Fasciale and Higbee.

         On appeal from Superior Court of New Jersey,
         Law Division, Bergen County, Docket No.
         L-8850-11.

         Lewis Stein argued the cause for appellant
         (Nusbaum, Stein, Goldstein, Bronstein &
         Kron, P.A., attorneys; Mr. Stein, on the
         briefs).

         Charles E. Murray, III, argued the cause for
         respondent   (Farkas   &   Donohue,   L.L.C.,
         attorneys; Mr. Murray, on the brief).

         Abbott S. Brown argued the cause for amicus
         curiae   The  New  Jersey   Association  for
         Justice (Lomurro, Munson, Comer, Brown and
         Schottland, L.L.C., attorneys; Mr. Brown, on
         the brief).

     The opinion of the court was delivered by

FASCIALE, J.A.D.
     In this medical negligence case, plaintiff appeals from two

orders dated August 29, 2014: one order granting defendant's

motion to dismiss the complaint with prejudice; and one order

denying plaintiff's cross-motion to adjourn the trial date and

reopen discovery to obtain a new expert.

     Defendant is a board-certified cardiothoracic and general

surgeon.         Plaintiff      retained     Dr.    John       E.     Edoga,     a    general

surgeon,    to    prepare       an   affidavit     of        merit    (AOM)    and      expert

report.      Plaintiff's         attorney        used    a     copy    of     Dr.     Edoga's

curriculum vitae (the original CV) he had in his office and

simultaneously      served       defendant       with    the    complaint,           AOM,   and

original CV.

     In    his    AOM,    Dr.    Edoga   stated         he    had    been   in    "surgical

practice for more than [thirty-five] years[,] which is set forth

in my [CV] attached hereto."                 The original CV attached to the

AOM reflected Dr. Edoga was an attending surgeon.                              Defendant's

attorney waived the need for a Ferreira1 conference and signed a

consent     order        waiving      "any       objection"           to    Dr.       Edoga's

qualifications.

     In    discovery,        plaintiff's         counsel       produced       Dr.     Edoga's

updated CV (the updated CV) and expert report.                             The updated CV

stated that Dr. Edoga was an attending surgeon since 1976.                                  This

1
    Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).



                                             2                                        A-0337-14T3
information was generally consistent with Dr. Edoga's statement

in     his     AOM   that    he    had        been       in    surgical      practice     for

approximately thirty-five years.

       Defendant's counsel deposed Dr. Edoga and learned, contrary

to the information in the AOM and original and updated CVs, he

had been retired for approximately five years before the medical

procedure in question was performed.                           Three months after the

deposition and weeks after the January 4, 2014 discovery end

date    (DED),       defendant's    counsel              moved   to   bar     Dr.   Edoga's

testimony for failure to comply with the New Jersey Medical Care

Access and Responsibility and Patients First Act (PFA), N.J.S.A.

2A:53A-37 to -42, primarily arguing Dr. Edoga was unqualified to

testify because he retired from the practice of medicine.                                 The

motion was returnable approximately two weeks before trial.                               The

court        independently    adjourned             the       trial   date    to    resolve

defendant's motion to bar Dr. Edoga's testimony, as well as

other related motions.

       There is no credible evidence that plaintiff or plaintiff's

counsel had knowledge that Dr. Edoga had been retired from the

practice of medicine.             Had such information been apparent from

the AOM and original CV during the 120-day period, the parties

would        have    participated        in        the     Ferreira       conference      and

identified the problem.            At that time, plaintiff would have had




                                               3                                    A-0337-14T3
ample opportunity to obtain and timely serve a new AOM from a

different expert witness.

    Under these facts, we agree that the judge properly barred

Dr. Edoga's testimony because he had been retired for several

years and otherwise failed to meet the statutory requirements of

the PFA.     However, we conclude dismissal of the complaint with

prejudice    ignored     the   purposes      of    the   AOM      statute    (AMS),

N.J.S.A. 2A:53A-26 to -29.2            In our view, and in light of the

strong preference for adjudication on the merits, we conclude

that an extension of discovery was warranted.

    We hold, in medical negligence cases, where a plaintiff's

counsel timely serves an AOM and reasonably relies on the AOM

and expert's CV, which erroneously reflects that the witness is

actively    practicing      medicine,    and,     through    no    fault    of    the

plaintiff's counsel, the error is first discovered after the

expiration    of   the   120-day    deadline       imposed     under    the      AMS,

exceptional circumstances exist requiring the judge to allow a

plaintiff sufficient time to retain a different expert witness

who is qualified under the PFA, issue a new AOM, and serve a

corresponding      expert    report.        If    warranted,      the   judge     may


2
     We note that pursuant to N.J.S.A. 2A:53A-27, "the person
executing the [AOM] shall meet the requirements of a person who
provides expert testimony or executes an affidavit as set forth
in [the PFA]."



                                        4                                   A-0337-14T3
include other procedures or requests for relief related to the

extension    of    discovery    and         service    of      a    new   AOM    and    expert

report.

      We therefore reverse the orders dismissing the complaint

with prejudice and denying plaintiff's cross-motion to reopen

discovery.     We remand and direct the court to extend discovery,

allow plaintiff sufficient time to retain a new expert, address

any   related      discovery     issues,            and       address      whether        other

appropriate relief is warranted.

                                            I.

      Plaintiff presented to defendant with difficulty breathing.

Defendant       examined       plaintiff            and        diagnosed          a       giant

paraesophageal      hernia.         A   computerized               tomogram     showed      that

plaintiff's stomach was located in her chest, as opposed to its

usual place below the diaphragm.                   Plaintiff's medical condition

warranted immediate attention.                    In June 2010, with plaintiff's

consent, defendant performed surgery to repair the hernia.

