SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0279-22

ESTATE OF JENIFER S. TOWLE

and BRICE TOWLE, as

administrator of the estate of

JENIFER S. TOWLE,

Plaintiffs-Appellants,

v.

HUDSON COUNTY, HUDSON

COUNTY DEPARTMENT OF

CORRECTIONS, and GD 

CORRECTIONAL SERVICES, 

LLC,

Defendants,

and

CFG HEALTH SYSTEMS, LLC, 

Defendant-Respondent.

______________________________

Submitted December 12, 2023 – Decided January 24, 2024

Before Judges Rose and Smith.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-0279-22

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-2674-19.

The Marchese Law Firm, LLC, attorneys for appellants 

(Daniel G. Marchese, of counsel and on the brief).

Holtzman, McClain & Londar, PC, attorneys for 

respondent CFG Health Systems, LLC (Stephen D. 

Holtzman, of counsel; Jeffrey S. McClain, on the brief).

PER CURIAM

Plaintiffs, the Estate of Jenifer S. Towle and her father Brice Towle, in his 

capacity as administrator of the estate, appeal from a May 12, 2020 Law 

Division order granting reconsideration of a March 9, 2020 order and dismissing

their complaint against defendant CFG Health Systems, Inc. The motion court 

found plaintiffs failed to comply with the affidavit of merit statute, N.J.S.A. 

2A:53A-26 to -29. For the following reasons, we affirm.

I.

Jennifer Towle died on July 14, 2017, while in the custody of Hudson 

County Department of Corrections and under the care of CFG Health Systems, 

LLC (CFG), a private correctional healthcare provider. Plaintiffs allege Towle 

suffered from severe psychiatric and mental health issues, causing her to be 

admitted to the jail's infirmary and placed on suicide watch. Plaintiffs further 

allege that hours before her death, Towle complained of excruciating stomach 
3 A-0279-22

pain to CFG staff. An autopsy revealed Towle had ingested foreign items such 

as Styrofoam, plastic wrappers, drink cartons, paper, and a nail clipper. The 

foreign material resulted in a perforated gastric ulcer and ultimately sepsis. 

Plaintiffs filed their complaint on July 1, 2019, alleging failure to properly 

monitor Towle's eating behaviors, address Towle's mental health issues, or 

provide appropriate medical care to Towle. On the case information sheet, 

plaintiffs categorized the case as "Tort-Other."

CFG filed its answer on August 9, 2019, asserting as a defense failure to 

file an appropriate affidavit of merit for a claim of professional negligence as 

required by N.J.S.A. 2A:53A-26. Its answer also provided the names and 

specialties of potentially liable healthcare providers.1 CFG's case information 

sheet identified the case type as medical malpractice.

On November 1, 2019, plaintiffs timely filed and served on CFG the 

affidavit of merit of Dr. Kevin J. Kikta, DO, a physician board certified in 

emergency medicine. Although the court did not schedule a Ferreira2

1

 The potentially liable physicians identified by CFG were advanced nurse 

practitioners, psychologists, and medical doctors board-certified in psychiatry, 

family medicine, internal medicine, and infectious diseases.

2

 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 147 (2003).
4 A-0279-22

conference, neither party requested one. The 120-day statutory window for 

timely submission of affidavits of merit expired on December 7, 2019. 

On December 17, CFG moved to dismiss the complaint. It argued plaintiff 

failed to timely serve an affidavit from a qualified person as required by the 

statute. Plaintiffs filed a cross-motion to extend time to serve an appropriate 

affidavit. The motion court denied CFG's motion in a written opinion and 

extended discovery by sixty days to allow plaintiffs additional time to file 

appropriate affidavits. The court found that while the affidavit of merit statute 

applied and that Dr. Kikta's affidavit of merit was inadequate,3 extraordinary 

circumstances warranted denial of CFG's motion, namely: the merit of 

plaintiffs' claim; plaintiffs' counsel filed an AOM (albeit insufficient) within the 

120-day deadline; the court's failure to schedule a Ferreira conference; and the 

lack of prejudice to CFG given the early stage of litigation. Plaintiffs later 

submitted additional affidavits of merit by a nurse practitioner, a board-certified 

psychiatrist, and a board-certified internal medicine specialist on May 8, 12, and 

14, 2022, respectively.

