Failure to file affidavit of merit in case transferred to New Jersey did not bar suit where simiiar filing was already made in New York

Law Reporter, Sep 2002

Newell v. Ruiz, 286 F.3d 166 (3d Cir. 2002).

The Third Circuit Court of Appeals held that a plaintiffs failure to timely file an affidavit of merit attesting to her suit's validity did not preclude her suit where she had already filed one in a different state before the case was transferred.

Here, Newell sued a doctor for medical negligence in New York. Pursuant to state law, she filed a certificate of merit attesting that her attorney discussed the case with a physician who agreed that negligence had occurred. The case was later transferred to New Jersey. Defendant moved to dismiss, arguing plaintiff failed to comply with a state law requiring her to file an affidavit of merit attesting to the validity of the suit. Although plaintiff subsequently filed the affidavit, the trial court granted defendant's motion, finding that plaintiffs filing was not timely.

Reversing, the Third Circuit noted that the legislature's intent in passing the New Jersey law was to preclude the filing of frivolous claims. The court said it has previously held that when a reasonable effectuation of the affidavit of merit statute's purpose has occurred, substantial compliance with the statute is not necessary. Substantial compliance, the court explained, is used to avoid technical defeats of valid claims and requires the defaulting party to (1) show the lack of prejudice to defendants, (2) demonstrate the steps taken to comply with the statute, (3) show a general compliance with the statute's purpose, (4) provide reasonable notice of the plaintiffs claim, and (5) provide a reasonable explanation as to why there was not strict compliance with the statute.

Applying these factors here, the court found that there was no legal prejudice to defendant because plaintiff's complaint in New York was accompanied by a certificate of merit. Thus, there is no prejudice other than that defendant would have to defend against a potentially valid claim. Turning to the next factor, the court found that plaintiff attempted to comply with the New Jersey statute when she filed the affidavit. In addition, the third factor is satisfied because, by complying with New York's law, plaintiff made a threshold showing that the case had merit, which is also the main purpose of the New Jersey statute.

Noting that defendant did not challenge the fourth factor, the court found that plaintiff presented a reasonable explanation for her conduct. Because she was a New York resident and initially filed her suit in New York, it was reasonable for her to believe that state's certificate of merit statute applied. Thus, by satisfying that statute, plaintiff thought she made the threshold showing. In addition, New Jersey's statute does not provide guidance on its applicability to cases transferred from other jurisdictions. These reasons are sufficient to show that plaintiff's noncompliance with the statute was reasonable.

Accordingly, the court remanded the case for further proceedings.

Plaintiff's Counsel

Elise Dinolfo, Livingston, N.J.

Elliott Abrutyn, Livingston, N.J.