New Jersey’s Affidavit of Merit Statute (NJ Rev Stat § 2A:53A-27 (2013)) was signed into law in 1995. The statute requires that when lawsuits involve claims of personal injury, wrongful death, or property damage due to professional malpractice or negligence, the plaintiff must supply, within 60 days after the defendant responds to the lawsuit, an affidavit from a qualified professional. ^[1] This affidavit must indicate that there was a duty of care existed and there is a reasonable chance the defendant's performance or actions did not meet the expected professional standards. ^[2]

If justified, the court may allow a one-time extension of up to 60 days for filing this affidavit. For medical malpractice cases, specifically, the individual providing the affidavit must comply with the expert testimony qualifications outlined in section 7 of P.L.2004, c.17 (C.2A:53A-41). In non-medical cases, the affiant must be a licensed professional with at least five years of substantial experience in the relevant field or specialty and must not have any financial stake in the lawsuit's outcome, although they can still serve as an expert witness. ^[3]

The goal of the Affidavit of Merit statute is to “weed out” frivolous and baseless legal claims against certain professionals. ^{[4] [5]} Indeed, if a plaintiff fails to provide an affidavit of merit, the case is dismissed with prejudice for noncompliance because there was a failure to state a cause of action. ^[6] However, there is an exception to the rule; in some cases, the breached duty of a licensed professional can sometimes be so obvious to anyone of average intelligence that a court may find that an affidavit of merit is not needed. However, courts often note that this exception only applies in rare cases. ^[7]

The affidavit of merit statute was enacted on June 29, 1995 and was designed and intended to introduce common sense and equity into New Jersey’s litigation system. ^[8] The Statute has seen changes over the years. In 2021 in the case, Yagnik v. Premium Outlet Partners and Pennoni Associates, the New Jersey Appellate Division ultimately concluded that a court could make an exception to the statute’s timelines for substantial compliance and other extraordinary circumstances. ^[9]

Originally, the only licensed professionals the State required an affidavit of merit for were dentists, physicians, podiatrists, chiropractors, registered nurses, and certain healthcare facilities. ^[10] In 2001, pharmacists, physical therapists, and midwives were added. ^[11] Currently, the statute applies to ^[12]:

• Physicians
• Dentists
• Podiatrists
• Chiropractors
• Registered nurses
• Physical Therapists
• Pharmacists
• Midwives
• Architects
• Engineers
• Radiologists
• Obstetricians
• Title Insurance Agents
• Real estate brokers
• Health care facilities
• Accountants
• Attorneys
• Licensed site remediation professionals
• Land surveyors