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NEW JERSEY AFFIDAVIT OF MERIT STATUTE
John H. Maucher, Esquire and Daniel J. McCarthy, Esquire
An Affidavit of Merit is required in the state of New Jersey in certain causes of actions against licensed persons, including but not limited to attorneys', accountants', architects', insurance agents & brokers, dentists', engineers', physicians', etc. The New Jersey Affidavit requirement states in its pertinent part:
In 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, the plaintiff shall, within 60 days following the date of filing the answer to the complaint by the defendant, 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 that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. (N.J.S.A. 2A: 53A-27)
The Affidavit does not need to contain much; merely that an individual with sufficient experience in the field in question has preliminarily reviewed the facts of the claim, has determined 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." This is the "magic language" and you will frequently see an Affidavit that has been prepared by the plaintiff's attorney with this boiler plate language inserted. It is a threshold requirement that is easily met.
Also, the 60 day time limit can be extended in the case of medical malpractice if the plaintiff files a motion to extend time and can demonstrate good cause for an extension. The time period is then extended to a 120 day window, as provided by the statute, and the action will be considered timely if that limit is met. Absent extraordinary circumstances, failure to comply with the Affidavit requirement will result in dismissal with prejudice.
As a practical matter, although the rules provide a party the opportunity to file a motion for dismissal if an Affidavit has not been provided after 60 days, the Courts routinely grant a plaintiff the opportunity to correct their oversight up until 120 days have passed. Therefore, our usual practice and one which I recommend is for a 120 day diary for an Affidavit of Merit. Only then do I file my motion as the Courts treat the 120 day period as a hard and fast deadline. If no Affidavit has been provided by that point there is a strong likelihood that the Court will grant a motion for dismissal based upon the Statute.
Further, the statute requires that the Affidavit is executed by the "appropriate licensed person" within the same profession as the licensed person or persons who are being sued for negligence or malpractice. Courts will accept an affidavit from a licensed professional or a person whose expertise is considered to be similar to licensure. (337 N.J. Super. 590) The statute also requires that the professional have at least five years of experience and have no financial interest in the outcome of the case.
Finally, there are certain situations regarding malpractice claims where an Affidavit of Merit is not required by law. In Diocese of Metuchen v. Prisco & Edwards, the Appellate Division recently held that an Affidavit of Merit is not required where a defendant to a malpractice action files a third-party claim for contribution and indemnification against another without asserting an independent claim of professional negligence. The court found it would be "unworkable and unwise" to require an Affidavit in such a situation because one defendant's right to seek contribution against another defendant should not be extinguished by the failure of one defendant to serve an Affidavit of Merit as against another. (374 N.J. Super. 409) Therefore an Affidavit would only be required if there were a unique or different cause of action against the third party defendant.
To summarize, the Affidavit of Merit Statute serves as a gate-keeper preventing frivolous claims against licensed professional. However, the standard is not difficult for a plaintiff to meet. But, if a plaintiff fails to provide an Affidavit of Merit within 120 days of the filing of a defendant's Answer then counsel should file a motion for dismissal and that motion should be granted with prejudice.
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