SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1109-20

DOLORES YANEZ and

DOLORES YANEZ o/b/o

the estate of ANTONIO

YANEZ (individually),

Plaintiffs-Appellants, 

v.

PEDRO CORDERO, M.D., 

TRINITAS REGIONAL 

MEDICAL CENTER, 

SECURIAN FINANCIAL 

GROUP, INC., and MINNESOTA 

LIFE INSURANCE COMPANY, 

CUNA MUTUAL GROUP, 

Defendants, 

and 

JEFFREY STIRLING, M.D.,

Defendant-Respondent.

______________________________

Argued March 16, 2022 – Decided April 4, 2022

Before Judges Vernoia and Firko. 

NOT FOR PUBLICATION WITHOUT THE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.
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A-1109-20

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, L-3459-18. 

Anthony R. Fiore, Jr., argued the cause for appellant 

(Gage Fiore, LLC, attorneys; Anthony R. Fiore, Jr., on 

the briefs). 

Michael R. Ricciardulli argued the cause for respondent 

(Ruprecht Hart Ricciardulli & Sherman, LLP, 

attorneys; Michael R. Ricciardulli, of counsel and on 

the brief; Brion D. McGlinn, on the brief). 

PER CURIAM 

In this medical malpractice action, plaintiffs Dolores Yanez (Yanez) and 

the Estate of Antonio Yanez (collectively "plaintiffs") appeal from orders 

granting defendant Jeffrey Stirling, M.D. (Stirling) summary judgment on 

statute of limitations grounds and denying plaintiffs' motion for reconsideration. 

Plaintiffs argue the court erred by failing to: apply the discovery rule to find the 

complaint was timely filed; conduct a hearing to determine the proper trigger 

for the commencement of the limitations period; and find the complaint was 

timely filed through application of the fictitious defendant rule, R. 4:26-4. 

Unpersuaded, we affirm. 

I.

In our review of the record before the trial court, we accept the facts and all 

reasonable inferences therefrom in the light most favorable to plaintiffs because they 
3

A-1109-20

are the parties against whom summary judgment was entered.1 Brill v. Guardian 

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying that standard, the summary 

judgment record before the trial court established the following undisputed material 

facts.

Yanez is decedent Antonio Yanez's (decedent) wife. Decedent was 

admitted to Trinitas Regional Medical Center (Trinitas) on October 13, 2016,

for an interventional radiology procedure. According to Yanez, Pedro Cordero, 

M.D., (Cordero) was decedent's vascular surgeon and decedent said Cordero 

would perform the procedure at Trinitas. 

Yanez was not with decedent when he was admitted to Trinitas because 

she had to attend to an issue related to their son. Yanez went to Trinitas after 

decedent was admitted, and she later testified she saw many doctors, nurses, and 

hospital staff, but she did not know Stirling's identity. Yanez was in the 

1

In accordance with Rule 4:46-2, we glean the facts from Stirling's statement of 

material facts supporting the summary judgement motion, plaintiffs' response to 

Stirling's statement of material facts, and plaintiffs' counterstatement of material 

facts submitted in opposition to the motion. Although we generally limit our de 

novo review of a summary judgment record to the facts set forth in statements 

submitted pursuant to Rule 4:46-2, we note that before the motion court and on 

appeal, the parties rely on facts set forth in Yanez's affidavits and in her 

deposition testimony. We do so as well because Sterling does not object to 

plaintiffs' reliance on such facts for purposes of our de novo review and because 

Stirling is entitled to summary judgment as a matter of law even if we accept

Yanez's version of the facts as related in her testimony and affidavits. 
4

A-1109-20

operating room during decedent's surgery and she observed the procedure, but 

she "did not know who the doctors or staff were." The surgical procedure was 

performed in two parts. Yanez spoke with Stirling during a break after the first 

part of the procedure and then again after the second part of the procedure. She

did not know his identity at that time. On the day following the surgery, October 

14, 2016, decedent passed away while in Trinitas.

Yanez also spoke with Cordero following the surgical procedure, but he 

did not indicate that another doctor performed the surgery. Within a week of 

decedent's death, Yanez received medical records from Trinitas. The records 

were later determined to be incomplete. The records did not identify who 

performed the surgical procedure, and they did not include an operative report 

identifying Stirling as the surgeon. According to Yanez, the records "all 

identified . . . Cordero" as decedent's physician. 