      Plaintiff     experienced         post-operative              discomfort        and    her

condition     worsened.        As       a    result,        defendant          performed       an

exploratory       laparotomy    and         repaired      a    tear       to    the    gastro-

esophageal junction.           Defendant discharged plaintiff to acute

rehabilitation, but readmitted her to the hospital because of

further complications.         Plaintiff remained there until defendant




                                              5                                        A-0337-14T3
granted plaintiff's request to transfer her to a hospital in

Pittsburgh.

    An esophageal surgeon examined plaintiff at the Pittsburgh

hospital, diagnosed an esophageal leak, and performed various

medical procedures, including an esophagectomy, thoracotomy, and

laparotomy.     In October 2010, plaintiff was discharged to a

rehabilitation facility.      Plaintiff returned home in December

2010, almost six months after defendant performed the hernia

repair operation.

    In    October   2011,   plaintiff   filed   a    complaint   against

defendant alleging that he deviated from accepted standards of

medical care and performed the hernia repair negligently, which,

purportedly, caused multiple additional medical procedures and

substantial pain and suffering.

    In addition to serving Dr. Edoga's AOM with the complaint,

plaintiff's counsel served defendant with a copy of Dr. Edoga's

original CV, which plaintiff's counsel had retrieved from files

located in his law firm.      The original CV stated Dr. Edoga was

an attending surgeon at Morristown Memorial Hospital from "1976

to present," and an assistant clinical professor of surgery from

"1985    to   present."     The   information   in   the   original     CV

corroborated Dr. Edoga's statement in his AOM that he had been

in surgical practice for more than thirty-five years.




                                   6                             A-0337-14T3
      In   December    2011,    defendant        filed       his   answer      to    the

complaint, and denied any negligence.                 The court scheduled the

Ferreira conference, which prompted a letter from plaintiff's

counsel seeking input as to how defendant intended to proceed.

Defendant's   counsel     initially      intended      to     object     to    the   AOM

because "[defendant] is a cardiac and thoracic surgeon[,] and

given the fact that this matter would fall within that specialty

or   sub-specialty,    Dr.     Edoga's       qualifications        do    not   suffice

under the [PFA]."

      Plaintiff's     counsel    responded       by    advising         that   general

surgeons, like Dr. Edoga, also perform laparoscopic repairs of

paraesophageal hernias, especially because the surgery here was

in the abdomen.        He referred to the original CV, which also

listed Dr. Edoga's 1997 publication pertaining to laparoscopic

repair of paraesophageal hernias.              Defendant's counsel wrote to

plaintiff's   counsel,       stating     "[m]y    client      advises      that      some

hospitals do permit general surgeons to perform this procedure."

      Defendant's counsel withdrew the objection, waived the need

for the Ferreira conference, and confirmed in a March 14, 2012

consent    order   that   defendant      waived       "any    objection"       to    the

adequacy of the AOM.           Based on the contents of the AOM and

original CV, the parties had no reason to believe that Dr. Edoga

had retired from the practice of medicine, and therefore they




                                         7                                     A-0337-14T3
did not pursue the Ferreira conference to resolve whether the

retirement     rendered       Dr.        Edoga    unqualified        pursuant     to    the

requirements enunciated in case law and the PFA.                           Consequently,

plaintiff's    counsel       continued       using      Dr.   Edoga     as   plaintiff's

expert.

      Over the next three years, the parties engaged in extensive

discovery.         They propounded interrogatories, produced document

demands, served subpoenas, and deposed several fact witnesses.

Experts on both sides then reviewed the information obtained

during the pretrial discovery.

      Plaintiff's counsel served Dr. Edoga's expert report, dated

May   21,   2013,     well    within       the   DED.       Dr.    Edoga     opined    that

defendant's surgical technique caused esophageal perforations,

which defendant purportedly missed, misinterpreted, or ignored;

defendant used covered stents in a manner well below accepted

standards     of    care;    and    defendant       failed    to     properly     monitor

plaintiff and seek timely consultations with other doctors.                              In

his   expert       report,   Dr.     Edoga       stated    that    he     had    published

medical     journal    articles      "on     this    subject,"       he    had   produced

instructional        videos        and     trained        surgical      residents       and

attending surgeons "to safely perform the surgery in question,"

and he had given lectures "dealing with the subject matter at

hand."




                                             8                                    A-0337-14T3
      Along with Dr. Edoga's expert report, plaintiff's counsel

served defendant's counsel with a copy of the updated CV, which

repeated that Dr. Edoga was an attending surgeon at Morristown

Memorial    Hospital      from       "1976     to     present,"      and   an   assistant

clinical    professor         of    surgery       from    "1985     to   present."        The

updated CV listed Dr. Edoga as the president and chief operating

officer of a company from "2002 to present" and referenced his

teaching       assignments,               including        training        in    surgical

technologies and techniques.

      Defendant's counsel deposed Dr. Edoga on November 1, 2013.

Dr. Edoga's supplemental CV (the supplemental CV) was produced

and   marked      as     an        exhibit    during          the   deposition.           The

supplemental CV, like the original CV and updated CV, stated

that Dr. Edoga was an attending surgeon at Morristown Memorial

Hospital    from       "1976        to     present,"          and   assistant   clinical

professor of surgery from "1985 to present."

      In response to questions during his deposition, Dr. Edoga

testified    he    was    affiliated          with       Columbia    University      as   an

assistant clinical professor, where he "gave a couple lectures"

in 2009 and 2010.         He also stated he was on the attending staff

at Morristown Memorial Hospital, where he had privileges as an

emeritus    professor.              Dr.    Edoga     admitted,       however,    that     he

retired    from    the    active          practice       of    medicine    in   2005      and




                                              9                                   A-0337-14T3
conceded he volunteered to teach two or three hours per week,

which   was   not     with      an     accredited       medical       school.         Upon

retirement,    Dr.    Edoga      pursued       medical       device    inventions      and

development, which was consistent with the additional reference

to training in the updated CV.

