SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0227-19T1

MARIA C. PETERS,

Plaintiff-Appellant,

v.

THOMAS K. JOHN, M.D., JUSTIN

MENDOZA, M.D. and ACTIVE

ORTHOPEDICS & SPORTS

MEDICINE,

Defendants-Respondents.

________________________________

Argued November 17, 2020 – Decided

Before Judges Yannotti and Haas.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-1259-19.

Winnie Ihemaguba argued the cause for appellant.

Robert E. Spitzer argued the cause for respondents 

(MacNeil, O'Neil & Riveles, LLC, attorneys; Lauren K. 

O'Neill, of counsel; Robert E. Spitzer and Ethan 

Lillianthal, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 7, 2020
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Plaintiff Maria Peters appeals from an August 2, 2019 order dismissing 

her complaint against defendants Thomas K. John, M.D., Justin Mendoza, D.O.,1

and Active Orthopedics & Sports Medicine, L.L.C. with prejudice. The motion 

judge concluded that: (1) plaintiff's claim sounded in professional medical 

malpractice; (2) the common knowledge exception did not apply, and an 

affidavit of merit (AOM) was required, which plaintiff failed to furnish. We 

agree and affirm.

On March 16, 2016, Dr. John performed bilateral knee replacement 

surgery upon plaintiff. Following the surgery, plaintiff returned to Dr. John and 

complained about "excruciating pain in her left knee." Dr. John did not have an 

MRI, CT scan, or bone scan performed and "prescribed a cream for [p]laintiff's 

knee." Dr. John also referred plaintiff to another physician in his practice, Dr. 

Mendoza,2 who prescribed cortisone injections to ease plaintiff's pain. 

According to plaintiff, Dr. Mendoza did not perform any scans of her knee 

before prescribing this medication. 

1

 Incorrectly referred to as Justin Mendoza, M.D. in plaintiff's complaint.

2

 Both doctors were employed by defendant Active Orthopedics & Sports 

Medicine, L.L.C.
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Plaintiff alleged that the pain in her left knee got worse following the 

injections and she eventually had to have another knee replacement device 

installed. In her February 15, 2019 complaint, plaintiff claimed that Dr. John 

and Dr. Mendoza both "breach[ed] . . . the applicable standard of medical care[,] 

. . . which resulted in the faulty replacement knee surgery and the misdiagnosis 

and failure to perform any corrective knee replacement surgery" or address her 

complaints of pain in the knee.

Defendants filed an answer and demanded that plaintiff submit an AOM 

covering their "respective specialties of physical medicine/rehabilitation and 

orthopedics." The trial court conducted a Ferreira3 hearing and determined that 

an AOM was required. The court ordered plaintiff to serve defendants with the 

AOM no later than May 24, 2019, although the order also stated that plaintiff 

could apply for an extension of that deadline. Plaintiff requested additional time 

to produce the AOM, and the judge set July 12, 2019 as the new due date.

When plaintiff failed to submit the required AOM by that date, defendants 

filed a motion to dismiss her complaint. In response, plaintiff alleged that she 

had attempted to obtain an expert to prepare an AOM, but had been unable to 

locate anyone who was willing to do so. At that point, plaintiff alleged for the 

3

 Ferreira v. Rancocas Orthopedics Assocs., 178 N.J. 144, 154 (2003).
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first time that her case fell under the common knowledge exception to the AOM 

requirement and, therefore, an expert's report was not required.

At oral argument on defendants' motion, plaintiff's attorney stated that 

plaintiff had recently undergone a second replacement surgery, this time on her 

right knee, and she indicated she would file an amended complaint to include 

the additional damages her client allegedly incurred as a result of having to 

undergo this surgery. Plaintiff's attorney also stated she would include more 

specific allegations in the complaint concerning defendants' failure to conduct 

appropriate testing when plaintiff presented them with her complaints of pain.

However, plaintiff's attorney did not bring the amended complaint to court 

and never filed a motion to file this pleading. Thus, the motion judge made clear 

that the information plaintiff attempted to interject had no impact on the question 

at hand, that is, whether an AOM was required in this medical malpractice case.

Following oral argument, the judge answered that question in the 

affirmative and dismissed plaintiff's complaint with prejudice. In so ruling, the 

judge rejected plaintiff's contention that this matter fell within the common 

knowledge exception to the AOM statute. This appeal followed.
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On appeal, plaintiff repeats the same argument she unsuccessfully 

presented to the motion judge and argues that an AOM was not required here 

because this is a "common knowledge case."4 We disagree.

