NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3361-20

A-3362-20

A-3363-20

SHENISE MONK and JORDI 

WILSON, on behalf of their 

minor son, J.W.,

Plaintiffs-Respondents,

v. 

KENNEDY UNIVERSITY

HOSPITAL, INC., d/b/a 

JEFFERSON HEALTH1,

SOPHIA VOGIATZIDAKIS, D.O., 

TOMAS ROTSCHILD, M.D., 

and LLOYD TINIANOW, M.D., 

Defendants-Appellants,

and

STEPHAN HOSMER, D.O.,

SUSAN JANECZEK, D.O., and

KEITH WILLIAMS, D.O.,

Defendants-Respondents.

____________________________

Argued May 3, 2022 – Decided July 14, 2022

1

 Improperly pled as KENNEDY UNIVERSITY HOSPITAL, INC. AND 

KENNEDY UNIVERSITY HOSPITALS MATERNAL FETAL MEDICINE. 
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Before Judges Fisher, Smith and Berdote Byrne.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Camden County, 

Docket No. L-3527-20.

Walter F. Kawalec, III argued the cause for appellants 

Tomas Rotschild, M.D. and Lloyd Tinianow, M.D. 

(Marshall, Dennehey, Warner, Coleman & Goggin, 

attorneys; Walter F. Kawalec, III, on the briefs). 

Andrew S. Winegar argued the cause for appellant 

Kennedy University Hospital, Inc. (Parker McCay, PA,

attorneys; Thomas M. Walsh and Andrew S. Winegar, 

on the briefs). 

Paul E. Peel argued the cause for appellant Sophia 

Vogiatzidakis, D.O. (O'Brien & Ryan, LLP, attorneys; 

Anthony DeMichele, Jaime N. Johnson and Paul E. 

Peel, on the brief). 

Michael C. Pacholski argued the cause for respondent 

Stephan Hosmer, D.O. (Stahl & DeLaurentis, PC, 

attorneys, join in the briefs of appellants Tomas 

Rotschild, M.D., Lloyd Tinianow, M.D., Kennedy 

University Hospital, Inc. and Sophia Vogiatzidakis, 

D.O.).

Elizabeth A. Crawford argued the cause for respondents 

Shenise Monk and Jordi Wilson (Kline & Specter, 

attorneys; Elizabeth A. Crawford and Michelle A. 

Paznokas, on the briefs).

The opinion of the court was delivered by 

BERDOTE BYRNE, J.S.C. (temporarily assigned).
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In these three consolidated interlocutory appeals, we consider whether the 

trial court erred in denying summary judgment to defendants, who moved to 

dismiss plaintiffs' complaint as untimely because it was filed four and a half 

years after decedent's death. Plaintiffs, Shenise Monk and Jordi Wilson, parents 

of J.W., filed a complaint on behalf of their son seeking damages stemming from 

J.W.'s death at age six months. The trial court allowed the action to proceed by 

applying the minority tolling provision found in N.J.S.A. 2A:14-2(a). We find 

minority tolling applies only to actions brought on behalf of minors, and not to 

actions brought on behalf of decedents or their estates. The causes of action 

available to plaintiffs were limited to wrongful death and survival claims, each

of which applies a two-year statute of limitations. We vacate the orders denying 

summary judgment but remand the matters to the trial court because it did not 

address plaintiffs' alternative argument that they had substantially complied with 

these statutes of limitations.

Monk became pregnant with J.W. in the early fall of 2015, after a 

significant history of documented pre-term deliveries and prior miscarriages. 

Between November 3, 2015, and January 4, 2016, Monk received prenatal care 

from various defendants. When she was approximately twenty-four weeks 

pregnant, Monk was admitted to Kennedy University Hospital (Kennedy) with 

complaints of cramping. She was discharged on January 5, 2016, but later that 
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morning began to experience the onset of labor and was readmitted to Kennedy,

where J.W. was delivered by emergency cesarean section. J.W. was admitted to 

the neonatal intensive care unit then transferred to Children's Hospital of 

Philadelphia, where he remained for six months until he passed away on July 

10, 2016. 

More than four years later, on October 26, 2020, plaintiffs sued Kennedy, 

Stephan Hosmer, Susan Janeczek, Keith Williams, Sophia Vogiatzidakis, Tomas 

Rotschild, and Lloyd Tinianow, alleging that negligence in Monk's and J.W.'s 

care resulted in J.W.'s death. The five-count complaint alleged medical 

malpractice, negligence, corporate negligence, and a claim pursuant to the 

Wrongful Death Act, N.J.S.A. 2A:31-4. Although the complaint alleged

negligence and medical malpractice regarding both Monk's prenatal care and 

J.W.'s delivery and care at Kennedy, on appeal plaintiffs concede "[t]he instant 

matter is being brought on behalf of [m]inor plaintiff only." 

