December 30, 2014  

A New Jersey appeals court has given plaintiffs in professional malpractice cases some leeway in the standards needed for obtaining an affidavit of merit.

In a published opinion, a three-judge Appellate Division panel on Dec. 30 said an affidavit of merit from a “like-licensed” professional might not be required if the claims fall outside of the defendant’s area of professional expertise.

“Minor variations in the scope or terms of the respective licenses held by the affiant that do not bear upon material issues in the case will not disqualify the affiant, so long as both professionals are licensed within the same category of professionals,” wrote Appellate Division Judge Jack Sabatino in Hill International v. Atlantic City Board of Education.

Judges George Leone and Marie Simonelli joined in the ruling.

At issue is whether a plaintiff in a school construction case can submit an affidavit of merit from an engineer against a defendant architect since some areas of their practice areas overlap.

Sabatino said New Jersey’s 1995 Affidavit of Merit Statute, enacted in order to weed out nonmeritorious professional malpractice lawsuits in the early stages of litigation, clearly requires that an affidavit of merit be filed by a “like-licensed” person in the same profession and area of expertise.

That rule can be relaxed, however, when the claims do not involve the defendant’s duties as a professional, Sabatino said.

In this multiparty case, a plaintiff, Cobra Construction Co., of North Arlington, N.J., is pursuing claims against defendant SOSH Architects of Atlantic City, N.J., alleging, among other things, lack of coordination and planning, delays in obtaining permits and approvals and making timely payments.

Sabatino said not all of the claims allege breaches of professional duty.

“Hence, if a licensed professional deliberately hurts a client or patient in an office fist fight, or purposefully spreads falsehoods on the Internet about a former client who refuses to pay the professional’s bill, an AOM will not be required to support the claims against that professional for the intentional torts of assault and battery or defamation,” Sabatino said. “Such intentional wrongdoing is outside the sphere of professional malpractice litigation that the AOM statute is designed to regulate.”

The Atlantic City Board of Education retained SOSH Architects to design a new elementary school on Richmond Avenue in 2008, according to the appeals court’s opinion. Cobra Construction eventually was hired as the general contractor, and the school’s construction was to be substantially completed by August 2011.

Various problems arose during the course of construction, leading to litigation among several parties, including that between Cobra Construction and SOSH, the opinion said. In accordance with the statute, Cobra Construction obtained an affidavit of merit attesting to the alleged professional malpractice of SOSH and one of its architects, Peter Gallagher. However, the affidavit of merit was prepared by a licensed engineer, James Beach, and not an architect.

SOSH moved to have the complaint dismissed on the grounds that Cobra Construction had failed to obtain an affidavit of merit within the required time frame. A trial judge, however, ruled that the claim could stand because the engineer and the architect’s specialties overlapped to such a point that Beach could be considered qualified to opine on an architect’s professional competence.

SOSH appealed the judge’s ruling.

The appeals court emphasized that prior case law mandates that claims involving professional malpractice must be accompanied by an affidavit prepared by a licensed professional engaged in the same profession.

Although job functions may overlap between licensed professionals, that does not mean a person licensed in one profession may issue a statement attesting to the malpractice of a person in another profession, Sabatino said.

For example, he said a nurse could not be an affiant against a doctor in a blood-pressure case even though both are trained in how to take blood pressure readings. Nor could an accountant in a tax case involving a defendant attorney prepare an affidavit of merit even though both are trained to prepare tax returns, Sabatino said.

“Construing the AOM statute to require such like-licensed affiants is consistent with the norms of fairness as well as a recognition of the reasonable expectations of a licensed professional,” Sabatino said.

But not every claim against a licensed professional alleges professional malpractice or a deviation from the professional standard of care, Sabatino said.

“An affidavit from such a like-licensed expert is not, however, required when the plaintiff’s claims are confined to theories of vicarious liability or agency and do not assert or implicate deviations from the defendant’s professional standards of care,” he said.