1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Stephen Meehan v. Peter Antonellis, DMD (075265) (A-45-14)

Argued March 15, 2016 – Decided August 9, 2016

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court. 

In this appeal involving the Affidavit of Merit statute (AOM statute), N.J.S.A. 2A:53A-26 to -29, the Court 

determines whether an affiant submitting an affidavit of merit must have credentials equivalent to those of the 

defendant, either pursuant to the like-qualified standard of the Patients First Act, N.J.S.A. 2A:53A-41 (section 41), 

or under the credentials standards outlined in N.J.S.A. 2A:53A-27 (section 27) of the AOM statute. The Court also 

determines the sufficiency of the affidavit of merit that plaintiff submitted in support of his action against defendant 

for dental malpractice. 

Plaintiff consulted defendant, an orthodontist, seeking treatment for sleep apnea. Defendant fitted plaintiff 

with a dental appliance intended to reduce plaintiff’s symptoms. After wearing the device while sleeping, plaintiff 

noticed that his teeth had shifted. A subsequent sleep study revealed that plaintiff’s symptoms worsened during the 

time that he used the appliance. Defendant attempted to remedy plaintiff’s condition with a new appliance, without 

success. Plaintiff filed an action for dental malpractice against defendant, alleging that defendant’s treatment 

created large gaps between his teeth and worsened his sleep apnea condition. Defendant’s answer to the complaint 

did not identify the field in which he specialized and whether his treatment of plaintiff involved that specialty, as 

required by Rule 4:5-3. 

Plaintiff filed a timely affidavit of merit from a dentist who specializes in prosthodontics and has over 

twenty years of experience in the treatment of sleep apnea. He opined that defendant’s failure to inform plaintiff of 

the risks associated with use of the dental device fell outside the standards of care for oral appliance therapy. 

Defendant filed a motion to dismiss plaintiff’s complaint with prejudice, asserting that plaintiff was required to 

submit an affidavit of merit from a like-qualified dentist, which, in this case, was an orthodontist. The trial court 

granted defendant’s motion and dismissed plaintiff’s complaint with prejudice. The court held that section 27 of the 

AOM statute required that the affidavit of merit be submitted by a like-qualified professional who practices in the

same specialty or subspecialty as the defendant, and therefore required plaintiff to submit an affidavit of merit from 

an orthodontist. The court denied plaintiff’s motion for reconsideration, finding that the affiant and defendant were 

not equivalently qualified because the affiant specialized in different areas of practice. 

The Appellate Division affirmed the orders dismissing plaintiff’s complaint with prejudice and denying 

reconsideration. The appellate panel recognized the distinction between medical malpractice and dental malpractice 

actions, but found that the credentialing requirements for affiants who provide an affidavit in a medical malpractice 

action under section 41 of the Patients First Act also apply to section 27 of the AOM statute. Applying that 

standard, the panel concluded that plaintiff’s affiant lacked the requisite statutory qualifications to issue an affidavit 

of merit against the defendant. 

 This Court granted plaintiff’s petition for certification. 221 N.J. 218 (2015).

HELD: The enhanced requirements of section 41 of the Patients First Act which govern the qualifications of 

persons permitted to submit an affidavit of merit, or provide expert testimony, in a medical malpractice action, apply 

only in medical malpractice actions. In all other actions against a licensed professional, section 27 of the AOM 

statute prescribes the qualifications of the person who may submit an affidavit of merit against a licensed 

professional. The affidavit of merit that plaintiff submitted in this action, from a licensed dentist with experience in 

the treatment of sleep apnea, satisfies section 27. The trial court therefore improperly dismissed the complaint.

1. The AOM statute is intended to eliminate frivolous claims against licensed professionals early in the litigation 
2

process, and to permit meritorious claims to proceed efficiently. Under section 27 of the statute, a plaintiff alleging 

that certain designated professionals negligently performed professional services is required to provide an affidavit 

from an expert attesting to the merits of the claim. The submission of an affidavit of merit is considered an element 

of the claim, and the failure to submit an appropriate affidavit of merit ordinarily requires dismissal of the complaint 

with prejudice. However, a complaint will not be dismissed if the plaintiff has substantially complied with the 

affidavit of merit obligations. Additionally, if the plaintiff can demonstrate extraordinary circumstances that 

prevented compliance, the complaint will be dismissed without prejudice. An accelerated case management 

conference, as required by Ferreira v. Rancocas Orthopedic Assocs. 178 N.J. 144 (2003), is intended to identify and 

address, early in the litigation, any issues concerning the affidavit of merit. (pp. 14-18)

2. Section 27 of the AOM statute was amended in 2004 to direct that medical malpractice actions comply with 

section 41 of the Patients First Act. Section 41 precludes a person from providing expert testimony or executing an 

affidavit of merit in a medical malpractice action unless the expert or affiant is a licensed physician or other health 

care professional in the United States, and meets other standards, depending on the qualifications and area of 

practice of the party against whom or on whose behalf the testimony is provided. In all negligence actions against 

designated licensed professionals, other than medical malpractice actions, the affidavit of merit is governed by the 

original provisions of section 27. (pp. 18-20) 

3. In determining whether the enhanced credential standards stated in section 41 apply to an action for dental 

malpractice, the Court examines the legislative intent of the statute. The plain language of section 41 states that the 

like-qualified standards apply only to physicians who are defendants in medical malpractice actions. This 

interpretation is also supported by and consistent with the stated purpose of the Patients First Act and its legislative 

history. The issues regarding the delivery of health care that the Legislature identified and the measures that the 

Legislature adopted to address them with the adoption of section 41 pertain only to physicians, without reference to 

any other licensed professionals. Under the plain language of sections 27 and 41, the enhanced credential 

requirements established by section 41 for those submitting affidavits of merit and expert testimony apply only to 

physicians in medical malpractice actions. (pp. 21-25)

4. Section 27, which is applicable here, does not impose a like-qualified standard for an affiant who submits an 

affidavit of merit in a negligence action against designated professionals. The language of section 27 under 

consideration has remained unchanged since the AOM statute was adopted in 1995. Section 27 requires the affiant 

to be licensed in this or another state, and have particular expertise in the general area or specialty involved in the 

action, and addresses the manner in which that expertise may be demonstrated. There is no textual support for the 

application of the like-qualified requirement of section 41 to affiants submitting an affidavit of merit against 

designated professionals under section 27. (pp. 25-26)

5. Based on the statute’s plain language and the manner in which it has been applied since its adoption, the Court 

concludes that section 27 requires no more than that the person submitting an affidavit of merit be licensed in this or 

another state, and have particular expertise in the general area or specialty involved in the action. The enhanced 

requirements of section 41 governing the qualifications of persons permitted to submit an affidavit of merit, or 

provide expert testimony against or in support of a physician in a medical malpractice action, apply only in medical 

malpractice actions. In this case, the affiant is a licensed dentist who has particular expertise in the diagnosis and 

treatment of sleep apnea, the general area involved in the professional negligence action that plaintiff commenced. 

