• No Merit for Outsiders
  • March 12, 2015 | Authors: Brian R. Biggie; Seth L. Laver; Jennifer M. Mannion
  • Law Firms: Goldberg Segalla LLP - Buffalo Office ; Goldberg Segalla LLP - Philadelphia Office
  • Many states have enacted some version of an “affidavit of merit” (AOM) requirement for professional malpractice claims. We’ve blogged in the past about the significance of affidavit of merit requirements, including the potential advantages from a defense perspective when a plaintiff fails to comply with the applicable state statute. Professionals involved in malpractice suits will want to take note of a recent decision by a New Jersey appeals court, which addressed the state’s affidavit of merit statute and limited affidavits of merit to the same professional field at issue.

    In any action seeking damages for professional malpractice, the New Jersey AOM statute requires a supporting affidavit from “an appropriate licensed person” that there exists a reasonable probability that defendant’s conduct “fell outside acceptable professional or occupational standards or treatment practices.” While the statute defines certain licensed persons such as accountants, engineers, and architects, the statute does not explain what constitutes an “appropriate licensed person.”

    In Hill International Inc. v. Atlantic City Board of Education, a three-judge Appellate Division panel reversed the trial court’s interlocutory order which permitted a plaintiff to submit an AOM from a licensed engineer in support of the plaintiff’s claim against architects for negligence in design and construction contract administration. The appellate court held that in order to support claims of malpractice the affiant must be “licensed within the same profession as the defendant.”

    The court specifically rejected the trial court’s reasoning that an architect and engineer’s specialties overlapped and therefore an engineer was qualified to provide an AOM as to the architect’s professional competence. The court clarified that the “like-licensed” requirement applies even where the relevant professional license laws overlap to some degree. In other words, even though job functions of licensed professionals may coincide, a person licensed in one profession cannot opine as to the malpractice of a person in another profession.

    Still the court noted several exceptions to its endorsement of the “like-licensed” concept. First, no AOM is required if the defendant’s allegedly negligent conduct did not involve the exercise of duties within his licensed professional role. Second, an AOM from a like-licensed professional is not required when plaintiff’s claims sound in some other discrete theory of liability other than malpractice or negligence. Third, the requirement is not applied when plaintiff’s claims against a professional are confined to theories of vicarious liability or agency that do not implicate the standards of care of the profession.

    Professionals should take the time to become aware of the particular nuances and requirements of their applicable state statutes. Recognizing when a plaintiff has failed to comply with the affidavit of merit rules can be critical to successfully defending malpractice claims. We’ve said it before and we’ll say it again, these statutes were created to protect professionals, and should be utilized to the benefit of professionals whenever possible.