Nearly all attorneys are familiar with the affidavit of merit requirement in professional malpractice suits. Likewise, attorneys are familiar with the strict and severe consequences associated with a failure to provide the affidavit  within the time prescribed by the statute. Failure to provide the affidavit within the 120 day time period (60 days plus one 60-day extension by motion) will almost always result in the dismissal of the plaintiff’s case with prejudice. A provision similar to the affidavit of merit requirement was incorporated into the provisions applicable to auto accident cases brought under the Automobile Insurance Cost Reduction Act (“AICRA”). Among AICRA’s provisions is the requirement placed upon a plaintiff who has chosen the verbal tort threshold to provide a certification from a physician declaring, essentially, that based upon objective medical evidence the plaintiff’s injury is sufficient in nature to meet the threshold. AICRA requires that the certification be submitted within 60 days of the answer and, like the affidavit of merit statute, provides for one 60-day extension. Although AICRA requires
the certification, it is silent on the issue of consequences for failure to file one in the time specified. In 2001 the Appellate Division held that the failure to provide the physician certification was a procedural defect, unlike the
affidavit of merit statute, and therefore required dismissal of the complaint without prejudice. Watts v. Camaligan, 344 N.J. Super. 453, 463 (App. Div. 2001). The Watts court saw similarities between the affidavit of merit statute and the physician certification requirement but noted that the failure of the legislature to include a deemer provision in AICRA required the court to determine the legislative intent associated with the physician certification. The deemer provision in the affidavit of merit statute, the court reasoned, rendered the failure to provide one a failure to state a cause of action whereas the absence of a deemer provision in AICRA resulted in a procedural defect. While Watts would seem to have provided some breathing room for plaintiff attorneys it more likely had the effect of being a dismissal with prejudice in many cases since complaints are often filed near or even on the last day of the statute of limitations. A recent New Jersey Supreme Court decision has resulted in abolishing any substantive content to AICRA’s physician certification requirement. In reaching this result the Court revisited the issue of the purposes behind the two statutes. The purpose of the affidavit of merit is, as stated by the New Jersey Supreme Court: “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.” Couri v. Gardner 172 N.J. 328, 339 (2002) (citing and quoting Cornblatt v. Barrow, 153 N.J. at 218, 242 [1998]). The two-fold purpose of the  physician certification provision, as stated by the New Jersey Supreme Court, is: “to provide evidence that a plaintiff’s claim is meritorious in that he/she has, in fact, sustained an injury that qualifies for the recovery of noneconomic
damages under the revised AICRA verbal threshold, and to thwart fraud by furnishing a legal foundation for a charge of perjury, should false swearing later be shown”. Casinelli v. Manglapus, 181 N.J. 354, 365-66 (2004). Despite the apparent similarity in the objectives of the statutes the consequences associated with a failure to provide them in a timely fashion are dramatically different. The court’s decision effectively renders a potentially effective  gatekeeping device to a minor role seemingly inconsistent with the statute’s overall objective.

– David D. Blake, Esq.