In 1995, the New Jersey legislature enacted a statute providing that in order to maintain a professional malpractice lawsuit, a plaintiff must produce an “affidavit of merit” upon the defendant. In pertinent part, the affidavit-of-merit statute requires that, in any action seeking damages

resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall … 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 … fell outside acceptable professional or occupation standard or treatment practices.

N.J. Stat. Ann. § 2A:53A-27. This statute was enacted as part of a tort reform package designed to strike a balance between a person’s right to sue and controlling nuisance suits.

The affidavit-of-merit concept is not exclusive to New Jersey and has been adopted in multiple jurisdictions. However, the evolution of the statute has been shaped by the cases litigated within this jurisdiction, and most recently, by the Superior Court of New Jersey in Nguyen v. Lookhoff, 2012 WL 2401677 (N.J. Super. Ct. App. Div. June 27, 2012).

In Nguyen, the court permitted the dismissal of a malpractice action commenced absent the filing of an affidavit of merit without first requiring the parties to attend a case management conference, commonly referred to as a Ferreira conference. This decision will promote stricter enforcement of the affidavit-of-merit statute and lessen the tolerance of the judiciary to make exceptions for a party’s failure to comply with the statute.

Historical Application of the Affidavit-of- Merit Statute

Upon its enactment, the statute required that a plaintiff serve an affidavit of merit within 60 days of a defendant filing an answer to a complaint, and up to 120 days of the answer being filed, if good cause is shown. However, if the affidavit is not served within the required time frame, its absence is considered tantamount to failure to state a cause of action and is grounds for dismissal with prejudice.

Ever cognizant of the permanent nature of a “with prejudice” dismissal, the court established “two equitable remedies that temper the draconian results of an inflexible application of the statute.” Ferreira v. Rancocas Orthopedic Associates, 836 A.2d 779, 783 (N.J. 2003). The relevant exceptions to the rule are as a follows: (1) a complaint will not be dismissed if the plaintiff can show that he has substantially complied with the statute; and (2) a complaint will be dismissed without prejudice if there are extraordinary circumstances to explain noncompliance.

The substantial compliance exception was effectuated to make certain that technical defects in an affidavit would not defeat a valid claim. In order to prove the existence of a viable claim, a party must show:

Lack of prejudice to the defending party;

Steps taken to comply with the statute involved;

General compliance with the purpose of the statute;

Reasonable notice of the petitioner’s claim; and

Reasonable explanation why there was not strict compliance with the statute.

An example of the substantial compliance exception is seen in Galik v. Clara Maass Med. Ctr., 771 A.2d 1141 (N.J. 2001), where the plaintiff did not file an affidavit within the statutory time frame. The plaintiff’s case was permitted to proceed, however, because before initiating suit, plaintiff’s counsel provided the defendants’ insurance carriers with expert reports that established the legitimacy of the claims.

As to the second exception, “courts are required to enter into a fact-sensitive inquiry in order to determine whether ‘extraordinary circumstances’ exist so as to relax the so-many-day filing requirement of a rule or statute.” Hyman Zamft & Manard v. Cornell, 707 A.2d 1068, 1071 (N.J. App. Div. 1998). In Hyman, a party’s failure to serve an affidavit did not result in dismissal because the court ordered a stay of litigation pending the outcome of mediation. Based upon these facts, the court held that there were extraordinary circumstances and did not dismiss the litigation with prejudice.

Ferreira’s Impact on the Affidavit-of-Merit Requirement

The decision of the Supreme Court of New Jersey in Ferreira continued the transformation of this statute. In Ferreira, even though a plaintiff did not substantially comply with the requirements of the statute, and despite the lack of extraordinary circumstances, the court declined to dismiss the case.

In Ferreira, the plaintiff’s counsel secured an affidavit of merit within the mandated time period, but inadvertently failed to forward it to the defense. After the statutory time period expired, the court denied the defendant’s motion to dismiss and opined that the purpose of the statute was not to encourage “slavish adherence to form over substance” or “intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit.”