Measured by these standards, the affidavit of merit that plaintiff submitted satisfied the requirements of section 27. 

(pp. 28-34) 

 

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court 

for further proceedings.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA and 

SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE PATTERSON did not participate. 
1

SUPREME COURT OF NEW JERSEY

A-45 September Term 2014

075265

STEPHEN MEEHAN,

Plaintiff-Appellant,

v.

PETER ANTONELLIS, DMD,

Defendant-Respondent.

Argued March 15, 2016 – Decided August 9, 2016

On certification to the Superior Court, 

Appellate Division.

E. Drew Britcher argued the cause for 

appellant (Britcher Leone, attorneys; Mr. 

Britcher and Jessica E. Choper, on the 

briefs).

Kenneth M. Brown argued the cause for 

respondent (Wilson, Elser, Moskowitz, 

Edelman & Dicker, attorneys; Robert T. 

Gunning, of counsel and on the briefs).

Abbott S. Brown argued the cause for amicus

curiae New Jersey Association for Justice 

(Lomurro, Munson, Comer, Brown and 

Schottland, attorneys; Mr. Brown, Jonathan 

H. Lomurro, and Christina Vassiliou Harvey, 

on the brief).

John Zen Jackson argued the cause for amicus

curiae Medical Society of New Jersey 

(McElroy, Deutsch, Mulvaney & Carpenter, 

attorneys).

JUDGE CUFF (temporarily assigned) delivered the opinion of 

the Court.
2

In this appeal, we return to the vexing and recurring issue 

of whether an affidavit of merit submitted by a plaintiff in an 

action alleging negligence by a licensed professional satisfies 

the requirements of the Affidavit of Merit statute (AOM 

statute), N.J.S.A. 2A:53A-26 to -29. Plaintiff sought treatment 

for sleep apnea from an orthodontist. Plaintiff used the 

appliance given to him for treatment but complained that it 

caused the dislocation of some teeth. Contending that the 

orthodontist did not inform him that the appliance may dislocate 

teeth, plaintiff filed a complaint alleging that the treating 

orthodontist provided insufficient information to permit him to 

make an informed decision to proceed with the recommended 

treatment.

The trial court conducted a Ferreira1 conference and 

determined that plaintiff submitted a timely affidavit of merit; 

however, the court dismissed with prejudice plaintiff’s 

complaint because plaintiff submitted the affidavit from a 

dentist who specialized in prosthodontics and the treatment of 

sleep apnea. The court stated that plaintiff knew that the 

dentist who treated him was an orthodontist and that the statute 

required submission of an affidavit of merit from a likequalified dentist. In other words, the court determined that 

 

1 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). 
3

plaintiff was required to submit an affidavit of merit from an 

orthodontist rather than an affidavit from a board-certified 

prosthodontist who had specialized in the treatment of sleep 

apnea for twenty years.

Since the adoption in 2004 of the New Jersey Medical Care 

Access and Responsibility and Patients First Act (Patients First 

Act), N.J.S.A. 2A:53A-37 to -42, there has been a proliferation 

of litigation yielding disparate results on whether the enhanced 

qualification standards of the Patients First Act in medical 

malpractice actions apply to negligence actions against all

licensed professionals. In addition, we have repeatedly

addressed the contours of the Ferreira conference due to 

problems with the timing of the conference, the omission of the 

conference in some instances, and the substance of such 

conferences.

In this appeal, we hold that the like-qualified standard2

prescribed in the Patients First Act, N.J.S.A. 2A:53A-41 

(section 41), applies only in actions for medical malpractice. 

In all other negligence actions against a licensed professional, 

the credential standards outlined in N.J.S.A. 2A:53A-27 (section 

27) apply. 

 

2 This standard is also referred to in case law and litigation as 

“like-credentialed,” “equivalently credentialed,” “equivalently 

qualified,” and “kind-for-kind.”
4

The Ferreira conference is designed to identify and 

alleviate issues regarding the affidavit of merit. Here, the 

Ferreira conference failed to accomplish one of its primary 

functions, that is, determining whether the treatment provided 

by the professional defendant involved the defendant’s 

specialty. Normally, we would vacate the dismissal with 

prejudice and remand to permit the plaintiff to obtain an 

affidavit of merit from a qualified professional. That remedy

is unnecessary here. There is no need to prolong this already 

protracted matter because we conclude that the affidavit of 

merit submitted by plaintiff satisfies the credential 

requirements of section 27. We therefore reverse the judgment 

of the Appellate Division and remand the matter to the trial 

court for further proceedings.

I.

We derive the facts from a record limited to the 

transcripts of the Ferreira conference, the motion to dismiss,

and the motion for reconsideration, as well as the briefs and 

exhibits submitted in support of and in opposition to those 

motions. 

Plaintiff consulted defendant for treatment for sleep 

apnea. On May 4, 2010, defendant fitted plaintiff with a dental 

appliance known as a positioner. The device was intended to 

help reduce plaintiff’s sleep apnea symptoms. Plaintiff asserts 
5

that he expressed a concern that the device would cause his 

teeth to shift and that defendant “unequivocally assured” him 

that his teeth would not move. After wearing the device while 

sleeping, plaintiff noticed that his teeth had shifted. 

Plaintiff decided to undergo a sleep study, which revealed that 

plaintiff’s condition had progressed from moderate to severe 

during the period of time that he used the appliance. Defendant 

unsuccessfully attempted to remedy plaintiff’s condition with a 

new appliance. 

