Wade Clark Mulcahy LLP

In a decision further solidifying the 120-day time limit for filing an affidavit of merit in malpractice cases, the New Jersey Appellate Division recently determined in <i>Paragon Contractors Inc. v. Peachtree Condominium Association</i>, that the court’s failure to schedule a case management conference did not excuse plaintiff’s failure to file an affidavit of merit within the 120-day period. Pursuant to New Jersey statutory law, a plaintiff in a malpractice case has 120 days from the filing of a defendant’s answer to serve an expert’s sworn statement attesting that there is a reasonable probability that the professional’s conduct fell below acceptable professional standards. Courts strictly enforce the 120-day deadline and dismiss cases where such affidavits are not filed. In addition, case law requires that the court schedule a case management conference within 90 days of the service of the answer to either evaluate the already filed affidavit or, alternatively, to remind the plaintiff of his obligation. In <i>Paragon</i>, the court failed to schedule the 90-day conference and the plaintiff similarly failed to serve an affidavit of merit within the 120-day period. Nevertheless, the Appellate Division held that the court’s failure to schedule the conference did not stop the running of the 120-day period and did not excuse the failure to file the affidavit. The plaintiff’s case was dismissed.
Thanks to Claudia Condruz for her contribution ot this post.
<a href="http://www.judiciary.state.nj.us/opinions/squibs08-09.pdf">http://www.judiciary.state.nj.us/opinions/squibs08-09.pdf</a>