The opinion of the court was delivered by: Pisano, District Judge.
Before the Court is Defendant Matthew Polyak, R.N.‟s motion to partially dismiss with prejudice pursuant to New Jersey‟s affidavit of merit statute, N.J.S.A. 2A:53A-26, et seq. (the "Polyak Motion"). Plaintiff Brian Keith Bragg opposes the motion. For the following reasons, the Court will deny the motion. Also before the Court is Defendant Stan Malkin‟s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Malkin Motion"). Plaintiff opposes the motion. For the following reasons, the Court will grant the motion.*fn1
Acting pro se, Plaintiff commenced this suit on April 17, 2008, alleging that he was assaulted four days prior while incarcerated as a pretrial detainee at Mercer County Correctional Center (MCCC). On June 29, 2010, after being appointed counsel, Plaintiff amended his complaint (the "Amended Polyak Complaint") to assert, among other claims, a claim against Nurse Polyak for witnessing and failing to intervene in the alleged assault. Nurse Polyak filed his motion on January 12, 2011, seeking the dismissal of "all claims and cross claims against Nurse Polyak . . . because the plaintiff failed to serve an Affidavit of Merit." Polyak Br. at 14. Plaintiff concedes that he did not serve an Affidavit of Merit, but disputes its requirement.
B. Legal Requirement for an Affidavit of Merit
Under the Affidavit of Merit Statute, when filing an "action for damages 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.*fn2 N.J.S.A. 2A:53A-27. Upon a finding of good cause, the court may grant plaintiff one additional 60-day period. Id. This affidavit of merit 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 appropriate licensed person must not have any financial interest in the outcome of the case. Id.
A plaintiff‟s failure to provide an affidavit of merit 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 maximum 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) (denying 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-day period, because defendants did not further inquire or demand the affidavit until after 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 a plaintiff‟s claim require proof of malpractice-i.e., proof 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). "[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 professionals acting in a professional capacity that require proof of ordinary negligence but not of a deviation from professional standards are not encompassed by the statute." Id. at 340-41 (emphasis in original).
As noted above, in determining whether the Affidavit of Merit Statute applies to a claim, the New Jersey Supreme Court has looked to whether "the claim‟s underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession." Couri, 173 N.J. at 340. In the Amended Polyak Complaint, Plaintiff alleges that Nurse Polyak "witnessed [and] failed to intervene in [the] assault when he had the opportunity to do so." Am. Polyak Compl. ¶¶ 5-6. The factual allegations underlying Plaintiff‟s claim against Nurse Polyak require proof that he witnessed the alleged assault and that he could have acted safely to try to stop others from assaulting Plaintiff. They do not require a showing that he deviated from the professional standard of care for registered nurses. Accordingly, no affidavit of merit is necessary here and the Court must deny Nurse Polyak‟s motion to dismiss pursuant to the affidavit of merit statute.*fn3