Three months after decedent's death, in January 2017, plaintiffs' counsel 

requested decedent's medical records from Trinitas. Counsel received medical 

records in response to the request, but the records did not include an operative 

report or any record indicating Stirling was decedent's surgeon. A representative 

of plaintiffs' counsel's office was subsequently advised by the records 
5

A-1109-20

department at Trinitas that it did not have an operative report for decedent's 

surgery. 

Almost two years after decedent's death, on October 9, 2018, plaintiffs 

filed a complaint asserting wrongful death medical malpractice, survivorship, 

and tort claims against Cordero, Trinitas, and fictitiously named John Doe 

defendants, including "physicians" who "provided medical care and treatment 

to" decedent in Trinitas. 

On June 5, 2019, Cordero provided answers to plaintiffs' interrogatories 

stating he did not perform the surgical procedure and identifying Stirling as 

decedent's surgeon. Plaintiffs moved for leave to file an amended complaint 

adding Stirling as a defendant. Yanez claimed she was not aware Stirling

performed the October 13, 2016 surgical procedure until Cordero provided his 

answers to interrogatories. The court granted plaintiffs' motion, and, on August 

5, 2019, plaintiffs filed a second amended complaint naming Stirling as a 

defendant and asserting the wrongful death medical malpractice, survivorship, 

and tort claims against him for the first time. Stirling filed an answer to the 

second amended complaint asserting in part that plaintiffs' claims were timebarred under the applicable statutes of limitations. 
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In February 2020, Trinitas supplied additional records to plaintiffs'

counsel. For the first time, the records included an operative report indicating 

Stirling performed decedent's October 13, 2016 surgery. 

Stirling moved for summary judgment, arguing plaintiffs' complaint 

should be dismissed because it was filed against him outside the two-year 

limitations period. More particularly, Stirling asserted the causes of action 

asserted in the second amended complaint accrued on October 14, 2016—the 

date of decedent's death—and the complaint against him was filed more than 

two years later on August 5, 2019. Plaintiffs opposed the motion, arguing the 

statute of limitations should be tolled under the discovery rule because Trinitas 

did not supply complete medical records identifying Stirling as the surgeon and 

they could not have reasonably ascertained they had a claim against Stirling until 

he was identified as the surgeon in Cordero's June 2019 answers to 

interrogatories. For the same reasons, plaintiffs also claimed the complaint 

against Stirling was timely filed under the fictitious defendant rule, R. 4:26-4. 

After hearing argument, the court granted Stirling's motion. In a written 

statement of reasons, the court determined plaintiffs were not entitled to the 

benefit of either the discovery rule or the fictitious defendant rule, R. 4:26-4, 

because the medical records Yanez received within one week of decedent's death 
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referred to Stirling as a physician who provided care and treatment to decedent 

while he was in Trinitas. The court further noted Yanez observed Stirling

perform the surgical procedure, spoke to Stirling about the surgical procedure, 

and knew he was not Cordero, with whom she was otherwise familiar when the 

procedure was performed. 

The court found plaintiffs failed to demonstrate they exercised the due 

diligence required to ascertain Stirling's identity prior to the expiration of the 

limitations period. The court reasoned that plaintiffs' failure did not support

tolling of the statute of limitations under the discovery rule, and, for the same 

reasons, did not support their reliance on the fictitious defendant rule, R. 4:26-

4. The court also rejected plaintiffs' request for a Lopez2 hearing, finding the 

evidence they proffered in support of their request for a hearing did not raise

any factual issues pertinent to the disposition of defendant's claim the complaint 

should be dismissed on statute of limitations grounds.

Plaintiffs filed a motion for reconsideration, asserting the court erred by 

denying their request for a Lopez hearing. The court denied the motion, 

reaffirming its prior determination the evidence plaintiffs proffered in support 

of their hearing request did not raise an issue of fact as to whether plaintiffs 

2

 Lopez v. Swyer, 62 N.J. 267 (1973).
8

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exercised the due diligence required to identify Stirling as a defendant such that 

plaintiffs might be entitled to a tolling of the statute of limitations under the 

discovery rule or the benefit of the fictitious defendant rule, R. 4:26-4. 