    Defendant's counsel did not move to disqualify Dr. Edoga

before the expiration of the DED.                      Rather, in January 2014,

approximately three months after Dr. Edoga's deposition and well

after the expiration of the DED, defendant's counsel filed a

motion to bar Dr. Edoga's testimony.                   The motion was returnable

approximately      seventeen          days    before     the    first    trial      date.

Defendant's counsel argued in part that Dr. Edoga failed to

satisfy the requirements of the PFA because he was not actively

practicing surgery at the time of the alleged malpractice, a

fact that defendant's counsel urged was not clear until after

Dr. Edoga's deposition.

    Plaintiff opposed the motion, in part, by arguing that the

court   should      waive       the     "same       specialty     or     subspecialty"

requirement   under       the   PFA,     N.J.S.A.      2A:53A-41(c).           Plaintiff

maintained there existed a limited availability of surgeons with

defendant's      specialty       who         have   surgically        repaired      giant

paraesophageal       hernias.           Alternatively,         plaintiff's       counsel

requested,    in    the   event       the     judge    was    inclined    to    bar    Dr.




                                              10                                 A-0337-14T3
Edoga's testimony, a reasonable time in which to obtain another

expert.

        On March 17, 2014, the court granted defendant's motion and

entered an order barring the testimony of Dr. Edoga.                                     The court

did not fully consider the merits of plaintiff's waiver argument

because       plaintiff      failed       to    formally         file    a    motion       seeking

waiver       from    compliance          with    the      PFA,    pursuant       to       N.J.S.A.

2A:53A-41(c).           Rather, the judge disqualified Dr. Edoga from

acting as an expert witness, concluding that plaintiff failed to

satisfy      the    requirements          of    N.J.S.A.     2A:53A-41(a)(1)              or    (2),

which       sets    forth    the    requirements          for     an    expert's         testimony

under the PFA.

        Discussing whether defendant's objection was timely,                                    the

judge       concluded       that    defendant's        counsel          was   not     placed     on

"adequate notice of Dr. Edoga's qualifications."                               She found Dr.

Edoga's       original       CV    "misrepresented           his       current      status       and

qualifications at the time it was served."                                As a result, the

judge determined defendant's counsel was unable to object to Dr.

Edoga's qualifications until after the deposition.                               Although the

court acknowledged plaintiff's equitable argument and "concerns

.   .   .    in    light    of     the   timing      of    th[e]       [motion      to    bar   Dr.

Edoga],"      and    although       she    recognized        the       "apparent         prejudice

plaintiff will suffer . . . on the eve of the impending trial




                                                11                                        A-0337-14T3
date,"   the      court     did   not     grant          plaintiff's      request      for     a

reasonable amount of time to obtain another expert.                              The court

adjourned the trial date, however, from March 2014 to April 28,

2014.

      Because      plaintiff      was    without          an   expert    to    support      her

allegations of medical negligence, defendant's counsel filed a

motion for summary judgment, returnable April 25, 2014.                                  While

that motion was pending, plaintiff moved for reconsideration of

the   March      17,   2014   order     barring          Dr.   Edoga's     testimony        and

sought   to      adjourn    the   April       28,    2014      trial    date    and    reopen

discovery.         The    court   denied       defendant's        motion       for    summary

judgment      without      prejudice     pending          resolution      of   plaintiff's

motion     for    reconsideration.                 The    court    also       independently

adjourned the trial date until October 14, 2014.                               On June 25,

2014, the court denied plaintiff's motion for reconsideration.

      Defendant then filed his "motion to dismiss" plaintiff's

complaint for failure to comply with the PFA.                           Plaintiff filed a

cross-motion to reopen discovery, adjourn the trial date, and

permit plaintiff an opportunity to provide a new expert.

      In plaintiff's motion to reopen discovery to obtain a new

expert, plaintiff's counsel addressed the court's finding that

Dr.   Edoga's      original       CV    was    misleading         on     its    face.        He

reiterated




                                              12                                      A-0337-14T3
              [t]he [d]efendant is quick to attribute an
              inference of deliberate misrepresentation on
              Dr. Edoga's qualification by virtue of the
              [CVs] presented. As indicated [previously,]
              the CVs were delivered . . . not by virtue
              of any effort by Dr. Edoga to misrepresent
              his status – much less an effort by the
              [p]laintiff to misrepresent [Dr. Edoga's]
              status.[3]

       The judge concluded that plaintiff failed to demonstrate

exceptional     circumstances       to   allow     extended     discovery,       found

that    defendant's      counsel    moved     to   bar   Dr.   Edoga's      testimony

"immediately and expeditiously" after taking his deposition, and

determined      defendant     would      be    prejudiced      as     a    result   of

prolonged litigation.         On August 29, 2014, the judge entered the

orders under review.

       On appeal, plaintiff argues that Dr. Edoga satisfied the

requirements        of   N.J.S.A.   2A:53A-41(a)(1)       and       (2);   the   judge

erred    in   not    applying   N.J.S.A.       2A:53A-41(c);        and    the   judge

abused her discretion by failing to adjourn the trial date,

extend discovery, and allow plaintiff an opportunity to retain a

new expert.




3
     Although the judge focused on the original CV, the record
establishes that the contents of all the CVs and the AOM
erroneously   suggested  Dr.  Edoga   was  actively  practicing
medicine.    On this record, there are no credible facts to
suggest plaintiff's counsel knew before the deposition that Dr.
Edoga had been retired for approximately five years before the
procedure in question.



