Attorney inadvertence in failing to comply with the affidavit of merit statute cannot establish extraordinary circumstances.

The plaintiffs failed to provide an Affidavit of Merit within the required 120 days. The trial court granted the defendant’s motion to dismiss. After retaining new counsel, the plaintiffs moved to vacate the order of dismissal, arguing their prior counsel’s missteps constituted extraordinary circumstances. The plaintiffs also argued they substantially complied with the statute, and the trial court granted their motion.

On appeal, the panel reversed and held that the plaintiffs’ failure to comply with the AOM statute will not be saved by their counsel’s carelessness or neglect under the guise of extraordinary circumstances. The panel also rejected any argument that the plaintiffs substantially complied with the AOM statute. For the doctrine of substantial compliance to apply and excuse noncompliance with the AOM statute, courts are charged with carefully considering all five parts of the conjunctive test: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner’s claim; and (5) a reasonable explanation why there was not a strict compliance with the statute. The panel made clear it was not enough to simply make the argument there was lack of prejudice to the defendant.

For practitioners, it is important to read Yearby closely, and in conjunction with A.T. v. Cohen, as the body of law concerning AOM constantly evolves. There appears to have been an uptick in recent cases excusing the plaintiff’s failure to strictly comply with the statute. More recently there seems to be a tendency by plaintiffs to argue that Cohen is more of a transcendent case than it really is in terms of strict compliance with the AOM statute. However, at least for now, Yearby made reference to Cohen and took the opportunity to set the record straight; failing to comply with the AOM statute “generally requires dismissal with prejudice,” particularly when “there is no evidential basis…to apply equitable principles to relax this statutory time restriction.” 

_{Case Law Alerts, 2^nd Quarter, April 2018}

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