CFG filed a motion for reconsideration. At the motion hearing, plaintiffs' 

counsel explained that the suit "was inadvertently mislabeled." On May 12, 

3

 The court found that Dr. Kitka was not qualified in the same specialties as the 

potentially liable physicians identified by defendant. 
5 A-0279-22

2020, the court granted reconsideration and dismissed plaintiffs' claims in a 

written opinion. The court found it had "erred only with respect to its analysis 

in finding extraordinary circumstances by undervaluing the plain allegations of 

the [c]omplaint with respect to medical malpractice and overvaluing both 

[p]laintiff[s'] uncertainty that an [affidavit of merit] was required and the 

absence of a Ferreira conference." The court acknowledged CFG filed a timely 

answer, raising the affidavit of merit statute as a defense and providing the 

names and specialties of the medical professionals involved. Citing Paragon 

Contractors, Inc. v. Peachtree Condominium Association, 202 N.J. 415, 423, 426 

(2010), the court reasoned "neither attorney inadvertence nor the court's failure 

to hold a Ferreira conference warrant[ed] a finding of extraordinary 

circumstances" and that plaintiffs "cannot create the extraordinary 

circumstances upon which [they rely]."

On appeal of the court's May 12 order granting reconsideration of the 

court's order dismissing plaintiffs' complaint with prejudice, plaintiffs argue the 

following:

I. THE LOWER COURT IMPROPERLY REVERSED 

ITS OWN DECISION ON 

DEFENDANT/RESPONDENT'S MOTION FOR 

RECONSIDERATION. 
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II. PLAINTIFFS SHOULD NOT BE PENALIZED 

BECAUSE A TIMELY AFFIDAVIT OF MERIT WAS 

INITIALLY FILED, BUT NO FERREIRA 

CONFERENCE WAS SCHEDULED OR 

OTHERWISE HELD BY THE COURT BEFORE 

DEFENDANT/RESPONDENT'S FILED ITS INITIAL 

MOTION TO DISMISS. 

II. 

A decision on a motion for reconsideration is reviewed under the abuse of 

discretion standard. See Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 

(2021). An abuse of discretion is a ruling that "represents a manifest denial of 

justice." In re Estate of Lash, 329 N.J. Super. 249, 263 (App. Div. 2000). 

We review de novo a trial court's decision to dismiss a complaint under 

the affidavit of merit statute. Castello v. Wohler, 446 N.J. Super. 1, 14 (App. 

Div. 2016). We also review de novo a trial court's determination of whether the 

plaintiff has demonstrated extraordinary circumstances as a defense to the 

affidavit of merit statute. Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super. 104, 

113 (App. Div. 2011). 

III. 

We first consider whether the motion court abused its discretion by 

granting reconsideration of its March 9, 2020 order. Plaintiffs contend CFG did 

not argue the court's decision was arbitrary, capricious, or unreasonable, and 
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that CFG only presented a general dissatisfaction with the court's order which is 

not sufficient grounds for reconsideration under Rule 4:49-2. CFG argues that 

Rule 4:49-2 applies only to final orders or judgments, and that the applicable 

rule in this case is Rule 4:42-2 which applies to interlocutory orders. 

 As a preliminary matter, we address the appropriate standard. We recently 

explained and distinguished the two discrete standards a trial court employs in 

reconsideration. Lawson v. Dewar, 468 N.J. Super. 128 (App. Div. 2021). 

"Rule 4:49-2 applies only to motions to alter or amend final judgments and final 

orders, and [it] doesn't apply when an interlocutory order is challenged." 

Lawson, 468 N.J. Super. at 134. A motion for reconsideration of a final order 

pursuant to Rule 4:49-2 is considered under a more demanding standard that 

requires a showing "that the challenged order was the result of a 'palpably 

incorrect or irrational' analysis or of the judge's failure to 'consider' or 

'appreciate' competent and probative evidence." Ibid. (quoting Cummings v. 

Bahr, 295 N.J. Super. 374, 384 (1996)). On the other hand, reconsideration of 

interlocutory orders under Rule 4:42-2 has a "far more liberal approach" in 

comparison: 

Rule 4:42-2 declares that interlocutory orders 

"shall be subject to revision at any time before the entry 

of final judgment in the sound discretion of the court in 

the interest of justice." A motion for reconsideration 
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does not require a showing that the challenged order 

was "palpably incorrect," "irrational," or based on a 

misapprehension or overlooking of significant material 

presented on the earlier application. Until entry of final 

judgment, only "sound discretion" and the "interest of 

justice" guides the trial court, as Rule 4:42-2 expressly 

states.

[Ibid.]