                                         13                                  A-0337-14T3
    In June 2015, we granted The New Jersey Association for

Justice    (NJAJ)    amicus       curiae        status      and     permission        to

participate     in    oral        argument.            NJAJ       challenges         the

constitutionality     of    the    PFA,       argues      that    the    PFA   was    an

improper exercise of legislative authority, contends that Dr.

Edoga was qualified to testify, and, alternatively, asserts the

judge abused her discretion by failing to give plaintiff time to

replace Dr. Edoga.

                                        II.

    We begin by addressing the merits of the order dismissing

the complaint with prejudice.                 The court granted defendant's

motion to dismiss based on plaintiff's failure to comply with

the PFA.      We afford this decision no deference, reviewing all

decisions on motions to dismiss de novo.                   Giannakopoulos v. Mid

State Mall, 438 N.J. Super. 595, 599 (App. Div. 2014), certif.

denied, 221 N.J. 492 (2015).             Our focus here is on whether Dr.

Edoga   satisfied    the   statutory          and   case    law    requirements       to

testify as an expert.

    Plaintiff contends that Dr. Edoga was qualified to testify

as an expert because he satisfied the PFA, particularly the

additional statutory requirements enumerated in N.J.S.A. 2A:53A-

41(a)(1) and (2).          In the alternative, plaintiff argues                      the

judge   erred   by   refusing      to    waive      the    expert       qualification




                                         14                                    A-0337-14T3
requirements      imposed      by   the    PFA,    as   permitted   by    N.J.S.A.

2A:53A-41(c).      We address these contentions in turn.

                                           A.

      The   PFA    establishes      certain       qualifications    that    expert

witnesses in medical malpractice actions must possess.                    Nicholas

v.   Mynster,     213   N.J.    463,      479   (2013).     N.J.S.A.     2A:53A-41

provides, in pertinent part:

            In an action alleging medical malpractice, a
            person shall not give expert testimony or
            execute   an   affidavit  pursuant  to   the
            provisions of P.L. 1995, c. 139 (C. 2A:53A-
            26 et seq.) on the appropriate standard of
            practice or care unless the person is
            licensed as a physician or other health care
            professional in the United States and meets
            the following criteria:

                   a. If the party against whom or on
                   whose behalf the testimony is
                   offered    is    a   specialist     or
                   subspecialist recognized by the
                   American      Board     of     Medical
                   Specialties     or    the     American
                   Osteopathic Association and the
                   care    or    treatment    at    issue
                   involves     that    specialty      or
                   subspecialty    recognized    by   the
                   American      Board     of     Medical
                   Specialties     or    the     American
                   Osteopathic      Association,      the
                   person   providing    the   testimony
                   shall have specialized at the time
                   of the occurrence that is the
                   basis for the action in the same
                   specialty       or      subspecialty,
                   recognized by the American Board
                   of Medical Specialties or the
                   American Osteopathic Association,
                   as the party against whom or on



                                           15                              A-0337-14T3
whose behalf the testimony is
offered, and if 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
recognized by the American Board
of Medical Specialties or the
American Osteopathic Association,
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 recognized by
    the American Board of Medical
    Specialties or the American
    Osteopathic Association who
    is board certified in the
    same       specialty       or
    subspecialty, recognized by
    the American Board of Medical
    Specialties or the American
    Osteopathic Association, 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:

         (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
    recognized by the American
    Board of Medical Specialties



                16                   A-0337-14T3
                      or the American Osteopathic
                      Association,     the    active
                      clinical   practice  of   that
                      specialty    or   subspecialty
                      recognized by the American
                      Board of Medical Specialties
                      or the American Osteopathic
                      Association; 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 recognized
                      by the American Board of
                      Medical Specialties or the
                      American             Osteopathic
                      Association,    an    accredited
                      medical      school,       health
                      professional       school      or
                      accredited     residency       or
                      clinical research program in
                      the    same     specialty      or
                      subspecialty    recognized     by
                      the American Board of Medical
                      Specialties or the American
                      Osteopathic Association; or

                           (c) both.

         [(Emphasis added).]

    In Nicholas, the Court provided critical guidance for the

bench and practitioners when applying these provisions.     Supra,

213 N.J. at 479-88.     Specifically, the Court explained N.J.S.A.

2A:53A-41(a) imposes certain preliminary qualifications of an



                                  17                      A-0337-14T3
expert who seeks to testify against a defendant physician who

practices a specialty, but who is not otherwise board certified.

Nicholas, supra, 213 N.J. at 481-82.                       Experts must satisfy these

minimum requirements as a prerequisite to presenting testimony.

Moreover, if a defendant is board certified, N.J.S.A. 2A:53A-

41(a)    requires     that       the   testifying      expert       satisfy    additional

qualifications set forth in subsections (a)(1) or (a)(2).                              Id.

at 482.

       In her argument that the judge erred by barring Dr. Edoga

from     testifying,     plaintiff         focuses         primarily     on    the   added

qualifications enumerated in N.J.S.A. 2A:53A-41(a)(1) (requiring

the expert be credentialed) and (a)(2)(b) (generally requiring

the    expert   devote       a    majority       of    his/her      professional     time

towards     instruction          of    students       in    an    accredited     school).

Certainly,      Dr.      Edoga         needed         to     meet       the    additional

qualifications of (a)(1) or (a)(2) because defendant was board

certified.      But before we reach whether Dr. Edoga satisfied the

added statutory qualifications, we address whether he met the

preliminary qualifications mandated by N.J.S.A. 2A:53A-41(a).

                                           (i)

       As to the preliminary qualification of specialization, the

expert    "shall    have     specialized         [in       the   same   specialty    as   a

defendant physician] at the time of the occurrence."                             N.J.S.A.




                                            18                                   A-0337-14T3
2A:53A-41(a).        Moreover, "[w]hen a physician is a specialist and

the basis of the malpractice action 'involves' the physician's

specialty,     the    challenging    expert      must   practice    in   the   same

specialty."        Nicholas, supra, 213 N.J. at 481-82 (citing Buck v.

