Lead Opinion
delivered the opinion of the Court.
At issue in this appeal is whether the failure to hold a conference pursuant to Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144,
However, because there is obviously confusion in the ranks over the scheduling of the Ferreira conference and the effect of its omission on the requirements of the Affidavit of Merit statute, we have concluded that relief should be afforded to the parties in the limited circumstances of this case.
I.
The facts are detailed in the decision of the Appellate Division. Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 406 N.J.Super. 568,
In its answer, Key raised the Affidavit of Merit statute as a separate defense. Further, in its CIS, Key characterized the case as one involving professional malpractice. Nevertheless, because the case originally was filed as a breach of contract action, the matter remained categorized by the civil ease management staff as a construction case and was assigned to that track. As a result, Key’s counsel forwarded a Certification of Good Cause to Change Track Assignment, requesting that the ease be moved from the construction track to the professional liability malpractice track. Peachtree’s counsel acknowledged having received the cover letter, but not the certification.
On January 31, 2008—more than 120 days after Key filed its answer to Peachtree’s third-party complaint and before Peachtree filed an affidavit of merit or a case management conference had been scheduled—Key filed a motion to dismiss the third-party action. The basis for Key’s motion was Peachtree’s failure to provide an affidavit of merit within the time periods defined in N.J.S.A. 2A:53A-27. On February 21, 2008, before the motion hearing but outside the statutory period, Peachtree filed an affidavit of merit. In defense of the late filing, Peachtree argued that the failure to schedule a Ferreira conference tolled the time frames in the Affidavit of Merit statute.
The trial judge rejected that argument and dismissed Peach-tree’s third-party complaint and all cross-claims against Key based on the untimeliness of the affidavit. The Appellate Division
II.
The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, prescribes in relevant part:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
[N.J.S.A. 2A:53A-27.]
The statute applies to all actions for damages based on professional malpractice. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J.Super. 343, 347,
The core purpose underlying the statute is “to require plaintiffs ... to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of the litigation.” In re Petition of Hall, 147 N.J. 379, 391,
Under the statute, an affidavit should be filed within sixty days of the filing of the answer. N.J.S.A. 2A:53A-27. However, if provided within sixty-one to 120 days after the answer is filed, the affidavit will be deemed timely so long as (1) leave to file is sought and (2) good cause is established. Burns v. Belafsky, 166 N.J. 466, 475-77,
Neglecting to provide an affidavit of merit after the expiration of 120 days has different consequences and generally requires dismissal with prejudice because the absence of an affidavit of merit strikes at the heart of the cause of action. Cornblatt, supra, 153 N.J. at 247,
However, we have recognized equitable remedies that “temper the draconian results of an inflexible application of the statute”—extraordinary circumstances and substantial compliance.
“Although we have yet to define the full scope of extraordinary circumstances as an equitable remedy for failure to comply with the statute, we do know that attorney inadvertence is not such a circumstance entitling plaintiff to a remedy of dismissal of a complaint without prejudice.” Ferreira, supra, 178 N.J. at 152,
Because an attorney’s inadvertence in failing to timely file an affidavit will generally result in dismissal with prejudice, Ferreira, supra, 178 N.J. at 154,
If an affidavit has been served, defendant will be required to advise the court whether he has any objections to the adequacy of the affidavit. If there is any deficiency in the affidavit, plaintiff will have to the end of the 120-day time period to conform the affidavit to the statutory requirements. If no affidavit has been*424 served, the court will remind the parties of their obligations under the statute and case law.
[Id. at 155,
In ruling in Ferreira, we stated:
[t]his case brings to mind the adage that an ounce of prevention is worth a pound of cure. Therefore, going forward, we will require case management conferences in the early stage of malpractice actions to ensure compliance with the discovery process, including the Affidavit of Merit statute, and to remind the parties of the sanctions that will be imposed if they do not fulfill their obligations.
[Id. at 147,836 A.2d 779 .]
Although Ferreira conferences should be held as a matter of course, they may be omitted “when the Affidavit of Merit has been provided by plaintiff and all defendants have waived any objections to its adequacy.” Waiver of Affidavit of Merit Conference, 176 N.J.L.J. 1006 (2004).
III.
At issue here is what effect the failure to hold a Ferreira conference will have on the time limits prescribed in the statute. The answer is none. It is true that we created and mandated the Ferreira conference to “remind the parties of the sanctions that will be imposed if they do not fulfill their obligations.” Ferreira, supra, 178 N.J. at 147,
However, it is equally true that parties are presumed to know the law and are obliged to follow it. See Emanuel v. McNell, 87 N.J.L. 499, 504,
Further, our creation of a tickler system to remind attorneys and their clients about critical filing dates plainly cannot trump the statute. In other words, the absence of a Ferreira conference cannot toll the legislatively prescribed time frames.
