NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5665-18
ESTATE OF AUSTIN J.
PISANO, by his
Administratrix ad
Prosequendum, JENNIE
PISANO,
Plaintiff-Appellant,
v.
RUTGERS, THE STATE
UNIVERSITY, THE STATE
OF NEW JERSEY, ROBERT
WOOD JOHNSON HOSPITAL,
COMMUNITY MEDICAL
CENTER, RUTGERS
BIOMEDICAL AND HEALTH
SCIENCES, and DR. MELISSA
M. THOMPSON, M.D.,
Defendant-Respondent.
___________________________
Submitted March 10, 2021 – Decided April 9, 2021
Before Judges Whipple, Rose, and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-3645-19.
Shebell & Shebell, LLC, attorneys for appellant
(Thomas F. Shebell, III, of counsel; Christian R.
Mastondrea, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondents Rutgers, The State University, Rutgers
Biomedical and Health Sciences, and the State of New
Jersey (Melissa H. Raksa, Assistant Attorney General,
of counsel; Meliha Arnautovic, Deputy Attorney
General, on the brief).
PER CURIAM
Plaintiff, Jennie Pisano, the Administratrix Ad Prosequendum for the
estate of her late twenty-year-old son Austin J. Pisano, appeals a June 27, 2019
order denying her motion to file a late notice of claim against defendant s,
Rutgers, The State University, Rutgers Biomedical and Health Sciences, the
State of New Jersey, and Robert Wood Johnson University Hospital (RWJ),1
public entities, pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-
10. We affirm.2
1
RWJ was originally part of the University of Medicine and Dentistry of New
Jersey (UMDNJ). Effective July 1, 2013, pursuant to "The New Jersey Medical
and Health Sciences Education Restructuring Act," N.J.S.A. 18A:64M-1 to -43,
UMDNJ, including RWJ, was transferred to Rutgers, The State University of
New Jersey.
2
The record does not reveal whether defendant Melissa M. Thompson, M.D.
participated in the trial court proceedings.
A-5665-18
2
I.
The following facts are derived from the motion record. On December 8,
2018, plaintiff's decedent suffered a stroke and was treated at Community
Medical Center. Three days later, decedent was transferred to RWJ and
underwent a valve replacement surgery. During these hospitalizations, tests
were administered to decedent to determine the underlying cause of his stroke.
On December 20, 2018, he was diagnosed with candidis endocarditis. Decedent
remained hospitalized at RWJ because he "developed bleeding" and died on
January 25, 2019. Plaintiff was asked if she wanted an autopsy performed, and
her sister responded "yes." Decedent's autopsy report indicated, "the [o]verall
cause of death in this case was due to complications of candidis endocarditis
related to previous intravenous drug use, chronic Hepatitis C viral infection and
subsequent septic emboli."
In her moving certification, plaintiff stated she "was present at the time of
his death," which was "unexpected." Plaintiff certified decedent "asked [her] to
get help as he turned red," and she witnessed the "[c]ode team work on him for
about [forty-five] minutes without success." Plaintiff indicated she was "in a
state of shock" after her son's passing and that she had a difficult time "mourning
A-5665-18
3
from his loss." According to her certification, plaintiff claimed "[n]o one could
offer [her] an explanation as to what had occurred," and she has no "medical" or
"legal" training. In addition, plaintiff had no knowledge as to who was present
when her son passed "or who exactly had been providing care in the last few
weeks" prior to his death.
After his passing, plaintiff certified she "had to come to grips with the
reality that my son would not be coming home." According to plaintiff, she was
never informed that any of the healthcare providers attending to her son were
State employees, and they were not chosen by him or his family. The hospital
consent forms were signed by decedent and not plaintiff.
Plaintiff did not consult with an attorney within ninety days of her son's
death. The TCA notice was due on April 25, 2019. On May 1, 2019, plaintiff's
counsel filed a notice of claim with defendants Rutgers Biomedical and Health
Sciences and the State of New Jersey. On May 9, 2019, plaintiff moved for
leave to file a late notice of claim.
The trial court denied the motion because plaintiff did not establish
extraordinary circumstances that prevented her from filing a timely notice. In
its oral decision following argument, the court stated the "[ninety] -day
requirement can be excused under very limited conditions" and extraordinary
A-5665-18
4
circumstances is a "very strict standard." Citing N.J.S.A. 59:8-9, the court
highlighted how the Legislature chose to "raise the bar" "from what was
previously a fairly permissive standard to a more demanding one." Plaintiff
moved for reconsideration, which was denied. This appeal followed.