Henry, 207 N.J. 377, 391 (2011)) (emphasis added).

      It is undisputed that Dr. Edoga retired from the practice

of medicine in 2005, approximately five years before defendant

performed the hernia repair operation.              Dr. Edoga testified that

the last time he performed a paraesophageal hernia repair was in

2005.   He also testified that the last time he was involved in

repairing a tear of the esophagus was in 2005.                In his marketing

material, Dr. Edoga advertised that he was "retired from the

active practice of surgery [as early as] November of 2004 and

now function[ed] as the Chief Executive Officer of a start-up

surgical device company."

      The Court has stated unequivocally that a plaintiff "cannot

establish the standard of care through an expert who does not

practice      in   the   same   medical       specialties   as     [a]   defendant

physician[]."        Nicholas, supra, 213 N.J. at 468.              As a result,

Dr.   Edoga    did    not   meet   the   minimum    requirement      mandated    by

N.J.S.A. 2A:53A-41(a).




                                         19                               A-0337-14T3
                                    (ii)

      Because Dr. Edoga did not actively practice medicine "at

the time of the occurrence" in the same specialty as defendant,

we need not reach whether he met the added qualifications of

(a)(1) or (a)(2) under the PFA.            However, we observe that Dr.

Edoga also failed to meet the additional requirements contained

in (a)(1) or (a)(2).         The additional requirements under N.J.S.A.

2A:53A-41(a)(1) and (a)(2) apply when the defendant physician is

board certified and the course of treatment in dispute involves

that specialty.       In such a case, the expert must meet one of two

criteria.

      First, under N.J.S.A. 2A:53A-41(a)(1), an expert may be "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."            This prong is designed to act

as a substitute for board certification.             Specifically, although

the expert may not be board certified in the area in question,

he or she may be credentialed by his or her hospital to treat

patients for the medical condition at issue.                 Nicholas, supra,

213   N.J.   at    482.     Importantly,   "[t]he    hospital-credentialing

provision     is     not    an   alternative    to     the     same-specialty

requirement."       Ibid.     However, a necessary precursor to being




                                     20                              A-0337-14T3
credentialed by a hospital is that the expert must be actively

practicing and treating the condition at issue.

      Here, Dr. Edoga was not credentialed by a hospital to treat

the condition at issue when plaintiff's claim arose.                        At the

time defendant performed the hernia surgery in 2010, Dr. Edoga

was not privileged to "treat patients for the medical condition,

or to perform the procedure, that is the basis for the claim or

action."     N.J.S.A. 2A:53A-41(a)(1).           Years before the procedure,

Dr. Edoga failed to maintain his medical malpractice insurance

and forfeited his privileges at Morristown Memorial Hospital.

As a result, Dr. Edoga fails to satisfy the added requirement of

(a)(1).

      Second, N.J.S.A. 2A:53A-41(a)(2) requires the expert to be

a   board    certified   specialist     or   subspecialist           in   the    same

specialty     as   the   defendant   physician,          and   during     the    year

immediately prior to the occurrence, have devoted the majority

of his or her professional time to active practice in that same

specialty or subspecialty, or the instruction of students in an

accredited     medical    school,    also    in    the     same      specialty     or

subspecialty, or both.

      The undisputed evidence shows Dr. Edoga did not, "during

the   year   immediately    preceding      the    date    of   the    occurrence,"

devote the majority of his professional time to either active




                                      21                                   A-0337-14T3
clinical    practice   or   the   instruction   of   students     in     a

statutorily defined accredited institution.      Although Dr. Edoga

stated that he "teaches," he admitted he was not doing so in a

"teaching position . . . or professor[ship]," and he testified

that his instruction amounted to two or three hours per week.

As a result, Dr. Edoga also failed to satisfy the requirements

of N.J.S.A. 2A:53A-41(a)(2).

                                  B.

    We reject plaintiff's contention that the judge erred by

refusing to waive the expert qualification requirements imposed

by the PFA.      Under certain circumstances, a court may waive

compliance with the PFA pursuant to N.J.S.A. 2A:53A-41(c), which

provides:

            A court may waive the same specialty or
            subspecialty recognized by the American
            Board of Medical Specialties or the American
            Osteopathic     Association     and     board
            certification requirements of this section,
            upon motion by the party seeking a waiver,
            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.

            [(Emphasis added).]




                                  22                            A-0337-14T3
       A   party     seeking      a    waiver     must       file    a    motion   for    that

relief,      which    plaintiff        failed     to    do.         Instead,    plaintiff's

counsel informally asked the court to waive the requirements

pursuant to subsection (c).                Even though no motion was filed, we

consider the merits of plaintiff's contentions.

       The    statutory       obligation         is    to     demonstrate       good     faith

efforts      to     "identify      an     expert       in    the     same     specialty     or

subspecialty."         Ibid.       There is no evidence that plaintiff was

unable       to    locate    an       actively     practicing            cardiothoracic     or

general      surgeon    to    review      the     merits      of    plaintiff's     medical

malpractice allegations.                Plaintiff argues counsel was unable to

locate surgeons who have performed the exact procedure defendant

performed in 2010, but the obligation is only to show good faith

efforts       to    identify      an     expert        in    the     same    specialty      or

subspecialty, which plaintiff failed to do.

       Even if plaintiff made the requisite showing of good faith,

Dr. Edoga's training, experience, and knowledge are not derived

from   his        "active    involvement        in,     or    full-time       teaching     of,

medicine in the applicable area of practice or a related field

of medicine."         Ibid.       As a result, we see no basis for a waiver

under section (c).