To ensure that compliance with the statute did not become a “sideshow to the primary purpose of the civil justice system, to shepherd legitimate claims expeditiously to trial,” the court instituted an “accelerated case management conference within 90 days” of the service of an answer. This “Ferreira conference” would further “Best Practice rules: to resolve potential discovery problems … including whether an Affidavit of Merit has been served on defendant.”

Subsequent to Ferreira, courts have been split over its application. By way of example, in Saunders v. Capital Health Sys. at Mercer, 942 A.2d 142(N.J. App. Div. 2008), a plaintiff’s failure to provide an affidavit of merit was not a sufficient basis for dismissal because the mandatory Ferreira conference was never held. Had the required case management conference been conducted, the court believed that the failure to serve the affidavit of merit would have been discovered. Therefore, the court was unwilling to “expose an attorney to potential professional liability where the court did not schedule the required conference within 90 days of the defendant’s answer.”

Alternatively, one year later, in Alpert, Goldberg, Butler, Norton & Weiss v. Quinn, 983 A.2d 604 (N.J. App. Div. 2009), a failure to conduct a Ferreira conference did “not toll the timeframes set forth in the affidavit-of- merit statute.” This principle was reiterated in Paragon Contractors v. Peachtree Condo. Ass’n, 997 A.2d 982 (N.J. 2010), when the court held that the “creation of a tickler system to remind attorneys and their clients about critical filing dates” does not trump the affidavit-of-merit statute.

Nguyen v. Lookhoff

Against this backdrop of competing opinions, the issue of whether an action can be dismissed for failure to serve an affidavit of merit, without the benefit of a Ferreira conference, was considered recently by the Superior Court of New Jersey in Nguyen v. Lookhoff. In Nguyen, a pro-se plaintiff commenced a legal malpractice action against her prior counsel. Despite a letter from the defendant advising of her obligation to serve an affidavit of merit, the pro-se plaintiff failed to produce one. At no point was a Ferreira conference conducted. Ultimately, based upon the plaintiff’s failure to produce an affidavit of merit, the complaint was dismissed.

On appeal, the plaintiff argued that she was reasonably entitled to rely on a Ferreira conference to apprise her of the obligation to file the necessary affidavit of merit. In an effort to avoid this obligation and have her complaint reinstated, the plaintiff asserted the following pertinent extraordinary circumstances: (1) “no Ferreira conference was held to apprise [Plaintiff] of the affidavit-of-merit requirement; and (2) [Plaintiff] was representing herself and was ignorant of the affidavit-of-merit requirement.”

In ruling against the plaintiff, the court stated that “the omission of a Ferreira conference does not toll the deadline for submission of an affidavit of merit, [and] the failure to hold a conference, without more, does not qualify as an extraordinary circumstance.” With respect to the plaintiff’s second argument, the court found that because all professional malpractice claims require an affidavit of merit, the plaintiff could not claim to rely on the conducting of a Ferreira conference to educate her on the law. For these reasons, the Nguyen court affirmed the dismissal of the plaintiff’s complaint with prejudice for failure to provide an affidavit of merit despite the fact that a Ferreira conference was not conducted.

Conclusion

The Nguyen opinion corroborates the holding in Paragon and effectively puts parties on notice that an affidavit of merit is required in a professional malpractice action whether or not a Ferreira conference is held. This decision is notable as courts will enforce dismissal based upon a failure to serve an affidavit of merit even when the court’s self-imposed prophylactic measure, the Ferreira conference, does not occur.

Moving forward, it is evident that litigants cannot rely on external prompting to meet their obligations under this statute. Rather, the Ferreira conference has lost some of its earlier significance with respect to the affidavit-of-merit statute and a party’s specific filing obligations in a professional malpractice action. While courts generally express an unwillingness to dismiss a case solely on procedural or technical grounds, Nguyen is proof positive that careful adherence to the affidavit-of-merit deadlines is critical to successfully maintaining a professional malpractice action. The consistency between the Paragon and Nguyen rulings suggests that strict application of the affidavit-of-merit statute is here for the foreseeable future.■

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