We note, however, that there apparently has been a lack of unanimity in our courts over that conclusion. Indeed, the Appellate Division is divided over the question of whether the failure to hold a Ferreira conference prevents dismissal with prejudice under the Affidavit of Merit statute. Compare Saunders ex rel. Saunders v. Capital Health Sys., 398 N.J.Super. 500, 510-11,
That confusion counsels lenience in this case. No doubt, Peach-tree’s counsel was not as assiduous as he could or should have been. Indeed, more attention would have forestalled what occurred here. In the context of this case, however, the confusion we have recognized constitutes an extraordinary circumstance that may have caused counsel to slumber when he should have acted.
Nevertheless, lawyers and litigants should understand that, going forward, reliance on the scheduling of a Ferreira conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll the statutory time frames. Indeed, it is only the confusion over the role of the Ferreira conference—which now has been addressed and clarified—that warrants relief in this ease.
IV.
The judgment of the Appellate Division is reversed. The case is remanded to the trial judge for proceedings consistent with this opinion.
Notes
Peachtree also argued that it was lulled into inaction by the incorrect track assignment of the case and by misstatements by judiciary employees regarding the Ferreira conference. Like the courts below, we view those contentions as unavailing and do not consider them in reaching our conclusion.
The Appellate Division also vacated the trial court's order that dismissed the third-party complaint. The panel remanded "for further consideration of Peach-tree’s common-knowledge argument.” Paragon, supra, 406 N.J.Super, at 585,
A plaintiff's complaint will not be dismissed for a technical violation of the statute if the plaintiff took other actions that substantially complied with the statute's requirements. See, e.g., Fink v. Thompson, 167 N.J. 551,
We note that our concurring colleague's attack on Ferreira comes in a case in which the issue was neither raised, briefed, nor argued by the parties or any other stakeholder here or in the courts below. In that connection, it is well settled that we will decline to consider such an issue for the first time on appeal. DYFS v. M.C., 201 N.J. 328,
Concurrence Opinion
concurring.
Because the source of the confusion surrounding the obligation of defendant/third party plaintiff Peachtree Condominium Association to comply with the requirements of the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, may lie squarely at this Court’s own doorstep, I am required to concur with the reasoning and conclusions thoughtfully expressed in Justice Long’s opinion, cautioning again, as the majority does, that “reliance on the scheduling of a Ferreira[v. Rancocas Orthopedic Associates, 178 N.J. 144,
I write separately for two reasons. First, it is deeply troubling that, as a result of the relief today ordered, third-party defendant Key Engineers, Inc. effectively will be denied the specific right granted to it by law: its statutory entitlement to either the receipt of a timely and proper Affidavit of Merit or the dismissal of the claims against it. Although that dilemma must be acknowledged,
The imposition of the Ferreira conference obligation is yet another example of well-intentioned but fundamentally misguided judicial tinkering. The source of the confusion that animates the relief today granted to yet another lawyer unable to comply with elementary statutory requirements—Ferreira itself—has condoned a continuing, albeit somewhat quelled stream of lawyer disregard for the mandates of the Affidavit of Merit statute. In each instance, those coddled few, who seek to excuse their basic inability to comply with a glaringly clear and straightforward legislative mandate, thrash wildly about, seeking to lay blame everywhere but where it properly belongs: in the hands of the non-complying lawyer.
There is a parallel, institutional reason that commands that we jettison Ferreira’s mandate. Ferreira requires that our courts schedule a prophylactic case management conference to identify and correct the failure of counsel to comply with the simple
It is, at its very least, pathetic that our judicial system must cater to the lowest-common-denominator practitioners. The goals of a properly constructed judicial system must be practical, but they also should be hortatory, seeking that all aspire to practice at a level greater than at minimum requirements. In that spirit, the time has come to conclude that the mandatory Ferreira conference has outlived whatever usefulness it may have had, and thus that the requirement should be voided. That result avoids any future “confusion” and places all lawyers on fair notice of what should be intuitively obvious: that they must comply with the clear dictates of law or suffer the consequences. In the final analysis, our citizenry is entitled to a continually improving system of justice, and not some ersatz construct where judges are diverted from their duties to baby-sit and spoon-feed those either too lazy or too unwilling to comply with their clearly defined obligations.
Opposed—None.
For proof of that proposition, one need look no further than this case, where counsel for defendant/third-party plaintiff sought to shift the blame for his failure to file a correct Case Information Statement, see R. 4:5-l(a); App. XII-B1—one that should have identified the third-party complaint as one pleading professional malpractice—to generic advices purportedly received from court personnel, an assertion the majority very politely discards as "unavailing.” Ante at 420 n. 1,
Admittedly, the parties have not squarely sought the relief I deem appropriate here: the elimination of Ferreira conferences. However, it is self-evident that the remedy best suited to cure the confusion this Court itself created is to jettison the source of that confusion. Also, the facts here—together with the unbroken stream of Affidavit of Merit cases that clog our dockets—convincingly prove the futility of the judicially mandated Ferreira conferences. Even the most glancing look at the litigation landscape conclusively demonstrates the folly of failing to demand strict adherence to a simple and straightforward legislative command and, instead, creating a safety net wayward lawyers still ignore.