                                             23                                     A-0337-14T3
                                                 III.

       We now turn to the order denying plaintiff's cross-motion

to    adjourn       the    April        28,      2014    trial    date,       reopen        limited

discovery, and allow plaintiff an opportunity to obtain a new

expert.      The request to adjourn the trial date is not an issue

because the court had independently adjourned the trial from

April 2014 to October 2014.                       We focus on the dismissal of the

complaint         with    prejudice         and    whether       the   court        should      have

permitted plaintiff to reopen discovery and obtain a new expert.

       We conclude that denying plaintiff's cross-motion, which

led    to     the        dismissal          of    the     complaint         with       prejudice,

substantially ignored the purposes of the AMS.                                   We reach this

conclusion reemphasizing the important reasons for a Ferreira

conference         and     the       strong       preference       for      adjudication            of

disputes on the merits.                 Under the unique facts of this case, we

conclude      that        exceptional            circumstances         existed         to     extend

limited discovery.

                                                   A.

       The    dual       purpose       of   the    AMS    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."           Ferreira,         supra,   178     N.J.      at   150        (quoting

Hubbard      v.    Reed,       168     N.J.      387,   395    (2001));       see      also    Buck,




                                                   24                                       A-0337-14T3
supra, 207 N.J. at 383 (explaining "[t]he purpose of the [AMS]

is   to   weed   out   frivolous    complaints,        not   to   create    hidden

pitfalls for meritorious ones").              Considering the facts of the

case before us, dismissing plaintiff's complaint with prejudice

would not serve these purposes.               On this record, there is no

credible    evidence    to   suggest     that    plaintiff's      complaint       is

frivolous.

      Plaintiff's counsel attempted in good faith to comply with

the PFA and N.J.S.A. 2A:53A-27, which 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.

In medical malpractice cases, the AMS requires the affiant to

satisfy    the   requirements      of   the     PFA,   pursuant    to   N.J.S.A.

2A:53A-27, which further provides in relevant part that




                                        25                                 A-0337-14T3
            [i]n 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).

    Here, although the judge concluded that the original CV was

misleading on its face, she did not address the root of the

problem.     The record reflects plaintiff's counsel produced the

original CV in good faith and there is no reason to believe from

a review of the original CV or AOM that plaintiff or plaintiff's

counsel knew Dr. Edoga had retired from the active practice of

medicine.     Moreover, this is not a situation that amounted to

carelessness or inadvertence by plaintiff's counsel in using the

original CV, because the contents of the AOM and updated and

supplemental       CVs    also   suggest       that   Dr.   Edoga     was    actively

practicing medicine.

                                          B.

    In malpractice cases, the qualifications of a plaintiff's

expert are expected to be addressed early in the litigation.

There   exists     a     well-settled     procedure      to      address    potential

problems    with    compliance     with    the    AMS.      In    Buck,     the   Court

reaffirmed the Ferreira requirement for courts to conduct a case

management conference within "ninety days of the service of an

answer in all malpractice actions."                   Supra, 207 N.J. at 394.




                                          26                                  A-0337-14T3
The Court further noted that "[t]he painful experience of our

[AOM]    jurisprudence       reveals        the    compelling     need       for    such

conferences at an early stage before problems arise."                              Ibid.

(first   alteration     in   original)       (quoting      Ferreira,     supra,     178

N.J. at 155).     A Ferreira conference serves to avoid inadvertent

and technical errors in timely service of the affidavit.                             See

Ferreira, supra, 178 N.J. at 154-55.                   It also "require[s] [a

defendant]   to   advise     the    court     whether      he   [or   she]    has    any

objections   to   the   adequacy       of    the    affidavit."        Id.    at    155.

Ultimately, the conference serves to resolve potential discovery

issues — including compliance with the AMS — before they result

in "sideshows" of dueling motions.                Id. at 154-55.

    Here,     defendant's          counsel        understandably       waived        the

Ferreira conference in part by relying on the AOM, in which Dr.

Edoga stated he had been in surgical practice for thirty-five

years, and the original CV, which indicated Dr. Edoga was an

attending surgeon at Morristown Memorial Hospital from "1976 to

present," and an assistant clinical professor of surgery from

"1985 to present."       Counsel's only concern was whether Dr. Edoga

shared the same specialty under the PFA to issue the AOM and

render expert opinion testimony against defendant.

    Had    defendant's       counsel    known       that    Dr.   Edoga      had    been

retired five years before the alleged malpractice, defendant's




                                        27                                    A-0337-14T3
counsel     would    have     proceeded        with    the    Ferreira      conference

challenging Dr. Edoga's qualifications under the AMS and PFA.

Certainly, had the Ferreira conference occurred, plaintiff would

have had the opportunity to comply with the AMS and PFA by

serving   an   AOM     from    a   different      expert      witness       before   the

expiration of the 120—day deadline.                   Through no fault of either

counsel, Dr. Edoga's retirement was not known during the 120-day

deadline.

      In general, to temper an inflexible application of the AMS,

the Supreme Court has carved out exceptions for extraordinary

circumstances, Cornblatt v. Barow, 153 N.J. 218, 246-47 (1998);

Tischler v. Watts, 177 N.J. 243, 246-47 (2003); for substantial

compliance with the statutory requirements, Fink v. Thompson,

167 N.J. 551, 564-65 (2001); Galik v. Clara Maass Med. Ctr., 167

N.J. 341, 357 (2001); for equitable estoppel and laches, Knorr

v.   Smeal,    178    N.J.    169,    178-81      (2003);      and    for    technical

deficiencies in the contents or service of the affidavit that

could have been cured within the statutory time limit, Ferreira,

supra, 178 N.J. at 154-55.             In the context of the AMS, these

equitable doctrines are not directly implicated on this appeal

because the question is not whether to permit the use of Dr.

Edoga's     AOM,     but    rather,   whether         to     extend   discovery       so

plaintiff can retain a new expert.




