New Jersey's Affidavit of Merit Statute

New Jersey’s Affidavit of Merit Statute (NJ Rev Stat § 2A:53A-27 (2013)) was signed into law in 1995. The statute states that if a person sues for injury, death, or property damage because of a professional's mistake or carelessness, they must provide a special letter from an expert within 60 days after the other side responds to their lawsuit. This affidavit must indicate that the professional had some duty of care and there is a reasonable chance the defendant's performance or actions did not meet the expected professional standards.

If justified, the court may allow a one-time extension of up to 60 days for filing this affidavit. If the defendant is a specialist, as in medical malpractice cases, the expert witness must also be a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association in the same specialty or subspecialty as the defendant. The expert must have also devoted the majority of their professional time in the year before the incident either to the active clinical practice of that specialty/subspecialty or to instruct students in an accredited program in that specialty/subspecialty. In non-medical cases, the affiant must be a licensed professional with at least five years of substantial experience in the relevant field or specialty and must not have any financial stake in the lawsuit's outcome, although they can still serve as an expert witness.

The goal of the Affidavit of Merit statute is to “weed out” frivolous and baseless legal claims against certain professionals. If a plaintiff fails to provide an affidavit of merit, the case is dismissed with prejudice for noncompliance because there was a failure to state a cause of action. However, there is an exception to the rule; in some cases, the breached duty of a licensed professional can sometimes be so obvious to anyone of average intelligence that a court may find that an affidavit of merit is not needed. Nevertheless, courts often note that this exception only applies in rare cases.

History

The affidavit of merit statute was enacted on June 29, 1995, and was designed and intended to introduce common sense and equity into New Jersey’s litigation system. The Statute has seen changes over the years. In 2021 in the case, Yagnik v. Premium Outlet Partners and Pennoni Associates, the New Jersey Appellate Division ultimately concluded that a court could make an exception to the statute’s timelines for substantial compliance and other extraordinary circumstances.

Originally, the only licensed professionals the State required an affidavit of merit for were dentists, physicians, podiatrists, chiropractors, registered nurses, and certain healthcare facilities. In 2001, pharmacists, physical therapists, and midwives were added. As used in this act, "licensed person" means any person who is licensed as:

a. an accountant;

b. an architect;

c. an attorney admitted to practice law in New Jersey;

d. a dentist;

e. an engineer;

f. a physician in the practice of medicine or surgery;

g. a podiatrist;

h. a chiropractor;

i. a registered professional nurse;

j. a health care facility;

k. a physical therapist;

l. a land surveyor;

m. a registered pharmacist;

n. a veterinarian.;

o. an insurance producer;

p. a certified midwife, certified professional midwife, or certified nurse midwife; and

q. a licensed site remediation professional

Example

The case of Towles v. Hudson County Department of Corrections involves the Estate of Jenifer S. Towle and her father Brice Towle suing Hudson County, Hudson County Department of Corrections, and CFG Health Systems, LLC (CFG) over Jenifer Towle's death while in custody at the Hudson County Department of Corrections. The Affidavit of Merit (AOM) statute plays a key role in this case. The plaintiffs were required to provide an AOM from an appropriate licensed expert within 120 days of CFG filing its answer, stating there was a reasonable probability that the care provided fell outside acceptable standards. However, the plaintiffs initially filed an AOM from a doctor not qualified in the same specialty as the potentially liable healthcare providers identified by CFG. The trial court initially granted the plaintiffs an extension to file additional AOMs, finding extraordinary circumstances despite the technical failure to comply with the statute. However, on CFG's motion for reconsideration, the court later reversed its decision and dismissed the case, finding the plaintiffs' failure to timely file a proper AOM was not excused by extraordinary circumstances. The court held that neither the lack of a Ferreira conference nor the plaintiffs' counsel's inadvertence in mislabeling the case constituted extraordinary circumstances that would allow the late filing of the AOMs.

Controversy

New Jersey’s Affidavit of Merit Statute is not without controversy:

Compliance is required

Courts have consistently held that strict compliance with the statute's requirements is necessary, and failure to properly file an affidavit of merit will result in the dismissal of the plaintiff's claims. For example, in one case, a plaintiff's affidavit was dismissed because the expert witness providing the affidavit had an expired license, even though the expert had sufficient experience in the field. The court ruled that the requirement for a currently licensed expert is not a mere technicality, and failure to comply leads to dismissal.

Confusion of applicability to different professions

Another area of controversy has been the scope and applicability of the statute. The statute lists specific licensed professions that require an affidavit, but there has been debate over whether it applies to other healthcare providers not explicitly listed. In one case, the court held that the statute does not apply to a radiology technician, an unlicensed position, reasoning that the list of professions in the statute is exclusive. However, the status of nurse practitioners remains unclear, as they are not explicitly listed but have a more advanced scope of practice than licensed practical nurses.

Timing and pleading requirements

The timing and pleading requirements of the affidavit have also been sources of controversy. The statute requires the affidavit to be filed within 60 days of the defendant's answer, with a possible 60-day extension. Courts have grappled with how this requirement applies when the pleadings are amended to add new defendants or claims. In one case, the court held that the 60-day clock starts from the initial answer, not subsequent amended pleadings. However, the court also recognized exceptions for "extraordinary circumstances" that may justify a later filing.

Balancing protections for professionals

Underlying much of the controversy is the need to balance the protections afforded to licensed professionals under the statute with the rights of plaintiffs to have their claims heard. Courts have recognized the statute's purpose of weeding out frivolous claims, but have also cautioned against interpretations that could undermine this goal. For example, one court refused to dismiss cross-claims against an engineer who had the plaintiff's claims against him voluntarily withdrawn, reasoning that the engineer should not lose the statute's protections simply because the plaintiff chose to discontinue the case. The court sought to preserve the delicate balance between the co-defendants' and the professional's rights.