New Jersey Permits Leeway in AOM Requirement

The particular nuances of each state’s affidavit of merit rule can be difficult to navigate. Since affidavits of merit (AOM) are so critical to malpractice actions, we do our best here at Professional Liability Matters to keep you informed of the particular differences among states and various defenses that can be raised in a malpractice suit requiring an AOM. Last week we blogged about a particular exception to the AOM rule in New Jersey, which you can check out here. This week we turn our attention to another New Jersey case, in which the court again finds an exception, but under different circumstances, when it comes to the AOM requirement.

In Costello v. Wohler, the New Jersey appellate court granted plaintiff additional time beyond the applicable deadline to issue a new AOM, where the physician who authored the initial AOM did not comply with the state’s Medical Care Access and Responsibility and Patients First Act (PFA).   The case arose from a medical malpractice action, in which the defendant was a board-certified cardiothoracic and general surgeon. At the outset of the lawsuit, plaintiff retained a general surgeon (“Expert”) to prepare an AOM and expert report.  Plaintiff attached Expert’s AOM and CV to the complaint.  The CV indicated that Expert was an attending surgeon who had been in practice more than 35 years.

Expert was deposed during discovery and both parties allegedly learned for the first time that Expert had actually been retired for about 5 years before the medical procedure in question was even performed.  After the discovery end date, defense counsel moved to preclude Expert’s testimony for failure to comply with New Jersey’s PFA, arguing that he was unqualified to testify because he was retired.  The trial court barred the testimony and dismissed plaintiff’s complaint with prejudice.

On appeal, the court found that dismissal of the case ignored the purpose of the AOM statute, noting that there was a strong preference for adjudication on the issues. Since there was no evidence that plaintiff or plaintiff’s counsel knew Expert was retired at the time he was retained and because his CV reflected that he was in fact practicing medicine the appellate court found that exceptional circumstances existed, “requiring the judge to allow [plaintiff] sufficient time to retain a different expert witness who is qualified under the PFA, issue a new AOM, and serve a corresponding expert report.”

When it comes to experts that have provided AOMs, it’s always wise to take a little extra time to do some research at the outset of the litigation to get the full scoop on the expert’s background.  The information could prove critical later in the litigation. Similarly, the same is true of any expert regardless of the stage of litigation. Vetting your own experts as well as your opponents’ experts is an important task. You do not want to find out late in the game that your expert is not qualified to render an opinion.  To the contrary, raising the defense when the other side’s expert has failed to meet certain requirements can be a strategic litigation tactic.


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