                                          28                                   A-0337-14T3
       To illustrate this point, we turn to defendant's reliance

on    Medina    v.     Pitta,     442     N.J.    Super.        1    (App.    Div.),      certif.

denied,     223      N.J.    555     (2015).                Defendant      argues     that      the

doctrines         of     substantial             compliance            and         extraordinary

circumstances are inapplicable.                        Defendant contends that once

the    court    barred      Dr.    Edoga's        testimony,          he   was      entitled     to

summary     judgment.             Based    on         our    reasoning        in    Medina,       he

maintains that dismissal with prejudice is appropriate.

       Defendant's reliance on Medina is misplaced.                                   There the

parties were only concerned with whether the plaintiff's expert

satisfied the requirements under the PFA; here, the focus is on

the    unintended        consequences            that         flowed       from      plaintiff's

counsel's reasonable reliance on the AOM and original CV, which

erroneously       reflected         that     Dr.        Edoga        had     been     practicing

medicine,      not     whether      these    equitable              doctrines       allowed     the

continued use of Dr. Edoga's AOM and expert opinions.                                 The focus

is    on   whether       exceptional         circumstances              existed      to     extend

discovery, not to continue with Dr. Edoga as plaintiff's expert.

       The facts in Medina are distinguishable.                                 There, before

service    of     the    AOM      and     expert's           CV,    the    expert      told     the

plaintiff's attorney he was retired and asked if that would be a

problem.       Id. at 14.         The plaintiff's attorney replied he would

"look into it," but he did not think it would be a problem.




                                                 29                                       A-0337-14T3
Ibid.     Here, there is no evidence in the record to show that

plaintiff's counsel had any reason to know, when he served the

original CV with the AOM and complaint, or even service of the

updated   CV   with     Dr.      Edoga's       expert       report,      that    Dr.     Edoga

retired   five      years   before       the        alleged   malpractice.             On   the

contrary, Dr. Edoga stated in his AOM he had been involved in

surgical practice for roughly thirty-five years.

      Additionally,         in     Medina,          the    expert     gave       deposition

testimony that he had retired, but unlike here, the plaintiff in

Medina did not file a motion to obtain a new expert or extend

the   DED.       Id.   at     12-13.           Instead,       in   opposition         to    the

defendant's        motion        for     summary          judgment,      the      plaintiff

maintained his expert satisfied the PFA.                       Id. at 13.         The court

disagreed and granted summary judgment to the defendant.                                 Ibid.

On    reconsideration,           the     plaintiff          reasserted          his    expert

satisfied    the     PFA,   and        for    the    first    time    argued      that      the

doctrines      of      substantial             compliance          and     extraordinary

circumstances warranted a dismissal without prejudice.                                 Id. at

14.

      We agree with defendant's contention that under the facts

of Medina, the equitable doctrines of substantial compliance and

extraordinary       circumstances            were    unavailable.         In    Medina,      we

rejected the plaintiff's contention that the dismissal should




                                               30                                     A-0337-14T3
have been without prejudice.               Id. at 20-25.        We determined that

the   doctrine     of    substantial       compliance     "may       be    invoked      when

dismissal is sought based upon [technical] deficiencies in an

AOM."     Id. at 25.          The doctrine is "not intended to shield a

plaintiff from the dismissal of a claim that is substantively

defective."        Ibid.         We   pointed    out   that    application         of    the

doctrine    would       erode    our    summary    judgment      jurisprudence           and

eviscerate the remedial purpose of the PFA, to provide stringent

requirements for expert qualification.                     Ibid.          Similarly, we

stated     that    a     summary       judgment    analysis        does      not      allow

application       of    the     doctrine    of    extraordinary           circumstances.

Ibid.

      Here, however, the question is not whether the doctrines of

substantial compliance and extraordinary circumstances warrant

continued use of Dr. Edoga's testimony; rather, the issue is

whether     exceptional          circumstances         exist    allowing        for        an

extension of discovery permitting plaintiff time to retain a

different expert witness because, unbeknownst to plaintiff and

her attorney, the parties learned after the expiration of the

120-day    deadline       that    the    references      to    Dr.    Edoga's       active

medical practice in the AOM and original CV were inaccurate.

Therefore, Medina's holding does not govern our review.




                                           31                                      A-0337-14T3
                                                  C.

    Our review of the trial judge's decision                                    not    to extend

discovery is deferential.                    Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 371 (2011).                       "We generally defer to a trial

court's disposition of discovery matters unless the court has

abused    its       discretion         or    its       determination          is    based      on    a

mistaken understanding of the applicable law."                                     Rivers v. LSC

P'ship, 378 N.J. Super. 68, 80 (App. Div.) (citing Payton v.

N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185

N.J. 296 (2005).

    An abuse of discretion "arises when a decision is 'made

without       a     rational      explanation,           inexplicably           departed        from

established         policies,     or        rested     on    an    impermissible          basis.'"

Flagg    v.       Essex    Cty.       Prosecutor,           171    N.J.   561,        571    (2002)

(quoting          Achacoso-Sanchez           v.    Immigration          and     Naturalization

Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).                                  We respectfully

conclude such an abuse of discretion occurred here.

    "The           right   of     a    trial       court          to   manage       the     orderly

progression of cases before it has been recognized as inherent

in its function."           Casino Reinvestment Dev. Auth. v. Lustgarten,

332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J.

607 (2000).           Rule 4:24-1(c) provides in pertinent part that

"[n]o extension of the discovery period may be permitted after




                                                  32                                        A-0337-14T3
an   arbitration         or    trial     date       is    fixed,       unless       exceptional

circumstances are shown."                 The moving party must satisfy four

inquiries        to         extend      discovery              based        on      exceptional

circumstances:

             (1) why discovery has not been completed
             within time and counsel's diligence in
             pursuing discovery during that time; (2) the
             additional discovery or disclosure sought is
             essential; (3) an explanation for counsel's
             failure to request an extension of the time
             for discovery within the original time
             period; and (4) the circumstances presented
             were clearly beyond the control of the
             attorney and litigant seeking the extension
             of time.

