DHD LITIGATION VICTORY – MARY BETH GAZI SECURES DISMISSAL OF WRONGFUL DEATH LAWSUIT
Mary Beth Gazi recently secured the dismissal of a wrongful death lawsuit against a nurse practitioner based on the statute of limitations. In the lawsuit, the nurse practitioner was not named in the original complaint. After initial written discovery and depositions, plaintiff’s counsel was permitted to amend the complaint to add the nurse practitioner despite the objection of Ms. Gazi that the amendment was improper because the claim was time-barred. Subsequently, Ms. Gazi filed a motion for summary judgment and argued that the claim should be dismissed based on the statute of limitations because the consultation notes contained in the pertinent records clearly listed the nurse practitioner’s name and employer, and the records also contained two typed consultation reports by the nurse practitioner. The motion for summary judgment was opposed by plaintiff who argued that the claim was not time-barred and permissible under the fictitious pleading rule because “John Doe” parties were included in the original complaint. Under New Jersey law, the fictitious pleading rule allows a litigant to preserve a cause of action when the litigant knows the nature of the claim but does not know the identity of the alleged tortfeasor. After a lengthy oral argument, the trial court granted the motion for summary judgment and held that the claim was barred under the statute of limitations. In so ruling, the court rejected plaintiff’s effort to rely on the fictitious pleading rule based on its determination that plaintiff failed to use proper diligence because the nurse practitioner’s identity could have been ascertained by a thorough review of the records before the expiration of the statute of limitations.