Plaintiffs appeal from the court's orders granting Stirling summary 

judgment and denying their motion for reconsideration. 

II.

We conduct a de novo review of an order granting summary judgment, 

Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016), and apply the same 

standard as the trial court, State v. Perini Corp., 221 N.J. 412, 425 (2015). In 

considering a summary judgment motion, "both trial and appellate courts must 

view the facts in the light most favorable to the non-moving part[ies], which in 

this case [are] plaintiff[s]." Bauer v. Nesbitt, 198 N.J. 601, 604 n.1 (2009) (first 

citing R. 4:46-2(c); and then citing Brill, 142 N.J. at 540). Summary judgment

is proper if the record demonstrates "no genuine issue as to any material fact 

challenged and that the moving party is entitled to a judgment . . . as a matter of 

law." Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 

219, 228 (App. Div. 2009) (quoting R. 4:46-2(c)). A court's determination of 

"whether a cause of action is barred by a statute of limitations is a question of 

law that we review de novo." Save Camden Pub. Schs. v. Camden City Bd. of
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Educ., 454 N.J. Super. 478, 487 (App. Div. 2018) (citing Catena v. Raytheon

Co., 447 N.J. Super. 43, 52 (App. Div. 2016)).

Plaintiffs' complaint against Stirling includes a wrongful death claim, a 

survivorship claim, and claims for emotional distress and loss of services. There 

a different statutes of limitations applicable to plaintiffs' claims. The wrongful 

death claim is governed by the two-year statute of limitations in N.J.S.A. 2A:31-

3. See generally Presslaff v. Robins, 168 N.J. Super. 543, 546 (App. Div. 1979) 

(explaining the limitations period for wrongful death claims). The survivorship 

cause of action is governed by the two-year statute of limitations in N.J.S.A. 

2A:15-3. See generally Warren v. Muenzen, 448 N.J. Super. 52, 64-69 (App. 

Div. 2016) (explaining the accrual date for, and running of, the limitations 

period for survivorship actions). Plaintiffs' remaining claims for emotional 

distress and loss of decedent's services are governed by the two-year statute of 

limitations in N.J.S.A. 2A:14-2. 

Plaintiffs' complaint against Stirling was filed on August 5, 2019, almost 

three years after decedent's October 14, 2016 death. They argue the court erred 

by finding the claims against Stirling are time-barred because the limitations 
10 A-1109-20

periods were tolled under the discovery rule.3 More particularly, plaintiffs argue 

the statute of limitations periods on their claims against Stirling did not begin to 

run until they first learned in June 2019 that Stirling was decedent's surgeon. 

They claim that since they filed their complaint against Stirling within two years 

of first learning Stirling was decedent's surgeon, the complaint against him was 

timely filed.

We first note the discovery rule is inapplicable to plaintiffs' wrongful death 

cause of action because N.J.S.A. 2A:13-3 requires the filing of a cause of action 

within two years of decedent's death. See Presslaff, 168 N.J. Super. at 546 (holding 

the discovery rule does not apply to Wrongful Death Act claims). The motion court 

therefore properly rejected plaintiffs' reliance on the discovery rule in granting

summary judgment on their wrongful death claim against Stirling because the 

complaint against him was filed more than two years following decedent's death.

4

 

Ibid.

3

 In making their arguments on appeal, plaintiffs refer only to the two-year 

statute of limitations in N.J.S.A. 2A:14-2. As noted, however, their claims are 

governed by different statutes of limitations and, although each statute includes 

a two-year limitations period, it is necessary to distinguish them because they 

are not identical in all respects. 

4

 We recognize the motion court rejected plaintiffs' reliance on the discovery 

rule as to the wrongful death claim on grounds different than those upon which 
11 A-1109-20

The discovery rule is applicable to plaintiffs' survivorship claim. See Warren, 

448 N.J. Super at 64-69 (explaining the two-year limitations period in N.J.S.A. 

2A:15-3, which governs the limitations period for survivorship actions, is two years 

from the date of injury or its discovery consistent with N.J.S.A. 2A:14-2, as may be 

extended by N.J.S.A. 2A:14-23.1). The discovery rule is also applicable to plaintiffs'

tort claims under N.J.S.A. 2A:14-2. 