On August 29, 2012, plaintiff filed a complaint against 

defendant alleging that defendant’s treatment caused chronic 

muscle pain and headaches, created large gaps between his teeth, 

and worsened his sleep apnea condition. Defendant filed an 

answer on October 11, 2012. The answer did not identify the 

field in which defendant specialized and whether his treatment 

of plaintiff involved that specialty as required by Rule 4:5-3. 

A Ferreira conference was conducted on January 18, 2013. 

At the outset of the conference, the trial court did not realize 

the nature of the conference. Defense counsel promptly informed 

the court that plaintiff had not filed an affidavit of merit and 

that the document was due in about three weeks. Addressing 

plaintiff, who was self-represented, the trial court informed 

plaintiff that he was required to submit an affidavit of merit. 

Plaintiff stated that he was familiar with the affidavit of 
6

merit requirement but requested the court “to explain [the 

requirement], just to make sure there is no misunderstanding[.]”

The trial court proceeded to explain the purpose of the 

affidavit of merit, mentioned that the affidavit was not a 

substitute for expert testimony at trial about the standard of 

care, and emphasized that the failure to submit an affidavit, or 

the submission of a noncompliant affidavit, would trigger a 

motion to dismiss the complaint. Plaintiff asked whether the 

period for calculating the due date of the affidavit ran from 

the date the answer was filed or when it was received by him.

The trial court did not directly answer that question. Rather, 

the court stated, “You could make that argument.” The trial 

court also informed plaintiff that a good faith effort to obtain 

an affidavit may not satisfy the statutory requirement for 

production of an affidavit of merit. 

At the conclusion of the Ferreira conference, the trial 

court realized that the matter was a dental malpractice claim.

The trial court informed plaintiff that the affidavit “would 

have to come from a dentist or one who practices dentistry.”

When plaintiff advised the trial court that defendant had not 

identified any area of specialty or whether his treatment 

involved that specialty, the court initially advised plaintiff 

that the information could be obtained through discovery. The 

following exchange occurred:
7

THE COURT: I’m not sure what you mean by 

that.

[PLAINTIFF]: He’s supposed to -- by the 

rules of the court he’s supposed to respond 

what field of medicine he’s practicing and 

with this appliance (phonetic) -- apparently, 

he’s an orthodontist, and I believe he is 

practicing outside his field of expertise.

THE COURT: There’s -- there’s discovery, 

which can take place. But I would just -- I 

don’t want you to be distracted. There’s 

certainly time to pronounce interrogatories 

or, if you feel necessary, take depositions.

But if this affidavit of merit issue is 

not resolved there won’t be any discovery in 

this case. Because there won’t be any case 

for discovery to take place.

[PLAINTIFF]: Uh hum.

THE COURT: All right?

[PLAINTIFF]: Okay.

THE COURT: Okay.

[PLAINTIFF]: Okay. Thank you --

THE COURT: Thank you.

[PLAINTIFF]: -- for letting me try to 

voice my --

THE COURT: That’s okay. All right.

[DEFENSE COUNSEL]: Thank you, Judge.

At no time did the trial court address defendant’s failure to 

provide the information required by Rule 4:5-3. Defense counsel 

did not provide any information about whether defendant’s 

treatment of plaintiff involved the specialty of orthodontics. 
8

Plaintiff filed a timely affidavit of merit from Dr. Mark 

Samani, a dentist who specializes in prosthodontics and has over 

twenty years of experience in the treatment of sleep apnea. Dr. 

Samani stated that

[j]aw movement, tooth movement and even 

tempor[o]mandibular joint pain are all know[n] 

complications associated with oral appliance 

therapy for the treatment of obstructive sleep 

apnea. These complications arising in and of 

themselves are not breach[es] of the standards 

of care. Based on my knowledge, education and 

experience in the treatment of obstructive 

sleep apnea with oral appliances, if the 

patient was not informed about these very real 

possibilities, as stated by Mr. Meehan, th[e]n 

the patient was not given the opportunity to 

make an educated decision on treatment and the 

informed consent process fell outside the 

standards of care for oral appliance therapy 

for the treatment of obstructive sleep apnea.

Defendant filed a motion to dismiss plaintiff’s complaint 

with prejudice, asserting that plaintiff was required to submit 

an affidavit of merit from a like-qualified dentist, that is, an 

orthodontist. During oral argument on the motion, plaintiff 

advised the trial court that he was aware that defendant was an 

orthodontist but was under the impression that defendant was not 

treating him as an orthodontist. Plaintiff explained that he

sought and obtained an affidavit from a dentist who specializes

in the treatment of sleep apnea.

The trial court granted defendant’s motion and dismissed 

plaintiff’s complaint with prejudice. In a written statement 
9

accompanying the order, the trial court declared that section 27 

required that the affidavit of merit be submitted by a likequalified professional. Addressing the affidavit submitted by 

plaintiff, the trial court determined that “the fact that Dr. 

Samani is an expert in sleep apnea is irrelevant in this 

malpractice claim because the statute clearly requires the 

affidavit of merit to be submitted by a person who practices in 

the same specialty or subspecialty.” Thus, the court declared 

that plaintiff was required to submit an affidavit of merit from 

an orthodontist. The trial court determined that plaintiff had 

not applied for a waiver pursuant to section 41, or shown 

exceptional circumstances to permit a deviation from the 

statutory requirement of a like-qualified professional, or 

satisfied the good faith requirements of Ryan v. Renny, 203 N.J.

37 (2010). 

In response to plaintiff’s motion for reconsideration, 

which the trial court denied, the trial court elaborated on its 

reasoning in a written opinion. Relying on Buck v. Henry, 207 

N.J. 377, 389 (2011), the court declared that the expert 

providing the affidavit of merit “should be equivalentlyqualified to the defendant” physician. The court also

determined that the affiant and defendant were not equivalently

qualified because the affiant specialized in prosthodontics and 

defendant specialized, and rendered treatment to plaintiff, in
10

orthodontics. The trial court asserted that a dismissal with 

prejudice of plaintiff’s complaint was consistent with the rule 

announced in Nicholas v. Mynster, 213 N.J. 463 (2013), an 

opinion issued following entry of the order granting a

defendant’s motion to dismiss. The court also reasoned that it 

could not provide any relief from the strict requirements of the 

Patients First Act because plaintiff had not applied for a 

waiver. 