On appeal, plaintiff contends the trial court erred in denying her late notice
of claim because she had no knowledge that State employees cared for her son.
II.
"Pursuant to the express terms of the [TCA], we review a trial court's
application of the extraordinary circumstances exception for abuse of
discretion." O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344 (2019) (citing D.D.
v. Univ. of Medicine & Dentistry of N.J., 213 N.J. 130, 147 (2013)); accord
N.J.S.A. 59:8-9 (assigning the determination as to whether late notice may be
filed to "the discretion of a judge of the Superior Court"). "Generally, we
examine 'more carefully cases in which permission to file a late claim has been
denied than those in which it has been granted, to the end that wherever possible
cases may be heard on their merits. . . .'" Lowe v. Zarghami, 158 N.J. 606, 629
(1999) (quoting Feinberg v. DEP, 137 N.J. 126, 134 (1994)). Therefore, "any
doubts" as to whether extraordinary circumstances exist "should be resolved in
favor of the application." Ibid. (quoting Feinberg, 137 N.J. at 134).
A-5665-18
5
The TCA "imposes strict requirements upon litigants seeking to file
claims against public entities." McDade v. Siazon, 208 N.J. 463, 468 (2011).
Chapter eight of the TCA provides that "no action shall be brought against a
public entity or public employee under this act unless the claim upon which it is
based shall have been presented" to the appropriate public entity in a written
notice of claim. N.J.S.A. 59:8-3; see N.J.S.A. 59:8-4 to -7. "A claim relating
to a cause of action for death or for injury or damage to person or to property
shall be presented as provided in this chapter not later than the 90th day after
accrual of the cause of action." N.J.S.A. 59:8-8. However, "the notice
provisions of the [TCA] were not intended as a 'trap for the unwary.'" Lowe,
158 N.J. at 629 (citation omitted). Thus, the Legislature provided:
A claimant who fails to file notice of his claim
within 90 days as provided in section 59:8-8 of this act,
may, in the discretion of a judge of the Superior Court,
be permitted to file such notice . . . within one year after
the accrual of his claim provided that the public entity
or the public employee has not been substantially
prejudiced thereby. Application to the court for
permission to file a late notice of claim shall be made
upon motion supported by affidavits based upon
personal knowledge of the affiant showing sufficient
reasons constituting extraordinary circumstances for
his failure to file notice of claim within the period of
time prescribed by section 59:8-8 of this act or to file a
motion seeking leave to file a late notice of claim within
a reasonable time thereafter[.]
A-5665-18
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[N.J.S.A. 59:8-9 (emphasis added).]
Thus, if a claimant seeks to present a late notice of claim pursuant to the
TCA, "the grant or denial of remedial relief is 'left to the sound discretion of the
trial court, and will be sustained on appeal in the absence of a showing of an
abuse thereof.'" McDade, 208 N.J. at 476-77 (citation omitted). We must adhere
to this standard of review.
"In determining whether a notice of claim under N.J.S.A. 59:8-8 has been
timely filed, a sequential analysis must be undertaken." Beauchamp v. Amedio,
164 N.J. 111, 118 (2000).
The first task is to determine when the claim accrued.
The discovery rule is part and parcel of such an inquiry
because it can toll the date of accrual. Once the date of
accrual is ascertained, the next task is to determine
whether a notice of claim was filed within ninety days.
If not, the third task is to decide whether extraordinary
circumstances exist justifying a late notice.
[Id. at 118-19.]
Typically, a claim accrues at the time of injury or, as in this case, death.
"In the context of a medical malpractice action, a cause of action generally
accrues on the date that the alleged act or omission occurred." Baird v. Am.
Med. Optics, 155 N.J. 54, 65 (1998). See also Beauchamp, 164 N.J. at 117
A-5665-18
7
(stating that a claim accrues on the "date of the incident on which the negligent
act or omission took place").
However, the discovery rule applies when "the victim either is unaware
that he has been injured or, although aware of the injury, does not know that a
third party is responsible." Beauchamp, 164 N.J. at 117. The discovery rule
delays the accrual of a claim until "the injured party discovers, or by an exercise
of reasonable diligence and intelligence should have discovered that he may
have a basis for an actionable claim." McDade, 208 N.J. at 478-79 (quoting
Lopez v. Swyer, 62 N.J. 267, 272 (1973)).
