WILLIAM BASSLER, District Judge
Defendants Joseph Maran, Esq. and Maran Maran, P.C. ("the Maran firm"); Gerald J. Dugan, Esq., Mark C. Cavanaugh, Esq. and Dugan, Brinkmann, Maginnis and Pace ("the Dugan firm"); David M. Weissman, Esq., Michael A. Forresta, Esq., and DuBois, Sheehan, Hamilton, Levin ("the DuBois firm") move separately for dismissal with prejudice pursuant to N. J. Stat. Ann. § 2A: 53A-26. The Court decided this motion on the papers and without oral argument, pursuant to Fed.R.Civ.P. 78. For the following reasons, motion for dismissal by Defendants Maran and the Maran firm is denied, and motion for dismissal by Defendants Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and the DuBois firm is granted.
I. BACKGROUND
Charles Manley ("Plaintiff") hired the individual Defendants at various times from 1995 to 1998 to perform legal services and represent him in a personal injury suit arising from a 1995 automobile accident. Most of the Defendants withdrew from the case at various times before trial. Defendants Maran and the Maran firm represented Plaintiff during the actual jury trial in this Court. Plaintiff lost the suit at jury trial in 2000, and the case was dismissed with prejudice.
On May 24, 2002, Plaintiff filed suit against Defendants in the United States District Court, District of New Jersey. In the complaint, Plaintiff sought recovery of damages for alleged negligent legal representation.
On September 4, 2002, Dugan, Cavanaugh, and the Dugan firm filed an Answer. On September 5, 2002, Weissman, Forresta, and the DuBois firm filed an Answer. On September 16, 2002, Maran and the Maran firm filed an Answer.
On September 18, 2002, Defendants Taylor, Arrigo, and White ("Taylor"), not joining in the motion under consideration here, filed a notice of Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On October 9, 2002, Plaintiff filed a Response in Opposition to Motion to Dismiss by Taylor. This Court has denied Taylor's motion on the grounds that Plaintiff successfully stated a claim in his pleadings.
On January 15, 2003, Weissman, Forrestsa, and the DuBois firm filed a notice of Motion to Dismiss with prejudice pursuant to N. J.Stat. Ann. § 2A: 53A-26. On February 6, 2003, Maran and the Maran firm filed a notice of Motion to Dismiss with prejudice pursuant toN.J.Stat.Ann. § 2A: 53A-26. On February 14, 2003, Dugan, Cavanaugh, and the Dugan firm filed a notice of Motion to Dismiss with prejudice pursuant to N.J.Stat.Ann. § 2A: 53A-26. On February 24, 2003, Plaintiff filed a Response in opposition to Motions to Dismiss by Weissman, Forresta, the DuBois firm, Maran, the Maran firm, Dugan, Cavanaugh, and the Dugan firm.
Plaintiff has on several occasions requested a complete set of records pertaining to his case from Maran and the Maran firm. Maran and the Maran firm have not turned over all such records to Plaintiff.
II. DISCUSSION N.J.Stat.Ann. § 2A:53A-27 places an extra pleading requirement on a plaintiff in a malpractice action against a licensed professional. It requires that the plaintiff:
. . . within 60 days following the date of the 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 . . .
N. J.Stat.Ann. § 2A:53A-27. "The overall purpose of the statute is `to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation.'"
Cornblatt v. Barow,
153 N.J. 218, 242, 708 A.2d 401, 412 (1998)
(quoting In re Petition of Hall,
147 N.J. 379, 391, 688 A.2d 81, 87 (1997)). Federal courts in New Jersey sitting in diversity must apply this statute, as it does not conflict with a Federal Rule of Civil Procedure.
Chamberlain v. Giampapa,
210 F.3d 154, 157 (3d Cir. 2000).
The statute, however, provides a "sworn statement" alternative to the affidavit of merit requirement:
An affidavit shall not be required pursuant to [
N.J.Stat.Ann. § 2A:53A-27] if the plaintiff provides a sworn statement in lieu of the affidavit setting forth that: the defendant has failed to provide the plaintiff with medical records or other records or information
having a substantial bearing on preparation of the affidavit; a written request therefore along with, if necessary, a signed authorization by the plaintiff for the release of the medical records or other records or information requested, has been made by certified mail or personal service; and at least 45 days have elapsed since the defendant received the request.
N.J.Stat.Ann. § 2A:53A-28. This alternative applies in cases where a plaintiff has properly requested materials from a defendant that will have bearing on the required Affidavit of Merit, yet the defendant has not complied.
In creating the Affidavit of Merit requirement, the New Jersey legislature certainly intended to raise the bar against meritless malpractice litigation. Cornblatt at 242. But it just as certainly did not intend to provide a loophole through which defendants could quash potentially meritorious litigation:
The purpose of [
N.J.Stat.Ann. § 2A:53A-27] . . . is not to afford malpractice defendants with a sword to fight off a malpractice action by procrastinating in providing records . . . that a competent, conscientious expert would have to analyze before submitting an Affidavit of Merit . . . The Legislature, in part, recognized the potential for such intransigency when it created the in lieu of affidavit procedure under
N.J.S.A. 2A:53A-28. That procedure affords a plaintiff a vehicle to prevent a malpractice defendant from defeating a malpractice claim prematurely by failing to provide the data necessary for an expert to render an Affidavit of Merit.
