[brief] THE COURT SHOULD REVISE THE EXISTING TESTS FOR DETERMINING THE ENFORCEABILITY OF PRE-SUIT ARBITRATION AGREEMENTS.  If the court finds that it is not against public policy to enforce pre-suit arbitration agreements in medical malpractice cases arising out of surgical procedures and/or a patient’s death, the court should adopt a new test to determine enforceability.  The court currently uses multiple tests to determine the enforceability of contracts and arbitration agreements.  However, none of these tests consider the unique circumstances presented in medical malpractice cases.  As a result, these tests should be revised and combined for medical malpractice cases.  In Atalese v. U.S. Legal Services Group, our Supreme Court established a bright-line rule for the enforceability of arbitration agreements: an arbitration agreement must be sufficiently clear to a reasonable consumer that they are waiving their statutory right to seek relief in court, or it is unenforceable.  Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 436 (2014).  In Gershon v. Regency Diving Center, the Appellate Division applied a four-part test to determine whether an exculpatory agreement would be contrary to public policy: an “exculpatory agreement will be enforced if (1) it does not adversely affect the public interest; (2) the excuplated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable. ”  Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 303-04 (2010) (citing Gershon, Adm'x Ad Prosequendum for Estate of Pietroluongo v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 248, (App. Div. 2004)).  To determine whether a contract contains unequal bargaining power courts will evaluate four factors: “[1] the subject matter of the contract, [2] the parties' relative bargaining positions, [3] the degree of economic compulsion motivating the 'adhering' party, and [4] the public interests affected by the contract."  Estate of Anna Ruszala, ex rel. Mizerak v. Brookdale Living Communities, Inc., 415 N.J. Super. 272, 288 (App. Div. 2010) (citing Rudbart v. Water Supply Com’n, 127 NJ 344, 356 (1992)).  The “Rugbeer test” would be a modification and combination of these three tests.  Under the test, a pre-suit arbitration agreement in a medical malpractice case would only be enforceable if: (1) the agreement clearly and unambiguously states that the party is waiving their right to seek relief in court (Atalese); (2) the agreement does not adversely affect public interest (Gershon); (3) the agreement is not the result of unconscionability or unequal bargaining power (Gershon), based on the subject matter of the contract (Rudbart), the parties' relative bargaining positions (Rudbart), the degree of economic compulsion motivating the adhering party (Rudbart), and the public interests affected by the agreement (Rudbart).  The “Rugbeer test” will allow courts to adhere to New Jersey and federal policy in favor of arbitration while ensuring that the agreement is not unjust and inequitable.  If the “Rugbeer test” was applied to the present case, the arbitration agreement would be undoubtedly unenforceable because the agreement is contrary to public interest and is unconscionable due to unequal bargaining power.  Therefore, the court should adopt the “Rugbeer test” if it holds that pre-suit medical malpractice arbitration agreements are not per se against public policy.