New Jersey Further Softens the Bite of the Affidavit of Merit Statute

As of September 1, 2018, the state of New Jersey enacted Rule 4:5B-4, a new rule of court designed to reduce the number of professional malpractice cases dismissed due New Jersey Statute § 2A:53A-27, more commonly known as the Affidavit of Merit Statute. The statute requires the plaintiff in any professional malpractice action to file an affidavit from an appropriately licensed professional attesting that the defendant’s actions deviated from an applicable standard of care. Pursuant to the statute, the plaintiff has to file the affidavit of merit within 60 days of the filing of the defendant’s answer (or 120 days if good cause is shown to the court). Should the plaintiff fail to file a proper affidavit of merit within the 120-day timeframe, the defendant is entitled to a dismissal of the action with prejudice. The new Rule 4:5B-4 requires the court to conduct a case management conference within 90 days of the filing of the first answer in a professional malpractice case to discuss discovery-related issues, including issues arising out of the Affidavit of Merit Statute.

Since its enactment in 1995, numerous cases have chiseled away at the statute’s perceived “draconian” impact on professional malpractice cases. While it was enacted with the intention of weeding out frivolous and meritless lawsuits against licensed professionals, many jurists and plaintiff attorneys view the statute as a way for professionally licensed defendants to get out of a case on a procedural technicality. To neutralize the impact, over the last twenty years, the courts have rendered opinions weakening the language of the statute. The most impactful of those cases came from the New Jersey Supreme Court in Ferreira v. Rancocas Orthopedic Assoc., 836 A.2d 779 (2003), where the Supreme Court proposed holding case management conferences to address affidavit of merit issues prior to the deadline. The Ferreira court also carved out exceptions to the statute, permitting plaintiffs to satisfy their procedural requirements through “exceptional circumstances” or “substantial compliance” with the statute. This ruling served to weaken the impact of the statute by granting more leniency to plaintiffs (or their attorneys) who may have taken missteps during the early stages of a professional malpractice case. Importantly, however, while the decision in Ferreira created the framework for a conference to be held prior to the expiration of the deadline, it did not require the conference to be held. Rather, it permitted the courts to hold such a conference upon request from the parties. The new Rule 4:5B-4 effectively changes all of that.

By enacting Rule 4:5B-4, the state of New Jersey shifts the burden to the courts to ensure that a case management conference is held before the deadline expires. Under the new rule, the court—on its own—will file a notice scheduling the conference. During the conference, the parties will discuss all discovery-related issues, including the need to file an affidavit of merit. The new rule now reduces the burdens on plaintiffs to: (1) know that an affidavit of merit must be filed; and (2) know the deadline by when the affidavit of merit must be filed. Prior to the enactment of this rule, a professionally licensed defendant could file their answer, then just watch the calendar and wait for the 120-day deadline to expire. Once that 121^st day hit without an affidavit of merit, the defendant could file a motion to dismiss, entitling them to a dismissal with prejudice. In this scenario, professionally licensed defendants were dismissed from actions before significant discovery was conducted and substantial legal costs were incurred.

The biggest impact from Rule 4:5B-4 may be in professional malpractice cases where the plaintiff’s attorney is not experienced in professional malpractice actions and is unfamiliar with the procedural requirements. Prior to the new rule, neither the court nor the defendant were required to alert the plaintiff or their attorney to the need to file an affidavit of merit. Additionally, neither the court nor the defendant were required to alert the plaintiff that a filed affidavit of merit was deficient in some way (for example, an engineer cannot file an affidavit of merit against an architect). In the case of a deficient affidavit of merit, the defendant was permitted to wait for the 120 days to expire and file a motion to dismiss, asserting that the affidavit of merit was deficient and that it was entitled to a dismissal of prejudice. All of that has now changed as Rule 4:5B-4 mandates a conference be held to ensure such issues are addressed and acted upon prior to the expiration of the deadline.

In its present form, Rule 4:5B-4 will work to reduce the likelihood that a professionally licensed defendant will be dismissed from a professional malpractice case with prejudice pursuant to the Affidavit of Merit Statute. Licensed professionals must now be aware that obtaining an early dismissal of a professional malpractice case under the Affidavit of Merit Statute is more unlikely to occur than likely. Rule 4:5B-4 will also increase the burden on professionally licensed defendants as they will incur additional expenses and legal fees through increased discovery and attendance in conferences to address any affidavit of merit issues. In the end, there will be an increase in the number of New Jersey professional malpractice cases that are permitted to proceed forth.

*Tim is an associate in our Roseland, New Jersey office. He can be reached at 973.618.4191 or trryan@mdwcg.com.

_{Defense Digest, Vol. 25, No. 1, March 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}