Defendants moved for summary judgment, arguing plaintiffs' claims were 

time-barred by the two-year statutes of limitations for wrongful death and 

survival claims. The trial court denied the motions, concluding N.J.S.A. 2A:14-

2(a) allows minors to file medical malpractice claims resulting from injuries at 

birth until the minor is thirteen "or would have been thirteen" but for the child's 

death, stating "the Legislature . . . certainly didn't make it crystal clear that when 
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the statute was amended twenty years ago for medical malpractice at birth cases 

that they intended to" make a distinction between minors who died and minors 

who survived. The trial court concluded the statutes of limitations were tolled 

until July 10, 2029, the date J.W. would have become thirteen years old had he 

not died. The court did not address plaintiffs' alternative argument that they had 

substantially complied with a two-year limitations period. We granted leave to 

appeal.

We review a grant or denial of a motion for summary judgment de novo. 

Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). Rule 4:46-2(c) 

provides that a motion for summary judgment shall be granted "if the pleadings, 

depositions, answers to interrogatories and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact 

challenged and that the moving party is entitled to a judgment or order as a 

matter of law." "To decide whether a genuine issue of material fact exists, the 

trial court must 'draw[] all legitimate inferences from the facts in favor of the 

non-moving party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration 

in original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). 

Pursuant to the Survival Act, any cause of action a potential plaintiff had 

during his or her lifetime survives the decedent's death and the executor or 

administrator of the decedent's estate may sue on that action. See N.J.S.A. 
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2A:15-3. A wrongful death action may also result from that death and a claim 

must be brought "in the name of an administrator ad prosequendum or 

administrator of the decedent for whose death damages are sought . . . ." 

N.J.S.A. 2A:31-2(a). 

The statute of limitations for both a wrongful death and survival action is 

two years. Plaintiffs argue the complaint was brought "on behalf of minor 

plaintiff only" and "there are no separate claims for his parents." Therefore, 

they argue, and the trial court concluded, the minority tolling provision of

N.J.S.A. 2A:14-2(a) applies to render the complaint timely filed.

"The goal in statutory interpretation is 'to discern and effectuate the intent 

of the Legislature.'" L.A. v. N.J. Div. of Youth & Fam. Servs., 217 N.J. 311, 

324 (2014) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 

(2012)). Courts look first to the plain language of a statute; if the language is 

clear as to the statute's meaning, the court must enforce the statute in accordance 

with its terms. Ibid. "However, '[i]f the plain language of a statute is ambiguous 

or open to more than one plausible meaning,' the court may look to sources of 

extrinsic evidence such as legislative history for assistance in determining 

legislative intent." Ibid. (quoting State v. Marquez, 202 N.J. 485, 500 (2010)).

Decedent was not alive when the complaint was filed. N.J.S.A. 2A:14-

2(a) does not apply because that statute allows only "an action by or on behalf 
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of a minor." The word "minor" denotes a living human being: "an infant or 

person who is under the age of legal competence." Black's Law Dictionary 1193

(11th ed. 2019).

2

 Because the child was deceased at the time of the filing of the 

complaint, plaintiffs' remedies were limited to actions on behalf of the minor's 

estate and actions by the beneficiaries of that estate, through the Survival Act 

and wrongful death statutes. Warren v. Muenzen, 448 N.J. Super. 52, 63 (App. 

Div. 2016) ("[A]ctions under the WDA and the Survivor Act arise from the 

identical occurrence, i.e. the death of the plaintiff . . . ."). Plaintiffs' continual 

use of the phrase "minor plaintiff" is inappropriate as that term has no 

application to a deceased individual, who has no standing of his own to sue. 

See, e.g., In Re Baby T, 160 N.J. 332, 340 (1999) ("Standing generally refers to 

the plaintiff's entitlement to bring and maintain a suit, which rests on the party's 

stake in the outcome of the litigation . . . ."). Because J.W. tragically died at six 

months of age, he had no stake in the outcome of the litigation at the time the 

complaint was filed.

2

 New Jersey statutes generally compare minors to individuals who have 

reached the age of majority, noting the disaffirming effect minority has on the 

ability to transact, contract, or participate in certain enumerated activities. See, 

e.g., N.J.S.A. 9:17B-1 to -4 (the age of majority statute, which governs legal 

capacity to contract, sue and be sued, serve on juries, marry, and adopt children; 

and disallowing minors from participating in those activities); N.J.S.A. 46:38A2 (governing transfers to minors, defined as "an individual who has not attained 

the age of 21."). 
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The Legislature specifically addressed liability for acts that occurred to a 

person who has died when it drafted the Wrongful Death Act and plainly

intended all wrongful death cases be filed within two years of a decedent's death. 