The Appellate Division affirmed the orders dismissing

plaintiff’s complaint with prejudice and denying reconsideration 

in an unpublished opinion. Relying on this Court’s 

interpretation of section 41 in Nicholas, id. at 481-82, the 

Appellate Division applied credentialing requirements for those 

providing an affidavit of merit or expert testimony in a medical 

malpractice action to a dental malpractice action, and declared 

that “a plaintiff’s medical expert must possess the same 

specialty or subspecialty as the defendant physician.” The 

appellate panel recognized the distinction between medical 

malpractice and dental malpractice actions but determined that 

“the Patient[s] First Act’s detailed standards for experts 

executing an [affidavit of merit] . . . are consistent with the 

limitations found in [section 27,] which . . . mandates that 

experts in other professional malpractice actions possess 

particular expertise in the specialty involved in the action.” 
11

Applying that standard, the panel concluded that plaintiff’s 

affiant “lacked the requisite statutory qualifications to issue 

an [affidavit of merit] against defendant.” The appellate panel 

also determined that defendant’s failure to identify his 

specialty was not fatal because the Ferreira conference record 

demonstrated that plaintiff knew that defendant was an 

orthodontist. 

The Court granted plaintiff’s petition for certification to

address three questions: (1) whether the Appellate Division 

erred in extending the Patients First Act to dental malpractice 

actions; (2) whether the Appellate Division erred in determining 

that plaintiff’s affidavit of merit from Dr. Samani was 

insufficient because it was not from an orthodontist; and (3) 

whether, due to the alleged Ferreira conference failures, 

exceptional circumstances exist warranting reinstatement of 

plaintiff’s complaint. Meehan v. Antonellis, 221 N.J. 218 

(2015).

II.

A.

Plaintiff asserts that the plain language of section 41

dictates that the enhanced or like-qualified requirements of the 

Patents First Act apply only to medical malpractice actions. 

Plaintiff acknowledges that the Appellate Division noted that 

section 41 applies only to medical malpractice actions, but
12

states that the panel nonetheless proceeded to apply the expert 

credential requirements governing medical malpractice actions to 

this dental malpractice action. Plaintiff further argues that 

the affidavit of merit submitted by Dr. Samani satisfied the 

qualification requirements of section 27 because plaintiff 

received treatment for sleep apnea, Dr. Samani is a licensed 

dentist who specialized in prosthodontics, a specialty that 

treats sleep apnea, Dr. Samani has specialized in the treatment 

of sleep apnea for over twenty years, and the treatment provided 

by defendant to plaintiff did not fall solely within the field 

of orthodontics.

In the alternative, if this Court determines that Dr.

Samani’s affidavit of merit does not satisfy the statutory 

requirements for this dental negligence matter, plaintiff 

requests that this Court permit him additional time to present a 

conforming affidavit. Plaintiff maintains that the Ferreira

conference did not adequately address the issue of defendant’s 

qualifications as required by Buck, supra, 207 N.J. at 394-95. 

B.

Defendant argues that the Appellate Division correctly 

affirmed the dismissal with prejudice of plaintiff’s complaint 

because plaintiff failed to serve an appropriate affidavit of 

merit. Defendant maintains that plaintiff knew defendant was an 

orthodontist, and therefore, the affiant must be an 
13

orthodontist, that plaintiff never asserted his claim was 

limited to informed consent, and that the appellate panel did 

not extend the Patients First Act to dentists. Defendant argues 

that the trial court said nothing at the Ferreira conference 

that would have led plaintiff to believe that he could submit an 

affidavit of merit from any licensed dentist other than an 

orthodontist. Addressing plaintiff’s contention that 

defendant’s silence in his answer and at the conference about 

his specialty contributed to the submission of an affidavit by a 

dentist other than one specializing in orthodontics, defendant 

argues that he also “never asserted that he treated [plaintiff] 

outside of his dental practice specialty of orthodontics.” In 

other words, defendant argues that plaintiff should have assumed 

that the treatment provided by defendant fell within the 

specialty of orthodontics unless and until he was informed to 

the contrary.

Furthermore, defendant argues that section 27 requires 

“particular expertise in the general area or specialty involved 

in the action.” Asserting that he treated plaintiff from 2002 

to 2012 exclusively as an orthodontist, defendant maintains that

the record does not support a conclusion that he treated 

plaintiff as a general dentist or in any way outside his 

established specialty. Defendant acknowledges that Dr. Samani 

has devoted over twenty years to the treatment of sleep apnea 
14

but maintains that plaintiff has not established that Dr. 

Samani’s prosthodontics specialty overlaps with defendant’s 

specialty in orthodontics. 

C.

Amicus curiae New Jersey Association for Justice (NJAJ) 

argues that the Patients First Act unconstitutionally interferes 

with the judiciary’s power to regulate practice and procedure in 

the courts. Amicus curiae Medical Society of New Jersey (MSNJ) 

recognizes that the issue raised by NJAJ is not within the scope 

of the order granting certification. Nevertheless, MSNJ 

responds that the AOM statute and the Patients First Act do not 

transgress the separation of powers doctrine because the 

Patients First Act addresses substantive elements of a cause of 

action rather than the admissibility of evidence. MSNJ also 

argues that dismissals for noncompliance with either statute 

should be without prejudice. 

III.

The stated purpose of the AOM statute, N.J.S.A. 2A:53A-26 

to -29, is laudatory -- to weed out frivolous claims against 

licensed professionals early in the litigation process. 

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146 

(2003). The submission of an appropriate affidavit of merit is 

considered an element of the claim. See Alan J. Cornblatt, P.A.

v. Barow, 153 N.J. 218, 244 (1998) (holding that failure to 
15

submit affidavit of merit “goes to the heart of the cause of 

action as defined by the Legislature”). Failure to submit an 

appropriate affidavit ordinarily requires dismissal of the 

complaint with prejudice. Id. at 243.

