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The Affidavit of Merit Statute –anathema to plaintiffs’ medical malpractice lawyers since its inception — has taken on a new reason to be loathed, thanks to Supreme Court rulings that seem to be of two minds on whether and when to forgive technical noncompliance. Enacted in 1995 to deter meritless suits, the law’s bite was lessened last November when the Court ruled, in companion cases, that valid claims should not be dismissed for reasons of form over substance, Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, and Knorr v. Smeal, 178 N.J. 169. But the waters were muddied on Feb. 18, when the Court declined to review what plaintiffs’ lawyers say is just such a case. The Court denied a petition for certification in Tunia v. St. Francis Hospital, A-5437-01T3, in which the Appellate Division upheld dismissal of a medical malpractice suit based on the plaintiff’s submission of affidavits that lacked a jurat – the affiant’s attestation that the statement is made under oath. The refusal to hear Tunia came as a surprise to lawyers who considered its holding inconsistent with Ferreira and Knorr, in which the Court announced a doctrine that technical noncompliance will be excused if there is a showing of a good faith effort to comply. In both cases, plaintiffs obtained proper affidavits but missed the deadline in the statute, N.J.S.A. 2A:53A:27, for giving them to the defense. In Tunia, the affidavits were delivered on time but were found lacking as to form. Without proper jurats, they could not be considered affidavits, the Appellate Division ruled. Nor were the reports in certification format – the alternative allowed under the statute – since they did not say that the doctor attested to the truth of the statement and understood that lying would result in punishment. The plaintiff’s lawyer in Tunia, Kevin Campbell, says he will file a motion for reconsideration with the Supreme Court, arguing that if the decision is left undisturbed it will cause ripples in all areas of the law where affidavits are used, such as real property law. “They held that the jurat is part of the affidavit,” says Campbell, an associate at Newark’s Zemel & Zemel. “The Appellate Division was not consistent with the prior case law or treatises or what other states follow. It’s a ruling that has consequences – are we opening up a big can of worms?” The defendants’ lawyer, Kearny solo practitioner James Tutak, counters that unlike Ferreira and Knorr, the plaintiff in Tunia did not substantially comply with the affidavit of merit statute. That was the reasoning of the Appellate Division ruling, where Judges Dorothea Wefing, Donald Collester Jr. and Jose Fuentes said they could not consider the lack of jurat “a mere technical deficiency. In our view, it goes to the very nature of what an affidavit is.” The Court, in denying certification, also denied amicus curiae status to the Association of Trial Lawyers of America-New Jersey. William Gold, who represented ATLA-NJ, predicts that plaintiffs’ lawyers will face a new round of defense attempts to bounce cases based on allegedly flawed affidavits. Gold, a partner at West Orange’s Bendit Weinstock, calls Tunia “an outrageously bad decision which makes an affidavit into something it never was. What it says is you can attack a document on the sole issue of whether affidavit was properly taken, which has never been heard of in New Jersey law before.” Steven Kern, general counsel to the Medical Society of New Jersey, says leaving the appeals court decision in Tunia to stand should make plaintiffs’ lawyers more careful. “These decisions have gone all over the place. I don’t think there’s any consistency from the courts how the affidavit is applied,” says Kern, of Bridgewater’s Kern, Augustine, Conroy & Schoppmann. “It would have been nice if we had more guidance from the Supreme Court than they have given. They chose not to do that, so here we are.” Louis DeVoto, a plaintiffs’ lawyer not involved in the case, says affidavits of merit are prone to problems because of the difficulty in finding doctors willing to testify against their peers. Experts providing the affidavits are frequently in another state, so the affidavit often is not executed in the lawyer’s office, making it harder to ensure that the expert will comply with New Jersey law, he says. Still, DeVoto predicts the fallout from Tunia will be minimal. “I think Tunia will just be a case that people don’t pay much attention to. It’s going to stand for what it stands for, based on the facts of that particular case,” says DeVoto, of Cherry Hill’s Ferrara, Rossetti & DeVoto.

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