             [Rivers, supra, 378 N.J. Super. at 79.]

       As   to     the      first     prong,    plaintiff's            counsel       diligently

pursued     compliance         with     the    AMS       and    the     PFA.        Plaintiff's

counsel produced the AOM timely, defendant's counsel waived the

Ferreira     conference         and     "any    objection"             to   Dr.     Edoga,     and

plaintiff's        counsel      produced        Dr.      Edoga's        expert      report     and

updated CV timely.             Plaintiff's counsel did not know about any

objection     to      Dr.     Edoga's    qualifications           until          after   the   DED

expired.

       As to the second prong, the additional discovery sought is

essential to plaintiff's case.                      Without an expert, plaintiff's

case   will      be    dismissed,        even       though       there      is     no    credible

evidence to suggest that plaintiff's claim is frivolous.




                                               33                                        A-0337-14T3
       As to the third prong, plaintiff's counsel has a reasonable

explanation        for    not   requesting        an   extension      within     the      DED.

Defendant's counsel did not inform plaintiff's counsel at Dr.

Edoga's deposition that he would be moving to bar the testimony

of Dr. Edoga.         Had that occurred, plaintiff's counsel would have

had sufficient time to request an extension of time in which to

retain a new expert.             And because a trial date had not yet been

fixed at that point, the standard would have been one of good

cause rather than exceptional circumstances.

       As    to    the    fourth    prong,    the       circumstances         were    beyond

plaintiff's control.             There was no need to request an extension

of discovery before the expiration of the DED, even after Dr.

Edoga's      deposition,        because     there       was    no    objection       to    Dr.

Edoga's qualifications at that point.                         It was not until after

the    DED    expired     that     plaintiff's         counsel      first    learned      that

defendant         would   be     seeking     to    bar    Dr.       Edoga's    testimony.

Certainly, it was reasonable for plaintiff's counsel to rely on

the contents of the AOM and CVs.

       We disagree with the finding that defendant's counsel moved

to    bar    Dr.   Edoga's      testimony     "immediately          and     expeditiously"

after       taking    his      deposition.         The    deposition         occurred       on

November 1, 2013, but the motion was not filed until January 29,

2014.       Given the fact that defendant signed the consent order in




                                             34                                      A-0337-14T3
March     2012,      waiving       "any    objection[s]"         to      Dr.    Edoga's

qualifications, and in light of the fact that defendant did not

object before the DED expired, plaintiff's counsel had no reason

to retain a new expert until defendant filed the motion to bar,

returnable     on     the    eve    of     trial.         Dismissing      plaintiff's

complaint with prejudice would encourage procedural gamesmanship

and     does   not       further    the     purposes      of    imposing        enhanced

qualification        requirements     for       expert    witnesses.4          Ferreira,

supra, 178 N.J. at 154.

                                          D.

       It is well settled that because "dismissal with prejudice

is the ultimate sanction, it will normally be ordered only when

no lesser sanction will erase the prejudice suffered by the non-

delinquent party."          Irani v. K-Mart Corp., 281 N.J. Super. 383,

387 (App. Div. 1995) (quoting Crispin v. Volkswagenwerk, A.G.,

96 N.J. 336, 345 (1984)).            "Certainly, there has been no showing

of    prejudice     to    [defendant]      that       would   outweigh    the    strong

preference     for    adjudication        on    the    merits   rather    than     final

disposition for procedural reasons, or would warrant visiting on

the innocent client[] an error of [her] attorney."                        Mayfield v.

Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 207 (App. Div.

4
    The judge did not find that defendant's counsel engaged in
procedural gamesmanship.




                                           35                                   A-0337-14T3
2000) (citations omitted).         We conclude "[t]his is not a case of

a plaintiff sleeping on [her] rights and ignoring statutorily

imposed deadlines."          Buck, supra, 207 N.J. at 395.                 "Rather,

this is a case of a plaintiff who has made good-faith attempts

to satisfy the statute."         Ibid.

                                           IV.

      Finally, both plaintiff and the NJAJ argue that the PFA

violates Article VI, Section 2, Paragraph 3 of the New Jersey

Constitution, which states, in part:

             The Supreme Court shall make rules governing
             the administration of all courts in the
             State and, subject to the law, the practice
             and procedure in all such courts.

Our courts have uniformly recognized the constitutionality of

the   PFA.     See   e.g.,     Ferreira,      supra,   178    N.J.    at   149   n.1;

Medina, supra, 442 N.J. Super. at 27.                  Moreover, to the extent

that NJAJ also argues that the PFA "was an improper exercise of

legislative       authority"    that   "runs     afoul    of    the    established

methods for creating new rules of evidence," we conclude this

argument     is    without     sufficient      merit     to    warrant     extended

discussion in a written opinion.              R. 2:11-3(e)(1)(E).          See N.J.

State Bar Ass'n v. State, 387 N.J. Super. 24, 50 (App. Div.)

(reaffirming the constitutionality of the PFA and explaining it

does not unconstitutionally infringe on the rules of evidence),

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



                                         36                                 A-0337-14T3
    We   reverse   the    order   dismissing   the   complaint   with

prejudice; reverse the order denying plaintiff's cross-motion to

adjourn the trial date and reopen discovery; and remand for

further proceedings consistent with this opinion.         We do not

retain jurisdiction.     Moreover, the judge has the discretion on

remand to impose, if warranted, other appropriate relief.




                                  37                         A-0337-14T3