 In its motion papers, CFG, despite its contention on appeal that the court 

should have decided the motion under Rule 4:42-2, moved for reconsideration 

pursuant to Rule 4:49-2. The motion judge, in turn, decided the motion under

the Rule 4:49-2 standard. However, because the March 9 order was not a final 

order or judgment, the motion should have been reconsidered as an interlocutory 

order under the standard set forth in Rule 4:42-2.

 Despite the court's analysis using the heightened Rule 4:42-9 standard, its 

conclusion is nonetheless correct. The court went beyond the appropriate, more 

liberal Rule 4:42-2 standard, which grants wide discretion to amend 

interlocutory orders in the interest of justice and found its own March 9 ruling 

"failed to appreciate the significance of probative, competent evidence." The 

court found that it erred "with respect to its analysis in finding extraordinary 

circumstances by undervaluing the plain allegations of the [c]omplaint with 

respect to medical malpractice and overvaluing both [p]laintiff's uncertainty that 
9 A-0279-22

an [affidavit of merit] was required and the absence of a Ferreira conference." 

The court identified what it viewed as an error in its analysis and sought to 

correct it to conform with the law. Given the liberty our trial courts have to 

revisit an interlocutory order in the interest of justice, we conclude the trial 

court's order granting reconsideration was not an abuse of discretion. 

We now consider the merits of whether plaintiffs' failure to submit a 

timely affidavit of merit is excused by extraordinary circumstances. The 

affidavit of merit statute requires plaintiffs in professional malpractice actions 

to:

within 60 days following the date of filing of the answer 

to the complaint by the defendant, provide each 

defendant with an affidavit of an appropriate licensed 

person that there exists a reasonable probability that the 

care, skill or knowledge exercised or exhibited in the 

treatment, practice or work that is the subject of the 

complaint, fell outside acceptable professional or 

occupational standards or treatment practices. The

court may grant no more than one additional period, not 

to exceed 60 days, to file the affidavit pursuant to this 

section, upon a finding of good cause.

[N.J.S.A. 2A:53-27.]

In medical malpractice actions, N.J.S.A. 2A:53A-41 requires the expert 

executing an affidavit of merit to "be equivalently-qualified to the defendant" 

physician. Buck v. Henry, 207 N.J. 377, 389 (2011). In other words, when a 
10 A-0279-22

defendant is a board-certified specialist, the plaintiffs must provide an affidavit 

of merit from a physician board-certified in the same specialty. See N.J.S.A. 

2A:53A-41(a). 

"The failure to provide an [affidavit of merit] is considered 'a failure to 

state a cause of action' under N.J.S.A. 2A:53A-29 and warrants a dismissal with 

prejudice." A.T. v. Cohen, 231 N.J. 337, 346 (2017) (quoting N.J.S.A. 2A:53-

29). "The core purpose underlying the statute is 'to require plaintiffs . . . to make 

a threshold showing that their claim is meritorious, in order that meritless 

lawsuits readily could be identified at an early stage of the litigation.'" Paragon, 

202 N.J. at 421 (quoting Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 242 

(1998)). 

Recognizing the harsh consequences of failing to comply with the 

procedural requirements created by the statute, the Supreme Court in Ferreira 

issued a mandate to trial courts to conduct a case management conference 

("Ferreira conference") within ninety days of the service of an answer in all 

malpractice actions. Ferreira, 178 N.J. at 154. The court explained:

At the conference, the court will address all discovery 

issues, including whether an affidavit of merit has been 

served on defendant. If an affidavit has been served, 

defendant will be required to advise the court whether 

he has any objections to the adequacy of the affidavit. 

If there is any deficiency in the affidavit, plaintiff will 
11 A-0279-22

have to the end of the 120-day time period to conform 

the affidavit to the statutory requirements. If no 

affidavit has been served, the court will remind the

parties of their obligations under the statute and case 

law.

[Id. at 155.]

In addition to mandating check-in conferences, the Supreme Court has 

carved out equitable exceptions to "temper the draconian results of an inflexible 

application of the statute." Id. at 151. First, "[a] complaint will not be dismissed 

if the plaintiff can show that he [or she] has substantially complied with the 

statute." Id. at 155 (citing Palanque v. Lambert-Woolley, 168 N.J. 398, 405-06 

(2001)). Second, "[w]here extraordinary circumstances are present, a late 

affidavit will result in dismissal without prejudice." Ibid. (citing Cornblatt, 153 

N.J. at 414-15). To determine whether extraordinary circumstances are present, 

the court must engage in "a fact-sensitive [case-by-case] analysis." Tischler v. 

