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 Paragon Contractors Inc. v. Peachtree Condominium Association, 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 Paragon, 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.