On its face, the AOM statute did not seem to impose “overly 

burdensome obligations,” Ferreira, supra, 178 N.J. at 146, yet 

this single piece of legislation has unleashed a veritable 

avalanche of litigation. This Court addressed the initial 

statute, originally enacted in 1995, nine times before the 

Legislature adopted further obligations regarding medical 

malpractice actions in 2004. Id. at 144; Palanque v. LambertWoolley, 168 N.J. 398 (2001); Hubbard ex rel. Hubbard v. Reed, 

168 N.J. 387 (2001); Fink v. Thompson, 167 N.J. 551 (2001); 

Christie v. Jeney, 167 N.J. 509 (2001); Galik v. Clara Maass

Med. Ctr., 167 N.J. 341 (2001); Burns v. Belafsky, 166 N.J. 466 

(2001); Cornblatt, supra, 153 N.J. 218; In re Petition of Hall, 

147 N.J. 379 (1997). 

Consistent with the dual purposes of the statute to 

identify and eliminate unmeritorious claims against licensed 

professionals and to permit meritorious claims to proceed 

efficiently through the litigation process, Hubbard, supra, 168 

N.J. at 395, the Court fashioned two equitable remedies “that

temper the draconian results of an inflexible application of the 

statute,” Ferreira, supra, 178 N.J. at 151. Thus, a complaint 
16

will not be dismissed if the plaintiff substantially complied 

with the affidavit of merit obligations, Palanque, supra, 168 

N.J. at 405-06; Fink, supra, 167 N.J. at 351-59, and a complaint 

will be dismissed without prejudice if the plaintiff can 

demonstrate extraordinary circumstances that prevented 

compliance, Palanque, supra, 168 N.J. at 404-05.

Still, problems persisted, turning the seemingly

straightforward obligations of the statute into a procedural 

minefield and spawning a new subset of motion practice in 

professional liability litigation. It was in this context that 

the Court declared in Ferreira that an accelerated case 

management conference should be conducted within ninety days of 

the filing of an answer to identify and address any and all 

issues concerning the affidavit of merit served or not served by 

the plaintiff. The Court directed that,

[a]t the conference, the court will address 

all discovery issues, including whether an 

affidavit of merit has been served on 

defendant. If an affidavit has been served, 

defendant will be required to advise the court 

whether he has any objections to the adequacy 

of the affidavit. If there is any deficiency 

in the affidavit, plaintiff will have to the 

end of the 120-day time period to conform the 

affidavit to the statutory requirements. If 

no affidavit has been served, the court will 

remind the parties of their obligations under 

the statute and case law.

[Ferreira, supra, 178 N.J. at 155.]
17

Soon thereafter, the Legislature enacted the Patients First

Act, adding further obligations to the affidavit of merit 

requirement. This appeal presents the fourth occasion for this 

Court to consider the issues that have arisen from the 2004 

amendments. See Nicholas, supra, 213 N.J. 463; Buck, supra, 207 

N.J. 377; Ryan, supra, 203 N.J. 37.

In this appeal, we address two issues. First, we address 

whether the like-credential requirements of section 41 apply in 

professional negligence actions other than medical malpractice 

actions. Second, we address whether the Ferreira conference 

conducted in this matter adequately addressed the sufficiency of 

the affidavit of merit required for plaintiff’s dental 

malpractice action to proceed. We review these legal issues de 

novo. See Mortgage Grader, Inc. v. Ward & Olivio, L.L.P., ___ 

N.J. ___, ___ (2016) (slip op. at 10) (“An appellate court 

interprets both statutes and court rules de novo.”). We 

commence our discussion with the interpretive issue presented by 

the affidavit of merit submitted by plaintiff in this action. 

A.

The starting point for our inquiry is the text of two 

statutes -- N.J.S.A. 2A:53A-27 and -41. Section 27 is the

central element of legislation adopted in 1995 and commonly 

referred to as the AOM statute. L. 1995, c. 139. In general 

terms, the Legislature established a procedure that required a 
18

person alleging that certain designated professionals 

negligently performed professional services to produce an 

affidavit from an expert attesting to the merits of the claim. 

Dentists were and continue to be among the licensed persons 

covered by the AOM statute. N.J.S.A. 2A:53A-26(d). 

Section 27, in its original form, provided as follows:

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

. . . 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 . . . standards or 

treatment practices. . . . The person 

executing the affidavit shall 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 five years[.]

[L. 1995, c. 139, § 2 (codified at N.J.S.A.

2A:53A-27).]

The section also requires that the affiant have no financial 

interest in the outcome of the matter. Ibid. 

As part of certain 2004 tort reform measures regarding 

medical malpractice actions, language was added to section 27, 

L. 2004, c. 17, § 8, expressly directing that medical 
19

malpractice actions be treated in accordance with the 

requirements of section 41 of the Patients First Act. As 

amended, the relevant portion of section 27 now states:

In the case of an action for medical 

malpractice, the person executing the 

affidavit shall meet the requirements of a 

person who provides expert testimony or 

executes an affidavit as set forth in [section 

41]. 

[N.J.S.A. 2A:53A-27.]

The standards in the original statute continue to apply “[i]n 

all other cases.” Ibid. In other words, in all negligence 

actions against designated licensed professionals, other than 

medical malpractice actions, the affidavit of merit is governed 

by the original provisions of section 27.

Section 41 “establishes qualifications for expert witnesses 

in medical malpractice actions” and “provides that an expert 

must have the same type of practice and possess the same 

credentials, as applicable, as the defendant health care 

provider, unless waived by the court.” Assembly Appropriations 

Comm., Statement to Assembly No. 50, at 2 (2004). 

Section 41 precludes a person from providing expert 

testimony or executing an affidavit of merit in a medical 

malpractice action unless the expert or affiant is a licensed 

physician or other health care professional in the United States 

and meets other standards, depending on the qualifications and 
20

area of practice of the party against whom or on whose behalf 

the testimony is provided. See N.J.S.A. 2A:53A-41a. The

equivalency or kind-for-kind credential requirement may be 

waived if the moving party demonstrates that a good faith effort 

failed to yield a qualifying expert in the specialty or 

subspecialty, and the trial court determines that the proposed 

expert or affiant has sufficient training, experience, and 

knowledge to provide an opinion. N.J.S.A. 2A:53A-41c. The 

training, education, and experience must be derived from “active 

involvement in, or full-time teaching of, medicine in the 

appropriate area of practice or a related field of medicine.” 

