New Jersey’s Affidavit of Merit Statute requires that an Affidavit of Merit be served within 60 days of a defendant’s filing an Answer, and, no later than 120 days if leave to file is sought and good cause is shown. NJSA 2A:53A-27. If, after expiration of 120 days, an Affidavit of Merit is not served, a plaintiff’s case can be dismissed with prejudice; a dismissal “without prejudice” may occur if extraordinary circumstances are present. Attorney inadvertence (i.e., a mistake by the lawyer) will not result in a dismissal “without prejudice,” but will generally result in a dismissal with prejudice. However, under New Jersey State Court procedural law, the Supreme Court decision of Ferreira v. Rancocas Orthopedic Assocs., 178 NJ 144 (NJ 2003), requires a case management conference early in the stages of malpractice actions to address sufficiencies and/or deficiencies in a plaintiff’s Affidavit of Merit. At such a conference, a Court may, for example, give additional time to a plaintiff to correct a deficient Affidavit.
In Vitale v. Carrier Clinic Inc., 2010 U.S. App. LEXIS 25855, the 3rd Circuit Court of Appeals of the United States, ruled that a District court’s failure to hold a so-called “Ferreira conference” where a proper Affidavit of Merit was not timely served by a plaintiff in a medical malpractice case will not toll the 120 day time-limit prescribed by the legislature. In that case, the plaintiffs malpractice action against the Carrier Clinic was dismissed as a) an Affidavit of Merit timely served by plaintiffs was not by an appropriately licensed specialist, and, b) an Affidavit of Merit served by an appropriately licensed specialist was not timely. The plaintiffs appealed, complaining that the District Court failed to hold a Ferreira Conference, at which time they may have been afforded additional time to serve an Affidavit from an appropriately licensed person. The 3rd Circuit rejected this argument, explaining that a Federal District court is not required to follow the case management procedures imposed on New Jersey state trial courts by the New Jersey Supreme Court. Hence, practitioners are forewarned to serve an Affidavit of Merit of an appropriate specialist in a medical malpractice case filed in NJ Federal Court or face having their case dismissed with prejudice.
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