The common law discovery rule, first articulated in the medical malpractice 

context in Fernandi v. Strully, 35 N.J. 434 (1961), is a rule of equity that defers a 

cause of action's accrual date to the date the plaintiff knew or was chargeable with 

knowing an injury has occurred and the injury is the fault of another. See Lopez, 62

N.J. at 273-74. It "was developed as a means of mitigating the harsh results which 

flow from a rigid adherence to a strict rule of law." Heyert v. Taddese, 431 N.J.

Super. 388, 435 (App. Div. 2013) (citing Lopez, 62 N.J. at 273-74).

"Whether the discovery rule applies depends on 'whether the facts presented 

would alert a reasonable person, exercising ordinary diligence that he or she was 

injured due to the fault of another.'" Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J.

we rely. Our difference with the court's reasoning is of no moment. We conduct 

a de novo review of its summary judgment order, Globe Motor Co, 225 N.J. at

479, and we review the order and not the court's reasoning, Do-Wop Corp. v. 

City of Rahway, 168 N.J. 191, 199 (2001).
12 A-1109-20

123, 134 (2017) (quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)). 

Under the discovery rule, the running of the statute of limitations begins when the 

plaintiff is aware "through the exercise of reasonable diligence, the facts that 

form the basis for an actionable claim against an identifiable defendant." The

Palisades at Ft. Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427,

435 (2017) (citing Caravaggio, 166 N.J. at 246). "The standard is basically an 

objective one – whether plaintiff 'knew or should have known' of sufficient facts to 

start the statute of limitations running." Elazar, 230 N.J. at 134 (quoting Caravaggio, 

166 N.J. at 246). "[L]egal and medical certainty are not required for a claim to 

accrue." Kendall v. Hoffman-La Roche, Inc., 209 N.J. 173, 193 (2012).

A plaintiff seeking application of the discovery rule bears the burden of

showing "that a reasonable person in her [or his] circumstances would not have

been aware[,] within the prescribed statutory period[,] that she [or he] had been

injured by [the] defendant[']s" conduct. Kendall, 209 N.J. at 197-98. Plaintiffs

failed to sustain that burden here. 

Plaintiffs contend Yanez was unable to identify Stirling as a possible

tortfeasor because the incomplete Trinitas medical records she received during

the two-year period following decedent's death did not reveal Stirling was

decedent's surgeon. Plaintiffs argue Yanez first learned Stirling was the surgeon
13 A-1109-20

in June 2019, when Cordero identified Stirling as the surgeon in his answers to

interrogatories, and, therefore, their claims against Stirling did not accrue until

that time. 

Plaintiffs' argument ignores the medical records provided by Trinitas

within one week of decedent's death identify Stirling four separate times as a

physician who provided care to decedent during the short time he was in the

hospital prior to his death. In a report dated October 13, 2016, the date of

decedent's surgery, Stirling is identified as decedent's "attending" physician. 

Two other reports, from that same day, are electronically signed by Stirling and

include his assessments of post-surgical changes in catheters and support

devices and other information concerning decedent's care and treatment. 

The nurses' notes included in the Trinitas records also identify a "Dr. 

Sterling" as a physician who provided care for decedent. The October 13, 2016 

nurses' notes refer to "Dr. Sterling" twice. The state Dr. Sterling was at

decedent's bedside and reviewed a CT scan, and they separately state Dr.

"Sterling" "advised [the] surgery [department] to transfuse [the] patient

regar[d]less." The record does not include evidence plaintiffs attempted to

identify the "Dr. Sterling" referred to in the nurses' notes or to determine if the

"Dr. Sterling" to which reference is made was the surgeon, the same individual
14 A-1109-20

referenced elsewhere in the records as Stirling, or someone else who provided

care to decedent. 

In any event, the Trinitas records establish that, although plaintiffs were

not immediately provided an operative report identifying Stirling as decedent's

surgeon, within one week of decedent's death plaintiffs had reason to know

Stirling was a physician—an "attending physician"—who provided care and

treatment to decedent. In addition, the nurses' notes clearly indicated that a Dr.

Sterling provided care and treatment to decedent related to the surgical

procedure. In February 2017, Trinitas provided the medical records to plaintiffs'

counsel, and although the records lacked an operative report, they identified

Stirling as a physician who provided care and treatment to decedent, and a

separate Dr. Sterling as physician who provided care and treatment to decedent,

during his tragically short hospital stay at Trinitas.