Because the Act is limited in its application to those already deceased, had the 

Legislature intended to apply minority tolling to claims brought on behalf of 

deceased minors, it would have stated so explicitly. It did not, and it is not the 

province of this court to add, as plaintiffs urge, minority tolling to the Act's 

language. Nothing in the plain meaning of the statute suggests the Legislature 

intended minority tolling to apply to minor decedents.

Plaintiffs cite to LaFage v. Jani, 166 N.J. 412 (2001), to assert minority 

tolling applies to wrongful death claims. Plaintiffs' reliance is misplaced as the 

facts of LaFage are inapposite. LaFage involved an untimely wrongful death 

suit brought on behalf of minors, two years and twenty-eight days after the death 

of their parent. The Supreme Court applied minority tolling to the claim brought 

on behalf of the minors, not the decedent. Nothing in LaFage suggests minority 

tolling applies to a claim brought on behalf of a deceased minor.

Decedent died on July 10, 2016, and any wrongful death claim he may 

have possessed during his lifetime passed to his beneficiaries. Plaintiffs' 

recourse to seek damages for decedent's wrongful death must have been filed by 
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July 10, 2018. As the complaint was filed on October 26, 2020, the action is 

time-barred.

The limitations period governing a survival claim varies according to the 

statute of limitations applied to the underlying action. Plaintiffs' underlying 

claims sound in negligence and malpractice. In general, personal injury claims 

are subject to a two-year statute of limitations. N.J.S.A. 2A:14-2(a). But New 

Jersey law has long provided for "statutory tolling for minors for . . . 'personal 

injuries.'" LaFage, 166 N.J. at 424. N.J.S.A. 2A:14-21 provides if a person 

entitled to bring an action subject to N.J.S.A. 2A:14-2 or certain other sections 

is under eighteen years old or mentally disabled at the time the action accrues, 

"the person may commence the action . . . within the time as limited by those 

statutes, after reaching majority or having the mental capacity to pursue the 

person's lawful rights." N.J.S.A. 2A:14-21. "The purpose of tolling the statute 

of limitations for minors is to 'protect minors who presumably are not wellversed in legal . . . matters, from the adverse consequences of their 

inexperience.'" LaFage, 166 N.J. at 430 (quoting Green v. Auerbach Chevrolet 

Corp., 127 N.J. 591, 600 (1992)). 

In 2004, the Legislature amended N.J.S.A. 2A:14-2 and N.J.S.A. 2A:14-

21 to limit minority tolling in cases of medical malpractice, only for injuries 
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sustained at birth, to age thirteen, not age eighteen. N.J.S.A. 2A:14-2 states in 

full:

a. Except as otherwise provided by law, every

action at law for an injury to the person caused by the

wrongful act, neglect or default of any person within

this State shall be commenced within two years next

after the cause of any such action shall have accrued;

except that an action by or on behalf of a minor that has

accrued for medical malpractice for injuries sustained

at birth shall be commenced prior to the minor's 13th

birthday.

b. In the event that an action by or on behalf of a

minor that has accrued for medical malpractice for

injuries sustained at birth is not commenced by the

minor's parent or guardian prior to the minor's 12th

birthday, the minor or a person 18 years of age or older

designated by the minor to act on the minor's behalf

may commence such an action. For this purpose, the

minor or designated person may petition the court for

the appointment of a guardian ad litem to act on the

minor's behalf.

As amended, N.J.S.A. 2A:14-21 now concludes: "[n]otwithstanding the 

provisions of this section to the contrary, an action by or on behalf of a minor 

that has accrued for medical malpractice for injuries sustained at birth shall be 

commenced prior to the minor's 13th birthday, as provided in N.J.S.[A.] 2A:14-

2." 

The parties all argue application of the minority tolling provision of 

N.J.S.A. 2A:14-2(a) to a deceased minor's claim turns on the meaning of the 

phrase "prior to the minor's 13th birthday." Defendants contend the term
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"birthday" excludes decedent, arguing that only living people have birthdays. 

Plaintiffs, and the trial court, posit that birthdays are often socially 

acknowledged and celebrated for famous persons and family members who have 

passed away. We disagree with the trial court and refrain from inferring broader 

meaning to the Legislature's words. The plain legal meaning of "minor's 13th

birthday," particularly as informed by the purpose of the tolling statute as set 

forth in LaFage – to protect minors from their inexperience – underscores the 

Legislature's intent that only living minors have birthdays.

3 We reach the same 

conclusion because "minor" is defined as limited to living beings: minority 

tolling applies only to actions brought "by or on behalf of minors," not actions 

brought on behalf of decedents or their estates.