Ibid. 

In Buck, supra, we characterized sections 41a and b of the 

Patients First Act “as setting forth three distinct categories 

embodying this “kind-for-kind” rule:

(1) those who are specialists in a field 

recognized by the American Board of Medical 

Specialties (ABMS) but who are not board 

certified in that specialty;

(2) those who are specialists in a field 

recognized by the ABMS and who are board 

certified in that specialty; and

(3) those who are “general practitioners.”

[207 N.J. at 389.]

See also Nicholas, supra, 213 N.J. 483. 

B.
21

To resolve the interpretive issue before the Court, that 

is, whether a person submitting an affidavit of merit in a 

dental malpractice action must comply with the enhanced 

credential standards set forth in section 41, we must examine 

the canons of statutory interpretation that apply to this case. 

When the interpretation of a statute is at issue, “[t]he 

objective of that task ‘is to discern and effectuate the intent 

of the Legislature.’” Shelton v. Restaurant.com, Inc., 214 N.J.

419, 428-29 (2013) (quoting Murray v. Plainfield Rescue Squad, 

210 N.J. 581, 592 (2012)).

We commence our examination of the text of the AOM statute

and the Patients First Act with section 27. See DiProspero v. 

Penn, 183 N.J. 477, 492 (2005) (stating that best indicator of 

Legislature’s intent is statutory language (citing Frugis v. 

Bracigliano, 177 N.J. 250, 280 (2003)). In 2004, the AOM 

statute was amended to add a sentence to section 27. That

sentence provides that “[i]n the case of an action for medical 

malpractice, the person executing the affidavit shall meet the 

requirements of a person who provides expert testimony or 

executes an affidavit as set forth in [section 41].” L. 2004, 

c. 17, § 8. The 2004 amendment then adds the phrase “in all 

other cases” to the existing sentence that describes the 

credentials for those submitting an affidavit of merit in 

professional negligence actions. Ibid.
22

Section 41 addresses the qualifications for those providing 

expert testimony or an affidavit of merit “in an action alleging 

medical malpractice.” N.J.S.A. 2A:53A-41. The expert or 

affiant must be a licensed physician, ibid., and must meet 

additional criteria depending on the qualifications and area of 

practice of the physician against whom or on whose behalf an 

opinion is offered, N.J.S.A. 2A:53A-41a and b.

The plain language of section 41 states that the likequalified standards apply only to physicians. And it does so 

repeatedly. For example, N.J.S.A. 2A:53A-41a governs parties to 

a medical malpractice action who are specialists or 

subspecialists recognized by the American Board of Medical 

Specialties or the American Osteopathic Association. Those 

organizations recognize and establish the criteria for board 

certification only for physicians. The proposed expert or 

affiant must have specialized in the same specialty or 

subspecialty recognized by those organizations. Only a 

physician may satisfy that standard. Further, if the physician 

party is board certified in a specialty or subspecialty and the 

care and treatment provided by the physician involved that 

specialty or subspecialty, the expert or affiant must be a 

physician with credentials from a hospital to treat patients for 

the medical condition or perform the procedure that is the 

subject of the claim, or a physician who possesses board 
23

certification in the same specialty or subspecialty as the 

physician and has devoted a majority of his or her professional 

practice to that specialty or subspecialty through active 

clinical practice or the instruction of students or both. 

N.J.S.A. 2A:53A-41a. 

Similarly, only a physician falls within the bounds of 

N.J.S.A. 2A:53A-41b. That subsection addresses general

practitioners and limits the expert or affiant to a physician 

(1) actively engaged in “clinical practice as a general 

practitioner” or active in clinical practice involving the 

medical condition or procedure that is the basis of the claim,

or (2) who instructs students at an accredited medical school, 

health professional school, or residency or research program or 

both. Ibid. 

Interpreting section 41’s like-qualified credential 

requirements as applying only to physicians who are defendants 

in medical malpractice actions is also supported by and 

consistent with the stated purpose of the Patients First Act and

its legislative history. See Wilson ex rel. Manzano v. City of 

Jersey City, 209 N.J. 558, 572 (2012) (“When the statutory 

language is sufficiently ambiguous that it may be susceptible to 

more than one plausible interpretation, we may turn to such 

extrinsic guides as legislative history, including sponsor 

statements and committee reports.” (citing Burns, supra, 166
24

N.J. at 473)). In enacting the Patients First Act, the 

Legislature made several findings and declarations regarding the 

state of health care in this State and identified the retirement 

or relocation of physicians as a problem hampering the delivery 

of high-quality health care in New Jersey. See N.J.S.A. 2A:53A38. Furthermore, the Legislature determined that a confluence 

of factors, including a dramatic escalation of medical 

malpractice liability insurance premiums, was related to the 

State’s tort liability system and contributing to the State’s 

shortage of qualified physicians. Ibid. The Legislature

concluded that certain reforms were necessary to counteract the

identified problems. Ibid. One of those reforms is embodied in 

the enhanced standards contained in section 41 governing a 

person who submits an affidavit of merit or an expert opinion in 

favor of or against a physician in a medical malpractice action. 

The problems identified by the Legislature and the measures 

adopted to address those problems pertain only to physicians. 

There is no mention made of any other licensed professional in 

section 41.

In sum, we conclude that the plain language of sections 27 

and 41 lead to the inexorable conclusion that the enhanced

credential requirements established under section 41 for those 

submitting affidavits of merit and expert testimony apply only 

to physicians in medical malpractice actions. See Lozano v. 
25

Frank DeLuca Constr., 178 N.J. 513, 522 (2004) (instructing that 

court applies statute as written when legislative intent is 

clear (citing In re Passaic Cty. Utils. Auth., 164 N.J. 270, 299 

(2000))). This determination does not conclude our inquiry, 

however, for we must determine whether section 27 itself imposes

a similar like-qualified standard for affiants and experts in 

all other negligence actions against designated professionals, 

including dentists.

C.

