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Brian Carter v. Estate of George Baldwin

May 18, 2011

BRIAN CARTER PLAINTIFF,
v.
ESTATE OF GEORGE BALDWIN LEWIS, JR., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

NOT FOR PUBLICATION

OPINION

Presently, before the Court is a motion by defendant, Dr. Jeffrey Allen ("Dr. Allen" or "Defendant"), to dismiss the complaint based on the failure of Plaintiff, Brian Carter, to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. For the reasons below, the Court finds that an affidavit of merit is not required for the claims asserted against Dr. Allen. Accordingly, Defendant's motion is denied.

I.Background

Plaintiff brings this suit against several defendants, including Dr. Allen, claiming that Dr. Allen and three other non-professional defendants were negligent in failing to report child abuse under a New Jersey statute requiring any person, with reasonable cause to believe a child is being abused, to report it immediately to Division of Youth and Family Services. N.J.S.A. 9:6-8.10. According to Plaintiff, Defendant is a licensed psychologist who treated Plaintiff when Plaintiff was a youth. Third Amended Complaint ¶ 53. Plaintiff alleges that during that time Dr. Allen became aware that George Baldwin Lewis, whose estate is a named defendant in this case, had sexually abused Plaintiff, but Dr. Allen allegedly failed to report the abuse to a state or local authority. Id. at ¶ 7.

Defendant, in his answer to Plaintiff's complaint, demanded an affidavit of merit. Def. Br. 9. Plaintiff has not provided an affidavit of merit to Defendant and consequently, Defendant now moves the Court to dismiss the case based upon the failure to provide the affidavit.

II.Legal Requirement of an Affidavit of Merit

Under the Affidavit of Merit Statute, when filing an "action for personal injuries .

resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation," a plaintiff must provide, within 60 days of a defendant's answer to the complaint, an affidavit to each defendant by an "appropriate licensed person", indicating that there is a "reasonable probability" that the defendant's conduct fell outside the acceptable norms or standards of the profession.*fn1 N.J.S.A. 2A:53A-26 et seq. Upon a finding of good cause, the court may grant plaintiff one additional 60 day period. N.J.S.A. 2A:53A-27. The statute states:

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.

N.J.S.A. 2A:53A-27. This affidavit must be executed by a person licensed in any state, with particular expertise in the area involved in the action, as shown by a board certification or a devotion of their practice to the area for more than five years. Id. The person may also not have any financial interest in the outcome of the case. Id.

A plaintiff's failure to provide an affidavit is considered a failure to state a cause of action. N.J.S.A. 2A:53A-29. If a defendant files a motion to dismiss after the 120 day deadline and before a plaintiff has given the defendant the affidavit, the complaint will be dismissed with prejudice unless the doctrines of substantial compliance and extraordinary circumstances apply. Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 154 (2003) (holding that a motion to dismiss filed after plaintiff forwarded an affidavit of merit, which was obtained ten days after defendants' answer and forwarded eighteen days after the statutory 120 period, would not be granted because defendants did not further inquire or demand the affidavit until after the it was forwarded, no unnecessary expense was incurred by defendants due to the late arrival, and there was no delay in proceedings.)

An affidavit is only required if the underlying factual allegations of plaintiff's claim require proof of malpractice-i.e., that the defendant's conduct deviated from a professional standard of care for his or her profession. Couri v. Garner, 173 N.J. 328, 340-41 (2002) (holding that the affidavit of merit statute was not applicable to a claim against a licensed psychiatrist, retained as an expert in a lawsuit, who distributed a preliminary report to other parties without consent because the underlying facts of the case did not require a proof of a deviation from a professional standard of care applicable to that specific profession.) "[B]y asking whether a claim's underlying factual allegations require proof of a deviation from a professional standard of care, courts can assure that claims against licensed ...


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