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AN APPELLATE SPLIT: ENFORCING THE AFFIDAVIT OF MERIT STATUTE
It is quite possible that the Affidavit of Merit statute[1] has caused or will cause almost as many professional malpractice claims as it has dismissed. Given the current state of New Jersey's courts' differing interpretations of the statute, there will certainly be more unnecessary litigation than the legislature intended.
The Affidavit of Merit statute requires all claimants "in a malpractice action to serve on a defendant within 120 days of receipt of the answer an expert's sworn statement attesting that there exists a 'reasonable probability' that the professional's conduct fell below acceptable standards."[2] The Affidavit of Merit statute is meant to weed out unsubstantiated claims by requiring plaintiffs to prove that the defendant's conduct fell below acceptable standards. The purpose of the statute is to "require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation."[3] The recent conflicting opinions delivered by the Appellate Division, interpreting the 2003 New Jersey Supreme Court decision of Ferreira v. Rancocas Orthopedic Associates, ensure, at least for the time being, a "tide of litigation."[4]
In 2003, the Supreme Court of New Jersey ruled on Ferreira, a case involving a medical malpractice claim. In that action, the patient's counsel obtained an Affidavit of Merit 10 days after the answer was filed, but because of a law office filing error, the Affidavit of Merit was not timely served. After the Affidavit of Merit was served on Defendant's counsel, a motion to dismiss was filed for failure to comply with the Affidavit of Merit statute. Refusing to dismiss the action, the Supreme Court reasoned that although the affidavit was provided outside the statutory time frame, it was provided before the motion to dismiss was filed. In such a situation, the defendants were precluded from filing the motion.
The Court also set what most lower courts and many attorneys believe to be new guidelines on when motions to dismiss are permitted due to failure to comply with the Affidavit of Merit statue. The Supreme Court's opinion stated that the statute is "not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit."[5] Finding that the service and substance of Affidavits of Merit are essentially discovery related issues that should "not become sideshows to the primary purpose of the civil justice system--to shepherd legitimate claims expeditiously to trial--we propose that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions."[6]
Following the Supreme Court's ruling, the Administrative Director of the Courts issued a "Notice to the Bar" stating that an "affidavit of merit conference [is] required in professional malpractice cases". This conference became commonly known as a "Ferreira Conference." For many vicinages, the rule of thumb is that a failure of the court to hold a Ferreira Conference, or the failure of Defendant to request one, resulted in the denial of nearly all motions to dismiss for failure to file an Affidavit of Merit.
In a separate opinion in Ferreira, Justice Long "deem[ed] it unlikely that the court's innovation will forestall a new round of litigation." Justice Long foresaw the new requirement "simply as moving the field of battle to a different location."[7] The battlefields predicted by Justice Long have landed squarely in the middle of the Appellate Division.
In 2008, the Appellate Division weighed in on the Ferreira Conference requirement.[8] Saunders v. Capital Health System involved a mother who gave birth to her daughter at the health care system's facility with the assistance of a registered nurse and midwife. The mother asserted that the midwife's failure to recognize complications caused injuries to her daughter. The trial judge found that case law did not require an accelerated case management conference in a medical malpractice action; and the Appellate Division reversed. Judge Lintner found that the Ferreira Conference was required: "contrary to defendants' contention and the motion judge's decision, Ferreira mandates a case management conference within ninety days of the filing of an answer in a professional malpractice case. Counsel's inadvertent failure to serve the Luciani Affidavit of Merit would have been discovered had the required case management conference been conducted. Accordingly, it would be unfair to expose an attorney to potential professional liability where the court did not schedule the required conference within ninety days of the defendant's answer."[9]
Less than a year later, a split arose in the Appellate Division. In a decision delivered by Judge Fisher, the court rejected "the argument that the trial court's failure to schedule the case management conference required by Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003), tolled the time to file or otherwise excused the malpractice claimant's failure to timely file an affidavit of merit." Judge Fisher went so far as to state that "in so holding, we express our disagreement with that part of the decision of another panel, Saunders v. Capital Health System, 398 N.J. Super. 500, 510 (App. Div. 2008), which held to the contrary."[10]
Judge Fisher's opinion targeted the argument that the Ferreira decision intended the conference to toll the statutory deadline for filing the Affidavit of Merit: "We reject the argument that a trial court's failure to schedule the conference required by Ferreira tolls the statutory deadline for two essential reasons -- the Court's decision in Ferreira neither imposed the early conference requirement as a means of altering or amending the statute, nor, in adopting this innovation, did the Court reveal any intention other than to continue to enforce and respect the 120-day deadline crafted by the Legislature."[11]
Until the New Jersey Supreme Court revisits the issue, litigants should heed its last words in Ferreira: "Diligence and attentiveness in the practice of law will spare plaintiffs' attorneys from later seeking an equitable remedy that may not be available. Those members of the plaintiffs' bar who follow the simple dictates of the statute will find no impediment to championing the causes of their clients."
[1] N.J.S.A. 2A:53A-26 to 29
[2] Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 146 (2003)
[3] In Re Petition of Hall, 147 N.J. 379, 391 (1997)
[4] Ferreira, 178 N.J. at 146.
[5] Id. at 147.
[6] Id.
[7] Id. at 159
[8] Saunders v. Capital Health System, 398 N.J. Super. 500 (App. Div. 2008)
[9] Id. at 510
[10] Paragon Contractors, Inc. v. Peachtree Condominium Association, et al., 2009 N.J. Super. LEXIS 91, 1; A-0408-08T3 (App. Div. 2009)
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In This Issue
An Appellate Split:
Enforcing the
Affidavit of Merit Statue
Case Alert "Pay When Paid" |
Case Alert
In a recent Federal New Jersey District Court decision, the law on New Jersey's "Pay When Paid" provision has been expanded. In the case of Fixture Specialists, Inc. v. Global Construction, LLC, the Federal District Court, for the first time in New Jersey, concluded that "Pay If Paid" provisions are binding and valid provisions to preclude payment if properly drafted.
In this case, the Court concluded that the contract language was sufficient to conclude that the "Pay If Paid" provision is enforceable. The effect of the contractual language was to shift the risk of non-payment to a subcontractor. The Court also found that the "Pay If Paid" did not violate New Jersey's Lien Law, further distinguishing New Jersey from New York's string of cases that have knocked down "Pay When Paid" provisions against Public Policy due to rights afforded subcontractors under New York's Lien Law. |
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