Furthermore, the concept of minority tolling has no logical application to 

a decedent's claims, even where the decedent was a minor when he or she passed 

away. The purpose of minority tolling is to preserve claims until the minor 

3 Examining similarly-worded statutes, courts in other jurisdictions have 

rejected arguments that "birthday" as used in such statutes referred to the 

anniversary of a deceased minor's birth. In Dachs v. Hendrix, 354 S.W.3d 95, 

100 (Ark. 2009) (quoting Ark. Code Ann. § 16-114-203(c)(1)), for example, the 

Supreme Court of Arkansas determined that a minority tolling provision --

which gave a minor "until the later of the minor's eleventh birthday or two (2) 

years from the act, omission, or failure in which to commence an action" for 

medical malpractice -- was inapplicable, reasoning that "[t]he tragic reality of 

this case is that [the decedent] was stillborn and will not have an eleventh 

birthday."
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achieves sufficient maturity to be held accountable for the assertion of legal 

rights, a circumstance that ceases to exist once a minor dies. The extent of 

damages resulting from alleged negligence is often unknowable for minors, 

whose mental, physical, and emotional growth may continue for years after the 

incident giving rise to the claim. In contrast, the extent of damages resulting 

from negligence is fully ripe and quantifiable in a decedent. 

Schwarz v. Pub. Serv. Transp. Co., 8 N.J. Misc. 182, 187 (Cir. Ct. 1930),4

considered whether minority tolling terminates upon the death of the minor and 

held:

[W]here a cause of action accrues to an infant, who later 

dies before reaching his majority . . . the disability 

protected by section 4 of our statute of limitations is 

removed by the infant's death, and . . . his representative 

must bring suit on such cause of action, within the 

period limited after his death.

[Ibid.]

The court reasoned that an adult's death does not interrupt the statute of 

limitations in a survival act claim because that claim passes to decedent's legal 

4 The Circuit Court in 1930, prior to the extensive overhaul of the New Jersey 

judicial system by the New Jersey Constitution of 1947, was presided over by a 

justice of the Supreme Court. Jurisdiction of the Circuit Court was concurrent 

with the Supreme Court for non-criminal cases within the county. Judiciary 

Branch Archive, N.J. Dep't of State,

https://www.nj.gov/state/archives/catjudiciary.html (last visited June 24, 2022).
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representative. "There is no reason whatever why the kin of a minor should be 

favored over those of an adult under such circumstances." Id.

If the persons who are the beneficiaries of a cause 

of action may choose their own time for applying for 

the appointment of an administrator and consequently 

for setting the statute running, the two-year period of 

limitation, so far as it applies . . . . might well have been 

omitted from the statute . . . .[i]n view of the purpose of 

the statute of limitations, []a savings clause in favor of 

infants and insane persons should not be extended 

beyond the plain requirements of their disability, so as 

to protect indefinitely persons who are not in need of 

such protection. 

[Id. at 186-87.]

The logic set forth in Schwarz remains equally sound almost one hundred years 

later. Plaintiffs are not entitled to the protection afforded to minors for their 

own disabilities, and the minority tolling provision does not apply to their

claims. 

Indeed, applying N.J.S.A. 2A:14-2(a)'s minority tolling provision to these 

circumstances would upset the stated purpose behind its enactment. The 

amendments are intended to limit minority tolling, not expand it. In general, the 

statute of limitations on medical malpractice claims is two years, but will be 

tolled for minors until age eighteen, pursuant to the statute's longstanding 

minority tolling provision. Rather than extending protection to minors, the 2004 

amendments curtailed minority tolling to a shorter period, a minor's thirteenth 
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birthday, in cases of "medical malpractice for injuries sustained at birth . . . . "

N.J.S.A. 2A:14-21. The legislative history makes clear the amendments were 

intended to limit claims as they were enacted with the New Jersey Medical Care 

Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42, 

which "provide[d] for a comprehensive set of reforms affecting the State's tort 

liability system" in response to "a dramatic escalation in medical malpractice 

liability insurance premiums." N.J.S.A. 2A:53A-38. 

The stated purpose of minority tolling is to enable a minor to attain a level 

of life experience or comprehension sufficient to hold him or her accountable 

for legal decision-making, an eventuality that can never be met by a deceased 

minor. We hold N.J.S.A. 2A:14-2(a)'s minority tolling provision applies to suits 

brought by or on behalf of a minor and is inapplicable to suits brought on behalf 

of minor decedents or their estates, and the trial court erred in its application of 

minority tolling. 

We are mindful plaintiffs also argued they substantially complied with the 

applicable statutes of limitations. The trial court did not rule on this issue. We 

express no view about whether plaintiffs have presented a viable claim of 

substantial compliance but instead remand for its consideration.
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The orders denying summary judgment are vacated and the matters are

remanded for further consideration by the trial court of plaintiffs' alternative 

argument of substantial compliance. We do not retain jurisdiction.