Barreiro v. Morais,
318 N.J. Super. 461, 470, 723 A.2d 1244, 1248 (1999). Because Manley has been unable to obtain all relevant records of his case from Maran and the Maran firm, Plaintiff is entitled to avail himself of the sworn statement alternative.
Whether or not he has properly done so is the next question.
Again, the statute waives the requirement for an Affidavit of Merit "if the plaintiff provides a sworn statement in lieu of the affidavit . . ." The statute does not specify what form the sworn statement must take, or in what manner the plaintiff must provide it, only that the plaintiff must provide it. When read for its plain meaning, the statute describes exactly what Plaintiff has done with respect to Maran and the Maran firm.
Plaintiff filed a Brief in Opposition to Taylor's Motion to Dismiss, which set forth that Maran's and the Maran firm's failure to grant Plaintiff access to the case file was responsible for "any weakness in satisfying the requirements for filing a valid complaint." (Plaintiff's Brief in Opposition to Defendants Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) at 3.) Plaintiff certified the truth of that Brief, making it a sworn statement; and he served the Brief on Maran and the Maran firm as well as on Taylor, on October 8, 2002 (Id., at 5). Plaintiff also provided, as exhibits to his Response in Opposition to the motion currently under consideration, copies of requests he made of Maran and the Maran firm for the case file. Plaintiff always made these requests by certified mail, and made the first request as long ago as May 10, 2000, more than meeting the 45-day requirement of the statute. Finally, Plaintiff filed that Brief on October 7, 2002, less than sixty days after Defendants filed Answers.
Plaintiff did not emphasize that his brief in opposition to Taylor's motion to dismiss also fulfilled the requirements ofN. J.Stat.Ann. § 2A:53A-28, nor did he draw special attention to the manner in which the brief fulfilled those requirements. But the brief clearly did meet those requirements. Having provided a sworn statement that meets the requirements of N.J.Stat.Ann. § 2A:53A-28, Plaintiff is no longer subject to the requirements ofN.J.Stat.Ann. § 2A:53A-27. This Court must therefore deny the motion to dismiss from Maran and the Maran firm on those grounds.
Lastly, the question arises as to whether Maran's and the Maran firm's failure to turn over Plaintiff's trial records prevents the other Defendants from succeeding on this motion. This Court's conclusion is that it does not. Maran's and the Maran firm's actions may have impeded Plaintiff with regards to his suits against all the Defendants, but Plaintiff has not satisfied the requirements of eitherN.J.Stat.Ann. § 2A:53A-27 or 28 with respect to the other Defendants.
N.J.Stat.Ann. § 2A:53A-28 mentions only a singular "defendant" whom the plaintiff must swear "has failed to provide the plaintiff with . . . records or information having a substantial bearing on preparation of the affidavit" and to whom the plaintiff must have made "a written request . . . for the release of the . . . records or information." It thus fails to contemplate a situation where several licensed professionals have served the plaintiff serially, each one in turn possibly passing any relevant records along to the next, some of whom might therefore no longer be in possession of records relevant to their own alleged negligence. There is also no caselaw relevant to such a scenario.
It is possible that Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and the DuBois firm are no longer in possession of any relevant records, but this is not a distinction for which the statute provides. Just as clearly as Plaintiff has shown that he met the requirements of the sworn statement alternative with respect to Maran and the Maran firm, he has not so shown with respect to Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and the DuBois firm. Plaintiff has not provided records of requests he may have made to Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and/or the DuBois firm for records of his case or of inquiries to them regarding whether such records exist. It therefore follows that Plaintiff cannot have provided a sworn statement to the effect that Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and/or the DuBois firm have failed to respond to such requests.
In light of Maran's and the Maran firm's withholding of files that may have bearing on all of the Defendants in this case, Plaintiff's resulting inability to comply with N.J.Stat.Ann. § 2A:53A-27, and Plaintiff's use of the alternative presented in N. J. Stat.Ann. § 2A.-53A-28, this Court cannot excuse Maran or the Maran firm from these proceedings on the basis of the Affidavit of Merit requirement. Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and the DuBois firm, however, must be excused.
III. CONCLUSION
Because Plaintiff has satisfied the "sworn statement" requirement ofN.J.Stat.Ann. § 2A:53A-28 as an alternative to the "affidavit of merit" requirement of §§ 2A:53A-26 and 2A:53A-27 with respect to Defendants Maran and the Maran firm, motion to dismiss from Defendants Maran and the Maran firm is denied. Because Plaintiff has failed to satisfy that requirement with respect to Defendants Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and the DuBois firm, motion to dismiss from Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and the DuBois firm is granted. An appropriate order will follow.
ORDER
This matter having come before the Court on motion by Defendants Joseph Maran, Esq. and Maran Maran, P.C. ("Maran"); Gerald J. Dugan, Esq., Mark C. Cavanaugh, Esq. and Dugan, Brinkmann, Maginnis and Pace ("the Dugan firm"); David M. Weissman, Esq., Michael A. Forresta, Esq., and DuBois, Sheehan, Hamilton, Levin ("the DuBois firm"), for dismissal with prejudice pursuant to N.J.Stat.Ann. § 2A:53A:26; and
The Court having considered the submissions of the parties; and For the reasons set forth in the Court's Opinion filed this day; and
For good cause shown;
IT IS on this 1st day of AUGUST, 2003, hereby ORDERED that motion for dismissal from Maran and the Maran firm is denied, and motion for dismissal from Dugan, Cavanaugh, the Dugan firm, Weissman, Forresta, and the DuBois firm is granted.