5

5

 We observe that plaintiffs' timely filed 2018 initial complaint, and 2019 second 

amended complaint which asserted claims against Stirling for the first time, do 

not expressly allege malpractice during the performance of the surgical 

procedure. The complaints more generally allege negligence in the care and 

treatment of decedent during his October 13 and 14, 2016 admission to Trinitas.

Thus, the medical records plaintiffs received shortly after decedent's death and 

their counsel received from Trinitas three months later indicate Stirling was 

involved in the care and treatment of decedent the complaints alleged were 

negligently provided. As such, within a week of decedent's death, plaintiffs had 

medical records identifying Stirling as a provider of care and treatment the 
15 A-1109-20

Moreover, Yanez testified she watched decedent's surgery and spoke to

Stirling initially after the first part of the surgery and again after the second part

of the surgery. She did not know Stirling's name at that time. However,

following the surgery she also spoke with Cordero, with whom she was familiar,

about the surgery. Thus, Yanez knew on the day of the surgery that the doctor

who performed the procedure, with whom she spoke twice, was not Cordero. 

She also knew Cordero was not the surgeon because she watched the surgery

and spoke to the surgeon whose name was not known to her at the time.

Given those circumstances, we reject plaintiffs' claim they are entitled to

the benefit of the discovery rule because Yanez could not have known Cordero

was not the surgeon until he answered interrogatories in June 2019, identifying

Stirling as the surgeon. Yanez's testimony confirms she knew Cordero was not

the surgeon because he was familiar to her and she observed a different doctor,

whose name she did not know, perform the surgery, and she to the surgeon

twice—once during and once after the procedure.

timely filed initial complaint alleged was negligently provided, but plaintiffs did 

not name Stirling as a defendant until almost three years after first receiving the

records. Additionally, and as noted, the nurses' notes also referred to a Dr. 

Sterling as having provided care and treatment to decedent and there is no 

evidence in the record plaintiffs made any effort to determine the identity of that 

doctor or to determine, as is likely, that the Dr. Sterling referred to in the nurses' 

notes is actually Sterling.
16 A-1109-20

Yanez admitted she did not know the name of the surgeon, and the medical

records provided by Trinitas to plaintiffs and their counsel long before the

statute of limitations expired in October 2018 did not identify the surgeon. The

records were not misleading. They did not incorrectly identify the surgeon or

indicate Cordero was the surgeon. Yet, despite the lack of any identification of 

the surgeon in the medical records, the references to Stirling and doctors other 

than Cordero in the records,6 Yanez's observation of a doctor performing the 

surgery who she knew was not Cordero, and Yanez's admitted inability to 

identify the surgeon by name, plaintiffs do not present any evidence of any direct 

effort to ascertain the surgeon's identity prior to the expiration of the two-year 

statute of limitations.

Plaintiffs argue their counsel requested an operative report from Trinitas 

and was advised one did not exist, only to later obtain during discovery an 

operative report identifying Stirling as the surgeon. Plaintiffs' reliance on the 

requests for the operative report, and the late delivery of it to their counsel, does 

not explain or excuse the lack of any other effort to ascertain the identity of the 

surgeon who performed the procedure prior to the expiration of the limitations

6

 The medical records identify other physicians who provided care and treatment

to decedent on October 13 and 14, 2016, including "Dr. Sterling."
17 A-1109-20

period. Again, Yanez testified she not know the identity of the surgeon whose 

malpractice plaintiffs allege caused, or contributed to cause, decedent's death. 

The absence of an operative report providing the surgeon's identity should have 

provided an impetus to diligently look elsewhere so the surgeon could be 

identified and timely named as a defendant. 

The discovery rule delays the accrual of a cause of action "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." R.L. 

v. Voytac, 199 N.J. 285, 299 (2009) (quoting Lopez, 62 N.J. at 272). Where "a

plaintiff knows of an injury and that the injury it due to the fault of another, he

or she has a duty to act." Caravaggio, 166 N.J. at 249-50.

