It has been 20 years since the first version of the Affidavit of Merit was passed and 10 years since its revision, yet there are still seemingly meritorious cases being dismissed with prejudice despite the statute’s stated goal of dismissing frivolous or nonmeritorious cases, while allowing meritorious cases to proceed.

The original Affidavit of Merit Bill, N.J.S.A. 2A:53A-26 to -29, enacted in 1995 as part of a tort reform bundle, was intended to strike a fair balance between preserving a person’s right to sue and controlling nuisance suits. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 149 (2003), quoting the Office of the Governor, News Release 1 (June 29, 1995). Under the original version of N.J.S.A. 2A:53A-27, the expert signing the affidavit of merit needed to be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person’s practice substantially to the general area or specialty involved in the action for a period of at least five years. N.J.S.A. 2A:53A-27. An expert in one field was clearly permitted to testify against a defendant in another specialty if there were relevant areas of overlap. Wacht v. Farooqui, 312 N.J. Super. 184 (App. Div. 1998); Burns v. Belafsky, 166 N.J. 466 (2001).

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