January 1, 1900

by Sean P. Mulligan

When the legislature passed NJSA 2A:53-27 et. seq., more commonly known as the Affidavit of Merit Statute, it appeared to be a simple rule that could be easily applied. Under the statute, a plaintiff alleging negligence against a professional, such as an engineer or architect, had to supply the professional with an Affidavit of Merit within sixty days of filing an answer to the complaint. In the affidavit, the expert must express the opinion that there was a reasonable probability that malpractice had occurred. The statute required the Affidavit of Merit to be from a similar professional, who had no financial interest in the matter, with at least five years experience and the necessary certifications or licenses. If the defendant failed to supply discovery within forty-five days, the plaintiff could request relief from the necessity of filing an Affidavit of Merit. The plaintiff could also receive one sixty-day extension on a showing of "good cause."

Our Courts Have Been Inconsistent in Applying the Law

Although it sounds straightforward enough, judges have been wildly inconsistent in applying the law. One of the first issues that was addressed was when a plaintiff had to request a sixty-day extension. Defendants argued that the request for an additional sixty days needed to be made within the first sixty-day time period. Recently, the Appellate Division held in Burns v. Belafsky, M.D., that the request for an additional sixty days can be made anytime within the first one hundred and twenty days following the answer to the complaint. Essentially, this ruling gives a plaintiff one hundred and twenty days to provide an Affidavit of Merit so long as plaintiff makes a colorable showing of good cause.

A second issue confronted by the courts was whether an Affidavit of Merit is required when the matter is contractual or does not otherwise require expert testimony. Until recently, the trial courts have held that if a Plaintiff did not need expert testimony to prove their case, they did not need to serve the defendant with an Affidavit of Merit. The Appellate Division overturned this ruling and held that even in cases of "common knowledge" negligence claims, an Affidavit of Merit is required. The Appellate Division held in Levinson v. D'Alfonso that if the allegation is purely contractual in nature, an Affidavit of Merit is not required. However, if the alleged breach requires expert testimony concerning the care, skill or knowledge exercised by the professional, then the breach of contract claim is akin to a malpractice claim "dressed up in sheeps clothing," and the plaintiff must provide an Affidavit of Merit. Many judges have been reluctant to dismiss a complaint where the claim sounds in both contract and negligence. The court may dismiss the negligence claims but allow the contractual claims to survive, thus increasing the risk to the client since most professional insurance policies do not provide coverage for breach of contract claims.

Affidavit of Merits Required for Counter and Cross Claims

The courts have also wrestled with whether an Affidavit of Merit must be provided to support a counterclaim or cross claim. Case law indicates that an Affidavit of Merit is required to pursue such claims. Hyman v. Zampf, Cornblatt v. Barow. However, application of the statute to counterclaim or cross claim raises several unanswered questions. For example, may a defendant who has asserted such claims rely on the plaintiff to provide the Affidavit of Merit? Further, if the plaintiff fails to provide an Affidavit of Merit, may the court dismiss all claims? If not, when must the defendant serve the Affidavit of Merit?

Notwithstanding the apparently simple language of the Affidavit of Merit Statute, the intricacies of the litigation process have raised a myriad of unresolved issues for professionals who are sued in New Jersey. Early access to counsel, who are knowledgeable about the most recent court opinions interpreting the Affidavit of Merit Statute, is the professional's most effective and cost-efficient means of obtaining optimum protection from this beneficial legislation. As always, we at Hill Wallack stand ready to discuss your litigation needs and answer any questions you or your staff may have about this issue.

Sean P. Mulligan is an associate of Hill Wallack where he is a member of the Litigation Division and the Construction Industry Practice Group. He concentrates his practice in the representation of architects, engineers and design professionals and their professional liability insurance carriers.