Here, there is no evidence plaintiffs acted diligently to ascertain Stirling's

name prior to the expiration of the limitations periods in the statutes of

limitations applicable to their claims. As the motion court aptly observed,

Yanez could have easily asked Cordero for the surgeon's name either on the day

of surgery or during a follow up inquiry prior to the expiration of the limitations

period. As our Supreme Court has explained,

When a plaintiff knows or has reason to know that he 

has a cause of action against an identifiable defendant

and voluntarily sleeps on his rights so long as to permit 

the customary period of limitations to expire, the 
18 A-1109-20

pertinent considerations of individual justice as well as 

the broader considerations of repose, coincide to bar his 

action.

[Kendall, 209 N.J. at 191 (quoting Farrell v. Votator

Div. of Chemetron Corp., 62 N.J. 111, 115 (1973)).]

For those reasons, we are convinced the motion court correctly concluded that

in the absence of any evidence of a diligent effort to identify Stirling, the

discovery rule did not delay the accrual of plaintiffs' survivorship and tort claims

such as to render the August 2019 complaint against Stirling timely.

Plaintiff also contends her initial complaint, which was filed within two

years of the alleged malpractice and decedent's death, should be deemed timely

as to Stirling under the fictitious defendant rule, R. 4:26-4. In pertinent part, the

Rule provides:

In any action . . . if the defendant's true name is 

unknown to the plaintiff, process may issue against the 

defendant under a fictitious name, stating it to be 

fictitious and adding an appropriate description 

sufficient for identification. Plaintiff shall on motion, 

prior to judgment, amend the complaint to state 

defendant's true name[.]

[R. 4:26-4.]

The Rule allows "a plaintiff who institutes a timely action against a

fictious defendant to amend the complaint after the expiration of the statute of

limitations to identify the true defendant." Viviano v. CBS, Inc., 101 N.J. 538,
19 A-1109-20

548 (1986). When the procedure available under the Rule is "properly utilized,

'an amended complaint identifying the defendant by its true name relates back

to the time of the filing of the original complaint.'" Baez v. Paulo, 453 N.J.

Super. 422, 437 (App. Div. 2018) (emphasis in original) (quoting Viviano, 101

N.J. at 548).

The fictitious party rule "may only be used by a plaintiff 'if a defendant's

true name cannot be ascertained by the exercise of due diligence prior to filing

the complaint.'" Id. at 438 (quoting Claypotch v. Heller, Inc., 360 N.J. Super.

472, 479-80 (App. Div. 2003)). As we explained in Baez, a plaintiff "must

demonstrate two phases of due diligence in order to gain the tolling benefits of

the rule." Id. at 439. A plaintiff must first demonstrate they "exercise[d] due

diligence in endeavoring to identify the responsible defendant[] before filing the

original complaint naming John Doe parties." Ibid. A plaintiff must also

demonstrate they "act[ed] with due diligence in taking prompt steps to substitute

the defendant's true name, after become aware of that defendant's identity." Ibid.

Here, for the reasons we have explained, plaintiffs have not demonstrated 

they exercised due diligence in endeavoring to identify Stirling prior to the filing 

of the initial complaint. Again, the record lacks evidence plaintiffs made any 

effort to ascertain Stirling's name prior to the filing of the complaint even though 
20 A-1109-20

Yanez knew Cordero did not perform the surgical procedure, Yanez knew a 

doctor other than Cordero performed the procedure, and Stirling was mentioned 

four different times in the medical records that were first provided to Yanez one 

week after decedent's death and provided three months later to plaintiffs' 

counsel. 

Plaintiffs simply present no evidence they exercised due diligence to 

ascertain the identity of the surgeon who performed the procedure prior to the 

filing of the initial complaint. They stand in the same shoes as the plaintiff in 

Matynska v. Fried, who asserted a medical malpractice claim, following a 

surgical procedure, against various identified doctors and nurses, as well as 

fictitiously named defendant doctors. 175 N.J. 51, 52 (2002). One of the doctors 

who treated the plaintiff following the surgery was identified twice in the 

medical records as having provided care to the plaintiff, but the doctor was not 

named as a defendant in the original complaint. Ibid. 

The Supreme Court affirmed the trial court's denial of the plaintiff's 

motion to amend the complaint to substitute the unnamed doctor as one of the 

fictitiously named defendants under Rule 4:26-4. Id. at 53. The Court explained 

the plaintiff's "efforts to discover the role of all parties complicit in her injury 

were wholly inadequate at least insofar as" that doctor was concerned. Ibid. 
21 A-1109-20

The Court noted the hospital records included the doctor's name and indicated 

the doctor provided care to the plaintiff. Ibid. The Court also observed that a 

review of a telephone book, a call to another doctor, or a call to the hospital 

would have revealed the doctor's status and therefore would have alerted

plaintiff of the doctor's role in providing the care at issue. Ibid. 