N.J.S.A. 2A:53A-27 states that a plaintiff pursuing a claim for injuries 

"resulting from an alleged act of malpractice or negligence of a licensed person 

in his profession or occupation," must provide an affidavit by an appropriatelylicensed person who attests under oath "that there exists a reasonable probability 

that the care, skill or knowledge exercised" by the defendant deviated from 

accepted professional standards. "The submission of an appropriate [AOM] is 

considered an element of the claim." Meehan v. Antonellis, 226 N.J. 216, 228 

(2016) (citing Alan J. Cornblatt, PA v. Barow, 153 N.J. 218, 244 (1998)).

The AOM must be furnished within 60 days of the filing of defendant's 

answer, but the time may be extended up to 120 days for good cause. N.J.S.A. 

2A:53A-27. If the plaintiff does not file the AOM within the required time, the 

4

 Plaintiff also argues that the motion judge improperly considered "facts 

outside of the pleadings" and, therefore, should have converted defendants' 

motion to dismiss into a motion for summary judgment. As noted above, 

however, the judge found that the additional facts plaintiff's attorney raised at 

oral argument had no bearing on the question of whether an AOM was required. 

Accordingly, the judge correctly considered defendants' motion under Rule 4:6-

2(e). Therefore, plaintiff's contention on this point is without sufficient merit to 

warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
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complaint is dismissed with prejudice unless the plaintiff's failure to file it was 

due to extraordinary circumstances, not present here. Ferreira, 178 N.J. at 151.

However, a plaintiff need not provide an AOM in a so-called common 

knowledge case. Hubbard v. Reed, 168 N.J. 387, 394 (2001). The common 

knowledge doctrine is an exception to the general rule that professional 

negligence must be established by expert testimony. Sanzari v. Rosenfeld, 34 

N.J. 128, 141 (1961). A common knowledge case is one in which

an expert is not needed to demonstrate that a defendant 

breached a duty of care. The doctrine applies where 

"jurors' common knowledge as lay persons is sufficient 

to enable them, using ordinary understanding and 

experience, to determine defendant's negligence 

without the benefit of the specialized knowledge of 

experts."

[Hubbard, 168 N.J. at 394 (quoting Estate of Chin v. St. 

Barnabas Med. Ctr., 160 N.J. 454, 469 (1999))].

Our Supreme Court has cautioned that the common knowledge exception 

must be construed "narrowly in order to avoid noncompliance with the statute." 

Id. at 397. Thus, for example, the doctrine has been applied when a dentist 

pulled the wrong tooth. Id. at 396. See also Palanque v. Lambert-Woolley, 168 

N.J. 398, 407 (2001) (applying common knowledge doctrine to misdiagnosis 

resulting from misreading of numbers on a lab chart); Estate of Chin, 160 N.J. 

at 460 (finding that an AOM was not needed where equipment was used that 
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pumped gas, rather than the fluid that should have been used, into the patient); 

Bender v. Walgreen Eastern Co., Inc., 399 N.J. Super. 584, 591-92 (App. Div. 

2008) (holding that the common knowledge exception applies to a pharmacist 

filling a prescription with a drug other than the one prescribed); Becker v. 

Eisenstodt, 60 N.J. Super. 240, 242-46 (App. Div. 1960) (applying the doctrine 

when a caustic solution, rather than the soothing medication intended, was used 

to treat a patient's nose after surgery).

Applying these principles, we are satisfied that the common knowledge 

doctrine does not apply to this case. Here, plaintiff claimed that defendants 

deviated from accepted standards of medical care by, in the case of Dr. John, 

performing the bilateral knee replacement surgery and, in the case of both 

doctors, determining the appropriate testing regime and treatment for plaintiff 

after she complained of pain following her operation.

Simply stated, jurors cannot be expected to know the particulars of how 

knee replacement surgery is performed, the criteria for selecting the hardware 

used during the operation, the types of testing available and warranted when a 

patient complains of post-operative pain, and the various treatment regimens 

that may be thereafter employed. Accordingly, we are convinced that the jurors 
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would not, based on their own common knowledge and experience, be capable 

of determining the standards of care applicable to plaintiff's claims.

Therefore, plaintiff was required to produce an AOM in this case. 

Because she did not, the motion judge properly dismissed her complaint with 

prejudice.

Affirmed.