Plaintiff argues that section 27 does not impose a likequalified standard for the person selected to submit an 

affidavit of merit in this dental malpractice action. Rather, 

plaintiff contends that the affiant must be licensed to practice 

dentistry in this state and have particular expertise in the 

general area or specialty involved, which may be evidenced by 

the affiant substantially devoting his practice to the area or 

specialty involved. 

Defendant disagrees. Defendant argues that only an 

affidavit from a similarly credentialed dentist will satisfy the 

AOM statute because he is a board-certified orthodontist and has 

substantially devoted his practice to orthodontics.

The language under consideration from section 27 is not 

new. Indeed, it has remained unchanged since the AOM statute
26

was adopted in 1995. The only addition to section 27 is a third 

sentence directing that the standards governing the person 

submitting an affidavit of merit or expert testimony against or 

in support of a physician in a medical malpractice action shall 

be governed by section 41. 

On its face, section 27 requires a plaintiff to “provide 

each defendant with an affidavit of an appropriate licensed 

person.” Section 27 requires the affiant to be licensed in this 

or another state and have “particular expertise in the general 

area or specialty involved in the action.” Section 27 then 

addresses the manner in which that expertise may be 

demonstrated. There is simply no textual support for the 

application of the like-qualified requirements of section 41 to 

those submitting an affidavit of merit in negligence actions 

against designated professionals, such as dentists. 

D.

Relatively few opinions have directly addressed the 

sufficiency of credentials of the person submitting the 

affidavit of merit and, specifically, whether the person 

submitting an affidavit of merit must be licensed in the same 

profession or specialize in the same field as the defendant. 

Those cases that have addressed the issue have held that in 

certain circumstances the affiant should be a similarly licensed 

professional but have not addressed whether the affiant must 
27

share the defendant’s specialty. Hill Int’l v. Bd. of Educ., 

438 N.J. Super. 562, 570 (App. Div. 2014) (holding licensed 

engineer not appropriately licensed person to provide affidavit 

of merit against architect), appeal dismissed, 224 N.J. 523 

(2016); Medeiros v. O’Donnell & Naccarato, Inc., 347 N.J. Super.

536, 542 (App. Div. 2002) (holding affidavit of merit submitted 

by licensed engineer and architect against defendant engineering 

firm sufficient); Borough of Berlin v. Remington & Vernick

Eng’rs, 337 N.J. Super. 590, 597-98 (App. Div.) (holding 

licensed professional hydrogeologist appropriately licensed 

person to submit affidavit of merit against defendant 

engineering firm which allegedly negligently sited and 

constructed two wells), certif. denied, 168 N.J. 294 (2001).

Hill International and Berlin emphasize that the likelicensed requirement for the professional submitting the 

affidavit of merit rests on the assumption that the negligent 

services provided by the defendant professional were within his 

or her profession or occupation. Hill Int’l, supra, 438 N.J. 

Super. at 589; Berlin, supra, 337 N.J. Super. at 596-98; see 

also Murphy v. New Road Constr., 378 N.J. Super. 238, 242-43

(App. Div.) (holding that affidavit of merit not required if 

defendant’s conduct does not implicate standards of defendant’s 

profession), certif. denied, 185 N.J. 391 (2005). In Berlin, 

supra, the hydrogeologist affiant was considered an 
28

appropriately licensed person because the complaint focused 

solely on the alleged negligence of the engineering firm in 

failing to adhere to recognized hydrogeologic guidelines, and 

the negligent siting of two wells by its hydrogeologist 

employee. 337 N.J. Super. at 596. In Hill International, 

supra, the appellate panel held that, if the plaintiff’s claim 

implicated the standards of care governing an architect, the 

plaintiff’s affidavit of merit was required to be from an 

architect. 438 N.J. Super. at 594.3

E.

Based on the plain language of section 27 and the manner in 

which it has been applied since its adoption, we conclude that 

section 27 requires no more than that the person submitting an 

affidavit of merit be licensed in this state or another and have 

“particular expertise in the general area or specialty involved 

 

3 A pre-Patients First Act case, Wacht v. Farooqui, 312 N.J. 

Super. 184 (App. Div. 1998), addressed whether the affiant must 

share the same specialty as the defendant. The Appellate 

Division permitted an orthopedic surgeon specializing in 

shoulders and elbows to submit an affidavit of merit against a 

board-certified radiologist. Citing the statutory requirement 

that the affiant must have devoted at least five years to the 

specialty involved in the action, the Appellate Division 

determined that an orthopedic surgeon specializing in shoulders 

possessed the particular expertise required to execute an 

affidavit of merit. Id. at 187-88. The panel also referenced 

the “overlap” of orthopedics and diagnostic radiology to support 

its conclusion that the orthopedic surgeon possessed the 

appropriate expertise to submit an affidavit of merit. Id. at 

188.
29

in the action.” N.J.S.A. 2A:53A-27. Such particular expertise 

is “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.” 

Ibid. (emphasis supplied). Notably, section 27 is bereft of the 

rigid categories established in section 41 for those who are 

general practitioners, board-certified specialists, or nonboard-certified specialists. See N.J.S.A. 2A:53A-41a and b. 

Section 27 also employs the term “or” throughout its 

recitation of the expertise required for an affiant. In 

interpreting a statute, we must give meaning to every word. 

Shelton, supra, 214 N.J. at 441. The word “or” is a disjunctive 

term that permits a person to satisfy statutory conditions by

meeting one, rather than all, of the identified conditions. In 

re Adoption of Children by G.P.B., 161 N.J. 396, 406 (1999). In 

other words, a person may submit an affidavit of merit if the 

affiant has particular expertise in the general area involved in 

the action or in the specialty involved in the action. N.J.S.A.

2A:53A-27. Such particular expertise may be evidenced by board 

certification or by devotion of his practice substantially to 

the general area or specialty involved in the action for at 

least five years. Ibid. 

In most instances, we anticipate that the affiant and the 

professional-defendant will be similarly licensed. However, 
30

there may be circumstances when the alleged departure from the 

professional standard of care is within the particular expertise 

of two licensed professions. In such cases, in assessing the 

sufficiency of the affidavit of merit, a court must focus, as in 

Berlin, on the specific allegations of professional negligence. 

