Oh v. Kang was an unpublished decision of our Appellate Division issued on March 12, 2015.   The matter before the Court seemed relatively straightforward – whether the trial Court’s dismissal of the dental malpractice complaint was appropriate under the Affidavit of Merit Statute N.J.S.A. 2A:53A-27. The Affidavit of Merit Statute requires that an Affidavit , from an appropriately licensed professional, be shall be provided to each defendant, indicating that there exists a reasonable probability that the care exercised fell outside acceptable standards.  In that case, the Affidavit of Merit was merely served out of time, 132 days after the Defendant had filed an Answer. The Appellate Division upheld the trial Court’s dismissal finding that neither substantial compliance nor extraordinary circumstances, finding that “[t]his was simply a case where plaintiffs failed to obtain an affidavit with the statutory deadline.”

The panel took the time “to make certain additional observations” regarding the Affidavit of Merit Statute and the case law discussing the same.  The Appellate Division pointed out that where the parties express a “substantive difference as to the necessity, adequacy, or service of an affidavit of merit, the trial court will be hard-pressed to resolve the dispute informally by means of a conference [per Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003)].”   The Supreme Court in Ferreira mandated an expedited Case Management Conference with the Court, during which issues of the adequacy of the Affidavit of Merit was to be discussed.

The Oh panel discussed how Ferreira was based on Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998).  In Cornblatt, the Court held that the failure to comply with the Affidavit of Merit Statute required dismissal with prejudice unless extraordinary circumstances were shown. The dissent in Ferreira would have modified Cornblatt and converted the dismissal to one without prejudice.  

The Oh Court then sought to diminish and distinguish the rationale behind Cornblatt’s dismissal “with prejudice” under the statute.   For example, at the time the Affidavit of Merit was enacted, dismissals under R. 4:6-2(e) were “without prejudice.”  Citing Justice Long in her dissent in Ferreira, the Court noted that “a dismissal without prejudice would conform to other dismissals for insufficiency of pleadings.”  Oh also noted that under Justice Long’s approach, “a meritorious malpractice claim [would] not be permanently foreclosed because of inadvertence of confusion about satisfying the statute.”

Ultimately, the Oh Court declined to modify Ferreira but discussed merely discussed “the alternative proposed by a minority of the Court in Ferreira as a matter for consideration by others.” 

Implicit in the rationale, albeit unpublished, is that the notions of Ferreira must be modified to comport with the original intention of the Statute and rules governing dismissal for insufficiency. That rationale is inherently faulty. A Plaintiff bringing a claim undoubtedly has the Statute of Limitations period in which to investigate the factual allegations underlying the claimed malpractice.  During that period, the Plaintiff gets to “build a case” including retaining a professional to review the claims.  Moreover, any legal practitioner is on notice that claims against professionals require an Affidavit of Merit.  The Court’s logic is at odds with one of the purposes of the Affidavit of Merit Statute to begin with – namely weeding out meritorious claims against professionals from the baseless claims.   Claims made against professionals acting in their professional capacity are necessarily different from other claims as professionals are often tasked to use some measure of judgment in coming to their conclusions.  A dismissal without prejudice would simply destroy the statute.  What purpose would such a dismissal without prejudice serve; an aggressive Plaintiff will certainly find someone to author the Affidavit.

Although Oh is unpublished, the practitioner must be mindful of a troubling trend in Affidavit of Merit litigation.  The bounds of the statute are consistently fertile ground for appellate action; however, it is infrequent that courts beseech legislative action.   The Oh Court appropriately followed the law established by the Supreme Court, but one must be mindful that either the Legislature, or more likely, the Supreme Court, may one day address the very issue of whether a dismissal with or without prejudice is appropriate.