Watts, 177 N.J. 243, 246 (2003) (alteration in original) (quoting Hartsfield v. 

Fantini, 149 N.J. 611, 618 (1997)). 

Our courts have recognized the affidavit of merit statute "does not impose 

overly burdensome obligations. The plaintiff must keep an eye on the calendar 

and obtain and serve the expert's report within the statutory timeframe." 

Ferreira, 178 N.J. at 146. As such, the Supreme Court has firmly established 
12 A-0279-22

"attorney inadvertence will not support the extraordinary circumstances 

standard." Palanque, 168 N.J. at 405; see also Ferreira, 178 N.J. at 152 ("[W]e 

do know that attorney inadvertence is not such a circumstance entitling plaintiff 

to a remedy of dismissal of a complaint without prejudice."). "[P]arties are 

presumed to know the law and are obliged to follow it." Triarsi, 422 N.J. Super. 

at 122. Our Supreme Court has also held that despite the court's obligation to 

conduct a Ferreira conference, the failure to do so is not by itself extraordinary 

circumstances. Paragon, 202 N.J. at 426 ("[G]oing forward, reliance on the 

scheduling of a Ferreira conference to avoid the strictures of the Affidavit of 

Merit statute is entirely unwarranted and will not serve to toll the statutory time 

frames.").

Applying these principles, we conclude the facts presented here do not 

rise to extraordinary circumstances. The record can be summarized as 

expiration of the 120-day calendar, combined with lack of a Ferreira conference. 

The record neither reveals why the court did not schedule a Ferreira conference 

nor why plaintiffs' counsel was unable to comply with the statutory burden or 

seek a Ferreira conference to clarify their statutory obligation. Nonetheless, it 

is well established that the court's oversight in scheduling a Ferreira conference 

will not toll the statutory time frame or constitute extraordinary circumstances 
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by itself. Paragon, 202 N.J. at 426. Similarly, attorney inadvertence does not 

constitute extraordinary circumstances. Palanque, 168 N.J. at 405. These 

circumstances, either individually or in combination, have not been recognized 

as extraordinary. 

Plaintiffs' reliance on Paragon is misplaced. In Paragon, a defendant 

raised the affidavit of merit statute as a defense, but a Ferreira conference was 

never conducted. 202 N.J. at 420. After the 120-day period, the court granted 

defendant's motion to dismiss for failing to comply with the statute. Ibid. The 

Supreme Court reversed, finding extraordinary circumstances due to conflicting 

Appellate Division decisions regarding the tolling effect of a court's failure to 

schedule a Ferreira conference. Id. at 425-26. The Court concluded with the 

firm warning that "going forward, reliance on the scheduling of a Ferreira 

conference . . . is entirely unwarranted and will not serve to toll the statutory 

time frames." Id. at 426. The mixed-signals present in Paragon no longer exist, 

and the case cannot be analogized to the circumstances here. 

Plaintiffs' reliance on Buck is similarly misplaced. In Buck, the plaintiff 

brought a medical malpractice claim against a defendant who was boardcertified in emergency medicine. 207 N.J. at 382. The plaintiff's counsel did 

not know the capacity in which the defendant was practicing at the time, and so 
14 A-0279-22

filed two affidavits from physicians board-certified in psychiatry and emergency 

medicine. Ibid. No Ferreira conference was held, and the trial court dismissed 

the complaint because the defendant certified that he treated plaintiff in his role 

as a practitioner of family medicine, and the affidavits filed were not by 

equivalent specialists. Id. at 383. The Supreme Court reversed, holding "[t]his 

is not a case of a desperate plaintiff unable to find a physician willing to aver to 

a claim of malpractice. . . . Rather, this is a case of a plaintiff who has made 

good-faith attempts to satisfy the statute." Id. at 395. The Court concluded by 

mandating that going forward, physician defendants must include in their answer 

"the field of medicine in which he specialized, if any, and whether his treatment 

of the plaintiff involved that specialty." Id. at 396. 

Here, again plaintiffs' case is distinguishable from Buck. While it is true 

a Ferreira conference was not held in either case, the similarities end there. CFG 

complied with the mandate issued in Buck and identified the relevant medical 

staff by name and specialty. Plaintiffs had every opportunity to produce a timely 

filed affidavit by a similarly equivalent specialist. On this record, we discern 

no extraordinary circumstances.

Affirmed.