Berlin, supra, 337 N.J. Super. at 597-98; cf. Garden Howe Urban 

Renewal Assocs. v. HACBM Architects Eng’rs Planners, L.L.C., 439 

N.J. Super. 446, 458-59 (App. Div. 2015) (holding that licensed 

engineer could be qualified to render expert opinion against 

architect regarding compliance with construction codes because 

both types of professionals are responsible for knowledge of and

compliance with appropriate codes).4 

F.

Measured by those standards, the affidavit of merit 

submitted by plaintiff satisfied the requirements of section 27. 

Dr. Samani is a licensed dentist. He also has particular 

expertise in the diagnosis and treatment of sleep apnea -- the 

general area that is the subject of this action -- having

devoted a significant portion of his practice to the diagnosis 

and treatment of sleep apnea for over twenty years.

 

4 We therefore hesitate to endorse the broad statement expressed 

in Hill International, supra, 438 N.J. Super. at 587, that 

“[t]he professional has a right to expect that those standards 

of care by which his or her conduct will be measured will be 

defined by the same profession in which he or she holds a 

license, and not by some other profession.”
31

In reaching that determination, we must acknowledge that 

the treatment of sleep apnea is not exclusive to a single dental 

specialty or subspecialty. A variety of professionals can treat 

sleep apnea, including various types of dentists and physicians. 

See Mayo Clinic Staff: Sleep Apnea Treatments and Drugs, Mayo 

Clinic, http://www.mayoclinic.org/diseases-conditions/sleepapnea/basics/treatment/con-20020286 (last visited July 15, 

2016). In particular, sleep apnea can be treated by both 

orthodontists and prosthodontists, cf. ibid., which are two of 

the nine dental specialties recognized by the American Dental 

Association, see American Dental Association, Specialty 

Definitions, http://www.ada.org/en/education-careers/careers-indentistry/dental-specialties/specialty-definitions (last visited 

July 15, 2016). An orthodontist is a “uniquely qualified 

specialist[] who diagnose[s], prevent[s] and treat[s] dental and 

facial irregularities to correctly align teeth and jaws.” 

American Association of Orthodontists, Who We Are, https://

www.aaoinfo.org/about/what-we-do (last visited July 15, 2016). 

“A prosthodontist is a dentist who specializes in the esthetic 

restoration and replacement of teeth” and is a “master[] of 

complete oral rehabilitation” whose expertise may be employed to 

treat wide-ranging conditions including jaw joint disorders, 

traumatic injuries to the mouth’s structures, snoring, and sleep 

disorders. Pacific Coast Society for Prosthodontics, What is 
32

Prosthodontics?, http://www.pcsp.org/whatisprostho.html (last 

visited July 15, 2016). A prosthodontist, therefore, is capable 

of having the “particular expertise” necessary to prepare an 

affidavit of merit in support of a claim regarding negligent 

dental treatment for sleep apnea. Plaintiff’s affiant has

demonstrated the requisite particular expertise to further the 

purpose of identifying meritorious professional negligence 

claims.

Having concluded that the affidavit of merit submitted by 

plaintiff is sufficient, we need not resort to the equitable 

remedies of substantial compliance and good faith effort that 

permit relaxation of the affidavit of merit requirements. The 

statute imposes no more than a licensure requirement and 

particular expertise in the general area or specialty involved 

in the action. Dr. Samani satisfies those requirements. He 

does not have to share the same specialty or subspecialty as 

defendant. Section 27 imposes only licensure and particular 

expertise standards for affiants; it does not -- either on its 

face or as applied since its enactment -- impose a likecredential standard akin to that of section 41. 

We also have no need to remand this matter to the trial 

court for an appropriate case management conference and review 

of the sufficiency of Dr. Samani’s affidavit because the 

affidavit is sufficient. Cf. Buck, supra, 207 N.J. at 395. 
33

This appeal, however, illustrates that a timely and effective 

Ferreira conference continues to be a critical component of 

fulfilling the purpose of the AOM statute.

An effective Ferreira conference would probably have 

prevented this appeal. The trial court pointedly declined to 

resolve the issues presented by plaintiff. The court stated 

that it could not give advice to plaintiff and failed to elicit 

any statement or representation from defense counsel as to 

whether defendant’s treatment of plaintiff was within his 

specialty of orthodontics, but informed plaintiff that he was 

required to submit an affidavit of merit from a dentist. In 

sum, the Ferreira conference failed to achieve its purpose of

identifying and resolving any affidavit of merit problems before 

imposing the ultimate sanction of a dismissal with prejudice.

IV.

In conclusion, we hold that the enhanced requirements of 

section 41 governing the qualifications of persons permitted to 

submit an affidavit of merit, or to provide expert testimony 

against or in support of a physician, in a medical malpractice 

action apply only in medical malpractice actions. In all other 

actions against a licensed professional, including a dentist, 

section 27 prescribes the qualifications of the person who may

submit an affidavit of merit against a licensed professional who 

is alleged to have acted negligently. The affiant must hold an 
34

appropriate license and must demonstrate particular expertise in 

the general area or specialty involved in the action, but he or 

she is not required to possess credentials equivalent to those 

of the licensed professional defendant. Neither the plain 

language nor the purpose and history of the AOM statute or 

Patients First Act support importation of the like-credential 

standard governing physicians in medical malpractice actions to 

professional negligence actions governed by section 27.

We also hold that the affidavit of merit submitted by 

plaintiff satisfies section 27. The affiant is a licensed 

dentist who has particular expertise in the diagnosis and 

treatment of sleep apnea -- the general area involved in the 

professional negligence action filed by plaintiff.

This appeal also illustrates the need for a timely and 

effective Ferreira conference in all professional negligence 

actions. The conference is designed to identify and resolve 

issues regarding the affidavit of merit that has been served or 

is to be served. To that end, all participants must be prepared 

to identify at the conference the general area or specialty 

involved in the action and whether the defendant was providing 

professional services within that profession or specialty. We 

request that the Civil Practice Committee consider whether Rule

4:5-3 should be amended to embrace all professional negligence 

actions subject to the AOM statute.
35

V.

The judgment of the Appellate Division is reversed.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, FERNANDEZVINA and SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE 

PATTERSON did not participate.