Under the discovery rule, we have previously described the accrual date
as the time which an injured party had "both of the two pieces of information
that are key to the discovery rule, namely an injury and 'facts suggesting that a
third party may be responsible.'" Maher v. County of Mercer, 384 N.J. Super.
182, 188 (2006) (quoting Ayers v. Jackson Twp., 106 N.J. 557, 582 (1987)). In
Maher, we noted that: "In reaching this conclusion, we reject the suggestion that,
for accrual purposes, plaintiff did not have the requisite information within the
contemplation of the discovery rule until she received the May 14, 2004 opinion
letter from her treating physician." Ibid. See also Baird, 155 N.J. at 68; Burd
v. N.J. Tel. Co., 76 N.J. 284, 291-92 (1978).
A-5665-18
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Here, plaintiff asserts her state of grief over the loss of her son was an
extraordinary circumstance. She also asserts the date of accrual was the date
she received the autopsy report and not the date of decedent's death. According
to plaintiff, it is self-evident that the grief she experienced was paralyzing and
no additional proof is necessary to demonstrate why she did not file a timely
notice of claim. However, plaintiff's certification makes no mention of being
incapacitated due to grief—she did not provide a formal diagnosis or an expert
opinion to explain the impact her son's death had on her. Documents in the
record also reveal decedent was given written notice of the possible involvement
of public entities and/or public employees relative to his care. We reject
plaintiff's novel argument that she could not be imputed with knowledge of the
information contained in the documents signed by decedent.
The TCA does not define extraordinary circumstances, and our Court
stated it should be determined on a case-by-case basis. See D.D., 213 N.J. at
148. Generally, severe, debilitating, or uncommon medical conditions may
exceed the extraordinary circumstances hurdle. Compare Maher, 384 N.J.
Super. at 189-90 (finding extraordinary circumstances shown by a plaintiff who
developed a staph infection and was placed in a medically induced coma), with
D.D., 213 N.J. at 150 (stating a plaintiff's diagnosis of stress, anxiety, and
A-5665-18
9
hypertension was considered insufficient to excuse an untimely filing). A
plaintiff must put forth documentary or other evidence explaining why their
circumstances were extraordinary. See, e.g., R.L. v. State-Operated Sch. Dist.,
387 N.J. Super. 331, 340-41 (App. Div. 2016) (concluding extraordinary
circumstances existed after plaintiff explained the trauma his HIV diagnosis
caused); Maher, 384 N.J. Super. at 188 (noting the plaintiff presented a
physician opinion letter and physician's oral statement).
In D.D., the plaintiff was "in absolute shock" after a university publicly
disclosed her private medical information. D.D., 213 N.J. at 137. She
experienced stress and anxiety, which required medical attention. Id. at 138-39.
The trial court permitted her to file a late notice of claim based on two
certifications attesting to the emotional and psychological difficulties she was
experiencing, the effect on her personal and professional life, as well as a
doctor's note attesting to the symptoms. Id. at 139. The Court reversed,
explaining the plaintiff's offer of proof amounted to "vaguely described
complaints of stress and emotional strain," and the doctor's note did not explain
how severe the symptoms were. Id. at 150-51. Allowing an exception based on
limited proof, the Court explained, would contravene the Legislature's intent to
A-5665-18
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heighten the level of proof needed to justify excusing a late filing. Id. at 148,
151.
In the matter under review, the trial court properly noted that plaintiff
grieved and made funeral arrangements for her son, but there were no
extraordinary circumstances shown to prevent plaintiff from filing a timely
notice of claim. The trial court was correct in its analysis. We reject plaintiff's
contention that the accrual date should be deemed the date she received the
autopsy report. The cause of action accrued on January 25, 2019, decedent's
date of death, consonant with the governing law and was not tolled until release
of the autopsy report.
Given plaintiff's insufficient justification for her delay in seeking counsel,
we conclude she did not make a prima facie showing of extraordinary
circumstances under N.J.S.A. 59:8-9. Thus, we find the trial court did not abuse
its discretion in declining to grant plaintiff permission to file a late notice of
claim under N.J.S.A. 59:8-9, or in denying reconsideration.
Affirmed.
A-5665-18
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ESTATE OF AUSTIN J. PISANO, ETC. VS. RUTGERS, THE STATE UNIVERSITY (L-3645-19, MIDDLESEX COUNTY AND STATEWIDE)
Combined Opinion