Defense Digest

Procedural "Punch" Taken out of the Affidavit of Merit Statute

All legal practitioners in the state of New Jersey need to be aware of the New Jersey Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 et seq., because legally meritorious cases can be won or lost due to civil procedural prowess.   The aim of this article is to provide useful information about the New Jersey Affidavit of Merit Statute to persons planning the defense of a professional liability case in light of two new cases decided by the Supreme Court of New Jersey in November of 2003, which take some of the "punch" out of the Statute's previous procedural sting and which restore the Statute's underlying purpose of allowing only meritorious claims to proceed.

The New Jersey Affidavit of Merit Statute, which was enacted in 1995, was intended to reduce the filing of frivolous negligence claims against certain specified "licensed persons."  The Statute requires a plaintiff bringing any action for damages for personal injuries, wrongful death, or property damage resulting from an alleged act of malpractice or negligence by a "licensed person" in his profession or occupation to provide each defendant with an affidavit from an appropriate licensed person stating 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.   N.J.S.A. 2A:53A-29 specifically states that "[i]f the plaintiff fails to provide an affidavit or a statement in lieu thereof...it shall be deemed a failure to state a cause of action."   As originally drafted, accountants, architects, attorneys, dentists, engineers, physicians, podiatrists, chiropractors, registered professional nurses, and health care facilities qualified as "licensed persons" under the Statute.  Effective January 8, 2002, N.J.S.A. 2A:53A-26 was amended to also include insurance producers, physical therapists, land surveyors, veterinarians, and registered pharmacists as "licensed person(s)."  The affidavit of merit filing requirement is designed to compel the plaintiff "to make a threshold showing that [his or her] claim is meritorious, in order that meritless lawsuits readily can be identified at an early stage of litigation." Cornblatt v. Barow, 153 N.J. 218, 242, 708 A.2d 401 (1998) (citing In re Petition of Hall, 147 N.J. 379, 391, 688 A.2d 81 (1997)).

Do not be fooled into thinking that non-compliance with this Statute has benign effects.  A plaintiff's failure to serve an affidavit of merit pursuant to N.J.S.A. 2A:53A-26 to 29 constitutes a failure to state a cause of action, requiring dismissal of the complaint with prejudice.   In Cornblatt v. Barow, the New Jersey Supreme Court held that failure to comply with the Statute constitutes a failure to state a cause of action. 

The underlying purpose of the Affidavit of Merit Statute is to weed out frivolous professional negligence claims and preserve solely meritorious claims.  In what appears to be an effort to restore this underlying, substantive purpose of the Statute and to prevent mere procedural errors in a case from overriding or undermining this purpose, the New Jersey Supreme Court recently entered decisions in two professional negligence cases which essentially lessen the impact a failure to comply with the strict procedural requirements of the Statute  will have on a plaintiff's pursuit of his or her professional negligence claim so that meritorious claims can proceed despite technical procedural errors. 

In Ferreira v. Rancocas Orthopedic Assocs., 2003 N.J. Lexis 1536, the Supreme Court of New Jersey held that in a case where a plaintiff has procured an affidavit of merit within the 120-day statutory period, but serves the affidavit on the defendant after the 120-period has expired and before the defendant has filed a motion to dismiss, the defendant shall not be permitted to file a motion to dismiss the plaintiff's claims on the basis that the affidavit of merit was untimely served.  The Court ordered trial judges to hold status conferences in professional negligence cases, requiring the filing of an affidavit of merit by the plaintiff 90 days after the defendant files its Answer to the Complaint, alerting the parties to the affidavit of merit filing requirement.   Id. at *23-*24.  Assuming such 90-day status conferences are routinely held in professional negligence cases, there is no doubt that the "bite" would be taken out of the Statute's potential serious consequences for a plaintiff who fails to file a required affidavit of merit in time by offering the plaintiff a timely reminder.

In Knorr v. Smeal, 2003 N.J. Lexis 1538, the Supreme Court of New Jersey further lessened the impact of a plaintiff's failure to serve an affidavit of merit in certain professional malpractice cases within the requisite 120-day period pursuant to the Affidavit of Merit Statute.   In Knorr,  the defendant allowed the 120-day statutory period to expire without filing a dismissal motion.  Instead, the defendant engaged in discovery, including obtaining the plaintiff's expert report, and 14 months later the defendant filed a motion to dismiss the plaintiff's claims with prejudice based upon the missing affidavit. Id. at *9 -*10.  Therefore, it is extremely important for defendants to keep their eye on the 120-day statutory period and if the plaintiff has failed to serve the requisite affidavit of merit within this time frame, to move for dismissal of the plaintiff's claims with prejudice immediately after the 120-day statutory period has expired.

An understanding of the requirements of the New Jersey Affidavit of Merit Statute and the existing case law interpreting said Statute is important for any legal practitioner handling a professional negligence claim.  A failure to do so can mean the difference between a dismissal of a plaintiff's professional negligence claims with prejudice or not.   Although the two recent New Jersey Supreme Court cases interpreting the Statute discussed above do somewhat lessen the impact a failure to comply with the procedural requirements of the Statute  may have on a plaintiff's pursuit of a professional negligence claim, the Statute still remains an important tool defendants can use to have frivolous professional malpractice claims dismissed with prejudice on the merits. 

*Hillary is an associate in the Roseland, NJ office and can be reached at (973) 618-4113 or hfraenkel@mdwcg.com.