The Court concluded the plaintiff was not entitled to the benefit of the 

fictitious party rule, R. 4:26-4. Ibid. The Court reasoned the plaintiff did not 

"cross the due diligence threshold" because she failed "to investigate all 

potentially responsible parties in a timely manner," and she did not fulfill her 

"primary obligation to investigate" the role of the defendant, whose name 

appeared in the medical records. Ibid.

The same is true here. Stirling's name appeared four times in the medical 

records provided within a week of decedent's death. In one instance, Dr. Stirling 

is identified in the records as decedent's "attending physician." Yet, plaintiffs 

took no action to ascertain his precise role in providing care to decedent—or to 

determine if he was the surgeon whose identity Yanez admitted was not known 

to her—at any time prior to the filing of the initial complaint. We therefore 

conclude, as the Court did in Matynska, that plaintiffs' failure to demonstrate 

due diligence to ascertain the identity of the surgeon, and Stirling's role in the 
22 A-1109-20

care and treatment of decedent based on his name appearing the medical records, 

requires rejection of plaintiffs' reliance on Rule 4:26-4. 

We also find no merit in plaintiffs' argument the court erred by denying 

their request for a Lopez hearing to determine the accrual date of their causes of 

action under the discovery rule. A Lopez hearing provides an opportunity for 

the "equitable claims of opposing parties [to] be identified, evaluated and 

weighed" by the trial court before determining the date upon which a plaintiff 

became aware of the facts giving rise to the cause of action. Lopez, 62 N.J. at 

274. "The burden of proof will rest upon the party claiming the indulgence of 

the rule." Id. at 276. 

"A plaintiff who invokes the discovery rule is not always entitled to a 

hearing. 'A Lopez hearing is only required when the facts concerning the date 

of the discovery are in dispute.'" J.P. v. Smith, 444 N.J. Super. 507, 528 (App. 

Div. 2016) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 336 n.6 

(2010)). Where "the record . . . unquestionably establishes [a] plaintiff's 

awareness of the essential facts, no formal hearing [is] necessary to resolve the 

discovery rule issue." Lapka v. Porter Hayden Co., 162 N.J. 545, 558 (2000). 

Plaintiffs' claim they are entitled to a Lopez hearing is founded on their 

intention to present four witnesses (Yanez, plaintiffs' malpractice expert Dr. 
23 A-1109-20

Benjamin Jackson, plaintiffs' counsel, and Valdary Campos, a Trinitas 

employee). The court reviewed the proffered testimony of Yanez, Dr. Jackson, 

and plaintiffs' counsel, and concluded the proffer did not offer any facts 

pertinent to the delay in plaintiffs' identification of Stirling that did not exist in 

the summary judgment record. Moreover, plaintiffs do not proffer any putative 

evidence Campos might provide at a hearing that would support plaintiffs' 

reliance on the discovery rule. The court also found the summary judgment 

record established all the facts upon which plaintiffs relied in support their 

discovery rule argument, and plaintiff failed to demonstrate the proffered 

testimony was pertinent to determination of the accrual date of the asserted

causes of action. 

Based on our careful review of the record, we discern no abuse of 

discretion in the court's assessment of the proffered testimony and determination 

a Lopez hearing was unnecessary. See Lopez, 62 N.J. at 275 (explaining a trial 

court's decision to conduct a hearing on the accrual date of a cause of action 

under the discovery rule is reviewed for an abuse of discretion). Plaintiffs fail 

to make any showing the court's decision was made without a rational 

explanation, inexplicably departed from established policies, or rested on an 

impermissible basis. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 
24 A-1109-20

N.J. Super. 378, 382 (App. Div. 2015) (explaining the abuse-of-discretion 

standard of review of trial court decisions). We therefore affirm the court's 

denial of plaintiffs' request for a Lopez hearing. For the same reasons, we affirm 

the court's denial of plaintiffs' motion for reconsideration of the order denying 

their request for the Lopez hearing.

Plaintiffs' remaining arguments that we have not directly addressed are 

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). 

Affirmed.