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New Jersey Supreme Court Clarifies Law Regarding Affidavit of Merit Statute; Court’s Failure to Hold Ferreira Conference Does Not to Toll Statute

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In a decision calculated to clarify a somewhat murky area of New Jersey tort law (and a concurrence aimed at frightening attorneys into respecting statutory deadlines), on June 28, 2010 the New Jersey Supreme Court held that the failure of a trial court to hold a Ferreira conference (as detailed in Ferreira v. Rancocas Orthopedics Associates, 178 N.J. 144 (2003)) in actions involving claims of professional negligence would not serve to toll the statutory deadline to file an affidavit of merit. Paragon Contractors, Inc. v. Peachtree Condominium Association, ___ N.J. ___ (2010); 2010 WL 2553869 (N.J., June 28, 2010).

The New Jersey Affidavit of Merit statute, N.J.S.A. 2A:53A-26 et seq., states, in pertinent 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.

Ferreira conference.

Eight years after the Affidavit of Merit statute became law, the New Jersey Supreme Court held that in all cases involving allegations of professional negligence, trial courts were to hold a conference within ninety days of the filing of the first defendants’ answer, to “remind” the proponent of the malpractice claim of his or her obligations under the Affidavit of Merit Statute. Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003).Within a few short years, after Ferreira was decided, appellate panels began to split on the issue of whether a trial court’s failure to hold a Ferreira hearing in a timely fashion would affect the parties’ obligations under the statute. See Saunders ex rel. Saunders v. Capital Health Sys., 398 N.J. Super. 500, 510-11 (App. Div. 2008) (excusing untimely filing of affidavit of merit on grounds that trial court had not scheduled Ferreira conference within ninety days of filing of defendant’s answer); Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 542 (App. Div. 2009) (refusing to excuse untimely filing of affidavit of merit on identical grounds).

In Paragon, a contractor sued a condominium association for unpaid work. The condominium association filed a third-party complaint against an engineering firm that had been hired to supervise the contractor’s work. Despite asserting third-party claims against the engineer that sounded in professional negligence, the condominium association never served an Affidavit of Merit, and the court never scheduled a Ferreira conference to discuss the issue. After 120 days had elapsed, the engineer filed a motion to dismiss the third-party action on the grounds that the condominium association had failed to provide an Affidavit of Merit.

The contractor argued that the court’s failure to hold a Ferreira conference tolled the time period in which it was required to provide its Affidavit of Merit. The court disagreed, dismissing the third-party complaint, and the Appellate Division affirmed.

To avoid an apparent injustice, the Supreme Court reversed the Appellate Division but held that, moving forward, the failure of a trial court to schedule a Ferreira conference would not toll the time period within which an Affidavit of Merit must be served. The court noted that “our creation of a tickler system to remind attorneys and their clients about critical filing dates plainly cannot trump the statute.”

The court further noted, however, that “[b]ecause the Affidavit of Merit statute is not intended as a trap for the unwary, we will not permit it to be used in these circumstances to dismiss a claim before its merits have been adjudged.”

In a rather harsh concurrence, Justice Rivera-Soto noted that he would eliminate the requirement of holding Ferreira conferences entirely, noting that “[the] Ferreira conference obligation is yet another example of well-intentioned but fundamentally misguided judicial tinkering,” and stated:

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.