specialists believed the defendant did not commit malpractice, and that the general surgeon was not qualified to render the affidavit of merit because he was not board certified in the same specialty as the defendant, and because he was not actively performing colonoscopies when the procedure was performed on the plaintiff. The trial judge granted plaintiff’s motion to waive the specialty requirements and denied the defendant’s motion to dismiss the complaint. The Appellate Division reversed, holding that the plaintiff had not demonstrated a good faith effort to obtain an expert, and dismissed the complaint. In reinstating the complaint, the Supreme Court held that an expert who does not possess the same board certification as the defendant may nevertheless provide a satisfactory affidavit of merit if the party seeking the waiver demonstrates a “good faith effort” to obtain an affidavit from a doctor with the same board certification and if the proffered expert possesses sufficient 268. Ryan v. Renny, 203 N.J. 37 (2010). training, experience and knowledge of the condition or procedure in issue as “a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.”269 The Supreme Court explained that a good-faith effort to obtain an affidavit from a similarly board certified expert required the judge to focus on whether the plaintiff attempted to secure such an expert, and not the reasons why the potential experts declined to participate in the case.270 A similar conclusion was reached by the Appellate Division in an engineering malpractice case, Berlin v. Remington & Vernick.271 In Berlin, the Borough of Berlin sued an engineer for negligence in designing a municipal water well. The plaintiff served the affidavit of a professional hydrogeologist. The defendant moved to dismiss, arguing that only an engineer could serve the affidavit of merit. The Appellate Division held that the plaintiff had complied with the statute, but warned: To protect against engineering malpractice
specialists believed the defendant did not commit malpractice, and that the general surgeon was not qualified to render the affidavit of merit because he was not board certified in the same specialty as the defendant, and because he was not actively performing colonoscopies when the procedure was performed on the plaintiff. The trial judge granted plaintiff’s motion to waive the specialty requirements and denied the defendant’s motion to dismiss the complaint. The Appellate Division reversed, holding that the plaintiff had not demonstrated a good faith effort to obtain an expert, and dismissed the complaint. In reinstating the complaint, the Supreme Court held that an expert who does not possess the same board certification as the defendant may nevertheless provide a satisfactory affidavit of merit if the party seeking the waiver demonstrates a “good faith effort” to obtain an affidavit from a doctor with the same board certification and if the proffered expert possesses sufficient 268. Ryan v. Renny, 203 N.J. 37 (2010). training, experience and knowledge of the condition or procedure in issue as “a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.”269 The Supreme Court explained that a good-faith effort to obtain an affidavit from a similarly board certified expert required the judge to focus on whether the plaintiff attempted to secure such an expert, and not the reasons why the potential experts declined to participate in the case.270 A similar conclusion was reached by the Appellate Division in an engineering malpractice case, Berlin v. Remington & Vernick.271 In Berlin, the Borough of Berlin sued an engineer for negligence in designing a municipal water well. The plaintiff served the affidavit of a professional hydrogeologist. The defendant moved to dismiss, arguing that only an engineer could serve the affidavit of merit. The Appellate Division held that the plaintiff had complied with the statute, but warned: To protect against engineering malpractice